Richardson v. Reno Police Department

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ARTHUR D. RICHARDSON, Case No. 3:17-cv-00383-MMD-WGC 7 Plaintiff, ORDER v. [8] 9 RENO POLICE DEPARTMENT, et al., 10 Defendants. [11] I. SUMMARY [12] Pro se Plaintiff Arthur D. Richardson (“Richardson”) maintains Fourth Amendment [13] excessive force claims under 42 U.S.C. § 1983 against Defendants Aaron Flickinger [14] (“Flickinger”), Christopher Good (“Good”), and Wesley Leedy (“Leedy”). (ECF No. 10 at [15] 1.) Defendants have moved for summary judgment (“Motion”). (ECF No. 57.) For the [16] reasons stated below, the Court will deny the Motion.1 [17] II. BACKGROUND [18] After screening conducted under 28 U.S.C. §§ 1915 and 1915A, the Court [19] permitted Richardson to proceed on his Fourth Amendment excessive force claims [20] against the officers. (ECF Nos. 7, 9.) Richardson’s claims arise from an incident that [21] occurred in a casino parking garage. (ECF No. 10.) What follows is undisputed and forms [24] 1Plaintiff filed two documents apparently for the purpose of opposing a motion for 25 summary judgment even though one had not yet been filed. (ECF Nos. 55, 56.) After Defendants filed the Motion (ECF No. 57), Plaintiff filed a motion to supplement his earlier 26 opposition to summary judgment. (ECF No. 59.) However, Plaintiff then also filed a response to the Motion. (ECF No. 60.) Accordingly, the Court denies Plaintiff’s motion to 27 supplement (ECF No. 59) because Plaintiff is seeking to supplement a fugitive document—an opposition to a motion that had not yet been filed. The Court accepts and 28 considers Plaintiff’s response (ECF No. 60) as the operative response to the Motion. The Court has also reviewed Defendants’ reply. (ECF No. 61.) 2 On June 21, 2015, Reno Police Department officers received reports that Plaintiff 3 was involved in an incident with a firearm near the Silver Legacy casino (“Silver Legacy”) 4 in Reno, Nevada. (Id. at 3.) Officers Flickinger, Good, and Leedy located Richardson in 5 the parking garage of the Silver Legacy. (Id.) The officers approached Richardson with 6 their weapons drawn. (Id. at 6.) Richardson pulled out a gun. (Id.) In response, all three 7 officers fired at Richardson. (Id.) Richardson was struck multiple times, dropped the gun, 8 and fell to the ground. (Id. at 3–4.) 9 III. LEGAL STANDARD 10 “The purpose of summary judgment is to avoid unnecessary trials when there is 11 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., [12] 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 13 pleadings, the discovery and disclosure materials on file, and any affidavits “show that 14 there is no genuine issue as to any material fact and that the moving party is entitled to a 15 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue 16 is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder 17 could find for the nonmoving party and a dispute is “material” if it could affect the outcome 18 of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 19 (1986). Where reasonable minds could differ on the material facts at issue, however, 20 summary judgment is not appropriate. See id. at 250–51. “The amount of evidence 21 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 22 resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 23 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253 , 24 288–89 (1968)). In evaluating a summary judgment motion, a court views all facts and [25] 26 2The incident was captured on the Silver Legacy’s surveillance cameras. Defendants did not offer the video footage (“the Video”) with their Motion, although they 27 referenced it. (ECF No. 57 at 3, 5, 7.) It was filed in connection with Defendants’ previous motion to dismiss. (ECF No. 15-2.) However, as discussed below, the Court cannot 28 consider this footage on summary judgment because it is inadmissible. See infra Section 2 Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 3 The moving party bears the burden of showing that there are no genuine issues of 4 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870 , 883 (9th Cir. 1982). Once the 5 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 6 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 7 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 8 produce specific evidence, through affidavits or admissible discovery material, to show 9 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404 , 1409 (9th Cir. 1991), 10 and “must do more than simply show that there is some metaphysical doubt as to the 11 material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 13 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 14 Anderson, 477 U.S. at 252. 15 IV. DISCUSSION 16 As an initial matter, Defendants failed to cite to any evidence to support the first 17 three substantive paragraphs in their claimed “Statement of Undisputed Facts.” (ECF No. 18 57 at 2–3.) This defect alone warrants denial of Defendants’ Motion. See LR 56-1 19 (providing in pertinent part that motions for summary judgment must include “a concise 20 statement setting forth each fact material to the disposition of the motion that the party 21 claims is or is not genuinely in dispute, citing the particular portions of any pleadings, 22 affidavit, deposition, interrogatory, answer, admission, or other evidence on which the 23 party relies”). 24 Defendants argue that there is no dispute of material facts both because the 25 undisputed evidence does not support a finding of excessive force and because 26 Richardson has not provided evidence in discovery supporting his claim. (ECF No. 57 at 27 2, 6, 7.) To support this contention, Defendants mostly rely on the same evidence offered 28 in their motion to dismiss. (Compare ECF No. 57 at 2–5, with ECF No. 32 at 4–6.) 2 take judicial notice of much of the evidence offered by Defendants. (ECF No. 32 at 4–6.) 3 Additionally, much of this evidence remains unauthenticated. (See ECF Nos. 15-1, 15-2, 4 15-3, 15-5.) As such, the Court may not consider it on summary judgement.3 See Orr, [5] 285 F.3d at 773 (finding that in ruling on a motion for summary judgment, the Court may 6 not consider unauthenticated documents); see also Fed. R. Civ. P. 56(e)). 7 Additionally, in as much as Defendants argue that Plaintiff has provided no 8 evidence to support the allegations in his Complaint, the Court disagrees. Richardson’s 9 Complaint is verified, and he was a witness to these alleged events; accordingly, he may 10 rely on his own verified statements to create a factual dispute. See Keenan v. Hall, 83 11 F.3d 1083 , 1090 n.1 (9th Cir. 1996) (“A verified complaint may be treated as an affidavit 12 to oppose summary judgment to the extent it is based on personal knowledge and sets 13 forth specific facts admissible in evidence.”). 14 Defendants rely on their characterization of the evidence to seek summary 15 judgment on Plaintiff’s excessive force claims. (ECF No. 57 at 7–8.) However, Defendants 16 ignore the verified allegations in the Complaint, asserting that Richardson was shot five 17 times after he dropped his gun and attempted to go to the ground. (ECF No. 10 at 4.) In 18 their Motion, Defendants offered affidavits of two officers’ observations of the Video— 19 describing that Defendants ceased firing when Richardson fell. (ECF No. 57-2 at 3, ECF 20 No. 57-3 at 10.) This competing evidence creates a genuine issue of material fact as to 21 whether Defendants continued to fire shots at Richardson after he dropped his gun as he 22 claims.4 For this reason, the Court denies summary judgment to the extent Defendants [23] 3The Court will not consider the following evidence: (1) a document titled “Sparks 24 Police Department Officer Involved Shooting Overview” (ECF No. 15-1); (2) the Video of the Silver Legacy parking garage (ECF No. 15-2); (3) a transcript of an interview of 25 Richardson (ECF No. 15-3); and (4) a document titled “Report on the June 21, 2015 Officer Involved Shooting of Arthur Dell Richardson Jr.” (ECF No. 15-5). [26] 4In their reply, Defendants suggest that Plaintiff’s version of the facts are not 27 credible given that he was under the influence of controlled substances. (ECF No. 61 at 2.) However, whether Plaintiff’s verified allegations are credible is an issue for the jury, 28 not the Court, to resolve. Moreover, this competing evidence cannot be resolved even if 2 Defendants further argue that they are entitled to qualified immunity. (ECF No. 57 3 at 8–10.) The Court conducts a two-step inquiry to determine whether an officer is entitled 4 to qualified immunity. See, e.g., Groves v. City of Reno, No. 3:13-cv-00537-MMD-WGC, [5] 2015 WL 5350099 , *4 (D. Nev. Sept. 14, 2015). First, the Court decides “whether the 6 facts shown make out a violation of a constitutional right.” Id. If the Court finds a 7 constitutional violation, the Court then decides “whether the constitutional right was 8 clearly established as of the date of the alleged misconduct.” Id. (citations omitted). The 9 Court discusses both prongs of the inquiry. 10 1. Whether the Facts Establish a Violation of Richardson’s Fourth 11 Amendment Rights 12 Defendants argue that they did not violate Richardson’s constitutional rights 13 because their use of force was reasonable under the circumstances. (ECF No. 57 at 9.) 14 Specifically, Defendants contend that it was reasonable for them to use deadly force 15 because Richardson was a threat to their safety and the safety of others. (Id.) Richardson 16 concedes that the officers’ initial use of force was reasonable; however, Richardson 17 asserts that he was shot four or five more times after he “dropped his firearm and was in 18 total capitulation”. (ECF No. 60 at 2, 3.) The Court finds a genuine issue of material fact 19 exists as to whether Defendants’ continued use of force after Plaintiff was on the ground 20 was reasonable under the circumstances. 21 To determine whether Defendants’ use of force was excessive under the Fourth 22 Amendment, the Court assesses “whether the officers' actions are objectively reasonable 23 in light of the facts and circumstances confronting them, without regard to their underlying 24 intent or motivation.” Graham, 490 U.S. at 397 (internal quotation marks omitted). 25 “Determining whether the force used to effect a particular seizure is reasonable under the 26 Fourth Amendment requires a careful balancing of the nature and quality of the intrusion [27] 28 the Court were to consider the Video (ECF No. 15-2) because it is not clear from the 2 interests at stake.” Id. at 396 (internal quotation marks omitted). In this analysis, the Court 3 must consider the following factors: (1) the severity of the crime at issue; (2) whether 4 Richardson posed an immediate threat to the safety of the officers or others; and (3) 5 whether Richardson actively resisted arrest.5 Id.; see also Arpin v. Santa Clara Valley 6 Transp. Agency, 261 F.3d 912 , 921 (9th Cir. 2001). Additionally, “a police officer may not 7 use deadly force unless it is necessary to prevent escape and the officer has probable 8 cause to believe that the suspect poses a significant threat of death or serious physical 9 injury to the officer or others.” Smith v. City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005) 10 (internal quotation marks omitted). However, the Court must also account for the “fact 11 that police officers are often forced to make split-second judgments—in circumstances 12 that are tense, uncertain, and rapidly evolving—about the amount of force that is 13 necessary in a particular situation.” Graham, 490 U.S. at 397. 14 Moreover, the Ninth Circuit has repeatedly recognized that excessive force cases 15 are rarely suited for summary judgment. “Because [the excessive force inquiry] nearly 16 always requires a jury to sift through disputed factual contentions, and to draw inferences 17 therefrom, we have held on many occasions that summary judgment or judgment as a 18 matter of law in excessive force cases should be granted sparingly.” Santos v. Gates, 287 19 F.3d 846, 853 (9th Cir. 2002); see also Liston v. County of Riverside, 120 F.3d 965 , 976 20 n.10 (9th Cir. 1997) (“We have held repeatedly that the reasonableness of force used is 21 ordinarily a question of fact for the jury.”). 22 Here, Richardson has provided evidence that could lead a rational trier of fact to 23 find that Defendants used excessive force. Richardson offered verified allegations that 24 Leedy fired “three more times even after the Plaintiff was down.” (ECF No. 10 at 6.) He 25 asserts that Good and Flickinger “discharged their weapons again as well” and that he [26] 27 5While these factors act as guidelines, “there are no per se rules in the Fourth Amendment excessive force context.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 28 2011) (en banc). 2 surrender.” (Id.) Viewing all facts and drawing all inferences in favor of Richardson as the 3 non-moving party, a reasonable fact-finder could determine that he was shot after he no 4 longer posed a threat and when he was no longer resisting arrest. As such, the Court 5 finds a genuine issue of material fact exists as to whether Defendants used excessive 6 force against Richardson. 7 2. Was the Fourth Amendment Violation Clearly Established 8 The second prong of the analysis requires the Court to determine whether the law, 9 as it existed at the time of the incident, was clearly established. “A [g]overnment official's 10 conduct violates clearly established law when, at the time of the challenged conduct, [t]he 11 contours of [a] right [are] sufficiently clear that every reasonable official would have 12 understood that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731 , 13 741 (2011) (quotation marks and citation omitted). The Supreme Court has cautioned 14 courts “not [to] define clearly established law at a high level of generality.” Id. at 742 15 (citations omitted). Yet, it is “clear that officials can still be on notice that their conduct 16 violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 17 730, 741 (2002). 18 Here, the right allegedly violated by Defendants—to be free from the continued 19 use of deadly force after the threat has ended—is clearly established. See Robinson v. 20 Nolte, 77 F. App’x. 413, 414 (9th Cir. 2003) (finding that officers violated plaintiff’s rights 21 by using deadly force when plaintiff did not pose a risk because “he was lying back on 22 the bed, his arms raised over his head in a classic surrender position, with a gun in his 23 lap”); Ting v. U.S., 927 F.2d 1504, 1510 (9th Cir. 1991) (finding unreasonable the use of 24 deadly force against a suspect who dropped his gun, was surrounded by armed officers, 25 and was “in a prone position or on his hands and knees”); Tubar v. Clift, 453 F. Supp. 2d 26 1252, 1258 (W.D. Wash. 2006) (finding that the continued use of deadly force against 27 plaintiff would be unconstitutional even if plaintiff “merely prove[d] that any danger had 28 subsided by the time [the defendant officer] fired the third shot”). 1 Richardson has provided evidence that he was shot after dropping his weapon, 2 || falling to the ground, and attempting to surrender.® (ECF No. 10 at 4, 6, 8.) If Richardson’s 3 || version of the shooting is to be believed, then Defendants may have violated Richardson’s 4 || clearly established right to be free from the continued use of deadly force after the threat 5 || has ended. 6 In light of the factual dispute as noted herein, the Court is precluded from finding 7 || matter of law that Defendants’ alleged violating conduct was, or was not, inconsistent 8 || with clearly established law. See Conner v. Heiman, 672 F.3d 1126, 1131 (9th Cir. 2012) 9 || (internal quotation marks omitted) (finding that “where historical facts material to the 10 || qualified immunity determination are in dispute . . . the district court [Should] submit the 11 || issue to a jury”). Therefore, the Court denies summary judgment on qualified immunity. 12 || V. CONCLUSION 13 The Court notes that the parties made several arguments and cited to several 14 || cases not discussed above. The Court has reviewed these arguments and cases and 15 || determines that they do not warrant discussion as they do not affect the outcome of the 16 || issues before the Court. 17 It is therefore ordered that Defendants’ motion for summary judgment is denied. 18 || (ECF No. 57.) 19 It is also ordered that Plaintiff's motion to supplement (ECF No. 59) is denied. 20 DATED THIS 24" day of February 2020. {Shr 22 4 a MIRANDA M. DU 23 CHIEF UNITED STATES DISTRICT JUDGE [25] 26 6In contrast, Defendants frame the second-step inquiry based on their version of the facts—that the officers’ last shots came simultaneously or almost immediately after 27 || Richardson fell to the ground and dropped the gun. (ECF No. 57-2 at 3, ECF No. 57-3 at 10.) Based on these allegations, Defendants argue that the law is clearly established that 28 || officers may continue to use force here where Defendants continued to shoot as Plaintiff fell to the ground. (ECF No. 57 at 10.) 3