Moreland v. Las Vegas Metropolitan Police Dept.

• Decision Date: 24 November 1998
• Docket Number: No. 97-17070,97-17070
• Citation: 159 F.3d 365
• Parties: 98 Cal. Daily Op. Serv. 7387, 98 Daily Journal D.A.R. 10,270, 98 Daily Journal D.A.R. 11,957 Lucille MORELAND, Demarrion Quintrell Jett and Dominisha Lanae Jett, two minor children, by and through Annette Lavon Jett, as their natural mother and general guardian, Plaintiffs-Appellants, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Officer James G. Burns; Officer Jack W. Pope, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 365

159 F.3d 365

98 Cal. Daily Op. Serv. 7387, 98 Daily Journal

D.A.R. 10,270,

98 Daily Journal D.A.R. 11,957

Lucille MORELAND, Demarrion Quintrell Jett and Dominisha Lanae Jett, two minor children, by and through Annette Lavon Jett, as their natural mother and general guardian Plaintiffs-Appellants, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Officer James G Burns; Officer Jack W. Pope, Defendants-Appellees.

No. 97-17070.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 9, 1998.

Decided Sept. 24, 1998.

As Amended Nov. 24, 1998.

Robert J. Kossack, Kossack Law Offices, Las Vegas, NV, for plaintiffs-appellants.

Brian C. Whitaker and Peter M. Angulo, Rawlings, Olson, Cannon, Gormley & Desruisseaux, Las Vegas, NV, for defendants-appellees.

Appeal from the United States District Court for the District of Nevada Howard D McKibben, District Judge, Presiding. D.C. No. CV-S-95-881-HDM (LRL).

Before: HALL and THOMAS, Circuit Judges, and WHALEY, ^* District Judge.

WHALEY, District Judge.

Lucille Moreland, Demarrion Quintrell Jett, and Dominisha Lanae Jett appeal from the district court's grant of summary judgment in Appellees' favor on Appellants' 42 U.S.C. § 1983 and related state law claims arising from the shooting death of Damon Douglas. Appellants' central theory of this case is that Appellee Burns inadvertently shot the wrong man during a gunfight outside a Las Vegas bar and then he and his partner lied to cover up this mistake. Having considered this and Appellants' other arguments in full, we affirm.

I.

This case stems from a gunfight that took place outside of a Las Vegas bar shortly after midnight on September 18, 1993. It is undisputed that when the smoke from this fight cleared, Damon Douglas ("Douglas") lay fatally wounded by a bullet fired by Appellee James Burns ("Burns"). Appellants are Douglas's mother and his two minor children. Appellees are the Las Vegas Metropolitan Police Department ("Metro") and two of its police officers, Burns and Jack Pope ("Pope").

Shortly after midnight on the night of September 17-18, 1993, Burns and Pope responded to a dispatch call indicating there was a fight in the parking lot of the Chances Arr bar in northwest Las Vegas. As Burns and Pope approached in their vehicle, they spotted a male standing beside a car in the parking lot, firing a semiautomatic handgun at individuals who were returning fire from the eastern side of the lot. Burns and Pope stopped their vehicle, illuminated the male with lights, and took cover behind a wall in a position approximately 45 feet behind and slightly to the right of the male. From this vantage point, Burns and Pope could see there were between 50 and 100 people trapped in the parking lot, many of whom were caught in the ongoing crossfire.

When the male failed to comply with the officers' orders to stop firing, Burns and Pope both fired at him. As each officer fired his final shot, the male fell to the ground and crawled away from the officers, toward the bar. After the shooting stopped, Burns and Pope looked for the male and found Douglas lying on the ground near the front of the bar. Douglas was taken to a local hospital and died shortly thereafter. An autopsy and forensics investigation determined that Douglas had been shot once by a bullet fired from Burns's gun that severed a major artery in Douglas's hip. No gun was found in Douglas's possession, but a semiautomatic pistol was found on the ground in front of the vehicle from which the male had been firing. Metro's fingerprint examiner excluded Douglas as the source of one of the two prints found on the gun, but could neither exclude nor identify Douglas as the source of the second print.

Burns and Pope gave statements to Metro investigators at the scene and later testified at the coroner's inquest that was held regarding the shooting of Douglas. In their inquest testimony and interviews at the scene, Burns and Pope identified Douglas as the man at whom they shot. Pope also testified that only the male's right side was exposed when he and Burns shot, while Burns stated that the male also exposed his left side to Burns as Burns fired his final shots. Additional inquest testimony and witness affidavits presented to the district court suggest Douglas may have been elsewhere in the parking lot for at least some part of the gunfight. ¹

Appellants subsequently filed this lawsuit, asserting three causes of action against Appellees. The first cause of action was brought pursuant to 42 U.S.C. § 1983, based on four distinct theories of relief. The complaint also asserted state law wrongful death and intentional infliction of emotional distress causes of action. The district court ultimately granted Appellees' motions for summary judgment on all of Appellants' claims, and Appellants timely appealed.

II.

We review de novo district court decisions regarding standing, summary judgment, and the proper interpretation of state law. Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir.1998); Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130-31 (9th Cir.1994); In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment under the legal principles that govern the case at issue. Jesinger, 24 F.3d at 1130. A genuine issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Issues of fact do not preclude summary judgment unless they are material to the substantive claim at issue; that is, unless they "might affect the outcome of the suit under the governing law." Id. We may affirm the district court's judgment on any ground finding support in the record, even if it relied on the wrong ground or reasoning. Polich v. Burlington Northern, Inc., 942 F.2d 1467, 1469-70 (9th Cir.1991).

III.

Appellants' § 1983 theories of relief fall into two general categories: Fourth and Fourteenth Amendment theories arising directly from Burns's fatal shooting of Douglas, and two Fourteenth Amendment theories arising from Burns's and Pope's testimony at the coroner's inquest. The district court ruled that Appellants lacked "standing" to seek relief under § 1983 with respect to each of these theories, with the exception of the Fourteenth Amendment claim relating directly to Douglas's shooting. Because the question of whether a particular party has standing to pursue a claim naturally precedes the question of whether that party has successfully stated a claim, we address this question first. See, e.g., Byrd v. Guess, 137 F.3d 1126, 1131 (9th Cir.1998) (ruling that the failure to demonstrate Fourth Amendment standing precludes claim regardless of its potential merits); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, ---- - ----, 118 S.Ct. 1003, 1012-16, 140 L.Ed.2d 210 (1998) (finding that standing challenges should be resolved prior to merits of case).

A. Fourth Amendment Claim

"Fourth Amendment rights are personal rights which ... may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Thus, the general rule is that only the person whose Fourth Amendment rights were violated can sue to vindicate those rights. Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir.1987). In § 1983 actions, however, the survivors of an individual killed as a result of an officer's excessive use of force may assert a Fourth Amendment claim on that individual's behalf if the relevant state's law authorizes a survival action. 42 U.S.C. § 1988(a); Smith, 818 F.2d at 1416-17. The party seeking to bring a survival action bears the burden of demonstrating that a particular state's law authorizes a survival action and that the plaintiff meets that state's requirements for bringing a survival action. Byrd, 137 F.3d at 1131.

The district court correctly ruled that Appellants failed to carry this burden. Nevada law provides for the survival of a cause of action for injuries suffered by an individual who dies before judgment is rendered. See Nev.Rev.Stat. § 41.100(3). ² However § 41.100(3) extends the right to bring a survival action only to the official representatives of an individual's estate; no mention is made of a similar right extending to family members or heirs to bring a survival action independent or in lieu of the estate's claim. Compare, e.g., Cal.Civ.Proc.Code § 377.60 (authorizing causes of action to be brought by decedent's personal representative "or" any of a defined list of persons that includes a decedent's spouse, children, or heirs), with Nev.Rev.Stat. § 41.100(3) (mentioning only the right of a decedent's "executor or administrator" to pursue a cause of action). Moreover, in the same chapter of Nevada's code, the Nevada legislature signaled its recognition of the distinction between an estate representative and a decedent's heirs by granting both heirs and estate representatives the right to bring a state law wrongful death cause of action. See Nev.Rev.Stat. § 41.085. ³ The Nevada legislature's decision to mention only estate representatives in § 41.100(3) leads naturally to the conclusion that the right to bring a survival action in Nevada is limited to the duly appointed representatives of a deceased's estate.

Here, as in Byrd, Appellants did not allege in their complaint that they brought their claims in a representative capacity. Further, at no time in the action before the district court did Appellants argue or offer any evidence they had been formally appointed as representatives of Douglas's estate. In fact, in at least one deposition, counsel for Appellants expressly acknowledged that no claims were being made on behalf of Douglas's estate. Given this record, the district court did not err in dismissing Appellants'...