747 F.3d 789 (9th Cir. 2014), 11-56360, Gonzalez v. City of Anaheim

Docket Nº:11-56360
Citation:747 F.3d 789
Opinion Judge:CLIFTON, Circuit Judge:
Party Name:RAFAEL GONZALEZ, individually and as successor in interest to Adolph Anthony Sanchez Gonzalez, Plaintiff, and F.E.V. , a minor, individually and as successor in interest to Adolph Anthony Sanchez Gonzalez, by and through her Guardian Ad Litem David Vasquez; ANTOINETTE SANCHEZ, individually and as successor in interest to Adolph Anthony Sanchez Gonz
Attorney:Paul L. Hoffman (argued), Schonbrun, DeSimone, Seplow, Harris & Hoffman, Venice, California; Dale K. Galipo and Melanie T. Partow, Woodland Hills, California, for Plaintiffs-Appellants. Moses W. Johnson (argued) and Cristina L. Talley, Anaheim, California, for Defendants-Appellees.
Judge Panel:Before: Alex Kozinski, Chief Judge, and Stephen S. Trott, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Ronald M. Gould, Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton, Carlos T. Bea, and Morgan Christen, Circuit Judges. Opinion by Judge Clifton; Partial Concurrence and Part...
Case Date:March 31, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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747 F.3d 789 (9th Cir. 2014)

RAFAEL GONZALEZ, individually and as successor in interest to Adolph Anthony Sanchez Gonzalez, Plaintiff, and F.E.V. , a minor, individually and as successor in interest to Adolph Anthony Sanchez Gonzalez, by and through her Guardian Ad Litem David Vasquez; ANTOINETTE SANCHEZ, individually and as successor in interest to Adolph Anthony Sanchez Gonzalez, Plaintiffs-Appellants,

v.

CITY OF ANAHEIM, DARON WYATT, and MATTHEW ELLIS, Defendants-Appellees

No. 11-56360

United States Court of Appeals, Ninth Circuit

March 31, 2014

Argued and Submitted En Banc, San Francisco, California: December 11, 2013.

Petition for certiorari filed at, 07/30/2014

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Appeal from the United States District Court for the Central District of California. D.C. No. 2:10-cv-04660-PA-SH. Percy Anderson, District Judge, Presiding.

Paul L. Hoffman (argued), Schonbrun, DeSimone, Seplow, Harris & Hoffman, Venice, California; Dale K. Galipo and Melanie T. Partow, Woodland Hills, California, for Plaintiffs-Appellants.

Moses W. Johnson (argued) and Cristina L. Talley, Anaheim, California, for Defendants-Appellees.

Before: Alex Kozinski, Chief Judge, and Stephen S. Trott, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Ronald M. Gould, Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton, Carlos T. Bea, and Morgan Christen, Circuit Judges. Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Judge Trott; Dissent by Chief Judge Kozinski.

OPINION

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CLIFTON, Circuit Judge:

Adolph Anthony Sanchez Gonzalez was shot and killed during an encounter with two Anaheim police officers. His successors brought an action seeking damages under 42 U.S.C. § 1983. The district court entered summary judgment in favor of defendants.

Because Gonzalez is dead, the police officers are the only witnesses able to testify as to the events that led to Gonzalez's death. In such a circumstance, we must carefully examine the evidence in the record to determine whether the officers' testimony is internally consistent and consistent with other known facts. After conducting such a review, we conclude that a significant inconsistency in the officers' testimony was sufficient to present a genuine dispute of material fact. Based on the current record, summary judgment on the plaintiffs' claim for deadly excessive force was inappropriate. We reverse and remand that claim for further proceedings.

In addition to the excessive force claim brought on behalf of Gonzalez, the plaintiffs also brought claims in their own right for the denial of a familial relationship. The district court granted summary judgment for defendants as to those claims as

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well. As to that portion of the judgment, we affirm.

I. Background

As noted above, the only testimony concerning the events that led to Gonzalez's death came from the two police officers involved in the incident, Anaheim Police Department Officers Daron Wyatt and Matthew Ellis. They testified that they first noticed Gonzalez when they were responding in their patrol car to an unrelated call at about 2 a.m. on September 25, 2009. A Mazda minivan cut them off as they were making a turn. The minivan turned into a gas station, and the officers continued on their way.

A few minutes later, the officers returned to the area where they had been cut off and noticed that the minivan was still at the gas station. Gonzalez got in the car and began driving southbound. The officers followed him. They observed the minivan weaving within its traffic lane. Although weaving within a lane was not a traffic violation, as Ellis later acknowledged, the officers decided to make a traffic stop and pulled Gonzalez over.

At that time, the officers did not recognize the driver from any prior contacts. They did not have any information that the minivan had been stolen or had outstanding warrants or citations. They had no information that the driver had previously committed any crime, had any prior contact with law enforcement, or had any involvement with weapons. At no point during the entire incident did either officer ever see a weapon in the minivan.

The officers exited their vehicle and approached the minivan from both sides. Ellis approached from the driver's side, and Wyatt approached from the passenger side. Wyatt drew his gun. Wyatt thought he saw Gonzalez reach for something between the driver and passenger seats and warned Gonzalez that if he reached down again, Wyatt would shoot. Gonzalez at that point complied and held his fists in his lap.

The officers told Gonzalez to turn off the vehicle and open his hands, which he held clenched. Ellis tried to open the driver's side door, but it was locked. The officers reached through the minivan's open windows and opened the driver and passenger side doors. Ellis saw Gonzalez pull his hand out of a bag located between the two front seats. Ellis observed a plastic bag in Gonzalez's right fist. Ellis told Gonzalez to turn off the vehicle and give him his hands. Gonzalez did not respond to that command.

Wyatt reached into the car, struck Gonzalez's elbow three times with a flashlight, and told Gonzalez to open his hand. Gonzalez then raised his hand up to his mouth, as if to swallow what he was holding. Ellis grabbed Gonzalez. Wyatt testified that he thought Ellis was trying to apply a carotid restraint, but Ellis testified that he was only trying to gain control of Gonzalez's hands. Wyatt also observed that Gonzalez had a clenched fist and was reaching downward with his left hand. Wyatt called for assistance on his police radio. Wyatt went around to the driver's side to try to help Ellis restrain Gonzalez, but was not able to do so.

Wyatt went back to the passenger side, entered the minivan, and began punching Gonzalez in the head. Ellis observed Gonzalez reaching for the minivan's gear shift with his right hand. Ellis thought Gonzalez was attempting to shift the car into drive so Ellis used his flashlight to hit Gonzalez on the back of the head to try to stop him.

Despite the officers' efforts, Gonzalez managed to shift the minivan into drive, and the minivan began moving. Ellis

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withdrew from the vehicle as it began moving and struck Gonzalez in the head as he did so. The front passenger door closed behind Wyatt, who remained in the vehicle.

Ellis stated that Gonzalez " stomp[ed]" on the accelerator. Wyatt said that Gonzalez " floored the accelerator" and that the vehicle " violently accelerated."

Wyatt yelled at Gonzalez to stop the car, but he kept going. Gonzalez swatted Wyatt's hand away as he tried to turn off the ignition or shift the transmission to neutral or park. Unable to stop or gain control of the car, Wyatt drew his weapon and shot Gonzalez in the head, killing him. He shot from a distance of less than six inches. The minivan hit a parked car and came to a stop.

Wyatt testified that he fired the shot less than ten seconds after the car started moving, and it could have been less than five seconds. He estimated that the car moved approximately 50 feet in that time and was going 50 miles per hour at the time of the shot.

Gonzalez's father sued the officers and the City of Anaheim under 42 U.S.C. § 1983. He brought claims as his son's successor for excessive force in violation of the Fourth Amendment and on behalf of himself for denial of a familial relationship in violation of the Fourteenth Amendment. Gonzalez's mother and daughter filed a similar action that also raised various state law claims. The district court consolidated the actions.

The defendants moved for summary judgment, and the district court granted the motion. The district court held that the force the officers used during their encounter with Gonzalez was reasonable and that their conduct did not violate the Fourteenth Amendment. Having disposed of the federal claims, the district court declined to exercise supplemental jurisdiction over the remaining state law claims. Gonzalez's mother and daughter appeal the district court's grant of summary judgment.

II. Discussion

We review a district court's grant of summary judgment de novo to determine whether there are any genuine disputes of material fact and whether the moving party is entitled to judgment as a matter of law. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). We view the evidence in the light most favorable to the nonmoving party. Id.

A. Fourth Amendment Claim

Gonzalez's representatives argue that genuine disputes of material fact preclude summary judgment on their claim that the officers used unreasonable deadly force against Gonzalez. We agree.

" An officer's use of deadly force is reasonable only if 'the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.'" Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (emphasis omitted) (quoting Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Factors relevant to assessing whether an officer's use of force was objectively reasonable include " the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The immediacy of the threat posed by the suspect is the most important factor. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). These factors are not exclusive, and we consider the totality of

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the circumstances. Bryan v. MacPherson, 630...

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