Reynolds v. County of San Diego, 94-56262

• Decision Date: 28 May 1996
• Docket Number: No. 94-56262,94-56262
• Citation: 84 F.3d 1162
• Parties: 96 Cal. Daily Op. Serv. 3752, 96 Daily Journal D.A.R. 6115 Jeanette REYNOLDS, as Administrator of the Estate of Paul Reynolds, deceased, and individually, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; Jeffrey Jackson, Jim Roache, Sheriff, Defendants-Appellees. Denise REYNOLDS, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; Jeffrey Jackson, Jim Roache, Sheriff, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1162

84 F.3d 1162

96 Cal. Daily Op. Serv. 3752, 96 Daily Journal

D.A.R. 6115

Jeanette REYNOLDS, as Administrator of the Estate of Paul

Reynolds, deceased, and individually, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; Jeffrey Jackson, Jim Roache, Sheriff,

Defendants-Appellees.

Denise REYNOLDS, Plaintiff-Appellant, v. COUNTY OF SAN DIEGO; Jeffrey Jackson, Jim Roache, Sheriff,

Defendants-Appellees.

No. 94-56262.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 6, 1996.

Decided May 28, 1996.

Michael L. Crowley, San Diego, California, for plaintiffs-appellants.

Gerald P. Schneeweis, Douglas J. Collodel, and Richard H. Nakamura, Jr., Morris, Polich & Purdy, San Diego, California, for defendant-appellee Jackson.

Appeal from the United States District Court for the Southern District of California John S. Rhoades, District Judge, Presiding. D.C. Nos. CV-92-01342-JSR, CV-93-0194-JSR.

Before: PREGERSON, T.G. NELSON, Circuit Judges, and GEORGE, ^* District Judge.

Opinion by Judge GEORGE; Dissent by Judge PREGERSON.

GEORGE, District Judge:

Paul Reynolds ("Reynolds") was shot to death by Deputy Jeffrey Jackson ("Jackson") during an altercation near a gas station. Plaintiffs-appellants Jeanette and Denise Reynolds, decedent's wife and mother respectively, challenge the district court's determination that defendant-appellee Deputy Jackson was entitled to summary judgment against their civil rights claims because he was protected from liability under the doctrine of qualified immunity. Appellants also dispute the district court's holding that there is no basis for liability against Jackson under California Civil Code Section 52.1 nor under state tort claims for negligence and wrongful death. This court has jurisdiction over appeals from final judgments under 28 U.S.C. §§ 1291 and 1294. We affirm in part and remand in part.

I. FACTS AND PROCEDURAL BACKGROUND

At approximately 1:00 a.m. on February 18, 1992, Joseph Kirchevel, a gas station attendant, noticed the decedent, Paul Reynolds, behaving in a strange manner near the gas pumps. As Reynolds approached the window, Kirchevel asked if he could help Reynolds. Reynolds responded, "Yes, I think you can," and placed his face up against the glass of the service window. Reynolds then walked away from the window, picked up a squeegee, and started swinging it back and forth. Reynolds placed the squeegee on the cashier's tray at the service window, Kirchevel asked Reynolds to replace the squeegee and called the Sheriff's department. After calling the department, Kirchevel noticed that Reynolds had drawn a knife. ¹ Kirchevel contacted the Sheriff's department again and informed them that Reynolds now had a weapon.

At this time, appellee Deputy Jeffrey Jackson was on routine patrol in the area. Thomas Cornish, a passerby, stopped Deputy Jackson and told him that someone was acting strangely down the road and appeared to have some type of bottle in his hand. Deputy Jackson proceeded to the location specified by Cornish. As Deputy Jackson approached the gas station he noticed Reynolds's car stopped in the roadway, blocking traffic with the driver's side door open.

Deputy Jackson exited his vehicle and proceeded toward Reynolds's car on foot. While he was standing next to Reynolds's car, Robert Wapnowski, a truck driver who was delivering gasoline to the station, yelled at Jackson to stop Reynolds. Wapnowski also indicated that Reynolds had some kind of knife. Jackson saw Reynolds being chased from the gas truck by Wapnowski. Jackson drew his gun and told Reynolds to stop. Jackson noticed that Reynolds was holding a knife and ordered him to put his hands in the air. Reynolds complied, and about this time, Michael Tucker, a passing motorist, stopped to observe the incident.

After Reynolds placed his hands in the air, he walked to the middle of the road. Deputy Jackson followed and told Reynolds to get on the ground, Reynolds complied. Jackson then moved toward Reynolds and told him to drop the knife. Reynolds put the knife on the ground next to his body. According to Wapnowski, Jackson then slowly approached Reynolds, repeatedly telling Reynolds not to move. Nevertheless, as Jackson moved closer it is undisputed that Reynolds suddenly sat up and grabbed the knife.

Deputy Jackson alleges that he then moved behind Reynolds and attempted to disarm Reynolds by kicking him, but that he missed. Wapnowski, however, did not see Jackson's attempt to kick Reynolds. In addition, in his first interview after the incident, Jackson did not mention that he tried to disarm Reynolds by kicking him.

Deputy Jackson continued to move toward Reynolds from behind and eventually put his knee in Reynolds's back and his gun on Reynolds's neck. Again, Jackson ordered Reynolds to drop the knife. Instead, it is undisputed that Reynolds twisted his body and made a sudden, backhanded, upward swing toward Jackson with his right hand which was holding the knife. According to Wapnowski, "[Reynolds's] whole body--it looked like his whole body has twisted to the right. Just--that's all I can say. He just turned to his right real quick like that. And that was after he was warned not to move." Michael Tucker, the motorist who stopped to observed the incident, saw the weapon in Reynolds's hand and Reynolds "swinging" it toward Deputy Jackson.

At this time, Deputy Jackson stated that he feared for his life and pulled the trigger on his gun, but the gun did not fire. Jackson immediately pulled the trigger again. According to Jackson, he took half a step back before pulling the trigger again and fired the gun approximately six inches from Reynolds's neck. This time the gun fired. Reynolds died of a single gunshot wound to the neck.

Richard Whalley, a forensic criminologist and one of appellants' experts, speculates that Jackson's gun did not fire the first time because it was pressed too hard into Reynolds's neck. In addition, Whalley believes that the fatal wound was made while the gun was actually in contact with Reynolds's neck, rather than six inches away.

Following the incident, Jeanette and Denise Reynolds, the decedent's wife and mother respectively, each filed a civil rights action against Deputy Jackson, San Diego County Sheriff Jim Roach, and the County of San Diego, alleging that Jackson's use of force was unreasonable and that Roach and the County were liable for Jackson's actions because they failed to enforce laws and regulations pertaining to the use of deadly force. Both appellants also invoked the district court's pendent jurisdiction to consider claims under California Civil Code Section 52.1 and various state law claims including wrongful death, excessive force, assault and battery, negligence, and negligent hiring. Jeanette Reynolds also sued for loss of consortium and violation of the California Public Records Act. Appellants' actions were consolidated.

Deputy Jackson filed a motion for summary judgment, which the County of San Diego and Sheriff Jim Roach joined. According to the district court, the joinder did not properly specify which of Jackson's legal arguments applied to the County and which applied to Roach. Therefore, the district court denied the County of San Diego's and Roach's motions for summary judgment. ²

The district court granted Deputy Jackson's motion for summary judgment for all allegations directed against Jackson in the complaint. Reynolds v. County of San Diego, 858 F.Supp. 1064 (1994). The court determined that Jackson was immune from liability for the appellants' civil rights claims because he acted reasonably under the circumstances. In addition, the court ruled that Deputy Jackson was immune from appellants' state law claims for negligence and assault and battery, and Jeanette Reynolds's claim of wrongful death. Moreover, the court ruled that Denise Reynolds did not have standing under California state law to bring a state law wrongful death action because she is neither the intestate heir of the decedent nor was she dependent on the decedent. Finally, the court found that Jeanette Reynolds could not maintain a cause of action under California Civil Code Section 52.1. ³

II. STANDARD OF REVIEW

The district court's decision to grant a motion for summary judgment is reviewed de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The court may affirm on any ground supported by the record. In re Apple Computer Secs. Litig., 886 F.2d 1109, 1112 (9th Cir.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3229, 110 L.Ed.2d 676 (1990).

III. DISCUSSION

Appellants appeal the district court's grant of summary judgment in favor of Jackson on their federal civil rights claims. They contend that because there are genuine issues of material fact regarding the reasonableness of Jackson's conduct, the district court erred in determining that Jackson was entitled to summary judgment on the issue of qualified immunity. Additionally, Jeanette Reynolds maintains that the district court erred in determining that she has no cause of action under California Civil Code Section 52.1. Appellants also state that the district court erred in granting summary judgment to Jackson on appellants' negligence and wrongful death actions. ⁴ Appellants, however, do not argue that the district court's finding that Denise Reynolds lacks standing to pursue a wrongful death claim was error. Therefore, the court considers that issue waived. See Miller v. Fairchild Industries, Inc., 797 F.2d 727, 738 (9th Cir.1986), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990).

A. Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is only proper where the pleadings, discovery, and affidavits show that there is "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the...