Burns v. City of Concord

• Decision Date: 06 November 2014
• Docket Number: No. C 14-00535 LB,C 14-00535 LB
• Court: U.S. District Court — Northern District of California
• Parties: JOHN BURNS, et al., Plaintiffs, v. CITY OF CONCORD, et al., Defendants.

JOHN BURNS, et al., Plaintiffs,
v.
CITY OF CONCORD, et al., Defendants.

No. C 14-00535 LB

UNITED STATES DISTRICT COURT Northern District of California San Francisco Division

November 6, 2014

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT

Re: ECF Nos. 49, 50, 51

INTRODUCTION

In this action, Plaintiffs John Burns, Tammy Burns, the Estate of Charles Burns, and Bobby Lawrence have sued 21 Defendants, who can be broken up into three groups: (1) the City of Concord, City of Concord Police Chief Guy Swanger, City of Concord Police Detectives Chris Loercher and Tom Parodi¹, and City of Concord Police Officers Mike Hansen, Steven White, Brad Giacobazzi, Danny Smith, Eduardo Montero, Steven Price, Jason Passama, Paul Miovas, Matt Cain, and Matthew Switzer (collectively, the "Concord Defendants"); (2) the City of Antioch, City of Antioch Police Chief Allan Cantando², and City of Antioch Police Officer James Stenger (collectively, the "Antioch Defendants"); and (3) Contra Costa County, Contra Costa County

Page 2

District Attorney Mark Peterson, Contra Costa County District Attorney's Office employee Barry Grove, and Contra Costa County Inspector John Conaty (collectively, the "Contra Costa Defendants"). See generally Second Amended Complaint ("SAC"), ECF No. 48.³ Plaintiffs also have sued Does 1-60, which includes an unnamed City of Concord Police Officer referred to as Doe 1. Plaintiffs bring claims under 42 U.S.C. § 1983 for violation of Plaintiffs' Fourth and Fourteenth Amendment rights and claims arising under state law. See id. ¶¶ 51-109. All three groups of Defendants have moved to dismiss Plaintiffs' Second Amended Complaint. See Antioch Motion, ECF No. 49; Concord Motion, ECF No. 50; Contra Costa Motion, ECF No. 51. Pursuant to Civil Local Rule 7-1(b), the court found this matter suitable for determination without oral argument and vacated the October 16, 2014 hearing. 10/10/2014 Clerk's Notice, ECF No. 66. Upon consideration of the record in this case, the parties' moving papers, and the applicable legal authority, the court GRANTS Defendants' motions to dismiss with leave to amend.

STATEMENT

I. PLAINTIFFS' ALLEGATIONS

According to Plaintiffs' Second Amended Complaint, on May 10, 2014, Charles Burns, who was John Burns's and Tammy Burns's son, was shot and killed in Antioch, California by officers of the Concord police department. SAC ¶¶ 3, 9, 33-34; but see id. ¶ 32 (alleging that the "defendant Police Officers," rather than the officers from the Concord Police Department only, shot Charles Burns). Essentially, their story is as follows.

On May 10, 2014, thirteen Concord police officers, acting with the permission of the City of Antioch and with the knowledge of Contra Costa County Deputy District Attorney Kevin Bell (who is not a Defendant to this action), planned "a surveillance and undercover operation with the intent of arresting and harming Charles Burns." Id. ¶¶ 33, 74(d). Essentially, Plaintiffs allege that Charles Burns and Mr. Lawrence went to Wal-Mart to buy a "stereo harness" and a Mother's Day card. Id. ¶ 33. They were in Mr. Lawrence's car, and Mr. Lawrence was driving. Id. "Inexplicably," an

Page 3

undercover Concord police officer drove an unmarked vehicle in a threatening manner toward Mr. Lawrence's vehicle to block its movement. Id. Mr. Lawrence and Charles Burns did not know that the vehicle was being driven by a police officer, and the officer made no attempt to identify himself as such. Id. Not knowing the situation and perceiving danger, Mr. Lawrence drove down the street to safety. Id. As he did, the another undercover vehicle driven by an undercover officer rammed the car. Id. Mr. Lawrence tried to avoid the vehicle and continue down the path towards safety when his vehicle was then rammed by another unmarked vehicle driven by another undercover officer. Id. As he rounded Barcelona Circle in Antioch, one of the unmarked officer in an unmarked car continued to ram him from the rear. Id. At no time did any of the officers take any action to identify themselves or the vehicles they were diving as associated in any way with a police agency. Id. It was not until Mr. Lawrence reached the stop sign at the end of the circle that, for the first time, "there was identification that the assailants were police officers." When that happened, Mr. Lawrence stopped the vehicle, which was then rammed again by the undercover officer driving behind Mr. Lawrence. Id. Mr. Lawrence held his hands up and outside the driver's side window in plain view of the officers, thus surrendering to them. Id.

Charles Burns, the passenger, got out of the car and jogged slow approximately 20 feet to the middle of the road, where he then stopped at the direction of the police officers. Id. He was not armed, carried no weapon or anything that could be construed as a weapon, took no aggressive action, and instead yielded to the officers, cowered his shoulders, and put his hands up. Id. Three Concord police officers lined up in firing squad fashion. They were flanked by two additional Concord Police officers, Chris Loercher and unnamed officer. Id. "Multiple officers unloaded their weapons on the defenseless [Mr.] Burns with full intent to shoot him." Id. Officers Loercher and the unnamed officer admitted to shooting Mr. Burns. Id. The Concord police officers continued to shoot him even though he was "laying lifeless or near lifeless on the ground," including shooting a bullent through the top of his skull and through his brain. Id. Concord police officer Matthew Switzer then released a K-9 dog to further maim Charles Burns's body. Id. Finally, another Concord police officer walked over to Charles Burns's body, stood over it, and fired an additional two rounds into it "out of pure malice and spite." Id.

Page 4

While all of this was happening to Charles Burns, Concord police officers pulled Mr. Lawrence out of his car, physically and verbally threatened him, dragged him across the street, and shoved him into a fence where he was held down, "roughed up," and ridiculed despite not resisting them. Id. ¶ 35. Then he was arrested without legal cause and taken to the Antioch police station "where Concord and Antioch officers, and representatives from the Contra Costa County District Attorney's Office held him without legal justification and against his will, and subjected him to aggressive and unwarranted harassment in an effort to elicit false and misleading information from him. Id. Concord Police Detective Parodi, Antioch Police Officer Stenger, and Contra Costa County Inspector Conaty screamed at and intimidated Mr. Lawrence, who was under age 20, in an attempt to get him to provide a statement that "would conceal the true unlawful and heinous conduct of the officers and cast blame on [Mr.] Lawrence and [Charles] Burns." Id. Mr. Lawrence "was subjected to hours of unlawful and disturbing interrogation and ultimately released after having to post bail." Id. During this interrogation, Concord Police Detective Parodi, Antioch Police Officer Stenger, and Contra Costa County Inspector Conaty recorded the interview with a digital recording device, but they stopped and started the recording several times during the course of the interview. "By doing so, they fabricated a statement that contains information out of ocntext by poiecing together different portions of the recording, in order to produce a statement that would attempt to justify the conduc tof the offending officers." Id. "They then produced a falsified written investigative report in order to cover-up the illegal conduct of their fellow law 'enforcement' personnel." Id.

"The officers at the Antioch Police Department along with the Concord Police Offices and the Contra Costa District Attorney's office then undertook to fabricate information related to the shooting to protect the officers involved and to conceal their illegal conduct. Id. ¶ 37. The allegations that follow in the complaint specify the following about the alleged conspiracy to (1) protect the Concord police officers who were involved in the shooting of Mr. Burns, (2) delay the subsequent investigation of the shooting, and (3) conceal the facts surrounding the events under a "shroud of secrecy." See id. ¶¶ 37-44. Specifically:

• The Concord police officers, along with the Contra Costa County District Attorney's Office and officers of the Antioch Police Department, "did not follow proper and reasonable police

Page 5

practices in obtaining statements and preserving evidence related to the shooting" of Charles Burns and "purposely did not video record all interviews in order to conceal the truth and to conceal their illegal tactics in eliciting information." Id. ¶ 37; see also id. ¶ 78.

• Representatives from the Antioch Police Department and the Contra Costa District Attorney's Office were involved with the illegal prolonged detention of Lawrence and the Lawrence arrest, and they actively participated in the cover-up. At all times, offices from each agency and the district attorney's office engaged in the unlawful conduct personally and at other times tood by and watched and did not intervene despite a duty to do so. Id. ¶ 37.

• "[S]everal Concord Police Officers acted in concert with the Antioch Police Department, the Contra Costa County District Attorney's Office and the Contra Costa County Sheriff's Criminalist District to secure the scene and Charles Burns'[s] body in an effort to conceal their unlawful and malicious conduct." Id. ¶ 38.

• Defendants made no effort to provide emergency aid to Charles Burns or to contact any third party emergency aid provider prior to his death. Id. ¶ 39.

• "[I]n an effort to corroborate the fabricated information that [Charles] Burns was reaching for his waistline," "one or more officers planted non-prescribed pills on [Charles] Burns['s] body so that they would be found during the autopsy." Id. ¶ 80.

• "Shortly after the killing, [Contra Costa

...