Chien Van Bui v. City & Cnty. of S.F., C 11-04189 LB

• Decision Date: 25 July 2014
• Docket Number: No. C 11-04189 LB,C 11-04189 LB
• Citation: 61 F.Supp.3d 877
• Court: U.S. District Court — Northern District of California
• Parties: Chien Van Bui, et al., Plaintiffs, v. City and County of San Francisco, et al., Defendants.

61 F.Supp.3d 877

Chien Van Bui, et al., Plaintiffs

v.City and County of San Francisco, et al., Defendants.

No. C 11-04189 LB

United States District Court, N.D. California, San Francisco Division.

Signed July 25, 2014

Andrew Charles Schwartz, Thomas Andrew Seaton, Casper Meadows Schwartz & Cook A Professional Corporation, Walnut Creek, CA, Edwin Ken Prather, Law Offices of Edwin Prather, San Francisco, CA, for Plaintiffs.

Sean F. Connolly, City Attorney's Office, San Francisco, CA, for Defendants.

AMENDED¹ ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

[Re: ECF No. 81]

LAUREL BEELER, United States Magistrate Judge

INTRODUCTION

In this civil rights action, Chien Van Bui and Ai Huynh (collectively, “Plaintiffs”), the parents of decedent Vinh Van Bui, known as Tony Bui (“Bui”), sued San Francisco Police Officers Austin Wilson (“Officer Wilson”) and Timothy Ortiz (“Officer Ortiz”), and the City and County of San Francisco (“CCSF”) (collectively, “Defendants”) for the death of their son. Complaint, ECF No. 1.² Defendants move for summary judgment. Motion, ECF No. 81. The court held a hearing on the matter on June 26, 2014. 6/26/2014 Minute Order, ECF No. 136. Upon consideration of the admissible evidence submitted, the arguments of counsel, and the applicable authority, the court GRANTS summary judgment in favor of Defendants with respect to Plaintiffs' Monell claim and otherwise DENIES Defendants' motion.

STATEMENT

I. FACTS

Defendants Austin Wilson (“Officer Wilson”) and Timothy Ortiz (“Officer Ortiz”) were police officers with the San Francisco Police Department (“SFPD”) and employed by the City and County of San Francisco (“City”). Joint Statement of Undisputed Facts (“UF”), Fact 1. At all times relevant to this action, they were acting in the course and scope of their employment with the SFPD. UF, Fact 1.

On December 29, 2010, Officer Wilson and Officer Ortiz were in uniform and driving a marked police car. UF, Fact 1. Officer Wilson was 6' tall and weighed 198 pounds, Wilson Depo. 2 at 69:18–70:1, Schwartz Decl., Ex. Q, ECF No. 121–17, and Officer Ortiz was 5'9‘ tall and weighed between 175 and 185 pounds, Ortiz Depo. 2 at 104:19–22, Schwartz Decl., Ex. L, ECF No. 121–12. Police Inspector Kevin Whitfield, who is not a defendant to this action, also was working that day. UF, Fact 1. Vinh Van Bui, known as Tony Bui (“Bui”), lived at 629 Bacon Street, San Francisco, a flat which he shared with several family members, including his sisters Cindy Thanh Tran (“Tran”) and Lan Herrera (“Herrera”), Herrera's daughter Melina H., his father Plaintiff Chien Van Bui (“Chien Van Bui”) and his mother Plaintiff Ai Huynh (“Huynh”). UF, Fact 2. Bui, who was 46 years old and was 5'6‘ tall and weighed 135 pounds, suffered from a mental condition and was easily agitated by loud noises. UF, Fact 4; Marvin C. Depo. at 20:16–22, Schwartz Decl., Ex. B, ECF No. 121–2; Autopsy Report, Schwartz Decl., Ex. CC, ECF No. 121–29 at 2. Specifically, Bui had suffered from schizophrenia

since at least 1995, Chien Van Bui Depo. at 42:9–25, Schwartz Decl., Ex. A, ECF No. 121–1; Medical Records at 87–89, Schwartz Decl., Ex. AA, ECF No. 121–27, and since 1997, as a side effect of his antipsychotic medication, he also suffered from tardive dyskinesia

(i.e. “late-onset abnormal movement”), Shyn Depo. at 33:20–34:17, 38:21–39:7, Schwartz Decl., Ex. N, ECF No. 121–14; Medical Records at 282, Schwartz Decl., Ex. AA, ECF No. 121–27, which sometimes caused his trunk and extremities to rock involuntarily and also caused him to sometimes walk slowly, one step at a time, Marvin C. Depo. at 75:23–77:12, Schwartz Decl., Ex. B, ECF No. 121–2; Shyn Depo. at 33:20–34:17, 34:21–36:1, 38:21–39:7, 51:14–53:16, 57:14–20, Schwartz Decl., Ex. N, ECF No. 121–14; Tran Depo. at 21:110, 24:22–25:14, 34:24–35:4, Schwartz Decl., Ex. O, ECF No. 121–15. Bui did not have a criminal record. Tran Decl. ¶ 4, ECF No. 104.

On the afternoon of December 29, 2010, Melina H., who was then 15 years old, had approximately 15 of her teenaged friends over at her home at 629 Bacon Street. UF, Fact 3. Sharon H. was one of these friends. UF, Fact 3. At some point in time, Sharon H. entered the bathroom and slammed the door behind her, which startled and agitated Bui. UF, Fact 4; Sharon H. Depo. at 20:36, Schwartz Decl., Ex. I, ECF No. 121–9. When Sharon H. came out of the bathroom and was going to the kitchen, Bui stuck her in the lower back with an X–Acto knife, which had a blade that was approximately 1 inch long. UF, Fact 5; Sharon H. Depo. at 25:6–26:16, 72:20–73:18, Connolly Decl., Ex. N, ECF No. 91; Wilson Depo. at 70:13–17, Schwartz Decl., Ex. Q, ECF No. 121–17; Wilson Decl., Ex. A (photograph of the X–Acto knife). The other teenagers told Sharon H. that she was bleeding and apparently injured. Sharon H. Depo. at 27:8–28:8, Connolly Decl., Ex. N, ECF No. 91. Melina H. then telephoned her mother (Herrera), who was not at the house, and told her that “Tony [Bui] cut Sharon [H].” UF, Fact 6. Herrera told Melina H. to call “911.” UF, Fact 7. Melina H. called 911 and reported: “We have a man that's like mental here and just slapped somebody—one of my friends, and yeah, we need him out.” UF, Fact 8.

911 Dispatch broadcasted to SFPD officers in the field that Bui had “just slapped [Melina H.'s] friend” and that the “reporting party” said Bui was “mentally challenged.” UF, Fact 9. Moments later, Melina H. clarified, telling the 911 operator the following: “[Bui] has like a mini, a little mini like knife thing. It's sharp. And when [her friend] came out [of the bathroom], he said ‘Do you want me to stab you?’ and he hit her with the little pointy thing.... She's bleeding. Yeah, he stabbed her.” UF, Fact 10. Based on this additional information, 911 Dispatch broadcasted: “Subject has a pointed object that he stuck the victim with in the back.” UF, Fact 11. 911 Dispatch also transmitted through the computer-assisted dispatch system that Bui had “stabbed [Melina H's] friend” and was “mentally challenged,” that Melina H. was “not sure if [Bui] has the knife,” and that the injury was “minor.” UF, Fact 11; Borg Decl., Ex. J, ECF No. 94–10. 911 Dispatch also sent to the police vehicle computer the following text: “TX: Susp is Toni who is mentally challenged.” Wilson Depo. at 42:5–15, Schwartz Decl., Ex. Q, ECF No. 121–17. When responding to the dispatch, Officers Ortiz and Wilson had access to the dispatch information through a vehicle computer, working radios and, as to Officer Wilson, an earpiece, Ortiz Depo. at 32:22–25, 54:17–23, 80:10–17, Schwartz Decl., Ex. L, ECF No. 121–12; Wilson Depo. at 32:12–19, Schwartz Decl., Ex. Q, ECF No. 121–17; Ortiz Decl. ¶ 10, ECF No. 82; Wilson Decl. ¶ 14, ECF No. 84, but Officers Ortiz and Wilson and Inspector Whitfield say they did not know at that time that Bui had mental health problems, Ortiz Decl. ¶ 10, ECF No. 82; Whitfield Decl. ¶ 14, ECF No. 83, Wilson Decl. ¶ 10, ECF No. 84.

At about 3:53 p.m., Officers Ortiz and Wilson arrived at 629 Bacon Street. UF, Fact 12. Inspector Whitfield also responded, arriving at 629 Bacon Street at about the same time as Officers Ortiz and Wilson. UF, Fact 13. The parties dispute whether the officers treated the call as an emergency. Plaintiffs say that the officers did not and provide evidence that the officers' sirens and lights were off, the officers were not running, and the officers did not discuss tactics when approaching the flat. Ortiz Depo. at 45:13–20, 48:18–25, 55:11–14, Schwartz Decl., Ex. L, ECF No. 121–12; Wilson Depo. at 55:19–21, 58:1–8, 66:25–68:24, Schwartz Decl., Ex. Q, ECF No. 121–17. Defendants, on the other hand, provide evidence that the 911 call was classified as an “A priority” call, giving it the highest priority, Goley Depo. at 17:20–18:14, Connolly Reply Decl., Ex. D, ECF No. 129–4 at 17:20–18:14; Borg Decl., Ex. B, ECF No. 94–2; Borg Decl., Ex. J, ECF No. 9410, and that the officers responded, at least initially, to the call as a “Code 3”—with their lights and sirens on, Ortiz Decl. ¶ 2, ECF No. 82; Wilson Decl. ¶ 2, ECF No. 84. Their guns were holstered, Ortiz Decl. ¶ 8, ECF No. 82; Wilson Decl. ¶ 7, ECF No. 84, they had pepper spray and batons on their persons, and they also had an Extended Range Impact Weapon (“ERIW”)—a shotgun that shoots bean bags—in their car, Ortiz Depo. at 28:2–4, 46:4–12, Schwartz Decl., Ex. L, ECF No. 12112; Wilson Depo. at 35:18–37:4, Schwartz Decl., Ex. Q, ECF No. 121–17.

The officers either knocked on the door or rang the doorbell, and one of the teenagers at Melina H.'s get-together, Aaron L., opened the door and allowed the officers into the house. UF, Fact 14. Upon entering, Officers Ortiz and Wilson and Inspector Whitfield saw a group of teenagers in the living room, and at least one officer asked whether anyone had been stabbed. UF, Fact 15; UF, Fact 16; Ortiz Decl. ¶¶ 4–6, ECF No. 82; Whitfield Decl. ¶ 4, ECF No. 83; Jason W. Depo. at 33:10–24, Connolly Decl., Ex. H, ECF No. 88; Sharon H. Depo. at 36:11–20, Connolly Decl., Ex. N, ECF No. 91; Marvin C. Depo. at 40:24–41:9, 42:7–13, 73:20–24, Connolly Decl., Ex. J, ECF No. 89; Tran Depo. at 13:9–11; 14:10–15:17, Connolly Decl., Ex. P, ECF No. 92–1; Ortiz Depo. at 49:5–12, Schwartz Decl., Ex. L, ECF No. 121–12. Initially, no one in the room acknowledged that anyone had been stabbed, no one appeared to be in distress, and Bui's sister, Tran, the only adult present, said nothing had happened. UF, Fact 16; Ortiz Decl. ¶ 5, ECF No. 82; Sharon H. Depo. at 39:1–6, Connolly Decl., Ex. N, ECF No. 91; Ortiz Depo. at 49:13–22, Schwartz Decl., Ex. L, ECF No. 12112. Tran may also have told the police officers to leave. See Sharon H. Depo. at 39:3–40:2, Connolly Decl., Ex. N, ECF No. 91; Sharon H. Depo. at 66:11–16, Schwartz Decl., Ex. I, ECF No. 121–9; Whitfield Depo. at 62:7–16, Schwartz Decl., Ex. P, ECF No. 121–16; Tran Decl. ¶ 2, ECF No. 104; but see Tran Depo. at 14:2–17:15, 57:15–20, 58:20–23,...