Crawford v. City of Bakersfield

• Citation: 944 F.3d 1070
• Decision Date: 16 December 2019
• Docket Number: No. 16-17138,16-17138
• Parties: Leslie Laray CRAWFORD, Plaintiff-Appellant, v. CITY OF BAKERSFIELD, a municipal entity, and Aaron Stringer, Officer, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

944 F.3d 1070

Leslie Laray CRAWFORD, Plaintiff-Appellant,

v.CITY OF BAKERSFIELD, a municipal entity, and Aaron Stringer, Officer, Defendants-Appellees.

No. 16-17138

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 6, 2019 San Francisco, California

Filed December 16, 2019

Emily T. Kuwahara (argued), Daniel P. Wierzba, Joel Mallord, and Alice Hall-Partyka, Crowell & Moring LLP, Los Angeles, California, for Plaintiff-Appellant.

Michael G. Marderosian (argued) and Heather S. Cohen, Marderosian & Cohen, Fresno, California, for Defendants-Appellees.

Before: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Gary Feinerman,^* District Judge.

FEINERMAN, District Judge:

Leslie Crawford sued the City of Bakersfield, California and Bakersfield police officer Aaron Stringer (together, "Defendants"), bringing 42 U.S.C. § 1983 and state law claims arising from Stringer’s fatal shooting of Crawford’s son, Michael Dozer. After a three-day trial, the jury returned a special verdict finding that Stringer did not use excessive force or act negligently, and the district court entered judgment for Defendants. Crawford appeals, contending that the district court abused its discretion in excluding as irrelevant her testimony about her percipient observations of Dozer’s past behavior, which she offered to prove that Stringer should have recognized that Dozer was exhibiting signs of mental illness at the time of their encounter and therefore that the shooting was unreasonable. We vacate the judgment and remand for a new trial.

Background

Stringer, an on-duty police officer with the Bakersfield Police Department, shot and killed Dozer at a gas station while responding to calls reporting that Dozer "had poured gasoline on a woman and tried to light her on fire." Crawford brought this suit on her own behalf and as Dozer’s successor in interest, alleging Fourth Amendment excessive force claims under § 1983 and state law wrongful death claims.

A. The Shooting

At around 12:30 p.m. on August 6, 2014, Elsa Torres was filling up her tank at a gas station. Dozer approached Torres’s vehicle and removed the gas nozzle from the tank, spraying some gas on her in the process. Dozer then sprayed gas onto the ground around himself and set it on fire, creating a flame that Torres said went "maybe up to his knees." Dozer also took off some of his clothes. Torres drove away, called 911, and told the operator that there was a man "trying to burn us." While Torres was waiting for the police to arrive, she saw Dozer go over to the area outside a nearby minimart and start "knocking all the stuff down, like the newspaper stands and stuff."

Stringer was on patrol alone when he received a call through dispatch that "a subject at the gas station ... had poured gasoline on a woman and tried to light her on fire" and that the woman’s children were in her car. While Stringer was on his way to the gas station, he received a second call indicating that a woman "had been lit on fire and that she put it out and left the scene." It took Stringer "[m]aybe a couple of minutes" to get to the gas station.

When Stringer arrived, he spoke with Torres, who by that point was standing about fifty feet from Dozer. Stringer did not observe on Torres any signs of burns, bruising, or other physical injury, nor did Torres say that she had been burned. Stringer spoke with another witness, who said that Dozer had poured gasoline on Torres but who did not report that anyone had been injured.

Stringer testified that by the time Torres identified Dozer, Dozer had moved away from the gas pumps and toward the minimart. The closest people to Dozer were twenty feet away. As far as Stringer could see, Dozer did not have any gasoline or incendiary liquids and was not assaulting anyone, but instead was merely "pacing around" the area, looking "very agitated." Stringer thought that Dozer’s behavior was "erratic" and "aggressive in general," but not aggressive toward Stringer in particular. Another person at the scene, Rosalie Montiel, testified that Dozer was "walking back and forth" and "looked unapproachable," but that she did not see him threatening anyone. Carlos Cabrera, who was also at the scene, testified that Dozer was shouting, hitting a table with his hands, standing up, and sitting back down repeatedly—"kind of going around in circles." Cabrera also recounted that Dozer was staring at people and saying "odd things."

When Stringer approached Dozer, he did not think Dozer was actively committing any crime while pacing around the area near the minimart. Stringer did, however, consider "the crime of assault with a caustic chemical" against Torres to still be "in progress" because it "had just occurred seconds ... or minutes" before. Stringer testified that he had not drawn a weapon at that point and had no intention of using force, and that he merely wanted to talk to Dozer. Without waiting for backup, Stringer moved closer so that he could hear what Dozer was saying.

According to Stringer, Dozer said, "You want to do this. Let’s go." Stringer responded, "No, let’s not do this. I just want to talk to you." Dozer’s words, along with his pacing and his "amped up" and "angry" demeanor, made Stringer think that Dozer "was challenging [him] and had intended to challenge [him] despite [his] clear uniform" identifying him as a police officer. Stringer testified that he concluded that Dozer was "under the influence of a narcotic and was visibly agitated" and that the situation would "most likely ... escalate quickly," leading him to call for expedited backup. By that time, however, Stringer felt that he "didn’t have the chance" to wait for backup, even though he knew from radio transmissions that it was on the way.

Stringer stopped about twenty feet away from Dozer and told him to get on the ground. Stringer testified that Dozer then began moving toward him "very quickly," picked up a horseshoe-shaped bike lock, raised it over his head, ignored an order to put it down, and started "charg[ing]" toward him "quicker than [he] could back up."

Stringer testified that he started backing up and drew his handgun. Stringer was also carrying three nonlethal weapons: a Taser that could fire darts at a range of up to twenty-six feet, pepper spray, and a collapsible baton. Stringer claimed that those alternatives were not viable because they would take too long to deploy, as Dozer was approaching him "with a deadly weapon," the bike lock.

Ultimately, less than a minute after arriving on the scene, Stringer shot Dozer. The first backup officer to arrive, George Vasquez, was pulling up in his car when he saw the shooting. Vasquez did not see Stringer backpedaling at any point. He did, however, see Dozer moving toward Stringer, and he believed based on Dozer’s "facial demeanor" and "rapid movement," as well as the fact that Dozer was holding the bike lock "over his head," that Dozer intended to harm Stringer. Vasquez testified that Dozer and Stringer were about five to ten feet apart at the time of the shooting.

The other eyewitnesses—Cabrera, Montiel, and Torres—gave varying accounts of the lead-up to the shooting, including testimony that conflicted with each other’s and the officers’ accounts as to whether and how quickly Dozer was moving toward Stringer; whether Dozer was holding the bike lock at his side, holding it in his raised hand, or swinging it at Stringer; how close Dozer got to Stringer; and whether Stringer stayed put or backed away as Dozer approached.

B. Stringer’s Training

As part of his training, Stringer received a Police Officer Standards and Training ("POST") certification. POST teaches officers how to recognize symptoms of mental illness and respond to people demonstrating those symptoms without escalating the situation. As a requirement of POST, Stringer was taught that erratic and irrational behavior and attempted self-harm were indicators of mental illness. He was trained that when responding to a situation involving a person who appeared to be mentally ill, he should slow down, wait for backup, and consider ways of subduing the person using minimal force. He was also trained to minimize the person’s anxiety by speaking slowly, moving slowly, and turning down his radio.

C. Police Practices Experts

At trial, the parties presented testimony from dueling police practices experts. Crawford’s expert, Scott DeFoe, opined that Dozer’s "bizarre" behavior—approaching Torres, pouring gasoline on himself, lighting himself on fire, and then going over to the minimart and acting strangely—would have led a reasonable officer to believe that Dozer was "either mentally ill or experiencing a mental crisis." DeFoe did, however, acknowledge that Dozer’s spraying gasoline on Torres and himself also could have been consistent with his being under the influence of drugs. DeFoe explained that while "officers are not going to diagnose someone in the field," they are taught to recognize "what mental illness looks like." DeFoe said that the objective when dealing with a person who may be suffering from mental illness is to "calm them down" and "just get them handcuffed, with the least amount of force possible."

Given this understanding of reasonable police practices, DeFoe concluded that Stringer did "the opposite" of what he should have done: "Instead of waiting for backup, instead of considering less than lethal options, [Stringer] immediately just almost at a rapid pace walked towards" Dozer. While recognizing that it was "prudent" of Stringer to request expedited backup, DeFoe faulted Stringer for failing to wait for backup even though "time [was] on [his] side" in light of the absence of continuing criminal activity. DeFoe opined that Dozer posed no immediate threat because he was "over there by himself," with "no one else next to him," thus "mak[ing] it even more compelling that you need to get a backup and get people before taking any action."

Defendants’ expert, Curtis Cope,...