Dunklin v. Mallinger
| Decision Date | 10 April 2013 |
| Docket Number | Case No. C-11-01275 JCS |
| Parties | RANDAL DUNKLIN, Plaintiff v. NOAH MALLINGER, et al., Defendants |
| Court | U.S. District Court — Northern District of California |
This case involves the shooting of Plaintiff Randal Dunklin, an individual who is largely confined to a wheelchair, on January 4, 2011. Mr. Dunklin asserts civil rights claims against the San Francisco Police Department officers involved in the shooting, as well as the City and County of San Francisco, under 42 U.S.C. § 1983 and the Fourth Amendment, alleging that excessive force was used against him. Video footage taken by a surveillance camera and a passerby with an iPhone shows some of the events that led up to the shooting and both parties seek summary judgment in their favor based on that footage, as well as other undisputed facts. Plaintiff has filed a Motion for Partial Summary Judgment ("Plaintiff's Motion"). Defendants have filed a Motion for Summary Judgment or in the Alternative Partial Summary Judgment ("Defendants' Motion"). A hearing on the Motions was held on Friday, March 8, 2013 at 9:30 a.m. For the reasons stated below, Plaintiff's Motion is DENIED. Defendants' Motion is GRANTED.1
Plaintiff Randal Dunklin is a 57 year-old man whose right leg was weakened by polio as a child. Joint Statement ¶ 20. Although Mr. Dunklin can stand and walk with crutches for short distances, he has used a manual wheelchair for mobility for the last several years. Id. ¶ 21. The events that form the basis of Mr. Dunklin's claims occurred on January 4, 2011. However, certain undisputed facts about events that occurred in the preceding days provide useful context.3
On December 20, 2010, Mr. Dunklin was detained by San Francisco Police Officers under Health and Institutions Code Section 5150 for being a danger to himself and was admitted to California Pacific Medical Center ("CPMC"). Id. ¶22; Declaration of Blake Loebs in Support of Motion for Summary Judgment/Partial Summary Judgment ("Loebs Decl."), Ex. C. On December 29, 2010, Mr. Dunklin was discharged from CPMC. Joint Statement ¶23. Once released, Mr. Dunklin went to the Treatment Access Program ("TAP") in the Department of Public Health ("DPH") building located at 1380 Howard Street, San Francisco. TAP referred Mr. Dunklin to an Alcoholics Anonymous treatment center, where he stayed for three days. Id. ¶24. TAP had previously arranged for Mr. Dunklin to attend an orientation at Walden House (a San Francisco substance abuse treatment facility) on January 3, 2011. Id. ¶25. Unfortunately, Mr. Dunklin missed the orientation because on January 1, 2011, he received his social security check,left the treatment facility and went on a three-day crack binge. Id. ¶26.
On January 4, 2011, Mr. Dunklin woke up in the alley next to 1380 Howard, angry at himself for missing the Walden House orientation. Id. ¶27. This was the third such orientation that Mr. Dunklin had missed for the same reason - the orientations were scheduled near the first of each month, when he receives his social security check, and each time he had used the checks to purchase crack, resulting in crack binges that lasted for several days. Id. ¶28.
After TAP opened, Mr. Dunklin went inside the DPH building seeking services. Id. ¶29.4 Mr. Dunklin was told that to get into the program, he would have to attend an orientation which was to be held just after the first of February. Id. Mr. Dunklin became very upset, stormed outside, smoked a cigarette and then "went crazy on the parking meter" with his knife in front of 1380 Howard. Id. ¶¶30-31. Mr. Dunklin also used his knife to puncture the tires of a nearby City vehicle. Id. ¶33. The knife that Mr. Dunklin was using was a 200 millimeter (7.9 inch) Leatherman knife with a locking blade. Id. ¶ 32. Mr. Dunklin also threw a large chunk of concrete against the DPH building twice and once it landed close to a pedestrian. Id. ¶34.
Beginning at approximately 10:16 a.m., three 911 calls were made complaining about Mr. Dunklin's behavior in front of 1380 Howard. Id. ¶ 36. The first 911 call came at approximately 10:16 a.m. from a DPH employee complaining that a person in a wheelchair was throwing large rocks at individuals on the street in front of 1380 Howard. Id. ¶37. The second 911 call came at approximately 10:23 a.m. and was made by the same employee. Id. ¶38. The caller stated that Mr. Dunklin now had a buck knife that he was using to pry at parking meters and that he had "been aggressive toward passers by." Id. The third 911 call came at approximately 10:28 a.m. Id. ¶39. This time, a different employee from 1380 Howard called 911, stating Id.
At around 10:30 a.m., San Francisco Police Officer Raymond Koenig responded on hismotorcycle to 1380 Howard Street and made contact with Mr. Dunklin. Id. ¶1. At the same time that Officer Koenig was responding, patrol officers equipped with an Extended Range Impact Weapon ("ERIW or Less-Lethal") were also dispatched. Id. ¶2. When Officer Koenig arrived, he suggested that the additional unit with the Less-Lethal be put on hold, pending his evaluation. Id. ¶3. Officer Koenig initially believed that the situation was under control and declared a Code 4, which meant no more assistance was necessary, but after further investigation, Officer Koenig learned that Mr. Dunklin had punctured the tires on a City car with a knife and he asked that a police vehicle be dispatched to transport Mr. Dunklin. Id. ¶ 5. After additional contact with Mr. Dunklin, in which he waived his knife at Officer Koenig and refused to relinquish it, Officer Koenig revised his initial assessment and stated over the radio Id. ¶ 6.
At about 10:30 a.m., four members of the San Francisco Police Department's Fugitive Recovery Team ("FRET"), Officer Terence Saw, Sergeant Noah Mallinger, Officer Benjamin Pagtanac and Officer Roselo Pascua, were riding together in an unmarked San Francisco police vehicle when Officer Saw alerted the other officers to a call he heard on the police radio that an individual in their vicinity (1380 Howard Street) had a knife. Id. ¶ 7. FRET is a division in the San Francisco Police Department primarily responsible for the arrest and apprehension of fugitives. Id. ¶8. FRET officers also frequently act as back-up to patrol officers. Id. The FRET officers stopped about a half-block past 1380 Howard Street. Id. ¶ 9. They observed that Officer Koenig was responding to the call by himself and decided to assist. Id.
Officer Saw, Sergeant Mallinger and Officer Pascua exited the car and walked toward Mr. Dunklin and Officer Koenig. Id. ¶ 10. After the officers exited the car, Officer Pagtanac backed the car to the front of 1380 Howard Street. Id., ¶ 11. As Sergeant Mallinger and Officer Saw approached Mr. Dunklin, they saw him seated in his wheelchair holding a large buck knife with an open and locked blade. Id. ¶ 12. The officers overheard Officer Koenig order Mr. Dunklin to drop the knife and Mr. Dunklin refused. Id. ¶ 13. The events that immediately followed were captured, in part, by a video surveillance camera at 1380 Howard Street ("the Howard Street Video") but are characterized differently by the parties. Id., ¶ 14; see also Declaration of CraigFries in Support of Motion for Summary Judgment/ Partial Summary Judgment ("Fries Decl."), Ex. B.
According to Plaintiff, Officer Saw, without communicating with Officer Koenig, approached Mr. Dunklin and used his pepper-spray on him; Mr. Dunklin stabbed Officer Saw in response. Plaintiff's Motion at 2 ). 5
According to Defendants, Officer Saw, along with Sergeant Mallinger and Officer Pascua, stopped about 10 to 15 feet from Mr. Dunklin; Officer Saw ordered Mr. Dunklin to drop the knife, but Dunklin refused. Defendant's Opposition at 5 (citing Declaration of Sergeant Noah Mallinger in Support of Motion for Summary Judgment/Partial Summary Judgment ("Mallinger Decl."), ¶ 8; Declaration of Officer Terence Saw in Support of Motion for Summary Judgment/Partial Summary Judgment ("Saw Decl."), ¶ 8; Declaration of Officer Roselo Pascua Support of Motion for Summary Judgment/Partial Summary Judgment (Pacua Decl.), ¶ 8; Loeb Decl., Ex. A (Dunklin Dep.) at 195-196). Defendants contend that Dunklin then "quickly propelled his wheelchair in the direction of Officer Pascua and Officer Saw," holding his knife in his right hand, and took a swing with his knife at Officer Pascua when he got close enough to Officer Pascua." Id. (citing Saw Decl. ¶9; Mallinger Decl. ¶9, Pascua Decl. ¶ 10; Loeb Decl., Ex. A (Dunklin Dep.) at 330:25-331:6). Defendants further assert that after swinging with his knife at Officer Pascua, Mr. Dunklin changed direction and "quickly propelled himself toward Officer Saw." Id. at 6 (citing Saw Decl. ¶9; Mallinger Decl. ¶9; Pascua Decl. ¶10). Defendants assert that "[a]fter retreating, Officer Saw pepper-sprayed Dunklin, but Dunklin continued to advance with the knife in his hand." Id. (citing Saw Decl. ¶9; Mallinger Decl. ¶9). According to Defendants, "Dunklin then rolled into Officer Saw pinning him against a parking meter, rose from the seat ofhis wheelchair, and stabbed Officer Saw in the upper left arm." Id. (citing Saw Decl. ¶9).
It is undisputed that Officer Saw's stab wound needed five to seven stiches on the interior and 15 stitches on the exterior. Joint Statement ¶ 40. It is also undisputed that had Mr. Dunklin stabbed Officer Saw a few inches to the right, he could have...
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