Estate of Lopez v. Gelhaus
| Decision Date | 20 January 2016 |
| Docket Number | Case No. 13-cv-5124-PJH |
| Citation | 149 F.Supp.3d 1154 |
| Parties | Estate of Andy Lopez, et al., Plaintiffs, v. Erick Gelhaus, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
Christian Fabian Pereira, Arnoldo Casillas, Casillas, Moreno & Associates, A Professional Law Corporation, Montebello, CA, for Plaintiffs.
Steven Corson Mitchell, Geary Shea O'Donnell Grattan & Mitchell, P.C., Santa Rosa, CA, James V. Fitzgerald, III, McNamara, Ney, Beatty, Slattery, Walnut Creek, CA, Jesse F. Ruiz, Robinson & Wood, Inc., San Jose, CA, Robert Wayne Henkels, Office of the Attorney General, San Francisco, CA, for Defendants.
Defendants' motion for summary judgment came on for hearing before this court on December 9, 2015. Plaintiffs Estate of Andy Lopez, Rodrigo Lopez, and Sujay Cruz (“plaintiffs”) appeared through their counsel, Arnoldo Casillas. Defendants Erick Gelhaus and County of Sonoma (“defendants”) appeared through their counsel, Steven Mitchell. Having read the papers filed in conjunction with the motion and carefully considered the arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.
On October 22, 2013, at approximately 3:15pm, 13-year-old Andy Lopez (“Andy”) was walking along a sidewalk in Sonoma County, carrying a toy rifle. See Second Amended Complaint (“SAC”), ¶ 20. According to defendants, the rifle was designed to look like a real AK-47 assault rifle, and the orange tip used to distinguish toy rifles had been removed. See Dkt. 63 at 6-7.
Two Sonoma County Sheriff's deputies, Erick Gelhaus and Michael Schemmel, were patrolling the area at the time. Though the deputies had not received any reports about an individual carrying a weapon, they noticed Andy on their own, and decided to approach him. SAC, ¶¶ 23-24.
The deputies stopped their patrol car and activated its siren and emergency lights. Dkt. 63 at 4. At that time, Andy was approximately 35-40 feet away from the deputies, with his back facing towards them. SAC, ¶¶ 24-25. Either one or both of the officers (the parties dispute this fact) drew their weapons and pointed them at Andy, and at least one of the deputies shouted out a command to Andy (defendants claim that Gelhaus gave a command to “drop the gun!”). See SAC, ¶¶ 24, 26; Dkt. 63 at 5. In response, Andy turned towards the deputies. SAC, ¶ 27. There is no dispute that, up until this point, Andy was holding the rifle in one hand, at his side, pointing down. Dkt. 63 at 5. Defendants claim that, as Andy turned towards the deputies, they observed the barrel of the rifle “come up and towards them,” while plaintiffs allege that “[t]he toy gun was at his side.” See Dkt. 63 at 5; SAC, ¶ 27. As Andy turned, Gelhaus fired his pistol, hitting Andy and sending him to the ground. SAC, ¶ 30. Gelhaus continued to fire at Andy while he lay on the ground, and Andy ultimately died while on the sidewalk. SAC, ¶¶ 30, 34.
Andy's parents, Rodrigo Lopez and Sujay Cruz, filed this suit on November 4, 2013, on behalf of themselves and the Estate of Andy Lopez. The operative second amended complaint was filed on June 20, 2014, and asserts five causes of action: (1) unreasonable seizure under section 1983 against defendant Gelhaus, (2) municipal liability for unconstitutional customs/practices under section 1983 against defendant Sonoma County, (3) interference with familial integrity (styled as a substantive due process violation) under section 1983 against defendants Gelhaus and Sonoma County, (4) wrongful death against defendants Gelhaus and Sonoma County, and (5) a “survivorship” claim against defendants Gelhaus and Sonoma County.
A party may move for summary judgment on a “claim or defense” or “part of...a claim or defense.” Fed. R. Civ. P. 56(a)
. Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
. Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir.2007)
. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party may carry its initial burden of production by submitting admissible “evidence negating an essential element of the nonmoving party's case,” or by showing, “after suitable discovery,” that the “nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc. , 210 F.3d 1099, 1105–06 (9th Cir.2000) ; see also Celotex , 477 U.S. at 324–25, 106 S.Ct. 2548 ().
When the moving party has carried its burden, the nonmoving party must respond with specific facts, supported by admissible evidence, showing a genuine issue for trial. Fed. R. Civ. P. 56(c), (e)
. But allegedly disputed facts must be material—the existence of only “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson , 477 U.S. at 247–48, 106 S.Ct. 2505.
When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Id. at 255, 106 S.Ct. 2505
; Hunt v. City of Los Angeles , 638 F.3d 703, 709 (9th Cir.2011).
As an initial matter, at the hearing, plaintiff's counsel conceded that summary judgment was warranted as to the second cause of action and as to the third cause of action to the extent asserted against Sonoma County. Thus, as to those two claims, defendants' motion is GRANTED.
The court will address the remaining claims in the order in which they are asserted in the SAC, starting with the first cause of action, brought under section 1983 against defendant Gelhaus. The complaint alleges that defendant Gelhaus, by shooting and killing Andy, used excessive force and thereby violated his Fourth Amendment right to be free of unreasonable seizures.
The legal standard applicable to this claim is one of “reasonableness.” See, e.g. , Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)
; Tennessee v. Garner , 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The use of force is reasonable under the Fourth Amendment if it would seem justified to a reasonable officer in light of the surrounding circumstances; however, the use of deadly force is not justified “unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Garner , 471 U.S. at 3, 105 S.Ct. 1694. The inquiry is an objective one, with the question being “whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham , 490 U.S. at 397, 109 S.Ct. 1865.
The key question on this motion is whether it was objectively reasonable for defendant Gelhaus to believe that Andy posed a “significant threat of death or serious physical injury to the officer or others” at the time of the shooting. Defendants argue that, because Andy was carrying what appeared to be an AK-47 assault rifle, and because he failed to drop the rifle when ordered to do so and instead started turning his body towards the deputies, with the barrel of the rifle “com[ing] up and towards them,” it was reasonable to believe that Andy posed a significant threat to them.
Defendants further argue that it is “well established that an officer is justified in using deadly force where a suspect threatens him with a weapon such as a knife or gun.” Dkt. 63 at 12. While that statement of the law is correct, defendants have not established that Andy actually threatened the officers with the rifle1 that he was holding. In fact, defendants do not allege that Andy ever pointed the rifle at either officer or at anyone else. Instead, defendants use carefully-phrased language to describe Andy's actions, saying only that Andy “turned and began to point the AK-47 towards the deputies, or that Andy was “bringing the barrel of the AK-47 weapon up and around in their direction ,” or that he was “in the process of pointing [it] at the deputies.” See Dkt. 63 at 1, 13, 17 (emphasis added). In defendant Gelhaus' declaration, he states that, as Andy turned around, “the barrel of the weapon [was] coming up.” Dkt. 64, ¶ 8. In contrast, each of this circuit's cases cited in defendants' motion involves a more direct threat.
, the suspect was “locked in hand-to-hand combat” with a police detective, and the detective “was losing.” 292 F.3d 1177, 1185 (9th Cir.2002). The suspect “actively, violently, and successfully resisted arrest and physically attacked Detective Smith and tried to turn Smith's gun against him.” Id. “No one who saw the fight disputes that [the suspect] was the aggressor, and...
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