Hopkins v. Andaya

• Decision Date: 24 March 1992
• Docket Number: No. 89-16368,89-16368
• Parties: Orlean HOPKINS, Individually, and Melba Lazenby-Jenkins as Administratrix of the Estate of Jerry Stancill, Plaintiffs-Appellants, v. Marc ANDAYA, George T. Hart, and the City of Oakland, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 881

958 F.2d 881

Orlean HOPKINS, Individually, and Melba Lazenby-Jenkins as Administratrix of the Estate of Jerry Stancill Plaintiffs-Appellants, v. Marc ANDAYA, George T. Hart, and the City of Oakland Defendants-Appellees.

No. 89-16368.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 1991.

Decided March 5, 1992.

As Amended March 24, 1992.

Thomas H. Crawford, San Francisco, Cal., for plaintiffs-appellants.

Karen A. Silverstein, Asst. City Atty., Jayne W. Williams, City Atty., Oakland, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before D.W. NELSON, KOZINSKI and T.G. NELSON, Circuit Judges.

PER CURIAM:

On the night of May 21, 1984, Marc Andaya shot and killed Jerry Stancill. Appellants Orlean Hopkins, the mother of the decedent and Melba Lazenby-Jenkins, Stancill's daughter, brought this action, alleging claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 and the California wrongful death statute. Hopkins and Lazenby-Jenkins appeal the summary judgment granted in favor of defendants/appellees, Marc Andaya, the City of Oakland, the Oakland police department and its police chief. We reverse and remand the district court's grant of summary judgment and its decision to dismiss appellants' pendent California wrongful death claims.

I. Facts

Oakland Police Officer Marc Andaya responded to a call on the night of May 21, 1984 reporting that Jerry Stancill was creating a disturbance at the Capri Motel. ¹ Because Stancill had allegedly threatened "to shoot the place up," Andaya searched Stancill and determined that he was unarmed. He then sent Stancill on his way.

During this encounter, Andaya observed Stancill acting strangely and talking to himself in an illogical manner. He and a fellow officer followed Stancill and stopped him to determine whether Stancill should be detained for a psychiatric evaluation in accordance with California law. The officers did not detain Stancill because they did not feel that he posed "a threat to himself or others."

A short time later, Andaya was completing paperwork in a parking lot when he heard Stancill "howling or braying" under a traffic light. When Stancill began to walk back towards the Capri Motel, Andaya pulled his car into an abandoned lot behind Stancill and sounded his siren. Stancill then approached the car.

According to Andaya, Stancill put his hands on the police car in a frisk position, and asked "what are you going to do?" Andaya claims that Stancill's manner then changed: he became hostile and began approaching Andaya in a threatening manner. Andaya testified that he backed away, and drew his baton and began hitting Stancill's arms to keep him away. Andaya then says that Stancill grabbed Andaya's baton and caused him to fall backwards and hit his head on the ground. Andaya says this blow was sufficiently hard to "daze" him.

According to Andaya, Stancill then hit him with the baton "at least ten times" in spite of Andaya's efforts to evade the blows. Andaya claims that after a minute or so of repeated blows and kicks to the head or body, he drew his revolver and warned Stancill to stop. Stancill kept attacking, so Andaya shot at him six times at a range of three to four feet in several spaced volleys.

Andaya testified that he knew the shots had hit Stancill, since he saw blood and told Stancill "You're hurt. Don't get up." However, he also stated that the shots did not stop Stancill from coming at him. He then managed to bring Stancill to the ground and wrestled with him for about a minute. Andaya then claims he managed to get up and back away, but that Stancill got up as well. With Stancill advancing on him, Andaya claims that he somehow managed to radio for help, throw the radio down, empty the spent cartridges from his revolver and reload it, cross the street and hide behind a car in a gas station on the other side of the street. Once again Stancill advanced on Andaya. After warning Stancill again to stop, Andaya fired four more bullets at close range. Andaya says that Stancill was still standing after the four shots were fired. Andaya does not remember anything else until he was lifted into an ambulance.

Jerry Stancill died from nine gunshot wounds: two to the head, five to the torso and one in each hand. The report of the doctor who examined Andaya the night of the shooting indicated that he had bruises on his arms, back, and legs, but not on his head. The medical report also indicated that Andaya's injuries were not serious.

The declaration of an eyewitness, Greg Lassonde, contradicts Officer Andaya's testimony in important respects. According to Lassonde, Stancill was indeed pursuing Andaya, and Andaya fell or was pushed backwards. Stancill then leaned over Andaya and began grabbing at him with his hands. According to Lassonde, however, Stancill at no time had possession of the baton and did not hit Andaya with it. Instead, Andaya began firing almost immediately after he fell, without issuing a warning. Lassonde also denies that the two wrestled on the ground after Andaya fired the first six shots. Instead, he claims that Andaya was standing by the time he fired the last shot in the first volley.

Andaya has a history of citizen complaints of excessive force, a reputation for being quick-tempered, and has been at the center of several incidents involving inappropriate use of his firearm.

Appellants, decedent's mother and daughter, filed this action on May 20, 1987, alleging violations of 42 U.S.C. § 1983 and Cal.Code Civ.Procedure § 377 (wrongful death). Appellees filed a motion for summary judgment on June 2, 1989, relying on the testimony of Officer Andaya and several other members of the Oakland Police Department. Appellants filed their opposition to this motion on June 16, 1989. To bolster their opposition, they attached the medical records and evidence of Andaya's prior and subsequent record in the Department. They did not depose Greg Lassonde, even though he was on appellants' witness list for trial.

Without the benefit of any evidence from Lassonde, the district court granted summary judgment for appellees on the section 1983 claims on July 21, 1989. The court dismissed the California wrongful death claim "for lack of pendent jurisdiction." On August 4, 1989, appellants filed a motion for reconsideration which included for the first time the declaration of Greg Lassonde. The court denied this motion on September 29, 1989, and this appeal ensued.

II. Standard of Review

The court reviews de novo a grant of summary judgment. Fed.R.Civ.P. 56; Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). On summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact that would allow a judgment as a matter of law. Id., 477 U.S. at 256, 106 S.Ct. at 2514. The court's function on summary judgment is not to make credibility determinations. Id., 477 U.S. at 255, 106 S.Ct. at 2513. ² The trial judge determines whether the evidence presented is such that a jury applying the evidentiary standard could reasonably find for either the plaintiff or the defendant. Id.

However, once the moving party demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to produce evidence sufficient to support a jury verdict in her favor. Id., 477 U.S. at 256-257, 106 S.Ct. at 2514-15. In meeting this burden, the nonmoving party must go beyond the pleadings and show "by her own affidavits, or by the depositions, answers to interrogatories, or admissions on file" that a genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

III. Summary Judgment

Apprehension by use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court held:

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

....

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.

490 U.S. at 396-397, 109 S.Ct. at 1872 (citations omitted). In determining whether an officer acted reasonably under the Fourth Amendment, we must consider the "severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id., 490 U.S. at 396, 109 S.Ct. at 1872.

Appellants contend that there is a triable issue of fact as to whether Andaya used unreasonable force against Stancill. ³ The question of the reasonableness of force is usually a question of fact for the jury. However, on summary judgment, the court may make a determination as to reasonableness where, viewing the evidence in the light most favorable to Hopkins, the evidence compels the conclusion that Andaya's use of force was reasonable. In the unusual circumstances of this case, two troubling factual issues lead us to conclude that summary judgment is inappropriate.

A. The Medical Evidence

First, the medical evidence in the record undermines Andaya's story in numerous ways. Shortly after the shootings, Andaya was examined by a physician at the...