Individually v. Cnty. of Butte, Corp.
| Decision Date | 28 April 2017 |
| Docket Number | No. 2:15-cv-00988-KJM-CMK,2:15-cv-00988-KJM-CMK |
| Parties | CATHERINE SMITH, individually and as joint successor-in-interest to decedent Cory Bush; and M.B., a minor, individually and as joint successor-in-interest to decedent Cory Bush, through his guardian-ad-litem, Victoria Moseley, Plaintiffs, v. COUNTY OF BUTTE, a municipal corporation; MATT KEELING, individually and in his capacity as a Sergeant for the County of Butte; BRIAN EVANS, individually and in his capacity as a deputy sheriff for the County of Butte; ROBERT ALLEN, individually and in his capacity as a deputy sheriff for the County of Butte; and BENJAMIN CORNELIUS, individually and in his capacity as a deputy sheriff for the County of Butte, Defendants. |
| Court | U.S. District Court — Eastern District of California |
On May 18, 2014, Deputy Benjamin Cornelius shot and killed Cory Bush, a young man armed with a pellet rifle. The decedent's mother and minor child now sue the County of Butte and four individual officers for use of excessive force in violation of the U.S. Constitution. Defendants jointly move for summary judgment. ECF No. 23. Plaintiffs oppose, ECF No. 27, and defendants have replied, ECF No. 29. The court heard the motion at hearing on December 16, 2016, at which Benjamin Nisenbaum appeared for plaintiffs, and Stephen Horan and William Camy appeared for defendants. Hr'g Mins., ECF No. 30. For the reasons stated below, after careful consideration in this inherently difficult case, the court GRANTS defendants' motion for summary judgment.
The following facts are undisputed unless otherwise stated. Where a genuine dispute exists, the court draws reasonable inferences in plaintiffs' favor. Tolan v. Cotton, 134 S. Ct. 1861, 1868 (2014).
On May 18, 2014, Mr. Shannon Moseley of 275 Refuge Avenue, Butte County, called 911 to report that his daughter's boyfriend, Cory Bush, had "gone off the deep end," was tearing apart the Moseleys' house, and was ranting, raving, and yelling. Undisputed Material Facts ("UMF") 1, 3, 26, ECF No. 23-2. At about 6:55 p.m., Moseley stepped outside to make the call while his daughter stayed in the house "[to try] to control [Bush]." Ex. B, 911 Call Transcript ("911 Tr.") at 2:12-14, ECF No. 24-1; UMF 1. Moseley explained that Bush instructed him to call the police because he wanted to commit "suicide by cop." UMF 14; 911 Tr. at 3:26-4:2. Moseley believed Bush was on methamphetamine, UMF 3, 11, 26, was having "a really bad" mental breakdown, 911 Tr. at 14:07-08, and had "just snapped," 911 Tr. at 6:20-21. Although Moseley believed "[Bush had] got the kids scared pretty bad," 911 Tr. at 15:16, he also said he did not believe Bush was a threat to them, 911 Tr. at 7:26. Moseley did not want to call 911, but Bush had said, 911 Tr. at 9:02, 13:24-25. Moseley also told the dispatcher more than twenty times that Bush had armed himself with a rifle-style pellet rifle that could "pass for a .22." See generally 911 Tr. At one point, Mr. Moseley told dispatch there was a dog on the property, but he said it was "chained up, so the officers don't gotta worry about him." 911 Tr. at 12:22-23.
The Butte County Sheriff's Office dispatched four officers to respond and they are the four individual defendants here: Sergeant Keeling; Deputy Evans, with his K-9 "Duke;" Deputy Allen; and Deputy Cornelius. UMF 6, 10. All officers had received training in crisis intervention and communication with the mentally ill and suicidal. Deputies Evans and Cornelius had received Crisis Intervention Team certified training, which trains on best practices and meets the first responder "National Gold Standard" for police-based interaction with persons affected by mental illness, including those threatening suicide. UMF 86. Before this incident, Sergeant Keeling had received Critical Incident Training for supervisors and training in Tactical Communication and Mental Health; Deputy Cornelius had training in Crisis Intervention Tactics, Suicide Risk Detection and Prevention, Tactical Concepts for Rural Operations, and Tactical Communications; Deputy Evans had training in Crisis Intervention Tactics, Suicide Risk Detection and Prevention, Tactical Communications, and Dealing with Developmentally Disabled Persons; and Deputy Allen had training in Tactical Communications, and Suicide Risk Detection and Prevention. UMF 87. Deputy Evans and his K-9 had together received continuous training, graduated from a five week course, and been certified by an independent evaluator as satisfying police standards for K-9 units. Ex. W, Evans Decl. ¶ 4, ECF No. 24-6.
Before responding to Mr. Moseley's location, the four officers met at the Palermo sub-station to make a plan. UMF 15, 16. They had received highlights from Mr. Moseley's call to dispatch but not all of the details. The officers had been told Bush was armed with a pellet rifle that could shoot one bullet at a time; it was black and looked like a .22 caliber rifle. UMF 26. During the officers' planning discussion, Deputy Cornelius told them he knew Bush; he also said the pellet rifle was "high powered" and that a shot from it "would definitely penetrate a skull." UMF 18. Cornelius's prior contact with Bush was during an incident in which Bush had been stabbed. Cornelius Depo. at 43-45. The officers decided Cornelius would be the primary communicator with Bush; Deputy Evans was to deploy his K-9 as a less lethal force option, if necessary; and Sergeant Keeling and Deputy Allen were to provide back up. UMF 17, 19-20, 23. All officers were armed with guns, and Deputies Allen and Evans and Sergeant Keeling also each had a Taser, a less lethal electroshock weapon that may be effective up to 14 feet. UMF 21-22,24-25. Cornelius testified at deposition that Tasers were referenced for the first time only when shots were being fired, when Keeling simultaneously shouted for the officers to use their Tasers. (See Cornelius Depo. at 79.) The other officers do not recall discussing other less lethal options, and Tasers in particular, at the substation where they formulated their plan. (See Keeling Depo. at 59:8-15; Allen Depo. at 39:13-23; Evans Depo. at 31:17-20.)1 In sum, the undisputed facts are that while some of the officers carried Tasers, their use was not discussed as a less lethal force option before the encounter with Bush. Instead, the officers planned on relying exclusively on the K-9 as the less lethal force option.
Twenty-five minutes into the 911 call, Moseley reported that "[Bush] want[ed] to see it to fruition," 911 Tr. at 18:04, presumably referring to Bush's intention to commit suicide by cop. Within a minute and a half of that statement, at about 7:25 p.m., the officers arrived on scene and met Moseley in front of the house. See 911 Tr. at 19:12-13; UMF 30, 32-33. Moseley told the officers Bush had a pellet gun and is "really mentally screwed up." 911 Tr. at 19:12-18. Moseley was still on the phone with the 911 operator when the officers arrived, and the 911 call partially recorded his statement, time stamped at 26 minutes 43 seconds. Id. Moseley then ended the call.
At this point, given the time of year it was still light outside. UMF 31. The officers positioned themselves at the edge of the property behind a tree and fence post. UMF 35. From that position, at approximately 7:27 p.m., Deputy Cornelius used a public address system to call toward the house several times that the Sheriff's Office was outside, saying the officers wanted Bush to come out, and they were there to help him. UMF 38, 41. Bush yelled, "I'm coming out," and emerged from the house holding a pellet rifle. UMF 42. Bush yelled and screamed at the officers as he emerged, and though his yelling was largely unintelligible, he screamed, "Shoot me, shoot me." UMF 47-48. At the same time he walked quickly towards Deputies Evans and Cornelius, who were about 75 feet away, despite the officers' repeated ordersto stop, get on the ground, and drop the pellet rifle. UMF 49-51. As he walked, Bush waved the pellet rifle in the air and pointed it in the deputies' direction, all while continuing to yell and scream at them. Id.; Ex. QQ, Evans Depo. at 40:25-41:4, ECF 24-8. In response, Deputy Evans deployed his K-9 and ordered it to bite Bush. UMF 52. As the K-9 approached, Bush threw his pellet rifle to the ground and raised his hands. Ex. QQ, Cornelius Depo. at 109:18-21, ECF No. 24-8; Ex. QQ, Moseley Depo. at 83:10-11, ECF No. 24-8.
The parties dispute what happened next. Plaintiffs contend Bush threw his pellet rifle so hard it broke open and a spring fell out, rendering the rifle inoperable, and that the officers were close enough to see the spring fall out. See Ex. QQ, Menzes2 Depo. at 24:10-12, 28:19-20, 50:22-51:05, ECF No. 24-8. Defendants contend no officer saw the rifle break open in any way, Ex. QQ, Allen Depo. at 86:13-18, ECF No. 24-8, and they provide evidence that the California Department of Justice test-fired the rifle after the incident and determined it was operational, UMF 82; Ex. QQ, Wallace Depo. at 38:21-23, ECF No. 24-8. What is not genuinely in dispute, however, is that when Bush appeared to surrender, Deputies Cornelius and Evans left their positions of cover and moved quickly towards him. See Cornelius Depo. at 116:12-119:4; Evans Depo. at 50:15-51:01, 63:12-64:15. Then, before the officers reached Bush, the K-9 unexpectedly veered away from Bush and the officers and towards the pit-bull chained to a tree in the front yard. UMF 55.
With the K-9 ignoring the officers' commands, Bush retrieved his pellet rifle from the ground. Cornelius Depo. at 119:01-04; Menzes Depo. at 28:25-29:10. Deputy Allen states Bush was standing upright, then bent over, picked the rifle up, struck it over his knee repeatedly, then pointed it at Cornelius. Allen Depo. at 85:8-17, 86:7-12. Deputy Cornelius and Sergeant Keeling do not...
To continue reading
Request your trial