Kollin v. City of Tehachapi, 1:18-cv-00617-NONE-JLT

• Decision Date: 10 June 2020
• Docket Number: No. 1:18-cv-00617-NONE-JLT,1:18-cv-00617-NONE-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: RICHARD W. KOLLIN, Plaintiff, v. CITY OF TEHACHAPI, et al., Defendants.

RICHARD W. KOLLIN, Plaintiff, v. CITY OF TEHACHAPI, et al., Defendants.

No. 1:18-cv-00617-NONE-JLT

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

June 10, 2020

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(Doc. No. 64)

PlaintiffRichard W. Kollin filed this lawsuit against defendantsCity of Tehachapi and various Tehachapi Police Department("TPD") officials in their individual capacity, including Officer Bruce Medina("Medina"), Officer Jared McCombs("McCombs"), Sergeant Amelia Thompson, and Chief of Police Kent Kroeger(also in his official capacity), after plaintiff was shot twice in the back during a foot pursuit by Officers Medina and McCombs.Plaintiff brings a claim for excessive use of force in violation of the Fourth Amendment to the U.S. Constitution, in addition to state law claims for negligence, battery, and violation of California's Bane Act.(Doc. No. 33.)Currently pending before the court is defendants' motion for summary judgment in which they argue that the evidence presented: (1) establishes that the shooting of plaintiff was objectively reasonable under the Fourth Amendment;(2) entitles defendants to qualified immunity; and (3) that plaintiff's state law claims fail in the absence of a constitutional violation.(Doc. No. 64 at 2:5-8.)For the reasons set forth below, defendants' motion for summary judgment will be denied in its entirety.

BACKGROUND

The facts set forth below are based on the parties' submission of the joint statement of material facts ("JF"),¹ which also includes plaintiff's material facts and defendants' responses submitted thereto ("PF").(Doc.No. 64-1.)Because defendants are moving for summary judgment, the evidence regarding the incident submitted by plaintiff is critical to the resolution of the pending motion.Below, the court will summarize all of the evidence before it on summary judgment.

A.The Facts

On May 24, 2017, plaintiff was driving for work when he decided to stop at a Holiday Inn Express in Tehachapi, California ("Holiday Inn").(PF¶ 22.)At approximately 11:15 p.m., TPD received a report of a suspicious person—plaintiff—who had parked his vehicle in the parking lot behind the Holiday Inn and had "been there for hours, and mov[ed] parking spots all night."(Doc.No. 64-3(computer-aided dispatch report);seeJF¶ 1.)Officers Medina and McCombs responded to the Holiday Inn, driving marked police vehicles.(JF¶¶ 1-2.)Officer Medina knew that there had been recent burglaries in the area, including at the Holiday Inn, and of one incident where firearms were stolen from a vehicle.(Id.¶ 3(plaintiff objecting as to relevance of Officer Medina's knowledge);seeDoc.No. 64-3at 22(deposition of Officer Medina).)²

Upon arriving at the parking lot, the officers stopped and detained plaintiff.(JF¶ 4.)Officer Medina "thoroughly" searched plaintiff for 20 seconds but found no "obvious weapons."(Id.¶ 5;PF¶ 25.)The search was a "modified standing search," which consists of "having a person spread their legs, in a standing position, with their back to the officer and hands interlaced on top of the head."(PF¶¶ 24-25.)The parties dispute whether Officer Medina patted down "allareas" where a person could conceal a firearm, because defendants assert that Officer Medina did not search plaintiff's "crotch or inside his boots."(PF¶ 25;but seeDoc. No. 64-5 at 10:5-7.)³Officer McCombs was aware that Officer Medina's modified standing search of plaintiff did not result in the recovery of any weapons.(PF¶ 27.)Plaintiff also allowed Officer McCombs to search his vehicle.(JF¶ 6.)Officer McCombs saw an empty holster and military fatigues but did not find any weapons inside plaintiff's vehicle.(Id.)

While being questioned, plaintiff falsely told one of the officers that his name was "Rick Knight."(Id.¶ 7.)Plaintiff declares that Officer Medina was "very nervous and aggressive" during the questioning and was "constant[ly]" reaching for his firearm.(Doc. No. 65-11 ¶ 4.)According to plaintiff, Officer Medina's "nervous behavior caused [plaintiff] to fear for [his] life," and he"decided to run."(Id.)According the parties, it is undisputed that plaintiff fled from the officers while being lawfully detained.(JF¶ 8.)

As he began to run, Officer Medina ordered plaintiff to "stop."(Id.¶ 9.)Defendants assert that plaintiff yelled he had a gun and would shoot Officer Medina.(Id.¶ 10;seeDoc.No. 64-3at 39(deposition of Officer Medina).)Plaintiff disputes this.(JF¶ 10.)⁴Officer Medina then performed a leg sweep on plaintiff, causing plaintiff to fall.(Id.¶ 11.)Plaintiff stood up and Officer Medina deployed a taser against plaintiff, which was ineffective.(Id.¶ 12.)Plaintiff continued to run away after Officer Medina's unsuccessful attempt to subdue plaintiff with a taser.(Id.¶ 13.)

While running away again, defendants assert that plaintiff twice yelled again that he had a gun.(Id.¶ 14;seeDoc.No. 64-3at 74(deposition of Officer McCombs).)Plaintiff disputes

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/////this.(JF¶ 14.)⁵Officer McCombs broadcasted over the TPD radio that plaintiff had a gun.(JF¶ 15.)Plaintiff continued to run from the officers.(Id.¶ 16.)Defendants assert that plaintiff began to reach in his waistband at this point of the chase.(Id.;seeDoc.No. 64-3at 49(deposition of Officer Medina), 75 (deposition of Officer McCombs).)Plaintiff disputes making this movement.(JF¶ 16.)⁶Defendants assert that Officer McCombs warned plaintiff to stop or he would be shot.(Id.¶ 17;seeDoc.No. 64-3at 76(deposition of Officer McCombs).)Plaintiff purports to dispute that Officer McCombs provided such a warning.(JF¶ 17.)⁷Officer Medina broadcasted over the TPD radio that plaintiff was reaching for his waistband.(Id.¶ 18.)

Defendants assert that plaintiff then "abruptly turned clockwise (right) and extended his right arm and fist in a shooting position."(JF¶ 19;seeDoc.No. 64-3at 50-51(deposition of Officer McCombs), 77-78 (deposition of Officer McCombs).)Plaintiff disputes that he made these movements.(JF¶ 19.)⁸Officer McCombs then fired four shots and Officer Medina firedtwo shots at plaintiff, hitting him.(JF¶¶ 20, 21.)

Plaintiff contends that the other evidence before the court on summary judgment calls into question the version of the events precipitating the shooting offered by Officers McCombs and Medina.First, plaintiff asserts that Officer McCombs decided to fire at him before he allegedly turned his torso and pointed his arm at the officer.(PF¶ 29;seeDoc.No. 64-5at 25(deposition of Officer McCombs: "Prior to him turning, I had told him, 'Stop, or I'm going to shoot you.'")Defendants do not dispute "[t]he timing of the warning."(PF¶ 29.)Second, plaintiff contends that defendants' bullet-trajectory expert "fails to corroborate the officers' claim that [plaintiff]'extended his right arm and made a fist in a shooting position.'"(PF¶ 30)(quotingJF¶ 19)(SeeDoc.No. 64-5at 27-28(deposition of Jeremy J. Bauer).)Defendants, however, counter by arguing that their expert has opined "that the evidence is consistent with the officers' statements."(PF¶ 30.)"In fact,"plaintiff claims, "defendants' trajectory says nothing about the position of [plaintiff's] right arm.It only confirms that [his] right side of his torso was facing the shooter."(Id.¶ 31;seeDoc.No. 64-5at 27-28(deposition of Jeremy J. Bauer).)Plaintiff asserts that the evidence of the discharged bullet shell casings show that the officers were actually standing still at the time of the shooting, contrary to their earlier assertions that they were running when they fired upon plaintiff.(PF¶ 32.)Plaintiff also claims that he"had likely fallen to the ground prior to being shot by both officers."(Id.)Defendants"do not dispute physical evidence," but note that plaintiff"offers no evidence to support his opinion" that the physical evidence demonstrates plaintiff did not pose an immediate threat prior to getting shot.(Id.)

In any event, it is undisputed that plaintiff was unarmed during the entire incident.(Id.¶ 28(undisputed but defendants objecting as immaterial post-incident discovery).)

B.Bullet Trajectory Analysis

Plaintiff has submitted a bullet trajectory schematic prepared by Kern County Coroner, Dr. Eugene Carpenter.(Doc.No. 65-8;see alsoDoc. No. 65 at 13:20-22.)Dr. Carpenter's schematic is labeled "Kollin," and portrays two sides of a human body (i.e., the front and the back) to demonstrate the location on plaintiff's body where the bullets fired by the officers entered him, as well as the angle from which they entered his body.(Id.)The schematic preparedby Dr. Carpenter shows that plaintiff was shot twice on the back side of his body.(Id.)The first bullet entered through the back of plaintiff's right shoulder.(Id.)The schematic shows that the first bullet traveled from a point lower than plaintiff's right shoulder, at a 45-degree angle in an upward direction, until it entered the back of plaintiff's right shoulder.(Id.)The second bullet entered through the back side of plaintiff's right flank region.The schematic shows that the second bullet traveled from a point higher than plaintiff's flank, at a 45-degree angle in a downward direction, until it entered the back side of plaintiff's right flank.(Id.)Plaintiff also cites two exchanges from Dr. Carpenter's deposition to support his assertion that the bullet wound evidence demonstrates that plaintiff may have been in a sitting position on the ground, with his torso upright at the time he was shot.(Doc.No. 65-9 at 1:23-2:18, 3:14-4:14.)

Additionally, plaintiff has submitted an excerpt of the deposition of defendants' expert witness, Dr. Jeremy Bauer.(Doc.Nos. 64-5at 27-28;65 at 15:5-10.)Plaintiff highlights the following exchange from Dr. Bauer's deposition:

Q: [] Now, going to your opinion, your final opinion, basically it's

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