Long v. City and County of Honolulu

• Decision Date: 11 July 2005
• Docket Number: No. CIV. 02-00271SPK/KSC.,CIV. 02-00271SPK/KSC.
• Citation: 378 F.Supp.2d 1241
• Parties: Cynthia Marie LONG, individually, and as Personal Representative of the Estate of Dustan Dominic Long, Plaintiff, v. CITY AND COUNTY OF HONOLULU, Officer Patrick A. Sterling, Defendants.
• Court: U.S. District Court — District of Hawaii

Page 1241

378 F.Supp.2d 1241

Cynthia Marie LONG, individually, and as Personal Representative of the Estate of Dustan Dominic Long, Plaintiff, v. CITY AND COUNTY OF HONOLULU, Officer Patrick A. Sterling, Defendants.

No. CIV. 02-00271SPK/KSC.

United States District Court, D. Hawai`i.

July 11, 2005.

Jack F. Schweigert, Honolulu, HI, for Plaintiff.

James C. Butt, Marie Manuele Gavigan, Wyeth M. Matsubara, Office of Corporation Counsel, James Kawashima, Toby M. Tonaki, Watanabe Ing Kawashima & Komeiji, Honolulu, HI, for Defendants.

ORDER GRANTING DEFENDANTS' REVISED MOTION FOR SUMMARY JUDGMENT

SAMUEL P. KING, District Judge.

INTRODUCTION

Defendants Officer Patrick A. Sterling and the City and County of Honolulu renew their motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, primarily asserting there are no material questions of fact as to (1) qualified immunity for Officer Sterling, and (2) "deliberate indifference" on the "Monell claim" for municipal liability against the City. Common law claims are also addressed, although disposition of the state law claims follows from the rulings on the federal claims.

On January 3, 2003, the Court denied without prejudice a similar motion brought by Defendants. Discovery was not complete then and Plaintiff requested time for additional discovery under Fed.R.Civ.P. 56(f). The Court denied the Defendants' motion without prejudice to Defendants renewing it after completion of discovery. Meanwhile, Officer Sterling served a year in Iraq as a reservist soldier recalled to active duty and the case was stayed pursuant to 50 U.S.C. App § 521 from April 2003 until early-2004.¹ Discovery is now complete and Defendants have renewed their motion for summary judgment. The motion was argued on June 23, 2005, with James Kawashima appearing for Defendants and Jack Schweigert appearing for Plaintiff.

DISCUSSION

Given the prior proceedings, the Court begins where it left off when the previous motion was denied. The Court will not repeat all the background here. Important facts are repeated where appropriate, but otherwise the January 3, 2003, order is incorporated by reference and the Court presumes familiarity with the issues as analyzed previously.

1. Qualified Immunity

In applying the test for allowable use of deadly force as set forth in Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) and Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the primary issue of fact identified during the prior proceedings was whether Officer Sterling had probable cause to believe that Dustan Long posed a "threat of serious physical harm, either to [himself] or others," to justify the use of deadly force when considering objectively the situation be confronted when he shot Long in June of 2001.² Much was made of whether Long actually fired a shot at other officers immediately before Officer Sterling shot Long. The January 2003 order indicated that:

... Long might indeed have presented a real and immediate threat to the safety of officers when Sterling shot him. Long had shot others earlier and he was armed. Nevertheless, the record is not clear as to exactly what occurred, especially as to whether Long had actually fired at the police. If Long had not fired at officers, perhaps, depending upon the circumstances, he did not pose an "immediate" threat. Although qualified immunity should be decided early in a proceeding, the record is sufficiently vague at present so as to allow Plaintiff[] the opportunity for further discovery.

[January 2, 2003, Order at 8].

Reviewing the record construed in favor of Plaintiff as is required at a summary judgment stage of the proceedings, there is still a question of fact as to whether Long actually fired a shot at officers immediately before Sterling shot him. Much of the evidence indicates that Long did in fact fire at Officers Marini or Canella. But no corresponding bullet or casing from Long's .22 rifle was found.³ Several witnesses say they didn't hear a shot fired at around 04:52 hours (other than the fatal shot by Sterling around 04:52 hours) or can't recall hearing a shot preceding Sterling's shot. On the other hand, several witnesses (Officers Sterling, Dalbec, Kaholokula, Vargas, Fuata, Marini and others) testified that Long fired just before Sterling fired, and that they heard the shot. This testimony is supported by the "CAD" printout of contemporaneous radio transmissions as verified by dispatcher Battease, which indicates shots fired at 04:51:33 ("shots fired.. he just shoot at us").

The dispute of fact, however, does not resolve matters for this motion. Rather, the question here for purposes of qualified immunity is whether that dispute is "material." That is, even assuming Long did not shoot, the Court is still obligated to consider whether, from the other undisputed facts, Sterling is nonetheless entitled to qualified immunity. As set forth in the previous order, under the Supreme Court's test for qualified immunity articulated in Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), courts must first consider whether "[t]aken in the light most favorable to the party asserting the injury, do the facts... show the officer's conduct violated a constitutional right?" If the answer is no, there is qualified immunity. If the answer is yes, the court then asks whether the right was "clearly established." Id. at 201-02, 121 S.Ct. 2151.

Again, "[a] police officer may reasonably use deadly force where he `has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.'" Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir.2002) (quoting Garner, 471 U.S. at 11, 105 S.Ct. 1694). The Court should consider "the totality of the facts and circumstances in the particular case including `the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).

The reasonableness inquiry is objective, without regard to the officer's good or bad motivations or intentions. Id. The court judges reasonableness "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" and allowing "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." Id.

Even if Long did not fire immediately before Sterling fired, the following facts are uncontested or cannot reasonably be disputed:

1) Long had already shot twice at people (or at their car as it drove away). Although Plaintiff argues that Long did not actually know whether he hit anyone (he did of course hit two people who went to the hospital and called 911), it cannot reasonably be disputed that Long knew he had fired at them.

2) Long was barricaded in his residence, surrounded by police. He was certainly armed (he was seen several times walking outside with a rifle and one was found next to or under him after he was shot). He did not surrender, although there might be some question whether he wanted to or attempted to surrender. Despite Plaintiff's argument to the contrary, it cannot reasonably be disputed that Long was in fact armed. Even assuming Kurt Umeno "hid" the rifle earlier — after Long had fired at around 02:00 hours — Long must have then "found" it because there is undisputed testimony from multiple witnesses that Long was seen carrying a rifle from before 04:07 (when he fired at something in the "front" or kitchen area of the house) and when he was shot at 04:52 hours.

3) Long was agitated. He told police to turn off the spotlight or lights shining on the house, or he would shoot. [Marini Affidavit at 3 ("Long went on to say he had firearms and would use them"); Yamada Affidavit at 2-3; Edayan Decl. at 2 ("Dusten said he was going to shoot some cops"); Sterling Affidavit at 2-3]. Even Umeno says that Long told him "police were coming in the front window and he could see them in other places on his property." [Umeno Decl. at ¶ 16]. Umeno heard Long yell at police that they had 10 seconds "to get the `F' out of his yard." [Id.]. He heard Long "do a count-down, shouting to the officers to get off his property." [Id.]. Umeno's declaration is consistent with testimony of Marini that Long yelled at them "I told you f* * *ers to get the f* *k back ... Have some of this." [Marini affidavit, ¶ 23; CAD timeline about 04:47:41 ("He was clg [calling] threats.. we had to jump in the ditch")]. Umeno's declaration is also consistent with other testimony that Long threatened to shoot police ("bring it on, let's see it") if the spot lights were not turned off. [Sterling Affidavit at ¶¶ 14-16].

4) Officers Marini and Cannella were on the perimeter in a ditch. (There is some discrepancy as to when exactly they jumped into the ditch.) Sterling and Dalbec were positioned across the street as "counter snipers" viewing Long through scopes. Sterling was hearing the radio transmissions between police. [Sterling Affidavit at 2-3]. Before Officer Sterling fired at Long, Officer Marini radioed "he's shooting at us." [E.g., Marini Affidavit at 4; Yamada Affidavit at 3; Ben-Rajab Depo. at 52]. This is also confirmed by the CAD stenographic record of radio transmissions at 04:51:33 hours. Sterling heard this. [Sterling Affidavit at 4]. Sterling then shot at Long. (Sterling says it was immediately after or nearly simultaneously with the transmission.) The CAD stenographic record indicates at 04:52:18 "sniper shot taken." Although dispatcher Battease indicates there might have been some delay with the inputting of the...