Newmaker v. City of Fortuna

• Decision Date: 22 November 2016
• Docket Number: No. 14-15098,14-15098
• Citation: 842 F.3d 1108
• Parties: Jerry Newmaker; Susan Olesen, Plaintiffs–Appellants, v. City of Fortuna; Maxwell Soeth; Charles Ellebrecht, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

842 F.3d 1108

Jerry Newmaker; Susan Olesen, Plaintiffs–Appellants,
v.
City of Fortuna; Maxwell Soeth; Charles Ellebrecht, Defendants–Appellees.

No. 14-15098

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 2016, San Francisco, California
Filed November 22, 2016

Dale K. Galipo (argued) and Eric Valenzuela, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiffs–Appellants.

Nancy K. Delaney (argued) and Nicholas R. Kloeppel, Mitchell Brisso Delaney & Vrieze LLP, Eureka, California, for Defendants–Appellees.

Before: William A. Fletcher, Johnnie B. Rawlinson, and Andrew D. Hurwitz, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

Maxwell Soeth, a police officer in Fortuna, California, fatally shot Jacob Newmaker during an attempted arrest. In this 42 U.S.C. § 1983 case alleging excessive force, Officer Soeth maintained in the district court that he shot Newmaker after he grabbed Soeth's police baton. According to Soeth, Newmaker was standing upright and was swinging the baton violently toward Sergeant Charles Ellebrecht at head height when he was shot. According to Soeth, Newmaker then fell to the ground. Soeth maintained he shot Newmaker again as Newmaker was getting up and again swinging the baton.

The district court granted summary judgment to Officer Soeth based on qualified immunity. Because evidence in the record contradicts Soeth's testimony, we reverse and remand.

I. Procedural Background

In 2012, Newmaker's parents ("Plaintiffs") filed this suit against the City of Fortuna, Officer Soeth, and Fortuna Police Sergeant Ellebrecht. Plaintiffs allege that Soeth used unconstitutionally excessive force by striking Newmaker multiple times with his police baton and then fatally shooting him. Plaintiffs originally asserted various federal and state law claims, but eventually agreed to dismiss several of them, leaving only the excessive force and substantive due process claims against Soeth and a few state law claims against both the City and Soeth.

After excluding some of Plaintiffs' proffered evidence, the district court concluded on summary judgment that Officer Soeth was entitled to qualified immunity. Based on Soeth's testimony that Newmaker had taken his police baton, the court concluded that "it was reasonable for Officer Soeth to conclude that Newmaker might use the baton in a dangerous way against Ellebrecht, merely by virtue of having it in his possession." After granting summary judgment on the § 1983 claims, the district court dismissed the remaining state law claims without prejudice. Plaintiffs appeal the grant of summary judgment to Soeth.

II. Standard of Review

We review a district court's grant of summary judgment de novo. Gordon v. Virtumundo, Inc. , 575 F.3d 1040, 1047 (9th Cir. 2009). We review for abuse of discretion a district court's decision to exclude expert testimony and other evidence during summary judgment proceedings.

842 F.3d 1111

See Pyramid Techs., Inc. v. Hartford Cas. Ins. Co. , 752 F.3d 807, 813 (9th Cir. 2014).

III. Discussion

Because we are reviewing a grant of summary judgment in favor of defendant Soeth, we view the evidence in the light most favorable to Plaintiffs. "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Evidence in the Record

1. Officer Soeth's Deposition Testimony

Officer Soeth testified in his deposition that Newmaker walked into the Fortuna Police Station at about midnight on the morning of March 16, 2012. Newmaker told Soeth that unidentified people had just chased him down an alley and that he was afraid. Soeth told Newmaker that he needed either to file a report or to leave the station. Newmaker declined to file a report and asked for a ride home. Soeth refused, and Newmaker left. Newmaker was acting strangely, and Soeth thought he might be mentally impaired or on drugs.

About two hours later, while in a patrol car, Officer Soeth encountered Newmaker on a street in Fortuna. Newmaker was fully clothed, wearing a jacket, but shoeless. Newmaker told Soeth that he was going to the hospital and asked for a ride to his mother's house. Soeth refused to give Newmaker a ride, but followed Newmaker until he arrived at his mother's house and went inside. A check with dispatch to determine whether Newmaker was on probation or parole or had any outstanding warrants came up negative.

At about 6:00 a.m. that morning, Officer Soeth received a call at the station about a "male subject ... banging on the doors and windows of an occupied dwelling." While Soeth went in his patrol car to investigate, Sergeant Ellebrecht spoke to the caller, who reported that the subject had left on a bicycle. The caller stated that the subject had said his "skin was crawling" and "[t]hat he was in contact with radiation." Ellebrecht relayed this information to Soeth. Soeth encountered Newmaker on a bicycle at an intersection. Newmaker was no longer wearing his jacket. Soeth attempted a stop, but Newmaker rode away.

Officer Soeth followed Newmaker and "called out" a pursuit. After about two blocks, Newmaker got off his bicycle and started running. Soeth got out of his patrol car and pursued on foot. Newmaker turned around and came back toward Soeth. Soeth ordered Newmaker to get on the ground. Newmaker responded by lying on the hood of a parked car. Soeth ordered Newmaker to get on the ground and show his hands. When Newmaker did not comply, Soeth physically forced him to the ground.

Officer Soeth stated in his deposition that he again ordered Newmaker to show his hands. When Newmaker did not comply, Soeth used his Taser in "drive" mode (without darts) to stun Newmaker in the lower back. Soeth stated that Newmaker reacted by grabbing the Taser with one hand and Soeth's leg with the other. Soeth stepped back, and Newmaker got up and ran away. Soeth again pursued Newmaker on foot. At some point, Newmaker had lost his pants. He was now naked from the waist down and wearing only a t-shirt. He had no weapon.

Officer Soeth stated in his deposition that Newmaker stopped running and assumed a "fighter's stance." Soeth pointed

842 F.3d 1112

his Taser at Newmaker and told him to get on the ground. When Newmaker failed to comply, Soeth fired the Taser in "probe" mode (with darts). The darts hit Newmaker in the torso, and he fell onto his back. Soeth ordered Newmaker to roll on his stomach and put his hands on his back. When Newmaker failed to comply, Soeth activated another Taser cycle. Newmaker grabbed the Taser wires and bit through them.

Sergeant Ellebrecht, who had just arrived in a separate patrol car, joined Officer Soeth in the attempt to subdue Newmaker. Officer Soeth stated in his deposition that he hit Newmaker twice with his police baton to prevent him from getting up, although video from Ellebrecht's dashboard camera shows a greater number of strikes. Soeth stated that he then tried to close the baton to put it back in its holster, but he could not do so. He threw the baton to the edge of the sidewalk next to a fence. Ellebrecht succeeded in handcuffing Newmaker's right wrist. Soeth and Ellebrecht then dragged Newmaker onto the street behind a parked car, out of view of the dashboard camera. What happened next is at the core of this case.

The video taken by the dashboard camera shows Officer Soeth going to retrieve his baton from beside the fence and then returning behind the parked car. Soeth stated in his deposition that he intended to use the baton to pry Newmaker's left arm free so Ellebrecht could handcuff his left wrist. Soeth stated that Newmaker grabbed the baton and that he shouted, "He's got my baton." According to Soeth, Newmaker stood up and swung the baton "violently" and "aggressively" at Ellebrecht's head. Soeth stated in his deposition that he then drew his firearm and told Newmaker to drop the baton. Soeth stated that he then shot Newmaker from a standing position in order to protect Ellebrecht. Soeth stated that Newmaker fell to the ground, either because he was shot or because he "was swinging so violently that he fell." Soeth stated that he shot Newmaker again as he was getting up and starting to swing the baton again. Soeth estimated that the time between the two shots was "[t]wo seconds tops" and could have been less than a second. The shots killed Newmaker.

2. Carol Harris's Declaration

A witness to the encounter, Carol Harris, provided a sworn declaration. Harris stated that she lived "directly to the south" of where Officer Soeth and Sergeant Ellebrecht were attempting to subdue Newmaker. She did not specify how far away she was. She stated that she "exited [her] residence and stood on the front porch from where [she] observed a man fighting in the street with officers[.]" She stated that she "either blinked or looked away for a moment." When she "looked back," one of the officers had drawn his gun and stated, " ‘Put the weapon down.’ " That officer "again stated, ‘Put the weapon down, put the weapon down.’ " Harris stated that she "saw two muzzle flashes from the gun ..., approximately two seconds apart[.]" "After the male was transported by...