Perkins v. City of Modesto
| Docket Number | 1:19-cv-00126-NONE-EPG |
| Decision Date | 31 January 2022 |
| Parties | JASON B. PERKINS, Plaintiff, v. CITY OF MODESTO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING REQUEST TO CONSIDER NEW AUTHORITY
Plaintiff Jason B. Perkins filed this civil rights action against defendants City of Modesto (the “City”), Modesto Police Department (“MPD”), MPD Chief of Police Galen L. Carroll (“Carroll”) in his individual capacity, MPD officer Jerry J. Ramar (“Ramar”) in his individual capacity, and MPD officer Ryan Olson (“Olson”) in his individual capacity, after plaintiff was shot multiple times by defendant Ramar. (Doc No. 22.) The complaint brings claims under both the Fourth and Fourteenth Amendments to the United States Constitution, Article I § 13 of the California Constitution, as well as various state law claims. (Id.) The court previously denied plaintiff's motion for summary adjudication. (Doc. No. 68.)
Now pending before the court is defendants' motion for summary judgment brought on the grounds that defendant Ramar's and officer Olson's use of force was reasonable under the Fourth Amendment; Olson's conduct did not amount to integral participation in the alleged deprivation of plaintiff's rights; defendant Ramar is entitled to qualified immunity; the City and MPD are not liable under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), and its progeny; and defendants did not violate any state law. (Doc No. 85 at 2.) For the reasons explained below, defendants' motion for summary judgment will be denied in part and granted in part.[1]
The background set forth below is drawn from the following defendants' statement of material facts and plaintiff's responses (Doc. No. 93-2 (Defendants' Statement of Material Facts and Plaintiff's Responses, “DSF”)); plaintiff's statement of material facts and defendants' responses (Doc. No. 95-2 (Plaintiff's Statement of Material Facts and Defendants' Responses, “PSF”)); the exhibits cited by each statement, including and particularly the video recording from the body camera worn by officer Olson capturing the shooting of plaintiff (See Pl.'s Ex. (“PX”) 9 (Body Camera Footage of Officer Ryan Olson, “Body Camera”));[2] and filings on the docket in this action. To the extent either party has objected on evidentiary grounds to the opposing party's materials, the court has relied on such materials only to the extent they are relevant and admissible.
The court notes that defendants were previously found to have spoliated prejudicial evidence and that plaintiff has requested the imposition of sanctions in that regard. (Doc. Nos. 44, 57.) As relevant here, the assigned magistrate judge concluded as follows: after plaintiff filed a citizen's complaint and this lawsuit, defendant Ramar resigned from the MPD. (Doc. No. 57 at 24-26.) At that time, defendants erased all contents of Ramar's MPD-issued cell phone even though they knew or should have known of the need to preserve that evidence. (Id. at 26-27.) The magistrate judge, who reviewed defendants' conduct both after this lawsuit was filed and then after plaintiff made discovery requests for electronically stored information, concluded that a presumption of prejudice was appropriate and left to the assigned district judge to decide the appropriate sanctions to be imposed. (Id. at 22-27.) The court finds that it can resolve defendants' pending motion without determining the appropriate sanctions to be imposed against defendants at this time.
Defendant Ramar and officer Olson were employed by the MPD on the day of the shooting, November 6, 2017. That day, they received a dispatch to be on the lookout for a suspect-plaintiff-who was reportedly “wanted for a 417 on a TPD officer'[3] and potentially ‘armed and dangerous.'” (PSF at ¶ 2.)[4] The officers were informed that plaintiff was in a black Infiniti G35 vehicle at a Bank of America parking lot. (DSF at ¶ 17.) When the two officers arrived there by motorcycle, they parked well behind plaintiff's vehicle. (Body Camera 17:45:19-20.) Plaintiff was alone in the front seat of the car. (DSF at ¶ 22.) Olson activated his body camera, but Ramar, in violation of MPD policy, did not. (Id. at ¶ 27.)
Once defendant Ramar and officer Olson met at the parking lot, Ramar got off his motorcycle, drew his firearm, and jogged to plaintiff's car. (Body Camera 17:45:21-26.) As he approached the driver's-side window, Ramar yelled, (Id. at 17:45:27-30.) Plaintiff was in the driver's seat, with his left hand pressing a button to roll up his window and his right hand on the steering wheel, which was visible to both officers. (PSF at ¶¶ 11, 12.) Within one second of issuing his directive, Ramar shot twice into plaintiff's car (“first volley”). (Body Camera at 17:45:30.) The first volley hit plaintiff and shattered his car window. (PSF at ¶ 14.)
After the first volley, plaintiff's car traveled “several yards” in reverse, hit an island within the parking lot, and came to a stop. (DSF ¶ 38; Body Camera 17:45:30-36.) Neither defendant was in the car's path when it moved in reverse, since they were both to the car's side. (Id.) According to plaintiff, the first volley “disabled” him “and caused him involuntarily to depress the vehicle's gas pedal.” (PSF at ¶ 16.)[5] This appears to be some degree of supposition; plaintiff testified at his deposition that he did not remember putting the car in reverse because he does not remember much after he pulled into the parking lot. (Defs.' Ex. (“DX”) G, 138:6-8, 139:1-2.)
The officers moved again toward the car. Officer Olson and defendant Ramar positioned themselves next to plaintiff's broken driver-side window. Ramar was positioned in front of the window such that he would have been able to see at least part of the front of plaintiff's body. Olson, and thus his body camera, was positioned slightly behind the door and could see less of plaintiff's body. (Id. 17:45:30-38.) Ramar then shouted “let me see your hands!” twice. (Id. 17:45:36-38.) It is undisputed that plaintiff then raised his right hand, “which was visibly empty.” (PSF at ¶ 17.) Plaintiff, who had just been shot, did not raise his left hand. (Body Camera 17:45:36-43.) Within two seconds of shouting his order, Ramar shot plaintiff again (“second volley”). (Id.) Ramar did not warn plaintiff before firing the second volley.
Immediately after Ramar shot the second volley, plaintiff's body slumped to the right. (PSF at ¶ 21.) Defendant Ramar then yelled, (Id. at ¶ 22.) Plaintiff's left shoulder visibly twitched but he did not turn or show his hands. (Body Camera 17:45:43-49.) Ramar then shot plaintiff again without warning (“third volley”). (Id.) It is undisputed that plaintiff sustained a total of six gunshot wounds, including to his jaw, chest, and left arm. (PSF at ¶ 26.)
After Ramar fired the six shots, the officers stood next to plaintiff's window and pointed their firearms at him for approximately one minute. (PSF ¶ 34; DSF ¶ 44.) After additional officers arrived at the scene, officer Olson removed plaintiff from the vehicle. (PSF ¶ 42.) Plaintiff went face down onto the cement upon being removed from the car. (Body Camera 17:48:10-16.) Defendants argue he was “guided” down, and plaintiff argues his body “struck” the ground. (PSF at ¶¶ 42-43.) Based on the court's review of the video, viewing the facts in the required light, when plaintiff's body was pulled out of the car, much of his body hit the ground with force, and his head was lowered more slowly. (Body Camera 17:48:10-16.)
On November 7, 2017, defendant Ramar was interviewed by MPD's Investigative Services Division (“ISD”). (Id. at ¶ 51.) In that interview Ramar stated that: (1) he believed that he saw a gun when plaintiff rolled up his window, and he had fired the first volley of shots when plaintiff “was still reversing” his vehicle; (2) Romar believed that he saw plaintiff “reaching towards his feet or towards the floorboard” before firing the second volley of shots; and (3) he believed that he saw “a movement like [plaintiff] was going down even further” before firing the third volley. (PSF at ¶ 52.)
MPD maintains a use-of-force policy. (DSF ¶ 52; DX A § 300.1 et seq.; PSF at ¶ 28.) The parties dispute whether Ramar's use of force violated MPD policies. (PSF at ¶ 29.) However, it is undisputed by the parties that Chief Carroll “is a policy making official on behalf of” MPD. (Id. at ¶ 53.) On December 20, 2017, Carroll approved of defendant Ramar's 2017 performance evaluation, which concluded that Ramar's overall performance “Meets Expectations, ” although at least two pages were missing from that evaluation and thus it is unclear if the shooting of plaintiff was considered in evaluating Ramar's performance. (Id. at ¶ 54.) Plaintiff asserts that the failure to maintain a complete performance evaluation for Ramar violates MPD policy which requires evaluations to be “kept on file.” (Id. at ¶ 55.)
On July 31, 2018, MPD Internal Affairs (“IA”) issued a report regarding Ramar's shooting of plaintiff. (Id. at ¶ 57; see also DX K (Declaration of Lieutenant Aaron Tait (“Tait Decl.”).) On December 17, 2018, MPD convened a “Shooting Review Board, ” of which Chief Carroll was a member, to review the shooting. (PSF at ¶ 58.) The Shooting Review Board concluded as follows: (1) defendant Ramar “reasonably feared that [plaintiff] posed a threat of serious bodily harm or death” and (2) Ramar “fired his handgun to defend himself from a perceived immediate...
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