Sanders v. City of Fresno

• Decision Date: 03 April 2008
• Docket Number: No. CIV F 05-0469 AWI SMS.,CIV F 05-0469 AWI SMS.
• Citation: 551 F.Supp.2d 1149
• Parties: Lavette SANDERS, individually and as guardian ad litem for the estate of Michael Sanders, Plaintiff, v. The CITY OF FRESNO a municipality; the County of Fresno, a municipality; Taser International, Inc. a corporation doing business in California; Jerry Dyer, an individual; Richard Paul Brown, an individual, Eloy Escaraneo, an individual, Jesse Herring, an individual, Beau Burger, an individual, and Does 5 through 10, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

551 F.Supp.2d 1149

Lavette SANDERS, individually and as guardian ad litem for the estate of Michael Sanders, Plaintiff, v. The CITY OF FRESNO a municipality; the County of Fresno, a municipality; Taser International, Inc. a corporation doing business in California; Jerry Dyer, an individual; Richard Paul Brown, an individual, Eloy Escaraneo, an individual, Jesse Herring, an individual, Beau Burger, an individual, and Does 5 through 10, inclusive, Defendants.

No. CIV F 05-0469 AWI SMS.

United States District Court, E.D. California.

April 3, 2008.

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Waukeen Q. McCoy, Law Offices of Waukeen Q. McCoy, San Francisco, CA, for Plaintiff.

Bruce Daniel Praet, Ferguson Praet and Sherman, Santa Ana, CA, Holly Gibeaut, PHV, Taser International, Inc., Litigation Counsel, Scottsdale, AZ, Michael Brave, PHV, National Litigation Counsel, Eau Claire, WI, Mildred K. O'Linn, Manning Marder Kass Ellrod & Ramirez LLP, Los Angeles, CA, for Defendants.

ORDER ON DEFENDANTS THE CITY OF FRESNO, JERRY DYER, RICHARD PAUL BROWN, ELOY ESCARENO, JESSE HERRING and BEAU BURGER'S MOTION FOR SUMMARY JUDGMENT

ANTHONY W. ISHII, District Judge.

This is a wrongful death case arising from a police encounter in the home of Michael and Lavette Sanders. Michael Sanders ("Michael") died and his widow Lavette Sanders ("Lavette" or "Plaintiff) brought suit alleging a violation of 42 U.S.C. § 1983 and various state law causes of action. The Fresno Defendants, i.e. City of Fresno ("Fresno"), Fresno Police Chief Jerry Dyer ("Chief Dyer"), Fresno Police Officers Richard Brown ("Brown"), Eloy Escareno ("Escareno"),¹ Jesse Herring ("Herring"), and Beau Burger ("Burger"), move for summary judgment. Defendants's motion will be granted.

FACTUAL BACKGROUND²

On August 20, 2004, Michael Sanders became "real agitated," pulling out drawers and falsely accusing Lavette of having a boyfriend and not really being sick (Lavette has multiple sclerosis). See DUMF No. 4; Sanders Depo. at 51-52, 73. Michael Sanders was "strong" at 5'7" and 204 lbs. DUMF No. 3.³ When Lavette attempted to call Michael's mother to calm him, Michael grabbed the phone and called 911. DUMF No. 5. Michael told the 911 operator that someone was trying to kill him while Lavette pleaded, "Why did you do that?" DUMF No. 6.⁴ Responding Fresno officers were told of a possible "5150"⁵ tearing up the house, with a female crying in the background. See DUMF No. 7; Escareno Depo. at 99.

Upon arriving at the house, Herring testified that he heard yelling inside; Escareno testified that he did not hear screaming or crying and no officer told Escareno that they had heard crying. See Herring Depo. at 171; Escareno Depo. at 120-121. Once all officers had arrived (Herring, Escareno, Figueroa, Burger, and Brown),⁶ the officers entered the porch, Herring knocked on the front door several times, at some point announced "Fresno PD," and the door was eventually opened.⁷ See Herring Depo. at 173; Sanders Deposition at 55, 59. Herring had drawn his taser prior to knocking a third time. See Herring Depo. at 183. Herring and Escareno were the front two officers, and Figueroa, Burger, and Brown were behind. See Figueroa Depo. at 47-48.

When Lavette opened the door to the uniformed officers, Michael was naked and holding his arm around Lavette's torso from behind.⁸ See DUMF No. 8. Michael was dripping wet (he recently had come out of the shower). See Herring Depo. at 179; Sanders Depo. at 55. Escareno and Herring testified that Michael appeared to be sweating profusely. See Herring Depo. at 207; Escareno Depo. at 156. Michael told the officers that they were not the police, even though they were uniformed. See Sanders Depo. at 61. Michael had a "crazed" or "wide eyed" look about him and was looking "beyond the officers." See Escareno Depo. at 157; Herring at 179-180. Michael was behaving in a paranoid and irrational fashion. See Herring Depo. at 207; Figueroa Depo. at 63. Herring testified that Michael said that the officers were not going to take Lavette away from him, see Herring Depo. at 179-80, and Escareno and Figueroa testified that Sanders said that the officers were there to kill him. See Escareno Deposition at 157-158; Figueroa Depo. at 47. Based upon their observations of Michael and Lavette, the officers suspected Michael to be under the influence of some stimulant and that they were facing a domestic violence situation or worse. See DUMF No. 9;⁹ Herring Depo. at 179; Escareno Depo. at 156. Lavette held her stomach, was crying and visibly upset, and said nothing to the officers. See Herring Depo. at 207; Brown Depo. at 151.

Escareno had drawn his gun, but holstered the weapon because he could see both of Michael's hands, and told Michael that they were not there to hurt him. See Escareno Depo. at 160. The officers told Michael that they were there to help. See Sanders Depo. at 61. Escareno asked Michael to let Lavette go, held out his hand to Lavette, and asked Lavette to come with him. See Escareno Depo. at 158; Sanders Depo. at 64. Michael did not let Lavette go. See Sanders Depo. at 64. After officers asked Michael to "let [Lavette] go," Michael pulled Lavette back inside, causing them both to fall. DUMF No. 10. Lavette and Michael both fell on their backs.¹⁰ See Sanders Depo. at 73; Sanders Declaration at ¶ 6; see also Escareno Depo. at 171. Lavette testified that she fell on Michael, and Escareno testified that it looked like Lavette was on top of Michael. See Escareno Depo. at 171; Sanders Depo. at 73. The fall also caused a separation of approximately two feet. See Herring Depo. at 201, 249; see also Plaintiffs Opposition at 4; Supplemental Opposition at 5. Just prior to the fall and as Michael was pulling Lavette back in, Brown yelled for a Taser to be used.¹¹ See Brown Depo. at 161-162; see also Escareno Depo. at 170-171. Herring testified that he yelled at Michael to get down or words to that effect, see Herring Depo. at 204-205, although other officers testified that Michael was on his back. E.g., Escareno Depo. at 171. Herring's view of Michael was partially obscured by Lavette during the fall. See Herring Depo. at 201. Michael was yelling that the officers were not going to take Lavette away. See Herring Deposition, at 206. Fearing for the safety of Lavette and to prevent a potential hostage situation, officers rushed inside to take control of Michael and separate him from Lavette. See DUMF No. 11.¹²

Herring then fired his Taser at Michael and hit him in the upper body. See Herring Depo. at 206-207, 215. From the time Lavette opened the door to the time Herring fired his Taser, Herring estimated that about a minute passed. See Herring Depo. at 214. Prior to Herring deploying his Taser, Lavette looked back at Michael and did not see him grabbing for her. See Sanders Declaration at ¶ 6.¹³ Herring did not brandish the Taser by producing an electric "crackle" prior deploying it, nor did he tell Michael that he would be tazed if he did not comply.¹⁴ See Herring Depo. at 209, 212. Herring testified that he first fired his Taser to keep Michael and Lavette separated, not to overcome resistance or prevent escape. See Herring Depo. at 212-213. Herring also testified that he did not hear Brown request that a Taser be used. See Herring Depo. at 251. Herring shot Michael with the Taser and sent a five second cycle into him, but the Taser had no effect and Michael simply screamed.¹⁵ See Herring Depo. at 214, 220. Because the Taser cycle had no effect on Michael (other than the scream), Herring took between 20 and 30 seconds to reload the Taser with a new cartridge. See Herring Depo. at 218, 220.

Escareno had entered the house and grabbed for Lavette; Figueroa also entered the house and took Lavette to a side room away from Michael and the other officers. See Sanders Depo. at 76; Herring Depo. at 214-215; Escareno Depo. at 173-174. Lavette never observed any officer hit, kick, punch, or get on top of Michael. DUMF No. 13. From this point, Lavette did not see the struggle between the officers and Michael, but did hear the crackling of the Tasers. See Sanders Depo. at 77.

As Michael was falling backwards, Brown rushed inside the house and "tackled" Michael.¹⁶ See Brown Depo. at 165-167; Herring Depo. at 215. Brown struck Michael in the forearm and struggled with Michael on the floor. See Brown Depo. at 172-173. As they were struggling, they began sliding across the floor towards the kitchen.¹⁷ See Escareno Depo. at 182, 186; Herring Depo. at 222.

Burger also entered the house and attempted to control one of Michael's arms. See Herring Depo. at 217, 221. Burger told Michael to stop fighting. See Escareno Depo. at 182. Escareno also told Michael to calm down. See Escareno Depo. at 182-183. Burger and Escareno were trying to control Michael's arms. See Herring Depo. at 221.

While Burger, Escareno, and Brown were struggling with Michael and unable to control him, Herring fired his Taser a second time, hitting Michael in the left arm.¹⁸ See Herring Depo. at 218, 220-221. About 20 to 30 seconds elapsed between Herring firing his first and second Taser shots. See id. at 220. Herring sent two cycles through Michael during the second shot.¹⁹ See Herring Depo. at 224, 227. Again, the two Taser cycles had no effect on Michael, and Michael continued to struggle with the officers. See id. at 223-227.

Apparently as Herring sent cycles into Michael during the second Taser shot, Escareno drew his Taser and fired into Michael's stomach. See Escareno Depo. at 177-178; Plaintiffs Opposition at 5. Escareno sent one 5 second cycle into Michael. See id. at 178. However, Michael continued to struggle and slide on the floor. See id.

As Michael continued to struggle, he was beginning to sit up and Herring fired his third Taser shot into Michael's back. See Herring Depo. at 222. Herring...