Singh v. City of Phx.

• Decision Date: 23 February 2023
• Docket Number: CV-21-00099-PHX-JJT
• Parties: Krish Singh, Plaintiff, v. City of Phoenix, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Krish Singh, Plaintiff, v. City of Phoenix, et al., Defendants.

No. CV-21-00099-PHX-JJT

United States District Court, D. Arizona

February 23, 2023

ORDER

HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE.

At issue are two motions filed by Defendants, the City of Phoenix (“the City”) and Phoenix Police Department Officers Brittany Smith-Petersen and Annie Batway (“the Officers”). The first motion at issue is Defendants' Motion for Summary Judgment (Doc. 52 “MSJ”), to which Plaintiff Krish Singh filed a Response in opposition (Doc. 68, “Resp.”), and Defendants filed a Reply in support (Doc. 72 “Reply”). The second motion at issue is Defendants' Partial Daubert Motion Re: Roger Clark (Doc. 46), to which Plaintiff filed a Response in opposition (Doc. 61), and Defendants filed a Reply in support (Doc. 67). The Court has reviewed the briefing and evidence submitted by the parties and finds these matters appropriate for resolution without oral argument. See LRCiv 7.2(f). For the reasons that follow, the Court grants Defendants' Motion for Summary Judgment only as to Plaintiff's claim under 42 U.S.C. § 1983, remands to the state court for resolution of the remaining state-law claims, and denies Defendants' Partial Daubert Motion without prejudice to refiling the same or similar motion in state court on remand. ...

I. BACKGROUND

This case involves an incident that took place on November 11, 2019, in which Officer Smith-Peterson shot Plaintiff during a relatively brief but tense encounter.

On the evening of November 11, Officers Smith-Petersen and Batway responded to reports of an attempted armed robbery at the Home Depot located at 43rd Avenue and Camelback Road in Phoenix. (Doc. 53, Defendants' Statement of Facts (“DSOF”) Ex. 1 at 29:6-9; Doc. 58, Plaintiff's Contravening Statement of Facts (“PSOF”), Ex. 3 at 41:6-9.) Prior to the Officers' arrival on the scene, dispatch relayed information from the caller who reported the attempted robbery. In an initial report, the caller stated that a man was trying to rob him with a knife. (DSOF Ex. 1 at 29:6-9.) In a subsequent report, the caller stated that the man was chasing him with a knife in a parking lot. (DSOF ¶ 2.) Officers Smith-Petersen and Batway arrived on the scene at the same time in separate patrol vehicles. (DSOF ¶ 3.) Upon arrival, they saw Plaintiff walking through the parking lot. (DSOF ¶ 4.)

The Officers pulled up on either side of Plaintiff, forming an L-shaped configuration around him. (DSOF Ex. 2 at 1:55; Ex. 3 at 3:35.)^[1] Officer Smith-Petersen told Plaintiff to stop and show both of his hands. (DSOF Ex. 2 at 1:50-55.) Plaintiff was holding a knife against his own throat. (DSOF ¶ 6; PSOF ¶ 6.) Officer Smith-Petersen exited the front driver's side of her patrol vehicle and told Plaintiff to “stay right there.” (DSOF Ex. 2 at 1:55-2:00.) She drew her handgun, aimed it at Plaintiff, and yelled, “If you come any closer, I'll fucking shoot you.” (DSOF Ex. 2 at 1:58-2:02.) She told Officer Batway to get out of the way. (DSOF Ex. 2 at 2:02-04.) She told Plaintiff to drop the knife. (DSOF Ex. 2 at 2:04-06.) In response, Plaintiff said something to the effect of, “What? I'm going to die anyway.” (DSOF Ex. 2 at 2:05-08.) For the remainder of the encounter, Plaintiff continued to make statements indicating that he wanted Officer Smith-Petersen to shoot him. (DSOF ¶ 14; PSOF ¶ 14.) However, Plaintiff did not make any verbal statements suggesting he intended to harm the Officers. (PSOF Ex. 3 at 47:3-5.)^[2]

Officer Smith-Petersen proceeded to move around the back of her vehicle while continuing to aim her gun at Plaintiff. (DSOF Ex. 2 at 2:05-14.) She stopped moving once she reached the passenger's side of the vehicle, such that the vehicle formed a barrier between Plaintiff and herself. (PSOF Ex. 3 at 31:24-32:13.) She told Plaintiff, “If you come any closer, I will kill you. Do you understand?” (DSOF Ex. 2 at 2:11-14.) She told him to “put the gun down.” (DSOF Ex. 2 at 2:14-15.) Plaintiff corrected her that it was a knife, which she acknowledged. (DSOF Ex. 2 at 2:15-19.) She told him to put the knife down. (DSOF Ex. 2 at 2:18-19.) He asked why. (DSOF Ex. 2 at 2:19-20.) She responded, “We can talk, I just can't talk to you when you have a knife in your hand. My guy, I can't talk to you like this. You need to make it safe for me and you.” (DSOF Ex. 2 at 2:22-53.) He said something to the effect of, “I'm making it safe for you already.” (DSOF Ex. 2 at 2:32-35.) She disagreed: “While you have a knife in your hand, neither one of us is safe, OK? So just drop it and we will talk.” (DSOF Ex. 2 at 2:35-42.) Plaintiff did not comply and continued to hold the knife against his own throat. (DSOF Ex. 2 at 2:10-4:06.)

By this time, Officer Batway had moved closer to Officer Smith-Petersen but maintained some distance. (DSOF Ex. 3 at 4:08-11.) She had her gun aimed at Plaintiff. (DSOF Ex. 3 at 4:13.) Officer Batway told Plaintiff they just wanted to help. (DSOF Ex. 3 at 4:22-38.) He said something to the effect that he did not want any help. (DSOF at 3 2:50-55.) He appeared to shuffle and the Officers told him to stop. (DSOF Ex. 2 at 2:55-57; DSOF Ex. 3 at 4:26-29.) He said that everyone in his family thinks he's crazy. (DSOF Ex. 3 at 4:35-38.) Officer Batway told him they did not think he was crazy. (DSOF Ex. 3 at 4:39-41.) Officer Smith-Petersen added, “We don't. But you need to understand.” (DSOF Ex. 2 at 3:09-19.) Plaintiff moved forward and stopped. (DSOF Ex. 2 at 3:10-15.) Officer Smith-Petersen said, “Hey, one more step towards me.” (DSOF Ex. 2 at 3:15-19.)

Plaintiff told her to shoot him and pointed to his head. (DSOF Ex. 2 at 3:16-18.) She told him she did not want to shoot him. (DSOF Ex. 2 at 3:18-20.) He again told her to shoot him, saying it was “all good.” (DSOF Ex. 2 at 3:27-30.) She said, “No, it's not. You want that on me? You want to put that on my conscience-that I have to shoot you?” (DSOF Ex. 3:30-36.) He responded, “It's all good.” (DSOF Ex. 2 at 3:34-36.) She told Officer Batway, “If he takes one more steps towards us...” (DSOF Ex. 2 at 3:40-42.)

Plaintiff continued to tell the officers he wanted them to shoot him; they continued to tell him they did not want to do so and tried to calm him down. (DSOF Ex. 2 at 3:194:01.) For the majority of the interaction, Plaintiff was facing Officer Smith-Petersen. (DSOF Ex. 2 at 2:05-400.) Her patrol vehicle was between them. (DSOF Ex. 2 at 2:05.)

Approximately two minutes into the interaction, Plaintiff slowly began to move around the front passenger's side corner of the patrol vehicle, toward Officer Smith-Petersen. (DSOF Ex. 2 at 4:01-04.) He said something to effect of, “I want to get shot.” (DSOF Ex. 2 at 4:02-04.) Officer Smith-Petersen told him to stop. (DSOF Ex. 2 at 4:0405.) He told her, “Go ahead ma'am.” (DSOF Ex. 2 at 4:06-07.) Both Officers again told him to stop. (DSOF Ex. 2 at 4:04-10.) He continued to slowly move toward her. (DSOF Ex. 2 at 4:06-09.) Officer Smith-Petersen moved backwards in response. (DSOF Ex. 2 at 4:06-08; Ex. 3 at 75:9-15.) Plaintiff then appeared to stop next to the front passenger's side of the vehicle. (DSOF Ex. 2 at 4:07-09; DSOF Ex. 3 at 5:38-41.) Officer Smith-Peterson fired a single round, striking Plaintiff in the abdomen. (DSOF Ex. 2 at 4:08-10.)

Plaintiff fell to the ground and dropped the knife. (DSOF Ex. 2 at 4:08-12; DSOF Ex. 1 at 77:5-7.) Officer Smith-Petersen put out a radio call that an officer had been involved in a shooting. (DSOF Ex. 1 at 77:15-19.) She approached Plaintiff and kicked the knife out of his reach. (DSOF Ex. 1 at 77:25-78:3.) Within minutes, numerous other law enforcement officers arrived on the scene. (DSOF Ex. 3 at 6:50-9:10.)

Officers Smith-Petersen and Batway provided additional information about the shooting in deposition testimony. Officer Smith-Petersen testified that at the time she shot Plaintiff, she believed he posed a threat to herself, Officer Batway, and the public because he did not comply with their instructions to drop the knife and continued to advance forward. (PSOF Ex. 3 at 47:6-23, 67:6-14.) She believed that the situation was not “contained” because the parking lot was a “very open space” and “[a]t any point he could have turned around and ran.” (PSOF Ex. 1 at 39:19-41:3.) She confirmed that Plaintiff “did not make any specific sudden changes in movement to elicit me to fire my weapon sooner.” (PSOF Ex. 3 at 67:15-17.) She decided to shoot “because I no longer had my barrier as well as Officer Batway never had a barrier.” (PSOF Ex. 3 at 67:18-20.)

At the time of the shooting, both Officers carried on their person an “OC spray”- similar to pepper spray-and a taser. (PSOF Ex. 3 at 33:16-18; PSOF Ex. 4 at 19:23-25.) Officer Smith-Petersen testified that she did not believe it was safe to use a taser given the positions they were holding and the open parking lot, which presented “containment problems.” (DSOF Ex. 1 at 44:14-46:24.) Officer Batway testified that she did not feel it would be effective for her to use pepper spray or a taser given the distance between her and Plaintiff. (DSOF Ex. 4 at 22:15-25.) Prior to the shooting, Officer Batway had called for backup and knew additional units were on their way. (PSOF Ex. 4 at 27:17-21.) She testified she would have felt more comfortable if there had been more officers on the scene, which might have allowed them to use less lethal options. (PSOF Ex. 4 at 28:19-29:19.) Both Officers testified they might have been able to call for crisis-intervention units if there had been more time or additional officers. (PSOF Ex. 3 at 53:17-21; Ex. 4 at 42:20-43:20.)

Both Officers testified that they did not have any prior use of force issues. (DSOF Ex. 1 at 17:4-8; Ex. 4 at 4:19-5:3.)...