Warren v. Marcus

• Decision Date: 29 January 2015
• Docket Number: No. C–13–04464 DMR,C–13–04464 DMR
• Citation: 78 F.Supp.3d 1228
• Parties: Alexander Warren, Plaintiff, v. George Marcus, Defendant.
• Court: U.S. District Court — Northern District of California

78 F.Supp.3d 1228

Alexander Warren, Plaintiff

v.George Marcus, Defendant.

No. C–13–04464 DMR

United States District Court, N.D. California.

Signed January 29, 2015

John L. Burris, Adante Pointer, Law Offices of John L. Burris, Oakland, CA, for Plaintiff.

Dale L. Allen, Jr., Kevin Patrick Allen, Allen Glaessner & Werth LLP, San Francisco, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

DONNA M. RYU, United States Magistrate Judge

This case arises out of the December 21, 2011 shooting of Plaintiff Alexander Warren by Richmond Police Officer George Marcus. Plaintiff, who survived the shooting, filed a civil rights action under 42 U.S.C. § 1983 against Defendant Marcus in his personal and official capacities asserting various constitutional violations and related state law statutory and tort claims. Before the court is Defendant's motion for summary judgment. [Docket No. 41.] The court conducted a hearing on January 22, 2015 at which the parties were represented by counsel. For the following reasons, Defendant's motion is granted in part and denied in part.

I. Background

On December 21, 2011, the Richmond Police Department (“RPD”) received a call regarding “second hand reports” of “a man with a gun” at the Extended Stay Inn on Garrity Way in Richmond, California. A few seconds later dispatch reported that the suspect was an “ex guest that was kicked off the property,” and described the suspect as a “BM [black male], teens” with an “unk[nown] name.” Police officers were immediately dispatched to the scene. Several minutes after the original call, dispatch reported that “PR says his crew member saw the gun.”

After the first unit of police officers arrived on scene, an officer named Sanchez began to provide updates over police radio. He radioed dispatch that the suspect, later identified as Plaintiff, was a six feet tall, 200 pound black male with short hair wearing all black clothing, and that the suspect was running along the south side of the Extended Stay Inn toward the neighboring Courtyard Marriott Hotel (“Marriott”). Sanchez subsequently radioed that the suspect was wearing red shoes and “was holding the right side of his waist band,” and that a security guard saw the suspect run into the Marriott.

Defendant Marcus was at the police station when he heard the initial report that there was a man with a gun at the Extended Stay Inn. He heard subsequent reports on the radio while en route to the scene, including the description of the suspect as a six feet tall 200 pound black male with short hair wearing all black clothing and red shoes. According to Defendant, he heard a radio report that the suspect was “reaching for the right side of his waistband,” and that based on his training and experience, “suspects tend to hold weapons in their waistband [sic].” (Marcus Decl. ¶¶ 6, 7.)

Defendant arrived on scene and parked his patrol car at the intersection of Hilltop Drive and Blume Drive, at the southwest corner of the rear of the Marriott, turning off his siren but leaving his emergency lights on. After working with other officers to block traffic on Blume Drive, Defendant loaded his shotgun with buckshot and set up his weapon on the driver's side of his patrol car with the engine and the front of the car providing cover and concealment. According to Defendant, he “believed that [his] assignment was to contain an armed suspect with a handgun,” and that under the circumstances the shotgun was “the best tool to potentially engage a suspect.” (Marcus Decl. ¶ 12.) Officers Andrew Barbara and Ramon Middleton and an officer named Avila were near Defendant as they monitored the scene. Barbara testified that he took cover behind the driver's side door of his own patrol car and that Middleton's position was next to the passenger side of Barbara's car. According to Defendant, Middleton and Barbara were 20 and 40 feet to Defendant's right, respectively, and Avila was 75 feet north of Defendant with a canine in the bushes.

Defendant had participated in trainings at the Marriott and knew the general layout of the building. From his position, he saw several exits from the hotel, including metal doors in the back of the building, directly in front of him, which looked like a maintenance exit. At some point after taking his position, Defendant heard a report on the radio that the suspect was “exiting through the back door.” He heard a loud noise, which he described as a “bang” or a “boom,” which he interpreted to be a door opening. The officers then saw Plaintiff running or moving quickly toward them and then slowing to a jog along a pathway adjacent to the hotel pool area. Defendant looked at Plaintiff and determined that he fit the suspect's description, including wearing red shoes. Plaintiff was initially unaware of the officers; however, shortly after exiting the Marriott, he realized there were several police officers yelling “freeze don't move. Get down. Get down.”

The parties dispute Plaintiff's actions in the approximately 15 to 20 seconds between the officers first spotting Plaintiff and Defendant shooting him. According to Plaintiff, he stopped as soon as he heard the officers yelling and put his hands above his head “[s]howing [the officers] that [he] wasn't a threat to them.” Although he had been holding his cell phone or cell phone charger when he came out of the hotel, Plaintiff testified that his hands were empty when he put them above his head and that he was “wiggling [his] fingers to show that [he] didn't have anything in [his] hands.” (Warren Dep. 45, 49.) Plaintiff then began to slowly lower himself to the ground on his knees while holding his hands up. When he was on his knees, he heard the officers continue to say “get down” and thought they were asking him to move further down on the ground. He then started to lie down on his stomach, stretching his hands up and out, and once he was on his stomach he tried to look toward the officers so that he could obey their commands. According to Plaintiff, he was trying to move as slowly as he could. Plaintiff testified that he was shot while he was lying on his stomach on the ground, although his chest was not on the ground as he was “moving and stretching [towards the sky] to show that [he] wasn't a threat towards where [he] was hearing the voices.” (Warren Dep. 57.) Plaintiff testified that he never put either one of his hands near his waist as he was getting on the ground, nor did he put either hand down to steady himself as he moved from a standing position to his knees and then to his stomach. He also never put his hands down near his shirt or stomach. According to Plaintiff, his hands were always up and visible to the officers. After he was shot, he heard someone say “Where's the gun? Where's the gun?” and he responded “I don't have a gun. There is no gun. What are you talking about?” (Warren Dep. 71.) Plaintiff then heard someone say “Let the nigger bleed.” (Warren Dep. 71.) The officers did not find a gun on or near Plaintiff.

Defendant disputes Plaintiff's account, contending that Plaintiff refused to comply with the officers' commands. Defendant states that he and Officers Barbara and Middleton yelled at Plaintiff to show his hands, and while Plaintiff slowed his pace to a walk, he “continued to advance” on the officers. (Marcus Decl. ¶¶ 23, 24.) Plaintiff put his hands up but would not keep them up, and Defendant saw that he had earphones in his hands. Defendant told him to get on the ground and gave continuous commands for Plaintiff to comply. According to Defendant, “it looked like [Plaintiff] was thinking about what he [was] going to do,” but “he did not respond to [the officers'] commands.” (Marcus Decl. ¶ 26.) Defendant also states that Plaintiff's “facial expression told [Defendant] that he saw [the officers] and told [Defendant] that ‘damn, I've been caught, but I am not going to go easy.’ ” (Marcus Decl. ¶ 27.) Defendant testified that Plaintiff “turned and started to crouch down, as if pretending like he was going to get down, and then he just made a real quick furtive movement, lifted his shirt up, turned, and [Defendant] saw something shiny, and that's when [Defendant] pulled the trigger.” (Marcus Dep. 66–67.) In a declaration submitted with this motion, Defendant states that Plaintiff “started to check his shirt,” and suddenly “twisted his body away” from Defendant, “exposing his left side and reached towards the right side of his waistband.” (Marcus Decl. ¶ 28.) As Plaintiff “did this, he pulled up his shirt and [Defendant] saw him grab something.” (Marcus Decl. ¶ 28.) Defendant next saw Plaintiff “come up with something silver which looked to [Defendant] like a gun from [his] training and experience,” so Defendant fired at him with his shotgun. (Marcus Decl. ¶ 29.) At the time he shot Plaintiff, Defendant had a clear and unobstructed view of Plaintiff but was unable to see Plaintiff's hands. (Marcus Dep. 73.) Defendant testified that Plaintiff never went down to his knees prior to being shot. (Marcus Dep. 67.) He estimates that Plaintiff was 160–168 feet away when he fired. (Marcus Dep. 42.)

From his position Officer Barbara could see Plaintiff's left side and part of the front of his body. He could not see the right side of his body. Barbara saw Plaintiff lowering himself to the ground on his knees, describing his actions as “kind of like a one-handed pushup.” (Barbara Dep. 27, 28.) After Plaintiff got on his knees, Barbara saw him going further down to the ground in a prone position with his left hand in the air. Although Barbara could not see his right hand he assumed it was touching the ground as Plaintiff lowered his body down. Barbara did not see Plaintiff throw anything to the ground nor did he ever see Plaintiff with anything in his hands during the incident. Barbara described Plaintiff's position at the moment he was shot as follows: “I believe he had his left hand forward and his right hand, I...