Willis v. City of Fresno, CASE NO. CV F 09-1766 LJO DLB

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLawrence J. O'Neill
PartiesCHRIS WILLIS, et al., Plaintiff, v. CITY OF FRESNO, et al., Defendants.
Docket NumberDoc. 73.,CASE NO. CV F 09-1766 LJO DLB
Decision Date12 July 2011

CHRIS WILLIS, et al., Plaintiff,
v.
CITY OF FRESNO, et al., Defendants.

CASE NO. CV F 09-1766 LJO DLB
Doc.
73.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: July 12, 2011


SUMMARY JUDGMENT DECISION

INTRODUCTION

Defendants City of Fresno ("City") and three of its peace officers seek summary judgment on plaintiffs' excessive force, Monell, and tort claims arising from the fatal shooting of Stephen Willis ("Stephen"). Plaintiffs argue that "facts remain in serious dispute" regarding the shooting to bar summary judgment on most claims. This Court considered defendants' summary judgment motion on the record without a hearing, pursuant to Local Rule 230(g).1 For the reasons discussed below, this Court GRANTS defendants summary judgment.

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BACKGROUND 2

Summary

During the early morning of March 28, 2009, Stephen, a 23-year-old trade school student, was fatally shot after defendant City police officers Greg Catton ("Officer Catton") and Daniel Astacio ("Officer Astacio") encountered Stephen who possessed a .38 caliber revolver ("revolver"). Plaintiffs Chris Willis ("Mr. Willis") and Mary Willis ("Ms. Willis") are Stephen's natural parents and pursue wrongful death, excessive force and inadequate training claims against the City, its police chief Jerry Dyer ("Chief Dyer"), and Officers Canton and Astacio (collectively "defendants"). Plaintiff Jennafer Uribe ("Ms. Uribe") was Stephen's live-in partner and present in the vicinity of Stephen's fatal shooting. Ms. Uribe has pursued assault, intentional infliction of emotional distress ("IIED"), and negligent training claims against defendants but has sought to dismiss them in exchange for a waiver of costs.3 Defendants appear to reject such offer.

Target Shooting

On March 27, 2009, Stephen used a six-shot revolver loaned by Mr. Willis for target shooting. Stephen transported the revolver in a holster within a black laptop computer bag. When Stephen departed from target shooting, no .38 caliber ammunition remained in the revolver. Several of Stephen's friends were unable to fire the revolver because Stephen was out of .38 caliber ammunition.

Dinner And Drinking

After target shooting, Stephen, Ms. Uribe and a friend had dinner at a restaurant during 5:30 to 7 p.m. Stephen and Ms. Uribe shared a quesadilla with rice and beans. Stephen consumed half of a Sierra Nevada beer, and Ms. Uribe consumed a margarita. Stephen and Ms. Uribe left the restaurant and purchased a bottle of tequila from a grocery store.

Stephen and Ms. Uribe returned to their apartment to prepare to meet friends at a night club.

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Stephen and Ms. Uribe consumed shots of tequila before leaving for the night club.

At the night club, a bouncer told Ms. Uribe that she had reached her limit and would be served no more alcohol. Stephen and Ms. Uribe decided to meet their friends at their apartment during the late evening, and Stephen drove them from the night club in his dark-colored Infiniti sedan. Ms. Uribe became nauseous from her drinking and asked Stephen to speed up.

Erratic Driving

At around that time, Officers Canton and Astacio and several other City Police Department ("Department") officers responded to a call regarding a possible gang disturbance near Stephen and Ms. Uribe's southeast Fresno apartment complex. Parked near the apartment complex' entrance were three or four marked Department vehicles, including Officer Astacio's vehicle with overhead lights illuminated. Officer Canton wore his Department uniform with a duty belt, metal badge on his left breast, and two white Department stars on each shoulder. Officer Astacio wore a Department Class C uniform with lo-bearing vest and white Department stars on his left chest and each shoulder, and "Police" on his back.

Stephen and Ms. Uribe's vehicle traveled past the officers and turned into the apartment complex. Officers perceived what they believed was a vehicle colliding with the entrance gate to the apartment complex. Officers heard an engine revving, screeching tires, and the striking of an unknown object. Officers Catton and Astacio walked into the apartment complex following the path of Stephen and Ms. Uribe's vehicle to investigate a hit and run and possible driving under the influence.

After Stephen parked the vehicle in front of their apartment unit, Ms. Uribe exited the vehicle and ran to the apartment unit's front door because she felt she would vomit. Ms. Uribe's mother did not answer her knock to allow her to enter the apartment unit.

Initial Encounter With Stephen

Officers Catton and Astacio observed Stephen stand at the rear of his vehicle which they believed had been involved in a hit and run or possible driving under the influence. Officers Catton and Astacio note that they identified themselves as police officers and asked to speak to Stephen. Officer Catton illuminated Stephen with his large flashlight, and Officer Astacio notes he was 20-25 feet from Stephen at that point. When Stephen turned to face Officers Catton and Astacio, they observed that Stephen held

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a firearm in a holster.

Officers Canton and Astacio note that they again identified themselves as police officers, drew their firearms, and commanded Stephen to drop his firearm. In his deposition, Officer Canton testified that "I reached for the gun when I saw the gun in the holster . . . it was see gun, grab my gun." Officer Astacio testified: "I think I simultaneously pulled out my firearm when I noticed that he was holding a firearm in the holster." Officers Catton and Astacio note that Stephen drew the firearm from its holster, pointed it in their direction, and ignored their commands to drop the gun.

Initial Firing On Stephen

In his deposition, Officer Astacio testified as to his initial firing on Stephen from ten feet away:

Q. So when you first were approaching him and you identified yourself as a police officer and he turned from the trunk you saw he was holding a holster with a gun in it, your first reaction was to yell "Drop the gun" and reach for your own gun?
A. Correct.
Q. And as you were doing that you saw him withdraw his gun from his holster and then point it at you in a straight arm position?
A. Correct.
Q. And that's when you fired at him?
A. Correct.
Q. Okay. He never got off a shot at you?
A. I remember seeing a muzzle flash at that time, but it was after I had already initially fired the first couple of rounds.

Officer Astacio also testified:

Q. What was it that caused you to fire first?
A. Just fearing for my safety because . . . the suspect had pulled out the firearm from a holster and it was pointed at us.
Q. So your memory is that he was actually pointing the firearm at you when you fired?
A. Yes.

Officer Catton testified:

Q. When you pulled your gun you were keeping your light on what you've called the subject and you were raising your own gun and you felt he was going to point his gun at you, correct?

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A. When I saw his gun, I drew my gun. As I was drawing my gun he reached for his gun, started to pull it out and started to extend towards me.
Q. And before he extended towards you you discharged your gun?
A. Before it was fully extended, yes, I did.

Officer Astacio initially fired three to five rounds at Stephen and recalled a muzzle flash from Stephen's firearm. Officer Astacio thought he had hit Stephen in his chest. Officer Catton claims he fired once or twice and does not know if he hit Stephen. Defense expert Vincent Di Maio, M.D. ("Dr. Di Maio"), testified that three bullets entered Stephen, including one in his neck area, but could not say "which ones occurred at the initial shooting."

Continued Firing On Stephen

Officer Catton claims that Stephen ran between his vehicle and a mini van while he continued to point his firearm toward Officer Canton. Officer Catton recalled seeing a muzzle flash from Stephen's firearm near the time Stephen started to run from his vehicle toward the mini van. Officer Canton continued to fire at Stephen until he lost visual contact.

Officer Catton backed up between Chevrolet and Pontiac vehicles and observed Stephen crouched behind the nearby mini van "pointing his gun at me." Officer Catton believed Stephen prepared to fire on Officer Astacio or him and that "there was a muzzle flash." Officer Catton fired upon Stephen in that Stephen still pointed a gun at Officer Catton.

Officer Astacio's version of events at that this point differs. After the "first burst of rounds," Officer Astacio suspected Stephen "had been hit," "was falling on the ground," but did not know "if he was going to stay on the ground." Officer Astacio testified that after Stephen...

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