Xiong v. City of Merced, Case No. 1:13-cv-00083-SKO

• Decision Date: 29 July 2015
• Docket Number: Case No. 1:13-cv-00083-SKO,C/w No. 1:13-cv-00111-SKO
• Parties: KONG MENG XIONG, and LUH XIONG, Plaintiffs, v. CITY OF MERCED, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

KONG MENG XIONG, and LUH XIONG, Plaintiffs, v. CITY OF MERCED, et al., Defendants.

Case No. 1:13-cv-00083-SKO

C/w No. 1:13-cv-00111-SKO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

July 29, 2015

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(Doc. No. 45)

I. INTRODUCTION

This action, Kong Xiong v. City of Merced, et al., 1:13-cv-00083-SKO, was filed by Kong Meng Xiong ("Kong") on January 17, 2013. (Doc. 1.) The case was deemed related to a second civil action filed by Luh Xiong ("Lull") on January 23, 2013, captioned Luh Xiong v. City of Merced, et al.("Luh Xiong"), 1:13-cv-00111-SKO, and the two cases were consolidated under the lead case No. 1:13-cv-00083-SKO (collectively Kong and Luh are referred to as "Plaintiffs").¹ Defendants City of Merced, Officer Chavez ("Chavez"), Officer Lodwick ("Lodwick"), Sergeant Court ("Court"), and Detective Deliman ("Deliman") (collectively, "Defendants") filed a motion for summary judgment, Plaintiffs each filed an opposition brief, and Defendants filed reply briefs to each of the opposition briefs filed by Plaintiffs.

On July 17, 2015, Defendants filed a letter brief indicating they discovered an incident-related Force Review Board report, which was being transmitted to Kong and Luh's counsel. The Court continued the July 22, 2015, hearing to July 29, 2015, to provide Plaintiffs time to review the document and respond. Plaintiffs filed a response indicating they had reviewed the document and determined it was not relevant to their opposition to Defendants' motion. Upon review of the parties' papers and supporting documents and material, the matter was deemed suitable for decision without oral argument, and the hearing set for July 29, 2015, was vacated.

For the reasons set forth below, Defendants' motion for summary judgment is GRANTED in part and DENIED in part.

II. FACTUAL BACKGROUND²

A. Report of Incident and Officers Dispatched to 1594 Buckingham Court³

In the evening of December 3, 2011, Merced Police Officer Chavez and Merced Police Officer Lodwick were each separately on patrol. (Docs. 63, 64 DUMF 1, 5.) Each was dispatched to a call: Chavez was told there was an Asian adult male displaying a gun at a residence at 1594 Buckingham Court and to respond to a call for Penal Code § 417; Lodwick was told there was an Asian adult male exhibiting a firearm at a party. (Docs. 63, 64, DUMF 2, 3, 6.)⁴ According to Lodwick, the Asian male was yelling at everyone at the party while exhibiting a firearm. (Docs. 63, 64, DUMF 7.)⁵ There is a recording of the radio traffic between dispatch and the officers.The parties dispute Defendants' characterization of the dispatcher's statement that the adult male was "pointing a gun," which is discussed below.

Both officers responded to the call, and did not speak to each other as they responded. (Docs. 63, 64, DUMF 8.) Upon arriving at the location, Chavez parked his patrol car on Nottingham Lane and Lodwick parked behind him. (Docs. 63, 64, DUMF 9, 10.) Both officers exited their vehicles, approached 1594 Buckingham Court,⁶ and had a conversation to confirm the house address. (Docs. 63, 64, DUMF 11, 12.)

B. Officers' Approach to 1594 Buckingham Court

As the officers approached 1594 Buckingham Court, Chavez heard voices coming from the house, and an argument had been going on.⁷ (DUMF 13.) Chavez took cover behind a pickup truck located at the house next door (DUMF 14), and Lodwick was on Chavez' right and walked alongside the house when a motion light came on.⁸ Lodwick then joined Chavez behind the truck. (DUMF 15.) Lodwick also heard an argument.⁹

C. Officers Confront Kong

1. Officers' Version

While looking at the house, Chavez heard a gun slide - i.e., the racking of a handgun. (Doc. 46-1, Chavez Depo., 64:20, 65:7, 67:24-68:4.) He thought a bullet was being chambered in a gun, and determined the sound had come from the vicinity of the house. (Doc. 46-1, Chavez Depo., 66:22-24, 153:5-8.) To Chavez, the sound was like a semi-automatic gun. (Doc. 46-1,Chavez Depo., 66:10.) Lodwick also heard the sound - he heard a gun slide and believed a bullet was being chambered. (Doc. 46-3, Lodwick Depo., 66:6-13.) Lodwick then pulled out his handgun, in the "low-ready" position and asked Chavez if he'd heard that; Chavez said yes. (Doc. 46-1, Chavez Depo., 66:25-67:11, Doc. 46-3, Lodwick Depo., 66:14-25.) Chavez pulled out his handgun. (Doc. 46-1, Chavez Depo., 81:3-15.)

Chavez attempted to call dispatch about the gun-racking sound, when Kong opened the gate from the backyard and walked to the front of the house, toward the street/sidewalk. (Doc. 46-1, Chavez Depo., 70:5-71:2, 71:13-72:4; Doc. 46, Ex. D, Incident Related Video ("Video"), 3:11-3:30.) Lodwick testified Kong appeared within 3 to 5 seconds of the "gun-slide" sound, and Kong emerged from the area where Chavez and Lodwick had heard the argument. (Doc. 46-3, Lodwick Depo., 59:7-12, 67:1-8; Doc. 46-1, Chavez Depo., 137:16-138:1.) Kong was wearing dark pants with a flannel jacket, either light gray-and-white or white-and-black. (Doc. 46-3, Lodwick Depo., 67:9-14.) Kong then stopped in front of the house, at which point a light was shone on Kong, and Chavez and Lodwick issued him verbal commands. (Doc. 46-1, Chavez Depo., 79:23-80:9, 84:21-85:2, 88:17-89:8; Doc. 46-3, Lodwick Depo., 70:7-11; Doc. 46, Exh. D, Video, 3:27-3:30.) Lodwick initially saw Kong's right-hand inside the waistband area of his jacket, but he could not actually see Kong's right hand. (Doc. 46-3, Lodwick Depo., 70:2-6.) Lodwick also observed Kong holding a gun in his right hand (Doc. 46-3, Lodwick Depo., 75:24-77:12), and Kong later corroborated the gun's existence by admitting to having a gun at the time the officers fired at him. (Doc. 46-5, Kong Depo. 69:2-7, 69:13-20, 69:24-70:3, 82:2-7.)

Kong's gun was pointed in the officers' direction, and the officers fired. (Doc. 46-1, Chavez Depo., 92:3-21, 129:9-12, 129:17-22; Doc. 46-3, Lodwick Depo., 77:13-15.) Kong fell to the ground, at which time Chavez knew Kong had been shot. (Doc. 46-1, Chavez Depo., 97:16-21, 142:11-14.) Chavez shot to incapacitate Kong and to stop the threat, but he was not shooting to kill. (Doc. 46-1, Chavez Depo., 153:24-154:5.) Both officers stopped firing when Kong fell to the ground. (Doc. 46-3, Lodwick Depo., 81:10-13; Doc. 46-1, Chavez Depo., 97:16-98:20.)

At the moment they fired at Kong, neither officer could see people behind the fence to the backyard. (Doc. 46-1, Chavez Depo., 121:17-20; Doc. 46-3, Lodwick Depo., 89:24-90:16.)While Chavez had reason to believe there were others on the property, he had no knowledge as to whether these people were inside or outside when he fired his weapon at Kong. (Doc. 46-1, Chavez Depo., 145:20-23.) When Lodwick fired his weapon, he was also not aware that people in the backyard were at risk of being hit by a bullet. (Doc. 46-3, Lodwick Depo., 82:24-83:3.)

After the shooting, Kong lay on the ground and continued to move, including his hands towards his waist. (Doc. 46-1, Chavez Depo., 98:12-20; 101:6-12.) The officers gave him commands, including putting his hands up. When Sergeant Court arrived on scene, he saw a gun lying next to Kong. (Doc. 46-10, Court Depo., 19:8-20:3; 22:7-20.) Court asked Chavez if he and Lodwick were okay, inquired as to who fired, and told them to keep giving Kong commands; the officers told Court that Kong had a gun, which Court observed. (Doc. 46-10, Court Depo., 19:8-20:3.) At that moment, however, Court did not believe the scene was secure as the gun was still on the ground by Kong, at least a dozen people were streaming out of the house, and only three officers were on the scene. (Doc. 46-10, Court Depo., 22:21-23:15, 24:1-18; 25:16-20.) First aid was rendered to Kong when it was safe to do so. (Doc. 46-10, Court Depo., 23:21-24:18.)

Court and the other officers moved Kong to a safe area near paramedics. (Doc. 46-10, Court Depo., 31:6-21; 58:8-17; Doc. 46-3, Lodwick Depo., 91:10-22.) Kong obtained first aid within 10 to 15 minutes of the incident. (Doc. 46-10, Court Depo., 27:13-20.) The officers acted to ensure Kong's medical care, despite that they were not operating in a secure area. (Doc. 46-10, Court Depo., 31:6-32:3.) In doing so, the officers exceeded Merced policy, which only states that first aid is to be rendered "to injured parties if it can be done safely." (Doc. 50, Trindad Decl., Exh. M.) Lieutenant McIntyre arrived on-scene when Kong was moved. (Doc. 46-10, Court Depo., 59:2-25.) Once Kong was moved, Chavez and Lodwick entered the backyard of 1594 Buckingham Court. (Doc. 46-1, Chavez Depo., 104:16-105:14.) The officers never entered the house. (Doc. 46-1, Chavez Depo., 104:16-105:14.) Upon exiting the backyard, Chavez walked to the street and back to Nottingham Street with Merced Police Officer Gonzalez. (Doc. 46-1, Chavez Depo., 105:18-106:12.) Lieutenant McIntyre asked both Chavez and Lodwick questions which constituted a public safety statement. (Doc. 46-1, Chavez Depo., 108:11-109:8, Doc. 46-3, Lodwick Depo., 30:3-20.)

Once most of the people had left the house, the SWAT team from Merced County Sheriff's Department took over searching and clearing the rest of the property. (Doc. 46-10, Court Depo., 45:3-13, 48:13-19, 50:7-22.)¹⁰

2. Plaintiffs' Version¹¹

While standing in front of 1594 Buckingham Court, Lodwick and Chavez both testified they heard a noise which they believed to be the racking of a semi-automatic handgun from the general area of the house. (Doc. 60-2, Chavez Depo., 70:5-15, 71:13-72:18; Doc. 60-3, Lodwick Depo., 65:10-66:13; Doc. 57-1, Chavez Depo.,¹² 66:22-68:22) (testifying sound came from the general area of the house). However, neither Luh nor Kong heard the noise or observed anyone racking a gun in the backyard, and the sound cannot be heard on the video of the incident. (Doc. 60, Exh. E, Video 23:03:08; Doc. 60-6, Kong Depo., 70:12-23; Doc. 60-15, Luh Decl., ¶ 5.) Lodwick asked Chavez: "You...