Alfredo Santibanez v. City of Los Angeles et al, No. 2:2017cv04189 - Document 46 (C.D. Cal. 2018)
Court Description: ORDER DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT 27 by Judge Otis D. Wright, II: The Court DENIES Defendant Bunch's Motion for Summary Judgment. (lc). Modified on 9/6/2018 .(lc).
Download PDF
<![CDATA[
Alfredo Santibanez v. City of Los Angeles et al Doc. 46 O 1 2 3 4 5 6 7 8 United States District Court Central District of California 9 10 11 ALFREDO SANTIBANEZ, 12 Plaintiffs 13 Case No. 2:17-cv-04189-ODW-JCx ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY v. 14 CITY OF LOS ANGELES; OFFICER 15 DAVID BUNCH (#38552); and DOES 1 16 through 10, Inclusive, 17 Defendants. 18 I. JUDGMENT [27] INTRODUCTION 19 Plaintiff Alfredo Santibanez brought one cause of action against Defendants 20 City of Los Angeles, Officer David Bunch (#38552), and Does 1 through 10, for 21 excessive use of force in violation of his civil rights under 42 U.S.C. § 1983. (See 22 Compl. 7, ECF No. 1.) Defendant Bunch seeks summary judgment on the bases that 23 his use of force was objectively reasonable as a matter of law and he is entitled to 24 qualified immunity. (Def.’s Mot. for Sum. Judg. (“MSJ”) 2, ECF No. 27.) For the 25 reasons below, the Court DENIES Bunch’s Motion. 1 26 27 28 1 After carefully considering the papers filed in support of and in opposition to the Motions, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15. Dockets.Justia.com II. 1 FACTUAL BACKGROUND 2 On August 22, 2015, at approximately 11:30 p.m., Officers David Bunch and 3 Boyan Brkic were conducting “crime suppression” in the Hollenbeck area, near Soto 4 Street in an unmarked police vehicle. (Def.’s UMF2 1, 3; Pl.’s SUF 29.) Officer 5 Brkic observed Alfredo Santibanez jaywalking across Soto Street and slowed to avoid 6 him. (Def.’s UMF 3–4.) Officer Brkic stopped and exited the vehicle but remained 7 behind the ballistics door, so Santibanez did not see what he was wearing. (Def.’s 8 UMF 5; Pl.’s SUF 9, 36.) The officers knew nothing about Santibanez when they 9 came upon him, and he did not look familiar to them. (Pl.’s SUF 23.) At this point, 10 the parties’ facts diverge: Officer Brkic said something along the lines of “Hold on, I 11 want to talk to you” (Def.’s UMF 6) or “Are you strapped?” (Pl.’s SUF 10). Officer 12 Brkic saw the butt of a gun jutting from Santibanez’s jacket pocket (Def.’s UMF 10), 13 but Santibanez testified in deposition that he had no gun (Pl.’s SUF 11). Officer Brkic 14 said “gun” or something similar, and Bunch unholstered his weapon. (Def.’s UMF 15 10–11.) The parties agree that Officer Brkic did not draw his gun at that time. (Pl.’s 16 SUF 40.) At no time did the officers identify themselves verbally, though they wore 17 full dark-blue LAPD uniforms. (Def.’s UMF 2; Pl.’s SUF 31.) 18 Santibanez continued walking away and began to run, and Bunch pursued him. 19 (Def.’s UMF 8, 12–13.) Santibanez testified at deposition that he ran because “in this 20 area two guys with bald heads jumping out of the car is ‘no good.’” (Pl.’s SUF 14.) 21 The parties’ statements of fact do not indicate either officer commanding Santibanez 22 to stop running or drop a weapon.3 (See generally Def.’s UMF; Pl.’s SUF.) Again the 23 parties’ facts diverge: Officers Bunch and Brkic testified in deposition that they 24 observed Santibanez running, with a gun in his right hand, begin to turn his body to 25 26 27 28 2 As used herein, Defendant’s “Proposed Statement of Uncontroverted Material Facts” (“Def.’s UMF”), ECF No. 27-2; “Plaintiff’s Separate Statement of Uncontroverted Facts” (“Pl.’s SUF”), ECF No. 30. 3 Although neither parties’ statements of fact indicate either officer commanding Santibanez to stop or drop a weapon prior to Bunch firing, Bunch’s deposition testimony suggests Bunch may have said “Stop” at least once. (Smith Decl. Ex. B, Bunch Dep. 94:10, 96:2, 97:24, ECF No. 27-1.) 2 1 his right, toward Bunch (Def.’s UMF 15–17), but Santibanez testified that he never 2 turned his body as he ran (Pl.’s SUF 16). 3 Santibanez three times.4 (Def.’s UMF 18.) The bullets struck Santibanez’s left lower 4 leg, left upper arm, and right posterior hip. (Def.’s UMF 19; Hicks Decl. Ex. 4, ECF 5 No. 29.) Photographs of Santibanez’s injuries show that at least one bullet, if not all 6 three, struck him from behind. (Hicks Decl. Ex. 4.) The officers testified that they 7 observed Santibanez drop a gun from his right hand after he was shot. (Def.’s UMF 8 20.) A gun was later recovered near where Santibanez fell. (Def.’s UMF 26.) The 9 officers handcuffed Santibanez, called a rescue ambulance for treatment, and 10 ultimately arrested and charged him with being a convicted felon in possession of a 11 firearm. 12 Santibanez of all criminal charges against him. (Def.’s UMF 28, 29.) 13 (Def.’s UMF 23, 24, 27.) The parties agree that Bunch shot Following a criminal trial, a jury acquitted Santibanez then filed this lawsuit. (Def.’s UMF 30.) III. 14 LEGAL STANDARD 15 Summary judgment is appropriate when “the movant shows that there is no 16 genuine dispute as to any material fact and the movant is entitled to judgment as a 17 matter of law.” Fed. R. Civ. P. 56(a). Where the moving party’s version of events 18 differs from the nonmoving party’s version, courts must “view the facts and draw 19 reasonable inferences in the light most favorable” to the nonmoving party. Scott v. 20 Harris, 550 U.S. 372, 378 (2007) (internal quotation marks omitted). The moving 21 party bears the initial burden of establishing the absence of a genuine issue of material 22 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party 23 satisfies its burden, the nonmoving party “must do more than simply show that there is 24 some metaphysical doubt” about a material issue of fact. Matsushita Elec. Indus. Co., 25 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party 26 must go beyond the pleadings and identify specific facts that show a genuine issue for 27 28 4 Although not included in the parties’ statements of fact, Bunch testified in deposition that the entire encounter, from when he first saw Santibanez until he fired his gun, consumed only “about 15 seconds.” (Smith Decl. Ex. B, Bunch Dep. 124:15.) 3 1 trial. Id. at 587; Celotex, 477 U.S. at 323–24. Genuine disputes over facts that might 2 affect the outcome of the suit will properly preclude the entry of summary judgment. 3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1968). 4 A disputed fact is “material” where the resolution of that fact might affect the 5 outcome of the suit under the governing law, and the dispute is “genuine” where “the 6 evidence is such that a reasonable jury could return a verdict for the nonmoving 7 party.” Id. Conclusory or speculative testimony in affidavits is insufficient to raise 8 genuine issues of fact and defeat summary judgment. Thornhill’s Publ’g Co. v. GTE 9 Corp., 594 F.2d 730, 738 (9th Cir. 1979). Further, although the Court may not weigh 10 conflicting evidence or make credibility determinations, Anderson, 477 U.S. at 255, 11 more than a mere scintilla of contradictory evidence must exist to survive summary 12 judgment, Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A genuine 13 dispute of a material fact exists where there is sufficient evidence supporting the 14 claimed factual dispute, requiring a trier-of-fact to resolve the differing versions of the 15 truth. Anderson, 477 U.S. at 250. 16 Pursuant to the Local Rules, parties moving for summary judgment must file a 17 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should 18 set out “the material facts as to which the moving party contends there is no genuine 19 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 20 Genuine Disputes” setting forth all material facts as to which it contends there exists a 21 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that the material 22 facts as claimed and adequately supported by the moving party are admitted to exist 23 without controversy except to the extent that such material facts are (a) included in the 24 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 25 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. District courts have 26 broad discretion in interpreting and applying their local rules. See Cortez v. Skol, 27 776 F.3d 1046, 1050 n.3 (9th Cir. 2015); Miranda v. S. Pac. Transp. Co., 28 710 F.2d 516, 521 (9th Cir. 1983). 4 IV. 1 DISCUSSION 2 Santibanez sued Defendants for excessive use of force in violation of his civil 3 rights under 42 U.S.C. § 1983. (See Compl. 7, ECF No. 1.) Bunch seeks summary 4 judgment on the bases that his use of force was objectively reasonable as a matter of 5 law and that he is entitled to qualified immunity. (MSJ 2, ECF No. 27.) Bunch also 6 objects to Santibanez’s opposition evidence, which objections the Court addresses 7 first to the extent necessary for the purposes of this motion. 8 A. 9 Bunch objects to Santibanez’s Separate Statement of Uncontroverted Facts 10 Evidentiary Issues (“SUF”) and to Exhibits 4–7 submitted in support of his opposition. 11 “To survive summary judgment, a party does not necessarily have to produce 12 evidence in a form that would be admissible at trial, as long as the party satisfies the 13 requirements of Federal Rules of Civil Procedure 56.” Block v. City of Los Angeles, 14 253 F.3d 410, 418–19 (9th Cir. 2001) (citing Celotex, 477 U.S. at 324 (“We do not 15 mean that the nonmoving party must produce evidence in a form that would be 16 admissible 17 Fed. R. Civ. P. 56(c)(2) (providing for objections to evidence that “cannot be 18 presented in a form that would be admissible”) (emphasis added). At the summary 19 judgment stage, the focus is on the admissibility of the evidence’s content, rather than 20 its form. Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003). at trial in order to avoid summary judgment.”)); see also 21 Notably, “the Ninth Circuit long ago adopted ‘a general principle’ whereby it 22 ‘treat[s] the opposing party’s papers more indulgently than the moving party’s 23 papers.’” Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1121 (E.D. Cal. 24 2006) (quoting Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985)). This is 25 because “a non-movant in a summary judgment setting is not attempting to prove its 26 case, but instead seeks only to demonstrate that a question of fact remains for trial.” 27 Id. 28 5 1 First, Bunch objects to Santibanez’s SUF on the bases that (1) it does not 2 comply with the local rules as it is not concise and does not set forth any genuine 3 material facts to be tried, and (2) the facts are “unnecessary, wholly irrelevant (FRE 4 401 and 402), speculative, self-serving, lack foundation, hearsay, improper opinion 5 and violate FRE 701 and 702.” (Reply 1, ECF No. 31.) Bunch asks the Court to strike 6 Santibanez’s SUF, find the opposition defective, and grant Bunch’s motion on that 7 basis. (Reply 1.) 8 The Court declines to strike Santibanez’s SUF or find it wholly defective. 9 Santibanez’s SUF contains genuine material facts to be tried, many of which Bunch 10 disputes. Further, the SUF complies with Federal Rule of Civil Procedure 56(c). To 11 the extent the Court expressly considers Santibanez’s statements for the purposes of 12 this motion, the Court construes them in accordance with Local Rule 56 and overrules 13 Bunch’s objections. 14 Next, Bunch objects to the admissibility of Santibanez’s Exhibits 4–7 15 (4: photographs of Santibanez’s injuries; 5: LAPD DNA Report; 6: LAPD Fingerprint 16 Report; and 7: LAPD Gunshot Residue Report) on the bases that each exhibit is “[n]ot 17 relevant, hearsay, lacks foundation, FRE 701 and 702.” (Def.’s Obj. to Pl.’s Exs. 2, 18 ECF No. 33.) 19 Regarding Santibanez’s Exhibit 4 (also referred to by Santibanez as Exhibit 20 “D”), Santibanez’s attorney, Mr. Hicks, submitted these as “true and correct copies of 21 photographs of Santibanez’ [sic] injuries” via declaration. (Hicks Decl. ¶ 5.) The 22 location and direction of Santibanez’s injuries is relevant and probative, tending to 23 support resolution of the material disputed fact regarding whether Santibanez turned 24 his body as he ran.5 See Fed. R. Evid. 401. The photographs are not hearsay. United 25 States v. Lizarraga-Tirado, 789 F.3d 1107, 1109 (9th Cir. 2015). Neither party 26 contests their authenticity. 27 28 See Burch, 433 F. Supp. 2d at 1124 (“[B]ecause 5 Further, and despite his objections, Bunch relies on Exhibit 4 to dispute Santibanez’s material fact number 55 regarding the location of the bullet wounds, further demonstrating the photographs’ probative value. (See Def.’s Reply and Obj. to Pl.’s SUF 55, ECF No. 32.) 6 1 defendants do not actually dispute the authenticity of these documents, the court is 2 confident plaintiff would be able to authenticate them at trial, which is all that Rule 3 56(e) demands.”). With proper foundation, the photographs may be admissible at 4 trial. Alternatively, Santibanez may present proper testimony as to the location of his 5 injuries. Focusing on content rather than form, the Court finds it appropriate to 6 consider the photographs for purposes of summary judgment. As such, the Court 7 overrules Bunch’s objections to Santibanez’s Exhibit 4.6 8 B. 9 Bunch argues that his use of force was objectively reasonable as a matter of 10 11 Excessive Force law. The Court disagrees. Excessive use of force incident to a search or seizure is subject to the Fourth 12 Amendment’s objective reasonableness requirement. 13 490 U.S. 386, 395 (1989). Thus, excessive force claims will usually present jury 14 questions: “[w]here the objective reasonableness of an officer’s conduct turns on 15 disputed issues of material fact, it is a question of fact best resolved by a jury; only in 16 the absence of material disputes is it a pure question of law.” Torres v. City of 17 Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) (quoting Wilkins v. City of Oakland, 18 350 F.3d 949, 955 (9th Cir. 2003) and Scott, 550 U.S. at 381 n.8) (internal quotation 19 marks omitted). As such, “summary judgment or judgment as a matter of law in 20 excessive force cases should be granted sparingly.” Id. at 1125 (citing Santos v. Gates, 21 287 F.3d 846, 853 (9th Cir. 2002)). Graham v. Connor, 22 The Court assesses reasonableness by balancing the “nature and quality of the 23 intrusion on the individual’s Fourth Amendment interests against the countervailing 24 governmental interests at stake.” Graham, 490 U.S. at 396 (internal quotation marks 25 omitted). 26 27 28 6 In so doing, the Court holds only that the photographs are admissible for the purposes of summary judgment. Because the parties’ statements, depositions, and the photographs raise disputed material facts sufficient to defeat summary judgment, the Court need not reach Santibanez’s Exhibits 57 or Bunch’s related objections. 7 1 1. 2 “The intrusiveness of a seizure by means of deadly force is unmatched.” 3 Tennessee v. Garner, 471 U.S. 1, 9 (1985). It implicates the highest level of Fourth 4 Amendment interests. A. K. H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 5 1011 (9th Cir. 2016). The parties do not dispute the use of deadly force. So the issue 6 is whether the governmental interests justified it. Nature and Quality of the Intrusion 7 2. 8 “The ‘reasonableness’ of a particular use of force must be judged from the 9 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of 10 hindsight.” Graham, 490 U.S. at 396. Police officers are frequently called on to make 11 split-second judgments in circumstances that are rapidly evolving. Id. at 396–97. The 12 “question is whether the officers’ actions are ‘objectively reasonable’ in light of” the 13 totality of circumstances. Id. at 397. In Graham, the Supreme Court listed several 14 factors for courts to consider when evaluating an officer’s use of force. Id. at 396. 15 These include “the severity of the crime at issue, whether the suspect poses an 16 immediate threat to the safety of the officers or others, and whether he is actively 17 resisting arrest or attempting to evade arrest by flight.” Id. These factors are not 18 exclusive and other relevant factors, such as whether proper warnings were given, 19 may also be considered. See Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 20 2010); Doerl v. Rutherford, 272 F.3d 1272, 1283–84 (9th Cir. 2001). Government Interests at Stake Turning to the Graham factors, the parties do not dispute that the initiating 21 22 crime was jaywalking. The officers were conducting crime suppression, not 23 responding to a police call, when they came upon Santibanez crossing the street 24 outside designated signals. At the time they encountered him, they knew nothing 25 more than what they could perceive at that moment. Viewing the facts in the light 26 most favorable to Santibanez, he had no gun and no other crime had been committed. 27 Thus, the lack of severity of the crime of jaywalking weighs against use of deadly 28 force. 8 1 Regarding whether Santibanez was actively resisting arrest or attempting to 2 evade arrest by flight, even equating an arrest with an investigatory stop, the parties do 3 not dispute that the officers did not verbally identify themselves as police. The 4 officers wore full police uniforms, but Santibanez testified that he did not see what 5 they were wearing because they stood behind the vehicle doors. 6 statements of material fact do not indicate that the officers commanded him to stop or 7 drop a weapon as he ran away from them. And Officer Brkic’s statement is at least 8 “Are you strapped?” and at best unclear. The lack of verbal identification or any 9 command to drop a weapon make it reasonable to believe that Santibanez was not 10 The parties’ running to evade arrest. Thus, this factor also weighs against the use of deadly force. 11 The most important factor is whether Santibanez posed an immediate threat to 12 the safety of the officers or others. A.K.H., 837 F.3d at 1011; Bryan, 630 F.3d at 826. 13 Bunch argues that his use of deadly force was objectively reasonable because 14 Santibanez had begun to turn toward him with a gun as he ran away, posing an 15 immediate threat to Bunch and Brkic. (MSJ 5 (arguing that Bunch feared “for his life 16 and that of his partner” when he fired); Def.’s UMF 18.) 17 statement by an officer that he fears for his safety or the safety of others is not enough; 18 there must be objective factors to justify such a concern.” Doerle, 272 F.3d at 1281. 19 The disputed facts are such that a reasonable jury could conclude that Santibanez had 20 no gun and did not turn his body as he ran, and thus posed no immediate threat. 21 Additionally, Bunch escalated to deadly force very quickly, with no warnings that he 22 would shoot. See supra at 3 n.4. Viewing the evidence in the light most favorable to 23 Santibanez, this factor also weighs against the use of deadly force. Therefore, a 24 reasonable jury could find that Office Bunch’s use of deadly force was not objectively 25 reasonable. However, “a simple 26 Bunch’s reliance on Easley v. Riverside, 890 F.3d 851 (9th Cir. 2018) is 27 misplaced, as the circumstances differ critically. In Easley, the patrolling officers 28 began following a car with what appeared to be illegally-tinted windows after 9 1 recognizing the driver from a prior encounter. Id. at 854. Here, Bunch knew nothing 2 about Santibanez and had no prior context on which to rely. In Easley, when the car 3 began driving erratically, the officers activated the patrol car’s lights and sirens, 4 effectively informing Easley of police presence. Id. Here, the officers did not activate 5 the unmarked car’s lights or sirens, and neither officer identified himself verbally, 6 leaving a question as to whether Santibanez knew they were police. As in Easley, 7 Bunch was concerned about the presence of a gun. But in Easley, importantly, the 8 parties did not dispute that Easley had a gun or turned his body as he ran. Id. at 857. 9 The same cannot be said here. The disputed fact of whether Santibanez turned his 10 body as he ran informs the most important factor of the Graham analysis, the 11 perceived threat posed by the suspect. 12 Taking the evidence in the light most favorable to Santibanez, a reasonable jury 13 could conclude that Bunch’s use of deadly force was not objectively reasonable. 14 Consequently, genuine issues of material fact preclude summary judgment on 15 Santibanez’s excessive force claim against Bunch. 16 C. 17 Bunch also seeks summary judgment on the basis that he is entitled to qualified 18 Qualified Immunity immunity as a matter of law. He is not. 19 “The doctrine of qualified immunity insulates government agents against 20 personal liability for money damages for actions taken in good faith pursuant to their 21 discretionary authority.” Deorle, 272 F.3d at 1285. Qualified immunity requires a 22 two-pronged analysis: (1) “whether the facts that a plaintiff has alleged or shown 23 make out a violation of a constitutional right” and (2) “whether the right at issue was 24 clearly established at the time of defendant’s alleged misconduct.” 25 Callahan, 555 U.S. 223, 232 (2009) (internal citations and quotation marks omitted); 26 see also Saucier v. Katz, 533 U.S. 194, 201 (2001). 27 constitutional right “must be particularized to the facts of the case.” Davis v. United 28 States, 854 F.3d 594, 599 (9th Cir. 2017) (internal quotation marks omitted). “[T]he 10 Pearson v. A clearly established 1 focus is on whether the officer had fair notice” that his actions violated a 2 constitutional right and was unlawful. Kisela v. Hughes, 138 S. Ct. 1148, 1152 3 (2018). Where the constitutional right violated was clearly established, the officer 4 was on notice that his conduct was unreasonable, and he is not entitled to qualified 5 immunity. A.K.H., 837 F.3d at 1013. 6 A court may address either prong of the qualified immunity analysis first. 7 Pearson, 555 U.S. at 236. If the answer to either prong is no, the court need not 8 continue, as the officer is entitled to qualified immunity (either because he has 9 violated no constitutional right, or because the right was not clearly established at the 10 time). See Wilkins, 350 F.3d at 954–55. However, if the answer to either prong is yes, 11 a court must still consider the remaining prong. See A.K.H., 837 F.3d at 1013; Bryan, 12 630 F.3d at 832. To deny qualified immunity, the answer to both prongs must be yes, 13 that the officer violated a constitutional right which was clearly established at the 14 time. See Pearson, 555 U.S. at 232; Torres, 648 F.3d at 1123. 15 “[S]ummary judgment in favor of moving defendants is inappropriate where a 16 genuine issue of material fact prevents a determination of qualified immunity until 17 after trial on the merits.” Davis, 854 F.3d at 598 (quoting Liston v. City of Riverside, 18 120 F.3d 965, 975 (9th Cir. 1997)) (alterations in original). “Where the officer[‘s] 19 entitlement to qualified immunity depends on the resolution of disputed issues of fact 20 in their favor, and against the non-moving party, summary judgment is not 21 appropriate.” Wilkins, 350 F.3d at 956. 22 The first prong of the qualified immunity analysis “is not simply a reiteration of 23 the Graham test” applied above. Deorle, 272 F.3d at 1285. Rather, the question is 24 whether, in using excessive force, the officer made “reasonable mistakes as to the 25 legality of [his] actions.’” Saucier, 533 U.S. at 206. Every police officer should know 26 that it is objectively unreasonable to shoot an unarmed fleeing suspect who poses no 27 immediate threat. See Garner, 471 U.S. at 11 (“A police officer may not seize an 28 unarmed, nondangerous suspect by shooting him dead.”). The Court would have to 11 1 view the multiple disputed material facts in favor of Bunch, rather than Santibanez, to 2 find Bunch’s use of deadly force objectively reasonable in the circumstances. At the 3 least, the question of whether Bunch was reasonable to believe that Santibanez turned 4 back toward Bunch while running away, when in Santibanez’s version he did not turn, 5 is a question of fact best resolved by a jury. When viewed in the light most favorable 6 to Santibanez, as the Court must on summary judgment, a reasonable jury could find 7 Bunch’s use of deadly force not objectively reasonable and violative of Santibanez’s 8 Fourth Amendment right. The first prong must be answered in the affirmative: the 9 facts Santibanez has alleged or shown make out a violation of a constitutional right. 10 Looking to the second prong, at the time of the incident, case law had clearly 11 established that an officer may not use deadly force to apprehend a suspect where the 12 suspect poses no immediate threat to the officer or others. Garner, 471 U.S. at 11 13 (concluding deadly force permissible only where “the suspect threatens the officer 14 with a weapon or there is probable cause to believe that he has committed a crime 15 involving the infliction or threatened infliction of serious physical harm . . . .”); 16 Torres, 648 F.3d at 1128. Viewing the disputed facts in the light most favorable to 17 Santibanez, he had no gun, was running away, and did not turn his body as he ran. In 18 short, he posed no immediate threat. It was clearly established at the time of the 19 incident that use of deadly force was unlawful under those circumstances. The second 20 prong must also be answered in the affirmative. 21 22 As both prongs are answered in the affirmative, Bunch is not entitled to qualified immunity as a matter of law and summary judgment is not appropriate. 23 24 25 26 27 28 12 V. 1 2 3 CONCLUSION For the foregoing reasons, the Court DENIES Defendant Bunch’s Motion for Summary Judgment (ECF No. 27). 4 5 IT IS SO ORDERED. 6 7 September 6, 2018 8 9 10 11 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
