Frances Gallardo v. County of San Luis Obispo et al, No. 2:2018cv09835 - Document 50 (C.D. Cal. 2020)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT, 29 by Judge Dean D. Pregerson. See order for details. (shb)
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Frances Gallardo v. County of San Luis Obispo et al Doc. 50 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FRANCES GALLARDO, 12 Plaintiff, 13 14 v. COUNTY OF SAN LUIS OBISPO, ET AL., 15 Defendants. ) ) ) ) ) ) ) ) ) ) Case No. CV 18-09835 DDP (AFMx) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Dkt. 29] 16 17 18 On January 9, 2017, San Luis Obispo (SLO) County Senior Deputy 19 Sheriff Gregory Roach responded to a trespassing call involving 20 Decedent Josue Gallardo (“Gallardo”), who was reported to be 21 driving a gray Cadillac sedan. 22 16, 18.) 23 arrived, Roach did encounter a gray Cadillac sedan nearby, and 24 determined that the car was registered as a rental. 25 Roach also learned that Gallardo had an outstanding arrest warrant 26 for a misdemeanor domestic battery charge, was violating a 27 restraining order, was currently on probation for domestic battery, 28 and had consented to search as a condition of probation. (Declaration of Gregory Roach ¶¶ Although Gallardo had left the scene by the time Roach (Id. ¶ 23.) (Id. ¶ 21.) Dockets.Justia.com 1 Approximately two weeks later, in the early morning hours of 2 January 24, 2017, Roach and Deputy Sheriff Jonathan Calvert 3 (“Calvert”) were on patrol on Highway 101 when they observed a gray 4 Cadillac sedan that appeared to be the same vehicle Roach had 5 observed two weeks prior. (Roach Decl. ¶ 25.) 6 and confirmed that the car was a rental, identified the driver as 7 Gallardo, then instructed Calvert to pull Gallardo over because 8 Gallardo had an arrest warrant and had consented to probation 9 searches. (Id. ¶¶ 26-28.) Roach ran the plates According to Calvert, Gallardo appeared 10 agitated, “and was potentially a methamphetamine user.” 11 (Declaration of Jonathan Calvert ¶ 19.) 12 Once Gallardo pulled over, Calvert exited his police car and 13 approached the driver’s side of Gallardo's vehicle with his firearm 14 drawn. (Exhibit H in Support of MSJ (“Video”).) After radioing in 15 the incident, Roach then exited the police car and walked towards 16 the passenger side of Gallardo’s vehicle, also with gun drawn. 17 (Id.) Calvert ordered Gallardo to show his hands. 18 first asked, “Why?” before then complying with Calvert’s repeated 19 command. 20 which Calvert responded, “I don’t want to shoot you, I don’t know 21 you.” 22 turn off the car. 23 (Id.) (Id.) (Id.) Gallardo Gallardo then said, “Shoot me, I don’t care,” to Gallardo then complied with Calvert’s instruction to Calvert then said, “Because of the way you’re acting, I want 24 you to get out of the car and lay on the ground right now.” 25 A brief colloquy ensued. 26 is not audible, Calvert later stated that Gallardo again asked 27 Calvert to shoot him. 28 don’t want to shoot you,” and holstered his weapon. (Id.) Although the entirety of the conversation (Calvert Decl. ¶ 28.) 2 Calvert responded, “I (Video.) By 1 this point, Roach had approached the passenger side and was looking 2 at Gallardo through the passenger-side window with a flashlight. 3 (Id.) 4 After further protest from Gallardo, Calvert again drew his 5 firearm and asked whether Gallardo had a gun. 6 responded, “A gun?” 7 instructed Gallardo to show his hands. 8 comply, and Calvert began to back away from the driver’s side door 9 toward the rear of the vehicle. (Id.) Gallardo Calvert asked the question again, then (Id.) (Id.) Gallardo did not Approximately five seconds 10 after Calvert instructed Gallardo to show his hands, the brake 11 lights activated and the driver’s side door began to open. 12 (Id.) According to Roach, Gallardo was moving his hand furtively 13 toward his right pants pocket as he conversed with Calvert. 14 Decl. ¶ 33.) 15 pants pocket in a gripped firing position and move the gun to his 16 left toward Calvert. 17 rounds into the car at Gallardo while moving backward away from the 18 car. 19 weapon into the car toward Gallardo. 20 (Roach Roach saw Gallardo quickly pull a handgun out of his (Id. ¶ 34.) (Id. ¶ 38; video.) Roach immediately fired several At that point, Calvert also fired his (Calvert Decl. ¶ 32; video.) After backup units and medical personnel arrived, Roach and 21 Calvert again approached the vehicle. 22 Gallardo’s lap. 23 photographs of the gun were taken, however, before Roach removed 24 the gun from the vehicle.1 25 video”)). Both observed a handgun on (Calvert Decl. ¶ 39; Roach Decl. ¶ 44.) (Exhibit I in support of motion (“SLO Roach then confirmed that Gallardo was not breathing and 26 27 1 28 No The weapon was a BB-gun replica of a Walther PPK. (Declaration of James Voge ¶ 18.) 3 1 had no pulse. (Roach Decl. ¶ 44.) 2 Gallardo dead at the scene. Medical personnel pronounced (Id.) 3 Investigators later discovered that Gallardo had recently 4 purchased the gun found in the vehicle, had posted images to social 5 media of himself holding the gun to his head, made statements to 6 numerous people indicating an intent to commit suicide, was seen 7 listening to a police scanner shortly before the encounter with 8 Calvet and Roach, and left a suicide note in the trunk of the 9 vehicle. 10 (Declaration of James Voge.) Investigators also discovered alcohol and cocaine in Gallardo’s blood. 11 (Id.) Gallardo’s widow and successor in interest, Plaintiff Frances 12 Gallardo, filed the instant suit alleging several civil rights 13 claims against Calvert, Roach, SLO County, the SLO County Sheriff’s 14 Department, and the SLO County Sheriff, in his official capacity. 15 Defendants now move for summary judgment on all claims against 16 them.2 17 II. 18 Legal Standard Summary judgment is appropriate where the pleadings, 19 depositions, answers to interrogatories, and admissions on file, 20 together with the affidavits, if any, show “that there is no 21 genuine dispute as to any material fact and the movant is entitled 22 to judgment as a matter of law.” 23 seeking summary judgment bears the initial burden of informing the 24 court of the basis for its motion and of identifying those portions Fed. R. Civ. P. 56(a). A party 25 2 26 27 28 Plaintiff’s eighth cause of action is alleged only against Doe Defendants, and Defendants do not address that claim. Plaintiff has also indicated that she will dismiss her Third Claim for Denial of Medical Care and all Monell claims. At oral argument, Plaintiff expressed an intention to dismiss the eighth cause of action as well. 4 1 of the pleadings and discovery responses that demonstrate the 2 absence of a genuine issue of material fact. 3 Catrett, 477 U.S. 317, 323 (1986). 4 the evidence must be drawn in favor of the nonmoving party. 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). 6 moving party does not bear the burden of proof at trial, it is 7 entitled to summary judgment if it can demonstrate that “there is 8 an absence of evidence to support the nonmoving party's case.” 9 Celotex, 477 U.S. at 323. 10 See Celotex Corp. v. All reasonable inferences from See If the Once the moving party meets its burden, the burden shifts to 11 the nonmoving party opposing the motion, who must “set forth 12 specific facts showing that there is a genuine issue for trial.” 13 Anderson, 477 U.S. at 256. 14 party “fails to make a showing sufficient to establish the 15 existence of an element essential to that party’s case, and on 16 which that party will bear the burden of proof at trial.” 17 477 U.S. at 322. 18 that a reasonable jury could return a verdict for the nonmoving 19 party,” and material facts are those “that might affect the outcome 20 of the suit under the governing law.” 21 There is no genuine issue of fact “[w]here the record taken as a 22 whole could not lead a rational trier of fact to find for the 23 nonmoving party.” 24 Corp., 475 U.S. 574, 587 (1986). 25 Summary judgment is warranted if a Celotex, A genuine issue exists if “the evidence is such Anderson, 477 U.S. at 248. Matsushita Elec. Indus. Co. v. Zenith Radio It is not the court’s task “to scour the record in search of a 26 genuine issue of triable fact.” 27 1278 (9th Cir. 1996). 28 support clearly. Keenan v. Allan, 91 F.3d 1275, Counsel have an obligation to lay out their Carmen v. San Francisco Sch. Dist., 237 F.3d 5 1 1026, 1031 (9th Cir. 2001). The court “need not examine the entire 2 file for evidence establishing a genuine issue of fact, where the 3 evidence is not set forth in the opposition papers with adequate 4 references so that it could conveniently be found.” 5 III. Discussion Id. 6 A. 7 Many of Plaintiff’s claims are premised on the contention that Excessive Force 8 Roach and Calvert’s use of deadly force against Gallardo was 9 unreasonable and excessive. In Fourth Amendment excessive force 10 cases, the question is whether police officers’ actions are 11 objectively reasonable given the totality of the circumstances. 12 Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010). 13 officers’ underlying intent and motivations are not pertinent. 14 Graham v. Connor, 490 U.S. 386, 396–97 (1989). 15 force was reasonable will depend on the facts of the particular 16 case, including, but not limited to, (1) whether the suspect posed 17 an immediate threat to anyone, (2) whether the suspect resisted or 18 attempted to evade arrest, and (3) the severity of the crime at 19 issue. 20 the suspect posed an immediate threat to anyone’s safety. 21 v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). 22 information known to the officers at the time the conduct occurred 23 is relevant. 24 1546–47 (2017); Glenn v. Washington Cty., 673 F.3d 864, 873 n.8 25 (9th Cir. 2011). 26 suspect “poses a significant threat of death or serious physical 27 injury to the officer or others.” 28 F.3d 789, 793 (9th Cir. 2014) (emphasis added) (internal quotation Id. at 396. The Whether a use of Of these, the most important factor is whether Mattos Only Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, The use of deadly force is only reasonable if a Gonzalez v. City of Anaheim, 747 6 1 omitted). 2 weapon does not justify deadly force,” “where a suspect threatens 3 an officer with a weapon such as a gun or a knife, the officer is 4 justified in using deadly force.” 5 736 F.3d 1223, 1233 (9th Cir. 2013) (internal alteration omitted); 6 Smith v. City of Hemet, 394 F.3d 689, 704 (9th Cir. 2005); see also 7 Cruz v. City of Anaheim, 765 F.3d 1076, 1078 (9th Cir. 2014) (“It 8 would be unquestionably reasonable for police to shoot a suspect . 9 . . if he reaches for a gun in his waistband.”) 10 Although “the mere fact that a suspect possesses a Hayes v. County of San Diego, The central question in the instant case, therefore, is 11 whether a rational trier of fact could conclude that Gallardo, 12 contrary to Roach’s version of events, did not draw a gun on 13 Calvert. 14 the court concludes that no reasonable factfinder could reach such 15 a conclusion. 16 Having reviewed the evidence submitted by the parties, “[S]ummary judgment should be granted sparingly in excessive 17 force cases,” especially “where the only witness other than the 18 officers was killed during the encounter.” Gonzalez v. City of 19 Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) In deadly force cases, 20 the Decedent is, of course, not able to contradict the shooting 21 officers’ account of events. 22 carefully examine all evidence in the record, including 23 circumstantial evidence that might discredit the officers’ story, 24 “to determine whether the officer’s story is internally consistent 25 and consistent with other known facts.” 26 Henrich, 39 F.3d 912, 915 (9th Cir. 1994); Cruz, 765 F.3d at 1079- 27 80. 28 incident. Accordingly, this Court must Id. (quoting Scott v. In this case, however, the record includes video of the entire Although the video is not conclusive as to certain 7 1 questions, such as whether Gallardo indeed had a gun in his pocket 2 or on his lap, the video is consistent with Roach and Calvert’s 3 version of events. 4 inconsistencies between the two deputies’ stories.3 Nor do there appear to be any material 5 Plaintiff nevertheless contends that there is a genuine 6 dispute of fact, primarily because Plaintiff’s expert, Dr. Jesse 7 Wobrock, conducted a “biomechanical analysis” indicating that 8 Gallardo was not reaching for a gun in his pocket or pointing a gun 9 at anyone. (Wobrock report at 8-9.) Dr. Wobrock’s “analysis,” 10 however, appears to consist solely of a reconstruction of bullet 11 trajectories.4 12 Dr. Wobrock’s trajectory analysis to the relevant conclusions, 13 including an opinion that the right front pocket “would be a very 14 unusual spot to keep a gun” and that Gallardo was attempting to 15 comply with Calvert’s orders. 16 conclusions appear to be premised on the fact that all but one of 17 the shots that hit Gallardo did so from the rear. 18 however, is in no way inconsistent with Calvert and Roach’s 19 descriptions or with the video, which shows both deputies firing as 20 they retreat away from Gallardo’s vehicle. 21 is not admissible, let alone sufficient to create a triable issue There does not appear to be any methodology linking Indeed, all of Dr. Wobrock’s That fact, Dr. Wobrock’s opinion 22 3 23 24 25 26 27 28 Although Calvert did testify at his deposition that the windows of the car were hard to see through from five to seven feet away, that testimony is not inconsistent with Roach’s statement that he was able to see Gallardo through the passenger side window at close range with a flashlight. Video evidence confirms that Roach was shining a flashlight into the vehicle from close range. 4 Wobrock’s analysis does not include any opinion about the sequence of bullet impacts. Wobrock does opine, however, that one shot to the front of Gallardo’s leg likely occurred after previous shots, as Gallardo involuntarily turned his body toward the passenger side. 8 1 of fact. 2 Pharmaceuticals, Inc., 509 U.S. 579, 589 n.7, 595 (1993). 3 See Fed. R. Evidence 702; Daubert v. Merrell Dow Nor, contrary to Plaintiff’s argument, is this case comparable 4 to Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001). 5 over a dozen officers responded to a situation involving a 6 disturbed suspect who was obviously suicidal. 7 1280. 8 minutes, before eventually firing when the suspect advanced, at a 9 steady gait, with a bottle or can in hand. There, Deorle, 272 F.3d at The shooting officer observed the suspect for up to ten Id. at 1281. Those 10 circumstances differ greatly from those here, where the evidence 11 indicates that Gallardo drew a seemingly lethal weapon at close 12 range and without warning. 13 comparison appears to be rooted in officers’ knowledge of a 14 suspect’s disturbed mental state, Plaintiff has cited no admissible 15 evidence that Roach knew that Gallardo was suicidal, pointing only 16 to a letter from the SLO County District Attorney stating that 17 Gallardo had expressed suicidal desires to Roach in November of 18 2016.5 19 Furthermore, although Plaintiff’s Plaintiff’s only other argument appears to be that the lack of 20 photographic evidence of the gun in Gallardo’s lap calls into 21 question Calvert and Roach’s statement that the gun was, in fact, 22 recovered from Gallardo’s lap. 23 Gallardo’s history with the gun, however, precludes any genuine 24 dispute as to whether deputies planted the weapon. 25 the extent Plaintiff suggests that Defendants may have, contrary to The plentiful evidence of Furthermore, to 26 5 27 28 Roach states in his reply declaration that the District Attorney’s letter appears to mistakenly assume that statements made to Roach’s partner at the time were made to Roach as well. (Roach reply dec. ¶¶ 3-8.) 9 1 their version of events, recovered the weapon from some other 2 location in the vehicle, video evidence does not support 3 Plaintiff’s theory. 4 approaching Gallardo’s vehicle, opening the door, reaching quickly 5 into the driver’s area of the vehicle with his left hand, and then 6 recovering and removing the gun almost immediately, within 7 approximately two seconds. 8 remains outside the vehicle, as does his head, which remains above 9 the roofline of the vehicle. The post-shooting video shows Roach again (SLO video.) (Id.) Roach’s left shoulder The video evidence is, 10 therefore, entirely consistent with Roach’s declaration. 11 reasonable trier of fact could rely upon the absence of photographs 12 of the gun in Gallardo’s lap to conclude that Gallardo did not draw 13 a gun on Calvert.6 14 No Although defendants in deadly force cases must meet a high bar 15 to obtain summary judgment, there is no triable issue here as to 16 whether Calvert and Roach’s use of deadly force was objectively 17 reasonable. 18 judgment on all excessive force-based claims. Accordingly, Defendants are entitled to summary 19 B. 20 Gallardo’s Second Cause of Action alleges that Calvert and 21 Roach unreasonably detained Gallardo when they pulled him over. 22 There is no dispute, however, that there was an outstanding warrant 23 for Gallardo’s arrest, and that Roach was made aware of that 24 warrant two weeks prior, when he responded to the January 7 25 trespassing call involving Gallardo. Reasonable Suspicion for the Traffic Stop Plaintiff glosses over this 26 6 27 28 Plaintiff also points to deputy instructions not to take pictures as evidence of some kind of conspiracy or cover up. Those instructions were given, however, after the gun was recovered. (Exhibit E in opposition to motion at 12-13.) 10 1 fact, arguing in passing that “Roach and Calvert did not bother to 2 even check” the warrant on January 24, and could not legitimately 3 stop Gallardo without “actual, current knowledge.” 4 20.) 5 authority for the proposition that police officers with knowledge 6 of an outstanding arrest warrant must confirm the current validity 7 of that warrant immediately prior to detaining a person. 8 9 (Opp. at 22:19- Plaintiff does not cite, nor is the court aware of, any Indeed, the Tenth Circuit has rejected a similar argument. In United States v. Hewlett, a defendant argued that an arresting 10 officer lacked probable cause where eleven months had passed since 11 the officer confirmed the existence of an arrest warrant. 12 395 F.3d 458, 461 (D.C. Cir. 2005). 13 that the circumstances, including an underlying murder charge, 14 reduced the chance that the warrant was no longer valid. 15 462. 16 significant than that of the defendant in Hewlett, so too was the 17 time gap between the confirmation of the existence of the warrant 18 and Gallardo’s detention. 19 learned of the existence of the warrant, and Gallardo was driving 20 the same rental car he had been driving while the warrant was 21 outstanding. 22 been arrested and released, and continued to rent or once again 23 rented the same car, that likelihood was nowhere near high enough 24 to deprive Roach of probable cause. 25 entitled to summary judgment on Plaintiff’s Second Cause of 26 Action.7 Hewlett, The court disagreed, reasoning Id. at Here, although Gallardo’s offense conduct was far less Only two weeks had passed since Roach Although Gallardo theoretically could have already Accordingly, Defendants are 27 7 28 Having concluded that there was probable cause to pull (continued...) 11 1 2 IV. Conclusion In all but the most compelling cases, decisions of liability 3 in civil rights cases involving deadly force should rightly be left 4 to juries. 5 the integrity of the courts and in the continued viability of the 6 Civil Rights Act. 7 compelling cases that cannot go forward. 8 less a tragedy. 9 will forever have to live with the knowledge that they took a life. To do otherwise erodes the confidence of the public in This case, however, is one of those few That does not make it any A man lost his life, and the officers involved 10 The officers were confronted with an impossible situation. 11 hindsight, did they act perfectly? 12 situations there will always be room for after-the-fact criticisms. 13 But there can be no dispute that Defendants acted reasonably under 14 the circumstances, within the bounds of the law. 15 the reasons stated above, Defendants’ Motion for Summary Judgment 16 is GRANTED. No. A man died. In In such Therefore, for 17 18 19 IT IS SO ORDERED. 20 21 22 Dated: August 5, 2020 23 DEAN D. PREGERSON United States District Judge 24 25 26 7 27 28 (...continued) Gallardo over, the court need not address Plaintiff’s arguments regarding Gallardo’s probation search condition and reasonable suspicion. 12
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