Opinion
No. 1:19-cv-00126-NONE-EPG
06-17-2020
JASON B. PERKINS, Plaintiff, v. CITY OF MODESTO, MODESTO POLICE DEPARTMENT, GALEN L. CARROLL, JERRY J. RAMAR, and RYAN OLSON, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY ADJUDICATION
(Doc. No. 34)
INTRODUCTION
Plaintiff Jason B. Perkins filed this lawsuit against defendants City of Modesto, Modesto Police Department ("MPD"), MPD Chief of Police Galen L. Carroll in his individual capacity, MPD officer Jerry J. Ramar ("Ramar") in his individual capacity, and MPD officer Ryan Olson ("Olson") in his individual capacity, after plaintiff was shot multiple times by officer Ramar. (Doc. No. 22.) In his complaint, plaintiff asserts claims under the Fourth and Fourteenth Amendments to the United States Constitution, Article I, § 13 of the California Constitution, and various state statutes. (Id.) Currently pending before the court is plaintiff's motion for summary adjudication, seeking an order finding that based upon the evidence before the court officer Ramar's use of deadly force was unreasonable and excessive in violation of plaintiff's rights under the Fourth Amendment and, relatedly, that qualified immunity does not shield Ramar from liability. (Doc. No. 34.) For the reasons discussed below, plaintiff's motion for summary adjudication will be denied.
FACTUAL BACKGROUND
A. The Factual Record
Plaintiff has submitted a statement of undisputed material facts (Doc. No. 34-2), a report of an interview with Ramar conducted by MPD's Investigative Services Division (ISD) on November 7, 2017 (Doc. No. 34-4), video footage from both Olson's and Ramar's body cameras (Doc. Nos. 34-5 (Olson Bodycam), 34-9 (Ramar Bodycam)), a computer-aided dispatch (CAD) response report (Doc. No. 34-8), and MPD policy documents regarding portable video recording systems, portable audio and video recorders, and the use of force generally (Doc. Nos. 34-6, 34-7, 34-10). In opposition to plaintiff's motion, defendants have submitted a declaration from Ramar (Doc. No. 36-1 at 4), a report of plaintiff's interview conducted by ISD (Doc. No. 36-1 at 9), defendants' response to plaintiff's statement of undisputed material facts (Doc. No. 36-2), and defendants' separate statement of undisputed material facts (Doc. No. 36-3). In reply, plaintiff has submitted responses and objections to defendants' statement of undisputed material facts. (Doc. No. 37-1.)
Below, the court first provides a roughly chronological overview of the relevant events, based on any undisputed facts as well as disputed facts viewed in the light most favorable to the non-moving parties (i.e., defendants). In addition, the court has reviewed the body camera video footage, keeping in mind the Supreme Court's admonition that where there is video evidence of an incident giving rise to an excessive force claim, a court must "view[] the facts in the light depicted by the videotape." Scott v. Harris, 550 U.S. 372, 380-81 (2007). Finally, because officer Ramar's asserted perspective of the events in question is critical to the court's resolution ///// of the pending motion, the court has carefully reviewed both Ramar's declaration and the report generated following his ISD interview.
Unless otherwise noted, the facts are derived from plaintiff's statement of undisputed material facts, (Doc. No. 34-2), and defendants' responses to those allegedly undisputed material facts, (Doc. No. 36-2).
B. Factual Summary
On November 6, 2017, Ramar was a sergeant assigned to the traffic unit of MPD. (Doc. No. 36-2 ¶ 1.) Throughout the events described below, Ramar was acting within the scope of his employment with MPD. (Id. ¶ 2.)
At approximately 9:30 a.m. on November 6, 2017, Ramar was on duty and heard dispatch broadcast that plaintiff, who was wanted for brandishing a firearm at a Turlock Police Department officer, was spotted driving a black Infiniti in the parking lot of the Stanislaus County traffic court. (Id. ¶ 4.) Ramar, who was on motorcycle patrol, first responded to the traffic court, but then received an update that plaintiff had moved to the parking lot of a Big Lots department store. (Id. ¶ 5.) Ramar responded to that location and identified a black Infiniti in the nearby Bank of America parking lot. (Id. ¶ 6.) Ramar then parked his motorcycle some distance from the Bank of America parking lot and waited for backup to arrive. (Id. ¶ 7.)
The parties' statements of fact in connection with the pending motion for summary adjudication focus on the warrant being for the crime of "brandishing" a firearm. However, Ramar avers in his declaration that he was informed that plaintiff was "wanted for recently brandishing or assaulting a Turlock Police Officer with a firearm." (Doc. No. 36-1 ¶¶ 4, 5 (emphasis added).)
The body camera footage depicts the Big Lots parking lot as being connected to the Bank of America parking lot. (See Olson Bodycam at 17:45:11.)
While waiting, Ramar received additional updates regarding plaintiff. (Id. ¶ 8.) He was informed that plaintiff was wanted on another warrant in addition to the one for brandishing a firearm at a police officer, and that plaintiff was considered "armed and dangerous." (Id.) Olson eventually arrived by motorcycle at Ramar's location. (Id. ¶ 9.)
MPD equips its officers with portable video recording systems ("PVRS"), which officers must activate for "[a]ll enforcement and investigative contacts including stops," "[t]raffic stops including . . . all crime interdiction stops," "Code-3 responses," and in other situations. (Id. ¶ 11.) The encounter underlying this litigation implicated "a number of these situations," including that it was broadcasted by dispatch as calling for a "Code-3" response. (Id. ¶ 12.) While Olson activated his PVRS prior to approaching plaintiff, in compliance with MPD policy, Ramar did not. (Id. ¶¶ 13, 14.)
Ramar and Olson drove their motorcycles into the Bank of America parking lot in a single file, with Ramar in front. (Id. ¶ 15.) The black Infiniti that plaintiff was reportedly driving was parked directly in front of the Bank of America building. (Id. ¶ 16.) Ramar and Olson parked their motorcycles one parking-lot row behind the black Infiniti and dismounted from their motorcycles. (Id. ¶ 17.) Ramar immediately drew his firearm and moved towards the black Infiniti. (Id. ¶ 19.) Olson trailed Ramar as he approached that car. (Id. ¶ 23 (denying plaintiff's assertion that Olson was following "closely"); Olson Bodycam at 17:45:25-29 (showing the officers take a slightly different path between cars while approaching the black Infiniti).)
The parties dispute whether Ramar, after dismounting his motorcycle and prior to making contact with plaintiff, confirmed whether Olson was prepared to provide him backup. (Doc. Nos. 34-2 ¶ 20; 36-2 ¶ 20.) The parties also dispute whether Olson was actually ready to provide backup. (Doc. Nos. 34-2 ¶ 21; 36-2 ¶ 21.)
The driver's-side window of the black Infiniti was rolled down when Ramar and Olson began their approach. (Id. ¶ 24.) As Ramar got closer to the driver's side of the vehicle, he yelled: "Show me your hands! Show me your hands, or I'm going to shoot you!" (Id. ¶ 25.) Plaintiff, who was sitting in the driver's seat of the black Infiniti, looked in Ramar's direction as Ramar approached. (Id. ¶ 26.) Ramar saw plaintiff place his hands down and put the vehicle in reverse. (Id. ¶ 27.) Plaintiff then leaned forward, as if he was reaching for something. (Id. ¶ 28.) The driver's-side window started to roll up (id. ¶ 29), as the vehicle began to move backward slightly. (Id. ¶ 30.)
Ramar then fired two shots at plaintiff ("first volley"), although the precise timing of those shots relative to the window rolling up and vehicle beginning to move backwards slowly is unclear. (Doc Nos. 34-2 ¶ 31 (plaintiff asserting that "less than a second" after the window started to roll up and the vehicle started to move in reverse, Ramar fired the first volley); 36-2 ¶ 31 (defendants disputing the timing of the window rolling up, the vehicle moving back, and the first volley, which, according to defendants, all "appear to happen simultaneously").) One of the shots struck and broke the driver's-side window which had started to roll up. (Doc. No. 36-2 ¶ 32.) Thereafter, the black Infiniti moved backward several yards until it stopped on top of a bark-landscaped island in the Bank of America parking lot. (Id. ¶ 33.)
Ramar and Olson then approached the black Infiniti again with their firearms pointed at plaintiff. (Id. ¶ 34 (defendants denying that Ramar and Olson were "standing next to the driver's-side door" at that point); but see Olson Bodycam at 17:45:38-41 (showing Ramar and Olson standing less than a car's width from the driver's side door).) Ramar then yelled: "Let me see your hands! Let me see your hands!" (Doc. No. 36-2 ¶ 35 (denying "as to the timing of the commands . . . [relative] to the shots").) Plaintiff raised his right hand only, which was "visibly" empty. (Id. ¶ 36.) Ramar then fired another two shots at plaintiff ("second volley"). (Id. ¶ 37.) After this second volley of shots, plaintiff moved in the vehicle. (Doc. Nos. 34-2 ¶ 33 ("Plaintiff's body slumped to the right side."); 36-2 ¶ 33 ("Deny. Plaintiff continued to move inside the car.").) Ramar yelled: "Show your hands! Show your hands!" (Doc. No. 36-2 ¶ 39.) The parties also dispute plaintiff's response to this command. (Doc. Nos. 34-2 ¶ 40 ("Plaintiff began to turn towards Defendants Ramar and Olson."); 36-2 ¶ 40 ("Deny. Plaintiff did not move towards Ramar or Olson prior to the fifth and sixth shots.").) Ramar then fired two more shots at plaintiff ("third volley"). (Doc. No. 36-2 ¶ 41.)
This particular denial, which is associated with plaintiff's statement of undisputed fact # 36, was clearly intended to address plaintiff's statement of undisputed fact #35. In any event, defendants do not deny that plaintiff raised his right hand.
After this third volley of shots, Ramar continued to demand that plaintiff show his hands. (Id. ¶ 42.) Plaintiff responded that he could not because his arm was disabled due to the gunshot wounds that he had just suffered. (Id. ¶ 43.) Plaintiff was then removed from the vehicle by the officers and handcuffed. (Id. ¶ 45.) He sustained gunshot wounds to the jaw, chest, and left arm. (Id. ¶ 44.) As defendants concede in their opposition to the pending motion, plaintiff was unarmed during this encounter. (Doc. No. 36 at 9 n.1.)
Although the parties dispute exactly when Ramar activated his PVRS (Doc. No. 36-2 ¶ 46), the evidence before the court on summary judgment establishes that approximately a minute after the last volley of shots were fired, Ramar's body camera was activated and began to capture a video recording from his perspective. (See Olson Bodycam at 17:45:44; Ramar Bodycam at 17:47:59.)
Although the two body camera videos are timestamped, there is a difference of roughly a minute in the time reflected on the two videos.
C. Ramar's Declaration
In his declaration submitted in opposition to the pending motion for summary adjudication, Ramar avers that on the day in question, he heard dispatch announce that a "wanted" individual was just spotted at the Stanislaus County traffic court parking lot. (Doc. No. 36-1, Ex. A ¶ 4.) Dispatch also broadcasted that the individual, later identified as plaintiff, was wanted for brandishing or assaulting a Turlock Police Department officer with a firearm. (Id.) As he was driving to the traffic court, Ramar received an update that plaintiff had moved to the Big Lots parking lot, which is where Ramar happened to be when he received the update from dispatch. (Id.) Ramar identified plaintiff's vehicle as it was parking in front of the Bank of America building, in the northeastern-most parking spot. (Id.)
Dispatch confirmed that plaintiff's vehicle was near the Bank of America building, where Ramar observed it parking. (Id. ¶ 5.) The source of dispatch's information regarding plaintiff's location was a bail bondsman, which Ramar found to be credible based on his law enforcement experience. (Id.) Ramar again received confirmation that plaintiff had assaulted a police officer with a firearm and that there was a warrant for plaintiff's arrest. (Id.) Dispatch also informed Ramar that plaintiff was armed and should be considered dangerous. (Id.) Based upon this dispatch information, Ramar considered plaintiff to be dangerous and violent. (Id.)
The bail bondsman had advised dispatch that the passenger in plaintiff's vehicle had exited and was at the ATM. (Id. ¶ 6.) Because plaintiff was then the sole occupant of the vehicle, Ramar believed this was the safest scenario to arrest plaintiff. (Id.) Ramar drove his motorcycle a half block away from the Bank of America building, where he waited for Olson to arrive. (Id. ¶ 7.) Ramar's plan was to take plaintiff into custody. (Id.)
After Olson arrived at Ramar's location and the two officers entered the Bank of America parking lot, a Ford Focus pulled into a parking spot one row behind plaintiff's vehicle. (Id. ¶ 8.) Ramar and Olson parked behind the Ford Focus because Ramar wanted adequate "cover" from plaintiff. (Id.) Ramar's plan was to move from his motorcycle quickly to get in front of the Ford Focus because he did not want that driver between him and plaintiff. (Id.) Ramar got off his motorcycle, moved towards plaintiff, and unholstered his firearm. (Id. ¶ 9.) Plaintiff looked at Ramar, who was in uniform, as he approached plaintiff. (Id. ¶ 11.)
Ramar pointed his gun at plaintiff and yelled twice, "Show me your hands!" (Id.) Plaintiff's driver's-side window was rolled down, and Ramar believed that plaintiff could hear him. (Id.) According to Ramar, as he got closer, plaintiff was reaching in the compartment area of his vehicle. (Id.) Ramar was in fear that plaintiff was reaching for a firearm and yelled: "I am going to shoot you!" (Id.) Plaintiff failed to comply with Ramar's commands, said nothing, and turned away from Ramar and towards the center console of the vehicle. (Id.) Ramar saw what he thought was a gun in plaintiff's right hand. (Id.) Then, almost simultaneously, plaintiff started to roll up his darkly tinted driver's-side window and the car began to move in reverse. (Id.) Ramar then fired the first volley of shots out of fear that plaintiff would shoot him. (Id.)
Plaintiff denies anything suspicious about his right hand or its movement at the moment in question. When interviewed by ISD, plaintiff was asked whether he was simulating that he had a gun when the officers approached him and he "said no." (Doc. No. 36-1 at 11.) Plaintiff was also asked if he had anything in his hands at the time and he responded "no." (Id.)
When interviewed by ISD, plaintiff stated that he did not hear Ramar's commands prior to the first volley of shots being fired and instead stated that "the officers just started shooting and he decided to get out of there." (Doc. No. 36-1 at 11.) However, during that interview plaintiff did not claim that "the officers didn't say anything to him, just that he does not remember." (Id. at 13.) Plaintiff also denied that he was trying to get away from the officers when he put his vehicle in reverse. (Id. at 12.) Instead, he claimed that he did so because "he 'freaked out.'" (Id. at 11.)
After the black Infiniti came to a stop on the parking lot island, Ramar and Olson walked towards plaintiff. (Id. ¶ 13.) Ramar knew that his shots had hit plaintiff and wanted to reassess if plaintiff still posed a threat to him and Olson. (Id.) Ramar then yelled twice, "Let me see your hands!" (Id.) Ramar did not see plaintiff "show . . . his two hands" and plaintiff said nothing. (Id.) Ramar then fired the second volley of shots out of fear that plaintiff would shoot him. (Id.) Ramar believed that these two shots also hit plaintiff. (Id.) According to Ramar, at the time he ///// fired this second volley, Olson was not standing "next" to him. (Id.) Instead, Ramer averred that Olson was standing at an unknown distance to his right. (Id.)
Ramar has stated that Olson was not "next" to him at the time he fired the second volley of shots. The body camera footage shows that Olson was standing several feet to the right of Ramar at that time. (See Olson Bodycam at 17:45:38.)
After the second volley of shots, plaintiff turned toward the center console of his vehicle and was moving. (Id. ¶ 14.) Ramar yelled twice, "Show your hands!" (Id.) Plaintiff did not show his hands. (Id.) Ramar still considered plaintiff a significant threat to Olson and himself at that time. (Id.) Ramar then fired the third volley of shots, again purportedly out of fear that plaintiff would shoot him. (Id.) Ramar believed that he had again hit plaintiff with the third volley of shots. (Id.)
After the third volley, Ramar continued to demand that plaintiff show his hands. (Id. ¶ 15.) Ramar believed by this time that plaintiff could not move, and plaintiff also stated that he could not move. (Id.) By this point, Ramar no longer considered plaintiff a threat to him, Olson, other officers who had arrived on scene or bystanders. (Id.) Ramar did not fire again. (Id.)
According to Ramar, he mistakenly did not activate his PVRS prior to the shooting incident with plaintiff. (Id. ¶ 16.) While Ramar was standing near the driver door after firing the third volley of shots at plaintiff, he activated his PVRS. (Id.)
D. Ramar's Interview with ISD
In support of his motion for summary adjudication, plaintiff submits the report of an interview with Ramar conducted by ISD the day after the shooting. (Doc. No. 34-4.) As set forth below, viewing the facts in the light most favorable to defendants, Ramar's ISD interview was generally consistent with his subsequent declaration even though it included some additional facts.
At his ISD interview, Ramar stated as follows. After he got off his motorcycle and was approaching the black Infiniti, plaintiff looked back and forth at him "frantically." (Id. at 5.) Ramar saw plaintiff put his hands down and put the car in reverse. (Id.) After Ramar yelled his first set of commands, plaintiff leaned forward as if he was reaching for something and Ramar believed that plaintiff was reaching for a firearm. (Id.) As the driver's window of plaintiff's vehicle started to roll up, Ramar saw an object in plaintiff's right hand which he thought was a gun. (Id.)
After he fired the first volley of shots and plaintiff's vehicle backed up onto the bark-landscaped parking lot island, Ramar approached the vehicle and saw plaintiff still reaching down. (Id. at 6.) Ramar then fired the second volley of shots. (Id.) Ramar again instructed plaintiff to show his hands, but plaintiff was still reaching towards the floorboard of the vehicle. (Id.) Ramar then fired the third volley of shots. (Id.) After doing so, Ramar "started to assess [plaintiff] as he was in the vehicle." (Id.) Ramar saw that plaintiff had gunshot wounds to the neck, chest, left arm, and possibly to the right arm, though Ramar was unsure. (Id.) Given his observations, and because plaintiff told officers he could not raise his hands, Ramar at that point believed that plaintiff might be paralyzed. (Id.)
At no time has Ramar stated that he thought plaintiff was paralyzed prior to Ramar's firing of the third volley of shots.
LEGAL STANDARD
Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In summary judgment practice, the moving party "initially bears the burden of proving the absence of a genuine issue of material fact." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or by showing that such materials "do not establish the absence or presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A), (B). If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) ("A trial court can only consider admissible evidence in ruling on a motion for summary judgment."). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Wool v. Tandem Computs., Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (citations omitted).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls v. Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Undisputed facts are taken as true for purposes of a motion for summary judgment. Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 745 (9th Cir. 2010). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . .. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
Finally, where there is video evidence of the incident giving rise to the excessive force claim, a court must "view[] the facts in the light depicted by the videotape." Scott v. Harris, 550 U.S. 372, 380-81 (2007 ) (explaining that courts should not rely on "such visible fiction" that "is so utterly discredited by the record"); Vos v. City of Newport Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) ("The record is viewed in light most favorable to the nonmovants . . . , so long as their version of the facts is not blatantly contradicted by the video evidence[.]") (citations omitted). Nonetheless, even where video evidence exists, the circumstances may be such that reasonable factfinders could draw divergent conclusions from what the video evidence shows. See S.R. Nehad v. Browder, 929 F.3d 1125, 1132-39 (9th Cir. 2019) (disputed issues of material fact precluded summary judgment in an action alleging excessive use of force even though the evidence included surveillance footage); Glenn v. Washington County, 673 F.3d 864, 878 (9th Cir. 2011) ("The circumstances of this case can be viewed in various ways, and a jury should have the opportunity to assess the reasonableness of the force used after hearing all the evidence.").
Below, the court will consider each of the arguments advanced in support of plaintiff's motion for summary judgment under these standards.
DISCUSSION
Title 42 U.S.C. § 1983 provides a cause of action for the deprivation of "rights, privileges, or immunities secured by the Constitution or laws of the United States" by a person acting "under color of any statute, ordinance, regulation, custom, or usage." Gomez v. Toledo, 446 U.S. 635, 639 (1980). To succeed on his § 1983 claim, plaintiff must demonstrate that the action (1) occurred "under color of state law," and (2) resulted in the deprivation of a constitutional or federal statutory right. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988) (citations omitted); see also West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981).
Qualified immunity is an affirmative defense that "shield[s] an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law." Pearson v. Callahan, 555 U.S. 223, 244 (2009). The doctrine "protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Mullenix v. Luna, 577 U.S. ___, 136 S. Ct. 305, 308 (2015). As the party moving for summary judgment, here plaintiff must demonstrate that there is an "absence of evidence" that defendants are entitled to qualified immunity. See Atkinson v. Cty. of Tulare, 790 F. Supp. 2d 1188, 1201, 1213 (E.D. Cal. 2011) (quoting Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)) (denying plaintiff's motion for summary adjudication on excessive force grounds).
To determine whether officers are entitled to qualified immunity requires a two-step inquiry. "The threshold inquiry in a qualified immunity analysis is whether the plaintiff's allegations, if true, establish a constitutional violation." Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). "Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson, 555 U.S. at 231. Therefore, here if plaintiff fails to establish the first step, the court need not address the second step of the qualified immunity analysis. See id.
A. The Claimed Constitutional Violation: Excessive Force
Under the Fourth Amendment, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citations omitted); see also United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) ("For purposes of the Fourth Amendment, a seizure occurs when a law enforcement officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen.").
The Fourth Amendment requires law enforcement officers making an arrest to use only an amount of force that is objectively reasonable in light of the circumstances facing them. Graham v. Connor, 490 U.S. 386, 395 (1989); Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). Determining the objective reasonableness of a particular use of force, requires balancing the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396. Under this standard, "'[t]he force which [i]s applied must be balanced against the need for that force: it is the need for force which is at the heart of the Graham factors.'" Liston v. Cty. of Riverside, 120 F.3d 965, 976 (9th Cir. 1997) (quoting Alexander v. City & Cty. of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994)); see also Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003). Thus, in light of the facts and circumstances surrounding an officer's actions, courts "must balance the nature of the harm and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Bryan v. MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (internal quotations and citation omitted); see also Scott, 550 U.S. at 383-84; Deorle v. Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001); Liston, 120 F.3d at 976. Thus, "[f]orce is excessive when it is greater than is reasonable under the circumstances." Santos v. Gates, 287 F.3d 846, 854 (9th Cir. 2002) (citing Graham, 490 U.S. 386).
"Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396 (internal quotations and citation omitted). "[T]he reasonableness of force used is ordinarily a question of fact for the jury." Liston, 120 F.3d at 976 n.10. In this regard, "[b]ecause the excessive force inquiry nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Avina v. United States, 681 F.3d 1127, 1130 (9th Cir. 2012) (citation omitted); see also Green v. City & Cty. of San Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) ("Because this inquiry is inherently fact specific, the 'determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases.'" (citation omitted)).
Here, in considering plaintiff's motion for summary judgment as to his Fourth Amendment claim, each stage of the analysis must be undertaken while viewing the facts in a light most favorable to the defendants as the non-moving party.
1. Nature of the Intrusion
Under the Graham analysis, the first step is to "assess the quantum of force used to arrest [plaintiff] by considering 'the type and amount of force inflicted.'" Drummond ex rel. Drummond, 343 F.3d at 1056 (quoting Deorle, 272 F.3d at 1279). "The intrusiveness of a seizure by means of deadly force is unmatched." Garner, 471 U.S. at 9. "The use of deadly force implicates the highest level of Fourth Amendment interests both because the suspect has a 'fundamental interest in his own life' and because such force 'frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.'" A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016) (quoting Garner, 471 U.S. at 9).
Here, it is undisputed that Ramar used deadly force when he shot plaintiff multiple times, firing three separate volleys of shots at him. (See Doc. No. 36 at 10:20-23) (defendants apparently concede that Ramar used deadly force against plaintiff); see also Smith v. City of Hemet, 394 F.3d 689, 706 (9th Cir. 2005) (en banc) (defining deadly force as force that "creates a substantial risk of causing death or serious bodily injury").
The court says apparently, because in addressing this point in their opposition, defendants state: "Here, the officers used deadly force when they shot and killed Abel." (Doc. No. 36 at 10:20-21.) Obviously, there is no individual named Abel involved in this case and although plaintiff Perkins was shot several times, he fortunately survived this shooting.
2. Governmental Interests
Having identified the quantum of force at issue, the court must balance the use of that force against the need for such force. See Glenn, 673 F.3d at 871; Bryan, 630 F.3d at 823; Liston, 120 F.3d at 976. Thus, the next step of the inquiry requires identification of the government's countervailing interests at stake. Graham, 490 U.S. at 396. "Relevant factors to this inquiry include, but are not limited to 'the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Blankenhorn v. City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (quoting Graham, 490 U.S. at 396); see also Estate of Diaz v. City of Anaheim, 840 F.3d 592, 605 (9th Cir. 2016); Glenn, 673 F.3d at 872; Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc); Deorle, 272 F.3d at 1280. The most important of these three factors is whether the suspect poses an immediate threat to the safety of the officers or others. Vos, 892 F.3d at 1031-32.
The Graham factors, however, are not exhaustive. George v. Morris, 736 F.3d 829, 837-38 (9th Cir. 2013). Because "there are no per se rules in the Fourth Amendment excessive force context," Mattos, 661 F.3d at 441, courts are to "examine the totality of the circumstances and consider 'whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.'" Bryan, 630 F.3d at 826 (quoting Franklin v. Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). "Other relevant factors include the availability of less intrusive alternatives to the force employed" and "whether proper warnings were given[.]" Glenn, 673 F.3d at 872; see also Deorle, 272 F.3d at 1283-84 ("[W]arnings should be given, when feasible, if the use of force may result in serious injury, and . . . the giving of a warning or the failure to do so is a factor to be considered in applying the Graham balancing test."). Ultimately, the court must "examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham." Hughes v. Kisela, 862 F.3d 775, 779 (9th Cir. 2016) (internal quotations and citation omitted), rev'd on other grounds, ___U.S.___, 138 S. Ct. 1148 (2018); Mattos, 661 F.3d at 441.
Finally, "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396 (citation omitted). This is because, where appropriate, "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Id. at 396-97.
a. Severity of the Crime
Here, the evidence on summary judgment, viewed in a light most favorable to defendants, establishes that plaintiff was suspected of having committed a severe crime. According to Ramar, he was provided information that plaintiff was wanted for brandishing a firearm at, or assaulting, a police officer with a firearm. (Doc. No. 36-1, Ex. A ¶ 4.) Assaulting a police officer with a firearm is a felony under California law. See Cal. Penal Code § 417(c); see also Cal. Penal Code § 17(a) (defining felony offenses under California law). The government has an undeniable legitimate interest in apprehending felony criminal suspects. Miller v. Clark Cty., 340 F.3d 959, 964 (9th Cir. 2003). Accordingly, a reasonable finder of fact could conclude based upon the evidence before this court on summary judgment that the severity of the suspected crime placed a "strong" government interest at stake. See id.
There was another outstanding warrant for plaintiff's arrest, unrelated to the warrant for brandishing of a firearm at a law enforcement officer. (Doc. No. 36-2 ¶ 8.) Defendants do not contend Ramar knew what suspected crime(s) that other warrant related to before he approached plaintiff. See S.R. Nehad, 929 F.3d at 1132 ("Only information known to the officer at the time the conduct occurred is relevant."). Accordingly, the fact that there was another outstanding warrant for plaintiff's arrest is irrelevant for purposes of resolving the pending motion.
b. Immediate Threat
Next, the court turns to the issue of whether plaintiff posed an immediate threat to the safety of officers Ramar, Olson, or others during this encounter. "Law enforcement officials may not [use deadly force against] suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed." Roderick, 126 F.3d at 1204. However, officers need not "delay their fire until a suspect turns his weapon on them." George, 736 F.3d at 838 (affirming denial of defendants' summary judgment motion on qualified immunity grounds). "If the person is armed-or reasonably suspected of being armed-a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat." Id. (involving a suspect that did not "point[] his gun" at the officers or take "other actions that would have been objectively threatening"). /////
Plaintiff urges the court to analyze this use of force by breaking the analysis into the individual volleys fired by Ramar (i.e., first, second, and third volley), as opposed to assessing the entire incident holistically. (Doc. No. 34-1 at 13 n.3.) As detailed below, even analyzing each volley separately, resolution of this motion is the same: plaintiff is not entitled to summary judgment in his favor because a trier of fact must determine whether the defendants' version of the facts (specifically, what they saw) are credible and whether the force used was reasonably employed.
First Volley . Prior to firing the first volley of shots, Ramar had information suggesting plaintiff had previously assaulted a police officer with a firearm and Ramar also knew that dispatch had specifically warned that plaintiff was armed and considered dangerous. (Doc. No. 36-1, Ex. A ¶ 4.) As Ramar approached plaintiff's vehicle in the parking lot, he noticed that the driver's-side window was down and shouted at plaintiff to show his hands. (Id. ¶ 11.) Ramar contends he saw plaintiff looking back and forth at Ramar "frantically." (Doc. No. 34-4 at 5.) As Ramar got closer to plaintiff, Ramar saw plaintiff reaching in the compartment area of his vehicle. (Doc. No. 36-1, Ex. A ¶ 11.) Plaintiff failed to comply with Ramar's commands to show his hands and instead turned towards the center console of the vehicle. (Id. ¶ 12.) Ramar believed he saw a gun in plaintiff's right hand. (Id.)
Although defendants did not cite to this fact in support of their opposition, the court may rely on the entire record to consider additional facts not cited by a party. Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record.").
In short, viewing the facts in a light most favorable to defendants, Ramar saw plaintiff holding a gun and make at least one threatening movement or gesture. See Roderick, 126 F.3d at 1204; George, 736 F.3d at 838. The court recognizes that it is now undisputed that plaintiff was unarmed at the time of the shooting, and there is no evidence of any object found in the car that could have been mistaken for a gun. Nonetheless, whether Ramar reasonably believed plaintiff was holding a gun and made any threatening movements is a question of fact for a jury to decide. See S.R. Nehad, 929 F.3d at 1134 (holding that whether the officer "reasonably mistook the pen for a knife" and whether the suspect made any threatening movements were triable questions of fact). While the video may prove to be persuasive evidence on these points, it is not so complete as to be dispositive. Based upon all the evidence before the court on summary judgment, a jury ///// ///// ///// ///// ///// could conclude that plaintiff posed an immediate threat to Ramar, Olson, or others nearby prior to the firing of the first volley of shots.
After briefing was complete, plaintiff alerted the court to the recent decision in Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. Feb. 3, 2020), without explaining its relevance to resolution of the pending motion. (Doc. No. 53) In Orn, the Ninth Circuit affirmed the denial of the defendant's motion for summary judgment on qualified immunity grounds in a case involving the use of deadly force. There, an officer shot at a fleeing vehicle because he perceived the vehicle as trying to run over himself and possibly others. Id. at 1173. As the Ninth Circuit noted, the officer "had no reason to believe that [the suspect] had a firearm, and in fact he did not." Id. at 1172. The decision in Orn, has no apparent application here since Ramar argues that his fear for his safety was due to plaintiff, who he argues he reasonably suspected was armed, not due to any fear of being hit by plaintiff's vehicle.
Second Volley . Seconds after the first volley, Ramar approached the vehicle as it sat on top of the bark-landscaped island to assess whether plaintiff still posed a threat to the officers. (Doc. No. 36-1, Ex. A ¶ 13.) After Ramar yelled his second set of commands at plaintiff to show his hands, plaintiff raised his right hand, which was visibly empty. (Doc. No. 36-2 ¶ 36.) This is relevant because Ramar asserts that he saw a gun in plaintiff's right hand prior to the first volley. (Doc. No. 36-1, Ex. A ¶ 12.) On this basis, plaintiff argues that he was surrendering and that Ramar therefore had no basis to shoot him. (Doc. No. 34-1 at 13:25-14:6.) Although it is undisputed that plaintiff did actually raise his empty right hand prior to the second volley of shots being fired, the parties do not agree that Ramar accurately perceived that plaintiff raised his empty right hand. In his declaration, Ramar asserts that he was unable to see plaintiff's "two hands" prior to firing the second volley. (See id. ¶ 13.) The body camera footage clearly shows plaintiff raising at least one hand towards the driver's-side window. (Olson Bodycam at 17:45:37.) Though the video is from Olson's perspective, Ramar appears to be several feet away from the driver's-side door and to be looking at the driver-side window as he shoots through that window. (Id.) Thus, it cannot be said that the video blatantly contradicts Ramar's account of what he saw, even if it may well provide fodder for effective cross-examination of Ramar at trial. See Vos, 892 F.3d at 1028 (explaining that courts should not accept facts that are "blatantly contradicted by the video evidence"). Thus, construing the evidence on summary judgment in favor of defendants, a fact-finder could determine that Ramar's claim that he only saw plaintiff raise his left hand, i.e., not the hand Ramar thought held a gun, to be credible. See Roderick, 126 F.3d at 1204.
For the second volley of shots to be a justified use of force, however, it is not enough that plaintiff did not follow Ramar's command to show his hands. Rather, Ramar still would have needed to see plaintiff make some sort of threatening movement prior to firing that second volley. See George, 736 F.3d at 838. Ramar's declaration provides no facts suggesting such a threat, and his subjective fear that he would be shot, by itself, is insufficient. (Doc. No. 36-1, Ex. A ¶ 13.) See Deorle, 272 F.3d at 1281 (reversing the denial of defendants' summary judgment motion: "[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern."). However, during his interview conducted by ISD the day after the shooting, Ramar asserted that, prior to his firing of the second volley, he saw plaintiff reaching towards the floor of his vehicle. (Doc. No. 34-4 at 6.) Plaintiff argues that his left arm was disabled by this time as a result of being hit by the first volley and, therefore, he could not have made any threatening movements with it. (Doc. No. 34-1 at 14:8-10.) Nonetheless, there exists on summary judgment a factual dispute as to whether plaintiff made any movement that could have been perceived as threatening, prior to the launch of the second volley of shots, with whatever hand he had not raised. Construing all evidence in a light most favorable to defendants, a jury could reasonably conclude that plaintiff posed an immediate threat prior to the second volley.
The court may consider facts in the record not cited by defendants. Fed. R. Civ. P. 56(c)(3).
Third Volley . Moments after firing the second volley, Ramar again demanded to see plaintiff's hands and yelled: "Show your hands! Show your hands!" (Doc. No. 36-2 ¶ 39.) At this point in the encounter, the body camera video shows that plaintiff was not raising either of his hands. (Olson Bodycam at 17:45:39-42.) Ramar asserts that plaintiff then "turned towards the center console and was moving his body." (Doc. No. 36-1, Ex. A ¶ 14.) Plaintiff contends that his "body slumped to the right side." (Doc. No. 34-2 ¶ 33.) On this basis, plaintiff again argues that he was surrendering and Ramar therefore had no justification to fire the third volley of shots. (Doc. No. 34-1 at 14:24-15:5.) Whether plaintiff's movement could reasonably be perceived as threatening, however, is a factual dispute that must be decided by a finder of fact. Viewing the evidence in the light most favorable to defendants, Ramar could have believed that plaintiff was still armed and had neither disarmed himself or been disarmed prior to Ramar's firing the third volley of shots. See Roderick, 126 F.3d at 1204; George, 736 F.3d at 838.
Of course, a reasonable jury could also determine that Ramar never saw anything that could have reasonably caused him to believe that plaintiff was armed at any time during the encounter.
In short, drawing all reasonable inferences in favor of defendants, a jury could reasonably conclude that plaintiff posed an immediate threat to Ramar prior to each volley. For the same reasons, a reasonable jury could also conclude that plaintiff posed an immediate threat to Ramar throughout the entire incident.
c. Active Resistance or Flight
Plaintiff's argument that flight alone does not justify the use of deadly force is irrelevant for the purposes of resolving the pending motion for summary judgment. The court has already determined above that a jury could reasonably find plaintiff posed an immediate threat based on Ramar's belief plaintiff was armed and made furtive movements. Therefore, this is not a case where the suspect poses no immediate threat and the officer attempts to justify the use of deadly force based on his flight alone. See Roderick, 126 F.3d at 1201 ("Where the suspect poses no immediate threat to the officer and no threat to others, the harm from failing to apprehend him does not justify the use of deadly force to do so." (quoting Garner 471 U.S. at 11)). Additionally, this case is not truly a flight case, since it is undisputed that Ramar fired the first volley of shots almost at the same time that plaintiff's vehicle began to move in reverse.
Additionally, defendants argue that plaintiff resisted arrest before the second and third volleys because plaintiff "refused to listen and comply with the commands of the officers." (Doc. No. 36 at 16:9-10.) Plaintiff argues that he could not have resisted arrest after the first volley was fired because he was wounded, citing Ramar's statement to ISD that Ramar believed plaintiff's arm may have been paralyzed. (Doc. No. 37 at 6:21-7:3.) But Ramar asserts that he only made that observation after the third volley of shots was fired. (Doc. No. 34-4 at 6.) Therefore, whether plaintiff's failure to comply with the commands was voluntary (i.e., resisting arrest) or involuntary (i.e., wounded) is a factual dispute for a jury to resolve. Further, whether Ramar should have observed that plaintiff was wounded earlier, and therefore concluded that plaintiff could not raise his arms, is a factor that goes to the reasonableness of Ramar's conduct. Viewing the facts most favorably to defendants, a jury could find that plaintiff resisted arrest prior to the second and third volleys.
d. Other Factors
The court finds that consideration of other relevant factors do not compel granting of summary judgment in plaintiff's favor. As noted above, in determining whether the force was reasonable, courts consider "whether officers gave a warning before employing the force" at issue. Glenn, 673 F.3d at 876. Here, Ramar instructed plaintiff to raise his hands prior to each of the volleys while pointing his gun at plaintiff. (Doc. No. 36-2 ¶¶ 25, 35, 39.) Prior to the first volley, Ramar also warned plaintiff that he would shoot him if he failed to comply. (Doc. No. 36-2 ¶ 25.)
Second, plaintiff argues that Ramar's failure to comply with two MPD policies should be considered in evaluating the reasonableness of his conduct. While "not dispositive," courts "may consider a police department's own guidelines when evaluating whether a particular use of force is constitutionally unreasonable." Drummond ex rel. Drummond, 343 F.3d at 1059. Ramar violated MPD policy by failing to turn on his PVRS before approaching plaintiff in the Bank of America parking lot. (Doc. No. 36-2 ¶¶ 11, 12, 13.) However, unlike the case in Drummond ex rel. Drummond, the policy violated here did not relate directly to the use of force. See 343 F.3d at 1059 (involving officers who "pressed their weight against [the suspect's] torso and neck" in violation of internal guidelines, which warned that "when one or more [officers] are kneeling on a subject's back or neck to restrain him, compression asphyxia can result"). MPD's policy regarding PVRS activation does not discuss the use of deadly force. (See Doc. No. 34-7.) Certainly, while an officer's failure to turn on his body camera prior to his shooting of a suspect may be relevant evidence with respect to the officer's state of mind, it does not by itself establish that the use of force was unreasonable. See Drummond ex rel. Drummond, 343 F.3d at 1059.
It is also true that the MPD use-of-force policy discourages its officers to shoot at a moving vehicle or its occupants. (Doc. No. 36-2 ¶ 47.) However, that policy also contains an exception that allows officers to shoot at a moving vehicle or its occupants where "deadly force other than the vehicle is directed at the officers or others." (Id.) Here, defendants do contend that plaintiff's "vehicle may have been slightly moving for the first volley of shots" but they also concede that "the threat was not the car." (Doc. No. 36 at 17:14-16.) Defendants thereby invoke the exception to the MPD policy on the grounds that plaintiff himself was the threat to officer safety, not his vehicle. In any event, any violation of this policy merely constitutes some evidence on summary judgment. In the end, construing all the evidence facts in favor of defendants, plaintiff is not entitled to summary judgment in his favor on his excessive use of force claim.
Last, plaintiff argues that there were less intrusive means of force that could have been applied by Ramar against him and that judgment in his favor should therefore be granted. However, it is well established that "[w]ith respect to the possibility of less intrusive force, officers need not employ the least intrusive means available[,] so long as they act within a range of reasonable conduct." Estate of Lopez ex rel. Lopez, 871 F.3d at 1006 (quoting Hughes, 841 F.3d at 1085). Once again, there is evidence before the court on summary judgment, in the form of statements and/or declaration, that Ramar believed he saw a gun in plaintiff's hand and that plaintiff made furtive movements consistent with a reach for a gun prior to Ramar unleashing each of the three volleys of shots. Given this evidence, it cannot be said that no reasonable fact-finder could find in favor of defendants. See Roderick, 126 F.3d at 1201 (explaining that officers may "shoot to kill" if "the suspect presents an immediate threat to the officers"). Accordingly, consideration of this factor also does not compel the granting of plaintiff's motion.
3. Balancing Test
Graham requires a balancing to determine "whether the degree of force used was warranted by the governmental interest at stake." Deorle, 272 F.3d at 1282. The question in all cases is whether the use of force was "objectively reasonable in light of the facts and circumstances confronting" the arresting officer. Graham, 490 U.S. at 397. "Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396 (internal quotations and citations omitted). As stated at the outset of this analysis, "'it is the need for force which is at the heart of the Graham factors.'" Liston, 120 F.3d at 976 (quoting Alexander, 29 F.3d at 1367); see also Blankenhorn, 485 F.3d at 480. However, where inferences must be drawn from disputed material facts, summary judgment in an excessive force case should be denied. See Green, 751 F.3d at 1049; Avina, 681 F.3d at 1130; Liston, 120 F.3d at 976 n.10.
Here, "the need for force" turns on at least two disputed material facts: whether Ramar reasonably believed that plaintiff was armed prior to Ramar's firing of the first volley of shots and whether plaintiff made any threatening or furtive movements prior to each of the volley of shots being fired. These are issues that must be decided by a jury. Because genuine disputes of material fact exist as to "whether the degree of force used was warranted by the governmental interest at stake," Derole, 272 F.3d at 1282, summary judgment in favor of plaintiff as to his claim of excessive use of force in violation of his rights under the Fourth Amendment must be denied.
B. Qualified Immunity
Because there are disputed material facts as to whether Ramar violated plaintiff's rights under the Fourth Amendment, the court need not address the second step of the qualified immunity analysis. See Pearson, 555 U.S. at 231.
CONCLUSION
For all of the reasons explained above, plaintiff's motion for summary judgment (Doc. No. 34) is denied. IT IS SO ORDERED.
Dated: June 17 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE