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Case 2:12-cv-05261-RGK-PLA Document 77 Filed 04/30/13 Page 1 of 5 Page ID #:1791 JS-6

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


CIVIL MINUTES - GENERAL Case No. Title CV 12-05261-RGK (PLAx) Date April 30, 2013

AHMAD SHAPOUR ARIAN , et al v. CITY OF LOS ANGELES, et al

Present: The Honorable

R. GARY KLAUSNER, U.S. DISTRICT JUDGE Not Reported Court Reporter / Recorder N/A Tape No.

Sharon L. Williams (Not Present) Deputy Clerk Attorneys Present for Plaintiffs: Not Present Proceedings:

Attorneys Present for Defendants: Not Present

(IN CHAMBERS) Order Re: Defendants Motion for Summary Judgment (DE 52)

I.

INTRODUCTION

On June 18, 2012, Ahmad Shapour Arian and Deena Arian (Plaintiffs) filed a Complaint against the City of Los Angeles (the City), and several members of the Los Angeles Police Department (LAPD) (collectively, Defendants), including Chief of Police Charles Beck (Chief Beck); Sergeant Roy Guthrie; and Officers Robert Chavira, Robert Luna, Jose Anzora, Daniel Bunch, Dexter Barras, Gary Hansen, and Ryan Shaffer (collectively, Officers) individually and in their official capacities. On June 29, 2012, Plaintiffs filed a First Amended Complaint (FAC) alleging (1) violations of the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. 1983; (2) Monell liability; (3) wrongful death; (4) negligence; and (5) battery. On March 1, 2013, Plaintiffs dismissed their claim as to the Fourteenth Amendment. Presently before the Court is Defendants Motion for Summary Judgment on the following claims: (1) violation of the Fourth Amendment; (2) Monell liability; and (3) wrongful death. For the following reasons, the Court GRANTS Defendants Motion, and grants summary judgment on the remaining claims as well. II. FACTUAL BACKGROUND The following facts are undisputed: Plaintiffs are the parents of Abdul Arian (Arian), a nineteen year-old male who was fatally wounded by LAPD Officers after engaging in a high-speed vehicle pursuit. On April 11, 2012, at approximately 9:45pm, Arian was driving a black Ford Crown Victoria northbound on Corbin Avenue when two Officers observed him run a mid-phase red light. In order to effect a traffic stop, Officers attempted to catch up with Arian, who, instead of pulling over, increased his vehicles speed to approximately 70 miles per hour and continued driving.
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Case 2:12-cv-05261-RGK-PLA Document 77 Filed 04/30/13 Page 2 of 5 Page ID #:1792 As a result of Arians actions, the two Officers requested back-up, a supervisor and a police helicopter to join and assist them. Guthrie and all Officers responded and joined the vehicle pursuit of Arian. Throughout the pursuit, Arian drove erratically and maintained speed of approximately 65 miles per hour on city streets. Arian also ran several red lights and stop signs, and on two occasions drove on the wrong side of the road. Approximately four minutes into the pursuit, Arian called 9-1-1 from his cell phone, and spoke with an emergency operator (the Operator). Among other things, Arian told the Operator that he wanted Officers to stop pursuing him so he could stop and throw an unidentified item out from his trunk. The Operator relayed this information to Officers: . . . he wants to pull over, throw something out of the trunk, and Im trying to negotiate with him to get him to stop, but he says you have to back off . . . he disconnected, and he said he had something in the trunk. The Operator did not relay any additional information to Officers. Eventually, Arian reached the eastbound U.S. 101 Freeway, where he continued to drive erratically. Shortly thereafter, Arian attempted to make a U-turn, at which time Officer Chavira drove his patrol car into the drivers side of Arians car, immobilizing it. Arians car ended up perpendicular to the eastbound lanes, facing the center median. At this time, Arian exited his car through the passengers side door and immediately turned towards Officers. Arian was not armed, but in both of his hands Arian held a black cell phone with a silver border. Arian pointed the cell phone in the direction of Officers. In response, Officers drew their firearms. At that point, Arian turned and ran eastbound for approximately 15 to 20 yards. Thereafter, Arian shifted his body towards Officers in the same manner described above, holding his cell phone in both hands and pointing it towards Officers. Arian was approximately 15 yards away from the nearest Officer at this time. Officers then fired several rounds at Arian, who did not appear to be affected by the gunfire. Rather, Arian ran southbound to the right shoulder of the freeway and positioned himself in front of a parked civilian car, whose occupants remained inside. Arian, approximately ten feet way from the nearest Officer, again held his cell phone in both hands and pointed it in the direction of Officers. In response, Officers fired a second volley of rounds at Arian, fatally wounding him. Arian fell to the ground, his hands underneath him. The on-foot encounter lasted approximately 19 seconds. Officers did not fire any additional rounds once Arian fell to the ground. However, during the course of the on-foot encounter with Arian, each Officer fired multiple rounds. By the time Arian fell to the ground, at least three Officers had emptied their 16-round magazines. III. JUDICIAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper if the moving party shows that there is no genuine dispute as to any material fact and that the [moving party] is entitled to judgment as a matter law. Fed. R. Civ. P. 56(c). The moving party has the initial burden of demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party is without the ultimate burden of persuasion at trial, it may either produce evidence negating an essential element of the opposing partys claim, or demonstrate that the nonmoving party does not have enough evidence to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Insurance Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party meets this initial requirement, the burden then shifts to the opposing party to go beyond the pleadings and establish that a genuine dispute of material fact remains for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). In granting summary judgment, a district court is not entitled to weigh the evidence and resolve disputed underlying factual issues. Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161 (9th Cir. 1992).
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Case 2:12-cv-05261-RGK-PLA Document 77 Filed 04/30/13 Page 3 of 5 Page ID #:1793 Rather, courts are required to view all inferences to be drawn from the underlying facts . . . in the light most favorable to the party opposing the motion. Id. (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). IV. DISCUSSION

Defendants argue that the Court should grant summary judgment as to the following three claims: (1) violation of the Fourth Amendment; (2) Monell liability; and (3) wrongful death. The Court addresses each claim in turn, along with Plaintiffs remaining claims. A. Plaintiffs Fourth Amendment Claim

Plaintiffs allege that Officers violated the Fourth Amendment by using excessive force against Arian, causing his death. Defendants argue that Officers actions were objectively reasonable, and therefore not violative of Arians constitutional rights. Alternatively, Defendants argue that Officers are immune from liability based on qualified immunity. For the following reasons, the Court finds that no triable issue of material fact exists as to Plaintiffs claim under the Fourth Amendment. 1. Officers Use of Deadly Force was Objectively Reasonable

To prove a claim under 42 U.S.C. 1983, a plaintiff must show (1) the violation of a right secured by the Constitution and laws of the United States; and (2) the alleged deprivation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).1 Claims of excessive force, whether deadly or otherwise, must be analyzed under the Fourth Amendments reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The reasonableness inquiry considers whether the officers actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at 397. Such circumstances include 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. Id. at 396. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgmentsin circumstances that are tense, uncertain, and rapidly evolvingabout the amount of force that is necessary in a particular situation. Id. at 396-97. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Tennessee v. Garner, 471 U.S. 1, 11 (1985). Defendants have produced evidence demonstrating that Officers had probable cause to believe Arian posed a threat of serious physical harm. The Record contains video footage from three different news sources, all of which capture Arians position and stance with respect to Officers and others. (Mills Decl. Exs. 4-6.) The video footage shows that Arian turned towards Officers on three separate occasions and extended his arms outward towards them. (Id.) In each instance, Arian held a small, dark object in his hands and pointed it in the direction of Officers. (Id.; Luna Decl. 12; Chavira Decl. 11.) Based on this footage, the Court determines that no reasonable juror could find that Arians stance did not resemble that of an individual preparing to fire a gun. (Mills Decl. Exs. 4-6). Therefore, Officers had probable cause to believe not only that Arian held some sort of firearm, but also that he posed a threat of serious physical harm to Officers, as well as to the occupants of the civilian vehicle. Therefore, Officers use of deadly force was reasonable.
1

The parties do not dispute that Officers were acting under color of state law.
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Case 2:12-cv-05261-RGK-PLA Document 77 Filed 04/30/13 Page 4 of 5 Page ID #:1794 In opposition, Plaintiffs make three arguments, none of which raise a triable issue of material fact. First, Officer Luna, whom Plaintiffs contend instigated Officers contagious fire, was not wearing eyeglasses throughout the vehicle pursuit and subsequent encounter with Arian. For that reason, Plaintiffs argue that he was unable to discern the object in Arians hands. However, Plaintiffs provide no evidence demonstrating that Officer Luna was the first Officer to fire at Arian, or that any other Officer fired as a result of Officer Lunas actions. Therefore, Officer Lunas failure to wear eyeglasses is not a triable issue. Second, Plaintiffs contend the video footage shows that Arians hands were not clasped together, but rather were four inches apart as he attempted to video-record Officers actions with his cell phone. (Galen Decl. Ex. 8, at 1.) However, a slight discrepancy in the distance between Arians hands is immaterial in light of Arians position and stance towards Officers. Third, Plaintiffs present evidence that Officers did not yell commands or warnings at Arian before using deadly force. (Luna Dep. 137:12-17; Barras Dep. 157:1-21; Bunch Dep. 61:23-62:11; Guthrie Dep. 111:3-5; Shaffer Dep. 33:7-16.) Defendants have introduced evidence to the contrary. (Hansen Decl. 7; Guthrie Decl. 8.) Based on the facts and relevant law, this dispute is immaterial. In the Ninth Circuit, whether police officers issue a warning before applying force constitutes just one factor in determining the reasonableness of the officers conduct, and courts scrutinize this factor only where warning is practicable under the circumstances. Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001). Such warnings are practicable and weigh against the reasonableness of the officers conduct where there is ample time to warn and no reason whatsoever not to do so. Id. Here, the undisputed evidence shows that Arian, in the process of fleeing from Officers, took a shooting stance and pointed his cell phone at Officers three times in a span of only 19 seconds. Even if the Court assumed that warnings were practicable under these circumstances, the additional undisputed facts going to the reasonableness of Officers actions weigh substantially in favor of Officers, such that the extent to which Officers issued warnings is immaterial. In sum, Plaintiffs have failed to satisfy their burden of establishing a triable issue of material fact as to whether Officers use of deadly force was reasonable under the circumstances. Accordingly, summary judgment as to Plaintiffs Fourth Amendment claim is warranted. 2. Officers are Entitled to Qualified Immunity

The Court has determined that Officers use of deadly force was not unconstitutional. Even assuming otherwise, Officers are entitled to qualified immunity. When a public official asserts qualified immunity, the Court must determine whether (1) the plaintiff has shown a constitutional or federal statutory violation; and (2) in light of the clearly established principles governing the conduct in question, the official objectively could have believed that his conduct was lawful. Siegert v. Gilley, 500 U.S. 226, 232 (1991); Act Up!/Portland v. Bagley, 998 R.2d 868, 871 (9th Cir. 1993) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Based on the undisputed facts discussed above, even if Officers violated Arians constitutional rights through their use of deadly force, they objectively could have believed their conduct was lawful under clearly established Fourth Amendment law.

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Case 2:12-cv-05261-RGK-PLA Document 77 Filed 04/30/13 Page 5 of 5 Page ID #:1795 B. Plaintiffs Claim for Monell Liability

Plaintiffs allege Monell liability, and argue that the City authorized Officers use of excessive force. However, to prevail on a Monell claim against the City and Chief Beck, Plaintiffs must first show that Officers violated a constitutional right. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). As discussed above, Plaintiffs have failed to raise a triable issue of material fact as to their excessive force claim under 42 U.S.C. 1983. Therefore, Plaintiffs Monell claim also fails as a matter of law. C. Plaintiffs Claims for Wrongful Death, Negligence, and Battery

Defendants move for summary judgment on Plaintiffs claim for wrongful death. However, the Court addresses each of Plaintiffs state law claims: wrongful death, negligence, and battery. Where a police officer commits justifiable homicide, [t]here can be no civil liability under California law. See Cal. Penal Code 196; Martinez v. Cnty. of Los Angeles, 47 Cal. App. 4th 334, 349 (1996). The test for determining whether a homicide was justifiable . . . is whether the circumstances reasonably create[d] a fear of death or serious bodily harm to the officer or to another. Martinez, 47 Cal. App. 4th at 339 (citing Kortum v. Alkire, 69 Cal. App. 3d 325, 333 (1977)); see also People v. Rivera, 8 Cal. App. 4th 1000, 1007 (1992) (finding a police officers actions justified because the officer acted reasonably under the Fourth Amendment). Moreover, in an action for battery, the plaintiff must prove that the officer used unreasonable force before establishing a prima facie case. Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272 (1998). As discussed above, Plaintiffs have not satisfied their burden of showing a triable issue of material fact as to whether Officers use of deadly force was reasonable. Accordingly, Officers are immune from civil liability as to Plaintiffs state law claims for wrongful death, negligence, and battery. V. CONCLUSION

In light of the foregoing, the Court GRANTS Defendants Motion for Summary Judgment. Additionally, the Court finds, as a matter of law, no triable issue of material fact as to Plaintiffs remaining claims. Therefore, the Court also finds summary judgment in favor of Defendants as to Plaintiffs negligence and battery claims. Defendants shall file a Proposed Judgment consistent with this Order no later than May 7, 2013. IT IS SO ORDERED. : Initials of Preparer

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