Opinion
Case No. 2:21-cv-06574-SK
06-13-2023
Antonio RODRIGUEZ et al. v. COUNTY OF LOS ANGELES et al.
Ryann Elizabeth Hall, Bohm Law Group Inc., Marina Del Rey, CA, Vincent James DeSimone, Carmen D. Sabater, Evan Thomas Chavez, V. James DeSimone Law, Marina Del Rey, CA, for Antonio Rodriguez et al. Jill Williams, Danielle C. Foster, Carpenter Rothans and Dumont LLP, Los Angeles, CA, for County of Los Angeles, Deputy Daniel Saldivar, Deputy Michael Martinez.
Ryann Elizabeth Hall, Bohm Law Group Inc., Marina Del Rey, CA, Vincent James DeSimone, Carmen D. Sabater, Evan Thomas Chavez, V. James DeSimone Law, Marina Del Rey, CA, for Antonio Rodriguez et al. Jill Williams, Danielle C. Foster, Carpenter Rothans and Dumont LLP, Los Angeles, CA, for County of Los Angeles, Deputy Daniel Saldivar, Deputy Michael Martinez. Proceedings: (IN CHAMBERS) MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Steve Kim, United States Magistrate Judge
I. INTRODUCTION
Plaintiffs Antonio Rodriguez and Priscilla Loza are suing the County of Los Angeles and two of its Deputy Sheriffs, Daniel Saldivar and Michael Martinez, for civil rights violations under 42 U.S.C. § 1983 and California state law. Plaintiffs' suit stems from a series of unfortunate events in the summer of 2020. One evening while helping their friend, Armando Jimenez, repair a damaged tire on his car, plaintiffs found themselves detained at gunpoint by Deputies Saldivar and Martinez on the side of the road with Jimenez and another friend of his, Rigoberto Moreno. Unbeknownst to plaintiffs, the deputies had been dispatched to their location by a local resident's 911 call to investigate a misdemeanor hit-and-run. Jimenez's car matched the description given by the 911 caller. It was around 10 p.m., and the surrounding neighborhood was a reportedly high-crime area controlled by a street gang. The deputies were expecting no more than two potential suspects at the scene, not a group of four including Rodriguez and Loza. Fortunately, plaintiffs and Jimenez—none of whom was armed—complied with the deputies' commands. Unfortunately, Moreno had a different idea—he decided to flee the scene, causing a calamitous cascade of events.
According to Deputy Saldivar's disputed testimony, Moreno reached for a gun just as he started to run. Whether that was true or not, Moreno's sudden flight caused Saldivar to fire a single shot with no warning. But the bullet missed Moreno and hit plaintiff Rodriguez in his ankle. A manhunt for Moreno ensued, who was found hours later hiding but with no gun. Meanwhile, once backup deputies and emergency paramedics had arrived, Deputies Saldivar and Martinez left the scene. Neither detained or questioned plaintiffs further. But unnamed deputies manhandled plaintiffs afterward and detained them in handcuffs for hours. They kept plaintiffs restrained that way even as Rodriguez was taken to the hospital and Loza was transported to the police station. Because of these ill-fated events, plaintiffs brought this suit.
In their third amended complaint (TAC), Rodriguez and Loza allege that Deputies Saldivar and Martinez committed several unlawful seizures in violation of the Fourth Amendment. (TAC 13-18). The challenged seizures are plaintiffs' initial detention at gunpoint by Saldivar and Martinez, Saldivar's shooting that hit Rodriguez, and plaintiffs' detentions by unnamed deputies after the shooting. (TAC 13, 15-16). Plaintiffs also name Los Angeles County along with Saldivar and Martinez for civil rights violations under California's Bane Act, for intentional torts, and for negligence. Defendants now move for summary judgment arguing that the deputies are entitled to qualified immunity from the federal claims under § 1983 and that all defendants are entitled to judgment as a matter of law on the state-law claims based on their account of the material facts. (ECF 82). As explained below, Saldivar and Martinez do enjoy qualified immunity from the Fourth Amendment claims because no clearly established federal law prohibited the challenged seizures under the circumstances they faced. But most of the state-law claims survive because they turn on genuinely disputed material facts and are not subject to a qualified immunity defense. Defendants' summary judgment motion is accordingly granted in part and denied in part.
Plaintiffs initially also sued Los Angeles County under Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), but later voluntarily dismissed the Monell claims. (ECF 81 at 2).
II. BACKGROUND
On a late summer night in August 2020, Deputies Saldivar and Martinez were each on vehicle patrol in the City of Commerce, California. (SUF No. 1). Shortly before 10 p.m., a Commerce resident called 911 to report that her car, parked on the street in front of her house, had been struck by a moving "white sedan." (SUF No. 3). It didn't get far, though, because the collision had damaged the sedan's front passenger side tire. (SUF No. 12; SDF No. 35). The 911 caller reported the location of the sedan, saying it was "parked [at] Triggs Street across from Bristow Park," and described seeing "two male adults" around the car trying to "fix the vehicle." (SUF No. 3). The 911 operator broadcast the incident as a "483"—police radio code for a hit-and-run involving a parked vehicle—and dispatched Saldivar and Martinez to investigate. (SUF Nos. 1, 3). The Bristow Park neighborhood was known to the deputies (and undisputed by plaintiffs) to be a high-crime area controlled by a street gang. (SUF No. 5). They were not told when dispatched, however, that anyone was injured or in danger, that there was gang activity in the area, or that the suspects were either armed or fleeing the scene. (SUF No. 3; ECF 84-29, 84-30). Nor did they have cause to believe that a felony or violent crime was in progress. (SUF No. 3; ECF 84-24, 84-25, 84-26, 84-27). Hit-and-run incidents causing property damage—but no personal injury or death—are misdemeanors under California law. (SUF No. 3). See Cal. Veh. Code § 20002.
"SUF" refers to defendants' Statement of Undisputed Facts (ECF 82-1), but any given fact in the SUF is considered undisputed for summary judgment purposes only if it is so conceded in plaintiffs' Response (ECF 84-3), or if it is otherwise uncontested or indisputable. "SDF" refers to plaintiffs' Statement of Additional Disputed Material Facts (ECF 84-4). In outlining the material facts, the court need not—and thus does not—resolve the parties' needless objections for lack of foundation, irrelevance, hearsay, and the like. Such extraneous evidentiary objections do not matter at summary judgment if the challenged evidence can be presented in an admissible form at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Fed. Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991); Bohnert v. Roman Catholic Archbishop of San Francisco, 136 F. Supp. 3d 1094, 1111 (N.D. Cal. 2015).
Recordings of the 911 calls are lodged at ECF 84-29 and 84-30. Recordings of the police radio traffic are lodged at ECF 84-24, 84-25, 84-26, and 84-27. When discussing their contents, the court relies on the audio—not the contested transcripts—of the recordings. (ECF 87 at 6-8).
Driving westbound on Triggs Street, Saldivar and Martinez eventually saw a white Honda Civic matching the 911 caller's description. (SUF No. 8). It was parked on the north side of the street across from Bristow Park with its hazard lights flashing. (SUF Nos. 4, 7, 8). Streetlights illuminated the area, and there was still some light out in the late summer night. (SDF No. 63, 64; ECF 84-6 (Saldivar Depo.) at 18). The deputies approached in their marked patrol cars with no lights or sirens on. (SUF No. 28). They could see that the Honda's front passenger side tire was flat and its front bumper dented. (SUF No. 12). A car jack was on the pavement in front of the car, and a spare tire was propped up against a nearby fence. (SDF No. 90). The deputies saw four adults around the disabled car, two more than reported by the 911 caller. They were later identified as plaintiffs Rodriguez and Loza, the car's driver Jimenez, and Jimenez's friend Moreno. (SUF Nos. 9, 11, 13; Saldivar Depo. at 16-17).
The deputies decided to detain everyone at gunpoint. Within four to six seconds of arriving, the deputies turned on their cars' headlights and spotlights, alighted their vehicles, and drew their firearms. They positioned themselves behind their driver side doors for cover while aiming their guns at the group. (SUF Nos. 29, 31; SDF Nos. 65, 66). Saldivar and Martinez would later testify that they detained at gunpoint because they were responding to a "high-risk" crime in a known high-crime area. (Saldivar Depo. at 38; Martinez Depo. at 16). They said that the display of force was needed because they were outnumbered four to two and believed gang members might be involved or present. (SUF Nos. 6, 22, 23). Martinez added that hit-and-run drivers, by the nature of their crimes, intend to evade law enforcement. (SUF Nos. 30; Martinez Depo. at 12, 16). He also claimed that the tools he saw could have been used as weapons, though Saldivar couldn't see (nor ever claimed to see) those tools from his position. (Martinez Depo. at 16; SDF Nos. 90, 93).
The illustration below depicts the scene. Martinez parked his car on the north side of Triggs Street behind the Honda in the direction of traffic. (SUF No. 26; SDF No. 55). Saldivar parked his car to the southwest of Martinez's and to the southeast of the Honda, facing northwest from a diagonal position. (SDF No. 57; Saldivar Depo. at 16-17). The front of Saldivar's car was about 10 feet from the back of the Honda. (SDF No. 58).
Image materials not available for display.
Illustration provided by Defendants with no objection (ECF 82 at 11).
From their relative positions, Martinez pointed his gun at Rodriguez, Loza, and Jimenez while Saldivar trained his gun on Moreno. (SUF No. 31; SDF Nos. 67, 68). Plaintiffs and Jimenez were standing near the front of the Honda facing the deputies. (SUF No. 16). From the deputies' vantages, Jimenez was on the right, Loza was in the middle, and Rodriguez was on the left. (SDF Nos. 19, 22). It is disputed where Moreno was standing. According to Saldivar, Moreno was somewhere between Rodriguez and him positioned about 25 to 35 feet from Saldivar and about 10 feet to the south of Rodriguez. (Saldivar Depo. at 21-22, 28-29; SUF Nos. 15, 43). But according to Rodriguez, Moreno was about 10 to 15 feet southwest of Rodriguez and thus not directly between him and Saldivar. (SUF Nos. 14, 15, 16, 43; SDF No. 133; Rodriguez Depo. at 62). In either case, it is undisputed that plaintiffs and Jimenez, none of whom was armed, complied with police commands to raise their arms and show their hands. (SUF No. 33; SDF No. 140, 291). It is disputed whether Moreno was immediately compliant. (SDF No. 35; Saldivar Depo. at 33).
In any event, within two to five seconds of being detained, Moreno—while Saldivar's gun was aimed at him—started to run away from the Honda toward Bristow Park. (SUF Nos. 33, 35, 49; SDF No. 151; ECF 84-7 (Martinez Depo.) at 21). As soon as he saw Moreno move, Saldivar fired a single shot with no warning. (SUF Nos. 46, 51). The bullet missed Moreno, though, and hit Rodriguez in the right ankle. (SUF Nos. 44, 56). According to Saldivar, when Moreno had started to move, he lifted his shirt with his left hand and drew a black handgun from his waistband with his right hand. (SUF No. 37). Saldivar also says that Moreno moved toward the deputy, placing himself between Saldivar and Rodriguez, even if briefly, when the deputy fired. (SUF Nos. 40, 42, 43, 46). But no one besides Saldivar said they saw Moreno pull a gun. (SUF Nos. 38, 39). Rodriguez claims that Moreno was holding a burrito, which he must have dropped, when he began to run. (SDF Nos. 168, 169, 170). And Rodriguez says that Moreno ran southwest—away from police and from him. (SUF Nos. 40, 43, 44, 46, 47, 48, 51, 52). Rodriguez also says that he saw Moreno running away with both hands swinging freely at his sides, implying that Moreno was unarmed. (SDF No. 167, 169; Rodriguez Depo. at 62).
For his part, Saldivar of course does not deny that his shot hit Rodriguez but maintains that he intended only to shoot at Moreno. (SUF Nos. 44, 48). Martinez claims he saw Moreno reach for his waistband but concedes that he could not see Moreno's hands because his back was turned to Martinez. (SUF No. 47; Martinez Depo. at 21). Eyewitness accounts were inconsistent, too: some said they saw Moreno reach for his waistband but only to hold his pants up while others said they saw Moreno holding an object near his waistband as he ran. (SUF No. 87). Police eventually found Moreno hiding in the back of an abandoned car. (SUF No. 88). He was arrested for assaulting a peace officer with a handgun but never ultimately charged. (SUF No. 89; SDF No. 367). No firearm was recovered. (SDF No. 239).
Meanwhile, Rodriguez had fallen to the ground, in pain, from the gunshot. (SUF No. 56). For Martinez's benefit, Saldivar announced that he was the one who had fired. (SUF No. 55). Saldivar then radioed dispatch, which sent emergency paramedics. (SUF No. 55). As they waited, Saldivar applied a tourniquet to Rodriguez's wound while Martinez ordered Jimenez and Loza to lay on the ground. (SUF Nos. 57, 58). Martinez then handcuffed Jimenez only. (SUF No. 67). Soon after paramedics came, Saldivar left the scene, and Martinez followed a few minutes later once additional deputies arrived. (SUF No. 66, 67). Neither defendant detained or questioned either Loza or Rodriguez afterward. (SUF Nos. 60, 65, 66, 67). Unnamed deputies, however, forced Loza and Rodriguez to the ground and handcuffed both. (SUF Nos. 59, 60, 62). One placed his knee on Rodriguez's neck and head. (SUF No. 60; Rodriguez Depo. at 69-70). He also tore off Rodriguez's shirt. (SUF No. 61; SDF No. 288; Rodriguez Depo. at 70). Another deputy jumped on Loza's back, digging his knees in with his body weight. (SUF No. 62; ECF 84-9 (Loza Depo.) at 23-24, 26). Loza remained handcuffed for another hour or so in the back of a police car. (SUF 63). She complained that her cuffs were too tight but was ignored. (SUF 64). She remained handcuffed as she was transported to the police station for questioning. (SUF 63). There, Loza's handcuffs were not loosened until she continued to complain they were too tight. (SUF 64). Rodriguez, in the meantime, was taken to the hospital by ambulance—also while still handcuffed. (SUF No. 68).
Plaintiffs claim that Saldivar tended to Rodriguez's ankle only after other deputies arrived and handcuffed him. (SUF 58). But video footage the parties supplied shows that Rodriguez was not handcuffed when the tourniquet was being applied. (ECF 82-12, Exh. J; ECF 84-14, Exh. 9). "When videos capture the events in question, no genuine dispute of fact exists for anything that is clearly discernable in a videotape of the events at issue, even if sworn testimony in the record contradicts what the video shows." Est. of Simpson v. Yellowstone Cnty., 229 F. Supp. 3d 1192, 1196 (D. Mont. 2017) (citing Scott v. Harris, 550 U.S. 372, 380-81, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).
III. DISCUSSION
The Court may grant summary judgment if "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). The moving party bears the initial burden of presenting the basis of its motion and identifying those portions of the record it believes show, together with affidavits, the lack of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets its initial burden, the burden shifts to the nonmoving party to show with specific evidence, not mere conclusory allegations, the existence of a genuine issue of disputed material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate if "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (cleaned up). But in deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
A. Defendants Saldivar and Martinez Are Entitled to Qualified Immunity on Plaintiffs' Claim for Unconstitutional Seizure at Gunpoint
Plaintiffs allege they were seized in violation of the Fourth Amendment when Deputies Saldivar and Martinez detained them at gunpoint. Even with no physical force, a seizure can occur when there is "submission to the assertion of authority." California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). So no one disputes that plaintiffs were seized when defendants held them at gunpoint. Even so, this claim rests on two related but distinct theories of Fourth Amendment liability. See Est. of Strickland v. Nevada Cnty., 69 F.4th 614, 619 (9th Cir. 2023) ("Even if a seizure is reasonable in a particular circumstance, how that seizure is carried out must also be reasonable."). The first is that the drawing of guns escalated what was a valid investigative stop supported by reasonable suspicion into a full-blown arrest that—as defendants even admit—would have lacked probable cause. (TAC at 13-14; ECF 93). The other is that the display of firearms was an excessive use of force no matter if the seizure was justified by reasonable suspicion or probable cause. (TAC at 15). Under either theory, the common question is whether it was reasonable under the circumstances for Saldivar and Martinez to draw their firearms upon arriving at the scene of the hit-and-run investigation. Compare, e.g., Alexander v. Cnty. of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995) ("The question of whether the officers are entitled to qualified immunity for any use of excessive force in effecting the arrest is separate and distinct from whether they are entitled to qualified immunity for the alleged arrest without probable cause."); with, e.g., Davis v. City of Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007) ("[A]ll claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other seizure . . . should be analyzed under the Fourth Amendment and its 'reasonableness' standard.") (citing Graham v. Connor, 490 U.S. 386, 390, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
Saldivar and Martinez maintain that their display of force was reasonable under the circumstances, so it could have neither escalated a lawful detention into an unlawful arrest nor constituted excessive force. Whether defendants employed an "objectively unreasonable" amount of force must be assessed under the "totality of the circumstances" they faced at the time. Brooks v. Clark County, 828 F.3d 910, 919-20 (9th Cir. 2016). This inquiry 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, 109 S.Ct. 1865 (cleaned up). In Graham, the Supreme Court looked to several factors: (1) "the type and amount of force inflicted," (2) "the severity of the crime at issue," (3) "whether the suspect posed an immediate threat to the safety of the officers or others," and (4) "whether the suspect was actively resisting arrest or attempting to evade arrest by flight." O'Doan v. Sanford, 991 F.3d 1027, 1037 (9th Cir. 2021). But this list isn't exhaustive; courts may also consider other relevant factors such as "the availability of less intrusive alternatives to the force employed" and "whether proper warnings were given." S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017).
The deputies also argue, however, that even if the gunpoint detention violated the Fourth Amendment, they are still entitled to qualified immunity under § 1983 because federal law did not clearly prohibit such a seizure under the circumstances they faced. The qualified immunity doctrine protects police "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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It "is an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). So the court must address "qualified immunity as a legal issue before trial whenever possible." Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017). Police "may be denied qualified immunity at summary judgment in a Section 1983 case only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood his conduct to be unlawful in that situation." Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 945 (9th Cir. 2017) (cleaned up and simplified).
Under the second prong of that analysis, plaintiffs bear the "burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct." Romero v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir. 1991). In other words, plaintiffs must prove that "at the time of" the deputies' allegedly unconstitutional seizures, "the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." District of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (cleaned up). Meeting that burden "usually means there is a case 'where an officer acting under similar circumstances was held to have violated the Fourth Amendment.' " Hill v. City of Fountain Valley, 70 F.4th 507, 517 n.6 (9th Cir. 2023) (quoting City of Escondido v. Emmons, — U.S. —, 139 S. Ct. 500, 504, 202 L.Ed.2d 455 (2019)). While there need not be a factually identical case creating such notice, plaintiffs must point to "existing precedent" that puts "the statutory or constitutional questions beyond debate." Kisela v. Hughes, — U.S. —, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018). This demanding standard in effect protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).
Plaintiffs have not shown that it was plainly incompetent or a knowing violation of clearly established federal law for defendants to detain them at gunpoint. Plaintiffs point to no particularized case that had established such a precedent before the night they were detained. Instead, they gesture at Fourth Amendment principles prohibiting the use of force when neither police nor the public faces imminent threat of danger. (ECF 84 at 21-23). But those principles are too general to serve as clearly established law in a unique excessive force case like this one. The Supreme Court has warned that clearly established law must not be defined at a "high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." Wesby, 138 S. Ct. at 590 (citation omitted). Defining clearly established law with more "specificity is especially important in the Fourth Amendment context, where it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." City of Tahlequah v. Bond, 595 U.S. 9, 142 S. Ct. 9, 11-12, 211 L.Ed.2d 170 (2021) (cleaned up). That was the case for Deputies Saldivar and Martinez because reasonable officers could think that the gunpoint detention here fell in "the hazy border between excessive and acceptable force." Monzon v. City of Murrieta, 978 F.3d 1150, 1162 (9th Cir. 2020) (cleaned up).
Plaintiffs do not claim, nor could they, that theirs is a rare "obvious case" where the unlawfulness of defendants' conduct was so clear even without existing precedent based on similar material facts. Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam).
On the one hand, reasonable police should have known that the Fourth Amendment eschews aggressive action during investigatory stops when no one is reportedly injured or in danger, there is no reason to believe suspects are armed, and no violent crime or serious felony is underway. See, e.g., United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) (aggressive police action toward suspected drug dealer constituted arrest requiring probable cause, even though drug dealers often carry weapons, since suspect was compliant and nothing suggested he was armed); Alexander, 64 F.3d at 1320 (police acted reasonably when detaining robbery suspects at gunpoint since they had information that suspects fired on witness and were thus armed). And reasonable police should have known that "[t]raffic violations generally will not support the use of a significant level of force." Bryan v. MacPherson, 630 F.3d 805, 828 (9th Cir. 2010). Even though the deputies were dispatched to investigate a hit-and-run, the law demanded more restraint since the suspected crime was a misdemeanor (involving property damage alone) rather than a felony (involving personal injury or death). See, e.g., Hopkins v. Bonvicino, 573 F.3d 752, 777 (9th Cir. 2009) (summary judgment for excessive force claim properly denied when officers arrested at gunpoint unarmed suspect believed to have committed misdemeanor); Bryan, 630 F.3d at 828-29 ("While the commission of a misdemeanor offense is not to be taken lightly, it militates against finding the force used to effect an arrest reasonable where the suspect was also nonviolent and posed no threat to the safety of the officers or others.") (cleaned up).
On the other hand, defendants were still responding to an investigation involving up to two suspects who had fled the scene of an automobile collision that was damaging enough to disable the moving car and serious enough to prompt a 911 emergency call. See Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996) (Fourth Amendment "allow[s] intrusive and aggressive police conduct without deeming it an arrest . . . when it is a reasonable response to legitimate safety concerns on the part of the investigating officers."); United States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009) ("[O]fficers with a particularized basis to believe that a situation may pose safety risks may handcuff or point a gun at an individual without converting an investigative detention into an arrest."). And even if the crime was a misdemeanor, it was not unreasonable for police to be concerned that a hit-and-run driver may create dangers by trying to evade capture. See Hayden v. Green, 640 F.3d 150, 153 (6th Cir. 2011) (A "hit-and-run suspect" may "by definition" try "to evade arrest by flight."). Defendants also knew that the suspect's car had stalled around 10 p.m. in a gang-controlled neighborhood known to have high incidences of crime. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (Police "are not required to ignore the relevant characteristics of a location" when investigating crimes); Ready v. City of Mesa, 89 F. App'x 14, 16 (9th Cir. 2004) (location of traffic stop "in a high crime neighborhood at 1 a.m." was among factors relevant to use of force). And not least, defendants arrived at the scene expecting no more than two suspects but found themselves outnumbered four to two. See Lambert, 98 F.3d at 1190 ("An additional factor courts consider in analyzing the reasonableness of the use of aggressive investigatory tactics as part of a Terry stop is the number of police officers present."); United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir. 1983) (per curiam) (reasonable for single officer investigating crime to order two suspects out of car at gunpoint).
Plaintiffs dispute none of these material countervailing facts. (SUF Nos. 3, 5, 9, 10; SDF Nos. 1, 64). So even if the "most important" consideration when evaluating use of force is generally whether a suspect posed an immediate threat of serious physical injury to anyone's safety, Vos v. City of Newport Beach, 892 F.3d 1024, 1031-32 (9th Cir. 2018), that factor must still 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, 109 S.Ct. 1865. And the "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, 109 S.Ct. 1865. This is not to suggest that defendants are shielded by qualified immunity so long as there are no cases factually identical to this one. Rather, it is only to recognize that under the Supreme Court's exacting requirements for clearly established federal law, there were enough cross currents in existing precedents at the time of defendants' gunpoint detention that its unconstitutionality was not objectively "beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).
At most, then, plaintiffs' view of their clearly established Fourth Amendment rights may have been "suggested by then-existing precedent," but it was not "clear enough" to place "every reasonable official" on notice that a display of force by firearms to detain plaintiffs would have been unconstitutional under the circumstances the deputy defendants faced. Wesby, 138 S. Ct. at 590. While plaintiffs could point to "a" reasonable officer who would not have detained them at gunpoint, they have not shown that "every" reasonable officer would have chosen differently than Saldivar and Martinez. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. Because plaintiffs haven't carried that burden, the deputies are entitled to qualified immunity on this unlawful seizure claim. See Rivas-Villegas v. Cortesluna, 595 U.S. 1, 142 S. Ct. 4, 9, 211 L.Ed.2d 164 (2021) (summarily reversing Ninth Circuit because no circuit nor Supreme Court decision was "sufficiently similar" to put all police on notice that challenged conduct was unconstitutional); Bond, 142 S. Ct. at 12 (summarily reversing denial of qualified immunity because "[n]either the panel majority nor the respondent [ ] identified a single precedent finding a Fourth Amendment violation under similar circumstances.").
B. Defendant Saldivar Is Entitled to Qualified Immunity on Plaintiff Rodriguez's Claim of Excessive Force
Plaintiff Rodriguez alleges that he was seized by excessive force in violation of the Fourth Amendment when he was shot by Deputy Saldivar. (ECF 84 at 18-23; TAC at 13). "Apprehension by deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement." Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010). So if Saldivar had intended to shoot Rodriguez—an unarmed, nonviolent, compliant person standing still with his arms and hands raised—he would have violated the Fourth Amendment under clearly established law when his shot hit Rodriguez. See Torres v. City of Madera, 648 F.3d 1119, 1128 (9th Cir. 2011). The "Constitution does not tolerate the use of lethal force to seize an unarmed, non-dangerous suspect" like Rodriguez who objectively posed no "threat of serious physical harm." Strickland, 69 F.4th at 621 (cleaned up). But this is not that case. For it cannot be genuinely disputed here that the intended target of Salidvar's shot was Moreno—not Rodriguez.
At the summary judgment hearing, plaintiffs conceded (as they had to) that the undisputed facts create no legal theory by which Deputy Martinez could be held responsible under the Fourth Amendment for Saldivar's unilateral decision to shoot. (ECF 93).
At the summary judgment hearing, plaintiffs' counsel tried to hedge on this issue, insinuating that a jury could speculate that Rodriguez was the intended target all along. But plaintiffs "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). They must point to evidence creating a genuine dispute of material fact, not rely on "unsupported conjecture or conclusory statements." Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Yet it is "mere speculation, conjecture, or fantasy" to imply that the record evidence suggests the counterfactual that Saldivar intended to shoot Rodriguez rather than (or even in addition to) Moreno. O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th Cir. 1986). If that were a permissible inference from the evidence, there would be no need to even mention Moreno in opposing summary judgment. After all, Moreno would be irrelevant to the excessive force analysis if Rodriguez were Saldivar's intended shooting target. See Tan Lam v. City of Los Banos, 976 F.3d 986, 1001 (9th Cir. 2020). Plaintiffs are not entitled to "draw all possible inferences" from the evidence at summary judgment—"only all reasonable ones." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 n.10 (9th Cir. 2002).
So to defeat qualified immunity, Rodriguez must show that Saldivar violated clearly established federal law when he fired a shot—intended for a fleeing suspect—that missed and hit an innocent bystander instead. But the Fourth Amendment recognizes "a distinction between an act directed toward someone that produces a particular result (which would amount to a Fourth Amendment 'seizure') and an act that simply causes a particular result that was not sought." Arruda v. County of Los Angeles, 2008 WL 11411632, at *1, 2008 U.S. Dist. LEXIS 71316, at *2-3 (C.D. Cal. Aug. 5, 2008). After all, the purpose of the Fourth Amendment is to address "misuse[s] of power, not the accidental effects of otherwise lawful government conduct." Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (cleaned up). So a "Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is governmental termination of freedom of movement through means intentionally applied." Id. at 596-97, 109 S.Ct. 1378. As interpreted by Brower, the Fourth Amendment does not provide "that a seizure occurs just so long as the act of restraint itself is intended (here the act of shooting) though it restrains one not intended to be restrained." Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991). Thus, cases applying Brower to police shootings have recognized that "accidental or unintended seizures do not fall under the Fourth Amendment." Lopez v. City of Santa Maria, 2016 WL 316004, at *3, 7-8, 2016 U.S. Dist. Lexis 9741, at *7, 23-24 (C.D. Cal. Jan. 26, 2016); see Ansley v. Heinrich, 925 F.2d 1339, 1344 (11th Cir. 1991) ("[U]nintended consequences of government action [cannot] form the basis for a fourth amendment violation.").
Rodriguez does not seriously reckon with these innocent-bystander shooting cases. But under those cases, Saldivar could have reasonably believed that a person "can only be seized for Fourth Amendment purposes if that person was the 'deliberate object' of the exertion of force intended to terminate freedom of movement." Rodriguez v. City of Fresno, 819 F. Supp. 2d 937, 946 (E.D. Cal. 2011) (citing Ciminillo v. Streicher, 434 F.3d 461, 465 (6th Cir. 2006)). Otherwise put, Saldivar had no clearly established basis to believe that he could be sued under § 1983 by "an individual who is accidentally shot by police" while they "are attempting to apprehend someone else." Id. Indeed, by the time of Saldivar's shooting, a developed body of caselaw—within and outside the Ninth Circuit—had solidified the innocent-bystander rule. See, e.g., United States v. Lockett, 919 F.2d 585, 590 n.4 (9th Cir. 1990) (While "an unarmed suspect shot by a police officer might have a fourth amendment claim against the officer," "an innocent bystander struck by a stray bullet from the officer's weapon would not have such a claim.") (citing Brower); Landol-Rivera v. Cosme, 906 F.2d 791, 795 (1st Cir. 1990) ("Brower makes it clear that no Fourth Amendment seizure occurred here because [the victim] was not the object of the police bullet that struck him."); Medeiros v. O'Connell, 150 F.3d 164, 168 (2d Cir. 1998) (Section 1983 claim challenging officer's accidental restraint of innocent bystander "vindicates no interest protected by the Fourth Amendment."); Rucker, 946 F.2d at 281 (Bystander "was not the intended object of the shooting by which he was injured, [so] he was not thereby 'seized' within contemplation of the fourth amendment."); Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) ("[T]he Fourth Amendment 'reasonableness' standard does not apply to section 1983 claims . . . for physical injuries inadvertently inflicted upon an innocent third party by police officers' use of force while attempting to seize a perpetrator."); Bublitz v. Cottey, 327 F.3d 485, 489 (7th Cir. 2003) (Plaintiffs "[were] simply not the intended object of the defendant officers' attempts to seize the fleeing [suspect], so the Fourth Amendment is not implicated and cannot provide the basis for a § 1983 claim."); Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000) (Seizure caused by "accidental effects of otherwise lawful conduct" was "unfortunate but not unconstitutional.") (quoting Brower).
Resisting the clearly established implication of these cases, Rodriguez tries to argue that he was not a mere "bystander." By Rodriguez's account, since he was detained at gunpoint along with the intended target (Moreno)—and thus placed in danger only because of a preceding act of official force—he was differently situated than a person just incidentally at the wrong place at the wrong time. That distinction, though, misses the point of qualified immunity. Defendants need not prove that their conduct was lawful under clearly established federal law; it is plaintiffs' burden to prove that defendants' conduct was unlawful under clearly established federal law. See Hill, 70 F.4th at 517 n.6 (Plaintiffs cannot defeat qualified immunity just by trying to "distinguish cases" that support reasonableness of police action rather than citing cases that support unreasonableness in similar circumstances). So the question is not whether the innocent-bystander cases are identical to this one and thus, perforce, immunize Saldivar from a Fourth Amendment claim for the shooting that injured Rodriguez. If faced with that question alone, a court might accept Rodriguez's distinction and find Saldivar liable despite the innocent-bystander cases. The right question for qualified immunity is whether all reasonable police in Saldivar's position would have known that the Fourth Amendment prohibited the unintended shooting of an innocent victim caught in the line of fire from a shot intended for a fleeing suspect—even if the person were only in the crossfire to begin with because of a prior detention. See al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074 (stressing that the "dispositive question" for qualified immunity is "whether the violative nature of particular conduct is clearly established"). To answer that question, a court cannot just wave away the innocent-bystander cases given their material similarities to this case. See Rodriguez, 819 F. Supp. 2d at 946 (granting summary judgment against victim "injured collaterally or incidentally to the application of force by police against a third party"); Hernandez v. City of Los Angeles, 2021 WL 8820856, at *7 (C.D. Cal. Dec. 24, 2021) (granting summary judgment against "innocent bystander hit by a stray bullet" since he was not intended target of shooting).
To be sure, the innocent-bystander rule is not absolute; it has limits. Rodriguez tries (haphazardly) to rely on two of those here, but neither exception to the general rule does the work plaintiff needs to defeat qualified immunity. The first involves the use of police dogs to hunt fleeing suspects. In those cases, many courts hold that innocent victims unintentionally bitten or attacked by hunting dogs in their intended pursuit of other targets can still sue for unlawful seizure under the Fourth Amendment. See, e.g., Garcia v. City of Sacramento, 2010 WL 3521954, at *2 (E.D. Cal. Sept. 8, 2010); Vathekan v. Prince George's Cty., 154 F.3d 173, 178 (4th Cir. 1998). But see, e.g., Schreckendgust v. White, 2006 WL 8443207, at *3 (D.N.M. Dec. 11, 2006) ("The relevant case law does not support Plaintiff's contention that the mere intent to deploy 'Bart' to attack someone is enough to constitute a seizure of Plaintiff. Rather, the case law indicates that the 'means intentionally applied' would have had to be directed toward Plaintiff in order for her to be seized.") (quoting Brower). "Police-dog cases, though, require a special breed of analysis." Gangstee v. Cnty. of Sacramento, 2012 WL 112650, at *5 (E.D. Cal. Jan. 12, 2012). The reasoning of those cases is "that when officers intentionally deploy a dog, which is incapable of discriminating suspects from bystanders and is trained to bite whoever it encounters, the officers effectively intend to seize anyone in the space where the dog was deployed." Rodriguez, 819 F. Supp. 2d at 947. But that reasoning has no purchase in a shooting case: guns are not dogs, and bullets have no volition. The police-dog cases are in a category of their own—or can at least be reasonably viewed that way. Cf. Mancini v. City of Indianapolis, 2017 WL 4250112, at *6 (S.D. Ind. Sept. 26, 2017) ("[P]olice dogs are trained to attack and hold the first person they come across."). So they would not have put all reasonable police on notice that the shooting of an unintended target could be just as unconstitutional as the indiscriminate deployment of a police dog.
The second main exception to the innocent-bystander rule—found in the crowd dispersal cases—is no help to plaintiff, either. In Nelson v. Davis, 685 F.3d 867 (9th Cir. 2012), for instance, police planned to disperse a group of more than 1,000 protesters by launching pellets of pepper spray into the crowd. One of the protesters was struck in the eye and sued for excessive force. In that situation, the Ninth Circuit held that the injured protester was seized under the Fourth Amendment since the intentionally planned use of force was directed at a crowd of people and thus virtually guaranteed to hit someone in the crowd even if that person were not an identifiable and intended target as such. Id. at 873-877. But this case bears none of the hallmarks of a crowd control case. The intended target of Saldivar's shot was one person in a small group (not a group of thousands) detained on the side of the street at the site of a hit-and-run investigation. And that person spontaneously decided to flee the scene on foot even with a deputy's gun aimed at him. So even if it were clearly established that police cannot escape Fourth Amendment liability when they intentionally deploy force into a large crowd of people, it does not follow that a reasonable officer aware of the crowd dispersal cases would know that the unintentional shooting of an innocent party caught in the crossfire of a single shot intended for a fleeing suspect is just another crowd control scenario exposing the officer to liability. Knowing of a chance that the use of force intended for a fleeing suspect in public could injure those around the suspect is different than foreseeing that planned force deployed intentionally on a crowd of people is bound to seize someone in that crowd. While the latter scenario might create liability under the Fourth Amendment (according to Ninth Circuit precedent), there is no clearly established law—and plaintiffs cite none—creating such liability in the former.
Recently, the Ninth Circuit extended the rationale of police-dog and crowd-dispersal cases to incidents involving use of force in car chases. See Villanueva v. California, 986 F.3d 1158 (9th Cir. 2021). In Villanueva, the court held that when police intend to stop a moving car—whether through intentional collision or by firing a weapon—they will inevitably seize all occupants of that car no matter if they objectively intend to stop only the driver or believe it has no passengers. Id. at 1166-67. In Villanueva, it was "irrelevant" whether police "knew any passengers were in the car, because they stopped the car and all its possible occupants when they shot at it." Id. at 1167. But like manhunts with police dogs and planned crowd control measures, high-speed car chases are sui generis. Those cases would not have put all reasonable police on notice that the unintended victim of a shot intended for a suspect spontaneously fleeing from the scene of a hit-and-run investigation could expose police to Fourth Amendment liability. Besides, even if plaintiffs had identified Villanueva (they didn't), it was decided in January 2021—after the August 2020 events here. "[A] reasonable officer is not required to foresee judicial decisions that do not yet exist in instances where the requirements of the Fourth Amendment are far from obvious." Kisela, 138 S. Ct. at 1154.
C. Deputies Saldivar and Martinez Are Entitled to Qualified Immunity on Plaintiffs' Claims for Unlawful Seizures by Unnamed Deputies
Plaintiffs allege that they were seized in violation of the Fourth Amendment when unnamed deputies—without probable cause and with excessive force—handcuffed and detained them after the shooting. (TAC at 15-18). Loza also alleges that she was seized in violation of the Fourth Amendment when an unnamed deputy—with no probable cause or her consent—transported her, still handcuffed, to the police station for questioning. (TAC at 9, 13; SUF No. 63). Yet it is undisputed that neither Saldivar nor Martinez conducted these challenged seizures. They had both left the scene before those seizures even happened. The deputies are thus entitled to summary judgment on these claims because they did not "subject" plaintiffs to the allegedly unconstitutional seizures. 42 U.S.C. § 1983; see Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (official "subjects" another to constitutional deprivation only if he "does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made."). It is not enough, as plaintiffs argue, that defendants may have "set these events into motion" with no evidence that afterward "either instructed the other officers to arrest Plaintiffs or consulted with them in that decision." Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019). Nor is it enough, as plaintiffs suggest, that their seizures should have been "foreseeable" to defendants. Peck v. Montoya, 51 F.4th 877, 891 (9th Cir. 2022). Reasonably anticipating possible seizures at the site of a police shooting is one thing, but causing unconstitutional seizures is altogether different. See id.
Plaintiffs' reliance on the "integral participant theory" is similarly misplaced because no reasonable officer would think that such a theory could support after-the-fact Fourth Amendment liability. To be an integral participant in a constitutional violation still requires "some fundamental involvement in the conduct that allegedly caused the violation." Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007). That means defendants had to be not only the actual but also the proximate cause of plaintiffs' challenged seizures. See Peck, 51 F.4th at 890 (rejecting "standard of pure but-for cause, not tied to the defendant's knowledge or intent," to impose liability as integral participant under § 1983). As a result, "the Ninth Circuit has only found integral-participant liability against officers who planned or physically participated in the specific violation." McDonald v. Cty. of Sonoma, 506 F. Supp. 3d 969, 982 (N.D. Cal. 2020). But plaintiffs adduced no such evidence here. There was thus no clearly established law that could have put Saldivar and Martinez on fair notice that they would be prospectively liable for any Fourth Amendment violations caused by unnamed deputies after defendants had left the scene.
D. Plaintiffs' Tort Claims Present Genuine Disputes of Material Facts Inappropriate for Summary Judgment
Even though defendants Saldivar and Martinez may enjoy qualified immunity from Fourth Amendment claims under § 1983, "the doctrine of qualified immunity does not shield defendants from state law claims." Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1171 (9th Cir. 2013). So the mere "absence of a constitutional harm does not equate to the absence of liability under state tort law." Rodriguez, 819 F. Supp. 2d at 952. "The doctrine of qualified governmental immunity is a federal doctrine that does not extend to state tort claims against government employees." Venegas v. County of L.A., 153 Cal. App. 4th 1230, 1243, 63 Cal.Rptr.3d 741 (2007) (cleaned up). And while there may be no respondeat superior liability for Los Angeles County under § 1983, see Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002), the County is vicariously liable under state law for the torts of its deputies—even the unnamed ones—that were committed during their official duties. See Mary M. v. City of Los Angeles, 54 Cal. 3d 202, 215, 285 Cal.Rptr. 99, 814 P.2d 1341 (1991); Meggs v. NBCUniversal Media, LLC, 2017 WL 2974916, at *5 (C.D. Cal. July 12, 2017).
Still, Fourth Amendment law remains relevant to the analysis of plaintiffs' tort claims. See Hayes v. County of San Diego, 736 F.3d 1223, 1232 (9th Cir. 2013) ("Claims of excessive force under California law are analyzed under the same standard of objective reasonableness used in Fourth Amendment claims."). Because the use of force is intrinsic to their jobs, police cannot be held liable under the same civil liability standards that apply to ordinary citizens for intentional torts. See generally Cal. Penal Code § 835a. As a result, even when suing for unlawful use of force under state law, plaintiffs cannot prevail on their intentional tort claims unless they prove that defendants used unreasonable force by Fourth Amendment standards. See Avina v. United States, 681 F.3d 1127, 1131 (9th Cir. 2012); Saman v. Robbins, 173 F.3d 1150, 1157 n.6 (9th Cir. 1999); Brown v. Ransweiler, 171 Cal. App. 4th 516, 527 & n.11, 89 Cal.Rptr.3d 801 (2009); Edson v. City of Anaheim, 63 Cal. App. 4th 1269, 1272, 74 Cal.Rptr.2d 614 (1998). And while negligence claims can encompass conduct broader than that strictly prohibited by the Fourth Amendment, the duty of care owed by police under negligence law still derives from the federal constitutional duty to avoid unreasonable force. See Mulligan v. Nichols, 835 F.3d 983, 991 (9th Cir. 2016).
Against that legal backdrop, plaintiffs allege that Saldivar and Martinez—and the County vicariously as their employer—committed assault and battery, intentionally inflicted emotional distress, and falsely arrested them when the deputies seized plaintiffs at gunpoint and Saldivar shot Rodriguez. (TAC at 23-24). They allege, too, claims against the County for assault and battery, intentional infliction of emotional distress, and false imprisonment by the unnamed deputies during the post-shooting detentions. (TAC 22-24, 30-31). And they claim that all involved deputies (including the County as their employer) were—at a minimum—negligent in their uses of force during the gunpoint detention, Saldivar's shooting, and the post-shooting detentions. (TAC 25-28). Contrary to defendants' arguments, there remain genuine disputes of material fact precluding summary judgment on these tort claims.
First, viewing the evidence with all permissible inferences in plaintiffs' favor, a rational jury could find that defendants used excessive force during the challenged seizures. It could decide that the gunpoint detention was unreasonably excessive because Saldivar and Martinez had no objective reason to believe that plaintiffs were armed, uncooperative, or dangerous. See Johnson, 724 F.3d at 1176; United States v. Alvarez, 899 F.2d 833, 838 (9th Cir. 1990). Though the deputies say they were in a high-crime neighborhood controlled by a street gang, they were still investigating a nonviolent misdemeanor involving only property damage with no information that plaintiffs were gang members. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) ("The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct."); Jarboe v. Cnty. of Orange, 2010 WL 11678244, at *6 (C.D. Cal. July 29, 2010) (recognizing that need for lethal force was diminished because police "were investigating a non-injury hit-and-run" that was a "non-violent misdemeanor"). And a jury could discount Martinez's claim that the car tools he saw could have been used as weapons. See Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014). To be sure, defendants were outnumbered late at night, but those countervailing facts do not foreclose a jury finding that the reflexive display of firearms by deputies investigating a misdemeanor hit-and-run was unreasonably excessive under the circumstances.
A rational jury viewing the evidence in plaintiffs' favor could also find that Saldivar committed assault and battery on Rodriguez. Unlike excessive force claims under § 1983, derivative tort claims for assault and battery based on police shootings can be maintained under the doctrine of transferred intent. Under that doctrine, "a defendant who unlawfully aims at one . . . and hits another . . . is guilty of assault and battery on the party he hit, the injury being the direct, natural and probable consequence of the wrongful act." Bailey v. Cnty. of San Joaquin, 671 F. Supp. 2d 1167, 1175 (E.D. Cal. 2009) (quoting Singer v. Marx, 144 Cal. App. 2d 637, 643, 301 P.2d 440 (1956)). So even if it is undisputed that Deputy Saldivar intended to shoot Moreno, he may still be liable to Rodriguez for assault and battery since the intentional shot—even if intended for Moreno—still ended up hitting Rodriguez as a natural and probable consequence of the intentional act. See United States v. Juv. Male, 930 F.2d 727, 729 (9th Cir. 1991) ("Under the doctrine of transferred intent, one who means to threaten or inflict bodily injury and does so is culpable regardless of the identity of the victim.") (cleaned up).
Of course, plaintiffs must still prove that the intentional use of force—as directed at Moreno—was unreasonable under the circumstances. See Rodriguez, 819 F. Supp. 2d at 953 ("Under the doctrine of transferred intent, the viability of a claim of battery by a bystander against a police officer turns on the reasonability of the application of force by the police officer against the intended suspect."). But "reasonableness is often a question for the jury," Jackson v. City of Bremerton, 268 F.3d 646, 651 n.1 (9th Cir. 2001), because "whether a particular use of force was reasonable is rarely determinable as a matter of law." Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994). That is the case here because whether Saldivar was justified in firing his weapon turns on many genuinely disputed material facts—including where Moreno was standing when he fled, how compliant he was to police commands, whether he was armed and reached for his gun, and which direction he started to run. Thus, defendants are not entitled to summary judgment on Rodriguez's intentional tort claim stemming from Saldivar's shooting. See, e.g., Curnow By and Through Curnow v. Ridgecrest Police, 952 F.2d 321, 324-25 (9th Cir. 1991) (summary judgment not warranted even though suspect had gun, as he was not pointing it at officers or facing them when they shot him); Lopez v. Gelhaus, 871 F.3d 998, 1013 (9th Cir. 2017) (affirming summary judgment denial because rational jury could find that officer's use of deadly force was unreasonable where officer issued no warning before shooting nonaggressive suspect who had gun pointed down). "The balancing of competing interests simply does not clearly favor [Saldivar] such that he is entitled to judgment as a matter of law on this issue; this is a decision for the factfinder." Seidner v. de Vries, 39 F.4th 591, 601 (9th Cir. 2022).
Likewise, when viewed with all permissible inferences in plaintiffs' favor, the evidence reveals genuine issues of material fact about whether they were unlawfully arrested by unnamed deputies after the shooting, whether they were detained by excessive force with handcuffs, and whether they suffered severe emotional distress because of these intentional acts. See, e.g., Blankenhorn, 485 F.3d at 487-88 (rejecting defendant's summary judgment motion on emotional distress claim where there were facts that could support an excessive force finding); Wall v. Cty. of Orange, 364 F.3d 1107, 1109-10, 1112 (9th Cir. 2004) (tight handcuffing may constitute excessive force when it injures plaintiff or when plaintiff's complaints about handcuffs being too tight are ignored); McDonald v. Cnty. of Sonoma, 506 F. Supp. 3d 969, 987 (N.D. Cal. 2020) ("As a matter of law, 'extreme and outrageous conduct' includes the unlawful arrest and use of excessive force against a suspect."). As noted, even if Saldivar and Martinez had nothing to do with these events, the County can be held vicariously liable for the torts of even its unnamed deputies committed within the scope of their employment.
Finally, if there remain triable issues over whether defendants intentionally violated plaintiffs' Fourth Amendment rights, plaintiffs' negligence claims must survive summary judgment, as well. See Penny v. City of Los Angeles, 2022 WL 2069132, at *14 (C.D. Cal. May 9, 2022) ("The parties' negligence claims rise and fall to the same degree as their Fourth Amendment, Bane Act, and intentional tort claims."). A "claim of negligence in connection with the application of force by police personnel requires a showing of (1) a legal duty to use reasonable care, (2) a breach of that duty, (3) proximate causation, and (4) injury to the plaintiff." Rodriguez, 819 F. Supp. 2d at 951. California "has long recognized that peace officers have a duty to act reasonably when using deadly force." Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 637, 160 Cal.Rptr.3d 684, 305 P.3d 252 (2013). But "state negligence law, which considers the totality of the circumstances surrounding any use of deadly force, is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used." Id. at 639, 160 Cal. Rptr.3d 684, 305 P.3d 252 (cleaned up). This means that juries can consider the tactical conduct and decisions just before the use of force when evaluating a negligence claim since "the totality of the circumstances, including the preshooting conduct of the officers, might persuade a jury to find the shooting negligent." Id. at 630, 160 Cal.Rptr.3d 684, 305 P.3d 252. "In other words, preshooting circumstances might show that an otherwise reasonable use of deadly force was in fact unreasonable." Id. Therefore, plaintiffs' negligence claims around their gunpoint detention, Rodriguez's gunshot, and their post-shooting detentions cannot be resolved on summary judgment.
Plaintiffs' claims for negligent training and supervision, negligent provision of medical care, and negligent witness handling (TAC at 25-26), however, do not survive summary judgment because plaintiffs abandoned them in their opposition papers. See Samica Enters. LLC v. Mail Boxes Etc., Inc., 460 F. App'x 664, 666 (9th Cir. 2011) ("Arguments not raised in opposition to summary judgment . . . are waived."); see also Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) ("A district court does not have a duty to search for evidence that would create a factual dispute.").
E. Plaintiffs' Bane Act Claims (With One Exception) Present Genuine Disputes of Material Facts Inappropriate for Summary Judgment
Even though plaintiffs cannot recover damages for their Fourth Amendment claims under § 1983, they can still seek damages for those same alleged Fourth Amendment violations under California's Bane Act. (TAC 28-29). As pertinent here, the Bane Act provides for damages when one or more persons, including those acting under color of law, interferes or attempts to interfere by threat, intimidation, or coercion with the exercise of constitutional or statutory rights under federal law. See Cal. Civ. Code § 52.1(b). Section 52.1 confers no substantive rights but, like § 1983, supplies a cause of action under California law to vindicate substantive rights conferred elsewhere, including the federal Constitution. See Carter v. City of Carlsbad, 799 F. Supp. 2d 1147, 1165 (S.D. Cal. 2011). Yet unlike claims under § 1983, Bane Act claims are not subject to a qualified immunity defense based on lack of clearly established federal law—even if those claims are based on federal constitutional violations. See Thomas v. Dillard, 212 F. Supp. 3d 938, 948-49 (S.D. Cal. 2016). Nor can municipalities like the County avoid vicarious liability for the Bane Act violations of its employees, named or unnamed, as they can with § 1983 claims. See K.J.P. v. Cnty. of San Diego, 621 F. Supp. 3d 1097, 1121 (S.D. Cal. 2022); D.V. v. City of Sunnyvale, 65 F. Supp. 3d 782, 787 (N.D. Cal. 2014). Otherwise, when "a Bane Act claim is based on an alleged federal constitutional violation, as here, plaintiffs may rely on the same allegations to prove both that the defendant deprived them of a constitutional right and threatened, intimidated or coerced them under the Bane Act." Rios v. Cnty. of Sacramento, 562 F. Supp. 3d 999, 1025 (E.D. Cal. 2021). In other words, when "Fourth Amendment unreasonable seizure or excessive force claims are raised and intentional conduct is at issue, there is no need for a plaintiff to allege a showing of coercion independent from the coercion inherent in the seizure or use of force" to succeed on a Bane Act claim. Johnson v. Shasta Cnty., 83 F. Supp. 3d 918, 934 (E.D. Cal. 2015).
Bane Act violations can also be based on state constitutional or statutory grounds. But while plaintiffs mentioned several potential state law grounds for their Bane Act claims (e.g., Cal. Civil Code § 43, Cal. Penal Code §§ 149, 240, and 242, Cal. Const., Article 1, Sections 1, 7, and 13), they abandoned these grounds in their opposition papers and thus waived them. See Campbell v. Feld Ent., Inc., 75 F. Supp. 3d 1193, 1214 (N.D. Cal. 2014) (Bane Act claims based on state law waived when plaintiffs ignored them in their summary judgment papers).
But the Bane Act is not intended to be just a codification of intentional tort law; it is designed to provide redress when an "underlying violation of rights is sufficiently egregious to warrant enhanced statutory remedies, beyond tort relief." Cornell v. City & Cnty. of San Francisco, 17 Cal. App. 5th 766, 800, 225 Cal.Rptr.3d 356 (2017). Thus, without more, "ordinary negligence is not cognizable under Section 52.1." Id. at 802, 225 Cal.Rptr.3d 356. At the same time, proving the elements of a federal excessive force claim—though necessary—is not sufficient to win a Bane Act claim based on the Fourth Amendment. See Reese v. Cnty. of Sacramento, 888 F.3d 1030, 1044-45 (9th Cir. 2018). To do that, there must be evidence that police had more than "a mere intention to use force that the jury ultimately finds unreasonable." Id. at 1045 (cleaned up). That would be enough for the intentional torts alleged here, but "the Bane Act requires a 'specific intent to violate the arrestee's right to freedom from unreasonable seizure.' " Id. at 1044 (quoting Cornell, 17 Cal. App. 5th at 801, 225 Cal.Rptr.3d 356). This generally means "the jury must find that the defendants intended not only the force, but its unreasonableness, its character as more than necessary under the circumstances." Id. at 1045 (cleaned up). Yet "it is not necessary for the defendants to have been thinking in constitutional or legal terms at the time of the incidents, because a reckless disregard for a person's constitutional rights is evidence of a specific intent to deprive that person of those rights." Id. (cleaned up).
In short, to prevail on their Bane Act claims (as preserved), plaintiffs must prove that (1) defendants violated their Fourth Amendment rights to be free from unreasonable seizures and excessive force, and that (2) the violations were carried out with specific intent to deprive plaintiffs of those rights. The specific intent element, in turn, comprises two questions: "Is the right at issue clearly delineated and plainly applicable under the circumstances of the case," and did "defendant commit the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that right?" Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 520 (9th Cir. 2018) (cleaned up and simplified). "So long as those two requirements are met, specific intent can be shown 'even if the defendant did not in fact recognize the unlawfulness of his act' but instead acted in 'reckless disregard' of the constitutional right." Id. (quoting Cornell, 17 Cal. App. 5th at 803, 225 Cal.Rptr.3d 356); see S.R. Nehad v. Browder, 929 F.3d 1125, 1142 n.15 (9th Cir. 2019) ("Although Bane Act claims do require the specific intent to deprive a person of constitutional rights, such intent can be proven by evidence of recklessness.").
On the first element, for essentially the same reasons that plaintiffs' intentional tort claims survive summary judgment, their Bane Act claims for excessive force or unlawful seizures during the gunpoint detention and their post-shooting detentions should survive, as well. And while the second element is a closer call, plaintiffs have adduced enough evidence—when viewed with all permissible inferences in their favor—to create a triable issue about whether deputies acted with "reckless disregard" of their Fourth Amendment rights during the gunpoint and post-shooting detentions. See Hughes v. Rodriguez, 31 F.4th 1211, 1224 (9th Cir. 2022) ("Whether [officer] used excessive force in violation of Hughes's constitutional right, and whether he had a specific intent to do so, are questions properly reserved for the trier of fact."); accord Est. of Nunis v. City of Chula Vista, — F.Supp.3d —, —, 2023 WL 3940563, at *11 (S.D. Cal. June 9, 2023); Fortson v. City of Los Angeles, 628 F.Supp.3d 976, 994-95 (C.D. Cal. 2022); S.T. v. City of Ceres, 327 F. Supp. 3d 1261, 1283 (E.D. Cal. 2018).
Plaintiffs' Bane Act claim based on Rodriguez's shooting, however, cannot survive summary judgment on the specific intent element. Although the "clearly delineated and plainly applicable" requirement under the Bane Act is nowhere as exacting as the clearly established law requirement under § 1983, it still excludes "vague or novel" applications of Fourth Amendment rights—even when construed at a high level of generality. Sandoval, 912 F.3d at 520 (cleaned up). In Sandoval, for instance, the Ninth Circuit held that because "it was legally unclear whether [ ] 30-day impounds" under California law were considered "seizures" before 2017, the defendants there lacked the "requisite specific intent to violate the plaintiffs' Fourth Amendment rights" to be free of warrantless seizures under the Bane Act when vehicles were impounded in 2011. Id. So too here: it would be a "novel" application of the Fourth Amendment's prohibition against unreasonable seizures—given the innocent-bystander caselaw—to find that Rodriguez was "seized" by Saldivar's use of force intentionally directed at a fleeing suspect with no evidence that Rodriguez was ever an intended target of that force.
IV. CONCLUSION
For all these reasons, the court grants defendants' motion for summary judgment on plaintiffs' claims under 42 U.S.C. § 1983, but it denies their motion on plaintiffs' state-law claims (except the Bane Act claim against Deputy Saldivar for shooting plaintiff Rodriguez). The court will retain supplemental jurisdiction over the remaining state-law claims under 28 U.S.C. § 1367. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009).
The parties are thus ordered to complete any remaining pretrial matters for those claims in accordance with the existing scheduling order.