United States District Court, D. Nevada
ESTATE OF FERNANDO SAUCEDA, by and through its Special Administrator, Irene Sauceda; IRENE SAUCEDA, individually and as natural parent and guardian of FERNANDO SAUCEDA, a minor; SEBASTIAN SAUCEDA, a minor; and GIOVANNA SAUCEDA, a minor, Plaintiffs,
CITY OF NORTH LAS VEGAS, a corporate city of the State of Nevada; NORTH LAS VEGAS POLICE DEPARTMENT, an entity of the City of North Las Vegas; and OFFICER JEFFREY POLLARD, Defendants.
ORDER GRANTING IN PART DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT. (Dkt. #101)
ANDREW P. GORDON, District Judge.
This case arises out of an officer-involved shooting. Plaintiffs are the wife and children of the decedent, Fernando Sauceda. Defendants are the City of North Las Vegas ("North Las Vegas"), the North Las Vegas Police Department ("NLVPD"), and NLVPD special operations officer Jeffrey Pollard. The incident occurred minutes after midnight on January 1, 2011, at Sauceda's residence in North Las Vegas, Nevada. (Dkt.# 59 at 6.)
Some North Las Vegas residents celebrate New Year's Eve by shooting firearms into the air at midnight. (Dkt.# 58 at 20.) Shooting within city limits is a misdemeanor crime. ( Id. at 45.) Due to the increased number of gunfire incidents on New Year's Eve, the NLVPD required its special operations officers to be on duty. ( Id. at 16.) Pollard began his shift that night by attending an operational briefing where he was informed that the special operations team's "mission" was to assist patrol officers and respond to calls involving gunfire and suspects with weapons. ( Id. at 18-19.)
Pollard and special operations officer Michael Harris teamed up to patrol in Harris's unmarked pickup truck. (Dkt. #59 at 6.) Both officers wore the NLVPD special operations uniform consisting of an olive green fatigue-style shirt with subdued-colored NLVPD insignia patches on each arm, olive green fatigue-style pants, and a duty belt. (Dkt.# 60 at 21-23; Dkt.# 104-4 at 12.) Following the incident, the officers were photographed wearing green tactical vests over their uniforms that read "POLICE" in white lettering on the front and back. (Dkt.# 60 at 21-22; Dkt. #104-4 at 12.)
While on patrol, the officers heard gunfire in the neighborhood near Glendale Avenue. (Dkt. #59 at 6.) As they drove down Glendale Avenue, the officers saw several people standing in the driveway of a residence. ( Id. ) The officers turned off Glendale and drove around the block. ( Id. ) As they passed Glendale Avenue again, they saw the group of people still standing in the driveway, one of whom the officers believed had a rifle. ( Id. ) After they passed the street, they heard more gunfire. ( Id. ) Pollard and Harris stopped on a nearby street several houses away from the residence where they saw the group of people and exited the pickup truck. (Dkt.# 58 at 37-38, 47-48.) After hearing more gunshots,  Harris notified dispatch that they were responding to gunfire. ( Id. at 41-42.) Pollard and Harris un-holstered their handguns and proceeded on foot towards the residence. ( Id. at 52, 56, 58.) In the initial approach to the residence, the officers neither verbally announced their presence nor activated their handgun-mounted flashlights. ( Id. at 56-57.)
When Pollard and Harris were one house away from the residence on the sidewalk, someone standing in the driveway noticed them and asked who they were. ( Id. at 57.) According to Pollard and Harris, they activated their handgun-mounted flashlights in response and yelled "police" along with verbal commands. ( Id. at 57; Dkt. #59 at 6.) Other witnesses testified that Pollard and Harris shined their flashlights but did not yell "police" or verbal commands. ( See Dkt.# 80 at 96; Dkt.# 84 at 37-40; Dkt.# 85 at 35-38.) Witnesses also stated they could not tell who was there because it was dark and they did not recognize Pollard and Harris as police officers. (Dkt.# 80 at 115-18; Dkt.# 83 at 48; Dkt.# 84 at 37; Dkt.# 104-1 at 5-7.) At least two people in the yard ran towards the residence because they did not know who was approaching on the sidewalk. (Dkt.# 84 at 39-40.) Pollard pursued them to contain the scene, while Harris proceeded towards other people standing in the driveway. (Dkt.# 58 at 64-67.) At some point between when the officers were standing on the sidewalk and when they entered the yard, Sauceda's wife heard Sauceda say: "Who the fuck is that?" (Dkt.# 79 at 81.) Another witness heard Sauceda say: "Who is that? Watch out, watch out. He's got a gun." (Dkt.# 85 at 45.)
The residence had a porch that was enclosed with a tarp, except for an opening that allowed for ingress and egress through the front door. (Dkt.# 79 at 76.) Chasing the runners, Pollard reached the porch and saw several people attempting to enter the house. (Dkt.# 58 at 68.) According to Pollard, while he was giving them verbal commands, he saw movement coming from his left side and so he turned that way. ( Id. at 69-70.) Sauceda was only a foot or two away and pointed a gun at Pollard's face. ( Id. at 70-71.) Pollard grabbed Sauceda's right arm and fired 12 shots at Sauceda. ( Id. at 72.) Despite being hit nine times (five in the front and four in the back), Sauceda ran away. ( Id. at 73-74.) Harris heard the gunshots, but he could not see Pollard. (Dkt.# 59 at 6.) Harris then saw Sauceda approaching him with a gun in his hand. ( Id. at 7.) Harris told Sauceda to drop the gun and Sauceda dropped it. ( Id. ) Harris then yelled at Sauceda to get on the ground and Sauceda fell face down on the ground. ( Id. at 7; Dkt.# 58 at 73-74.) Pollard arrived at Harris's location moments later. (Dkt.# 59 at 7.) After Harris asked him if he was "ok, " Pollard said: "That guy put his fucking gun in my face!" ( Id. ) Backup arrived shortly thereafter. ( Id. ) Sauceda died at the scene from multiple gunshot wounds. ( Id.; Dkt.# 72 at 2.)
Plaintiffs filed their lawsuit alleging six causes of action arising from Sauceda's death. Defendants have moved for summary judgment asserting, among other things, that Pollard is entitled to qualified and discretionary immunity and that plaintiffs do not have sufficient admissible evidence to maintain their claims. (Dkt. #101.)
II. LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
In determining summary judgment, courts apply a burden-shifting analysis. When the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See id. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324.
At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.
III. CLAIMS UNDER 42 U.S.C. § 1983
A. Violations of Civil Rights: Life and Security of Person (First Cause of Action)
A plaintiff may bring a suit under § 1983 to redress violations of "rights, privileges, or immunities secured by the [United States] Constitution and [federal] laws" that occur under the color of state law. 42 U.S.C. §1983. "To state a claim under § 1983, a plaintiff must  allege the violation of a right secured by the Constitution and laws of the United States, and must  show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiffs' first cause of action alleges that defendants deprived plaintiffs of their right to due process under the Fourth and Fourteenth Amendments, the right to equal protection of the laws under the Fourteenth Amendment, and the rights to be free from excessive force and pre-conviction punishment under the Fourth, Fifth, and Fourteenth Amendments. Although the claim purports to allege due process and excessive force violations under the Fifth and Fourteenth Amendments, claims alleging that law enforcement used excessive force in the course of a seizure are analyzed under the Fourth Amendment. Graham v. Conner, 490 U.S. 386, 395 (1989).
Plaintiffs' second claim in their first cause of action alleges deprivation of the right to equal protection under the laws. "To establish a § 1983 equal protection violation, the plaintiffs must show that the defendants, acting under color of state law, discriminated against them as members of an identifiable class and that the discrimination was intentional." Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003). Defendants moved for summary judgment on this claim, but plaintiffs did not address it in their opposition, thereby conceding the claim. LR 7-2(d). Nevertheless, defendants have met their burden on summary judgment. There is no evidence of intentional discriminatory conduct, and therefore this claim must fail. As a result, the only remaining allegation in count one is that of excessive force in ...