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Estate of Sauceda v. City of North Las Vegas

United States District Court, D. Nevada

March 30, 2019

CITY OF NORTH LAS VEGAS, et al., Defendants.


          Gloria M. Navarro, Chief Judge United States District Judge.

         Pending before the Court is the Renewed Motion for Summary Judgment, (ECF No. 140), filed by the City of North Las Vegas (“North Las Vegas”), the North Las Vegas Police Department (“NLVPD”), and Officer Jeffrey Pollard (“Pollard”) (collectively “Defendants”). Plaintiffs the Estate of Fernando Sauceda, Irene Sauceda, and their minor children (collectively “Plaintiffs”) filed a Response, (ECF No. 141), and Defendants filed a Reply, (ECF No. 146).

         For the reasons discussed herein, Defendants' Renewed Motion for Summary Judgment is GRANTED in part and DENIED in part.

         I. BACKGROUND

         A. Factual Summary

         This case arises from an officer-involved shooting at the home of Plaintiffs in North Las Vegas soon after midnight on January 1, 2011. On the night of the incident, Plaintiffs and several other individuals were at Plaintiffs' home celebrating New Year's Eve. (See Order 1:15- 2:19, ECF No. 107). Special Operations Officers Jeffrey Pollard and Michael Harris[1]were tasked that evening with patrolling the neighborhood near Plaintiff's home and particularly, to be on the lookout for celebratory gunfire, a common occurrence in North Las Vegas on New Year's Eve. (Id. 2:1-2); (Pollard Dep. 16:21-17:1, 20:6-14, Ex. A to Defs.' Mot. Summ. J. (“MSJ”), ECF No. 140-2). The officers were patrolling in Harris's unmarked pickup truck with Pollard in the passenger seat. (Order 2:1-2, ECF No. 107); (Pollard Dep. 38:11-13). The officers were wearing the NLVPD special operations uniform, consisting of an olive green, fatigue-style shirt with subdued-colored NLVPD insignia patches on each arm, and a duty belt. (Id. 2:2-5).

         At approximately midnight, the officers drove past Plaintiffs' house when Pollard saw a group of people standing in front of the home with the lights on. (Pollard Dep. 34:12-25, 35:19-23). Pollard testified he did not see anything suggesting illegal activity. (Id. 36:3-18). Pollard and Harris continued down the street, circled the block, and from an adjacent street, three houses away, Pollard glanced at Plaintiffs' home and observed “somebody holding something shiny up in the air that looked like maybe the barrel of a rifle.” (Id. 36:22-37:5-16). At this point, the officers did not hear any gunshots. (Id. 37:17-18).

         After Pollard described to Harris what he saw, the officers parked the truck a few properties away from Plaintiffs' house. (Id. 48:4-20). The officers notified dispatch, and waiting outside the truck for thirty seconds to a minute to devise a plan. (Id. 40:23-25). Standing outside the truck, Pollard and Harris heard the sounds of gunshots in the distance, and subsequently notified dispatch, obtaining a “code red, ” by which a police radio channel is cleared. (Id. 42:9-21). According to Pollard, the officers “weren't sure that [Plaintiffs' home was] where the gunfire came from. We weren't sure. We only heard shots in the air. We were hearing numerous shots coming from different aspects of the city.” (See Id. 45:25-46:18) (responding to question asking why Pollard thought he saw a rifle yet declined to wait for backup).

         After devising their plan to make their approach, the officers exited the truck several houses down from Plaintiffs' residence, unholstered their guns, and walked toward Plaintiffs' home at normal pace without activating their handgun-mounted flashlights or announcing their presence. (Order 2:15-19, ECF No. 107). The officers heard no further gunshots once they commenced their approach. (Pollard Dep. 49:15-20).

         As the officers arrived within two houses of Plaintiffs, an unidentified individual standing in Plaintiffs' driveway noticed Pollard and Harris and asked who they were. (Id. 2:20- 21); (Pollard Dep. 56:21-57:6). The officers activated their flashlights and rushed onto the property. (Order 2:21-22). The officers claim that they announced themselves as police, but the other witnesses testified that the officers did not identify themselves and that in their camouflage uniforms, they did not recognize the officers as law enforcement. (Id. 2:21-26).

         While Harris approached several individuals standing in the driveway, Pollard pursued other individuals who had run toward the residence. (Id. 3:1-7). The residence included a porch that is enclosed with a tarp, except for an opening that allowed for ingress and egress through the front door. (Id. 3:8-9). Chasing the runners, Pollard ran up to the porch and pulled back the tarp, looking in. (Id. 3:9-10). Pollard noticed movement to his left and turned to find Fernando Sauceda (“Sauceda”) pointing a gun at his face. (Id. 3:11-13). Officer Pollard held down Sauceda's right arm and, after a struggle, fired twelves shots at Sauceda as he attempted to flee. (Id. 3:12-14); (Pollard Dep. 71:19-74:2). Officer Pollard's shots hit Sauceda nine times-five in the front and four in the back-and he died shortly thereafter. (Order 3:14-21).

         B. Procedural History

         On December 30, 2011, Plaintiffs filed the instant suit alleging six causes of action arising from the shooting: (1) violations of the Fourth Amendment under 42 U.S.C. § 1983; (2) section 1983 municipal liability; (3) intentional or negligent infliction of emotional stress; (4) assault and battery; (5) negligence; and (6) negligent supervision and training. (See Compl. ¶¶ 25-47, ECF No. 1).

         On February 12, 2014, Defendants moved for summary judgment on all of Plaintiffs' claims, (ECF No. 101). In his order, Judge Gordon found in favor of Defendants on the municipal liability and negligent supervision claims, as well as Plaintiffs' prayer for punitive damages emanating from municipal liability and state-law tort liability.[2] (Order 11:1-14:4, 18:4-26, 19:1-13, ECF No. 107). Judge Gordon withheld judgment on Plaintiffs' Fourth Amendment excessive force claim, the three other state law claims, and Plaintiffs' prayer for punitive damages against Pollard pursuant to § 1983. (Id. 19:14-20:8). As to excessive force, Judge Gordon concluded that the actual shooting of Sauceda itself was not excessive force. (Id. 6:7-8:6). However, Judge Gordon ordered supplemental briefing on whether Pollard's alleged conduct in provoking the shooting independently violated the Constitution such that the Fourth Amendment claim, as well as three state law claims, would survive summary judgment. (Id. 8:7-10:22, 16:1-18:3, 19:21-20:8).

         Following entry of the order, Plaintiffs filed a motion to reconsider, (ECF No. 112), and both parties filed their respective supplemental briefs. (See ECF Nos. 113, 114). Upon Judge Gordon's recusal, this matter was reassigned to this Court, (See ECF No. 115). On December 1, 2015, the Court denied Plaintiffs' motion to reconsider and Defendants' motion for summary judgment. (See Order 17:11-18:2, ECF No. 121). Applying the Ninth Circuit's provocation rule, the Court concluded Pollard may be liable for excessive force because of a disputed issue of material fact “concerning whether Officer Pollard's actions leading up to the shooting constituted a constitutional violation.” (Id. 8:19-21). The Court found that Defendants failed to establish entitlement to the exigency or emergency exception to the Fourth Amendment's warrant requirement, and that Pollard is not entitled to qualified immunity. (Id. 10:10-11, 17:7- 10). Finally, the Court denied Defendants' motion for summary judgment as to Plaintiffs' state law claims given the Court's holding as to the provocation rule. (Id. 8:19-22, 17:14-18:2). Pollard subsequently appealed the Court's judgment to the Ninth Circuit. (See ECF Nos. 123, 125-126).

         During the pendency of Pollard's appeal, the United States Supreme Court issued its decision in County of Los Angeles v. Mendez, 137 S.Ct. 1539 (2017), in which the Court abrogated the Ninth Circuit's provocation rule, stating the “Fourth Amendment provides no basis for such a rule.” Id. at 1544, 1546-48.

         Because this Court's summary judgment orders were premised, in part, upon application of the provocation rule, the Ninth Circuit vacated those orders and remanded the case “so that the court can consider the summary judgment issues in light of [Mendez].” (See ECF No. 134). This Court subsequently ordered the parties to “refile their summary judgment briefing specifically discussing the impact of [Mendez].” (ECF No. 137).


         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, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In contrast, 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 Celotex Corp., 477 U.S. at 323- 24. 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. Pac. 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 Corp., 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.


         In the instant Motion, Defendants argue that Pollard is entitled to summary judgment on the merits of Plaintiffs' Fourth Amendment claim or else is protected by qualified immunity. Plaintiffs contend that, notwithstanding Mendez, the Court's prior findings and conclusions apply with equal force to the present matter before the Court. Before turning to Defendants' Motion and the parties' arguments, the Court first considers the impact of the Supreme Court's holding in Mendez.

         A. County of Los Angeles v. Mendez

         In Mendez, the United States Supreme Court nullified the Ninth Circuit's “provocation rule, ” concluding that “the Fourth Amendment provides no basis for such a rule.” Mendez, 137 S.Ct. at 1544. The Ninth Circuit's provocation rule “permit[ted] an excessive force claim under the Fourth Amendment ‘where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.'” Id. at 1546 (quoting Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002)). Under the rule, once a court determines that a forceful seizure is reasonable under Graham v. Conner, 490 U.S. 386 (1989), the court must “ask whether the law enforcement officer violated the Fourth Amendment in some other way in the course of events leading up to the seizure.” Id. “If so, that separate Fourth Amendment violation may ‘render the officer's otherwise reasonable defensive use of force unreasonable as a matter of law.'” Id. (quoting Billington, 292 F.3d at 1190-91) (emphasis in original).

         Rejecting the provocation rule, the Supreme Court clarified the “settled and exclusive framework” for analyzing Fourth Amendment excessive force claims. Id. Specifically, “[d]etermining whether the force used to effect a particular seizure is reasonable requires balancing of the individual's Fourth Amendment interests against the relevant government interests.” Id. (quoting Graham, 490 U.S. at 396). In such cases, the operative question is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Id. (quoting Tennessee v. Garner, 471 U.S. 1, at 8-9 (1985)). “The reasonableness of the use of force is evaluated under an ‘objective' inquiry that pays ‘careful attention to the facts and circumstances of each particular case, '” and “‘must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'” Id. (quoting Graham, 490 U.S. at 396). “Contrary to [the provocation rule], the objective reasonableness analysis must be conducted separately for each search or seizure that is alleged to be unconstitutional.” Id. at 1547.

         The Supreme Court cautioned, however, that a plaintiff could still succeed on a Fourth Amendment claim through a theory of proximate causation. The Court explained: “[P]laintiffs can-subject to qualified immunity-generally recover damages that are proximately caused by any Fourth Amendment violation.” Id. at 1548 (citing Heck v. Humphrey, 512 U.S. 477, 483 (1994) (noting that § 1983 “creates a species of tort liability” informed by tort principles regarding “damages and the prerequisites for their recovery.”)). “Proper analysis of this proximate cause question require[s] consideration of the ‘foreseeability or the scope of the risk created by the predicate conduct,' and require[s] the court to conclude that there was ‘some direct relation between the injury asserted and the injurious conduct alleged.'” Id. at 1548-49 (quoting Paroline v. United States, 134 S.Ct. 1710, 1719 (2014)).

         B. Excessive Force

         Preliminarily, Pollard is entitled to summary judgment on Plaintiffs' excessive force theory of liability. In light of Mendez, whether Pollard's warrantless entry onto Sauceda's porch recklessly provoked the subsequent deadly encounter no longer factors into the excessive force analysis. See Mendez, 137 S.Ct. at 1547 (“The framework for analyzing excessive force claims is set out in Graham. If there is no excessive force claim under Graham, there is no excessive force claim at all.”). The Court has already concluded that Pollard did not use excessive force under Graham, (see Order 6:11-8:6, ECF No. 107), and the Court need not repeat that analysis here.[3]

         C. Proximate Cause-Predicate Constitutional Violation

         Although the provocation rule is defunct, Mendez does not foreclose a plaintiff from recovering on a distinct Fourth Amendment theory of proximate causation. See Mendez, 137 S.Ct. at 1548. To invoke this alternative theory of liability, a plaintiff must establish a predicate Fourth Amendment violation. Id.; see also Mendez v. Cnty. of Los Angeles, 897 F.3d 1067, 1074 (9th Cir. 2018).

         As discussed below, Defendants have failed to carry their burden of establishing that an exception to the warrant requirement justified Pollard's entry onto Plaintiffs' enclosed porch, and Pollard's constitutional violation in this regard violated clearly established law. Consequently, ...

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