United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge.
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
“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).
reasons discussed herein, Defendants' Renewed Motion for
Summary Judgment is GRANTED in part and
DENIED in part.
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
Harriswere 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.
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).
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
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.
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).
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).
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.
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. (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).
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,
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.
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.
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
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).
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.
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.
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.
County of Los Angeles v. Mendez
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).
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.
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
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
Proximate Cause-Predicate Constitutional Violation
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.
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,