Linda Capalbo v. Christopher Kurtz , 624 F. App'x 538 ( 2015 )

FILED
NOT FOR PUBLICATION DEC 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA CAPALBO, personal No. 13-55642
representative of Carol Cosentino and
guardian ad litem for D.B. and V.B.; D.C. No. 2:11-cv-03206-GAF-SS
RONALD L. BOURS; D.B., by and
through his guardian ad litem Linda
Capalbo, individually and as a successor in MEMORANDUM*
interest to Steven Bours; V.B., by and
through his guardian ad litem Linda
Capalbo, individually and as a successor in
interest to Steven Bours; STEVEN M.
BOURS, The Estate,
Plaintiffs - Appellants,
V.
CHRISTOPHER KURTZ; RICK
ESTEVES; JASON KLEVOS, Chief of
Police; DOWNEY POLICE
DEPARTMENT, a governmental entity;
CITY OF DOWNEY, a governmental
entity,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Gary A. Feess, District Judge, Presiding
Argued and Submitted November 6, 2015
Pasadena, California
Before: FARRIS, TROTT, and BYBEE, Circuit Judges.
The plaintiffs, including the Estate of Steven M. Bours, sued the defendants
pursuant to 42 U.S.C. § 1983 for excessive force, under California law for
wrongful death, and for an alleged violation of Cal. Civ. Code § 52.1, unlawful
interference with a person’s constitutional rights. The district court disposed of all
claims either by way of stipulation, partial judgments on the pleadings, or, in the
case of their section 1983 claim, summary judgment. We have jurisdiction over
this timely appeal pursuant to 28 U.S.C. § 1291. We review de novo, and we
affirm.
In excessive force cases, the inquiry is whether the officers’ use of force was
objectively reasonable under the totality of the circumstances. Graham v. Connor,
490 U.S. 386, 396 (1989). Of the Graham factors, the “single most important
element” is whether the suspect posed an immediate threat to the safety of officers
or others. Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005).
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The district court accurately summed up the events generating this case. The
central facts were recorded by the officers’ dashboard video camera. The
undisputable facts are as follows.
Bours, under the influence of amphetamine/methamphetamine and wielding
an axe, was walking northbound in the middle of the southbound lanes of
Paramount Boulevard at about 6:30 p.m. on March 20, 2010. The street was lined
with businesses, homes, vehicles, and people. Bours’s activity was so alarming
that numerous individuals called 911 to report it. With guns drawn, the responding
officers identified themselves as police, shielded themselves behind their stationary
vehicle doors as he approached them, and repeatedly shouted at Bours to drop his
axe. In the video, the red and blue emergency lights of the officers’ vehicle were
so bright that their reflection can be seen on Bours’s shirt as he walked directly up
to the hood of their unit. Bours quickly approached, paused briefly in front of the
police vehicle, and then walked around it while the officers continued to yell “drop
the axe” and “drop it.” Nineteen times the officers shouted these warning
commands at Bours. He failed to respond. Though Bours walked out of the
dashboard camera view, it is undisputed that he fell in the spot he was standing
when he was shot 1.4 seconds later—close to the vehicle, past the passenger-side
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door, and closer to the officers than when he rounded the unit’s front with his axe
in hand. The entire interaction lasted twenty-one seconds.
The plaintiffs ask us to infer that Bours was walking away from the officers
and towards the curb when they shot him. The record belies such an inference,
rendering it unreasonable and thus insufficient to create a triable issue of fact or
produce a viable verdict in their favor. See Anderson v. Liberty Lobby, 477 U.S.
242, 250 (1986). Reviewing the facts in the light most favorable to the plaintiffs, it
is indisputable that the officers’ conduct was objectively reasonable because Bours
posed an immediate threat to both the safety of the officers and bystanders on the
street. See e.g., Blanford v. Sacramento Cty., 406 F.3d 1110, 1116–18 (9th Cir.
2005) (finding that officers’ use of lethal force was reasonable where suspect was
carrying a sword in a residential neighborhood, walking away from the officers and
attempting to enter a private backyard, and ignoring officers’ repeated commands
to stop).
Contrary to the plaintiffs’ assertions, the district court did not ignore the law
and the rules governing summary judgment. The court’s discussion of the facts
and inferences to be drawn from them was no more than an explanation of why as
a matter of law the plaintiffs have no actionable case.
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Accordingly, the district court’s grants of judgment on the pleadings and
summary judgment in favor of the defendants on the federal and state claims was
appropriate.
AFFIRMED.
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FILED
Capalbo, et al v. Kurtz, et al, No. 13-55642 DEC 10 2015
MOLLY C. DWYER, CLERK
TROTT, Circuit Judge, concurring in the judgment: U.S. COURT OF APPEALS
The complaint filed by plaintiffs’ attorney Jeff Dominic Price accuses the
defendants Kurtz and Klevos of conspiring with premeditation to kill Steven Bours
by provoking him into a duel so that they could use deadly force against him. The
complaint also accuses the officers of agreeing among themselves and with others
to “fabricate police reports, to make false statements to other police officers, to
attempt to fabricate reasonable suspicion and probable cause, to suppress
exculpatory evidence, to commit perjury, and to present planted evidence, having
as their goal the concealment of the truth . . .” as part of the conspiracy. According
to the complaint, Klevos and Kurtz then “executed the plan by firing eight (8)
bullets . . . into the body of Steven Bours . . . .”
In the language of Rule 11(b)(3) of the Federal Rules of Civil Procedure,
these factual contentions had and have no evidentiary support whatsoever.
Moreover, these attention-seeking allegations were not “likely [to] have
evidentiary support . . . after a reasonable opportunity for further investigation or
discovery . . . .” This complaint was drafted and filed without a reasonable inquiry
into the facts and for abusive and defamatory purposes.
A license to practice law is not a license to smear and to vilify anyone, and
that is what this complaint was. Counsel’s heated defense at oral argument of his
complaint simply compounded this unprofessional conduct. Mr. Price’s clients can
take solace, however, in a standard principle adhered to by our courts: The sins of
an attorney are never visited upon the clients.