Sylvia Buchanan v. City of San Jose ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2019
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
SYLVIA BUCHANAN; DEVINY No. 17-16100
BUCHANAN; L. W., minor child,
D.C. No. 5:15-cv-05786-LHK
Plaintiffs-Appellants,
v. MEMORANDUM*
CITY OF SAN JOSE; RYAN DOTE, San
Jose Police Officer; JAMES SOH, San Jose
Police Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted October 11, 2018**
San Francisco, California
Before: TASHIMA and MURGUIA, Circuit Judges, and CHATIGNY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert N. Chatigny, United States District Judge for
the District of Connecticut, sitting by designation.
This case arises from a tragic incident in which San Jose Police Officers Ryan
Dote and James Soh shot and killed Phillip Watkins. It is undisputed that Watkins
suffered from suicidal despair and arranged to engage the officers in the
confrontation that resulted in his death. This action, brought under 42 U.S.C. §
1983, asserts claims against the officers for excessive force in violation of the
Fourth Amendment, as well as several state law claims. The district court granted
summary judgment in favor of the officers on all claims. Plaintiffs appeal the
decision, arguing that the district court erred in finding that the officers acted
reasonably.
We review a grant of summary judgment de novo. Blankenhorn v. City of
Orange, 485 F.3d 463, 470 (9th Cir. 2007). In doing so, we view the evidence in the
light most favorable to the non-moving party. Lal v. California, 746 F.3d 1112,
1115–16 (9th Cir. 2014) (quoting Garcia v. County of Merced, 639 F.3d 1206, 1208
(9th Cir. 2011)). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. Excessive Force
The officers responded to an emergency telephone call by Watkins, who
falsely reported that there was a man at his address threatening his family with a
knife. When the officers arrived at the address, they saw Watkins standing outside
the house next to two women, armed with a knife. At that point, the distance
between the officers and Watkins was more than 130 feet. It is undisputed that
2
Watkins then immediately advanced toward the officers in a threatening manner
intending to commit “suicide by cop.” Within seconds, both officers opened fire,
and Watkins fell to the ground fatally wounded. At the time the officers opened fire,
Watkins was approximately 55 feet from them. When Watkins fell, he was
approximately 18 feet from the officers.
Plaintiffs claim that the officers’ use of deadly force was unreasonable
because Watkins posed no immediate threat. The district court rejected this claim on
the ground that when the officers began firing, it is undisputed that Watkins was
advancing toward them at a rapid pace, armed with a knife in his hand, and ignoring
the officers’ repeated commands to stop. In these circumstances, the immediate
threat to the officers justified their use of deadly force. Had the officers waited 1 to
1.5 seconds more before firing when they did, Watkins would have reached them
with the knife before falling to the ground. 1 See Lal, 746 F.3d at 1118–19
(concluding that officers’ use of deadly force was reasonable when suspect had
ignored officers’ commands, previously demonstrated an intent to hurt others, and
1
The dissent suggests that our conclusion that Watkins posed an immediate
threat at a distance of 55 feet away from the officers is an impermissible finding of
fact. However, this is plaintiffs’ estimate of the distance between Watkins and the
officers—an assertion we must assume to be accurate for purposes of our review.
Lal, 746 F.3d at 1115. Defendants estimated the distance to be shorter, at 46 feet.
Further, the dissent does not challenge the undisputed evidence that at 55 feet,
Watkins was advancing toward the officers at a fast past (at least 12.3 feet per
second), all while armed with a knife and ignoring the officers’ repeated commands
to stop.
3
was charging at the officers with a rock over his head).
Plaintiffs argue that the district court erred because the record evidence,
viewed favorably to them, would permit a jury to find that the officers needlessly
opened fire while Watkins was standing about 55 feet away from them after
complying with their commands to stop. But there is no evidence, direct or
circumstantial, to support plaintiffs’ theory that Watkins was no longer advancing
toward the officers when they opened fire. All the evidence, including the accounts
provided by two disinterested witnesses, supports a finding that Watkins was
advancing toward the officers.
Our esteemed dissenting colleague states that deposition testimony of Sylvia
Buchanan raises a triable issue. We respectfully disagree. Buchanan testified that
when the officers arrived, Watkins broke away from her and advanced toward the
officers. The officers yelled at him to stop. Buchanan begged Watkins to stay with
her, knowing he was distraught, but Watkins kept walking toward the officers then
accelerated into a trot. She screamed at the officers that Watkins needed help and
that they should tase him. At some point before the officers opened fire, Buchanan
saw Watkins stop.
However, Buchanan testified that she could not remember what Watkins did
next—whether Watkins remained standing or began moving toward the officers
again. Rather, all Buchanan could remember afterwards was that she continued to
4
move toward the officers as she screamed at them to use their tasers and that she
then heard gunfire.
Viewed in the light most favorable to plaintiffs, Buchanan’s testimony is
insufficient to create a triable issue. Buchanan’s testimony that she saw Watkins
stop but could not remember what he did next does not permit a reasonable
inference that the officers opened fire even though Watkins was standing still at a
distance of 55 feet. At most, Buchanan’s testimony invites speculation about what
occurred next. As we have held before, however, “mere allegation and speculation
do not create a factual dispute for purposes of summary judgment.” Nelson v. Pima
Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996).
Nor does the “21-foot rule” cited by the dissent enable plaintiffs to avoid
summary judgment. The 21-foot rule provides that a person at a distance of 21 feet
or less from an officer may pose a threat to the officer’s safety. Based on this rule,
the dissent would hold that there exists a genuine dispute as to whether the officers
acted reasonably in this case because Watkins, at a distance of more than 21 feet
from the officers, may not have posed an immediate threat to their safety when they
began shooting.
The 21-foot rule provides that a person at a distance of 21 feet or less may
pose a threat to the safety of an officer. It does not follow from this rule, or any
other, that armed suspects never pose a threat beyond 21 feet. Notably, the dissent
5
does not cite any case holding that an officer must wait until an armed suspect is
within 21 feet, or capable of actually inflicting death or serious harm, before being
justified in using deadly force.
Plaintiffs also argue that the officers had less intrusive tactics available to
subdue Watkins. However, Officer Dote’s taser was not on his person. The evidence
is inconclusive as to whether Officer Soh had a taser on his person, but Officer Soh
stated in his declaration that a “taser would not have been an appropriate weapon in
this situation because it [would have been] difficult to hit a running person with
both prongs of the taser . . . unless the person [was] very close.” Therefore, the
officers’ use of force in response to Watkins’s conduct was reasonable under the
circumstances. See Lal, 746 F.3d at 1117 (the fact that alternative means of
subduing the suspect were not available when the suspect became a threat to
officers weighed in favor of reasonableness); see also Scott v. Henrich, 39 F.3d 912,
915 (9th Cir. 1994) (officers “need not avail themselves of the least intrusive means
of responding to an exigent situation; they need only act within that range of
conduct we identify as reasonable”).
Finally, plaintiffs contend that the officers were on notice that Watkins was
emotionally disturbed because: (1) they knew that another unit was responding to
the scene with non-lethal-force options; (2) Watkins was holding the knife straight
out, allegedly demonstrating an intent to commit “suicide by cop”; and (3)
6
Buchanan shouted out, “Don’t shoot [Watkins], he needs your help, use your
tasers.” Plaintiffs fail to articulate how these circumstances made it reasonably
apparent to the officers that Watkins was mentally ill. Cf. City & County of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1769–70 (2015) (officers responding to call
from social worker at group home for people dealing with mental illness); Derole v.
Rutherford, 272 F.3d 1272, 1276, 1280 (9th Cir. 2001) (officers responding to call
from wife about distressed husband and arriving to investigate peculiar behavior).
Accordingly, the district court properly granted summary judgment in favor of the
defendants.
II. State Law Claims
Plaintiffs’ state law claims for violation of the Bane Act, assault, and
negligence rise or fall based on the reasonableness of the officers’ use of force. See
Lyall v. City of Los Angeles, 807 F.3d 1178, 1184 (9th Cir. 2015) (citing Cal. Civ.
Code § 52.1) (claim under Bane Act requires deprivation of constitutional right);
Brown v. Ransweiler, 171 Cal. App. 4th 516, 527–29, 534 (2009) (resolving
plaintiffs’ battery and negligence claims on reasonableness grounds). Therefore,
because the officers acted reasonably, the district court properly dismissed
plaintiffs’ state law claims for violation of the Bane Act, assault, and negligence.
Plaintiffs’ claim under California’s Ralph Act also fails because there was
insufficient evidence that the officers’ conduct in this case was racially motivated.
7
See Simmons v. Superior Court of San Diego Cty., 7 Cal. App. 5th 1113, 1123
(2016).
AFFIRMED.
8
FILED
Buchanan v. City of San Jose, No. 17-16100
JUL 26 2019
TASHIMA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Because the majority’s disposition ignores the salient rules governing review
of an order granting summary judgment, I respectfully dissent.
This is an excessive force case brought against the City of San Jose and two
of its police officers under 42 U.S.C. § 1983. The district court granted the
defendants’ motion for summary judgment, concluding that the officers acted
reasonably in shooting and killing the plaintiffs’ decedent, Phillip Watkins. In
affirming that judgment, the majority recites the facts in the light most favorable to
the moving parties – the defendants – and ignores the facts and inferences which
support the plaintiffs’ claims.
The majority first recites as an uncontroverted fact that Watkins was
advancing towards the officers “quickly,” at a speed of 12.3 feet per second. But
this conclusion ignores completely the testimony of Sylvia Faye Buchanan, who
flatly stated that Watkins came to a complete stop before he reached the officers.
(“They told him to stop, and he stopped.”) The district court rejected Sylvia
Buchanan’s testimony on the basis that it contradicted her prior testimony, but such
a rejection is impermissible weighing of the evidence. See Pepper & Tanner, Inc.
v. Shamrock Broad., Inc., 563 F.2d 391, 393 (9th Cir. 1977) (“On a motion for
summary judgment neither [this court] nor the trial courts are permitted to weigh
the evidence, pass upon credibility, or ‘speculate as to ultimate findings of fact.’”
(citation omitted)). And the majority’s discussion of her testimony—ultimately
labeling it “unclear”—only highlights the fact that it creates an issue of fact for the
jury.
The majority criticizes Ms. Buchanan’s testimony, contending that it is
“unclear what transpired after Watkins came to a stop,” and that “we are left to
speculate what Watkins may or may not have done next.” Like the district court, it
refuses to credit her testimony and to draw reasonable inferences from it in her
favor. In sum, it rejects her testimony and accepts the defendants’ version of what
transpired, drawing all inferences in their favor. But it is the province of the jury
to sort through potentially confusing testimony and determine which statements to
credit and which not to, not the court’s. Id. This is particularly true here, where
the best witness, Watkins, is unable to testify. See Gregory v. Cty. of Maui, 523
F.3d 1103, 1107 (9th Cir. 2008) (noting that, in “cases in which the victim of
alleged excessive force has died,” we must carefully examine the record to
determine if the officers’ accounts are credible).
Second, engaging in its own factfinding, the majority finds that Watkins
posed an immediate threat to the officers because he was only “55 feet away from
-2-
the Officers when they opened fire on Watkins.”1 But in making that finding, the
majority ignores the San Jose Police Department’s own policy, which provides that
a person armed with a dangerous weapon, such as a knife or bat, constitutes a
danger to the safety of the officer when that person is at a distance of 21 feet or less
from the officer. Thus, under the Department’s own 21-foot rule, Watkins, at a
distance of 55 feet, presumptively did not pose an immediate threat to the safety of
the officer when he was shot.2 Whether the officer, in shooting Watkins in
contravention to the Department’s own 21-foot rule, acted reasonably, presents a
classic, controverted question of material fact.3
1
The majority misunderstands what factual finding I object to.
Accepting that the officers opened fire at 55 feet, as plaintiffs assert, the majority’s
error lies in finding that it was reasonable for the officers to believe that Watkins
posed an immediate threat in contravention of their own Department’s policy.
2
The majority’s interpretation of the 21-foot rule effectively reads it
into oblivion. The point of the rule is surely to guide officers’ conduct as to
whether and when a suspect poses a threat. While there certainly may be
occasions, as the majority notes, when a suspect within 21 feet would not be a
threat, and when one outside 21 feet would be a threat, the policy creates a
presumption for officers’ to use. Police officers are trained based on the policy,
and the reasonable inference is that this training should affect our assessment of
what a reasonable officer would believe and how he should react. Accordingly, the
fact that the officers acted in contravention of the Department’s own policy, at the
least, creates a question of fact for the jury as to whether their actions were
reasonable.
3
The majority relies on Officer Soh’s declaration that a taser would not
(continued...)
-3-
Under well-established rules governing the review of summary judgment
orders, on this record, whether the officer’s use of deadly force was reasonable or
excessive is a controverted question of fact the resolution of which lies in the
province of the jury. See Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)
(“Police misconduct cases almost always turn on a jury’s credibility
determinations.”). Uncertainty as to the record, at the summary judgment stage,
must be resolved in favor of the plaintiff. Given the uncertain summary judgment
record that we have here, as the Supreme Court has noted, “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Because I would reverse the grant of summary judgment to defendants and
remand for trial, I respectfully dissent.
3
(...continued)
have been effective because Watkins was not “very close,” i.e., not close enough.
Maj. Dispo. at 6. I find it perplexing how the fact that Watkins was not close
enough for police to use a taser does not, at the least, raise a controverted issue of
fact whether he was close enough for him to use a knife.
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