Linda Capalbo v. Christopher Kurtz

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NOT FOR PUBLICATION DEC 10 2015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.