NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW BISCOTTI and CHRISTIAN No. 13-16238
BISCOTTI,
D.C. No. 2:11-cv-01347-JAM-EFB
Plaintiffs - Appellants,
v. MEMORANDUM *
YUBA CITY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted September 15, 2015
San Francisco, California
Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.
Plaintiffs Matthew and Christian Biscotti appeal the grant of summary
judgment in favor of Defendants on their Fourteenth Amendment due process and
California negligence claims arising out of the deadly shooting of Plaintiffs’
mother, Victoria Rogers-Vasselin, by Yuba City police officers on the doorstep of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
her home. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part,
reverse in part, and remand.
We reverse the district court’s decision to strike the statement by Lionel
Lonnie Patterson in his declaration, attesting that the officers failed to identify
themselves as police prior to shooting Ms. Vasselin. The district court abused its
discretion in determining that Mr. Patterson’s statement lacked foundation, where
evidence in the record showed that Mr. Patterson was physically present at the
house during the entire sequence of events and stood between the officers and Ms.
Vasselin when she was killed. See Fed. R. Evid. 701(a). The district court also
improperly invaded the province of the jury to the extent that it relied on Mr.
Patterson’s intoxication at the time of the shooting to strike his statement. Sabari
v. United States, 333 F.2d 1019, 1021 (9th Cir. 1964) (that witnesses were
intoxicated does not render their testimony inadmissible). It was for the jury, not
the court, to evaluate Mr. Patterson’s intoxication in determining what weight to
assign his testimony. Id.
We affirm the district court’s grant of summary judgment in favor of
Defendants on Plaintiffs’ claim that the officers violated their liberty interests in
the companionship of their mother under the Fourteenth Amendment’s due process
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clause. Police conduct shocks the conscience in violation of due process if
undertaken with (1) deliberate indifference or (2) a purpose to harm unrelated to
legitimate law enforcement objectives. See A.D. v. Cal. Highway Patrol, 712 F.3d
446, 453 (9th Cir. 2013). Plaintiffs’ claim fails under either standard. Under the
former, the officers are protected by qualified immunity because no clearly
established law at the time of their actions put them on notice that their pre-
shooting conduct was in violation of due process. See Pearson v. Callahan, 555
U.S. 233, 243-44 (2009); Mullenix v. Luna, 136 S. Ct. 305, 308, 312 (2015) (per
curiam) (officer not entitled to qualified immunity because “existing precedent”
did not place the “constitutional question beyond debate”) (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011)). Under the latter, there is no evidence in the
record from which a reasonable jury could infer that the officers’ “actions were
undertaken to ‘induce . . . lawlessness, or to terrorize, cause harm, or kill” Ms.
Vasselin. Porter v. Osborn, 546 F.3d 1131, 1141 (9th Cir. 2008) (quoting County
of Sacramento v. Lewis, 523 U.S. 833, 855 (1998)) (alteration in original).
We reverse the district court’s grant of summary judgment on Plaintiffs’
negligence claim. Plaintiffs’ pleadings incorporated into their negligence claim
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factual averments about the officers’ conduct leading up the shooting. 1 Under the
California Supreme Court’s decision in Hayes v. County of San Diego, 305 P.3d
252 (Cal. 2013), the district court erred in declining to consider these pre-shooting
circumstances in evaluating the officers’ negligence. “Law enforcement
personnel’s tactical conduct and decisions preceding the use of deadly force are
relevant considerations under California law in determining whether the use of
deadly force gives rise to negligence liability.” Id. at 263. This pre-shooting
conduct is to be considered not in isolation but rather as “part of the totality of
circumstances surrounding the fatal shooting.” Id. at 261; see also Grudt v. City
of L.A., 468 P.2d 825, 830-31 (Cal. 1970) (in bank) (considering officers’ decisions
about how to execute an arrest in evaluating the reasonableness of their ultimate
use of deadly force).
The California Supreme Court has emphasized that consideration of the
1
We therefore disagree with the district court that Plaintiffs’ complaint failed to
give Defendants fair notice that their negligence claim relied, in part, on pre-
shooting conduct. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the…claim is and the grounds upon which it rests.’”)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original).
Indeed Defendants conceded as much at the summary judgment hearing.
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“totality of the circumstances surrounding any use of deadly force” under
California negligence law “is broader than federal Fourth Amendment law, which
tends to focus more narrowly on the moment when deadly force is used.” Hayes,
305 P.3d at 263 (internal citations omitted). Thus, acts that may not incur
constitutional liability under the Fourth Amendment’s “reasonableness” standard
may be negligent under California tort law’s “reasonable care standard.” Id. at
262 (citing Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002)).
When the contested facts and inferences therefrom are viewed in Plaintiffs’
favor, as they must be at the summary judgment stage, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986), the totality of the relevant circumstances in this
case include not only the events that took place once Ms. Vasselin emerged on her
porch with a shotgun in hand, but also the officers’ pre-shooting tactical decisions
that obscured their law enforcement identity and increased the likelihood of a
violent and deadly encounter. Taken in the light most favorable to Plaintiffs, the
sweep of relevant facts includes the officers’ knowledge that their planned visit to
the house would be after dark and that at least one occupant had been armed and
intoxicated earlier that evening. The officers did not park in front of the house,
where a marked car would have been visible, but instead approached from the side,
5
wearing dark uniforms and without announcing themselves as police officers. The
officers stood behind pillars, further obscuring their law enforcement identity, and
several of them shouted imperceptible orders at Ms. Vasselin when she opened the
door. In the process, they failed to inform Ms. Vasselin that they would shoot if
she did not comply with their commands.
Viewing the evidence as a whole, we conclude that there is a triable issue as
to whether the officers’ ultimate use of deadly force was reasonable under
California negligence law. See, e.g., Grudt, 468 P.2d at 830-31 (triable issue
where plainclothes officers acted so as to make a driver think he was being
robbed); Munoz v. Olin, 596 P.2d 1143, 1148 (Cal. 1979) (“failure [to] adequately
. . . warn [decedent] and to attempt other means to apprehend him” supported
jury’s negligence finding); George v. Morris, 736 F.3d 829, 837-39 (9th Cir. 2013)
(triable issue where plaintiff’s version of the facts showed decedent did not pose an
immediate threat when shot). In reaching this conclusion, we express no view on
what the jury’s verdict should be. Rather, we ask at this stage of the proceedings
only whether a rational trier of fact could find that the officers failed to live up to
their duty to exercise reasonable care. See Nelson v. City of Davis, 571 F.3d 924,
927 (9th Cir. 2009). Because we find that question must be answered in the
6
affirmative, Plaintiffs are entitled to present their case to a jury.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Each party shall bear its own costs on appeal.
7
FILED
Biscotti v. Yuba City, No. 13-16238 JAN 27 2016
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, concurring in part, and dissenting in part: U.S. COURT OF APPEALS
I concur with the majority that the Patterson declaration should not have
been struck, and that the officers are entitled to qualified immunity with respect to
the Plaintiffs’ § 1983 claim.1 However, I would also affirm the district court’s
grant of summary judgment with respect to the Plaintiffs’ negligence claim.
Like federal courts evaluating Fourth Amendment excessive force claims,
California also views “‘reasonableness’ of a particular use of force . . . from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Hayes v. County of San Diego, 305 P.3d 252, 258 (Cal. 2013)
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “To do so, a court must
pay ‘careful attention to the facts and circumstances of each particular case,
including [1] the severity of the crime at issue, [2] whether the suspect poses an
immediate threat to the safety of the officers or others, and [3] whether he is
actively resisting arrest or attempting to evade arrest by flight.’” Hayes v. Cty. of
San Diego, 736 F.3d 1223, 1232 (9th Cir. 2013) (quoting Graham, 490 U.S. at
1
I concur in the memorandum disposition that the officers are protected by
qualified immunity but would also hold that under these circumstances the officers
were not deliberately indifferent as a matter of law, for the reasons explained
herein.
1
396). Courts also consider “under the totality of the circumstances, the quantum of
force used, the availability of less severe alternatives, and the suspect’s mental and
emotional state.” Id. (internal quotation marks and citations omitted). “All
determinations of unreasonable force, however, must embody allowance for the
fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id. (internal quotation marks
omitted). The “most important” consideration is “whether the suspect poses an
immediate threat to the safety of officers or others.” Smith v. City of Hemet, 394
F.3d 689, 702 (9th Cir. 2005) (en banc) (quoting Chew v. Gates, 27 F.3d 1432,
1441 (9th Cir. 1994)).
Applying the considerations articulated above, the officers’ conduct here
was not negligent, even considering the pre-shooting conduct, because Ms.
Vasselin posed an immediate, deadly threat to the officers. She unexpectedly
appeared naked pointing a shotgun in the officers’ direction. She ignored the
officers’ repeated instructions to drop the gun, and instead proceeded to advance
towards them. The time from when Ms. Vasselin appeared with the shotgun to the
time when the officers fired was about one minute. Thus, the officers did not have
time to consider any less severe alternative means to protect themselves from the
2
danger posed.
Plaintiffs, however, contend there were alternative means available to the
officers to avoid or diffuse the situation including having a better plan to
communicate, providing more time for Ms. Vasselin to comply, standing in the
open instead of hiding behind pillars, keeping their weapons holstered, contacting
the residents by phone, waiting to approach the house until the morning,
illuminating the porch, and identifying themselves as police clearly. But officers
are not required to choose the “‘most reasonable’ action or the conduct that is the
least likely to cause harm,” so long as their conduct falls “within the range of
conduct that is reasonable under the circumstances.” Hayes, 305 P.3d at 258
(quoting Brown v. Ransweiler, 171 Cal. App. 4th 516, 537–38 (2009)). Although
Plaintiffs argue that the officers yelled confusing orders at Ms. Vasselin, the record
demonstrates that the theme was consistent: drop the gun. Furthermore, the
suggestion that the officers should have given Ms. Vasselin additional time to
comply ignores the fact that she could have fired at them at any moment.
Additionally, the officers’ placement of themselves behind pillars and drawing
their weapons prior to approaching the house were reasonable safety precautions to
cover themselves. See Duran v. City of Maywood, 221 F.3d 1127, 1131 (9th Cir.
2000) (“Although Plaintiffs are correct in pointing out that the officers had their
3
guns drawn and did not announce their presence, these actions were entirely
reasonable given that they were responding to a call that shots had been fired.”);
Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (“It’s hardly unreasonable for
officers to take arms, knock on the door of an apartment and identify themselves as
police when an armed man who, they are told, recently fired shots and is acting
‘crazy’ lurks inside.” (footnote omitted)). Thus, the officers’ conduct clearly fell
“within the range of conduct that is reasonable under the circumstances.” See
Hayes, 305 P.3d at 258.
Perhaps Ms. Vasselin did not realize that the individuals she was threatening
were police officers, but this possibility does not alter the officers’ reasonable, if
not compelled, belief that Ms. Vasselin was about to shoot them. The officers
could reasonably have believed that Ms. Vasselin did know that they were the
police. The undisputed evidence shows that the officers arrived in marked patrol
cars and wore police uniforms. They knocked at the door. When Mr. Patterson
appeared at the door with a gun, he obeyed their instructions, and the officers
successfully disarmed him. When Ms. Vasselin emerged, Mr. Patterson was on the
porch with his hands on his head. Neither Mr. Patterson nor Ms. Vasselin asked
who the officers were or what they wanted. Thus, unlike Grudt v. City of Los
Angeles, 468 P.2d 825, 830–81 (Cal. 1970), all of the circumstances support the
4
officers’ reasonable belief that Ms. Vasselin knew that they were the police.
Because Ms. Vasselin nonetheless advanced on them with a shotgun pointed in
their direction, the officers’ use of deadly force was not negligent.
* * *
“We must never allow the theoretical, sanitized world of our imagination to
replace the dangerous and complex world that police[] face every day. What
constitutes reasonable action may seem quite different to someone facing a
possible assailant than to someone analyzing the question at leisure.” Martinez v.
Cty. of L.A., 47 Cal. App. 4th 334, 343 (1996) (internal quotation marks omitted).
I would hold that regardless of the officers’ pre-shooting conduct and Ms.
Vasselin’s actual or apparent knowledge that she was facing police officers, given
the immediacy and the deadly threat of harm posed and the lack of then available
alternatives, they were justified in using deadly force. I respectfully dissent from
the majority’s disposition to the extent that it holds otherwise.
5