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Estate of Ramirez v. City of Billings

United States District Court, D. Montana, Billings Division

January 30, 2019

ESTATE OF RICHARD DAVID RAMIREZ, by and through Personal Representative Julio Ramirez; RICHARD JORDAN RAMIREZ, by and through Conservator Julio Ramirez; and JULIO RAMIREZ; Plaintiffs,
CITY OF BILLINGS, a municipal corporation of the State of Montana; OFFICER GRANT MORRISON; CHIEF RICH ST. JOHN; JOHN DOES 1-10; and CORPORATIONS A-J; Defendants.

          OPINION & ORDER


         On the night of April 14, 2014, Officer Grant Morrison of the Billings Police Department shot and killed Richard Ramirez after pulling over the vehicle in which Ramirez was a passenger. The ostensible reason to stop the driver, not Ramirez, was a burned out license plate light. Officer Morrison killed Ramirez when he refused to raise his hands simultaneously. Ramirez's estate, his father Julio Ramirez, and his son Richard Jordan Ramirez ("Plaintiffs") sued Morrison, Billings Police Chief Rich St. John, and the City of Billings under 42 U.S.C. § 1983, claiming the shooting was an excessive use of force in violation of Ramirez's Fourth and Fourteenth Amendment rights. They also brought state negligence, survivorship, wrongful death, and assault claims. The defendants subsequently filed motions for summary judgment. (Docs. 21, 45.) Oral argument was heard on the motions on January 9, 2019. Morrison's motion for summary judgment is denied in part and reserved in part as to the § 1983 claims and granted as to the state law claims. The City and St. John's joint motion is granted as to the § 1983 claims and denied in part and granted in part as to the state law claims.

         Background [1]

         On April 13, 2014, Officer Marc Snider responded to reports of a robbery during which a person had been shot. Upon arriving, he learned Michael Chavez was the victim. Chavez told Snider he had been shot by a Richard Ramirez, who he claimed to have known for a long time. Officers found three syringes, bags of pills, and what they believed to be methamphetamine. Snider believed Chavez had a large amount of cash at the time of the shooting and found a cell phone with text messages from people who appeared to want to buy drugs. Snider theorized the shooting was drug-related and may have been a drug rip off.

         Officer Grant Morrison arrived at the scene 10 or 15 minutes after the shooting was reported. He heard two people on the radio identify Ramirez as the suspect. Morrison was familiar with Ramirez. In the past, he had been called to the home of Ramirez's parents, Julio and Betty, to assist them in removing Ramirez. On the night of the Chavez shooting, Morrison and Officer Tony Jensen went to Julio and Betty's home to look for Ramirez, but he was not there. Morrison told them Ramirez was a suspect in a shooting.

         The next night, April 14, 2014, Morrison began his shift at 9:00 p.m. At the shift briefing, Morrison learned the Chavez shooting was likely drug-related. He also learned of an "attempt to locate" out on Ramirez and that Ramirez may be armed and dangerous. No. arrest warrant had been issued for Ramirez. Whether Morrison was instructed to treat Ramirez as armed and dangerous or whether officers merely surmised he might be armed and dangerous is in dispute.

         Later in his shift, Morrison was travelling southbound on South 34th Street in an area of Billings commonly called "Southside" when he saw a red Ford Focus traveling westbound on 6th Avenue South. Morrison claims the vehicle made a quick right turn when the driver saw his patrol car, after which he began following it. Plaintiffs claim Morrison followed the vehicle because he knew Ramirez was a passenger. After following the vehicle for approximately one minute and forty seconds, Morrison initiated a traffic stop. He claims the vehicle's license plate was not illuminated as required by Montana law.[2] Plaintiffs dispute the violation. The video from Morrison's squad car is unclear about the light.

         As Morrison's patrol lights went on, the passenger in the rear passenger seat, Ramirez, turned to look at Morrison and shifted his body. Morrison approached the rear passenger door and said, "Hands up. All four of you hands up," to the four people in the vehicle. Ramirez raised his hands. Then Morrison opened the rear passenger door and said to Ramirez, "What were you doing? Why were you moving your hands around so much? You're making me nervous, man." Then he asked, "Who are you?" To which Ramirez replied, "Richard." As Ramirez said this, his left hand dropped out of view of the dashboard camera.

         Morrison responded, "Richard? All of you put your fucking hands up right now on top of the seats." Ramirez placed his hands on the seat in front of him, then dropped them out of the camera's view again. Morrison radioed dispatch that he had Richard Ramirez and asked backup to "step it up." At this point, Ramirez's hands were out of the camera's view again. Morrison yelled, "Hands up. Hands on the fucking .... Get your fucking hands up or I'm going to shoot you." As he said the last part, he pulled his gun from its holster and aimed it at Ramirez. He took a step back and said again, "I will shoot you. Hands up," then fired three shots. He continued to yell "Hands up" and warned twice that he would shoot again. He commanded Ramirez to get on the ground, which Ramirez, who was mortally wounded, was unable to do. Backup arrived.

         Less than forty-three seconds elapsed from the time Morrison turned on his patrol lights until he shot Ramirez. In that time, Morrison first ordered-then screamed at-Ramirez and the others to put their hands up, seven times. Three seconds elapsed from the time Morrison first said "I'm going to shoot you" until he pulled the trigger. All three shots hit Ramirez-one penetrated his right shoulder, one entered his chest, and one grazed his wrists. Ramirez was unarmed and no weapon was found in the vehicle. Officers found a syringe on the floor and two baggies, one containing methamphetamine, near Ramirez's seatbelt buckle. A toxicology report showed Ramirez had methamphetamine and amphetamine in his system when he died.

         Legal Standard

         A "court shall grant summary judgment if the movant shows 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). The movant has the burden to show the absence of any genuine dispute of material fact. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). The burden then shifts to the nonmoving party to produce specific facts that show a material issue remains to be tried. Id. at 1103. A nonmoving party with the burden at trial must produce enough evidence to establish the essential elements of its claims. Id. A court must view all the evidence and draw all justifiable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 255 (1986). A court must not weigh the evidence or make credibility determinations. Id.


         I. Summary judgment record

         Rule 56(c) requires parties to support their factual assertions at summary judgment by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed.R.Civ.P. 56(c)(1)(A). The cited material does not have to be in an admissible form, but it must be capable of being presented in an admissible form at trial. Fed.R.Civ.P. 56(c)(2); Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). When parties fail to comply with Rule 56(c), the court may "give an opportunity to properly support or address the fact." Fed.R.Civ.P. 56(e)(1). The option recognizes that "summary judgment cannot be granted by default even if there is a complete failure to respond to the motion, much less when an attempted response fails to comply with Rule 56(c) requirements." Fed.R.Civ.P. 56(e) advisory committee's note to 2010 amendment.

         In support of his motion for summary judgment, Morrison submitted his own affidavit, along with a map of his vehicle and the Ford Focus's routes; an affidavit from Officer Marc Snider, who investigated the Chavez shooting; an affidavit from Dr. Thomas Bennett, who conducted Ramirez's autopsy, along with the autopsy report; an affidavit from chemist Stacey L. Wilson, who conducted the forensic analysis of the baggies found in the vehicle, along with the chemical analysis report; an affidavit from toxicologist Scott Schlueter, who tested Ramirez's blood sample for drugs and alcohol, along with the toxicology report; and an affidavit from Detective Brett Kruger, who investigated the Ramirez shooting, along with the dashboard video from Morrison's patrol car and photos of the baggies and syringe found in the Ford Focus. In support of their motion, the City and St. John relied on Morrison's submissions and further submitted reports from their police practices expert Frank Garner and an affidavit from forensic video and audio expert Edward Primeau, who performed a forensic enhancement of the dashboard camera video, along with still photos from the enhanced video.

         In opposition to the motions, Plaintiffs submitted a longer version of Morrison's dashboard video; the report of their police practices expert Ernie Burwell; the transcript of Burwell's deposition; the transcript of St. John's deposition; excerpts of the City's discovery responses; and 309 pages of the Billings Police Department Policy Manual. Curiously, no party submitted police reports or records from the night of the shooting. Burwell's expert report summarized statements that eyewitnesses to the shooting made to Plaintiffs' investigator. Plaintiffs rely on the purported witness statements, but the summaries in Burwell's report are unsworn hearsay and cannot form part of the summary judgment record. See Jones v. Williams, 791 F.3d 1023, 1032 (9th Cir. 2015) (unsworn hearsay statements cannot be properly considered in opposition to summary judgment). Additionally, Plaintiffs failed to cite "to particular parts" of the 309-page policy manual as required by Rule 56(c).

         On December 18, 2018, the Court exercised its discretion under Rule 56(e)(1) to allow Plaintiffs an opportunity to comply with Rule 56(c). (Doc. 64.) The Court ordered them to produce witness statements and a list of specific policies on which they rely by January 7, 2019. (Id.) Further, in light of its duty to "carefully examine all the evidence," Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994), the Court ordered Morrison to file the full coroner's inquest transcript, which had already been submitted in part in response to Plaintiffs' motion in limine. (Id.)

         In response to the December 18, 2018 Order, Morrison filed the coroner's inquest transcript and accompanying exhibits. (Doc. 65.) Plaintiffs filed declarations from Dustin Halverson, the driver of the Ford Focus, and Crystal Jones, the front passenger. (Docs. 68, 69.) The declarations incorporated the notes of Plaintiffs' investigator, Mark Fullerton, and acknowledged that Halverson and Jones would testify consistent with Fullerton's notes. Plaintiffs also filed a declaration from Fullerton, which incorporated his notes on conversations with Halverson, Jones, and Tommy Black, who sat next to Ramirez in the backseat. (Doc. 70.) Additionally, Plaintiffs filed a declaration from attorney J.R. Casillas with a transcript of the police interview of Tommy Black the night of the shooting. (Doc. 73.) Finally, Plaintiffs filed an 11-page brief regarding the policies on which they rely for their claims against the City and St. John. (Doc. 74.) At oral argument, the Court struck the briefing portion of the filing, so that only the list of policies remains in the record, consistent with the December 18, 2018 Order.

         The coroner's inquest transcript consists of sworn testimony. Any of the witnesses could be called at trial to present the same testimony. The transcript, then, can be considered at summary judgment. Halverson and Jones's declarations are sworn statements regarding what they would testify to at trial. Halverson and Jones have adopted Fullerton's notes as their own statements, eliminating hearsay concerns. Accordingly, Halverson and Jones's declarations are properly part of the summary judgment record. However, Black's statements to Fullerton, attached to Fullerton's declaration, and Black's interview with the police, attached to Casillas's declaration, are unsworn hearsay and cannot be considered at summary judgment.

         II. Officer Morrison's Motion for Summary Judgment

         Morrison's motion is denied in part and reserved in part as to the § 1983 excessive force claim and granted as to the state law claims. As to the traffic stop, his motion is denied as moot.

         A. Traffic stop

         Morrison moves for summary judgment on Plaintiffs' claim that the traffic stop was unconstitutional. The Complaint is ambiguous as to whether Plaintiffs made a claim based on the traffic stop. The factual allegations assert the "stop of the vehicle was unconstitutional." (Compl., Doc. 3 at ¶ 17.) Further, Count 1 alleges Morrison violated Ramirez's "right to be free from unreasonable search and seizure," (id. at ¶ 35), which could encompass the traffic stop and/or use of force. However, Plaintiffs' response to Morrison's motion ignores the traffic stop and focuses only on the excessive force claim. More importantly, at oral argument Plaintiffs conceded they have no freestanding claim based on the traffic stop's constitutionality. Rather, they argue whether Morrison observed a lighting violation, as he claims, or stopped the vehicle absent a violation, and thus without reasonable suspicion, bears on his credibility with respect to the use of force claim. Because Plaintiffs are not pursuing an independent claim on these grounds, Morrison's motion for summary judgment on the constitutionality of the traffic stop is moot.

         B. Excessive force

         Officer Morrison asserts qualified immunity as a defense to the excessive force claim. Qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818(1982)).

         The qualified immunity analysis has two-prongs: (1) whether the official violated a constitutional right, and (2) whether the right was clearly established. Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (per curiam). Courts have discretion to address either prong of the qualified immunity analysis first. Pearson, 555 U.S. at 236. In some cases, "it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Id. at 237. In other cases, it "may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be." Id. at 236 (citation omitted). This case falls into the latter category. Accordingly, the following analysis considers first whether Morrison violated Ramirez's constitutional right, then whether the right was clearly established.

         1. Constitutional violation

         A material dispute of fact exists as to whether Morrison's use of deadly force violated Ramirez's constitutional rights. The use of force to apprehend a suspect is a seizure subject to the Fourth Amendment's reasonableness requirement. Tennessee v. Garner, 471 U.S. 1, 7 (1985). The test is whether the use of force was objectively reasonable based on the totality of the circumstances. Graham v. Connor, 490 U.S. 386, 396-97 (1989). It is a fact-specific inquiry that balances the "nature and quality of the intrusion" against the "importance of the governmental interests alleged to justify the intrusion." Garner, 471 U.S. at 8 (internal quotation marks omitted). Factors to consider include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396.

         Reasonableness is judged on the facts the officer knew at the time, considering that "officers are often forced to make split-second judgments." Id. at 396-97. At the same time, because the decedent cannot rebut the officer's version of events, courts should scrutinize the record rather than "simply accept what may be a self-serving account by the police officer." Cruz v. City of Anaheim, 765 F.3d 1076, 1079 (9th Cir. 2014) (internal quotation marks omitted). "The judge must carefully examine all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, as well as any expert testimony proffered by the plaintiff, to determine whether the officer's story is internally consistent and consistent with other known facts." Scott, 39 F.3d at 915. Given the fact-bound nature of the inquiry, "summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly." Glenn v. Wash. Cty., 673 F.3d 864, 871 (9th Cir. 2011) (internal quotation marks omitted).

         a. Severity of the crime

         With respect to the first Graham factor, the severity of the crime at issue, Morrison argues Ramirez was suspected of having shot Michael Chavez the previous night during an armed robbery or drug deal gone bad. Plaintiffs respond that being a suspect in a violent crime does not by itself justify the use of deadly force. They cite a series of cases in which the victims had previously committed violent crimes yet deadly force was unreasonable. Plaintiffs are correct that no single factor is dispositive. And, while drug-related shootings are serious crimes, the severity is tempered here by the time elapsed, the lack of certainty that Ramirez was the Chavez shooter, and that the crime at issue the night of the police shooting was merely a traffic stop-an arguably pretextual stop of the car in which Ramirez was a backseat passenger.

         When Morrison shot Ramirez, nearly 24 hours had passed since the Chavez shooting was first reported and no warrant or charges were pending against Ramirez. The immediacy of any threat the alleged shooter posed had long passed, diminishing the severity of the suspected crime's relevance to the reasonableness analysis. Next, Ramirez was merely a person of interest in the Chavez shooting. The night of the Chavez shooting, Morrison visited the Ramirez household and informed Betty and Julio, Ramirez's parents, that Richard Ramirez was a suspect. He told them, "I don't know if it's the same Richard Ramirez or not." (Doc. 65, Ex. 4.) A member of the Ramirez family commented on having a brother named Richard Ramirez. (Id.) Morrison agreed that "it's a pretty common name." (Id.) At the coroner's inquest, Morrison expressed surprise at Ramirez having been named a suspect in the Chavez shooting and testified, ...

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