United States District Court, D. Montana, Billings Division
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
W. MOLLY, DISTRICT JUDGE UNITED STATES DISTRICT COURT .
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
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
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.
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.
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. Plaintiffs dispute the violation. The
video from Morrison's squad car is unclear about the
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.
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
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.
"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.
Summary judgment record
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.
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.
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).
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
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.
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.
Officer Morrison's Motion for Summary Judgment
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
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
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.
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.
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.
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).
Severity of the crime
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.
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, ...