Fink-Carver v. Kuhn

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JENNIFER FINK-CARVER, et al., Plaintiffs, v. POLICE OFFICER KUHN, et al., Defendants.

No. 21-cv-00664-JSW

United States District Court, N.D. California

February 22, 2024

ORDER RESOLVING CROSSMOTIONS FOR SUMMARY JUDGMENT SETTING FURTHER CASE MANAGEMENT CONFERENCE

RE: DKT. NOS. 47, 51

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

Now before the Court for consideration are the cross-motions for summary judgment, filed by Plaintiffs Jennifer Fink-Carver (“Carver”) and Jason Fink (“Fink,” and collectively, “Plaintiffs”) and Defendants City of Pleasant Hill (“City”) and Police Officer Kuhn (“Kuhn,” and collectively “Defendants”). The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it finds the matter suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs' motion and GRANTS IN PART AND DENIES IN PART Defendants' motion.

BACKGROUND

A. Carver.

In the evening of May 9, 2020, Carver placed a call to 9-1-1 to ask for assistance in removing her fiance Gary Armas (“Armas”) and his daughter (“Brooke”) from the Pleasant Hill home where Carver and Armas resided. (Dkt. No. 48, Def.'s Ex. A-1, Carver 9-1-1 audio recording.) Carver informed the dispatcher that Brooke had entered the home to confront Carver over giving Armas a black eye, but Carver denied touching Armas. (Id. at 00:16-00:58.) While Carver placed her call, Brooke called 9-1-1 as well. Brooke told the dispatcher that Carver had punched Armas in the face and that he had a black eye. (Dkt. No. 48, Def.'s Ex. A-2, at 00:1400:28.) A brief verbal confrontation between Armas and Carver can be heard in each 9-1-1 recording, but Brooke and Armas were otherwise situated outside of the house while Carver was inside. (Id. at 1:07-1:38; Def.'s Ex. A-1 at 1:55-2:20.)

Officer Garcia arrived at the scene and spoke to Brooke and Armas in the driveway. (Dkt. No. 48, Def.'s Ex. C, Garcia body-worn camera (“BWC”) at 00:30.) Armas informed Garcia that Carver had hit him the night before, and that no physical altercation had occurred that day. (Id. at 00:57-01:45.) Armas told Garcia that he wanted to “get his stuff and go,” but that he was unable to do so while Carver was inside the house. (Id. at 02:32-02:40.) Armas confirmed that he and Carver resided together at the house and that they were in an intimate relationship. (Id. at 02:5303:18.)

In describing the previous day's altercation, Armas told Garcia that he had asked Carver for something that she did not like, and that she reacted by hitting Armas over the head with her fist, television remote, and cordless phone four or five times. (Id. at 07:33-08:10, 10:05-10:10.)

While Garcia interviewed Armas, he observed Carver inside the house through the window. According to Garcia, “Carver walked to the front door, shut it and appeared to lock it.” (Dkt. No. 55-1, Pl.'s Ex. S, Garcia Rpt.)

Also while Garcia interviewed Armas, Officer Johnson, another officer then on the scene, interviewed Brooke. After the interview, Johnson radioed, “It's going to be a 415 over a domestic that occurred last night.” (Dkt. No. 48, Def.'s Ex. G, Johnson BWC at 03:15-03:22.) Johnson and another officer then approached the front door to the house and knocked. (Id. at 07:43.) Johnson knocked and announced, “Jennifer, it is the police department, can you answer the door please?” He then knocked two more times, and he again stated that “it is the police department” and asked Carver to come to the door. (Id. at 07:43-08:20.) Johnson also went to the living room window and knocked again. (Id. at 08:40-08:50.)

Johnson then approached Armas and asked if there were any firearms in the house. (Johnson BWC at 09:00-09:02.) Armas confirmed that Carver possessed a firearm. (Id. at 09:0309:09.) Armas then volunteered, “Do you want me to let you in?” while pulling out his keys. (Id. at 09:09-09:10.) Johnson replied, “Uh, if you could just give me the key, that would be great.” (Id. at 09:11-09:15.) Armas handed Johnson the house key. (Id. at 09:15-09:20; Garcia BWC at 09:32-09:43.)

Key in hand, Johnson again knocked on the window. (Johnson BWC at 09:40.) Hearing no response, Johnson entered the gate, approached the front door, unlocked the door and the deadbolt, and swung the door open. (Id. at 10:00-10:35.) Johnson walked back to the gate, informed another officer that the door was open, and then reapproached the front door, which had re-closed. He again opened the door and called out to Carver twice to announce herself and come speak with the police. (Id. at 10:50-11:40.) Defendant Kuhn arrived at the entrance to the home with his police canine, Bodie, and also called out for Carver.

A minute later, Johnson again called out to Carver and asked her to come out to the door. (Id. at 13:15.) Johnson then knocked on the neighbor's door, and the BWC shows his gun was drawn. (Id. at 13:40-13:55.) Johnson waited another minute, and then called out to Carver twice more. (Id. at 14:35-14:52.)

During this time, Armas dialed Carver and handed his cell phone to Officer Garcia. (Garcia BWC at 13:54-14:30.) Garcia asked Carver if she could come to the front door so they could talk, and Carver hung up on Garcia rather than respond. (Id.) Johnson and Garcia conferred, and Garcia told Johnson that it sounded like Carver was “under something . . . or . . . in a closet” while on the phone. (Id. at 15:33-15:40.)

Garcia then solicited more information about the firearm from Armas and learned that it was likely loaded. (Id. at 15:41-16:23.) Armas informed Garcia that Carver would not use the firearm. (Id.)

A minute later, Kuhn announced to the open door, “Pleasant Hill Police Canine, come out with your hands up.” (Dkt. No. 48, Def.'s Ex. I, Kuhn BWC at 01:20-01:23.) At this point, Carver could be heard speaking, but her words are unclear on the BWC footage. Kuhn responded, “Come out with your hands up, hands straight up, come out.” (Id. at 01:30-01:35.) After a brief pause, Kuhn again stated, “Pleasant Hill Police Canine, come out with your hands up.” (Id. at 01:40-01:43; Johnson BWC at 16:02.) Bodie barked at the open door. (Kuhn BWC at 01:42.)

Kuhn again stated, “Come out with your hands up,” and Johnson stated, “Come out.” (Id. at 01:46-01:51.) Johnson had his gun drawn and pointed into the front room. (Johnson BWC at 16:23.)

At this time, Carver walked into the front room. Kuhn and Johnson told Carver, “Walk towards us.” Carver responded, “I didn't do anything.” Bodie barked at the sight of Carver, and the officers repeated that Carver should “come outside.” (Kuhn BWC at 01:55.) Johnson and continued to point his firearm at Carver.

Carver held her right hand to her face and was holding a cell phone, which was lit up as if on a phone call. (Kuhn BWC at 01:58-02:01) Her left hand was empty at her side. (Id.) Carver was wearing gray sweatpants and a gray short-sleeved shirt that flared out slightly at the hips. (Id.) She approached the front door and paused at the threshold, stating that she did not do anything while the officers ordered her to come out. (Id.)

At 16 minutes, 33 seconds into Johnson's BWC video, Carver took a step backwards. At that instant, Johnson was through the screen door and moving into the front room, but it is unclear if the officers rushed Carver before or after she began to retreat. By 16 minutes, 34 seconds, Carver had taken several hops backwards as Johnson closed in on Carver, several feet inside the house, while Carver said, “Excuse me.” Five officers entered the house within five seconds, with Kuhn entering last: Johnson, Leonard, Garcia, Gartner, and Kuhn. (Kuhn BWC at 02:04-02:09)

At 16 minutes, 36 seconds into Johnson's BWC video, Johnson brought Carver down onto the couch. Carver braced herself with her empty left hand, while her right hand, still holding the phone, was folded under her stomach. Garcia pressed his weight on Carver's back, pinning her down with his left hand while grabbing onto her left arm with his right hand. (Garcia BWC at 17:00-17:26.) Carver shouted, “Why” repeatedly, while Johnson and Garcia told Carver to bring her hands behind her back. At 16 minutes, 42 seconds, Johnson and Garcia both had grabbed onto Carver's left arm and were pulling it behind her back. At 16 minutes, 44 seconds, Gartner had grabbed Carver's right arm and was attempting to pull it out from under her body. (Dkt. No. 48, Def.'s Ex. K, Gartner BWC at 09:43-09:46.) Carver was stomach-down on the couch, with her knees on the floor, being held by three police officers. A fourth officer, Sergeant Leonard, handcuffed Carver's left wrist and was reaching to grab Carver's right arm. (Dkt. No. 48, Def.'s Ex. M, Leonard BWC at 02:14-02:16.) At 16 minutes, 45 seconds, Carver screamed “ow, okay.”

Then, Bodie bit Carver's thigh. At 16 minutes, 50 seconds, still screaming, Carver yelled, “ow, the dog. Oh my god, the dog is killing my leg.” The officers clicked the handcuffs on Carver at 17 minutes, 0 seconds. At 17 minutes, 3 seconds, Johnson's video shows Bodie no longer latched onto Carver's leg. Bodie bit Carver's leg for a total of eleven seconds. (Kuhn BWC at 02:14-02:26.)

The officers then swept the house, calling out for anyone else to make themselves known. They entered Carver's bedroom, and Johnson located Carver's firearm under her mattress. (Johnson BWC at 17:49-18:24.) Johnson then removed the clip and began taking the firearm apart. (Id.)

After briefly checking with other officers in Carver's bedroom, Kuhn left the house to return Bodie to his car. (Kuhn BWC at 03:05-03:25.)

B. Fink.

At some point prior to Fink's arrival on the scene, Carver called Fink and Fink instructed...