Gomez v. Fachko

OMAR GOMEZ, Plaintiff, v. JORDAN FACHKO, et al., Defendants.

Case No. 19-CV-05266-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

April 30, 2021

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Re: Dkt. No. 50

Plaintiff Omar Gomez brings this excessive force action against the City of Santa Clara and City of Santa Clara police officer Jordan Fachko ("Defendants") under 42 U.S.C. § 1983. ECF No. 1. Before the Court is Defendants' motion for summary judgment, ECF No. 50.¹ Having considered the parties' submissions, the relevant law, and the record in this case, the Court DENIES Defendants' motion for summary judgment.

I. BACKGROUND

A. Factual Background

This case arises from a police shooting in the twilight hours of October 21, 2017. Because Defendants move for summary judgment against Plaintiff Omar Gomez, the Court must recount the following facts in the light most favorable to Gomez. See Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020) (at summary judgment on qualified immunity, requiring the Court to credit plaintiff's version of events unless it is "blatantly contradicted by the record").

At about 1:15 a.m. on October 21, 2017, Santa Clara police officer Jordan Fachko learned that the Sunnyvale Department of Public Safety was reporting a stolen Honda Civic. Fachko Decl. ¶ 3, ECF No. 50-1. About 30 minutes later, Officer Fachko heard another Santa Clara police officer, Officer Anthony Pianto, alert police communications that Officer Pianto was tailing a Honda Civic with a license plate matching that of the stolen vehicle. Id. ¶ 5. Officer Fachko did not know, however, whether the occupants of the Honda (1) had a criminal history; (2) were under the influence of drugs or alcohol; (3) had weapons in the Honda; or (4) had committed a crime involving the threat of violence or injury. Fachko Dep. at 48:13-49:14. Officer Fachko drove to assist Officer Pianto. Fachko Decl. ¶ 5.

Upon meeting, the officers discussed a plan to block the Honda at the intersection of El Camino Real and Scott Boulevard. Id. ¶ 6. Specifically, Officer Fachko decided to block the Honda by pulling in front of the Honda so that the Honda could not drive off. Id. Officer Pianto would box in the Honda from the rear. Id. Officer Fachko expected that the intersection would be a good place to block the Honda because the Honda would stop at the intersection's red light. Id.

As expected, the approaching Honda—driven by Gomez—stopped at the red light at Scott Boulevard. Id. As seen on video taken by the intersection's traffic camera, the following transpired in about seven seconds.² Video, ECF No. 50-3 (zoomed version). Officer Fachko drove in front of the Honda and activated his marked patrol SUV's light bar. Meanwhile, Officer Pianto pulled inbehind the Honda and activated his light bar as well. Video at 0:03-04. Officer Fachko then exited his SUV. Given where Officer Fachko parked his SUV, Officer Fachko exited roughly a few feet to the side of the Honda, away from the Honda's front. Video at 0:06; see Fries Decl. ¶ 8, Ex. 2 (reconstruction of shooting). Officer Fachko then began moving toward Officer Pianto's vehicle past the driver's side door of the Honda. Fachko Dep. at 92:20-24.

At this point—about four seconds into the stop—Gomez reversed the Honda 16 inches at no more than 1.2 miles per hour. Video at 0:07; see Jason Fries Decl. ¶ 10, ECF No. 53 (Gomez's proffered forensics expert). As the Honda reversed, it moved backward in a straight line, and its wheels were generally straight. See Fries Decl. ¶¶ 10-11 (analyzing police photograph and 3D reconstructions); Gomez Dep. at 80:8-10 (testifying he did not turn steering wheel). The Honda then struck Officer Pianto's SUV. As a result of the collision, the Honda rebounded four inches forward and stopped moving in 0.5 seconds. Fries Decl. ¶¶ 12, 14. Aside from that rebound, the Honda did not move forward before or after Officer Fachko's impending shots. Id.; Pianto Dep. at 54:5-8; Fachko Dep. at 38:2-12. Officer Fachko never saw Gomez turn the steering wheel left toward Officer Fachko. Fachko Dep. at 56:19-57:2, 68:15-17. Nor did Officer Fachko see the front tires of the Honda turn left. Id.

Rather, the Honda came to a stop, and Gomez took his foot off the gas pedal and put his hands up. See, e.g., Gomez Dep. at 76:12-23 ("my hands went up . . . I pretty much took all my legs off the gas, brake[,] and the clutch"), 84:4-16 (same), 85:1-4 ("[M]y hands were already up."), 91:18-20 (testifying that he did not "apply[] the gas at all" after collision). About one second later, Officer Fachko fired three shots at Gomez from the driver's side of the Honda. Fachko Dep. at 14:14-17. Two of the shots went through the Honda's driver-side window into Gomez's chest, and one went into the Honda's driver-side A-pillar. Fachko Decl. ¶ 9, ECF No. 50-2; Robert Fonzi Dep. at 32:9, ECF No. 52-6 (Defendants' police practices expert testifying as to "two shots into the chest"). When Officer Fachko fired all three shots, the Honda was stopped. Moreover, Gomez's hands were up at least with the first shot. See Gomez Dep. at 38:9-22 ("[W]hen my hands went on my head, I caught the first bullet in my arm . . ."), 75:10-12; see alsoFachko Dep. at 58:18-19 ("I remember the driver's hands were either -- I think they were kind of like toward his chest . . . ."). Gomez's forensic expert, Jason Fries, proffers a three-dimensional reconstruction of the shooting based on an analysis of the traffic camera video and a police photograph demonstrating the trajectory of Officer Fachko's shots. That police photograph and Fries' reconstruction are below:

• Police photo demonstrating the trajectory of Officer Fachko's shots (Fries Decl. ¶ 8, Ex. 2)

Image materials not available for display.

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// • Fries' reconstruction of the shooting (Fries Decl. ¶ 7, Ex. 1)

Image materials not available for display.

Officer Fachko concedes that he would "not think it was appropriate to shoot the driver of a stopped vehicle." Fachko Dep. at 30:1-2. "[A] stopped vehicle would not pose a threat to . . . any officer or the public." Id. at 30:7-9. Even so, Officer Fachko asserts that he shot Gomez because "I felt and believed that Gomez was trying to run me over or drive through the area where I was standing in order to evade the block." Fachko Decl. ¶ 9. Officer Fachko also asserts that "I concluded that I did not have an opportunity to evade Gomez' vehicle." Id.

Police photographs taken after the shooting show that Gomez's Honda Civic had its front tires turned slightly to the right—that is, away from where Officer Fachko had been standing. Fries Decl. ¶ 12 & Ex. 5. Moreover, even if Gomez's Honda had its front tires turned fully to the left, "the Honda would not have been able to turn enough to get past Officer Fachko's police vehicle or hit Officer Fachko." Id. ¶ 21. Gomez supports this conclusion with a driving test conducted by Fries, and the fact that a Honda Civic's minimum turning radius is 37 feet. Id. & Ex. 6.

B. Procedural History

After the shooting, Gomez was charged with (1) resisting an officer with force in violation of California Penal Code § 69; and (2) vehicle theft in violation of California Penal Code § 666.5. Plea Tr. at 5:12-6:7, People v. Gomez, Nos. C1776322 & C1885082 (Cal. Sup. Ct. Jan. 24, 2019), ECF No. 50-8.³ On January 24, 2019, Gomez pled no contest both to resisting an officer and to stealing the Honda. Id.

As relevant here, Gomez expressly limited the factual basis for his no contest plea to resisting an officer. Gomez and the government "stipulate[d] that there is a factual basis based on the videotape of this incident that we all reviewed where he's backing his car up into the patrol vehicle." Id. at 8:8-11 (emphasis added). Aside from that factual basis, Gomez's defense counsel stated that because "the shooting occurred after Mr. Gomez's car backed up into the patrol vehicle, [] Mr. Gomez is not agreeing that the officer [i.e., Officer Fachko] was in the lawful performance of his duty at the time [Gomez] was shot." Id. at 4:20-24 (emphasis added). "Gomez wanted to state this on the record because he want[ed] to make sure there's no confusion regarding that charge [of resisting an officer]." Id. at 4:27-5:1. The Superior Court for Santa Clara County then confirmed that defense counsel's statement was "the understanding of all parties." Id. at 5:4-6.

On August 22, 2019, Gomez brought the instant case against the City of Santa Clara and Officer Fachko ("Defendants"). ECF No. 1. Gomez alleged eight claims for damages under 42 U.S.C. § 1983 and state law: (1) excessive force in violation of the Fourth Amendment; (2) denial of medical care in violation of the Fourth Amendment; (3) municipal liability for aunconstitutional custom, practice, or policy; (4) municipal liability for ratifying Officer Fachko's unreasonable use of deadly force; (5) municipal liability for failure to train; (6) battery; (7) negligence; and (8) violating the Bane Civil Rights Act, Cal. Civ. Code § 52.1. Id. at 5-18.

On February 5, 2021, Defendants filed the instant motion for summary judgment on all claims. ECF No. 50-1 ("Mot."). Gomez filed his opposition on February 19, 2021. ECF No. 51 ("Opp'n"). Gomez's opposition "dismisses his claims for denial of medical care and Monell [i.e., municipal] liability" instead of opposing Defendants' motion for summary judgment on those claims. Opp'n at 1 n.1.

Thus, the Court DISMISSES with prejudice Gomez's claims for (1) denial of medical care under 42 U.S.C. § 1983 against Officer Fachko (Count 2); (2) municipal liability for an unconstitutional custom, practice, or policy under 42 U.S.C. § 1983 against the City of Santa Clara (Count 3); (3) municipal liability for ratification of a constitutional violation under 42 U.S.C. § 1983 against the City of Santa Clara (Count 4); and (4) municipal liability for failure to train under 42 U.S.C. § 1983 against...