Ochoa v. City of San Jose

YURIDIA OCHOA, Plaintiff, v. CITY OF SAN JOSE, et al., Defendants.

No. 21-cv-02456-BLF

United States District Court, N.D. California, San Jose Division

April 14, 2022

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT REGARDING DEFENDANT OFFICER ERIC MOSUNIC'S USE OF FORCE

[Re: ECF No. 37]

BETH LAB SON FREEMAN, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff Yuridia Ochoa's motion for partial summary judgment in this civil rights case related to Defendant Officer Eric Mosunic's use of force during Plaintiff's arrest. This case arises out of the events of June 2, 2020, when Plaintiff led Officer Mosunic and other officers on a high-speed chase through the streets of San Jose, during which Plaintiff struck a pedestrian and another police officer. After cornering Plaintiff in the driveway of a parking garage, Officer Mosunic allegedly shot Plaintiff several times after Plaintiff repeatedly backed his car up contrary to Officer Mosunic's orders while the officer was situated to the left of the car's rear fender. Plaintiff is seeking partial summary judgment that Officer Mosunic's use of force violated Plaintiff's Fourth Amendment rights and that Officer Mosunic is not entitled to qualified immunity. Plaintiff argues based on video evidence that he was carefully backing his car up away from Officer Mosunic, so Officer Mosunic's use of deadly force was unreasonable and unprotected by qualified immunity as a matter of law. Defendants oppose, arguing that there are material disputes of fact given that Officer Mosunic had witnessed Plaintiff strike a pedestrian and an officer with his car, and Officer Mosunic believed he was trapped in the driveway when he shot Plaintiff.

Based on the below reasoning, the Court DENIES Plaintiff's summary judgment motion.

I. BACKGROUND

Officer Mosunic is a police officer with the San Jose Police Department (“SJPD”). See Declaration of Officer Eric Mosunic (“Mosunic Decl.”), ECF No. 39-1 ¶ 1. He has been employed by the SJPD since 2006. See Merin Decl., ECF No. 37-1, Ex. A (“Meeker Report”) at 24:10-12. On June 2, 2020, Officer Mosunic was on duty assisting with crowd and traffic control for protests in downtown San Jose near City Hall. See Mosunic Decl. ¶ 2. Officer Mosunic was assigned to the SJPD Motor Unit, so he was riding a 2007 Honda ST1300 police motorcycle equipped with red and blue lights and a siren. See Id. ¶ 3; Meeker Report at 24:34-36.

Around 9:30 PM, Officer Mosunic was located in a parking lot around Santa Clara Street near San Jose City Hall. See Meeker Report at 30:11-16; Mosunic Decl. ¶ 4. Officer Mosunic received information from a SJPD police helicopter that there was “sideshow activity” in front of City Hall involving a silver Audi. See Mosunic Decl ¶ 4; Meeker Report at 30:22-29. Less than five minutes later, a silver Audi driven by Plaintiff passed them heading north on North 6th Street. See Mosunic Decl ¶¶ 4-5; Meeker Report at 30:31-36. Sergeant Greg Connolly drove off to conduct a traffic stop of the vehicle and Officer Mosunic followed him. See Meeker Report at 31:9-10; Mosunic Decl. ¶ 6.

When Sergeant Connolly and Officer Mosunic activated their lights and sirens, Plaintiff accelerated to approximately 50 mph in an area with a 35-mph speed limit. See Mosunic Decl. ¶ 6; Meeker Report at 31:41-32:1. While traveling at that speed, Plaintiff hit a woman crossing North 6th Street on a scooter, who went flying through the air as a result of the collision. See Mosunic Decl. ¶ 7; Meeker Report at 33:34-39. Officer Mosunic witnessed the collision and thought that the pedestrian had been killed. See Id. While Officer Mosunic states that there was no doubt in his mind that Plaintiff knew that he had hit a pedestrian, Officer Mosunic was not able to conclude that Plaintiff had hit the pedestrian on purpose. See Meeker Report at 45:8-11, 45:24-27. Following the collision, Plaintiff accelerated to approximately 80-90 mph and Officer Mosunic lost sight of the Audi. See Mosunic Decl. ¶¶ 7-8; Meeker Report at 34:32-38.

After following a trail of coolant fluid, Officer Mosunic and Sergeant Connolly found a silver Audi parked on the south side of Mission Street just east of 6th Street. See Mosunic Decl. ¶ 9; Meeker Report at 35:8-19. Officer Mosunic stopped behind the car, and Sergeant Connolly pulled up by the driver's side door. See Mosunic Decl. ¶¶ 9-10; Meeker Report at 35:27-34. Suddenly, the car's brake lights turned on and Plaintiff turned hard to the left and accelerated, knocking Sergeant Connolly and his motorcycle to the ground. See Mosunic Decl. ¶ 10; Meeker Report at 36:1-9, 36:20-32. Officer Mosunic thought Sergeant Connolly's leg had been crushed under the weight of the motorcycle, although he saw Sergeant Connolly begin to stand up. See Mosunic Decl. ¶ 11; Meeker Report at 36:26-32. Officer Mosunic accelerated to pursue Plaintiff and activated his body-worn camera. See Mosunic Decl. ¶¶ 11-12; see Merin Decl., Ex. D (“Mosunic BWC Video”).

Now on his own, Officer Mosunic pursued Plaintiff east on Mission Street with his lights and sirens activated. See Mosunic Decl. ¶ 13; Mosunic BWC Video at 0:00-0:15; see also Meeker Report at 40:10-11. Plaintiff made a right turn onto an entrance ramp of a parking garage of an apartment complex, which sloped down to a locked gate to the garage. See Mosunic Decl. ¶ 13; Mosunic BWC Video at 0:16-0:26. Officer Mosunic followed Plaintiff down the ramp, although he did not realize until after he made the turn that it was a dead end with a locked gate. See Mosunic Decl. ¶ 13; Meeker Report at 40:5-23. Part of the ensuing events were recorded from two different angles by bystanders in apartments to the west (350 Mission St., Apt. 202) and south (350 Mission St., Apt. 206) of the ramp. See Merin Decl., ECF No. 37-1, Ex. E (“Apt. 202 Video”); id., Ex. F (“Apt. 206 Video”). Officer Mosunic stopped his motorcycle a few feet behind Plaintiff's car and to the left of the rear fender with the siren blaring. See Mosunic Decl. ¶ 17; Mosunic BWC Video at 0:23-0:33; Apt. 202 Video at 0:00-0:06; Apt. 206 Video at 0:00-0:14. Officer Mosunic immediately called for backup. See Mosunic Decl. ¶ 17.

Once he turned onto the ramp, Officer Mosunic was unable to move his motorcycle back up the ramp because it weighed 850 to 900 pounds and did not have a reverse gear. See Mosunic Decl. ¶ 15; Meeker Report at 41:3-7. Accordingly, the only way for Officer Mosunic to get the bike up the ramp was by pushing it with both hands on the handlebars and his back turned to Plaintiff. See Mosunic Decl. ¶ 15; Meeker Report at 41:3-7. Officer Mosunic did not have sufficient space to make a U-turn without maneuvering for several minutes. See Mosunic Decl. ¶ 16; Meeker Report at 41:14-18. The ramp was approximately the width of two parking spaces. See Mosunic Decl. ¶ 14; Meeker Report at 41:30-31. Additionally, Officer Mosunic had high walls on his left and right side with no doorways or alcoves, and the only cover he had on the driveway was his motorcycle. See Mosunic Decl. ¶¶ 14-15; Meeker Report at 41:20-28. Officer Mosunic was concerned that Plaintiff would collide with him by executing a “J-turn”-i.e., quickly reversing direction by turning the front wheels hard to the right and accelerating. See Mosunic Decl. ¶ 21; Meeker Report at 42:37-43:3. And he did not feel comfortable running up the ramp, because Plaintiff could run him over. See Meeker Report at 43:36-39.

Officer Mosunic dismounted from his motorcycle, drew his weapon, and walked to the driver's side window of Plaintiff's car while commanding Plaintiff not to move, to put his hands up, and to turn the car off. See Mosunic Decl. ¶ 17; Mosunic BWC Video at 0:26-1:00. Officer Mosunic noticed that the front left tire of Plaintiff's car was “shredded.” See Meeker Report at 43:5-7. Plaintiff's car had tinted windows, so Officer Mosunic was not able to tell if there was anyone else in the vehicle besides Plaintiff. See Mosunic Decl. ¶ 18; Mosunic BWC Video at 0:32-0:42. Plaintiff did not respond or comply with Officer Mosunic's commands. See Mosunic Decl. ¶ 19; Mosunic BWC Video at 0:38-0:43. Officer Mosunic stepped back to his motorcycle, turned the siren off, and took cover behind the motorcycle. See Mosunic BWC Video at 1:00-1:37; Mosunic Decl. ¶ 20. Officer Mosunic received reports over his radio at this point that reinforcements were on the way. See Mosunic BWC Video at 1:15-30.

After about 30 seconds, the reverse lights on Plaintiff's car illuminated. See Mosunic BWC Video at 1:38-1:40; Mosunic Decl. ¶ 20; Meeker Report at 41:38-39. Officer Mosunic commanded Plaintiff not to move, but Plaintiff did not comply-he began to slowly back the car up the ramp. See Mosunic Decl. ¶ 20; Meeker Report at 41:38-39; Apt. 202 Video at 0:00-0:02. Without providing a verbal warning to Plaintiff, Officer Mosunic fired six shots into the left rear door and window of the car. See Mosunic BWC Video at 1:42-1:45; Mosunic Decl. ¶ 21; Meeker Report at 41:39-42:2. The car stopped moving. See Mosunic BWC Video at 1:44-2:00; Apt. 202 Video at 0:04-0:20.

Around 15 seconds later, Plaintiff's reverse lights illuminated again. See Mosunic BWC Video at 2:00-2:03; Apt. 202 Video at 0:20-25. Officer Mosunic again commanded Plaintiff not to move, but Plaintiff did not comply-he began slowly reversing up the ramp a second time. See Mosunic BWC Video at 2:04-2:08; Mosunic Decl. ¶ 23; Apt. 202 Video at 0:25-29; Meeker Report at 42:29-37. Officer Mosunic fired another five shots into the vehicle's rear left window. See Mosunic BWC Video at 2:09-2:11; Mosunic Decl. ¶ 23; Apt. 202 Video at 0:29-0:31; Meeker Report at 42:29-37.

After briefly stopping, Plaintiff continued to reverse. See Mosunic BWC Video at 2:12-2:16; Apt. 202 Video at...