Perkins v. City of Modesto

1

JASON B. PERKINS, Plaintiff, v. CITY OF MODESTO, et al., Defendants.

No. 1:19-cv-00126-JLT-EPG

United States District Court, E.D. California

May 24, 2023

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AS TO FAILURE TO INTERVENE CLAIM AGAINST DEFENDANT OLSON

I. INTRODUCTION

Jason B. Perkins filed this civil rights action against defendants City of Modesto, Modesto Police Department, MPD Chief of Police Galen L. Carroll, MPD officer Jerry J. Ramar, and MPD officer Ryan Olson in their individual capacities, after plaintiff was shot multiple times by Ramar. (Doc. 22.) The complaint brings claims under both the Fourth and Fourteenth Amendments to the United States Constitution and Article I § 13 of the California Constitution, as well as various state law claims. (Id.)

On February 1, 2022, the previously (temporarily) assigned jurist issued a lengthy order granting in part and denying in part Defendants' motion for summary judgment. (Doc. 98 (“MSJ Order”).) That order left unresolved the question of whether Defendant Olson is entitled to qualified immunity in connection with Plaintiff's failure-to-intercede claim against him. (Id. at 27.) The Court called for simultaneous supplemental briefing on that issue. (Id.) On February 7 2022, the parties filed those briefs. (Docs. 108, 109.) The matter was taken under submission on the papers. (Doc. 111.) For the reasons set forth below, Olson's motion for summary judgment as to Plaintiff's claim that Olson failed to intervene in relation to Ramar's user of force is GRANTED.

III. BACKGROUND

A. Factual Background

The Court provided an extensive explanation of the background facts, viewed in a light most favorable to Plaintiff, in the MSJ Order. The most pertinent portions of that recitation are provided below for ease of reference:

The Shooting

Defendant Ramar and officer Olson were employed by the MPD on the day of the shooting, November 6, 2017. That day, they received a dispatch to be on the lookout for a suspect-plaintiff-who was reportedly “wanted for a 417^[1]on a [police] officer' and potentially ‘armed and dangerous.'” ([Doc. 95-2 (Plaintiff's Statement of Material Facts and Defendants' Responses, (“PSF”))] at ¶ 2.) The officers were informed that plaintiff was in a black Infiniti G35 vehicle at a Bank of America parking lot. ([Doc 93-2 (Defendants' Statement of Material Facts and Plaintiff's Responses, (“DSF”)] ¶ 17.) When the two officers arrived there by motorcycle, they parked well behind plaintiff's vehicle. (Body Camera 17:45:19-20.) Plaintiff was alone in the front seat of the car. (DSF at ¶ 22.) Olson activated his body camera, but Ramar, in violation of MPD policy, did not. (Id. at ¶ 27.)

Once defendant Ramar and officer Olson met at the parking lot, Ramar got off his motorcycle, drew his firearm, and jogged to plaintiff's car. (Body Camera 17:45:21-26.) As he approached the driver's-side window, Ramar yelled, “Show me your hands, show me your hands! I'm going to shoot you!” (Id. at 17:45:27-30.) Plaintiff was in the driver's seat, with his left hand pressing a button to roll up his window and his right hand on the steering wheel, which was visible to both officers. (PSF at ¶¶ 11, 12.) Within one second of issuing his directive, Ramar shot twice into plaintiff's car (“first volley”). (Body Camera at 17:45:30.) The first volley hit plaintiff and shattered his car window. (PSF at ¶ 14.)

After the first volley, plaintiff's car traveled “several yards” in reverse, hit an island within the parking lot, and came to a stop. (DSF ¶ 38; Body Camera 17:45:30-36.) Neither defendant was in the car's path when it moved in reverse, since they were both to the car's side. (Id.) According to plaintiff, the first volley “disabled” him “and caused him involuntarily to depress the vehicle's gas pedal.” (PSF at ¶ 16.) This appears to be some degree of supposition; plaintiff testified at his deposition that he did not remember putting the car in reverse because he does not remember much after he pulled into the parking lot. (Defs.' Ex. (“DX”) G, 138:6-8, 139:1-2.)

The officers moved again toward the car. Officer Olson and defendant Ramar positioned themselves next to plaintiff's broken driver-side window. Ramar was positioned in front of the window such that he would have been able to see at least part of the front of plaintiff's body. Olson, and thus his body camera, was positioned slightly behind the door and could see less of plaintiff's body. (Id. 17:45:30-38.) Ramar then shouted “let me see your hands!” twice. (Id. 17:45:36-38.) It is undisputed that plaintiff then raised his right hand, “which was visibly empty.” (PSF at ¶ 17.) Plaintiff, who had just been shot, did not raise his left hand. (Body Camera 17:45:3643.) Within two seconds of shouting his order, Ramar shot plaintiff again (“second volley”). (Id.) Ramar did not warn plaintiff before firing the second volley.

Immediately after Ramar shot the second volley, plaintiff's body slumped to the right. (PSF at ¶ 21.) Defendant Ramar then yelled, “Show your hands! Show your hands!” (Id. at ¶ 22.) Plaintiff's left shoulder visibly twitched but he did not turn or show his hands. (Body Camera 17:45:43-49.) Ramar then shot plaintiff again without warning (“third volley”). (Id.) It is undisputed that plaintiff sustained a total of six gunshot wounds, including to his jaw, chest, and left arm. (PSF at ¶ 26.)

After Ramar fired the six shots, the officers stood next to plaintiff's window and pointed their firearms at him for approximately one minute. (PSF ¶ 34; DSF ¶ 44.) After additional officers arrived at the scene, officer Olson removed plaintiff from the vehicle. (PSF ¶ 42.) Plaintiff went face down onto the cement upon being removed from the car. (Body Camera 17:48:10-16.) Defendants argue he was “guided” down, and plaintiff argues his body “struck” the ground. (PSF at ¶¶ 42-43.) Based on the court's review of the video, viewing the facts in the required light, when plaintiff's body was pulled out of the car, much of his body hit the ground with force, and his head was lowered more slowly. (Body Camera 17:48:10-16.)

After the Shooting

On November 7, 2017, defendant Ramar was interviewed by MPD's Investigative Services Division (“ISD”). (Id. at ¶ 51.) In that interview Ramar stated that: (1) he believed that he saw a gun when plaintiff rolled up his window, and he had fired the first volley of shots when plaintiff “was still reversing” his vehicle; (2) R[a]mar believed that he saw plaintiff “reaching towards his feet or towards the floorboard” before firing the second volley of shots; and (3) he believed that he saw “a movement like [plaintiff] was going down even further” before firing the third volley. (PSF at ¶ 52.)

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Defendant Ramar's Statements

Defendant Ramar filed a declaration in support of his opposition to plaintiff's earlier motion for summary adjudication, almost exactly two years after the shooting of plaintiff occurred and about a year before he filed his declaration in support of the now pending motion for summary judgment. (See Doc. 36-1 at 4-7.) In his previous declaration filed in November 2019, Ramar repeatedly asserted that the threat he perceived was from plaintiff himself. For instance, before he fired the first volley at plaintiff, Ramar declared that he “thought [he] saw firearm in Plaintiff's right hand.” (Id. ¶ 12.) In that 2019 declaration, defendant Ramar never suggested that he perceived any threat from plaintiff's vehicle or that plaintiff somehow posed a flight risk. The only threat that Ramar previously identified as providing him with the justification for his use of lethal force was his belief that plaintiff was reaching for a gun. In his second declaration (DX I, Declaration of Officer Jerry Ramar (“Ramar Decl.”)), Ramar now declares that he approached plaintiff's vehicle quickly because he was “in fear that the plaintiff would be willing to assault officers or citizens in an attempt to evade arrest.” (Id. at ¶ 8.)

Expert Materials

In connection with their pending motion for summary judgment, defendants have submitted a report prepared by a use of force expert opining on the underlying shooting. (DX F (Expert Report of Steve Papenfuhs).) In short, the defense expert states two opinions: the officers were responding to an emergency event, namely locating and arresting “a suspect with an outstanding warrant for crimes of violence”; and defendant Ramar reasonably believed plaintiff posed an “imminent and immediate threat to life.” (Id. at 10, 12.)

Defendant Ramar did not timely activate his body camera to allow his shooting of plaintiff to be captured from his perspective. In place of what would have been that potentially highly relevant video evidence, defendants have submitted a video purportedly reconstructing the incident from Ramar's perspective at the time he fired the second and third volleys (but not the first volley). (DX E (“Incident Reconstruction Video”); see also DX D (Expert Report of Jason Fries).) Utilizing laser scanning and 3D modeling, this Incident Reconstruction Video purports to depict Ramar's line-of-sight which defendants argue shows that he did not have a clear view of plaintiff's hands.

In opposition to the pending motion for summary judgment, plaintiff has submitted a report from an expert with 27 years of experience with the Los Angeles County Sheriff's Department as a deputy sheriff, sergeant, and 15 years as a lieutenant. (PX 3 (Expert Report of Roger Clark) at 24.) In his report, plaintiff's expert concludes that defendant Ramar's firing of all three volleys of shots was unreasonable for a variety of reasons, including that plaintiff never posed an imminent lethal threat to Ramar or anyone else. (Id. at 21-22.) Instead, expert Clark concludes, Ramar “ran

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