Stepanyan v. United States

1

ANAIT STEPANYAN, ET AL. v. UNITED STATES OF AMERICA, et al.;

ANAIT STEPANYAN, ET AL. v. COUNTY OF LOS ANGELES, ET AL.

Nos. 2:20-cv-01774-CAS(PLAx), 2:20-cv-10868-CAS(PLAx)

United States District Court, C.D. California

July 24, 2023

Present: Honorable CHRISTINA A. SNYDER Judge

CIVIL MINUTES - GENERAL

Proceedings: DEFENDANT UNITED STATES OF AMERICA'S MOTION FOR SUMMARY JUDGMENT (Dkt. 81, filed on June 14, 2023)

I. INTRODUCTION

Presently before the Court is defendant United States of America's motion for summary judgment. On March 22, 2021, the Court consolidated two cases before it, Anait Stepanyan v. United States of America, No. 2:20-cv-01774-CAS(PLAx), and Anait Stepanyan v. County of Los Angeles, No. 2:20-cv-10868-CAS(PLAx). The procedural history of the two cases is lengthy and known the parties. For a full overview of the procedural history, see the Court's March 2021 order. Dkt. 41. For the purposes of the instant motion, the Court sets forth only the following relevant procedural background.

On December 28, 2020, plaintiffs Anait Stepanyan, Kirakos Kesablyan and Kadzhik Kesablyan, as the successor in interest and heirs to Vahram Kesablyna, filed their second amended complaint. Dkt. 27 (“SAC”).^[1] Plaintiffs' claims arise from the fatal shooting of Vahram by Federal Bureau of Investigation (“FBI”) agents on January 8, 2018, while they were executing a search and arrest warrant for Kirakos. At this juncture, the only remaining claims in the two consolidated cases are for (1) assault and battery; (2) wrongful death; (3) negligence; (4) violation of California Civil Code Section 52.1; and (5) negligent infliction of emotional distress, all brought against the United States pursuant to the Federal Tort Claims Act (“FTCA”).^[2]

On June 14, 2023, defendant filed a motion for summary judgment. Dkt. 81 (“Mot.”). On July 3, 2023, plaintiffs filed an opposition. Dkt. 83 (“Opp.”). On June 19, 2023, defendant filed a reply. Dkt. 84 (“Reply). On July 21, 2023, plaintiffs filed a surreply. Dkt. 87 (“Surreply”).^[3]

On July 24, 2023, the Court held a hearing. Having carefully considered the parties' arguments and submissions, the Court finds and concludes as follows.

II. BACKGROUND

Unless otherwise noted, the Court references only facts that are uncontroverted and to which evidentiary objections, if any, have been overruled.^[4]

A. Investigation of Kirakos and Preparation of Federal Search Warrant

On November 28, 2017, the Investigative Committee of Armenia^[5] issued a warrant for the arrest of Kirakos based on his alleged involvement in narcotics trafficking activity, including directing the smuggling of hashish oil into Armenia. See Dkt. 84-1 (“Statement of Disputed Facts” or “SDF”), ¶ 11. On December 26, 2017, Kirakos arrived at the Los Angeles International Airport flying in from Doha International Airport in Qatar, in violation of the terms of his criminal indictment in Armenia. Id. ¶ 9. At some point during the month of December 2017, the FBI and Los Angeles Police Department (“LAPD”) received information that Kirakos was demanding money from a potential cannabis business partner and threatening the individual while falsely claiming to be a United States Marshal. SDF ¶3.

On January 5, 2018, the federal government filed a criminal complaint against Kirakos in the Central District of California. See USA v. Kesablyan. No. 2:18-cv-00054-PSG-2 (C.D. Cal.), dkt. 1. The complainant was listed as FBI Special Agent Hannah Monroe, who provided an affidavit in support of the complaint, an arrest warrant, and a search warrant for Kirakos' home. SDF ¶ 3. The complaint accused Kirakos of falsely claiming to be a United States Marshal while demanding money from a victim during a dispute over forming a cannabis business, in violation of 18 U.S.C. § 912. Id. ¶ 2. Additionally, Monroe's supporting affidavit indicated that Kirakos might be in possession of firearms, ammunition and other dangerous weapons to lend credence to his claim of employment as a federal law enforcement officer and to his efforts to threaten the victim. Id. ¶ 5. The affidavit also set forth Kirakos' prior California state criminal convictions for grand theft, forgery, assault with a deadly weapon, disturbing the peace, and threatening a victim, witness, or informant. Id. ¶ 3. The affidavit stated that Kirakos was residing with his wife at a residence on Horse Haven Street. Id. ¶¶ 6-7.

On January 5, 2018, Magistrate Judge Standish issued arrest and search warrants for Kirakos at his residence located on Horse Haven Street. Id. ¶ 8. The FBI decided to use a Special Weapons and Tactics team (“SWAT team”) to serve the arrest and search warrants for Kirakos in light of (1) his criminal history; (2) the nature of the crime for which he was being arrested; (3) his links to organized crime and drug trafficking; (4) his status as a person of interest in two recent homicides; and (5) his residence, which possessed multiple surveillance and tactical challenges. Id. ¶ 15. The FBI's decision to use SWAT for the warrant operation and the SWAT Operational Plan were approved by the SWAT Coordinator, the Special Agent in Charge of SWAT Operations, the Assistant Special Agent in Charge of SWAT Operations, and the Senior SWAT Team Leader. Id. ¶ 17. The SWAT Operational Plan called for the FBI's SWAT team to serve the warrants at 6;00 a.m. in the morning on January 8, 2018. Id. ¶ 18.

Early on the morning of January 8, 2018, members of the FBI's Los Angeles Field Office SWAT Team assembled at a Tactical Operations Center (“TOC”) location near Kirakos' residence. Id. ¶ 19. At approximately 3:00 a.m., two SWAT Sniper/Observer teams received operational briefing at the TOC and at approximately 3:30 a.m. deployed to positions behind the residence. Id. ¶ 20. The FBI primarily used these Sniper/Observer teams for the purpose of establishing and maintaining surveillance on the residence. Id. ¶ 21. Forward looking infrared (FLIR) video surveillance of the residence was established from an overhead aircraft, and a FLIR video downlink was provided to the TOC. Id. ¶ 22.

At approximately 4:30 a.m. on January 8, 2018, the main team of SWAT operators assembled at the TOC along with members of the medical team and fire department. Id. ¶ 23. A SWAT operational briefing was given at the TOC that explained the “Situation, Mission, Execution, Administration, and Communication” related to the service of both warrants. Id. ¶ 24. The SWAT operational briefing included: (1) photos of Kirakos and the residence; (2) Kirakos' criminal history and identifiers; (3) a medical plan; (4) contingency plans; (5) list of participated law enforcement personnel; (6) list of participating Evidence Response Team personnel; (7) list of interviewers; (8) list of Command Staff; (9) the establishment of the TOC; and (10) the DOJ Deadly Force Policy. Id. ¶ 25. The DOJ's Deadly Force Policy was read out loud verbatim at the SWAT operational briefing and was also projected on a screen for all present to read. Id. ¶ 26. Upon completion of the briefing, each SWAT team leader provided specific tasks for each SWAT operator. Id. ¶ 27.

At around 5:18 a.m., the FBI's aerial video feed and the FBI Sniper/Observer teams noted the arrival of a truck that drove down the street and parked in front of the house. Id. ¶ 28. After initially stopping in front of the house's central driveway, the truck backed up and parked across the driveway on the far right side of the house. Id. ¶ 29. According to the FBI, the car appeared to be parked to provide a lookout for the house. At 5:19 a.m., the FLIR video showed an individual exiting the truck, opening the residence's gate, entering the property and walking through the yard before looking over the land near two dogs. Id. ¶ 30. Kirakos had two “K9” German Shepherd dogs in the backyard of his residence. Id. ¶ 31. The individual then walked back through the yard, crossed over to the other side of the house, and looked around that other side yard, before returning to enter the truck at 5:22 a.m. Id. ¶ 32. At 5:26 a.m., the individual exited the truck again and walked down the street alongside the property to its end. Id. ¶ 33. The individual then looked around the street, before returning to the truck at 5:28 a.m. Id. ¶ 34.

SWAT leadership at the TOC developed and agreed upon a contingency plan for three operators, led by a SWAT team leader, to address this vehicle and detain its occupant if it still remained in place when the operation began at 6:00 a.m. Id. ¶ 35. Assistant Special Agent in Charge (“ASAC”) Patrick Grandy oversees the operations of the FBI Los Angeles Division's SWAT team, and he was the designated On Scene Commander for the warrant operation on January 8, 2018. Id. ¶ 36. The SWAT team was pulled together by the team leader to re-brief the new plan including the vehicle team and its mission. Id. ¶ 37. ASAC Grandy was briefed on and concurred with the contingency plan to address the vehicle and detain its occupant if it remained in place at 6:00 a.m., when the main SWAT team would execute the warrants. Id. ¶ 38.

B. Shooting of Vahram

Operator 1, Operator 2, and Operator 3 (the acting SWAT team leader) were the SWAT operators tasked with clearing the vehicle and detaining its occupant. Id. ¶ 41. As part of the FBI's subsequent investigation of the shooting. Operators 1, 2, and 3 provided signed sworn statements dated January 11, 2018, regarding what they had observed on January 8, 2018. Id. ¶ 42. The majority of the evidence relating to the shooting derives from these sworn statements.

Operator 3, an acting SWAT team leader, was asked to assemble a team to address the truck and detain its occupant.^[6] Id. ¶ 43. The three-person team discussed their plan on how to...