Free Reply to Response to Motion - District Court of Arizona - Arizona

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Robert Grasso, Jr. ­ Bar No. 015087 G RASSO L AW F IRM, P.C.
Jackson Plaza

4600 South Mill Avenue, Suite 125 Tempe, Arizona 85282 Telephone (480) 730-5553 Facsimile (480) 730-2810 Email: [email protected] Attorneys for Defendants

I N T HE U NITED S TATES D ISTRICT C OURT I N A ND F OR T HE D ISTRICT O F A RIZONA M ARIA C AUSTON, individually and on behalf ) of G IANA C AUSTON and M ARINA S HEPPARD, ) ) Plaintiffs, ) ) vs. ) ) C ITY O F C HANDLER, a municipal corporation; ) J OHN M. C ARBOUN and JANE D OE C ARBOUN, ) his wife; R ANDLE L. M EEKER and JANE D OE ) M EEKER, his wife; and JOHN D OES I-V, ) ) Defendants. ) _____________________________________ ) Case No. CV-04-0500-PHX-ROS D EFENDANTS' R EPLY I N S UPPORT O F T HEIR M OTION F OR S UMMARY J UDGMENT

(Oral Argument Requested)

Defendants City of Chandler, John M. Carboun, and Randle L. Meeker (Defendants), by and through undersigned counsel, hereby reply in support of their Motion for Summary Judgment. This Reply is supported by the accompanying Memorandum of Points and Authorities, the previously filed Statement of Facts (Docket No. 50), and the entire record before the Court. R ESPECTFULLY S UBMITTED this 30th day of September, 2005. G RASSO L AW F IRM, P.C.

By

/s Robert Grasso, Jr. Robert Grasso, Jr.
Jackson Plaza

4600 South Mill Avenue, Suite 125 Tempe, Arizona 85282 Attorneys for Defendants Case 2:04-cv-00500-ROS Document 58 Filed 09/30/2005 Page 1 of 16

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M EMORANDUM O F P OINTS A ND A UTHORITIES I. I NTRODUCTION Defendants moved for summary judgment on all claims asserted against them by Plaintiffs. Defendants' motion was supported by an accompanying Statement of Facts ­ all of which was fully supported by references to admissible evidence. Plaintiffs did not controvert, or otherwise refute, any of Defendants' factual assertions. Having failed to controvert those assertions, they should be considered true for purposes of the pending motion. See Fed.R.Civ.P. 56(e); see also GM Development Corp. v. Community American Mortgage Corporation, 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990) (holding that Rule 56 requires an opposing Statement of Facts to be supported by competent evidence and "[i]f the opposing party fails to present, either by affidavit or other competent evidence, facts which controvert the moving party's affidavits, the facts alleged by the moving party may be considered as true"). II. U NDISPUTED F ACTS The following facts are now undisputed:

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On the afternoon of February 18, 2003, the City of Chandler Police Department received a telephone call concerning a possible suicidal male. Two officers that serve with that department (Officers Carboun and Meeker) were dispatched to the location of the call ­ an apartment located in the city ­ to conduct a welfare check. See SOF, at ¶ 4.1 After arriving at the apartment complex, Officers Carboun and Meeker were greeted by Erik Causton, who identified himself as the occupant of apartment. See SOF, at ¶¶ 5-6. Shortly after first meeting Mr. Causton, Mr. Causton told the officers he was not having a very good day, and that his wife was leaving him and taking their baby. Officer Carboun recalls thinking that Mr. Causton might be thinking of hurting himself. Officer Carboun asked Mr. Causton if he would like to go back to his apartment and talk, and Mr. Causton said "yes." The three men then returned to Mr. Causton's apartment. See SOF, at ¶ 7. Mr. Causton entered the apartment first, followed by Officer Meeker who was followed by Officer Carboun. As Officer Meeker was following Mr. Causton

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into the apartment, Officer Meeker noticed that Mr. Causton had a folding knife clipped to his right front pocket. In an attempt to secure the knife, Officer Meeker reached for it. Mr. Causton knocked Officer Meeker's hand away, removed the knife from his pocket, and snapped the 3½" blade open with the flick of his wrist. Fearing for their safety, both officers stepped backwards into the apartment and drew their guns. Mr. Causton clutched the knife with the blade pointed upward and angled forward, his arm angled back and above his waist. See SOF, at ¶ 8.

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With his gun drawn, Officer Carboun called dispatch. He reported the threat to him and Officer Meeker, and asked for additional units to respond to the scene. Officer Carboun asked for additional resources, including resources providing for less lethal means of force and a Taser. From that point on, Officers Carboun and Meeker sought to protect themselves while defusing the situation that had arisen. Both officers repeatedly ordered Mr. Causton to put his knife down. The officers told Mr. Causton that if he put away his knife, they would put away their guns. In an effort to diffuse the situation, the officers kept reassuring Mr. Causton that they did not want anyone to get hurt. See SOF, at ¶ 9. Mr. Causton informed the officers he wanted them to shoot him, and then took steps to force a confrontation. Not only did he not put down the knife, but he advanced on the officers ­ continuing to clutch the knife with the blade pointed upward and angled forward, his arm angled back and above his waist. By this time, Officers Carboun and Meeker were trapped inside the small apartment, as Mr. Causton was blocking the pathway to the door. Nonetheless, the officers continued their efforts to defuse the situation by talking to Mr. Causton. See SOF, at ¶ 10. As Mr. Causton advanced on the officers, the officers retreated back into the small apartment. The officers repeatedly ordered Mr. Causton to put his knife down. While retreating back into the apartment, the officers split up, moving toward different parts of the apartment. Officer Meeker retreated back to his right, into a bathroom located off a short hallway. Officer Carboun retreated back to his left, through a dining area and into the small kitchen. Looking confused, Mr. Causton continued to advance on Officer Carboun. As Mr. Causton was advancing on him, Officer Carboun repeatedly told him to back up and put the knife down. Mr. Causton told the officers that he wanted the officers to shoot him. In response, and in an effort to distract Mr. Causton so that he could escape past him and back toward the front door, Officer Carboun stated something like "hey, I can't shoot you ­ he (referring to Officer Meeker) is supposed to shoot you." See SOF, at ¶ 11. At that point, Mr. Causton turned his attention towards Officer Meeker. As Mr. Causton advanced on Officer Meeker, Officer Meeker retreated across the hallway into a bedroom. Mr. Causton confronted Officer Meeker at the doorway of the bedroom. Officer Meeker again ordered Mr. Causton to drop the knife. Mr. Causton did not drop the knife. Instead, he returned his attention back to Officer Carboun. Throughout this entire time, Mr. Causton was still located between the officers and the front door. See SOF, at ¶ 12. As the stand-off continued, Mr. Causton asked Officer Carboun what would happen if he just left the apartment. Officer Carboun informed Mr. Causton -3Filed 09/30/2005

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that he was free to leave and told Mr. Causton to "go for it." Mr. Causton walked outside the apartment, but just outside the door. Officer Carboun radioed in a description of Mr. Causton and warned he was armed with a knife. See SOF, at ¶ 13.

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While Mr. Causton was just outside the door of the apartment, Officers Carboun and Meeker moved into the dining/living area of the apartment. Unfortunately, Mr. Causton returned to the apartment within seconds, still clutching the knife with the blade pointed upward and angled forward, his arm angled back and above his waist. Mr. Causton advanced on the officers in a more aggressive manner than he had previously exhibited. Officer Meeker retreated back to the bedroom doorway and Officer Carboun retreated back into the kitchen. During their retreat back into the apartment, the officers continued to tell Mr. Causton to put his knife down. In response, Mr. Causton, while shaking his head "no," repeatedly told the officers (with a menacing and serious tone) that he was not putting his knife down. At this point, Mr. Causton focused his advance on Officer Carboun. As the officers were retreating from Mr. Causton, Officer Meeker, gun drawn, went down on one knee and yelled to Officer Carboun to move to the right ­ because Officer Carboun was in the crossfire of Officer Meeker and Mr. Causton. See SOF, at ¶ 14. As Mr. Causton continued his advance upon Officer Carboun, Officer Carboun repeatedly ordered Mr. Causton to back up and put the knife down. Officer Carboun told Mr. Causton that he did not want to hurt him. In response, Mr. Causton (with a menacing and sarcastic tone) told Officer Carboun that he was not going to hurt him ­ but that Officer Carboun was going to kill him. At that point, Officer Carboun became very concerned that his life was in danger. Realizing that Mr. Causton was leaving Officer Carboun no other option but to shoot him, Officer Meeker stepped back into the bedroom to avoid being in the line of fire. See SOF, at ¶ 15. Mr. Causton quickly closed the gap between him and Officer Carboun. At this time, Mr. Causton was turning his body from a sideways position to a forward position, with his right hand (holding the knife) moving forward in a swinging motion. When Mr. Causton's aggressive advance got approximately five feet from Officer Carboun, Officer Carboun fired. Mr. Causton raised his knee as if to kick Officer Carboun, and Officer Carboun fired again. Mr. Causton then moved away from Officer Carboun towards where Officer Carboun had last seen Officer Meeker. Still fearing for his and Officer Meeker's safety, Officer Carboun fired a couple of more shots towards Mr. Causton. Officer Carboun ceased firing when Mr. Causton began to drop down to the ground. Mr. Causton was pronounced dead at the scene. See SOF, at ¶ 16.

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A NALYSIS A. S UMMARY J UDGMENT S TANDARD As the Court knows, Rule 56 requires a plaintiff to come forward with

sufficient evidence from which a fact finder at trial could rule in plaintiff's favor. See First National Bank of Arizona v. Cities Serv Co., 391 U.S. 253, 289 (1968) (stating that "[w]hat -4Filed 09/30/2005

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Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him"); Anderson v. Liberty Lobby, Inc., 477 U.S. 252, 263 (1986) (stating that "there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party") (emphasis added). Furthermore, only genuine disputes ­ where the evidence is such that a reasonable jury could return a verdict for the non-moving party ­ "over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (holding that the nonmoving party must offer specific evidence from which a reasonable jury could return a verdict in its favor). With their Response to Defendants' motion, Plaintiffs offer no evidence from which a reasonable jury could return a verdict in their favor. As the Court will see from its review of Plaintiffs' Statement of Facts, at best, Plaintiffs refer the Court to some transcripts of recorded interviews of both Officers Carboun and Meeker. Even setting aside the fact that Plaintiffs take some of the statements out of context, and read too much into certain statements, it is very clear that the officers were facing a deadly threat and made very reasonable efforts to avoid using deadly force. Only when Mr. Causton left Officer Carboun no other option was deadly force used.

20 B. 21 Plaintiffs agree, as they must, that the United States Supreme Court's opinion 22 in Saucier provides the proper framework for analyzing Plaintiffs' federal law claims. Under 23 24 25 26 27 28 this framework, the Court must make two distinct inquiries: (1) whether a constitutional right would be violated on the facts alleged; and (2) assuming a violation is established, whether the right was so clearly established that it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 199 (2001). As to the first inquiry, where "no constitutional right would have been -5Filed 09/30/2005 Q UALIFIED I MMUNITY D EFENSE

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violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. As to the second inquiry, "[i]f the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202 (emphasis added). C. P LAINTIFFS H AVE N OT S HOWN A V IOLATION O F T HEIR F OURTEENTH A MENDMENT (S UBSTANTIVE D UE P ROCESS) R IGHTS Plaintiffs acknowledge, as they must, that the relevant constitutional inquiry is whether Plaintiffs have shown a violation of their Fourteenth Amendment (substantive due process) rights. Plaintiffs concede, again as they must, that violations of Mr. Causton's rights are personal rights which may not be vicariously asserted. Plaintiff's Response, at p. 5 at line 27 through p. 6 at line 2; Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 371-72 (9th Cir. 1998) (noting, in wrongful death police shooting case, that district court erroneously analyzed survivors' claims under the Fourth Amendment's reasonableness standard as opposed to the Fourteenth Amendment's "shocks the conscience" standard). Despite this concession, Plaintiffs' Response spends a great deal of time attempting to convince the Court that the officers somehow violated Mr. Causton's Fourth Amendment rights. Plaintiffs' attempt to do an "end run" around the proper inquiry is misplaced and, significantly, directly contrary to Ninth Circuit precedent. Id. As set forth in Defendants' motion, to prevail on their substantive due process claim, Plaintiffs must establish that the actions of the officers was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." See County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998).2 In Lewis, the Supreme Court held that in cases in which police officers are required to make quick judgments about the proper

Plaintiffs note that Lewis "involved a vehicle pursuit and not a shooting." The Ninth Circuit has already addressed Plaintiffs' concern and held that the "same level of culpability is implicated by these two types of substantive due process claims." Moreland v. Las Vegas Metropolitan Police, 159 F.3d 365, 372-73 (9th Cir. 1998). Case 2:04-cv-00500-ROS Document 58 -6Filed 09/30/2005 Page 6 of 16

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course of action and therefore cannot deliberate before acting, even showing that the officers' recklessness caused the plaintiff's injury is insufficient to support a substantive due process claim. Id. at 853-54. Rather, a violation of substantive due process will be found only when a plaintiff can show "conduct intended to injure in some way unjustifiable by any government interest." Id. at 849 (emphasis added). The conduct must "do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically;" it must "offend even hardened sensibilities." Rochin v. California, 342 U.S. 165, 172 (1952). With their Response, the most Plaintiffs have pointed out is that Officer Meeker attempted to take a knife (with a 3½" blade) from a man the officers reasonably believed was suicidal. Mr. Causton, an allegedly suicidal person with whom they were unfamiliar, led the officers to believe that he was a danger not only to himself, but also to others, including the officers themselves. The officers' conduct does not "shock the conscience" within the meaning of Fourteenth Amendment jurisprudence. Indeed, even if the officers' actions were analyzed under the Fourth Amendment, as Plaintiffs suggest, the actions were entirely reasonable. Plaintiffs argue that Officer Meeker's attempt to take a knife (with a 3½" blade) from a suicidal man violated the Fourth Amendment. Whether a particular use of force was within the bounds of the Fourth Amendment depends upon whether it was

20 reasonable in the circumstances. Graham v. Connor, 490 U.S. 386, 395-97 (1989). "The 21 `reasonableness' of a particular use of force must be judged from the perspective of a 22 reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396. 23 24 25 26 27 28 This is because "police officers are often forced to make split-second judgments ­ in circumstances that are tense, uncertain, and rapidly evolving ­ about the amount of force that is necessary in a particular situation." Id. at 397. In addition, the officers' conduct need not be the "least intrusive means," but only need be "within that range of conduct we identify as reasonable." Billington v. Smith, 292 F.3d 1177, 1188-89 (9th Cir. 2002). -7Filed 09/30/2005

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The undisputed facts establish that the officers were confronted with a man who they reasonably believed was suicidal. When one of the officers noted that this man was carrying a deadly weapon (a knife), that officer attempted to secure the knife for safety reasons. In light of the circumstances, and the Fourth Amendment jurisprudence discussed above, the officer's attempt to secure the knife for safety reasons was entirely reasonable. Plaintiffs next challenge the reasonableness of Officer Carboun's decision to shoot Mr. Causton. That challenge is equally misplaced. To begin with, Plaintiffs again suggest that the proper inquiry revolves around the Fourth Amendment, rather than the Fourteenth Amendment. For the reasons set forth above, Plaintiffs are wrong. To prevail on their federal law claims, including their challenge to Officer Carboun's decision to shoot Mr. Causton, Plaintiffs must meet the Fourteenth Amendment's "shock the conscience" standard. Plaintiffs cannot meet this high standard. In fact, even if Officer Carboun's actions were analyzed under the Fourth Amendment's "reasonableness" standard, Plaintiffs' claims still fail. As Plaintiffs are well aware, their own standard of care expert (Dr. Michael Cosgrove) acknowledged that national standards authorize an officer to use deadly force to protect himself/herself or others from an immediate or imminent threat of death or serious physical harm. SOF, at ¶ 19. In fact, according to Dr. Cosgrove's own testimony, deadly force may be used even when a suspect is reaching for a deadly weapon. Id.

20 Faced with Dr. Cosgrove's concessions, Plaintiffs try to argue that there is no 21 evidence that Mr. Causton ever attacked the officers. Plaintiffs are flat wrong. The 22 undisputed facts, referenced again in section II above, amply demonstrate that Mr. Causton 23 24 25 26 27 28 -8Filed 09/30/2005 attacked the officers. SOF, at ¶¶ 8-12, 14-16. The undisputed facts further demonstrate that, despite numerous warnings, Mr. Causton refused to drop the knife (a deadly weapon) he was holding and continued an aggressive advance on the officers. Id. It is undisputed that, at the time he was shot, Mr. Causton was advancing on Officer Carboun ­ with his knife drawn.

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SOF, at ¶ 16. It was not until Mr. Causton got within approximately five feet that Officer Carboun fired. Id. Based on the undisputed facts, Officer Carboun's actions were consistent with national police standards and entirely reasonable.3 Accordingly, Officer Carboun's actions cannot be said to "shock the conscience" within the meaning of Fourteenth Amendment jurisprudence. Because Plaintiffs have failed to show a violation of their constitutional rights, their federal law claims against the officers, and the City, should be dismissed. See Saucier, 533 U.S. at 201 and Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding that "[i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point" (emphasis in original)). D. P LAINTIFFS H AVE N OT C ARRIED T HEIR B URDEN O F S HOWING T HAT T HE A CTIONS O F T HE O FFICERS W ERE "C LEARLY U NLAWFUL" In their Response, Plaintiffs reference the stay of discovery in place. First, as Plaintiffs acknowledge, Plaintiffs stipulated to the stay of discovery ­ pending the resolution of this motion. In any event, "[w]here the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier, 533 U.S. at 200. The Supreme Court has directed that an officer's qualified immunity defense be determined at the earliest possible stage in the litigation. Id. at 200-201; Hunter v. Bryant, 502 U.S. 224, 227 (1991). Although the Supreme Court has noted the fact-specific nature of a reasonableness inquiry, it has
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On page 10 of their Response, Plaintiffs briefly argue that their substantive due process claim must be analyzed in light of their "escalation theory" ­ that the officers negligently got themselves into the dangerous situation they faced. The Ninth Circuit has expressly held that a plaintiff may not "establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided." Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002). Looking to prior precedent, the court found that "the fact that an officer negligently gets himself into a dangerous situation will not make it unreasonable for him to use force to defend himself." Id. In fact, the court went on to state that "even if an officer negligently provokes a violent response, that negligent act will not transform an otherwise reasonable subsequent use of force into a Fourth Amendment violation." Id. (emphasis in original). Case 2:04-cv-00500-ROS Document 58 -9Filed 09/30/2005 Page 9 of 16

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continued to urge the early resolution of reasonableness questions in the context of qualified immunity. See, e.g. Anderson v. Creighton, 483 U.S. 635, 641 (1987) (noting the "objective (albeit fact-specific) question whether a reasonable officer could believe Anderson's warrantless search to be lawful" and resolving the question as a matter of law). Accordingly, the Ninth Circuit has found that "[t]his requirement calls upon courts, not juries, to settle the ultimate questions of qualified immunity." Johnson v. County of Los Angeles, 340 F.3d 787, 791 (9th Cir. 2003). The Supreme Court recently reiterated the key foundational principals surrounding the qualified immunity inquiry. Brosseau v. Haugen, 125 S.Ct. 596, 599 (2004). "Qualified immunity shields an officer from suit when [the officer] makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances [the officer] confronted." Id. Referring back to its decision in Saucier, the Court noted that qualified immunity operates "to protect officers from the sometimes `hazy border between excessive and acceptable force'." Id. (quoting Saucier, 533 U.S. at 206). The Court reminded that "[i]f the law at the time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation." Id. Qualified immunity provides "ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter, 502 U.S. at 229 (citations and internal quotation omitted).

20 In Tennessee v. Garner, the Supreme Court found that "[w]here [a] suspect 21 poses no immediate threat to the officer and no threat to others, the harm resulting from 22 failing to apprehend him does not justify the use of deadly force to do so . . . a police officer 23 24 25 26 27 28 may not seize an unarmed, nondangerous suspect by shooting him dead." 471 U.S. 1, 11 (1985). However, "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others," deadly force may be used. Id. In determining whether a particular use of force was reasonable, the Court must view the relevant events from "the perspective of a reasonable officer on the scene, rather - 10 Filed 09/30/2005

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than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Moreover, the Court must allow "for the fact that police officers are often forced to make split-second judgments ­ in circumstances that are tense, uncertain, and rapidly evolving ­ about the amount of force that is necessary in a particular situation." Id. at 397. If an officer reasonably, but mistakenly, believes that a suspect poses an immediate threat of serious harm, then the officer would be justified in using more force than in fact was needed. Saucier, 533 U.S. at 205. Accordingly, the ultimate question in the Court's inquiry is not whether the officer was actually in danger as a matter of fact, but whether it was objectively reasonable for the officer to believe that he was, given the circumstances within his knowledge at the moment he acted. Given the undisputed facts, the officers' actions were entirely reasonable. It is undisputed that Mr. Causton was wielding a knife (a dangerous and deadly weapon) and that, despite repeated orders/warnings to drop the knife, he refused to do so. SOF, at ¶¶ 815. It is undisputed that, during his final advance on Officer Carboun, he was told to back up ­ but failed to do so. SOF, at ¶ 15. Rather, Mr. Causton continued his aggressive advance and, with knife drawn, got within approximately five feet of Officer Carboun. Id. Without a doubt, Officer Carboun could have been killed or seriously injured by Mr. Causton. As set forth above, "[i]f the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is

20 appropriate." Saucier, 533 U.S. at 202 (emphasis added). Plaintiffs have not come close to 21 meeting this standard. Indeed, the relevant law fully supports the reasonableness of the 22 officers' actions. Relying upon Tennessee v. Garner and Graham v. Connor, the Ninth 23 24 25 26 27 28 Circuit held, back in 1994, that an officer's use of deadly force is reasonable "if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (internal citations and quotations omitted). Arizona's Criminal Code further supports the actions of the officers ­ see section III(C)(2) of Defendants' Motion for Summary Judgment - 11 Filed 09/30/2005

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Docket No. 49); see also A.R.S. § 13-405 (justifies use of deadly force in self-defense where a person reasonably believes deadly force is immediately necessary to protect himself from the other's use or attempted use of unlawful deadly force). Indeed, relying upon Tennessee v. Garner and A.R.S. section 13-405, this Court has previously held that "an officer who is confronted by a person reasonably believed to be armed and dangerous may use deadly force to defend himself." McRae v. Tena, 914 F.Supp. 363, 367 (D. Ariz. 1996). Plaintiffs suggest that the officers could have explored less intrusive alternatives when responding to Mr. Causton. Scott v. Henrich clarifies that officers "need not avail themselves of the least intrusive means of responding to an exigent situation." 39 F.3d at 915. Another instructive case is this Court's prior decision in McRae. In McRae, the officer was faced with a person who was about to throw a metal object at a police officer. 914 F.Supp. at 365. The person indicated that they would throw a metal object on the count of three. Id. The person counted to two and had his arm back and ready to throw the object forward. Id. The officer shot the person after the person counted to two. Id. In that case, this Court found that the officer's decision to use deadly force was protected by the doctrine of qualified immunity.4 Because Plaintiffs have failed to carry their burden of showing "clearly unlawful" conduct, summary judgment based on qualified immunity should be granted. Saucier, 533 U.S. at 202.

20 21 22 23 24 25 26 27 28 Although Plaintiffs do not argue the point in their Response, their Statement of Facts references the conclusory assertions of their expert witness. The Ninth Circuit has made clear that, even for summary judgment purposes, "the fact that an expert disagrees with [an] officer's actions does not render the officer's actions unreasonable." Billington, 292 F.3d at 1189. In fact, the Ninth Circuit has found that its precedent "prevent a plaintiff from avoiding summary judgment by simply producing an expert's report that an officer's conduct leading up to a deadly confrontation was imprudent, inappropriate, or even reckless." Id. "Rather, the court must decide as a matter of law whether a reasonable officer could have believed his conduct was justified." Id. (internal citations omitted); see also, McRae, 914 F.Supp. at 367. Document 58 - 12 Filed 09/30/2005 Page 12 of 16
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P LAINTIFFS' M ONELL C LAIM A GAINST T HE C ITY Plaintiffs do not dispute the general law governing Monell claims ­ outlined

on page 10 of Defendants' motion. The law governing Monell claims is very clear ­ a plaintiff seeking to impose liability on a municipality under section 1983 must show that the municipality itself caused the plaintiff's alleged constitutional injury. 436 U.S. 658, 690-94 (1978). The plaintiff is required to show the existence of an official policy or custom that caused the alleged constitutional injury. Id. Moreover, to prevent municipal liability from collapsing into respondeat superior liability, the Supreme Court has admonished lower courts to apply "rigorous" and "stringent" standards of culpability and causation in such cases. Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397, 405, 415 (1997). Of course, as outlined in Defendants' motion, Plaintiffs must first establish a deprivation of their constitutional rights. For the reasons set forth above, Plaintiffs have not met the threshold burden of showing a violation of their Fourteenth Amendment (substantive due process) rights. Consequently, their claim against the City fails as a matter of law. See Heller, 475 U.S. at 799 (holding that "[i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point" (emphasis in original)); see also Sweaney v. Ada County, 119 F.3d 1385, 1392 (9th Cir.

20 1997). 21 Even if Plaintiffs carried their burden of establishing a violation of their 22 Fourteenth Amendment rights (and they have not), their claim against the City still fails. As 23 24 25 26 27 28 the Court can see, Plaintiffs rely upon a "ratification theory." The only evidence Plaintiffs have offered to support this theory is cited by Defendants in their Separate Statement of Facts. See SOF at ¶ 20. Aside from pointing to the fact that the City did not discipline its officers for their discretionary actions, Plaintiffs have offered no other evidence to support their "ratification theory." Although Plaintiffs argue "we are not dealing with a failure to - 13 Filed 09/30/2005

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reprimand," they offer absolutely no other evidence to support their "ratification theory." Rather, they argue, in a conclusory fashion, that because they know that the City did not discipline its officers for their actions, the actions were "ratified." As the authorities cited in Plaintiffs' Response recognize, Plaintiffs must still prove the existence of an unconstitutional municipal policy. Harrington v. City of Napa, 2005 WL 1656883, * 8 (9th Cir. 2005). In addition, although a single, post-event ratification may provide a basis to hold the City liable under Monell generally, "the Ninth Circuit has done so only when there was very clear instances of abuse and gross recklessness." Id.; see also Estate of Escobedo v. City of Redwood City, 2005 WL 226158, * 11 (9th Cir. 2005) (stating that "the Ninth Circuit . . . appears to require more than a failure to reprimand to establish a municipal policy or ratification of unconstitutional conduct). presented no such evidence in this case. Again, because Plaintiffs have failed to show a constitutional violation, their claim against the City fails as a matter of law. Moreover, because Plaintiffs have failed to provide sufficient evidence to support their "ratification theory," their claim against the City fails for that reason as well. F. P LAINTIFFS' S TATE L AW C LAIMS A RE B ARRED B ECAUSE T HEY F AILED T O S ERVE A N OTICE O F C LAIM O N T HE I NDIVIDUAL O FFICERS As Plaintiffs acknowledge in their Response, they were required to serve the requisite notice of claim on the individual officers. It is undisputed that Plaintiffs did not serve the individual officers ­ rather, they delivered copies of the notices of the claim to the officers' regular place of business (i.e., the Chandler Police Department). The Arizona Rules do not authorize serving an individual at the individual's regular place of business. See Ariz.R.Civ.P. 4.1(d). Plaintiffs have offered no evidence to support their belief that a receptionist at the Chandler Police Department equates "to an agent authorized by appointment or by law to receive service of process." Id. Contrary to Plaintiffs' assertion, Plaintiffs have

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they have not conformed with the statute and their state law claims against the officers are barred for that reason. G. B ECAUSE T HE A CTIONS O F T HE O FFICERS W ERE L EGALLY J USTIFIED, P LAINTIFFS' S TATE L AW C LAIMS S HOULD B E D ISMISSED A S A M ATTER O F L AW Plaintiffs acknowledge, as they must, that the relevant inquiry here again rests with whether the officers reasonably believed that deadly force was necessary to defend themselves against what they reasonably believed to be the use or imminent use of deadly force. For all of the reasons set forth above, the officers reasonably believed that deadly force was necessary to defend against Mr. Causton's use of deadly force. Because the use of force was justified, the individual officers are entitled to judgment as a matter of law. Plaintiffs suggest that there may be a "jury question" because Mr. Causton told the officers that he was not going to hurt them. With all due respect, Plaintiffs' suggestion is ridiculous. See standards governing summary judgment (outlined on pages 4 and 5

above). Mr. Causton was wielding a knife (a dangerous and deadly weapon) and, despite repeated orders/warnings to drop the knife refused to do so. During his final advance on Officer Carboun, he was told to back up ­ but failed to do so. Rather, Mr. Causton continued his aggressive advance and, with knife drawn, got approximately five feet from Officer Carboun. Although Mr. Causton may have told the officers that he was not going to hurt them, his actions spoke much louder than those words. The officers' actions were entirely

20 reasonable and these claims should be dismissed as a matter of law. 21 H. 22 23 24 25 26 27 28 - 15 Filed 09/30/2005 P LAINTIFFS' S TATE L AW C LAIMS A GAINST T HE C ITY S HOULD B E D ISMISSED A S W ELL As set forth in Defendants' motion, if Plaintiffs' negligence claims against the individual officers fail, their negligence claims against the City fail as well. Plaintiffs do not respond to this point ­ presumably because they are in agreement with Defendants' position. Defendants stand by their position that Plaintiffs' negligence claims against the individual

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officers fail as a matter of law. Accordingly, the City is entitled to summary judgment as well. See Mulhern v. City of Scottsdale, 165 Ariz. 395, 398, 799 P.2d 15, 18 (1990). IV. C ONCLUSION For all of the foregoing reasons, Defendants respectfully request summary judgment on all of Plaintiffs' claims. R ESPECTFULLY S UBMITTED this 30th day of September, 2005. G RASSO L AW F IRM, P.C.

By

s/ Robert Grasso, Jr. Robert Grasso, Jr.
Jackson Plaza

4600 South Mill Avenue, Suite 125 Tempe, Arizona 85282 Attorneys for Defendants C ERTIFICATE O F S ERVICE: I hereby certify that on September 30, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: J. Robert Tolman, Esq. T OLMAN, B RADSHAW & J OHNSON, L.L.C. 1019 South Stapley Drive Mesa, Arizona 85204 Email: [email protected] Attorneys for Plaintiffs By s/ Robert Grasso, Jr.

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