Free Response to Motion - District Court of Arizona - Arizona

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J. Robert Tolman ­ 003864 TOLMAN, BRADSHAW & JOHNSON 1019 S. Stapley Drive Mesa, Arizona 85204 Telephone (480) 833-7527 Facsimile (480) 344-4592 Email: [email protected] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

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MARIA CAUSTON, individually and on behalf of GIANA CAUSTON and MARINA SHEPPARD, Plaintiffs, vs. CITY OF CHANDLER, a municipal corporation; JOHN M. CARBOUN and RANDLE L. MEEKER, Defendants.

NO. CV-04-0500-PHX-ROS PLAINTIFFS' RESPONSE TO DEFENDANT CITY OF CHANDLER'S MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

Plaintiffs Maria Causton, individually and on behalf of Giana Causton and Marina
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Sheppard, through counsel undersigned, hereby respond in opposition to Defendants'
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Motion for Summary Judgment and urge the Court to deny the same for the reason that
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genuine issues of material fact exist and Defendants are not entitled to judgment as a matter
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of law.
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This response is supported by the accompanying Memorandum of Points and
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Authorities, the Statement of Facts filed concurrently herewith, the Affidavit of Kevin Neus,
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the Affidavit of J. Robert Tolman, and the entire record before the Court.
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DATED this 31st day of August, 2005. TOLMAN, BRADSHAW & JOHNSON, LLC By_s/ J. Robert Tolman______________ J. Robert Tolman 1019 S. Stapley Drive Mesa, AZ 85204 Attorney for Plaintiff

MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND. The relevant facts are not undisputed. The facts considered in a light most favorable

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to the party opposing summary judgment, in addition to the undisputed facts, are that Erick
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Causton voluntarily approached the Officers and identified himself. He and the Officers
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were talking in general. He was smiling and being very hospitable (Defendant's Statement
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of Facts "DSOF" at ¶ 5) The Officers knew only that someone had called concerning a
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possible suicidal male and that they were conducting a welfare check. (Plaintiffs' Statement
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of Facts "PSOF" at ¶¶ 4 & 5) According to Officer Meeker, the situation was explained to
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Erick Causton and he "looked kinda funny" and said "Yeah, I'm fine, yeah." (PSOF ¶ 6)
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Erick explained that he was not having a good day but the Officers did not have a "hunch or
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feeling that Erick was setting them up for something." (PSOF ¶ 7) The Officers invited
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Erick to go into the apartment to discuss this situation. Erick complied and was cooperative
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and interested and willing to discuss his situation with the Officers. He was distraught but
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under control. The Officers had no indication that he was a danger to them.
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This was strictly a welfare check of a potentially suicidal individual. While a
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legitimate concern existed for the health and welfare of Erick Causton, there was no
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objective evidence that Erick was a danger to the Officers or other individuals.
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As Erick entered the apartment, Officer Meeker noticed a folding knife clipped to his right front pocket and attempted to secure the knife by reaching for it. (PSOF ¶ 8) It was the action of Officer Meeker which entirely changed the relationship between Erick Causton and the Officers. Erick's demeanor changed as a result of the poor judgment and unlawful conduct of Officer Meeker. The sum total of the knowledge of the Officers at the point in time that Officer Meeker reached for the folding knife that was clipped to the right front pocket and attempted to secure it was an anonymous phone call concerning a possible suicidal male, a man that was fine but was having a bad day and a man who had agreed to enter the apartment to visit with them. The Officers did not have a reasonable suspicion based on articulable facts to suspect Erick Causton of criminal activity. The Officers did not have probable cause to arrest Erick Causton. Following the scuffle for the knife and the stand off between Erick Causton and the Officers, Erick Causton specifically told the Officers that he wanted them to shoot him. The Officers allege that they continued their efforts to diffuse the situation by talking to Mr. Causton. However, Officer Carboun also stated that he could not shoot Erick Causton because Officer Meeker was supposed to shoot Erick Causton. (DSOF at ¶ 11) Again, it was the conduct of the Officers that was escalating the situation and suggesting to Erick Causton that Officer Meeker was supposed to shoot Erick Causton. Erick Causton left the apartment and the Officers called for assistance and additional Chandler police officers, including Officer Daniel Coons, responded to the scene. Officer Coons was approaching the scene at the time he heard an officer called out a "998" which meant an officer involved shooting. (PSOF at ¶ 16) Assistance was within minutes if not seconds of the shooting. During the final stand off and negotiations between Erick Causton and the Officers, Erick Causton told Officer Carboun "I'm not going to hurt you" . . ."But you're gonna have

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to kill me." This was at least the second time that Erick Causton had told the Officers that he was not going to hurt them. (PSOS at ¶ 14) There is no reference in the police report to any "menacing" or "sarcastic" tone in Erick Causton's voice. There is no reference in the police report that Erick Causton attempted to attack the Officers. In fact, according to the first recorded interview with Officer Carboun, Carboun stated that at the time of the shooting Erick Causton was "standing." Officer Carboun's thought processes were that he was really scared because he was thinking "He's gonna go ahead and try to cut me so then I am forced to use lethal force on him. So he's standing here and then I'm just unloaded, boom boom." (PSOF at ¶ 17) After the initial rounds were fired, Erick turned and began to move away from Officer Carboun. Officer Carboun then shot Erick Causton in the back. (PSOF at ¶ 8) Defendants err in stating that the Officers were attacked by a distraught man wielding a dangerous and deadly weapon. The Officers were never attacked by Erick Causton. A highly qualified expert in police procedures, tactics and training, Michael M. Cosgrove, Ph.D., has rendered the opinions under oath that entering the apartment was poor judgment, that attempting to seize the folding knife that was clipped to the front pocket was a violation of reasonable police conduct and without legal justification, and that the shooting of Erick Causton was negligent, grossly negligent, egregious and outrageous. It was a violation of reasonable police conduct and constitutional law. Defendant City of Chandler conducted an internal affairs investigation and convened a shooting review board. Reports were prepared and the conduct of the Officers was ratified by the City of Chandler and the Chandler Police Department. Plaintiffs were not provided with a copy of the Internal Affairs Investigation report or the Shooting Review Board report pursuant to a public records request. Counsel learned of the Internal Affairs Investigation report and the Shooting Review Board report through the report of Defendants' expert witness. Defendants have refused to produce copies of the report and have taken the
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position that the reports are irrelevant, privileged and not subject to disclosure. Given the stay of discovery, Plaintiffs have agreed to await the ruling on the motion for summary judgment to deal with the issue of the reports. At this point in time, Plaintiffs do not know the findings, conclusions or bases for the decision to ratify the conduct of the Officers. The only known fact is that Defendant City of Chandler ratified the conduct of Officers Carboun and Meeker. II. LEGAL ANALYSIS. A. Qualified Immunity Defense. Plaintiffs are in essential agreement with Defendants on the qualified immunity defense. Pursuant to Little v. The City of Seattle, 863 F.2d 681, 685 (9th Cir. 1989) plaintiffs stipulated to a stay of discovery pending a ruling on the issue of qualified immunity. The leading United States Supreme Court opinion on the issue is Anderson v. Creighton, 8430 U.S. 635 (1987) in which the court held that the subjective beliefs of the officers were irrelevant and that state and federal law enforcement officers are protected by qualified immunity from liability for actions satisfying the standard of objective legal reasonableness assessed in the light of legal rules clearly established at the time the actions were taken, and that qualified immunity may never be extended to officials who conduct unlawful warrantless searches. The depositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194, 194-195 (2001). Accordingly, while the issue of qualified immunity is a question of law, the question cannot be answered without reference to the specific facts of the situation confronting the officers. B. Plaintiffs Can Show a Violation of Their Constitutional Rights. Plaintiffs agree with Defendants that the Fourth Amendment right that existed in the decedent must be asserted by the survivors via a Fourteenth Amendment substantive
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due process claim. Erick Causton's Fourth Amendment rights are personal rights which may not be vicariously asserted. Alderman v. United States, 394 U.S. 165 (1969) However, the substantive due process claim asserted by the survivors is inextricably connected to the Fourth Amendment claim and Tennessee v. Garner, 471 U.S. 1 (1985) and Graham v. Conner, 490 U.S. 386 (1989). The conduct constituting a substantive due process violation is predicated on the conduct proscribed by the Fourth Amendment. Defendants have not asserted that Officers Carboun and Meeker had a right to detain or arrest Erick Causton at the time Officer Meeker attempted to seize the folding knife clipped to the pocket. The Officers were entering the apartment with the permission of Erick Causton for the purpose of talking with him and conducting a welfare check. Erick Causton had a right to be free from unreasonable searches and seizures under the Fourth Amendment. In order to justify an investigatory detention, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention. The facts must be judged against an objective standard of whether the facts available to the officer at the moment of the seizure or search would warrant a man of reasonable caution to believe that the action taken was appropriate. Terry v. Ohio, 392 U.S. 1, 21 (1968). Defendants have not asserted that Officers Carboun and Meeker had probable cause to arrest Erick Causton. Probable cause is essentially a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing that the accused is guilty of the offense. Sarwark Motor Sales, Inc. v. Woolridge, 88 Ariz. 173, 176, 354 P.2d 34, 36 (1960) When Officer Meeker reached out and attempted to take control of the folding knife that was clipped to the right front pocket of Erick Causton, he violated Erick Causton's Fourth Amendment right to be free from unreasonable searches and seizures and initiated the conflict between Erick Causton and the Officers. The unlawful action was the spark that ignited the change in Erick Causton's behavior and the confrontational posture of the Officers. The constitutional right to be free from unlawful searches and seizures was so
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clearly established that it would have been clear to any reasonable officer that Meeker's conduct was unlawful in the situation he confronted. Saucier v. Katz, 533 U.S. 194 (2001) The next issue is the excessive force and the use of deadly physical force. There is no evidence that Erick Causton ever attacked the Officers with the knife. There is no evidence that Erick Causton pointed the knife in a threatening manner as if to cut or stab an officer. If it is true that at the time of the shooting Erick Causton was standing several feet away from Officer Carboun and telling Officer Carboun that he was not going to hurt him, Officer Carboun had no right to use deadly force in shooting Erick Causton. Furthermore, if it is true that Erick Causton was shot in the back after he turned and began to move away from Officer Carboun, there is no justification for the shots fired into the back of Erick Causton. Use of deadly force claims are analyzed under the Fourth Amendment's "reasonableness" standard and Tennessee v. Garner, 471 U.S. 1 (1985) and Graham v. Conner, 490 U.S. 386 (1989). The standard established in Tennessee v. Garner is that "if the subject threatens the officer with a weapon or there is probable cause to believe that he had committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent the escape, and if, where feasible, some warning has been given." 471 U.S. at 11. In Graham v. Conner, 490 U.S. 386, 396397 (1989) the court stated: Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of " `the nature and quality of the intrusion on the individual's Fourth Amendment interests' " against the countervailing governmental interests at stake. Id., at 8, 105 S.Ct., at 1699, quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637 2642, 77 L.Ed.2d 110 (1983). Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. See Terry v. Ohio, 392 U.S., at 22-27, 88 S.Ct., at 1880-1883. Because "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," Bell v.
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Wolfish, 441 U.S. 520, 559, 99 S.Ct 1861, 1884, 60 L.Ed.2d 447 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8-9, 105 S.Ct., at 1699-1700 (the question is "whether the totality of the circumstances justifie[s] a particular sort of ... seizure"). .... As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States, 436 U.S. 128, 137-139, 98 S.Ct. 1717, 17231724, 56 L.Ed.2d 168 (1978); see also Terry v. Ohio, supra, 392 U.S., at 21, 88 S.Ct., at 1879 (in analyzing the reasonableness of a particular search or seizure, "it is imperative that the facts be judged against an objective standard"). (emphasis added) If the Fourth Amendment violation is established, the inquiry becomes whether the Fourth Amendment violation rises to the level of a Fourteenth Amendment violation and the denial to the Plaintiffs of substantive due process. Defendants rely on County of Sacramento v. Lewis, 523 U.S. 833 (1999) as establishing the requirement that the actions of the Officers be "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." It should be noted that Sacramento v. Lewis involved a vehicular pursuit and not a shooting. A more complete description of the standard with respect to due process claims is contained in the opinion: Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. What we have said of due process in the procedural sense is just as true here:
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"The phrase [due process of law] formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial." Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942). Thus, attention to the markedly different circumstances of normal pretrial custody and high- speed law enforcement chases shows why the deliberate indifference that shocks in the one case is less egregious in the other (even assuming that it makes sense to speak of indifference as deliberate in the case of sudden pursuit). As the very term "deliberate indifference" implies, the standard is sensibly employed only when actual deliberation is practical, see Whitley v. Albers, 475 U.S., at 320, 106 S.Ct., at 1084-1985 and in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare. (emphasis added) 523 U.S. at 448­451 In Leisure v. City of Cincinnati, 267 F.Supp.2d 848, the United States District Court of the Southern District of Ohio discussed Garner and Lewis and stated: The Supreme Court, in Garner, established that where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. Though Defendants read County of Sacramento v. Lewis to foreclose due process liability in a pursuit case absent purpose to cause harm. the Court finds that the specific holding of the case pertains to high-speed chases. 523 U.S. 833, 854, 118 S.Ct. 1708, 140 L.Ed.2d 1043. 267 F.Supp.2d at 453 and 454

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One of the factors considered in another vehicular pursuit case, Feist v. Simonson, 36 F.Supp.2d 1136 (1999) was whether the officers alleged to have committed substantive due process violations were involved in an escalation of the situation. The court found that the relevant officers were not party to the stages of escalation of the situation. In contrast, Officers Meeker and Carboun were the initiating factors in escalating the situation and their conduct consistently caused an escalation of the situation. In Weatherford v. State, 206 Ariz. 529, 81 P.2d 320 (2003), the Arizona Supreme Court held that a right is clearly established for purposes of overcoming qualified immunity defense in a § 1983 action when the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. In summary, the substantive due process claim must be evaluated in the context of the facts existing at the time of the violations. The facts taken in a light most favorable to the Plaintiff are that Officer Meeker unnecessarily and unlawfully attempted to grab the folding knife which sparked the conflict and changed Erick Causton's demeanor and reactions to the Officers, Officer Carboun continued the escalation of the conflict by telling Erick Causton that Meeker was the one that was supposed to shoot Causton. Erick Causton repeatedly told the Officers that he was not going to hurt them, Erick Causton was standing and not attacking at the time he was initially shot and Erick Causton was moving away from Officer Carboun at the time he was shot in the back. There is no evidence as to whether Erick Causton died as a result of the shots to the back. The facts certainly qualify as egregious, outrageous and shocking to the conscience. There was no reason for Erick Causton to die at the hands of Officers Carboun and Meeker. There was no reason for Officer Carboun to refuse to wait a few seconds or minutes for backup with non-lethal weapons available to assist in the negotiations with Erick Causton. C. Defendant City of Chandler has Ratified the Substantive Due Process Violations and is Liable to Plaintiffs. A policy, custom or practice of depriving citizens of constitutionally guaranteed civil rights may be established by an act or omission but is ratified by the city's
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policy making officials. Defendant City of Chandler has ratified the misconduct through the internal affairs investigation and the Shooting Review Board. While we do not know the facts on which the City relied or the specific bases for the decision to ratify the misconduct, the fact of ratification is established. A single decision by the policy making authority of a municipality may serve to establish the policy, custom or practice of constitutional violations sufficient to create liability pursuant to 42 U.S.C. § 1983. Pembauer v. City of Cincinnati, 475 U.S. 469 (1986). Pembauer and the single act basis for liability is discussed in McClure v. Biesenbach, Slip Copy 2005 WL 483386 (W.D. Tex.) (only the WestLaw citation is currently available, (2005)): Under the Fifth Circuits decision in Pembauer, a municipality may be liable under Section 1983 for even a single decision made by its legislative body, even if the decision is singular and not meant as a continuing policy, "because even a single decision by such a body unquestionably constitutes an act of official government policy." As long as an individual municipal employee's acts or statements constitute or represent official policy, the city face liability under Section 1983 if the acts or statements work a constitutional deprivation. As Plaintiffs point out, the outcome is the same when a city employee's actions cause the deprivation and those actions are later ratified by a policymaker. 2005 W.L. 483386 at p.5; (attached) The Ninth Circuit Court of Appeals in Harrington v. City of Napa, Slip Copy 2005 W.L. 1656883 (ND Cal. 2005) is in agreement with respect to ratification. Ratification may form the basis for holding a municipality liable under Monell "[i]f the authorized policymakers approve a subordinate's decision and the basis for it...." Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003). However, a plaintiff must still "prove [ ] the existence of an unconstitutional policy." Id. (quoting Praprotnik, 485 U.S. at 128). While a single decision may be sufficient to trigger Section 1983 liability, "the plaintiff must show that the triggering decision was the product of a `conscious, affirmative choice' to ratify the conduct in question." Id. (citing Gillette v Delmore, 979 F.2d 1342, 1347 (9th Cir.1993)). While a
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single, post-event ratification may provide the basis to hold a city liable under Monell, generally, the Ninth Circuit has done so only when there were very clear instances of abuse and gross recklessness. See Siwiec v. Thompson, L., 2004 WL 2480516, *22 (D,Or.Nov.3 2004) (summarizing Ninth Circuit law on this point); see also Estate of Escobedo v. city of Redwood City, 2005 WL 226158, *11 (N.D.Cal, Jan.28,2005) ("the Ninth Circuit ... appears to require more than a failure to reprimand to establish a municipal policy or ratification of unconstitutional conduct."); Kane v. Hodson, 294 F.Supp.2d 1179, 1189 (D.Haw.2003) (same). In our case, we are not dealing with a failure to reprimand. Although we do not have all of the facts, it is clear that the City of Chandler has approved and ratified the conduct of Officers Carboun and Meeker. The ratification establishes the existence of the policy. D. Notices of Claim Were Served on the Individual Officers. A.R.S. § 12-821.01(A) provides that persons who have claims against a public entity or a public employee "shall file claims with the person or persons authorized to accept service for the public entity or public employee as set forth in the Arizona rules of Civil Procedure within 180 days after the cause of accident accrues." Kevin Neus served the Notice of Claim for the two public employees, Officer Randle L. Meeker and Officer John M. Carboun on August 5, 2003 by personally delivering copies of the Notices of Claim to Kris Peralta at the Chandler Police department. He was specifically advised by Ms. Peralta that she was authorized to accept service of the Notices of Claim on behalf of the individual officers. Plaintiffs have conformed with the requirements of the statute. If the individual Officers did not receive the notices, it is due to no fault of Plaintiffs. E. Reactions of the Officers Were Not Legally Justified Under State Law. A.R.S. § 13-409 applies to the use of physical force in law enforcement. A.R.S. § 13-410 applies to the use of deadly physical force in law enforcement. The first requirement in both statutes is that the person threatening or using the force be effecting an arrest or preventing the escape of a suspect. The second requirement under A.R.S. § 13-410 is that the subject be actually resisting the discharge of a legal duty with deadly physical force or with the apparent capacity to use deadly physical force. A third requirement is that
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the police officer use deadly force only when the police officer reasonably believes that it is necessary to defend himself or a third person from what the police office reasonably believes the use or imminent use of deadly physical force. The statute is specific and requires a determination of the reasonableness of the officer's belief that he is defending himself from the use or imminent use of deadly physical force. It is a jury question under state law. Erick Causton told the officers he was not going to hurt them. Erick Causton was involved in a stand off with the police. Erick Causton was not attacking the police and, ultimately, Erick Causton was shot in the back while he walked away from Officer Carboun. If the evidence is viewed in a light most favorable to the Plaintiffs, it appears impossible to determine as a matter of law that the officers' conduct was justified under state law. II. CONCLUSION. Defendants are not entitled to summary judgment on the issue of qualified immunity. The facts taken in a light most favorable to the Plaintiff establish that the confrontation was initiated and caused by the unconstitutional misconduct of the officers, that Erick Causton did not attack the officers and did not intend to attack the officers. That Erick Causton was standing and not lunging towards Officer Carboun at the time of the initial shots and that Erick Causton was shot in the back as he was moving away from Officer Carboun. There is no evidence that the cause of death was not the shots to the back. There is clear evidence that Defendant City of Chandler ratified the misconduct of the Officers. There has been no discovery and, therefore, the motion should be denied at this stage in the litigation in order to permit the development of the facts and determine whether the constitutional violations occurred in a manner sufficient to shock the conscience and entitle the Plaintiffs to compensation. The Notices of Claim were served consistent with the requirements of the statute. Factual disputes clearly preclude summary judgment on the state law claims. For the foregoing reasons, it is respectfully requested that the Court deny Defendants' Motion for Summary Judgment.
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DATED this 31st day of August, 2005. TOLMAN, BRADSHAW & JOHNSON, LLC By_s/J. Robert Tolman______________ J. Robert Tolman 1019 S. Stapley Drive Mesa, AZ 85204 Attorney for Plaintiff ORIGINAL of the foregoing filed with the Clerk of the U.S. District Court and delivered to Judge Honorable Roslyn O. Silver this 31st day of August, 2005. COPY of the foregoing mailed this 31st day of August, 2005, to: Robert Grasso, Jr., Esq. GRASSO LAW FIRM, P.C. Jackson Plaza 4600 South Mill Avenue, Ste 125 Tempe, AZ 85282 Email: [email protected] By_s/ J. Robert Tolman______________

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