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Nehad v. Browder

United States Court of Appeals, Ninth Circuit

July 11, 2019

S.R. Nehad; K.R. Nehad; Estate of Fridoon Rawshan Nehad, Plaintiffs-Appellants,
v.
Neal N. Browder; City of San Diego; Shelley Zimmerman, in her personal and official capacity as Chief of Police, Defendants-Appellees.

          Argued and Submitted February 27, 2019 Southwestern Law School Los Angeles, California

          Appeal from the United States District Court for the Southern District of California D.C. No. 3:15-cv-01386- WQH-NLS William Q. Hayes, District Judge, Presiding

          Daniel S. Miller (argued), Sean G. McKissick, J. Mira Hashmall, and Louis R. Miller, Miller Barondess LLP, Los Angeles, California, for Plaintiffs-Appellants.

          George Frederick Schaefer (argued), Assistant City Attorney; Kathy J. Steinman, Deputy City Attorney; Mara W. Elliott, City Attorney; Office of the City Attorney, San Diego, California; for Defendants-Appellees.

          Scott J. Street, Baute Crochetiere & Hartley LLP, Los Angeles, California; Brian Hardingham, Public Justice P.C., Oakland, California; Adrienna Wong and Peter Bibring, ACLU Foundation of Southern California, Los Angeles, California; for Amici Curiae American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, American Civil Liberties Union of San Diego & Imperial Counties, and Public Justice.

          Lee H. Roistacher, Daley & Heft LLP, Solana Beach, California, for Amici Curiae California State Association of Counties, League of California Cities, and International Municipal Lawyers Association.

          Before: Sidney R. Thomas, Chief Judge, Michael Daly Hawkins, Circuit Judge, and Dean D. Pregerson, [*] District Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed in part and reversed in part the district court's summary judgment in favor of defendants and remanded in an action alleging that a City of San Diego police officer used excessive deadly force when he shot and killed Fridoon Nehad.

         The panel held that there were several genuine disputes of material fact regarding plaintiffs' Fourth Amendment claim. At a broad level, the panel held that a triable issue remained regarding the reasonableness of the police officer's use of deadly force. More specifically, there were genuine disputes about: (1) the officer's credibility; (2) whether Nehad posed a significant, if any, danger to anyone; (3) whether the severity of Nehad's alleged crime warranted the use of deadly force; (4) whether the officer gave or Nehad resisted any commands; (5) the significance of the officer's failure to identify himself as a police officer or warn Nehad of the impending use of force; and (6) the availability of less intrusive means of subduing Nehad.

         The panel further held that disputed factual questions also precluded a grant of summary judgment on qualified immunity grounds, as it was well-established at the time of the shooting that the use of deadly force under the circumstances in this case, viewed in the light most favorable to plaintiffs, was objectively unreasonable.

         The panel held that plaintiffs presented sufficient evidence of police department customs, practices, and supervisory conduct to support a finding of entity and supervisory liability. Furthermore, the district court never afforded plaintiffs an opportunity to be heard before granting summary judgment on the negligence and wrongful death claims sua sponte. The panel therefore reversed the grant of summary judgment in favor of defendants on plaintiffs' Fourth Amendment and state law claims.

         The panel affirmed the grant of summary judgment in favor of defendants on plaintiffs' claim for violation of their Fourteenth Amendment interest in the companionship of their child. The panel held that the police officer's use of force, even if unreasonable, did not evidence a subjective purpose to harm.

          OPINION

          PREGERSON, District Judge.

         On April 30, 2015, Officer Neal Browder of the San Diego Police Department responded to a 911 call about a man making threats with a knife. Browder arrived at the scene, where he encountered Fridoon Nehad walking at a steady pace in Browder's direction. The subsequent series of events, which is in dispute, culminated in Browder exiting his vehicle and, less than five seconds later, fatally shooting Nehad.

         Appellants brought Fourth Amendment, Fourteenth Amendment, and state law claims against Browder, San Diego Chief of Police Shelley Zimmerman, and the City of San Diego. The district court granted summary judgment to Appellees on all claims.

         We have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court's grant of summary judgment de novo, we affirm with respect to Appellants' Fourteenth Amendment claim, reverse with respect to all other claims, and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         Shortly after midnight on April 30, 2015, Andrew Yoon encountered Fridoon Nehad outside the bookstore where Yoon worked. Nehad showed Yoon an unsheathed knife and said that he wanted to hurt people. Nehad was incoherent and "didn't seem like he knew what was going on[, ]" so Yoon returned to work inside the store. A few minutes later, Nehad entered the store without a knife in hand, again said he wanted to harm people, then left the store via a side door into an adjoining alley. Yoon called 911 and told the emergency dispatcher that Nehad had threatened him with a knife.

         Around 12:06 a.m., the police dispatcher put out a "Priority 1" call for a "417 (Threatening w[ith] weapon)," and indicated that a male in a back lot was threatening people with a knife.[1] San Diego Police Department Officer Neal Browder volunteered to respond to the call and drove to the scene in his police cruiser.

         Surveillance camera footage shows that Nehad was walking down the alley behind the bookstore toward the street before Browder arrived. Browder turned his car from the street into the alley and turned on his car's high headlight beams. Browder did not activate his car's siren or police lights. Browder saw two people in a parking lot adjoining the alley and, soon after turning into the alley from the street, saw Nehad in the alley. Browder confirmed with dispatch that Nehad matched the description of the person brandishing a knife.

         Once in the alley, Browder brought his vehicle to a halt and opened the driver's side door. Nehad continued to walk down the alley toward Browder and the street. Browder's vehicle advanced a short distance with the driver's door open before again coming to a stop. Nehad continued to walk toward Browder at a steady pace. Browder did not hear Nehad say anything, and did not see Nehad change his pace or make any sudden movements. Approximately twenty-eight seconds after pulling into the alley and eighteen seconds after opening his car door, Browder exited his vehicle. Browder did not activate his body camera.

         Eyewitness accounts of what happened next differ. One witness, Andre Nelson, testified that Nehad was stumbling forward at a "drunken pace" in a nonagressive manner, "like he wasn't all there," while "fiddling with something in his midsection." Nelson could not recall Browder audibly identifying himself as a police officer, giving any type of warning, or saying anything at all. Nelson did recall Browder extending his left hand in a "stop" motion. No such motion is clearly visible on the surveillance video. Another witness, Albert Gallindo, testified that he heard Browder say, "Stop, drop it" two or three times.[2] Yoon, who was still on the phone with the emergency dispatcher when Browder arrived, recalled hearing Browder say "Stop, drop it" one time, no more than a "couple seconds" after Browder got out of the police car. Browder did not recall identifying himself or saying anything to Nehad. Video surveillance shows Nehad slowed down a few moments after Browder exited his vehicle, although it is unclear whether Browder perceived or could have perceived Nehad's change of pace.

         Less than five seconds after exiting his vehicle, Browder fired a single shot at Nehad, fatally striking him in the chest. Nehad was approximately seventeen feet away at the time Browder shot him.

         A few hours later, after police investigators arrived at the scene, they asked Browder whether he saw any weapons and where in the alley they might be. Browder told the investigators that he had not seen any weapons. Browder's attorney would not allow investigators to ask Browder any more questions that night. The investigators did not find any weapons in the alley, and determined that Nehad had been carrying a metallic blue pen when Browder shot him.[3]

         On May 5, five days after the shooting, Browder and his attorney met with homicide investigators at a police station. Police officials provided Browder and his attorney with surveillance video of the shooting, which Browder and his attorney reviewed in a police lieutenant's office for approximately twenty minutes before an interview commenced. During the interview, Browder stated that he first saw Nehad when Nehad was twenty-five to thirty feet from Browder's car and that Nehad was "aggressing" the car and "walking at a fast pace . . . right towards [the] car." Browder also stated, for the first time, that he had thought Nehad was carrying a knife, and that he had fired on Nehad because he thought Nehad was going to stab him.

         Appellants, Nehad's parents and estate, filed suit against Browder, the City of San Diego, and San Diego Chief of Police Shelley Zimmerman (collectively, "Appellees"). In the operative Second Amended Complaint ("SAC"), Appellants allege 42 U.S.C. § 1983 claims for Fourth and Fourteenth Amendment violations and Monell and supervisory liability, two civil rights claims under state statutes, and common law claims for assault and battery, negligence, and wrongful death. Appellees filed a motion for summary judgment on seven of the nine claims, excluding the SAC's common law claims for negligence and wrongful death.

         The district court granted Appellees' motion. The court granted summary judgment on Appellants' Fourth Amendment claim because, according to the district court, Browder's use of force was objectively reasonable. The court granted summary judgment on Nehad's parents' Fourteenth Amendment claim because there was no evidence that Browder acted with a purpose to harm unrelated to legitimate law enforcement objectives. The court further concluded that Browder was entitled to qualified immunity because there was no clear precedent establishing that Browder's use of deadly force would be considered excessive. The court also, in light of its determination that no constitutional violation had occurred, dismissed the Monell and supervisory liability claims against all Appellees. Lastly, the court concluded that, because Browder's use of force was objectively reasonable, Appellees were entitled to summary judgment on "all" state law claims.

         Appellants now appeal the district court's grant of summary judgment.

         STANDARD OF REVIEW

         We review de novo a grant of summary judgment to determine whether "a rational trier of fact might resolve the issue in favor of the nonmoving party." Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). In so doing, we view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor. Id. We also review de novo a district court's grant of summary judgment on qualified immunity grounds. Id.

         ANALYSIS

         A. Whether a Jury Could Conclude that Browder's Use of ...


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