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Ikeda v. City and County of Honolulu

United States District Court, D. Hawaii

September 25, 2019

MURIEL IKEDA, Plaintiff,
v.
CITY & COUNTY OF HONOLULU, et al., Defendants.

          ORDER (1) GRANTING AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS; AND (2) DISMISSING COMPLAINT IN PART WITH PARTIAL LEAVE TO AMEND

          Derrick K. Watson, United States District Judge

         Plaintiff Muriel Ikeda, on behalf of her deceased son, Cameron Johnson, brings this civil rights action against the City & County of Honolulu (the “City”) and Honolulu Police Department Officer Scott Valdez. On January 13, 2017, Johnson was at Malaekahana Beach Park in the driver’s seat of a parked vehicle that was suspected of being stolen when he was shot multiple times by Officer Valdez. Ikeda asserts eleven claims, including use-of-excessive force in violation of the Fourth Amendment to the United States Constitution.

         Two motions to dismiss are now before the Court filed by the City and by Officer Valdez, respectively. Dkt. Nos. 17, 21. Because the Court concludes that Officer Valdez is not entitled to either qualified immunity or a state law qualified privilege at this early stage in the proceedings, Officer Valdez’s motion is DENIED with respect to Ikeda’s Fourth Amendment claim. The Court likewise DENIES Defendants’ motions directed towards Ikeda’s tort claims to the extent based on the absence of or breach of a duty. But because Ikeda has failed to allege sufficient facts to support the inference that a policy, practice, or custom of the City was the moving force behind the death of her son, the City’s motion is GRANTED, albeit with leave to amend, with respect to Ikeda’s Monell claim. The balance of Ikeda’s eleven claims is addressed below.

         FACTUAL & PROCEDURAL BACKGROUND

         Late in the afternoon on January 13, 2017, Officer Scott Valdez of the Honolulu Police Department (“HPD”) responded to a 911 call about a stolen 1997 Toyota Tacoma located at Malaekahana campgrounds in Laie. Dkt. No. 14, ¶¶ 7–9. When Officer Valdez arrived at Malaekahana, Cameron Johnson was in the parking lot, sitting at the wheel of a parked vehicle that matched the 911 caller’s description of the stolen pickup truck. Dkt. No. 14, ¶¶ 8–10.

         Officer Valdez approached the pickup truck, which was parked at a slight incline, and engaged in a brief conversation with Johnson at the driver’s side window. Id. at ¶¶ 10, 12. Johnson was the only occupant, id. at ¶ 10, and the vehicle was not running. Id. at ¶ 11. Officer Valdez ordered Johnson to show his hands and Johnson complied. Id. at ¶ 14. What happened next is disputed by the parties.

         According to Officer Valdez’s report, Johnson started the truck, [1] put it in gear, and ignored repeated commands to turn off the vehicle. Id. at ¶¶ 15, 19–20. Officer Valdez related that Johnson placed the vehicle in reverse, and in the process, struck Officer Valdez’s left arm with the driver’s side mirror. Id. at ¶ 20.

         With that, Officer Valdez drew his firearm-and while walking alongside the vehicle as it slowly rolled backward-fired five shots at Johnson. Id. at ¶¶ 21–22. The rounds pierced Johnson’s left shoulder, left breast, mid-back, and two places in his left arm. Id. at ¶ 22. After Johnson’s vehicle came to rest against another, witnesses observed Officer Valdez reach across Johnson’s body, remove a backpack from the cab of the truck, and empty the backpack’s contents on the ground. Id. at ¶ 25. Johnson was later pronounced dead at the hospital. Id. at ¶ 27.

         On January 10, 2019, Ikeda, Johnson’s biological mother and representative of his estate, initiated this lawsuit against the City and Officer Valdez (collectively “Defendants”). Dkt. No. 1. After Defendants moved to dismiss the complaint (Dkt. No. 8), they agreed to allow Ikeda to amend (Dkt. No. 12), resulting in the first amended complaint (“FAC”)(Dkt. No. 14). Defendants have moved separately under Rule 12(b)(6), seeking the dismissal of the FAC. Dkt. Nos. 17, 21.

         STANDARD OF REVIEW

         The Federal Rules of Civil Procedure require that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this requirement, a complaint must contain enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         A complaint may be deficient for failure “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Even though a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citations omitted).

         On a Rule 12(b)(6) motion to dismiss, a court “must accept as true all of the factual allegations contained in the complaint, ” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and draw “any reasonable inferences” in favor of the plaintiff. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1122 (9th Cir. 2008). To that end, a court must judge the sufficiency of a complaint under a two-pronged approach: (1) disregard all “legal conclusions” and “conclusory statements”; and (2) determine whether the remaining “well-pleaded factual allegations, ” accepted as true, “plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678–81 (2009).

         Accordingly, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. That is, the plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations omitted). If, from the well-pleaded facts, the court cannot “infer more than the mere possibility of misconduct, the complaint has alleged-but has not ‘show[n]’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

         DISCUSSION

         Ikeda asserts eleven counts in the FAC.[2] As a preliminary matter, Ikeda now concedes that, under the U.S. Constitution, she cannot state a Fifth Amendment claim (Dkt. No. 20 at 13) or a Fourteenth Amendment claim for deprivation of substantive due process (Dkt. No. 25 at 6). Therefore, these claims are DISMISSED WITH PREJUDICE.

         Defendants’ respective motions also urge the Court to dismiss Ikeda’s other claims. See Dkt. No. 21-1; Dkt. No. 17-1. For the reasons that follow, the remaining claims against Officer Valdez stand, while Counts III and VIII against the City are DISMISSED, albeit with leave to amend.[3]

         I. Officer Valdez’s Motion to Dismiss

         A. Section 1983 – Individual Liability (Count I)

         In Count I, Ikeda asserts a claim under 42 U.S.C. Section 1983, alleging that Officer Valdez used excessive force when he shot Johnson. Dkt. No. 14, ¶¶ 32–33. In defense, Officer Valdez maintains that he is insulated by qualified immunity. Dkt. No. 17-1 at 9–12. At least at this stage, the Court disagrees.

         Under federal law, qualified immunity will shield a government official from liability for civil damages “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The sequence in which these prongs are addressed is discretionary. Pearson v. Callahan, 555 U.S. 223, 236 (2009). In conducting the analysis, the Court “is limited to the facts that were knowable to the defendant officers at the time they engaged in the conduct in question. Facts an officer learns after the incident ends-whether those facts would support granting immunity or denying it-are not relevant.” Hernandez v. Mesa, 137 S.Ct. 2003, 2007 (2017) (per curiam) (citation and internal quotation marks omitted).

         As detailed below, Officer Valdez is not entitled to qualified immunity because Ikeda has pled facts that-when “[t]aken in the light most favorable” to Ikeda, Saucier v. Katz, 533 U.S. 194, 201 (2001)-show that Officer Valdez violated Johnson’s Fourth Amendment right to be free from excessive force, and at the time of the incident, that right was clearly established, such that “any reasonable official in [Officer Valdez]’s shoes would have understood that he was violating it.” Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (citation and internal quotation marks omitted).

         1. Use of Excessive Force in Violation of the Fourth Amendment

          “When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures.” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (emphasis added). The test for whether an officer used excessive force is “objective reasonableness.” Graham v. Connor, 490 U.S. 386, 395, 399 (1989). “Reasonableness” is evaluated based on “the totality of the circumstances, ” Tennessee v. Garner, 471 U.S. 1, 8–9 (1985), viewed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. A non-exhaustive list of factors relevant to this inquiry include: “(1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape.” Maxwell v. Cty. of San Diego, 697 F.3d 941, 951 (9th Cir. 2012) (citing Graham, 490 U.S. at 396).

         Deadly force is reasonable, however, only 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.” Garner, 471 U.S. at 3 (emphasis added); Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (en banc). Although “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, ” Graham, 490 U.S. at 396–97, “an officer must give a warning before using deadly force whenever practicable.” Gonzalez, 747 F.3d at 794 (citation and internal quotations omitted); Garner, 471 U.S. at 11–12. Hence, the availability of “alternative methods of capturing or subduing a suspect” is relevant to whether the use of deadly force was reasonable. Gonzalez, 747 F.3d at 794.

         Officer Valdez contends it was objectively reasonable under the circumstances for him to employ deadly force by firing his weapon five times at Johnson because Johnson: “(1) was in a stolen vehicle which made him a felony suspect, (2) refused to obey officer commands to show his hands and turn off the vehicle, (3) was operating a moving vehicle, (4) struck a uniformed police officer with the stolen vehicle, and (5) posed an immediate threat to the safety of the officer and other bystanders and members of the public.” Dkt. No. 21-1 at 9. Viewing the facts in the light most favorable to Ikeda, however, the Court concludes that Officer Valdez’s use of deadly force was not objectively reasonable.

         As a threshold matter, it bears emphasis that Officer Valdez has taken certain liberties in construing the facts alleged in the FAC. That is a luxury this Court does not have. See Twombly, 550 U.S. at 555. This is especially true given that “[d]eadly force cases pose a particularly difficult problem . . . because the officer defendant is often the only surviving eyewitness.” Gonzalez, 747 F.3d at 794 (citation and internal quotation marks omitted). “Because the person most likely to rebut the officers’ version of events-the one killed-can’t testify, ” the Ninth Circuit has held that courts should “carefully examine all the evidence” produced during discovery and grant summary judgment “sparingly” in excessive force cases. S.B. v. Cty. Of San Diego, 864 F.3d 1010, 1014 (9th Cir. 2017) (citation and internal quotation marks omitted). That challenge is compounded here by the fact that discovery has yet to occur. This matter is only before the Court on a motion to dismiss the FAC and therefore, at the very least, there remain triable issues of fact.

         As stated, the controlling question is whether Officer Valdez had “probable cause to believe that [Johnson] pose[d] a significant threat of death or serious physical injury to [Officer Valdez] or others.” Garner, 471 U.S. at 3. Probable cause existed if “at the moment [Officer Valdez fired his weapon] . . . the facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing” that Johnson posed a threat of death or serious injury to the officer or others. See Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)); cf. Garner, 471 U.S. at 3.

         Here, assuming the 911 call provided sufficient, trustworthy information that was then independently verified by Officer Valdez, see Draper v. United States, 358 U.S. 307, 313 (1959), Officer Valdez approached Johnson knowing only that Johnson was in a vehicle that “matched the description” of a pickup reported stolen in the area. Dkt. No. 14, ¶ 9; id. at ¶¶ 7–14. Ikeda disputes the events that followed as recorded in Officer Valdez’s report. See Id . at ¶¶ 15–16, 19–21. Therefore, at best, Officer Valdez had probable cause to arrest Johnson for the felony offense of vehicle theft. See Hawaii Rev. Stat. §§ 708-810, -836.

         But not all felony offenses are treated equally when it comes to the use of deadly force, as Officer Valdez appears to assert. See Garner, 471 U.S. at 21 (“[T]he fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force.”); Dkt. No. 26 at 4–5. For good reason, the law does not grant law enforcement carte blanche authority to use lethal weapons against all suspected felons, even if they are fleeing. Garner, 471 U.S. at 11, 19. Only if a suspect “has committed a crime involving the infliction or threatened infliction of serious physical harm” is an officer permitted to use deadly force. Id. at 11. So while stealing laptops from the trunk of a car may be a serious crime, rising to the level of a felony, it is not one that presents a “threat of death or serious injury” so as to justify the use of deadly force. And Officer Valdez’s inchoate fear that Johnson otherwise “posed a risk of harm, ” see (Dkt. No. 21-1 at 11), is not grounded in the FAC. Rather, when viewing the few undisputed facts in this case from the perspective of a reasonable officer on the scene, there was no probable cause to believe that an immediate threat to Officer Valdez or others existed. As such, Officer Valdez was prohibited from using deadly force.

         Officer Valdez resists this conclusion by contending that the use of deadly force was necessary to “prevent [a suspected felon]’s flight.” See Dkt. No. 21-1 at 11; Dkt. No. 26 at 4. But Garner is explicitly clear: “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” 471 U.S. at 11. As the Supreme Court explained:

It is not better that all felony suspects die than that they escape. 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a ...

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