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Estate of Christopher Villarreal v. Cooper

United States District Court, Ninth Circuit

March 6, 2013

THE ESTATE OF CHRISTOPHER VILLARREAL, by and through VICTOR VILLARREAL, in his capacity as Personal Representative of the Estate, et al., Plaintiffs,
LEE COOPER, in his capacity as Police Officer for the City of Kennewick Police Department, and as an individual, et al., Defendants.



Before the Court is Defendants' motion for summary judgment, ECF No. 26. Oral argument was held on January 16, 2013, in Richland, Washington. The Court has reviewed the motion, the memoranda in support and opposition, the parties' statements of facts, the declarations, the affidavits, all other relevant filings, and is fully informed.


This case arises out of an officer-involved shooting in Kennewick, Washington, in which Christopher Villarreal lost his life. Mr. Villarreal was the driver of a black Lexus that was the subject of multiple 911 calls. The callers described the Lexus as driving erratically and swerving all over the road. Officer Lee Cooper and Detective Brian Pochert responded to the calls. Officer Cooper was driving a police motorcycle while Detective Pochert was driving an unmarked sedan. Officer Cooper first encountered Mr. Villarreal along West Kennewick Avenue and has described Mr. Villarreal as swerving at him in an attempt to hit him. Officer Cooper was able to turn into an empty parking stall along West Kennewick Avenue to avoid being hit.

Officer Cooper performed a U-turn and drove up behind Mr. Villarreal as Mr. Villarreal was stopped at the intersection of West Kennewick Avenue and South Washington Street. Detective Pochert pulled up alongside Officer Cooper. The officers attempted to give commands to Mr. Villarreal who did not initially respond. Eventually, Mr. Villarreal reached his arm out of the driver side window and pointed south over the top of his vehicle toward a parking lot. Mr. Villarreal then proceeded slowly to turn right onto South Washington Street and immediately turned right into the parking lot for the Kennewick Irrigation District ("KID"). The parking lot is horseshoe shaped. Mr. Villarreal proceeded into the portion of the horseshoe running north and south. Officer Cooper followed Mr. Villarreal into the parking lot and stopped behind Mr. Villarreal's vehicle at a slight angle. At some point, Detective Pochert entered the parking lot and stopped in the northernmost lane at a more perpendicular angle to Mr. Villarreal and to the left rear of Officer Cooper's motorcycle.

The parties dispute the exact order of the following events, but there is no dispute as to their occurrence. Officer Cooper fired nine shots into Mr. Villarreal's car, killing him. Mr. Villarreal's car at some point moved backwards and struck Officer Cooper's motorcycle. Mr. Villarreal's car was placed into reverse, either for a split second while Mr. Villarreal put the car into park, or until Detective Pochert was able to reach into the car and place it into park. The parties also dispute the distance between Mr. Villarreal's Lexus and Officer Cooper's motorcycle before the Lexus began to move backwards.

Plaintiffs filed this action alleging various causes of action, including an action pursuant to 42 U.S.C. § 1983 for use of excessive force in violation of the Fourth Amendment and an action for wrongful death. Defendants now have moved for summary judgment on multiple grounds, including qualified immunity.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A key purpose of summary judgment "is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is "not a disfavored procedural shortcut, " but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Celotex, 477 U.S. at 327.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The moving party must demonstrate to the Court that there is an absence of evidence to support the non-moving party's case. See Celotex Corp., 477 U.S. at 325. The burden then shifts to the non-moving party to "set out specific facts showing a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).

A genuine issue of material fact exists if sufficient evidence supports the claimed factual dispute, requiring "a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). At summary judgment, the court draws all reasonable inferences in favor of the nonmoving party. Dzung Chu v. Oracle Corp. ( In re Oracle Corp. Secs. Litig. ), 627 F.3d 376, 387 (9th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The evidence presented by both the moving and non-moving parties must be admissible. Fed.R.Civ.P. 56(e). The court will not presume missing facts, and non-specific facts in affidavits are not sufficient to support or undermine a claim. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).


Defendants have moved for summary judgment on all of Plaintiffs' claims. In their response, Plaintiffs admit that their claims for false arrest, failure to summon aid, and violation of due process are not well founded, and they have withdrawn those claims. ECF No. 64 at 4-5, 16-17. The main claim advanced by Plaintiffs is that Defendants violated Mr. Villarreal's Fourth Amendment rights when Officer Cooper shot and killed Mr. Villarreal. Defendants have moved for summary judgment on the basis that Plaintiffs do not have the evidence to establish such a claim and that Officer Cooper is entitled to qualified immunity.

As the other issues raised in Defendants' motion for summary judgment are subordinate to the Fourth Amendment and qualified immunity issues, the Court will first address the Fourth Amendment and qualified immunity defense and then address the issues of loss of parent/child consortium, municipal liability, wrongful death, and punitive damages as needed.

Evidentiary Objections

In their statements of facts, the parties have objected to, or moved to strike, various pieces of evidence filed in support of, or opposition to, this motion. ECF Nos. 65 at 2, 78 at 2-11. The Court has reviewed the record and the objections and has determined that the exclusion or inclusion of the challenged evidence would have no impact on the Court's analysis. Accordingly, the Court declines to rule on the admissibility of the challenged information at this time and will not consider the challenged material in addressing whether any issues of fact remain or whether the movant is entitled to judgment as a matter of law.

Fourth Amendment and Qualified Immunity

The doctrine of qualified immunity protects government officials, including police officers, from liability when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is "an immunity from suit rather than a mere defense to liability" and is "effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, the court must resolve questions of qualified immunity "at the earliest possible stage in the litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).

A police officer is entitled to qualified immunity in a § 1983 action unless (1) the facts, when taken in the light most favorable to the plaintiff, show that the officer's conduct violated a constitutional right; and (2) the right was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

Whether a Constitutional Violation Occurred

The use of deadly force is a "seizure" subject to Fourth Amendment inquiry. Tennessee v. Garner, 471 U.S. 1, 7 (1985). The Supreme Court has established that an officer's use of force, including deadly force, violates a Fourth Amendment right if it is excessive under objective standards of reasonableness. Scott v. Harris, 550 U.S. 372, 382-83 (2007); Acosta v. Hill, 504 F.3d 1323, 1324 (9th Cir. 2007).

Plaintiffs argue that a deadly force analysis is distinct from an excessive force analysis and that Defendants' failure to specifically address deadly force requires that this Court deny Defendants' motion for summary judgment. However, Plaintiffs are mistaken. The Ninth Circuit has stated explicitly that "there is no special Fourth Amendment standard for unconstitutional deadly force." Acosta v. Hill, 504 F.3d 1323, 1234 (9th Cir. 2007) (citing Scott v. Harris, 550 U.S. 372 (2007)).

When determining whether a particular use of force is "reasonable, " courts must carefully balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the "countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Garner, 471 U.S. at 8). The Ninth Circuit applies a three step process to determine reasonableness in use of force cases. Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011). First, the court must "assess the severity of the intrusion on the individual's Fourth Amendment rights by evaluating the type and amount of force inflicted.'" Id. (quoting Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir. 2010)). Even ...

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