Long v. Honolulu (police sniper)

Holding: A police sniper’s conduct was objectively reasonable, and neither the officer nor the city was liable for killing the deceased:

(1) The SWAT sniper heard the deceased threaten to shoot the police, observed him carrying a rifle, knew that he had previously shot at a car full of people, wounding two of them, and fellow officers radioed that he was yelling threats and shooting at them. The officer had probable cause to believe that the deceased posed an immediate danger.

(2) A decision to wait for a light armored vehicle for safety reasons does not rise to the level of conscious indifference, even if the delay may have contributed to the death of the plaintiff's son. Long v. C&C of Honolulu (9^th Cir. 2007) affirming 378 F.Supp.2d 1241 (D. Haw. 2005).

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Cynthia Marie Long,

individually, and as Representative of the

Estate of Dustan Dominic Long,

Plaintiff-Appellant,

City and County of Honolulu, et al.,

Defendants-Appellees.

No. 05-16567

2007 U.S. App. Lexis 29530

Argued and Submitted, Honolulu, Hawaii

November 5, 2007

December 21, 2007, Filed

Appeal from the U.S. District Court for the District of Hawaii, No. CV-02-00271, 378 F.Supp.2d 1241 (D. Haw., 2005); affirmed. The District Court’s opinion follows the Ninth Circuit’s decision.

Diarmuid F. O’Scannlain, A. Wallace Tashima, and Milan D. Smith, Jr., Circuit Judges.

Milan D. Smith, Jr., Circuit Judge:

Cynthia Long (Ms. Long), mother of decedent Dustan Long (Long), appeals the grant of a motion for summary judgment in favor of Defendants, City and County of Honolulu, and police officer, Patrick Sterling. Ms. Long primarily contends that Sterling used deadly force against her son in violation of his Fourth Amendment rights and that the district court erred in granting Sterling qualified immunity. Because we conclude that Sterling acted in an objectively reasonable manner under the circumstances, we affirm the district court’s judgment. See Long v. City & County of Honolulu, 378 F. Supp. 2d 1241 (D. Haw. 2005).

I. Factual Background

On the night of June 3, 2001, Long invited people to a party at his home. At approximately 2 a.m., an uninvited group arrived, harassed another guest, and instigated a fight. In response, Long fired shots from a .22 caliber rifle--once to demand that all of his guests leave and again shortly thereafter in an attempt to stop several uninvited persons from beating his friend, Chauncery Jarvis. As the uninvited group got into a car to leave, Long fired several more shots in their direction, hitting two of the passengers, who then called the police.

As the party ended, Long and his friend, Kurt Umeno, carried Jarvis to the back of the house by the Jacuzzi, where he lay until the police found and awakened him several hours later.

The police arrived soon thereafter and were later replaced by a SWAT team. The SWAT team manned the perimeter of the house. Long and Umeno spoke several times over the phone. Umeno claims that Long was scared that the police would shoot him and that he wanted to surrender. In any event, the police told Long to surrender, but he did not, and initially barricaded himself in the house.

Long was agitated throughout the night and held a .22 caliber rifle as he walked around the property. He shouted various threats at the police. For example, at 4:07 a.m., he told the police that they had ten seconds to get the “fuck out of his yard” and started a countdown. The evidence suggests that he then fired a shot toward the front of the house. He also threatened to shoot out the lights the police were shining on the property.

Officers Sterling and Dalbec were positioned as snipers on the roof of a house across the street, some 220 feet away from where Long was located. Immediately before Sterling fatally shot Long, Officers Marini and Cannella were positioned to the side of the house, behind a large bamboo hedge. Long was walking back and forth between a carport and a garage just on the other side of the hedge where officers Marini and Cannella were located and was aware of the officers’ presence.

According to the CAD report, at 4:47 a.m., officers Marini and Cannella reported that they jumped into a ditch for cover because Long was shouting threats. n1 Officer Marini claims that he heard Long yell, “I told you fuckers get the fuck back. Have some of this.” At 4:51 a.m. the officers said over the radio, “Shots fired. He just shoot [sic] at us.”

Upon hearing this radio call, Sterling shot Long. According to Sterling, he saw Long raise his rifle to about chest level and fire one shot immediately prior to the radio call. The police, however, were not able to recover a shell casing from this alleged shot, so we assume no shot was actually fired. Sterling claims that he then lost sight of Long. Ms. Long’s expert contends that Sterling could not have lost sight of Long.

The police waited for a light armored vehicle to arrive before entering the property. The CAD report indicates that the police attempted to contact Long by calling the house phone, were unsure where Long was, and did not know whether it was safe to enter the premises. After the police finally entered the property, Long was found dead at 6:23 a.m., with a rifle located to the right of his body.

II. Procedural Background

Ms. Long, in her individual capacity and as representative of Long’s estate, commenced this action against Sterling and the City and County of Honolulu. Ms. Long sought damages under 42 U.S.C. § 1983 for use of excessive force against Long, the city’s failure to render medical aid, and the municipality’s failure to train officers on the use of deadly force. She also brought related state law claims.

Defendants moved for summary judgment, arguing that Sterling was entitled to qualified immunity and that no evidence existed to support municipal liability. The motion was denied without prejudice to allow for more discovery. Defendants later renewed their motion. The district court then granted the Defendants’ motion, holding that there was no constitutional violation and no basis for municipal liability, and entered final judgment. Ms. Long timely appeals.

III. Standard of Review and Jurisdiction

We review the grant of a motion for summary judgment de novo. Blankenhorn v. City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). The district court’s decision on qualified immunity is also reviewed de novo. Id. Under this standard, the facts are viewed in the light most favorable to the nonmoving party, and all reasonable inferences are drawn in that party’s favor. Brosseau v. Haugen, 543 U.S. 194, 195 n.2, 197, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004); Blankenhorn, 485 F.3d at 470. In a Fourth Amendment excessive force case, “defendants can still win on summary judgment if the district court concludes, after resolving all factual disputes in favor of the plaintiff, that the officer’s use of force was objectively reasonable under the circumstances.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994).

We have jurisdiction under 28 U.S.C. § 1291.

IV. Discussion

A. Qualified Immunity

The defense of qualified immunity “shields government officials performing discretionary functions from liability for civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’“ Scott, 39 F.3d at 914 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)).

Where an officer raises this defense, we undertake a two part analysis. First, we ask, “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). If no violation occurred on the alleged facts, this ends the inquiry. Id. “On the other hand, if a violation could be made out on a favorable view of the parties’ submissions,” we then look to see whether the violated right was clearly established. Id.

Claims of excessive and deadly force are analyzed under the Fourth Amendment’s reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). We must determine whether this shooting was objectively reasonable in light of the facts and circumstances confronting the officers “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396-97. The use of deadly force is “reasonable 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.” Scott, 39 F.3d at 914 (quoting Garner, 471 U.S. at 3). We 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. (quoting Graham, 490 U.S. at 396-97). Factors to consider include “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.” Graham, 490 U.S. at 396.

We hold that Officer Sterling’s conduct meets the objective reasonableness standard. Prior to taking the fatal shot, Sterling had observed Long’s agitated behavior, heard him threaten to shoot the police, observed him carrying a .22 caliber rifle, and knew that he had previously shot at a car full of people and wounded two people therein earlier that night. Under these circumstances, when fellow officers radioed that Long was yelling threats at them and then radioed that Long was shooting at them, Sterling had probable cause to believe that Long posed an immediate danger to these officers. In the exigent circumstances of the night, Sterling acted in an objectively reasonable manner.

We are mindful that we must be wary of self-serving accounts by police officers when the only non-police eyewitness is dead. See Scott, 39 F.3d at 915. We note, however, that here, unlike the situation in Scott, we have the benefit of multiple eye witnesses and a CAD report that fairly accurately recorded the SWAT team’s activities on the night of Long’s death.

Ms. Long’s claims of factual error in the police accounts do not change our analysis. From the perspective of a reasonable officer in Sterling’s position, it is immaterial whether Marini and Cannella jumped into the ditch at 4:47 or 4:52 a.m. Though a closer question, whether Long actually fired his rifle at these officers is also immaterial. It is enough that Sterling heard the radio transmission and observed Long point the rifle in the officers’ direction.

Accordingly, we hold that Officer Sterling did not violate Long’s Fourth Amendment rights and that he is entitled to qualified immunity.

B. Municipal Liability

Ms. Long contends that the city is also liable because it failed to properly train the officers on the use of deadly force, ratified Sterling’s unconstitutional conduct, failed to properly supervise and control its officers, and failed to render medical aid to Long.

If no constitutional violation occurred, the municipality cannot be held liable and whether “the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (emphasis omitted).

We also reject the claim that the police officers were inadequately trained on the use of deadly force. “Only where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). If there was no constitutional violation of Long’s rights, there is “no basis for finding the officers inadequately trained.” Scott, 39 F.3d at 916.

Similarly, the city cannot be held liable for the failure to render medical aid without evidence that the failure to render aid was pursuant to a city policy or custom. City of Canton, 489 U.S. at 388-89 & n.8. Ms. Long claims that the city is liable “because of its duty to render reasonable care to the suspect it shoots.” The municipality, however, cannot be liable under a respondeat superior theory. Monell v. Dep’t of Soc. Servs, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

C. State Law Claims

Ms. Long contends that the district court abused its discretion by retaining jurisdiction over pendent state claims after the original federal claims had been dismissed. The retention of jurisdiction was proper. “[A] federal district court with power to hear state law claims has discretion to keep, or decline to keep, them under the conditions set out in [28 U.S.C.] § 1367(c) . . . .” n2 Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc).

On appeal, Ms. Long’s state law claims are for the intentional infliction of emotional distress, gross negligence, and negligent training, supervision, and control. She also makes a request for punitive damages. n3 We hold that these state law claims are meritless and were properly dismissed. Accordingly, Ms. Long’s punitive damage claims also fail.

1) Intentional Infliction of Emotional Distress

In Hawaii, the elements of an action for intentional infliction of emotional distress are adopted from the Restatement (Second) of Torts § 46 (1965) and are: 1) that the conduct allegedly causing the harm was intentional or reckless, 2) that the conduct was outrageous, and 3) that the conduct caused 4) extreme emotional distress to another. Hac v. Univ. of Hawaii, 102 Haw. 92, 73 P.3d 46, 49 (Haw. 2003). The restatement defines outrageous as “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Nagata v. Quest Diagnostics, Inc., 303 F. Supp. 2d 1121, 1127 (D. Hawaii 2004) (quoting Restatement (Second) of Torts § 46, cmt. d). Sterling’s behavior could not be outrageous because he acted in an objectively reasonable manner. The district court properly dismissed this claim.

2) Gross Negligence

Gross negligence is the “entire want of care which would raise a presumption of conscious indifference to consequences.” Yoshizawa v. Hewitt, 52 F.2d 411, 413 (9th Cir. 1931) (construing Hawaii territorial law). Without further explanation, Ms. Long points to three things as evidence of gross negligence: 1) failure to render medical aid, 2) the estimated six shootings per year that occurred under the deadly force policy in effect at the time of Long’s shooting, and 3) the Chief’s ratification of Sterling’s conduct without inquiring further into some inconsistencies in the evidence.

The district court did not err in finding no evidence of gross negligence. The police force’s decision to wait for a light armored vehicle for safety reasons does not rise to the level of conscious indifference, even if the delay may have contributed to Long’s death. Moreover, there is no evidence in the record that the deadly force policy and the Chief’s investigation were inadequate and contributed to Long’s death.

3) Negligent Training, Supervision, and Control

Because there is no evidentiary basis to conclude that the city was grossly negligent in its training of its police officers, the claim of negligent training, supervision, and control necessarily fails.

The judgment of the district court is AFFIRMED.

Notes:

1. A CAD report is a stenographic record created by a radio dispatcher whose duty it is to type everything heard over the radio frequency, which also marks the time of the statements fairly accurately.

Contrary to the CAD report, Marini and Cannella testified that they jumped into the ditch as Long was shooting at them at 4:52 a.m., creating a discrepancy of four minutes between the CAD report and their testimony. This discrepancy is not material for the purposes of determining whether it was objectively reasonable for Officer Sterling to shoot Long.

2. 28 U.S.C. § 1367(c) states:

The district court may decline to exercise supplemental jurisdiction over a claim ... if --

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

3. Ms. Long also pleaded wrongful death and negligent infliction of emotional distress at the district court level. Since she did not argue these claims on appeal, we do not address them here. We also do not address the defense of qualified privilege available under Hawaii state law because Defendants failed to raise the issue. See Towse v. Hawaii, 64 Haw. 624, 647 P.2d 696, 702 (1982).

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

Cynthia Marie Long,

individually, and as Representative of the

Estate of Dustan Dominic Long,

Plaintiff-Appellant,

City and County of Honolulu, et al.,

Defendants-Appellees.

Civ. No. 02-00271 SPK/KSC

378 F.Supp.2d 1241

2005 U.S. Dist. Lexis 19539

July 11, 2005, Decided

Affirmed by Long v. City & County of Honolulu, 2007 U.S. App. Lexis 29530 (9th Cir. 2007).

Samuel P. King

United States District Judge.

[*1242]

ORDER GRANTING DEFENDANTS’

REVISED MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Defendants Officer Patrick A. Sterling and the City and County of Honolulu renew their motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, primarily asserting there are no material questions of fact as to (1) qualified immunity for Officer Sterling, and (2) “deliberate indifference” on the “Monell claim” for municipal liability against the City. Common law claims are also addressed, although disposition of the state law claims follows from the rulings on the federal claims.

On January 3, 2003, the Court denied without prejudice a similar motion brought by Defendants. Discovery was not complete then and Plaintiff requested time for additional discovery under Fed. R. Civ. P. 56(f). The Court denied the Defendants’ motion without prejudice to Defendants renewing it after completion of discovery. Meanwhile, Officer Sterling served a year in Iraq as a reservist soldier recalled to active duty and the case was stayed pursuant to 50 U.S.C. App § 521 from April 2003 until early-2004. n1 Discovery is now complete and Defendants have renewed their motion for summary judgment. The [*1243] motion was argued on June 23, 2005, with James Kawashima appearing for Defendants and Jack Schweigert appearing for Plaintiff.

DISCUSSION

Given the prior proceedings, the Court begins where it left off when the previous motion was denied. The Court will not repeat all the background here. Important facts are repeated where appropriate, but otherwise the January 3, 2003, order is incorporated by reference and the Court presumes familiarity with the issues as analyzed previously.

1. Qualified Immunity

In applying the test for allowable use of deadly force as set forth in Tennessee v. Garner, 471 U.S. 1, 11, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985) and Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), the primary issue of fact identified during the prior proceedings was whether Officer Sterling had probable cause to believe that Dustan Long posed a “threat of serious physical harm, either to [himself] or others,” to justify the use of deadly force when considering objectively the situation he confronted when he shot Long in June of 2001. n2 Much was made of whether Long actually fired a shot at other officers immediately before Officer Sterling shot Long. The January 2003 order indicated that:

. . . Long might indeed have presented a real and immediate threat to the safety of officers when Sterling shot him. Long had shot others earlier and he was armed. Nevertheless, the record is not clear as to exactly what occurred, especially as to whether Long had actually fired at the police. If Long had not fired at officers, perhaps, depending upon the circumstances, he did not pose an “immediate” threat. Although qualified immunity should be decided early in a proceeding, the record is sufficiently vague at present so as to allow Plaintiff[] the opportunity for further discovery. [January 2, 2003, Order at 8].

Reviewing the record construed in favor of Plaintiff as is required at a summary judgment stage of the proceedings, there is still a question of fact as to whether Long actually fired a shot at officers immediately before Sterling shot him. Much of the evidence indicates that Long did in fact fire at Officers Marini or Canella. But no corresponding bullet or casing from Long’s 22 rifle was found. n3 Several witnesses say they didn’t hear a shot fired at around 04:52 hours (other than the fatal shot by Sterling around 04:52 hours) or can’t recall hearing a shot preceding Sterling’s shot. On the other hand, several witnesses (Officers Sterling, Dalbec, Kaholokula, Vargas, Fuata, Marini and others) testified that Long fired just before Sterling fired, and that they heard the shot. This testimony is supported by the “CAD” printout of contemporaneous radio transmissions, [*1244] as verified by dispatcher Battease, which indicates shots fired at 04:51:33 (“shots fired., he just shoot at us”).

The dispute of fact, however, does not resolve matters for this motion. Rather, the question here for purposes of qualified immunity is whether that dispute is “material.” That is, even assuming Long did not shoot, the Court is still obligated to consider whether, from the other undisputed facts, Sterling is nonetheless entitled to qualified immunity. As set forth in the previous order, under the Supreme Court’s test for qualified immunity articulated in Saucier v. Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001), courts must first consider whether “taken in the light most favorable to the party asserting the injury, do the facts . . . show the officer’s conduct violated a constitutional right?” If the answer is no, there is qualified immunity. If the answer is yes, the court then asks whether the right was “clearly established.” Id. at 201-02.

Again, “[a] police officer may reasonably use deadly force where he ‘has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’“ Billington v. Smith, 292 F.3d 1177, 1184 (9th Cir. 2002) (quoting Garner, 471 U.S. at 11). The Court should consider “the totality of the facts and circumstances in the particular case including ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’“ Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir. 2005) (quoting Graham, 490 U.S. at 396).

The reasonableness inquiry is objective, without regard to the officer’s good or bad motivations or intentions. Id. The court judges reasonableness “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and allowing “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.

Even if Long did not fire immediately before Sterling fired, the following facts are uncontested or cannot reasonably be disputed:

1) Long had already shot twice at people (or at their car as it drove away). Although Plaintiff argues that Long did not actually know whether he hit anyone (he did of course hit two people who went to the hospital and called 911), it cannot reasonably be disputed that Long knew he had fired at them.

2) Long was barricaded in his residence, surrounded by police. He was certainly armed (he was seen several times walking outside with a rifle and one was found next to or under him after he was shot). He did not surrender, although there might be some question whether he wanted to or attempted to surrender. Despite Plaintiff’s argument to the contrary, it cannot reasonably be disputed that Long was in fact armed. Even assuming Kurt Umeno “hid” the rifle earlier -- after Long had fired at around 02:00 hours -- Long must have then “found” it because there is undisputed testimony from multiple witnesses that Long was seen carrying a rifle from before 04:07 (when he fired at something in the “front” or kitchen area of the house) and when he was shot at 04:52 hours.

3) Long was agitated. He told police to turn off the spotlight or lights shining on the house, or he would shoot. [Marini Affidavit at 3 (“Long went on to say he had firearms and would use them”); Yamada Affidavit at 2-3; Edayan Decl. at 2 [*1245] (“Dusten said he was going to shoot some cops”); Sterling Affidavit at 2-3]. Even Umeno says that Long told him “police were coming in the front window and he could see them in other places on his property.” [Umeno Decl. at P 16]. Umeno heard Long yell at police that they had 10 seconds “to get the ‘F’ out of his yard.” [Id.]. He heard Long “do a count-down, shouting to the officers to get off his property.” [Id.]. Umeno’s declaration is consistent with testimony of Marini that Long yelled at them “I told you f***ers to get the f**k back . . . Have some of this.” [Marini affidavit, P 23; CAD timeline about 04:47:41 (“He was clg [calling] threats .. we had to jump in the ditch”)]. Umeno’s declaration is also consistent with other testimony that Long threatened to shoot police (“bring it on, let’s see it”) if the spot lights were not turned off. [Sterling Affidavit at PP 14-16].

4) Officers Marini and Cannella were on the perimeter in a ditch. (There is some discrepancy as to when exactly they jumped into the ditch.) Sterling and Dalbec were positioned across the street as “counter snipers” viewing Long through scopes. Sterling was hearing the radio transmissions between police. [Sterling Affidavit at 2-3]. Before Officer Sterling fired at Long, Officer Marini radioed “he’s shooting at us.” [E.g., Marini Affidavit at 4; Yamada Affidavit at 3; Ben-Rajab Depo. at 52]. This is also confirmed by the CAD stenographic record of radio transmissions at 04:51:33 hours. Sterling heard this. [Sterling Affidavit at 4]. Sterling then shot at Long. (Sterling says it was immediately after or nearly simultaneously with the transmission.) The CAD stenographic record indicates at 04:52:18 “sniper shot taken.” Although dispatcher Battease indicates there might have been some delay with the inputting of the text, there is no dispute that Long was shot right about 04:52 hours.

Given these undisputed facts, the Court finds as a matter of law that Officer Sterling is entitled to qualified immunity. Considering all of the circumstances and viewing the disputed facts in favor of Plaintiff, the Court readily concludes that Officer Sterling had probable cause to believe that Long was an “immediate” threat of serious physical harm to other officers located on the perimeter next to Long. See, e.g., Blanford, 406 F.3d at 1116 (finding qualified immunity where deadly force was used to stop suspect appearing to threaten others with a sword); Billington, 292 F.3d at 1184-85 (finding qualified immunity where deadly force was used despite question of fact whether, at the moment of the shooting, the suspect and officer were grappling over a gun, because the factual dispute was immaterial). Long had fired before, he said he was going to fire, Marini transmitted that Long was shooting at them, and Sterling saw and heard this. It was objectively reasonable under these undisputed facts for Sterling to believe that a shot was needed.

This belief would be so even if, construing disputes in favor of Plaintiff, Long did not actually fire immediately before he was shot. From Sterling’s perspective (and, again, without the benefit of 20/20 hindsight as cautioned in Graham, 490 U.S. at 393), the amount of force was reasonable. Indeed, Sterling was entitled to have made a mistake -- even a tragic mistake -- in his perception. n4 See, [*1246] e.g., Saucier, 533 U.S. at 206 (“Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution”); Blanford, 406 F.3d at 1116 (affirming grant of qualified immunity where mistaken use of deadly force was nevertheless objectively reasonable); Billington, 292 F.3d at 1184 (“an officer might be reasonably mistaken as to the facts justifying his actions . . . so that an officer could use objectively excessive force without clearly violating the constitution”).

The Court has given much thought to Plaintiff’s argument that we must be especially careful in deadly force cases where the best witness (i.e., the victim) to contradict the officer is actually killed rather than merely injured. See Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (“Deadly force cases pose a particularly difficult problem under this regime because the officer defendant is often the only surviving eyewitness .... The judge must carefully examine all the evidence in the record, such as medical reports, contemporaneous statements by the officer and the available physical evidence, as well as any expert testimony proffered by the plaintiff, to determine whether the officer’s story is internally consistent and consistent with other known facts”). But, unlike the situation described in Scott, here there is much evidence and many other witnesses to determine whether an officer’s conduct was objectively reasonable. See Billington, 292 F.3d 1181-82 (distinguishing Scott because there were several other witnesses). In any event, the Court has carefully considered all the evidence in the record as Scott instructs and concludes that there was no constitutional violation.

2. Municipal Liability

The Court also grants Defendants’ motion as to claims against the City and County of Honolulu. If there is no constitutional violation, there can be no municipal liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986) (“If 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); Fairley v. Luman, 281 F.3d 913, 916 (9th Cir. 2002) (“Exoneration of [the officer] of the charge of excessive force precludes municipal liability for the alleged unconstitutional use of such force”).

In any event, to find municipal liability under Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) , for civil rights violations under 42 U.S.C. § 1983, Plaintiff must prove “that the defendants have customs or policies which amount to deliberate indifference to their constitutional rights and that these policies are the moving force behind the constitutional violations.” Oviatt v. Pearce, 954 F.2d 1470, 1474 (quoting City of Canton v. Harris, 489 U.S. 378, 389-91, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)) (internal quotation and editorial marks omitted).

That is, under City of Canton, plaintiffs must prove that the official policy was “deliberately indifferent” to their constitutional rights. “This occurs when the need for more or different action ‘is so obvious, and the inadequacy [of the current procedure] so likely to result in the violation of constitutional rights, that the policymakers ... can reasonably be said to have been deliberately indifferent to the need.” 489 U.S. at 390.

[*1247]

Plaintiff bases municipal liability primarily on a failure to train or discipline theory. The Court assumes as true for purposes of this motion that Officer Sterling had two prior excessive force complaints lodged against him in the late-1990’s that resulted in a letter or letters of reprimand. Those complaints were based upon alleged striking persons who were being arrested.

Those prior complaints or incidents do not establish “deliberate indifference” regarding a failure to train or discipline. The situations did not involve improper use of firearms. They did not involve the use of deadly force. They resulted in a form of discipline in a letter of reprimand (i.e., the police department did not condone the excessive use of force). They do not indicate “deliberate indifference” on the part of the Honolulu Police Department See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 824, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985) (indicating that municipal liability based upon alleged inadequate training could not be derived from a single incident of misconduct by a non-policy-making employee). To hold the City liable for retaining Sterling under this record would mean that the City would have to fire every officer who ever used any amount of unnecessary force.

As for a failure to train, the undisputed evidence is that the police department has an extensive training program that includes instruction in use of deadly force. [See, e.g., Affidavit of Tamashiro]. Plaintiff points out that the Honolulu Police Department’s written policy explaining “deadly force” changed (or at least the wording changed) from 2000 to 2002. Prior to the shooting of Long, the policy explained that “deadly force shall be used only when an officer reasonably believes that it is necessary.” [Doc. A00047, attached to Deposition of Donohue]. Sometime after the shooting, the policy was changed to read “deadly force may be used only when an officer reasonably believes that the use of force is necessary to defend his or her own life or that of another person in immediate danger of death or serious bodily injury.” [Exhibit to Donohue deposition].

The prior policy statement is not incorrect. n5 Perhaps it could have been more detailed to mirror the factors in Graham, as does the 2002 statement. n6 But even so, [*1248] it does not mean that the City failed to train in the use of deadly force such that the policy was “deliberately indifferent” to the rights of citizens. The evidence indicates that officers knew the proper standard. [E.g., compare Dalbec depo. at 19 (“If a person is a threat to someone else or myself to cause them serious [bodily] injury or death”) with the legal standard from Garner (“[a] police officer may reasonably use deadly force where he has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others”). Moreover, Plaintiff has failed to establish a question of fact as to the necessary causal-connection between any assumed deficiency and Plaintiff’s constitutional injury (if there were one). See City of Canton, 489 U.S. at 390-91 (requiring proof that the identified deficiency in training was the actual cause of the injury and commenting that “adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable”).

Next, there is insufficient evidence that, after the shooting, the City should be held liable for failing to aid Long, improperly delaying medical attention, or somehow allowing him to “bleed to death.” The objective (and subjective) evidence indicates clearly that police did not know the particulars of the threat after Long was shot. From the police’s perspective, Long could have been only injured and still armed and capable of “shooting some cops” as he said he would. As far as police knew, there could have been others who were armed (and there was at least one other person at the residence). [E.g., Deposition of Burns, at 44-46]. It was prudent for police to wait for the national guard vehicle to enter the premises. There can be no due process-type violation here. n7

Finally, Plaintiff asserts that the City “ratified” Officer Sterling’s actions by failing to discipline him (or otherwise having a defective internal affairs investigation policy) in this particular case. This theory fails for lack of causation. Even if the after-the-fact internal investigation here was somehow a “coverup” (and there is no such evidence), it would not have prevented the shooting of Long. See Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003) (“[Plaintiff] cannot, of course, argue that the municipality’s later action (or inaction) caused the earlier shooting”), re’vd on other grounds, 543 U.S. 194, 160 L. Ed. 2d 583, 125 S. Ct. 596 (2004). In Haugen, the Ninth Circuit also rejected the type of “ratification” theory espoused by Plaintiffs here. Id. (“the plaintiff must show that the triggering decision was the product of a ‘conscious affirmative choice’ to ratify the conduct in question. ... there are no facts ... that suggest that the single failure to discipline .... rises to the level of such a ratification.”) (citation omitted).

Even assuming, as Plaintiff emphasizes, that the internal investigation did not focus on a missing casing or on prior complaints of excessive force against Sterling, this is not evidence that the City itself ratified the shooting of Long. See, e.g., Kanae v. Hodson, 294 F. Supp. 2d 1179, 1190 (D. Haw. 2003) (“liability does not necessarily arise [*1249] based only on a failure to reprimand. Something more than the failure to reprimand is needed to survive a motion for summary judgment”). As the Court reasoned in Kanae:

the law does not say that every failure to discipline an officer who has shot someone is evidence of a ‘whitewash’ policy or some other policy of ‘sham’ investigations. The law does not say that, whenever an investigative group accepts an officer’s version over a victim’s differing version, this acceptance establishes a policy for which a municipality may be held liable under § 1983.

Id. at 1191. The Court finds no basis for a ratification theory of municipal liability here.

3. Common Law Claims

Plaintiff also alleged state law claims for infliction of emotional distress and punitive damages that are essentially dependent upon the federal claims. If the federal claims fail then Plaintiff cannot prove intentional infliction of emotional distress or malice for purposes of punitive damages. There is no evidence of negligence for purposes of a negligent infliction of emotional distress claim. Moreover, municipalities are immune from punitive damages in the circumstances of this case. Lauer v. YMCA, 57 Haw. 390, 557 P.2d 1334, 1342 (Haw. 1976) (“Public policy dictates the conclusion that the City, as a municipal corporation, should not be held liable for punitive damages”); City of Newport v. Fact Concerts, 453 U.S. 247, 271, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981) (A local government unit is immune from punitive damages under § 1983). The state law claims are dismissed.

CONCLUSION

(1) Officer Patrick Sterling is entitled to qualified immunity.

(2) Because there was no constitutional violation, the City likewise cannot be liable under 42 U.S.C. § 1983. Even if there were a violation, there is no “deliberate indifference” for purposes of municipal liability.

(3) For similar reasons, the state law claims fail as well.

Accordingly, the Court GRANTS Defendants’ Revised Motion for summary Judgment, filed on May 11, 2005.

It is so ordered.

July 11th, 2005.

Samuel P. King

United States District Judge

Notes:

1. The Court was informed by the parties at oral argument that Officer Sterling is currently serving another term in Iraq. The July 2005 trial date was vacated pending disposition of this motion.

2. See, e.g., Brosseau v. Haugen, 543 U.S. 194, 160 L. Ed. 2d 583, 125 S. Ct. 596, 598 (2004) (reiterating that use of deadly force is not constitutionally unreasonable “where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others”) (quoting Garner, 471 U.S. at 11).

3. At least three casings were found. [Shinsato Depo. at 26; Murakami Depo. at 16 (indicating five casings)]. Two were by the front gate, possibly from the shots fired earlier in the morning at the car. [Murakami Depo. at 16]. Another shell was found in the front of the residence, near the kitchen, consistent with a shot being fired 45 minutes earlier at about 0407 hours. [Id.]. Others might have been from shots fired to break up the party earlier. In any event, nothing was found near where it should have been if Long had shot at Marini or Canella, who were on the perimeter of the premises, probably in a ditch.

4. This is not to suggest that the shooting was not necessary. We cannot know that. Even assuming Long had not fired immediately before Sterling fired -- given what was indisputably occurring -- Long might have shot immediately thereafter. But, again, under Garner the test here is whether Sterling had “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.”

5. In its entirety it provided:

Deadly force is force used with the intent of causing, or which the actor knows will create a substantial risk of causing, death or serious bodily injury. It does not include force that is not likely to cause death or serious injury, but which unexpectedly results in such. Deadly force shall be used only when an officer reasonably believes that it is necessary.

The U.S. Supreme Court has ruled that the use of deadly force is a seizure subject to the “reasonableness” requirement of the Fourth Amendment. Even where an officer has probable cause to arrest a subject, it may be unreasonable to do so using deadly force. [Donohue Depo. Exh. A-00047].

6. The December 18, 2002, statement provides:

Deadly force is force used with the intent of causing, or which the actor knows will create a substantial risk of causing, death or serious bodily injury. It does not include force that is not likely to cause death or serious injury, but which unexpectedly results in such. Deadly force may be used only when an officer reasonably believes that the use of such force is necessary to defend his or her own life or that of another person in immediate danger of death or serious bodily injury.

7. As Plaintiff acknowledged at oral argument, there can be no Eighth Amendment claim here for the alleged failure to aid. Eighth Amendment claims would be restricted to prisoners after conviction. See generally Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) (“Because [plaintiff] had not been convicted of a crime . . . his rights derive from the due process clause rather than the Eighth Amendment’s protection against cruel and unusual punishment”) (citations omitted).