The opinion of the court was delivered by: Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Ruben Zarate filed a Second Amended Complaint alleging violation of his Fourth Amendment constitutional rights pursuant to 42 U.S.C. § 1983 based on the defendant police officers' use of excessive force. Zarate voluntarily dismissed defendants Cloherty, Motzny, Masters, Kosmyna and Mieczcak. The remaining defendant officers James Laska, Brian Storrie, Matthew Graf, and Mark Higgs move for summary judgment asserting they are entitled to judgment as a matter of law because Laska's decision to fire his weapon was reasonable under the circumstances, Zarate cannot establish the requisite personal involvement of Higgs, Storrie, and Graf for the post-shooting use of force, and Laska is entitled to qualified immunity. For the reasons set forth below, the Court denies defendants' summary judgment motion. Background
The basic facts are not in dispute. However, the parties diverge on the details of the events. On March 28, 2008, at approximately 8:30 a.m. Zarate went to the Velasquez and Sons Muffler Shop intending to rob the store at gunpoint. During that attempt, Zarate encountered Jose Sida, the shop's manager. Sida told Zarate that he should come back when the owner would be at the shop that Thursday. Zarate gave Sida two telephone numbers for Sida to call him when the owner was at the shop. Sida asked Zarate for a portion of the money he would get from the owner. Sida called the police approximately twenty-five minutes after Zarate left.
Later that morning, four police officers (Laska, Higgs, Storrie, and Graf) in plain clothes arrived at the muffler shop in response to Sida's call. The officers devised a plan to lure Zarate to the shop in order to apprehend him. Higgs and Storrie positioned themselves in the muffler shop's garage work area, while Laska was in the shop's office and Graf was outside the main entrance in a parked car. At the direction of the police officers, Sida telephoned Zarate. Zarate and Sida exchanged several phone calls.
Although Zarate admits that he had a gun with him when he returned to the muffler shop, he testified that it was in the waistband of his pants and he never pulled it out. Zarate testified at his deposition that he never pulled the gun out, that it was not functional, and he did not threaten anyone with it. Zarate explained in his deposition that a friend of his dropped him off near the muffler shop and he peered through a wooden fence before approaching. When Zarate reached the shop, he testified that he opened the door slightly, heard someone say "Oh shit!" and start shooting. Zarate turned and ran. He testified that his gun fell out of his pants when he ran. Zarate was struck by a bullet in the back and fell to the ground in the parking lot in front of the shop. He suffered extensive internal injuries as a result of the shooting. He testified that he did not see anyone in the office, and did not hear anyone announce themselves as police officers. Shop employee, Antonio Diaz, testified that he did not hear anyone announce police.
Zarate testified that he did not know that it was the police who shot him until later. Four shots were fired by Laska. Three of the bullets were recovered inside the shop. Zarate testified that he was "rushed" by three police officers, while he lay on the ground. He said they pushed their knees and elbows into his back and neck even though he had been shot was crying out in pain. He was handcuffed and flipped over onto his back.
The bullet struck Zarate in his low left back and tracked internally from his low back up and to the right. The bullet had to be surgically removed. Dr. Jennifer Glover, Zarate's treating surgeon, testified that Zarate sustained severe internal injuries including damage to his small bowel, stomach, mesentery, pylorus, and liver. He also suffered some fractures to his vertebrae. The injuries were life-threatening and he would have died without surgery.
A party is entitled to summary judgment if all of "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the Court must construe all reasonable inferences in the light most favorable to the non-moving party. Celotex v. Catrett, 477 U.S. 317, 324 (1986). All disputed issues of fact are to be resolved in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Defendants move for summary judgment claiming that there is no genuine issue of material fact that Officer Laska's use of force in firing his weapon and shooting Zarate was objectively reasonable under the circumstances. Claims of excessive force by a law enforcement officer are analyzed under the Fourth Amendment's reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989). This standard "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." Id. at 396. The reasonableness inquiry of an officer's use of force is an objective one viewed in light of the facts and circumstances confronting the officer, without regard to any underlying intent or motivation. Id. at 397. Thus, the Court must examine the reasonableness of the use of force from the perspective of a reasonable officer on the scene, without the benefit of 20/20 hindsight. Id. at 396.
Defendants argue that this Court should ignore the testimony of Ruben Zarate because he could not remember all of the details of the incident and thus his testimony is speculative. This Court disagrees and declines to discount Zarate's testimony. Zarate unequivocally testified that he opened the door slightly, heard someone exclaim "Oh shit!" and start shooting at which point he turned and ran. This Court does not believe that this testimony is speculative simply because he could not recall if any part of his body entered the shop or how many seconds the incident took or how many shots were fired.
This Court believes this is a close case, and as such, there are some factual issues for jury determination. In fact, this Court believes the reasonableness of Officer Laska's actions is called into question due to circumstances created by the defendant officers. By positioning themselves as they did, as if on a television program, they courted this debacle. This Court understands that it is unusual for the perpetrator of an attempted armed robbery to leave his telephone number so he can be called at a more profitable time. The absurdity of this fact suggests that the officers need not have used such elaborate tactics to apprehend Zarate.
There are several factual issues related to the manner in which the incident played out. Officer Laska testified that he announced that he was police before he started shooting. Officer Higgs testified that he heard Laska yell something before he heard gunfire. Officer Storrie testified that he thought Laska said "police or something" prior to the gunshots. The shop employee Antonio Diaz testified that he did not hear anyone announce "police." Thus, ...