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Ninth Circuit:
Ninth Circuit Reinstates Suit Against LAPD Over Shooting
Opinion Says Summary Judgment Was Granted in Error as to State Law Claims Where Triable Issue Exists As to Reasonableness of Final Shots, Fired While Armed Suspect Was on the Ground
By Kimber Cooley, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday reversed a summary judgment in favor of the City of Los Angeles, its police department and an officer as to state law claims against them for assault and wrongful death brought by the surviving family members of a man shot to death in a confrontation with police where the reasonableness of the officer’s final volley of shots while the man was on the ground raised a question of fact.
A grant of summary judgment as federal claims against the defendants was affirmed.
Circuit Judge Daniel P. Collins authored the opinion and was joined by Circuit Judges Milan D. Smith Jr. and Kenneth Kiyul Lee.
The action stems from the April 22, 2020 fatal shooting of Daniel Hernandez, 38, by Officer Toni McBride, a competitive shooter and popular firearms influencer who earned the rank of “Top Shot” during her time at the Los Angeles Police Department (“LAPD”) Academy.
Daniel Hernandez’s estate and his parents, Manuel and Maria Hernandez, and minor daughter M.L.H. brought suit, asserting a variety of federal and state law claims against the defendants.
Confrontation Videotaped
McBride and LAPD Officer Shuhei Fuchigami stopped to investigate a multi-vehicle accident at the intersection of San Pedro Street and East 32nd Street in South Central Los Angeles. Video footage from the patrol car and McBride’s body camera captured the ensuing confrontation.
As the officers approached a truck involved in the accident, Daniel Hernandez climbed out of the driver’s side window, shirtless and holding a weapon in his right hand.
McBride yelled to him, “Hey man, let me see your hands,” but he advanced toward her and she began shouting “Stay right there” and “Drop the knife!” The officer took several steps back as he continued to approached her.
She fired an initial volley of two shots, causing Daniel Hernandez to fall to the ground on his right side, with the weapon still in his hand. With McBride still shouting at him, he rolled over and pushed himself up to his knees and began to try to stand up.
After again commanding him to “Drop it,” she fired two shots at him again. He fell to the ground again; he began to roll over, still on the ground, and she fired a fifth and sixth shot after which he stopped moving altogether.
He still had in his right hand what turned out to be a box cutter with two blades in it.
Summary Judgment
The surviving family members sued, asserting a Fourth Amendment excessive force claim against McBride, a Fourteenth Amendment claim against all defendants, a claim against the city and the LAPD under the 1978 Supreme Court case of Monell v. Department of Social Services of the City of New York, and state law claims for assault, wrongful death and violations of the state Bane Act.
In August 2021, District Court Judge Stanley Blumenfeld Jr. of the Central District of California granted the summary judgment motion on all claims, holding that, as a matter of law, McBride did not use excessive force and was entitled to qualified immunity, her actions did not “shock the conscience” rendering the Fourteenth Amendment claim to be without merit, and that the Monell claim failed as no constitutional violation existed and no basis was established for holding the city and police force liable.
As to the state law claims, Blumenfeld said:
“[T]hese claims rise and fall based on the reasonableness of Office McBride’s use of force….Because the Court has determined that Officer McBride’s use of force was reasonable, Defendants are also entitled to summary judgment on Plaintiffs’ remaining state law claims.”
Reasonable Force
Addressing the Fourth Amendment excessive force claim, Collins explained that the reasonableness of the use of force must be evaluated from the perspective of a reasonable officer on the scene, taking into account the need to make split-second judgments. He noted that the most important consideration in an assessment of reasonableness is the immediate threat to officers or others posed by the party upon whom force is used.
Applying the standard to the case before the panel, Collins said:
“At the time that McBride fired her first shot, Hernandez had ignored her instruction to ‘Stay right there!’ and instead advanced towards her while holding a weapon that McBride had been told repeatedly was a knife. He did so while extending his arms out and yelling in McBride’s direction, and, as he continued approaching her, he ignored four separate commands to drop the knife. Under these circumstances, use of deadly force to eliminate the objectively apparent threat that Hernandez imminently posed was reasonable as a matter of law.”
He pointed out that the evidence “would permit a reasonable trier of fact to find that McBride fired three temporally distinct volleys of two shots each.” As a result, even though the initial shots were reasonable as a matter of law, he found that it must still be determined whether she acted reasonably in firing a total of six shots.
Collins wrote:
“On this record, the reasonableness of the fifth and sixth shots was… a question for the trier of fact, and the district court erred in granting summary judgment on that issue.”
However, he declared:
“Because McBride did not violate clearly established law in firing her third volley of shots, we conclude that she is entitled to qualified immunity. On that basis, we affirm the grant of summary judgment to McBride on Plaintiffs’ Fourth Amendment excessive force claim.”
State Law Claims
Collins did not find that such immunity protected the defendants against any of the state law claims.
He said that Blumfield’s sole basis for granting summary judgment on the state law claims was his determination that McBride’s use of force was reasonable. The jurist disagreed and declared:
“Because we conclude that the reasonableness of McBride’s final volley of shots presents a question for a trier of fact, the district court erred in dismissing these state law claims on that ground. We therefore reverse the district court’s dismissal of these claims.”
Other Federal Claims
Collins noted that the parents have a Fourteenth Amendment interest in the companionship of their children and that a violation of due process may lie if official conduct “shocks the conscience” in depriving them of that interest. However, he said that the plaintiffs failed to make the requisite showing.
He found that the Monell claim failed because the plaintiffs failed to establish any basis for holding the city and LAPD liable.
The case is Estate of Hernandez v. City of Los Angeles, 21-55994.
McBride’s Lawsuit
McBride last year sued the LAPD and then-Police Chief Michel Moore over her lack of promotions, in part, she alleged, because she declined to remove from her Instagram account photographs of her at her wedding toting a rifle.
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This photo of Los Angeles Police Department Officer Bloomfield’s Toni McBride is posted on her Instagram page—a photo that allegedly drew the ire of the then-police chief. Yesterday, state claims against McBride in a U.S. District Court lawsuit were reinstated by the Ninth U.S. Circuit Court of Appeals in connection with her fatal shooting of a man in 2020 with triable issues of fact existing, the judges said, as to the reasonableness of her two final shots. |
The complaint alleges:
“Chief Moore told Officer McBride that he wanted her to cease posting videos on social media. He said that Officer McBride needed to ‘choose between being an LAPD officer’ or posting social media videos.”
McBride’s father is Jamie McBride, an outspoken former director of the Los Angeles Police Protective League and a detective with the LAPD. In 2017, he won a $1.5 million jury verdict in a retaliation action in which he claimed that punitive action was taken against him for declining to sign a declaration he regarded as inaccurate.
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