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Court of Appeal, Second District, Division 6, California.

Daniel MORENO, Plaintiff and Appellant, v. COUNTY OF VENTURA, et al., Defendants and Respondents.

Civ. No. B069811.

Decided: December 20, 1994

Curtis C. Simpson, III,Curtis Simpson Law Firm, Oxnard, for appellant. ACLU Foundation of Southern California, Paul Hoffman, Los Angeles, Allen B. Grodsky and Robert B. Broadbelt, Beverly Hills, amicus curiae, for appellant. Jeffrey Held, Alan E. Wisotsky, Law Office of Alan E. Wisotsky, Ventura, for respondents.


Daniel Moreno appeals from a summary judgment dismissing his personal injury action for assault and battery, negligence, and violation of his federal constitutional rights (42 U.S.C. § 1983) against respondents, County of Ventura and Senior Deputy Sheriff Linda Hagemann.   Appellant was shot as he fled from the scene of a suspected armed robbery.   Respondents successfully moved for summary judgment.   We conclude that the trial court correctly granted the motion with respect to the fifth cause of action for violation of appellant's federal constitutional rights.  (Tennessee v. Garner (1984) 471 U.S. 1, 11–12, 105 S.Ct. 1694, 1701–02, 85 L.Ed.2d 1, 10 (Garner );  Graham v. Connor (1989) 490 U.S. 386, 396–397, 109 S.Ct. 1865, 1871–72, 104 L.Ed.2d 443, 455–456.)   We reverse on the state causes of action because they were not addressed in the separate statement of undisputed facts.  (Code Civ.Proc., § 437c, subd. (b).)

On February 14, 1990, appellant and three male companions entered a Kinney's Shoe Store in Camarillo to “beat up” Victor Miramontes, a store employee.   Appellant intended to “rough up” Miramontes because he had allegedly been fondling appellant's daughter.   Appellant and his cohorts jumped over the counter and brutally hit and kicked Miramontes for four to five minutes.

Senior Deputy Linda Hagemann (the deputy), who was on patrol, received a 911 emergency call that a robbery was in progress and the suspects were armed.   The deputy parked the patrol car and approached the store entrance with a shotgun.   The store manager, Gordon Hannegan, ran up and yelled “they're beating the shit out of my assistant—get in there and help him!”   Moments later, four men ran out the store.   Hannegan yelled:  “There they go!” 1

The four assailants looked at the deputy and ran in the opposite direction.   The deputy shouted “freeze” and “halt” as three of the suspects ran around the corner of the building.   The deputy shouted “freeze” a second time but appellant continued to run and made a turning movement.   Respondent fired, striking appellant in the back of the head.

Respondents moved for summary judgment, contending that the action was barred by Garner, supra, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1.   Appellant opposed the motion on the ground that the deputy violated a three page general order issued by the Ventura County Sheriff's Department concerning the use of deadly force.

The trial court determined that the action was barred by Garner and ruled:  “Defendants have established that:  (1) plaintiff Moreno had recently participated in committing a crime of brutal physical violence without legal justification (against Kinney Shoe Store employee Miramontes);  (2) the commission of the crime was known to Dep. Hagemann (through store manager Hannegan);  (3) Dep. Hagemann issued a loud ‘freeze’ and ‘halt’ command 2 or 3 times (heard by the manager of an adjacent store, a man in his car and a witness at a nearby gas station);  and (4) plaintiff Moreno continued to flee despite the uniformed officer's stop command.   These proofs entitle defendants to a summary judgment on the federal cause of action of the complaint.  [¶] Defendants County of Ventura and Linda Hagemann are entitled to a summary judgment on the state causes of action as well.   The General Order, by its express terms and by law, does not provide a basis for civil recovery.  (See Posey v. State of California (1986) 180 Cal.App.3d 836, 225 Cal.Rptr. 830).”

 Summary judgment is properly granted when the evidence in support of the motion establishes no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c);  Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)   On review, we exercise our independent judgment in assessing the legal significance of the moving papers and supporting documents.  (Saldana v. Globe–Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513, 285 Cal.Rptr. 385.)   Our review tracks the same three-step process used by the trial court:  First, we identify the issues framed by the pleadings.   Second, we determine whether the moving papers negate the opponent's claim.   If that burden is met, the third and final step is to determine whether the opposition papers raise a triable issue of material fact.  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064–1065, 225 Cal.Rptr. 203.)

 The focal point of this appeal is the fifth cause of action for violation of the federal Civil Rights Act.  (42 U.S.C. § 1983.)   The first amended complaint alleges that respondents violated appellant's Fourth, Fifth, Sixth, and Fourteenth Amendment rights by using excessive force.   As a state court, we look to federal law to resolve issues of substantive law concerning actions brought under the Civil Rights Act.  (Greene v. Zank (1984) 158 Cal.App.3d 497, 503, 204 Cal.Rptr. 770.)   The parties agree that Garner, supra, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 controls.

In Garner, a police officer responded to a prowler call and shot a 17–year–old suspect who fled and tried to climb over a chain link fence.   The Supreme Court struck down a Tennessee statute insofar as it authorized the use of deadly force against fleeing felon suspects who were unarmed and presented no danger.   The court, however, did not forbid the police use of deadly force in seizing every fleeing suspect.   It said:  “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, it is not constitutionally unreasonable to prevent escape by using deadly force.   Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”  (Garner, 471 U.S. at pp. 11–12, 105 S.Ct. at pp. 1701–02, 85 L.Ed.2d at pp. 9–10.)

Five years later, the Supreme Court in Graham v. Connor, supra, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (Graham ) held that civil rights actions arising out of the use of excessive force must be analyzed under the Fourth Amendment “objective reasonableness” standard.  (Id., at pp. 396–398, 109 S.Ct. at pp. 1871–73, 85 L.Ed.2d at pp. 455–457.)  “Today, we make explicit what was implicit in Garner's analysis, and hold that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under a ‘substantive due process' approach.”  (Id., at p. 395, 109 S.Ct. at p. 1871, 85 L.Ed.2d at p. 454.)

 Thus, we determine whether appellant's Fourth Amendment rights were violated and whether the deputy had probable cause to believe that appellant had inflicted or threatened to inflict serious physical harm or posed an immediate threat to her safety or others.  (Garner, supra, 471 U.S. at pp. 11–12, 105 S.Ct. at pp. 1701–02, 85 L.Ed.2d at pp. 9–10.)

 Appellant contends that probable cause is a question of fact and may not be resolved by summary judgment.   Here the facts are undisputed.  “What is probable cause, as had been often announced, is not a question of fact for the jury, but one of law for the court․”  (Collyer v. S.H. Kress & Co. (1936) 5 Cal.2d 175, 181, 54 P.2d 20;  see also Milliken v. City of South Pasadena (1979) 96 Cal.App.3d 834, 844, 158 Cal.Rptr. 409;  Giannis v. City and County of San Francisco (1978) 78 Cal.App.3d 219, 225, 144 Cal.Rptr. 145 [collecting the cases].)

 Although no California appellate court has considered the Garner/ Graham constitutional standard, the lower federal courts have.   The Fourth Amendment reasonableness inquiry takes into account those facts known to the officer at the moment he or she uses deadly force to apprehend the fleeing suspect.  (Ford v. Childers (7th Cir.1988) 855 F.2d 1271, 1275;  Sherrod v. Berry (7th Cir.1988) 856 F.2d 802, 804.)   The court stands in the shoes of the officer at the moment he or she made the split-second judgment to use deadly force.  (Id., at pp. 804–805;  Greenidge v. Ruffin (4th Cir.1991) 927 F.2d 789, 792.)

Here the evidence was undisputed that the deputy had probable cause to believe that appellant was armed, had beat a store employee, and was fleeing from a robbery.   At her deposition, she testified that she received an emergency call about “a possible 211 in progress, weapons involved, with multiple suspects.”   The deputy was told that four suspects were inside the store “beating the shit” out of an employee.   The store manager identified the suspects as the they ran out.

In addition, at the time of the shooting, the deputy also had probable cause to believe that appellant posed a significant threat to her or others.   (Ford v. Childers, supra, 855 F.2d 1271, 1274.)   She testified that two-to-five seconds elapsed between the first and second command to stop.   She fired when appellant continued to run, turned towards her, and made a movement with his upper body.   She believed that appellant was concealing a weapon and “was going to shoot me.”

The argument that the deputy should have waited because police reinforcements were on the way must be rejected.   This is the type of hindsight analysis condemned by the case law.   Had appellant and his companions been armed and had they gone on a shooting spree, the deputy would have been faulted for not shooting!   The deputy feared for her safety when appellant made a turning movement.   She reasonably believed that appellant was trying to produce a firearm and shoot her.   She did not know whether the three other suspects would assault her with firearms after disappearing around the corner.   “[U]nder Graham, we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene.”   (Smith v. Freland (6th Cir.1992) 954 F.2d 343, 347 [officer feared for safety after other officers blocked suspect's escape];  see also Reese v. Anderson (5th Cir.1991) 926 F.2d 494, 501 [officer feared for his safety after the vehicle was “totally surrounded” by police].)

 Appellant argues that the trial court misapplied Garner and failed to weigh the totality of the facts and circumstances.   Appellant asserts that no robbery or felony was committed, that Miramontes was not seriously injured, and that neither appellant nor his companions were carrying weapons.   None of this information, however, was known to the deputy when she ordered appellant to halt and fired.

 “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  (Graham, supra, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443, 455.)   Information acquired by the officer after the arrest is irrelevant to the question of whether officer acted reasonably.   (Sherrod v. Berry, supra 856 F.2d 802, 805.)   That the deputy was mistaken in some of the premises, e.g., that a robbery had not in fact occurred, or that the four assailants were unarmed, or that Miramontes did not actually suffer serious bodily injury, does not vitiate “objective reasonableness.”  (Graham, supra, 490 U.S. at p. 396, 109 S.Ct. at p. 1871–72, 104 L.Ed.2d at p. 455;  see also Burke v. Superior Court (1974) 39 Cal.App.3d 28, 35, 113 Cal.Rptr. 801.)  “ ‘[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment․’  [Citation.]”  (Maryland v. Garrison (1987) 480 U.S. 79, 87, 107 S.Ct. 1013, 1018, 94 L.Ed.2d 72, 82.)

 Appellant's assertion that he never heard the command to stop is not determinative.   Four witnesses testified that the deputy shouted at appellant two or three times.   Under Garner, the test is whether warnings were given, not whether the suspect heard the warning.  (Ford v. Childers, supra, 855 F.2d 1271, 1276;  Kinney v. Indiana Youth Center (7th Cir.1991) 950 F.2d 462, 466.)   Appellant further contends that triable facts were presented on the issue of whether an appreciable amount of time elapsed between the order to stop and the shooting.   Not so.   The evidence was undisputed that the deputy fired seconds after she shouted the second command to stop.

 Appellant finally argues that material triable facts were presented on the issue of whether deadly force was necessary to prevent appellant's escape.   Not so.   The deputy and four witnesses said that appellant continued to run after he was ordered to halt.   The store manager, Hannegan, testified that appellant “definitely was trying to escape.”

Appellant, however, relied on the deposition of another witness, Paul Channels, who testified that the four suspects halted when the deputy issued the second order to freeze.   He further indicated, “[t]hey all looked at her.   Their heads turned in unison.”   Channels, however, admitted that he was looking at the deputy at the time of the shooting, not the suspects.

The trial court drew the common sense inference that deadly force was necessary to prevent appellant's escape and that he was escaping when shot.  (Code Civ.Proc., § 437c, subd. (c);  Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1615, 286 Cal.Rptr. 402.)   The inference is compelling.   The record indicates that all of the suspects continued to run after the deputy shouted the orders to freeze.   In his opening brief, appellant concedes that the other three suspects “․ had disappeared around the corner of the building and Mr. Moreno was running behind them.   As he started to turn the corner himself, Officer Hagemann was aiming her shotgun at the middle of his back.   She fired, hitting him in the back of the head.”

“The calculus of reasonableness must embody allowance 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.”  (Graham, 490 U.S. 386, 396–397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443, 455–456.)   The deputy was forced to make such a judgment.   Given the facts and circumstances known to her at the time, the use of deadly force was objectively reasonable.   It is unfortunate that appellant was injured but he set in motion a chain of events which put everyone, including his companions, the store employees, and the deputy, in a position of extreme peril.   It is not surprising that the deputy acted as she did.   No civil rights violation occurred here.

 Appellant successfully argues that the grant of summary judgment on the civil rights claim does not necessarily bar the state causes of action for assault and battery, and negligence.   The Garner/Graham standard for measuring civil rights claims does not supplant state tort law.   (Ting v. United States (9th Cir.1991) 927 F.2d 1504, 1514;  Brown v. City of Clewiston (11th Cir.1988) 848 F.2d 1534, 1542.)   Where, however, an officer uses more force than is reasonably necessary, the officer commits a battery.  (BAJI No. 7.54.)   A police officer's lack of due care in using deadly force can give rise to negligence and intentional tort liability.  (Munoz v. Olin (1979) 24 Cal.3d 629, 634, 156 Cal.Rptr. 727, 596 P.2d 1143;  Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 586, 86 Cal.Rptr. 465, 468 P.2d 825.)   However, we do not reach the merits of the state claims.

 As appellant points out, the state causes of action for assault, battery, and negligence were not even addressed in the motion for summary judgment.

The moving papers and separate statement of undisputed facts were limited to the Garner/Graham Fourth Amendment claim.   The separate statement of undisputed facts, an indispensable part of the motion, did not address the state causes of action.  (Code Civ.Proc., § 437c (b).)   The trial court erred when it ruled, as a matter of law, that no triable facts existed on these causes of action.

“We construe the statutory mandate for a Separate Statement as requiring a party to specify within that document any facts he deems to be disputed facts material to the issue presented.   The court in United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 282 Cal.Rptr. 368 ․, extensively analyzing the role played by the Separate Statement, observed that the statement serves two functions:  to give the opponent notice of the facts;  and to permit the trial court to focus on the facts germane to the issues.  [Citation.]”   (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30, 21 Cal.Rptr.2d 104.)

The summary judgment on the fifth cause of action for violation of appellant's federal constitutional rights is affirmed.   The summary judgment on the state causes of action is reversed.   The parties shall bear their own costs on appeal.

We concur in the result.   What we think is of particular significance in the amalgam of undisputed facts is that Moreno made a turning movement towards Officer Hagemann which she reasonably perceived as threatening.   The officer thought Moreno was concealing a weapon and that he was going to shoot her.

We write separately, however, because in our view summary judgment in favor of respondents on the federal civil rights cause of action is proper only if it is based on all of the undisputed facts raised in respondent's motion for summary judgment.

Justice Yegan opines that the act of escape alone, even without the turning movement towards the officer justifies the granting of summary judgment in favor of respondents.   His holding affirms the trial court which granted the motion for summary judgment on findings which omit any reference to Moreno's turning movement.   Under his view, respondents would be entitled to summary judgment had there been no turning movement towards the officer, and had Officer Hagemann shot all the fleeing suspects in the back.   We disagree.

Curnow v. Ridgecrest Police (9th Cir.1991) 952 F.2d 321, cert. denied, 506 U.S. 972, 113 S.Ct. 460, 121 L.Ed.2d 369 (1992) states that we must look at the totality of the circumstances in evaluating the officer's conduct.   At page 325 the court states that “an officer [can] use deadly force to effect the arrest of a fleeing felon if, under the circumstances, he reasonably believes such force was necessary to protect himself or others from death or serious ․ harm.”

This we believe is a correct statement of the holding in Tennessee v. Garner (1985) 471 U.S. 1, 11–12, 105 S.Ct. 1694, 1701–02, 85 L.Ed.2d 1, 10.   We agree with amicus that the issue and holding in Garner is stated at page 2 and is as follows:  “This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon.   We conclude that such force may not be used unless it is necessary to prevent the escape and 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.”

The totality of circumstances to which we look as pointed out in Curnow includes not just the severity of the crime, but also whether the suspect poses an immediate threat to the safety of the officer or others, and whether the suspect is actively resisting or attempting to evade arrest by flight.   (Curnow v. Ridgecrest Police, supra, 952 F.2d 321 at 325.)   That a suspect may have committed a crime involving serious physical harm to others may, but does not necessarily or automatically mean the suspect is an immediate threat to the safety of others.

In motions for summary judgment the moving party's affidavits are to be construed strictly and the opposing party's, liberally “[b]ecause summary judgment is a drastic measure, any doubts are to be resolved in favor of the party opposing the motion.  [Citation.]”  (Hurley v. County of Sonoma (1984) 158 Cal.App.3d 281, 284, 204 Cal.Rptr. 621.)

“In ruling on a motion for summary judgment, ‘․ the court shall consider ․ all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.’ ”  (Code Civ.Proc., § 437c, subd. (c);  Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1615, 286 Cal.Rptr. 402.)

We granted Moreno's petition for rehearing to give the parties an opportunity to thoroughly discuss by way of supplementary briefs the issue of whether there is an undisputed fact that Moreno made a turning movement toward the officer before she shot him, and, if so, what is the significance of that turning movement.

At her deposition, Officer Hagemann testified that while Moreno was running away, “he slowed down and he turned to his left, turning back to me as if he was to look at me.”   Officer Hagemann went on to testify that she “thought he had a weapon that he was concealing” and “that he was going to shoot me.”   No witnesses contradict this testimony.   We agree with respondent that the failure of some witnesses to corroborate Hagemann's testimony does not create an inference that Moreno made no turning movement.

Nor do we agree with Moreno that Hagemann made contradictory statements concerning the turning movement.   When asked where she was aiming when she discharged her weapon, she answered, “right at his torso, middle of his back.”   She also acknowledged that Moreno never faced her or made eye contact.   The turning movement need only be slight.   Neither the lack of eye contact, nor the aiming of her weapon “at his torso, middle of his back,” is inconsistent with her testimony about the turning movement.   Moreno's turning movement would not necessarily obscure his entire torso, or back.   Under the circumstances, Hagemann's actions and the reasonable inferences to be drawn therefrom were not disputed.

As to the turning movement, Moreno has failed to show specific facts that a triable issue of fact exists.  (Code Civ.Proc., § 437c, subd. (o)(2)).

Our consideration of the totality of circumstances, however, leads us to conclude that absent the threatening turning movement, reasonable inferences may be drawn from the facts that differ from those reached by the trial court and Justice Yegan.

Ford v. Childers, (7th Cir.1988) 855 F.2d 1271 cited by respondent does not convince us otherwise.   In Ford, a police officer shot a bank robber fleeing the scene of the robbery.   Ford, like Moreno, brought a suit against the police department pursuant to 42 U.S.C. § 1983.

Ford, however, involved a trial instead of a motion for summary judgment.   The officer actually saw the defendant commit the robbery.   Upon arriving at the bank in response to a silent alarm, the officer saw a masked person in the bank with his arm extended toward several persons who had their hands raised above their heads.   Although the officer did not see a gun because his view was partially obstructed, he reasonably concluded that the suspect was holding a weapon.   At the conclusion of the plaintiff's case the trial court granted defendant's motion for directed verdict.   The appellate court affirmed.

The Ford court made a prescient comment concerning the manner in which we determine whether there is probable cause to believe a suspect poses a threat of serious physical harm to the officer or to others.  “Since a determination of probable cause turns ‘on the assessment of probabilities in particular factual contexts—not readily or even usefully, reduced to a neat set of legal rules,’ Illinois v. Gates (462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983)), it is usually a jury question in a damages suit.  (See Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir.1985).)  Nonetheless, we have ruled that the existence of probable cause is a question for the jury only ‘if there is room for a difference of opinion.’ ”   Gramenos v. Jewel Companies, Inc. 797 F.2d 432, 438 (7th Cir.1986) cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987) (quoting Llaguno, supra, 763 F.2d at 1565.)  (Ford v. Childers, supra, (7th Cir.1988) 855 F.2d 1271, 1274–1275.)

Here we think that without the turning movement there is room enough for a difference of opinion on the probable cause determination so that a jury should decide the issue.

Officer Hagemann responded to a call about a possible robbery in progress with weapons involved.   When she arrived at the scene she was told by the store manager that four suspects were “beating the shit” out of an employee in the store.   She did not witness the beating, did not see the victim, and did not receive any information about the nature of the victim's injuries.   When she saw the suspects running out of the store she saw no weapons but only saw the suspects running away from her.

Absent the threatening turning movement, a reasonable trier of fact could draw the inference that Hagemann did not have reason to believe that Moreno was a danger to herself or others at the time of the shooting.

As Garner points out, “[w]here 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.”  (Tennessee v. Garner, supra, 471 U.S. 1, 11–12, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1, 10.)

We conclude that with the turning movement, there is no dispute that Officer Hagemann reasonably believed Moreno posed an immediate threat to her safety, which justified her use of deadly force.


1.   These statements from a citizen informer can fairly be characterized as corroborating some of the information received on the radio.   At the very least, the store manager's excited revelation showed that his assistant was the victim of a brutal assault which may have involved the infliction of serious physical harm.   Given the 911 emergency call and the store manager's statement, the common sense inference that a felony offense had been committed was compelling.

YEGAN, Associate Justice.

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