Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 1 of 44 1 2 3 4 5 6 7 8 JAN I. GOLDSMITH, City Attorney DANIEL F. BAMBERG, Assistant City Attorney JOHN E. RILEY, Chief Deputy City Attorney California State Bar No. 144268 TIMOTHY C. STUTLER, Deputy City Attorney California State Bar No. 131794 BEVERLY A. ROXAS, Deputy City Attorney California State Bar No. 298582 Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, California 92101-4100 Telephone: (619) 533-5800 Facsimile: (619) 533-5856 Attorneys for Defendants SHELLEY ZIMMERMAN, NEAL N. BROWDER and the CITY OF SAN DIEGO 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 S.R. NEHAD, an individual, K.R. NEHAD, an individual, ESTATE OF 13 FRIDOON RAWSHAN NEHAD, Plaintiffs, 14 15 v. 16 SHELLEY ZIMMERMAN, in her personal and official capacity as Chief 17 RIGHTS UNDER 42 U.S.C. § 1983 of Police, NEAL N. BROWDER, an 18 individual, CITY OF SAN DIEGO, a municipality, and DOES 1 through 10, 19 inclusive, Defendants. 20 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 15cv1386 WQH (NLS) DEFENDANTS’ ANSWER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT Judge: Hon. William Q. Hayes Court Room: 14B Annex Trial: Not Set 21 COMES NOW Defendants Shelley Zimmerman, Neal N. Browder, and City 22 of San Diego, by and through their attorneys, San Diego City Attorney Jan I. 23 Goldsmith, Chief Deputy City John E. Riley, Deputy City Attorney Timothy C. 24 Stutler, and Deputy City Attorney Beverly A. Roxas, and answer Plaintiffs’ Second 25 Amended Complaint herein (“SAC”). 26 1. Responding to Paragraph 1 of the SAC, Defendants affirmatively 27 allege that said Paragraph contains improper argument and hyperbole to which no 28 response is required. To the extent a response required, Defendants admit that Document Number:1117314 1 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 2 of 44 1 Defendants have voluntarily offered and provided to Plaintiffs the video of the 2 shooting in this case, as well as the rest of the San Diego Police Department’s 3 (“SDPD”) Homicide Binder. 4 generally and specifically, each, all and every allegation contained in said 5 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 6 wrongful conduct on the part of Defendants, or any agents, employees, officials, 7 officers, offices, agencies, departments or divisions of the City of San Diego. 8 2. Except as expressly admitted, Defendants deny, Responding to Paragraph 2 of the SAC, Defendants affirmatively 9 allege that said Paragraph contains improper argument and hyperbole to which no 10 response is required. To the extent a response required, Defendants admit that the 11 video shows SDPD officer Neal Browder use deadly force against Rawshannehad 12 Fridoon Zalbeg (“Plaintiffs’ Decedent”). Except as expressly admitted, Defendants 13 deny, generally and specifically, each, all and every allegation contained in said 14 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 15 wrongful conduct on the part of Defendants, or any agents, employees, officials, 16 officers, offices, agencies, departments or divisions of the City of San Diego. 17 3. Responding to Paragraph 3 of the SAC, Defendants deny that on 18 midnight on April 30, 2015, Plaintiffs’ Decedent was walking at a leisurely pace, 19 strolling, or ambling along in downtown San Diego; deny that he was unarmed; and 20 deny that he was not violating the law. 21 4. Responding to Paragraph 4 of the SAC, Defendants admit that Officer 22 Browder responded to an emergency call that Plaintiffs’ Decedent was armed and 23 threatening another or others with a knife, that the officer drove up an alley toward 24 Plaintiffs’ Decedent, that the headlights of the officers’ car were on and not his 25 flashing lights, that the officer activated his car’s high beams after turning into the 26 alley, and that Plaintiffs’ Decedent covered more than 100 feet in an effort to get to 27 Officer Browder. Except as expressly admitted, Defendants deny, generally and 28 specifically, each, all and every allegation contained in said Paragraph, and Document Number:1117314 2 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 3 of 44 1 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 2 the part of Defendants, or any agents, employees, officials, officers, offices, 3 agencies, departments or divisions of the City of San Diego. 4 5. Responding to Paragraph 5 of the SAC, Defendants affirmatively 5 allege that said Paragraph contains improper argument and hyperbole to which no 6 response is required. To the extent a response required, Defendants admit the 7 following: that Officer Browder got out of his car when Plaintiffs’ Decedent had 8 closed the gap between them to between 20 and 30 feet; that Officer Browder 9 loudly and clearly ordered Plaintiffs’ Decedent to stop and to “drop it” or “drop the 10 knife”; that Plaintiffs’ Decedent continued moving toward Officer Browder, 11 wielding what Plaintiffs’ Decedent represented to be a knife; and that when 12 Plaintiffs’ Decedent failed to obey the officer’s unmistakable and unequivocal 13 commands, Officer Browder drew his gun and shot Plaintiffs’ Decedent at a 14 distance of approximately 15 to 17 feet. Except as expressly admitted, Defendants 15 deny, generally and specifically, each, all and every allegation contained in said 16 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 17 wrongful conduct on the part of Defendants, or any agents, employees, officials, 18 officers, offices, agencies, departments or divisions of the City of San Diego. 19 6. Responding to Paragraph 6 of the SAC, Defendants affirmatively 20 allege that said Paragraph contains improper argument and hyperbole to which no 21 response is required. To the extent a response required, Defendants admit the 22 following: that Officer Browder did not activate his body-worn camera when 23 responding to the call about Plaintiffs’ Decedent threatening another or others with 24 a knife; that Officer Browder believed Plaintiffs’ Decedent was about to stab him 25 with a knife, was focused on defending himself and others, and did not notice or 26 consider whether video cameras might capture the event; and that Officer Browder 27 observed one or more civilian witnesses in the immediate area right before the 28 shooting and, if he had the opportunity to consider it, would have realized they Document Number:1117314 3 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 4 of 44 1 were in an ideal position to observe what followed. Except as expressly admitted, 2 Defendants deny, generally and specifically, each, all and every allegation 3 contained in said Paragraph, and specifically deny any unlawful, unconstitutional, 4 or otherwise wrongful conduct on the part of Defendants, or any agents, employees, 5 officials, officers, offices, agencies, departments or divisions of the City of San 6 Diego. 7 7. Responding to Paragraph 7 of the SAC, Defendants admit that the 8 object Officer Browder believed to be a knife was a shiny, pointed, metallic pen; 9 that Officer Browder truthfully stated that he did not see any other weapon at the 10 scene; that after the officer had answered the investigating officers’ questions, his 11 attorney informed the investigating officers that the interview was done; and that 12 drug and alcohol testing were neither required of nor performed on Officer Browder 13 the morning of the shooting. Except as expressly admitted, Defendants deny, 14 generally and specifically, each, all and every allegation contained in said 15 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 16 wrongful conduct on the part of Defendants, or any agents, employees, officials, 17 officers, offices, agencies, departments or divisions of the City of San Diego. 18 8. Responding to Paragraph 8 of the SAC, Defendants affirmatively 19 allege that said Paragraph contains improper argument and hyperbole to which no 20 response is required. To the extent a response required, Defendants admit that 21 SDPD investigators spoke with Officer Browder again on May 5, 2015; that, again, 22 the officer truthfully and accurately reported the events of April 30, 2015; that he 23 told the investigators that Plaintiffs’ Decedent was walking toward him 24 aggressively and at a fast pace; and that he told the investigators he thought 25 Plaintiffs’ Decedent was going to stab him with a knife. Except as expressly 26 admitted, Defendants deny, generally and specifically, each, all and every 27 allegation contained in said Paragraph, and specifically deny any unlawful, 28 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any Document Number:1117314 4 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 5 of 44 1 agents, employees, officials, officers, offices, agencies, departments or divisions of 2 the City of San Diego. 3 9. Responding to Paragraph 9 of the SAC, Defendants admit that when 4 he was asked whether any other force options crossed his mind, Officer Browder 5 truthfully responded, “I didn’t even have a chance. I mean it didn’t even cross my 6 mind. It happened that quick. I didn’t have a chance to use any other force 7 options.” 8 specifically, each, all and every allegation contained in said Paragraph, and 9 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 10 the part of Defendants, or any agents, employees, officials, officers, offices, 11 agencies, departments or divisions of the City of San Diego. 12 10. Except as expressly admitted, Defendants deny, generally and Responding to Paragraph 10 of the SAC, Defendants deny, generally 13 and specifically, each, all and every allegation contained in said Paragraph, and 14 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 15 the part of Defendants, or any agents, employees, officials, officers, offices, 16 agencies, departments or divisions of the City of San Diego. 17 11. Responding to Paragraph 11 of the SAC, Defendants affirmatively 18 allege that said Paragraph contains improper argument and hyperbole to which no 19 response is required. To the extent a response required, Defendants admit that 20 Officer Browder has served with the SDPD for over 27 years and knew many of the 21 department’s customs and practices. Except as expressly admitted, Defendants 22 deny, generally and specifically, each, all and every allegation contained in said 23 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 24 wrongful conduct on the part of Defendants, or any agents, employees, officials, 25 officers, offices, agencies, departments or divisions of the City of San Diego. 26 12. Responding to Paragraph 12 of the SAC, Defendants affirmatively 27 allege that said Paragraph contains improper argument and hyperbole to which no 28 response is required. To the extent a response required, Defendants admit that Document Number:1117314 5 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 6 of 44 1 investigators found no wrongdoing on Officer Browder’s part, and that the officer 2 has returned to patrol duty. 3 generally and specifically, each, all and every allegation contained in said 4 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 5 wrongful conduct on the part of Defendants, or any agents, employees, officials, 6 officers, offices, agencies, departments or divisions of the City of San Diego. 7 13. Except as expressly admitted, Defendants deny, Responding to Paragraph 13 of the SAC, Defendants affirmatively 8 allege that said Paragraph contains improper argument and hyperbole to which no 9 response is required. To the extent a response required, Defendants admit that 10 Chief Zimmerman has worked diligently to improve all aspects of the SDPD’s 11 performance, has met with success in many performance areas, and continues to 12 work on other performance areas. Except as expressly admitted, Defendants deny, 13 generally and specifically, each, all and every allegation contained in said 14 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 15 wrongful conduct on the part of Defendants, or any agents, employees, officials, 16 officers, offices, agencies, departments or divisions of the City of San Diego. 17 14. Responding to Paragraph 14 of the SAC, Defendants affirmatively 18 allege that said Paragraph contains improper argument and hyperbole to which no 19 response is required. To the extent a response required, Defendants deny, generally 20 and specifically, each, all and every allegation contained in said Paragraph, and 21 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 22 the part of Defendants, or any agents, employees, officials, officers, offices, 23 agencies, departments or divisions of the City of San Diego. 24 15. Responding to Paragraph 15 of the SAC, Defendants affirmatively 25 allege that said Paragraph contains improper argument and hyperbole to which no 26 response is required. To the extent a response required, Defendants admit that after 27 Officer Browder had answered the investigating officers’ questions the morning of 28 the shooting, his attorney informed the investigating officers that the interview was Document Number:1117314 6 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 7 of 44 1 done; that drug and alcohol testing were neither required of nor performed on 2 Officer Browder the morning of the shooting; that Officer Browder’s attorney 3 requested a copy of the KECO video to review with the officer; and that Officer 4 Browder truthfully described the shooting and truthfully estimated the distances 5 involved – accounts that were corroborated by subsequent investigation and 6 independent witness testimony. Except as expressly admitted, Defendants deny, 7 generally and specifically, each, all and every allegation contained in said 8 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 9 wrongful conduct on the part of Defendants, or any agents, employees, officials, 10 11 officers, offices, agencies, departments or divisions of the City of San Diego. 16. Responding to Paragraph 16 of the SAC, Defendants affirmatively 12 allege that said Paragraph contains improper argument and hyperbole to which no 13 response is required. To the extent a response required, Defendants admit that 14 Officer Browder has returned to patrol duty and that a police chief has overall 15 responsibility for her department, including the proper performance of its 16 investigations. 17 specifically, each, all and every allegation contained in said Paragraph, and 18 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 19 the part of Defendants, or any agents, employees, officials, officers, offices, 20 agencies, departments or divisions of the City of San Diego. 21 17. Except as expressly admitted, Defendants deny, generally and Responding to Paragraph 17 of the SAC, Defendants affirmatively 22 allege that said Paragraph contains improper argument and hyperbole to which no 23 response is required. To the extent a response required, Defendants deny, generally 24 and specifically, each, all and every allegation contained in said Paragraph, and 25 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 26 the part of Defendants, or any agents, employees, officials, officers, offices, 27 agencies, departments or divisions of the City of San Diego. 28 18. Responding to Paragraph 18 of the SAC, Defendants affirmatively Document Number:1117314 7 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 8 of 44 1 allege that said Paragraph contains improper argument and hyperbole to which no 2 response is required. To the extent a response required, Defendants deny, generally 3 and specifically, each, all and every allegation contained in said Paragraph, and 4 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 5 the part of Defendants, or any agents, employees, officials, officers, offices, 6 agencies, departments or divisions of the City of San Diego. 7 19. Responding to Paragraph 19 of the SAC, Defendants affirmatively 8 allege that said Paragraph contains improper argument and hyperbole to which no 9 response is required. To the extent a response required, Defendants deny, generally 10 and specifically, each, all and every allegation contained in said Paragraph, and 11 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 12 the part of Defendants, or any agents, employees, officials, officers, offices, 13 agencies, departments or divisions of the City of San Diego. 14 20. Responding to Paragraph 20 of the SAC, Defendants admit that 15 Plaintiffs purport to seek the relief described in said Paragraph. Except as expressly 16 admitted, Defendants deny, generally and specifically, each, all and every 17 allegation contained in said Paragraph, and specifically deny any unlawful, 18 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 19 agents, employees, officials, officers, offices, agencies, departments or divisions of 20 the City of San Diego. 21 21. Responding to Paragraph 21 of the SAC, Defendants are without 22 knowledge or information sufficient to form a belief as to the truth of the 23 allegations therein contained, and based thereon, deny, generally and specifically, 24 each, all and every allegation contained in said Paragraph. 25 22. Responding to Paragraph 22 of the SAC, Defendants affirmatively 26 allege that said Paragraph contains jurisdictional allegations that present legal 27 conclusions and questions of law to be determined solely by the Court, to which no 28 response is required. To the extent a response is required, Defendants admit that Document Number:1117314 8 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 9 of 44 1 Plaintiffs purport to assert jurisdiction in this action pursuant to the various laws 2 cited in said Paragraph. Except as expressly admitted, Defendants deny, generally 3 and specifically, each, all and every allegation contained in said Paragraph, and 4 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 5 the part of Defendants, or any agents, employees, officials, officers, offices, 6 agencies, departments or divisions of the City of San Diego. 7 23. Responding to Paragraph 23 of the SAC, Defendants affirmatively 8 allege that said Paragraph contains jurisdictional allegations that present legal 9 conclusions and questions of law to be determined solely by the Court, to which no 10 response is required. To the extent a response is required, Defendants admit that 11 Plaintiffs filed an administrative claim with the City, which was denied prior to the 12 filing of the SAC. Except as expressly admitted, Defendants deny, generally and 13 specifically, each, all and every allegation contained in said Paragraph. 14 24. Responding to Paragraph 24 of the SAC, Defendants affirmatively 15 allege that said Paragraph contains jurisdictional allegations that present legal 16 conclusions and questions of law to be determined solely by the Court, to which no 17 response is required. To the extent a response is required, Defendants are without 18 knowledge or information sufficient to form a belief as to the truth of the 19 allegations therein contained, and based thereon, deny, generally and specifically, 20 each, all and every remaining allegation contained in said Paragraph. 21 25. Responding to Paragraph 25 of the SAC, Defendants affirmatively 22 allege that said Paragraph contains jurisdictional allegations that present legal 23 conclusions and questions of law to be determined solely by the Court, to which no 24 response is required. To the extent a response is required, Defendants are without 25 knowledge or information sufficient to form a belief as to the truth of the 26 allegations therein contained, and based thereon, deny, generally and specifically, 27 each, all and every allegation contained in said Paragraph. 28 26. Responding to Paragraph 26 of the SAC, Defendants affirmatively Document Number:1117314 9 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 10 of 44 1 allege that said Paragraph contains jurisdictional and venue allegations that present 2 legal conclusions and questions of law to be determined solely by the Court, to 3 which no response is required. To the extent a response is required, Defendants 4 admit that Officer Browder is a citizen of the United States of America and that 5 venue is proper in the Southern District of California. 6 admitted, Defendants deny, generally and specifically, each, all and every 7 allegation contained in said Paragraph. 8 27. Except as expressly Responding to Paragraph 27 of the SAC, Defendants affirmatively 9 allege that said Paragraph contains legal conclusions and argument, to which no 10 answer is required. To the extent a response is required, Defendants admit that the 11 SDPD is a department of the City of San Diego, that the City of San Diego is a 12 municipality, and that a municipality is generally responsible for the actions of its 13 police officers in the course and scope of their employment. Except as expressly 14 admitted, Defendants deny, generally and specifically, each, all and every 15 allegation contained in said Paragraph, and specifically deny any unlawful, 16 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 17 agents, employees, officials, officers, offices, agencies, departments or divisions of 18 the City of San Diego. 19 28. Responding to Paragraph 28 of the SAC, Defendants affirmatively 20 allege that said Paragraph contains jurisdictional and venue allegations that present 21 legal conclusions and questions of law to be determined solely by the Court, to 22 which no response is required. To the extent a response is required, Defendants 23 admit that Chief Zimmerman is the Chief of the SDPD and a citizen of the United 24 States of America and that venue is proper in the Southern District of California. 25 Except as expressly admitted, Defendants deny, generally and specifically, each, all 26 and every allegation contained in said Paragraph. 27 28 29. Responding to Paragraph 29 of the SAC, Defendants are without knowledge or information sufficient to form a belief as to the truth of the Document Number:1117314 10 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 11 of 44 1 allegations therein contained, and based thereon, deny, generally and specifically, 2 each, all and every allegation contained in said Paragraph. 3 30. Responding to Paragraph 30 of the SAC, Defendants admit that 4 Plaintiffs in this action allege violations of their civil rights under 42 U.S.C. § 1983, 5 the Fourth and Fourteenth Amendments to the United States Constitution, and state 6 law. Except as expressly admitted, Defendants deny, generally and specifically, 7 each, all and every allegation contained in said Paragraph, and specifically deny 8 any unlawful, unconstitutional, or otherwise wrongful conduct on the part of 9 Defendants, or any agents, employees, officials, officers, offices, agencies, 10 11 departments or divisions of the City of San Diego. 31. Responding to Paragraph 31 of the SAC, Defendants admit that 12 Plaintiffs purport to seek the relief alleged in said Paragraph. Except as expressly 13 admitted, Defendants deny, generally and specifically, each, all and every 14 allegation contained in said Paragraph, specifically deny any unlawful, 15 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 16 agents, employees, officials, officers, offices, agencies, departments or divisions of 17 the City of San Diego, and specifically deny that Plaintiffs are entitled to any relief 18 whatsoever. 19 32. Responding to Paragraph 32 of the SAC, Defendants affirmatively 20 allege that said Paragraph contains venue allegations that present legal conclusions 21 and questions of law to be determined solely by the Court, to which no response is 22 required. To the extent a response is required, Defendants admit that venue is 23 proper in this Court. Except as expressly admitted, Defendants deny, generally and 24 specifically, each, all and every allegation contained in said Paragraph, specifically 25 deny any unlawful, unconstitutional, or otherwise wrongful conduct on the part of 26 Defendants, or any agents, employees, officials, officers, offices, agencies, 27 departments or divisions of the City of San Diego, and specifically deny that 28 Plaintiffs are entitled to any relief whatsoever. Document Number:1117314 11 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 12 of 44 1 33. Responding to Paragraph 33 of the SAC, Defendants affirmatively 2 allege that they are without knowledge or information sufficient to form a belief as 3 to the truth of the allegations therein contained, and based thereon, deny, generally 4 and specifically, each, all and every allegation contained in said Paragraph. 5 34. Responding to Paragraph 34 of the SAC, Defendants affirmatively 6 allege that they are without knowledge or information sufficient to form a belief as 7 to the truth of the allegations therein contained, and based thereon, deny, generally 8 and specifically, each, all and every allegation contained in said Paragraph. 9 35. Responding to Paragraph 35 of the SAC, Defendants affirmatively 10 allege that they are without knowledge or information sufficient to form a belief as 11 to the truth of the allegations therein contained, and based thereon, deny, generally 12 and specifically, each, all and every allegation contained in said Paragraph. 13 36. Responding to Paragraph 36 of the SAC, Defendants affirmatively 14 allege that they are without knowledge or information sufficient to form a belief as 15 to the truth of the allegations therein contained, and based thereon, deny, generally 16 and specifically, each, all and every allegation contained in said Paragraph. 17 37. Responding to Paragraph 37 of the SAC, Defendants affirmatively 18 allege that they are without knowledge or information sufficient to form a belief as 19 to the truth of the allegations therein contained, and based thereon, deny, generally 20 and specifically, each, all and every allegation contained in said Paragraph. 21 38. Responding to Paragraph 38 of the SAC, Defendants affirmatively 22 allege that they are without knowledge or information sufficient to form a belief as 23 to the truth of the allegations therein contained, and based thereon, deny, generally 24 and specifically, each, all and every allegation contained in said Paragraph. 25 39. Responding to Paragraph 39 of the SAC, Defendants affirmatively 26 allege that they are without knowledge or information sufficient to form a belief as 27 to the truth of the allegations therein contained, and based thereon, deny, generally 28 and specifically, each, all and every allegation contained in said Paragraph. Document Number:1117314 12 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 13 of 44 1 40. Responding to Paragraph 40 of the SAC, Defendants admit that 2 Plaintiffs’ Decedent was arrested numerous times for both violent and non-violent 3 offenses, and jailed for such crimes as burglary, larceny, vandalism, and willful 4 obstruction of law enforcement officers by use of threats or violence. Defendants 5 affirmatively allege that they are without knowledge or information sufficient to 6 form a belief as to the truth of the allegations therein contained, and based thereon, 7 deny, generally and specifically, each, all and every allegation contained in said 8 Paragraph. 9 41. Responding to Paragraph 41 of the SAC, Defendants affirmatively 10 allege that they are without knowledge or information sufficient to form a belief as 11 to the truth of the allegations therein contained, and based thereon, deny, generally 12 and specifically, each, all and every allegation contained in said Paragraph. 13 42. Responding to Paragraph 42 of the SAC, Defendants admit the 14 following: that Plaintiffs’ Decedent assaulted, battered, and threatened Plaintiffs 15 and other members of his family, as well as their associates; that Plaintiffs and 16 various other family members and associates called the police numerous times 17 seeking protection from him. Defendants affirmatively allege that they are without 18 knowledge or information sufficient to form a belief as to the truth of the remaining 19 allegations therein contained, and based thereon, deny, generally and specifically, 20 each, all and every allegation contained in said Paragraph. 21 43. Responding to Paragraph 43 of the SAC, Defendants admit that the 22 family of Plaintiffs’ Decedent sought at least two restraining orders against 23 Plaintiffs’ Decedent after he vandalized their property and assaulted, battered, and 24 threatened Plaintiffs and other members of their family. Defendants deny that the 25 family of Plaintiffs’ Decedent had to be told by the police or anyone else that they 26 needed protection from Plaintiffs’ Decedent, or that they sought their restraining 27 orders against him because the police advised them to do so. 28 affirmatively allege that they are without knowledge or information sufficient to Document Number:1117314 Defendants 13 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 14 of 44 1 form a belief as to the truth of the remaining allegations therein contained, and 2 based thereon, deny, generally and specifically, each, all and every allegation 3 contained in said Paragraph. 4 44. Responding to Paragraph 44 of the SAC, Defendants admit that around 5 midnight on the morning of April 30, 2015, Plaintiffs’ Decedent was walking 6 toward, menacing, and chasing after victims with a knife or knife-like object in and 7 around the Hi-Lite Bookstore at 3203 Hancock Street, San Diego, California, and a 8 nearby nude entertainment club. Defendants are without knowledge or information 9 sufficient to form a belief as to the truth of the remainder of the allegations therein 10 contained, and based thereon, deny, generally and specifically, each, all and every 11 remaining allegation contained in said Paragraph. 12 45. Responding to Paragraph 45 of the SAC, Defendants admit that shortly 13 after midnight on the morning of April 30, 2015, the SDPD received a 911 call in 14 which the caller reported that a male at or around the Hi-Lite Bookstore was 15 threatening people with a knife; that the SDPD responded by dispatching officers to 16 the scene; that Officer Browder was the first officer to arrive at the scene, shortly 17 after midnight; and that Officer Browder drove his car partway into the alley 18 adjacent to the bookstore. 19 generally and specifically, each, all and every allegation contained in said 20 Paragraph, specifically deny any unlawful, unconstitutional, or otherwise wrongful 21 conduct on the part of Defendants, or any agents, employees, officials, officers, 22 offices, agencies, departments or divisions of the City of San Diego, and 23 specifically deny that Plaintiffs are entitled to any relief whatsoever. 24 46. Except as expressly admitted, Defendants deny, Responding to Paragraph 46 of the SAC, Defendants admit the 25 following: that as Officer Browder’s marked black and white police cruiser neared 26 the Hi-Lite Bookstore, Plaintiffs’ Decedent emerged from the shadows of an alley 27 near the bookstore about 75 to 100 feet from Officer Browder, crossed the alley 28 toward Officer Browder, and headed purposefully, aggressively, and directly for Document Number:1117314 14 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 15 of 44 1 Officer Browder; and that Officer Browder illuminated his car’s high beams after 2 Plaintiffs’ Decedent started his approach toward the car. Except as expressly 3 admitted, Defendants deny, generally and specifically, each, all and every 4 remaining allegation contained in said Paragraph, and specifically deny any 5 unlawful, unconstitutional, or otherwise wrongful conduct on the part of 6 Defendants, or any agents, employees, officials, officers, offices, agencies, 7 departments or divisions of the City of San Diego. 8 47. Responding to the allegations of Paragraph 47 of the SAC that Officer 9 Browder did not turn on his flashing lights or siren, Defendants admit that rather 10 than consider whether to activate his car’s red and blue lights or siren, Officer 11 Browder was focused on (1) what he saw and heard in the alley, particularly the 12 imminent threat presented by Plaintiffs’ Decedent, (2) radio communications 13 regarding the knife threats made by Plaintiffs’ Decedent, and (3) defending himself, 14 in that: Plaintiffs’ Decedent brandished a metallic pen that appeared to be a knife; 15 Officer Browder saw the metallic pen and reasonably believed it was a knife; and 16 Officer Browder believed Plaintiffs’ Decedent was going to stab him. Responding 17 to the allegations of Paragraph 47 of the SAC that Plaintiffs’ Decedent “probably 18 did not know he was approaching a police officer” Defendant denies the allegation 19 to the extent that: Plaintiffs’ Decedent knew or reasonably should have known that 20 one of the victims he had chased or threatened with a knife just moments before 21 would call the police; Plaintiffs’ Decedent knew or reasonably should have known 22 that the police would respond to his victims’ call for help; Plaintiffs’ Decedent 23 could see that Officer Browder’s car was a marked black and white police cruiser 24 from the time the car approached the alley on the street until it illuminated 25 Plaintiffs’ Decedent, and possibly later; from before the moment Officer Browder 26 pulled into the alley until the moment he fired his sidearm, Plaintiffs’ Decedent 27 knew or should have known from Officer Browder’s movements, actions, uniform, 28 car, words, tone, and volume that he was a police officer; by the time Officer Document Number:1117314 15 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 16 of 44 1 Browder was able to react to the actions of Plaintiffs’ Decedent by getting out of his 2 car, Plaintiff was approaching a point approximately 25 feet from Officer Browder; 3 Officer Browder yelled at Plaintiffs’ Decedent to “stop” and to “drop it” or “drop 4 the knife,” drew his sidearm, and illuminated Plaintiffs’ Decedent with his 5 flashlight as Plaintiffs’ Decedent approached even closer; Plaintiffs’ Decedent kept 6 moving toward Officer Browder until the moment the officer drew his sidearm and 7 fired. Except as expressly admitted, Defendants deny, generally and specifically, 8 each, all and every remaining allegation contained in said Paragraph, and 9 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 10 the part of Defendants, or any agents, employees, officials, officers, offices, 11 agencies, departments or divisions of the City of San Diego. 12 48. Responding to Paragraph 48 of the SAC, Defendants admit the 13 following: that by the time Officer Browder was able to react to the actions of 14 Plaintiffs’ Decedent by getting out of his car, Plaintiff was approaching a point 15 approximately 25 feet from Officer Browder; that Officer Browder drew his 16 sidearm when Plaintiffs’ Decedent approached closer; that immediately upon 17 drawing his sidearm, Officer Browder fired, hitting Plaintiffs’ Decedent once in the 18 chest; and that Plaintiffs’ Decedent did not stop moving toward Officer Browder 19 before the officer drew his sidearm and fired. 20 Defendants deny, generally and specifically, each, all and every remaining 21 allegation contained in said Paragraph, and specifically deny any unlawful, 22 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 23 agents, employees, officials, officers, offices, agencies, departments or divisions of 24 the City of San Diego. 25 49. Except as expressly admitted, Responding to allegations of Paragraph 49 of the SAC that Plaintiffs’ 26 Decedent did not make any aggressive movements or threatening gestures and was 27 not armed, Defendants deny such allegations to the following extent: that Plaintiffs’ 28 Decedent knew or should have known that Officer Browder was a police officer; Document Number:1117314 16 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 17 of 44 1 that as Officer Browder’s marked black and white police cruiser neared the Hi-Lite 2 Bookstore, Plaintiffs’ Decedent emerged from the shadows of an alley near the 3 bookstore about 75 to 100 feet from Officer Browder, crossed the alley toward 4 Officer Browder, and headed purposefully, aggressively, and directly for Officer 5 Browder; that Plaintiffs’ Decedent had a custom and practice of threatening and 6 assaulting others with knives; that Plaintiffs’ Decedent had a custom and practice of 7 threatening and assaulting others with pens, which he held like knives and 8 represented to be knives; that as he approached Officer Browder, Plaintiffs’ 9 Decedent held a silver and blue metallic pen that appeared to be a knife; that as he 10 approached Officer Browder, Plaintiffs’ Decedent brandished the pen like a knife; 11 that Plaintiffs’ Decedent had no writing paper in his possession and no legitimate 12 reason to be brandishing a pen like a knife; that Officer Browder saw the metallic 13 pen and the way Plaintiffs’ Decedent wielded it, and reasonably believed that it was 14 a knife; that Plaintiffs’ Decedent had chased and threatened to kill one victim with a 15 knife or pen in the same alley just minutes before; that Plaintiffs’ Decedent had 16 menaced a second victim just minutes before in a nearby nude entertainment club 17 by brandishing the knife or pen; that by the time Officer Browder was able to react 18 to the actions of Plaintiffs’ Decedent by getting out of his car, Plaintiff was 19 approaching close to Officer Browder; that Officer Browder yelled at Plaintiffs’ 20 Decedent to “stop” and “drop it” or “drop the knife,” drew his sidearm, and 21 illuminated Plaintiffs’ Decedent with his flashlight when Plaintiffs’ Decedent 22 approached even closer; that immediately upon drawing his sidearm, Officer 23 Browder fired, hitting Plaintiffs’ Decedent once in the chest; and that Plaintiffs’ 24 Decedent did not stop moving toward Officer Browder before the moment the 25 officer drew his sidearm and fired. Except as expressly admitted, Defendants deny, 26 generally and specifically, each, all and every remaining allegation contained in 27 said Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 28 wrongful conduct on the part of Defendants, or any agents, employees, officials, Document Number:1117314 17 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 18 of 44 1 2 officers, offices, agencies, departments or divisions of the City of San Diego. 50. Responding to Paragraph 50 of the SAC, Defendants deny that 3 Plaintiffs’ Decedent was shot without warning, in that: Plaintiffs’ Decedent knew or 4 reasonably should have known that one of the victims he had chased and threatened 5 to kill with a knife or pen just moments before would call the police; Plaintiffs’ 6 Decedent knew or reasonably should have known that the police would respond to 7 his victim’s call for help; Plaintiffs’ Decedent could see that Officer Browder’s car 8 was a marked black and white police cruiser from the time the car drove down the 9 street toward the alley until it illuminated Plaintiffs’ Decedent, and possibly later; 10 from before the moment Officer Browder pulled into the alley until the moment he 11 fired his sidearm, Plaintiffs’ Decedent knew or should have known from Officer 12 Browder’s movements, actions, uniform, car, words, tone, and volume that he was a 13 police officer; that as Officer Browder’s marked black and white police cruiser 14 neared the Hi-Lite Bookstore, Plaintiffs’ Decedent emerged from the shadows of an 15 alley near the bookstore about 75 to 100 feet from Officer Browder, crossed the 16 alley toward Officer Browder, and headed purposefully, aggressively, and directly 17 for Officer Browder; Plaintiffs’ Decedent had a custom and practice of threatening 18 and assaulting victims with pens, which he held like knives and represented to be 19 knives; as he approached Officer Browder, Plaintiffs’ Decedent held a silver and 20 blue metallic pen that appeared to be a knife; as he approached Officer Browder, 21 Plaintiffs’ Decedent brandished the pen like a knife; Plaintiffs’ Decedent had no 22 writing paper in possession and no legitimate reason to be holding a pen like that; 23 that Officer Browder saw the metallic pen and the way Plaintiffs’ Decedent wielded 24 it, and reasonably believed that it was a knife; that Plaintiffs’ Decedent intended, 25 knew, or reasonably should have known that Officer Browder believed the metallic 26 pen to be a knife; Plaintiffs’ Decedent knew or reasonably should have known that 27 that Officer Browder would defend himself against what appeared to be knife 28 attack; by the time Officer Browder was able to react to the actions of Plaintiffs’ Document Number:1117314 18 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 19 of 44 1 Decedent by getting out of his car, Plaintiff was approaching closer; Officer 2 Browder yelled at Plaintiffs’ Decedent to “stop,” “drop it” or “drop the knife,” drew 3 his sidearm, and illuminated Plaintiffs’ Decedent with his flashlight when 4 Plaintiffs’ Decedent was approaching yet closer; immediately upon drawing his 5 sidearm, Officer Browder fired, hitting Plaintiffs’ Decedent once in the chest; and 6 Plaintiffs’ Decedent did not stop moving toward Officer Browder before the 7 moment the officer drew his sidearm and fired. Except as expressly admitted, 8 Defendants deny, generally and specifically, each, all and every remaining 9 allegation contained in said Paragraph, and specifically deny any unlawful, 10 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 11 agents, employees, officials, officers, offices, agencies, departments or divisions of 12 the City of San Diego. 13 51. Responding to Paragraph 51 of the SAC, Defendants affirmatively 14 allege that said Paragraph contains improper argument and hyperbole to which no 15 response is required. To the extent a response required, Defendants admit the 16 following: that Plaintiffs’ Decedent had a custom and practice of arming himself, 17 threatening, and assaulting others with knives; that Plaintiffs’ Decedent had a 18 custom and practice of arming himself, threatening, and assaulting others with pens, 19 which he held like knives and represented to be knives; that consistent with his 20 custom of practice, Plaintiffs’ Decedent approached Officer Browder armed with a 21 silver and blue metallic pen that he represented to be a knife; that as he approached 22 Officer Browder, Plaintiffs’ Decedent brandished the pen like a knife; that 23 Plaintiffs’ Decedent had no writing paper in possession and no legitimate reason to 24 be holding a pen like that; that Officer Browder saw the metallic pen and the way 25 Plaintiffs’ Decedent wielded it, and reasonably believed that it was a knife; that 26 Plaintiffs’ Decedent had chased and threatened to kill a victim with a knife or pen 27 in the same alley just minutes before; that Plaintiffs’ Decedent had threated a 28 second victim just minutes before in a nearby nude entertainment club by Document Number:1117314 19 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 20 of 44 1 brandishing the knife or pen; and that Officer Browder yelled at Plaintiffs’ 2 Decedent to “stop,” “drop it” or “drop the knife.” Except as expressly admitted, 3 Defendants deny, generally and specifically, each, all and every remaining 4 allegation contained in said Paragraph, and specifically deny any unlawful, 5 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 6 agents, employees, officials, officers, offices, agencies, departments or divisions of 7 the City of San Diego. 8 52. Responding to Paragraph 52 of the SAC, Defendants admit the 9 following: that Plaintiffs’ Decedent had a custom and practice of arming himself, 10 threatening, and assaulting others with knives; that Plaintiffs’ Decedent had a 11 custom and practice of arming himself, threatening, and assaulting others with pens, 12 which he held like knives and represented to be knives; that consistent with his 13 custom of practice, Plaintiffs’ Decedent approached Officer Browder armed with a 14 silver and blue metallic pen that he represented to be a knife; that as he approached 15 Officer Browder, Plaintiffs’ Decedent brandished the pen like a knife; that 16 Plaintiffs’ Decedent had no writing paper in possession and no legitimate reason to 17 be holding a pen like that; that Officer Browder saw the metallic pen and the way 18 Plaintiffs’ Decedent wielded it, and reasonably believed that it was a knife; that 19 Plaintiffs’ Decedent had chased and threatened to kill a victim with a knife or pen 20 in the same alley just minutes before; that Plaintiffs’ Decedent had threated a 21 second victim just minutes before in a nearby nude entertainment club by 22 brandishing the knife or pen; and that Officer Browder yelled at Plaintiffs’ 23 Decedent to “stop,” “drop it” or “drop the knife.” Except as expressly admitted, 24 Defendants deny, generally and specifically, each, all and every remaining 25 allegation contained in said Paragraph, and specifically deny any unlawful, 26 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 27 agents, employees, officials, officers, offices, agencies, departments or divisions of 28 the City of San Diego. Document Number:1117314 20 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 21 of 44 1 53. Responding to Paragraph 53 of the SAC, Defendants admit the 2 following: SDPD investigators accurately measured and reported the distance 3 between Officer Browder and Plaintiffs’ Decedent at the moment the officer fired; 4 the percipient witnesses gave accounts of the incident consistent with what the 5 investigators determined. 6 generally and specifically, each, all and every remaining allegation contained in 7 said Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 8 wrongful conduct on the part of Defendants, or any agents, employees, officials, 9 officers, offices, agencies, departments or divisions of the City of San Diego. 10 54. Except as expressly admitted, Defendants deny, Responding to Paragraph 54 of the SAC, Defendants admit the 11 following: the SDPD investigators properly investigated the shooting, including, 12 among other things, interviewing the officer involved and percipient witnesses, 13 analyzing video and other evidence, taking measurements, and gathering and 14 analyzing other evidence. 15 generally and specifically, each, all and every remaining allegation contained in 16 said Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 17 wrongful conduct on the part of Defendants, or any agents, employees, officials, 18 officers, offices, agencies, departments or divisions of the City of San Diego. 19 55. Except as expressly admitted, Defendants deny, Responding to Paragraph 55 of the SAC, Defendants admit the 20 following: that SDPD investigators properly investigated the shooting; that SDPD 21 investigators properly questioned Officer Browder apart from others; that Officer 22 Browder received appropriate instructions; that Officer Browder believed the pen 23 wielded by Plaintiffs’ Decedent was a knife; that Officer Browder was asked and 24 truthfully answered that he did not see any other weapon at the scene; and that after 25 the officer had answered several questions, his attorney informed the investigating 26 officers that the interview was done; and that blood testing was neither required of 27 nor performed on Officer Browder the morning of the shooting. 28 expressly admitted, Defendants deny, generally and specifically, each, all and every Document Number:1117314 Except as 21 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 22 of 44 1 allegation contained in said Paragraph, and specifically deny any unlawful, 2 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 3 agents, employees, officials, officers, offices, agencies, departments or divisions of 4 the City of San Diego. 5 56. Responding to Paragraph 56 of the SAC, Defendants admit the 6 following: that a few days after the investigators’ initial questioning of Officer 7 Browder on the morning of the shooting, Officer Browder’s attorney requested a 8 copy of the KECO video to review with the officer; that investigators resumed their 9 questioning of Officer Browder a few days after the investigators’ initial 10 questioning; that investigators asked appropriate questions designed to elicit the 11 facts of the incident; and that Officer Browder gave a truthful account of the 12 incident. 13 specifically, each, all and every allegation contained in said Paragraph, and 14 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 15 the part of Defendants, or any agents, employees, officials, officers, offices, 16 agencies, departments or divisions of the City of San Diego. 17 57. Except as expressly admitted, Defendants deny, generally and Responding to Paragraph 57 of the SAC, Defendants affirmatively 18 allege that said Paragraph contains improper argument and hyperbole to which no 19 response is required. To the extent a response required, Defendants deny, generally 20 and specifically, each, all and every allegation contained in said Paragraph, and 21 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 22 the part of Defendants, or any agents, employees, officials, officers, offices, 23 agencies, departments or divisions of the City of San Diego. 24 58. Responding to Paragraph 58 of the SAC, Defendants admit the 25 following: Officer Browder was equipped with a body-worn camera at the time of 26 the shooting; that it was not activated at the time of the shooting; that the then- 27 effective SDPD Procedure regarding body-worn cameras anticipated did not require 28 the camera’s activation under the circumstances; and that Officer Browder was not Document Number:1117314 22 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 23 of 44 1 disciplined, because he violated no policy regarding body-worn cameras. Except as 2 expressly admitted, Defendants deny, generally and specifically, each, all and every 3 allegation contained in said Paragraph, and specifically deny any unlawful, 4 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 5 agents, employees, officials, officers, offices, agencies, departments or divisions of 6 the City of San Diego. 7 59. Responding to Paragraph 59 of the SAC, Defendants affirmatively 8 allege that said Paragraph contains improper argument and hyperbole to which no 9 response is required. To the extent a response required, Defendants admit the 10 following: that the KECO Video contains poor-quality footage of the shooting from 11 one perspective; that the video does not show the demeanor of Plaintiffs’ Decedent 12 or many of the other indicators that revealed how great a threat he posed to Officer 13 Browder; that the video does not include audio of the commands Officer Browder 14 shouted at Plaintiffs’ Decedent -- which were heard by numerous witnesses and 15 would have prevented the shooting if Plaintiffs’ Decedent had simply heeded them; 16 that the video supports Defendants’ understanding of the incident; that the SDPD’s 17 previous decisions regarding the video’s release were based on its consistently 18 applied policies on such releases, and not on whether the video supported a 19 particular “version” of events; and that modification of the protective order 20 currently in place to allow the video’s release to Internet sites and various media 21 outlets would have the effect described in papers filed by Defendants with the Court 22 in this matter. 23 60. Responding to Paragraph 60 of the SAC, Defendants affirmatively 24 allege that said Paragraph contains improper argument and hyperbole to which no 25 response is required. To the extent a response required, Defendants deny, generally 26 and specifically, each, all and every allegation contained in said Paragraph, and 27 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 28 the part of Defendants, or any agents, employees, officials, officers, offices, Document Number:1117314 23 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 24 of 44 1 2 agencies, departments or divisions of the City of San Diego. 61. Responding to Paragraph 61 of the SAC, Defendants incorporate 3 herein their responses to the preceding paragraphs of this Answer. To the extent 4 further response is required to the allegations contained in said Paragraph, 5 Defendants deny the allegations contained therein. 6 62. Responding to Paragraph 62 of the SAC, Defendants affirmatively 7 allege that said Paragraph contains jurisdictional allegations that present legal 8 conclusions and questions of law to be determined solely by the Court, to which no 9 response is required. To the extent a response is required, Defendants admit that 10 Plaintiffs purport to seek relief in this action pursuant to the various laws cited in 11 said Paragraph. Except as expressly admitted, Defendants deny, generally and 12 specifically, each, all and every allegation contained in said Paragraph, and 13 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 14 the part of Defendants, or any agents, employees, officials, officers, offices, 15 agencies, departments or divisions of the City of San Diego. 16 63. Responding to Paragraph 63 of the SAC, Defendants affirmatively 17 allege that said Paragraph contains jurisdictional allegations that present legal 18 conclusions and questions of law to be determined solely by the Court, to which no 19 response is required. To the extent a response is required, Defendants are without 20 knowledge or information sufficient to form a belief as to the truth of the 21 allegations therein contained, and based thereon, deny, generally and specifically, 22 each, all and every allegation contained in said Paragraph. 23 64. Responding to Paragraph 64 of the SAC, Defendants affirmatively 24 allege that said Paragraph contains legal conclusions and legal argument, to which 25 no answer is required. To the extent a response is required, Defendants admit that 26 Plaintiffs’ Decedent died from injuries sustained when Officer Browder shot him, 27 and that firing some weapons can constitute the use of deadly force in some 28 situations. Defendants deny the following: that deadly force was unwarranted in Document Number:1117314 24 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 25 of 44 1 this case; that Plaintiffs’ Decedent was unarmed; and that Plaintiffs’ Decedent did 2 not appear to, and did not, threaten Officer Browder and others with deadly force. 3 Except as expressly admitted, Defendants deny, generally and specifically, each, all 4 and every remaining allegation contained in said Paragraph, and specifically deny 5 any unlawful, unconstitutional, or otherwise wrongful conduct on the part of 6 Defendants, or any agents, employees, officials, officers, offices, agencies, 7 departments or divisions of the City of San Diego. 8 65. Responding to Paragraph 65 of the SAC, Defendants deny, generally 9 and specifically, each, all and every allegation contained in said Paragraph, and 10 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 11 the part of Defendants, or any agents, employees, officials, officers, offices, 12 agencies, departments or divisions of the City of San Diego. 13 66. Responding to Paragraph 66 of the SAC, Defendants affirmatively 14 allege that said Paragraph contains legal conclusions and argument, to which no 15 answer is required. To the extent a response is required, Defendants admit that 16 Officer Browder acted under color of law and within the course and scope of his 17 employment with the City of San Diego and the SDPD in all his dealings with 18 Plaintiffs’ Decedent, and that a municipality is generally responsible for the actions 19 of its police officers in the course and scope of their employment. Except as 20 expressly admitted, Defendants deny, generally and specifically, each, all and every 21 allegation contained in said Paragraph, and specifically deny any unlawful, 22 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 23 agents, employees, officials, officers, offices, agencies, departments or divisions of 24 the City of San Diego. 25 67. Responding to Paragraph 67 of the SAC, Defendants affirmatively 26 allege that said Paragraph contains legal conclusions and argument, to which no 27 answer is required. To the extent a response is required, Defendants admit that 28 Officer Browder fired a single round from his sidearm, striking Plaintiffs’ Decedent Document Number:1117314 25 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 26 of 44 1 in the chest; and that Plaintiffs’ Decedent died from his gunshot injury. Defendants 2 are without knowledge or information sufficient to form a belief as to the truth of 3 the remainder of the allegations therein contained, and based thereon, deny, 4 generally and specifically, each, all and every remaining allegation contained in 5 said Paragraph. 6 68. Responding to Paragraph 68 of the SAC, Defendants deny, generally 7 and specifically, each, all and every allegation contained in said Paragraph, and 8 specifically deny that the Estate of Plaintiffs’ Decedent is entitled to any relief 9 whatsoever. 10 69. Responding to Paragraph 69 of the SAC, Defendants deny, generally 11 and specifically, each, all and every allegation contained in said Paragraph, and 12 specifically deny that the Estate of Plaintiffs’ Decedent is entitled to any relief 13 whatsoever, and specifically deny any unlawful, unconstitutional, or otherwise 14 wrongful conduct on the part of Defendants, or any agents, employees, officials, 15 officers, offices, agencies, departments or divisions of the City of San Diego. 16 70. Responding to Paragraph 70 of the SAC, Defendants incorporate 17 herein their responses to the preceding paragraphs of this Answer. To the extent 18 further response is required to the allegations contained in said Paragraph, 19 Defendants deny the allegations contained therein. 20 71. Responding to Paragraph 71 of the SAC, Defendants affirmatively 21 allege that said Paragraph contains jurisdictional allegations that present legal 22 conclusions and questions of law to be determined solely by the Court, to which no 23 response is required. To the extent a response is required, Defendants admit that 24 Plaintiffs purport to seek relief in this action pursuant to the various laws cited in 25 said Paragraph. Except as expressly admitted, Defendants deny, generally and 26 specifically, each, all and every allegation contained in said Paragraph, and 27 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 28 the part of Defendants, or any agents, employees, officials, officers, offices, Document Number:1117314 26 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 27 of 44 1 2 agencies, departments or divisions of the City of San Diego. 72. Responding to Paragraph 72 of the SAC, Defendants affirmatively 3 allege that said Paragraph contains legal conclusions and legal argument, to which 4 no answer is required. To the extent a response is required, Defendants admit that 5 Plaintiffs’ Decedent died from injuries sustained when Officer Browder shot him, 6 and that firing some weapons can constitute the use of deadly force in some 7 situations. Defendants deny the following: that deadly force was unwarranted in 8 this case; that Plaintiffs’ Decedent was unarmed; and that Plaintiffs’ Decedent did 9 not appear to, and did not, threaten Officer Browder and others with deadly force. 10 Except as expressly admitted, Defendants deny, generally and specifically, each, all 11 and every remaining allegation contained in said Paragraph, and specifically deny 12 any unlawful, unconstitutional, or otherwise wrongful conduct on the part of 13 Defendants, or any agents, employees, officials, officers, offices, agencies, 14 departments or divisions of the City of San Diego 15 73. Responding to Paragraph 73 of the SAC, Defendants affirmatively 16 allege that said Paragraph contains legal conclusions, questions of law and 17 Plaintiffs’ theory of the case, to which no answer is required. To the extent a 18 response is required, Defendants are without knowledge or information sufficient to 19 form a belief as to the truth of the allegations therein contained, and based thereon, 20 deny, generally and specifically, each, all and every allegation contained in said 21 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 22 wrongful conduct on the part of Defendants, or any agents, employees, officials, 23 officers, offices, agencies, departments or divisions of the City of San Diego. 24 74. Responding to Paragraph 74 of the SAC, Defendants affirmatively 25 allege that said Paragraph contains legal conclusions and argument, to which no 26 answer is required. To the extent a response is required, Defendants admit that 27 Officer Browder acted under color of law and within the course and scope of his 28 employment with the City of San Diego and the SDPD in all his dealings with Document Number:1117314 27 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 28 of 44 1 Plaintiffs’ Decedent, and that a municipality is generally responsible for the actions 2 of its police officers in the course and scope of their employment. Except as 3 expressly admitted, Defendants deny, generally and specifically, each, all and every 4 allegation contained in said Paragraph, and specifically deny any unlawful, 5 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 6 agents, employees, officials, officers, offices, agencies, departments or divisions of 7 the City of San Diego. 8 75. Responding to Paragraph 75 of the SAC, Defendants affirmatively 9 allege that said Paragraph contains legal conclusions, questions of law and 10 Plaintiffs’ theory of the case, to which no answer is required. To the extent a 11 response is required, Defendants admit that Officer Browder fired a single round 12 from his sidearm, striking Plaintiffs’ Decedent in the chest; and that Plaintiffs’ 13 Decedent died from his gunshot injury. Except as expressly admitted, Defendants 14 deny, generally and specifically, each, all and every allegation contained in said 15 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 16 wrongful conduct on the part of Defendants, or any agents, employees, officials, 17 officers, offices, agencies, departments or divisions of the City of San Diego. 18 76. Responding to Paragraph 76 of the SAC, Defendants deny, generally 19 and specifically, each, all and every allegation contained in said Paragraph, and 20 specifically deny that Plaintiffs are entitled to any relief whatever. 21 77. Responding to Paragraph 77 of the SAC, Defendants deny, generally 22 and specifically, each, all and every allegation contained in said Paragraph, 23 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 24 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 25 the part of Defendants, or any agents, employees, officials, officers, offices, 26 agencies, departments or divisions of the City of San Diego. 27 28 78. Responding to Paragraph 78 of the SAC, Defendants incorporate herein their responses to the preceding paragraphs of this Answer. To the extent Document Number:1117314 28 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 29 of 44 1 further response is required to the allegations contained in said Paragraph, 2 Defendants deny the allegations contained therein. 3 79. Responding to Paragraph 79 of the SAC, Defendants affirmatively 4 allege that said Paragraph contains improper argument and hyperbole to which no 5 response is required. To the extent a response required, Defendants deny, generally 6 and specifically, each, all and every allegation contained in said Paragraph, 7 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 8 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 9 the part of Defendants, or any agents, employees, officials, officers, offices, 10 11 agencies, departments or divisions of the City of San Diego. 80. Responding to Paragraph 80 of the SAC, Defendants affirmatively 12 allege that said Paragraph contains improper argument and hyperbole to which no 13 response is required. To the extent a response required, Defendants deny, generally 14 and specifically, each, all and every allegation contained in said Paragraph, 15 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 16 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 17 the part of Defendants, or any agents, employees, officials, officers, offices, 18 agencies, departments or divisions of the City of San Diego. 19 81. Responding to Paragraph 81 of the SAC, Defendants affirmatively 20 allege that said Paragraph contains improper argument and hyperbole to which no 21 response is required. To the extent a response required, Defendants deny, generally 22 and specifically, each, all and every allegation contained in said Paragraph, 23 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 24 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 25 the part of Defendants, or any agents, employees, officials, officers, offices, 26 agencies, departments or divisions of the City of San Diego. 27 28 82. Responding to Paragraph 82 of the SAC, Defendants deny, generally and specifically, each, all and every allegation contained in said Paragraph, Document Number:1117314 29 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 30 of 44 1 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 2 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 3 the part of Defendants, or any agents, employees, officials, officers, offices, 4 agencies, departments or divisions of the City of San Diego. 5 83. Responding to Paragraph 83 of the SAC, Defendants deny, generally 6 and specifically, each, all and every allegation contained in said Paragraph, 7 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 8 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 9 the part of Defendants, or any agents, employees, officials, officers, offices, 10 11 agencies, departments or divisions of the City of San Diego. 84. Responding to Paragraph 84 of the SAC, Defendants incorporate 12 herein their responses to the preceding paragraphs of this Answer. To the extent 13 further response is required to the allegations contained in said Paragraph, 14 Defendants deny the allegations contained therein. 15 85. Responding to Paragraph 85 of the SAC, Defendants admit that as the 16 Chief of Police, Chief Zimmerman has overall responsibility for her department, 17 including the investigation of the shooting at issue in this case. Except as expressly 18 admitted, Defendants deny, generally and specifically, each, all and every 19 allegation contained in said Paragraph, and specifically deny any unlawful, 20 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 21 agents, employees, officials, officers, offices, agencies, departments or divisions of 22 the City of San Diego. 23 86. Responding to Paragraph 86 of the SAC, Defendants affirmatively 24 allege that said Paragraph contains improper argument and hyperbole to which no 25 response is required. To the extent a response required, Defendants admit that the 26 City of San Diego voluntarily requested an audit of the SDPD in 2014, which was 27 completed in March 2015. The audit requested by the City of San Diego resulted in 28 numerous recommendations to handle perceived gaps in policies and practices Document Number:1117314 30 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 31 of 44 1 regarding the handling of misconduct investigations and hiring practices. Except as 2 expressly admitted, Defendants deny, generally and specifically, each, all and every 3 allegation contained in said Paragraph, and specifically deny any unlawful, 4 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 5 agents, employees, officials, officers, offices, agencies, departments or divisions of 6 the City of San Diego. 7 87. Responding to Paragraph 87 of the SAC, Defendants affirmatively 8 allege that said Paragraph contains improper argument and hyperbole to which no 9 response is required. To the extent a response required, Defendants admit that 10 Chief Zimmerman and the SDPD have diligently attempted to implement the 11 recommendations of the auditors and otherwise improve the SDPD, and have 12 achieved a measure of success – though this is an ongoing effort. Except as 13 expressly admitted, Defendants deny, generally and specifically, each, all and every 14 allegation contained in said Paragraph, and specifically deny any unlawful, 15 unconstitutional, or otherwise wrongful conduct on the part of Defendants, or any 16 agents, employees, officials, officers, offices, agencies, departments or divisions of 17 the City of San Diego. 18 88. Responding to Paragraph 88 of the SAC, in exercising her overall 19 supervisorial responsibility over her department’s activities, including the 20 investigation of the shooting at issue in this case, Chief Zimmerman acted under 21 color of law. 22 specifically, each, all and every allegation contained in said Paragraph, and 23 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 24 the part of Defendants, or any agents, employees, officials, officers, offices, 25 agencies, departments or divisions of the City of San Diego. 26 89. Except as expressly admitted, Defendants deny, generally and Responding to Paragraph 89 of the SAC, Defendants deny, generally 27 and specifically, each, all and every allegation contained in said Paragraph, 28 specifically deny that Plaintiffs are entitled to any relief whatsoever, and Document Number:1117314 31 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 32 of 44 1 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 2 the part of Defendants, or any agents, employees, officials, officers, offices, 3 agencies, departments or divisions of the City of San Diego. 4 90. Responding to Paragraph 90 of the SAC, Defendants affirmatively 5 allege that said Paragraph contains improper argument and hyperbole to which no 6 response is required. To the extent a response required, Defendants deny, generally 7 and specifically, each, all and every allegation contained in said Paragraph, 8 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 9 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 10 the part of Defendants, or any agents, employees, officials, officers, offices, 11 agencies, departments or divisions of the City of San Diego. 12 91. Responding to Paragraph 91 of the SAC, Defendants deny, generally 13 and specifically, each, all and every allegation contained in said Paragraph, 14 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 15 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 16 the part of Defendants, or any agents, employees, officials, officers, offices, 17 agencies, departments or divisions of the City of San Diego. 18 92. Responding to Paragraph 92 of the SAC, Defendants incorporate 19 herein their responses to the preceding paragraphs of this Answer. To the extent 20 further response is required to the allegations contained in said Paragraph, 21 Defendants deny the allegations contained therein. 22 93. Responding to Paragraph 93 of the SAC, Defendants affirmatively 23 allege that said Paragraph contains jurisdictional allegations that present legal 24 conclusions and questions of law to be determined solely by the Court, to which no 25 response is required. To the extent a response is required, Defendants admit that 26 the constitutional provisions and statutes cited by Plaintiffs protect important rights 27 and interests. 28 specifically, each, all and every allegation contained in said Paragraph, and Except as expressly admitted, Defendants deny, generally and Document Number:1117314 32 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 33 of 44 1 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 2 the part of Defendants, or any agents, employees, officials, officers, offices, 3 agencies, departments or divisions of the City of San Diego. 4 94. Responding to Paragraph 94 of the SAC, Defendants deny, generally 5 and specifically, each, all and every allegation contained in said Paragraph, 6 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 7 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 8 the part of Defendants, or any agents, employees, officials, officers, offices, 9 agencies, departments or divisions of the City of San Diego. 10 95. Responding to Paragraph 95 of the SAC, Defendants deny, generally 11 and specifically, each, all and every allegation contained in said Paragraph, and 12 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 13 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 14 the part of Defendants, or any agents, employees, officials, officers, offices, 15 agencies, departments or divisions of the City of San Diego. 16 96. Responding to Paragraph 96 of the SAC, Defendants affirmatively 17 allege that said Paragraph contains legal conclusions and argument, to which no 18 answer is required. To the extent a response is required, Defendants admit that 19 Officer Browder acted within the course and scope of his employment with the City 20 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 21 generally responsible for the actions of its police officers in the course and scope of 22 their employment. Except as expressly admitted, Defendants deny, generally and 23 specifically, each, all and every allegation contained in said Paragraph, and 24 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 25 the part of Defendants, or any agents, employees, officials, officers, offices, 26 agencies, departments or divisions of the City of San Diego. 27 28 97. Responding to Paragraph 97 of the SAC, Defendants deny, generally and specifically, each, all and every allegation contained in said Paragraph, Document Number:1117314 33 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 34 of 44 1 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 2 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 3 the part of Defendants, or any agents, employees, officials, officers, offices, 4 agencies, departments or divisions of the City of San Diego. 5 98. Responding to Paragraph 98 of the SAC, Defendants incorporate 6 herein their responses to the preceding paragraphs of this Answer. To the extent 7 further response is required to the allegations contained in said Paragraph, 8 Defendants deny the allegations contained therein. 9 99. Responding to Paragraph 99 of the SAC, Defendants admits that 10 section 52.1 of the California Civil Code provides for various civil actions for 11 protection of rights, under the terms set forth in that section, and that section 52.3 12 sets forth prohibitions against certain conduct depriving persons of Constitutional 13 rights, privileges, or immunities. Except as expressly admitted, Defendants deny, 14 generally and specifically, each, all and every allegation contained in said 15 Paragraph. 16 100. Responding to Paragraph 100 of the SAC, Defendants admits that 17 section 52.1 of the California Civil Code provides for various civil actions for 18 protection of rights, under the terms set forth in that section, and that section 52.3 19 sets forth prohibitions against certain conduct depriving persons of Constitutional 20 rights, privileges, or immunities. Except as expressly admitted, Defendants deny, 21 generally and specifically, each, all and every allegation contained in said 22 Paragraph. 23 101. Responding to Paragraph 101 of the SAC, Defendants deny, generally 24 and specifically, each, all and every allegation contained in said Paragraph, 25 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 26 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 27 the part of Defendants, or any agents, employees, officials, officers, offices, 28 agencies, departments or divisions of the City of San Diego. Document Number:1117314 34 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 35 of 44 1 102. Responding to Paragraph 102 of the SAC, Defendants deny, generally 2 and specifically, each, all and every allegation contained in said Paragraph, 3 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 4 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 5 the part of Defendants, or any agents, employees, officials, officers, offices, 6 agencies, departments or divisions of the City of San Diego. 7 103. Responding to Paragraph 103 of the SAC, Defendants deny, generally 8 and specifically, each, all and every allegation contained in said Paragraph, 9 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 10 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 11 the part of Defendants, or any agents, employees, officials, officers, offices, 12 agencies, departments or divisions of the City of San Diego. 13 104. Responding to Paragraph 104 of the SAC, Defendants incorporate 14 herein their responses to the preceding paragraphs of this Answer. To the extent 15 further response is required to the allegations contained in said Paragraph, 16 Defendants deny the allegations contained therein. 17 105. Responding to Paragraph 105 of the SAC, Defendants deny, generally 18 and specifically, each, all and every allegation contained in said Paragraph, 19 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 20 the part of Defendants, or any agents, employees, officials, officers, offices, 21 agencies, departments or divisions of the City of San Diego. 22 106. Responding to Paragraph 106 of the SAC, Defendants deny, generally 23 and specifically, each, all and every allegation contained in said Paragraph, 24 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 25 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 26 the part of Defendants, or any agents, employees, officials, officers, offices, 27 agencies, departments or divisions of the City of San Diego. 28 107. Responding to Paragraph 107 of the SAC, Defendants deny, generally Document Number:1117314 35 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 36 of 44 1 and specifically, each, all and every allegation contained in said Paragraph, 2 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 3 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 4 the part of Defendants, or any agents, employees, officials, officers, offices, 5 agencies, departments or divisions of the City of San Diego. 6 108. Responding to Paragraph 108 of the SAC, Defendants affirmatively 7 allege that said Paragraph contains legal conclusions and argument, to which no 8 answer is required. To the extent a response is required, Defendants admit that 9 Officer Browder acted within the course and scope of his employment with the City 10 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 11 generally responsible for the actions of its police officers in the course and scope of 12 their employment. Except as expressly admitted, Defendants deny, generally and 13 specifically, each, all and every allegation contained in said Paragraph, and 14 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 15 the part of Defendants, or any agents, employees, officials, officers, offices, 16 agencies, departments or divisions of the City of San Diego. 17 109. Responding to Paragraph 109 of the SAC, Defendants incorporate 18 herein their responses to the preceding paragraphs of this Answer. To the extent 19 further response is required to the allegations contained in said Paragraph, 20 Defendants deny the allegations contained therein. 21 110. Responding to Paragraph 110 of the SAC, Defendants affirmatively 22 allege that said Paragraph contains legal conclusions and argument, to which no 23 answer is required. To the extent a response is required, Defendants admit that 24 California law imposes a general duty to use reasonable care to prevent harm to 25 oneself or to others. Except as expressly admitted, Defendants deny, generally and 26 specifically, each, all and every allegation contained in said Paragraph, and 27 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 28 the part of Defendants, or any agents, employees, officials, officers, offices, Document Number:1117314 36 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 37 of 44 1 agencies, departments or divisions of the City of San Diego. 2 111. Responding to Paragraph 111 of the SAC, Defendants deny, generally 3 and specifically, each, all and every allegation contained in said Paragraph, and 4 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 5 the part of Defendants, or any agents, employees, officials, officers, offices, 6 agencies, departments or divisions of the City of San Diego. 7 112. Responding to Paragraph 112 of the SAC, Defendants deny, generally 8 and specifically, each, all and every allegation contained in said Paragraph, 9 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 10 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 11 the part of Defendants, or any agents, employees, officials, officers, offices, 12 agencies, departments or divisions of the City of San Diego. 13 113. Responding to Paragraph 113 of the SAC, Defendants affirmatively 14 allege that said Paragraph contains legal conclusions and argument, to which no 15 answer is required. To the extent a response is required, Defendants admit that 16 Officer Browder acted within the course and scope of his employment with the City 17 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 18 generally responsible for the actions of its police officers in the course and scope of 19 their employment. Except as expressly admitted, Defendants deny, generally and 20 specifically, each, all and every allegation contained in said Paragraph, and 21 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 22 the part of Defendants, or any agents, employees, officials, officers, offices, 23 agencies, departments or divisions of the City of San Diego. 24 114. Responding to Paragraph 114 of the SAC, Defendants incorporate 25 herein their responses to the preceding paragraphs of this Answer. To the extent 26 further response is required to the allegations contained in said Paragraph, 27 Defendants deny the allegations contained therein. 28 115. Responding to Paragraph 115 of the SAC, Defendants affirmatively Document Number:1117314 37 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 38 of 44 1 allege that said Paragraph contains legal conclusions and argument, to which no 2 answer is required. To the extent a response is required, Defendants admit that 3 California law imposes a general duty to use reasonable care to prevent harm to 4 oneself or to others. Except as expressly admitted, Defendants deny, generally and 5 specifically, each, all and every allegation contained in said Paragraph, and 6 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 7 the part of Defendants, or any agents, employees, officials, officers, offices, 8 agencies, departments or divisions of the City of San Diego. 9 116. Responding to Paragraph 116 of the SAC, Defendants deny, generally 10 and specifically, each, all and every allegation contained in said Paragraph, and 11 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 12 the part of Defendants, or any agents, employees, officials, officers, offices, 13 agencies, departments or divisions of the City of San Diego. 14 117. Responding to Paragraph 117 of the SAC, Defendants affirmatively 15 allege that said Paragraph contains legal conclusions, questions of law and 16 Plaintiffs’ theory of the case, to which no answer is required. To the extent a 17 response is required, Defendants admit that Officer Browder fired a single round 18 from his sidearm, striking Plaintiffs’ Decedent in the chest; and that Plaintiffs’ 19 Decedent died from his gunshot injury. Except as expressly admitted, Defendants 20 deny, generally and specifically, each, all and every allegation contained in said 21 Paragraph, and specifically deny any unlawful, unconstitutional, or otherwise 22 wrongful conduct on the part of Defendants, or any agents, employees, officials, 23 officers, offices, agencies, departments or divisions of the City of San Diego. 24 118. Responding to Paragraph 118 of the SAC, Defendants deny, generally 25 and specifically, each, all and every allegation contained in said Paragraph, 26 specifically deny that Plaintiffs are entitled to any relief whatsoever, and 27 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 28 the part of Defendants, or any agents, employees, officials, officers, offices, Document Number:1117314 38 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 39 of 44 1 agencies, departments or divisions of the City of San Diego. 2 119. Responding to Paragraph 119 of the SAC, Defendants affirmatively 3 allege that said Paragraph contains legal conclusions and argument, to which no 4 answer is required. To the extent a response is required, Defendants admit that 5 Officer Browder acted within the course and scope of his employment with the City 6 of San Diego in all his dealings with Plaintiffs’ Decedent, and that a municipality is 7 generally responsible for the actions of its police officers in the course and scope of 8 their employment. Except as expressly admitted, Defendants deny, generally and 9 specifically, each, all and every allegation contained in said Paragraph, and 10 specifically deny any unlawful, unconstitutional, or otherwise wrongful conduct on 11 the part of Defendants, or any agents, employees, officials, officers, offices, 12 agencies, departments or divisions of the City of San Diego. 13 120. Responding to Paragraph 120 of Plaintiffs’ Prayer for Relief, 14 Defendants affirmatively allege that said Paragraph is part of a prayer for relief to 15 which no responsive pleading is required. To the extent that said paragraph is 16 deemed to allege facts to which a response is required, Defendants deny, generally 17 and specifically, each, all and every allegation contained in said Paragraph, and 18 specifically deny that Plaintiffs are entitled to any relief whatsoever. 19 121. Responding to Paragraph 121 of Plaintiffs’ Prayer for Relief, 20 Defendants affirmatively allege that said Paragraph is part of a prayer for relief to 21 which no responsive pleading is required. To the extent that said paragraph is 22 deemed to allege facts to which a response is required, Defendants deny, generally 23 and specifically, each, all and every allegation contained in said Paragraph, and 24 specifically deny that Plaintiffs are entitled to attorneys’ fees, costs, interest, or any 25 other relief whatsoever. 26 122. Responding to Paragraph 122 of Plaintiffs’ Prayer for Relief, 27 Defendants affirmatively allege that said Paragraph is part of a prayer for relief to 28 which no responsive pleading is required. To the extent that said paragraph is Document Number:1117314 39 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 40 of 44 1 deemed to allege facts to which a response is required, Defendants deny, generally 2 and specifically, each, all and every allegation contained in said Paragraph, and 3 specifically deny that Plaintiffs are entitled to injunctive relief or any other relief 4 whatsoever. 5 123. Responding to Paragraph 123 of Plaintiffs’ Prayer for Relief, 6 Defendants affirmatively allege that said Paragraph is part of a prayer for relief to 7 which no responsive pleading is required. To the extent that said paragraph is 8 deemed to allege facts to which a response is required, Defendants deny, generally 9 and specifically, each, all and every allegation contained in said Paragraph, and 10 specifically deny that Plaintiffs are entitled to any relief whatsoever. 11 12 13 14 15 16 AFFIRMATIVE AND OTHER DEFENSES 1. This Court is without subject matter jurisdiction over Plaintiffs’ claims. 2. The SAC, and each claim asserted therein, fails to state a claim upon which relief can be granted. 3. Plaintiffs failed to adequately mitigate their damages, if any, and any 17 recovery or any other award to which they are entitled should be reduced 18 accordingly. 19 20 21 4. Income taxes must be deducted from all alleged past and future lost earnings, if any. 5. To the extent the events of which Plaintiffs complain were undertaken 22 by Defendants, Defendants deny any unlawful, unconstitutional, or otherwise 23 wrongful motive and would have taken the same actions absent unlawful, 24 unconstitutional, or otherwise wrongful motive. 25 6. All future damages, if any, must be reduced to present value. 26 7. Plaintiffs are not entitled to declaratory or injunctive relief, or 27 28 prejudgment interest. 8. Defendants are not liable for acts or omissions, while exercising due Document Number:1117314 40 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 41 of 44 1 care, in the execution or enforcement of any law. 2 9. 3 another person. 4 10. Defendants are not liable for punitive damages. 5 11. The conduct in question did not constitute a violation of a federally 6 protected right. 7 12. Defendants are not liable for an injury caused by the act or omission of At all times, Officer Browder acted reasonably and did not know that 8 his conduct violated clearly established statutory of constitutional rights of which a 9 reasonable person would have known; his conduct was reasonable, lawful, based on 10 probable cause and within the scope of his official duties and employment; and he 11 is therefore entitled to qualified immunity. 12 13. Any and all acts of Defendants at or near the time alleged in the SAC 13 were reasonable and said Defendants had reasonable cause to act in the manner they 14 did. 15 14. At the time of the initial contact, the Officer Browder was acting 16 within the scope of his employment and had probable cause to believe that 17 Plaintiffs’ Decedent was engaging in, or had just engaged in, a prohibited activity. 18 During the contact, Officer Browder was acting within the scope of his employment 19 and had probable cause to believe that said person had committed a crime. 20 15. If Plaintiffs are entitled to recover for any damages suffered at the time 21 and place alleged, then the total amount of damages to which Plaintiffs would 22 otherwise be entitled should be reduced in proportion to the amount of fault 23 attributable to Plaintiffs’ Decedent, or to a third person or persons, which fault 24 directly and proximately contributed to Plaintiffs’ alleged damages. 25 16. Pursuant to California Government Code section 985, any judgment 26 entered herein may be reduced for collateral source payments paid or obligated to 27 be paid for services or benefits that were provided before trial commenced. 28 17. At the time of the contact, Officer Browder attempted to persuade Document Number:1117314 41 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 42 of 44 1 Plaintiffs’ Decedent to follow directions and only used force necessary for the 2 occasion. 3 18. Defendants were at all times alleged in the SAC performing duties, in 4 good faith, impartially, fairly and as required by law under conditions required by 5 law. 6 7 8 9 10 11 19. Plaintiffs do not have standing to seek relief for each and every cause of action, as set forth in the SAC. 20. Plaintiffs’ injuries and damages, if any, were the result of the exercise of the discretion vested in Defendant City of San Diego, or the officers, agents or employees of the public entity, and there is no liability therefore. 21. The answering Defendants and/or public employees are not liable for 12 the acts and conduct of Plaintiffs’ Decedent which caused the underlying events at 13 issue in the SAC to occur and, but for such acts, the events alleged in the SAC 14 would not have occurred, and/or Plaintiffs’ Decedent would not have been involved 15 or engaged or otherwise subject to the matters alleged in Plaintiffs’ SAC, including 16 any citation, detention, apprehension, arrest, or control or force, if any, or otherwise 17 having sustained the matters alleged, including any and all injuries, inconvenience 18 and damages alleged in the SAC. 19 22. On or before the date of the subject incident, Plaintiffs’ Decedent 20 knew or reasonably should have known the hazards or dangers involved in his 21 actions and, as a result, voluntarily assumed the risk in and about the matters 22 alleged in the SAC. 23 23. Defendant City of San Diego is immune from liability in that a public 24 entity is not liable for an injury arising out of its acts or omissions or of a public 25 employee, in the absence of a statute declaring such liability. 26 24. Defendant City of San Diego is not liable for an injury arising out of 27 an act or omission of its employees, where the subject employee is immune from 28 liability. Document Number:1117314 42 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 43 of 44 1 25. Defendant City of San Diego, its agents and employees, and the 2 Defendant Police Officers are not liable while acting within the scope of their duties 3 for injuries resulting from judicial or administrative proceedings. 4 26. Officer Browder reasonably believed that Plaintiffs’ Decedent was 5 going to harm him or others, and used only the amount of force that was reasonably 6 necessary to protect himself or others. 7 27. The SAC and/or certain counts, claims and/or causes of action therein 8 is/are barred by operation of law, including the applicable statute of limitations for 9 the claims, causes of action or counts, and/or applicable claims presentation 10 requirements for each, any and/or the causes, counts or claims under California law, 11 including but not limited to the following: that Plaintiffs failed to timely file their 12 causes, counts or claims and/or complaint as against certain Defendants and/or that 13 Plaintiffs failed to comply with the claims presentation requirements, and/or late 14 claims presentation requirements set forth in Government Code section 901, et seq. 15 16 28. respondeat superior for the alleged actions of others. 17 18 Defendants cannot be held vicariously liable or liable on a theory of 29. Replacing DOE Amendments with named Police Officers does not comply with Federal Rules of Civil Procedure 15. 19 30. Defendants hereby give notice that they intend to rely on such other 20 and further affirmative defenses as may become apparent during discovery in this 21 action and reserve the right to amend this Answer to assert any such defenses. 22 WHEREFORE, these answering Defendants pray judgment as follows: 23 1. Plaintiffs take nothing by their SAC; 24 2. Defendants receives their costs of suit incurred herein; and 25 3. Such other relief as the court deems proper 26 /// 27 /// 28 /// Document Number:1117314 43 Case No. 15CV1386 WQH (NLS) Case 3:15-cv-01386-WQH-NLS Document 36 Filed 10/30/15 Page 44 of 44 1 2 JURY TRIAL DEMAND Defendants demand a trial by jury in this action pursuant to Federal Rules of 3 Civil Procedure, Rule 38(b). Dated: October 30, 2015 4 JAN I. GOLDSMITH, City Attorney 5 By /s/ Timothy C. Stutler TIMOTHY C. STUTLER Deputy City Attorney 6 7 Attorneys for Defendants SHELLEY ZIMMERMAN, NEAL N. BROWDER and the CITY OF SAN DIEGO 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Document Number:1117314 44 Case No. 15CV1386 WQH (NLS)