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V. James DeSimone (SBN 119668)
vjdesimone@gmail.com
Kaveh Navab (SBN 280335)
Knavab.sdshh@gmail.com
SCHONBRUN DESIMONE SEPLOW
HARRIS & HOFFMAN LLP
723 Ocean Front Walk
Venice, CA 90291
Telephone: (310) 396-0731
Facsimile: (310) 399-7040

Lisa Holder (SBN 212628)
LAW OFFICE OF LISA HOLDER
P.O. Box 65694
Los Angeles, CA 90065
Telephone: (323) 683-6610
Lisaholder@yahoo.com

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8 Attorneys for Plaintiffs Tushana Howard, Tawny Howard, Taneya Howard,
Vachel Howard, Jr. and Skye Howard
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TUSHANA HOWARD, individually,
and as Special Administrator of the
Estate of Vachel Howard Sr.,
decedent, and TAWNY HOWARD,
TANEYA HOWARD, VACHEL
HOWARD, JR., ANGELA
NISHIKAWA, SKYE HOWARD,
and JOHNNIE HOWARD, SR.,
LESEANTE SQUARE, individually.
Plaintiffs,

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v.
CITY OF LOS ANGELES, Police
Officer Richard Fox, Police Officer
Maryann Bunag, Detention Officer
Juan Romero, individually, Police
Chief CHARLIE BECK, in his
individual and official capacity,
Defendants.

CASE NO.: CV 13-01847 SJO (JEMx)
Assigned to the Honorable S. James
Otero
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT OR
PARTIAL SUMMARY
JUDGMENT; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF
[Filed concurrently with Plaintiffs’
Response to Defendants’ Statement of
Uncontroverted Facts and Conclusions
of Law and Statement of Additional
Material Facts; Declaration of V. James
DeSimone and attached exhibits; and
Application to File Under Seal and
[Proposed] Order]
Hearing: [Under submission]
Time: [Under submission]
Ctrm: 1

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TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................1
II. STATEMENT OF FACTS.................................................................................................2
III. LEGAL STANDARD .........................................................................................................7
IV. ARGUMENT .........................................................................................................................8
A. There Are Triable Issues of Fact As to Whether Defendants Romero,
Fox and Bunag Used Excessive Force Under the Fourth Amendment ............ 8
B. The Defendant Officers are Not Entitled to Qualified Immunity .................. 13
C. There are Triable Issues of Fact As to Whether Defendants Provided
Medical Care as Constitutionally Required .................................................... 17
D. Plaintiffs’ Fourteenth Amendment Claims Survives ...................................... 18
E. Plaintiffs’ Battery Claim Survives .................................................................. 18
F. Plaintiff’s Wrongful Death Claim Survives ................................................... 19
G. Plaintiffs’ Bane Act Claim Survives .............................................................. 20
V. CONCLUSION ...................................................................................................................22

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TABLE OF AUTHORITIES
FEDERAL CASES
Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970) ........................................................................................... 7
Anderson v. Creignton,
483 U.S. 635 (1987) ................................................................................... 14, 16
Barsamian v. City of Kingsburg,
597 F. Supp. 2d 1054 (E.D. Cal. 2009)............................................................ 20
Bell v. Wolfish,
441 U.S. 520 (1979) ......................................................................................... 17
Boyd v. Benton,
347 F.3d 773 (9th Cir. 2004)............................................................................ 14
Bryan v. McPherson,
630 F.3d 805 (9th Cir. 2010)........................................................................ 8, 13
Butz v. Economou,
438 U.S. 478 (1978) ......................................................................................... 14
Crawford-El v. Britton,
523 U.S. 574 (1998) ......................................................................................... 14
Cunningham v. City of Wenatchee,
345 F.3d 802 (9th Cir. 2003)............................................................................ 16
Deorle v. Rutherford,
272 F.3d 1272 (9th Cir. 2001) ........................................................................... 9
Drummond v. City of Anaheim,
343 F.3d 1052 (9th Cir. 2003) ........................................................... 7, 9, 10, 14
Edson v. City of Anaheim,
63 Cal.App.4th 1269 (1998) ............................................................................ 19
Espinosa v. City & Cnty. of S.F.,
598 F.3d 528 (9th Cir. 2010)............................................................................ 16
Estelle v. Gamble,
429 U.S. 97 (1976) ..................................................................................... 17, 18
Frost v. Agnos,
152 F.3d 1124 (9th Cir. 1998) ......................................................................... 17
Glenn v. Washington Cnty.,
673 F.3d 864 (9th Cir. 2011)............................................................................ 16
Graham v. Conner,
490 U.S. 386 (1989) ....................................................................................... 8, 9
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ......................................................................................... 13

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Hopkins v. Andaya,
958 F.2d 881 (9th Cir. 1992).............................................................................. 7
Jett v. Penner,
439 F.3d 1091 (9th Cir. 2006) ......................................................................... 17
Johnson v. Jones,
515 US 304 (1995) ........................................................................................... 16
Knox v. Southwest Airlines,
124 F.3d 1103 (9th Cir. 1997) ......................................................................... 16
Lake Nacimiento Ranch Co. v. San Luis Obispo County,
841 F.2d 872 (9th Cir. 1987).............................................................................. 7
Long v. City and County of Honolulu,
511 F.3d 901 (9th Cir. 2007)...................................................................... 10, 13
McGuckin v. Smith,
974 F.2d 1050 (9th Cir. 1991) ......................................................................... 17
Meredith v. Erath,
342 F.3d 1057 (9th Cir. 2003) ........................................................................... 8
Millender v. County of Los Angeles,
564 F.3d 1143 (9th Cir. 2009) ......................................................................... 14
Palm v. United States,
835 F. Supp. 512 (N.D. Cal. 1993) .................................................................. 20
Reynolds v. County of San Diego,
858 F.Supp. 1064 (S.D. Cal. 1994) .................................................................. 19
Saucier v. Katz,
533 U.S. 194 (2001) ................................................................................... 13, 14
Scott v. Henrich,
39 F.3d 912 (9th Cir. 1994).......................................................................... 7, 10
Tatum v. City of San Francisco,
441 F. 3d 1090 (9th Cir. 2006) ........................................................................ 16
Ting v. United States,
927 F.2d 1504 (9th Cir. 1991) ........................................................................... 7
Tenessee v. Garner,
471 U.S. 1 (1985) ..................................................................................... 8, 9, 10
Torres v. City of Madera,
648 F.3d 1119(9th Cir. 2011), ......................................................................... 13
Venegas v. County of Los Angeles,
32 Cal. 4th 820 (2004) ..................................................................................... 20
STATE CASES
Brown v. Ransweiler,
171 Cal.App.4th 516 (2009) ............................................................................ 19
People v. Lashley,
1 Cal. App. 4th 938 (Cal. Ct. App. 1991) ........................................................ 21
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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STATUTES
California Civil Code § 43 .................................................................................... 21
California Civil Code § 52.1 ........................................................................... 20, 21
California Code of Civil Procedure § 377.60 ....................................................... 19
California Govt. Code § 820.2 .............................................................................. 20

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION
Defendants’ motion for summary judgment should be denied in its entirety as

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there are numerous triable issues of fact. This is a civil rights case arising from the

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unnecessary and unjustifiable death of Vachel Howard (“Mr. Howard”), who at the

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time was in police custody, unarmed and emotionally distraught, when Defendant

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Officers Richard Fox (“Fox”), Maryann Bunag (“Bunag”), and Juan Romero

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(“Romero”) used excessive and unreasonable force by tasing him six times in under

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one minute, applying lethal force by way of placing him in an unlawful out of

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policy chokehold causing structural damage in Mr. Howard’s neck, and using the

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weight of six officers atop his body to restrain him. It is undisputed that the cause

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of Mr. Howard’s death was ruled a homicide by way of asphyxiation and injuries to

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his neck causing numerous fractures to his larynx, neck area and the bones in his

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thyroid. This clear use of excessive and unreasonable use of force by the involved

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officers cannot conceivably be justified by the alleged actions of Mr. Howard while

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in custody, surveillance video from inside the jail reveals that at no point did Mr.

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Howard pose an imminent threat of death or serious injury to the involved officers

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or others, so as to justify the use of deadly force by Officer Romero, repeated taser

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stuns by Officer Bunag, and extended pressing of body weight on Mr. Howard even

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after he stopped moving by Officer Fox.

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Subsequent to the incident, the Los Angeles Police Department (“LAPD”)

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conducted an internal investigation into Mr. Howard’s death, particularly into

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Romero’s use of the unlawful chokehold, determining that Romero’s purported

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belief that he was in danger of serious harm was unreasonable, sustaining a

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complaint for excessive force against him and finding that his use of deadly force

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was out of policy. Indeed, the Board of Police Commissioner’s, after a careful

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review of the facts, adopted Police Chief Charlie Beck’s findings that Romero’s

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application of the chokehold while Mr. Howard lay on the ground in a prone
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position was out of policy, and that Mr. Howard’s alleged bite of Romero “did not

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constitute a threat that the officer’s life or the lives of the others were in immediate

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peril”—as required under the Constitution and applicable policy.

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Plaintiffs’ Fourth Amendment claims and wrongful death claims must

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survive as a matter of law because a reasonable officer in Romero, Bunag and Fox’s

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position could not have believed that Mr. Howard posed an immediate threat of

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death or serious injury. Additionally, there are numerous triable issues of fact

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regarding whether the force was excessive that militate against the granting of

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Defendants’ motion. Likewise, the Defendant officers are not entitled to qualified

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immunity under the circumstances because the relevant law was clearly established

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such that a reasonable officer was on notice that the deadly force used in the instant

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case, particularly the out of policy chokehold, was unconstitutional. Similarly, there

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are material factual disputes as to whether Mr. Howard received timely medical

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care and a reasonable jury could find that the involved officers failed to promptly

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attempt to resuscitate Mr. Howard after he lay motionless on the jail floor for

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sometime. Lastly, Mr. Howard’s Bane Act claim survives because there is ample

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evidence on the record demonstrating that prior to Mr. Howard being killed the

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Defendant officers used threats, intimidation and coercion toward Mr. Howard.

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Accordingly, the Court should deny Defendants’ motion in its entirety.

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II.

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STATEMENT OF FACTS
On June 4, 2012, Mr. Howard was arrested on a misdemeanor DUI charge.

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Plaintiffs’ Additional Material Fact (“PAMF” 14). When being arrested in front of

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his residence, Mr. Howard complied with officers’ commands and walked

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backwards with his hands up. (PAMF 4, 6). When Mr. Howard was in the police

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vehicle he asked to be cited out and complained his handcuffs were too tight.

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(PAMF 6). Once Mr. Howard was arrested, he was taken to the Southeast station,

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and questioned by watch commander Sergeant Valenti. (PAMF 7, 8). Mr. Howard

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fully complied with Sgt. Valenti’s questions, however, Fox observed that Mr.
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Howard was calling out to his grandson, and others who were not there. (PAMF 8-

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8, 9). At the Southeast station Mr. Howard cooperated when Fox conducted the

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DRE exam and complied when asked to provide a urine sample. (PAMF 10). Fox

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also ran Mr. Howard’s history in the database which indicated that Mr. Howard was

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bi-polar schizophrenic. (PAMF 12). Mr. Howard also told Fox that he is

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schizophrenic, naming two medications he took for his condition. (PAMF 13).

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Mr. Howard was next transported to the 77th Street Jail by Fox and Bunag,

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and during the transport did not say anything threatening to the officers. (PAMF

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15). Upon arrival at the 77th Street Jail there was no issue with Mr. Howard, as he

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walked out of the police vehicle and cooperated with all instructions from the

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officers. (PAMF 16). Soon thereafter, Mr. Howard was subjected to a strip search

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during which he fully complied when Fox asked him to remove each item of

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clothing, and no weapons or paraphernalia was found. (PAMF 18, 19). After the

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strip search, Mr. Howard was walked out of the room with no issue, he complied

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and followed commands when asked to sit down and was handcuffed to the bench

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in the jail lobby. (PAMF 20). At this point, Fox did not believe Mr. Howard to be

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aggressive and had no concerns about taking Mr. Howard to the nurse for

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evaluation. (PAMF 21).

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Shortly after, Mr. Howard was asked to go to see the nurse and complied by

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standing up and walking with the officers toward the dispensary. (PAMF 22, 23).

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When walking over to the nurse’s area Mr. Howard was not handcuffed at the

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discretion of Fox and Bunag. (PAMF 22). When Mr. Howard arrived in the nurse’s

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area, he was mumbling “Lord, Lord, Lord”, but was walking with the officers.

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(PAMF 23). Once in the nurse’s area Mr. Howard continued to talk to himself.

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(PAMF 24).

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Nurse Mader cannot recall what Mr. Howard was doing with his body at the

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time, but does recall that Mr. Howard did not want to enter the nurse’s room.

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(PAMF 23-25, 27). At that point, Nurse practitioner Rowe stated, “It’s okay. He
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can go back”, and officers Fox, Bunag and Romero took Mr. Howard to a bench in

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front of the female corridor area to wait, without handcuffing him. (PAMF 26-28).

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Nurse Mader then observed Mr. Howard sit down on the bench outside the female

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corridor area for a few minutes. (PAMF 29, 30). After a few minutes, Nurse Mader

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observed Mr. Howard get up from the bench and grab a door handle (PAMF 31).

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At the time she was attempting to come through the door Mr. Howard was holding

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the door handle and he was blocking her way. (PAMF 32). Nurse Mader observed

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that Fox and the officers maintained a grip on Mr. Howard’s arm when he grabbed

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the door handle. (PAMF 31, 32).

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At no point did Mr. Howard touch Nurse Mader or do anything physical to

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her. (PAMF 33). Mr. Howard was not yelling or screaming when he grabbed the

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door handle. (PAMF 37). Mr. Howard was tased immediately upon getting up from

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the bench and grabbing the door handle. (PAMF 35). At no point did Nurse Mader

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observe Mr. Howard push or hit officers Fox, Bunag or Romero. (PAMF 40, 44).

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Nurse Rowe next observed numerous officers surround and restrain Mr. Howard,

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but did not hear the officers issue any commands. (PAMF 42, 43). At this point

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Nurse Rowe believed the officers had Mr. Howard under control and returned back

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into her office. (PAMF 45). Officers Fox and Bunag testified that at no point did

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Mr. Howard attempt to turn around and grab any of the officers’ weapons or strike

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any of the officers. (PAMF 47).

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Despite the fact that Mr. Howard was not assaultive toward the officers,

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Bunag tased Mr. Howard a total of six times in less than a minute, with taser probes

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lodged in his lower left abdomen leaving puncture wounds on his body. (PAMF

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48). Indeed, Fox yelled out in pain as he felt the secondary effects of the tasing

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because he was holding onto Mr. Howard’s arm. Id. According to inmate A.

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Harden, who had an unobstructed view of the incident, Mr. Howard dropped to his

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knees when Bunag drive stunned him with the taser, crying out “God Help Me!”

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when she repeatedly drive stunned him. (PAMF 49). Supervising jail officer
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Sanchez never saw Mr. Howard throw any punches and never saw him kicking, and

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did not observe Mr. Howard being combative toward any officer. (PAMF 51).
As seen in the surveillance video, Mr. Howard is pushed by six officers into

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the lobby area and once Mr. Howard is on the ground all six officers immediately

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get on top of him. (PAMF 52, 53). Within seconds, Mr. Howard’s legs are under

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control and hobbled. (PAMF 54). Despite this fact, Romero placed Mr. Howard in

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a choke hold/full carotid hold, using his right arm to place pressure on both sides of

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Mr. Howard’s neck and clasped his right arm with his left hand placing Mr.

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Howard in a locked choke while Mr. Howard was on the ground. (PAMF 57).

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Romero then jumped onto Mr. Howard’s neck and head and applied his weight and

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pressure to Mr. Howard’s neck, choking Mr. Howard to death by causing fractures

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to the larynx, hemorrhaging on the right and side of his neck, and breaking the

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bones in his thyroid. Id.

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Once Mr. Howard was on the ground, he hardly moved, and indeed, Officer

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Sanchez, who supervised the jail at the time, stated that he never saw Mr. Howard

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throw any punches or kicks, and was not combative in any form. (PAMF 59-61).

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Defendants’ contention that Mr. Howard was thrashing and kicking while on the

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ground is refuted by the video evidence. Id. While Mr. Howard was on the ground,

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Romero was on his upper most body and the remaining five officers where on top

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of the remaining portions of Mr. Howard’s body. Id. Mr. Howard was handcuffed

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and hobble restraints were placed on his legs, and despite not moving or being

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combative, Fox remained on his back for a significant amount of time. Id. The

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video shows a group of six officers applying significant body weight to Mr.

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Howard for more than two minutes, and remaining on Mr. Howard’s back after the

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hobble restraint was applied for nearly a minute and Mr. Howard ceased moving.

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Id.

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After more than two minutes of significant body weight being applied to Mr.

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Howard by six officers, Mr. Howard lay motionless on the ground. (PAMF 59-64).
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At this point, a nurse comes into the camera’s view but no resuscitation efforts are

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undertaken by the nurse or the officers. (PAMF 64). Indeed, the officers are seen on

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the video standing around and laughing at Mr. Howard. (PAMF 65). Nurse Rowe

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observes Mr. Howard for “a while” as he lay on the ground motionless, neither

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Nurse Rowe nor any officer attempts to resuscitate Mr. Howard or check if he is

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breathing. (PAMF 66). At some point, Nurse Rowe decides to retrieve a

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stethoscope from her office, while Mr. Howard remains motionless on the ground

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still handcuffed. (PAMF 66, 67). Once Nurse Rowe returns, she begins to

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administer CPR to Mr. Howard, however, Plaintiffs’ expert Pathologist Dr. Cycril

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Wecht opined that had resuscitation efforts been promptly administered Mr.

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Howard’s chances of survival would have increased. (PAMF 68, 73). Mr.

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Howard’s handcuffs are removed only after CPR is initiated, however Mr. Howard

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had already passed away from the injuries sustained. (PAMF 68, 73).

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Plaintiff’s expert, Dr. Wecht, opined that it takes substantial pressure from

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both sides of the neck to cause bilateral fractures to Mr. Howard’s thyroid. (PAMF

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75-77). Coroner Wang testified that the injuries to Mr. Howard’s neck could only

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be caused by substantial pressure to the neck. Id. He further testified that the

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hemorrhages in the front of Mr. Howard’s neck measured 1.7 by .07 centimeters,

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and that there were fractures to the larynx. Id. Coroner Wang found that the

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pressure to the neck blocked the air passage, which comprised blood circulation,

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and caused asphyxia. Id. Both Coroner Wang and Dr. Wecht, opined that the neck

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compression and excessive body weight caused asphyxia and was the proximate

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cause of death. Id.

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An internal investigation was launched into the circumstances of Mr.

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Howard’s death, and the Board of Police Commissioners and the Chief of Police

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determined that Romero’s belief that he was in danger of serious harm was not

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reasonable and sustained a complaint against him and found his use of deadly force

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out of policy. (PAMF 72, 74). No other involved officers felt they were at risk of
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death or serious injury throughout the encounter. Id. The LAPD investigation and

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Chief Beck held that Romero’s application of the chokehold while Mr. Howard lay

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on the ground in a prone position was out of policy, and that Mr. Howard’s alleged

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bite of Romero “did not constitute a threat that the officer’s life or the lives of the

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others were in immediate peril”. Id.

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III.

LEGAL STANDARD

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The Court must view the evidence and draw all reasonable inferences

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therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress

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& Co. 398 U.S. 144, 158–59 (1970); Lake Nacimiento Ranch Co. v. San Luis

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Obispo County, 841 F.2d 872, 875 (9th Cir. 1987). The court must carefully

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examine all the physical evidence in the record, such as medical reports,

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contemporaneous statements by the officer and eyewitnesses, and any expert

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testimony proffered by the plaintiff, to determine whether the officer’s story is

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internally consistent and consistent with other known facts. Scott v. Henrich, 39

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F.3d 912, 915 (9th Cir. 1994); Hopkins v. Andaya, 958 F.2d 881, 888 (9th Cir.

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1992). Because the reasonableness inquiry “nearly always requires a jury to sift

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through disputed factual contentions, and to draw inferences therefrom... summary

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judgment... should be granted sparingly” in excessive force cases. Drummond v.

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City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003). Here, as described in detail

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below, there are numerous factual disputes precluding the granting of Defendants’

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motion as a reasonable jury could find that Defendants’ action were unreasonable

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under the circumstances, and that Mr. Howard died as a result of the Defendants

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Fox, Bunag and Romero’s unreasonable and excessive use of force, including

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deadly force.

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IV.

ARGUMENT
A.

There Are Triable Issues of Fact As to Whether Defendants

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Romero, Fox and Bunag Used Excessive Force Under the Fourth

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Amendment

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In the instant case, there are triable issue of fact as to whether Defendant

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Officers Romero, Fox and Bunag used excessive force against Mr. Howard in

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contravention of the Fourth Amendment. A reasonable jury could find that the

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Defendant officers used excessive and unreasonable force against Mr. Howard, who

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was unarmed, in a confined jail setting, was experiencing an emotional disturbance,

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and who was not combative or assaultive toward any officer or jail staff. Under

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these circumstances there was no reason to use deadly force against Mr. Howard

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who posed no threat of imminent harm by repeatedly tasing him, applying

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excessive body weight and applying an unlawful chokehold and force to his neck

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and body, causing numerous fractures to his larynx, neck area and the bones in his

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thyroid, ultimately leading to his death.

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The reasonableness of any seizure, including the use of force, is determined

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by “careful[ly] balancing…the nature and quality of the intrusion on the

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individual’s Fourth Amendment interests against the counterveiling governmental

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interests at stake.” Graham v. Conner, 490 U.S. 386, 396 (1989) (quoting Tenessee

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v. Garner, 471 U.S. 1, 8 (1985)). In excessive force cases, the Court must “balance

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the amount of force applied against the need for that force.” Bryan v. McPherson,

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630 F.3d 805, 823-24 (9th Cir. 2010) (quoting Meredith v. Erath, 342 F.3d 1057,

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1061 (9th Cir. 2003)). [A]ll force—lethal and non-lethal—must be justified by the

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need for the specific level of force employed.” Id. at 825.

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The Fourth Amendment reasonableness analysis requires “careful attention to

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the facts and circumstances in each particular case, including the severity of the

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crime at issue, whether the suspect poses an immediate threat to the safety of the

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officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Garner, 471 U.S. at 8–9; see also Graham, 490 U.S. at 396. In
addition to the Graham factors, the Ninth Circuit has noted that an individual’s
emotional state must be considered in any assessment of the government’s interest
in the use of force:
The problems posed by, and thus the tactics to be employed against, an
unarmed, emotionally distraught individual who is creating a disturbance…
are ordinarily different from those involved in law enforcement efforts to
subdue an armed and dangerous criminal who has recently committed a
serious offense. In the former instance, increasing the use of force may, in
some circumstances at least, exacerbate the situation; in the latter, a
heightened use of less-than-lethal force will usually be helpful in bringing a
dangerous situation to a swift end. In the case of mentally unbalanced
persons, the use of officers and others trained in the art of counseling is
ordinarily advisable, where feasible, and may provide the best means of
ending a crisis. ... Even when an emotionally disturbed individual is “acting
out” and inviting officers to use deadly force to subdue him, the
governmental interest in using such force is diminished by the fact that the
officers are confronted, not with a person who has committed a serious crime
against others, but with a mentally ill individual. We do not adopt a per se
rule establishing two different classifications of suspects: mentally disabled
persons and serious criminals. Instead, we emphasize that where it is or
should be apparent to the officers that the individual involved is emotionally
disturbed, that is a factor that must be considered in determining, under
Graham, the reasonableness of the force employed.

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Drummond, 343 F.3d at 1058. In other words, Court’s must consider whether
reasonable officers would have been aware that the suspect is an “emotionally
distraught individual” as opposed to “an armed and dangerous criminal.” Deorle v.
Rutherford, 272 F.3d 1272, 1282 (9th Cir. 2001).
Here, repeatedly tasing Mr. Howard, applying an out of policy chokehold and
force to his neck and body, causing numerous fractures to his larynx, neck area and
the bones in his thyroid was excessive unless Fox, Bunag and Romero acted under
circumstances giving rise to an objectively reasonable belief that Mr. Howard posed
a significant, immediate threat of death or serious physical harm to the officers or
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others. See Garner, 471 U.S. at 11-12; Graham, 490 U.S. at 396-97; Long v. City
and County of Honolulu, 511 F.3d 901, 906 (9th Cir. 2007) (“The use of deadly
force is ‘reasonable only if the officer has probable cause to believe that the suspect
poses a significant threat of death or serious physical injury to the officer or
others.’”) (quoting Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (emphasis
added). No such evidence exists in the case at hand. This is not a case where Mr.
Howard was armed and dangerous and the threat of harm or serious injury to
officers or others was present, so as to justify the use of deadly force. Rather, in the
instant case, Mr. Howard was in police custody for some time, had been strip
searched, displayed objective signs of an emotional disturbance, and did not assault
or act combative toward any officer or jail staff.
In Drummond and Deorle, the Ninth Circuit made it clear that Courts must
take into consideration an individual’s mental state when deciding whether an
officers actions are reasonable under the circumstances. A reasonable jury could
find that Mr. Howard actions amounted to objective signs that he was emotionally
distraught, signs that the involved officers were aware of well before the use of
deadly force. Under the guidance of Drummond and Deorle, the Defendant offices
were required to treat Mr. Howard as an emotionally distraught individual and not
an armed and dangerous felon. Here, however, the facts show that despite this
knowledge, officers Fox, Bunag and Romero failed to take Mr. Howard’s emotional
state into consideration, and rather, resorted to excessive and unreasonable force
deadly force which was unnecessary under the circumstances.
As for the Graham factors, it is undisputed that Mr. Howard’s underlying
offense was a misdemeanor DUI. To extent that Defendants’ argue that Mr.
Howard’s underlying offense was severe and put the public in danger, any
speculation by Defendants to that extent had dissipated by the time of Mr.
Howard’s death because he had been in custody for some time and posed no threat
of imminent harm or death to the officers or others.
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Similarly, at no point while in custody did Mr. Howard pose a threat of
imminent harm or death to any officer or jail staff. Notably, while Mr. Howard was
searched and when he was walked to the nurse’s area from the lobby he was not
handcuffed at the discretion of Fox and Bunag because Mr. Howard was not
aggressive and raised no concerns as to personnel safety. Indeed, the video shows
Mr. Howard sitting on the seat, and when asked to walk to dispensary he stands up
and complies with the officers’ orders by walking over. Such evidence
demonstrates that Fox and Bunag did not reasonably believe Mr. Howard presented
any threat of harm to the officers or jail staff. Even after Mr. Howard did not want
to go into the nurse’s dispensary, his demeanor was such that the officers seated
him un-handcuffed on a bench. He stood up and grabbed a door handle, he wasn’t
threatening anyone, and the Officers quickly grabbed him and prevented him from
going through the door. It was only when the taser was unnecessarily used that Mr.
Howard begins trying to get away from the Officers. It is disputed that he struck or
threatened any officers or jail staff in any manner.
Similarly, Romero’s belief that Mr. Howard’s alleged bite justified a
reasonable belief of imminent harm, is unreasonable and unjustifiable under the
circumstances. To no surprise, all other involved officers concede that Mr. Howard
did not pose a risk of death or serious injury throughout the encounter. Even under
Defendants’ facts, a reasonable jury could find that repeatedly tasing Mr. Howard,
and applying an out of policy chokehold, while simultaneously using the weight of
six officers to subdue him was excessive and unreasonable under the circumstances.
Contrary to Defendants’ arguments throughout their motion, the Chief of
Police, the Police Commission, and other investigatory officers agree that Romero’s
belief that he was in danger of serious harm was unreasonable, sustaining a
complaint of excessive force against him, finding that the use of the deadly force by
way of the chokehold was out of policy and unjustified. At no point did Mr.
Howard verbally threaten the officers or jail staff, he never touched or assaulted
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Nurse Mader, and based on the testimony of supervising jail officer Sanchez at no
point was he combative. While Mr. Howard may have refused to enter the nurse’s
room, he did not assault or combatively resist the officers’ efforts to restrain him.
Officers in Fox, Bunag and Romero’s position are trained that the deadly force used
in the instant case can only be justified when faced with imminent threat of serious
injury or death. No such facts exists here, and ample evidence by way of testimony
and video surveillance demonstrates that a reasonable jury could find that Mr.
Howard was the subject of excessive and unreasonable force. Put simply, it was not
necessary for officers Fox, Bunag and Romero to repeatedly tase Mr. Howard,
apply an out of policy chokehold, while simultaneously using the weight of six
officers to subdue him.
Defendants’ reliance on Gregory v. County of Maui, 523 F.3d 1130 (9th Cir.
2008), is factually inapposite and lacks merit. There are a number of factual
differences in Gregory that are clearly distinguishable from the case at hand. First,
and most importantly, the events in Gregory took place at a music studio with three
involved officers and where the decedent had not been searched, whereas in the
instant case the incident took place in jail setting while Mr. Howard was in custody,
subsequent to him being searched and after he had had been effectively restrained
by six officers. Thus, the immediate threat of serious injury or death, and the
possibility of a weapon being used was non-existent here as opposed to Gregory.
Secondly, the decedent in Gregory was wielding a pen which the court emphasized
may inflict lethal force. Conversely, Mr. Howard was unarmed, had been strip
searched, was in custody for some time and therefore posed no threat of immediate
harm or death. Third, the evidence in Gregory does not show that the hold applied
to decedent caused any injuries, whereas here Romero’s unlawful chokehold caused
significant injury including numerous fractures to Mr. Howard’s larynx, neck area
and the bones in his thyroid, ultimately leading to his death. Fourth, in Gregory the
plaintiff put forth by way of expert testimony that the cause of death was a heart
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attack brought about by the excessive force. Here, conversely, Plaintiffs’ maintain
that the severe injuries and fractures to Mr. Howard’s neck and throat region as a
result of Romero’s unlawful chokehold caused Mr. Howard’s death.
Defendants may not rely on Romero’s subjective beliefs and intentions, as
they are irrelevant as a matter of law. Bryan, 630 F.3d at 831-32 (noting that the
Fourth Amendment is not violated only “where an officer and his attorney are
unable to find a sufficient number of compelling adjectives to describe the victim’s
conduct,” and courts may not base their analyses “on what officers actually felt or
believed during an incident”). In addition to being irrelevant, Romero’s purported
subjective beliefs and opinions are not supported by a sufficient “quantum of
evidence” and are conclusively refuted by Plaintiffs’ evidence. Long, 511 F.3d at
906. Here, the objective facts show, as seen vividly in the video surveillance, that
Mr. Howard who was in custody for some time, was unarmed, and posed no threat
was killed when officers officers Fox, Bunag and Romero repeatedly tased Mr.
Howard, applied an out of policy chokehold, while simultaneously using the weight
of six officers to subdue him. Thus, a reasonable jury could find that the Defendant
officers used excessive and unreasonable force under the circumstances.

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B.
The Defendant Officers are Not Entitled to Qualified Immunity
The relevant law was clearly established in June 2012, and thus the officers

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are not entitled to qualified immunity. The purpose of the immunity inquiry is “to

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acknowledge that reasonable mistakes can be made as to the legal constraints on

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particular police conduct. It is sometimes difficult for an officer to determine how

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the relevant legal doctrine, here excessive force, will apply to the factual situation

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the officer confronts.” Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir.

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2011), cert denied, 132 S. Ct. 1032, 181 L. Ed. 2d 739 (U.S. 2012) (quoting Saucier

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v. Katz, 533 U.S. 194, 205 (2001)). “[S]ince a reasonably competent public official

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should know the law governing his conduct,” qualified immunity does not apply

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when the relevant law is clearly established. Harlow v. Fitzgerald, 457 U.S. 800,

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818-19 (1982); see Butz v. Economou, 438 U.S. 478, 506 (1978). Qualified
immunity does not apply when “various courts have agreed that certain conduct is a
constitutional violation under facts not distinguishable in a fair way for the facts
presented in the case at hand.” Saucier, 533 U.S. at 202. “In an excessive force
case, the inquiry remains whether ‘under the circumstances, a reasonable officer
would have had fair notice that the force employed was unlawful, and [whether] a
mistake to the contrary would have been unreasonable.” Boyd v. Benton, 347 F.3d
773, 781 (9th Cir. 2004) (quoting Drummond, 343 F.3d at 1060). In evaluating
qualified immunity, police training and policy principals “are relevant not only to
whether the force employed in the case was objectively unreasonable…but also [to]
whether reasonable officers would have been on notice that the force employed was
objectively unreasonable.” Drummond, 343 F.3d at 1062.
The Supreme Court in Saucier outlined a two-step approach to qualified
immunity that provides a helpful framework for analysis. The first step requires the
Court to ask whether that the facts “in the light most favorable to the party asserting
the injury, do the facts alleged show the officer’s conduct violated a constitutional
right?” Saucier, 533 U.S. at 201; Millender v. County of Los Angeles, 564 F.3d
1143, 1148 (9th Cir. 2009). If the answer to the first question is yes, the second
inquiry is whether the right was clearly established: in other words, ‘whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation
confronted.”’ Millender, 564 F.3d at 1148 (quoting Saucier, 533 U.S. at 201).
However, it is not necessary that the alleged conduct or acts have been previously
held unconstitutional, as long as the unlawfulness was apparent in light of existing
law. Anderson v. Creignton, 483 U.S. 635, 640 (1987). Defendants bear the burden
of establishing there is no genuine issue of material fact and that the affirmative
defense of qualified immunity is established as a matter of law. Crawford-El v.
Britton, 523 U.S. 574, 587 (1998).
As set forth above, Romero, Fox and Bunag violated Mr. Howard’s Fourth
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Amendment rights as a matter of law. As of June 2012, it would have been clear to
a reasonable officer, especially ones who had received the training Romero, Fox
and Bunag had, that it was unconstitutional to repeatedly tase, apply an unlawful
chokehold and force to the neck and body of an unarmed and emotionally disturbed
Mr. Howard, causing him to die from asphyxiation and serious injuries to his neck.
It is undisputed that Mr. Howard’s basic constitutional right to be free from
excessive force was clearly established in June 2012. Furthermore, as testified to by
Romero’s supervisor officer Sanchez, indicated in Police Chief Beck’s Findings, by
the Police Commission and in the training bulletins discussing the use of a carotid
restrain hold, Romero was well aware that the use of force applied in this case was
unlawful unless faced with an immediate threat of death or serious bodily injury.
No such threat existed here. Mr. Howard was unarmed, had been searched, was in a
controlled jail setting, was emotionally disturbed, and at no point was combative
toward the officers.
Tellingly, the internal investigations into this matter, including Police Chief
Beck’s Findings, and the ample video surveillance all point to the fact that Romero,
and the other officers, were under no imminent threat of harm or death. Indeed, no
other involved officer testified that they believed to be under an imminent threat of
harm or death. Under such circumstances, a reasonable officer with the training and
knowledge of Romero, Fox and Bunag would have known that use of deadly force
was unjustified. The simple statement that Mr. Howard was strong, and thus,
Romero was justified in using an unlawful chokehold flies in the face of wellestablished law. Nevertheless, Romero’s purported subjective fear is irrelevant and
ample evidence put forth by Plaintiffs’ through way of testimony and video
evidence demonstrates that Mr. Howard was under control at the time of the use of
force and posed no threat of death or serious injury. As such, the law was clearly
established and Romero, Fox and Bunag are not entitled to qualified immunity.
Defendants’ argument that there is no Supreme Court or Ninth Circuit case
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which addresses the exact factual scenario present here lacks merit. As indicated
above, it is not necessary that the alleged conduct or acts have been previously held
unconstitutional, as long as the unlawfulness was apparent in light of existing law.
Anderson v. Creignton, 483 U.S. 635, 640 (1987). Here, the unlawfulness of
repeatedly tasing Mr. Howard, and placing him in a full chokehold, as well as
applying the body weight of six officers, when not faced with an imminent threat of
harm or death was readily apparent to the officers at the time of the incident.
Similarly, Defendants’ reliance on Tatum v. City of San Francisco, 441 F. 3d
1090 (9th Cir. 2006), is inapplicable. The facts in Tatum are distinguishable from
the facts here because in Tatum a lone police officer was trying to gain control of an
agitated individual, here, however, six officers piled on top of Mr. Howard after he
had been tased six times in one minute while in jail. Second, and more importantly,
the type of force used in Tatum was a “measured” bar arm control hold that is not
life-threatening, whereas here Romero used an out of policy chokehold that resulted
in crushing the bones in Mr. Howard’s neck, throat and larynx.
Alternatively, at a minimum, disputed issues of material fact preclude
granting qualified immunity on summary judgment. See Johnson v. Jones, 515 US
304, 313 (1995); Glenn v. Washington Cnty., 673 F.3d 864, 870, fn. 7 (9th Cir.
2011), citing Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 532 (9th Cir. 2010)
(“denial of summary judgment on qualified immunity grounds because ‘there are
genuine issues of fact regarding whether the officers violated [the plaintiff's] Fourth
Amendment rights [, which] are also material to a proper determination of the
reasonableness of the officers’ belief in the legality of their actions’”); Cunningham
v. City of Wenatchee, 345 F3d 802, 809 (9th Cir. 2003); Knox v. Southwest Airlines,
124 F.3d 1103, 1109 (9th Cir. 1997) (no qualified immunity where there are triable
issues of fact). Here, there at least are triable issues of fact as to whether the use of
deadly force against Mr. Howard was objectively reasonable under clearly
established law.
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C.

There are Triable Issues of Fact As to Whether Defendants

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Provided Medical Care as Constitutionally Required

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The Fourteenth Amendment governs Plaintiffs’ constitutional right to

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medical care. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998); Bell v. Wolfish,

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441 U.S. 520, 535 n.16 (1979). Plaintiffs must first show a “serious medical need”

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by demonstrating that “the failure to treat a prisoner’s condition could result in

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further significant injury or the unnecessary and wonton infliction of pain.” Estelle

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v. Gamble, 429 U.S. 97, 104 (1976) (emphasis added); see also Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006). Second, Plaintiff must show that Defendants

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exhibited deliberate indifference toward Plaintiff’s condition. McGuckin v. Smith,

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974 F.2d 1050, 1060 (9th Cir. 1991).

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Here, there are numerous triable issues of fact as to whether Mr. Howard was

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provided with adequate medical care prior to and after the use of force incident on

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June 4, 2012. Officers Fox, Bunag and Romero used excessive and unreasonable

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force by tasing Mr. Howard six times in under one minute, applying lethal force by

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way of placing him in an unlawful choke hold for an extended length of time, and

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using the weight of six officers atop his body to restrain him. Once such force was

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applied to Mr. Howard, he immediately became motionless and lay on the ground.

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Despite laying there motionless, no efforts were made to resuscitate Mr. Howard by

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the involved officers or the nurses nearby. Indeed, the video of the incident depicts

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Fox and Bunag laughing, and the other officers standing around, as Mr. Howard lay

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there motionless and not breathing.

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Furthermore, Nurse Rowe who was present while Mr. Howard lay motionless

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on the ground testified that she stood there for “a while” only to later notice he was

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not breathing, causing her to return to her office to retrieve a stethoscope. Prior to

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going to retrieve her stethoscope, neither Nurse Rowe nor any involved officers

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attempted to resuscitate Mr. Howard or check his pulse, despite clear signs that he

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was not breathing and lay motionless on the jail floor. Only after returning with her
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stethoscope sometime later was CPR administered to Mr. Howard, and even then

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his handcuffs were not removed for nearly a minute. Plaintiffs’ expert, Dr. Cyril

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Wecht, a Board Certified Pathologist, significantly criticized the resuscitation

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efforts undertaken by the officers and jail staff, and testified that Mr. Howard’s

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chances of survival would have been significantly improved had prompt and timely

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efforts to revive him been undertaken.

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Here, as described above, it is undisputed that after the use of force Mr.

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Howard was in need of “significant medical” attention as he lay on the jail floor

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motionless and not breathing. Gamble, 429 U.S. at 104. Further, Plaintiffs’ expert

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Dr. Wecht testified that had Mr. Howard received prompt and timely medical

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attention, his chances of survival may have significantly increased. A reasonable

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jury could find that the involved officers exhibited deliberate indifference toward

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Mr. Howard’s medical needs when they stood there watching his motionless body,

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laughing amongst themselves, failing to at least check his pulse. Only after Nurse

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Rowe returned sometime after and checked with a stethoscope did the officers

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believe any CPR was needed. In other words, while Mr. Howard lay on the jail

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floor motion less and not breathing and in medical distress for some time, instead of

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summoning immediate attention, the officers stood around laughing and waiting.

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The Defendants acted with deliberate indifference by failing to summon immediate

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medical attention for Mr. Howard who clearly required such medical attention. As

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such, Plaintiffs’ claim for deliberate indifference toward serious medical needs

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should survive Defendants’ motion.

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D.

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Plaintiffs’ Tushana Howard et al. adopts and incorporates by reference the

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argument made by Plaintiff Irma Howard on this point as if set forth fully herein.

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Plaintiffs’ Fourteenth Amendment Claims Survives

E.
Plaintiffs’ Battery Claim Survives
In the context of a peace officer's use of force, “[a] state law battery claim is
a counterpart to a federal claim of excessive use of force” under the Fourth
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Amendment’s objective reasonableness standard and similar standards apply.
Brown v. Ransweiler, 171 Cal.App.4th 516, 527 (2009); Edson v. City of Anaheim,
63 Cal.App.4th 1269, 1274–75 (1998) (looking to the standards of a federal
excessive force claim to determine the burden of proof for a state law battery claim
against an officer), citing Reynolds v. County of San Diego, 858 F.Supp. 1064, 1069
(S.D. Cal. 1994). As with a Fourth Amendment excessive force claim, to prevail
on a battery claim plaintiffs must demonstrate that the deputies’ use of force was
objectively unreasonable under the circumstances confronting the deputies. As set
forth above, officers Romero, Fox and Bunag used excessive and unreasonable
force when they repeatedly tasing an unarmed and emotionally distraught Mr.
Howard, and applied an unlawful chokehold and force to his neck and body,
causing Mr. Howard to die. As such, the Defendant officers’ use of deadly force in
this case was patently unreasonable when analyzed pursuant to the Graham factors,
and thus, summary judgment is precluded on Plaintiffs’ state law battery claim.

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F.

Plaintiff’s Wrongful Death Claim Survives

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Plaintiff’s wrongful death claim pursuant to California Code of Civil

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Procedure § 377.60 survives. As explained in detail above, officers Fox. Bunag and

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Romero’s actions constitute excessive and unreasonable force by tasing Mr.

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Howard six times in under one minute, applying lethal force by way of placing him

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in an unlawful choke hold for an extended length of time, and using the weight of

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six officers atop his body to restrain him. It is undisputed that the cause of Mr.

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Howard’s death was ruled a homicide by way of asphyxiation and injuries to his

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neck causing numerous fractures to his larynx, neck area and the bones in his

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thyroid. Whether Defendants’ actions are analyzed under the negligence standard

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or the Fourth Amendment, there are numerous triable factual disputes at issue, and

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as such, Plaintiffs’ wrongful death claim must survive as a matter of law.
Despite Defendants’ contentions the instant case was a rapidly evolving

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situation wherein Defendants Fox, Bunag and Romero were required to make “split
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second judgment”, there is ample evidence put forth by Plaintiffs, through
testimony and video, demonstrating there was absolutely no threat of imminent
harm or death to the involved officers or jail staff. Mr. Howard was unarmed, had
been searched, was in a controlled jail setting, was emotionally disturbed, and at no
point was combative toward the officers. Mr. Howard was lying face down on the
ground while being restrained by six officers. Simply put, he wasn’t going
anywhere. There was simply no reason to continue to tase him, put excessive body
weight on him and apply a choke hold. If the evidence put forth is viewed in the
light most favorable to Plaintiffs, the Defendant officers’ actions constitute
excessive and unreasonable force. Under these facts, Plaintiffs submit that a
reasonable fact finder could find that Defendants acted at least negligently. Palm v.
United States, 835 F. Supp. 512, 520 (N.D. Cal. 1993).
Similarly, the Defendant officers are not entitled to immunity pursuant to
California Govt. Code § 820.2. As Defendants concede, a police officer is only
entitled to the protections of § 820.2 where there is no evidence of excessive force.
As explained in detail above, there is ample evidence put forth by Plaintiff wherein
a reasonable fact finder could find that officers Fox, Bunag and Romero used
excessive and unreasonable force when attempting to subdue Mr. Howard. As such,
the Defendant officers are not shielded by § 820.2.

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G.

Plaintiffs’ Bane Act Claim Survives

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Viewing the evidence in the light most favorable to Plaintiffs, a reasonable

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factfinder could find that Defendants violated the Bane Act. “Consistent with the

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language of the statute, and California case law makes clear, to sustain a claim

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under § 52.1(b) based on an alleged constitutional violation, it must be

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threats, intimidation or coercion.” Barsamian v. City of Kingsburg, 597 F. Supp. 2d

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1054, 1064 (E.D. Cal. 2009); see also Venegas v. County of Los Angeles, 32 Cal.

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4th 820, 843 (2004) (“[T]he language of Section 52.1 provides remedies for certain
misconduct that interferes with federal or state laws, if accompanied by threats,
intimidation, or coercion…”) (emphasis added). Moreover, in Plaintiffs’ Fourth
amended complaint (Dkt. 76), Plaintiff alleges a separate violation of California
Civil Code § 43, which protects an individual’s right “from bodily restraint or
harm”. See People v. Lashley, 1 Cal. App. 4th 938, 951 (Cal. Ct. App. 1991)
(“[e]ven a cursory review of the cases which apply the section establishes that the
phrase ‘right to protection from bodily restraint or harm’ refers simply to an
individual’s right to be free from physical attack or the threat thereof.”).
Plaintiffs’ submit that there is ample evidence on the record that the
Defendant officers used threats and intimidates against Mr. Howard, and violated
his statutory right to bodily restraint and integrity, in violation of § 43, when they
used excessive and unreasonable force against him, ultimately leading to his death.
First, Plaintiffs maintain that Mr. Howard stated that he did not want to go to the
nurse, a statement and action to which Nurse Rowe responded, “It’s Okay. He can
go back.” Despite this understanding, Defendants’ retaliated against Mr. Howard by
forcefully making him comply and ultimately tasing him multiple times, putting
him in an unlawful chokehold, and applying the body weight of six officers to him,
which led to his death. Second, Plaintiff believe that the taser flashes that Bunag
fired off when Mr. Howard did not want to see the nurse, amounted to a threat,
intimidation and coercive action on behalf of Defendants. Third, § 52.1, allows an
individual to maintain an action where Defendants use threats and intimidation to
interfere with state law, which in this instance was § 43’s protection of the right to
be free “from bodily restraint or harm”. The facts at hand show – and a reasonable
factfinder could conclude – that Defendants’ violated Mr. Howard’s right to be free
from bodily restraint or harm through threats, intimidation, and coercion, and by
threatening and committing violent acts, in violation of the Banes Civil Rights Act.
As such, Plaintiffs’ § 52.1 claim must survive as a matter of law.
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V.

CONCLUSION
Based on the foregoing reasons, Defendant’s motion for summary judgment

should be denied in its entirety.

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Dated: June 26, 2015

SCHONBRUN DESIMONE SEPLOW
HARRIS & HOFFMAN, LLP

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LAW OFFICE OF LISA HOLDER

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By:

/s/ V. James DeSimone
V. JAMES DESIMONE
KAVEH NAVAB
Attorney for Plaintiffs

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