OFFICERS’ SHOOTING: Summary judgment for County & Deputies rejected over claim of sham affidavit testimony that Plaintiff was pointing gun at ground when he opened door to unknown persons on porch in dark who shot him and claims of qualified immunity… case settled following ruling for $525,000… DeSoto/Watters.
Yellowstone Co. Deputies Tyler Sennett and Brandon Trujillo responded to a call from a third party seeking a welfare check at Travis Tolan’s home. They arrived in the predawn darkness with no lights or sirens and went onto his porch and shined a flashlight through the window. Tolan heard the noise and saw the lights and because he had been the victim of a burglary, feared that his home was being broken into. He retrieved his pistol and walked toward the door and called out “Hello.” The Deputies did not respond. He then turned on the porch light and still the Deputies said nothing. He then opened the door and when they saw him holding a gun, shot him through the chest. He incurred $235,000 medical expenses and was hospitalized for 16 days. According to his attorney, by all accounts he is lucky to be alive.
Tolan sued the County and Deputies. Magistrate DeSoto recommended denying the parties’ summary judgment motions. Defendants objected. Judge Watters, following de novo review, adopted DeSoto’s findings & recommendations in full:
Defendants first object to Judge DeSoto’s rejection of their argument that Tolan’s affidavit — in which he stated that his gun was pointed at the ground — is a sham affidavit and should be disregarded. The sham affidavit rule prohibits a party from creating an issue of fact by submitting an affidavit that contradicts his deposition testimony. It is intended to preserve the value of summary judgment by preventing parties from fabricating issues of material fact. However, the 9th Circuit advises that it “‘should be applied with caution’ because it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment.” Yeager (9th Cir. 2012); ACandS (9th Cir. 1993).
The “inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Van Asdale (9th Cir. 2009). An affidavit cannot “flatly contradict” prior testimony. Id. For instance, Cole (ED Cal 2022) found a contradiction when a slip & fall plaintiff repeatedly said in her deposition that she did not recall seeing anything wet on the floor but later said in her affidavit that she felt herself slip on a wet substance on the floor. The Court emphasized that she was explicitly asked in her deposition about the condition on the floor and whether she thought it was wet.
However, an affidavit can elaborate upon, explain, or clarify testimony without creating a contradiction. Van Asdale. In Walden (D.Mont. 2017), a plaintiff alleging sexual harassment described in her deposition and affidavit different ways her emotional distress manifested. In her deposition she described that she “couldn’t handle” the stress but did not have difficulty sleeping or eating or stomach problems and did not know if she experienced nausea, tension, or anxiety. In her affidavit she said she experienced panic attacks, shaking in her hands and arms, and perfuse perspiration. Judge Christensen found that her affidavit merely elaborated on her testimony, particularly counsel did not specifically ask during her deposition how her stress physically manifested and the vagueness of the question justified her failure to explain her physical symptoms in the first instance.
A court can disregard a contradictory affidavit when it contains facts that the affiant testified he could not remember. Yeager. Yeager did not recall answers to 185 questions in his deposition — including ones about difficult-to-forget events like his involvement in a plane crash — despite being shown numerous exhibits to refresh his recollection. 3 months later he filed a declaration that contained answers to the questions he could not recall. His only explanation was that he reviewed certain documents that triggered his memory. The 9th Circuit affirmed the District Court’s finding that “the disparity between the affidavit and deposition is so extreme” that Yeager’s testimony was contradictory and his explanation for remembering the facts was weak. It found the affidavit to be a sham and disregarded the declaration.
Defendants argue that Tolan’s deposition and affidavit contradict each other because he did not recall his gun’s position during his deposition yet described its position in his affidavit and provided no explanation for his recollection. Tolan responds that he was never asked about the position of his gun during his deposition and thus his description of its position in his affidavit was merely supplemental information.
Tolan’s deposition and affidavit do not clearly & unambiguously contradict because he did not say anything in his deposition about the position of his gun. His comments in his affidavit about the position of his gun merely elaborated on his deposition testimony, as in Walden. Had he stated in his deposition that he pointed his gun in a direction other than at the ground or was asked specifically about his gun upon opening the door and omitted the information, then a clear & ambiguous contradiction as in Cole would exist.
Further, Tolan never stated that he could not remember the position of his gun. In his deposition:
Q. What do you remember about answering the door?
A. I remember answering it, I remember saying “hello,” and then I remember 4 shots fired, I remember grabbing my stomach, closing the door, walking into my house, grabbing my stomach and then laying on the ground.
He was then asked if the police entered the house. The only questions about the gun were whether he had it when he opened the door, what hand it was in, and whether that was his dominant or non-dominant hand. He was asked an open-ended, vague question about what happened after he encountered Sennett and Trujillo. Failing to respond to that question with the position of the gun is an honest discrepancy given the framing of the question, which justifies his elaboration in his affidavit. His affidavit is not a sham and the Court will consider it in determining the remaining issues.
Defendants next object to Judge DeSoto’s denial of qualified immunity. They primarily argue that there is no genuine dispute of material fact as to the position of Tolan’s gun — that he was raising it at the Deputies — and that his action created an immediate threat that justified deadly force. This objection is improper because it merely rehashes arguments presented to Judge DeSoto. Additionally, it is contingent on the Court’s finding that Tolan’s affidavit should be disregarded as a sham. Since it is not a sham and creates a material issue of fact, Defendants’ objection based on the dispute over the position of his pistol fails.
Judge Desoto correctly noted that where one points a gun in the officers’ direction, the officers are “undoubtedly entitled to respond with deadly force.” George (9th Cir. 2013). Additionally, one’s furtive movement, harrowing gesture, or serious verbal threat may give rise to an immediate threat. Id. However, merely possessing a deadly weapon does not render an officer’s response per se reasonable and entitle him to qualified immunity. Id.
As in Lopez (9th Cir. 2017) and George, a genuine dispute exists as to the position of Tolan’s gun and whether the position created an immediate threat to the Deputies. Reading the facts in a light most favorable to him, his gun was pointed at the ground. Assuming this is true, the Deputies’ conduct would be unjustified because he presented no immediate threat.
Even if the Court considered the Deputies’ statements as the undisputed version it still could not find summary judgment for them based on Lopez. Both statements lack the specificity with respect to the position of Tolan’s gun that is necessary to find that he undisputedly posed an immediate threat. As in Lopez, the Deputies never allege that he pointed his gun at them and instead “use carefully-phrased language,” Lopez, that he began to raise or began to swing his gun at them.
The Court is left with the Deputies’ statements that they feared for their safety before they shot Tolan, since they did not describe another furtive movement, harrowing gesture, or serious verbal threat to justify use of force. George. Such statements on their own are not enough to justify such a concern. Deorle (9th Cir. 2001). This is particularly so given that the Deputies were responding to a welfare check, not a report of a crime or domestic disturbance, George, and that they did not warn Tolan to drop his weapon, let alone of their identity as law enforcement, Hughes (9th Cir. 2016). Accordingly, the Court finds no clear error with Judge DeSoto’s findings & recommendations on this issue.
Defendants assert that Judge DeSoto erroneously ignored the mistake doctrine in her qualified immunity analysis. They contend that even if the Deputies mistakenly believed that Tolan raised the pistol, their belief was reasonable. She did not address the mistake doctrine even though Defendants raised it in their briefing, so the Court will review this argument de novo.
The mistake must be reasonable. Pearson (US 2009). Lopez rejected an officer’s invocation of the mistake doctrine relating to the position of the plaintiff’s gun and his perception of a threat because, viewing the facts in a light most favorable to the plaintiff, the gun never rose to a position that posed a threat. The Court concludes the same here based on its holding that a genuine dispute exists as to the position of Tolan’s gun and the reasonableness of the Deputies’ use of force. The mistake doctrine does not save their argument that the use of force was reasonable. The Court finds no clear error with Judge DeSoto’s findings that a genuine dispute of fact exists as to whether the Deputies are entitled to qualified immunity.
Judge Desoto’s findings & recommendations are adopted in full. Defendants’ motions for summary judgment are denied.
(Following this ruling the parties mediated with CJ Johnson who made a double-blind recommendation of $525,000 which was accepted by both sides.)
Tolan v. Yellowstone Co. et al, 44 MFR 291, 11/22/22.
Nathan Wagner (Siefert & Wagner), Missoula, for Tolan; Dep. Yellowstone Co. Attys. Melissa Williams & Mark English.