PETER M. WILLIAMSON, State Bar # 0 WILLIAMSON & KRAUSS Panay Way, Suite One Marina del Rey, CA 0 () - Attorneys for Plaintiff ANTHONY MORALES UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ANTHONY MORALES, ) CASE NO. 01-01 PJW ) Plaintiff, ) ) vs. ) PRE-TRIAL CONFERENCE ) ORDER COUNTY OF VENTURA, TONYA ) HERBST, et al., ) )) Trial Date: July, 0 Defendants. ) ) Pre-Trial Conference: July, 0 ) Time: 1:0 P.M. Courtroom: -A Following Pre-Trial proceedings, pursuant to Federal Rules of Civil Procedure, Rule, and Local Rule -, IT IS ORDERED: 1. The parties are: Plaintiff, ANTHONY MORALES and Defendants, COUNTY OF VENTURA and Sheriff s Deputy TONYA HERBST. Each of e above-mentioned parties has been served and has appeared. All oer parties named in e pleadings and not identified in e preceding paragraph are now dismissed. The pleadings which raise e issues are: Plaintiff s Complaint, Plaintiff s 1 st Amended Complaint, Defendants Answer to e Complaint, and e February, 0 order permitting plaintiff to file e First-Amended Complaint. - 1 -
. Federal jurisdiction and venue are invoked upon e following grounds: Federal jurisdiction is invoked under U.S.C.. This is a civil case which involves alleged civil rights violations by a Deputy Sheriff of e Ventura County Sheriff s Department acting under color of law in her official capacity as a law enforcement officer.. The trial is estimated to take court days.. The trial is to be a jury trial. At least court days prior to e trial date, counsel shall deliver to e Court, if ey have not already done so: A joint set of jury instructions comprised of annotated instructions. Objections by counsel to e instructions will be indicated in e annotated instructions. A joint set of un-annotated instructions. (c) Any special questions requested to be put to prospective jurors during voir dire.. The following facts are admitted and require no proof: The incident which is e subject of is action, occurred on May, 00, between approximately : p.m. and : p.m. The incident occurred at e Veterans Memorial Building located at nd Street and Shiells Avenue in e City of Fillmore, California. (c) The Ventura County Sheriff s Deputies involved in e incident were Tonya Herbst, Scott Horton, Todd Welty and Bernard Furlong. (d) Deputy Tonya Herbst fired her gun striking plaintiff, Anony Morales. (e) Deputy Tonya Herbst was acting under color of law at e time of e shooting. (f) All four Deputies involved in is incident were in uniform at e time of e shooting. (g) Plaintiff Anony Morales was not charged wi a criminal offense as a result of is incident. /////////// - -
(h) On May, 00, between approximately : p.m. and : p.m., Chad Morales was in possession of a handgun. (i) On May, 00, between approximately : p.m. and : p.m., e handgun in e possession of Chad Morales accidentally discharged. (j) Plaintiff, Anony Morales, was struck in e back below e left shoulder blade by a bullet fired by Deputy Tonya Herbst. (k) $,.0 in medical expenses to date. As a result of e gunshot wound, plaintiff Anony Morales has incurred. The following facts are admitted to be true but eir admissibility is disputed and subject to evidentiary objection: Chad Morales pled guilty to a violation of Penal Code, (c) exhibition of a firearm in e presence of a peace officer. incident. Chad Morales had a blood-alcohol content of. on e night of e. The claims being asserted by e Parties are as follows: Plaintiff s First Claim against Defendant Tonya Herbst for Amendment Violation Excessive Use of Force: The ultimate facts required to prove such claim under e applicable legal standard is at e force used by Deputy Tonya Herbst was objectively unreasonable. The evidence relied upon to prove each element of e claim is: (1) That at all times during is incident, Defendant Tonya Herbst, acted under color of law as a Deputy of e Ventura County Sheriff s Department. () That in her capacity as a Deputy of e Ventura County Sheriff s Department on May, 00, defendant Tonya Herbst, intentionally deprived plaintiff of his Amendment constitutional rights to be free from unreasonable seizure by subjecting plaintiff to excessive use of force inflicting a gun shot wound upon plaintiff. () That ere were no objectively reasonable basis to subject plaintiff to e amount of force utilized by defendant, Tonya Herbst. Plaintiff was shot after he had - -
subdued and disarmed his son, after he told e police at he had possession of his son s firearm and not to shoot, after his son had been disarmed and was no longer a reat, and after e risk of danger had passed. caused injury and damage to plaintiff. () Defendant, Tonya Herbst, by using such unreasonable force, () That as a proximate cause of said deprivation of constitutional rights, e plaintiff suffered damages in e form of medical and hospital expenses, lost earnings, future loss of earning capacity, emotional distress and pain and suffering, for which he seeks compensatory damages against e defendant in her official as well as individual capacity. Plaintiff s Second Claim against Defendant Tonya Herbst for Amendment Violation Excessive Use of Force: The ultimate facts required to prove such claim under e applicable legal standard is at e force used by Deputy Tonya Herbst shocks e conscience. The evidence relied upon to prove each element of e claim is: (1) That at all times during is incident, Defendant Tonya Herbst, acted under color of law as a Deputy of e Ventura County Sheriff s Department. () That in her capacity as a Deputy of e Ventura County Sheriff s Department on May, 00, defendant Tonya Herbst, deprived plaintiff of his Amendment constitutional rights to be free from unreasonable seizure by subjecting plaintiff to excessive use of force by inflicting a gun shot wound upon plaintiff. () That e shooting of plaintiff by defendant, Tonya Herbst, shocks e conscience because plaintiff was shot after he had subdued and disarmed his son, after he told e police at he had possession of his son s firearm and not to shoot, after his son had been disarmed and was no longer a reat, and after e risk of danger had passed. caused injury and damage to plaintiff. () Defendant, Tonya Herbst, by using such unreasonable force, () That as a proximate cause of said deprivation of constitutional - -
rights, e plaintiff sustained e damages set for in Claim One, for which he seeks compensatory damages against e defendant in her official as well as individual capacity. Plaintiff s Third Claim against Defendant County of Ventura Failure to Train: The ultimate facts required to prove such claim under e applicable legal standard is at e training program of e defendant, County of Ventura, was inadequate to train Deputy Tonya Herbst in how and when to use firearms, in e use of force specifically as it applies to e use of deadly force, and in e use of proper tactics to subdue and disarm a criminal suspect. The evidence relied upon to prove each element of e claim is: (1) During defendant, Tonya Herbst s Sheriff s Academy training, she repeatedly failed to show competency and/or proficiency wi a firearm while on e shooting range and during a live fire shooting simulation in which she accidently fired her weapon wiout knowing it. During e same live fire shooting simulation, she showed poor judgement and used improper tactics by approaching a suspect too closely and failing to use available cover to shield herself from e risk of harm by e suspect. Despite ese shooting deficiencies and improper use of tactics, e County of Ventura failed to terminate her employment wi e Sheriff s Department, permitted defendant to graduate from e Sheriff s Academy and allowed her to be sworn as a Ventura County Sheriff s Deputy. Deputy Herbst continued to show a lack of competency and/or proficiency wi a firearm after she became a sworn Deputy. Deputy Herbst was required to periodically qualify on e Sheriff s Department shooting range. However, on several occasions, she failed to qualify on e shooting range on her first attempt and was required to retest in order to meet her basic shooting qualification. Despite her lack of competency and/or proficiency wi a firearm, no action was taken by e County of Ventura to terminate e employment of Deputy Herbst. () The defendant, County of Ventura, was deliberately indifferent to e need to adequately train deputies, such as Deputy Herbst, in e use of firearms, e - -
use of force policy of e Ventura County Sheriff s Department specifically as it relates to e use of deadly force, and e proper tactics to utilize in order to subdue and detain criminal suspects. () The failure to provide training was e proximate cause of e deprivation of e plaintiff s rights protected by e Amendment of e Constitution, as set for in Claim One. () That plaintiff sustained e damages set for in Claim One as a proximate result of defendant County s failure to properly train defendant Deputy Tonya Herbst. Battery: Plaintiff s Four Claim against Defendant Tonya Herbst State Claim for The ultimate facts required to prove such claim under e applicable legal standard is at Defendant intentionally did an act which resulted in a harmful or offensive contact wi e plaintiff; e plaintiff did not consent to e contact, and e harmful or offensive contact caused injury to e plaintiff. The evidence relied upon to prove each element of e claim is: (1) That in her capacity as a Deputy of e Ventura County Sheriff s Department on May, 00, defendant Tonya Herbst, intentionally inflicted a gun shot wound upon plaintiff. () Plaintiff did not consent to being shot by Deputy Herbst. () That as a proximate cause of defendant Tonya Herbst s assault and battery, plaintiff sustained e damages set for in Claim One, for which he seeks compensatory damages against e defendant in her official as well as individual capacities. Plaintiff s Fif Claim against Defendant Tonya Herbst Negligence: The ultimate facts required to prove such claim under e applicable legal standard is at Defendant Tonya Herbst owed a duty of care to plaintiff, at she breached said duty by negligently shooting him in e back under circumstances at did not warrant or justify such action on her part and at such negligence was e proximate cause of injury - -
to e plaintiff. The evidence relied upon to prove each element of e claim is: (1) That in her capacity as a Deputy of e Ventura County Sheriff s Department on May, 00, defendant Tonya Herbst, owned a duty of care to plaintiff, a citizen of e County of Ventura, State of California. () Deputy Herbst breached her duty of care owed to plaintiff by negligently inflicting a gun shot wound upon plaintiff wiout cause or justification. () That as a proximate cause of defendant Tonya Herbst s negligence, plaintiff sustained e damages set for in Claim One, for which he seeks compensatory damages against e defendant in her official as well as individual capacities. Defendant s Defenses: The analytical framework of e shooting proceeds under e Amendment because defendant, Deputy Tonya Herbst, intended to shoot Chad Morales but inadvertently shot plaintiff e Amendment conduct fault standard is conscience- shocking behavior which is not satisfied by e facts of is case because Deputy Herbst was defending herself and oers from an exhibited handgun which had recently fired (Moreland vs. Las Vegas Metropolitan Police Department, F. d, 1-( Cir. )). Even if analyzed under e Amendment reasonableness standard, Deputy Herbst s decision to shoot was justified by e proximity of e gun-wielding assailant under Graham vs. Connor. (c) (d) Defendant, Tonya Herbst, is entitled to e qualified immunity defense. Defendant, County of Ventura, is not liable bo because ere was no underlying constitutional violation by Deputy Herbst and because no entity policy maker was deliberately indifferent to e plaintiff s constitutional rights in e training, equipping and supervision of Deputy Herbst. (e) The ancillary, supplemental state claims are precluded by e decision of e California Court of Appeal in Martinez v. County of Los Angeles, () Cal. - -
App.,,because e shooting was a justifiable homicide. The plaintiff s action is likewise barred, or his recovery diminished, by his own comparative fault and failure to mitigate his damages, as well as by e ird-party fault of Chad Morales. The entity defendant is exonerated because e individual state actor is not liable for reasons previously stated, in accordance wi California Government Code... All discovery is complete except for e following: Cynia Chabay. The depositions of e parties expert witnesses: Roger Clark and Dr.. All disclosures under Federal Rules of Civil Procedure, Rule ()(c) have been completed. The joint exhibit list of e parties has been filed herewi under separate cover as required by Local Rule -. All exhibits may be admitted wiout objection, except ose exhibits listed below: Tonya Herbst. (c) (d) Evidence of e criminal conviction of Chad Morales. Radio/Traffic Tape of e Ventura County Sheriff s Department. Audio recording of incident by Deputy Todd Welty. Evidence of domestic violence complaints and reports filed by Deputy. All disclosures under Federal Rules of Civil Procedure, Rule () and have been made except for e report of plaintiff s expert, Roger Clark, which will be served on defendants on or before May,, 0. Witness lists of e parties have been filed herewi under separate cover as required by Local Rule -.. The parties intend to present evidence by way of video deposition testimony. Upon completion of ese depositions, each party will mark such depositions in accordance wi Local Rule -.. For is purpose, e following deposition transcripts shall be lodged wi e Clerk as required by Local Rule -1: ///////////////// Deposition of Carl Wells. Deposition of Ingo Peterson. - -
. Evidentiary Matters: Following e Rule - Pre-Filing Conference held on August, 0, e parties filed Motions in Limine seeking to exclude e following evidence: Plaintiff filed e following Motions in Limine to be heard at e Final Pre-Trial Conference: Motion in Limine to exclude Chad Morales criminal conviction. Motion in Limine to exclude e blood-alcohol content of Chad Morales. (c) Motion in Limine to exclude e Ventura County Sheriff s Department Radio Traffic Tape of is incident. (d) Motion in Limine to exclude e purported contemporaneous audio recording of e incident by Deputy Todd Welty. (e) Motion in Limine in opposition to defendants request for Bifurcation of Monel claim. Defendants filed e following Motions in Limine to be heard at e Final Pre-Trial Conference: Motion in Limine to exclude evidence at Defendant Tonya Herbst, was or was not, a domestic violence victim or e accuracy of her police reports in at regard. Motion in Limine to exclude evidence of wheer or not oer deputies or Tonya Herbst have fired eir weapons at suspects at oer times and places and oer conduct outside e time scope of e subject incident, such as Defendant Tonya Herbst s police academy records and class standing. (c) Motion in Limine to exclude evidence of e policies of e Ventura County Sheriff s Department or any oer administrative body, oer an in e Monellentity liability phase of e trial. (d) Motion in Limine to exclude evidence of lesser intrusive alternatives to e use of force actually utilized. ////////////// - -
. Plaintiff does not wish to have any claims bifurcated. Defendants are requesting a bifurcation of e entity liability determination from a phase one determination of e liability or non-liability of Deputy Tonya Herbst (Quintanilla vs. City of Downey, F. d ( Cir., )).. The foregoing admissions having been made by e parties, and e parties having specified e foregoing issues of fact and law remaining to be litigated, is Pre-Trial Conference Order shall supersede e pleadings and e previous Pre-Trial Conference Order and govern e course of e trial of is cause, unless modified to prevent manifest injustice. DATED: Approved as to form and content. DATED: May, 0 DATED: May, 0 Honorable PATRICK J. WALSH Magistrate Judge PETER M. WILLIAMSON, Esq. Attorney for Plaintiff ANTHONY MORALES JEFFREY HELD, Esq. Attorney for Defendants COUNTY OF VENTURA and TONYA HERBST - -