Kaur v. City of Lodi (263 F. Supp. 3d 947, 2017)

ORDER

Troy L. Nunley, United States District Judge

This matter is before the Court pursuant to Defendants City of Lodi (“Lodi”), City of Lodi Police Department (“LPD”) and Mark Helms’s (“Chief Helms”) Motion for Summary Adjudication (ECF No. 163) and Defendants Miles Scott Bratton (“Corporal Bratton”) and Adam Lockie’s (“Officer Lockie”) Motion for Summary Judgment, or in the alternative, Summary Adjudication (ECF No. 164).

The Court will refer to Lodi, LPD, and Chief Helms as the “City Defendants.” The Court will refer to Corporal Bratton and Officer Lockie as the “Officer Defendants.” For efficiency’s sake the Court will analyze the Officer Defendants’ motion first. The Court has carefully considered the arguments raised by the parties. For the reasons set forth below, the Officer Defendants’ motion is GRANTED in part and DENIED in part. Likewise, the City Defendants’ motion is GRANTED in part and DENIED in part,

I. Preliminary Discussion op the Officer Defendants’ Motion

This case arises out of a fatal police shooting. None of the non-officer witnesses (the “Non-Party Witnesses”) observed the entirety of the dynamic encounter between Parminder Singh Shergill (“Parminder”) and the Officer Defendants. The Non-Party Witnesses who witnessed the shooting itself could not see whether there was .a knife in Parminder’s hands at the time he was shot. However, their testimony does call into question the' key factual assertion which underlies the Officer Defendants’ motion: “[t]he [Officer Defendants] did not use deadly force until [Parminder] abruptly turned back and ‘charged toward’ them with the knife.” (ECF No. 164-1 at 38.) This factual dispute turns on a jury’s credibility determinations and cannot be resolved by the Court on summary judgment.

Unfortunately, the Officer Defendants’ motion takes for granted that this crucial factual assertion is undisputed to such a degree' that it is virtually impossible to intelligently engage their arguments with-' out reciting their version of events. Consequently, the Court will set out a brief summary of the Officer’ Defendants’ version of events in the “Factual Background” section of this Order followed by the material facts that Plaintiffs assert are in dispute. The Court will also include a brief summary of the deposition testimony of four Non-Party Witnesses who saw (or heard) the shooting because Plaintiffs inaccurately cite two of them for the proposition that it can be definitively stated Par-minder “never ‘armed himself with a knife.” (ECF No. 177-1 at 15 (emphasis added).)

The Court mentions an additional item of note. Plaintiffs submitted more than 60 evidentiary objections to the Officer Defendants’ proposed statement of undisputed material facts. (See ECF No. 177-1.) However, Plaintiffs acknowledge the Court need not separately address these eviden-tiary objections in order to resolve this motion. They have correctly cited Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1123 (E.D. Cal. 2006), for the proposition that “objections to evidence on the ground that it is'irrelevant,'speculative, and/or argumentative, or that 'it constitutes an improper legal conclusion are all dupli-cative of the summary judgment' standard itself.” (ECF No. 177 at 16 n.5; ECF No, 177-1 at 1-2.) The Court agrees and will not separately address these objections. Likewise, the Court found it unnecessary to resolve the Officer Defendants’ objections to Plaintiffs’ evidence offered in support of their opposition in order to resolve the Officer Defendants’ motion. (ECF No. 187-3.)

II. Factual Background of Officer Defendants’ Motion

A. The Officer Defendants’ Version of Events

The Officer Defendants responded to a 9-1-1 call placed from 23 Elderica Way, Lodi, CA (the “Family Home”) on the morning of January 25, 2014. (ECF No. 164-2 at ¶¶ 1, 4.) On that call Kuldeep Shergill (“Kuldeep”), Parminder’s sister-in-law, reported that Parminder was a “paranoid schizophrenic” who was “off his medication,” “going crazy,” and “attacking [her] mother-in-law” inside the Family Home. (ECF No. 164-2 at ¶4.) The substance of this call was relayed to the Officer Defendants prior to their arrival at the Family Home. (ECF No. 164-2 at ¶¶5-8.) Officer Lockie knew prior to his arrival that he was responding to a family disturbance involving a mentally ill individual attacking a family member. (ECF No. 164-2 at ¶ 9.) Corporal Bratton knew there was an assault at the residence involving a schizophrenic subject. (ECF .No. 164-2 at ¶ 10.) In reality, Parminder had attacked no one, but this information was not relayed to the Officer Defendants. (ECF No. 164-2 at ¶¶ 18-20.) Additionally, the Officer Defendants assert that Parminder had been drinking, but they do not assert that they were aware of this during their encounter with him. (See ECF No. 164-2 at ¶1.)

The Officer Defendants arrived approximately 11 minutes after the 9-1-1 call was placed. (Compare ECF- No. 164-2 at ¶ 11 with ECF No. 164-2 at ¶ 4.) They were told upon arrival that Parminder had already left the Family Home on foot. (ECF No. 164-2 at ¶ 14.) They were also informed that Parminder suffered from post-traumatic stress disorder and was off of his medication. (ECF No. 164-2 at ¶ 16.) Sarabjit Shergill (“Sarabjit”), Parminder’s brother, reported to the Officer Defendants that Parminder was “having .an episode” and could likely be found at a nearby park. (ECF No. 164-2 at ¶21.) Corporal Bratton was given a description of Parmin-der, including the clothes he was wearing. (Bratton Dep., ECF No. 164-4 at 112:6-9.) Corporal Bratton was also told there were guns in the house, but that they were locked up. (ECF No. 164-2 at ¶ 22.)'The Officer Defendants were not informed that Parminder owned a knife. (ECF No. 164-2 at ,¶ 230 Corporal Bratton told Kuldeep, Sarabjit, and Sukhwinder Kaur (“Sukhwin-der”), Parminder’s mother, that the Officer Defendants would drive around the block to look for Parminder, (ECF No. 164-2 at ¶ 26.) Parminder’s family was told to call LPD if Parminder returned home. (ECF No. 164-2 at ¶28.) The Officer Defendants left the Family Home in separate vehicles for nearby Peterson Park, (ECF No. 164-2 a^32.)

Corporal Bratton located Parminder in Peterson Park near the basketball courts and parked his vehicle on Evergréen Drive, which fronts the east side of the park. (See ECF No. 164-2 at ¶ 36.) Par-minder was observed walking through the middle of a coordinated exercise group in Peterson Park. (ECF No. 164-2 at ¶ 41.) Parminder, who was walking east toward Corporal Bratton and eventually past him, did not respond when Corporal Bratton spoke to him. (ECF No. 164-2 at ¶¶ 40, 42-43.) Parminder walked past Officer Lockie, who was in his patrol vehicle at the intersection of Elderica Way and Evergreen Drive at the border of Peterson Park, while Corporal Bratton trailed behind Parminder, attempting to speak with Parminder and asking Parminder to stop. (ECF No. 164-2 at ¶¶ 45-46, 48.) As Par-minder continued walking, he told Corporal Bratton, “Fuck you. I am not talking to you.” (ECF No. 164-2 at ¶49.) Parminder was walking in the general direction of the Family Home. (ECF No. 164-2 at ¶[¶ 49-50.) As he did this, Parminder removed a black knife from his clothing, opened it and held it at his side in his right hand. (ECF No. 164-2 at ¶¶ 49-50.) Corporal Bratton relayed this over the radio along with stating that Parminder was refusing commands. (ECF No. 164-2 at ¶¶ 50-54.) Officer Lockie exited his car upon hearing Corporal Bratton report that Parminder had a knife. (Lockie Dep., ECF No. 164-4 at 78:6-10.) Officer Lockie also observed the knife in Parminder’s right hand. (ECF No. 164-2 at ¶ 55.)

At some point after Parminder armed himself with a knife, the Officer Defendants drew their guns. (ECF No. 164-2 at ¶¶ 55, 57, 59.) Parminder continued to walk in the general direction of his home while ignoring the commands of the Officer Defendants, including commands to drop his knife. (ECF No. 164-2 at ¶¶ 57-58, 60-61.) Both of the Officer Defendants grew concerned that Parminder was a threat to his family. (ECF No. 164-2 at ¶¶ 56, 63.) Ultimately, Corporal Bratton radioed that “[w]e are going back on to Elderica, I need you to call the [9-1-1 caller] back and advise them to barricade the front door” noting that the “subject is armed with a knife” and “very agitated.” (ECF No. 164-2 at ¶ 64.) The Officer Defendants indicate that they followed Parminder trailing approximately ten'to twenty feet behind him and approximately ten to twelve feet from each other. (ECF No. 164-2 at ¶ 66.) Par-minder, while continuing to walk away and ignore commands, screamed “you want to talk to me motherfucker.” (ECF No. 164-2 at ¶ 67.) Corporal Bratton ordered Parmin-der to “stop,” “drop the weapon,” “put down the weapon,” and “stop or I will shoot.” (ECF No. 164-2 at ¶ 68.)

Parminder then quickly turned around and faced the Officer Defendants, while screaming with his knife in his right hand near his own head and the blade pointed at Corporal Bratton. (ECF No. 164-2 at ¶¶ 70-71.) Corporal Bratton again ordered Parminder to “stop,” “drop the weapon,” and “stop or I will shoot.” (ECF No. 164-2 at ¶ 72.) Corporal Bratton testified Par-minder then charged him giving out a “war' cry” and screaming: “Fuck you. I’m going to fucking kill you. Fucking kill me.” (ECF No. 164-4 at 135:11-136:16.) Officer Lockie testified that he perceived Parminder to be coming “towards [him].” (ECF No. 164-4 at 96:14-18.) At this point, Corporal Brat-ton was approximately twelve to fifteen away from Parminder. (ECF No. 164-2 at ¶ 75.)' The Officer Defendants were standing in front of 61 Elderica Way with Corporal Bratton in the driveway and Officer Lockie to his left. (ECF No. 164-2 at ¶¶ 75-76.) The Officer Defendants fired multiple shots at Parminder when he charged them with his knife. (ECF No. 164-2 at ¶¶ 80-85.) Officer Lockie estimated “maybe a second or two” elapsed between the time Parminder turned towards them and when they began shooting. (ECF No. 164-2 at ¶ 86.) The'Officer Defendants continued to shoot until Parminder fell to his knees and stopped advancing. (ECF No. 164-2 at ¶¶ 87-88.) After Parminder was shot, Officer Lockie slid Parminder’s knife away with his boot and radioed “shots fired.” (ECF No. 164-2 at ¶¶90-91.) Parminder was then handcuffed and emergency personnel were immediately called. (ECF No. 164-2 at ¶ 93.) The Officer Defendants performed first-aid until emergency personnel arrived. (ECF No. 164-2 at ¶¶ 96-97.) A California Department of Justice DNA analysis of the knife revealed that Parminder’s DNA was on the knife, but not the Officer Defendants. (ECF No. 164-2 at ¶ 108.)

Parminder sustained a total of 14 gunshot wounds. (ECF No. 164-2 at ¶ 115.) One minute and forty-three seconds elapsed between the beginning of the Officer Defendants encounter with Parminder and the time Parminder was shot. (ECF No. 164-2 at ¶126.) The Officer Defendants had left their bean bag shotguns in their vehicles and did not think they had time to deploy the less-than-lethal weapons they had on their utility belts once Par-minder abruptly turned towards them. (ECF No. 164-2 at ¶¶ 78-80.) The Officer Defendants attended a County Mental Health In-Service Training at the Lodi Police Department the day before the shooting. (ECF No. 164-2 at ¶ 131.) This training covered the criteria for a Welfare and Institutions Code § 5150 (“Section 5150”) hold. (ECF No. 164-2 at ¶ 132.) However, the Officer Defendants were not specifically trained on how to approach, speak to, or interact with violent, armed schizophrenic individuals on that occasion. (ECF No. 164-2 at ¶ 133.)

B. Plaintiffs’ Statement of Disputed Facts

On the morning of January 25, 2014, Parminder appeared to be experiencing symptoms of his mental illness. (ECF No. 177-2 at ¶ 1.) There is no evidence that Parminder consumed alcohol on January 25, 2014.- ,(ECF No. 177-1 at ¶ 1.) At no time during Parminder’s encounter with the Officer Defendants did he “arm himself with a knife.” (ECF No. 177-2 at 1f 3.) In front of the home located at 61 Elderica Way, Parminder stopped walking and began to turn and face the Officer Defendants. (ECF No. 177-2 at ¶4.) Before Parminder could complete the turn to face the Officer Defendants, they both began shooting Parminder. (ECF No. 177-2 at ¶ 4.) As Parminder was turning to face the Officer Defendants, he said “don’t shoot!” (ECF No. 177-2 at ¶ 5.) Parminder’s hands were either in his pockets or down at his sides at this time. (ECF No. 177-2 at ¶ 6.) At no time did Parminder move or advance towards the Officer Defendants. (ECF No. 177-2.at ¶ 7.) The Officer Defendants continued shooting Parminder, even as he was falling backwards. (ECF No. 177-2 at ¶ 8.) The DNA analysis cited by Officer Defendants states DNA from at least two contributors was found on the knife and does not state that the Officer Defendants’ DNA was not present. (ECF No. 177-1 at ¶ 108.)

C. Non-Party Witnesses of the Shooting

i. Timothy Antolin

In his deposition, Timothy Antolin stated that he is Cassandra Lopez’s son and that he was in her home at 61 Elderica Way at the time of the encounter between Parminder and the Officer Defendants. (See ECF No. 177-3 at 83:12-19, 84:15-18.) Mr. Antolin testified that he was in his upstairs bedroom when he heard what he initially assumed to be an argument between a father and child outside. (See ECF No. 177-3 at 85:23-24; 96:8-12.) It was after Mr. Antolin heard someone say “put down the weapon” that he began observing the encounter between Parminder and the Officer Defendants through the blinds of his bedroom window. (ECF No. 177-3 at 85:21-86:6.) Mr. Antolin states that “the man [was] standing ... arid the [officers] had him stopped and he was turned around talking to” the officers, who “had their guns pointed at him.” (See ECF No. 177-3 at 87:1-6.) Mr. Antolin indicated that at the time the man was shot by the officers he had not completely turned around to facé them. (See ECF No. 177-3 at 87:7-24.) Mr. Antolin stated that he could not see whether the man had anything in his hands at the time the man was shot. (ECF No. 88:15-19.) This was because Mr. Antolin “could not see the lower half of [the man’s] body” before he was shot. (ECF No. 88:15-19.) However, Mr. Antolin testified that the man had not lunged toward the officers. (ECF No. 88:20-22.) Rather, the man “didn’t move, he didn’t yell at them after a certain point ... he was just standing there.” (ECF No. 177-3 at 88:23-25.) After the man had fallen to the ground, Mr. Antolin stated the officer “put handcuffs on him” and “started rummaging through his pockets.” (ECF No. 177-3 at 89:19-20.) At some point, Mr. Antolin joined his mother in her bedroom which “has a more clear view.” CSee ECF No. 177-3 at 91:1-13.) Later, Mr. Antolin went outside and saw a knife near the scene of the shooting. (ECF No. 177-3 at 95:12-15.) Although he reiterated that he “couldn’t see [the man’s] hands,” Mr. Antolin stated that he suspects the officers had removed the knife from the man’s pockets because “it didn’t seem to me that he had anything” in his hands. (ECF No. 177-3 at 96:1-7.)

■ii. Cassandra Lopez

In her deposition, Ms. Lopez testified that she went to' an upstairs window in her home after yelling outside drew her attention to the encounter between Parminder and the Officer Defendants. (ECF No. 177-3 at 67:14-15.) Ms. Lopez observed “two officers with their guns drawn on a man and they kept saying stop, drop your weapon, turn around, stop and drop your weapon.” (ECF No. 177-3 at 67:24-68:1.) She described the officers, as yelling “loud[ly]” with their guns “pointed” at the man. (ECF No. 177-3 a 72:23-73:3.) Ms. Lopez indicated the man .the officers were addressing “kept walking and then after a couple of steps he stopped and he was faced” with his back towards the officers. (ECF No. 177-3 at 68:5-9.) Finally, she saw the man “turn, but he didn’t surrender” by which she meant “[h]e didn’t put his hands up and then turn around[.]” (ECF No. 177-3 at 68:13-14.) Ms. Lopez also stated that the man turned around “quickly” but that he “didn’t go at the [officers]” and “didn’t charge them.” (ECF No. 177-3 at 69:13-17.) Ms. Lopez testified that the man was shot multiple times after turning around. (ECF No. 177-3 at 69:17-70:2.) Ms. Lopez noted that the man “didn’t fall immediately” after being shot. (ECF- No. 177-3 at 70:7.) Ms. Lopez noted that from her vantage point she could not see his whole body and in particular “if he’s, right-handed, [she doesn’t] know if there’s anything in this hand” because she “can’t see this.” (ECF No. -177-3 at 69:18-20.) However, Ms. Lopez clarified that she did not seé the man raise his right arm. (ECF No. 177-3 at 77:1-6.)

in. Bob Mendes

In his deposition, Bob Mendes testified that he lives directly opposite the Family Home. (ECF No. 177-3 at 179:19-21.) He witnessed police officers arrive and depart from the Family Home on the morning of January 25, 2014. (See, e.g., ECF No. 177-3 at 179:22-25; 181:17-23.) Mr. Mendes stated that later while he was in his garage he heard yelling and walked out to his driveway. (ECF No. 177-3 at 182:10-18.) Mendes could not identify the distance between the encounter he observed and where he was standing, but indicated that he had an unobstructed view. (ECF No. 177-3 at 185:10-22.) Mr. Mendes identified Parminder by name and stated that “I couldn’t tell what Parm was saying, I just know that he was yelling[.]” (ECF No. 177-3 at 183:11-12.) Mr. Mendes déscribes Parminder as facing south — which Mr. Mendes indicated meant Parminder was facing him — and moving in Mr. Mendes’s direction. (ECF No. 177-3 at 183:22-184:7.) Mr, Mendes then indicated Parmin-der “turned and moved north.” (ECF No. 177-3 at 184:6-7.) Mr. Mendes noticed at some point the officers’ weapons were drawn and pointed at Parminder. (ECF No. 177-3 at 185:1-7.) Mr. Mendes testified that immediately before Parminder was shot Parminder was “moving towards them .with ... his right arm up, almost as if he was ... point or yelling, ... like if you get in an argument^]” (ECF No. 164-5 at 96:11-14.) However, Mr. Mendes also stated that he could not see.anything in Parminder’s raised .right hand from where he was standing. (ECF No. 164-5 at 96:16-24.) He also indicated that by the time Parminder turned around “[t]he yelling on [Parminder’s] part was kind of over at that point[.]” (ECF No. 177-3 at 184:5-10.)

iv. Alexandra Weise

The excerpt of Alexandra Weise’s deposition does not explicitly provide her precise location, but it is obvious from context that on the morning of the encounter she was sleeping in the house across from 61 Elderica Way. (ECF No. 177-3 at 103:1— 10.) She woke up after hearing voices outside her window. (ECF No. 177-3 at 103:12-13.) She remembered people yélling “stop.” (ECF No. 177-3 at 103:18.) Then someone said “don’t shoot.” (ECF No. 177-3 at 103:18-19.) Then, “all the gunshots went off,” (ECF No. 177-3 at 103:19.)

III. Standard op Review

Summary judgment is appropriate when the moving party demonstrates no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district ¡court of the basis of its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, .and admissions on. file together with affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[WJhere the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id. at 324, 106 S.Ct. 2548 (internal quotations omitted). Indeed, summary judgment should be entered against a party who does not make a showing sufficient to establish the existence of an element essential to that party’s ease, and .on which that party will bear the burden of proof at trial.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.ct 1348, 89 L.Ed.2d 538 (1986); First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings,- but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ, P. 56(c).' The opposing party must demonstrate that:the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 251-52,106 S.Ct. 2505.

In the endeavor to establish the existence of a- factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank, 391, U.S. at 288-89, 88 S.Ct. 1575. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in.order to see whéther there is a genuine need for trial.’ ” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (quoting Rule 56(e) advisory committee’s note on 1963 amendments).

In resolving the summary judgment motion* the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with any applicable affidavits. Fed. R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts pleaded before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Id. at 587,106 S.Ct. 1348.

IY. Analysis of Officer Defendants’ Motion

The following eight claims against the Officer Defendants’ are included in the •third amended complaint (“TAC”) (ECF No. 88). The First Claim — excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983 (“Section 1983”) — is brought by Sukhwinder, as successor in interest to Parminder. The Second Claim — intentional or reckless provocation in violation of the Fourth Amendment pursuant to Section 1983 — is brought by Sukhwinder, as successor in interest to Parminder. The Third Claim— deprivation of familial association in violation of the Due Process Clause of the Fourteenth Amendment pursuant to Section 1983 — is brought by Sukhwinder, individually. The Fourth Claim — deprivation of familial association in violation of the First Amendment pursuant to Section 1983 — is brought by Plaintiffs. The Ninth Claim — negligence (survival action) under California law — is brought by Su-khwinder, as successor in interest to Par-minder. The Tenth Claim — negligence (wrongful death) under California law — is brought by Sukhwinder, individually. The Eleventh Claim — negligent infliction of emotional distress under California law— is brought by Sukhwinder, as successor in interest to Parminder. The Twelfth Claim — interference with civil rights under California law — is brought by Su-khwinder, as successor in interest to Par-minder.

-The Officer Defendants move for summary judgment on each claim. (ECF No. 164.) The Officer Defendants argue that they are entitled to qualified immunity on each of Plaintiffs’ Section 1983 claims. (ECF No. 164-1 at 20.) For this reason, the Court will briefly describe the Section 1983 and qualified immunity standards generally before addressing each of the Section 1983 claims separately. The state law claims will be discussed together, as this is how they are treated in the Officer Defendants’ motion.

A. Section 1983 and Qualified Immunity

Section 1983 provides that “[ejvery person who, under color of any [state law] subjects, or causes to be subjected, any citizen of the United States ... to1 the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[J” 42 U.S.C. § 1983. “Section 1983 does not create any substantive rights, but is instead a vehicle by which plaintiffs can. bring federal constitutional and statutory challenges to actions by state and local officials.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

However, “[a]n official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Plumhoff v. Rickard, — U.S. -, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014). While “[qualified immunity shields federal and state officials from money damages[,]” Ashcroft v. alKidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), it is “an immunity from suit rather than a mere defense to liability!,]” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Consequently, it “is effectively lost if a case is erroneously permitted to go to trial.” Pearson, 555 U.S. at 231, 129 S.Ct. 808.

A district court evaluating whether a government official' is entitled to qualified immunity at the summary judgment stage asks two questions: (1) whether, taking the facts in the light most favorable to the nonmoving party, the officers’ conduct violated a federal statutory or constitutional right, and (2) whether the right was clearly established at the time of the alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Either question may be addressed first, and if the answer to either is “no,” then the officers cannot be held liable for damages. See Pearson, 555 U.S. at 236,129 S.Ct. 808.

With respect to the second prong, “[b]ecause the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). For this reason, the Supreme Court has emphasized the importance of ensuring the evidence is reviewed through the appropriate lens when deciding the “clearly established prong” on summary judgment. Tolan v. Cotton, — U.S.-, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014).

B. First Claim: Excessive Force

The Officer Defendants argue that summary judgment should be granted on Plaintiffs’ claim for excessive force in violation of the Fourth Amendment because their use of deadly force on Parminder was objectively reasonable taking their view of the facts, which they contend are undisputed. (ECF No. 164-1 at 20-30.) Additionally, even if the Court concludes that then-use of force violates the Fourth Amendment on those facts, the Officer Defendants argue that they are entitled to quali-. fied immunity because it was not clearly established that their use of deadly force was unconstitutional at the time of the shooting. (ECF No. 164-1 at 20, 30-34.)

Plaintiffs argue that it is improper to grant summary judgment on this claim because a jury must resolve the disputed material facts surrounding the use of deadly force, e.g., whether Parminder was armed at all, ‘let alone whether he was threatening the Officer Defendants with a knife. (ECF No. 177 at 17-26.) Plaintiffs further argue that viewing the record in the light most favorable to them a reasonable jury could conclude that the Officer Defendants use of deadly force violated the Fourth Amendment and did so in a way that violated clearly established law. (ECF No. 177 at 38-42.)

i. Fourth Amendment Standard

Allegations of excessive . force are examined under the Fourth Amendment’s prohibition on unreasonable seizures. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). When evaluating a Fourth Amendment claim of excessive force, , a court must ask “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them[.]” Id. at 397, 109 S.Ct. 1865. “[T]here are no, per se rules in the Fourth Amendment excessive force context; rather, courts must still slosh [their] way through- the factbound morass of reasonableness.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (internal quotation marks omitted). This inquiry “requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985));Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). “The calculus of reasonableness must embody allowance for the fact that police officers are often -forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396,109 S.Ct. 1865.

The Ninth Circuit has articulated a three-step approach to the Graham balancing test. See Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011). First, the district court “must assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted.” Id. (internal quotation marks omitted). Second, the district court must “evaluate the .government’s interest in the use of force.” Id. Finally, the district court must “balance the gravity of the intrusion on the individual against the government’s need for that intrusion.” Id. (internal quotation marks omitted).

“Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit has] held-on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).

ii. The Severity of the Intrusion

With respect to the first step, the severity of the intrusion, there is no dispute that the Officer Defendants used deadly force which resulted in Parminder’s death. (EOF No. 164-1 at 21.) “The intrusiveness of a seizure by means of deadly force is unmatched.” Gamer, 471 U.S. at 9, 105 S.Ct. 1694. Therefore, the Court proceeds to the second and third steps of the Ninth Circuit framework.

Hi The Government’s Interest in the Use of Force

With respect to the second step, the “strength of -the government’s interest in the force used is evaluated by examining three primary factors: (1) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ (2) ‘the severity of the crime at issue,’ and (3) ‘whether he is actively resisting arrest or attempting to evade arrest by flight.’ ” Glenn, 673 F.3d at 872 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). The “ ‘most important’ [of these factors] is whether the suspect posed an ‘immediate threat to the safety of the officers or others.’” Mattos, 661 F.3d at 441 (quoting Smith,, 394 F.3d at 702). “An officer’s 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.’” Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994) (emphasis removed) (quoting Garner, 471 U.S. at 3, 105 S.Ct.'1694).

The three primary factors for evaluating the second step of the Graham test, however, are not exclusive. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (describing these as the “core factors”). The Ninth Circuit has made clear that the district court must “examine the totality of the circumstances and consider “whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.’” Glenn, 673 F.3d at 872. Other relevant factors may include the availability of less intrusive force, whether proper warnings were given,’and whether it should have been apparent to the officers that the subject of the force used was mentally or emotionally disturbed. See, e.g., id. at 872; Bryan, 630 F.3d at 831; Deorle v. Rutherford, 272 F.3d 1272, 1282-83 (9th Cir. 2001). With respect to the possibility of less intrusive force, officers need not employ the least intrusive means available so long as they act within a range of reasonable conduct. Scott, 39 F.3d at 915.

The Court will first examine the core Graham factors. The Court will then consider those additional factors raised, in the Officer Defendants’ motion.

a. Immediate Threat to the Safety of the Officers or Others

Contrary to the Officer Defendants’ assertions, whether Parminder was charging them, .brandishing a knife, and threatening to kill them when they shot him to death is. a disputed question of material fact that must be resolved , by a jury. As discussed below, the deposition testimony of the Non-Party Witnessés calls into question the Officer Defendants’ accounts of these key moments. The Officer Defendants’ suggestion that “witnesses corroborate the [Officer Defendants’] version of events” is misleading. (ECF No, 164-1 at 23.) No more successful is the Officer Defendants’ argument that these crucial factual questions should be taken from a jury because one of their experts “opines that all of the physical evidence is consistent with the [Officer Defendants’] version of events” or because Parminder’s DNA was on a knife found at the scene of the .shooting. (ECF No. .164-1 at 23-24.) Once these disputed facts are properly resolved in Plaintiffs’ favor, as they must be on summary judgment, it cannot be said that Parminder was an immediate threat to the safety of the Officer Defendants or others at the, time he was shot.

The deposition testimony of four Non-Party Witnesses — Timothy Antolin, Cassandra Lopez, Robert Mendes, and Alexandra Weise — conflicts with the Officer Defendants’ accounts in three ways. First, the deposition testimony of Timothy Anto-lin and Cassandra Lopez squarely conflicts with the Officer Defendants’ assertion that Parminder was charging them when they shot him. Ms. Lopez specifically states that after Parminder turned around he “didn’t go at the [officers]” and “didn’t charge them.” (ECF No. 177-3 at 69:13-15.) Mr. Antolin testified that Parminder had not lunged toward the officers. (ECF- No. 177-3 at 88:20-22.) Rather, Parminder “didn’t move, ... he was just standing there.” (ECF No. 177-3 at 88:23-25.)

Second, the testimony of Mr. Antolin and . Ms. Lopez contradicts .the Officer Defendants, assertion that Parminder “turned and faced [the Officer Defendants] from less than fifteen (15) feet with the knife raised near .his head.” (ECF No. 164-1 at 22.) Both Antolin and Lopez heard the Officer Defendant make references to a weapon. And neither Antolin nor Lopez could definitively state that there was no knife in Parminder’s right hand from their vantage point. (ECF No. 177-3 at 69:18— 20; ECF No. 177-3 at 88:15-19.) However, their testimony suggests that Parminder’s right hand was not raised as he turned. (ECF No. 177-3 at 68:23-69:6; ECF No. 177-3 at 88:15-19.) In fact, Mr. Antolin states the reason he could not tell whether anything was in Parminder’s hands because he “could not see the lower half of [Parminder’s] body” from his vantage point. (ECF No. 177-3 at 88:15-19.) Mr. Antolin testified that it appeared that Par-minder’s may have “had his hands in his pockets[.]” (ECF No. 177-3 at 88:15-19.)

Third, the testimony of Mr.. Antolin, Mr. Mendes and Ms. Weisé calls into question whether Parminder was yelling and letting out a “war cry” while charging the Officer Defendants. (See ECF No.- 164-1 at 22.) Mr. Antolin testified Parminder had stopped yelling prior to beginning to turn around. (ECF No. 177-3 at 88:20-25.) Mr. Mendes indicated that by the time Parmin-der turned around “[t]he yelling on [Par-minder’s] part was kind of over at that point[.]” (ECF No. 177-3 at 184:5-16.) Ms. Weise testified she heard someone say “don’t shoot” just before the shots were fired. (ECF No. 177-3 at 103:18-19.)

As is apparent from the Officer Defendants’ discussion in their brief, Mr. Mendes testimony differs from Mr. Antolin and Ms. Lopez’s testimony and is in some ways consistent with the Officer Defendants’ testimony. (See ECF No. 164-1 at 23.) However, this misses the point. The question at the summary judgment stage is not whether Mr. Mendes’s testimony is as supportive of the Officer Defendants’ version of events as they suggest. It is similarly not the question whether the Non-Party Witnesses’ accounts are entirely consistent with each other. The question is whether the Officer Defendants’ version of events is rendered genuinely in dispute by the evidence properly before this Court. It is.

The Officer Defendants’ suggestion that their account is corroborated by the California Department of Justice’s finding of Parminder’s DNA on a knife recovered from the scene does not change this. (ECF No. 164-1 at 24.) Although this may be consistent with their accounts, it is not inconsistent with the account of the eyewitnesses. As previously noted Mr. Antolin believed Parminder’s hands may have been in his pockets. He then testified that after Parminder fell to the ground, an officer “put handcuffs on him” and he “started rummaging through his pockets.” (ECF No. 177-3 at 89:19-20.) It was only after' this that Mr. Antolin saw a knife near the scene of the shooting. (ECF No. 177-3 at 95:9-15.) A jury could find that Parminder owned a knife which had his DNA on it, but that it had been in his pocket at the time of the shooting. Therefore, they could conclude that he did not present an immediate threat to officers or anyone else.

Similarly, the opinion of Alexander Jason, the Officer Defendants’ “bullet wound expert,” that the physical evidence is “consistent” with the Officer Defendants’ accounts does not render their version of events undisputed. (ECF No 164-1 at 23.) The Court will briefly demonstrate this for Findings 2 through 5 contained in Mr. Jason’s Declaration. (Jason Deck, ECF No. 164-9 at ¶¶ 17-20.)

Finding 2 is that the’ “wound paths of the decedent are consistent with him moving forward toward Officer-Bratton while being struck by the bullets.” (ECF No. 164-9 at ¶ 17.) Jason makes no effort to explain why the wound paths are inconsistent with the accounts of the Non-Party Witnesses. Moreover, he does not' purport to know the orcler the 14 bullets entered into Parminder. Rather, he supports his finding by first repeating it essentially verbatim and then noting the following: (i) “[T]he wound paths ... are also consistent with ... rotational movement by the decedent and ... bending forward movements as the shots were being fired.” (ECF No. 164-9 at ¶ 17.) (ii) Six of the shots had “downward trajectories” consistent with “leaning forward.” (ECF No. 164-9 at ¶ 17.) And (iii) one of those six shots struck Parminder’s jaw and continued into his chest, which Jason states is consistent with “leaning forward in an aggressive manner” seemingly because Parminder having his chin “near his chest” is not consistent with standing erect. (ECF No. 164-9 at ¶ 17.)

Jason gives no explanation why having “rotational movement” suggests forward motion. Jason does not state whether this rotation came before Parminder’s supposed charge — which would be consistent with statements of Antolin and Lopez that Parminder was shot as he was turning or having just completed his turn toward the Officer Defendants — or after the shooting commenced — which may simply have been an effort to turn away as Parminder was being shot multiple times. Likewise, Jason does not indicate why leaning forward is inherently aggressive. It is noteworthy that Jason’s own analysis suggests that five of the eleven shots that struck Par-minder as he faced the Officer Defendants did not have a downward trajectory — one shot to the abdomen, two to the chest, and two in the legs. (See ECF No. 164-9 at ¶ 17.) If any or all of those five shots struck first, there are plausible alternative explanations for why Parminder was leaning forward that Jason does not discuss, let alone rule out. Might Parminder have been doubled over in pain when he was hit with the downward trajectory bullets? Did Parminder reflexively lean forward to look down to see where he had been hit? Was this some futile, instinctive attempt to make himself a smaller target? Tucking his chin to his- chest seems just as plausibly explained by any of these.

Finding 3 is that one of the three gunshot wounds not previously discussed entered Parminder’s arm in a manner consistent with Parminder’s right hand being in an “outstretched position toward the shooterf.]” (ECF No. 164-9 at ¶ 18.) Finding 4 is that the path of another of these three gunshot wounds suggests that Par-minder was “shot with right upper arm raised to his shoulder level[,]” which Jason opines is consistent with holding a knife up in “stabbing motion.” (ECF No. 164-9 at ¶ 19.) Finding 5 is that “bullet defects on decedent’s clothing are consistent with the right arm being raised when at least one of the bullets struck.” (ECF No. 164-9 at ¶ 19.) Again, there are plausible alternative explanations as to why Parminder might have his right arm raised with an outstretched hand to shoulder height that are inconsistent with the Officer Defendants’ account, which Jason makes no effort to rule out. Parminder might have been gesturing at the Officer Defendants to back off or leave' him alone — which would be consistent with Mr. Mendes’s testimony. {See ECF No. 164-5 at 96:11-14.) He might have been raising his hands to surrender or in effort to signal to the Officer Defendants not to shoot (or not to continue shooting) — which would be consistent with Ms. Weise hearing someone say “don’t shoot.” {See ECF No. 177-3 at 103:18-19.) Quite simply, these factual questions are not appropriately resolved by the Court on summary judgment. Therefore, this factor does not support granting the Officer Defendants’ motion.

b. Severity of the Crime at Issue

Viewing the summary judgment record through the proper lens, by the time the Officer Defendants encountered Parminder, they had reason to believe Parminder committed a misdemeanor act of domestic violence rather than a felony. “While ‘the commission of a misdemeanor offense is not to be taken lightly, it militates against finding the force used to effect an arrest reasonable where the suspect was also nonviolent and posed no threat to the safety of the officers or others.’ ” Newman v. San Joaquin Delta Cmty. Coll. Dist., 814 F.Supp.2d 967, 975 (E.D. Cal. 2011) (quoting Bryan, 630 F.3d at 828-29).

As this Court recently explained, under California law, the distinction between felony and misdemeanor domestic violence is whether the victim has suffered a physical injury. See Reed v. City of Modesto, 122 F.Supp.3d 967, 975 (E.D. Cal. 2015). The Court is mindful that the Officer Defendants were not told that the reported attack on-Parminder’s mother had not occurred and that reasonableness is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct, 1865. However, like Reed, there is no evidence in the record that the Officer Defendants observed any injury on any of the persons in the home. To the contrary, the Officer Defendants admittedly left the Family Home vñthout ascertaining1 whether anyone there had been injured. (ECF No. 177-3 at 19;3 — 9 (Corporal Bratton' testifying that he left without learning whether anyone had been hurt); EOF No. 177-3 at 146:19-25 (Officer Lockietestifying that he had not asked whether anyone was hurt and did not ’hear Corporal Bratton ask this question).)

That this misdemeanor involved domestic violence does not support a conclusion that the Officer Defendants’ use of force was reasonable because at the time they encountered Parminder the reported domestic diápute was not ongoing and the alleged victim was not in immediate danger. While the Ninth Circuit has emphasized the increased danger officers- face when responding to domestic disturbances, Ninth Circuit precedent has distinguished cases where (i) the domestic dispute terminated before officers arrived and (ii) the alleged abuser is no longer in the presence of or close proximity to the victim. This precedent can be succinctly summarized as follows:

Domestic violence situations are “partic-, ularly dangerous” because “more officers are killed or injured on domestic violence calls than on any other type of call.” Mottos, 661 F.3d at 450. At the same time, we explained in Mattos that the legitimate escalation of an officer’s “concern[] about his or her safety” is less salient “when the domestic, dispute is, seemingly over by the time the officers begin their investigation.” Id. Years before that we had held — in another en banc decision — that a husband’s criminal abuse of his spouse “provide[d] little, if any, basis for the officers’ use of physical force" because when law enforcement “arrived [the husband] was standing on his porch alone and separated from his-wife.” Smith, 394 F.3d at 703.

George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013). This is such a'case; Indeed, in the instant case Parminder was further removed from the Family Home than the husbands in Smith and George. See id. at 832-33," 839 (husband shot while on his back patio);8⅛⅞⅛, 394 F.3d at 693-94, 702-03 (husband tackled, pepper sprayed, and attacked by police dog on his front porch).

The Officer Defendants’ characterization of the crime at issue in their briefing results from a refusal to review the record through the prism of the traditional summary judgment standard, The Officer . Defendants suggest that the crimes at issue were “[a]ssault with a deadly weapon or by force likely to produce great bodily injury!;.]” (ECF No. 164-1 at 25.) Certainly, for the reasons stated above, this is not a characterization of the falsely reported domestic disturbance that the Court can accept at the summary judgment stage. However, the Officer Defendants’ brief suggests that this relates to Parminder’s activities with a knife after Parminder left his home. (See ECF No. 164-1 at 24-25.) Again, this presupposes the very much disputed facts that Parminder was armed with a knife and attacked the Officer Defendants, and so it too must be 'rejected.

For the foregoing reasons, this factor does not support granting the Officer Defendants’ motion.

c. Resisting Arrest or Attempting to Evade Arrest by Flight

At the time of the shooting, viewing the evidence in the light most favorable to Plaintiffs, a jury could conclude Parminder was neither .resisting nor attempting to flee, for the .reasons set forth above. Parminder was asked to. stop. A jury could conclude that he did. Two witnesses indicated Parminder did not move toward the Officer Defendants at that point and turned (or was in the process of turning) to face them. An earwitness testified she heard a person say "don’t shoot.”

d. Additional Factors to Consider

The Officer Defendants offer arguments with respect to five additional factors. The Court notes that four of these five arguments are little more than identifying factors that the Ninth Circuit has recognized as being appropriately considered in some cases coupled with a reformulation of their assertion that it is undisputed that they shot a man who was attacking them with a knife. The Ninth Circuit has unambiguously stated that “where a suspect threatens an officer with a weapon such as a gun or a knife, the officer is justified in using deadly force.” Smith, 394 F.3d at 704. However, the Ninth Circuit-.has repeatedly, noted that a “simple statement by an officer that he fears for- his safety or the safety of others is not enough.” See, e.g., Mottos, 661 F.3d at 441-42. This is not changed by repeating it over and over again under the guise of requesting the Court to consider “additional” factors under Graham.

Arguments of this sort are not helpful and do not warrant detailed responses on their own terms, i.e., discretely analyzing “additional” Graham factors only after improperly resolving crucial factual disputes in favor of the moving party. This is particularly true where it essentially assumes what the Ninth Circuit, sitting en banc, has twice described as the “most important” consideration under' Graham— whether the suspect posed an “immediate threat to the safety of the officers or others.” Mattos, 661 F.3d at 441; Smith, 394 F.3d at 702. Graham itself admonished that the Overarching inquiry — whether the force used to effectuate a particular seizure was reasonable — “is not capable of precise definition or mechanical application.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (emphasis added). The enumerated factors are' meant to facilitate (and focus) the inquiry into- whether the amount of force applied was reasonable in the totality of the circumstances the officers found themselves when they applied the’ force. Smith, 394 F.3d at 701. This is piecisely why a district court’s inquiry at the summary judgment stage is not limited to the three factors enumerated in Graham. Mat-tos, 661 F.3d at 441; Smith, 394 F.3d at 701.

As to the Officer Defendants’ argument that the fast development of events supported their use of deadly force, this must be rejected. (See ECF No 164-1 at 27-28.) • A jury 'could find that at the time the Officer Defendants shot Parmin-der, he had come to a- stop, faced them, did not brandish a weapon, and said “don’t shoot.” In other words, the situation was no longer dynamic and the Officer Defendants were not faced with imminent danger. It is well settled that the desire to end an encounter with a suspect quickly does not render the application of deadly force reasonable. See Glenn, 673 F.3d at 876-77. Moreover, as a jury could find Parminder did not pose an immediate threat, acting quickly is not a license to act unreasonably or excessively. See Mottos, 661 F.3d at 451.

Similarly,.the Officer Defendants’ argument that time did not allow them to appropriately consider less lethal force must be rejected. (See EOF No. 164-1 at 27.) As already discussed, a jury could find Par-minder had come to a stop at the Officer Defendants’ request and said “don’t shoot” at the time he was shot. This would, permit the Officer Defendants to weigh alternatives -short of shooting Parminder repeatedly at close range. Less intrusive means are not limited to applications of lesser amounts of force as the Officer Defendants’ arguments seem to suggest. See Deorle, 272 F.3d at 1282 (“[The officer who fired a less than lethal shotgun at plaintiff] could have easily avoided a confrontation, and awaited the arrival of the negotiating team.... ”); Glenn, 673 F.3d at 874 (“[Decedent] stood in the driveway several feet from the officers (who could have moved farther away at any time, had they wanted to), with guns trained on him, while his friends stood behind the officers and his parents and grandmother were in their homes.”). Quite simply, a reasonably jury need not accept the Officer Defendants’ argument that they were presented a binary choice: either allow themselves to be killed or “draw[ ] their weapons[,] shout[ ] commands,” and then shoot Parminder to death. See id. at 876 (“[W]hen dealing with an emotionally disturbed individual who is creating a disturbance or resisting arrest, as opposed to a dangerous criminal, officers -typically use less forceful tactics.”).

The Officer Defendants argue that giving Parminder warnings supports granting their motion. (EOF No. 164-1 at 26.) This also fails. Ninth Circuit precedent does provide that “[appropriate warnings ... should be given, when feasible, if the use of force may result in serious injury.” Glenn, 673 F.3d at 864 (emphasis added). Suppose the Officer Defendants told Par-minder: “We have reason to believe you have committed a misdemeanor and may be suffering from mental illness. If you do not cooperate with us within 103 seconds, we are prepared to shoot you fatally, even if you are unarmed, standing still, silently facing us, and ask us not to.” It is doubtful that the Officer Defendants would directly defend such a warning as proper if those were indeed the circumstances in which it was given, i.e. whether the warning was “appropriate.” But in essence those are the circumstances which a jury could conclude the Officer Defendants found themselves.

The Officer Defendants’ argument with respect to Parminder’s mental illness also fails. In short, they suggest “cases [that] ■ have criticized the use of force against mentally ill persons” are distinguishable because Parminder was shot to death while attempting to stab the Officer Defendants to death. (EOF No. 164-1 at 28-29.) This does not warrant a response as it clearly ignores the summary judgment standard. Moreover, a jury need not accept the Officer Defendants statement that they “perceive[d]” themselves to be dealing with a dangerous criminal suspect .rather than a mentally ill person. (EOF No. 164-1 at 29.) Both of the Officer Defendants acknowledge that they were aware prior to their arrival at the Family Home that they were responding to an incident involving a reportedly mentally ill person. (See EOF No. 164-2 at ¶¶ 9-10.) A reasonable jury could find that it should have been apparent to the Officer Defendants that Parminder was mentally ill and that he had not committed a severe crime. In that circumstance, Ninth Circuit precedent is clear that the government interest in the use of force is diminished. See Glenn, 673 F.3d at 876; Bryan, 630 F.3d at 829. The government interest in that context is in providing treatment and ensuring the potentially mentally ill person does not present a danger to himself or others rather than punishing him. See Bryan, 630 F.3d at 829. It should be kept in mind that officers who are investigating whether detention under Section 5150 is appropriate are not investigating a crime. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003).

Lastly, the Officer Defendants argue that their use of force was made more reasonable because of Parminder’s family’s “relative- culpability” in “creat[ing .this] dangerous situation.” (ECF No. 164-1 at 26-27.) The Officer Defendants’ rely on Espinosa v. City and Cty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010), for this proposition. This reliance is misplaced. That quotation does describe the “parties!”] ‘relative culpability,’ ” but this simply paraphrases the following quote from Scott:

“So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single, person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.”

Scott, 550 U.S. at 384, 127 S.Ct. 1769. Nothing suggests that “parties” as used in Espinosa means litigants. As the Ninth Circuit, sitting en banc, explained this statement from Scott merely observes that “in weighing the Graham governmental interests in a situation where someone is likely to get hurt — either a fleeing suspect or innocent bystanders — it is ‘appropriate in this process to take into account ... relative culpability.’” Mattos, 661 F.3d at 450. Plaintiffs do not dispute that Kuldeep falsely reported that Ms. Kaur was- attacked by Parminder. (ECF No. 177-1 at ¶¶ 18-19.) It seems quite apparent from Kuldeep’s deposition she hoped to provoke a quicker response time by making the police believe they were responding to a violent domestic dispute. (ECF No. 164-4 at 11:4-25.) However, if Parminder had survived his wounds and, therefore Plaintiffs were not “parties” with respect to this' claim, there could be no argument that the Officer Defehdants’ behavior would become less reasonable.. The Court’s analysis has already factored in that the Officer Defendants believed they had responded to a domestic dispute and that they were not told this was untrue until after they shot Parminder.

For the foregoing reasons, none of the foregoing factors support granting the Officer Defendants’ motion.

iv. Balancing the gravity of the intrusion against government’s interest

The foregoing analysis makes evident that the question whether the force used here was reasonable is a matter that cannot be resolved in favor of the Officer Defendants on summary judgment. The Officer Defendants have failed to. meet their burden to show that there are no questions of material fact regarding whether the use of deadly force was reasonable.. Plaintiffs have proffered evidence from which a reasonable jury could find that the Officer Defendants (i) had reason to believe they were dealing with a mentally ill individual, (ii) who at most committed a misdemeanor, (in) was not fleeing, (iv). had not armed himself with a knife, (v) was not threatening the Officer Defendants or anyone else, (vi) whose non-com-' pliance, if any, at the time he'was shot consisted of passively standing facing them, and (vii) may have said “don’t shoot.” A jury could further find that, even assuming Parminder was warned, such warnings were inadequate or inappropriate in the circumstances in which they were given. Consequently) the governmental interest in using force would be minimal and substantially outweighed by the severity of the intrusion on Parminder’s rights, and therefore a reasonable jury could conclude the Officer Defendants’ violated the Fourth Amendment.

Unless the Court concludes that the Officer Defendants are entitled to qualified immunity, the Officer Defendants’ motion must be denied with respect to this claim.

C. Qualified Immunity:.

Viewing the evidence in the light most favorable to Plaintiffs, the Officer Defendants’ conduct violated Parminder’s Fourth Amendment rights and it was “clearly established” that such conduct constituted a Fourth Amendment violation at the time of the Officer Defendants deadly encounter with Parminder. See Tolan, 134 S.Ct. at 1866. Therefore, their a