Bun v. City of Livermore

Background

Ly Sabeth Bun sued the City of Livermore, Officers Daniel Tabak and Michael Busavec, Police Chief Michael Harris, and unnamed defendants under 42 U.S.C. § 1983. He claimed that Tabak used excessive force in violation of the Fourth and Fourteenth Amendments and that the City was liable under the rule associated with Monell for failing to train its officers.

The incident occurred on November 2, 2015. Bun was suspected of driving a stolen vehicle and other offenses. After the California Highway Patrol attempted to arrest him, he fled on foot onto private property. Livermore officers repeatedly ordered him to stop, show his hands, and get on the ground. Bun did not comply and continued moving away from the officers.

Officer Busavec initially carried a less-lethal launcher, but he fell and broke his leg. Tabak took the launcher and fired rounds at Bun from approximately 30 to 40 feet. At least one round struck Bun’s arm, and another struck the back of his head. Bun was then handcuffed and taken to a hospital. The court stated that he suffered a cracked skull and traumatic brain injury. No gun was found.

Excessive-force claim

The court analyzed the force under the Fourth Amendment’s objective-reasonableness standard. It considered the seriousness of the suspected offenses, whether Bun posed an immediate threat, whether he was resisting or fleeing, the time available for decision-making, the amount of force used, possible alternatives, warnings, and whether Bun appeared emotionally disturbed.

The court concluded that the record, viewed in Bun’s favor, could support a jury finding that the force was excessive. Bun was fleeing and refusing commands, which supported the officers’ position. But the suspected offenses were not violent; Bun had not threatened or charged at officers; Tabak had never seen a weapon; Bun was generally moving away slowly and appeared confused or disoriented; multiple officers were present; and the launcher was used from a distance at which it posed a serious risk of injury, including when aimed toward Bun’s back and head. The court also found factual disputes about whether Bun posed an immediate threat, whether the situation required immediate action, and whether officers should have recognized signs of emotional disturbance.

Because a reasonable jury could find a constitutional violation, the court stated that Tabak was not entitled to summary judgment on the merits of the excessive-force claim. It nevertheless granted Tabak summary judgment based on qualified immunity. Qualified immunity can protect a public official from damages unless the official violated a constitutional right that was clearly established at the time. The court held that Bun had not shown that clearly established law would have told a reasonable officer that using the less-lethal launcher was unlawful under these specific circumstances, particularly because Bun was evading arrest and a witness reported that a gun might be present.

Fourteenth Amendment due-process claim

The court also granted Tabak summary judgment on Bun’s substantive due-process claim. Because the force occurred during an attempt to arrest a fleeing person, Bun had to present evidence that Tabak acted with the purpose of causing harm unrelated to the legitimate objective of making the arrest. The court found no evidence that Tabak acted maliciously, intended to harm Bun for its own sake, or acted with an ulterior motive. The court explained that the possibility that the force was excessive under the Fourth Amendment did not, by itself, establish the required intent for a due-process violation.

Other defendants and claims

The court granted summary judgment to Busavec and Harris. It found no evidence that Busavec had been fundamentally involved in Tabak’s use of force; merely supplying or being associated with the launcher was not enough. Harris was not present at the incident, and the record did not link him to a specific culpable act or failure involving Tabak’s training, supervision, or control.

The court also rejected Bun’s request for punitive damages because no underlying § 1983 claim remained against Tabak after the court’s rulings. It ruled that individual defendants could not be liable under Bun’s Monell claim, which provides a basis for municipal rather than individual liability.

As to the City of Livermore, the court granted summary judgment on the failure-to-train claim. Bun’s expert stated that officers should practice using less-lethal weapons in real-world scenarios quarterly, but the court found that opinion lacked a sufficient factual or methodological basis. The court also found no evidence that the City knew a missing quarterly-training requirement would cause constitutional violations, no evidence of similar violations by untrained employees, and no basis for treating the alleged training omission as an exceptionally obvious constitutional risk.

The court dismissed the Doe defendants because Bun had not identified them, amended the complaint, or explained what further discovery would likely identify them.

Disposition

The court granted defendants’ motion for summary judgment in its entirety. It directed the Clerk to enter judgment for defendants and close the case.