Case Information
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
DEVITTA BRISCOE, as executor of the ESTATE OF CHE ANDRE TAYLOR; JOYCE
DORSEY; CHE ANDRE TAYLOR, JR.; SARAH SETTLES on behalf of C.M.T., a
minor; and DEMEKA GREEN, as executor of the ESTATE OF BRENDA TAYLOR,
Plaintiffs, C18-262 TSZ v. ORDER CITY OF SEATTLE; MICHAEL and “JANE DOE” SPAULDING; SCOTT and “JANE
DOE” MILLER; TIMOTHY and “JANE DOE” BARNES; and AUDI and “JANE DOE”
ACUESTA, Defendants.
This case involves the shooting death of Che Andre Taylor. In more than one way, it is a “they said, he’s dead” case. The “they” in that phrase are members of the Seattle Police Department (“SPD”). The phrase is apropos because “they” say Taylor was reaching for a gun when he was shot multiple times at point-blank range, but Taylor’s version of events will never be known because the bullet wounds were fatal. The phrase is also fitting because issues of liability in this matter involve what “they” said to Taylor in the moments shortly before he died.
The incident leading to Taylor’s death occurred in February 2016. An inquest was conducted in February 2017, see Sharifi Decl. at ¶ 5 & Exs. 4(a) – 4(e) (docket no. 83), and no criminal charges were filed against any officer involved. This civil action commenced in February 2018. See Compl. (docket no. 1). After three revisions of the operativе pleadings, plaintiffs are now (i) Devitta Briscoe, Taylor’s sister and the executor of his estate, (ii) Joyce Dorsey, Taylor’s mother, (iii) Che Andre Taylor, Jr., Taylor’s adult son, (iv) Sarah Settles on behalf of her daughter, C.M.T., Taylor’s minor child, and (v) Demeka Green, the daughter of Taylor’s deceased wife, Brenda Taylor, and the executor of her mother’s estate. See 3d Am. Compl. at ¶¶ 2.1 - 2.5 (docket no. 62). They sue the City of Seattle, SPD Officers Audi Acuesta, Timothy Barnes, Scott Miller, and Michael Spaulding, and unknown SPD personnel. See id. at ¶¶ 2.6 - 2.11. In their Third Amended Complaint, plaintiffs assert the following claims: (i) negligence; (ii) outrage; (iii) false arrest; (iv) unlawful seizure; (v) discrimination in violation of RCW 49.60.030; and (vi) deprivation of substantive due process rights in violation of 42 U.S.C. § 1983. See id. at ¶¶ 5.1 - 5.9.
This matter comes before the Court on defendants’ motion for summary judgment, docket no. 73, in which they seek dismissal of all claims on various grounds, including (i) qualified immunity as to the § 1983 claims brought against Acuesta, Barnes, Miller, and Spaulding, individually, (ii) failure to establish the policy or practice required for municipal liability under § 1983 pursuant to Monell v. Dep’t of Soc. Servs. of N.Y.C. , 436 U.S. 658 (1978), (iii) the bar on personal injury or wrongful death claims that is set forth in RCW 4.24.420, and (iv) lack of merit. Having reviewed all papers and other materials filed in support of, and in opposition to, defendants’ motion, the Court now enters this Order. The Court concludes that, because plaintiffs are entitled to have every reasonable inference from the evidence drawn in their favor, the key questions of whether the officers involved reasonably believed Taylor was armed when they approached to arrest him and whether they reasonably believed he was reaching for a weapon at the time they shot him cannot be decided on summary judgment. As a result, whether Miller and Spaulding are entitled to qualified immunity cannot be determined before trial. Certain other matters, however, can be resolved as a matter of law, and рlaintiffs’ case can be narrowed for trial.
Background
A. Events Preceding the Shooting
On the afternoon of February 21, 2016, two members of SPD’s Anti-Crime Team (“ACT”), a unit that focuses on “street-level narcotics and vice activity,” see Miller Decl. at ¶ 3 (docket no. 81), were conducting surveillance from an unmarked vehicle near an apartment located at 2024 NE 85th Street #3 in Seattle, Washington. Miller Interview, Ex. A to Miller Decl. (docket no. 85-1 at 8). These ACT officers, Miller and Spaulding, were there to arrest Sean Kelly, for whom a no-bail warrant was outstanding. Spaulding Interview, Ex. A to Spaulding Decl. (docket no. 82 at 6). While waiting for Kelly to emerge from the apartment, Miller and Spaulding saw a Dodge Magnum drive up and park on the opposite side of street from them. See id. (docket no. 82 at 6-7). Spaulding, who knew from social media that Taylor had recently acquired a Dodge Magnum, wondered if Taylor was in the vehicle; both Miller and Spaulding were acquainted with Taylor from previous contaсts. See id. at 7. According to Miller, as Taylor was getting out of the Dodge Magnum, Miller recognized him and saw a black handgun in a holster on Taylor’s right hip. Miller Interview (docket no. 85-1 at 8). Miller told Spaulding that he had seen “a Glock, it’s on his right hip.” See Spaulding Interview (docket no. 82 at 7).
Miller ran a check and confirmed that Taylor was a felon, considered by federal authorities to be an “armed career criminal.” Miller Interview (docket no. 85-1 at 8). After Taylor went into the apartment that Kelly was believed to be occupying, Miller radioed a request for backup to apprehend Taylor on suspicion of being a felon in possession of a firearm. id. (docket no. 85-1 at 9). Acuesta and Barnes, who were on routine patrol, were dispatched to assist during the arrest, and they staged themselves a block west. Acuesta Report, Ex. A to Acuesta Decl. (docket no. 74 at 4). A “simple plan” was devised whereby Miller and Spaulding would signal when Taylor came out of the аpartment and everyone would move in to arrest him. Miller Interview (docket no. 85-1 at 10).
Just before Taylor exited the apartment, however, an older Sport Utility Vehicle (“SUV”) pulled up and partially blocked Miller’s and Spaulding’s views. Id. They could see that Taylor was outside the apartment, talking to one or two other males, but then they lost sight of him. When the SUV drove away, Taylor was gone. Id. Sometime later, a white sedan (a 1995 Ford Taurus) arrived and parked directly behind Taylor’s Dodge Magnum. Id. ; see also Kineticorp Report at 1, Ex. B to Neale Decl. (docket no. 79 at 16) (describing the make and model of the sedan). At that point in time, Taylor had not been under Miller’s or Spaulding’s unobstructed observation for approximately thirty minutes.
The Ford Taurus had three occupants: a white male later identified as Tom Papageorge was in the driver’s seat, a white female later identified as Noelle Knudsvig was in the rear passenger’s seat, and a black male later identified as Taylor was in the front passenger’s seat. See Noble Report at ¶¶ 26 & 27, Ex. B to Noble Decl. (docket no. 80 at 45-46). Taylor got out of the Ford Taurus and, with the passenger door still open, stood facing inside the car. See Miller Interview (docket no. 85-1 at 11). Miller and Spaulding gave the signal to move in to arrest Taylor. Miller and Spaulding then got out of their vehicle, armed with a shotgun and a rifle, respectively, and approached Taylor, while one or both of them allegedly yelled “Seattle Police.” id. ; Inquest Tr. (Spaulding), Ex. 4(a) to Sharifi Decl. (docket no. 83-1 at 33). Both Miller and Spaulding were dressed in plain clothes, but prior to exiting their vehicle, they had donned either a jacket or vest, respectively, bearing the word “POLICE” across the front chest. Inquest Tr. (Miller), Ex. 4(b) to Sharifi Decl. (docket no. 83-1 at 45); Spaulding Interview (docket no. 82 at 15).
B. “Their” Version of the Shooting
Although the patrol car carrying Acuesta and Barnes was equipped with a dash- mounted camera, the key events of the day cannot be seen on the recording, having been obstructed from view by the Ford Taurus. The encounter with Taylor, prior to the shooting, lasted only five to six seconds. The recording shows Miller and Spaulding beginning their approach toward the Ford Taurus before 4:15:48 p.m. on February 21, 2016. Fig. 1. By 4:15:53 p.m., Taylor had been fatally wounded. Fig. 2. Taylor Spaulding
Fig. 1: Still
captured from
Ex. A to Miller Valdez Decl.
(docket no. 94)
(red labels
added).
Fig. 2: Still
captured from
Ex. A to
Valdez Decl.
(docket
no. 94). During a recorded interview conducted shortly after midnight on the day of the shooting, Miller stated that, as he walked toward Taylor, he yelled “Seattle Police,” called Taylor by a nickname (“Che T”), and said, “let me see your hands,” “show me your hands, get on the ground.” Miller Interview (docket no. 85-1 at 11-12). Figure 1, supra , shows the relative positions of the officers and Taylor when these commands were issued. Miller contends that, as he rounded the rear of the vehicle, he saw Taylor crouch slightly into the car and turn a bit toward him, and that Taylor’s right arm made a “telltale sign of going for a weapon.” Miller Interviеw (docket no. 85-1 at 12). Miller then fired one round from his shotgun. Id.
When Spaulding was interviewed about the incident, roughly three hours before Miller, he said that, while he was approaching Taylor, he also called Taylor “Che T,” and directed Taylor two or three times to show his hands and get down on the ground. Spaulding Interview (docket no. 82 at 9). According to Spaulding, Taylor replied, “hey, what, what, what’s going on, what’s going on,” and then said, “okay, okay,” but instead of “simply dropp[ing] down to his knees,” Taylor “turned to his right” and “started slouching over into the car.” Id. Spaulding allegedly saw Taylor’s right arm drop, his right hand go to his waist, and his elbow come up, and Spaulding told investigators that he “knew right there that [Taylor] was drawing for the handgun.” On the recording, Spaulding can be heard saying “hey, no” two times, right before firing his rifle multiple times. Inquest Tr. (Spaulding) (docket no. 83-1 at 36); see also Ex. A to Valdez Decl. (docket no. 94). After being shot, Taylor slumped into the vehicle and fell to his back and side, at which point Spaulding purportedly saw that a holster on Taylor’s right hip was empty. Spaulding Interview (docket no. 82 at 9).
In the accounts given within hours after the shooting, neither Miller nor Spaulding mentioned that Taylor had raised his hands before beginning to lower himself to the ground. Approximately a year later, however, Spaulding testified that Taylor put his hands up about “chest high,” and initially appeared to obey the officers’ commands to get on the ground. Inquest Tr. (Spaulding) at 1040:15-18 (docket no. 83-1). A computer-generated animated sequence, which was commissioned by defendants, depicts Taylor, with his hands visible to the officers, just moments before he was shot. Miller
Fig. 3: Snapshot
captured from Ex. C to Neale
Decl. (docket Spaulding no. 71) (labels added).
The animation, created by William T.C. Neale, the Director of Visualization and a co- founder of Kineticorp, see Neale Decl. at ¶ 2 (docket no. 79), is otherwise cumulative of the dash-camera recording and the narratives that Miller and Spaulding offered on the day of the shooting and, to the extеnt Neale’s simulation was submitted by defendants in an attempt to bolster the officers’ credibility, it is not relevant.
C. Post-Shooting Investigation
1. Firearm and Holster
After the shooting, a black Springfield Armory XDS .45 caliber handgun was located underneath the front passenger seat of the Ford Taurus. Haakenstad Decl. at ¶ 3 (docket no. 77). The weapon was oriented with the barrel pointing toward the front of the vehicle and the grip facing the rear of the car. See Ex. A to Charles Miller Decl. (docket no. 76 at 4-5). When photographed prior to its removal from the Ford Taurus, the gun was covered with debris. See Ex. A to Haakenstad Decl. (docket no. 77). Latent prints recovered from the firearm were not of identification value, and no comparison could be made with respect to deoxyribonucleic acid (“DNA”), contributed by at least five different individuals, that was found on various surfaces of the pistol, including the grip, trigger, magazine, and cartridges. Gilbertson Report at ¶ 27, Ex. B to Gilbertson Deсl. (docket no. 90-2).
An empty holster was also discovered at the scene. See Haakenstad Decl. at ¶ 3 & Ex. B (docket no. 77). According to SPD Detective Lisa Haakenstad, the holster was of a type often sold with the model of firearm found under the seat of the Ford Taurus. See id. at ¶ 3. In her declaration, Haakenstad seems to suggest that the holster was found attached to Taylor’s belt at the right hip. See id. The only holster logged as evidence,
however, was apparently located on the street, near the right rear door of the Ford Taurus. See Gilbertson Report at ¶ 29 (docket no. 90-2) (citing Haakenstad Report at 7). The holster can be detached from a belt without unbuckling it. See id. A firefighter, who arrived at the scene after the shooting, testified at the inquest that, as he cut off Taylor’s clothes, he saw a holster, but no gun. Noble Report at ¶¶ 31(b) & (d) (docket no. 80).
2. Occupants of the Ford Taurus
Although the driver of the Ford Taurus, Papageorge, had perhaps the best vantage point to observe the incident, no party has submitted a declaration by him concerning the events of February 21, 2016. During the course of the investigation concerning Miller’s and Spaulding’s use of force, however, Papageorge denied seeing Taylor with a gun on the day of the shooting. Noble Report at ¶ 27(c) (docket no. 80) (citing Force Investigation Report). Papageorge explained that Taylor had come to the trailer park (referring to the now defunct University Trailer Park at 2101 NE 88th Street) and asked for a ride to his vehicle. at ¶ 27(a). He recounted that later, as a police car was and they do not provide a basis to entirely disregard Gilbertson’s declaration or report in connection with the pending motion for summary judgment. Certain portions of Gilbertson’s declaration and/or report are addressed separately in this Order. infra notes 10, 12, 13, & 15. approaching, Taylor began to “wrestle in his seat and move around,” but Papageorge “wasn’t paying attention.” Id. at ¶ 27(d).
Similarly, no party has provided a statement under oath from Knudsvig, the rear passengеr of the Ford Taurus. Shortly after the shooting, Knudsvig made the following unsolicited remarks while in an SPD patrol car: “Yeah, the guy I was with earlier, he -- a friend of my friend’s, he was all of a sudden -- I didn’t know he was -- I didn’t know he was running from the law. But anyways, they were just like, you know, just get on the ground, and he pulled out -- I think he pulled out a gun.” Ex. 3 to Sharifi Supp. Decl. (docket nos. 96 & 98); see Tr. (Feb. 21, 2016) at 5:9-14 (docket no. 104). Knudsvig also indicated that she “couldn’t see past the seat” and “couldn’t really see to tell you the truth, ‘cause it was from the front seat and [she] was in the back.” Noble Report at ¶ 26(b) (docket no. 80) (citing Force Investigation Report). When asked whether Taylor reached for a gun, Knudsvig replied, “Yeah, he did. He, when the cop was ta – yelling get out the car, you know, he had, he was reaching for his gun, okay.” at ¶ 26(e). Knudsvig’s ramblings are internally inconsistent and vary from the recollections of other witness. Although Knudsvig said that she couldn’t “really see” what happened, she also described Taylor “pull[ing] out” a firearm, which not even the officers allege he actually did, while being instructed to “get out” of the vehicle, which no one says Taylor was told to do; Taylor was already standing outside the Ford Taurus when Miller and Spaulding confronted him. Plaintiffs further argue that Knudsvig is not credible because, on the day of the shooting, she falsely identified herself using her sister’s name, was found in possession of a syringe containing suspected heroin, and had an outstanding warrant for her arrest. Valdez Am. Decl. at ¶¶ 3-4 & 6 & Exs. B & D (docket nos. 107, 107-2, & 107-4). In deciding defendants’ pending motion for summary judgment, the Court need not evaluate Knudsvig’s veracity; rather, the Court simply notes that Knudsvig’s unsworn utterances neither corroborate nor contradict the officers’ recitation of events. [6]
Discussion
A. Qualified Immunity
Because qualified immunity is “an
immunity from suit
rather than a mere defense
to liability,”
Mitchell v. Forsyth
,
Qualified immunity is intended as a means of balancing the need “to hold public
officials accountable when they exercise power irresponsibly” against the need “to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.”
Pearson
, 555 U.S at 231. It presently protects governmental actors when
they make reasonable mistakes of fact, reasonable mistakes of law, or reasonable
mistakes of mixed law and fact.
But see Stephenson v. Doe
,
In seeking qualified immunity, the individual defendants invoke Federal Rule of
Civil Procedure 56, which authorizes the Court to grant summary judgment if no genuine
issue of material fact exists and the moving party is entitled to judgment as a matter of
law.
See
Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the
absence of factual disputes.
E.g.
,
Celotex Corp. v. Catrett
,
1. Constitutional Violations
Plaintiffs allege two different violations of the Fourth Amendment, namely (i) a
warrantless arrest effected without probable cause, and (ii) the use of excessive force.
They seek to hold four officers individually liable, namely Acuesta, Barnes, Miller, and
Spaulding. Defendants move to dismiss plaintiffs’ claims against Acuesta and Barnes
because they did not use any force against Taylor. Defs.’ Mot. at 11 n.8 (docket no. 73).
A police officer cannot be held liable for an alleged constitutional violation simply
because he or she was present or was a member of a team; rather, for liability to attach,
the evidence must establish the individual’s own participation in the сonstitutional tort.
Jones v. Williams
,
a.
Probable Cause to Arrest
A claim for unconstitutional seizure is cognizable under § 1983 if an arrest was
initiated “without probable cause or other justification.”
See Dubner v. City & Cty. of
San Francisco
,
In this matter, plaintiffs do not dispute that Taylor was a felon and that, on the day in question, his possession of a firearm would have constituted a crime. The key issue is whether the officers involved had probable cause tо believe Taylor had a gun at the time they seized him by approaching with lethal force and commanding him to get on the ground. Only Miller is alleged to have seen a weapon in a holster on Taylor’s right hip approximately thirty minutes earlier; Spaulding did not make a similar observation and relied solely on what he heard from Miller. Plaintiffs have offered no basis for disbelieving Miller’s statement that Taylor was armed when he exited the Dodge Magnum earlier in the afternoon. Instead, plaintiffs argue that Miller’s information and the resulting probable cause were “stale” before the officers tried to apprehend Taylor because they had lost sight of him on two different occasions (for a total of roughly thirty minutes): once when he entered the surveilled apartment, and again when he left the scene. In addition, their view of Taylor in the moments before they confronted him was obstructed by the Ford Taurus, and they could not confirm that he was still carrying a gun.
“[T]ime is a crucial element of probable cause.”
United States v. McCall
, 740
F.2d 1331, 1335 (4th Cir. 1984). “Probable cause ceases to exist when it is no longer
reasonable to presume that items, once located on the premises [or the person], are still
there.”
United States v. Brinklow
,
b.
Excessive Force
Generally, the question of whether an individual has been subjected to excessive
force requires а balancing of “the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the countervailing governmental interests at stake.”
Luchtel v. Hagemann
,
2014). Although Cruz is not entirely analogous, it does suggest that a reasonable jury could, in certain circumstances, disbelieve the accounts of several officers even though the perspective of the individual who was shot and killed could not be known. In other words, a “they said, he’s dead” situation does not necessarily result in summary judgment with respect to an excessive force claim.
In Cruz , police officers surrounded the suspect with weapons drawn and directed him to get on the ground as he was emerging from his vehicle. Id. at 1078. According to four of the five officers, the suspect ignored these commands and reached for the waistband of his pants, where an informant had reported he was carrying a gun. Id. at 1078 & 1079 n.2. The suspect was shot multiple times and died. Id. at 1078. A weapon was not found on the suspect’s person, but rather in the front passenger seat, with the safety on. Id. at 1078 & 1079 n.3. Given these facts, the Ninth Circuit observed that an officer’s shooting of a person who reaches for a firearm is “unquestionably reasonable.” Id. at 1078.
In deciding, however, that a jury could distrust the four officers’ version of events and find that the suspect was essentially “executed,” the Ninth Circuit reasoned as follows. The suspect could see that he was surrounded by officers with guns drawn. at 1079. To reach for a weapon in such circumstances would have been foolish (or suicidal), but to make such gesture when no gun is present “makes no sense whatsoever.” Id. One of the officers involved in the shooting provided the same “reached for waistband” explanation when he killed another unarmed man two years later. Id. at 1080. According to the Ninth Circuit, although “they both reached for a gun” might be a plausible defense, “they both reached for no gun” is not. Id. In addition, the Ninth Circuit thought a jury could (i) be skeptical that all four officers had a line of sight to the suspect’s hand as he stood between his vehicle and its open door, and (ii) doubt the officers’ credibility about the suspect reaching for his waistband with his right hand given that the suspect was left-handed. Id. The Ninth Circuit further observed that the four officers’ story of the suspect exiting the car and standing in the doorway was inconsistent with the fact that, after he was killed, the suspect had to be cut free from his seat belt. Id. The only non-police eyewitness indicated that the suspect’s feet emerged from the car, but then the suspect seemed to be “‘slipping on the ground, like kind of falling down,’ as if he were ‘tripping.’” Id. In the Ninth Circuit’s view, the evidence potentially painted a picture of the suspect trying to get out of his car, but being caught in his seat belt, as opposed to standing next to the vehicle poised to attack multiple police officers whose guns were aimed at him, and the matter needed to be resolved by a jury, not on summary judgment.
This case has some parallels to Cruz , but it does not involve the same types of impeachment evidence. The record does not suggest that either Miller or Spaulding has been involved in a similar shooting or that they are performing the kind of “song-and- dance” to which Cruz refers. id. Cruz is also dissimilar because the non-police witnesses do not contradict the officers’ perceptions of Taylor’s actions immediately before he was shot. Nevertheless, in this case, as in Cruz , the reasonable inferences from the evidence provide some support for the propositions that Taylor was not armed at the time he was shot and that Taylor was not engaged in the nonsensical act of drawing for a non-existent gun [11] while multiplе officers aimed their weapons at him. Moreover, like in Cruz , in which the suspect might have been trying to comply with commands to get on the ground, but got caught in his seat belt, in this matter, Taylor might be viewed by a reasonable jury as having attempted to show his hands and get on the ground, as directed, but having difficulty doing so because the instructions were inconsistent [12] and he was confined within the space between the street curb, the passenger door, and the door frame of the Ford Taurus. Indeed, reaching for the running board of the vehicle for support, in an effort to lower himself, might explain the movements of Taylor’s right arm and elbow. With Cruz in mind, and having considered “the totality of the circumstances” from the perspective of a reasonable officer on the scene, the Court cannot determine, as a matter of law, whether Miller’s and Spaulding’s use of deadly force was reasonable, given the severity of the crime аnd the factual issues concerning whether Taylor posed a threat to the safety of the officers.
2. Clearly Established Law
The principle underlying qualified immunity is that law enforcement officers must
have had notice that their conduct was unlawful before they are subjected to suit.
Hope v. Pelzer
,
The Ninth Circuit has described as a “bedrock Fourth Amendment precept” that an
arrest must be supported by probable cause.
Beier
,
The Ninth Circuit has also indicated that, prior to February 2016, when Taylor was
shot, the law was “clearly established” that law enforcement personnel “may not kill
suspects who do not pose an immediate threat to their safety” even if the suspects are
armed.
Van Bui v. City & Cty. of San Francisco
, 699 Fed. App’x 614, 616 (9th Cir.
2017) (defining law as of December 2010, quoting
Harris v. Roderick
,
as a matter of law, reasonable. To be clear, the Court is not concluding that Miller and
Spaulding are not entitled to qualified immunity; the Court is merely ruling that factual
questions preclude a grant of summary judgment on the subject and the issue of whether
Miller and Spaulding should be insulated from personal liability must await trial.
See Littrell v. Franklin
,
B. Monell Liability
A municipality may not be held liable under § 1983 on a respondeat superior
theory.
Ulrich v. City & Cty. of San Francisco
,
C. Bar on Personal Injury or Wrongful Death Claims
In seeking dismissal of plaintiffs’ state law claims, defendants rely on the following provision:
It is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death. However, nothing in this section shall affect a right of action under 42 U.S.C. § 1983.
RCW 4.24.420. Defendants contend that Taylor was involved in two felonies at the time of the shooting, namely unlawfully possessing a firearm, see RCW 9.41.040, and assaulting law enforcement officers, see RCW 9A.36.011(1)(a) & RCW 9A.36.031(1)(g). For the reasons already discussed, whether Taylor was engaged in the requisite felony and whether any such felony was a proximate cause of Taylor’s death involve factual questions that preclude summary judgment.
D. Merits of Plaintiffs’ Claims
Factual questions also preclude summary judgment on the merits of the negligence, outrage, unlawful arrest, and excessive fоrce claims asserted by Taylor’s 18
19 cite no authority for the proposition that Monell liability arises if officers are not trained on the
20
exact scenario they faced in “this incident.”
21
The public duty doctrine, on which plaintiffs focus in responding to defendants’ motion for
summary judgment, is no longer an obstacle to plaintiffs’ negligence claim.
Beltran-Serrano
22
v. City of Tacoma
,
17 that, at the time Taylor was killed, C.M.T. had not yet been born, her mother was not married to
Taylor, Taylor had a spouse, and C.M.T. therefore had no reasonable expectation of a familial
relationship with Taylor. For support, defendants cite
Lehr v. Robertson
,
severed her relationship with the man by surrendering him, as an infant, for adoption. 894 F.3d 22 at 1057-58. Defendants offer no evidence that, prior to his death, Taylor renounced his parental
responsibilities with respect to C.M.T.
23 claim, however, lack merit, and defendants are entitled to summary judgment as to those claims.
1. Substantive Due Process
The Court has twice dismissed Brenda Taylor’s substantive due process claim with prejudice based on plaintiffs’ concessions. See Order at 11 (docket no. 26); Minute Order
at ¶ 1(d) (docket no. 40). Plaintiffs fail to explain how Brenda Taylor’s estate would have a claim that Brenda Taylor did not herself possess before she died. The § 1983 claim brought on behalf of Brenda Taylor’s estate is DISMISSED with prejudice.
Taylor’s own estate is limited to its Fourth Amendment claims, and it may not
pursue a Fourteenth Amendment claim for interference with familial relationships.
See Estate of Adomako v. City of Fremont
,
2. Discrimination
The Washington Law Against Discrimination (“WLAD”) prohibits discrimination
in public accommodations on the basis of race.
See
RCW 49.60.030(1)(b). Defendants
contend that plaintiffs cannot establish all of the elements of a WLAD claim because they
cannot show Taylor’s race was a “substantial factоr” in defendants “not treating him in a
manner comparable to the treatment” of others outside his protected class.
Demelash
v. Ross Stores, Inc.
,
Conclusion
For the foregoing reasons, the Court ORDERS:
(1) Defendants’ motion for summary judgment, docket no. 73, is GRANTED in part and DENIED in part, as follows:
(a) Plaintiffs’ claims against Acuesta, Barnes, and unknown SPD personnel are DISMISSED;
(b) The § 1983 claim against the City of Seattle is DISMISSED; (c) The substantive due process claims alleged by Brenda Taylor’s estate and Taylor’s estate are DISMISSED;
(d) The discrimination claim brought under the WLAD is DISMISSED; and
(e) Defendants’ motion is otherwise DENIED. The negligence, outrage, unlawful arrest, and excessive force claims asserted by Taylor’s estate and the substantive due process claims brought on behalf of Taylor’s children and mother remain for trial. With regard to the still pending § 1983 claims, only Miller and Spaulding are defendants, but the City of Seattle is a defendant as to the state law claims.
(2) Defendants’ motion, docket no. 106, for leave to file a motion to strike plaintiffs’ surreply and certain declarations, is STRICKEN as moot.
(3) Defendants’ motion, docket no. 97, to strike Gilbertson’s declaration, docket no. 90, and opinions, is GRANTED in part and DENIED in part; the Court has considered Gilbertson’s views only to the extent appropriate in connection with a motion for summary judgment.
(4) The Clerk is directed to update the docket to reflect that Devitta Briscoe sues only in her capacity as executor of Taylor’s estate, and not individually, and to send a copy of this Order to all counsel of record.
IT IS SO ORDERED.
Dated this 1st day of September, 2020.
A Thomas S. Zilly United States District Judge
Notes
[1] According to the Ninth Circuit, “[n]obody likes a game of ‘he said, she said,’” but the game of
“[they] said, he’s dead” is “far worse.”
Cruz v. City of Anaheim
,
[2] Contrary to the caption of the case, the operative pleading does not identify any claim that
Briscoe asserts individually.
See
3d Am. Compl. (docket no. 62). As Taylor’s sister, and not his
child, parent, or spouse, Briscoe cannot assert a substantive due process claim.
Ward v. City
of San Jose
,
[3] Miller and Spaulding could not see Taylor at all after he entered the surveilled apartment, which was sometime before 3:45 p.m., when Miller requested backup. Miller Interview 21 (docket no. 85-1 at 9); Barnes Report, Ex. A to Barnes Decl. (docket no. 75 at 4). At 4:03 p.m., the ACT officers radioed that Taylor had exited the apartment, but at 4:14 p.m., shortly before 22 the white Ford Taurus appeared, they advised that Taylor was “no longer visible.” Barnes Report (docket no. 75 at 4). 23
[4] As Millеr and Spaulding began moving toward the white sedan, Acuesta and Barnes arrived 21 and exited their patrol vehicle. Acuesta Report (docket no. 74 at 4). Barnes also gave Taylor commands to “get on the ground.” Barnes Report (docket no. 75 at 4). Meanwhile, 22 Acuesta yelled at Papageorge, who was in the driver’s seat of the Ford Taurus, “hands” and “let me see your hands.” Noble Report at ¶ 21(i) (docket no. 80 at 39). 23
[5] Defendants have moved to strike Gilbertson’s declaration and opinions, incorporating by reference the arguments made in their separate motion, docket no. 86, to preclude Gilbertson from testifying at trial. Reply at 2-4 (docket no. 97). For the past 20 years, Gilbertson has been a tenured professor at Centralia College, where he teaches and serves as Faculty Director of the Criminal Justice Program. Gilbertson Report at ¶¶ 3 & 7 (docket no. 90-2). He was previously employed as a police officer in Atlanta and LaGrange, Georgia. Id. at ¶ 9. He has a Master of Science degree in Justice Administration from Columbus State University in Georgia, and has completed over 1,000 hours of law enforcement and special weapons and tactics (“SWAT”) training, education, and operational experience. at ¶ 12. Defendants challenge Gilbertson’s qualifications on the grounds that he was never commissioned as an officer in Washington, did not attend any training classes in Washington, never trained other police officers, was never involved in a situation in which he or a fellow officer used deadly force with a firearm, and last worked as a police officer in 1996. Defs.’ Mot. at 3 (docket no. 86). These attacks on Gilbertson’s credentials go to the weight, not the admissibility, of his opinions,
[6] In light of this observation, defendants’ motion, docket no. 106, seeking leave to file a motion to strike plaintiffs’ counsel’s declarations disparaging Knudsvig, is STRICKEN as moot.
[7] In
Pearson
, the Supreme Court held that the elements of the qualified immunity standard need
not be addressed in any particular sequence.
[8] Although plaintiffs, in their operative pleading, alluded to “unknown police officers” who were “acting within the course and scope of [their] employment with the City of Seattle and under color of law,” see 3d Am. Compl. at ¶ 2.11 (docket no. 62), they have not named any other defendants. The deadlines for joining parties and amending pleadings have expired, see Minute Order (docket no. 18); Minute Order (docket no. 39), and any claims against “unknown police officers” are DISMISSED with prejudice for failure to prosecute. Fed. R. Civ. P. 41(b).
[9] Because neither Acuesta nor Barnes instigated the arrest or fired a weapon at Taylor, the
predicates for the outrage, unlawful seizure, excessive force, discrimination, and substantive due
process claims against them cannot be established. In their surreply, plaintiffs argued that
Acuesta and Barnes should be held individually liable because they gave inconsistent commands
to Taylor. Surreply at 1-2 (docket no. 99). With respect to Acuesta, plaintiffs provide no
evidence that he issued any commands to Taylor. As to Barnes, who ordered Taylor to get on
the ground, plaintiffs make no showing that such command differed from the directives of Miller
and Spaulding. Plaintiffs further fail to explain how telling Taylor to get on the ground would,
by itself, implicate Barnes in any unlawful arrest or use of excessive force. Moreover, to the
extent that plaintiffs allege Acuesta and/or Barnes were negligent in giving instructions to
Taylor, the appropriate defendant is not the individual officers, who were acting within the scope
of their employment, but rather the City of Seattle.
Beltran-Serrano v. City of Tacoma
, 193
Wn.2d 537, 551-52,
[10] In support of this contention, plaintiffs rely on Gilbertson’s opinion. Gilbertson Decl. at
¶ 4 (docket no. 90). Gilbertson’s view constitutes a legal conclusion that is outside the bounds of
19
proper expert testimony.
Fontana v. City of Auburn
,
[11] Plaintiffs are entitled to the reasonable inferences that Taylor had no holstered weapon and that he was not reaching for the Springfield Armory pistol underneath thе passenger seat of the Ford Taurus, the grip of which was oriented toward the rear of the vehicle, rendering it difficult to quickly retrieve and fire.
[12] In addition to observing that the commands “show me your hands” or “hands up” contradict the directive to “get on the ground,” Gilbertson asserts, based on his education, training, and experience, that “only one uniformed police officer should have been issuing verbal commands to Taylor.” Gilbertson Report at ¶¶ 45-47 (docket no. 90-2) (emphasis added). Gilbertson also opines that one of the commands a uniformed officer should have given was for Taylor to step away from the Ford Taurus. at ¶ 47.
[13] Gilbertson asserts that “[t]ens of thousands of convicted felons unlawfully possess firearms every day in our nation and remain at large,” and that, because Taylor was not, at the moment, 20 brandishing a gun, Miller and Spaulding “knew or should have known the most reasonable and prudent course of action was to dеlay arresting Taylor until he was alone.” Gilbertson Report at 21 ¶ 34 (docket no. 90-2). The Court accepts Gilbertson’s observations to the extent they speak to the relative severity of the suspected offense, but Gilbertson’s conjecture about the officers’ 22 knowledge crosses the line into territory reserved for the trier-of-fact and disregards the officers’ expressed concerns about Taylor getting away while purportedly armed with a weapon. 23
[14] Plaintiffs asserted in their surreply, without reference to any evidence in the record, that “[a]ll officers stated they did not . . . recall receiving any training that would assist them with this incident,” and that the City of Seattle’s deliberate indifference to training rendered constitutional violations “highly foreseeable.” Surreply at 3 (docket no. 99). Plaintiffs offer no proof that SPD officers are not trained to handle the arrest of an individual suspected to be armed, and they