Marshall v. Hertzog et al, No. 2:2012cv01335 - Document 25 (W.D. Wash. 2013)
Court Description: ORDER Granting in part and Denying in part Defts' 17 Motion for Summary Judgment by Judge John C Coughenour.(TF)
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Marshall v. Hertzog et al Doc. 25 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 KADEN MARSHALL, 10 Plaintiff, 11 v. 12 CASE NO. C12-1335-JCC ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT DAVID L. HERTZOG, et al., 13 Defendants. 14 This matter comes before the Court on the Mercer Island Defendants‘ motion for 15 16 summary judgment. (Dkt. No. 17.) Having thoroughly considered the parties‘ briefing and the 17 relevant record, the Court finds oral argument unnecessary and hereby GRANTS IN PART and 18 DENIES IN PART Defendants‘ motion for the reasons explained herein. 19 I. BACKGROUND 20 In August 2010, Kaden Marshall, like many Seattleites, spent his Seafair Saturday on 21 Lake Washington enjoying the sunshine, having some drinks, and watching the Blue Angels as 22 they prepared for the Sunday exhibition. (See Dkt. No. 20 at 9.) Mr. Marshall owns a 20-foot ski 23 boat, and unsurprisingly, was able to recruit a few friends with whom he could spend the day out 24 on the lake. To be safe, however, Mr. Marshall (wisely) enlisted his friend Nick Homer to serve 25 as the designated boat driver for the day, since Mr. Marshall planned to consume alcohol while 26 on the boat. (Id. at 9–10.) And for three hours—from approximately noon to 3:00 p.m. on August ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 1 Dockets.Justia.com 1 7, 2010—Mr. Marshall and his friends consumed alcohol while on his boat in Lake Washington. 2 (Id. at 8–9.) The exception was Nick Homer, who as the designated driver, refrained from 3 drinking. (Id. at 8, 12.) 4 Also on Lake Washington that day were Mercer Island Police Officer David Herzog and 5 Washington State Trooper James Miller. ( Officers ). These two officers were working Seafair 6 weekend together as part of a Joint Taskforce, and were cruising Lake Washington in a Mercer 7 Island Patrol Boat. (Dkt. No. 18 at ¶ 2.) Around 3:00 p.m. that afternoon, Officers Herzog and 8 Miller witnessed an individual riding on the transom of a 20-feet ski boat while the boat was 9 underway in a no-wake zone just south of the I-90 floating bridge. (Id. at ¶ 9.) Having witnessed 10 this conduct, the officers approached the vessel, which turned out to be Mr. Marshall‘s boat, 11 directed that the boat be stopped, and informed Mr. Homer, the boat‘s driver, that the boat was 12 stopped because a passenger was riding on the stern. (Id; Dkt. No. 20 at 12–13.) Mr. Homer 13 complied with the officers‘ directive, stopped the boat, and upon request, informed the officers 14 that he did not possess a boater safety education card as required under Washington law. (Id.) 15 The officers then requested the boat‘s registration, which Mr. Marshall, as the boat‘s admitted 16 owner, provided to the officers. (Dkt. No. 20 at 12–13.) Mr. Marshall also stated that he had a 17 boater education card. (Id. at 19.) 18 Shortly thereafter, the officers inquired as to whether Mr. Marshall was responsible for 19 the actions of Mr. Homer, the boat‘s driver. (See id. at 13–14.) The exact quotes of this 20 interaction are subject to differing accounts by the witnesses, but all are consistent in that Mr. 21 Marshall affirmed that he owned the boat and was in some way responsible for the passengers‘ 22 and Mr. Homer‘s actions. (Id. at 13–14, 19, 24, 27.) Mr. Marshall also admitted, and does not 23 now dispute, that he was intoxicated. (Id. at 24, 27–28.) Under the officers‘ creative 24 interpretation of the Washington Boating Under the Influence statute, see RCW § 79A.60.040(2), 25 they concluded that Mr. Marshall had admitted the facts necessary to constitute a violation 26 thereof, and the officers—contrary to all common sense—arrested Mr. Marshall for Boating ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 2 1 Under the Influence. According to the officers‘ own testimony, however, Mr. Marshall was not 2 observed driving the boat. (Dkt. No. 20 at 18 ( [T]he only reason why I remember this case is 3 because this driver was not actually driving at the time[.] ). Finally, neither party disputes that 4 the boat‘s driver, Mr. Homer, had not been drinking and was not intoxicated. (Dkt. No. 20 at 8, 5 12.) Following Mr. Marshall‘s arrest, he was taken to shore, cited, and criminally charged 6 7 with Boating Under the Influence. (Dkt. No. 22 at 9–10.) Upon the State‘s subsequent motion to 8 dismiss, however, the King County District Court dismissed the charge with prejudice. (Id. at 9 10.) This lawsuit followed, in which Mr. Marshall alleges that the officers‘ actions constituted a 10 violation of his right to be free from unreasonable seizure under the Fourth Amendment. In 11 addition to this § 1983 claim for false arrest, Plaintiff also brings an excessive force claim; 12 claims against Mercer Island Police Chief Ed Holmes in his individual and official capacities (as 13 well as a Monell claim against the City of Mercer Island) for failure to train and failure to 14 prevent the alleged constitutional deprivation; and state law claims for false arrest and 15 negligence. Defendants Herzog, Holmes, and the City of Mercer Island ( Mercer Island Defendants ) 16 17 now move for summary judgment, arguing that Officer Herzog is entitled to qualified immunity 18 and that Plaintiff‘s claims are unsupported by admissible evidence. As explained below, the 19 Court denies the motion insofar as the Defendants seek dismissal of Mr. Marshall‘s § 1983 and 20 state law false arrest claims based on Officer Herzog‘s qualified immunity. However, because 21 Plaintiff has otherwise failed to support his contentions in the face of a motion for summary 22 judgment, summary judgment is granted with respect to his remaining claims. 23 // 24 // 25 // 26 // ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 3 1 II. DISCUSSION 2 A. 3 Pursuant to Rule 56 of the Federal Rules of Civil Procedure, [t]he court shall grant Summary Judgment Standard 4 summary judgment if the movant shows that there is no genuine dispute as to any material fact 5 and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In making such 6 a determination, the Court must view the facts and inferences to be drawn therefrom in the light 7 most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 8 (1986). Once a motion for summary judgment is properly made and supported, the opposing 9 party must come forward with specific facts showing that there is a genuine issue for trial. 10 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are 11 those that may affect the outcome of the case, and a dispute about a material fact is genuine if 12 there is sufficient evidence for a reasonable jury to return a verdict for the non–moving party. 13 Anderson, 477 U.S. at 248–49. Ultimately, summary judgment is appropriate against a party who 14 fails to make a showing sufficient to establish the existence of an element essential to that 15 party‘s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. 16 Catrett, 477 U.S. 317, 324 (1986). Plaintiff’s § 1983 False Arrest Claim and Qualified Immunity 17 B. 18 The Fourth Amendment protects individuals against unreasonable searches and 19 seizures. U.S. Const. amend. IV. A warrantless arrest, which constitutes a seizure, is 20 unreasonable and thus unconstitutional if it is not supported by probable cause—i.e., if the 21 facts and circumstances within [the arresting officer‘s] knowledge are [not] sufficient for a 22 reasonably prudent person to believe that the suspect has committed a crime. Rosenbaum v. 23 Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011). Thus, to prevail on a § 1983 claim for 24 false arrest, a plaintiff must demonstrate that there was no probable cause to arrest him. Norse 25 v. City of Santa Cruz, 629 F.3d 966, 978 (9th Cir.2010) (en banc). [P]robable cause does not 26 exist where a police officer arrests an individual for activities that do not constitute a violation of ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 4 1 the law. Beier v. City of Lewiston, 354 F.3d 1058, 1065–66 (9th Cir. 2004). 2 Even if an individual demonstrates a violation of a constitutional right, however, 3 [q]ualified immunity shields government officials from civil damages liability unless the 4 official violated a statutory or constitutional right that was clearly established at the time of the 5 challenged conduct. Acosta v. City of Costa Mesa, 718 F.3d 800, 824 (9th Cir. 2013) (citing 6 Reichle v. Howards, --- U.S. ---, 132 S. Ct. 2088, 2093 (2012)). Ultimately, [a]ssessing whether 7 an official is entitled to immunity is a two prong inquiry[,] and the Court may address the 8 prongs in whichever order it deems appropriate under the circumstances. Id. Under the first 9 prong, the Court determines whether, [t]aken in the light most favorable to the party asserting 10 the injury, [] the facts alleged show [that] the officer‘s conduct violated a constitutional right[.] 11 Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Under the second prong, the Court 12 determines whether the right allegedly violated was clearly established ; to be clearly 13 established, the contours of the right must be sufficiently clear that a reasonable official would 14 understand that what he is doing violates that right. Id. (quoting Anderson v. Creighton, 483 15 U.S. 635, 639 (1987)). 16 In the context of a false arrest claim, the Ninth Circuit has summarized the requisite 17 qualified immunity analysis. The Court first determines whether there was probable cause for the 18 arrest, without which the arrest is unconstitutional. Rosenbaum, 663 F.3d at 1076. Even if an 19 unconstitutional arrest occurred, however, an officer may still be entitled to qualified immunity if 20 it is reasonably arguable that there was probable cause for arrest—that is, whether reasonable 21 officers could disagree as to the legality of the arrest such that the arresting officer is entitled to 22 qualified immunity. Rosenbaum, 663 F.3d at 1076 (emphasis in original); see Norse, 629 F.3d 23 at 978 ( a government official is entitled to qualified immunity on a false arrest claim if a 24 reasonable officer in his position could have believed that probable cause existed ). Ultimately, 25 the linchpin of qualified immunity analysis is the reasonableness of the officer‘s conduct. 26 Rosenbaum, 663 F.3d at 1076. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 5 1 Here, the officers arrested Mr. Marshall for Boating Under the Influence, in violation of 2 RCW § 79A.60.040(2). At the time of his arrest, that provision provided as follows: 3 4 5 It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor[.] A person is considered to be under the influence of intoxicating liquor [] if: 6 (a) The person has 0.08 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person‘s breath[]; or 7 (b) The person has 0.08 percent or more by weight of alcohol in the person‘s blood, as shown by analysis of the person‘s blood[]; or 8 9 10 (c) The person is under the influence of or affected by intoxicating liquor[]; or (d) The person is under the combined influence of or affected by intoxicating liquor and any drug. 11 RCW § 79A.60.040(2)(a)–(d) (emphasis added). To operate a vessel within the meaning of 12 this provision means to steer, direct, or otherwise have physical control of a vessel that is 13 underway. RCW § 79A.60.010(16). Contrary to Defendants‘ assertions, addressed in detail 14 below, to operate as defined in the statute does not include a situation where a non-driver 15 exercises actual authority over the individual driving the vessel. Compare RCW § 16 79A.60.010(16) (defining operate, which is used in RCW § 79A.60.040(2)) with RCW § 17 79A.60.010(17) (defining operator, which is not used in RCW § 79A.60.040(2)). In simple 18 terms, these provisions make it a crime to drive a boat while under the influence of alcohol. 19 Thus, the question that determines whether Officer Herzog is entitled to qualified 20 immunity for his decision to arrest Mr. Marshall is as follows: Could a reasonable police officer 21 in his position—i.e., knowing the facts he knew at the time of the arrest—have believed that 22 probable cause existed to arrest Mr. Marshall, who was concededly intoxicated, for steer[ing], 23 direct[ing] or otherwise hav[ing] physical control of his boat while it was underway. See 24 Norse, 629 F.3d at 978; RCW §§ 79A.60.040(2), 79A.040.010(16). The clear answer to this 25 question, which encompasses the answer to both steps of the qualified immunity analysis, is a 26 resounding no. The officers did not have probable cause to arrest Mr. Marshall for Boating ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 6 1 Under the Influence, and no reasonable officer could have reached such a conclusion. 2 As explained above, all parties agree that Mr. Marshall was not driving the boat when it 3 was initially stopped or at any point thereafter. Further, Mr. Marshall never drove or operated 4 the boat on August 7, 2010, and the officers were never told that Plaintiff had driven or 5 otherwise exercised physical control over the direction of the boat. As noted above, the officers‘ 6 own statements confirm this fact. (Dkt. No. 20 at 18 ( [T]he only reason why I remember this 7 case is because this driver was not actually driving at the time[.] ). Rather, Mr. Marshall had 8 specifically enlisted Mr. Homer as his designated driver. Defendants concede this much in their 9 briefing, and accordingly focus their efforts on the erroneous argument that Mr. Marshall 10 operated the boat because he allegedly exercised actual authority over the driver. In short, no 11 reasonable police officer could have found that probable cause existed to believe Mr. Marshall 12 was operating his boat under the influence of alcohol, because no officer saw him operate the 13 boat, and no other person stated that he had operated the boat at any point. 14 To dispute this inevitable conclusion, Defendants offer a contrived reading of the 15 applicable statute, and further argue that even if the officers‘ interpretation of the statutory 16 provisions was erroneous, their interpretation was nonetheless reasonable, thereby entitling them 17 to qualified immunity. As previewed above, Defendants use the definition of operator as it is 18 defined under RCW § 79A.60.010(17) to argue that Marshall was operating‘ the vessel— 19 within the meaning of the term—at the time of the arrest[,] because he exercised actual 20 authority over Mr. Homer, the boat‘s driver. (Dkt. No. 17 at 8) (emphasis added). To support 21 this argument, Defendants (confusingly) assert that to operate as defined in the BUI statute—a 22 verb—means an individual who steers, directs, or otherwise has physical control of a vessel that 23 is underway or exercises actual authority to control the person at the helm. RCW § 24 79A.60.010(17). On this basis, Defendants reason, when Mr. Marshall affirmed that he was the 25 boat‘s owner and was responsible for the driver‘s and passengers‘ actions, he admitted to 26 exercising actual authority as a captain over Mr. Homer, the helmsman. This, the officers ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 7 1 argue, gave them probable cause—or a reasonable basis to erroneously find probable cause—to 2 arrest Mr. Marshall. 3 Defendants‘ argument is wrong. Conveniently, Defendants omit any and all reference to 4 RCW § 79A.60.010(16), which actually defines the verb operate for purposes of the BUI 5 statute. That provision, as discussed above, contains no actual authority basis for the term 6 operate. Instead, the BUI provision requires that a person must operate—i.e., steer, drive, or 7 exercise physical control over—the vessel. See RCW § 79A.60.010(16). The term operator — 8 upon which Defendants base their argument, and which immediately follows the definition of 9 operate in the definitional provision—is not contained in RCW § 79A.60.040(2), the provision 10 that Defendants assert Mr. Marshall violated.1 Given these plain statutory definitions, which are 11 not ambiguous, it was not a reasonable mistake to believe that Mr. Marshall was operating the 12 boat within the meaning of the statute based on any actual authority argument.2 See, e.g., 13 Rosenbaum, 663 F.3d at 1078 (denying qualified immunity in false arrest case and explaining 14 that [a]s our analysis establishes, the statute is unambiguous, and not susceptible to the 15 [county‘s reading]. Therefore, no reasonable officer could believe that Rosenbaum‘s conduct 16 violated the statute. ); Liberal v. Estrada, 632 F.3d 1064, 1078 (9th Cir. 2011) (denying 17 18 19 20 21 22 23 24 1 Unsurprisingly, however, the term operator, as defined in RCW § 79A.60.010(17), is used in other sections of the Washington Revised Code that relate to boating safety, thus demonstrating that the Washington legislature knew the difference between the terms now at issue and chose to use them in different scenarios. Cf. RCW § 79A.60.080 (an operator commits a gross misdemeanor when he or she willfully fails to stop when requested by law enforcement); RCW § 79A.60.090 (an operator who eludes law enforcement commits a class C felony). Nonetheless, it appears that a specific section of the secondary source upon which Defendants rely—the Washington Practice Series, see 32 Wash. Prac. § 11.1 (2013-13 ed.)—also fails to cite the definition of operate, opting instead to cite the definition of operator. Curiously, the same source properly states the elements of the crime in the following section. Id. § 11:2 ( [T]he prosecution must prove . . . that the person operated a vessel . . . ). Notwithstanding this omission on the part of this source, the Court finds that the statute‘s definitions are plain and unambiguous, and declines to rely on the cited secondary source, which cites in support of its statement only the statutory definition of operator. 2 Even if Defendants‘ statutory argument was correct, there would exist a genuine dispute of material fact 25 with regard to whether Mr. Marshall was(or whether the officers could have reasonably concluded that he was) exercising actual authority over Mr. Homer at the time of the arrest given the parties‘ differing accounts of Mr. 26 Marshall‘s statements and the lack of any additional evidence to suggest that he was in fact directing Mr. Homer‘s control of the boat. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 8 1 qualified immunity because the officer‘s mistake was unreasonable). In light of this simple 2 analysis, the Court is confounded as to how Defendants‘ counsel could argue with a straight face 3 that their proffered reading of the statute is a reasonable interpretation of its provisions. 4 To the extent Defendants argue that the lack of case law interpreting RCW § 79A.60.040 5 requires a finding that the right at issue was not clearly established, the argument is also without 6 merit. The right to be free from an unreasonable seizure—i.e., to be free from a warrantless arrest 7 that is unsupported by probable cause and for conduct that does not constitute a criminal 8 violation—is clearly established, and the lack of a case on all fours with the facts at hand is not 9 sufficient to confer qualified immunity. See Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 10 2011) ( The Supreme Court has made clear that officials can still be on notice that their conduct 11 violates established law even in novel factual circumstances. . . . If qualified immunity provided 12 a shield in all novel factual circumstances, officials would rarely, if ever, be held accountable for 13 their unreasonable violations of the Fourth Amendment. ); see, e.g., Rengo v. Cobane, No. C1214 0298, 2013 WL 3294300, at *6 (W.D. Wash. June 2, 2013) ( The constitutional right to be free 15 from warrantless arrest without probable cause [is] clearly established[.]‘ ). As explained above, 16 the plain terms of the Washington Revised Code establish the criminal violation at issue, and the 17 lack of case law discussing its basic elements does not render ambiguous the clear terms of the 18 statute that defines the crime. Given the clear statutory definition, any reasonable police 19 officer—i.e., any officer who had read the applicable laws—would know that none of the facts at 20 hand were sufficient to establish probable cause. 21 Finally, Defendants do not expressly argue that they had probable cause to arrest Mr. 22 Marshall for negligent operation or illegal bowriding—they only raise the issue (at length) as it 23 relates to probable cause to stop the boat in the first place.3 Nonetheless, even if Defendants‘ 24 assertions are construed as arguing that probable cause existed to arrest Mr. Marshall for illegal 25 26 3 The term bowriding is commonly understood to include riding on the stern or transom of a boat, as the individual on Mr. Marshall‘s boat was doing. It does not refer only to riding on the bow of a boat. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 9 1 bowriding or negligent operation, such an argument would be without merit for multiple 2 reasons. First, the argument fails for the same reason as the Boating Under the Influence 3 argument above. Specifically, RCW § 79A.60.030 states in relevant part that [a] person shall 4 not operate a vessel in a negligent manner. See RCW § 79A.60.030 (emphasis added). Because 5 Mr. Marshall was not operating the boat as that term is defined in RCW § 79A.60.010(16), the 6 fact that an individual on the boat was bowriding in violation of Mercer Island‘s Municipal 7 Code—even if it did, as Defendants argue, give rise to a violation of RCW § 79A.60.030 by the 8 person actually operating the boat for negligent operation—the appropriate suspect would have 9 been Mr. Homer, not Mr. Marshall. Accordingly, because the officers knew of no facts to 10 support the belief that Mr. Marshall was committing or about to commit the infraction of 11 negligent operation by operating the boat in a negligent manner—i.e., permitting another 12 individual to ride on the stern while operating a boat—no reasonable officer could have 13 concluded that probable cause existed to support his arrest on this basis. 14 Second, even assuming Mr. Marshall could have violated RCW § 79A.60.030 by 15 allowing another passenger to ride on the stern of his boat (while he was not driving), a violation 16 of that section constitutes only a civil infraction under RCW ch. 7.84, except as provided in 17 RCW § 79A.60.020. RCW § 79A.60.030; see RCW § 79A.60.020 (violation of chapter only 18 designated as a misdemeanor if the current violation is the person‘s third violation of the same 19 provision . . . during the past [365] days. ). Because no party disputes that Mr. Marshall‘s 20 hypothetical violation for bowriding and/or negligent operation would not be a criminal offense, 21 the officers would have been without authority to arrest him, and there could be no probable 22 cause to make such an arrest. See RCW § 10.31.100 (officers may make warrantless arrests for 23 felonies based on probable cause, and for misdemeanors and gross misdemeanors only when the 24 offense is committed in the presence of the officer); RCW § 7.84.100 (decriminalizing and 25 making a civil infraction certain offenses under RCW ch. 79A, including negligent operation). 26 Accordingly, Defendants‘ negligent operation argument would fail. Officer Herzog is not ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 10 1 entitled to qualified immunity on Plaintiff‘s § 1983 false arrest claim. 2 C. 3 4 Plaintiff’s Remaining Claims 1. Excessive Force In addition to the claim above, Defendants move for summary judgment on Plaintiff‘s 5 § 1983 excessive force claim. (Dkt. No. 17 at 5 n.2.) In the Ninth Circuit, courts analyze all 6 claims of excessive force that arise during or before arrest under the Fourth Amendment‘s 7 reasonableness standard[.] Coles v. Eagle, 704 F.3d 624, 627 (9th Cir. 2012) (citing Graham v. 8 Connor, 490 U.S. 386 (1989)). [T]he reasonableness‘ inquiry in an excessive force case is an 9 objective one: the question is whether the officers‘ actions are objectively reasonable‘ in light of 10 the facts and circumstances confronting them, without regard to their underlying intent or 11 motivation. Graham, 490 U.S. at 397. 12 Here, Defendants state in a brief footnote that they assume Plaintiff has withdrawn his 13 excessive force claim, because [t]here is no dispute that Marshall cooperated with the officers 14 and submitted—without any struggle—to being handcuffed[,] and because Mr. Marshall 15 admits the officers were reasonable‘ with him in deposition testimony. (Dkt. No. 17 at 5 n.2; 16 Dkt. No. 20, Ex. C at 25–26.) In response to Defendants‘ motion, Plaintiff neither addresses nor 17 provides evidence relating to his excessive force claim. Given this failure, and Mr. Marshall‘s 18 own deposition testimony that the officers were professional and courteous, and that they 19 proceeded reasonably with him during the arrest, the Court finds that Mr. Marshall has failed 20 to demonstrate any genuine issue of material fact with regard to this claim.4 In short, no jury 21 could conclude based on the evidence presented that the officers‘ conduct was objectively 22 unreasonable with regard to the amount of force used. Summary judgment is granted with 23 respect to Plaintiff‘s § 1983 excessive force claim. 24 25 26 4 Plaintiff‘s failure to address this claim, and the claims discussed below, in his opposition to Defendants‘ motion for summary judgment is sufficient in and of itself to warrant dismissal of the claims. See Jenkins v. County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) ( Jenkins abandoned her other two claims by not raising them in opposition to the County‘s motion for summary judgment. ). ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 11 2. 1 2 Plaintiff’s § 1983 Claims Against Mercer Island Chief of Police Ed Holmes Plaintiff also brings claims under § 1983 against Mercer Island Police Chief Ed Holmes 3 in both his individual and official capacities for his alleged failure to train Mercer Island officers 4 with regard to RCW ch. 79A.60 and for his failure to prevent Mr. Marshall‘s alleged 5 constitutional deprivations. (Dkt. No. 1 at ¶ 36.) The Mercer Island Defendants move for 6 summary judgment on each of these claims. With regard to Plaintiff‘s claims against Chief 7 Holmes in his individual capacity, Defendants argue among other things that Mr. Marshall has 8 simply offered no proof that Chief Holmes failed to train his subordinates, acquiesced in a 9 constitutional deprivation, or was otherwise callous or indifferent to Mr. Marshall‘s rights. (Dkt. 10 No. 17 at 14.) With regard to the official capacity Monell claim, Defendants argue that Plaintiff 11 has failed to point to a municipal policy or custom to support his allegations, and has offered no 12 proof that the City or Chief Holmes was deliberately indifferent to any such policy or Mr. 13 Marshall‘s constitutional rights. (Dkt. No. 17 at 15–16.) In his opposition motion, Plaintiff failed 14 to either address or offer evidence relating to these claims. 15 16 a. Individual Capacity Claim As Officer Herzog‘s superior, Chief Holmes could be liable in his individual capacity if 17 he participated in the deprivation of Mr. Marshall‘s rights—i.e., in the unlawful arrest of Mr. 18 Marshall. 5 Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998). As explained by the 19 Ninth Circuit, a police chief‘s individual liability for a subordinate‘s unconstitutional conduct 20 depends on whether he set in motion a series of acts by others, or knowingly refused to 21 terminate a series of acts by others, which he knew or reasonably should have known, would 22 cause others to inflict the constitutional injury. Id. (citing Larez v. City of Los Angeles, 946 F.2d 23 630, 645 (9th Cir. 1991)). In short, a supervisor can be liable in his individual capacity for his 24 25 5 To the extent Plaintiff‘s claims against Chief Holmes rely upon the alleged use of excessive force, they 26 are without merit, given that there was no such underlying constitutional deprivation. See Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998). ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 12 1 own culpable action or inaction in the training, supervision, or control of his subordinates; for his 2 acquiescence in the constitutional deprivation . . . ; or for conduct that showed a reckless or 3 callous indifference to the rights of others. Id. (quotation omitted). 4 Here, Plaintiff has offered no evidence to support his individual capacity claim against 5 Chief Holmes. (See Dkt. Nos. 21–23.) Indeed, Defendants expressly addressed this claim in their 6 motion for summary judgment (Dkt. No. 17 at 14), yet Plaintiff chose not to even discuss this 7 claim in his opposition. (See Dkt. No. 21.) Given the lack of analysis or evidence relating to this 8 claim, the Court finds that Plaintiff has failed to demonstrate any issue of fact to support his 9 individual-liability claim against Chief Holmes. Nothing provided to the Court demonstrates—or 10 even raises an issue about—whether Chief Holmes failed to appropriately train his subordinates, 11 failed to control them, or otherwise acquiesced in Mr. Marshall‘s constitutional deprivation. 12 Summary judgment is accordingly granted to Chief Holmes on this claim. 13 14 b. Official Capacity Claim Plaintiff‘s claim against Chief Holmes in his official capacity is the equivalent of an 15 action against the City of Mercer Island itself, since official capacity suits generally represent[] 16 only another way of pleading an action against an entity of which an officer is an agent. 6 Monell 17 v. Dep’t of Soc. Servs., 436 U.S. 658, 689 n.55 (1978); see Larez, 946 F.2d at 646. When 18 plaintiffs seek to impose liability on local governments under § 1983, which Mr. Marshall does 19 via his official-capacity claim against Chief Holmes, they must prove that action pursuant to 20 official municipal policy‘ caused their injury. Connick v. Thompson, 131 S. Ct. 1350, 1359 21 (2011) (citing Monell, 436 U.S. at 691)). In such actions, the City‘s actions must have been a 22 moving force behind the constitutional deprivation. See Kentucky v. Graham, 473 U.S. 159, 23 166 (1985). As the Supreme Court has explained, a local government‘s decision not to train 24 25 6 Plaintiff‘s official capacity claim also fails to the extent it relies upon a failure to train with regard to the 26 use of excessive force, since the Court concluded that no such violation was established. See Erdman v. Cochise County, 926 F.2d 877, 882 (9th Cir. 1991). ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 13 1 certain employees about their legal duty to avoid violating citizens‘ rights may rise to the level of 2 an official government policy for purposes of § 1983 if the failure to train amount[s] to 3 deliberate indifference to the rights of persons with whom the [untrained employees] come into 4 contact.‘ Id. (quoting Canton v. Harris, 489 U.S. 378, 388 (1989)) (second alteration in 5 Connick). A pattern of similar constitutional violations by untrained employees is ordinarily 6 necessary‘ to demonstrate deliberate indifference for purposes of failure to train. Id. at 1360 7 (quoting Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 409 (1997)). 8 Here, Plaintiff similarly failed to address this claim in his opposition motion and 9 presented no evidence relating to Mercer Island‘s alleged policy or deliberate indifference to his 10 rights. (Dkt. No. 21–23.) Accordingly, the Court again finds that there is no genuine issue of 11 material fact related to this claim, and Plaintiff has failed to rebut Defendants‘ argument that they 12 are entitled to summary judgment on this claim. Summary judgment is granted as to Plaintiff‘s 13 official capacity claim against Chief Holmes (and the City of Mercer Island). 14 15 16 17 18 19 20 21 22 23 24 25 26 3. Plaintiff’s § 1983 Claim Against the City of Mercer Island For Its Alleged Policy of Not Investigating Instances of Police Misconduct Plaintiff also brings a claim against unknown municipal policy makers of the City of Mercer Island, alleging that the City [] developed and maintained policies or customs exhibiting deliberate indifference to the constitutional rights of persons in Mercer Island. (Dkt. No. 1 at ¶ 48.) Specifically, Mr. Marshall alleges that it was the policy and/or custom of the City of Mercer Island to inadequately and improperly investigate incidents of police misconduct involving illegal seizing and searching of citizens who were enjoying the Seafair boat Races and Festivities upon Lake Washington[.] (Id. at ¶ 50.) As with Plaintiff‘s official capacity claim against Chief Holmes, Defendants move for summary judgment on this Monell municipal liability claim because Mr. Marshall has offered no evidence to demonstrate that policymakers at Mercer Island decided to develop such a policy and because neither Officer Herzog nor Chief Holmes was aware of such a policy if it existed. (Dkt. No. 17 at 19.) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 14 1 Here, just as with Plaintiff‘s official capacity Monell claim against Chief Holmes, Mr. 2 Marshall has failed to present any evidence to support his municipal liability claim or otherwise 3 address Defendants‘ arguments in his opposition. Specifically, Mr. Marshall has not 4 demonstrated any issue of material fact as to whether any such municipal policy actually existed, 5 or whether the City or any Mercer Island official was deliberately indifferent. Accordingly, 6 summary judgment is granted as to this claim as well. 7 8 9 4. State Law Claims a. False Arrest and Qualified Immunity Plaintiff also brings a false arrest claim under Washington law. Defendants move for 10 summary judgment on this claim as well, arguing that Officer Herzog is entitled to qualified 11 immunity under Washington law and that the claim fails because Officer Herzog had probable 12 cause to arrest Plaintiff. (Dkt. No. 17 at 19.) Both of Defendants‘ arguments are without merit. 13 The gist of an action for false arrest . . . is the unlawful violation of a person‘s right of 14 personal liberty or the restraint of that person without legal authority. McKinney v. City of 15 Tukwila, 13 P.3d 631, 640 (Wash. App. 2000) (quotation omitted). However, an officer is 16 entitled to state law qualified immunity—which rests on a different analysis than does qualified 17 immunity under section 1983 —where the officer (1) carries out a statutory duty, (2) according 18 to procedures dictated to him by statute and superiors, and (3) acts reasonably. Id. at 640; see 19 Arnold v. City of Lakewood, No. C10-5907, 2012 WL 90472, at *7 (W.D. Wash. Jan. 11, 2012) 20 (applying state law qualified immunity). For an arrest accomplished without a warrant, the 21 immunity is limited to situations where the officer reasonably believed the arrested party 22 committed a felony or to misdemeanor arrests where the arresting officer had reasonable cause to 23 believe the crime was being committed in his presence and he acted in good faith on that belief. 24 Youker v. Douglas Cty., 258 P.3d 60, 68–69 (Wash. App. 2011). 25 Here, Officer Herzog is not entitled to state law qualified immunity. The reason is simple: 26 Where an officer consummates an arrest contrary to the plain terms of a statute, he does not ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 15 1 fulfill his statutory duty. Staats v. Brown, 991 P.2d 615, 627 (Wash. 2000). As described above, 2 Mr. Marshall had not committed any crime, and no facts available to Officer Herzog suggested 3 that Mr. Marshall was committing the misdemeanor offense of Boating Under the Influence. In 4 short, Officer Herzog was not authorized under Washington law to arrest him. See RCW § 5 10.31.100 (officers may make warrantless arrests for felonies based on probable cause, and for 6 misdemeanors and gross misdemeanors only when the offense is committed in the presence of 7 the officer). Further, for the reasons explained above, the Court finds that Officer Herzog‘s 8 decision to arrest Mr. Marshall for conduct that plainly did not constitute Boating Under the 9 Influence was not reasonable. 7 See Staats, 991 P.2d at 627 ( Nor can an arrest amounting to a 10 statutory violation be reasonable‘ where the suspect‘s conduct was not criminal under state 11 law.). Accordingly, Defendants‘ summary judgment motion is denied with respect to Plaintiff‘s 12 state-law false arrest claim. 13 b. 14 Negligence Finally, Plaintiff sues Chief Holmes and the City of Mercer Island for negligence. (Dkt. 15 No. 1 at ¶ 63–67.) The thrust of this claim is that Chief Holmes failed to properly train his 16 subordinates and failed to ensure that his officers acted in accordance with the laws of the State 17 of Washington. (Id. at ¶ 65.) Defendants move for summary judgment on this claim, arguing 18 that Washington law does not recognize the tort of negligence in this context[,] and in any 19 event, the public duty doctrine would bar Plaintiff‘s negligence claim. (Dkt. No. 17 at 20.) 20 Again, Plaintiff failed to either discuss or provide evidence related to his negligence claim. Here, 21 the Court agrees with Defendants, but need not delve deeply into whether a law enforcement 22 officer may be held liable in negligence under Washington law or whether, under the 23 circumstances of this case, the public duty doctrine would bar such a claim. By not addressing 24 25 7 For the reasons discussed above—namely, that probable cause to arrest Mr. Marshall did not exist—the 26 Court rejects Defendants‘ argument that Plaintiff‘s false arrest claim necessarily fails because probable cause existed. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 16 1 Defendants‘ summary judgment assertions, Plaintiff has waived this unaddressed claim. See 2 Jenkins v. County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005); see also Foster v. City 3 of Fresno, 392 F. Supp. 2d 1140, 1147 n.7 (E.D. Cal. 2005) ( [F]ailure of a party to address a 4 claim in an opposition to a motion for summary judgment may constitute a waiver of that 5 claim. ) (citation omitted)). For this reason, Defendants‘ motion for summary judgment is 6 granted as to Plaintiff‘s negligence claims. 7 III. CONCLUSION 8 For the foregoing reasons, Defendants‘ motion for summary judgment (Dkt. No. 17) is 9 GRANTED IN PART and DENIED IN PART. Specifically, summary judgment is GRANTED 10 as to Plaintiff‘s: (1) § 1983 excessive force claim against Officer Herzog; (2) § 1983 claims 11 against Mercer Island Police Chief Ed Holmes in both his individual and official capacities; (3) 12 § 1983 Monell claim against the City of Mercer Island; and (4) state-law negligence claims. 13 However, summary judgment is DENIED with regard to Officer Herzog‘s qualified immunity on 14 Plaintiff‘s § 1983 and state-law false arrest claims. 15 DATED this 2nd day of August 2013. 16 17 18 A 19 20 21 John C. Coughenour UNITED STATES DISTRICT JUDGE 22 23 24 25 26 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‘ MOTION FOR SUMMARY JUDGMENT PAGE - 17
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