Ostling et al v. City of Bainbridge Island et al, No. 3:2011cv05219 - Document 101 (W.D. Wash. 2012)
Court Description: ORDER granting in part and denying in part 51 Motion for Summary Judgment; GRANTING Fourth-Amendment claims by William, Joyce and Tamara individually, and fourteenth-amendment claims by Tamara; DENYING William's fourth-amendment excessive force claim, and William and Joyce's fourteenth-amendment substantive-due-process claims. Signed by Judge Ronald B. Leighton.(DN)
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Ostling et al v. City of Bainbridge Island et al Doc. 101 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 10 11 12 13 WILLIAM OSTLING, individually and as personal representative of the ESTATE OF DOUGLAS OSTLING, deceased; JOYCE OSTLING; and TAMARA OSTLING, 14 15 16 17 No. 11-cv- 5219 RBL ORDER Plaintiffs, v. CITY OF BAINBRIDGE ISLAND, a political subdivision of the State of Washington; JON FEHLMAN; and JEFF BENKERT, 18 Defendants. 19 20 On October 26, 2010, Bainbridge Island police officers responded to a rambling, quixotic 21 911-call placed by Douglas Ostling, a mentally-ill man living in an apartment attached to his 22 parents’ home. Within minutes of the officers’ arrival, the interaction went tragically awry. The 23 officers argue that Douglas menaced them with an axe; Plaintiffs argue that Douglas simply 24 sought to close his apartment door. In either case, Officer Benkert shot Douglas in the leg, and 25 Douglas bled to death on the floor of his apartment. Plaintiffs argue that the shooting violated 26 Douglas Ostling’s Fourth-Amendment protection against the use of excessive force and violated 27 their Fourteenth-Amendment substantive due process interest in their relationship with their 28 child and sibling. Order - 1 Dockets.Justia.com I. 1 BACKGROUND 2 A. Douglas Ostling Calls 9-1-1. 3 At 8:40 p.m., on October 26, 2010, Douglas Ostling called 911. (Defs.’ Mot. for Summ. 4 J. at 2, Dkt. # 51; Pls.’ Resp. at 3, Dkt. #66.) The call log reveals that Douglas, who suffered 5 from either schizophrenia or Asperger’s syndrome (Decl. of Steward Estes at 15, Dkt. #52 6 (quoting Dep. of William Ostling at 183)), repeatedly shouted confused questions: “What are 7 you!” “What is that!” (Decl. of Nathan Roberts, Ex. 1, Dkt. # 67.) Apparently recognizing the 8 source, the dispatcher asked “if it was Douglas.” Id. 9 Officers Portrey and Benkert arrived at the Ostling home within 15 minutes. Id. 10 Douglas’ father, William Ostling met them at the door, unaware that Douglas had called 911. 11 (Pls.’ Resp. at 3.) William advised the officers that his son Douglas was mentally ill and was 12 likely the source of the call. (Decl. of William Ostling ¶ 5, Dkt. #68.) He then led the officers 13 through the house, into the garage, and up a staircase that led to Douglas’s apartment. (Pls.’ 14 Resp. at 4; Defs.’ Mot. at 3.) 15 B. Officers Benkert and Portrey Confront Douglas 16 Douglas did not respond to his father knocking or speaking, which caused some alarm to 17 William who feared that Douglas might have hurt himself. (Decl. of William Ostling ¶ 9.) 18 Similarly, the officers worried that Douglas and his father might have had some sort of 19 altercation. (Decl. of Jeffrey Benkert ¶ 9.) Officer Portrey then knocked repeatedly and 20 announced that the police were present. Id. at 7–8. The parties’ accounts now begin to diverge. 21 1. Account of William Ostling 22 William states that he then fetched a key to the room, which one of the officers “grabbed” 23 from his hand and used to try and open the locked door. (Decl. of William Ostling ¶ 9.) Douglas 24 then informed them that he did not need help, that “9-1-1 [was] bugged,” and instructed the 25 officers to leave. Id. ¶ 10. William states that, judging from the sound of his son’s voice, it was 26 apparent that Douglas was just behind the door. Id. Officer Benkert tried to turn the doorknob 27 and met resistance, presumably from Douglas holding it. Id. ¶ 11. After “a few seconds,” 28 Benkert “succeeded in opening the door . . . and he began peering into Doug’s room, moving his Order - 2 1 head from side-to-side, as though he were trying to see around the partially-opened door trying to 2 locate Doug.” Id. Benkert then said “double-bladed axe . . . taser.” Id. ¶ 12. Officer Portrey 3 then holstered his gun, removed his taser, and fired it at Douglas. Id. Firing the taser apparently 4 caused Officer Portrey to take “a step back,” and he “stumbled slightly, catching himself on the 5 wall”; but neither of the officers fell or was otherwise “lying in a vulnerable position.” Id. ¶¶ 6 12–14. Officer Benkert then said, “stop or I’ll shoot,” and without hesitation, fired three shots. 7 Id. ¶ 13. According to William, at the instant Benkert fired, he was separated from Douglas by 8 the door, the landing, and a banister. Id. 9 10 2. Account of Officer Benkert In contrast, Officer Benkert states that after Douglas did not respond to his father, he 11 “said words to the effect of ‘Doug, this is the police department’ . . . ‘we came to check on 12 you.’” (Benkert Decl. ¶ 9.) Douglas responded that “we were part of the system that he was 13 calling to check on to see if it was intelligent,” and then instructed the officers to leave. Id. At 14 that point, one of the officers asked William for a key to the room, which he then retrieved for 15 the officers. Id. ¶ 10. Then, while Officer Portrey was attempting to find the correct key, Id. 16 ¶ 10, “the door opened very quickly, and [Officer Benkert] observed Douglas with a double 17 bitted axe in his hands holding it in front of him in a striking position, a short distance from 18 Officer Portrey (perhaps two feet).” Id. ¶ 11. The officers drew their weapons, and Douglas 19 moved back “3-6 feet.” Id. Benkert states that he “loudly yelled commands”: “Drop the ax, drop 20 the ax . . . Do not advance towards us with that ax or you will be shot.” Id. Douglas did not 21 respond. Id. Portrey then requested “emergency traffic” from dispatch. Id. ¶ 12. 22 Officer Benkert states that he advised Portrey “[i]n a low voice” that he “might be able to 23 use the TASER . . . .” Id. ¶ 13. Officer Portrey then tased Douglas and entered the apartment “to 24 secure Douglas before the 5 second cycle . . . ended.” Id. But the barbs failed to make proper 25 contact, and Douglas kept ahold of the axe. Id. As Portrey entered the apartment, Officer 26 Benkert states that he “could not provide proper cover to him and . . . told [Portrey] so.” Id. 27 Portrey then backed out of the apartment and out of Officer Benkert’s field of vision. Id. ¶ 14. 28 In doing so, he stumbled, and Officer Benkert believed he might have fallen. Id. Order - 3 1 Officer Benkert states that Douglas then came “rapidly” forward with the axe, and he 2 fired three shots in quick succession. Id. ¶¶ 14–15. In between the first and second shots, 3 Douglas closed the door. Id. It is undisputed that the second and third shots, including the shot 4 that struck Douglas in the left leg, passed through the door itself. 5 C. Bainbridge Island Police Cordon Douglas’ Apartment 6 On a key factual issue, the parties disagree. Defendants argue that “Benkert did not 7 observe any of his shots strike Douglas, nor did he hear him yell in pain.” (Defs.’ Mot. for 8 Summ. J. at 5.) Indeed, Benkert radioed after the shooting that is was “unk[nown] if anyone has 9 been hit . . . .” (Estes Decl., Ex. C at 3.) 10 Plaintiffs, on the other hand, argue that Officer Benkert was more certain that Douglas 11 had been shot. Bainbridge Island Police Chief, Jon Fehlman stated that “Officer Benkert had 12 indicated to me on his public safety statement that he had hit the subject inside the room with one 13 of the rounds he fired, at least one of the rounds he fired.” (Fehlman Dep., 129:22–130:6.) 14 Indeed, Chief Fehlman “believed that [Douglas] was probably in need of aid” immediately after 15 the shooting. Id. 16 In any event, while paramedics arrived within nine minutes of the shooting, no one 17 rendered aid until approximately 10:20 p.m.—one hour and twenty minutes after the shooting. 18 (Roberts Decl., Ex. 6 (Bainbridge Island Fire Dept. record)). Douglas had been struck in the 19 femoral artery and had bled to death by that time. In that hour an twenty minutes, police 20 cordoned off the room, called in SWAT officers, and prevented William from using a ladder to 21 check on Douglas through a skylight. (See Defs.’ Br. at 8–9.) 22 Plaintiffs have presented expert testimony from Dr. Richard O. Cummins, a University of 23 Washington professor of emergency medicine, stating that medics would have been able to save 24 Douglas if given access within 25 minutes of the injury—i.e., within 16 minutes of their arrival. 25 (Roberts Decl., Ex. 6 (Dep. of Dr. Richard Cummins at 80:5–10.) 26 27 There are thus essentially two events giving rise to Plaintiffs’ claims: first, the shooting; and second, the rendering of aid. 28 Order - 4 1 D. Plaintiffs’ Claims 2 Plaintiffs are Douglas’s estate (represented by his father), William Ostling (father), Joyce 3 Ostling (mother), and Tamara Ostling (sister). They have brought claims under 42 U.S.C. 4 § 1983 against Officer Benkert for use of excessive force in violation of the Fourth Amendment 5 and for violation of substantive due process under the Fourteenth Amendment. (Am. Compl. at 6 7, Dkt. #6.) Additionally, Plaintiffs assert that the City and Chief Fehlman are liable for failing 7 to train officers to deal with the mentally ill and because they ratified Officer Benkert’s actions. 8 Id. E. Defenses 9 10 Defendants argue that Plaintiffs lack standing, that qualified immunity bars certain 11 claims, that Plaintiffs’ substantive-due-process claims fail as a matter of law, and that neither the 12 City nor Chief Fehlman ratified any unconstitutional conduct. II. 13 DISCUSSION 14 Summary judgment is appropriate when, viewing the facts in the light most favorable to 15 the nonmoving party, there is no genuine issue of material fact which would preclude summary 16 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 17 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to 18 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for 19 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of 20 evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. 21 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not 22 affect the outcome of the suit are irrelevant to the consideration of a motion for summary 23 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, 24 “summary judgment should be granted where the nonmoving party fails to offer evidence from 25 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 26 1220. 27 28 Order - 5 1 A. Standing to Pursue Fourth Amendment Claims 2 Defendants argue that “the Ostling-family Plaintiffs may not assert this cause of action” 3 because “Fourth Amendment rights are personal rights which . . . may not be vicariously 4 asserted.” Defs.’ Mot. for Summ. J. at 9 (quoting Alderman v. U.S., 394 U.S. 165, 174 (1969)). 5 A § 1983 claim “that accrued before death survives the decedent when state law 6 authorizes a survival action as a ‘suitable remed[y] . . . not inconsistent with the Constitution and 7 laws of the United States . . . .” Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir. 1987), 8 overruled on other grounds, Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999) 9 (citing 42 U.S.C. § 1988)). Thus, Washington law determines standing to assert. Fourth- 10 11 Amendment claims. There are five relevant statutes on this point: two survival statutes (Wash. Rev. Code §§ 12 4.20.046, .060) and three wrongful death statutes (Wash. Rev. Code §§ 4.20.010, .020; 13 4.24.010). The primary differences lie in the causes of action and the beneficiaries. See Harms 14 v. Lockheed Martin Corp., No. 06-cv-572, 2007 WL 2875024, *2 (W.D. Wash. Sept. 27, 2007) 15 (Robart, J.) (citations omitted). The survival statutes “do not create new causes of action but 16 instead preserve causes of action for a decedent’s personal representative that the decedent could 17 have maintained had he or she not died.” Id. In contrast, the wrongful death statutes “create new 18 causes of action for statutory beneficiaries of the deceased to recover their own damages.” Id. 19 Under Washington’s general survival statute, “all causes of action . . . shall survive to the 20 personal representative[]” of the estate. Wash. Rev. Code § 4.20.046. The personal 21 representative, however, “shall only be entitled to recover damages for pain and suffering, 22 anxiety, emotional distress, or humiliation . . . on behalf of” parents and siblings “who may be 23 dependent upon the deceased person for support.” Id. §§ 4.20.046, 4.20.20. The general 24 survival statute thus provides William, in his representative capacity, standing to pursue the 25 Fourth-Amendment claims—but excludes non-economic damages because his family was not 26 financially dependent. See Harms, 2007 WL 2875024, at *5 (noting that estate “is not entitled to 27 recover non-economic damages (pain and suffering, etc.) on behalf of the decedent”) (emphasis 28 in original). Washington’s special survival statute, R.C.W. § 4.20.60, which directs any recovery Order - 6 1 of damages to the statutory beneficiaries rather than the estate, supplies no standing as it is also 2 restricted to dependent parents and siblings. See Otani ex rel. Shigaki v. Broudy, 151 Wash. 2d 3 750, 756 (2004) (“recovery under the general survival statute is for the benefit of, and passes 4 through, the decedent’s estate, whereas recovery under the special survival statute is for the 5 benefit of, and is distributed directly to, the statutory beneficiaries”). 6 Similarly, the wrongful death statutes fail to provide Plaintiffs standing in their individual 7 capacity. Under § 4.20.010, the personal representative may maintain “an action for damages 8 against the person causing the death.” Wash. Rev. Code. § 4.20.010. The purpose of the statute 9 is to “compensate [beneficiaries] for the loss of economic and perhaps other benefits they would 10 have received from the decedent.” David K. DeWolf & Keller W. Allen, Washington Practice: 11 Tort Law & Practice § 6.5 (2012); see also Parrish v. Jones, 44 Wash. App. 449, 453 (1986) 12 (“the measure of damages is the actual pecuniary loss suffered by the surviving beneficiaries 13 from the death of a relative”). But the statutory beneficiaries of the wrongful-death statute are 14 again restricted by the same statute cited above: if the decedent leaves no spouse or children, 15 only financially dependent parents and siblings may recover. Wash. Rev. Code § 4.20.20. 16 Lastly, Washington law provides a direct action by parents “for the injury or death of a 17 minor child, or a child on whom either, or both, are dependent for support . . . .” Wash. Rev. 18 Code § 4.24.010. Because Plaintiffs were not financially dependent on Douglas, they fall outside 19 the plain language of the direct-action statute. 20 In sum, Washington law provides an avenue, via the general survival statute (Wash. Rev. 21 Code § 4.20.046), for William to pursue the Fourth-Amendment claim as representative of 22 Douglas’s estate. But, as Plaintiffs note, the statutory limitation on damages creates a wrinkle. It 23 appears that Douglas had little or no income, and thus, if non-economic damages (i.e., pain and 24 suffering, anxiety, emotional distress, or humiliation) are unavailable, any award might be 25 insufficient to compensate Plaintiffs and deter Defendants, in the event the latter are found liable. 26 In short, the tie between § 1983 and the state survival and wrongful-death statutes has a prism- 27 like effect, breaking the single federal statute into 50 variations. Courts have, however, 28 Order - 7 1 attempted to restore some uniformity by deviating from state-law where it is inconsistent with 2 the purposes of § 1983. 3 B. Availability of Non-Economic Damages 4 The Supreme Court has stressed that state-law survival remedies apply “unless those 5 remedies are inconsistent with the Constitution and laws of the United States.” Jefferson v. City 6 of Tarrant, Ala., 522 U.S. 75, 79 (1997) (citing Robertson v. Wegmann, 436 U.S. 584, 588–90 7 (1978)) (quoting 42 U.S.C. § 1988(a)). To determine consistency, “courts must look not only at 8 particular federal statutes and constitutional provisions, but also at the policies expressed in 9 [them].” Robertson, 436 U.S. at 590 (internal quotations and brackets omitted). Section 1983 10 “has its origins in § 1 of the Civil Rights Act of 1871, which was enacted as part of the 11 congressional response to the states’ failure to prevent widespread racial violence committed by 12 the Klu Klux Klan.” Id. at *7 (citing Ngiraingas v. Sanchez, 495 U.S. 182, 187–88 (1990)). The 13 Act “was intended not only to ‘override’ discriminatory or otherwise unconstitutional state laws, 14 and to provide a remedy for violations of civil rights ‘where state law was inadequate,’ but also 15 to provide a federal remedy ‘where the state remedy, though adequate in theory, was not 16 available in practice.’” Id. (quoting Zinermon v. Burch, 494 U.S. 113, 124 (1990) (additional 17 citations omitted)). Additionally, the Supreme Court has emphasized that § 1983 is “remedial” 18 in nature, and courts should “broadly construe” the statute to provide a remedy “against all forms 19 of official violation of federally protected rights.” Dennis v. Higgins, 498 U.S. 439, 444 (1991) 20 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)). “The policies underlying § 1983 21 include compensation of persons injured by deprivation of federal rights and prevention of 22 abuses of power by those acting under color of state law.” Robertson, 436 U.S. at 590–91; see 23 also Hardin v. Straub, 490 U.S. 536, 539 (1989) (noting § 1983’s “chief goals of compensation 24 and deterrence” and its “subsidiary goals of uniformity and federalism”). 25 These policies compel the Court to hold that the restriction of non-economic damages in 26 Washington’s survival statute undermines the purpose of § 1983 and must therefore be 27 disregarded. Particularly in cases such as this—where the decedent had little or no income— 28 economic damages alone would provide no compensation and no deterrent effect. Indeed, courts Order - 8 1 appear to largely be following this trend. Rentz v. Spokane Cnty., 438 F. Supp. 2d 1252 (E.D. 2 Wash. 2006); Loomis v. City of Puyallup Police Dep’t, No. 02-cv-5417, 2005 WL 1036445 3 (W.D. Wash. May 3, 2005); Davis v. City of Ellensburg, 651 F. Supp. 1248 (E.D. Wash. 1987); 4 Guyton v. Phillips, 532 F. Supp. 1154 (N.D. Cal. 1981); Williams v. County of Oakland, 915 F. 5 Supp. 1074 (N.D. Cal. 1996); Guerrero v. County of San Benito, No. 08-cv-0307, 2009 WL 6 4251435, at *5 (N.D. Cal. Nov. 23, 2009); Hirschfield v. San Diego Unified Port Dist., No. 08- 7 cv-02103, 2009 WL 3248101, at *4 (S.D. Cal. Oct. 8, 2009); T.D.W. v. Riverside Cnty., No. 08- 8 cv-232, 2009 WL 2252072, at *5–6 (S.D. Cal. July 27, 2009); Garcia v. Whitehead, 961 F. Supp. 9 230, 232–33 (C.D.Cal.1997); Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1190 (7th Cir. 1985); 10 Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984); McClurg v. Maricopa Cnty., No. 09-cv- 11 1684, 2011 WL 4434029, at *4 (D. Ariz. Sept. 23, 2011); Gilbaugh v. Balzer, No. 99-cv-1576, 12 2001 WL 34041889, at *5–7 (D. Or. June 7, 2001); Banks v. Yokemick, 177 F. Supp. 2d 239, 13 251–52 (S.D.N.Y. 2001). 14 Judge Saundra Armstrong recently issued a thoughtful decision in Cotton ex rel. McClure 15 v. City of Eureka, Calif., No. 08-cv-4386, 2012 WL 909669 (N.D. Cal. Mar. 16, 2012), 16 addressing this question. In allowing the recovery of non-economic damages in a § 1983 action 17 where California’s survival statute excluded them, Judge Armstrong concluded: 18 19 20 21 22 23 24 25 At bottom, the Court finds that application of California’s prohibition on the recovery of damages for pain and suffering in survival actions is inconsistent with § 1983. Had the Decedent survived, he indisputably would be entitled to compensation for the pain and suffering he endured as a result of Defendants’ use of excessive force and deliberate indifference to his serious medical needs. Precluding such damages would plainly undermine § 1983’s twin goals of compensation and deterrence. Similarly, eliminating pain and suffering damages in an action where the victim dies would also undermine the statute’s subsidiary goals of uniformity and federalism, particularly since a potential damage award could vary significantly depending on the forum in which the action was filed. Id. at *10. In sum, Defendant’s motion for summary is granted as to fourth-amendment claims 26 brought by Joyce, Tamara, and William as individuals, but denied as to William in his capacity 27 as personal representative of the Estate. Further, following the reasoning above, the Court finds 28 Order - 9 1 that Washington’s limitation of non-economic damages is inconsistent with the policies of 2 § 1983 and cannot therefore apply. 3 C. William, Joyce, and Tamara’s Substantive Due Process Claim 4 Defendants move to dismiss Plaintiffs’ substantive due process claims because Officer 5 Benkert did not “act[] with the purpose (or intent) to cause harm to Douglas Ostling.” (Defs.’ 6 Mot. to Dismiss at 14.) As Defendants acknowledge, though, the “intent to harm” standard is not 7 the law of this circuit. Id. at 20 (“Defendants acknowledge that older Ninth Circuit panels have 8 indicated to the contrary.”). Rather, Ninth Circuit precedent holds that “a parent who claims loss 9 of the companionship and society of his or her child, or vice versa . . . has a constitutionally 10 protected liberty interest under the Fourteenth Amendment in the companionship and society of 11 his or her child . . . .” Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (citing 12 Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986); Kelson v. City of Springfield, 13 767 F.2d 651, 653–55 (9th Cir. 1985)); see also Moreland v. Las Vegas Metro. Police Dep’t, 159 14 F.3d 365, 371 (9th Cir. 1998) (noting that plaintiffs “may assert a Fourteenth Amendment claim 15 based on the related deprivation of their liberty interest arising out of their relationship with 16 [their deceased son]”). This is true even where the deprivation is incidental to the state’s acts. 17 See Moreland, 159 F.3d at 371 (making no mention of purpose-requirement). No such interest 18 has been recognized for siblings. Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1992) 19 (affirming dismissal of siblings’ substantive due process claim). Thus, William and Joyce, as 20 parents, may maintain a claim for violation of their substantive due process interest in the 21 companionship of their son; however, Tamara’s claim must be dismissed. 22 D. Qualified Immunity 23 Qualified immunity “shields an officer from suit when she makes a decision that, even if 24 constitutionally deficient, reasonably misapprehends the law governing the circumstances she 25 confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The Supreme Court has endorsed 26 a two-part test to resolve claims of qualified immunity: a court must decide (1) whether the facts 27 that a plaintiff has alleged “make out a violation of a constitutional right,” and (2) whether the 28 “right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson Order - 10 1 v. Callahan, 553 U.S. 223, 232 (2009).1 Qualified immunity protects officers not just from 2 liability, but from suit: “it is effectively lost if a case is erroneously permitted to go to trial,” and 3 thus, the claim should be resolved “at the earliest possible stage in litigation.” Anderson v. 4 Creighton, 483 U.S. 635, 640 n.2 (1987). The purpose of qualified immunity is “to recognize 5 that holding officials liable for reasonable mistakes might unnecessarily paralyze their ability to 6 make difficult decisions in challenging situations, thus disrupting the effective performance of 7 their public duties.” Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009). Because “it is 8 inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude 9 that probable cause [to arrest] is present,” qualified immunity protects officials “who act in ways 10 they reasonably believe to be lawful.” Garcia v. County of Merced, 639 F.3d 1206, 1208 (9th 11 Cir. 2011) (quoting Anderson, 483 U.S. at 631). 1. Excessive Force 12 Plaintiffs argue that Officer Benkert violated Douglas’s fourth-amendment rights by 13 14 using excessive force to seize Douglas, a situation precipitated by the officers’ unconstitutional 15 entry into Douglas’s apartment without a warrant or exigent circumstances. (Pls.’ Resp. at 21– 16 26.) “Apprehension by deadly force is a seizure subject to the Fourth Amendment’s 17 18 reasonableness requirement.” Wilkinson v. Torres, 610 F.3d 546, 550 (2010) (citing Graham v. 19 Conner, 490 U.S. 386, 395 (1989)). The reasonableness of force is determined by “carefully 20 balancing the nature and quality of the intrusion on the individual’s Fourth Amendment interests 21 against the countervailing governmental interests at stake.” Deorle v. Rutherford, 272 F.3d 22 1272, 1279 (9th Cir. 2001) (citing Graham, 490 U.S. at 396). Courts assess the “quantum of 23 force used to arrest” by considering “the type and amount of force inflicted.” Id. at 1279–80. A 24 court assesses the governmental interests by considering a range of factors, including “the 25 severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the 26 officers or others, whether he was actively resisting arrest or attempting to evade arrest by 27 flight,” or any other “exigent circumstances.” Id. Where an officer has “probable cause to 28 1 In Pearson, the Supreme Court reversed its previous mandate from Saucier requiring district courts to decide each question in order. Order - 11 1 believe that the suspect poses a threat of serious physical harm, either to the officer or to others,” 2 the officer may constitutionally use deadly force. Wilkinson, 610 F.3d at 550 (citing Tennessee 3 v. Garner, 471 U.S. 1, 11 (1985)). 4 Importantly, a court must judge reasonableness “from the perspective of a reasonable 5 officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Courts are cautioned to 6 make “allowance for the fact that police officers are often forced to make split-second 7 judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount 8 of force that is necessary in a particular situation.” Id. And, although the question is “highly 9 fact-specific,” the inquiry is objective: a court must ask “whether the officers’ actions are 10 ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Id. (citing 11 Scott v. Harris, 550 U.S. 372, 383 (2007); Graham, 490 U.S. at 397). 12 Viewing the evidence in the favor of the non-moving party, the Court must conclude that 13 Plaintiffs make out a violation of the Fourth Amendment. Plaintiffs have presented testimony 14 indicating that the officers forced their way into Douglas’s room without a warrant, an indication 15 of a crime, or any other emergency circumstance. Perhaps more importantly, Plaintiffs submit 16 that Douglas was far enough into the room that Officer Benkert had to peer into the room to find 17 him and then calmly request that Portrey use a taser. The Court cannot determine as a matter of 18 law that it was reasonable to tase a mentally-ill man who had committed no crime when the 19 officers might simply have backed away from the encounter. But qualified immunity provides a 20 higher standard: the right must be “clearly established” at the time of the incident. 21 The right to be free from the use of excessive force is, of course, clearly established. The 22 Court must conclude if the situation was as calm as William presents it—if Douglas had taken a 23 defensive posture deep inside his apartment, if the officers had no pressing reason to escalate the 24 situation, and if Douglas was shot through a door closing in the faces of the officers—the use of 25 deadly force would be clearly unreasonable. Thus, it cannot be said as a matter of law that the 26 officers are entitled to qualified immunity. Defendants’ Motion for Summary on this point is 27 DENIED. 28 Order - 12 1 2 2. Failure to Take Reasonable Steps to Secure Medical Care Defendants next argue that Officer Benkert “had no legal duty to provide medical aid, 3 beyond summoning it as he did within 120 seconds of the shots,” (Defs.’ Mot. for Summ. J. at 4 25), and that Chief Fehlman properly restrained medics at the scene. 5 Claims that officers have failed to provide medical care were previously analyzed under 6 the due-process clause of the Fourteenth Amendment. See City of Revere v. Mass. Gen. Hosp., 7 463 US 239, 244 (1983). In Graham v. Connor, 490 U.S. 386 (1989), however, the court held 8 that “all claims that law enforcement officers have used excessive force—deadly or not—in the 9 course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed 10 under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive 11 due process’ approach.” Id. at 395. Thus, courts now sensibly analyze both claims of excessive 12 force and failure to render post-arrest medical aid under the same reasonableness standard of the 13 Fourth Amendment. See Tatum v. City and County of San Francisco, 441 F. 3d 1090, 1099 (9th 14 Cir. 2006) (holding that “a police officer who promptly summons the necessary medical 15 assistance has acted reasonably for purposes of the Fourth Amendment”); see also Mejia v. City 16 of San Bernadino, No. 11-cv-452, 2012 WL 1079341, at *5 n.12 (C.D. Cal. Mar. 30, 2012) 17 (noting that Tatum mandates analysis of post-arrest medical care under the Fourth Amendment in 18 the wake of Graham). 19 The Court must reject Defendants’ argument that Officer Benkert and Chief Fehlman’s 20 conduct in restricting medical access to Douglas was reasonable as a matter of law. Plaintiffs 21 have presented evidence that Officer Benkert knew he had struck Douglas with at least one shot 22 and had told Chief Fehlman so, (Roberts Decl., Ex. 9, (Dep. of Jon Fehlman, 129:22–130:6)), 23 and that officers could have checked on Douglas by using a ladder to look through a skylight. 24 (See Pls.’ Resp. at 9.) Indeed, Plaintiffs argue that William was restrained from using a ladder to 25 look into the apartment immediately following the shooting , but officers used exactly that 26 option—the ladder—over an hour later. Defendants fail to explain what changed in that time to 27 render the use of a ladder too dangerous in the first half-hour but safe an hour-and-a-half later. 28 While the Court takes no position on the evidence, Plaintiffs paint a picture whereby a Order - 13 1 reasonable factfinder could conclude that Officer Benkert and Chief Fehlman’s restriction of 2 medical aid was unreasonable and led to Douglas’s death. 3 Defendants rely on Alford v. Humboldt County, 785 F. Supp. 2d 867 (N.D. Cal. 2011) in 4 arguing that “delaying aid because of safety concerns—even those created by the officer–does 5 not violate the Constitution.” (Defs.’ Mot. for Summ. J. at 27.) But the factual differences 6 between Alford and the case at hand compel a different result. In Alford, a mentally-ill man, Mr. 7 Stewart, broke into an acquaintance’s home and displayed bizarre behavior suggesting he was on 8 methamphetamines. Id. at 870. He informed the inhabitants that he had “slit a person’s throat 9 and he felt evil.” Id. When police arrived, Stewart “pull[ed] out what appeared to be two butter 10 knives, and scream[ed], ‘Welcome to the Dragon, m-----------s!’” Id. at 871. He then went into 11 the house and retrieved a rifle, which he “dry-fired” at the officers. Id. The owner of the house 12 informed officers that he had many weapons in the house, including assault rifles. Id. During 13 the standoff, Stewart twice fired at officers. Id. Eventually, officers used tear gas, which 14 tragically started a fire. Id. at 873–74. Neither officers nor firefighters were permitted to enter 15 the home because of the concern that Stewart was armed and because of concern that 16 “ammunition was ‘cooking off,’” i.e., unpredictably exploding. Id. 17 In contrast, there is no argument that Douglas was armed with a firearm, and Plaintiffs 18 have argued that there was little or no risk involved in investigating Douglas’s status through the 19 skylight. Given these facts, summary judgment is unwarranted. And for similar reasons, the 20 Court must deny qualified immunity. The right to medical aid in these circumstances is “clearly 21 established,” see City of Revere v. Massachusetts General Hospital, 463 US 239, 244 (1983), 22 and qualified immunity is inappropriate where the disputed evidence suggests that officers knew 23 Douglas was wounded, had no firearm, and had a safe avenue to investigate his medical needs. 24 25 E. Failure-to-Train Claims Against Chief Jon Fehlman and the City of Bainbridge Island Plaintiffs argue that the City and Chief Fehlman failed to train officers to deal with 26 mentally-ill citizens and failed to train officers in “de-escalation techniques, non-lethal tactics, 27 28 Order - 14 1 and the decision-making process that should accompany use of lethal force,” and those failures 2 amount to deliberate indifference. (Am. Compl. ¶¶ 43–45.) 3 “A municipality’s culpability for a deprivation of rights is at its most tenuous where a 4 claim turns on a failure to train.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). To 5 succeed on a failure-to-train theory, a plaintiff must show that a municipality’s failure 6 “amount[s] to ‘deliberate indifference to the rights of persons with whom the [untrained 7 employees] come into contact.’” Id. (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). 8 Further, a plaintiff must show that “inadequate training actually caused deprivation of 9 constitutional rights.” Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (1989). 10 Here, Plaintiffs have presented evidence that fewer than all officers receive training in 11 dealing with mentally-ill persons, despite the likelihood of regularly confronting them. (See 12 Roberts Decl., Ex. 8 (Jensen Dep., 24:15–18)); see also Bd. of Cnty. Commr’s of Bryan Cnty., 13 Okl. v. Brown, 520 U.S. 397, 398 (1997) (noting that deliberate-indifference element need not be 14 established by “recurring situations,” but may be established where single violation is “a highly 15 predictable consequence of the failure to train”). Further, they have argued that proper training, 16 as presented in the Bainbridge Island Police Department’s manual, would have led an officer to 17 de-escalate the situation, which may have avoided Douglas’s death. (See Pls.’ Resp. at 28.) 18 Plaintiffs also present testimony by D.P. Van Blaricom, a retired Bellevue police captain, 19 suggesting that proper training would have led the officers to avoid physical contact with 20 Douglas and request a mental health professional attend to the situation. Id. at 29. 21 While the Court considers Plaintiffs’ claim indeed tenuous, they have presented evidence 22 as to each element of a failure-to-train claim, and the Court cannot therefore decide the claim on 23 summary judgment. See Herrera v. Las Vegas Metro. Police Dep’t, 298 F. Supp. 2d 1043, 1053 24 (D. Nev. 2004) (denying summary judgment on failure-to-train claim on analogous facts). 25 F. Ratification 26 Plaintiffs argue that the City ratified the alleged constitutional violations and thus have 27 incurred liability for them. (Pls.’ Resp. at 31.) A plaintiff may establish municipal liability by 28 showing that “an official with final policy-making authority ratified a subordinate’s Order - 15 1 unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 2 1346–47 (9th Cir. 1992). As Defendants correctly argue, however, the failure to discipline an 3 employee is not a ratification. (Defs.’ Mot. for Summ. J. at 34.) Here, the facts are highly 4 disputed, and Plaintiffs have shown no evidence that the City ratified unconstitutional conduct. 5 III. 6 7 CONCLUSION For the reasons stated above, the Court GRANTS summary judgment on fourth- 8 amendment claims by William, Joyce, and Tamara, individually, and as to fourteenth- 9 amendment claims by Tamara. The Court DENIES summary judgment on William’s fourth- 10 amendment excessive-force claim in his capacity as personal representative and as to William 11 and Joyce’s fourteenth-amendment substantive-due-process claims. (See Defs.’ Mot. for Summ. 12 J., Dkt. #51.) 13 Dated this 7th day of May 2012. 14 15 16 17 A Ronald B. Leighton United States District Judge 18 19 20 21 22 23 24 25 26 27 28 Order - 16
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