Gibson et al v. City of Kirkland et al, No. 2:2008cv00937 - Document 45 (W.D. Wash. 2009)
Court Description: ORDER denying pltf's 15 Motion to Dismiss Defendant's Counterclaim, by Judge John C Coughenour.(VP)
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Gibson et al v. City of Kirkland et al Doc. 45 1 Honorable John C. Coughenour 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 5 6 7 ELLIOT A. GIBSON, EVAN A. GIBSON, and EDWARD S. GIBSON No. C08-0937-JCC 8 Plaintiffs, ORDER 9 v. 10 THE CITY OF KIRKLAND, a municipal 11 corporation; KIRKLAND POLICE OFFICERS J. McMILLIAN and J. 12 TROMBLEY; and JOHN DOE KIRKLAND POLICE OFFICERS 1–5, 13 Defendants. 14 15 This matter comes before the Court on Plaintiffs’ motion to dismiss Defendants’ 16 counterclaim (Dkt. No. 15), Defendants’ response (Dkt. No. 20), Plaintiffs’ reply (Dkt. No. 22), 17 and associated documents. The Court hereby DENIES the motion for the reasons explained herein. 18 I. BACKGROUND 19 After midnight on July 10, 2006, Officer Janelle McMillian encountered Elliot A. Gibson, 20 Evan A. Gibson, and Edward A. Gibson (“Plaintiffs”) in the parking lot of a Ford dealership in 21 Kirkland, Washington. (Answer ¶ 11 (Dkt. No. 8 at 3).) McMillian asked why Plaintiffs were 22 present at the dealership, and they responded that they were employees. (Id. ¶¶ 12–13.) Doubtful, 23 ORDER - 1 Dockets.Justia.com 1 McMillian sought to verify the information. (Id. ¶ 13.)1 Meanwhile, the situation grew contentious. 2 (See id.)2 Arriving at the scene to assist McMillian, Officer Jeff Trombley handcuffed Plaintiffs, 3 and McMillian placed them under arrest without reading them their Miranda rights. (Id. ¶¶ 14–16.) 4 Plaintiffs were charged with obstruction of justice but were acquitted at trial. (Id. ¶¶ 17–18.) Plaintiffs bring this action under 42 U.S.C. § 1983 against McMillian, Trombley, and the 5 6 City of Kirkland, alleging unlawful arrest, violation of their due process rights, and various state 7 law torts. (Compl. ¶¶ 20–40 (Dkt. No. 1 at 4–5).) Denying the allegations and asserting several 8 affirmative defenses, McMillan and Trombley (“Defendants”) have counterclaimed against 9 Plaintiffs for malicious prosecution in violation of Washington Revised Code § 4.24.350. (Answer 10 4–7, 9 (Dkt. No. 8).) Plaintiffs now move to dismiss Defendants’ counterclaim on the grounds that 11 § 4.24.350 is unconstitutional. (Mot. 1 (Dkt. No. 15).) 12 II. DISCUSSION 13 Plaintiffs ask the Court to declare Washington Revised Code § 4.24.350 unconstitutional 14 under both the United States Constitution and the Washington State Constitution. (Id. at 16.) 15 Section 4.24.350 allows defendants to counterclaim for malicious prosecution when “the 16 [underlying civil] action was instituted with knowledge that the same was false, and unfounded, 17 malicious and without probable cause in the filing of such action . . . .” WASH. REV. CODE 18 § 4.24.350(1). Generally, to maintain a counterclaim for malicious prosecution, claimants must 19 demonstrate both (1) an arrest or seizure of property and (2) a special injury. See Clark v. Baines, 20 84 P.3d 245, 248–49 (Wash. 2004) (defining special injury as “injury which would not necessarily 21 result from similar causes of action”). Section 4.24.350(2), however, eliminates these two elements 1 According to Defendants, McMillan verified this information only after Plaintiffs’ arrests. (Police Summary (Dkt. No. 21 at 7).) In the complaint, Plaintiffs state that they had worked as contract janitors at the dealership for the past six months. (Compl. ¶ 11 (Dkt. No. 1 at 3).) 23 2 Parties dispute the facts that gave rise to the contention. (See Compl. ¶ 13 (Dkt. No. 1 at 3); Answer ¶ 13 (Dkt. No. 8 at 3).) 22 ORDER - 2 1 for “any . . . counterclaim brought by a judicial officer, prosecuting authority, or law enforcement 2 officer . . . arising out of the performance or purported performance of the public duty of such 3 officer.” WASH. REV. CODE § 4.24.350(2). Furthermore, unlike other claimants, “[a] judicial 4 officer, prosecuting authority, or law enforcement officer prevailing in such [a malicious 5 prosecution] action may be allowed an amount up to one thousand dollars as liquidated damages, 6 together with a reasonable attorneys’ fee, and other costs of suit.” Id. Plaintiffs allege that these 7 provisions within § 4.24.350(2) render the statute facially unconstitutional. (See Mot. 4–6 (Dkt. 8 No. 15).) 9 A. United States Constitution Plaintiffs assert that § 4.24.350 violates both the First Amendment and the Supremacy 10 11 Clause of the United States Constitution. 12 1. Viewpoint Discrimination Plaintiffs argue that § 4.24.350(2) discriminates on the basis of viewpoint in violation of 13 14 the First Amendment. (Mot. 11 (Dkt. No. 15).)3 According to Plaintiffs, eliminating both the arrest 15 or seizure element and the special injury element makes it easier for judicial officers, prosecuting 16 authorities, and law enforcement officers to obtain relief under § 4.24.350. Cf. Keates v. City of 17 Vancouver, 869 P.2d 88, 94 (Wash. Ct. App. 1994) (describing the legislative findings). In this 18 way, plaintiffs who bring frivolous actions against these governmental parties are more likely to be 19 sanctioned under § 4.24.350 than those who bring frivolous actions against non-governmental 20 3 Both Plaintiffs and Defendants cite to a split in Washington district courts as to whether § 4.24.350 violates the 21 First Amendment. (See Resp. 5–6 (Dkt. No. 20); Reply 2, 3–4 (Dkt. No. 22).) However, De La O v. Arnold-Williams, Nos. C04-0192-EFS, C05-0280-EFS, 2006 WL 2781278 (E.D. Wash. Sept. 25, 2006), the case in which Judge Shea of 22 the Eastern District of Washington held that the state law constituted viewpoint discrimination, was recently vacated. See 2008 WL 4192033 (E.D. Wash. Aug. 27, 2008). Each of the other courts to consider the constitutionality of § 4.24.350 have agreed that the statute is not unconstitutional. See Wender v. Snohomish County, No. C07-0197-TSZ, 23 2007 WL 3165481 (W.D. Wash. Oct. 24, 2007); Bakay v. Yarnes, No. C04-5803-RJB, 2005 WL 2454168 (W.D. Wash. Oct. 4, 2005). ORDER - 3 1 parties. (Mot. 5 (Dkt. No. 15).) This, Plaintiffs state, is impermissible viewpoint discrimination. 2 (Id.) 3 The right to file an action in court is protected under the First Amendment by the right to 4 petition. See Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 741 (1983). This right, however, is 5 not absolute. See id. at 743. Just as states may regulate false and libelous speech without violating 6 the First Amendment’s right to free speech, see New York Times Co. v. Sullivan, 376 U.S. 254, 283 7 (1964), states may regulate actions that are objectively baseless and subjectively motivated by an 8 unlawful purpose without violating the right to petition, see Bill Johnson’s, 461 U.S. at 743; BE & 9 K Constr. v. NLRB, 536 U.S. 516, 530–31 (2002). Because § 4.24.350(2) requires that the 10 underlying actions be both knowingly false and maliciously brought, the statute only applies to 11 actions that are “unprotected” under the right to petition. See Bill Johnson’s, 461 U.S. at 743. 12 In cases involving free speech, however, the Supreme Court has held that even unprotected 13 speech may not be regulated on the basis of viewpoint. R.A.V. v. City of St. Paul, 505 U.S. 377, 14 382–84 (1992). For example, although the state may constitutionally proscribe libel, it may not 15 constitutionally proscribe only libel critical of the government. Chaker v. Crogan, 428 F.3d 1215, 16 1224 (9th Cir. 2005) (citing R.A.V., 505 U.S. at 384). In R.A.V., the Supreme Court applied this 17 principal to invalidate a statute proscribing “fighting words” that insulted or provoked violence 18 “on the basis of race, color, creed, religion, or gender.” 505 U.S. at 391. Although the right to free 19 speech does not protect “fighting words,” see Chaplinsky v. New Hampshire, 315 U.S. 568, 571– 20 72 (1942), the statute regulated only fighting words motivated by certain viewpoints. R.A.V., 505 21 U.S. at 391.4 This regulation was struck down as impermissible viewpoint discrimination. Id. 22 23 4 Justice Scalia elaborated: “Displays containing abusive invective, no matter how vicious or severe, [were] permissible [under the statute] unless they [were] addressed to one of the specified disfavored topics.” Id. This meant ORDER - 4 1 Similarly, in Chaker, the Ninth Circuit invalidated a statute that criminalized knowingly 2 false civilian complaints of peace officer misconduct. 428 F.3d at 1217. The statute did not 3 prohibit fellow officers and witnesses from making false positive statements about peace officers 4 during the investigation of a complaint. See id. at 1226. Because the statute only criminalized false 5 speech critical of peace officers, and not false speech supportive of peace officers, it 6 impermissibly discriminated based on viewpoint. Id. at 1228. 7 The Court is unconvinced that the viewpoint-discrimination principles of R.A.V. and 8 Chaker apply to the right to petition at issue in this case, and Plaintiffs have offered no authority to 9 support this position. Filing a lawsuit is different from making a statement; the former does not 10 necessarily have a “viewpoint,” whereas the latter necessarily does. Thus, it not entirely clear what 11 “viewpoint discrimination” would like when applied to the right to petition. Moreover, if the 12 principle in Chaker did apply wholesale to the filing of lawsuits, it would invalidate not only 13 § 4.24.350(2) but the entire common law action for malicious prosecution. This cause of action 14 provides relief from frivolous claims brought with malicious intent but provides no relief for 15 frivolous defenses brought with malicious intent. Cf. Chaker, 428 F.3d at 1228. The Court does not 16 believe that the Ninth Circuit intended so drastic a result and, accordingly, declines to extend 17 R.A.V. and Chaker to the right to petition.5 Therefore, the Court rejects Plaintiff’s argument that 18 § 4.24.350 violates the First Amendment. 19 20 that the statute allowed one to “hold up a sign saying, for example, that all ‘anti-Catholic bigots’ are misbegotten; but 21 not that all ‘papists’ are, for that would insult and provoke violence ‘on the basis of religion.’” Id. at 391–92. 5 The Supreme Court has implied that viewpoint discrimination could apply to the right to petition. Smith v. Ark. 22 State Highway Employees, Local 1315, 441 U.S. 463, 464 (1979) (“The First Amendment protects the right of an individual, to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. . . . The government is prohibited from infringing upon these guarantees . . . by imposing sanctions for the 23 expression of particular views it opposes.” (citations omitted)). Without more guidance from higher courts, however, this Court is not prepared to apply Supreme Court dictum to the statute in this case. ORDER - 5 1 2 2. Preemption Plaintiffs also argue that § 4.24.350 is preempted by 42 U.S.C. § 1988. (Mot. 12–14 (Dkt. 3 No. 15).) Section 1988(b) allows parties to recover attorneys’ fees in actions under various federal 4 laws, including § 1983. 5 Under the Supremacy Clause, federal law can preempt and displace state law either 6 expressly or implicitly. See Ting v. AT&T, 319 F.3d 1126, 1135 (9th Cir. 2003) (citations omitted) 7 (citing U.S. CONST. art. VI, cl. 2). Express preemption occurs when Congress enacts an explicit 8 statutory command that state law be displaced. Id. Implicit preemption can occur when state law 9 conflicts with federal law, for example, by obstructing the accomplishment and execution of the 10 full purposes and objectives of Congress. Id. at 1136. Plaintiffs suggest that 42 U.S.C. § 1988 both 11 expressly and implicitly preempts § 4.24.350. (Mot. 12–14 (Dkt. No. 15).) 12 First, Plaintiffs argue that 42 U.S.C. § 1988(a) constitutes an explicit statutory command 13 that state laws, like § 4.24.350, be displaced. (See Mot. 12 (Dkt. No. 15).) Section 1988(a) 14 provides: 15 16 17 [I]n all cases where [federal laws] are not adapted to [protecting and vindicating civil rights], or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court [sits shall govern] . . . , so far as [it] is not inconsistent with the Constitution and laws of the United States . . . . 18 42 U.S.C. § 1988(a). Preemption provisions are narrowly and strictly construed, Montalvo v. Spirit 19 Airlines, 508 F.3d 464, 474 (9th Cir. 2007), and should be found only when it is the “clear and 20 manifest purpose of Congress,” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) 21 (internal quotation omitted). The plain language of § 1988(a) does not reveal an intent to preempt 22 state laws regarding attorneys’ fees; rather it reveals an intent to allow the common law, as 23 modified by state law, to serve as a gap-filler when the federal civil rights laws are unsuitable or ORDER - 6 1 inadequate. See Pony v. County of Los Angeles, 433 F.3d 1138, 1143 (9th Cir. 2006) (“Section 2 1988 . . . provides that courts should resolve ambiguities in the federal civil rights laws by looking 3 to the common law, as modified by the laws of the state in which they sit.”); see also CSX Transp., 4 Inc., 507 U.S. at 664 (“[T]he task of statutory construction must . . . focus on the plain wording of 5 the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”) The 6 Court has found no case law suggesting a broader reading of § 1988(a) and, thus, declines to find 7 that it expressly preempts § 4.24.350. 8 Second, Plaintiffs argue that 42 U.S.C. § 1988(b) implicitly preempts § 4.24.350. (Mot. 14 9 (Dkt. No. 15).) Section 1988(b) gives courts discretion to award the prevailing party attorneys’ 10 fees in actions involving § 1983. See 42 U.S.C. § 1988(b) (“[T]he court, in its discretion, may 11 allow the prevailing party . . . a reasonable attorney’s fee as part of the costs . . . .”) However, 12 courts have held that a prevailing defendant in a § 1983 action can only recover attorneys’ fees 13 under § 1988(b) if the plaintiff’s action was “frivolous, unreasonable, or without foundation, even 14 though not brought in subjective bad faith.” See, e.g., Christiansburg Garment Co. v. EEOC, 434 15 U.S. 412, 421 (1978); Galen v. County of Los Angeles, 477 F.3d 652, 666 (9th Cir. 2007) (defining 16 frivolous as “when the result appears obvious or the arguments are wholly without merit”). This 17 extra requirement promotes vigorous prosecution of civil rights violations under § 1983, see Miller 18 v. Los Angeles County Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987), but still protects defendants 19 from litigation having no legal or factual basis, see Mitchell v. Office of Los Angeles County 20 Superintendent of Sch., 805 F.2d 844, 847 (9th Cir. 1986). 21 Plaintiffs suggest that § 4.24.350(2) allows some prevailing defendants in a § 1983 action 22 to recover attorneys’ fees with a lesser showing than what § 1988 requires. (See Mot. 14 (Dkt. No. 23 15).) Prevailing under a § 4.24.350 counterclaim, however, requires proving more than mere ORDER - 7 1 frivolity: the defendant must prove that the claim was maliciously undertaken for improper or 2 wrongful motives or in reckless disregard of the rights of the defendant. See Bender v. City of 3 Seattle, 664 P.2d 492, 501 (Wash. 1983) (citation omitted). Furthermore, the defendant still must 4 show that the § 1983 action lacked probable cause. See Clark v. Baines, 84 P.3d 245, 248–49 5 (Wash. 2004). Thus, § 4.24.350 demands a greater showing than § 1988(b). 6 Plaintiffs further contend that awarding liquidated damages to a police officer who has not 7 shown a special injury obstructs the intent of Congress to promote vigorous prosecution of civil 8 rights violations under § 1983. (Mot. 14 (Dkt. No. 15).) Congress, however, did not intend to 9 promote the vigorous prosecution of civil rights lawsuits undertaken for improper or wrongful 10 motives or in reckless disregard of the rights of the defendants. Cf. Christiansburg, 434 U.S. at 420. 11 Far from obstructing Congress’s intent, awarding liquidated damages in cases involving 12 maliciously filed lawsuits furthers Congress’s equally important intent to protect defendants from 13 litigation having no legal or factual basis. Cf. Mitchell, 805 F.2d at 847. Plaintiffs, therefore, have 14 not shown that 42 U.S.C. § 1983 implicitly preempts § 4.24.350(2). 15 B. 16 Finally, Plaintiffs argue that Washington Revised Code § 4.24.350(2) violates three Washington State Constitution 17 provisions of the Washington State Constitution. First, Plaintiffs argue that § 4.24.350(2) violates 18 the right to access the courts under article 1, section 4 of the Washington Constitution. (Mot. 15 19 (Dkt. No. 15) (citing WASH. CONST. art. I, § 4 (“The right to petition and of the people peaceably 20 to assemble for the common good shall never be abridged.”)).) To support this argument, Plaintiffs 21 quote an overruled Washington Supreme Court plurality opinion: “The policy underlying equal 22 access to the courts is not only sound but socially compelling. Our courts serve as a complaint desk 23 for our society. . . . Accordingly, we consider access to the courts to be a fundamental right.” ORDER - 8 1 Carter v. Univ. of Wash., 536 P.2d 618, 620, 623 (Wash. 1975), overruled by Hous. Auth. of King 2 County v. Saylors, 557 P.2d 321, 327 (Wash. 1977) (“Carter . . . should be also overruled insofar 3 as it suggested that article 1, section 4, protects a right of access to the courts.”). Plaintiffs’ 4 argument is unpersuasive. Washington’s right to petition is consistent with the right to petition 5 under the United States Constitution, see Richmond v. Thompson, 922 P.2d 1343, 1349–51 (Wash. 6 1996), and the federal right to petition does not protect maliciously filed, frivolous lawsuits. See 7 Bill Johnson’s, 461 U.S. at 743 (“[B]aseless litigation is not immunized by the First Amendment 8 right to petition.”). 9 Second, Plaintiffs claim that § 4.24.350(2) violates the right to free speech under article I, 10 section 6 of the Washington Constitution but concede that this depends on the proposition that “a 11 civil action is deemed speech.” (Mot. 15 (Dkt. No. 15).) Although the state constitution may afford 12 greater speech protection than the United States Constitution, cf., e.g., O’Day v. King County, 749 13 P.2d 142, 146 (Wash. 1988), Plaintiffs have cited, and the Court has located, no authority to 14 suggest that filing a civil action constitutes speech under the free speech provision of either 15 constitution. 6 16 Finally, Plaintiffs argue that § 4.24.350(2) violates the right to equal privileges and 17 immunities under article I, section 12 of the Washington Constitution by disparately treating 18 plaintiffs who bring claims against police officers, prosecutors, and judicial officers. (Mot. 4–6, 19 15–16 (Dkt. No. 15).) The state’s equal privileges and immunities clause “requires that persons 20 6 In a different section of their motion, Plaintiffs cite a Supreme Court case and a Ninth Circuit case for the proposition that “[a] lawsuit is a form of speech protected by the First Amendment.” (Motion 10 (Dkt. No. 15).) In 21 these cases, however, both the Supreme Court and the Ninth Circuit indicated that lawsuits were protected by the right to petition provision of the First Amendment, not the free speech provision. See Cal. Motor Transp. Co. v. Trucking 22 Unlimited, 404 U.S. 508, 510 (1972) (“The right of petition is one of the freedoms protected by the Bill of Rights.” (internal quotation omitted)); Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (“The right of 23 access to the courts is subsumed under the first amendment right to petition the government for redress of grievances.”). ORDER - 9 1 similarly situated with respect to the legitimate purpose of the law receive like treatment.” Harmon 2 v. McNutt, 587 P.2d 537, 540 (Wash. 1978). Under this clause, statutes that do not affect 3 fundamental rights or create suspect classifications such as race or alienage are generally reviewed 4 with minimal scrutiny. Medina v. Pub. Util. Dist. No. 1, 53 P.3d 993, 998 (Wash. 2002). Under 5 minimal scrutiny, the party challenging the statute bears the burden of showing that it fails to 6 rationally further a legitimate state interest. See Foley v. Dep’t of Fisheries, 837 P.2d 14, 17 (Wash. 7 1992). 8 Section 4.24.350 does not implicate a fundamental right, see Bill Johnson’s, 461 U.S. at 9 743, and does not compromise a suspect class, see Medina, 53 P.3d at 998. The Court, therefore, 10 reviews § 4.24.350(2) with minimal scrutiny. See id. The statute easily withstands such scrutiny. 11 First, decreasing the number of elements that a police officer, prosecutor, or judge must prove to 12 maintain a cause of action for malicious prosecution (see Mot. 4–5 (Dkt. No. 15)) is rationally 13 related to the state’s legitimate interest in preventing unfounded lawsuits from deterring public 14 officials from exercising their discretion and performing their public duties, see Wash. Laws of 15 1984, ch. 133, § 1. See also Wender, 2007 WL 3165481, at *4 n.3 (“[J]udges, prosecutors, and 16 police officers, as a class, are generally unable to demonstrate arrest or seizure in connection with 17 frivolous claims.”). Second, allowing police officers, prosecutors, and judges to recover liquidated 18 damages and reasonable attorneys’ fees (see Mot. 5–6 (Dkt. No. 15)) is rationally related to the 19 state’s legitimate interest in minimizing the “severely burdensome” costs that officers, 20 municipalities, and the state must expend to defend against unfounded lawsuits, see Wash. Laws of 21 1984, ch. 133, § 1. Plaintiffs, therefore, have not met their burden of proving that § 4.24.350(2) 22 violates the right to equal privileges and immunities. 23 ORDER - 10 1 III. CONCLUSION 2 Accordingly, the Court, having reviewed the relevant submissions the parties, the 3 governing law, and the balance of the record, hereby DENIES Plaintiffs’ motion to dismiss 4 Defendants’ counterclaim. (Dkt. No. 15) 5 DATED this 3rd day of March, 2009. A 6 7 8 JOHN C. COUGHENOUR United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER - 11
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