Wakgira v. City of Seattle et al, No. 2:2008cv01108 - Document 37 (W.D. Wash. 2009)
Court Description: ORDER granting in part and denying in part 25 Defendants Motion for Summary Judgment. John Doe Seattle Police Officers 1-5 terminated, by Judge James L. Robart.(MD)
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Wakgira v. City of Seattle et al Doc. 37 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 DANIEL WAKGIRA, Plaintiff, 12 13 14 ORDER ON MOTION FOR SUMMARY JUDGMENT v. CITY OF SEATTLE, et al., Defendants. 15 16 CASE NO. C08-1108JLR This matter comes before the court on Defendants Officer Anthony Lyndell Jones 17 and the City of Seattle’s (“City”) motion for summary judgment (Dkt. # 25). Having 18 19 reviewed the motion, as well as all papers filed in support and opposition, and deeming 20 oral argument unnecessary1, the court GRANTS in part and DENIES in part the motion. 21 I. BACKGROUND 22 On August 30, 2007, approximately 66,700 football fans watched the Seattle 23 24 Seahawks defeat the Oakland Raiders at Qwest Field in downtown Seattle, Washington. 25 1 26 Neither party requested oral argument on this motion in accordance with Local Rules W.D. Wash. CR 7(b)(4). ORDER - 1 Dockets.Justia.com 1 2 After the game, at around 10:25 p.m., those same fans flooded the streets as they traveled home by foot, bus, and car. (Declaration of Peter Mullenix (“Mullenix Decl.”) 3 4 5 6 7 (Dkt. # 26), Ex. 2 (“Pl. Admis.”) ¶ 2.) Pedestrian and vehicle traffic “was heavy due to the large number of people who were leaving Qwest Field” after the football game. (Id.) In the midst of this activity, Officer Jones of the Seattle Police Department was directing vehicle and pedestrian traffic from the center of the intersection of Fourth 8 9 Avenue South (“Fourth”) and South Royal Brougham Way (“Royal Brougham”). (Pl. 10 Admis. ¶ 3; see Mullenix Decl., Ex. 3 (Deposition of Anthony Jones) (“Jones Dep.”) at 11 46.) Fourth runs north and south while Royal Brougham runs east and west. The 12 intersection includes over 20 different lanes of traffic. (Praecipe to Jones Dep. (Dkt. # 13 14 28), Ex. A.; Declaration of Daniel Wakgira (“Wakgira Decl.”) (Dkt. # 33), Ex. A.) At 15 the time of the incident, Officer Jones was wearing a uniform of the Seattle Police 16 Department (Pl. Admis. ¶ 7), a neon green vest (Pl. Admis. ¶ 4), and gloves “that were 17 lime green, black with a red stop sign in the palm,” (Jones Dep., Ex. 3.), and he was 18 19 holding a plastic flashlight with a bright orange cone affixed to the end of it (Pl. Admis. 20 ¶ 5). The overhead traffic signals in the intersection were flashing red. (Pl. Admis. ¶ 8.) 21 Officer Edward Lukaszeski of the Seattle Police Department and Parking Enforcement 22 Officer Michael Herron were assisting Officer Jones. 23 24 Plaintiff Daniel Wakgira is a 59-year-old man who has lived in the Seattle area 25 since 1972. (Declaration of Lembhard G. Howell (“Howell Decl.”) (Dkt. # 31), Ex. B 26 (Deposition of Daniel Wakgira) (“Wakgira Dep.”) at 5.) On August 30, 2007, Mr. ORDER - 2 1 2 Wakgira attended the football game at Qwest Field along with his brother, Gobena Wakgira, and a friend, Soloman Biruk. (See Wakgira Dep. at 10.) After the game, Mr. 3 4 Wakgira proceeded to drive his brother and Mr. Biruk to their cars, which had been 5 parked farther away from Qwest Field. (Id.) Mr. Wakgira sat in the driver’s seat with 6 Mr. Biruk beside him in the front passenger’s seat and his brother directly behind him in 7 the back seat. (Id.) Mr. Wakgira’s driver’s side window was open. (Wakgira Dep. at 8 9 10 11 12 17-18.) Prior to the incident, Officer Jones had been allowing cars to travel north and south on Fourth. (Jones Dep. at 38.) He heard a whistle from the direction of the Qwest Field parking garage, which meant cars would soon be traveling eastbound out of the 13 14 parking garage on Royal Brougham, and therefore he stopped the northbound and 15 southbound traffic. (Jones Dep. at 38, 40, 46-47.) Officer Jones then stopped the 16 pedestrians from crossing north and south on the east side of Fourth and started 17 eastbound traffic on Royal Brougham. (Jones Dep. at 46-47.) 18 19 The farthest left of the four eastbound lanes on Royal Brougham is a left turn lane 20 that turns north onto Fourth. (Jones Dep. at 47.) Officer Herron explains that, at times, 21 when there are not many cars in the left turn lane the officers may stop traffic from 22 turning left in order to expedite pedestrians crossing from the northwest to the northeast 23 24 corner. (Mullenix Decl., Ex. 4 (Deposition of Michael Herron) (“Herron Dep.”) at 21.) 25 In this type of situation, Officer Jones would signal to Officer Herron that he had 26 stopped traffic from turning left and that Officer Herron could allow pedestrians to ORDER - 3 1 2 cross. (Id.) If Officer Jones subsequently decided to allow traffic to turn left, he would signal to Officer Herron to stop pedestrians from crossing. (Id.) Officer Jones states 3 4 that, at the time of the incident, no cars driving eastbound on Royal Brougham were in 5 the left turn lane. (Jones Dep. at 47.) He also claims that pedestrians were crossing 6 from the northwest corner to the northeast corner, although this statement is disputed by 7 a range of other witnesses, as discussed below. (Id.) 8 9 When Mr. Wakgira arrived at the intersection traveling north on Fourth, he saw 10 Officer Jones directing traffic along with Officers Lukaszeski and Herron. (Wakgira 11 Dep. at 11-13.) He recognized Officer Jones as a police officer and understood that he 12 was directing traffic. (Id. at 15-17.) Officer Jones stopped Mr. Wakgira at the 13 14 intersection for several minutes. (Id. at 19; see also Jones Dep. at 79.) 15 The parties disagree as to what happened next. For his part, Mr. Wakgira states 16 that Officer Jones looked directly at him, signaled for him to drive into the intersection 17 with a movement of his flashlight, and blew his whistle. (Wakgira Dep. at 25-26; see 18 19 Howell Decl., Ex. E (Deposition of Soloman Biruk) (“Biruk Dep.”) (Dkt. # 31-6) at 16.) 20 Mr. Wakgira drove very slowly into the intersection. (Biruk Dep. at 17; Howell Decl., 21 Ex. D (Deposition of Jeanna Pruitt) (“Pruitt Dep.”) (Dkt. # 31-5) at 8.) When Mr. 22 Wakgira reached the middle of the intersection next to Officer Jones, he heard Officer 23 24 Jones say something through the open window but did not understand what Officer 25 Jones had said. (Wakgira Dep. at 26.) Mr. Wakgira asked Officer Jones, “What did you 26 say?” (Id.) He repeated this question three times. (Id.) Without further prelude, ORDER - 4 1 2 Officer Jones hit Mr. Wakgira on the forehead above his right eye with the plastic flashlight. (Id.) Although the precise sequence of Mr. Wakgira’s narrative is difficult to 3 4 follow, Mr. Wakgira contends that, after the first blow, Officer Jones indicated that he 5 should stop the car, that Mr. Wakgira told him he would stop the car but that he needed a 6 chance to do so, that he could not see after being hit by the flashlight, both because the 7 blow had knocked off his glasses and because he was bleeding from his forehead 8 9 directly above his right eye. (Wakgira Dep. at 27; Wakgira Decl. ¶ 8.) Officer Jones 10 then hit Mr. Wakgira with the flashlight a second time in the face—and possibly a third 11 and a fourth time—and reached into the car through the open window to take the key out 12 of the ignition. (Wakgira Dep. at 27, 35-36.) Mr. Wakgira allegedly told Officer Jones 13 14 that the key could not be removed without putting the car in park. (Wakgira Dep. at 27.) 15 Mr. Wakgira parked at the northeast corner of the intersection and Officer Jones took the 16 key out of the car. (Wakgira Dep. at 30, 40.) He states that Officer Jones was hitting 17 him “all the time.” (Wakgira Dep. at 28.) In his deposition, Mr. Wakgira described the 18 19 20 21 22 23 24 25 26 core facts of the incident as follows: As he was hitting me with the flashlight, he said – and then I said, okay – you know, I was bleeding and I didn’t see. I said, I can’t see, I can’t see. And I said to him, I will stop, I will stop; just give me a chance. And then he had his hand and he said, I’m going to put you in jail tonight, I’m going to put you in jail tonight; that’s what he was saying. And then hit me again. You’re going to spend the night in jail; that’s what you deserve. And then I said, just let me stop. I couldn’t stop and then he had his hand – he was raising it and I said, just a minute. And I was, you know – I couldn’t see and I can’t see, I can’t see. Then I put my brake on finally and I came here to a stop and then he tried to take the key. I said, you can’t take the key. I have to put it in park. I kept on telling, you have – You can’t just take it ORDER - 5 1 2 out. It’s just not a car you can take a key. So I parked. That’s when he took the key out. 3 (Wakigra Dep. at 27.) Mr. Wakgira states that Officer Jones repeatedly told him, “I’m 4 going to put you in jail tonight” and “You are going to spend the night in jail.” 5 (Wakgira Dep. at 27, 30; see Biruk Dep. at 29.) 6 7 By contrast, Officer Jones describes a different scene. He states that he never 8 signaled Mr. Wakgira to enter the intersection. Instead, in the midst of directing traffic, 9 he saw the headlights of Mr. Wakgira’s car coming at him and “jumped out of the way.” 10 (Jones Dep. at 79.) Officer Jones yelled, “Stop, stop, stop,” then ran to the car and 11 12 yelled “stop” again. (Id.) Mr. Biruk, sitting in the front passenger seat, heard Officer 13 Jones order Mr. Wakgira to stop. (Mullenix Decl., Ex. 3 (Deposition of Soloman Biruk 14 (“Biruk Dep. II”) at 17.) In response, Mr. Wakgira allegedly said, “No.” (Jones Dep. at 15 79.) Officer Jones grabbed the hinge of the driver’s side door with his left hand and 16 17 looked directly at Mr. Wakgira when he told him to stop. (Id.) After Mr. Wakgira 18 allegedly said “no,” Officer Jones hit him on the forehead with his flashlight. (Id.) He 19 told Mr. Wakgira to stop and Mr. Wakgira again said “no.” (Id.) Officer Jones then hit 20 Mr. Wakgira with his flashlight again and Mr. Wakgira stopped. (Id.) Officer Jones 21 22 23 24 25 states that Mr. Wakgira, when asked why he had not stopped, told him, “It was my turn to go.” (Jones Dep. at 88.) Mr. Wakgira’s car stopped on the northeast side of the crosswalk connecting the northwest corner to the northeast corner. (Wakgira Dep. at 40.) The parties agree that 26 ORDER - 6 1 2 Mr. Wakgira was bleeding from the forehead. (Jones Dep. at 88.) Photographs taken at the scene of the incident show Mr. Wakgira with a cut on his forehead above his right 3 4 eye and with a significant amount of what appears to be blood on his white Seahawks 5 sports jersey. (Howell Decl., Ex. J (Dkt. # 31-11).) Mr. Wakgira was taken to a hospital 6 for treatment. (Wakgira Decl. ¶ 13.) He states that he received seven stitches as a result 7 of the blows struck by Officer Jones. (Wakgira Decl. ¶ 12.) 8 9 The parties have offered contradictory evidence as to whether there were 10 pedestrians crossing from the northwest to the northeast corner at the time of the 11 incident. Offer Herron states that there were “a lot” of pedestrians in the crosswalk. 12 (Herron Dep. at 27.) Officer Jones and Officer Lukaszeski also assert that there were 13 14 pedestrians in the crosswalk. (Jones Dep. at 47; Declaration of Edward Lukaszeski 15 (Dkt. # 27) ¶ 5.) By contrast, Mr. Wakgira states that he “never” saw a pedestrian 16 crossing Fourth in the crosswalk between the northwest and northeast corners. (Wakgira 17 Dep. at 12 (“Nobody was crossing.”), 18; Wakgira Decl. ¶ 10 (“When my car was 18 19 proceeding through the intersection, there was not a single pedestrian crossing.”).) Mr. 20 Biruk agrees that there was “nobody” in the crosswalk at the time Mr. Wakgira drove 21 into the intersection.2 (Biruk Dep. at 29.) Jeanna Pruitt, a bystander who was standing 22 23 24 25 26 2 In his response, Mr. Wakgira states that Gobena Wakgira “testified that there were no people crossing the street.” (Resp. at 7 (citing Howell Decl., Ex. G (Deposition of Gobena Wakgira) (Dkt. # 31-8) at 16).) However, the excerpts of Gobena Wakgira’s deposition attached to Mr. Howell’s declaration do not include page 16. ORDER - 7 1 2 on the northeast corner of the intersection, also suggests that there were no pedestrians in the crosswalk: 3 4 5 6 7 8 9 Q: All right. Was there any danger to any pedestrians that— MR. MULLENIX: Objection to the form. Q: You may answer? A: No, there was — I didn’t see any people over here. He pulled right up next to me. Q: All right. And the record should reflect when you said you didn’t see any people next to you, you are talking on the north? A: On the road. There was — Q: On Fourth Avenue South, there was no people there? A: No. It was just, it was my fiancé, my brother-in-law and me. 10 (Pruitt Dep. at 8-9.) Travis Lemarr, another bystander, made similar statements in his 11 12 13 14 15 deposition: Q: Okay. Well, did it appear to you that any pedestrians were in danger that the officer had to act in the way he did? A: The only danger to pedestrians that there was, was us standing on the corner because of what the cop did. There was nobody else walking anywhere. We were all waiting for the signal to go. 16 17 (Howell Decl., Ex. I (Deposition of Travis Lemarr) (Dkt. # 31-10) at 12.) Jason Lemarr 18 also recalls that there were no pedestrians in the crosswalk, at least in the northeast 19 portion: 20 21 22 Q: All right. Was there any, were there any pedestrians in the intersection on Fourth Avenue South where the car was coming to rest? A: No. 23 (Howell Decl., Ex. H (Deposition of Jason Lemarr) (Dkt. # 31-9) at 8.) Finally, Michael 24 Clingman stated that he could not be sure whether there were pedestrians in the 25 crosswalk: 26 ORDER - 8 1 2 3 4 5 6 7 Q: Do you know whether there were people crossing the street when the car was going? And by crossing the street, I mean crossing from west to east or east to west when the Wakgira car was moving? A: Again, I can’t say for sure if there was anybody going from east to west. I’m almost positive there was people going from north to south. (Howell Decl., Ex. F (Deposition of Michael Clingman) (Dkt. # 31-7) at 11.) Following the incident, Officer Jones called other officers to the scene. These officers arrested Mr. Wakgira for reckless driving in violation of Seattle Municipal Code 8 9 (“SMC”) § 11.56.120(A) and failure to obey in violation of SMC § 11.59.090. The 10 officers took Mr. Wakgira to a hospital and then booked him into the King County Jail. 11 (Mullenix Decl., Ex. 5 (Pl. Answers to Interrogatories) (“Interrogs.”) ¶ 5; Mot. at 7; 12 Wakgira Decl. ¶ 13.) Mr. Wakgira did not speak with officers either at the scene of the 13 14 incident or at the hospital. (Interrogs. ¶ 5.) When asked to talk by an officer at the scene 15 of the incident, Mr. Wakgira said he did not want to talk until after conferring with his 16 lawyer. (Id.) 17 On September 4, 2007, the City filed a criminal complaint against Mr. Wakgira 18 19 for reckless driving and failure to obey in Seattle Municipal Court in City of Seattle v. 20 Wakgira, Case No. 511485. (Mullenix Decl., Ex. 7 (Crim. Compl.).) The case docket 21 indicates that, on September 5, 2007, the Seattle Municipal Court made a finding of 22 probable cause, accepted Mr. Wakgira’s pleas of not guilty, and released him. (Mullenix 23 24 25 Decl., Ex. 8 (Seattle Municipal Ct. Dkt.) at 2.) The docket further indicates that the court dismissed the charges with prejudice on February 5, 2008, after Officer Jones 26 ORDER - 9 1 2 failed to appear at the jury trial because he was out of the country. (Seattle Municipal Ct. Dkt. at 3.) 3 4 On September 6, 2007, Gobena Wakgira telephoned the Seattle Mayor’s Office to 5 complain about the incident. (See Mullenix Decl., Ex. 9 (Email, dated Sept. 6, 2007, 6 from Haddis Tadesse to R. Gil Kerlikowske).) The Mayor’s Office reported the 7 complaint to Chief of Police R. Gil Kerlikowske, and the Seattle Police Department’s 8 9 Office of Professional Accountability (“OPA”) initiated an investigation. (Id.; Mullenix 10 Decl., Ex. 10 (OPA Investigation Intake Form) (“OPA Intake Form”).) Mr. Wakgira did 11 not file a separate complaint about the incident. 12 Sergeant Alan Williams, an OPA investigator, conducted the investigation into 13 14 Gobena Wakgira’s complaint. As part of the investigation, he reviewed the 15 documentary and photographic evidence and sworn statements of Officers Jones, 16 Herron, Lukaszeski, and Michael Renner and of Sergeant Steve Ameden. In addition, he 17 made repeated attempts to speak with Mr. Wakgira, Gobena Wakgira, and Mr. Biruk 18 19 about the incident, but they declined to participate in the investigation. (Mullenix Decl., 20 Ex. 11 (OPA Investigation Case Summary) (“OPA Summary”) at 2-3; Mullenix Decl., 21 Ex. 12 (OPA Investigation Follow-Up Form) (“OPA Follow-Up”) at 1-3.) Raymond 22 Connell, Mr. Wakgira’s attorney in the state court criminal proceedings, told Sergeant 23 24 25 Williams that he would provide the names and contact information of witnesses and Mr. Wakgira’s medical records, but he did not follow-through with these representations 26 ORDER - 10 1 2 despite repeated reminders from Sergeant Williams. (OPH Summary at 2-3.) In his deposition, Mr. Biruk agreed that he did not participate in the OPA investigation: 3 10 Q: Anyone. Have you described the events or been asked to talk about the events? A: No. The police officer investigator called me, but I was so busy. I did not call him back. They wanted to ask me – to interview me. Q: So you were never interviewed? A: No. They did not interview me. Q: Did he call you more than once, this investigator? A: I think he left twice, yeah, a message. But I kept telling, I’ll call you back but I did not call back. Q: You did not. Was there a reason you did not? A: I’m busy today to come here, you know I can’t – very, very hard. 11 (Biruk Dep. at 25-26.) On January 5, 2008, Sergeant Williams completed the case 4 5 6 7 8 9 12 summary. (See OPA Follow-Up at 3.) In turn, Acting Captain Michael T. Kebba 13 14 submitted a memorandum discussing the case and recommending a disposition of 15 exonerated to Captain Fred Hill. (Mullenix Decl., Ex. 15 (Memorandum, dated January 16 23, 2008) (“Kebba Mem.”).) On February 21, 2008, Captain Hill concurred with the 17 recommendation. (Kebba Mem. at 3) Acting Assistant Chief Paul McDonagh also 18 19 concurred with the exoneration. (Id.) On March 3, 2008, Kathryn Olson, Director of the 20 OPA, certified the investigation as complete. (Mullenix Decl., Ex. 16 (Certification of 21 Completion and OPA Disposition).) On April 8, 2008, the Seattle Police Department 22 mailed Gobena Wakgira a letter from Chief Kerlikowske, signed by Captain Tag 23 24 Gleason of the OPA, informing him that investigation had exonerated Officer Jones. 25 (Mullenix Decl., Ex. 17 (Letter, dated April 8, 2008); Howell Decl., Ex. L (same, with 26 signatures and letterhead).) On May 2, 2008, Mr. Wakgira filed a claim for damages ORDER - 11 1 2 and on July 22, 2008, filed the instant civil rights complaint against Officer Jones, the City, and five John Doe officers of the Seattle Police Department. (See Mullenix Decl., 3 4 Ex. 18 (Claim for Damages); Compl. (Dkt. # 1).) II. 5 6 7 ANALYSIS Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates there is no genuine issue of material 8 9 fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v. 10 County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the 11 initial burden of showing there is no material factual dispute and that he or she is entitled 12 to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party meets his or 13 14 her burden, the nonmoving party must go beyond the pleadings and identify facts which 15 show a genuine issue for trial. Cline v. Indus. Maint. Eng’g. & Contracting Co., 200 16 F.3d 1223, 1229 (9th Cir. 2000). 17 A. Federal Civil Rights Claim Against Officer Jones 18 19 Mr. Wakgira alleges that Officer Jones used excessive force in violation of the 20 Fourth and Fourteenth Amendments of the United States Constitution and brings suit 21 under 42 U.S.C. § 1983. (Compl. ¶ 28; Resp. at 15-16.) The Fourth Amendment, 22 applied to the states via the Fourteenth Amendment, guarantees citizens the right “to be 23 24 secure in their persons . . . against unreasonable . . . seizures.” U.S. Const., amend. IV. 25 Officer Jones argues that he is shielded from suit and liability for any alleged 26 constitutional violation under the doctrine of qualified immunity. (Mot. at 13-17.) ORDER - 12 1 2 “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or 3 4 constitutional rights of which a reasonable person would have known.’” Pearson v. 5 Callahan, __ U.S. __, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 6 U.S. 800, 818 (1982)). In determining whether an officer is entitled to qualified 7 immunity, the court engages in a two-step analysis.3 The court first asks: “Taken in the 8 9 light most favorable to the party asserting the injury, do the facts alleged show the 10 officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 11 (2001). If the answer is no, the court need not inquire further. By contrast, if a 12 constitutional violation could be made out on a favorable view of the parties’ 13 14 submissions, then the court must ask “whether the right was clearly established.” Id. In 15 other words, “[t]he contours of the right must be sufficiently clear that a reasonable 16 official would understand that what he is doing violates that right.” Id. at 202 (internal 17 quotation marks and citation omitted). 18 19 20 21 1. Do the Facts Alleged Show that Officer Jones Violated a Constitutional Right? Courts analyze Fourth Amendment excessive force claims under the framework established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). The 22 23 24 25 26 3 In Pearson, the Supreme Court clarified that the two-step sequence, although often appropriate, is not mandatory. Rather, courts must “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, __ U.S. __, 129 S. Ct. at 818. In this matter, the court will address the qualified immunity inquiry in the usual two-step sequence of Saucier. ORDER - 13 1 2 basic test under Graham is one of objective reasonableness. This requires courts to balance “the nature and quality of the intrusion on the individual’s Fourth Amendment 3 4 interests” against “the countervailing government interests at stake.” Graham, 490 U.S. 5 at 396; see Tekle v. United States, 511 F.3d 839, 844-45 (9th Cir. 2007); Smith v. City of 6 Hemet, 394 F.3d 689, 700 (9th Cir. 2005) (en banc); Miller v. Clark County, 340 F.3d 7 959, 964 (9th Cir. 2003). In doing so, “[t]he question is whether the officers’ actions are 8 9 ‘objectively reasonable’ in light of the facts and circumstances confronting them.” 10 Graham, 490 U.S. at 397. “The question is not simply whether the force was necessary 11 to accomplish a legitimate police objective; it is whether the force used was reasonable 12 in light of all the relevant circumstances.” Hammer v. Gross, 932 F.2d 842, 846 (9th 13 14 Cir. 1991) (emphasis in original). The Supreme Court cautions that the reasonableness 15 of a particular use of force “must be judged from the perspective of a reasonable officer 16 on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. 17 In the Ninth Circuit, the objective reasonableness inquiry under Graham is a 18 19 three-step analysis: First, the court must assess the gravity of the particular intrusion on 20 Fourth Amendment interests by evaluating the type and amount of force used. Miller, 21 340 F.3d at 964. Second, the court must assess the importance of the governmental 22 interests at stake by considering the Graham factors: (1) the severity of the crime, (2) 23 24 whether the suspect posed an immediate threat to the safety of the officer and others, and 25 (3) whether the suspect was actively resisting arrest or attempting to evade arrest by 26 flight. Id. Third, the court must balance “the gravity of the intrusion on the individual ORDER - 14 1 2 against the government’s need for that intrusion to determine whether it was constitutionally reasonable.” Id. 3 4 i. Gravity of the Intrusion 5 The force used to seize Mr. Wakgira was not insubstantial: Officer Jones struck 6 him at least twice on the right side of his forehead with a plastic flashlight. The parties 7 agree that Officer Jones struck Mr. Wakgira hard enough to cut or break his skin and 8 9 that Officer Jones struck him in the head as opposed to a less vulnerable part of his 10 body. On the present record, although it is difficult to evaluate the strength used by 11 Officer Jones in delivering the blows and the nature of the plastic flashlight as a weapon, 12 the court is satisfied for purposes of the instant motion that Officer Jones used 13 14 meaningful force against Mr. Wakgira in making the seizure. 15 ii. 16 The governmental interests at stake are not particularly strong when viewing the 17 Importance of the Governmental Interests at Stake evidence in the light most favorable to Mr. Wakgira. Officer Jones argues that he acted 18 19 reasonably in striking Mr. Wakgira on the assumption that Mr. Wakgira’s actions 20 threatened the safety of pedestrians allegedly crossing between the northwest and 21 northeast corners of the intersection. (Mot. at 15.) 22 First, the alleged crimes at issue—reckless driving under SMC § 11.56.120(A) 23 24 and failure to obey under SMC § 11.59.090(A)—are modestly serious. SMC § 25 11.56.120(A) provides that “[a]ny person who drives any vehicle in the City in willful or 26 wanton disregard for the safety of persons or property is guilty of reckless driving.” ORDER - 15 1 2 SMC § 11.59.090(A) provides that “[a]ny person requested or signaled to stop by a peace officer for a traffic infraction has a duty to stop.” Officer Jones argues that the 3 4 5 6 7 facts on the scene gave rise to a fair probability that Mr. Wakgira violated both code provisions. (Mot. at 22-23.) The evidence, taken in the proper light, does not support the conclusion that a reasonable officer would have understood Mr. Wakgira to be driving recklessly in 8 9 violation of SMC § 11.56.120(A). Accepting Mr. Wakgira’s allegation that Officer 10 Jones signaled for him to drive into the intersection, it is difficult to discern how an 11 officer could reasonably believe Mr. Wakgira was driving with willful or wanton 12 disregard for the safety of pedestrians in violation of SMC § 11.56.120(A) when acting 13 14 on the officer’s own instructions. Officer Jones contends that the court need not decide 15 whether he signaled Mr. Wakgira to enter the intersection. (Reply (Dkt. # 34) at 3.) For 16 purposes of this motion, however, the court will assume that Officer Jones directed Mr. 17 Wakgira to enter the intersection because Mr. Wakgira has presented evidence in 18 19 support of this contention. In essence, Officer Jones asks the court to overlook key 20 evidence with the potential to strongly color the entire interaction between the parties in 21 favor of viewing Officer Jones’s actions in a narrow and artificial vacuum. The court 22 declines to do so. As the Ninth Circuit teaches, the relevant question “is whether the 23 24 force used was reasonable in light of all the relevant circumstances.” Hammer, 932 25 F.2d at 846 (emphasis added). Plainly, whether Officer Jones signaled Mr. Wakgira to 26 drive into the intersection is one of the many relevant considerations upon which a ORDER - 16 1 2 reasonable officer’s actions and a jury’s verdict might turn. Specifically, a jury might consider the evidence that Officer Jones signaled Mr. Wakgira to drive into the 3 4 intersection in conjunction with the evidence that there were no pedestrians in the 5 crosswalk, and thereby reasonably infer that Officer Jones knew both that there were no 6 pedestrians in the intersection and that Mr. Wakgira was not driving in violation of SMC 7 § 11.56.120(A). Furthermore, the evidence suggests that Mr. Wakgira was driving very 8 9 slowly, which diminishes any potential recklessness or danger to pedestrians. (Pruitt 10 Decl. at 8.) Finally, the court notes that Officer Jones’s particular use of force—striking 11 the driver of a moving vehicle in the head with a flashlight and knocking off his 12 glasses—is not the type of force ordinarily associated with making a driver less reckless. 13 14 Thus, viewing the evidence in the light most favorable to Mr. Wakgira, the court finds 15 that a reasonable officer would have little to no reason to believe that Mr. Wakgira was 16 violating SMC § 11.56.120(A) when he drove into the intersection. 17 Similarly, although a reasonable officer might initially have believed that Mr. 18 19 Wakgira had failed to comply with his commands to stop in violation of SMC § 20 11.59.090(A), the facts, viewed in the light most favorable to Mr. Wakgira, strongly 21 undermine this contention when taken as a whole. Officer Jones ordered Mr. Wakgira to 22 stop with clear, simple, and well-articulated commands. At this point and without more, 23 24 a reasonable officer could have believed Mr. Wakgira deliberately chose not to obey his 25 commands. Mr. Wakgira, however, allegedly responded to Officer Jones with a 26 question—“What did you say?”—that he repeated three times and that underscored that ORDER - 17 1 2 he had not heard or understood the commands to stop. (Wakgira Dep. at 26.) Without repeating his command, Officer Jones struck Mr. Wakgira in the head with his 3 4 flashlight. (Id.) On these facts, it is again difficult to understand how a reasonable 5 officer could have believed that Mr. Wakgira had deliberately chosen to disobey his 6 commands if he had not heard the commands. Next, Officer Jones emphasizes that Mr. 7 Wakgira did not stop even after the first blow. Mr. Wakgira, however, states that, after 8 9 being struck in the forehead above his right eye, he was bleeding, he could not see 10 because Officer Jones had knocked off his glasses, and he told Officer Jones that he 11 would stop if given a chance to do so. (Wakgira Dep. at 27; Wakgira Decl. ¶ 8.) Mr. 12 Wakgira’s failure to stop immediately after sustaining a blow to the head is not 13 14 15 16 17 surprising. On this view of the facts, the court is not persuaded that an officer could reasonably have believed Mr. Wakgira to be in violation of SMC § 11.59.090(A). In sum, while the court is mindful of the moderate seriousness of reckless driving and failure to obey a police officer, the circumstances of this case, when viewed in the 18 19 light most favorable to Mr. Wakgira, are not such as to warrant the conclusion by a 20 reasonable officer that Mr. Wakgira was a dangerous criminal, that he acted with willful 21 or wanton disregard for the safety of others, that he deliberately disobeyed Officer 22 Jones’s commands, or that his alleged crimes were especially egregious. Under these 23 24 25 circumstances, the nature of the alleged crimes at issue provides little basis for Officer Jones’s use of physical force. 26 ORDER - 18 1 2 Second, viewing the evidence in the light most favorable to Mr. Wakgira, a reasonable officer would not have believed that Mr. Wakgira’s actions posed a threat to 3 4 the safety of pedestrians or himself. Accepting Mr. Wakgira’s allegations that there 5 were no pedestrians in the crosswalk and that Officer Jones signaled Mr. Wakgira to 6 drive into the intersection, a reasonable jury could infer that Officer Jones signaled Mr. 7 Wakgira to proceed precisely because he knew there were no pedestrians in danger. 8 9 Likewise, Mr. Wakgira states that Officer Jones did not jump out of the way of his car 10 and “was at least a good 8 feet away.” (Wakgira Decl. ¶ 7.) Having signaled Mr. 11 Wakgira into the intersection, a reasonable officer would not have been in acute fear for 12 his safety. 13 14 Third, viewing the evidence in the light most favorable to Mr. Wakgira, a 15 reasonable officer would not have believed that Mr. Wakgira was either actively 16 resisting arrest or attempting to evade arrest by flight. Officer Jones does not contend 17 that Mr. Wakgira actively resisted arrest; rather, he asserts that Mr. Wakgira attempted 18 19 to evade arrest by flight. (Mot. at 15.) Looking at the totality of the circumstances, 20 particularly the allegations that Mr. Wakgira did not hear Officer Jones’s commands to 21 stop and repeatedly articulated that he had not understood those commands, that Officer 22 Jones’s first blow to Mr. Wakgira’s head knocked off his glasses, and that Mr. Wakgira 23 24 25 repeatedly told Officer Jones he would stop if given the opportunity to do so, a reasonable officer would not have believed that Mr. Wakgira intended to flee. 26 ORDER - 19 1 2 Overall, viewing the evidence in the light most favorable to Mr. Wakgira, the Graham factors demonstrate at most minimal governmental interests underlying Officer 3 4 Jones’s use of force.4 5 iii. 6 Finally, in balancing the gravity of the intrusion against the government’s 7 On Balance, Officer Jones’s Use of Force Was Not Reasonable interests, the court cannot conclude that Officer Jones’s use of force was constitutionally 8 9 reasonable. Instead, when the disputed facts and inferences are viewed in the light most 10 favorable to Mr. Wakgira, an officer in Officer Jones’s position could not reasonably 11 have concluded that the force used was reasonable under the circumstances. The court 12 acknowledges that Officer Jones was forced to make a split-second judgment as to the 13 14 appropriate amount of force necessary in a tense, uncertain, and rapidly evolving 15 situation. Graham, 490 U.S. at 396-97. If this case proceeds to trial, a jury may draw 16 inferences different than those the court must indulge on a motion for summary 17 judgment. Nonetheless, accepting the evidence in the light most favorable to Mr. 18 19 Wakgira, it is evident that the key question—whether the force used here was 20 objectively reasonable—is a matter that cannot be resolved in favor of Officer Jones on 21 summary judgment. As the Ninth Circuit has repeatedly emphasized, “the 22 reasonableness of force used is ordinarily a question of fact for the jury.” Liston v. 23 24 25 26 4 A court may also consider the availability of alternative methods of capturing or subduing a suspect as part of the Graham analysis. Smith, 394 F.3d at 703. Here, the parties have not briefed the court with respect to alternative methods. The court thus declines to consider this additional factor. ORDER - 20 1 2 County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997); see Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). Therefore, the court concludes that the facts alleged, 3 4 5 6 7 when viewing the evidence in the light most favorable to Mr. Wakgira, show that a reasonable jury could find that Officer Jones used excessive force. 2. Was the Constitutional Right Clearly Established? Having determined that a violation of the Fourth Amendment could be made out 8 9 on a favorable view of Mr. Wakgira’s evidence, the court must ask whether the right was 10 clearly established. Saucier, 533 U.S. at 201. In other words, the court must determine 11 whether it would be clear to a reasonable officer that his conduct was unlawful in the 12 situation he confronted. Id. at 202. If a right is clearly established by decisional 13 14 authority of the Supreme Court or the Ninth Circuit, then the court need inquire no 15 further. Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004). When there are few 16 binding cases on point, however, courts look to non-binding case law, including 17 “decisions of state courts, other circuits, and district courts.” Drummond v. City of 18 19 20 21 22 Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003). Mr. Wakgira argues that the law was clearly established at the time of the incident such that Officer Jones could not have believed that his conduct was lawful. (Resp. at 15.) He rests this assertion on Graham, which establishes the basic analysis 23 24 for excessive force claims, without citation to other case law. (Id.) The Supreme Court 25 has cautioned, however, that Graham is “cast at a high level of generality,” and 26 ordinarily does not provide the type of clear answer required by this prong of the ORDER - 21 1 2 qualified immunity analysis, although it may be sufficient in an obvious case. Brosseau v. Haugen, 543 U.S. 194, 199 (2004). 3 4 The court finds that Graham and its progeny clearly establish the proposition that 5 repeatedly striking a driver with a plastic flashlight in the forehead, where the driver 6 entered the intersection on the officer’s signal, was driving very slowly, and expressed to 7 the officer that he had not heard the command to stop, constitutes use of excessive force 8 9 under the Fourth Amendment. See Baltimore v. City of Albany, Ga., 183 Fed. Appx. 10 891, 898-90 (11th Cir. 2006) (holding that striking an arrestee over the head with a 11 heavy flashlight constitutes the type of obvious use of excessive force clearly established 12 by general case law); Marley v. Crawford County, Ark., 383 F. Supp. 2d 1129, 1133 13 14 (W.D. Ark. 2005) (“There is no doubt that striking a detainee in the head with a baton or 15 flashlight when he is not resisting constitutes excessive force.”); Hodsdon v. Town of 16 Greenville, 52 F. Supp. 2d 117, 124 (D. Me. 1999) (reasoning that “a gratuitous blow to 17 the head with a blunt instrument would clearly constitute excessive force.”); see also 18 19 Green v. New Jersey State Police, 246 Fed. Appx. 158, 163 (3d Cir. 2007). The use of 20 force, in the absence of a need for force, is excessive. The court thus concludes that the 21 right was clearly established at the time of the incident. 22 In sum, the court concludes that Officer Jones is not entitled to qualified 23 24 25 immunity. Accordingly, the court denies Officer Jones’s motion for summary judgment with respect to Mr. Wakgira’s § 1983 claim. 26 ORDER - 22 1 2 B. Federal Civil Rights Claim Against the City In his complaint, Mr. Wakgira alleges that the City is liable under 42 U.S.C. § 3 4 1983 for tolerating a pattern and practice of officers violating the rights of citizens, by 5 ratifying the conduct of Officer Jones, and by acting with deliberate indifference to his 6 rights. (Compl. ¶ 30.) In his response to the instant motion, Mr. Wakgira provides a 7 single sentence of legal argument in support of his civil rights claim against the City: 8 9 “The failure to discipline officers for police misconduct is a significant basis for 10 municipal liability.” (Resp. at 24. (citing Smith v. City of Fontana, 818 F.2d 1411 (9th 11 Cir. 1987), and Gimble v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991).) 12 A municipality may be held liable under § 1983 when a governmental policy or 13 14 custom causes the constitutional harm, but may not be held liable under respondeat 15 superior. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). A plaintiff may 16 establish municipal liability by proving “that a city employee committed the alleged 17 constitutional violation pursuant to a formal governmental policy or a longstanding 18 19 practice or custom which constitutes the standard operating procedure of the local 20 governmental entity” or “that an official with final policy-making authority ratified a 21 subordinate’s unconstitutional decision or action and the basis for it.” Gillette v. 22 Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (quotations omitted); see also Price v. 23 24 25 26 Sery, 513 F.3d 962, 966 (9th Cir. 2008). A municipality may also be held liable on a theory of deliberate indifference. Christie v. Iopa, 176 F.3d 1231, 1240 (9th Cir. 1999). 1. Pattern or Practice ORDER - 23 1 2 In order to establish municipal liability on a “pattern or practice” theory, a plaintiff must demonstrate either a formal governmental policy or a “longstanding 3 4 practice or custom which constitutes the standard operating procedure of the local 5 governmental entity.” Gillette, 979 F.2d at 1346. “Liability for improper custom may 6 not be predicated on isolated or sporadic incidents; it must be founded upon practices of 7 sufficient duration, frequency and consistency that the conduct has become a traditional 8 9 10 11 12 method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Mr. Wakgira has failed to show a genuine issue of material fact as to the existence of either a formal policy of the City or a longstanding practice or custom. The court observes that Mr. Wakgira has provided, at most, a cursory analysis of the alleged 13 14 legal and factual bases supporting this claim. A fair reading of his statement of facts and 15 of the evidence attached to his response suggests that Mr. Wakgira argues the City may 16 be held liable based on its “complete failure” to discipline Officer Jones with respect to 17 his alleged use of excessive force despite 10 identified complaints of misconduct 18 19 20 21 22 between 1989 and 2008. (See Resp. at 9-12; Howell Decl., Ex. M (Disciplinary Record) (Dkt. # 31-14); Jones Dep. at 7-24.) Without discussing the details of Officer Jones’s disciplinary record, the court is satisfied that the record, even when viewed in the light most favorable to Mr. Wakgira, 23 24 neither constitutes a formal policy of the City nor reveals a longstanding practice or 25 custom. The disciplinary record contains a patchwork collection of complaints, the 26 majority of which involve allegations that Officer Jones could have been more polite ORDER - 24 1 2 during traffic stops. The record further indicates, and Mr. Wakgira agrees, that the City has twice disciplined Officer Jones, in 1989 and 1990. (Disciplinary Record at 3-6; see 3 4 also Reply at 9.) Plainly, the disciplinary record, in and of itself, does not contain or 5 constitute a formal policy of the City. Likewise, the sporadic incidents in the 6 disciplinary record do not rise to the level of a practice or custom because they do not 7 demonstrate a traditional method of carrying out policy. See Trevino, 99 F.3d at 918. 8 9 Viewing the evidence in the light most favorable to Mr. Wakgira, the court concludes 10 that Mr. Wakgira has not demonstrated an issue of material fact with respect to whether 11 the City can be held liable under § 1983 on a pattern or practice theory. Accordingly, 12 the court grants summary judgment in favor of the City with respect to this claim. 13 14 15 16 17 2. Ratification A municipality can be liable under § 1983 for an isolated constitutional violation when an official with final policymaking authority ratifies a subordinate’s decision, thereby approving the decision and the basis for it. Fuller v. City of Oakland, 47 F.3d 18 19 1522, 1534 (9th Cir. 1995); see Christie, 176 F.3d at 1238-39. Courts look to state law 20 to determine whether an official has final policymaking authority. Jett v. Dallas Indep. 21 Sch. Dist., 491 U.S. 701, 737; Christie, 176 F.3d at 1235. “To show ratification, a 22 plaintiff must prove that the ‘authorized policymakers approve a subordinate’s decision 23 24 and the basis for it,’” id. at 1239 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 25 127 (1988)), and that the policymaker’s decision triggering liability was the product of a 26 “conscious, affirmative choice” to ratify the conduct at issue, Gillette, 979 F.2d at 1347. ORDER - 25 1 2 While ratification requires knowledge of the alleged constitutional violation, Christie, 176 F.3d at 1239, it “does not require knowledge that the approved conduct is actually 3 4 unconstitutional,” Tubar, No. C05-1154-JCC, 2008 WL 514932, at *6 (W.D. Wash. 5 Dec. 5, 2008). In general, a single failure to discipline an officer does not rise to the 6 level of ratification. Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003), rev’d on 7 other grounds, 543 U.S. 194 (2004). However, municipal liability by ratification may 8 9 10 attach where “the officials involved adopted and expressly approved of the acts of others who caused the constitutional violation.” Trevino, 99 F.3d at 920. 11 12 Mr. Wakgira alleges that Chief Kerlikowske ratified Officer Jones’s conduct by exonerating him at the close of the allegedly “perfunctory” OPA investigation, which 13 14 relied on Officer Jones’s version of events. (Resp. at 10.) He does not address the 15 question whether Chief Kerlikowske is an official with final policymaking authority 16 under Washington law.5 The court will assume, however, that Chief Kerlikowske is 17 such an official. See Tubar v. Clift, 2008 WL 514932, at *5 n.2; Baldwin v. City of 18 19 Seattle, 776 P.2d 1377, 1381 (Wash. Ct. App. 1989). The court thus asks whether Chief 20 Kerlikowske adopted and expressly approved of Officer Jones’s alleged use of excessive 21 force. 22 23 24 25 26 5 Mr. Wakgira does not argue that other employees of the Seattle Police Department constitute officials with final policymaking authority or that Chief Kerlikowske delegated his authority. The court therefore declines to consider whether the City may be held liable based on the actions of officials other than Chief Kerlikowske. ORDER - 26 1 2 In support of his contention that Chief Kerlikowske ratified Officer Jones’s conduct, Mr. Wakgira submits a letter from Chief Kerlikowske, but signed by Captain 3 4 Gleason of the OPA, to Gobena Wakgira informing him that Officer Jones had been 5 exonerated of wrongdoing as a result of the OPA investigation. (Resp. at 10; Howell 6 Decl., Ex. L (Letter, dated April 9, 2008).) He also contends that the “Use of Physical 7 Force” report dated August 31, 2007, is “unusual” in certain respects. (Id. (citing 8 9 Howell Decl., Ex. K (Use of Physical Force Report) (“Use of Force Report”) (Dkt. # 31- 10 12).) Further, the evidence shows that Chief Kerlikowske was made aware of the 11 alleged use of excessive force at least as early as September 6, 2007, when he received 12 an email about Gobena Wakgira’s complaint. (See Mullenix Decl., Ex. 9.) 13 14 Mr. Wakgira has not met his burden in showing a genuine issue of material fact 15 with respect to municipal liability by ratification. The evidence strongly suggests that 16 Chief Kerlikowske had “knowledge of the alleged constitutional violation” and its 17 factual basis. See Christie, 176 F.3d at 1239 (emphasis added). A jury could also 18 19 reasonably infer that Chief Kerlikowske had knowledge of the OPA investigation and its 20 finding. (See Howell Decl., Ex. L.) Nonetheless, even assuming Chief Kerlikowske 21 knew of the incident, the OPA investigation, and the exoneration of Officer Jones, Mr. 22 Wakgira has presented no evidence from which a jury could reasonably infer that Chief 23 24 25 Kerlikowske participated in the OPA investigation, adopted or approved of Officer Jones’s conduct, or otherwise ratified the alleged use of excessive force. 26 ORDER - 27 1 2 First, the letter from Chief Kerlikowske to Gobena Wakgira does not constitute an official finding on behalf of Chief Kerlikowske. Unlike the internal documents 3 4 concerning the OPA investigation, in which various individuals recommended, 5 reviewed, and concurred with the finding of exonerated, the letter merely notifies 6 Gobena Wakgira of the resolution of his complaint. (Compare Mullenix Decl., Exs. 10- 7 12, 14-16, with Howell Decl., Ex. L.) Even assuming Chief Kerlikowske had a hand in 8 9 drafting or reviewing the letter—an assumption belied by the fact that the letter is signed 10 by Captain Gleason, not Chief Kerlikowske—the letter is not a part of the OPA 11 investigative process. There is no evidence to suggest that Chief Kerlikowkse either 12 reviewed the finding or concurred with it as part of the OPA investigation. Without 13 14 more, the fact that Chief Kerlikowske, through Captain Gleason, informed Gobena 15 Wakgira of the finding is insufficient to establish a genuine issue of material fact as to 16 whether he thereby ratified the finding. Gillette, 979 F.2d at 1348. 17 Second, Mr. Wakgira has presented no evidence in support of his bare assertion 18 19 that OPA conducted a “perfunctory” investigation. Mr. Wakgira, Gobena Wakgira, and 20 Mr. Biruk all chose not to participate in the OPA investigation despite repeated requests 21 to do so. Absent a further showing, they cannot now be heard to complain that the 22 investigation improperly relied on Officer Jones’s version of events. Additionally, while 23 24 Mr. Wakgira contends that the “Use of Physical Force” report, dated August 31, 2007, is 25 unusual, this report was not prepared as part of the OPA investigation; indeed, Gobena 26 Wakgira had not yet made his complaint and thus initiated the OPA investigation as of ORDER - 28 1 2 this date. (Compare Use of Force Report (August 31, 2007), with OPA Intake Form (September 7, 2007).) 3 Third, the facts of this case are unlike those of Fuller, in which the Ninth Circuit 4 5 concluded that municipal liability by ratification could attach where the chief of police 6 reviewed and approved of an investigation allegedly performed in a sexually-biased 7 fashion because the “grossly inadequate investigation” contained “glaring deficiencies.” 8 9 Fuller, 47 F.3d at 1535. Here, Mr. Wakgira has neither shown “glaring deficiencies” in 10 the OPA investigation nor that Chief Kerlikowske concurred with the specific finding. 11 In sum, the court concludes that Mr. Wakgira has not presented sufficient 12 evidence to demonstrate the existence of a genuine issue of material fact with respect to 13 14 municipal liability by ratification. The court thus grants summary judgment in favor of 15 the City with respect to this theory of liability.6 16 C. 17 Assault and Battery Claims Mr. Wakgira alleges claims for the intentional torts of assault and battery. 18 19 (Compl. ¶¶19-20.) Under Washington law, it is not unlawful for a police officer to use 20 force that is reasonable and necessary in the performance of a legal duty. RCW 21 9A.16.020(1). Officer Jones argues that he cannot be held liable for assault or battery 22 23 24 25 26 6 The court declines to consider the argument that the City can be held liable under § 1983 on a theory of deliberate indifference. Mr. Wakgira raises this theory of municipal liability in his complaint (Compl. ¶ 30), but he does not present this argument in response to the City’s motion for summary judgment. Accordingly, the court grants summary judgment in favor of the City on this theory of municipal liability. ORDER - 29 1 2 because “on any reasonable view of the evidence, the facts available to Officer Jones made it reasonable and necessary to use force in convincing Wakgira to stop his car.” 3 4 (Mot. at 20.) As discussed above, the evidence, when viewed in the light most favorable 5 to Mr. Wakgira, demonstrates that a reasonable officer would not have concluded that it 6 was either reasonable or necessary to repeatedly strike Mr. Wakgira. The court therefore 7 denies Officer Jones’s motion for summary judgment with respect to the assault and 8 9 10 11 12 battery claims. D. Outrage Claim In Washington, the tort of outrage requires a plaintiff to establish proof of three elements: (1) extreme and outrageous conduct; (2) intentional or reckless infliction of 13 14 emotional distress; and (3) actual result of severe emotional distress. Kloepfel v. Bokor, 15 66 P.3d 630, 632 (Wash. 2003); Reid v. Pierce County, 961 P.2d 333, 337 (Wash. 1998); 16 Grimsby v. Samson, 530 P.2d 291, 295-96 (Wash. 1975). Here, Defendants argue that 17 the court should grant summary judgment with respect to Mr. Wakgira’s outrage claim 18 19 because Officer Jones’s conduct was objectively reasonable. (Mot. at 21.) As discussed 20 above, viewing the evidence in the light most favorable to Mr. Wakgira, a reasonable 21 jury could conclude that Officer Jones’s use of force was not reasonable. 22 Nonetheless, Mr. Wakgira’s outrage claim must be dismissed because it is 23 24 subsumed within and cognizable under his state law assault and battery claims. Mr. 25 Wakgira argues that Officer Jones committed the tort of outrage when he struck him 26 with the flashlight. (Resp. at 20-21.) Although he alludes to having suffered “severe ORDER - 30 1 2 emotional distress,” Mr. Wakgira provides no allegations beyond the facts of the alleged assault. In Rice v. Janovich, 742 P.2d 1230, 1238 (Wash. 1987), the Washington 3 4 Supreme Court held that a plaintiff cannot recover on an outrage theory when damages 5 for mental or emotional distress are already recoverable under an assault claim. See also 6 Bankhead v. City of Tacoma, 597 P.2d 920, 925 (Wash. Ct. App. 1979) (affirming 7 dismissal of outrage claim on motion for summary judgment because plaintiff had an 8 9 assault claim). In support of his outrage claim, Mr. Wakgira has neither pleaded nor 10 argued facts distinct from those alleged as part of his assault and battery claims. The 11 court thus dismisses his outrage claim. To the extent Mr. Wakgira seeks to recover for 12 outrage on these facts, he must do so pursuant to his assault and battery claims. 13 14 15 16 17 E. False Arrest, False Imprisonment & Malicious Prosecution Claims In Washington, probable cause is a complete defense to claims of false arrest, false imprisonment, or malicious prosecution. Hanson v. City of Snohomish, 852 P.2d 295, 298, 301 (Wash. 1993). On September 5, 2007, the Seattle Municipal Court made a 18 19 finding of probable cause in the criminal case against Mr. Wakgira. (Seattle Municipal 20 Ct. Dkt. At 2.) Defendants argue that collateral estoppel bars Mr. Wakgira from 21 relitigating the issue of probable cause. (Mot. at 23-24.) Mr. Wakgira does not respond 22 to this argument. 23 24 The doctrine of collateral estoppel precludes relitigation of an issue after the party 25 estopped has had a full and fair opportunity to present his case. Hanson, 852 P.2d at 26 299-300; see generally Philip A. Trautman, Claim and Issue Preclusion in Civil ORDER - 31 1 2 Litigation in Washington, 60 WASH. L. REV. 805 (1985). State law governs the application of collateral estoppel in federal civil rights cases. Allen v. McCurry, 449 3 4 U.S. 90, 96 (1980); Ayers v. City of Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). In 5 Washington, “[t]he doctrine may be applied in a civil action in which a party seeks to 6 retry issues resolved against a defendant in a previous criminal case, as well as in a civil 7 rights action in which issues raised are the same as those determined in a criminal case.” 8 9 Hanson, 852 P.2d at 300. The party asserting the defense must establish that (1) the 10 issue decided in the prior adjudication is identical to the one presented in the second; (2) 11 the prior adjudication ended with a final judgment on the merits; (3) the party against 12 whom the doctrine is asserted was a part or was in privity with a party to the prior 13 14 15 16 17 adjudication; and (4) application of the doctrine does not work an injustice. Id.; State Farm Mut. Auto. Ins. Co. v. Avery, 57 P.3d 300, 304 (Wash. Ct. App. 2002). Here, collateral estoppel bars Mr. Wakgira’s claims for false arrest, false imprisonment, and malicious prosecution because the issue of probable cause has 18 19 already been determined in state court. Defendants have established the elements of 20 collateral estoppel: the issue decided by the Seattle Municipal Court is identical to the 21 issue here presented, the prior adjudication ended with a final judgment on the merits, 22 Mr. Wakgira was a party in state court and present at the hearing on probable cause, and 23 24 application of the doctrine does not work an injustice because Mr. Wakgira had an 25 opportunity to litigate this issue in state court. See Hanson, 852 P.2d at 300. This court 26 is thus bound by the state court’s determination of probable cause, which operates as a ORDER - 32 1 2 complete defense to Mr. Wakgira’s claims. Accordingly, the court grants summary judgment in favor of Defendants with respect to the claims for false arrest, false 3 4 5 imprisonment, and malicious prosecution. F. Negligent Infliction of Emotional Distress Claim 6 7 Mr. Wakgira concedes that the court should grant summary judgment in favor of Defendants with respect to his claim for negligent infliction of emotional distress. 8 9 (Resp. at 1, 13.) The court therefore grants summary judgment with respect to this 10 claim. 11 G. Claims Against John Doe Seattle Police Officers 1 Through 5 12 Mr. Wakgira also concedes that the court should grant summary judgment in 13 14 favor of Defendants with respect to his claims against five John Doe Seattle Police 15 Officers. (Resp. at 1, 13.) The court therefore grants summary judgment with respect to 16 these claims. 17 III. CONCLUSION 18 For the forgoing reasons, the court GRANTS IN PART and DENIES IN PART 19 20 21 Defendants’ motion for summary judgment. In sum, the court rules as follows: (1) 22 The court DENIES summary judgment with respect to Mr. Wakgira’s federal civil rights claim against Officer Jones and his assault and battery claims; 23 24 25 (2) The court GRANTS summary judgment in favor of Defendants with respect to Mr. Wakgira’s federal civil rights claim against the City, his outrage claim, 26 ORDER - 33 1 his false arrest, false imprisonment, and malicious prosecution claims, and his 2 negligent infliction of emotional distress claim; and 3 4 5 6 (3) The court GRANTS summary judgment and dismisses the claims against the five John Doe officers of the Seattle Police Department. Dated this 3rd day of August, 2009. A 7 8 9 JAMES L. ROBART United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 34
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