Arnold v. Lakewood Police Department et al, No. 3:2010cv05907 - Document 50 (W.D. Wash. 2012)
Court Description: ORDER granting 33 Defendant's Motion for Summary Judgment. This matter is DISMISSED WITH PREJUDICE. Signed by Judge Ronald B. Leighton.(DN)
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Arnold v. Lakewood Police Department et al Doc. 50 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 PHILLIP ARNOLD, Plaintiff, 10 11 12 13 No. 3:10-cv-05907 RBL v. ORDER CITY OF LAKEWOOD, a municipality; and ANDY HALL, in his personal and official capacities, [Dkt. #33] Defendants. 14 15 16 I. INTRODUCTION 17 On September 26, 2008, Plaintiff Phillip Arnold commenced a drug and alcohol-fueled 18 chase with Lakewood police, during which Officer Andrew Hall shot Mr. Arnold. In this suit, 19 Mr. Arnold claims that Officer Hall used excessive force in violation of the Fourth Amendment 20 and that Officer Hall is liable in tort for assault and battery and intentional infliction of emotional 21 distress. Officer Hall requests summary judgment on all claims. See Def.’s Mot. Summ. J. [Dkt. 22 #33] and Reply [Dkt. #49]; Pl.’s Resp. [Dkt. #46]. In light of the facts and relevant case law, the 23 Court GRANTS Officer Hall’s motion for summary judgment. 24 25 26 II. FACTUAL BACKGROUND On September 25, 2008, Plaintiff Phillip Arnold and an associate, Anthony Tellez, began their evening with a visit to a liquor store and two bars, consuming 5–10 drinks and smoking 27 28 Order - 1 Dockets.Justia.com 1 marijuana.1 See Decl. of Steve Parr, Ex. 30 at 44–47 [Dkt. # 34]. Upon leaving the second bar 2 in a Chevy Blazer belonging to Mr. Arnold’s girlfriend, Mr. Arnold displayed dramatically 3 erratic driving: he started doing “burn outs,” driving in circles and over curbs, running red lights. 4 Id. at 49. Following a report from a Lakewood resident that a car had driven through their yard, 5 Officer Hall spotted a matching vehicle—the Blazer driven by Mr. Arnold (with Mr. Tellez as 6 passenger). Decl. of Andy Hall at 2 [Dkt. #35]. At 1:41 a.m., Officer Hall activated his lights 7 behind Mr. Arnold, signaling him to stop. Id. at 6. Mr. Arnold pulled to a red light, but then 8 continued driving. Id. He eventually pulled into the Schooner Tavern parking lot, where he 9 revved his engine and spun his tires before finally bringing his vehicle to a stop. Id. 10 Officer Hall then approached the vehicle and commanded a visibly-intoxicated Mr. 11 Arnold to turn off the engine—three times. Id. at 7. Mr. Arnold did not respond. Id. Officer Hall 12 attempted to unlock the driver-side door by reaching through the half-open window; Mr. Arnold 13 put the car in gear and accelerated, beginning the chase. Id. During the pursuit, Mr. Arnold sped over curbs, sidewalks, and grass medians—colliding 14 15 with two police cars in the process. Id.; see also Decl. of Dacia Uecker at 2 [Dkt. # 36]. His 16 passenger, Mr. Tellez, later stated that he “would have jumped out if [he] could have,” and that 17 Mr. Arnold “tried everything he could to get away.” Parr Decl. at 51. The chase came to a 18 momentary halt when Mr. Arnold rammed a large wooden fence and its surrounding shrubbery, 19 which “high-centered” the vehicle. Hall Decl. at 8. Three Lakewood police officers—Hall, Borchardt, and Babcock—then surrounded the 20 21 Blazer, weapons drawn. Id.; see also Decl. of Timothy Borchardt at 19 [Dkt. #41]. Officer Hall 22 approached the passenger-side; Officer Babcock the rear; and Officer Borchardt the driver-side, 23 each repeatedly ordering Mr. Arnold to turn off and exit the vehicle. Id. Mr. Arnold refused. Id. Officer Hall opened the passenger-side door and pulled Mr. Tellez from the vehicle as 24 25 Officer Babcock smashed the tinted rear-window of the Blazer. Hall Decl. at 3; Borchardt Decl. 26 at 21. Officer Babcock then moved to subdue a struggling Mr. Tellez, pulling the latter to the 27 1 28 Mr. Arnold expressly accepts the facts as set out by Officer Hall, choosing not to “reiterate the facts set forth in [Officer Hall’s] brief.” Pl.’s Resp. at 2 [Dkt. #46]. Thus, the Court must rely on Officer Hall’s briefing for the factual background. The Court must, of course, consider the facts in the light most favorable to Mr. Arnold and has identified and listed those facts Mr. Arnold argues create a genuine issue of material fact. Order - 2 1 ground and, in the process, falling behind the vehicle. Hall Decl. at 3. With the two men behind 2 the vehicle, and debris blocking Officer Borchardt from opening the driver-side door, Mr. Arnold 3 began rocking the car back and forth, shifting from forward to reverse, attempting to gain 4 traction. Id. at 3; Borchardt Decl. at 21. Officer Borchardt stated that he “could hear the suspect 5 grinding gears” as Mr. Arnold rocked the vehicle, “gunning” the engine and sending dirt flying. 6 Id. at 19–22. Further, as the Blazer rocked backwards, it moved directly at Officer Babcock, 7 threatening to either run him over or crush him against a police cruiser parked behind. Id. 8 Officer Hall states: “I was aware that Officer Babcock was on the ground behind the 9 SUV struggling to gain control of the combative passenger . . . .” Hall Decl. at 3. Further, “[a]s 10 the SUV rocked back and forth, it was my perception that the driver did not care which direction 11 he travelled . . . [h]e might accelerate in reverse and attempt to crash backwards into the patrol 12 vehicle behind him.” Id. Officer Hall “believed that [Mr. Arnold] was going to run over Officer 13 Babcock,” who would be “seriously injured or killed if hit . . . .” Id. Officer Borchardt agreed 14 that “if [the Blazer] would of got [sic] traction it would have shot back and . . . ran right over 15 Officer Babcock.” Borchardt Decl. at 24. Apart from the risk to Officer Babcock, Officer Hall 16 noted the danger to himself: he “would [have been] pinned in the door jamb and possibly 17 seriously hurt.” Hall Decl. at 8. 18 The events are confirmed by an independent witness. Ms. Dacia Uecker was on a 19 civilian ride-along in Officer Hall’s cruiser. She states that “[Mr. Arnold] began to rock the 20 vehicle back and forth,” and “Officer Babcock was behind the vehicle and would have been 21 struck if the SUV broke free in reverse.” Uecker Decl. at 3; see also Decl. of Jeffrey H. Sadler, 22 Ex. A at 15 (Post-Incident Interview Transcript of Dacia Uecker) [Dkt. # 47] (A: “Officer 23 Babcock was behind the vehicle.” Q: “Had the car gotten traction and gone into reverse could 24 have hit him [sic].” A: “He would, he would have hit him.”). 25 In the melee, as the Blazer gained traction, Officer Hall fired three shots, striking Mr. 26 Arnold in the face and shoulder. Hall Decl. at 8. Yet, Mr. Arnold succeeded: the Blazer gained 27 traction and accelerated forward over the fence and shrubbery. Id. 28 Order - 3 Mr. Arnold thus resumed his escape. Lakewood police then performed not one, but two 1 2 “PIT maneuvers,” (pursuit intervention technique) whereby an officer steers the front of a cruiser 3 into a suspect’s rear quarter panel, ideally causing the recipient to spin to a stop. Decl. of James 4 Syler at 5 [Dkt. #40]. After the second PIT, Mr. Arnold rammed Officer Syler’s vehicle, a move 5 that ultimately pinned the Blazer. Despite receiving three gunshot wounds, colliding with three police cars, and receiving 6 7 two PIT maneuvers, Mr. Arnold still refused to exit the Blazer. Id. Officers, seeing that Mr. 8 Arnold was holding “something black in his hand,” used a “less-lethal” shotgun to shoot out the 9 Blazer’s passenger-side window. Id. at 6. This allowed officers to see that Mr. Arnold held only 10 a mobile phone, and officers were then able to physically remove Mr. Arnold from the Blazer. 11 Id. 12 Mr. Arnold was convicted of Felony Harassment, Attempting to Elude a Police Vehicle, 13 and three counts of Malicious Mischief. Decl. of Stewart Estes, Ex. B at 14 [Dkt. #42]. He was 14 sentenced to 33 months in prison. Id. 15 Mr. Arnold’s key factual argument is simple: Officer Babcock was not, in fact, behind 16 the Blazer, and therefore, not in danger. Rather, Mr. Arnold asserts that Babcock was “on the 17 driver’s side of the car near the rear.” See Pl.’s Resp. at 4. The sole basis for this assertion is 18 Officer Borchardt’s statement, in a post-incident interview, that Babcock was “on the corner” 19 when Officer Hall fired. Borchardt Decl. at 19. But, Officer Borchardt clarifies multiple times 20 that Babcock was behind the vehicle when last seen.2 21 22 23 24 25 26 27 28 2 In the post-incident interview, at 5:40 a.m. on September 26, 2008, Sergeant Andy Estes questions Officer Borchardt: Q: “When you last saw him he was behind the car?” A: Absolutely, yeah. ... Q: “So Officer Babcock to the best of your knowledge is somewhere behind you and possibly directly behind the car?” A: “Correct.” Q: “Ok. Um, what would happen had [the Blazer] gone into reverse? If it had gotten traction going in reverse instead of forward?” A: “The way the engine was revving, um if it would of got traction it would have shot back and probably, most likely ran right over Officer Babcock if he was still standing in the same position when I saw him last.” Borchardt Decl. at 19–21. Order - 4 1 2 Second, Mr. Arnold emphasizes that the vehicle was moving forward at the instant Officer Hall fired. Pl.’s Resp. at 4. This is consistent with all reports of the incident. 3 Third, Mr. Arnold stresses that he was not intentionally trying to harm anyone. Indeed, 4 Ms. Uecker stated in her post-incident interview that Mr. Arnold “might have been intoxicated 5 trying run and trying evade it didn’t, didn’t look like he was actually trying to was trying to be 6 out to hurt somebody [sic].” Sadler Decl., Ex. A at 16. 7 Lastly, Mr. Arnold relies on the unsigned affidavit of Mr. D.P. Van Blaricom, a retired 8 Bellevue police chief and frequent participant in excessive-force cases. See Pl.’s Resp. at 6; Van 9 Blaricom Aff. [Dkt. # 48]. Mr. Van Blaricom’s improperly-submitted affidavit purports to opine 10 that “plaintiff did not pose a significant threat of death or serious physical injury to either the 11 shooter or others at the time that he was shot.” Id. 12 13 III. DISCUSSION Officer Hall argues that he did not violate Mr. Arnold’s Fourth Amendment rights and 14 that he is entitled to qualified immunity. As an initial matter, it is not clear to the Court that Mr. 15 Arnold’s Second Amended Complaint asserts a § 1983 claim against Officer Hall. Rather, that 16 claim appears to be asserted against the City of Lakewood, now dismissed from this case. Mr. 17 Arnold’s briefing, however, makes it clear that he believes he has asserted a § 1983 claim against 18 Officer Hall. In the interest of judicial efficiency, and because the Court concludes that Officer 19 Hall did not violate Mr. Arnold’s rights and is entitled to qualified immunity, the Court will treat 20 the Complaint as if it properly sets out a § 1983 claim against Officer Hall. Further, the Court 21 concludes that Mr. Arnold’s claims for assault and battery and for intentional infliction of 22 emotional distress similarly fail as a matter of law. 23 A. Summary Judgment Standard 24 Summary judgment is appropriate when, viewing the facts in the light most favorable to 25 the nonmoving party, there is no genuine issue of material fact which would preclude summary 26 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 27 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to 28 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for Order - 5 1 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of 2 evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. 3 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not 4 affect the outcome of the suit are irrelevant to the consideration of a motion for summary 5 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, 6 “summary judgment should be granted where the nonmoving party fails to offer evidence from 7 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 8 1220. B. Qualified Immunity 9 Qualified immunity “shields an officer from suit when she makes a decision that, even if 10 11 constitutionally deficient, reasonably misapprehends the law governing the circumstances she 12 confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The purpose of the doctrine is to 13 “protect officers from the sometimes ‘hazy border’ between excessive and acceptable force.” Id. 14 (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)). Qualified immunity protects officers not 15 just from liability, but from suit: “it is effectively lost if a case is erroneously permitted to go to 16 trial,” and thus, the claim should be resolved “at the earliest possible stage in litigation.” 17 Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987). The Supreme Court has endorsed a two- 18 part test to resolve claims of qualified immunity: a court must decided (1) whether the facts that 19 a plaintiff has alleged “make out a violation of a constitutional right,” and (2) whether the “right 20 at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v. 21 Callahan, 553 U.S. 223, 232 (2009).3 The Court addresses each question in turn. 1. 22 Did Defendant Violate Plaintiff’s Fourth Amendment Rights? Mr. Arnold claims that Officer Hall violated his Fourth Amendment right against 23 24 unlawful seizure by using excessive force. See Pl.’s Second Am. Compl. at 6 [Dkt. # 20]. 25 “Apprehension by deadly force is a seizure subject to the Fourth Amendment’s reasonableness 26 requirement.” Wilkinson v. Torres, 610 F.3d 546, 550 (2010) (citing Graham v. Conner, 490 27 U.S. 386, 395 (1989)). The reasonableness of force is determined by “carefully balancing the 28 3 In Pearson, the Supreme Court reversed its previous mandate from Saucier requiring district courts to decide each question in order. Although not mandated here, the Court will address both issues. Order - 6 1 nature and quality of the intrusion on the individual’s Fourth Amendment interests against the 2 countervailing governmental interests at stake.” Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th 3 Cir. 2001) (citing Graham, 490 U.S. at 396). Courts assess the “quantum of force used to arrest” 4 by considering “the type and amount of force inflicted.” Id. at 1279–80. A court assesses the 5 governmental interests by considering a range of factors, including “the severity of the crime at 6 issue, whether the suspect posed an immediate threat to the safety of the officers or others, 7 whether he was actively resisting arrest or attempting to evade arrest by flight,” or any other 8 “exigent circumstances.” Id. Where an officer has “probable cause to believe that the suspect 9 poses a threat of serious physical harm, either to the officer or to others,” the officer may 10 constitutionally use deadly force. Wilkinson, 610 F.3d at 550 (citing Tennessee v. Garner, 471 11 U.S. 1, 11 (1985)) (emphasis added). 12 Importantly, a court must judge reasonableness “from the perspective of a reasonable 13 officer on the scene, rather than with the 20/20 vision of hindsight.” Id. Courts are cautioned to 14 make “allowance for the fact that police officers are often forced to make split-second 15 judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount 16 of force that is necessary in a particular situation.” Id. And, although the question is “highly 17 fact-specific,” the inquiry is objective: a court must ask “whether the officers’ actions are 18 ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Id. (citing 19 Scott v. Harris, 550 U.S. 372, 383 (2007); Graham, 490 U.S. at 397). Given the undisputed facts 20 of this case, and in light of analogous case law, the Court must conclude that Officer Hall did not 21 violate Mr. Arnold’s Fourth Amendment rights. No reasonable jury could conclude otherwise. 22 a. The Facts and Case Law Show that Officer Hall’s Use of Force Was Reasonable. 23 24 25 26 27 28 Here, the governmental interests at stake are the lives of officers Hall, Babcock, and Borchardt. Officer Hall has presented unrebutted evidence that Mr. Arnold posed an immediate threat of serious physical harm to all the officers—Hall and Babcock in particular. Each and every witness paints a deadly picture: Officer Babcock was behind the Blazer as Mr. Arnold rocked the vehicle back and forth, ignoring commands from the officers and attempting to escape at any cost. At the same time, Officer Hall stood near enough to the open passenger-side door Order - 7 1 that, if the Blazer reversed, he might be pinned. Mr. Arnold’s actions placed both Officers Hall 2 and Babcock at immediate risk of serious bodily injury or death and forced Officer Hall to make 3 a split-second decision to fire as he watched the Blazer’s tires begin to grip. 4 Against those governmental interests, the Court balances the most extreme use of force: 5 firing a gun at a suspect. There is no greater quantum of force that an officer may employ. 6 Thus, the “nature and quality” of Officer Hall’s intrusion on Mr. Arnold’s Fourth Amendment 7 rights could not be greater. Yet, such an intrusion is reasonable under these circumstances. Mr. 8 Arnold, by engaging in a dangerous pursuit with police, by ignoring numerous commands to exit 9 the Blazer, and by placing officers Babcock and Hall at risk of serious injury, forced Officer Hall 10 11 to use deadly force. Officer Hall was left with no other option. The Court’s conclusion is buttressed by Ninth Circuit case law. Under strikingly similar 12 circumstances, the Ninth Circuit found no constitutional violation in Wilkinson v. Torres, 610 13 F.3d 546 (9th Cir. 2010), where officers surrounding a fleeing vehicle shot and killed the driver, 14 whose estate later claimed excessive force. Id. at 546. In that case, the driver initiated a 15 relatively low-speed chase in a stolen minivan. Id. at 549. Officers performed two PIT- 16 maneuvers on the minivan, the second leaving the suspect in a residential yard. Id. As the 17 suspect regained control, an officer positioned his cruiser in front of the minivan, which swerved 18 and hit a telephone pole. Id. Two officers then approached the minivan on foot and ordered the 19 driver to exit. Id. One officer attempted to open the driver-side door, but fell as the minivan 20 began to reverse, with its wheels spinning in mud. Id. While the first officer recovered his 21 footing and dodged the minivan, the second officer on the passenger-side believed that the first 22 had been run over and began shooting, firing eleven rounds in all. Id. 23 The Ninth Circuit held that the officer “had probable cause to believe that [the driver] 24 posed an immediate threat to the [first officer] and himself.” Id. at 551. In so holding, the court 25 relied on the fact that the officer stood in a “slippery yard with a minivan accelerating around 26 him,” that the driver “had failed to yield to police sirens,” and that “a fellow officer was nearby 27 either lying fallen on the ground or standing but disoriented.” Id. Thus, where “the driver of a 28 moving vehicle . . . [is] ignoring police commands, attempt[ing] to accelerate within close Order - 8 1 quarters of two officers on foot,” the officer had probable cause to believe “that the threat to 2 safety justified the use of deadly force.” Id. 3 The similarities between this case and Wilkinson are readily apparent and dictate the 4 same outcome. Officer Hall fired on Mr. Arnold because he reasonably believed another officer 5 to be threatened by the accelerating Blazer. 6 b. Plaintiff Fails to Show a Genuine Issue of Material Fact. 7 The Court must reject Mr. Arnold’s attempts to generate a factual issue. Even viewing 8 all the facts in Mr. Arnold’s favor, Officer Borchardt’s statement that Officer Babcock was “on 9 the corner” of the Blazer is not, as Mr. Arnold suggests, a “definite[] state[ment]” that Officer 10 Babcock was out of harm’s way. Pl.’s Resp. at 4. To the contrary, Officer Borchardt repeatedly 11 stated that he saw Babcock behind the Blazer and was at risk of being struck. Borchardt Decl. at 12 21, 22, 24. Further, the phrase “on the corner” does not imply, as Mr. Arnold suggests, that 13 Officer Babcock was not also behind the vehicle. 14 Mr. Arnold’s argument that he did not intend to harm the officers is irrelevant. See Pl.’s 15 Resp. at 4. The question is not one of intent. As noted above, Officer Hall reasonably believed 16 Mr. Arnold to be a threat, regardless of Mr. Arnold’s desire (or lack thereof) to actually threaten. 17 Mr. Arnold also fails to create a factual issue by noting that the Blazer was moving 18 forward at the instant Hall fired. Pl.’s Resp. at 4. Faced with the uncertainty that Mr. Arnold 19 might again reverse the Blazer, Officer Hall reasonably concluded that Officer Babcock was 20 threatened—no reasonable fact-finder could determine that Officer Hall lacked probable cause 21 for that belief. 22 Lastly, the Court must disregard Mr. Van Blaricom’s affidavit because it is unsigned. 23 See Fed. R. Civ. P. 56(e); Canada v. Blain’s Helicopters Inc., 831 F.2d 920, 925 (9th Cir. 1987) 24 (“It is well settled that unauthenticated documents cannot be considered on a motion for 25 summary judgment.”). Indeed, Mr. Arnold has failed to correct the problem despite notice from 26 the Defense. See Def.’s Reply at 2 [Dkt. # 49]. Even if the affidavit were signed, the Court 27 would properly disregard its contents. Mr. Van Blaricom’s opinion—that “Plaintiff did not pose 28 a significant threat of death or serious physical injury”—is a legal conclusion that would be case- Order - 9 1 dispositive. U.S. v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999) (excluding expert witness 2 testimony concerning the reasonableness of defendant’s belief as a legal conclusion); see also 3 Aguilar v. Int’l Longshoremen’s Union, 966 F.2d 443, 447 (9th Cir. 1992) (noting matters of law 4 are for the court’s determination, not that of an expert witness); Marx & Co. v. Diners’ Club, 5 Inc., 550 F.2d 505, 509–10 (2d Cir. 1977) (expert testimony consisting of legal conclusions is 6 inadmissible). Thus, the Court must disregard Mr. Van Blaricom’s conclusion. The remaining 7 portions of Mr. Van Blaricom’s affidavit do not pertain to Officer Hall or are irrelevant here. 8 9 In sum, the Court must conclude that Officer Hall had probable cause to believe that Mr. Arnold presented an immediate risk of serious bodily injury of death to himself and Officer 10 Babcock. Thus, his use of deadly force was reasonable under the circumstances and did not 11 violate Mr. Arnold’s Fourth Amendments rights. 12 2. Did Plaintiff’s Conduct Violate a “Clearly Established” Right? 13 For a constitutional right to be clearly established, “[t]he contours of the right must be 14 sufficiently clear that a reasonable official would understand that what he is doing violates that 15 right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The Supreme Court has stated that 16 “the relevant, dispositive inquiry in determining whether a right is clearly established is whether 17 it would be clear to a reasonable officer that his conduct was unlawful in the situation he 18 confronted.” Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004). 19 In this case, even if Officer Hall’s actions were objectively unreasonable, the Court 20 cannot say that his use of force fell outside the “‘hazy border’ between excessive and acceptable 21 force.” Id. at 198. Indeed, in Brosseau, the Supreme Court has noted the absence of clearly 22 established law governing situations where officers confront suspects in vehicular flight. There, 23 the defendant-officer shot plaintiff after he ignored commands to exit his vehicle and began 24 fleeing towards officers the defendant believed were in the immediate area. Id. at 196–97. The 25 Court determined that, regardless of the constitutional question, the defendant was entitled to 26 qualified immunity because the case law “by no means ‘clearly establish[es]’ that [defendant’s] 27 conduct violated the Fourth Amendment.” Id. at 201. 28 Order - 10 1 In this case, the Court has determined that Officer Hall did not violate Mr. Arnold’s 2 Fourth Amendment rights. Even if the question were debatable, Officer Hall’s conduct— 3 shooting a suspect whose vehicular flight immediately threatened officers—would fall precisely 4 in the “hazy border” that the doctrine of qualified immunity is meant to protect. Thus, Officer 5 Hall is entitled to qualified immunity. 6 C. Assault and Battery 7 Mr. Arnold’s claims for assault and battery necessarily fail because Officer Hall’s use of 8 force was lawful. RCW 9A.16.020(1); McKinney v. City of Tukwila, 103 Wn. App. 391, 408–09, 9 13 P.3d 631 (2000) (where officers’ use of force is reasonable, they are entitled to state law 10 qualified immunity). 11 D. Intentional Infliction of Emotional Distress 12 Mr. Arnold’s claim for intentional infliction of emotional distress likewise fails. To state 13 a claim for intentional infliction of emotional distress, a plaintiff must show “(1) extreme and 14 outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual 15 result to the plaintiff of severe emotional distress.” Snyder v. Med. Serv. Corp. of Eastern Wash., 16 145 Wn.2d 233, 242, 35 P.3d 1158 (2001) (citing Birklid v. Boeing Co., 127 Wn.2d 853, 867, 17 904 P.2d 278 (1995)). Moreover, “the conduct in question must be so outrageous in character, 18 and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as 19 atrocious, and utterly intolerable in a civilized community.” Id. (internal punctuation and 20 emphasis removed). 21 Here, Officer Hall’s use of force cannot be simultaneously reasonable and outrageous, 22 and thus, the claim must fail. Furthermore, Mr. Arnold has failed to produce any evidence of 23 emotional distress resulting from Officer Hall’s conduct. 24 // 25 // 26 // 27 // 28 Order - 11 1 2 3 4 IV. CONCLUSION For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary Judgment [Dkt. #33] on all claims and orders the Clerk to DISMISS the case with prejudice. Dated this 11th day of January, 2012. 5 6 7 8 A RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order - 12
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