ROMELLE BRADFORD, Plaintiff, v. THE CITY OF SEATTLE, et al., Defendants.

Case No. C07-365-JPD

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

557 F. Supp. 2d 1189; 2008 U.S. Dist. LEXIS 27347


April 4, 2008, Decided
April 4, 2008, Filed

[*1193] ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION AND SUMMARY CONCLUSION

This is a civil rights lawsuit brought pursuant to 42 U.S.C. § 1983. The plaintiff has made federal and state law claims against an arresting City of Seattle police officer, his superior, and the City itself. Dkt. No. 6. The present matter comes before the Court on the defendants' motion for summary judgment, which asserts that the police officer had reasonable suspicion to stop the plaintiff, probable cause to arrest him, and did both using reasonable force [**2] under the circumstances. Dkt. No. 40 at 7-17. Furthermore, the defendants insist that the officer is entitled to qualified immunity for his actions, and argue that the City of Seattle is not subject to municipal liability under § 1983. Id. at 17-23. The plaintiff disagrees, insisting that genuine issues of material fact prevent summary adjudication on all but one of his claims for relief. Dkt. No. 42. After careful consideration of the motions, supporting materials, the governing law and balance of the record, the Court ORDERS that defendants' motion for summary judgment be GRANTED IN PART and DENIED IN PART.

II. FACTS AND PROCEDURAL BACKGROUND

On the night of August 4, 2006, the Rainier Vista Boys and Girls Club joined with the Skyway Boys and Girls Club for a dance. The event was scheduled to run from 9:00 p.m. to midnight at the Rainier Vista Boys and Girls Club in Seattle, Washington (hereinafter "the Club"). The plaintiff, Romelle Bradford, was the staff member in charge of the event. For events such as this, plaintiff and the entire staff donned solid red t-shirts with the Club's insignia and "STAFF" screen-printed in white on the front of the shirts. 1 On the night of the incident, [**3] plaintiff was also wearing a staff identification tag hooked to a lanyard which swung from his neck. Organizing and supervising Club events such as dances was nothing new for the plaintiff, who had been associated with the Club since he was fifteen years old. 2

FOOTNOTES

1 The defendants do not dispute the existence of this shirt, but do dispute that plaintiff was wearing it at the time of the incident. See Dkt. No. 44 at 2; compare Dkt. No. 41, Ex. A at 23 (Briskey Dep.) ("He had on a white sleeveless shirt and shorts."), with id. Ex. C at 89-91 (Bradford Dep.) (wearing red staff shirt until officer pulled it off), and id. Ex. B at 27 (Zerr Dep.) (wearing red staff shirt upon arrival at precinct). Consequently, the parties dispute the precise timing of when Officer Briskey realized plaintiff was a staff member of the Club.

2 Indeed, the plaintiff's public record is defined by positive, not negative, exploits. He was selected the Club's Youth of the Year in 2002, King County Youth of the Year in the same year, and Washington State Youth of the Year in 2003. See Dkt. No. 42; Dkt No. 43, Ex. A.


[*1194] The dance proceeded as planned and, like most teenage dances, it was uneventful. Plaintiff called for the [**4] last song at approximately 11:30 p.m., turned on the Club's lights immediately thereafter, and began escorting members out the doors with the help of the staff. Shortly thereafter, several Club staff members noticed a group of kids walking back to the Club grounds with what were perceived to be hostile intentions toward a group that had just left the dance. Worried about a possible altercation, the staff members phoned the police and quickly intercepted and dispersed the oncoming group before any officers arrived. Dkt. No. 43, Ex. A at 3. 3 The parties agree that fights had occurred near the Club in the past, but that no fighting took place on the night in question.

FOOTNOTES

3 Plaintiff did not make the call to the police, but knew it had been made. Dkt. No. 41, Ex. C at 30-31.


It is equally undisputed that seven of the ten South Precinct patrol units responded to the Club, and that Officer Wayne Johnson was the first officer to arrive at the scene. Upon arrival, Officer Johnson observed that the dance had ended, "people [were] moving away from the community center," and that "everything was okay." Dkt. No. 43, Ex. F at 12, 14 (Johnson Dep.); see also id. at 40-43. His statements are consistent [**5] with those of the plaintiff. See, e.g., Dkt. No. 43, Ex. A at 3.

Officer Jake Briskey also responded to the 911 call. He noticed a large gathering of people near the intersection of Martin Luther King Way and South Alaska Street, and another group located near the Club entrance. Dkt. No. 41, Ex. A at 13 (Briskey Dep.). Similar to Officer Johnson's observations, Officer Briskey noticed that the groups were not in conflict with each other. Id. at 16-17. After parking his patrol car, Officer Briskey noticed a young man, later identified as the plaintiff, slowly jogging south past his patrol car and toward the group of kids gathered at the abovementioned intersection. Plaintiff was in motion after a dance attendee told him that Club staff member and plaintiff's older sister, Bonnie Williams, was being accosted by a group of three teenage females down the street. Dkt. No. 43, Ex. A at 3; Dkt. No. 41, Ex. C. at 39-40. Plaintiff then saw Bonnie's daughter, Chanel, run toward her mother. Consequently, plaintiff set out to Bonnie's location in order to stop Chanel and keep the peace. See, e.g., Dkt. No. 41, Ex. C at 46-48, 58-59. It is undisputed that plaintiff jogged directly in front of a [**6] patrol car, which he noticed was occupied by an officer later identified as Officer Briskey. Dkt. No. 41, Ex. C at 51-56.

Immediately after plaintiff passed the patrol car, Officer Briskey--fearing plaintiff was running towards the crowd to "engage in a fight"--ordered him to stop, yelling "Freeze!" or a similar command. See Dkt. No. 41, Ex. C at 56, and id. Ex. A at 19. 4 Plaintiff glanced back at the officer but did not stop, believing that Officer Briskey was not yelling at him. Id. Ex. C at 58-59 (Bradford Dep.) ("I really did not believe he was talking to me, because I had clearly jogged right in front of his vehicle and my staff shirt was on. So I was looking back to see who he was talking to."). Officer Briskey then put his patrol car in reverse, backed it up and [*1195] stopped, quickly exited the patrol car, and began to run after plaintiff. Seconds later, a second command was shouted by Officer Briskey who, at less than ten feet away, yelled at the plaintiff to "Stop, get on the ground." Id. Ex. C. at 60. Plaintiff immediately stopped, pivoted, and turned to face the officer, who was completing his charge toward the plaintiff. Id.

FOOTNOTES

4 The parties dispute exactly what Officer Briskey yelled [**7] as plaintiff passed the patrol car. Plaintiff claims Officer Briskey yelled "Freeze." Dkt. No. 41, Ex. C at 56. Officer Briskey insists he said "Stop, get on the ground." Id. Ex. A at 19.


In this extremely brief period of time, plaintiff held up his staff badge with one hand and tugged on the logo of his shirt with the other, exclaiming "I'm a staff member." Id. Ex. C at 63, 72. The parties interpreted these actions in very different ways. Plaintiff insists he was attempting to identify himself as a staff member intent on keeping the peace. Id. Ex. C at 60-61. Officer Briskey, on the other hand, perceived plaintiff's quick pivot and hand-raising gesture as an aggressive, fighting stance, and viewed plaintiff's keys, which were apparently attached to the badge, as a possible weapon. Id. Ex. A at 21-22. Furthermore, Officer Briskey believed plaintiff had consciously disregarded his first command ("Freeze") and half of his second ("get on the ground"). Id. Ex. A at 27. With a forearm strike to plaintiff's face, Officer Briskey effectively ran over the plaintiff, knocking him to the ground. Id. Ex. C at 63. 5 The parties vigorously dispute whether Officer Briskey had enough time to stop, [**8] and it is unclear whether he provided enough time for plaintiff to comply with his commands.

FOOTNOTES

5 Defendants assert that Officer Briskey grounded plaintiff with a "[t]wo-handed shove," not a forearm to the face. Dkt. No. 41, Ex. A at 26 (Briskey Dep.);see also Dkt. No. 43, Ex. F at 16 (Johnson Dep.) (similar). Sargent Zerr called it a "tackle." Id. Ex. B at 17.


Plaintiff stood up, identified himself again and repeatedly urged Officer Briskey to recognize his status as a staff member. Officer Briskey responded by putting plaintiff under arrest and "escorting" him to the patrol car. He did so by grabbing and twisting plaintiff's left arm in an arm-bar fashion, spinning and then "slamm[ing]" him on the hood of the patrol car. Id. Ex. C at 79, 80. Plaintiff continued to display his Club badge and explain that he was a staff member, until Officer Briskey ripped the badge off its key chain and threw it to the ground. Id. Ex. C at 91. Plaintiff and several witnesses further state that Officer Briskey threatened to "fucking break [plaintiff's] arm if [he] moved," and admonished that "if he ever got back up," Officer Briskey "would knock him the fuck out." Id. Ex. C at 88-89, and Ex. E (Foxx, Beaver, [**9] Rhone, and Smith decls.); see also Dkt. No. 43, Ex. B. Officer Briskey does not deny making these comments, but insists they were produced by plaintiff's active resistance to the arrest. Id. Ex. A at 36-37.

While at (or on) the patrol car, Officer Briskey attempted to keep the crowd of at least twenty Club members and staff away by threatening to pepper-spray them. Id. Ex. C at 73, 82, 84. At some point during the physical contact, plaintiff was handcuffed. At 11:40 p.m.--one minute after he radioed his arrival to dispatch--Officer Briskey reported "[o]ne in custody, under control." Id. Ex. B at 14. Three minutes later, Officer Briskey reported that he was en route, with the suspect, to the South Precinct. Id. Ex. B at 14. 6 Officer Johnson explained to concerned Club staff members, including plaintiff's sister Bonnie, that they would be able to pick up plaintiff at the precinct. Dkt. No. 43, Exs. [*1196] E, and F at 23. Family and friends traveled to the precinct in order to do so, but were denied.

FOOTNOTES

6 Officer Briskey "d[id] not recall" whether he used "more force than normal" or if he "force[d plaintiff] in any manner into the police vehicle." See Dkt. No. 41, Ex. A at 40.


Plaintiff was not released [**10] from the precinct. He was first placed in a cell for three hours. Dkt. No. 41, Ex. B at 5. While at the precinct, Sargent Eric Zerr spoke about the incident with Officer Briskey, Officer Johnson, and plaintiff. Dkt. No. 43, Ex. B at 16-17, 54-55. Sargent Zerr photographed plaintiff, asked about any injuries, and noted general concerns about his health. Id. Ex. B at 53-56, 66-67. Based on his interviews with the officers and plaintiff, Sargent Zerr decided that plaintiff would be booked and transferred to King County Jail. Id. Ex. B at 36, 50-51.

Plaintiff spent the night in jail. While there, he was made to strip down, given a red jail outfit, and placed in a small cell with eighteen other arrestees. Dkt. No. 41, Ex. B at 6. At 8:00 a.m. the next morning, plaintiff was notified for the very first time that he was being booked for resisting arrest and obstruction of justice. Id. An hour later, he was booked and placed on the ninth floor of the Jail, in cell block two. Id. He remained there the entire day, and was released from jail that evening at 7:00 p.m., over twenty hours after the incident. Id. Plaintiff was screened without seeing a judge, and released to his parents without posting [**11] bail. Id. Ex. C at 114. Plaintiff made his initial court appearance the following Tuesday, where he learned that the charges had been dropped. Plaintiff had no prior arrests, indeed no criminal record, before this incident.

III. JURISDICTION

Pursuant to 28 U.S.C. § 636(c), the parties have consented to having this matter heard by the undersigned Magistrate Judge. The Court has subject matter jurisdiction over plaintiff's civil rights claims pursuant to 28 U.S.C. § 1331, and it exercises supplemental jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a). Venue is proper under 28 U.S.C. § 1391(b).

IV. SUMMARY JUDGMENT STANDARD

"Claims lacking merit may be dealt with through summary judgment" under Rule 56 of the Federal Rules of Civil Procedure. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). Summary judgment "shall be entered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of fact is "genuine" if it constitutes [**12] evidence with which "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). That genuine issue of fact is "material" if it "might effect the outcome of the suit under the governing law." Id.

When applying these standards, the Court must view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. United States v. Johnson Controls, Inc., 457 F.3d 1009, 1013 (9th Cir. 2006). The moving party can carry its initial burden by producing affirmative evidence that negates an essential element of the nonmovant's case, or by establishing that the nonmovant lacks the quantum of evidence needed to satisfy its burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

[*1197] Once this has occurred, the procedural burden shifts to the party opposing summary judgment, who must go beyond the pleadings and affirmatively establish a genuine issue on the merits of the case. Fed. R. Civ. P. 56(e). The nonmovant must do more than simply deny the veracity of everything offered or show a mere "metaphysical doubt as to the material [**13] facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The mere existence of a scintilla of evidence is likewise insufficient to create a genuine factual dispute. Anderson, 477 U.S. at 252. To avoid summary judgment, the nonmoving party must, in the words of the Rule, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party's failure of proof "renders all other facts immaterial," creating no genuine issue of fact and thereby entitling the moving party to the summary judgment it sought. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

V. ANALYSIS

In the present case, the defendants contend that plaintiff's § 1983 and state law claims against Officer Briskey should be dismissed because there was reasonable suspicion to detain plaintiff and probable cause to arrest him pursuant to R.C.W. §§ 9A.76.020 (obstruction of justice) and 9A.76.040 (resisting arrest), the plaintiff cannot satisfy the elements of a Fourth Amendment claim of excessive force and, in the alternative, that Officer Briskey is entitled to qualified immunity. Dkt. Nos. 40, 44. Furthermore, the defendants assert that plaintiff's [**14] § 1983 municipality claim against the City of Seattle must be dismissed because plaintiff has failed to set forth a genuine issue of material fact that the alleged constitutional deprivations were ratified by the City of Seattle, or were the result of a "policy or custom" of the Seattle Police Department. Accord City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).

A. § 1983 Claims Against Officer Briskey

To prevail on a claim for relief brought pursuant to § 1983, a plaintiff must assert that he suffered a violation of rights protected by the Constitution or created by federal statute, and that the violation was proximately caused by a person acting under color of state or federal law. See WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc). This requires the plaintiff to allege facts showing how a specific individual violated a specific right, causing the harm alleged in the plaintiff's complaint. Arnold v. International Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981).

To avoid summary judgment on plaintiff's § 1983 claims against Officer Briskey, he must establish a genuine issue of material fact as to whether Briskey unlawfully stopped and/or detained him, [**15] whether he was unlawfully arrested, and whether unreasonable force was used during plaintiff's arrest. The Court addresses each of these issues in turn.

1. Initial Stop

The Fourth Amendment right to be secure from unreasonable searches and seizures "applies to all seizures of the person," including initial and brief seizures falling short of a traditional arrest. United States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)). Such seizures, however, do not violate the Fourth Amendment "if the officer has a reasonable suspicion supported by articulable [*1198] facts that criminal activity 'may be afoot.'" Berber-Tinoco, 510 F.3d at 1087 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989)). To determine whether a seizure was justified by a reasonable suspicion, the Court must "consider whether, in light of the totality of the circumstances, the officer had 'a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Id. (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)); see also Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The "totality of the circumstances" may include [**16] an officer's "objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of law-breakers." Berber-Tinoco, 510 F.3d at 1087 (quotation omitted).

The defendants argue that Officer Briskey had reasonable suspicion to stop plaintiff based on his experience and the totality of circumstances, including the 911 call by Club staff members "predicting a fight between large teen groups" near the Club, and the plaintiff being "a young man, unknown to the officer," "wearing the 'colors' for his Club," and moving toward one of the "rival" groups. Dkt. No. 44 at 2-3.

The Court disagrees. First, Officer Briskey has admitted that, in his judgment, plaintiff did not commit a crime by jogging past the patrol car. Dkt. No. 41, Ex. A at 35. Second, the fact that plaintiff was young, unknown to the officer, or wearing a staff shirt red in color hardly constitute "particularized and objective" bases for suspecting the plaintiff of criminal activity. Berber-Tinoco, 510 F.3d at 1087. Indeed, these unparticularized facts form the prototypical "hunches" that the Supreme Court has long cautioned against--here, that males [**17] who are young, unknown, and wear "colors" commit crimes. Accord United States v. Thomas, 211 F.3d 1186, 1191 (9th Cir. 2000) ("Reasonable suspicion must be based on more than an officer's 'inchoate and unparticularized suspicion or hunch.'") (quoting Terry, 392 U.S. at 27). Were such factors sufficient grounds on which to predicate reasonable suspicion, it is difficult to imagine an activity incapable of justifying police detention. The "people" the Fourth Amendment speaks of would be "'secure in their persons, houses, papers and effects,' only in the discretion of the police." Terry, 392 U.S. at 22 (quoting U.S. CONST. amend IV.)

Third, genuine issues of material fact abound regarding whether Officer Briskey's suspicion of criminal activity was reasonable. Officer Briskey's belief that a "large-scale" fight was close to occurring, and that plaintiff was running towards the crowd to "engage in a fight" is contradicted not only by the testimony of the plaintiff and other witnesses, but also the deposition testimony and dispatch communications of Officer Johnson. Plaintiff has presented evidence that no fighting had occurred or was occurring and that the reported disturbance had been [**18] diffused by Club staff members prior to the arrival of the police. See Dkt. No. 43, Ex. A at 3. Officer Johnson testified that upon his arrival to the scene "everything was okay," which is corroborated by his communication to dispatch that the situation was "[u]nder control." Dkt. No. 43, Ex. F at 14, 40. Other disputed facts, such as whether plaintiff was wearing his red staff shirt and whether Officer Briskey was aware of such, cast further doubt on whether Officer Briskey possessed a reasonable suspicion to stop plaintiff.

Furthermore, even if the Court were to include the facts surrounding Officer Briskey's [*1199] first command to "Freeze" in the reasonable suspicion calculus, it would not save the defendants' position. Not only do the parties dispute what command was given by Officer Briskey and whether or not plaintiff even should have known it was directed to him, 7 but the Ninth Circuit has consistently held that flight, standing alone, does not establish probable cause or even reasonable suspicion. See Moreno v. Baca, 431 F.3d 633, 643 (9th Cir. 2005) ("[Plaintiff's] simple act of walking away from the officers could not have been reasonably mistaken for the type of 'flight' the officers [**19] confronted in Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)); see also United States v. Kohn, 958 F.2d 379, 1992 WL 55864, *4 (9th Cir. 1992) (unpublished opinion) ("[F]light alone is not sufficient to find probable cause, or even reasonable suspicion."); United States v. Valentine, 232 F.3d 350, 357 (3d Cir. 2000) ("Walking away from the police hardly amounts to the headlong flight considered in Wardlow and of course would not give rise to reasonable suspicion by itself, even in a high-crime area[.]").

FOOTNOTES

7 Even Officer Briskey admitted that plaintiff "could have interpreted that [his first command] w[as] referring to someone else." Dkt. No. 41, Ex. A at 29.


Viewing the evidence and all reasonable inferences therefrom in a light most favorable to the plaintiff, the Court finds that genuine issues of material fact exist regarding whether Officer Briskey possessed a reasonable suspicion of criminal activity on the part of the plaintiff. Accordingly, summary judgment is not appropriate on this issue.

2. Lawfulness of Arrest

A warrantless arrest requires a showing of probable cause. Dubner v. City and County of San Francisco, 266 F.3d 959, 965 (9th Cir. 2001). The existence of probable cause vitiates [**20] any claim of unlawful arrest, Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), and acts as a complete defense to the liability of an officer under § 1983. Owen v. City of Independence, 445 U.S. 622, 637, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). An arrest made without probable cause, however, provides the basis for an unlawful arrest claim brought pursuant to § 1983 as a violation of the Fourth Amendment. Id.

Probable cause exists when, under the totality of circumstances known to the arresting officer, "a prudent person would have concluded that there was a fair probability that [the suspect] had committed a crime." Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir. 2006); State v. Gaddy, 152 Wash.2d 64, 70, 93 P.3d 872, 875 (2004) (similar); see also Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003) ("[W]e examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.") (internal quotation omitted). "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001).

The [**21] defendants contend that the undisputed material facts establish that Officer Briskey had probable cause to lawfully arrest plaintiff for Obstructing a Law Enforcement Officer (R.C.W. § 9A.76.020) and Resisting Arrest (R.C.W. § 9A.76.040). Dkt. No. 44 at 6. A person is guilty of Obstructing if he or she "willfully [*1200] hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties," id. § 9A.76.020(1), and is guilty of Resisting Arrest if he "intentionally prevents or attempts to prevent a peace officer from lawfully arresting him." Id. § 9A.76.040(1). 8 The defendants contend the facts establish that a reasonable person could "easily conclude" that plaintiff heard, understood, and refused to obey three of Officer Briskey's commands. Dkt. No. 44 at 6. Consequently, they insist summary judgment must be entered.

FOOTNOTES

8 Obstruction is a gross misdemeanor punishable by jail. R.C.W. § 9A.76.020(2). Resisting is a misdemeanor punishable by jail. Id. § 9A.76.040(2). Washington law authorizes law enforcement officers to execute warrantless arrests if the officer has probable cause to believe the person is committing, or has committed, a misdemeanor or [**22] gross misdemeanor in his presence. Id. § 10.31.100(3).


The Court disagrees. The parties dispute almost every event leading up to the arrest. This Court has already concluded that genuine issues of material fact exist regarding whether Officer Briskey's initial stop of the plaintiff was lawful. See supra, §V.A. 1. Moving beyond the facts relevant to that initial determination, the picture becomes more, not less, clouded. The facts, when viewed in a light most favorable to the plaintiff, 9 present a Club staff member who was recognized as such by Officer Briskey before he yelled "Freeze." This was the same staff member in charge of the Club's event that night--a Club that had called the police for assistance with a potential disturbance. This police ally was, like the rest of the Club staff, wearing a red shirt with "STAFF" printed across the chest in large, white letters. This same staff member was jogging to a potential verbal confrontation which had began after an initial scare of a fight had been squelched and the situation put "under control" by none other than the Club staff. These same facts present a disputed initial command that could reasonably have been directed at someone [**23] other than the plaintiff, see id. at Dkt. No. 41, Ex. A at 17, 19, 29 (Briskey Dep.); id. Ex. C at 56-59, and a second command that was delivered as Officer Briskey ran directly toward plaintiff from a mere ten feet away, arguably providing little or no time for plaintiff to fully comply with the command, as he stopped and notified the officer that he was a staff member attempting to keep the peace.

FOOTNOTES

9 See Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991) ("For summary judgment purposes, we must accept [the plaintiff's] version of the [arrest] incident as true. . . .").


Because the historical facts of the incident are so vigorously disputed, the Court is unable to conclude, as a matter of law, that an objectively reasonable person or police officer could have concluded that there was a fair probability that plaintiff had "willfully hinder[ed], delay[ed], or obstruct[ed]" Officer Briskey in the discharge of his duties on the evening in question, R.C.W. § 9A.76.020(1), or had otherwise "intentionally prevent[ed] or attempt[ed] to prevent" Officer Briskey from lawfully arresting him. Id. § 9A.76.040(1); Hart v. Parks, 450 F.3d at 1066. Accordingly, summary judgment is inappropriate on [**24] the issue of probable cause.

3. Excessive Force

An arrest is a seizure governed by the reasonableness standard of Fourth Amendment. Davis v. City of Las Vegas, 478 F.3d 1048, 1054 (9th Cir. 2007). "A Fourth Amendment claim of excessive force is analyzed under the framework outlined by the Supreme Court in Graham v. Connor." Smith v. City of Hemet, 394 F.3d 689, 700 (9th Cir. 2005) (en banc). In [*1201] determining whether the degree of force is reasonable under the Fourth Amendment, the Court must carefully balance the nature and quality of the intrusion against the governmental interest at stake. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The question of whether the force used was objectively reasonable "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396 (citation omitted). Keeping this admonition in mind, the Court must "first assess the quantum of force used to arrest [the plaintiff]'" and then "measure the governmental interests at stake by evaluating a range of factors" outlined in Graham. Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001). These factors include, but are not limited to, "[1] the [**25] severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Other factors, such as "the availability of alternative methods of capturing or subduing a suspect," may also be considered. Smith, 394 F.3d at 701.

When applying the Graham factors, the Court must be mindful that if the evidence, reviewed in the light most favorable to the plaintiff, could support a finding of excessive force, then the defendants are not entitled to summary judgment. "Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, [the Ninth Circuit] has held on many occasions that summary judgment . . . in excessive force cases should be granted sparingly." Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (citing Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997) (as amended) (collecting cases). This is because such cases almost always turn on credibility determinations that are the province of the jury, not the court. See Liston, 120 F.3d at 976 n. 10 [**26] ("We have held repeatedly that the reasonableness of force used is ordinarily a question of fact for the jury.").

This case is rife with jury questions. As to the quantum of force used by Officer Briskey, the parties tell completely different stories. Plaintiff claims Officer Briskey intentionally hit him in the face, knocked him to the ground, grabbed and twisted him left arm in an arm-bar fashion, spun and then slammed him--face first--onto the hood of the patrol car. Dkt. No. 41, Ex. C at 63, 74-80. Officer Briskey "do[es]n't recall" whether he used more force than usual, and insists that he only "shove[d]" plaintiff and simply "escorted [him] towards the patrol car." Id. Ex. A at 40, 26, 43. Sargent Zerr called it a "tackle." Id. Ex. B at 17. Officer Johnson avoided the question altogether during his deposition, preferring to leave it vaguely at: "[w]e escorted him to the car." Dkt. No. 43, Ex. F at 45. Because the Court, "[f]or summary judgment purposes, . . . must accept [the plaintiff's] version of the incident as true," Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991), it finds that plaintiff was intentionally and abruptly knocked to the ground by a forearm strike to the [**27] face, the force of which flung him into a grouping of small boulders alongside the sidewalk near the Club.

To this assessment of force, the Court must apply the Graham criteria, starting with the "the most important single element of the three specified factors: whether the suspect poses an immediate threat to the safety of the officers or others." Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994). Here, the record does not reveal [*1202] an articulable basis for believing that plaintiff was armed, other than the fact that he may have held his keys in one hand. The evidence of record, for purposes of summary judgment, establishes that plaintiff was a Club staff member wearing a solid red shirt with "STAFF" printed across the chest in large, white letters, at times directly facing Officer Briskey. There is also evidence in the record that plaintiff was attempting to comply with Officer Briskey's orders from the time he shouted his second command--from less than ten feet away--to the time he hit plaintiff square in the face. It is unclear whether plaintiff could have placed himself on the ground any quicker than Officer Briskey did. Moreover, there are widely varying accounts of the actions taken [**28] by plaintiff and Officer Briskey in the seconds leading up to the knockdown. In light of these facts and genuine disputes, a rational jury could find that plaintiff posed no immediate safety threat to anyone.

The second Graham factor is the severity of the crime. Graham, 490 U.S. at 396. The defendants contend that Officer Briskey had probable cause to arrest plaintiff for Obstruction, the nature of which would provide some basis for Officer Briskey's use of force. However, because the Court has determined that genuine issues of material fact prevent a finding of probable cause as a matter of law, see supra § V.A.2., this factor cannot save the defendants' excessive force argument.

The third and final Graham factor asks whether the individual actively resisted arrest or attempted to evade by flight. As outlined above, the parties dispute almost every action (and inaction) taken by plaintiff. In light of these disputed facts, which are viewed in a light most favorable to the plaintiff, a rational jury could very well find that plaintiff was not resisting or attempting to flee from the scene and therefore did not need to be forcefully subdued.

In sum, the Court finds that the question of [**29] whether the force used in this case was reasonable raises numerous issues of material fact that must be resolved by a jury. Accordingly, summary judgment on the issue of excessive force is improper.

B. § 1983 Claims Against the City of Seattle

1. Policy or Custom

Local government units, such as the City of Seattle, can be sued as a "persons" under § 1983; however, they cannot be held responsible for the acts of their employees under a theory of respondeat superior. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 122, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Rather, a § 1983 plaintiff must demonstrate that the alleged constitutional deprivation was the result of a "policy or custom" of the local government unit. City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); Monell, 436 U.S. at 690-91.

a. Improper Investigation or Response

Plaintiff contends that the City of Seattle maintains an unconstitutional policy and custom or pattern and practice of "not properly investigating and responding to citizens' complaints of civil rights violations," which he insists is evidenced by a Draft Report of the Office of Professional Accountability Review Board addressing [**30] a 2007 arrest of a different individual, wherein it is alleged that the City of Seattle Police Chief "appears to ignore evidence" and/or has "publically sanctioned" police misconduct and/or "perfunctory compliance with arrest screening procedures." Dkt. No. 43, Ex. K.

[*1203] This evidence, as well as plaintiff's commentary addressing it, is insufficient to withstand summary adjudication on plaintiff's § 1983 municipality claim based on a policy or custom. First, this evidence is inadmissible, as it is comprised of the conclusory hearsay statements of persons with no personal knowledge of the underlying circumstances in this case, and for which plaintiff has not provided a single witness who can establish a foundation for admissibility. Fed. R. Evid. 801(c). Second, plaintiff has ushered no evidence that the City's putative policy or custom "was the 'moving force' behind the constitutional violation he suffered." Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007) (quoting Monell, 436 U.S. at 694-95). Third, even assuming arguendo that Sargent Zerr qualifies as a "policymaker," the fact that he did not overrule Officer Briskey's arrest of plaintiff, even if the arrest was unconstitutional, [**31] does not constitute a sufficient basis to hold the City liable in this case. See, e.g., Christie v. Iopa, 176 F.3d 1231, 1239-40 (9th Cir. 1999) ("To hold cities liable under section 1983 whenever policymakers fail to overrule the unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior liability into section 1983.") (quotation omitted). Fourth, absent additional proof, the mere existence of one or two incidents of unconstitutional conduct is insufficient to make out a "pattern and practice" or "policy and custom" claim under § 1983. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Accordingly, summary judgment is appropriate on plaintiff's "policy or custom" claim against the City of Seattle.

b. "Booking" Theory

Pointing to certain isolated deposition statements of Sargent Zerr, plaintiff also alleges that the City of Seattle has an unconstitutional "policy and practice of booking persons in order to identify them, under the guise of monitoring their health after a use of force against them." Dkt. No. 42 at 22-24. The implication is that the City gives law-abiding persons like plaintiff criminal arrest records for the sole purposes of identification, [**32] in violation of such persons' Fourth Amendment rights. No authority is cited for this theory.

The Court rejects plaintiff's argument. Sargent Zerr testified that booking "generally" occurs in cases where force is used by an officer in effecting an arrest. Dkt. No. 41, Ex. A at 67. He further stated that booking for identification purposes is not standard practice. Id. Ex. A at 71. Sargent Zerr specified that in this case, he had a slight concern about the plaintiff's identity, but was predominantly--in fact, "99 percent"--concerned about the health of the plaintiff given the pain statements he made at the precinct. Id. Ex. A at 70-71. This testimony simply does not present a genuine [*1204] issue of material fact on plaintiff's "booking" theory. Furthermore, were the opposite true, plaintiff has nevertheless failed to usher any non-conclusory, admissible evidence that this purported policy or practice "was the 'moving force' behind the constitutional violation plaintiff claims he suffered." Galen, 477 F.3d at 667 (quoting Monell, 436 U.S. at 694-95).

2. Ratification

A municipality also can be liable under § 1983 for an isolated constitutional violation if a final policymaker "ratified" a subordinate's [**33] actions. St. Louis v. Praprotnik, 485 U.S. 112, 127-28, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988). "Ordinarily, ratification is a question for the jury." Christie v. Iopa, 176 F.3d 1231, 1238-39 (9th Cir. 1999). However, as with any jury question, a plaintiff must establish a genuine issue of material fact regarding whether a ratification actually occurred. Id. (citations omitted). To do so, "[t]he plaintiff must show that the triggering decision was the product of a 'conscious, affirmative choice' to ratify the conduct in question.'" Haugen v. Brosseau, 351 F.3d 372, 393 (9th Cir. 2003) (quoting Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992)). Here, plaintiff has failed to set forth a single admissible fact that a policymaker was aware of or affirmatively adopted the event in question. Furthermore, even if the Court were to treat Sargent Zerr as a policymaker in this regard, mere acquiescence in a single instance of alleged unconstitutional conduct is not sufficient to demonstrate ratification of a subordinate's acts, as explained above. See Gillette, 979 F.2d at 1348. Accordingly, summary judgment is also proper on plaintiff's ratification claim.

C. Qualified Immunity from § 1983 Claims

Having concluded that [**34] plaintiff's § 1983 claims under the Fourth Amendment will not be dismissed on summary judgment, the Court now turns to the issue of qualified immunity for these claims. Defendant Briskey argues that even if he violated the plaintiff's constitutional rights under the Fourth Amendment, he is shielded by qualified immunity because he reasonably believed that his actions were lawful (i.e., arguably supported by probable cause) in light of clearly established law and the information he possessed at the time of the arrest. Dkt. No. 40 at 18.

When a qualified immunity defense is raised, federal courts must balance the right of public officials to be free from non-meritorious lawsuits against the right of complainants to be fairly heard. A public official who performs a discretionary function enjoys qualified immunity in a civil action for damages, provided that his or her conduct does not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Qualified immunity is immunity from suit, not just from liability, and therefore protects individual defendants from all aspects of civil litigation. [**35] Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985).

The Supreme Court has established a two-part test for determining whether an official is entitled to qualified immunity. First, the Court must determine whether the facts, when taken in the light most favorable to the plaintiff, demonstrate that the defendants' conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Second, if such a right was violated, the Court must ascertain whether that right was "clearly established" at the time of the alleged violation. Id. This analysis assists the Court in determining whether a reasonable officer could have believed his particular conduct was lawful under the circumstances. Edgerly v. City & County of San Francisco, 495 F.3d 645, 654 (9th Cir. 2007).

In the present case, the Court has declined to dismiss plaintiff's § 1983 claims against defendant Briskey. The parties do not dispute that at the time of plaintiff's detention and arrest, he had a clearly established Fourth Amendment right to be free from unlawful seizure and the use of unreasonable force. However, as discussed above, there remain several unresolved factual issues at the heart of plaintiff's § 1983 claims. [**36] See supra, § V.A.

Courts have long struggled with the qualified immunity analysis on summary judgment when there are genuine [*1205] issues of material fact relevant to that analysis. See, e.g., Sloman v. Tadlock, 21 F.3d 1462, 1467-69 (9th Cir. 1994). While the question of clearly established law is for the Court, it is the jury that is "best suited to determine the reasonableness of an officer's conduct in light of the factual context in which it takes place." Id. at 1468. The Court recognizes that the mere existence of a factual dispute is, standing alone, not always a sufficient basis to deny summary judgment on a qualified immunity claim. Saucier, 533 U.S. at 200. However, once the Court has concluded that plaintiff's facts would establish a constitutional violation if proven true, and that the right violated is clearly established, the objective reasonableness of the officer's conduct must be determined in light of the facts of the case. Those facts are yet to be determined by a jury, and the final step of the qualified immunity analysis must await that determination. Accordingly, as to plaintiff's § 1983 claims against defendant Briskey, the motion for summary judgment on qualified immunity [**37] is denied. D.

State Law Claims

1. Assault and Battery

Battery is a "harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact," or apprehension that such contact is imminent. McKinney v. City of Tukwila, 103 Wash.App. 391, 408, 13 P.3d 631, 641 (2000) (internal quotation omitted). Assault is any act that causes apprehension of a battery. Id. The defendants have moved for summary judgment on this claim, arguing that it must fail because Officer Briskey was privileged, by probable cause, to use force during plaintiff's arrest, and the force used was reasonable. Dkt. No. 40 at 12-13. Furthermore, the defendants insist that plaintiff's assault and battery claim must fail for want of a "significant physical injury," id., citing a Fifth Circuit excessive force case that was overturned fifteen years ago on that precise point. See Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989), overturned by Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).

In this case, reasonable suspicion and probable cause are questions for the jury. Because the Court has not dismissed plaintiff's Fourth Amendment claims of unlawful arrest and [**38] excessive force, there has been no determination of whether the arrest of plaintiff was lawful or whether the forced used was reasonable. Accordingly, the Court finds that summary judgment on plaintiff's assault and battery claim is not appropriate. Nor is qualified immunity proper under state law. See Staats v. Brown, 139 Wash.2d 757, 780, 991 P.2d 615, 627-28 (2000) (holding that state qualified immunity is not available "for claims of assault and battery arising out of the use of excessive force to effectuate an arrest").

2. False Arrest and False Imprisonment

A false arrest occurs when a person with actual or pretended legal authority to arrest unlawfully restrains or imprisons another person. Bender v. City of Seattle, 99 Wash.2d 582, 591, 664 P.2d 492, 499 (1983). False imprisonment is the unjustified intentional confinement of another person. Id. The defendants have moved for summary judgment on these claims based solely on the existence of probable cause. Dkt. No. 40 at 7-10.

Under Washington law, the existence of probable cause is a complete defense to an action for false arrest or false imprisonment. McBride v. Walla Walla County, 95 Wash.App. 33, 38, 975 P.2d 1029, 1032 (1999). [**39] The question of whether [*1206] a police officer had probable cause is generally one of fact. McDaniel v. City of Seattle, 65 Wash.App. 360, 368, 828 P.2d 81, 86 (1992), review denied, 120 Wash.2d 1020, 844 P.2d 1017 (1993). "The rule is that unless the evidence conclusively and without contradiction establishes the lawfulness of the arrest, it is a question of fact for the jury to determine whether an arresting officer acted with probable cause." Daniel v. State ex rel. Washington State Patrol, 36 Wash.App. 59, 62, 671 P.2d 802, 804 (1983) (emphasis added). Only when this is not the case may a court make the finding as a matter of law.

The Court has already determined that summary judgment is inappropriate regarding whether Officer Briskey possessed reasonable suspicion to stop or probable cause to arrest plaintiff on the evening of August 4, 2006. Because want of probable cause was the sole basis on which the defendants have moved for summary judgment on plaintiff's false arrest and false imprisonment claims, their motion must be denied.

3. Malicious Prosecution

Probable cause is also a complete defense to an action for malicious prosecution under Washington law. Hanson v. City of Snohomish, 121 Wash.2d 552, 558, 852 P.2d 295, 298 (1993). [**40] At common law, a malicious prosecution claim arising from a criminal action requires the plaintiff to establish that (1) the allegedly malicious prosecution was instituted or continued by the defendant(s); (2) there was want of probable cause to institute or continue the prosecution; (3) the proceedings were instituted or continued through malice; (4) the proceedings were terminated or abandoned in favor of the plaintiff; and (5) that the plaintiff suffered injury or damage as a result of the prosecution. Id. (quotations omitted). Although each element must be pleaded and proved, "malice and want of probable cause constitute the gist of a malicious prosecution action." Clark v. Baines, 150 Wash.2d 905, 911, 84 P.3d 245, 248 (2004). The defendants have moved for summary judgment based on the lack of proof on those two elements. Dkt. No. 40 at 10-12.

Because the Court has already determined that probable cause is a question for the jury in this case, see supra §§ V.A.2, B.2., plaintiff's malicious prosecution claim cannot not be disposed of on the basis of probable cause. See also Peasley v. Puget Sound Tug & Barge Co., 13 Wash.2d 485, 498, 125 P.2d 681, 688 (1942) ("A prima facie case [**41] of want of probable cause is established by proof that the criminal proceedings were dismissed or terminated in favor of the party bringing the malicious prosecution action."); Bender, 99 Wash.2d at 594-595, 664 P.2d at 501 ("Peasley makes it unmistakably clear that if a factual issue as to whether probable cause or malice exists, the question must be submitted to the jury.") (emphasis added). As to the question of malice, the Court finds that summary adjudication is also inappropriate at this time. See id. ("[W]here the evidence is sufficient to establish want of probable cause, malice may be inferred from that fact when proven[.]"). Here, a rational jury could conclude that "the prosecution complained of was undertaken from improper or wrongful motives or in reckless disregard of the rights of the plaintiff." Orwick v. City of Seattle, 103 Wash.2d 249, 257, 692 P.2d 793, 798 (1984) (citations omitted).

4. Outrage

Outrage and intentional infliction of emotional distress are the same tort. Kloepfel v. Bokor, 149 Wn.2d 192, 194 n.1, 66 P.3d 630, 631 n.1 (2003). They require the plaintiff to prove extreme and outrageous conduct, intentional or reckless [*1207] infliction of emotional distress, [**42] and actual severe emotional distress. Id. at 195, 66 P.3d at 632. The conduct in question must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Grimsby v. Samson, 85 Wash.2d 52, 53, 530 P.2d 291, 295 (1975). "[T]he determination of whether conduct is sufficiently outrageous to warrant recovery is generally a question of fact for the jury." Snyder v. Medical Serv. Corp. of Eastern Washington, 145 Wash.2d 233, 242, 35 P.3d 1158, 1163 (2001).

The defendants argue that plaintiff cannot maintain a claim for mental or emotional distress under the tort of outrage when the same damages are recoverable under another theory, such as assault. Dkt. No. 40 at 14. They also insist that summary judgment is proper for want of extreme and outrageous conduct. Id. at 14-15. 10

FOOTNOTES

10 Plaintiff concedes that summary judgment should be entered on his claim of negligent infliction of emotional distress. See Dkt. No. 42 at 7.


The Court agrees with defendants that, under Washington law, recovery for the tort of outrage is allowed only in the absence of other tort remedies. Rice v. Janovich, 109 Wash.2d 48, 61, 742 P.2d 1230, 1238 (1987) [**43] (precluding recovery on outrage when damages for mental or emotional distress were already recoverable under plaintiff's assault claim). Here, the Court has already determined that plaintiff's assault and battery claim will proceed to trial. Because plaintiff's claim for emotional distress damages is encompassed by that claim, damages for the tort of outrage would amount to double recovery. See id.; Doe v. Finch, 133 Wash.2d 96, 102, 942 P.2d 359, 361 (1997). Accordingly, plaintiff's outrage claim should be dismissed. 11

FOOTNOTES

11 The defendants' motion for summary judgment on state qualified immunity is denied for reasons similar to those stated by the Court regarding qualified immunity from plaintiff's § 1983 claims. See supra, § V.C.


E. All Claims Against Seattle Police Department

Plaintiff includes the Seattle Police Department as a named defendant in his First Amended Complaint. Dkt. No. 6 at 2. In order to bring an appropriate action challenging the actions, policies or customs of a local governmental unit, a plaintiff must name the county or city itself as a party to the action, and not the particular municipal department or facility where the alleged violation occurred. See Nolan v. Snohomish County, 59 Wash.App. 876, 883, 802 P.2d 792, 796 (1990). [**44] Here, the Seattle Police Department is not a legal entity capable of being sued. It is therefore dismissed as a defendant in this case.

F. All Claims Against John Doe Defendants

Discovery in this case is complete and plaintiff has failed to name or personally serve any of the "John Doe" police officers named in his First Amended Complaint. Although plaintiff has provided the name of Sargent Zerr in the context of his claims against the City of Seattle, no amended complaint was filed to add him as a named party. Nor was service ever effected upon him. Because plaintiff has had the opportunity to identify the John Doe defendants but has failed to perfect claims against them, these defendants must be dismissed. See Wakefield v. [*1208] Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).

VI. CONCLUSION

For the foregoing reasons, the defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART, as follows:

(1) Summary judgment on plaintiff's § 1983 claims against Officer Briskey is DENIED.

(2) Summary judgment on plaintiff's § 1983 claims against the City of Seattle is GRANTED, and those claims are DISMISSED with prejudice.

(3) Summary judgment is DENIED on the issue of qualified immunity [**45] from plaintiff's § 1983 claims against Officer Briskey.

(4) Summary judgment on plaintiff's state law claims of assault and battery, false arrest, false imprisonment, and malicious prosecution is DENIED.

(5) Summary judgment is DENIED on the issue of qualified immunity from the abovementioned state law claims.

(6) Summary judgment on plaintiff's claims of outrage and negligent infliction of emotional distress is GRANTED, and those claims are DISMISSED with prejudice.

(7) For the reasons stated above, the Seattle Police Department and Seattle Police Officers John Doe 1 to 4 are DISMISSED as defendants in this case.

(8) The Clerk of Court is directed to send a copy of this Order to the parties.

DATED this 4th day of April, 2008.

/s/ James P. Donohue

JAMES P. DONOHUE

United States Magistrate Judge
_________________________________________________________________________

ROMELLE BRADFORD, Plaintiff, v. THE CITY OF SEATTLE, et al., Defendants.

Case No. C07-365-JPD

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

2008 U.S. Dist. LEXIS 65648


July 16, 2008, Decided
July 16, 2008, Filed

ORDER ON POST-TRIAL MOTIONS

This case was tried to a jury on May 12-16, 2008. On May 19, 2008, the jury returned a verdict for the plaintiff, Romelle Bradford, on his claims for unlawful arrest and excessive force under 42 U.S.C. § 1983 and his state claim for false arrest, and for the defendants Officer Briskey and the City of Seattle on plaintiff's claims for illegal seizure and abuse of process under § 1983 and plaintiff's state law claims for assault and battery and malicious prosecution. Dkt. No. 96. Defendants now challenge the legal and factual bases for the verdict. The present matter comes before the Court on the defendants' motion for judgment as a matter of law, motion [*2] to amend the judgment, and motion for a new trial, and on the plaintiff's motion for court awarded attorney's fees. See Dkt. Nos. 46-53, 55-63, 71-72. After careful consideration of the motions, responses, the governing law and the balance of the record, the Court ORDERS as follows:

A. Motion for Judgment as a Matter of Law

1. Defendants Failed to Comply with Rule 50(a)

Defendants move for judgment notwithstanding the verdict on multiple issues pursuant to Federal Rule of Civil Procedure 50(b). 1 The scope and propriety of a Rule 50(b) motion is controlled by Rule 50(a). Rule 50(a) permits a party to move for judgment as a matter of law after the opposing party has been fully heard and prior to the submission of the case to the jury. Fed. R. Civ. P. 50(a)(1). If a Rule 50(a) motion is denied, Rule 50(b) allows the moving party to "renew" its motion within ten days after the court's entry of final judgment in the case. Fed. R. Civ. P. 50(b). A party may alternatively request a new trial under Rule 59. See id.

FOOTNOTES

1 A motion for judgment notwithstanding the verdict is technically a motion for judgment as a matter of law filed after the jury's verdict pursuant to Federal Rule of Civil Procedure 50(b). [*3] See Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1027 n.2 (9th Cir. 2003); Fed. R. Civ. P. 50(b).


Rule 50(a) provides that a motion for judgment as a matter of law made before the case is submitted to the jury "must specify . . . the law and the facts that entitle the movant to the judgment." Fed. R. Civ. P. 50(a)(2). It is hornbook law that "[a] party cannot raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion." Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003); see also Wallace v. City of San Diego, 479 F.3d 616, 620 (9th Cir. 2007) ("A renewed motion for judgment as a matter of law must be preceded by a motion made at trial that sets forth the specific grounds raised in the renewed motion"); Murphy v. City of Long Beach, 914 F.2d 183, 186 (9th Cir. 1990) ("[Judgment notwithstanding the verdict] is improper if based upon grounds not alleged in a directed verdict [motion]."); Advisory Comm. Notes to the 1991 Amendments, Fed. R. Civ. P. 50 ("A post trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion.").

The Ninth Circuit has explained [*4] that

[t]he purpose of this rule is twofold. First it preserves the sufficiency of the evidence as a question of law, allowing the district court to review its initial denial of judgment as a matter of law instead of forcing it to "engage in an impermissible reexamination of facts found by the jury." Second, it calls to the court's and the parties' attention any alleged deficiencies in the evidence at a time when the opposing party still has an opportunity to correct them.

Freund, 347 F.3d at 761 (quoting Lifshitz v. Walter Drake & Sons, 806 F.2d 1426, 1428-29 (9th Cir. 1986)).

As noted above, a party may move for judgment as a matter of law at any time before the court submits the case to the jury. Fed. R. Civ. P. 50(a)(2). Defendants made such a motion at the close of the evidence relating to plaintiff's abuse of process claim, filing a detailed motion and presenting oral argument regarding that motion at the close of the plaintiff's case-in-chief. See Dkt. No. 84 (Defendants' Motion to Dismiss Abuse of Process Claim); Dkt. No. 91 (colloquy regarding defendants' motion). The Court granted defendants' motion and dismissed plaintiff's state court abuse-of-process claim pursuant to Rule 50(a)(1)(A). [*5] See Dkt. No. 91. Defendants' motion did not, however, assert qualified immunity, probable cause, or other sufficiency of the evidence argument as grounds for judgment as a matter of law. 2 Because the post-trial motion under Rule 50(b) is merely a renewal of the rule 50(a) motion made at the close of the evidence, defendants may not raise those argument now.

FOOTNOTES

2 Not only did defendants fail to raise these arguments in their Rule 50(a) motion, they also failed to raise them during an extended colloquy with the Court regarding other bases for judgment as a matter of law--e.g., the issue of assault versus "assault and battery" or battery as a claim to reach the jury, or the false imprisonment claim, which was raised by the Court sua sponte. See Dkt. No. 91.


That defendants moved for summary judgment on some or all of these issues does not change this result. Cf. Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir. 2002) (holding that judgment as a matter of law under Rule 50(b) was precluded because defendant failed to make a Rule 50(a) motion before submission of case to jury and after close of all evidence); Image Tech. Serv., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212 (9th Cir. 1997) [*6] (holding that a litigant's summary judgment motion does not satisfy the requirement for a motion for judgment as a matter of law at the close of the evidence). And although the Ninth Circuit has yet to rule on the specific issue of qualified immunity in this posture, it appears that the weight of authority from other circuits has adhered to the language of Rule 50 in qualified immunity situations. See, e.g., Isom v. Town of Warren, 360 F.3d 7, 9 (1st Cir. 2004) (treating qualified immunity argument as waived by not raising it at the close of evidence via Rule 50(a), despite the fact that it was raised in a motion for summary judgment); Provost v. City of Newburgh, 262 F.3d 146, 161 (2d Cir. 2001) ("Because [defendant officer] did not specifically include a qualified immunity argument in his pre-verdict request for judgment as a matter of law, he could not have included such an argument in his post-verdict motion even had he attempted to do so."); cf. Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir.2002) ("Defendants who are not successful with their qualified immunity defense before trial can re-assert it at the end of the plaintiff's case in a Rule 50(a) motion.") (emphasis added). [*7] While a qualified immunity defense is certainly "not waived or lost if a case proceeds to trial," Lampkins v. Thompson, 337 F.3d 1009, 1014 (8th Cir. 2003), neither is the applicability of the Federal Rules of Civil Procedure.

Defendants essentially argue that summary judgment motions based on qualified immunity are somehow different from all others, obviating the need to comply with Rule 50(a) in all cases where qualified immunity might be available. Defendants also insist that they "were compelled" to await the decision of the jury on the factual issues involved before requesting judgment as a matter of law, and that to do otherwise would have been unethical or frivolous. See Dkt. No. 131 at 3.

The Court disagrees. Under the defendants' rationale, every order declining to grant summary judgment would simultaneously eliminate the procedural requirements of Rule 50(a). Motions for summary judgment are routinely filed in civil rights cases involving qualified immunity. The defendants' argument means that in any such case a defendant could hide behind a motion and fail to alert the plaintiff to the alleged insufficiency of the evidence until too late to correct even the simplest deficiency. [*8] See Freund, 347 F.3d at 761 (outlining the purposes of Rule 50(a), including the need to "call[] to the court's and the parties' attention any alleged deficiencies in the evidence at a time when the opposing party still has an opportunity to correct them"). The procedures of Rule 50 are obligatory and compliance is strictly observed. Janes, 279 F.3d at 887 ("[S]ubstantial compliance is not enough."); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1028 (9th Cir. 2003); Lifshitz, 806 F.2d at 1428. Because defendants failed to follow these requirements, the right to judgment under Rule 50(b) has been forfeited and the merits of defendants' present motion need not be resolved. 3

FOOTNOTES

3 For this reason, a motion for a new trial under Rule 59 is the proper vehicle for the Court to review the jury's verdict in this case. See Freund, 347 F.3d at 765 ("Unlike a motion for judgment as a matter of law, a motion for a new trial does not have to be preceded by a Rule 50(a) motion prior to submission of the case to the jury."). In addition to their motion for judgment not withstanding the verdict, defendants moved for a new trial under Rule 59 [*9] as an alternative form of relief, which is discussed below.


2. Defendants' Rule 50(b) Motion Fails on the Merits

Assuming that the opposite were true, the Court would deny defendants' Rule 50(b) motion on the merits.

When assessing a Rule 50(b) motion, the court must view the evidence in the light most favorable to the nonmovant and draw all inferences in his favor. See, e.g., Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th Cir. 2006). The court may not weigh the evidence or assess the credibility of witnesses, and must disregard all evidence favorable to the moving party that the jury was not required to believe. See Bell v. Clackamas County, 341 F.3d 858, 865 (9th Cir. 2003). The motion may be granted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the nonmovant. Josephs, 443 F.3d at 1062. The test applied is whether the evidence, construed in a light most favorable to the nonmovant, "permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Id. (citing Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)); Settlegoode v. Portland Pub. Schools, 371 F.3d 503, 510 (9th Cir. 2004). Where there is sufficient [*10] conflicting evidence, or if reasonable minds could differ over the verdict, judgment as a matter of law after the verdict is improper. See, e.g., Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 775 (9th Cir. 1990).

The defendants' Rule 50(b) motion--based on the issues of qualified immunity, probable cause, and excessive force--attempts to re-characterize and re-package the facts in a light more favorable to them. For example, according to the defendants, the evidence presented at trial conclusively establishes that plaintiff continued to run "long after the officer's command" to stop and get on the ground, which they claim plaintiff heard and understood as directed to him. Dkt. No. 98 at 6-7. 4 Defendants then use the jury's finding of reasonable suspicion as a basis to contend that Defendant Officer Briskey also possessed probable cause to arrest. Dkt. No. 98 at 3-8. Because probable cause is a complete defense to liability for unlawful arrest under § 1983 and false arrest under Washington law, see Dkt. No. 45 at 11, 21, defendants asks the Court to amend the judgment by dismissing these claims. Dkt. No. 98 at 8.

FOOTNOTES

4 This is despite the fact that plaintiff did not so testify and that Officer [*11] Briskey testified that it was indeed possible that plaintiff interpreted his command as having been directed not at plaintiff, but rather someone else in the vicinity. See Dkt. No. 124, Ex. D at 29-30 (Briskey Dep.).


However, the jury in this case found that defendant Briskey acted without probable cause in detaining and arresting plaintiff, and did so using unreasonable force. Dkt. No. 96 at 2. By their verdict, the jury found (1) that the plaintiff was unlawfully arrested and taken into custody and that Officer Briskey caused, authorized, encouraged, directed or assisted in this unlawful act or in procuring plaintiff's arrest without process, which caused plaintiff to suffer injury, damage, loss or harm; (2) that Officer Briskey used excessive force when he detained and arrested the plaintiff--i.e., force not "objectively reasonable" under all of the circumstances; and (3) that under all of the circumstances known to the officer at the time, an objectively reasonable police officer would not have concluded there was a fair probability that the plaintiff had committed or was committing a crime. Dkt. No. 96 at 2-3; Dkt. No. 90 (Instructions 15, 17, 19). As a result, the jury found for [*12] the plaintiff on his § 1983 unlawful arrest claim, his state law false arrest claim, and his § 1983 excessive force claim. Dkt. No. 96 at 2-3.

Viewing all the evidence in a light most favorable to the plaintiff, the Court cannot conclude that a reasonable police officer could have believed that his conduct was lawful under the circumstances presented, in light of clearly established law and the information he possessed at the time. Edgerly v. City & County of San Francisco, 495 F.3d 645, 654 (9th Cir. 2007). Although Officer Briskey initially possessed reasonable suspicion that criminal activity was afoot, that suspicion was dispelled once the unarmed and nonaggressive plaintiff understood that Officer Briskey was speaking to him, stopped, turned, gestured to his plainly visible "STAFF" shirt and I.D. badge in a non-aggressive manner, and explained that he was a staff member of the Rainier Vista Boys and Girls Club. Officer Briskey ignored this information 5 and, according to testimony proffered at trial, immediately struck plaintiff in the face and knocked him to the ground. The Court finds that under these circumstances, there was no probable cause or arguable probable cause for the [*13] arrest, and a reasonable police officer would have made further inquiry before effecting a warrantless arrest in such a forcible manner. See Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994). Nor can the Court conclude that an objectively reasonable police officer could have concluded that there was a fair probability that plaintiff had "willfully hinder[ed], delay[ed], or obstruct[ed]" Officer Briskey in the discharge of his duties in this regard, or had otherwise "intentionally prevent[ed] or attempt[ed] to prevent" Officer Briskey from arresting him. R.C.W. §§ 9A.76.020(1), .040(1); see also S.M.C. §§ 12A.16.010, .050.

FOOTNOTES

5 Evidence presented at trial supports the conclusion that, contrary to his testimony, Officer Briskey was well aware of but ignored the obvious fact that plaintiff was a staff member intent on keeping the peace on the night in question, wearing a conspicuous staff t-shirt and a visible identification badge. The Court eschews an exhaustive analysis of these facts, but points, for example, to physical evidence such as the fact that, in plaintiff's booking photo, his undershirt--i.e., the only shirt defendants claim plaintiff was wearing--was in pristine condition [*14] despite the undisputed fact that plaintiff was knocked to the ground (on a construction site) by Officer Briskey. This white shirt could have stayed so clean only as an undershirt.


Moreover, in light of the fact that Officer Briskey possessed only reasonable suspicion and not probable cause, the Court cannot conclude that the actual force used by Briskey was objectively reasonable as a matter of law, even if not amounting to an intentional tort. Santos v. Gates, 287 F.3d 846, 853-54 (9th Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). In addition to the evidence presented regarding the actual force used, there was evidence presented at trial that plaintiff did not assume an aggressive or fighting stance, did not obstruct or resist arrest and that the overall situation faced by the officer was neither explosive nor dangerous. And while the jury heard conflicting testimony regarding plaintiff's behavior once physically apprehended, the Supreme Court has "consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure," much less a basis upon which to exact unreasonable physical [*15] force in making a warrantless arrest, especially when any reasonable suspicion of criminal activity would have been dispelled upon a reasonable officer's minimal investigation of the circumstances in this case. See Bostick v. Florida, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1992). .

In sum, the Court concludes that a finding of qualified immunity, probable cause, or reasonable force is not available as a matter of law in this case. Furthermore, the Court cannot conclude that the evidence, construed in a light most favorable to the plaintiff, "permits only one reasonable conclusion"--i.e., that espoused by the defendants--in this case. Josephs, 443 F.3d at 1062. At the very least, the evidence in this case points more than one way, and reasonable minds could differ over the jury's verdict. Accordingly, the Court will not disrupt the findings of the jury. Id.; Bell, 341 F.3d at 865. Defendants' Rule 50(b) motion is denied. 6

FOOTNOTES

6 The Court also concludes that common law qualified immunity for the state law claims would likewise be improper in this case based on the fact that Officer Briskey's conduct was not reasonable under governing law. See Staats v. Brown, 139 Wash.2d 757, 780, 991 P.2d 615, 628 (2000).


B. Motion [*16] for a New Trial

Under Fed. R. Civ. P. 59, a trial court may grant a new trial "'only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.'" Shimko v. Guenther, 505 F.3d 987, 993 (9th Cir. 2007) (quoting Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)). Such motion may be granted on insufficiency of evidence grounds "only if the verdict is against the 'great weight' of the evidence, or it is quite clear that the jury has reached a seriously erroneous result." Incalza v. Fendi North America, Inc., 479 F.3d 1005, 1013 (9th Cir. 2007) (internal quotations omitted). However, in reviewing a motion for a new trial, unlike that of a renewed Rule 50(b) motion, "[t]he judge can weigh the evidence and assess the credibility of witnesses, and need not view the evidence from the perspective most favorable to the prevailing party." Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987).

The Court denies the defendants' motion regarding the issue of probable cause. First, defendants do not argue, and the Court does not find, that the jury's verdict was based on [*17] false or perjurious evidence. Second, the Court cannot conclude that the verdict is contrary to the clear or great weight of the evidence presented at trial. This evidence included, for example, highly credible testimony that plaintiff jogged directly in front of Defendant Officer Briskey wearing his red staff shirt; that Officer Briskey ignored this fact and all others plainly indicating that plaintiff was a staff member of the Boys and Girls Club; that, in Officer Briskey's opinion, his initial command could reasonably have been directed at someone other than the plaintiff, see Dkt. No. 124, Ex. D at 29-30 (Briskey Dep.); that indeed plaintiff, after jogging directly past Officer Briskey several seconds earlier, did not believe the officer was talking to him when he so commanded; that a second and final command was delivered as Officer Briskey ran directly toward plaintiff from a short distance away; and that upon realizing that Officer Briskey was yelling at him, plaintiff stopped and attempted to comply with the officer's commands. Dkt. No. 99, Ex. A at 22, 27-28.

The defendants place enormous emphasis on wildly inconsistent testimony regarding the approximate distance between Officer [*18] Briskey and plaintiff at the time of his second command to and arrest of the plaintiff. See Dkt. No. 98 at 3-7. However, either version of this story supports the jury's verdict, which is not contrary to the clear weight of the evidence. If Officer Briskey's version of the facts is believed, he charged toward the plaintiff from a mere ten feet away while simultaneously giving his command to "Stop, get on the ground!" as plaintiff stopped and notified the officer that he was a staff member. This version paints Officer Briskey's actions as the only alternative and provides virtually no time for plaintiff to fully comply with the officer's command; plaintiff could not have placed himself on the ground any quicker than Officer Briskey did by the forearm strike to the face, the force of which flung plaintiff into a grouping of rocks alongside the sidewalk near the Club. See Dkt. No. 124, Ex. D at 19, 21, 27 (Briskey Dep.); see also id. Ex. A at 25-29 (Bradford Testimony), and Ex. B. at 8-10 (Smith Testimony). Plaintiff's version, as re-characterized by the defendants, places Officer Briskey much farther away from the plaintiff at the time his "Stop, get on the ground!" command was made. [*19] Dkt. No. 99, Ex. A at 114, 116 (Bradford Testimony); but see id. at 116 (equivocating as to distance), and Dkt. No. 41, Ex. C at 60-61 (Bradford Dep.) (estimating distance at ten feet). This version, however, supplies Officer Briskey with no reasonable grounds for believing that plaintiff--fully stopped, facing the officer in a non-aggressive stance with his hands in the air, holding his identification badge and explaining that he is a staff member--had been, was, or would be committing a crime, and surely provides no basis for violently knocking, tackling, and slamming plaintiff to the ground. The Court could speculate indefinitely as to which of these versions the jury believed. However, what the parties have done by their post-trial motion is simply underscore the fact that this issue is one better suited to the province of the jury.

Ultimately, the jury concluded that under all of the circumstances known to the officer at the time, an objectively reasonable police officer would not have concluded there was a fair probability that the plaintiff had committed or was committing the crime of obstruction or resisting arrest under state law or municipal code provisions on which the Court [*20] specifically instructed the jury. Dkt. No. 96 at 2; Dkt. No. 90 (Instruction 15). After independently weighing the evidence and assessing the credibility of each witness, the Court does not and cannot conclude that the jury's verdict is against the great weight of the evidence, is seriously erroneous, or otherwise amounts to a miscarriage of justice. Incalza, 479 F.3d at 1013.

C. New Trial Based on Inconsistent Verdicts Under Fed. R. Civ. P. 49(b), 59(e)

As an alternative to dismissal upon a finding of probable cause and/or grant of qualified immunity, the defendants request relief under the Seventh Amendment, Fed. R. Civ. P. 58, and Fed. R. Civ. P. 59(e) for inconsistent verdicts. Dkt. No. 98 at 21-24. Defendants specifically refer to the verdicts on unlawful arrest and excessive force under § 1983, and the verdicts on the state torts of false arrest and assault and battery. Id.

1. Governing Law

Federal Rule of Civil Procedure 49(b) authorizes a district court to "submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide." Rule 49(b)(3) and (4) govern inconsistent answers and authorize the court, under Rule 58, to (1) [*21] approve an appropriate judgment; (2) direct the jury to further consider its answers and verdict; or (3) order a new trial. Fed. R. Civ. P. 49(b)(3)-(4). 7

FOOTNOTES

7 A court may also alter or amend judgment in this regard under Rule 59(e) if "'(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law.'" Duarte v. Bardales, 526 F.3d 563, 567 (9th Cir. 2008) (internal quotation omitted). Rule 59(e) motions "should not be granted, absent highly unusual circumstances." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Here, defendants point to no published Ninth Circuit decision applying Rule 59(e) to contest inconsistent verdicts, and the Court finds none. Regardless, relief is inappropriate for reasons similar to those discussed below.


The defendants cannot prevail on this issue simply by establishing that the jury's verdicts in this case might be or indeed are inconsistent. Rather, "a court has a duty under the Seventh Amendment to harmonize a jury's seemingly inconsistent answers if a fair reading allows [*22] for it." Bains LLC v. Arco Prods. Co., 405 F.3d 764, 771 (9th Cir. 2005) (citations omitted). The court must ask "not whether the verdict necessarily makes sense under any reading, but whether it can be read in light of the evidence to make sense." White v. Ford Motor Co., 312 F.3d 998, 1005 (9th Cir. 2002). The Ninth Circuit "do[es] not find inconsistency lightly." Norris v. Sysco Corp., 191 F.3d 1043, 1048 (9th Cir. 1999). The Ninth Circuit has explained:

We are bound to find the special verdicts consistent if we can do so under a fair reading of them. When faced with a claim that verdicts are inconsistent, the court must search for a reasonable way to read the verdicts as expressing a coherent view of the case, and must exhaust this effort before it is free to disregard the jury's verdict and remand the case for a new trial.

Id. (internal quotation omitted).

2. New Trial Is Not Warranted Based on Inconsistent Verdicts

Here, there may be a substantial question regarding whether the defendants waived their objection to any alleged inconsistency of the verdicts, because they did not object before the jury was discharged. See, e.g., Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1331 (9th Cir. 1995); [*23] Los Angeles Nut House v. Holiday Hardware Corp., 825 F.2d 1351, 1354-55 (9th Cir. 1987). However, the Court eschews an exhaustive analysis of the waiver issue because assuming for the sake of argument that defendants did not waive inconsistency, the Court finds none.

The jury's § 1983 excessive force and state law assault and battery verdicts were not irreconcilably inconsistent. See Zhang, 339 F.3d at 1038 (outlining standard). The jury's verdict finding excessive force under § 1983 but not assault and battery under state law can be harmonized with the evidence as conduct that was unreasonable under § 1983, but not an intentional tort under state law. Furthermore, the elements of the claims and factors to be considered for each claim are not the same. While battery requires the intent by Officer Briskey to bring about a harmful contact that is unauthorized by state law, see Dkt No. 90 (Instruction 18), liability for excessive force under § 1983 requires only force that is unreasonable under the circumstances. Id. (Instruction 17). Finally, these verdicts can be further harmonized when considering the fact that the jury, although finding that the force used was unreasonable, did not [*24] find it of such a wilful, intentional, or deliberate nature so as to warrant punitive damages in this case. See id. (Instruction 24), and Dkt. No. 96 at 4.

There is also no irreconcilable inconsistency between the jury's false arrest verdict and assault and battery verdict. Only the element of injury is shared by both claims. Moreover, while battery required harmful contact and intent to bring about such contact, false arrest required only that the plaintiff was unlawfully arrested and taken into custody and Officer Briskey "caus[ing], authoriz[ing], encourag[ing], direct[ing] or assist[ing] in this unlawful act or in procuring plaintiff's arrest without process." Compare Dkt No. 90 (Instructions 18), with id. (Instruction 19). In other words, the false arrest claim did not require the jury to find that Officer Briskey possessed the intent to commit a battery on plaintiff. Nor did it require the jury to find that Officer Briskey acted within the scope of his authority or under color of law. Instead, it hinged on whether Officer Briskey had probable cause to arrest plaintiff and take him into custody, which the jury found lacking.

The defendants' post-trial motions are denied.

D. Plaintiff's [*25] Motion for Court-Awarded Attorney's Fees

Pursuant to 42 U.S.C. § 1988, a district court may, in its discretion, award attorneys' fees to the prevailing party in an action brought under 42 U.S.C. § 1983. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). The purpose of § 1988 is to ensure effective access to the judicial process for private persons and to encourage the enforcement of federal civil rights by enlisting the aid of counsel to act as "private attorneys general." Evans v. Jeff D., 475 U.S. 717, 732, 106 S. Ct. 1531, 89 L. Ed. 2d 747 (1986). A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" Hensley, 461 U.S. at 429 (quoting H.R. REP. NO. 94-1558, at 4 (1976), reprinted in 1976 U.S.C.C.A.N. 5912). Here, there is no dispute that plaintiff is a "prevailing party" for purposes of § 1988.

In Hensley, the Supreme Court held that the prevailing party bears the burden of establishing the appropriateness of its fee request. Hensley, 461 U.S. at 433. The Court directed lower courts to "exclude from this initial fee calculation hours that were not 'reasonably expended,' including "excessive, redundant, or otherwise unnecessary" work. Id. at 434; [*26] see also Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986) (holding that for purposes of claiming a fee award pursuant to 42 U.S.C. § 1988 "counsel bears the burden of submitting detailed time records justifying the hours claimed to have been expended"). In exercising this judgment, however, courts should avoid using 20/20 hindsight to determine if the attorney hours were necessary to obtain the relief obtained. See, e.g., Steinke v. Washington County, 903 F. Supp. 1403, 1407 (D. Or. 1995).

To determine the appropriate fee award under § 1988, district courts must use the lodestar method, which involves multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. See Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008) (explaining that the Ninth Circuit requires district courts to perform the lodestar calculation). "While in most cases the lodestar figure is presumptively reasonable, in rare cases" the court must decide whether to enhance or reduce that figure based on an evaluation of twelve factors that are not already subsumed in the initial lodestar calculation. Camacho, 523 F.3d at 982; [*27] Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (listing the factors). 8

FOOTNOTES

8 These factors include: (1) the time and labor required; (2) the novelty and difficulty of the issues involved; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by an attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by a client or the circumstances; (8) the amount in question and results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and, (12) awards in similar cases. Kerr, 526 F.2d at 70.


Here, counsel for plaintiff has submitted affidavits requesting attorneys' fees in the amount of $ 261,481.88 9 and awardable costs of $ 4,507.84. Dkt. Nos. 101-18. 10 Mr. Lembhard G. Howell, plaintiff's lead counsel, cites an hourly rate of $ 480 and 245.7 hours expended, for a total fee of $ 117,936. Dkt. No. 101 at 4; Dkt. No. 102 (Howell Decl.). Mr. Daniel A. Mares, Mr. Howell's associate, lists an hourly rate of $ 200 and cites [*28] 244.7 hours spent, for a total fee of $ 48,940. Dkt. No. 101 at 4; Dkt. No. 103 (Mares Decl.). Mr. Courtland T. Shafer assisted Mr. Howell during the second day of trial. He lists a billing rate of $ 250 per hour and cites 11.8 hours of work, for a total fee of $ 2,950. Dkt. No. 101 at 4; Dkt. No. 106 (Shafer Aff.). Mr. Shakespear M. Feyissa assisted Mr. Howell on the third day of trial, bills at $ 175 per hour and cites 17.15 hours of work for a total fee of $ 3,001.25. Dkt. No. 101 at 4; Dkt. No. 105 (Feyissa Aff.). Finally, plaintiff's counsel's legal assistant, Ms. Penny Egger, performed 33.2 hours of work at $ 45 per hour for a total of $ 1,494. Dkt. No. 101 at 9; Dkt. No. 104 (Egger Decl.).

FOOTNOTES

9 Mr. Howell has recently added eight hours to this total, and Mr. Mares sixteen hours, for their work in responding to defendants' post-trial motions, which they claim were overlength. According to Mr. Howell, this work increases the total fee request to $ 268,521.88. Dkt. No. 128 at 6. The Court has reviewed the materials submitted, and will award half of this additional requested time.

10 Federal Rule of Civil Procedure 54(d)(1) provides that "costs other than attorneys' fees shall be allowed [*29] s of course to the prevailing party unless the court otherwise directs." See also 28 U.S.C. § 1920. The requested costs have been granted. Dkt. No. 125.


Defendants object to most of these fee requests as unreasonable on numerous grounds. Dkt. No. 126 at 4-13. In addition, defendants insist that a downward departure is proper based on the Kerr factors. Id. at 14-17. Counsel for the plaintiff disagrees, and insists that a 50% multiplier is appropriate based on the undesirability of the case and the exceptional results achieved. The Court addresses each of these arguments in turn.

1. Lodestar Calculation

a. Reasonable Hourly Rate

"Reasonable fees" under § 1988 are "calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel." Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). The prevailing party bears the burden of demonstrating "that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Id.

i. Mr. Howell

Plaintiff's lead attorney, Mr. Howell, insists that $ 480 per hour is a reasonable rate. [*30] In support of this contention, Mr. Howell includes the detailed declarations of other civil litigators of comparable skill, experience and reputation as Mr. Howell. See Dkt. Nos. 107-115.

After careful review of the briefs, Mr. Howell's declaration and all others filed on his behalf, the Court concludes that an hourly rate of $ 400 is most appropriate for Mr. Howell in this case. Mr. Howell has practiced law for over forty years. He has spent most of that time litigating civil rights cases, with a particular emphasis on police misconduct litigation. He is an extremely skilled, dedicated, and experienced lawyer in the field of civil rights litigation and enjoys the respect and admiration of lawyers and judges alike.

The declarations from other attorneys in the locality span a range of approximately $ 300 to $ 650 per hour regarding the reasonable rate. See Dkt. No. 108 at 2, P 7 (Schoichet Decl.) (charging at $ 300 per hour); Dkt. No. 110 at 2, P 5 (Andrus Decl.) (charging $ 505 per hour, although engaged primarily in corporate finance counseling, not civil rights litigation); Dkt. No. 114 at 2, P 2 (Roe Decl.) (charging $ 425 per hour, but reporting approval at $ 400 per hour in federal [*31] courts in Oregon and Washington); Dkt. No. 107 at 2, P 6 (Burman Decl.) (noting range of $ 400 to $ 650 for litigation partners comparable to Mr. Howell in skill, experience, reputation). Furthermore, in 2005, Mr. Howell claimed and this court accepted $ 300 per hour as the rate reasonably and customarily charged in the locality for legal services in a § 1983 case. See Thomas v. City of Tacoma, 2003 U.S. Dist. LEXIS 26514, 2005 WL 2254005, *7 (W.D. Wash. 2005) (unpublished disposition). Based upon all of these facts, the Court concludes that a rate of $ 400 per hour for Mr. Howell is reasonable in this case.

ii. Mr. Mares

The Court concludes that a rate of $ 200 per hour is appropriate for Mr. Mares in this case. Though he possesses only four-and-a-half years of litigation experience, he has acted as co-counsel and sole counsel on multiple occasions in civil rights cases involving claims similar to those brought in the instant case, which includes more than a dozen civil rights cases filed in state and federal courts in Washington including a large, multi-plaintiff federal civil rights case against the City of Tacoma and members of its police force. See Dkt. No. 103 (Mares Decl.); Dkt. No. 130 (Mares Decl.). He [*32] was also admitted pro hac vice in California for a six-week civil trial. Dkt. No. 103 (Mares Decl.). Mr. Mares handled much of the pretrial briefing in this case, and the $ 200 hourly rate requested is appropriate. 11

FOOTNOTES

11 Mr. Mares served as second chair to Mr. Howell on the first day of trial but was unable to participate in the remaining days of trial as his wife went into labor and gave birth to their first child. Mr. Shafer and Mr. Feyissa stepped in to assist Mr. Howell for the remaining two days of trial. There is no evidence that either of these men performed any additional substantive litigation assistance to Mr. Howell before, during or after the trial in this case.


iii. Mr. Shafer

The Court concludes that an hourly billing rate of $ 200 for Mr. Shafer is more appropriate than the $ 250 rate he requested. It is undisputed that Mr. Shafer was not an attorney of record in this case and was asked by Mr. Howell to substitute for Mr. Mares on day two of the trial when Mr. Mares became unavailable for personal reasons. See supra, n.10. Mr. Shafer establishes no trial experience or civil rights litigation experience, no particular experience with the instant case, and his "on call" or [*33] "as needed" participation in this case does not warrant a greater hourly fee than that approved for Mr. Mares.

iv. Mr. Feyissa

The Court finds that the requested rate of $ 175 per hour is appropriate for Mr. Feyissa in this case. Although defendants dispute the amount of reasonable compensable hours for Mr. Feyissa, they do not dispute that $ 175 per hour is a reasonable rate.

v. Ms. Egger

In Missouri v. Jenkins, 491 U.S. 274, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989), the Supreme Court held that a "reasonable attorney's fee" provided for by statute should compensate not only the attorneys, but also the work of paralegals and support staff "whose labor contributes to the work product for which an attorney bills her client." Id. at 285. Here, Ms. Egger performed paralegal work including deposition summaries and trial preparation. See Dkt. No. 101 at 9; Dkt. No. 104 (Egger Decl.). Defendants do not dispute that this work was performed, nor do they attack Ms. Egger's billing rate. The Court concludes that concludes that a rate of $ 45 per hour is appropriate for Ms. Egger in this case.

b. Reasonable Amount of Time Expended

As explained above, the party requesting court-awarded attorneys' fees must submit detailed time records [*34] justifying the hours claimed to have been expended. Chalmers, 796 F.2d at 1210; Wininger v. SI Management L.P., 301 F.3d 1115, 1126 (9th Cir. 2002). The court may adjust these hours downward if it believes the documentation to be inadequate, or if the hours were duplicative, excessive, or unnecessary. Chalmers, 796 F.2d at 1210.

i. Mr. Howell

Mr. Howell requests compensation for 253.7 hours worked in this case. Dkt. No. 101 at 4; Dkt. No. 128 at 6. Defendants attack Mr. Howell's time-keeping as inaccurate and not contemporaneous, and the time itself as excessive, portions not reasonably necessary, and portions related to different or unsuccessful claims. Dkt. No. 126 at 5-10. The Court concludes that 244.7 hours were reasonably expended by Mr. Howell in this case. Furthermore, the Court finds that each of these hours were reasonable necessary in the prosecution of plaintiff's case.

While it could be said that Mr. Howell produced some non-contemporaneous time record, it is equally true that certain of Mr. Howell's contemporaneous time records show that he did not claim time for certain lengthy periods of time during the middle of this litigation. See, e.g., Dkt. No. 129, Exs. A and B (contemporaneous [*35] records indicating time worked but not claimed from March 11 to March 20, 2008 and April 21 to May 4, 2008). Furthermore, Mr. Howell claimed little time during much of the pleading and motion stages of the case, due to his delegation of pretrial work to Mr. Mares. For some of these activities, Mr. Howell's reported hours appear minuscule and even understated. See, e.g., Dkt. No. 102, Ex. B at 3, P 90-91 (claiming only 1.8 hours in reviewing and revising lengthy summary judgment opposition); id. Ex. B at 3, P 87, P 93, P 95 (claiming only .5 hours for digesting defendants' summary judgment papers and the Court's summary judgment opinion). Moreover, The Court finds that the time records evince billing judgment on the part of Mr. Howell.

Mr. Howell has also adequately addressed defendants' attack on the three sixteen-hour days Mr. Howell claims for the trial dates of May 13, 14, and 15, 2008. The defendants insist this schedule would require Mr. Howell to work from 5:00 a.m. until midnight, "without taking any time for meals, to relieve himself or do anything else." Dkt. No. 126 at 6. The Court disagrees. It is undisputed that after Mr. Mares' sudden absence from the trial on May 12, see [*36] supra n.10, Mr. Howell was without substantive trial assistance, requiring him to add to the already lengthy schedule attorneys invariably keep during trial. Specifically, the record reflects that Mr. Howell would arrive at his office at 7:15 a.m., work through the daily lunch recess, return to his office after the daily recess to work until 7:00 or 8:00 p.m., at which time he would drive home to nap, returning to his office at 1:00 or 2:00 a.m. and work until 4:00 a.m. See Dkt. No. 128 at 3; Dkt. No. 129 at 1-2 (Howell Decl.).

The Court also rejects in part defendants' argument, presented without authority, regarding the time Mr. Howell spent at court waiting for the jury's verdict. The Court ordered counsel for both parties to remain within fifteen minutes of the courthouse while the jury deliberated. Pursuant to that order, Mr. Howell remained at the courthouse on behalf of his client. During that time, Mr. Howell was somewhat limited in the type and quality of services he could perform for his other clients. However, the Court is also aware of the fact that Mr. Howell's office is located in downtown Seattle, within a fifteen minute drive of the courthouse, and in light of the improvements [*37] in electronic communication devices, he could have engaged in productive work on behalf of other clients while waiting for the verdict, whether in court, near the courthouse, or back at his office. Accordingly, the Court concludes that only 5 of the 9 hours and 20 minutes Mr. Howell spent awaiting the jury's verdict were reasonably incurred. Compare Roberts v. Interstate Distributor Co., 242 F. Supp. 2d 850, 860 (D. Or. 2002) (concluding that each hour attorney spent waiting for return of jury verdict was compensable where court had ordered counsel for both parties to remain within fifteen minutes of courthouse while jury deliberated, where counsel's office was located forty-five miles from the courthouse), with Jordan v. City of Cleveland, 464 F.3d 584, 602 (6th Cir. 2006) (similar fees excluded where counsel's office was located in city where trial was held). 12

FOOTNOTES

12 The Court arrives at the 9 hours and 20 as follows: On May 16, 2008, the jury began its deliberations at 1:20. Dkt. No. 91. At 4:40 p.m., the Court advised counsel of several questions from the jury and answered those questions in the presence of the jury, after which time the jury was excused for the weekend. Id. The following [*38] Monday, May 19, 2008, the jury deliberated from 8:50 a.m. until 3:45 p.m., when the jury then announced it had a verdict. Dkt. No. 95.


The Court concludes that the reasonable hourly rate of $ 400, multiplied by the 244.7 hours expended, results in a total attorney's fee award of $ 97,880 to Mr. Howell.

ii. Mr. Mares

Mr. Mares requests compensation for 260.7 hours worked in this case. Dkt. No. 101 at 4; Dkt. No. 128 at 6. Defendants attack this request for many of the same reasons regarding that of Mr. Howell. Dkt. No. 126 at 10-12. For similar reasons to those stated above for Mr. Howell, the Court declines to make an across-the-board reduction of Mr. Mares hours solely because some of his time records were not kept contemporaneously. All but 0.6 claimed hours were recorded contemporaneously. See Dkt. No. 130 at 2, P 5 (Mares Decl.). Nor will the Court reduce hours (for either Mr. Howell or Mr. Mares) based on the alleged "unrelated" unsuccessful claims. Specifically, the Court does not find that plaintiff's unsuccessful claims of illegal seizure, abuse of process, assault and battery, and malicious prosecution were "entirely distinct and separate, . . . both legally and factually," from [*39] the claims on which the plaintiff prevailed, i.e., unlawful arrest, excessive force, and false arrest. Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003). Each of the claims in this case arose out of a common core of facts--plaintiff's stop, arrest, and detention--and the circumstances before, during, and/or following each of those instances. Id. at 1169. Furthermore, it is clear that some of the work performed in connection with the merits of certain of plaintiff's unsuccessful claims (e.g., illegal seizure, outrage, or assault and battery) aided the work performed on the merits of the successful claims (e.g., unlawful arrest, false arrest, and excessive force). Id. (citing Schwarz v. Secretary of Health & Human Servs., 73 F.3d 895, 903 (9th Cir. 1995).

Moreover, the record reflects that very little time was spent on the municipal liability claim against the City of Seattle brought under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The four hours Mr. Mares' spent on this work will not be compensated as the claim did not succeed and was legally and factually distinct from the successful claims. Contrary to the defendants' allegations, no work was performed on the Monell claims [*40] for the pretrial statement, opening statement or closing argument. See Dkt. No. 130 at 2, P 6 (Mares Decl.). Mr. Mares took no depositions. Id. Defendants propounded five interrogatories related to the Monell claims, the questions and answers of which span less than two pages. See id., Ex. A. at 2-3.

The Court finds that other claimed hours of Mr. Mares should be reduced as excessive or unnecessary. The Court reduces 6.4 hours of Mr. Mares' November 2007 work performed in an attempt to extend the expert witness deadline, as this excessive work was the result of plaintiff's own failure to meet the original deadline. The Court likewise excludes one hour of Mr. Mares' work (of 3 hours requested) in preparing and personally serving requests for admissions on the defendants on December 3, 2007. Personally serving requests for admissions requires no law degree and only a minimal amount of skill. Furthermore, the Court excludes as excessive 6 hours of Mr. Mares' work in preparing jury instructions in this non-complex § 1983 trial, and twenty hours of Mr. Mares' time preparing an opening statement.

Accordingly, a total of 45.4 hours will be deducted from Mr. Mares' time request. The Court concludes [*41] that the reasonable hourly rate of $ 200, multiplied by 215.3 hours expended, results in a total attorney's fee of $ 43,060 to Mr. Mares.

iii. Mr. Shafer

The Court excludes Mr. Shafer's time spent coordinating his schedule with that of Mr. Howell, and concludes that the reasonable hourly rate of $ 200, multiplied by the 10 hours spent at trial, results in a total attorney's fee of $ 2,000 to Mr. Shafer.

iv. Mr. Feyissa

Consistent with the Court's analysis of Mr. Howell's time spent awaiting the verdict, see supra § III.D.1.b.i, the Court excludes the 1.5 hours claimed by Mr. Feyissa in this regard, and concludes that the reasonable hourly rate of $ 175, multiplied by the 15.60 hours expended, results in a total attorney's fee of $ 2,730 to Mr. Feyissa.

v. Ms. Egger

The Court concludes that a rate of $ 45 per hour, multiplied by 33.2 hours of work in this case, results in a total fee of $ 1,494 for Ms. Egger.

2. Adjustments to the Lodestar

Once the Court has determined the lodestar, it may then assess whether it is necessary to adjust that figure upward or downward based on several factors. The Ninth Circuit admonishes that "[i]n [*42] most cases[,] the lodestar figure is presumptively reasonable." Camacho, 523 F.3d at 982. In rare cases, however, the court must decide whether to enhance or reduce that figure based on an evaluation of twelve factors that are not already subsumed in the initial lodestar calculation. Id.; Kerr., 526 F.2d at 70 (listing the factors). "The court need not discuss each of the guidelines, so long as it discusses those most relevant to the particular case." Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir. 1988).

The Court determines that neither a fee multiplier nor a downward departure is appropriate in this case. This case was not overly complex and, although closely followed by many, it presented limited discovery, routine legal issues, and focused primarily on the credibility of the plaintiff vis-a-vis defendant Officer Briskey. Moreover, the plaintiff in this case was far from unattractive and the facts did not otherwise make the case so "undesirable" as to warrant a fee multiplier. Nor was the result obtained so "exceptional" as to warrant the 50% multiplier requested by plaintiff's counsel. The size of the jury's damages award does not, standing alone, make the result exceptional. See [*43] In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1296 (9th Cir. 1994). The Court finds that plaintiff's counsel's recovery was substantial, but not exceptional under governing law.

Accordingly, the Court awards to plaintiff's counsel a total attorneys' fee of $ 147,164.

IV. CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:

(1) Defendants' Motion to Amend Judgment as a Matter of Law, Judgment Notwithstanding the Verdict, and/or Motion for a New Trial (Dkt. No. 98) is DENIED.

(2) Plaintiff's Motion for Attorney's Fees Under 42 U.S.C. § 1988 (Dkt. No. 101) is GRANTED in the amount specified by the Court above.

(3) The Clerk of Court is directed to send a copy of this Order to the parties.

DATED this 16th day of July, 2008.

/s/ James P. Donohue

JAMES P. DONOHUE

United States Magistrate Judge