HONORABLE JUDITH RAMSEYER
HEARING DATE: APRIL 14, 2023
HEARING TIME: 10:30 A.M.
TRIAL DATE: OCTOBER 16, 2023
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING
The Estate of SUMMER JOLIE WILLIAMS TAYLOR, by and through MATTHEW D. TAYLOR, Personal Representative, ZOE ADBERG, SARA ANDERSON, MEGAN BUSS, GRACE CARMACK, LEANNA CARR, AISLING COONEY, ABIE EKENEZAR, EDWARD FARMER, NIMA FORGHANI, NOAH FOWLER, ZACHARY GARDNER, IAN GOLASH, GRACE GREGSON, MIRANDA HARDY, LEXUS HARTLEY, CLAYTON HOLLOBAUGH, JASON SCHIERER as guardian ad litem for minor MALICHI HOWE a.k.a. BRYAUNA HOWE, JESSE HUGHEY, AUBREANNA INDA, MARY JURGENSEN, TIMOTHY KAUCHAK, JOHN W. KELLIHER, JENNA KINYON, BEN KOENIGSBERG, JACOB KOENIGSBERG, SETH KRAMER, ERIC LOOK, DANIEL LUGO, JACOB MARTIN, JOSHUA MATNEY, CHLOE MERINO, LOGAN MILLER, TONI MILLS, ALESSANDRA MOWRY, KELSEY MURPHY-DUFORD, WESLEY PEACOCK, JORDAN A. PICKETT, CHARLES PIERCE, DANIEL PIERCE, CONOR POULL, RENEE RAKETTY, JAVIER RIZO, ALEXANDER RUEDEMANN, MICHAUD SAVAGE, CAROLYN STERNER, SEAN SWANSON, MEGHAN THOMPSON, BRUCE TOM, TIFFANY VERGARA-MADDEN, ALIYE VOLKAN, STEVEN WIDMAYER, JOSEPH WIESER, GILLIAN WILLIAMS, QUINN ZOSCHKE, and DOES 1-40,
Plaintiffs,
No. 20-2-14351-1 SEA
MOTION FOR SUMMARY JUDGMENT REGARDING PLAINTIFF NED FARMER’S CLAIMS
CITY OF SEATTLE, a governmental entity, Defendant.
I. INTRODUCTION AND RELIEF REQUESTED
Around midnight on June 8, 2020, Plaintiff Ned Farmer was at home in Capitol Hill when the sound of explosions piqued his curiosity and led him to walk towards the East Precinct to take photographs. By the time he arrived, SPD had already issued three dispersal orders to the rioting crowd. They issued three more with Plaintiff Farmer in the area. He watched as SPD deployed blast balls in response to safety threats near two dumpsters that protesters had pushed into the middle of the street. Despite his knowledge of the dangerous circumstances and repeated dispersal orders, Plaintiff Farmer chose to get closer to the Precinct, situating himself directly in the area where he had already seen less lethal munitions deployed. He alleges that he was injured by a blast ball moments thereafter.
Even taken as true, Plaintiff Farmer’s factual allegations provide no basis for recovery. The deployment of the blast ball that allegedly struck Plaintiff Farmer was a reasonable response to officer safety threats occurring in Plaintiff Farmer’s immediate vicinity. Moreover, his injury is the predictable result of the informed decisions he made that night. The City accordingly respectfully requests that his claims be dismissed in their entirety.
II. STATEMENT OF FACTS
A. Summer 2020 Protests
Following the murder of George Floyd in Minneapolis on May 25, 2020, the City experienced an unprecedented period of concerted protest activity mainly focused in the downtown core and on Capitol Hill. Declaration of John Brooks (“Brooks”), filed herewith, ¶ 4.
On Friday, May 29, the first major protests in Seattle occurred downtown; while protests during the day were largely non-violent, protesters engaged in assaults against police officers and significant property damage at night. Id. The disorder escalated on May 30 to include mass looting downtown, the burning of SPD vehicles, theft of high-powered SPD rifles, and assaults
on officers. Id. By the first week of June, the protests had become focused on the area outside the East Precinct in Capitol Hill. Brooks ¶ 5. While SPD tried a variety of tactics to de-escalate growing tensions, on a near nightly basis, SPD was forced to disperse large crowds as individuals used the cover of night and the anonymity of the crowds to launch dangerous projectiles at SPD officers. Id.
B. June 7-8, 2020 Incident 1
1 The map included in this Motion is offered for illustrative purposes only. The parties referenced this map during Plaintiff Farmer’s deposition. Cited portions of the deposition of Ned Farmer are attached as Exhibit A to the Declaration of Kari L. Vander Stoep. The deposition is cited herein as “Farmer Dep.” See Farmer Dep. 57:15-58:15.
On June 7, 2020, a large crowd of protesters gathered at the intersection of 11th Avenue and East Pine Street on Capitol Hill, approximately a block west of SPD’s East Precinct. 2 Brooks ¶ 6. SPD Captain Matthew Allen and Captain John Brooks served as on-the-ground command staff for the night’s events. 3 Id. Prior to taking command, Captain Allen, Captain Brooks, and others formulated a deployment plan intended to avoid the recurring nightly conflicts by reducing the visible police presence around the East Precinct. Id. SPD erected fencing stretching from north to south across Pine Street, on the east side of the 11th and Pine intersection, to create distance between the crowds and SPD officers. Id. As long as the crowd remained on the west side of the fence line, SPD personnel would remain out of view, and any necessary arrests would be made by a team of SPD officers stationed inside the East Precinct’s sally port. Id. In addition, a microphone connected to a large bank of speakers positioned on the sidewalk facing the crowd allowed the SPD Operational Commander to communicate with the crowd as necessary. Id.
Captain Allen assumed command of the SPD officers near the East Precinct at approximately 4:12 p.m. Brooks ¶ 7. The situation remained relatively calm for several hours. However, the tenor of the protest began to change at approximately 7:17 p.m., when individuals from the crowd began to tear down the established fence line. Id. Almost immediately, Captain Allen began addressing the crowd over the public address (“PA”) system, requesting that those individuals return to the west side of the fence line, and noting that SPD had established the
2 The East Precinct is located at 1519 12th Avenue, Seattle, WA 98122, and shares walls with an apartment building and other retail space. Brooks ¶ 5. Acting on intelligence reports that individuals intended to set fire or otherwise damage the East Precinct, SPD blocked off the various intersections surrounding the building. Id. Protesters gathered at each of these barricades, with the largest crowds congregating at the intersection of 11th Avenue and East Pine Street. Id.
3 At the time of the 2020 protests, Captain Brooks was a Lieutenant. Brooks ¶ 2.
fence line to ensure the safety of both the protesters and SPD officers. Id. Understanding that immediate SPD action to arrest these individuals would only serve to enflame the already rising tension in the crowd, SPD initially relied on PA announcements and the efforts of some of the other protesters to attempt to convince these individuals to voluntarily return to the established line. Id. By the time it was clear that these requests would not be successful, the number of individuals who had crossed the fence line had grown so significantly as to make targeted arrests impracticable. 4 Id. Therefore, SPD deployed officers in a line across Pine Street approximately 30 yards east of the original fence line. Id.
At 8:20 p.m., a vehicle drove into the crowd, and the driver shot a protester who confronted him before surrendering to SPD. Brooks ¶ 9. Following this incident, the crowd became significantly more agitated, with protesters barricading portions of Pine Street. Id. By 9:37 p.m., the crowd had entirely torn down the fencing and was continuing to advance on the SPD lines. Brooks ¶ 10.
Between approximately 10:00 p.m. and 10:20 p.m., officers observed protesters handing out walkie-talkies and arming themselves with sections of cut fencing, rocks, and other improvised armaments. Id. Over the next two hours, the crowd continued to advance on the line of officers, ignoring Captain Allen’s repeated directives to move back. For example, at 10:20 p.m., Captain Allen made the following announcement to the crowd over the PA system:
This is the Seattle Police Department. You are now within 10 feet of our officers. You have your umbrellas up. You have cut the bottom of the bicycle fencing, which I can only assume is to flip it towards us. We have people there that are continuing to advance towards us. I cannot have you continue to advance.
4 Attempting to arrest an individual in a crowd is very difficult and potentially dangerous for the officer as they will be surrounded by a potentially non-compliant crowd while engaged with the arrestee. These concerns are only exacerbated in a scenario where large numbers of individuals have already demonstrated a willingness to disobey police orders. Brooks ¶ 8.
Many of you are proclaiming to be peaceful, and yet you continue to advance well beyond the barrier we set up so everybody can stay safe. I cannot have you continue to advance on our officers. I am warning you and asking you to step back. It is very clear with the way that the bicycle fence has been cut and the items being handed out. We can clearly see walkie-talkies, we can clearly see your umbrellas.
You will note the officers have not moved position. You have continued to advance. You have continued to put up umbrellas, you have continued to again dismantle fencing, both the regular fencing and the bike fencing. I am telling you to hold your position and not advance on our officers. If you continue to advance I will declare this an unlawful assembly and give a dispersal order.
See Declaration of Kari L. Vander Stoep (“Vander Stoep”), filed herewith, Ex. B. 5 The crowd did not comply with this or any of the other announcements made by Captain Allen. See, e.g. ¸ id., Ex. C (directing crowd to refrain from sticking objects in officers’ faces at 10:33 p.m. 6); id., Ex. D (directing crowd to move back at 10:48 p.m. 7); id., Ex. E (directing crowd to move back and to stop shining lights in officers’ eyes at 11:10 p.m. 8).
By 11:36 p.m. 9, the crowd advanced within five feet of the officers on Pine Street when a protester threw a glass bottle, striking a National Guardsman assisting SPD. Brooks ¶ 11. Captain Allen continued to direct the crowd to move back and to refrain from throwing projectiles at the officers. Vander Stoep, Ex. F (“We just had somebody throw a glass bottle and hit one of the National Guard. If this is a peaceful protest we are not throwing items at the police
5 The timestamps contained in body worn video, which appear in the upper-right corner of each recording, are seven hours ahead of Pacific Time. Declaration of Martha Dawson, filed herewith, ¶ 3. Consequently, the timestamp for 10:20 p.m. on June 7, 2020 displays as “202006-08 T05:20:00” on the body worn video recordings. Cited portions of the body worn video referenced in this Motion are attached to the Declaration of Kari L. Vander Stoep. Additionally, the entirety of the body worn videos from which those cited portions originate are attached as exhibits to the Declaration of Martha Dawson.
6 Recording timestamp of 2020-06-08 T05:33:00.
7 Recording timestamp of 2020-06-08 T05:48:00.
8 Recording timestamp of 2020-06-08 T06:10:00.
9 Recording timestamp of 2020-06-08 T06:36:00.
officers or the National Guard. Yet, somebody saw fit to do so. Do not throw items at the police or the National Guard.”). At approximately 12:04 a.m. on June 8, individuals in the crowd threw objects at the north end of the officer line, and at least one officer deployed OC spray in response. Brooks ¶ 11.
Immediately after seeing this disturbance, Captain Allen gave a dispersal order over the loudspeaker. 10 Id. Officers were initially able to create distance between the SPD line and the crowd of protesters using OC spray and blast balls. Id. However, upon retreating into the 11th and Pine intersection, a large percentage of the crowd refused to disperse farther, and many in the crowd began launching projectiles at the officers. Id. After reports that there was a man with a gun in the crowd gathered near the intersection, use of CS gas was authorized and, for the next twenty minutes, SPD officers dispersed the crowds west on Pine Street while being pelted with various projectiles, including rocks, bottles, and fireworks. Brooks ¶ 12. By 12:30 a.m., SPD regrouped in the area around the East Precinct and established lines of officers at the north, south, and west crosswalks of the 11th and Pine intersection. Brooks ¶ 13. Despite continuing dispersal orders, 11 crowds of several hundred individuals remained in the area between 10th and 11th Avenue on Pine Street and south of the 11th and Pine intersection on 11th Avenue. Id.
C. Training on Demonstration Management and Use of Blast Balls
On June 7, 2020, as with other demonstrations, certified SPD officers were equipped with less-lethal tools, namely OC spray and blast balls, which are designed to create space and stop assaultive behavior or property destruction. Brooks ¶ 15. Those tools are intended to counter
10 Refusal to obey a public safety order to disperse is a violation of city and state law. See SMC 12A.12.020; RCW 9A.84.020.
11 Captain Allen issued dispersal orders over the loudspeaker at 12:06 a.m., 12:08 a.m., 12:31 a.m., 12:37 a.m., and 12:43 a.m. Brooks ¶ 14.
resistance without relying on greater force options (such as long batons and other impact weapons) that increase the likelihood of injury to the suspect, community, or involved officers. Id. A blast ball is a light and sound diversion device that can help disrupt ongoing criminal acts by causing a loud noise and flash of light. Id. Blast balls are common crowd management tools and are utilized by law enforcement agencies throughout the country. Id. SPD training on blast ball use directs that the blast balls should be deployed into an open space near the intended target. Brooks ¶ 16. While deploying blast balls underhand is preferred, blast balls may be deployed overhand if distance or other obstacles make an underhand deployment impracticable. Id. Officers selected to carry blast balls are required to attend and complete certification training. Id. They are also required to recertify annually. Id.
D. Plaintiff Farmer’s Involvement in June 7/8 Incident
At around midnight on June 7, 2020, Plaintiff Farmer was at his home on Capitol Hill when he began hearing explosions and the sound of a helicopter. Farmer Dep. 42:2-12. While Plaintiff Farmer was aware that SPD had previously responded to illegal activity around the East Precinct by deploying blast balls and tear gas, he nevertheless decided to walk down and observe the protest. Farmer Dep. 69:6-16; 42:13-43:23. Within about four or five blocks of his intended destination, Plaintiff Farmer began to smell what he assumed was tear gas. Farmer Dep. 73:1624. However, rather than heading home or leaving the area, Plaintiff Farmer continued towards the East Precinct out of a personal “curiosity” and a desire to take photographs. 12 Farmer Dep. 73:16-24.
After an approximately five to eight minute walk, Plaintiff Farmer stopped at 11th Avenue between East Olive Street and East Pine Street, and began to take photographs of the
12 Plaintiff Famer is a hobbyist photographer. Farmer Dep. 95:20-24. He does not claim that he was attending the protests as a member of the press. Id.
line of officers stationed at the north side of the 11th and Pine intersection. Farmer Dep. 55:1656:10, 57:22-58:18, 61:11-62:4; Vander Stoep Exs. G, H. Plaintiff Farmer continued to take photographs and videos around this area for several minutes. Farmer Dep. 63:14-79:11; Vander Stoep Exs. G, H, I, J. During this time, he observed SPD officers deploying tear gas on East Pine Street west of the 11th and Pine intersection and heard an SPD order requiring all those gathered on 11th Avenue and Pine Street to disperse. Farmer Dep. 74:8-80:6; Vander Stoep Exs.
E, I, J. Specifically, over the course of 12 minutes from 12:31 a.m. to 12:43 a.m., SPD made a version of the following announcement three times while Plaintiff Farmer was in the vicinity an announcement that Plaintiff Farmer personally videotaped:
I am Captain Allen of the Seattle Police Department. I am now issuing a public safety order to disperse, and I command all those assembled at 10th and Pine and also on 11th just north of Pike to immediately disperse, which means leave this area. If you do not do so, you may be arrested or subject to other police action. Other police action could include the use of chemical agents or other less lethal munitions, which may inflict significant pain or result in serious injury. If you remain in the area just described, regardless of your purpose, you will be in violation of city and state law. The following routes of dispersal are available: for those on Pine, move west on Pine, for those just on 11th just north of Pike move southbound on 11th You have five more minutes to disperse. Start doing so now.
Vander Stoep Exs. E, J; Farmer Dep. 77:10-25. Rather than leave the area, Plaintiff Farmer elected to get closer to the East Precinct. Farmer Dep. 80:7-23. He eventually cut across Cal Anderson Park to the area of East Pine Street explicitly described in Captain Allen’s order so that he could observe the protest “from another angle.” See Farmer Dep. 79:17-80:23. Initially, Plaintiff Farmer observed the crowd gathered on East Pine Street from inside Cal Anderson Park. Farmer Dep. 83:21-88:23; Vander Stoep Exs. K, L. While there, he recorded two SPD-deployed blast balls detonate near several dumpsters that had been pushed into the middle of the street between the protesters and police:
Farmer Dep. 88:4-20; Vander Stoep Ex. L (still image taken at 6 seconds into recording). Soon after these deployments, Plaintiff Farmer made his way into the street to continue taking photos.
Farmer Dep. 89:22-90:12; Vander Stoep Exs. M, Q. By 12:50 a.m., Plaintiff Farmer had positioned himself between the SPD line and the crowd of protesters, eventually crouching between the very same dumpsters where he had recorded blast balls detonating less than five minutes prior. Farmer Dep. 91:20-93:15, 97:4-98:6, 100:8-22; Vander Stoep Exs. Q, R.
At approximately 12:53 a.m., an individual carrying a blue bucket moved out in front of the crowd close to the two dumpsters between which Plaintiff Farmer was crouching. Vander Stoep Exs. O at 00:30–00:38, P at 08:30 – 08:45. Shortly after this individual appeared to begin pulling something out of the bucket, he was struck by a 40mm impact round deployed by an SPD SWAT officer. Vander Stoep Exs. O at 00:38-00:46, P at 08:45-09:00. A group of protesters quickly surrounded the individual and escorted him through the crowd west on Pine Street.
Vander Stoep Exs. O at 00:46-01:10, P at 09:00-09:30.
A minute later, another individual carrying a dark colored backpack, crouching low, ran up to the dumpsters, squatted behind an adjacent large, white public parking sign and began to rummage through the backpack. Vander Stoep Exs. O at 01:45-01:49, P at 9:55-10:10. Body Worn Video from Officer Shelley San Miguel, 13 whom the City has identified as the officer who deployed the blast ball that impacted Plaintiff Farmer, shows an SPD officer pointing towards this individual and saying, “right there, behind that sign!” Vander Stoep Ex. O at 1:49-1:53. Six seconds later, Officer San Miguel prepped and deployed a blast ball onto the sidewalk adjacent to the parking sign. Vander Stoep Ex. O at 01:55-02:02. As the blast ball’s initial fuse assembly separation occurred, the device bounced off of the sidewalk and spun to the right, landing underneath the nearby dumpster before detonating. Vander Stoep Ex. O at 2:00-2:04. Plaintiff Farmer, who was still crouching between the dumpsters, fell into the street 14 before being quickly surrounded by the crowd and taken from the area. Farmer Dep. 120:14-121:13; Vander Stoep Ex. O at 2:04-2:25.
III. EVIDENCE RELIED UPON
This Motion is based on the Declarations of Kari Vander Stoep, John Brooks, and Martha Dawson, the exhibits attached thereto, and the pleadings and papers on file with the Court.
IV. ARGUMENT
A. Summary Judgement Standard
Summary judgment is properly granted where “there is no genuine issue as to any material fact and … the moving party is entitled to a judgment as a matter of law.” CR 56(c). If the nonmoving party fails to make a showing sufficient to establish the existence of an element
13 Officer Shelley San Miguel is no longer with SPD. On June 8, 2020, Officer San Miguel was up to date on her less lethal munitions training and certified to deploy blast balls. Brooks ¶ 17.
14 Plaintiff Farmer testified that he felt disoriented by the blast but denied any loss of consciousness. Farmer Dep. 120:14-121:13.
essential to that party’s claim, on which the party would bear the burden of proof at trial, then the trial court should grant the motion. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). This result follows because “[w]here proof of an essential element of a claim is lacking, all other facts are rendered immaterial.” Shields v. Morgan Fin., Inc., 130 Wn. App. 750, 758, 125 P.3d 164 (2005).
After the moving party meets its initial burden, “the [plaintiff] cannot rely on the allegations made in its pleadings.” Young, 112 Wn.2d at 225. Rather, the plaintiff “by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Id. at 225-26 (citing CR 56(e)). Summary judgment serves the purpose of “examin[ing] the sufficiency of the evidence behind the plaintiff’s formal allegations in the hope of avoiding unnecessary trials where no issue as to a material fact exists.” Id. at 226.
B. Plaintiff Farmer’s Tort Claims Should Be Dismissed
1. Negligence
Plaintiff Farmer’s negligence claim should be dismissed because Officer San Miguel’s conduct was objectively reasonable, and Plaintiff Farmer voluntarily assumed the risk that he would be injured by SPD’s use of less lethal tools.
a. SPD Did Not Breach Any Duty Owed to Plaintiff Farmer
To succeed on his negligence claim, Plaintiff Farmer must establish (1) that the City owed him a duty (2) that it breached (3) resulting in injury (4) proximately caused by that breach.
See Wuthrich v. King County, 185 Wn.2d 19, 25, 366 P.3d 926 (2016). A law enforcement officer owes a legal duty to exercise reasonable care when engaged in direct interactions with others. See Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 552, 442 P.3d 608 (2019); Mancini v. City of Tacoma, 196 Wn.2d 864, 886, 479 P.3d 656 (2021); Estate of Heath v. Pierce County, No. 3:19-cv-06119-RJB, 2021 WL 2682513, at *8 (W.D. Wash. Jun. 30, 2021) (holding
that a law enforcement officer “owed a duty specific to [plaintiff,] as a person with whom he had a specific and direct interaction”).
In Beltran-Serrano, the Washington Supreme Court held that a plaintiff could assert negligence claims against a law enforcement officer arising out of the totality of the interaction between the plaintiff and the officer that led to the plaintiff’s alleged injur y. The interaction at issue in Beltran-Serrano, as described by the Supreme Court, is worth quoting at length:
As Officer Volk approached Beltran-Serrano, he laid down on his stomach and started digging in a hole. Officer Volk greeted Beltran-Serrano, but he looked up at her blankly and kept digging in the hole. Noticing that the hole contained mainly garbage, Officer Volk observed Beltran-Serrano pull out an old soda container, take a drink, and throw it back in the hole. When Officer Volk asked Beltran-Serrano if he understood English, he shook his head no. Officer Volk then radioed for a Spanish-speaking officer. Officer Jake Gutierrez, who spoke Spanish, was within one and a half to five minutes away.
Instead of waiting for Officer Gutierrez to arrive, Officer Volk attempted to engage Beltran-Serrano in conversation; he was nonresponsive. She attempted to get Beltran-Serrano to produce identification, gesturing to indicate she wanted to see an ID card. Beltran-Serrano began to pat his pockets as if to look for identification, but then he bent down and reached back into the hole. When Officer Volk moved closer to Beltran-Serrano and continued to address him in English, he became scared and started to run away. Officer Volk shot him in the back with a stun gun as he ran across the street. The stun gun did not have the desired effect, and BeltranSerrano continued to run away. Officer Volk then pulled out her duty weapon and fired multiple shots until Beltran-Serrano fell to the ground. The total time between when Officer Volk called for a Spanish-speaking officer and the shooting was 37 seconds.
Id. at 540-42 (internal citations omitted). On these facts, the Court held that the plaintiff could maintain a negligence claim based on the officer’s “alleged failure to use ordinary care to avoid unreasonably escalating the encounter to the use of deadly force.” Id. at 540. Citing favorably to cases from the D.C. Circuit and California Supreme Court, the Court stated that, “[t]he series of actions culminating in the use of … force may be analyzed in its constituent parts or,
alternatively, as involving either negligent or intentional conduct.” Id. at 545-46 (citing District of Columbia v. Chinn, 839 A.2d 701, 710 (D.C. 2003), and Hayes v. County of San Diego, 57 Cal. 4th 622, 626, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013)).
Similarly, in Mancini v. City of Tacoma, the Washington Supreme Court held that a plaintiff could allege that officers had failed to use reasonable care when detaining her while executing a warrant. See 196 Wn.2d at 883. In Mancini, eight officers knocked on the plaintiff’s door. After waiting only 20 to 30 seconds with no response, they broke open the door and entered plaintiff’s apartment with guns drawn. Id. at 871-72. The suspect the officers were seeking did not live in the apartment and, in fact, lived in a different building. Id. The plaintiff came out of her bedroom in her nightgown to a “‘sea of . . . men in black’ with guns pointed at her.” Id. An officer pushed her to the ground, handcuffed her, and took her outside after denying her request to put shoes on. Id. The plaintiff estimated that she was made to stand outside in handcuffs for “about 15 minutes” while officers conducted a search before the officers determined that they had the wrong apartment. Id.
The Court held that the plaintiff could sustain a negligence claim on these facts because a “rational juror could have found that police breached the door unreasonably quickly after knocking and receiving no response, that police took an unreasonable amount of time to realize they had the wrong apartment, that the police unreasonably continued their search of Mancini’s apartment after realizing they had hit the wrong door, or that the police unreasonably left Mancini handcuffed long after realizing she had no relation to their suspect or any combination of these facts.” Id. at 886-87.
While there is limited Washington case law addressing the scope of an officer’s duty for purposes of a negligence claim, Beltran-Serrano and Mancini make clear that any negligence claim is limited to the conduct of the officer(s) that directly interacted with the plaintiff. This
requirement is further supported by the case law cited favorably in Beltran-Serrano. In Hayes v. County of San Diego, the California Supreme Court held that “[l]aw enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability. Such liability can arise, for example, if the tactical conduct and decisions show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” Hayes, 305 P.3d at 263. In Hayes, the “tactical conduct and decisions” referred to by the Court were those of the officers who directly interacted with the plaintiff. See id. at 262 (listing a variety of actions taken by the officers that used force that could support a negligence claim, including their “decision not to call for a psychiatric expert before entering” the plaintiff’s house, their “decision to enter the house,” and their “decision to speak to” the plaintiff). Indeed, more recently, the California Court of Appeals expressly declined to extend this negligence analysis to the conduct of officers not directly involved in the ultimate use of force.
See Koussaya v. City of Stockton, 54 Cal. App. 5th 909, 268 Cal. Rptr. 3d 741 (Cal. Ct. App. 2020). In Koussaya, the plaintiff, a hostage taken during a bank robbery, argued that the “combined actions” of all the officers involved in the robbery response and eventual car pursuit “contributed to ‘a continuing and escalating series of events’ and ‘must be viewed as a continuum of circumstances ultimately leading’” to her injuries. Id. at 945-46. The Koussaya Court rejected this argument, holding that only the conduct of the officers that engaged in the use of force injuring the plaintiff could be relied upon to sustain the negligence claim. Id. (stating that
of
there was “no authority” for the proposition that “the conduct of officers not involved in the ultimate use of deadly force [can be] relied upon to show that an otherwise reasonable use
deadly force was unreasonable.”).
Plaintiffs’ Third Amended Complaint alleges a laundry list of generalized negligence theories without any specification as to how those theories apply to the only conduct relevant to Plaintiff Farmer’s claims Officer San Miguel’s reasonable decision to respond to a threat of violence by deploying a blast ball into an area near where Plaintiff Farmer was crouching behind a dumpster. See Dkt. 87 at 220-222 (alleging, for example, that the City negligently failed to “prohibit the disproportionate use of force against Black people, People of Color, and other historically marginalized people”). 15 To the extent that Plaintiffs’ general negligence theories allege negligent police conduct occurring outside of Plaintiff Farmer’s specific interaction with Officer San Miguel, they are inapplicable to Plaintiff Farmer’s claim and, in any event, barred by the public duty doctrine. See Koussaya, 54 Cal. App. 5th at 946 (declining to consider conduct of officers not involved in the use of force at issue); Beltran-Serrano, 193 Wn.2d at 551-52
(“Recognizing [a duty to exercise reasonable care during direct interactions] does not open the door to potential tort liability for a city’s statutorily imposed obligation to provide police services, enforce the law, and keep the peace. These statutory duties have always been, and will continue to be, nonactionable duties owed to the public at large.”). The remainder of Plaintiffs’ generalized negligence theories fail because Plaintiff Farmer cannot establish that Officer San Miguel’s conduct fell below a recognized standard of care.
Officer San Miguel, following established training, deployed a single blast ball toward an open area of sidewalk to prevent a suspicious individual from engaging in violent acts against herself or other officers. Prior to this deployment, officers had been taking projectiles from the crowd for almost an hour and had received reports of at least one individual with a gun in the crowd, as well as individuals with other improvised weapons. Moreover, as Plaintiff Farmer was well aware, the area was subject to a dispersal order which had been rebroadcast at least five
15 Plaintiff Farmer does not allege that he is a person of color.
times with minimal compliance. Given the ongoing violence, the crowd’s refusal to disperse, and the safety threats associated with the individual with the backpack, Officer San Miguel’s conduct was objectively reasonable. See, e.g., Black Lives Matter Seattle-King Cnty. v. City of Seattle, 505 F. Supp. 3d 1108, 1122 (W.D. Wash. 2020) (blast ball deployed into an “open space near [a] targeted individual” in response to a specific threat was “necessary, reasonable, [and] proportional”); Laney v. City of St. Louis, 56 F.4th 1153, 1156 (8th Cir. 2023) (use of pepper spray was reasonable despite fact that protester had begun backing away from officer he had confronted because officer who actually deployed pepper spray had an obscured view and “could have reasonably believed, based on what he could see, that the situation remained dangerous”).
b. Assumption of the Risk
Even if Plaintiff Farmer could maintain a negligence claim (he cannot), the doctrine of implied voluntary assumption of the risk bars his negligence claim. Plaintiff Farmer cannot recover on his negligence claim because he (1) had full subjective understanding (2) of the presence and nature of a specific risk, and (3) voluntarily chose to encounter that risk. See Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010); Dorr v. Big Creek Wood Prods., Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996) (“Those who choose to participate in [activities] likely to cause harm to the participant, for example, impliedly consent in advance to excuse the defendant from any duty to protect the participant from being injured by the risks inherent in such activity.”).
Here, Plaintiff Farmer had full subjective knowledge that he might be impacted by a blast ball and voluntarily chose to encounter that risk. Plaintiff Farmer testified that he heard explosions before leaving his house and was aware that SPD had dispersed crowds in the preceding days by deploying both blast balls and tear gas. Farmer Dep. 42:19-43:4. He further
testified that while standing on 11th Avenue, he recorded SPD issuing a dispersal order which, in relevant part, explicitly stated:
I am now issuing a public safety order to disperse and I command all those assembled at 10th and Pine and also on 11th just north of Pike to immediately disperse, which means leave this area. If you do not do so, you may be arrested or subject to other police action. Other police action could include the use of chemical agents or other less lethal munitions, which may inflict significant pain or result in serious injury. If you remain in the area just described, regardless of your purpose, you will be in violation of city and state law.
Vander Stoep Exs. E, J (emphasis added).
Plaintiff Farmer also testified that he had prior experience with dispersal orders and understood the risks associated with disobeying them. Farmer Dep. 54:12-55:4 (testifying that he left the WTO protests upon hearing an SPD dispersal order because he was aware that SPD would use less lethal tools to disperse the crowd). Yet, rather than leaving on June 7/8, Plaintiff Farmer moved closer to the area described in SPD’s dispersal order. Almost immediately upon arriving near Pine Street, Plaintiff Farmer observed two blast balls detonate in close proximity to the dumpsters behind which he alleges he sustained his injuries. Despite observing these explosions and having heard SPD’s warning that anyone remaining on Pine Street could be impacted by less lethal munitions, Plaintiff Farmer then walked into Pine Street and took up a position between those same dumpsters.
Plaintiff Farmer’s deposition testimony, photographs, and recordings from the June 7/8 incident date establish that he knew that (1) SPD had issued a dispersal order, (2) disobeying a dispersal order could result in his exposure to less lethal munitions, (3) SPD was in fact deploying less lethal munitions, and (4) SPD was deploying those munitions in the vicinity of the dumpsters on East Pine Street. Despite this knowledge, Plaintiff Farmer voluntarily chose to encounter the risk that he would be impacted by a blast ball when he disobeyed the dispersal
order and entered Pine Street to crouch between the dumpsters protesters unlawfully placed in the middle of the roadway. The doctrine of assumption of the risk accordingly bars his claim.
2. Assault and Battery
Plaintiff Farmer’s assault and battery claims should be dismissed because Officer San Miguel’s use of force was reasonable. To prove his battery claim, Plaintiff Farmer must establish: (1) the City acted intending to cause a harmful or offensive contact with him or a third party, or an imminent apprehension of such contact, and (2) a harmful or offensive contact with him directly or indirectly resulted. Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 504, 325 P.3d 193 (2014). To prove his assault claim, he must establish that (1) the City acted with the intent to put him in immediate apprehension of harmful or offensive contact, and (2) he actually had such an apprehension. See Sutton v. Tacoma School Dist. No. 10, 180 Wn. App. 859, 867, 324 P.3d 763 (2014).
Law enforcement officers are entitled to state law qualified immunity for assault and battery claims if the use of force underlying those claims was reasonable. See McKinney v. City of Tukwila, 103 Wn. App. 391, 408-09, 13 P.3d 631 (2000); Gallegos v. Freeman, 172 Wn. App. 616, 641-42, 291 P.3d 265 (2013) (holding that trial court correctly granted summary judgment on assault and negligence claims based on finding that force was reasonable under Fourth Amendment standard). In the context of an officer’s use of force, whether the officer acted reasonably depends on a variety of factors including: (1) the severity of the underlying offense, (2) whether the suspect poses an immediate threat to the safety of the officers or others, (3) the severity of injuries sustained, and (4) the availability of less intrusive alternatives to the force employed and whether warnings were given. See Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018); Estate of Lee ex rel. Lee v. City of Spokane, 101 Wn. App. 158, 167, 2 P.3d 979 (2000) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865 (1989)). “Of these factors,
the most important is whether the suspect posed an immediate threat to the safety of the officers or others.” Felarca, 891 F.3d at 817.
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Further, “[w]hat is reasonable in the context of a potential large-scale urban riot may be different from what is reasonable in the relative calm” of other situations. Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012); see also Felarca, 891 F.3d at 818 (noting that the “context of the officers’ actions must be considered” (citing Nelson v. City of Davis, 685 F.3d 867, 886 (9th Cir. 2012)); Barney v. City of Eugene, 20 F. App’x 683, 685 (9th Cir. 2001)
(unpublished) (use of tear gas following warnings to disperse was reasonable despite fact that only “small group of the crowd became violent”); Wise v. City of Portland, 483 F. Supp. 3d 956, 968 (D. Or. Sept. 2, 2020) (noting that police “are entitled to use some level of reasonable force” to effectuate a dispersal).
As discussed above, Officer San Miguel’s deployment of a single blast ball in response to an identified safety threat was reasonable. See, e.g., Dundon v. Kirchmeier, 577 F. Supp. 3d 1007, 1048, 1054 (D.N.D. 2021) (holding that “no reasonable juror could find the use of tear gas, rubber bullets, OC spray, and the like, was objectively unreasonable” where crowd remained in the area despite previous attempts to disperse them for dismantling a police barricade, lighting fires, and throwing projectiles at officers). Therefore, Plaintiff Farmer’s intentional tort claims should be dismissed on grounds of qualified immunity.
3. False Imprisonment
Plaintiff Farmer’s false imprisonment claim should be dismissed because he was neither arrested nor confined by the City. To state a cause of action for false imprisonment, Plaintiff Farmer must show that the City “intentionally confined him without justification.” See Dunn v.
Hyra, 676 F. Supp. 2d 1172, 1195 (W.D. Wash. 2009) (citing Bender v. Seattle, 99 Wn.2d 582, 664 P.2d 492 (1983)). Moreover, the confinement “must be complete”; if a plaintiff has a means of escape, even if it involves “a slight inconvenience,” they have not been confined. Restatement (Second) of Torts § 36 (1965). Plaintiff Farmer was not confined, and, indeed, does not even allege that the City confined him, at any point during his alleged incident. Rather, deposition testimony indicates that Plaintiff Farmer knowingly entered an area subject to a dispersal order and left that area shortly after he was allegedly impacted by a SPD-deployed blast ball. At no point was Plaintiff Farmer prohibited from leaving a defined area as required to support a claim of false imprisonment. See Farmer Dep. 167:1-4 (“Q. Okay. Did the Seattle Police Department ever prevent you from leaving a protest event during the year 2020? A. No.”).
4. Intrusion into Seclusion
Plaintiff Farmer’s “Intrusion into Seclusion” claim should be dismissed because he does not allege that he was arrested or that an officer conducted a search of his person or private personal property. Under the Court’s June 25, 2021, Order, only Plaintiffs alleging “pretextual arrest and intrusive searches of their bodies or private personal property attendant allegedly unlawful arrests” were entitled to maintain “Intrusion into Seclusion” claims. Dkt. 141. As Plaintiff Farmer makes no such allegations, this claim should be dismissed.
C. Plaintiff Farmer’s Claims for Injunctive Relief Under the Washington Constitution Should Be Dismissed
Plaintiff Farmer’s claims for injunctive relief under article I, sections 4 and 7 of the Washington Constitution should be dismissed. 16 “An injunction is an extraordinary equitable
16 All Plaintiffs’ constitutional claims for damages were dismissed on February 19, 2021. Dkt. 45; see also Wright v. Airway Heights Corr. Ctr. MSU, 2:20-CV-00436-MKD, 2022 WL 17543678, at *7 (E.D. Wash. Dec. 8, 2022) (granting summary judgment on claims under the Washington Constitution because there is no “cause of action created by Washington law” for “violations of state constitutional rights”).
remedy designed to prevent serious harm; its purpose is not to protect a plaintiff from mere inconveniences or speculative and insubstantial injury.” DeLong v. Parmelee, 157 Wn. App. 119, 150, 236 P.3d 936 (2010). A party seeking injunctive relief must show: “(a) a clear legal or equitable right, (b) a well-grounded fear of immediate invasion of that right, and (c) that the act complained of will result in actual and substantial injury.” Huff v. Wyman, 184 Wn.2d 643, 651 P.3d 727 (2015). “Failure to establish any one of these requirements results in a denial of the injunction.” Id. at 651. Moreover, “injunctive relief will not be granted where there is a plain, complete, speedy and adequate remedy at law.” Kucera v. State, 140 Wn.2d 200, 209, 995 P.2d 63 (2000).
In support of their request for injunctive relief Plaintiffs generally alleged that the “BLM/George Floyd Protests” are ongoing, and that “[n]umerous Plaintiffs are reluctant to continue protesting or have stopped protesting altogether because of injuries they have suffered and fear of similar future conduct by the SPD.” Dkt. 87 at 229-30, 233-34. However, Plaintiff
Farmer testified that following his alleged June 7/8 incident, he returned to the protests on multiple occasions without incident or injury. Farmer Dep. 163:19-166:12. Moreover, Plaintiff Farmer testified that he did not “attend” the protests, but rather went as an observer with the intent to photograph the event:
Q. So was your incident on June 7th and 8th the first time that you joined one of the protests?
A. I’m not sure about the word ‘join.’
Q. Okay.
A. But I will say yes and no to that question. I directly – I purposely went there to see it, observe it.
Farmer Dep. 40:12-18.
Q. You mentioned that you did attend other protest events after your incident on June 7th, 8th. When did you – what other protest events did you attend between June 9th and December 31st, 2020?
A. Well, I’m – I’m going to challenge you on the – on the word “attend” again. … I did go observe and photograph others after that, correct. Farmer Dep. 46:5-13.
Q. Okay. When you were on Capitol Hill, observing the protest and – would you say that you started to participate in the protest when you joined in the chanting?
A. Not really. … I was really more interested in documenting. Farmer Dep. 95:3-19. Here, Plaintiff Farmer is not entitled to injunctive relief, because he cannot establish a “well-grounded fear of immediate invasion” of a legal or equitable right. Plaintiff Farmer testified that he did not “attend” the protests as a protester, and that he continued to go to protest events to observe following his alleged incident on June 7th and 8th. As Plaintiff Farmer cannot establish that SPD’s actions prevented him from attending protest events or in any way chilled his free speech, his claim for injunctive relief should be denied.
D. Plaintiff Farmer’s Claims under the Seattle Municipal Code Should Be Dismissed
1. Biased Policing
To establish civil liability under the Seattle Municipal Code for biased policing, Plaintiff Farmer must show that a police officer acted with an intent to discriminate against him based on his race, ethnicity, ancestry, religion, national origin, color, creed, age, alienage or citizenship status, immigration status, sex, gender identity, sexual orientation, disability, or political ideology. See SMC 14.11.050(B); SMC 14.11.020. Further, the City must be unable to show that the officer had a legitimate, non-discriminatory reason for the act. SMC 14.11.050(B).
First, Plaintiff Farmer’s claim should be dismissed because he cannot demonstrate that a police officer discriminated against him based on one of the above listed characteristics. Plaintiff Farmer allegedly sustained an injury when a blast ball deployed by an SPD officer errantly bounced underneath a dumpster behind which he was crouching. As he was not the intended target of the deployment, he cannot establish that the use of force was in any way related to Officer San Miguel’s intent to discriminate against him. Moreover, Plaintiff Farmer consistently maintained that he attended the June 7/8 event as an “observer,” rather than based on any political ideology or affiliation, and disclaimed any belief regarding why force was used against him. See Farmer Dep. 95:3-19 (testifying that he attended the protest as an observer); Farmer Dep. 167:5-7 (“Q. In your view, what motivated the use of force that caused your injury?
A. I don’t know.”).
Second, Officer San Miguel had a legitimate, non-discriminatory reason for deploying the blast ball that allegedly impacted Plaintiff Farmer. Officer San Miguel’s body worn video reflects officers’ concern that the individual hiding behind the nearby parking sign rummaging through a backpack intended to assault SPD officers. Officer San Miguel targeted an open area near this individual with a blast ball to deter his actions and get him to leave an area that was subject to an active dispersal order. As Plaintiff Farmer cannot establish that he was discriminated against based on a protected characteristic, and Officer San Miguel had a legitimate, non-discriminatory reason for deploying the blast ball, Plaintiff Farmer’s biased policing claim should be dismissed.
2. Communicating False or Derogatory Information
To establish liability under the Seattle Municipal Code for communicating false or derogatory information, Plaintiff Farmer must show that (1) a City official willfully communicated false or derogatory information, (2) while acting in the course and scope of their
duties, (3) with the intention of disrupting a lawful political or religious activity, and (4) that this false or derogatory communication proximately caused him injury. SMC 14.12.350. Plaintiff Farmer testified that he was unaware of any false statement made by SPD. Farmer Dep. 167:810 (“Q. Are you aware of any false statements that have been made by the Seattle Police Department? A. I don’t know.”). Plaintiff Farmer also confirmed that his only claims against the City stemmed from the injury he allegedly suffered on June 7/8. Farmer Dep. 53:4-13. Absent any evidence of a personal injury caused by an intentional, false, or defamatory statement, Plaintiff Farmer cannot establish the essential elements of his claim.
E. Plaintiff Farmer’s Claim under the WLAD Should Be Dismissed
Plaintiff Farmer’s claim under RCW 49.60.215 17 should be dismissed. To establish a prima facie claim under RCW 49.60.215, Plaintiff Farmer must show that (1) he is a member of a protected class, (2) in a place of public accommodation controlled by the City, (3) the City discriminated against him when it did not treat him in a manner comparable to the treatment it provided to persons outside his class, and (4) his protected status was a substantial factor that caused the discrimination. See Floeting v. Group Health Coop., 192 Wn.2d 848, 853, 434 P.3d 39 (2019). Moreover, “[t]o be actionable, the asserted discriminatory conduct must be objectively discriminatory. … [I]t must be of a type, or to a degree, that a reasonable person who is a member of the plaintiff’s protected class, under the same circumstances, would feel discriminated against.” Id. at 858 (adopting standard set out by Court of Appeals).
While the City maintains that Washington law does not recognize an “associational” or “derivative” cause of action for public accommodation discrimination for those allegedly engaged in advocacy on behalf of members of a protected class, the Court does not need to
17 On February 19, 2021, the Court dismissed all of Plaintiffs’ WLAD claims except those made under RCW 49.60.215. Dkt. 45.
consider that issue here. As noted above, Plaintiff Farmer repeatedly testified that he did not attend the protests as a participant, but rather to satisfy his personal “curiosity” about what was occurring. Given that Plaintiff Farmer is not a “member of a protected class” or even engaged in advocacy on behalf of members of a protected class, he cannot establish a prima facie claim of public accommodation discrimination. Moreover, Plaintiff Farmer was allegedly injured after he knowingly entered an area subject to an active dispersal order. Plaintiff Farmer cannot establish that SPD reacted any differently towards him than it did to anyone else engaged in similar conduct regardless of any protected status, nor can he show that any protected class status was a substantial factor in the use of force that allegedly impacted him. See, e.g., Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 524-26, 20 P.3d 447 (2001) (noting that, to survive summary judgment, plaintiff needed to produce competent evidence that defendant’s conduct towards him differed from individuals outside protected class).
V. CONCLUSION
For all of the foregoing reasons, the City respectfully requests that the Court grant summary judgment on all of Plaintiff Farmer’s claims.
I certify that this memorandum contains 8,077 words, in compliance with the Local Civil Rules.
DATED this 17th day of March, 2023.
Seattle City Attorney
By: /s/ Ghazal SharifiGhazal Sharifi, WSBA# 47750
Joseph Groshong, WSBA# 41593
Assistant City Attorneys
E-mail: ghazal.sharifi@seattle.gov
E-mail: Joseph.Groshong@seattle.gov
Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
Phone: (206) 684-8200
Attorneys for Defendant City of Seattle
K&L GATES LLP
By: /s/ Mark S. Filipini Mark S. Filipini, WSBA No. 32501 mark.filipini@klgates.com
Martha J. Dawson, WSBA No. 11795 martha.dawson@klgates.com
G. William Shaw, WSBA No. 8573 bill.shaw@klgates.com
Kari L. Vander Stoep, WSBA No. 35923 kari.vanderstoep@klgates.com
Ryan J. Groshong, WSBA No. 44133 ryan.groshong@klgates.com
Attorneys for Defendant City of Seattle
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of March, 2023 I caused the following documents to be served by email:
1. Motion for Summary Judgment regarding Plaintiff Farmer;
2. Proposed Order;
3. Declaration of Kari Vander Stoep ISO Motion for Summary Judgment regarding Plaintiff Farmer;
4. Declaration of John Brooks ISO Motion;
5. Declaration of Martha Dawson ISO of Motion and Exhibits there to.
In addition, exhibits that could not be scanned via the court’s ecf filing system were served via FTP site to plaintiffs and thumb drives were delivered to Judge Ramsayer.
Counsel for Plaintiffs
Co-Counsel for Plaintiff Widmayer
Karen A. Koehler
Shannon M. Kilpatrick
Lisa Benedetti
Melanie Nguyen
Fred Rabb
Gemma N. Zanowski
Furhad Sultani
STRITMATTER KESSLER KOEHLER MOORE
3600 15th Avenue W., Suite 300 Seattle, WA 98119
karenk@stritmatter.com
shannon@stritmatter.com
lisa@stritmatter.com
melanie@stritmatter.com
fred@stritmatter.com
gemma@stritmatter.com
furhad@stritmatter.com
anner@stritmatter.com
kristinm@stritmatter.com
katie@stritmatter.com
alysha@stritmatter.com
Counsel for Plaintiffs
Sarah Lippek
LAW OFFICES OF SARAH LIPPEK
PLLC
3815 S. Othello Street, Suite 100-378 Seattle, WA 98118
lippek@protonmail.com
Co-Counsel Plaintiff Widmayer
Neil T. Lindquist
KORNFELD TRUDELL BOWEN & LINGENBRINK, PLLC
3724 Lake Washington Boulevard NE Kirkland, WA 98033
neil@kornfeldlaw.com
Pro Se Plaintiff Megan Buss
Megan Buss
5913 Rainier Avenue S., Suite 304 Seattle, WA 98118
☒ via ECF
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☒ via ECF
☐ via Email
☐ via U.S. Mail
☐ via Facsimile
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☐ via ECF
☐ via Email
☒ via U.S. Mail
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DATED this 17th day of March, 2023.
Dawnelle Patterson Dawnelle Patterson Sr. Practice Assistant