HONORABLE JUDITH RAMSEYER
SUPERIOR COURT OF WASHINGTON FOR KING COUNTY
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, JENNA KINYON, BEN KOENIGSBERG, JACOB KOENIGSBERG, SETH KRAMER, DANIEL LUGO, JACOB
MARTIN, JOSHUA MATNEY, CHLOE
MERINO, LOGAN MILLER, TONI MILLS, ALESSANDRA MOWRY, KELSEY MURPHYDUFORD, WESLEY PEACOCK, JORDAN A. PICKETT, CHARLES PIERCE, DANIEL
PIERCE, 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,
CITY OF SEATTLE, a governmental entity; Defendant.
NO 20-2-14351-1 SEA
PLAINTIFFS’ OPPOSITION TO DEFENDANT CITY OF SEATTLE’S MOTION FOR SUMMARY JUDGMENT RE: PLAINTIFF EDWARD “NED” FARMER
I. RELIEF REQUESTED
Plaintiff Ned Farmer was injured by the Seattle Police Department when he was targeted by a blast ball while peacefully participating in the June 7-8, 2020 protests for racial justice and against police brutality. Defendant admits that it had no basis for using force against him, other than he it was his fault for participating in the protests in proximity to someone the evidence shows the officer considered suspicious for no articulable reason. This blame the victim tactic used by the City here is an odious and cynical attempt to justify the SPD’s failure to follow the constitution, its own policies, and standard police training and practices. The SPD’s shoot first and ask questions later attitude about the use of force on peaceful protesters is or at least should be offensive to a civil society that values the rule of law.
Law enforcement must permit peaceful protesters to exercise their constitutional rights to free speech and assembly even when that speech is aimed at the police. Before law enforcement may use force against someone, they must have reasonable suspicion that a serious crime is being or about to be committed. The force an officer uses must be reasonable, necessary, and proportionate to the circumstances. Plaintiff’s evidence, including a declaration from a police expert, demonstrates that none of those requirements were met. The force that injured Ned Farmer was not based on reasonable suspicion and was unreasonable, unnecessary, and completely out of proportion with the vague wrongdoing alleged by police. Plaintiff’s evidence thus creates a genuine issue of material fact about whether the use of the blast ball that injured Ned was reasonable and fell below the standards required of law enforcement in this state. Defendant’s motion for summary judgment must be denied.
II. STATEMENT OF FACTS 1
The Seattle Police Department has a long history of excessive use of force, so much so it was sued by the Department of Justice and entered into a consent decree in 2012. For greater context about the Seattle Police Department’s history of excessive use of force—and how it fits in with this case please see the Declaration of Karen Koehler, pages 2-13.
Edward “Ned” Farmer, was born in 1965, graduated from the University of Michigan, and moved to Seattle in 1989. 2 He received a master’s degree in psychology and attended a PhD program but before his dissertation was completed, his progress in the program was interrupted by
1 Defendant’s version of the “facts” is remarkably one-sided for a party who claims there is no genuine issue of material fact. Plaintiff Ned Farmers offers his version of events to provide the Court important context.
2 See the accompanying Declaration of Karen Koehler in Support (hereinafter “Koehler Declaration”) PL-1521-22 (13:1 – 14:12).
his need to share caregiving responsibilities for his Alzheimer-stricken father. 3 Included in his studies was a year of internship at the University of Washington in its family medicine residency in psychology and learning behavioral health consultation. 4 For the past 25 years he has lived in Capital Hill with his wife and adult son within walking distance of the East Precinct. 5
For 30 years Mr. Farmer worked for Navos, a health care agency, leaving in December 2022 due to the agency’s financial problems. 6 When the pandemic started, he was approved to work from home in part due to atrial fibrillation – a heart condition that required surgery. 7 He provided psychotherapy, supervised graduate students, and managed the crisis center. 8
B. Mr. Farmer paid particular attention to the aftermath of George Floyd’s murder.
Mr. Farmer followed the news closely after George Floyd was murdered. He had subscriptions to the New York Times, Washington Post, Muskegon Chronicle, Detroit Free Press, Seattle Times, The Economist, Wall Street Journal, as well as the Capital Hill Blog. 9 He followed the news because “it was such a huge story, and it did seem historic that maybe this might be something that changes people’s mindset.” 10
Although he did not follow social media or know about streaming before his injury, he lived in an area where there was protest activity. 11 One day he followed a bicycle group for a few blocks. 12 He saw a number of marches “and I’d watch and applaud.” 13 For months things would
3 PL-1522-1524 (14:12-25; 15:15-16:11).
4 PL-1524-1525 (16:12-25. 17:1-23)
5 PL-1526 (20:3-25); PL-1532 (33:20-25).
6 PL-1527.
7 PL-1528-29 (25:3-25; 26:1-4).
8 PL-1529 (26:14-24); PL-1530 (31:1-25)
9 PL-1531-1532 (32:21-25; 33:1-5).
10 PL-1532 (33:14-19)
11 PL-1534 (37:10-24)
12 PL-1535 (38:16-25)
13 PL-1536 (39:2-4)
“pop up out of nowhere. All of a sudden, I’d hear two, three hundred people walking down the street, chanting, just out of the blue.” 14 He particularly remembered how impressed he was to watch “young people, high schoolers” perhaps 500-800 of them marching down 15th Avenue and they were “peaceful very organized.” 15 He never observed protesters throwing objects at the police. 16
C. Mr. Farmer first participated in a protest on June 7, 2020.
On June 7, 2020, he joined the protests for the first time. He described it this way:
[T]here was an enormous buzz in the air. For lack of other ways to describe it, you could hear explosions. You could hear helicopters. You could hear the people. It was – you just - - you couldn’t avoid it. You couldn’t ignore it…that is the context of the amount of, I guess, stimulation in the environment of noise, explosions.
And also, yeah, I was aware of the news. And I do recall, this was the second night. Maybe it was the eight night. But the night before, I know that it was pretty loud.
And I did know about the tear gas and all that, and that there were National guard. There were – there were hundreds and hundreds of people not far from the house. 17
He did not recall being aware on June 7th, the SPD had used tear gas that day. It may have been in the news but it didn’t “seem to stick out in [his] memory like, “oh, my God, there’s tear gas down there.” 18 He did not know if the SPD had tried to disperse the protesters. 19 At the time he did not know the difference between the noises that tear gas or a flash bang would make. 20
14 PL-1536 (39:2-25).
15 PL-1537 (40:2-11)
16 PL-1541 (46:1-4).
17 PL-1538 (41:8-25)
18 PL-1539 (42:13-18)
19 PL-1539 (42:19-23)
20 PL-1540 (44:1-6)
From his house he could hear police on bullhorns but couldn’t hear what they were specifically saying, and to him it was just part of the noise that was going on during those times. 21
On June 7, 2020, Mr. Farmer watered the garden, ate dinner, then walked about five to eight minutes to the protest zone around midnight. 22 Mr. Farmer was wearing blue pants, perhaps Teva sandals, and a brown leather coat. 23 He wore eyeglasses and a N95 mask to protect from Covid, but no hat, helmet, or goggles. 24 Nor did he have a bag, umbrella, or sign. 25
Initially, he was on the northeast edge of Cal Anderson Park. Looking down the street he could see a “very large group of police officers, and police trucks at the intersection at the end of the block.” He took some photographs with his Nikon D750 full frame digital camera with a Nikon 14 to 24 millimeter lens attached to it and videos with his iPhone 26 Other than the officers, there was “virtually nobody” else there. 27 He decided to leave, but “oddly” shouted: “Hey, I support the police.” 28
During one of his videos taken between 12:30-12:45 am, 29 the audio was difficult to decipher, but Mr. Farmer said: “‘Fucking’ something or another… or about the gas, ‘turn your head.’” 30
By the time of that video Mr. Farmer was aware the police had deployed tear gas but remained curious and wanted to get photographs. 31
21 PL-1540 (44:16-23).
22 PL-1533-1534 (36:3-37:3); PL-1542 (56:18); PL 1817 (69:12-16)
23 PL-1543 (59:1-3).
24 PL-1543-1544 (59:4-60:3)
25 PL-1544 (60:6-9).
26 PL-1542 (56:3-10); PL-1544 (60:13-15); PL-1545 (61:1-10)
27 PL-1545 (61:16-23).
28 PL-1546 (62:12-13)
29 PL-1548.
30 PL-1547 (71:1-25); PL 1548 (72:8-12).
31 PL-1549 (73:19-24); PL-1508
He does not remember hearing the police order dispersal though he later heard it when listening to video he had taken that night. 32 Protesters were “not doing anything.” 33
He then walked west through Cal Anderson Park and ended up with the protesters standing on Pine Street. They were in a group chanting “Hands up. Don’t shoot.” Mr. Farmer walked around taking pictures of them and the police. 34
32 Id. PL-1549-1550 (76:7-77:25)
33 Id. PL-1551 (80:1-3)
34 Id. PL-1551 (80:3-20); PL-1552 (81:15-18); PL-1553 (83:13-25); PL-0159
In one of the videos before his injury, (Ex. 461 IMG 0255.mp4) blast ball explosions were captured, though Mr. Farmer doesn’t recall seeing them at the time. 35
Mr. Farmer took a photograph at 12:50 a.m. showing the police facing west and a group of protesters 36(Ex 463) IMG 0259.JPG). The BLM protesters were being led by a man and were “chanting slogans to the police, who were over there, saying, “We’re not armed. Don’t shoot. Hands up, don’t shoot.” 37 Mr. Farmer may have chanted with the BLM group a few times while he positioned himself to take photographs. “I probably shouted, you know, with the chant. I seemed to recall doing that.” 38
Mr. Farmer did not see protesters throw objects at the police, break windows, write graffiti, or light fires. 39
35 PL-1554 (86:1-17); PL-1818 (87:8-14); PL-1516.
36 PL-1555-1556 (92:6-93:25); PL-01515.
37 PL-1556 (93:1-8)
38 PL-1557 (94:11-16); PL-1558 (95:12-19); PL-1516.
39 PL-1559-1560 (96:14-97:3)
D. Farmer is injured by a blast ball.
Mr. Farmer wanted to get a good photo, so he went into the street between the police line and protesters, down on his knee, and snapped one. He was roughly 10-15 feet from the protesters and 85 feet from the police. 40 He ended up standing by dumpsters. (Ex 462 IMG 0256). 41
40 PL-1560 (97:9-11); PL-1561 (98:1-23)
41 PL-1819 (91:12-23); PL-1507; PL1510; PL-1516.
There were a few people there including a person with an over the shoulder professional camera. 42
He recalls a dispersal order at 11th Avenue East, but he did not appreciate many details that appear in the videos at the time he was filming and was “surprised” to see them. 43 He did not notice a man run to the dumpsters with a backpack. 44
As he was fiddling with his camera there was an explosion “right on top of me, at at my feet in this little space.” 45 It was a blast ball. 46 Mr. Farmer fell to the ground on the left side of the dumpsters. 47 He recalled the events this way:
I recall explosion, and it was sort of allegorically, I don’t know, like I was in a dream world. This explosion, light, like a – like a firework, like I was in the middle of a huge firework, and I’m next thing – I’m sort of on the ground.
42 PL-1562-1563 (99:16-100:7)
43 PL-1566 (112:3-17); PL-1567 (118:18-24).
44 PL-1820 (110:17-22)
45 PL-1563 (100:16-22); PL-1511.
46 PL-1564 (101:1-5); PL-1512.
47 PL-1821 (120:6-7)
….
I was very disoriented. I didn’t know what was happening… [L]ike in Saving Private Ryan, when Tom Hanks is walking up the beach, and there’s this period where all of this stuff is happening, and there’s no noise, and it’s just silence…” 48
48 Id. PL-1568 (121:6-23)
Mr. Farmer was transported by a good Samaritan to Harborview where he was diagnosed with a concussion and rapid heart rate. 49 He later developed anxiety, depression, fear, poor sleep, nightmares, irritability, and hypervigilance to noises. 50
When asked legalistic questions by the defense regarding invasion of privacy, false statements, whether the protest attendance had anything to do with how he was treated at work –Mr. Farmer demurred. 51
E. Other witnesses corroborate Mr. Farmer’s version of events.
Plaintiff Joey Wieser 52 also attended the protests that evening 53 and filmed Mr. Farmer.
At all times in that video, Mr. Farmer was seen with his camera, peacefully watching and documenting the protests 54
Mr. Wieser testified that it was “noisy” and “chaotic.” 55 The police were in a line. The protesters throughout the night would move forward, and the SPD would say move back on the PA. The protesters would sometimes respond with you move back. 56
Mr. Wieser testified that he saw the police throw a blast ball behind the dumpster toward Mr. Farmer, who Mr. Wieser referred to as “the photographer, independent media journalist guy,” and it appeared to him the officers specifically targeted Mr. Farmer with the blast balls 57
49 PL-1569 (127:11-25).
50 PL-1570 (135:3-8)
51 PL-1571 (167:1-24).
52 Wieser’s claims are not the subject of the City’s motion.
53 Kilpatrick Decl. PL-1829 (94:5-25).
54 Koehler Decl. PL-1816.
55 PL-1652 (98:14-17); Kilpatrick Decl. PL-1832 (104:19-23)
56 Kilpatrick Decl. PL-1830-1831 (98:1–99:25)
57 PL-1833-1834 (124:21-125:2)
III. EVIDENCE RELIED UPON
This motion relies on the Declaration of Karen Koehler and attached exhibits, the Declaration of Russ Hicks and attached exhibits, the Declaration of Shannon Kilpatrick and attached exhibits, and the papers and pleadings on file.
IV. AUTHORITY & LEGAL ANALYSIS
Summary judgment is appropriate only when “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.” CR 56(c); Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (2014). “A material fact is one upon which the outcome of the litigation depends in whole or in part.” Atherton
Condo. Apartment-Owners Ass’n Bd. Of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). In determining whether a genuine issue of material fact exists, the Court must view all facts and draw all reasonable inferences in favor of the nonmoving party – in this case, Plaintiff
Ned Farmer Owen v. Burlington N. Santa R.R. Co., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005). Only when reasonable minds could reach but one conclusion from the evidence presented is summary judgment appropriate. Davis v. Niagara Mach. Co., 90 Wn.2d 342, 348, 581 P.2d 1344 (1978).
Summary judgment is particularly inappropriate when credibility issues are at stake, like here. If the facts presented by the parties require the Court to weigh credibility on any material issue, then summary judgment is improper. Douglas J. Ende, 14A Wash. Prac., Civil Procedure § 25:16 (3d ed.); see also Powell v. Viking Ins. Co., 44 Wn. App. 495, 503, 722 P.2d 1343 (1986) (finding summary judgment improper where conflicting statements raised seriously a credibility problem as to an important issue in the case); Acosta v. City of Mabton, 2 Wn. App. 2d 131, 135,
408 P.3d 1095 (2018) (trial court’s summary dismissal was improper where a trier of fact could reasonably disbelieve the moving party’s witnesses). If “different inferences may be drawn [from evidentiary facts] as to ultimate facts such as intent, … a summary judgment would not be warranted.” Preston v. Duncan, 44 Wn.2d 678, 681-82, 349 P.2d 605 (1960).
A. Summary judgment on Plaintiff’s negligence claim is inappropriate because he has raised a genuine issue of material fact on key issues.
The City argues both that reasonable minds cannot differ that it did not breach a duty to Plaintiff Ned Farmer, and also that the City had no duty to Ned Farmer because he assumed the risk for his injuries by participating in the protest. Both arguments are wrong.
1. Plaintiff has provided evidence contesting the reasonableness of the use of force that injured Ned.
When considered in the light most favorable to Ned Farmer, the evidence establishes a genuine issue of material fact whether the City of Seattle breached a duty to him, including whether the SPD officers’ response and actions were reasonable. The testimony from Ned and Joey which must be taken as true shows that Ned was peaceful and did nothing other than peacefully participate in the protests and take photographs. Further, Plaintiffs’ police expert, Russ Hicks, contests many of the allegations relied upon by the City as the basis for its motion.
He opines that the SPD had no legal basis to use force against Ned Farmer or anyone in his proximity because the officers had no specific and articulable suspicion a serious crime was about to be committed. The force used did not follow SPD policy or the standards required of law enforcement. The evidence shows under the totality of the circumstances the use of force that injured Ned was not necessary, reasonable, or proportionate, which is a breach of the officer’s duty to act reasonably.
To establish a negligence claim, a plaintiff must establish (1) a duty, owed by the defendant to the plaintiff, to conform to a certain standard of conduct; (2) a breach of that duty;
(3) a resulting injury; and (4) proximate cause between the breach and the injury. Reynolds v. Hicks, 134 Wn.2d 491, 495, 951 P.2d 761 (1998). The City of Seattle is held to the same duty as any other person. See RCW 4.96.010, RCW 4.92.090. It has “a general duty of care, that of a ‘reasonable person under the circumstances.’” Keller v. City of Spokane, 146 Wn.2d 237, 243, 44
P.3d 845 (quoting Dan B. Dobbs, The Law of Torts § 228, at 580 (2000)). Washington courts have “long recognized the potential for tort liability based on the negligent performance of law enforcement activities.” Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 543, 442 P.3d 608 (2019)
In Beltran-Serrano, an officer approached a man standing on the corner of an area where the police had received multiple complaints about panhandlers. The officer had no probable cause or reasonable suspicion to believe he had done anything illegal. Beltran-Serrano was a Spanish-speaker and suffered from mental illness. Despite radioing for a Spanish-speaking officer, the officer continued to try to speak with him in English. He became scared and ran away, and the officer shot him in the back with a stun gun, which did not stop him. She then pulled out her gun and fired multiple shots until Beltran-Serrano fell to the ground.
In a lawsuit, Beltran-Serrano “alleged that the officer improperly, unreasonably, and unnecessarily escalated the situation, and that the City failed to properly train and supervise officers to deal with the mentally ill and to exercise appropriate force.” Id. at 542. The City successfully moved for summary judgment that it owed no duty to plaintiff.
The Supreme Court noted the common law has always imposed upon everyone “a duty of reasonable care to refrain from causing foreseeable harm in interactions with others.” Id. at 550.
This duty applies to law enforcement and “encompasses the duty to refrain from directly causing harm to another through affirmative acts of misfeasance.” Id. Accordingly, the court held that the City and the officer owed Beltran-Serrano a duty in tort to act with reasonable care because his claims arose “out of Officer Volk’s direct interaction with him, not the breach of a generalized public duty.” Id. at 551.
The court held that negligence claims against law enforcement “require consideration of the totality of the circumstances involved in the encounter between [the officer] and [the plaintiff],” to “identify potential negligence in the series of actions leading up to the decision to shoot.” Id. at 545.
Defendant suggests that what occurred when the officer deployed the blast ball does not legally amount to an interaction that imposes upon the officer a duty to use reasonable care. This argument defies common sense. When taken to its logical conclusion, the City is implying that if an officer shoots randomly into a crowd of people, anyone hurt or killed has no claim because no words were exchanged between them and the officer. In reality, the act of deploying a blast ball or using any kind of force on someone is an affirmative act on the part of the officer that requires her to refrain from causing foreseeable harm to others. Any other result would be nonsensical.
Further, state law and SPD policies require any force used to be reasonable, necessary, and proportionate. RCW 9A.16.020(1) permits the use or attempted use of force only when “necessarily used by a public officer in the performance of a legal duty.” And the Department’s own policy requires that officers “only use the force reasonable, necessary, and proportionate to effectively bring an incident or person under control, while protecting the lift [sic] and safety of all persons.”
Plaintiffs’ expert Russ Hicks provides his expert opinion that the force used against Ned Farmer was not reasonable, necessary, or proportionate under the circumstances. Russ Hicks has 30 years’ experience in law enforcement, including more than 15 years working at the police academy teaching recruits the basics of policing. 59 As Hicks explains in his declaration, SPD policy and standard police practices required any use of force to be reasonable, necessary, and proportionate and must be preceded by attempts at de-escalation. 60 Analyzing the information available to the officers at the time, Hicks found that the SPD lacked the justification to use any force, much less an explosive like a blast ball. 61 Russ Hicks’ opinions are as follows:
• Reasonable police practices do not permit officers to use “less lethal” weapons like blast balls, pepper spray, and tear gas for minor criminal activity.
• There was no allegation by the City that Mr. Farmer was engaged in any criminal activity or dangerous conduct, other than perhaps failing to comply with a dispersal order, which is only a simple misdemeanor. 62
• The City’s claim to have been targeting another individual near Mr. Farmer was not supportable because the target was 75 feet away and the officers’ views of him were obstructed. The officers could not see what the target was doing, other than he was apparently rummaging through his backpack, which is not a crime. The City had no evidence the target had done anything wrong or had threatened officers. 63
59 Hicks Decl. ¶¶ 2-5; Ex. 1.
60 Id. ¶¶ 46-52.
61 Id. ¶¶ 22-56.
62 Id. ¶¶19-20
63 Id. ¶¶ 29-35, 40-45.
• Without any evidence, the officers lacked reasonable suspicion, defined as particularized articulable facts and circumstances leading a reasonable officer to believe criminal activity is about to occur. Without reasonable suspicion that a crime was about to occur, the SPD had no justification to use force against the target. 64
• Further, the force used by Officer San Miguel failed to comply with SPD policies and standard police practices. Absent exigent circumstances officers must give a warning before deploying the blast ball, but she did not. Absent exigent circumstances, blast balls are not to be deployed in proximity to others who do not pose a risk to public safety, but she did. 65
Hicks’ opinions are also supported by findings made in the Consent Decree litigation by the Seattle Police Department Monitor in 2022. The Monitor found “during its response to protests and unrest beginning in May 2020 …. SPD at times did not comply with its policies mandated by the Consent Decree relating to de-escalation, use of force decision-making, officer force reporting, and supervisory review of force. 66 More specifically, the Monitor noted: “It appeared that the Department sometimes used force against the protest crowds generally, when only certain individuals amidst the crowd may have been committing criminal acts. In all, these actions too often served to escalate rather than de-escalate these situations, further emphasizing the very topic protestors were marching against and making future protest management all the more difficult.” 67
64 Id. ¶¶ 37-45.
65 Id. ¶¶ 35-36, 46-48.
66 Koehler Decl. PL-1698.
67 PL-1699.
And particularly relevant here, the Monitor found that “SPD used tools like blast balls, tear gas, and OC spray against crowds sometimes in an indiscriminate manner with insufficient justification in reporting for such actions. As described later in this report, SPD’s application of less-lethal instruments in 2020 was more than eight times greater than any year dating back to 2015, the first full year of use of force data under the Consent Decree.” 68 This evidence directly contradicts the City’s claim that the force used that injured Ned was reasonable, thus creating a genuine issue of material fact on Plaintiff’s negligence claim.
2. The City is not entitled to a finding as a matter of law that Farmer assumed the risk of his injuries such that it owed him no duty.
The City first argues its officers responded in an “objectively reasonable” manner and did not breach a duty to Ned Farmer; but then it also argues that Ned Farmer somehow assumed the risk he would be injured by the SPD such that the City owed him no duty at all That this argument is made on behalf of the City of Seattle a government and taxpayer funded entity against its own resident is offensive, deeply problematic, and insulting.
To be clear, the City argues that because Ned Farmer knew what could happen that he could be injured by a blast ball shot at him by the SPD even though he did nothing wrong he thus should have stayed away or left early. In essence, the City claims it has a right to disregard the state and federal constitution because someone in the crowd might act improperly and cause the SPD to overreact and harm others peacefully protesting. This argument is especially offensive because many of the protesters were there because they objected to the SPD’s inappropriate violence in its handling of prior George Floyd/racial justice protests. The City is taking a blame
the victim approach and seeks to make the peaceful protesters responsible for the actions of the SPD instead of the SPD itself. Assumption of risk cannot and should not apply to this situation.
There are four types of assumption of risk: (1) express assumption of risk; (2) implied primary assumption of risk; (3) implied reasonable assumption of risk; and (4) implied unreasonable assumption of risk. Alston v. Blythe, 88 Wn. App. 26, 32, 943 P.2d 692 (1997). The first two types, express and implied primary assumption of risk, arise when a plaintiff consents to relieve the defendant of a duty it owed to the plaintiff regarding specific known risks. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010). The third and fourth types of assumption of risk have been subsumed into the concept of contributory negligence and operate to reduce damages as an element of comparative fault. Kirk v. Washington State Univ., 109 Wn.2d 448, 454, 746 P.2d 285 (1987). The only factor raised by Defendant here is (2) implied primary assumption of risk.
Implied primary assumption of risk is a complete bar to recovery for the risk assumed. Gregoire, 170 Wn.2d at 636. Because of the bar, courts must construe the doctrine narrowly.
Lascheid v. City of Kennewick, 137 Wn. App. 633, 641, 154 P.3d 307 (2007).
Implied primary assumption of risk applies when a plaintiff “has impliedly consented” to release the defendant of a duty. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992). It requires three elements of proof: “The evidence must show the plaintiff (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.” Kirk, 109 Wn.2d at 453.
Implied primary assumption of risk does not apply where, as here, (1) there is evidence the defendant’s negligence caused Plaintiff’s injuries and not the inherent risks of the activity, (2) applying primary implied assumption of risk to this scenario would violate the law and public
policy, and (3) there is evidence Plaintiff did not fully and subjectively understand the specific risks.
a) Implied primary assumption of risk is legally inapplicable to a situation, like here, where the City’s negligence and not the risks inherent to peacefully protesting caused Mr. Farmer’s injuries.
Defendant argues that because Farmer had some sense that the protest could potentially get violent, he voluntarily assumed the risk for that harm. However, the doctrine of implied primary assumption of risk does not apply to let the defendant off the hook for its own negligence. Assuming implied primary assumption of risk applies at all, Mr. Farmer consented to only those risks inherent in protesting and not for any negligence of the City.
The Washington Supreme Court’s analyses in Scott and Kirk illustrate this point. In Kirk, a cheerleader was injured during a fall at practice and sued Washington State University for negligent failure to provide supervision, training, and coaching, and failure to provide a safe practice space. The defendant argued the doctrine of implied primary assumption of risk should bar all her claims, but the court disagreed. Kirk, 109 Wn.2d at 454-55. The court instead held that the doctrine may bar recovery for injuries resulting from specific risks inherent to the sport; however, the doctrine does not apply to injuries resulting “from other risks, created by the defendant.” Id. at 455.
Similarly, in Scott, a 12-year old boy was injured while skiing at a ski school at a ski resort. Because implied primary assumption of risk bars recovery for injuries due to specific known and appreciated risks, our Supreme Court cautioned that courts must “carefully define the scope of the assumption, i.e., what risks were impliedly assumed and which remain as a potential basis for liability.” Scott, 119 Wn.2d at 497. The court pointed to the example of sports cases, noting that “[o]ne who participates in sports assumes the risks which are inherent in the sport.” Id. at 498
(emphasis in original). Citing Kirk, the court explained that though the cheerleader in that case assumed the risks inherent in cheerleading, “she did not assume the risks caused by the university’s negligent provision of dangerous facilities or improper instruction or supervision.” Id. (emphasis in original). Those, the court noted, were not risks inherent in the sport, and thus “in a primary sense, she did not assume the risk and relieve defendants of those duties.” Id. at 498-99 (emphasis in original).
Using that analysis, the court held primary implied assumption of risk did not apply to the skier’s negligence claims against the ski resort operator. Id. at 499. By engaging in the sport of skiing, he assumed the risk of “dangers that are inherent in and necessary to the particular sport or activity.” Id. at 500-01 (emphasis in original). The court, however, held that he did not assume the risk of the ski resort’s negligence that enhanced the risks of skiing. Id. at 501. Accordingly, the court reversed the order granting summary judgment to the ski operator because “plaintiff’s evidence raised genuine issues of material fact” with regard to whether the defendant’s negligence, if any, caused his injuries. Id. at 503.
The outcome should be the same here. The risks inherent to peacefully participating in a protest do not include injuries caused by SPD’s negligent and excessive use of force Mr. Farmer testified that he was participating peacefully, taking photographs. He did nothing to warrant having a blast ball shot at him. Mr. Wieser’s video shows the same thing. As detailed above, police expert Russ Hicks explained why the use of force, whether targeted at Ned Farmer or someone else, was not justified, not reasonable, not proportionate, and violated multiple SPD policies as well as standard police practices.
b) Law and public policy prohibit the doctrine of assumption of risk releasing a party for the negligent breach of a duty imposed by law.
Even if somehow the police injuring Mr. Farmer was a risk inherent in peaceful protesting, the City still could not escape liability for its negligence. Our Supreme Court has rejected attempts by defendants to immunize themselves through express written releases signed prior to any negligence also known as primary express assumption of risk where the defendants’ duty to act non-negligently is imposed by law. If such exculpatory releases designed to immunize a defendant from a duty to exercise reasonable care are improper, then it would be even more impermissible to allow a defendant to escape liability through implied primary assumption of risk.
In Wagenblast, the school district required its students and parents/guardians to sign a standard release before participating in interscholastic sports. The release released the school district from liability resulting from any ordinary negligence that arises in connection with interscholastic activities. Wagenblast v. Odessa Sch. Dist. No. 105-157-166J, 110 Wn.2d 845, 847, 758 P.2d 968 (1988).
In ruling the release violated public policy, the court noted that “there are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh our traditional regard for the freedom to contract,” including those charged with a public duty that includes the duty to use reasonable care. Wagenblast, 110 Wn.2d at 849. For example, where the defendant is a common carrier, an innkeeper, a professional bailee, an employer, and a public utility, among others, agreements discharging the defendant’s performance of reasonable care are not ordinarily enforced. Id. at 849-50. This is so, the court reasoned, because “the service performed is one of importance to the public, and … a certain standard of performance is therefore
required.” Id. at 850. Further, the court held that they are against public policy regardless of whether they are called releases or express assumptions of risk. Id. at 856-57.
In Gregoire, the defendant argued that implied primary assumption of risk should apply to an estate’s claim that the defendant was negligent when the City negligently allowed the decedent to commit suicide while in jail. The court rejected this application of implied primary assumption of risk finding it “effectively eviscerated the city’s duty to protect inmates in its custody,” something the City was required by law to do. Greogoire, 170 Wn.2d at 635-36, 638.
Here, the City seeks to be freed of its duty to act reasonably in its use of force against protesters, even though the Legislature has already made clear that local governments are not to be immunized for their tortious conduct. The City seeks a result that would be a violation of law and public policy.
In the 1960’s, the Legislature waived sovereign immunity for state and local governments “for damages arising out of their tortious conduct, or tortious conduct of their past or present officers, employees, or volunteers while performing or in good faith purporting to perform their official duties, to the same extent as if they were a private person or corporation.” RCW 4.96.010(1). The Supreme Court has called this waiver “a promise that the State and its agents will use reasonable care while performing its duties at the risk of incurring liability.” Joyce v. State, 155 Wn.2d 306, 309, 119 P.3d 825 (2005).
The State’s waiver of sovereign immunity has been used to invalidate other attempts by local governments to immunize their actions from tort liability. For example, in Howe v. Douglas County, the County required a land developer to execute and record a waiver of liability for damages caused by the maintenance of public facilities in exchange for approval to build homes and supporting infrastructure. The Howes sued after their property suffered from several severe
floods caused in part by inadequate drainage system maintained by the County. The County moved for and was granted summary judgment because of the liability waiver.
The Howes argued that conditioning a building permit on a waiver of liability amounts to a resurrection of sovereign immunity in violation of RCW 4.96.010. Howe v. Douglas Cnty., 146 Wn.2d 183, 188, 43 P.3d 1240 (2002). The Supreme Court agreed, holding the waiver violated the legislative abrogation of sovereign immunity “to the extent it exculpates the County for its own future negligence.” Id. at 190. Calling the legislative waiver of sovereign immunity “a powerful principle of Washington jurisprudence,” the Court warned that it “will carefully scrutinize apparent local government attempts to recreate it” and would “not hesitate to void such ordinances.” Id. at 189. The court equated blanket waivers of liability for the performance of public functions to “passing ordinances immunizing the granting body from actions for its own negligence,” which are not allowed. Id. at 190-91.
Yet blanket immunity is exactly what the City seeks from this Court by arguing primary implied assumption of risk applies such that the City cannot be held liable for the alleged negligence of its own police officers. This result violates RCW 4.96.010. If the City would not be permitted to pass an ordinance immunizing it from liability for the negligence of its police officers, then it certainly cannot do so by operation of the legal doctrine of assumption of risk.
Further, both state law and Department policy limit when an officer can use force against members of the public. RCW 9A.16.020(1) makes the use or attempted use of force permissible when “necessarily used by a public officer in the performance of a legal duty.” And the Department’s own policy requires that officers “only use the force reasonable, necessary, and proportionate to effectively bring an incident or person under control, while protecting the lift [sic] and safety of all persons.” It would be against public policy to use implied primary assumption of
risk to negate the SPD’s duty mandated by law and Department policy to use only “objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective.”
c) The City’s characterization of the evidence is one-sided and incorrect.
Even if the City was entitled to assert primary applied assumption of risk, its motion would still fail because there is a genuine issue of material fact as to the elements of the defense. To be entitled to summary judgment for primary applied assumption of risk, the City must show Mr. Farmer “knew and voluntarily accepted the precise hazard at the time he made his decision.”
Taylor v. Baseball Club of Seattle, L.P., 132 Wn. App. 32, 38, 130 P.3d 835 (2006). The test is subjective: “[w]hether a plaintiff ..., at the time of decision, actually and subjectively knew all facts that a reasonable person in the defendant's shoes would know and disclose.” Id. (internal citation and quotations omitted) (emphasis in original).
The City ignored unhelpful facts that demonstrate Ned could not have understood the specific risk he was supposedly taking by participating and photographing the protesters and police. Ned testified that he was not a regular protester. He testified that while he was vaguely aware that the SPD had used less lethal munitions against protesters at other times, he did not know the difference between various munitions. He did not know the difference in sound. All the prior protests he’d seen were peaceful and organized. The first protest he participated in was the one in which he was injured in the early morning hours of June 8, 2020. He does not recall hearing a dispersal order before he was injured and remembers being surprised by it when he heard it on his video that he played back later. No warnings were given before the blast ball was deployed. And Joey Wieser testified specifically that it looked like officers were targeting Ned Farmer. Taken in the light most favorable to Ned, summary judgment should be denied.
B. Plaintiff has created a genuine issue of material fact as to the reasonableness of the force used against him, so summary judgment on his assault and battery claims should be denied.
Defendant is not entitled to summary judgment on Plaintiff’s assault and battery claims for the same reason it is not entitled to summary judgment on his negligence claims an issue of fact exists as to the reasonableness of the force that injured Ned Farmer. A battery is the intentional infliction of harmful or offensive bodily contact. Morinaga v. Vue, 85 Wn. App. 822, 834, 935 P.2d 637 (1997). More specifically, a 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 contact.’”
McKinney v. City of Tukwila, 103 Wn App. 391, 408, 13 P.3d 631 (2000) (alteration in original) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 39 (5th ed. 1984)).
“A bodily contact is offensive if it offends a reasonable sense of personal dignity.” Restatement (Second) of Torts § 19 (1965). For there to be intent to cause harmful or offensive contact, “‘the act must be done for the purpose of causing the contact... or with knowledge on the part of the actor that such contact ... is substantially certain to be produced.’”
Garratt v. Dailey, 46 Wn.2d 197, 201-02, 279 P.2d 1091 (1955) (quoting Restatement of Torts § 13, cmt. d (1934)). The requisite intent for battery is the intent to cause the contact, not the intent to cause injury. Garratt, 46 Wn.2d at 201-02.
Even where there is no bodily contact, a defendant may be liable for assault when he or she acts with an intent to put another person in immediate apprehension of harmful or offensive contact, and that person has such an apprehension. Brower v. Ackerley, 88 Wn. App. 87, 92-93, 943 P.2d 1141 (1997) (citing Restatement (Second) of Torts § 21). The apprehension must be of imminent contact. Brower, 88 Wn. App. at 94.
Assault and battery are the common law corollary torts of excessive force. Where the Constitution protects against excessive force, tort law provides causes of action for assault and battery. This includes when “unnecessary violence or excessive force is used in accomplishing [an] arrest.” Boyles v. City of Kennewick, 62 Wn. App. 174, 176, 813 P.2d 178 (1991).
Defendant appears not to contest that being injured by a blast ball amounts to a harmful or offensive bodily contact and focuses instead on the reasonableness of force used. Just as with Plaintiff’s negligence claims, his assault and battery claims hinge on whether the force used by the SPD that injured him was unreasonable—a key issue which Plaintiff has provided plenty of evidence to dispute. Plaintiffs’ expert Russ Hicks opined that the SPD’s use of a blast ball in this situation was objectively unreasonable, disproportionate, and unjustified, and violated SPD’s own policies and standard police practices
C. False Imprisonment
Plaintiff does not object to the dismissal of this particular claim as applied to him. But this is not a concession that applies to any other claims or any other plaintiffs.
D. Intrusion into Seclusion
Plaintiff does not object to the dismissal of this particular claim as applied to him. But this is not a concession that applies to any other claims or any other plaintiffs.
E. Constitutional Claims
Defendant’s motion is based on the flawed premise that a person does not have a constitutional right to document a socially significant protest rooted in the First Amendment and Washington Constitution Article I, section 4 and section 5. However, given the high bar for establishing a right to injunctive relief, Plaintiff does not oppose the dismissal of his claims for
injunctive relief based on constitutional violations. But this is not a concession that applies to any other claims or any other plaintiffs.
F. Claims Under the Seattle Municipal Code for Biased Policing and Communicating False or Derogatory Information
Plaintiff does not oppose the dismissal of these particular claim as applied to him. But this is not a concession that applies to any other claims or any other plaintiffs.
G. There is a genuine issue of material fact with respect to the Plaintiff’s WLAD claim.
The Washington Law Against Discrimination (WLAD) prohibits discrimination and preserves “[t]he right to be free from discrimination.” RCW 49.60.030(1). It was enacted for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The Legislature found that discrimination threatens not only the rights and proper privileges of this state’s inhabitants but menaces the institutions and foundation of a free democratic state. RCW 49.60.010.
WLAD guarantees “[t]he right to be free from discrimination because of” various protected classifications – including race. RCW 49.60.030(1). “This right shall include, but not be limited to:… “[t]he right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement.” RCW 49.60.030(1)(b); accord RCW 49.60.215. Public streets and sidewalks are places of public accommodation and assemblage. RCW 49.60.040(2).
Under RCW 49.60.030(l)(b), WLAD secures the right to “full enjoyment” of any place of public accommodation… “without acts directly or indirectly causing persons of [a protected class] to be treated as not welcome, accepted, desired, or solicited.” See RCW 49.60.040(14).
Similarly, WLAD prohibits “any person or the person’s agent or employee [from committing] an
act which directly or indirectly results in any distinction, restriction, or discrimination” based on a person’s membership in a protected class. RCW 49.60.215 (emphasis added). This broad standard focuses the liability inquiry on whether actions resulted in discrimination, not whether the proprietor of a place of public accommodation intended to discriminate. Floeting v. Grp. Health Coop., 192 Wn.2d 848, 852-53 403 P.3d 559 (2019).
As recognized by the Court when it denied the City’s 12(b)(6) motion on this issue, all of the plaintiffs in this case – not just those who are people of color – are entitled to raise WLAD claims here. Plaintiffs were a multi-racial group representing the collective societal outrage about racist police practices, were peacefully seeking racial justice on behalf of Black people and other POCs. The SPD discriminated against all Plaintiffs because of race – their race, the races of others around them, and the race of those for whom they were advocating and who are disproportionately victims of police brutality.
The City claims that Ned does not count as a part of that group because he considered himself mostly an observer. But the City provides no legal authority to support this position. Nor does the City provide any contemporaneous evidence showing that the after-the-fact distinction it tries to draw in its motion was significant.
Ned testified he supported racial justice and Black Lives Matter, and he also participated in some of the chanting on June 7-8, 2020:
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 think an observer would have not seen me in I support these protesters. I support Black Lives Matter, all of this. But I think in – if there was an observer there, I probably didn't look like I was one of the participants.
I am a participant because I'm in the location, but I was not I don't recall, like, putting myself in the group and being part of the chorus, so to speak. I I think I probably shouted, you know, with the chant. I seem to recall doing that. But I don't know. 69
He also testified that he was a part of the protest:
Q. What motivated you to join, and are you comfortable with me saying join the protest
A. Sure.
Q. on June 7th, 8th?
A. Yeah.
Q. What motivated you to join it that night?
A. Hmm. I'm guessing. I seem to
MS. NGUYEN: Ned, there's no reason to guess. We don't want you to guess.
THE WITNESS: Okay.
A. It there was enormous buzz in the air. For lack of other ways to describe it, you could hear explosions. You could hear helicopters. You could hear the people.
It was you just you couldn't avoid it. You couldn't ignore it. It was you know, it – you know, it really was I mean, that that is the context of the amount of, I guess, stimulation in the environment of noise, explosions. 70
In short, Ned was among the protesters. He participated in some of the chants. He supported Black Lives Matter To an officer that would look like someone who is there in support of the racial justice cause and to document what the police were doing. Plus Joey Wieser testified that to him it looked like the officers targeted Ned Farmer when it shot the blast ball.
There is a genuine issue of material fact on this issue and summary judgment should be denied. 69 PL-1558 (95:3-19) 70 PL-1537-1538 (40:23-41:16)
I. IV. CONCLUSION
For the reasons above, the City of Seattle’s motion should be denied.
DATED this 3rd day of April, 2023.
I certify that this memorandum contains 8,003 words, in compliance with the Local Civil Rules.
STRITMATTER KESSLER KOEHLER MOORE
Karen K. Koehler, WSBA#15325
Shannon M. Kilpatrick, WSBA#41495
Lisa Benedetti, WSBA#43194
Gemma N. Zanowski, WSBA#43259
Melanie Nguyen, WSBA#51724
Fred Rabb, WSBA#56336
Furhad Sultani, WSBA#58778
Co-Counsel for Plaintiffs
LAW OFFICES OF SARAH LIPPEK
Sarah Lippek, WSBA # 46452
Co-Counsel for Plaintiffs
CERTIFICATION
I hereby certify that on April 3, 2023, I delivered a copy of the document to which this certification is attached for delivery to all counsel of record as follows:
Defendant City of Seattle
Ghazal Sharifi
Joseph Groshong
Rebecca Widen
Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
joseph.groshong@seattle.gov
ghazal.sharifi@seattle.gov
rebecca.widen@seattle.gov
tamara.stafford@seattle.gov
marisa.johnson@seattle.gov
kelly.nakata@seattle.gov
jay.beck@seattle.gov
&
Mark S. Filipini
Martha J Dawson
G. William Shaw
Kari L. Vander Stoep
Ryan J. Groshong
Trudy Tessaro
Ivan Ascott
Ben Woodruff
Ben Moore
Matt Clark
K&L Gates LLP
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-1158
mark.filipini@klgates.com
martha.dawson@klgates.com
bill.shaw@klgates.com
kari.vanderstoep@klgates.com
ryan.groshong@klgates.com
trudy.tessaro@klgates.com
ivan.ascott@klgates.com
ben.woodruff@klgates.com
ben.moore@klgates.com
matt.clark@klgates.com
dawnelle.patterson@klgates.com
U.S. Mail
Fax
Legal messenger
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cami.smith@klgates.com
Counsel for Plaintiff Widmayer
Neil T. Lindquist
Kornfeld, Trudell, Bowen & Lingenbrink
3724 Lake Washington Blvd NE
Kirkland, WA 98033
neil@kornfeldlaw.com
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s/ Kristin Michaud Paralegal