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 ZACHARY GARDNER
I. RELIEF REQUESTED
Plaintiff Zach Gardner was injured by the Seattle Police Department when he was shot by Officer Carl Anders with a rubber bullet from a 40 mm launcher from 10 feet away. Gardner brought a leaf blower to the protests to use to disperse pepper spray and tear gas away from the protesters. The City claims this amounted to felony assault with a leaf blower and justified its use of force. However, Plaintiff’s evidence shows why the City’s claim is wrong, and its use of force was not justified, reasonable, necessary, or proportionate, and violated standard police practices, procedures, and training.
The City’s blame-the-victim-for-exercising-his-constitutional-rights approach ignores several important legal factors. First and foremost, Zach Gardner was there to exercise his constitutional right to free speech and assembly to protest in favor of racial justice and against the SPD’s overzealous and violent response to earlier protests. These are rights embedded in the foundation of this country. Law enforcement must permit peaceful protesters to exercise their rights even when that speech is aimed at the police. To be entitled to abridge that right by using force on Zach Gardner, the City was required to show the force used was necessary, reasonable, and proportionate to the circumstances, and that the officers had a reasonable suspicion a serious crime was being or was about to be committed. Plaintiff’s evidence, including a declaration from a police expert, demonstrates that none of those requirements were met. It was unreasonable under the circumstances for officers to believe that Zach Gardner committed felony assault with a leaf blower. Further, the force used was unreasonable, unnecessary, and disproportionate to the circumstances and violates standard police practices, training, and procedures, as well as the SPD policies. Plaintiff’s evidence thus creates a genuine issue of material fact about whether the officer’s use of a 40 mm launcher to shoot Zach 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
A. Background of Plaintiff Zachary Gardner
Born in 1982, Zach Gardner was raised by a single mother with his brother and sister in Glens Falls, NY.
1 Zach obtained his AA degree, and for the next decade he worked in the service industry as a chef.
2 Eventually he relocated to Seattle, where he transitioned to the health industry as a fitness trainer and manager. 3 During the pandemic Zach was furloughed from his position, but took the opportunity to return to college, earning his Bachelor’s degree. 4 He is now planning to attend law school. 5 Zach has been married to Erika for 5 years. 6
Growing up in a small majority white town, Zach’s exposure to issues of race began when his mother entered into an interracial relationship with Percy, who took on the role of father figure
1 Koehler Decl. PL-1579-1580 (18:21-19:18); PL-1581 (22:7-15) (Gardner decl)
2 PL-1576 (12:11-13); PL-1577-1578 (13:20-14:11).
3 PL-1574-1575 (10:20-11:16); PL-1576-1577 (12:14-13:4).
4 PL-1575 (11:17-23); PL-1578 (14:12-23).
5 PL-1824 (15:6-20).
6 PL-1573 (7:24-25).
and mentor. 7 Percy educated Zach on issues of racism and how Black men interact with the world differently based on the color of their skin. 8 Zack witnessed how Black friends were badmouthed and demeaned in private. 9
B. Days after the murder of George Floyd, Zach joined the protesters marching for racial justice.
After hearing about the murder of George Floyd, Zach felt a personal responsibility to protest the injustice. 10 He advocated for police accountability and wanted to shine a light on how the police “far too often [g]et away with killing and maiming people.” 11
On May 30, 2020, after hearing about an event on social media, Zach first joined the protests in downtown Seattle. 12 He attended, as he put it, “because I believe it’s my responsibility as well as my right to try and make my voice heard and speak up for more fair treatment of citizens of this country and this state and this city.” 13 Zach and his wife left their apartment in Belltown at around 12:30-2pm to join protests at Westlake Park. 14 He packed an aid kit including baking soda and saline solution to assist those experiencing pepper spray. 15 The pair never made it to Westlake Center. 16 They initially witnessed what seemed to be SPD splitting the crowd in two or three by using flash bangs. 17 They were stuck on Sixth and Stewart for the next two hours with a couple hundred other protesters. 18
7 PL-1582-1583 (26:3-27:8)
8 PL-1583 (27:9-11).
9 PL-1583-1584 (27:20-28:23)
10 PL-1585 (70:14-23).
11 PL-1585-1586 (70:24-71:16)
12 PL-1595 (112:5-18).
13 PL-1596 (113:1-7)
14 PL-1598 (116:17-25).
15 PL-1597 (115:17-25)
16 PL-1599 (117:13-16)
17 PL-1599 (117:1-16)
18 PL-1599 (117:1-16)
As Zach was standing there trying to figure out where the protest was, he witnessed an unmarked black SUV pull up and four SPD officers get out. 19 Two of the officers were on radio and the other two held what he believed were tear gas launchers. 20 Zach witnessed as the officers armed with tear gas launchers were communicating with two other officers on radios and then began launching tear gas cannisters into the crowd. 21
Zach did not hear an order by SPD to leave nor disperse. 22 He did not see anything being thrown by the crowd at police. 23 Nor did he see anyone engage in any property damage no breaking windows, graffiti, looting, or setting fires. 24
Zach soon felt uncontrollable burning in his throat, eyes and nose, and began coughing. 25
On his way home Zach assisted protesters dealing with the effects of pepper spray using the first aid materials he brought. 26 Zach also saw the remnants of property that had been vandalized which he did not witness before. 27
C. Zach joined the Bike Brigade and regularly witnessed police violence against protesters.
As protests continued in Seattle during the summer of 2020, Zach joined the Bike Brigade attending protests 4-5 times per week from May through October 2020. 28 As an avid biker this was one way Zach could support the protests beyond just marching. 29 As part of the Bike Brigade, Zach would ensure protester safety. 30 He would often attend protests around the Seattle area
19 PL-1600 (121:2-16)
20 Id. (121:2-25).
21 Id.
22 PL-1601-1602 (122:24-123:11).
23 PL-1601 (122:6-8)
24 PL-1603 (125:1-23).
25 PL-1605 (127:15-128:3)
26 PL-1604-1605 (126:19-127:8).
27 PL-1607-1608 (138:1-139:16)
28 PL-1587 (72:1-10)
29 PL-1591-1592 (80:19-81:1)
30 PL-1620 (160:10-13)
spending anywhere from 2-12 hours, leaving when the crowd of protesters left. 31 He would see communication from King County Equity Now and Decriminalize Seattle to learn when events would occur and what sort of public safety needs the groups required. 32 During these events he witnessed police using force more often than not. 33 About 80% of the time he witnessed police being aggressive and violent towards protesters. 34 He saw police rip umbrellas out of protester’s hands as they were trying to shield themselves from pepper spray. He also saw police use pepper spray, tear gas, and flash bang grenades on protesters standing static. 35
On July 25, 2020, Zach joined the protests occurring in the Capitol Hill neighborhood of Seattle. 36 He wore a black shirt, shorts, socks, an Israeli gas mask, and a backpack with first aid supplies and bike lock. 37 Zach left his home at 11:00 am as he believed the protests started at noon. 38 When Zach arrived near Seattle Central College, there were seemingly thousands of protesters all dressed differently. 39 He did not, however, see anyone dressed in medieval armor. 40 He did see people dressed in all black, some wearing gas masks or other protective equipment, and most people he saw were carrying signs and umbrellas. 41 Zach was near Seattle Central College. 42 He was not a part of and did not witness de-arrest trainings allegedly going on nearby. 43 Zach was part of the Bike Brigade that marched from the
31 PL-1588-1589 (77:4-78:20).
32 PL-1590 (79:8-16)
33 PL-1593 (86:11-25).
34 PL-1593-1594 (86:25-87:5)
35 PL-1594 (87:6-19).
36 PL-1609 (149:2-4)
37 PL-1609 (149:5-13).
38 PL-1610 (150:11-14)
39 PL-1613-1614 (153:21-154:5).
40 PL-1615-1616 (155:23-156:3)
41 Id. (155:5-156:7)
42 PL-1611 (151:18-25)
43 PL 1612 (152:6-25)
Youth Jail. 44 During this march he did not witness anybody set fire to the jail nor did he witness anybody break windows of cars near the jail. 45 He did see the fire that ultimately started in the unoccupied trailers near the youth jail. 46 As a member of the Bike Brigade Zach felt it was his responsibility to protect protesters who might possibly be injured by car attacks as well as directing people around the protests to ensure the march could continue. This responsibility did not change just because a couple of individuals decided to be more aggressive than others believed they should be. 47
Zach traveled from the Youth Jail to the East Precinct with the protest group, during which time Zach did not participate in any acts of property destruction. 48 Before getting to the East Precinct, Zach stayed behind to help a Black family retrieve their vehicle from a cordoned off protest area. 49 By now substantial time had passed since the events at the youth jail.
Zach rejoined the protest group in the mid-afternoon at 11th and Pine. 50 In the late afternoon when it seemed that the marching had concluded, Zach stowed his bike in a friend’s vehicle. 51 At this time he pulled out a leaf blower. 52 Zach had learned through online research that using leaf blowers could help protect protesters. 53 He learned that tear gas hangs close to the ground, and using a leaf blower helps the tear gas disperse more quickly, making it so people won’t inhale as much gas 54 His intent was not to use the leaf blower to direct the gas at police officers. His intent
44 PL-1617 (157:6-15).
45 PL-1617-1618 (157:19-158:21)
46 PL-1618 (158:2-21).
47 PL-1620-1621 (160:5-161:7)
48 PL-1621 (161:8-22).
49 PL-1622 (164:20-25)
50 PL-1623 (170:7-24).
51 PL-1624-1625 (171:24-172:10)
52 PL-1625 (172:15-23)
53 PL-1626-1627 (174:9-175:12)
54 Id.
and focus was to disperse the tear gas away from protesters who did not have protective gear like gas masks. 55
The following images were taken from screen shots prior to Zach’s injury: 56 57
55 PL-1627 (175:13-19)
56 PL-1520
57 PL-1519
PLAINTIFFS’ OPPOSITION TO DEFENDANT CITY OF SEATTLE’S MOTION FOR SUMMARY JUDGMENT RE: PLAINTIFF ZACHARY GARDNER - 8
After 1-2 hours of intermittently utilizing the leaf blower and witnessing the violent behavior by the SPD that afternoon, Zach called an officer a Nazi. 58 He was almost instantly shot at close range by a rubber bullet. 59 More precisely, he had been struck by a foam-tipped and geltipped BIP less than lethal munitions launcher operated by Officer Carl Anderson, a SWAT team leader then under Sgt Renner. 60 Zach was not running the leaf blower at the time he was shot. 61
58 PL-1628 (176:20-25); PL-1633 (185:13-23)
59 PL-1633 (185:13-23)
60 PL-1392 (18:9-24) (Anderson depo)
61 PL-1629 (177:20-22) (Gardner depo)
After being shot Zach went to receive first aid. 62His elbow swelled up to the size of a softball within the hour. 63 He had injuries to his abdomen as well. 64 Shortly after he sent a text message to a high school friend Joe, stating how he just got shot with a rubber bullet for calling a cop a Nazi. 65
D. Officer Anderson was not able to remember much about the day he shot Zach.
Officer Anderson did not have good recall of the specific incident or day in question. One reason was likely due to the laxity involved in his documentation requirements. Although standard
62 PL-1634 (189:1-4).
63 PL-1635 (190:2-6).
64 PL-1630 (179:1-7).
65 PL-1632 (183:8-24).
66 PL-1631-1632 (182:15-183:24); PL-1517
policy was to document each use of force, early in the protests, chain of command told the officers to “be more general with our use of force reports. So not every time I used force was it specifically documented in that report.” 67 They were told “we could be a little more vague and write an overall encompassing use of force report.” 68 He testified he was not required to specify how many blast balls, CS gas canisters or “rubber” bullets he fired. 69 He would usually write his reports several days later. 70 SPD policy usually required officers to complete the forms by the end of their shift. 71
43. Without being able to be specific, Anderson claimed he was pelted by numerous objects during the protests, including:
• A rock – which he could not describe or recall any details about; 72
• An explosive device – which he admitted did not hit his body but landed at his feet, he did not see or inspect it, but it sent shrapnel at his back though he didn’t take time off of work; 73
• A plastic water bottle. 74
44. On June 7, 2020, Officer Anderson threw a blast ball overhand at Plaintiff
striking her in the chest and causing her to go into cardiac arrest. 75 Officers are trained to not to throw these devices at people. 76 The preferred method to throw is underhand
Aubreanna Inda
overhand is authorized if it can be justified because there’s a higher likelihood of injury. 77
67 PL-1402 (57:8-25) (Anderson depo).
68 PL-1402 (58:15-21); PL-1407 (79:1-24)
69 PL-1406 (76:3-22).
70 PL-1406 (73:13-20)
71 PL-0909 (65:2-19) (Rees depo.).
72 PL-1393-1394 (24:13 – 26:10) (Anderson depo)
73 PL-1394 (26:11 – 27:5).
74 PL-1394 (28:4-11)
75 PL-1413 (104:3-9)
76 PL-0780 (175:24 – 176:25) (Upton 30b6 depo)
77 PL-0755 (76:1-17)
Anderson struck her because he missed his target - an open area behind a small group. 78 He did not wait to see where the blast ball landed before throwing another one. 79 Blast balls should not be used against innocent bystanders at a protest or specifically non-violent protestors. 80 Throwing a blast ball blindly into a crowd would be a serious violation of policy and law. 81
45. For his acts on July 25, Officer Anderson was subject to an OPA complaint for his use of the 40mm launcher against Zach Gardner. 82 Officer Anderson did not engage in deescalation instead making the “split second decision” to blast the protester. 83 The policy to use a launcher requires that someone be a threat plus going hands on to take them into custody would more likely cause injury than LLW. 84
III. EVIDENCE
This motion relies on the Declaration of Karen Koehler and attached exhibits, the Declaration of Russ Hicks and attached exhibits, and the papers and pleadings on file.
IV. 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
78 PL-1417 (120:13-24) (Anderson depo).
79 PL-1418 (121:1-17).
80 PL-1434 (16:1-8) (Renner dep).
81 PL-1440 (40:5-14).
82 PL-1421 (134:20-22); PL-1484-1506 (Anderson dep)
83 PL-1422-1423 (140:5-142:5).
84 PL-0775 (155:15-25) (Upton 30(b)(6) depo)
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 Zach Gardner 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. Plaintiff has raised a genuine issue of material fact on key issues involving his negligence claim.
The City argues both that reasonable minds cannot differ that it did not breach a duty to Plaintiff Zach Gardner, and also that the City owed him no duty because he assumed the risk for his injuries by participating in the protest. Both arguments are wrong.
1. Plaintiff has provided evidence disputing the City’s contention that the use of force that injured Zach Gardner was reasonable.
When considered in the light most favorable to Zach Gardner, 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 Zach which must be taken as true shows that he intended only to protect protesters and not harm the officers when he used the leaf blower to blow chemical irritants away from the protesters. 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 Zach Gardner because there is no evidence he committed “felony assault with a leaf blower.”
The use of a 40mm launcher from 10 feet away was not reasonable, necessary, or proportionate, plus it violated SPD policy and law enforcement standards. This evidence establishes a genuine issue of material fact whether the officer who shot Zach breached his duty to act reasonably to refrain from causing foreseeable harm in interactions with others.
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 used a 40mm launcher to shoot Zach with a rubber bullet from close range 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 implies 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. 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.” 85
Plaintiffs’ expert Russ Hicks provides his expert opinion that the force used against Zach Gardner 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. 86 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. 87 Analyzing the information
85 Koehler Decl. PL-1656-1664.]
86 Hicks Decl. ¶¶ 2-5; Ex. 1.
87 Id. ¶¶ 46-52.
available to the officers at the time, Hicks found that the SPD lacked the justification to use any force, much less to shoot him with a rubber bullet from a 40mm launcher from 10 feet away. 88 Russ Hicks’ opinions are as follows:
• Contrary to the City’s claims, Zach Gardner did not commit a crime when he used his leaf blower, much less felony assault.
• The City provided no evidence that Mr. Gardner intended to harm the officers. There is no evidence Zach Gardner knew about “pepper spray dust” or that there was “pepper spray dust” on the ground. The were no explanation provided to show the difference between “pepper spray dust” and regular dust and debris on the ground. 89
• The video evidence shows that both protesters and officers moving through the area where Zach Gardner had blown the dust and debris, but none of them show any signs of coughing or exhibiting the effects of the alleged “pepper spray dust.” The video does not show any officers expressing concern about the leaf blower, complaining about the “pepper spray dust” or exhibiting signs of being affected. 90
• There is no evidence any officer ever instructed Zach Gardner to stop using the leaf blower. 91
• It is not a crime to possess a leaf blower. There is no evidence demonstrating leaf blowers were a tool used by protesters to assault SPD officers.
88 Id. ¶¶ 22-56.
89 Id. ¶¶ 87-89.
90 Id. ¶¶ 90-93, 98.
91 Id. ¶¶96
• Officer Anderson’s use of the 40mm launcher violated SPD policy on de-escalation and use of the 40 mm launcher because he never gave a warning prior to shooting Zach Gardner. No exigent circumstances existed to justify the failure to give a warning. 92
• Officer Anderson’s use of the 40 mm launcher also violated SPD policy and standard police practices governing the use of force. Both require the force used to be objectively reasonable, necessary, and proportional to the threat of the subject. 40 mm launchers are permitted to be used only when a subject poses an immediate threat of harm or when public safety dictates that a subject needs to be taken into custody and the level of resistance is likely to cause injury or if other force options would likely cause greater injury than the use of the 40 mm launcher. 93
Plaintiff’s evidence directly disputes Defendant’s claim that there is no genuine issue of material fact. It shows the force used on Zach was not reasonable, which is a key issue. Summary judgment should be denied.
2. The City is not entitled to a finding as a matter of law that Gardner 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 Zach Gardner; but then it also argues that he 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 an individual is offensive, deeply problematic, and insulting.
92 Id. ¶¶ 99-102.
93 Id. ¶¶ 103-107, 109.
To be clear, the City argues that because Ned Farmer knew what could happen that he could be injured by the use of less letha force even though he did nothing wrong he thus should never have participated. In essence, the City claims it has a right to disregard the state and federal constitution because its officers subjectively believed they were being assaulted by Zach Gardner, causing the SPD to overreact and shoot him with a rubber bullet. 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. Gardner’s injuries.
Defendant argues that because Zach had knowledge that the SPD had used less lethal weapons on protesters earlier, 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. Gardner 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. Gardner testified that he was participating peacefully, and he used the leaf blower to direct pepper spray
and tear gas away from the unprotected protesters. No one directed him to stop. There is no evidence Zach intended to harm the officers. There is no evidence that he knew of “pepper spray dust,” what it looked like, or whether it was present. There is no evidence any officers or other protesters complained of or suffered any issues, despite walking through the alleged “pepper spray dust.” According to Russ Hicks, the use of the 40 mm launcher at close range 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. Gardner 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.” 94 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.” 95
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. Gardner “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).
94 Koehler Decl. PL-1656-1664.
95 Id.
Here, there is no evidence that Zach Gardner understood the specific risk he was taking by using a leaf blower at a protest. There was no evidence that leaf blowers were used by protesters as a means to harm officers, so Zach couldn’t have known in advance it was improper. The officers did not warn Zach to stop using the leaf blower. Zach was not committing a crime, much less felony assault.
Based on this, there is a genuine dispute about whether Zach actually and subjectively knew all the specific facts that could lead to a finding he assumed the risk.
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 Zach Gardner. 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.
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 rubber bullet shot out of a 40 mm launcher 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 force 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
Plaintiff does not object to the dismissal of his claims for injunctive relief. 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 evidence shows that Zach Gardner was dedicated to the cause of social justice. As a member of the Bike Brigade, he was at many different protests. He called an officer “a Nazi,” which clearly identified himself as someone who was protesting against the SPD’s actions. It was that comment that prompted Officer Anderson to shoot him and not because of any alleged “felony assault with a leaf blower.”
There are genuine issues of material fact, so this Court should deny the City’s motion for summary judgment on Plaintiff’s WLAD claims.
V. 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 7,570 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