Lyles - Appeal brief after case was dismissed by The Stritmatter Firm

NO. 79480-9-I COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION I __________________________________________________ Commissioner Eric Watness, as Personal Representative of the Estate of Charleena Lyles; Karen Clark, as Guardian Ad Litem on behalf of the four minor children of decedent, Appellants, v. The City of Seattle, a Municipality; Jason M. Anderson and Steven A. McNew, individually, Respondents. ___________________________________________________ Appeal from the Superior Court of Washington for King County Honorable Julie Spector No. 17-2-23731-1 ___________________________________________________ BRIEF OF APPELLANTS ___________________________________________________ STRITMATTER KESSLER KOEHLER MOORE AND THE LAW OFFICE OF EDWARD H. MOORE Karen K. Koehler, WSBA #15325 Garth L. Jones, WSBA #14795 Melanie Nguyen, WSBA #51724 Edward H. Moore, WSBA# 41584 Attorneys for Plaintiffs/Appellants 3600 15th Ave. West, #300 Seattle, Washington 98119 (206) 448-1777

TABLE OF CONTENTS I.

INTRODUCTION......................................................................... 1

II.

ASSIGNMENTS OF ERROR ..................................................... 2

III.

ISSUES ........................................................................................... 2

IV.

STATEMENT OF CASE ............................................................. 7

The June 18, 2017 Incident. ................................................ 7

Seattle Police Department Policy...................................... 12

Violation of police practices ............................................. 14

Charleena Lyles’ background. .......................................... 17

Charleena’s mental state. .................................................. 20

ARGUMENT ............................................................................... 21 A.

The public duty doctrine does not apply to the Plaintiffs’ claims because the Plaintiffs are not alleging that the officers violated any statutes, ordinances, or regulations in this case, ............................. 21

Under Washington law, an intentional use of force by a police officer does not foreclose a negligence claim premised on the officer’s failure to use reasonable care to avoid the use of force. ........................................... 27

RCW 4.24.420 does not apply in this case because Charleena Lyles lacked the capacity to form the intent necessary to commit the felonies alleged by the Defendants. ....................................................................... 33

The trial court erred in denying the Plaintiffs’ motion for partial summary judgment as to certain affirmative defenses asserted by the Defendants. ............. 40 1.

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of qualified immunity ............................................................... 40

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of proper and lawful discretion.................................................... 43 i

VI.

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of discretionary immunity. ........................................ 43

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of assumption of risk ................................................. 46

The trial court erred in granting the Defendants’ motion to strike the Plaintiffs’ experts on police conduct. ............................................................................. 48

The trial court erred in granting the Defendants’ motion to strike the testimony of Dr. Whitehill. ............... 49

CONCLUSION ........................................................................... 50

TABLE OF AUTHORITIES Supreme Court Cases Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) ........................................................................................... 48 Washington State Cases Bailey v. Town of Forks, 108 Wn.2d 262, 737 P.2d 1257 (1987) ............ 21 Baldwin v. City of Seattle, 55 Wn. App. 241, 776 P.2d 1377 (1989) ....... 49 Beltran-Serrano v. City of Tacoma, ___ Wn.2d ___, 442 P.3d 608 (2019) ........................................................................................... passim Chambers–Castanes v. King Cy., 100 Wn.2d 275, 669 P.2d 451 (1983) .................................................................................................. 45 Coffel v. Clallam County, 47 Wn. App. 397, 735 P.2d 686 (1987) .......... 32 Donaldson v. City of Seattle, 65 Wn. App. 661, 831 P.2d 1098 (1992) .................................................................................................. 49 Erie v. White, 92 Wn. App. 297, 966 P.2d 342 (1998) ............................. 47 Estate of Lee v. City of Spokane, 101 Wn. App. 158, 2 P.3d 979 (2000) ............................................................................................ 38, 39 Evangelical United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965)................................................................................... 44 Gleason v. Cohen, 192 Wn. App. 788, 368 P.3d 531, 535 (2016) ........... 46 Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 244 P.3d 924 (2010) .................................................................................................. 46 Guffey v. State, 103 Wn.2d 144, 690 P.2d 1163 (1984) ........................... 40 Guile v. Ballard Community Hosp., 70 Wn. App. 18, 851 P.2d 689 (1993) .................................................................................................. 40 Joyce v. State, Dep't of Corr., 155 Wn. 2d 306, 119 P.3d 825 (2005) ..... 27 Lascheid v. City of Kennewick, 137 Wn. App. 633, 154 P.3d 307 (Div 3 2007) ........................................................................................ 47 Leyendecker v. Cousins, 53 Wn.2d 675, 770 P.2d 675 (1989) ................. 47 Melville v. State, 115 Wn.2d 34, 793 P.2d 952 (1990) ............................. 26 Mita v. Guardsmark, LLC, 182 Wn. App. 76, 328 P.3d 962 (2014) ........ 32

iii

Munich v. Skagit Emergency Commc'n Ctr., 175 Wn. 2d 871, 288 P.3d 328 (2012)............................................................................ passim Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.3d 197 (2006)......... 21 Robb v. City of Seattle, 176 Wn.2d 427, 295 P.3d 212 (2013) ................. 32 Scott By & Through Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (1992) .................................................................. 46, 47 Staats v. Brown, 139 Wn.2d 757, 991 P.2d 615 (2000)...................... 40, 42 State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001) ........... 5, 36, 39 State v. Brown, 142 Wn.2d 57, 62, 11 P.3d 818 (2000) ........................... 27 State v. Byrd, 125 Wn.2d 707, 887 P.2d 396 (1995) ................................ 35 State v. Eakins, 127 Wn.2d 490, 902 P.2d 1236 (1995) ..................... 36, 37 State v. Ellis, 136 Wn.2d 498, 963 P.2d 843 (1998) ................................. 50 State v. Finley, 97 Wn. App. 129, 982 P.2d 681 (1999) ........................... 35 State v. Griffin, 100 Wn.2d 417, 670 P.2d 265 (1983) ............................. 36 State v. Guilliot, 106 Wn. App. 355, 22 P.3d 1266 (2001) ....................... 36 State v. James, 47 Wn. App. 605, 736 P.2d 700 (1987) ........................... 37 State v. Nuss, 52 Wn. App. 735, 763 P.2d 1249 (1988) ........................... 37 State v. Stumpf, 64 Wn. App. 522, 827 P.2d 294 (1992) .................... 36, 39 State v. Thomas, 123 Wn. App. 771, 779, 98 P.3d 1258 (2004)................. 5 State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014) ........................ 37 State v. Williams, 159 Wn. App. 298, 244 P.3d 1018 (2011) ................... 35 Taggart v. State, 118 Wn.2d 195, 822 P.2d 243 (1992) ..................... 44, 45 Washburn v. City of Federal Way, 178 Wn.2d 732, 310 P.3d 1275 (2013) ............................................................................................ 32, 49 Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 770 P.2d 182 (1989) .................................................................................................. 40 Other Authorities Hayes v. County of San Diego, 57 Cal. 4th 622, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013) ......................................................... 29, 30, 31

Statutes RCW 4.09.010 .......................................................................................... 43 RCW 4.22.005 .......................................................................................... 46 RCW 4.22.015 .......................................................................................... 46 RCW 4.24.420 .......................................................................................... 34 RCW 4.92.090 .......................................................................................... 43 RCW 4.96.010 .......................................................................................... 23 RCW 9A.08.010........................................................................................ 35 RCW 9A.28.020.................................................................................. 33, 35 RCW 9A.36.011.................................................................................. 33, 35 RCW 9A.36.031.................................................................................. 33, 35 Rules CR 7(b)(1)………………………………………………………………. 50 CR 56 ........................................................................................................ 40 LCR 7(b)(4) and(5) ……………………………………………………. 50 Washington Pattern Jury Instructions WPI 13.03 ................................................................................................. 47 WPI 16.01 ................................................................................................. 34 WPI 16.02 ................................................................................................. 34 WPI 21.08 ................................................................................................. 34 WPIC 10.01............................................................................................... 35 WPIC 18.20............................................................................................... 36 WPIC 35.50............................................................................................... 35

INTRODUCTION

On June 18, 2017, Officer Jason Anderson of the Seattle Police Department (“SPD”) received a non-emergency dispatch related to an alleged theft of an x-box gaming console from Charleena Lyles’ apartment at the Solid Ground housing complex. Because Charleena had a history of psychotic behavior and making violent threat towards police officers, Officer Anderson requested the assistance of a backup officer in responding to the dispatch. Officer Steven McNew was then dispatched to assist Officer Anderson. What started as a routine response to this dispatch turned into a tragedy when Charleena’s demeanor suddenly changed and she started brandishing a kitchen knife at the officers. Instead of attempting to deescalate the situation, Charleena was shot and killed by Officers Anderson and McNew in her apartment with three of her children present. This needless shooting and senseless death would not have happened if these two officers had followed and complied with SPD policies and procedures. To recover for her death, Plaintiffs filed this lawsuit against Officers Anderson and McNew, as well as the City of Seattle. The two officers then filed a joint summary judgment motion against the Plaintiffs on the issue of liability. At the same time, the Plaintiffs brought a motion

for partial summary judgment against all three defendants asking the Court to find them liable as a matter of law under CR 56(c) for their negligent conduct in handling the confrontation with Charleena. On January 4, 2019, the trial court granted the officers’ summary judgment motion and denied the Plaintiff’s motion for partial summary judgment. Eighteen days later, on January 22, 2019, the trial courted entered a final judgment in favor of both officers. Plaintiffs now appeal the granting of the officer’s summary judgment motion and the denial of their motion for partial summary judgment. II.

ASSIGNMENTS OF ERROR

The trial court erred in entering the following orders: 1. The trial court’s January 4, 2019 Order Granting Defendants Anderson and McNew’s Motion for Summary Judgment.1 2. The trial court’s January 4, 2019 Order Denying Plaintiffs’ Partial Motion for Summary Judgment and Granting City Defendants’ Joint Motion to Strike Inadmissible Evidence.2 III.

ISSUES

Issue One: Did the trial court err as a matter of law in granting the Defendant Officers’ motion for summary judgment on the basis of the public duty doctrine?

1 2

CP 1281-1283. CP 1284-1286. 2

Answer: Yes. Because the Plaintiffs’ claims in this case all arise from duties imposed under common law negligence, as opposed to duties arising from a statute, ordinance, or regulation, the public duty doctrine does not apply in this case and the trial court erred in granting the officer’s motion for summary judgment on the basis of the Public Duty Doctrine. As emphasized by a five justice majority of our Supreme Court in Munich v. Skagit Emergency Commc'n Ctr., 175 Wn. 2d 871, 288 P.3d 328 (2012), the public duty doctrine only applies to governmental duties that are created by statute, ordinance, or regulation and that the doctrine does not apply to duties imposed by the common law: [T]he only governmental duties we have limited by application of the public duty doctrine are duties imposed by a statute, ordinance, or regulation. This court has never held that a government did not have a common law duty solely because of the public duty doctrine. Id, 175 Wn.2d at 886-87(Chambers, J. concurrence).3 In this case, the Plaintiffs’ claims against Officers Anderson and McNew are based on common law negligence. The Plaintiffs have never claimed that Officers Anderson and McNew breached any duties imposed on them by statute, ordinance, or regulation. Instead, the Plaintiffs claim 3

Just last month, in Beltran-Serrano v. City of Tacoma, ___ Wn.2d ___, 442 P.3d 608 (2019), the Supreme Court quoted the language above from Justice Chambers’ concurrence in Munich with approval and noted that this concurrence has precedential value because it was signed by five Supreme Court justices. Id., 442 P.3d at 614, n. 8. 3

that the Officers Anderson and McNew’s violated various SPD internal policies and that these violations are evidence of their negligence. Issue Two: Did the trial court err in granting the Defendant Officers’ motion for summary judgment on the basis that an intentional use of force by a police officer forecloses a negligence claim premised on the officer’s failure to use reasonable care to avoid the use of force? Answer: Yes. In Beltran-Serrano v. City of Tacoma, ___ Wn.2d ___, 442 P.3d 608 (2019), our Supreme Court recently rejected an almost identical claim made by the Defendants in that case and held that “an intentional tort claim does not foreclose a negligence claim premised on the failure to use reasonable care to avoid the use of force.” Id., 442 P.3d at 611. Based on the court’s opinion in Beltran-Serrano, the trial court erred in granting the Defendants’ summary judgment on the basis that an intentional use of force by a police officer precludes a plaintiff from bringing a negligence based on an officer’s failure to use reasonable care to avoid the use of force. Issue Three: Did the trial court err in applying the felony defense statute (RCW 4.24.420) in this case because factual issues exist as to whether or not Charleena Lyles had the capacity to form the specific intent necessary to commit the felonies alleged by the Defendants?

Answer:

Yes. Each of the felonies alleged by the Defendants above includes

specific intent as an element of the crime. 4 Because specific intent is an element of each of these offenses, diminished capacity may be raised as a defense to these felony offenses. State v. Thomas, 123 Wn. App. 771, 779, 98 P.3d 1258 (2004) (if specific intent or knowledge is an element of a crime, evidence of diminished capacity can then be considered in determining whether the defendant had the capacity to form the requisite mental state). In order to establish diminished capacity as a defense, “expert testimony must establish that a mental disorder, not amounting to insanity, impaired the defendant's ability to form the culpable mental state to commit the crime charged.” State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). In this case, Plaintiffs presented the testimony of Dr. Mark B. Whitehill, a licensed psychologist, who performed a “psychological autopsy” on Charleena to determine whether she had the capacity to form the requisite mens rea to commit the felonies alleged by the Defendants.5 Dr. Whitehill concluded that Charleena was suffering from a serious and long-standing mental illness and that the evidence supported a finding that Charleena was in a psychotic state when she

The alleged felonies are third degree assault (RCW 9A.36.031(1)(g)), first degree assault with a deadly weapon (RCW 9A.36.011(1)), and attempted murder (RCW 9A.28.020(1),(3)). 5 CP 1377. 5

brandished the knife at the officers and lacked the capacity to intend to assault during her psychotic break.6 Based on Dr. Whitehill’s testimony, as well as other evidence presented by the Estate, the trial court erred in applying the felony defense statute in this case because there are factual issues regarding whether or not Charleena had the capacity to form the specific intent necessary to commit the felonies alleged by the Defendants. Issue Four: Did the trial court err in denying the Plaintiffs’ motion for partial summary judgment as to the following affirmative defenses asserted by the Defendants: Qualified immunity; Proper and lawful discretion; Discretionary immunity; and Assumption of risk? Answer: Yes. See the discussion below as to each of these affirmative defenses.7,8

CP 1385-1386. The Defendants also asserted affirmative defenses of the public duty doctrine and the felony defense. The Plaintiffs address both of these affirmative defenses in detail with respect the trial court’s granting of the officers’ summary judgment motion and these arguments will not be repeated with respect to the Plaintiffs’ motion for partial summary judgment. 8 In addition to the affirmative defenses above, the Defendants also asserted affirmative defense on proper and lawful discretion, the fault of Charleena Lyles, and on the violation of constitution and laws, and RCW 4.92 et seq. The 7

ISSUE FIVE: Did the trial court err in striking the declarations of three of the Plaintiffs’ expert witnesses? Answer: Yes. See the discussion below as to each of these three witnesses. IV. A.

STATEMENT OF CASE

The June 18, 2017 Incident. On June 18, 2017, Officers Jason Anderson and Steven McNew of

the Seattle Police Department (“SPD”) went to the apartment of Charleena Lyles to investigate her report of a burglary, and during the encounter shot Charleena to death.9 This tragic incident could have been avoided if the Officers had acted reasonably and in accordance with SPD policies, procedures, and training. The two officers were aware of the June 5, 2017 incident when they responded to Charleena’s burglary call just a couple weeks later on June 18, 2017.10 Upon arriving at Charleena’s apartment building, Officer Anderson ran a routine records check on the address.11 That record included an Officer Safety Caution detailing the June 5, 2017 incident just

Plaintiffs asked the Defendants for a factual basis for each of these affirmative defenses, but the Defendants failed to do so. CP 892-898; 972-978. Because the Defendants failed to respond, the trial court should have granted the Plaintiffs’ motion for summary judgment as to these defenses and stricken them. 9 See CP 571-578. 10 See CP 496, 503; CP 516-517, 533; CP 573. 11 Id. (CP 573). 7

weeks earlier, when Charleena had brandished and threatened officers with a large pair of scissors. And, as was noted in the Officer Safety Caution, the SPD officers involved in the June 5th encounter felt that Charleena was suffering from a mental illness.12 As a result, Officer Anderson requested backup and Officer McNew was dispatched to Charleena’s apartment complex.13 Officer McNew was not TASER certified, but he had attended the 40-hour Crisis Intervention Training and several eight-hour courses of annual additional CIT training.14 Officer Anderson told Officer McNew about the Officer Safety Caution.15 Both officers knew that Ms. Lyles could pose a threat of physical violence and that she might also be in mental crisis.16 The officers also knew that crisis intervention techniques were used to end the earlier incident.17 They discussed this and they planned not to “let her get behind us or between us and the door.”18 Officer Anderson was certified to carry a TASER and had been issued an Axon X2.19 Part of Officer Anderson’s specific training 12

See CP 496, 503; CP 516-517, 533; CP 573. Id. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 CP 509. 13

regarding the use of his TASER included what to do when confronted with suspects who threatened officers with knives or other sharp-edged objects.20 TASER officers were trained that TASERs were “an effective force option against subjects who might be possessing potentially deadly weapons such as knives, heavy objects or clubs when the proper team tactics are used.”21 Yet Officer Anderson was not carrying his TASER when he responded to Charleena’s burglary call, and had not done so for 1½ to 2 weeks before the incident.22 Although his TASER had stopped functioning, Officer Anderson did not report this to his superiors. Instead, he simply left his TASER in his locker.23 Officer Anderson did not tell Officer McNew that he did not have his TASER as they were planning how to approach Charleena on June 18, 2017. Nor did either officer request a TASER officer who actually had a functioning TASER equipped.24 Despite the officers’ knowledge that Charleena could be suffering from a mental illness and could pose a threat of physical violence, as well as their plan not to “let her get behind us or between us and the door” and 20

CP 673-675; CP 676-678, 679; CP 683-685; CP 687-688; CP 691-694. CP 676-678. 22 CP 509. 23 Id. 24 CP 496, 503; CP 516-517, 533; CP 573. 21

Officer McNew’s CIT training, Officer McNew became distracted and allowed himself to get trapped in Charleena’s kitchen, a narrow part of the apartment with only one means of exit (pictured in the top left corner of the diagram below).25

Rather than keeping an eye on Charleena and his position relative to hers, Officer McNew was “standing in the kitchen looking noting [sic] old pans of food, listening to Officer Anderson conducting his burglary investigation.”26 It was then that Officer McNew “heard a commotion,” looked up, and saw that Charleena had brandished a knife27 and was

CP 497-498; CP 518-519; CP 574-576. CP 574-576. 27 CP 518-519; CP 574-576. 26

lunging at Officer Anderson, who was standing near the entrance to the apartment. Officer Anderson dodged out of the way and Charleena backed up into the living room area.28 Before this commotion, Charleena had been cooperative and calmly answering questions. But suddenly her calm, nonthreatening, nonchalant demeanor changed to yelling and grimacing and her body tensed and her muscles tightened, much like what had happened to her just two weeks before when she pulled over-sized scissors on the other SPD officers.29 At this point, Officer McNew was in the narrow kitchen, and Officer Anderson was near the front door of the apartment, with Charleena in the living room, with the kitchen counter partially blocking Charleena from Officer McNew (see diagram above).30 While Officer Anderson claims the apartment door was closed,31 video surveillance demonstrates that the door was open, as he was seen outside the apartment in the hallway when he was firing his weapon.32 Had Officer McNew not been distracted – had he been paying attention to Charleena and his position relative to her – he could have noticed Charleena’s change in demeanor

CP 497-498; CP 518-519; CP 574-576. Id. 30 Id. 31 CP 507. 32 CP 828 (screenshot of hallway video surveillance showing Officer Anderson shooting). 29

before he “heard a commotion,” and both he and Officer Anderson could have been able to retreat out the open front door, rather than be cornered by Charleena. But that did not happen. Instead, both officers drew their weapons. Officer McNew yelled to Officer Anderson “Taser”, but Officer Anderson responded that he did not have his.33 It was only after this exchange that both officers fired, killing Charleena.34 B.

Seattle Police Department Policy SPD’s Manual describes the City’s core use of force principles and

policies. According to those policies, the community expects and the Seattle Police Department requires that officers use only the force necessary to perform their duties and that such force be proportional to the threat or resistance of the subject under the circumstances.35 When safe under the totality of the circumstances and time and circumstances permit, officers shall use de-escalation tactics in order to reduce the need for force.36 Conduct prior to the use of force is a factor which can influence the level of force necessary in a given situation.37 Officers should take reasonable care that their actions do not precipitate an unnecessary, 33

CP 497-498; CP 518-519; CP 574-576. Id. 35 CP 467-468. 36 Id. See also CP 469-470. 37 Id. 34

unreasonable, or disproportionate use of force, by placing themselves or others in jeopardy, or by not following policy or training.38 Officers should continually assess the situation and changing circumstances, and modulate the use-of-force appropriately.39 Officers shall only use such force that is objectively reasonable, necessary, and proportionate.40 Officers are to use physical force only when no reasonably effective alternative appears to exist, and only then to the degree which is reasonable to affect a lawful purpose.41 The level of force must be appropriate for the circumstances, including the risks to officers or others.42 The force used must moreover comply with SPD “policies, training, and rules for specific instruments and devices.”43 The SPD equips its officers with “less-lethal devices,” which are used to interrupt a subject’s threatening behavior so that officers may take physical control of the subject with less risk of injury to the subject or officer than posed by greater force applications.44 One such less-lethal device is the CEW/Conducted Electrical Weapons (TASER).45 Officers 38

Id. Id. 40 CP 471-473. 41 Id. 42 Id. 43 Id. 44 CP 474-489. 45 Id. 39

who have been trained and certified to carry a TASER and have been issued one must carry it during their shift.46 Officer Anderson was certified to carry a TASER and was issued an Axon X2.47 C.

Violation of police practices The evidence in this case establishes that just weeks before she

was fatally wounded by Officers Anderson and McNew, Charleena Lyles had threatened police officers with a pair of large kitchen shears and that the SPD believed that Charleena was suffering from mental illness.48 Officers McNew and Anderson knew of Charleena’s previous encounter with the police from that the Officer Safety Caution. The officers also knew that Charleena could be a person in mental crisis before they took any action.49 The only reason that Anderson sought back-up was due to the potential threat of violence from a woman that SPD had determined to be suffering from mental illness.50 Both officers knew that Charleena could pose a threat of physical violence because she might be in mental crisis.51 The officers also knew that crisis intervention techniques were

Id. CP 509. 48 CP 496, 503; CP 516-517, 533; CP 573. 49 Id. 50 Id. 51 Id. 47

used to end the earlier incident.52 The officers clearly knew or should have known that they might be faced with lethal force or force sufficient to cause serious injury before they ever entered the apartment.53 The evidence also establishes that a response with a TASER would have provided an effective and less lethal option for controlling Charleena.54 TASER officers are trained that TASERs are “an effective force option against subjects who might be possessing potentially deadly weapons such as knives, heavy objects or clubs when the proper team tactics are used.”55 McNew’s first instinct was to call for Anderson to use his TASER before both officers opened fire.56 Had the two officers acted in accordance with the SPD TASER training and used an appropriately equipped TASER team, it is more likely than not that the fatal shooting could have been avoided.57 Police practices experts D.P. Van Blaricom and Thomas P. Mauriello both reviewed evidence in this case, including the SPD Manual and various accountings of the above referenced incidents.58 Mr. Van 52

Id. CP 759. 54 Id. 55 CP 760; CP 673-675; CP 676-678; CP 679; CP 683-684; CP 687-688; CP 691694. 56 See CP 524; CP 575. 57 CP 760. 58 CP 733-740; CP 754-761. 53

Blaricom opined that the acts and omissions of both officers were unreasonable, that they failed to exercise the appropriate standard of care, and that their acts and omissions were a cause of the shooting and death of Charleena. Mr. Van Blaricom specifically opined that: 

Based on the June 5, 2017 incident involving other SPD officers, Officers Anderson and McNew knew that Charleena could pose a threat of physical violence and might also be in mental crisis. “The officers clearly knew or should have known that they might be faced with lethal force or force sufficient to cause serious injury before they ever entered the apartment.”59



Officer Anderson failed to carry his mandated less-lethal weapon, an Axon X2 TASER, which he had a duty to wear pursuant to SPD policies.60



Both officers failed to comply with SPD TASER policy and training, under which they should have requested a TASER officer who actually had a TASER, and used the TASER training techniques to respond to the call. This “constitutes officercreated jeopardy which helped to precipitate the events that led to the shooting.”61

Mr. Van Blaricom further found, more probably than not, that a response with a TASER would have provided an effective less lethal option, and that more probably than not the fatal shooting could have been avoided.62 Mr. Mauriello similarly opined that the shooting was unreasonable

CP 759, 761. CP 759-760, 761. 61 CP 760-761. 62 Id. 60

and that it represented a failure on the part of the two officers to exercise the degree of skill, care, diligence, and learning that would be expected of a reasonable police officer under the same or similar circumstances. Mr. Mauriello further opined that the officers could have avoided the use of deadly force by simply tackling Charleena to the ground: Lyles allegedly threatened officers with a knife in her apartment[.] The officers did not have a TASER, but both had batons. The officers here opened fire once McNew discovered that there was no TASER. There were two officers. They were both substantially larger and stronger than the diminutive Ms. Lyles. Anderson could have instantly shifted his position [from] the entryway into the apartment into the internal hallway so that the officers were on either side of her. If she was actually approaching either officer as alleged, it would have been a simple matter for the officer behind her to tackle her and take her to the ground. Both officers were equipped with batons and either could have used the baton to deflect any knife she may have had while the other one took her to the ground. This most likely could have been done with no or minimal injury to her or the two officers.63 D.

Charleena Lyles’ background. Before her death at age 30, Charleena lived a difficult life. She

grew up in a broken home, witnessed her mother being physically abused and was herself sexually abused both in childhood and adolescence. Charleena suffered from chronic homelessness. Her records reveal a history of depression that surged when Charleena’s mother died at age 45 63

CP 759-760. Mr. Mauriello further noted that this shooting was unreasonable due to the risk of hitting the children who were in close proximity. Ibid. 17

in 2005. As an adult, Charleena was repeatedly subject to domestic violence from her partners and had frequent contact with law enforcement. Charleena had difficulty caring for her four children, one of whom has Down’s Syndrome.64 Charleena participated in limited mental health counseling. Multiple providers diagnosed her with major depressive disorder, PTSD, and adjustment disorder. Charleena also exhibited signs of paranoia, delusion, and psychotic features, including the belief that someone driving a green truck was following her, that her children were being targeted at school, and that people were breaking or going to break into her apartment. There were instances where for no evident reason she yelled about her phones being tapped and thought that “the baby” was “in on it,” and that other residents of her apartment were whispering judgments and conspiring against her. Her paranoia was also reflected in statements made by her children, one of whom was reported to have said their apartment was “bugged” and that he was checking for cameras – thoughts Charleena had expressed in the past. A social services staff member was concerned

See CP 1377-1379 (Declaration of Mark B. Whitehill filed under seal 12/7/2018, ¶¶6-10.) 18

that Charleena was decompensating and that this was impacting her children.65 On May 27 or 28, 2017, Charleena had a confrontation with another resident at the apartment complex playground who had asked her to return his gaming unit to him. Charleena told him that she was not going to give anything to him until she got her “12 rolls of toilet paper.” Charleena then went into her building and returned with a large kitchen knife. She brandished the knife for the children in the area to see and exclaimed, “Do you want to die the way my ex-boyfriend died?”66 On June 5, 2017, about two weeks before the shooting, Charleena called the police to report an assault. While at first she was cooperative, buzzing the officers into the building when they arrived, inviting them into her apartment, and answering their questions, at some point in the encounter her demeanor suddenly changed in a manner strongly suggestive of psychosis. She started waving a pair of over-sized scissors at the officers and refused their demands to put them down, all in the presence of her 4-year-old developmentally disabled daughter. She also said that she wanted to “morph into a wolf,” spoke of “cloning” her daughter, and claimed that the police were “devils” and members of the 65

CP 1379-1382 (Whitehill Dec. ¶¶13-26). See also CP 1354-1364 (Declaration of Ed Moore Docket no. 220, Ex. 8.) 66 Ibid. 19

Ku Klux Klan. After several minutes, Charleena eventually complied and sat down on the couch next to her daughter.67 E.

Charleena’s mental state.

After the shooting, Dr. Whitehill performed a “psychological autopsy” on Charleena to assess her mental state during the encounter. He reviewed evidence in this case, including the various accountings of the above incidents and Charleena’s extensive mental health records. Based on his review, Dr. Whitehill opines that Charleena had suffered from serious and long-standing mental illness. Dr. Whitehill believes she suffered a psychotic break that precluded her from having the capacity to intend to assault the officers. Specifically, Dr. Whitehill states: 42. The evidence reviewed here strongly supports the notion that Ms. Lyles had decompensated markedly and was in a psychotic state when she brandished a knife. The suddenness and extent of her transformation from calm to aggressive, from helpful to threatening, is also consistent with a severe reaction to trauma unrelated to the present circumstances. 43. Persons in a severely decompensated state have distorted perceptions, judgment and/or decision-making. Ms. Lyle’s behavior at the relevant time – as reported by both officers – reflects profound deficits in each of these areas. Her perception of the officers as helpful and responsible had changed markedly; one may even question whether she continued to perceive them as officers (as opposed to some darker atavistic abuser). It is also arguably true that her judgment and decision-making were markedly 67

CP 1382-1383 (Whitehill Dec. ¶¶27-28). 20

compromised in brandishing a knife in the presence of two armed officers. 44. As a result of these deficits, despite significant evidence of Ms. Lyles’ capacity for intentional conduct in advance of her sudden decompensation (e.g. buzzing the officers into her apartment, calmly answering questions about the alleged burglary, etc.) Ms. Lyles did not have the capacity to intend to assault during her psychotic break. While her conduct as described while brandishing the knives suggested the appearance of assaultive capacity, her debilitated mental state, in which she arguably did not know what she was doing, rendered such capacity absent.68 V. A.

ARGUMENT

public duty doctrine barred the Plaintiffs’ claims against them.

But,

contrary to the Defendant Officers’ claims, the public duty doctrine does not provide “immunity” from liability, and a “public duty” analysis is not triggered simply because a defendant happens to be a government agency or entity. Osborn v. Mason County, 157 Wn.2d 18, 27, 134 P.3d 197 (2006).

Indeed, Washington courts “have almost universally found it

unnecessary to invoke the public duty doctrine to bar a plaintiff's lawsuit.” Bailey v. Town of Forks, 108 Wn.2d 262, 266, 737 P.2d 1257 (1987). 175 Wn.2d 871, 288 P.3d 328 (2012).

See CP 1376-1386 (Whitehill Dec. filed under seal 12/7/2018). 21

The leading opinion on the scope and application of the public duty doctrine in Washington is Justice Chambers’ concurring opinion in Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871, 288 P.3d 328 (2012). Justice Chambers’ concurrence makes it very clear that the reason for the limited application of the public duty doctrine is that the doctrine only applies to duties imposed on governmental entities by statute, ordinance and/or regulation. Justice Chambers’ concurrence also makes it very clear that the public duty doctrine does not apply to claims based solely on common law negligence such as those brought by the Lyles Estate in this case against the two officers.69 Despite the clarity of Justice Chambers’ concurrence in Munich, defense counsel tried to evade the precedential value of Justice Chambers’ opinion in the trial court by arguing that the Chambers’ concurrence was not the Supreme Court’s holding in that case.70 Counsel advanced this argument notwithstanding the fact that Justice Chambers’ concurrence was signed by five Supreme Court justices and has been recognized by both Division Three and this Division as being precedential and controlling.71

RP 31-32. RP 31-32. 71 See Mita v. Guardsmark, LLC, 182 Wn. App. 76, 84 n.2, 328 P.3d 962 (2014); See also this Court’s unpublished opinion in Mancini v. City of Tacoma, 188 Wn. App. 1006 (2015) (“Nominally, [Justice Chambers’ opinion was a concurrence. However, it was signed by a majority of the members of our state's highest court. 70

Any doubts as to the precedential value of the Chambers’ concurrence have now been put to rest by the Supreme Court in its recent opinion in Beltran-Serrano v. City of Tacoma, ___ Wn.2d ___, 442 P.3d 608 (2019), which extensively quotes and relies on Justice Chambers’ concurrence in Munich and which specifically states that Justice Chambers’ concurrence has precedential value because it was signed by five justices who also signed the majority opinion in Munich. Id., 442 P.3d at 614, n. 8. Justice Chambers begins his analysis by noting that the legislature repealed governmental immunity for local governments by enacting RCW 4.96.010(1). Under the statute, a local government is liable in tort “to the same extent as if [it] were a private person or corporation.” Justice Chambers then noted that applying governmental liability can be problematic because statutes, ordinances, and administrative rules mandate that public entities perform many functions private entities do not. Munich, 175 Wn.2d at 887 (Chambers, J., concurring). Thus, when a plaintiff alleges that a public entity breached a duty imposed by statute, ordinance, or administrative rule, courts employ the public duty doctrine as a “tool” in analyzing whether the legislative body intended the duty to extend to the general public or a particular class of individuals. Id., 175

Accordingly, it controls our decision in this matter.”). Mancini, 188 Wn. App. 1006 at *6. 23

Wn.2d at 888 (Chambers, J., concurring); Beltran-Serrano, 442 P.3d at 614. If the public entity owes this legislatively mandated duty to the general public, it does not owe the duty to any particular person harmed by its breach. Munich, 175 Wn.2d at 888–90 (Chambers, J., concurring). This limitation ensures the public entity has no greater liability than private entities. Id., 175 Wn.2d at 886, 894 (Chambers, J. concurring); Beltran-Serrano, 442 P.3d at 614. Justice Chambers then emphasized that the public duty doctrine does not apply when, as in this case, a plaintiff alleges the public entity breached a common law duty it shares in common with private entities. Munich, 175 Wn.2d at 888, 894 (Chambers, J. concurring). As a matter of law, duties imposed by common law are owed to all those who may be foreseeably harmed by the breach of the duty regardless of whether the defendant is an individual person, corporation, or governmental entity. Id., 175 Wn.2d at 891 (Chambers, J. concurring). In other words, the public duty doctrine does not apply to common law claims against a governmental entity: Since its inception, the “public duty” analysis has remained largely confined to cases in which the plaintiff claims that a particular statute has created an actionable duty to the “nebulous public.” Although we could have been clearer in our analyses, the only governmental duties

we have limited by application of the public duty doctrine are duties imposed by a statute, ordinance, or regulation. This court has never held that a government did not have a common law duty solely because of the public duty doctrine. Munich, 175 Wn.2d at 886-87 (Chambers, J. concurring). In Beltran-Serrano, supra, the Supreme Court elaborated further on this point by stating: Importantly, this court has recognized that the public duty doctrine comes into play when special governmental obligations are imposed by statute or ordinance. Id. at 886 (Chambers, J., concurring). As to common law negligence, Justice Chambers pointed out in his concurrence in Munich that “[t]his court has never held that a government did not have a common law duty solely because of the public duty doctrine.” Id. at 886-87 (emphasis added). To apply the doctrine so broadly would inappropriately lead to a partial restoration of immunity by carving out an exception to ordinary tort liability for governmental entities. Id. at 892. This would undermine the value of tort liability to protect victims, deter dangerous conduct and provide a fair distribution of risk of loss. Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 407, 241 P.3d 1256 (2010) (Chambers, J, concurring). Beltran-Serrano, 442 P.3d at 613–14. Even when a case involves a statutory duty, a governmental entity may still be liable if one of the four exceptions to the public duty doctrine applies. These exceptions are: (1) legislative intent, (2) failure to enforce, (3) the rescue doctrine, and (4) special relationship. If any one of the exceptions applies, the government is held as a matter of law to owe a

duty

the

concurring).

plaintiff.

Munich, 175 Wn.2d at 879

(Chambers,

But none of these exceptions are relevant in this case,

because this case does not involve a violation of a statute, ordinance, or regulation by the Defendants and the public duty doctrine simply does not apply. Here, it is undisputed that the Plaintiffs’ claims against the Officers are based solely on common law negligence. As admitted by the Officers in their summary judgment motion, “[t]he only claims that remain are common law negligence and assault.”72 Because the public duty doctrine does not apply in this case, there is no need for the Plaintiffs to analyze or discuss these four exceptions in this brief. The Estate’s claims against the Defendants in this case are based on common law negligence rather than statutory violations. Specifically, the Estate is alleging that Officers Anderson and McNew negligently failed to follow SPD policies and directives during their encounter with Charleena as described in detail below. Under Washington law, such policies and directives do not have the force of law, but they are evidence of the standard of care and are therefore evidence of negligence: Unlike administrative rules and other formally promulgated agency regulations, internal policies and directives generally do not create law. See Melville v. State, 115 Wn.2d 34, 793 P.2d 952 (1990)… because the Department's policy directives are not promulgated 72

CP 252. 26

pursuant to legislative delegation, they do not have the force of law. See State v. Brown, 142 Wn.2d 57, 62, 11 P.3d 818 (2000). Internal directives, department policies, and the like may provide evidence of the standard of care and therefore be evidence of negligence. Joyce v. State, Dep't of Corr., 155 Wn. 2d 306, 323-24, 119 P.3d 825 (2005). Because the Plaintiffs’ claims in this case arise from duties imposed under common law negligence, as opposed to duties arising from a statute, ordinance, or regulation, the trial court erred in granting the Officer’s Motion for Summary Judgment on the basis of the public duty doctrine. B.

turn an intentional use of force case into a claim of negligence” and that “[t]here is no such thing in Washington as a negligent intentional use of force case.”73 But these arguments were made before our Supreme Court issued its recent opinion in Beltran-Serrano v. City of Tacoma, supra. In Beltran-Serrano, a police officer shot an unarmed homeless man who was mentally ill. The Pierce County Superior Court dismissed the plaintiff’s negligence claim agreeing with the City of Tacoma that the sole

RP 13; RP 15. 27

avenue for any recovery must be an intentional tort claim. The plaintiff then filed a motion for discretionary review in the Supreme Court, which was granted. Like the Officers in this case, the City argued that “[t]here is no such thing as the negligent commission of intentional tort.” BeltranSerrano, 442 P.3d at 611. The Supreme Court specifically rejected the City’s argument, holding that “an intentional tort claim does not foreclose a negligence claim premised on the failure to use reasonable care to avoid the use of force.” Ibid. As discussed above, the Plaintiffs’ claims in this case are based upon common law negligence and throughout these proceedings the Plaintiffs have consistently claimed that the Officers acted negligently in their tactics, planning, and execution of the interaction with Charleena Lyles. These are precisely the same type of negligent claims that our Supreme Court addressed and approved of in Beltran-Serrano. In the court below, the Officers also claimed that they could not be liable for any claims based on “pre-contact events”: Plaintiffs have a fundamental problem with their state law claims. Any activity on the part of these officers in responding and equipping themselves is not actionable. It's just simply not actionable. And that's why – and Plaintiffs ignored this factual distinction -- we spent time outlining the facts of pre-contact versus actions postcontact.

And so we respectfully ask that the Court, to the extent that either of these two claims is based upon precontact events, that those be dismissed.74 Once again, the Officers run afoul of Beltran-Serrano which makes it clear that the question of whether or not a law enforcement officer’s acts amount to negligence is based on the totality of the circumstances leading up to an intentional shooting, including pre-contact events and activities: The core of [Beltran-Serrano’s] negligence claim is that Officer Volk unreasonably failed to follow police practices calculated to avoid the use of deadly force. CP at 77-78. Beltran-Serrano focuses on Officer Volk’s negligence leading up to the shooting, including her failure to respond appropriately to clear signs of mental illness or impairment, her decision to continue to engage with Beltran-Serrano in English, and her decision to prevent him from walking away..While these negligence claims relate to events that culminated in Officer Volk intentionally shooting BeltranSerrano, they do not assert a “negligent intentional shooting.” Instead, they require consideration of the totality of the circumstances involved in the encounter between Officer Volk and Beltran-Serrano, and identify potential negligence in the series of actions leading up to the decision to shoot. Beltran-Serrano, 442 P.3d at 611–12 (footnote omitted). The Supreme Court cites California Supreme Court’s decision in Hayes v. County of San Diego, 57 Cal. 4th 622, 626, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013). Hayes holds that a police officer’s pre-shooting and pre-contact actions may be considered in determining whether or not 74

RP 7-8. 29

the officer’s use of deadly force was reasonable under the totality of the circumstances. See Beltran-Serrano, 442 P.3d at 611. In Hayes, police officers were called to a house and advised that the man inside was potentially suicidal. When the officers entered the house to investigate, the man approached them, holding a knife in his raised hand. Both officers drew their firearms and fired two shots, killing the man. Hayes, 57 Cal. 4th at 629. The case was tried by the decedent’s daughter in a California federal district court which granted summary judgment in favor of the defendant police officers. The daughter appealed to the Ninth Circuit which certified the following question to the California Supreme Court: Whether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force. Hayes, 57 Cal. 4th at 630. The California Supreme Court responded to this question by stating that such liability can arise “if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of the circumstances, that the use of deadly force was unreasonable.” Hayes, 57 Cal. 4th at 626.

In reaching this conclusion, the California court

emphasized that “pre-shooting conduct is included in the totality of circumstances surrounding an officer's use of deadly force, and therefore

the officer's duty to act reasonably when using deadly force extends to preshooting conduct.” Id., 57 Cal. 4th at 632. The court then concluded as follows: Our case law has long recognized that peace officers have a duty to act reasonably when using deadly force. (See Olin, supra, 24 Cal.3d 629, 156 Cal.Rptr. 727, 596 P.2d 1143; Grudt, supra, 2 Cal.3d 575, 86 Cal.Rptr. 465, 468 P.2d 825.) If plaintiff (Shane's daughter) is asserting that negligence in the sheriff's deputies' preshooting conduct somehow caused Shane to seek his own death at their hands (by coming at them with a large knife), that fact-based theory falls within the totality of circumstances surrounding the shooting and can be litigated in federal court proceedings determining the reasonableness of the deputies' use of deadly force. (See Grudt, supra, 2 Cal.3d at pp. 585–588, 86 Cal.Rptr. 465, 468 P.2d 825.) The reasonableness of the deputies' preshooting conduct should not be considered in isolation, however; rather, it should be considered as part of the totality of circumstances surrounding the fatal shooting of Shane. Hayes, 57 Cal. 4th at 637–38. As Beltran-Serrano now makes clear, police officers have a duty to act reasonably when using deadly force, a duty that extends to the totality of circumstances surrounding the shooting, including the officers' pre-shooting conduct. In this case, based on the Officer Safety Caution, Officers Anderson and McNew knew that Charleena might be suffering from a mental illness and that when they approached her, she might respond irrationally or violently. Yet, they failed to take precautions to

prevent this from happening, thereby precipitating Charleena’s alleged attack on them. Under common law, a defendant owes a plaintiff the duty to exercise reasonable care if the defendant, by act or misfeasance, poses a risk of harm to the plaintiff, as where the defendant actively creates or increases peril and exposes the plaintiff to it. See Robb v. City of Seattle, 176 Wn.2d 427, 436–37, 295 P.3d 212 (2013); Mita v. Guardsmark, LLC, 182 Wn. App. 76, 84, 328 P.3d 962 (2014). Once an officer acts with regard to an individual, he or she has a duty to act reasonably to avoid a risk of harm to that individual. Washburn v. City of Federal Way, 178 Wn.2d 732, 758, 310 P.3d 1275 (2013); Robb, 176 Wn.2d at 436-7; Mita 182 Wn. App. at 84; Coffel v. Clallam County, 47 Wn. App. 397, 403-404, 735 P.2d 686 (1987). The Officers common law duty began in this case when Officer Anderson decided to respond to Charleena’s burglary call. It did not begin when both Officers knocked on Charleena’s door. Once the Officers affirmatively acted, they had a common law duty to Charleena to act reasonably. Here, Defendants’ own policies and procedures explicitly acknowledge this duty. SPD’s Manual notes that conduct prior to the use

of force is a factor which can influence the level of force necessary in a given situation, and that officers should take reasonable care that their actions

not

precipitate

unnecessary,

unreasonable,

disproportionate use of force, by placing themselves or others in jeopardy, or by not following policy or training.75 Under Washington law, an intentional use of force by a police officer does not foreclose a negligence claim premised on the officer’s failure to use reasonable care to avoid the use of force. Beltran-Serrano, 442 P.3d at 411. In this case, the trial court erred in dismissing the Plaintiffs’ common law negligence claims against Officer Anderson and Officer McNew. C.

RCW 4.24.420 does not apply in this case because Charleena Lyles lacked the capacity to form the intent necessary to commit the felonies alleged by the Defendants. Defendants contend that Plaintiffs’ claims are barred under the

felony defense statute (RCW 4.24.420) because Charleena was allegedly engaged in commission of three felonies when Officers Anderson and McNew shot and killed her: third degree assault under RCW 9A.36.031(1)(g); first degree assault with a deadly weapon under RCW 9A.36.011(1); and attempted murder under RCW 9A.28.020(1), (3).76 But the Defendants’ contentions fail because each of these three crimes 75 76

CP 469-470. CP 270-271. 33

requires proof of a specific intent to commit the crime alleged, and there are genuine issues of material fact as to whether or not Charleena was capable of forming that intent. Washington’s felony defense statute provides that “[i]t is a complete defense to any action for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death…” RCW 4.24.420; WPI 16.01, Felony Defense. Because the felony defense is an affirmative defense, the Defendants have the burden of proof on this issue.

See WPI 21.08,

Burden of Proof on the Issues—Felony Defense (“To establish the defense that the person killed was engaged in the commission of a felony, the defendant

has

the

burden

proving

each

the

following

propositions…”). This burden of proof requires the Defendants to establish each element of the felonies that they allege supports their defense. See WPI 16.02, Felony—Elements. The elements of third degree assault, first degree assault, and attempted murder all include a specific intent. In order to commit an assault, a person must have the specific intent to cause bodily harm or to create an apprehension of bodily harm. State v. Byrd, 125 Wn.2d 707, 713,

887 P.2d 396 (1995) (emphasis added); State v. Williams, 159 Wn. App. 298, 307, 244 P.3d 1018 (2011). First degree assault requires that a person act “with intent to inflict great bodily harm.” RCW 9A.36.011(1). Attempted murder requires that a person act “with intent to commit a specific crime.” RCW 9A.28.020(1). Even where intent is not required by statute, intent is a nonstatutory element of assault, including third degree assault on a law enforcement officer under RCW 9A.36.031(1)(g).77 State v. Finley, 97 Wn. App. 129, 982 P.2d 681 (1999); WPIC 35.50. In such cases, “[a] person acts with intent or intentionally when he or she acts with the objective or purpose to accomplish a result which constitutes a crime.” RCW 9A.08.010(1)(a); WPIC 10.01, Intent – Intentionally – Definition; see also the Note on Use to WPIC 35.50. Under Washington law, diminished capacity is a defense to any crime that includes an element of intent:

Some assaults only involve criminal negligence, and do not require specific intent. See, e.g., RCW 9A.36.031(d), (f) (it is third degree assault to, with criminal negligence, cause bodily harm to another person by means of an instrument likely to produce bodily harm, or accompanied by substantial pain and considerable suffering). See also State v. Coates, 107 Wn.2d 882, 892–93, 735 P.2d 64 (1987) (evidence of defendant’s voluntary intoxication cannot work in any way to negate or obviate mental state of criminal negligence). However, the assaults Defendants allege all have intent as a required element of the crime, and given the circumstances of this case, there does not appear to be any felony Defendants could allege Charleena Lyles was committing that lacked specific intent as an element. 35

Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form intent. WPIC 18.20, Diminished Capacity – Defense. In order to prove diminished capacity: (1) the crime charged must include a particular mental state as an element; (2) the accused must present evidence of a mental disorder; and (3) expert testimony must logically and reasonably connect accused’s alleged mental condition with the asserted inability to form the mental state required for the crime charged. See the Comment to WPIC 18.20 (citing State v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d 626 (2001); State v. Eakins, 127 Wn.2d 490, 502, 902 P.2d 1236 (1995); State v. Griffin, 100 Wn.2d 417, 418–19, 670 P.2d 265 (1983); State v. Guilliot, 106 Wn. App. 355, 363, 22 P.3d 1266 (2001). Lay witness testimony, such as the observations of the officers at or close to the time the alleged offense occurred, is admissible. State v. Stumpf, 64 Wn. App. 522, 526, 827 P.2d 294 (1992). However, expert testimony is required to establish the existence of the alleged mental disorder, as well as how the disorder impaired the accused’s ability to form the required mental state. Atsbeha, 142 Wn.2d at 914; Stumpf, 64 Wn. App. at 526.

Although the Supreme Court has described diminished capacity as an “affirmative defense,” Eakins, 127 Wn.2d at 496, it is more accurate to say that it “negates one of the elements of the alleged crime,” State v. Nuss, 52 Wn. App. 735, 739, 763 P.2d 1249 (1988), or “raise[s] a reasonable doubt as to the mental state element of the State’s case.” State v. James, 47 Wn. App. 605, 608, 736 P.2d 700 (1987) (involving “intoxication causing diminished capacity”). Accordingly, while the defendant in a criminal case may be tasked with producing evidence putting such a defense in issue, such evidence need only create reasonable doubt as to one of the elements of the crime; the “burden of proof” does not shift to the defendant. See State v. W.R., Jr., 181 Wn.2d 757, 762-69, 336 P.3d 1134 (2014) (addressing the burden of proof in a case where consent necessarily negated the element of forcible compulsion). In this case, Dr. Whitehill performed a “psychological autopsy” on Charleena to determine whether she had the capacity to form the requisite mens rea. Based on his review, Dr. Whitehill opines that Charleena had suffered from serious and long-standing mental illness. Dr. Whitehill believes she suffered a psychotic break that precluded her from having the capacity to intend to assault the officers. Dr. Whitehill states: As a result of these deficits, despite significant evidence of Ms. Lyles’ capacity for intentional conduct in advance of her sudden decompensation (e.g. buzzing the officers into her

apartment, calmly answering questions about the alleged burglary, etc.) Ms. Lyles did not have the capacity to intend to assault during her psychotic break. While her conduct as described while brandishing the knives suggested the appearance of assaultive capacity, her debilitated mental state, in which she arguably did not know what she was doing, rendered such capacity absent.78 This diminished capacity means Charleena could not commit the crimes of felony assault or attempted murder, and Defendant’s felony defense argument must fail. The trial court erred in granting summary judgment should not be granted on this ground. In the trial court, the Defendants tried to counter the evidence presented by Dr. Whitehill by claiming that Estate of Lee v. City of Spokane, 101 Wn. App. 158, 2 P.3d 979 (2000) “makes clear that RCW 4.24.420 acts to bar civil damages based on the objective conduct of a decedent aggressor, without any consideration of mens rea.”79

But the

Lee court did not address either diminished capacity or mens rea in its opinion. In fact, the entire discussion of the felony defense in Lee is just three sentences: By the plaintiffs' own account, Mr. Lee pointed a gun at Officer Langford and Ms. Lee after threatening to shoot them. This is first degree assault, a felony. RCW 9A.36.011.

See CP 1376-1387 (Whitehill Dec. filed under seal 12/7/2018). Dr. Whitehill’s findings from his psychological autopsy of Charleena are set forth in greater detail at pgs. 21 and 22 of this brief. 79 CP 1256. 38

It is a complete defense to any action for damages for wrongful death that the person killed was engaged at the time in the commission of a felony and that the felony was a proximate cause of death. RCW 4.24.420. Estate of Lee, 101 Wn. App. at 177. The Defendants also claim that “Ms. Lyles’ actions are not subject to misinterpretation,” and that various actions or behaviors exhibited by her “demonstrated her intent,” and that “she obviously heard the Officers command her to ‘get back’, decided not to ‘get back’, and instead proclaimed her intent to continue her attack.”80 Even so, the officers themselves describe a stark change in Charleena’s demeanor to that of a crazy person. As demonstrated above, Dr. Whitehill considered the accounts by the officers of what transpired and concluded, in his expert psychological opinion, that Charleena did not have the capacity to form the necessary intent.81 While the officers may have concluded that Charleena had the appearance of assaultive capacity, they are not competent to opine whether she had that capacity in fact, and any such opinions on their part are pure conjecture. See Atsbeha, 142 Wn.2d at 914; Stumpf, 64 Wn. App. at 526 (expert testimony required). Defendants failed to present any competent evidence supporting its affirmative defense particularly with respect Charleena’s capacity to form the requisite mental 80 81

CP 269-70. CP 1383. 39

intent necessary to prove the felonies that the Officers alleged Charleena was engaged in committing. Absent such evidence, Defendants’ affirmative defense should have been dismissed by the trial court. See CR 56(c); Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989); Guile v. Ballard Community Hosp., 70 Wn. App. 18, 21, 851 P.2d 689 (1993). D.

The trial court erred in denying the Plaintiffs’ motion for partial summary judgment as to certain affirmative defenses asserted by the Defendants. 1.

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of qualified immunity

Under Washington State common law, law enforcement officers have qualified immunity from tort claims, if their conduct meets a threepart test: (1) they are carrying out a statutory duty, (2) according to the procedures dictated by statute and superiors, and (3) they acted reasonably. Guffey v. State, 103 Wn.2d 144, 152, 690 P.2d 1163 (1984), overruled on other grounds by Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991); Staats v. Brown, 139 Wn.2d 757, 778, 991 P.2d 615 (2000). The Officers conduct in this case does not meet the requirements of this test. First, while there is no evidence that these two officers were carrying out any statutory duty when they responded to the Lyles dispatch,

Officer Anderson did have a duty imposed by SPD Manual 8.300 (TASER) to carry his TASER with him at all times on his shift.82 The lack of the TASER effectively mandated a deadly shooting when Ms. Lyles almost predictably suffered a psychotic break and allegedly threatened the officers. Anderson was disciplined for this policy violation.83 He failed to act in accordance with the duty and his actions were unreasonable.84 SPD Manual 8.100 requires that all use of force by officers comply with policy and training.85 This shooting could not have complied. McNew’s first response to the alleged threat was to call for a TASER. Since there was none, the only less lethal option that these officers apparently believed appropriate was not available. In their minds, they had no option but to shoot. The SPD TASER trainer, Officer Zieger, has testified that the officers could not comply with SPD TASER training because Anderson chose to leave his TASER with a dead battery in his locker:

CP 474-475; CP 481. Id.; see also CP 727-730. 84 CP 754-770. 85 CP 469-470. 83

Defendants did not refute these facts. As such, this shooting was in violation of policy and was unreasonable. The shooting was also unreasonable as the officers chose to use deadly force instead of using the less lethal tools that they had – batons and take-down techniques. The two larger, stronger, trained officers could have easily subdued tiny Charleena.87 They were roughly on either side of her and one could have easily tackled her and the other could have used the baton to deflect or dislodge the knife.88 A use of force that is not in accordance with a duty imposed by superiors or statute cannot support qualified immunity. Staats, 139 Wn.2d at 778-80. A use of force that is unreasonable cannot support qualified immunity. Id. Under this factual scenario, the trial court should have

CP 732. CP 733-753. 88 Id. 87

granted the Plaintiffs’ summary judgment motion as to this affirmative defense. 2.

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of proper and lawful discretion.

The defense of the proper exercise of discretion does not appear to be a lawful defense as far as Plaintiffs have been able to determine. When questioned about any authority for the defense, individual defendants chose not to respond.89 The trial court should have granted the Plaintiffs’ summary judgment motion relating to this “defense” and stricken it. 3.

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of discretionary immunity.

The affirmative defense of discretionary immunity simply does not apply in this case. Our legislature abolished sovereign immunity for the state in 1961 by enacting RCW 4.92.090, which provides that “[t]he state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.” The legislature subsequently abolished sovereign immunity for municipalities in 1967 with the enactment of RCW 4.09.010. Responding to the abolition of sovereign immunity, in Evangelical 89

CP 408. 43

United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965), the Supreme Court created a discretionary governmental immunity exception. Under this exception, “discretionary” governmental acts are immune from tort liability whereas “ministerial” or “operational” acts are not. Id., 67 Wn.2d at 254–255.90 The Supreme Court has made it clear that discretionary immunity is narrow and applies only to basic policy decisions made by a high-level executive. As stated in Taggart, To fall within this exception, however, the discretionary act must not only involve a basic policy determination, but must also be the product of a considered policy decision. As we said in King v. Seattle, at 246, 525 P.2d 228: “The 90

In order for this exception to apply, a party claiming this defense must establish that: (1)

The challenged act, omission, or decision necessarily involves a basic governmental policy, program, or objective;

(2)

The questioned act, omission, or decision is essential to the realization or accomplishment of that policy as opposed to one which would not change the course or direction of the policy, program, or objective;

(3)

The act requires the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved; and

(4)

The governmental agency involved possesses the requisite authority. Evangelical United Brethren Church, 67 Wn.2d at 255.

In addition to these four elements, a party asserting this defense must also show that its decision was (1) the outcome of a conscious balancing of risks and advantages; and (2) the decision was a basic policy decision made by a high-level executive. See Taggart v. State, 118 Wn.2d 195, 214–215, 822 P.2d 243 (1992). 44

fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.” Taggart, 118 Wn. 2d at 214–15. In Chambers–Castanes v. King Cy., 100 Wn.2d 275, 282, 669 P.2d 451 (1983), our Supreme Court held that the decision whether to dispatch a police officer to the scene of a crime was not protected under discretionary immunity because it was not a basic policy decision by a high-level executive: A simple decision whether to dispatch an officer to the scene of a crime or to investigate a crime, without more, does not involve a basic policy decision by a high level executive which would render the decision maker immune from suit. Rather, the decision is more properly characterized as operational, for it involves a type of discretion exercised at an everyday operational level. Chambers-Castanes, 100 Wn. 2d at 281–83. Like the police officers dispatched in Chambers-Castanes, Officers Anderson and McNew were simply carrying out ministerial or operational duties, as were the City employees who dispatched the two officers to the Lyles residence. As the Supreme Court has repeatedly stated, discretionary immunity seeks to protect high level governmental policy decisions. This case does not involve any high level policy decision by the City of Seattle or by Officers Anderson and McNew. The trial court erred in denying the

Plaintiffs summary judgment on the affirmative defense of discretionary immunity. 4.

The trial should have granted the Plaintiffs’ partial summary judgment motion as to the Defendants’ affirmative defense of assumption of risk

There is no evidence that Charleena Lyles assumed the risk of being killed when she engaged with the Defendant Officers.

Washington, there are four categories of assumption of risk: (1) express; (2) implied primary; (3) implied unreasonable; and (4) implied reasonable assumption of risk. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010). Express and implied assumption of the risk act as a complete bar to a plaintiff’s recovery. Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P.3d 531, 535 (2016). The other two categories of assumption of the risk,” implied unreasonable” and “implied reasonable,” meld into contributory negligence and merely reduce the plaintiff's recoverable damages based on comparative fault pursuant to RCW 4.22.005 and .015. Scott By & Through Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 497, 834 P.2d 6 (1992). In this case, the only possible form of assumption of risk that could apply is primary assumption of risk. Express assumption of the risk is a contracted for, bargained for, formalized assumption of risk, with a full understanding of the specific risks undertaken, such as an express written

waiver. Leyendecker v. Cousins, 53 Wn.2d 675, 770 P.2d 675 (1989). That is not the case here. “Implied primary assumption of risk arises where a plaintiff has impliedly consented (often in advance of any negligence by defendant) to relieve defendant of a duty to plaintiff regarding specific known and appreciated risks.” Scott, 119 Wn.2d at 497. The Court "construe(s) the doctrine narrowly because implied primary assumption of risk is a complete bar to recovery." Lascheid v. City of Kennewick, 137 Wn. App. 633, 641, 154 P.3d 307 (Div 3 2007). The elements of implied primary assumption of risk are that 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. Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). As stated in WPI 13.03, “[a] person impliedly assumes a risk of harm if that person knows of the specific risk associated with a course of conduct, understands its nature, voluntarily chooses to accept the risk by engaging in that conduct, and impliedly consents to relieve the defendant of a duty of care owed to the person in relation to the specific risk.” As discussed at length elsewhere in this brief, the evidence is that Charleena Lyles suffered from psychosis and could not have satisfied the elements of primary implied assumption of risk. As her behavior during

the shooting vividly demonstrated, Charleena lacked the mental capacity to have a subjective understanding of the risk of the specific harm caused by her conduct. Nor did she have a subjective understanding that she was impliedly consenting to being shot to death by Officers Anderson and McNew. Without belaboring the point, the evidence simply does not support assumption of risk as affirmative defense under these facts. The trial court should have granted the Plaintiffs’ partial summary judgment motion as to this defense. E.

The trial court erred in granting the Defendants’ motion to strike the Plaintiffs’ experts on police conduct. The declarations of Mr. Mauriello and Mr. Van Blaricom are both

material and relevant. Defendants claim that Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) somehow applies in another attempt to transform this into a federal case.91 Graham is a section 1983 case that does not contain the word “negligence”; it has no bearing whatsoever on this case. See Graham v. Connor, 490 U.S. 386 (1989). The declarations are based upon the facts of this case and, in large part, duties mandated by the SPD. Expert testimony on police practices has generally been found to be admissible in cases involving allegations of police misconduct. See, 91

CP 850-852. 48

Washburn, 178 Wn.2d at 741-42 (D.P. Van Blaricom testimony admitted); Donaldson v. City of Seattle, 65 Wn. App. 661, 831 P.2d 1098 (1992) (Van Blaricom testimony admitted); Baldwin v. City of Seattle, 55 Wn. App. 241, 246, 776 P.2d 1377 (1989) (Van Blaricom testimony admitted). Experts are permitted to testify in the form of an opinion even where that testimony embraces an ultimate issue to be decided by the trier of fact. ER 704. Both experts describe the evidence and facts they relied upon, including the SPD’s FIT report, the Defendant Officers’ statements, and the SPD’s Manual, none of which Defendants dispute. Both experts have actual police experience, teaching, training and consulting experience. Based on the evidence, the SPD policies, and their training, education and experience, they reached their specific opinions that the Defendant Officers’ conduct was unreasonable, did not comply with SPD’s policies, and was a cause of Ms. Lyles’ shooting and death. There is nothing novel about this methodology and it satisfies both ER 702 and Frye.92 F.

The trial court erred in granting the Defendants’ motion to strike the testimony of Dr. Whitehill. Our Supreme Court has already held Dr. Whitehill capable and

qualified to testify regarding diminished capacity without being present at 92

In fact this methodology appears to be the same as that used by defense police practices expert, Jeff Noble See CP 1128-1191. 49

the scene. State v. Ellis, 136 Wn.2d 498, 522-23, 963 P.2d 843 (1998). Dr. Whitehill’s opinion here is exactly the same – that Ms. Lyles did not have the capacity to commit a felony assault. Dr. Whitehill is a licensed clinical and forensic psychologist who specializes in psychological analysis in the context of civil, criminal, and administrative legalproceedings. Psychological autopsies to determine the mental state of someone already deceased are an established practice in forensic psychology. His report describes the methodology, which is accepted in the field of forensic psychology. Available information about the decedent’s life, work, education, relationships, drug use, criminal history and the extent and history of mental illness are reviewed to assess mental health. Assessing mental states and disorders is Dr. Whitehill’s area of expertise and a medical degree is not required. His testimony is directly helpful to a fact issue and should not be stricken. ER 702.93 VI.

CONCLUSION

For the foregoing reasons, the trial court’s order dismissing Officers Anderson and McNew from this case should be reversed and this case remanded back to the trial court for trial. The trial court’s order denying the Plaintiffs’ motion for partial summary judgment should also be reversed and the Defendants’ affirmative defenses addressed in the Plaintiffs’ motion should be stricken. 93

Defendants’ motion to strike violates LCR 7(b)(4),(5) and CR 7(b)(1). 50

Respectfully submitted this 18th day of July, 2019,

___ Karen K. Koehler, WSBA #15325 Garth L. Jones, WSBA #14795 Melanie Nguyen, WSBA #51724 Of Stritmatter Kessler Koehler Moore

___ Edward H. Moore, WSBA# 41584 Of Law Office of Edward H. Moore Counsel for Plaintiffs/Appellants

CERTIFICATE OF SERVICE I hereby certify that on May 9, 2019, I filed and served the foregoing to the Clerk’s Office of the Court of Appeals Division I, and provided a copy of the document to all counsel of record as follows: Robert L. Christie, WSBA 10895 Megan Coluccio, WSBA 44178 Christie Law Group 2100 Westlake Ave N, Ste 206 Seattle, WA 98109-5802 Counsel for Defendants McNew and Anderson

U.S. Mail Fax Legal messenger Electronic Delivery via COA efiling system

Ghazal Sharifi, WSBA 47750 Jeff Wolf, WSBA 20107 Seattle City Attorney's Office 701 5th Ave Suite 2050 Seattle, WA 98104 Counsel for Defendant City of Seattle

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/s/ Elodie Daquila Elodie Daquila, Paralegal STRITMATTER KESSLER KOEHLER MOORE