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Tubar v. Clift

December 4, 2008


The opinion of the court was delivered by: John C. Coughenour United States District Judge


This matter comes before the Court on Defendant City of Kent's Motion for Partial Summary Judgment (Dkt. No. 188), Plaintiff's Opposition (Dkt. No. 211), Defendant's Reply (Dkt. No. 215), Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 190), Defendants' Opposition (Dkt. No. 205), and Plaintiff's Reply (Dkt. No. 219). The Court, having carefully considered all of the papers submitted and determined that oral argument is not necessary, hereby DENIES the City of Kent's motion and DENIES Plaintiff's motion, and rules as follows.


This is a civil rights lawsuit arising from a shooting incident that occurred on June 26, 2003.

Plaintiff Nicomedes Tubar filed this action on June 24, 2005, against Officer Jason Clift in his individual capacity and the City of Kent (the "City") for damages arising from an alleged violation of his civil rights.

Officer Clift then sought summary judgment on the basis of qualified immunity (Dkt. No. 30). In denying Clift's motion, the Court recounted the following facts:

On June 25, 2003, Defendant Jason Clift, a City of Kent Police Officer, discovered a stolen 2001 Kia automobile in the parking lot of Plaintiff's apartment building. Defendant Clift decided to watch the vehicle because he believed that it had been driven recently. He placed a "rat trap"*fn1 under one of the tires of the stolen vehicle, moved his patrol car out of sight, and hid in the bushes to await the driver's return. Approximately thirty minutes later, just after midnight on June 26, 2003, Defendant Clift observed Plaintiff, along with driver Heather Morehouse, exit the apartment building and enter the stolen vehicle. As Ms. Morehouse began backing the vehicle out of the parking spot, the rat trap punctured the vehicle's tires. At the same time, Defendant Clift emerged from the bushes with his flashlight and gun and announced that he was a police officer. Plaintiff and Ms. Morehouse did not hear this announcement nor realize that Defendant Clift was a police officer, but Defendant Clift thought that the vehicle occupants perceived him. According to Plaintiff, Ms. Morehouse began driving toward the only exit at a "normal" speed-approximately 15 miles per hour according to both parties as well as supporting testimony that indicates that the vehicle was not going very fast. Ms. Morehouse steered towards the exit of the parking lot, in what Plaintiff characterizes as a "steady right turn." In contrast, Defendant Clift maintains that it was a "sharp U-Turn" to the right. The tire puncture due to the rat trap caused the rim of the front passenger tire to mark the pavement as the vehicle moved, providing evidence of the Kia's path consistent with a steady right turn. Nevertheless, Defendant Clift's version of events is that Ms. Morehouse steered the car toward him, accelerated, and put him in fear for his life. However, Plaintiff claims that the car decelerated as events unfolded and that Ms. Morehouse consistently steered toward the parking lot exit and never accelerated toward Defendant Clift in an attempt to hit him. While Defendant Clift originally claimed that the car "swerved" toward him, none of the evidence indicates a "swerve" and Defendant Clift now seems to have retreated from that theory. Nevertheless, during the vehicle's undisputed curved path, it is clear that at some point the car was headed directly toward where Defendant Clift was standing, though the parties dispute how long this was.

As the car approached the parking lot exit, Defendant Clift fired his weapon at the vehicle three times. The first two bullets entered the hood and front windshield of the vehicle but did not strike either Ms. Morehouse or Plaintiff. Defendant Clift fired his third shot as the vehicle was passing him. This third bullet entered through the driver's side window and struck Plaintiff in the upper left shoulder area. According to Plaintiff's expert, by the time the third shot was fired, the Kia was moving at about 6 miles per hour and visibly decelerating.

It is undisputed that the three shots were fired in a matter of seconds. One witness described the succession of shots as "'bang, bang' (pause) 'bang.'" It is undisputed that the third shot is the one that hit Plaintiff and that it came through the side of the car as it was passing Defendant Clift. (Sept. 22 Order 1--3 (Dkt. No. 156) (record citations omitted).)

In ruling on Officer Clift's motion for summary judgment, the Court determined that the evidence, viewed in Plaintiff's favor, sufficiently established that Clift's use of deadly force was objectively unreasonable in violation of the Fourth Amendment. (Id. at 8--9.) At minimum, the Court found that Clift's firing of the third shot was objectively unreasonable because any arguable threat to his safety had ceased at the time that shot was fired. (Id. at 9.) Because the unconstitutionality of such use of deadly force was clearly established, the Court denied Officer Clift's request for qualified immunity. (Id. at 9--10.) On appeal, the Ninth Circuit affirmed the denial of qualified immunity and found that, taking Plaintiff's allegations as true, "no reasonable officer could have thought that the use of deadly force was reasonable under the circumstances." (Mandate 7 (Dkt. No. 179-2).)

Officer Clift was also involved in two other shooting incidents prior to the June 2003 incident. The first incident occurred in November 2000 and involved Guadalupe Martinez, who was stopped in heavy traffic after leading police on a high speed chase. (Weissich Decl. ¶ 4 (Dkt. No. 57 at 1).) Witnesses stated that Martinez emerged from the vehicle with what appeared to be a large-caliber handgun, which she pointed at Officer Clift, who had approached the driver's door (Id. at ¶ 5.) Both Clift and another Kent officer fired their weapons, and Martinez was killed. (Mot. 6 (Dkt. No. 188).) Subsequently, it was determined that the gun Martinez displayed was a pellet gun. (Id.) The Auburn Police Department investigated the circumstances of the shooting and concluded that Officer Clift shot Martinez in self-defense. (Martinez Investigation 4 (Dkt. No. 57 at 4--7).) Thereafter, Kent Police Chief Ed Crawford found that Clift's use of force was justified and officially "exonerated" him of any wrongdoing. (2001 Exoneration (Dkt. No. 212-2 at 16).)

The second shooting incident occurred in May 2002 following a high speed chase. (Jackson Investigation 1 (Dkt. No. 57 at 8).) Officers had stopped a vehicle because the driver, Eric Jackson, had an outstanding felony warrant. (Id.) The vehicle also had a female passenger, Kristina Howe. (Id.) Jackson struggled with the officers as they attempted to take him into custody, and he managed to escape back to his vehicle where he sped away. (Id. at 2.) During the chase, Officer Clift employed a Pursuit Intervention Tactic, which involved impacting the fleeing vehicle and forcing it to come to a stop. (See id. at 3.) As a Federal Way officer approached the stopped vehicle, Jackson apparently revved the engine. (Id.) Clift and two other officers claimed that Jackson was attempting to run over the approaching officer. (Id. at 3--4.)The three officers then fired their weapons at the vehicle, hitting Jackson and Howe, both of whom suffered non-fatal injuries. (Id.; Mot. 7 (Dkt. No. 188).) After an internal review, Chief Crawford again found that Clift's use of force was justified and "exonerated" him. (2002 Exoneration (Dkt. No. 212-2 at 163).)

As in the two previous shootings, Chief Crawford ultimately exonerated Officer Clift from any wrongdoing in the shooting incident at issue in the instant lawsuit. Immediately after the shooting, Clift gave a brief oral report to his sergeant and was then taken to the Kent police station to meet with his union representative and attorney. (Clark Narrative (Dkt. No. 212-6 at 76).) Chief Crawford then placed Clift on administrative leave and referred the incident to the Auburn Police Department for an investigation. (Miller Decl. ¶ 17 (Dkt. No. 135 at 5).) The Chief also sent Clift to a psychologist for an evaluation of his fitness to return to duty. (Id.) After being ordered by the Deputy Police Chief to provide a statement, Clift submitted a written statement of the incident on July 8, 2003, nearly two weeks after the incident. (Internal Review 5 (Dkt. No. 212-2 at 122).) On July 10, 2003, Clift gave a recorded interview to Auburn investigators in the presence of his attorney. (Id.) Subsequently, the Kent Police Department conducted its own internal review of Officer Clift's use of deadly force. (See id.) The internal review noted that Clift had not submitted a Use of Force Report as required, but concluded that he had acted in compliance with Police Department policies in discharging his firearm. (Id. at 6--8.) Specifically, the internal review found that Clift properly employed deadly force upon believing that he was in immediate danger of death or serious injury. (Id. at 6.) Thereafter, Chief Crawford found that Officer Clift was "justified, acted lawfully, properly, and within grounds of accepted police conduct" in using deadly force, and therefore, Clift was "exonerated." (2004 Exoneration (Dkt .No. 212-2 at 161).)

On June 24, 2005, Plaintiff brought this lawsuit against the City of Kent and Officer Clift, alleging violation of his civil rights under 42 U.S.C. section 1983, along with supplemental state law claims for negligent hiring, training, supervision, and retention. (Compl. (Dkt. No. 1).) After the Ninth Circuit affirmed this Court's denial of qualified immunity for Officer Clift, both parties filed cross-motions for partial summary judgment. The City filed a Motion for Partial Summary Judgment on Civil Rights Municipal Liability and Negligence Claims ...

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