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Smith v. Kelly

United States District Court, Ninth Circuit

October 24, 2013

BENJAMIN L. KELLY, et al., Defendants.


RICHARD A. JONES, District Judge.


This matter comes before the court on the Report and Recommendation ("R&R") of the Honorable James P. Donohue, United States Magistrate Judge. Both Plaintiff Charles Shateek Smith and Defendant Benjamin Kelly, an officer in the Seattle Police Department, object to portions of the R&R. For the reasons stated below, the court ADOPTS much of the R&R (Dkt. # 91), DENIES Mr. Smith's objection (Dkt. # 92), DENIES Officer Kelly's objection (Dkt. # 93), and directs the parties to submit a joint statement regarding trial no later than November 7, 2013.


Having ruled last May that Officer Kelly could not arrest Mr. Smith for the noncrime of jaywalking, the court rules today that he could not arrest him for the non-crime of jaywalking while making eye contact with a driver in traffic. That ruling suffices to establish both that Officer Kelly violated the Fourth Amendment when he first arrested Mr. Smith and violated it again when he searched Mr. Smith incident to that arrest. Because clearly established law prohibited the arrest and the search, the court's ruling also disposes of Officer Kelly's qualified immunity defense. He is liable for violating Mr. Smith's Fourth Amendment rights; the only question remaining for trial is the amount of Mr. Smith's damages.

The damages question is complicated. Officer Kelly's illegal search revealed that Mr. Smith was carrying a handgun, and a mobile criminal records check revealed that he was also a felon. Mr. Smith never faced charges for any of his jaywalking offenses, he faced only state and federal charges arising from being a felon in possession of a handgun. The court rules today that Mr. Smith may recover damages arising from his false arrest and unlawful search, but that he may not recover damages arising from his confinement after Officer Kelly discovered the handgun and his felony record.

In explaining these rulings, the court will attempt to avoid unduly repeating any of the four judicial opinions regarding Mr. Smith's arrest. In the first, the Honorable John C. Coughenour suppressed evidence of the handgun, leading to the dismissal of a federal felon-in-possession charge against Mr. Smith. United States v. Smith, No. CR09-161RAJ, 2009 U.S. Dist. LEXIS 132268 (W.D. Wash. Aug. 20, 2009). After Mr. Smith sued Officer Kelly and others on many grounds, Judge Donohue issued an R&R concluding that this court should narrow the suit to a claim against Officer Kelly for violating the Fourth Amendment. Smith v. Kelly, 2012 U.S. Dist. LEXIS 64586 (W.D. Wash. Feb. 21, 2012). This court adopted that R&R, referring the matter back to Judge Donohue for pretrial proceedings. Smith v. Kelly, 2012 U.S. Dist LEXIS 64584 (W.D. Wash. May 8, 2012). Mr. Smith obtained pro bono counsel, and the parties completed discovery and filed cross-motions for summary judgment. Judge Donohue's second R&R followed.

Judge Donohue urges to court to find that when Officer Kelly first arrested Mr. Smith, he lacked probable cause to believe he had committed any crime and thus had no authority to search Mr. Smith. Judge Donohue also concludes that Officer Kelly's unlawful arrest and search violated clearly established law, a conclusion that would spell doom for Officer Kelly's qualified immunity defense. The court adopts those conclusions, but elaborates on the conclusion that Officer Kelly lacked probable cause to arrest Mr. Smith for the crime of pedestrian interference.

As to damages, Judge Donohue recommends that the court conclude that Mr. Smith may not recover damages arising from his confinement after a state prosecutor filed a firearm-possession charge in King County Superior Court on February 4, 2009, just five days after Mr. Smith's arrest. The court cannot adopt that recommendation. Instead, the court concludes that Mr. Smith may recover only damages resulting from his initial arrest and search. As a matter of law, those do not include damages resulting from his confinement and prosecution after Officer Kelly discovered the handgun and Mr. Smith's felony record.

For an R&R arising out of a dispositive motion, the court conducts de novo review of any portion of the R&R to which a party properly objects. Fed.R.Civ.P. 72(b)(3). In this case, that means applying the familiar summary judgment standard, which requires the court to draw all inferences from the admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party must initially show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The opposing party must then show a genuine issue of fact for trial. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present probative evidence to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The court defers to neither party in resolving purely legal questions. See Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999).


This suit arises from Mr. Smith's walk across Rainier Avenue, an arterial street in Seattle. That walk took, at most, 20 seconds. Officer Kelly arrested Mr. Smith within 10 seconds after it concluded. Officer Kelly contends that what he observed in those 30 seconds gave him probable cause to arrest Mr. Smith for a crime. The court thus considers what a reasonable officer in Officer Kelly's position would have observed, taking all reasonable inferences in his favor. Ultimately, the court will determine if those observations added up to probable cause, i.e., a determination that "the facts and circumstances within [Officer Kelly's] knowledge [were] sufficient for a reasonably prudent person to believe" that Mr. Smith committed a crime. Rosenbaum v. Washoe County, 663 F.3d 1071, 1076 (9th Cir. 2011).

A. Mr. Smith's Walk Across Rainier Avenue, In the Light Most Favorable to Officer Kelly

The court has reviewed the video of the incident from Officer Kelly's patrol-carmounted camera. It suffices to demonstrate almost all of the facts material to his decision to arrest. Officer Kelly and Mr. Smith offer their own versions of those facts. With a few exceptions, the video frees the court from relying on either party's version. Even on summary judgment, a court may rely on a video where no reasonable jury could credit a party's version of events in lieu of the video. Scott v. Harris, 550 U.S. 372, 380-81 (2007). Although Officer Kelly's video does not reveal every aspect of Mr. Smith's walk across the street, it puts the facts that are material to this order beyond dispute.

Officer Kelly was driving his patrol car northbound on Rainier Avenue, an arterial street. It was about 9:15 on a rainy January night. Officer Kelly could see a signalcontrolled intersection as he approached it. Traffic around the intersection was brisk, but there were frequent gaps in traffic as a result of the signal. At the south end of the intersection, Rainier Avenue consists of two northbound lanes, a northbound left-turn lane, and a single southbound lane with a shoulder wide enough to accommodate parked vehicles. Approximately eight car lengths south of the intersection, there is a bus stop on the west side of Rainier Avenue.

As Officer Kelly approached the intersection from the south, a group of people numbering at least seven began crossing Rainier Avenue from the east to the west in the direction of the bus stop the court just mentioned. At the time, traffic on Rainier Avenue had the green light. Some of the jaywalkers were running, some more quickly than others. A northbound car in front of Officer Kelly slowed and ultimately stopped to let the jaywalkers pass. Mr. Smith was one of the jaywalkers, but he moved more slowly than others. He was not running. By the time he neared the border of the northbound left-turn lane and the southbound lane, only he and another jaywalker remained in the street. The other jaywalkers had reached the bus stop, where they waited. The other remaining jaywalker was moving more quickly than Mr. Smith, but he had started his dash across the street later. He reached the position just to the east of the border of the northbound left-turn lane and the southbound lane at about the same time as Mr. Smith. By that time, a southbound car had passed through the intersection and had approached close to both jaywalkers. That vehicle had already slowed somewhat as the first jaywalkers crossed, but it slowed more as it approached Mr. Smith and the other remaining jaywalker. Mr. Smith slowed his pace at this point, as did the other jaywalker. At the time they slowed, they had yet to enter the path of the southbound car. Although the video does not reveal precisely where Mr. Smith and the other jaywalker were looking, it is possible that they were looking at the driver of the southbound car, and the court must assume they did for purposes of this order. It is possible that they both stopped moving, but only for an instant. In that instant, the southbound car slowed to a stop, and both jaywalkers continued west, with the other jaywalker again moving more quickly than Mr. Smith. Mr. Smith resumed his previous walking pace, and was clear of the path of the southbound car in no more than three seconds. Mr. Smith may have maintained eye contact with the driver from the moment he first slowed or stopped until he finished his crossing, and the court assumes he did for purposes of this order.

Officer Kelly began to turn his car into the turn lane even before Mr. Smith and the other jaywalker reached the point at which they slowed or stopped. After Mr. Smith had moved beyond the path of the southbound car (but not quite to the west curb), Officer Kelly swerved sharply into the southbound lane (in front of the car that had stopped for Mr. Smith and the other jaywalker) and stopped at the west curb adjacent to the bus stop where the jaywalkers had congregated. He stopped his car two seconds after Mr. Smith reached the curb. From that point on, Mr. Smith is not visible in the video.

The audio track of the video, however, puts some aspects of Mr. Smith's interaction with Officer Kelly beyond dispute. For technological reasons that Officer Kelly explained when he testified at the suppression hearing, there is no audio for the first minute and five seconds of the video. When the audio begins, two or three seconds after Mr. Smith reaches the curb, Officer Kelly is saying "come here." He closed his car door just as he finished those words. Within three seconds after he said "come here, " he began cursing at Mr. Smith. His words strongly suggest that Officer Kelly seized Mr. Smith at about the time he began cursing. The video reveals partial images of Mr. Smith being held against the hood of Officer Kelly's car, images that begin ten seconds after Officer Kelly said "come here." Officer Kelly, upon viewing the video, testified that he seized Mr. Smith within about three seconds of his initial command to "come here."

Officer David Ellithorpe also witnessed Mr. Smith's crossing from his vantage point in his patrol car in a parking lot on the west side of Rainier Avenue. He was south and west of Mr. Smith. He had no vantage point that would have permitted him to observe anything more about Mr. Smith's crossing than the video reveals. He joined Officer Kelly at some point after he had seized Mr. Smith.

A search incident to the arrest quickly uncovered a.22-caliber handgun. About 40 seconds after Officer Kelly said "come here, " he asked "what do you got on you tonight, there, Mr. Smith?" The court assumes that Officer Kelly's search of Mr. Smith began no later than that moment. About a minute and a half after Officer Kelly said "come here, " he asked "why are you walking around with a [inaudible] gun in your pocket?" The court assumes the officers had seized the firearm by that point. No evidence suggests otherwise. An in-car computer search revealed that Mr. Smith was a felon.

B. Officer Kelly's Unlawful Arrest and Search

Officer Kelly has offered numerous justifications for his search. Judge Coughenour rejected the federal government's contention that he had a reasonable suspicion that Mr. Smith was armed, and thus ruled that Officer Kelly could not conduct the limited pat-down search that Terry v. Ohio, 392 U.S. 1 (1968), authorizes. Smith, 2009 U.S. Dist. LEXIS 132268, at *12-14. Officer Kelly has wisely refrained from raising that contention again in these summary judgment motions. He now argues only that the search was permissible because it was incident to a lawful arrest.[1] In its previous order, this court rejected his assertion that he could have arrested Mr. Smith for the noncrime of jaywalking. Now, he contends he had probable cause to arrest Mr. Smith for two crimes: pedestrian interference and obstructing a law enforcement officer. As to obstruction, the court need not elaborate on the R&R's vitiation of the notion that Mr. Smith committed a crime by not responding in three seconds or fewer when Officer Kelly said "come here." The court adopts the R&R's conclusion that no reasonable officer could have believed that Mr. Smith obstructed the officers, and that Officer Kelly is not entitled to qualified immunity.

The court now elaborates on the R&R's conclusion that Officer Kelly lacked probable cause to arrest Mr. ...

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