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Black v. Kitsap County

United States District Court, W.D. Washington, Tacoma

September 22, 2014

SHERRI BLACK, Plaintiff,
KITSAP COUNTY, et al., Defendants.


RONALD B. LEIGHTON, District Judge.

THIS MATTER is before the Court on Defendant Kitsap County's (converted) Motion for Summary Judgment.[1] During the execution of a tribal arrest warrant, tribal police officers shot and killed Thomas Black and detained his sister, Plaintiff Sherri Black, at their shared home. Kitsap County deputies were present as backup because, although the home was within a Reservation, the Blacks were not tribal members and the home was owned in fee simple.

Sherri Black sued. She claims the tribal officers (and the deputies) used excessive force (Fourth amendment violation) and conducted an unreasonable search and seizure (Fifth and Sixth amendment violations). She did not, however, sue the deputies. Instead she brought a 42 U.S.C. §1983 Monell claim against the County, claiming it failed to train its deputies how to handle such a situation, and that its failure amounted to deliberate indifference to the Blacks' constitutional rights. She also argues, as she must, that the County's indifference was a moving force behind the underlying constitutional violations-primarily, her brother's death.

The County argues that there is no evidence that it failed to train its deputies; any lapse in training cannot be construed as "deliberate indifference"; and no reasonable jury could find that any indifference was a "moving force" behind any constitutional violations.


On December 8, 2011, Port Gamble S'Klallam and Suquamish Indian tribal police officers learned that Stacy Stanley Callihoo-tribal member with an outstanding Suquamish tribal arrest warrant-was staying at Sherri and Thomas Black's Kitsap County home. The home was within the reservation, on fee simple land. The tribal officers met with Kitsap County Deputies Michael Grant and David Fortenbacher to solicit their support in case issues arose with non-tribal members, like the Blacks. The officers planned to serve the warrant, and the deputies planned to provide backup.

Later that day, the tribal officers and the deputies approached the Blacks' home. The officers knocked on the door and announced their presence. Sherri Black appeared to speak for a minute with someone in another room before answering the door. She answered the door and spoke with the officers for about a minute and then walked outside.[2] She told the officers that Callihoo was inside, and the tribal officers and Deputy Grant entered the home. When they got inside, the officers saw Thomas Black at the opposite end of the home lying on a couch. The officers claim he appeared to have a concealed gun and refused their requests to show his hands. As he was moving on the couch, Port Gamble S'Klallam Detective Greg Graves shot him. The tribal officers and Deputy Grant could not immediately locate Callihoo, so they retreated outside. The ensuing standoff lasted over thirty minutes. In the meantime, Thomas Black died from a wound to his femoral artery. The standoff ended when Callihoo was arrested at the Blacks' home.

Black's Monell claim against the County alleges that it failed to train its officers in several related ways. She claims the County failed to train its deputies how to properly coordinate with tribal police; failed to train them when and how to obtain a search warrant; failed to train them on proper detention procedures; and failed to train them to provide medal assistance to suspects who have been shot.

The County argues[3] that Black's Monell claim is not factually or legally viable. It claims that she does not, and cannot, identify a constitutionally inadequate feature of its training program, and that she cannot articulate how better or different training would have changed the incident's outcome. And, it argues, even if its training was somehow deficient, it does not amount to the required "deliberate indifference" as a matter of law. Finally, the County argues that its training was not a moving force behind any constitutional violations.


Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient." Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable [fact finder] could return a [decision] in its favor." Triton Energy, 68 F.3d at 1220.

A. Black's § 1983 Monell claim against Kitsap County

A municipality "may not be held liable under 42 U.S.C. § 1983, unless a policy, practice, or custom" can be shown as the "moving force behind a violation of constitutional rights." Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978)). ...

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