United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME, GRANTING DEFENDANTS' MOTION TO STRIKE, GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on Defendants City of Tacoma, Tacoma Police Department, Bret Terwilliger, and Jane Doe Terwilliger's ("Defendants") motion for summary judgment (Dkt. 21). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion in part and denies it in part for the reasons stated herein.
I. PROCEDURAL HISTORY
On July 1, 2013, Plaintiff Vernie Reed, Jr. ("Reed") filed a 42 U.S.C. § 1983 suit against Defendants. Dkt. 1. Reed alleges that Officer Bret Terwilliger ("Officer Terwilliger") violated his Fourth Amendment rights by using excessive deadly force. Id. at 5. Reed also alleges that the City of Tacoma ("City") and Tacoma Police Department ("Department") failed to adequately train Officer Terwilliger. Id. at 6-7. Finally, Reed alleges state law claims for negligence, negligent infliction of emotional distress, assault, and battery. Id. at 8-10.
On August 7, 2014, Defendants moved for summary judgment. Dkt. 21. On August 20, 2014, Reed filed a motion for extension of time to respond. Dkt. 26. On August 25, 2014, Reed responded. Dkt. 27. On August 28, 2014, Defendants replied and included a motion to strike Exhibit D from Reed's response. Dkt. 29.
II. FACTUAL BACKGROUND
On the evening of October 8, 2012, Officer Terwilliger and Officer Jennifer Corn ("Officer Corn") noticed a car with a loud exhaust. Dkt. 28, Declaration of Thomas S. Olmstead ("Olmstead Dec."), Ex. A at 10. When the officers checked the car's license plate, a warrant came up on the owner of the car. Id.
The officers initiated a traffic stop using their patrol car's emergency lights. Id. at 12. Officer Terwilliger exited the patrol car and approached the driver's side of the stopped car. Id. at 13. Officer Corn approached the passenger side of the car. Olmstead Dec., Ex. B at 9. Reed-the driver of the car-held his left hand out the window with his identification card. Id. at 10. The engine was idling. Dkt. 23, Declaration of Bret Terwilliger ("Terwilliger Dec.") ¶ 9.
Officer Terwilliger told Reed to turn the engine off. Olmstead Dec., Ex. A at 13. Reed said he could not turn the engine off because he would not be able to turn it back on. Id. Officer Terwilliger took Reed's identification card from him. Terwilliger Dec. ¶ 10. Reed's name did not match the name on the warrant. Olmstead Dec., Ex. B at 22.
Officer Terwilliger again told Reed to turn the engine off. Terwilliger Dec. ¶ 10. Officer Corn heard Officer Terwilliger tell Reed to get out of the car. Dkt. 24, Declaration of Jennifer Corn ("Corn Dec.") ¶ 8.
Officer Terwilliger saw a plastic bag containing a crystalline substance on Reed's lap. Olmstead Dec., Ex. A at 14. Officer Terwilliger believed that the bag contained crystal methamphetamine. Terwilliger Dec. ¶ 11.
Both officers saw Reed reach his hand into his pants. Id. ; Corn Dec. ¶ 8. Officer Terwilliger ordered Reed to show his hands. Terwilliger Dec. ¶ 12. Officer Terwilliger opened the car door. Id. According to Officer Terwilliger, Reed grabbed the bag and turned the other way. Olmstead Dec., Ex. A at 15. Officer Terwilliger thought Reed put the substance in his mouth, so Officer Terwilliger tried to turn Reed's head towards him. Id. Officer Terwilliger was concerned that Reed would destroy evidence. Id.
Officer Corn turned to run around the rear of the car. Corn Dec. ¶ 8. As she began to move back, Officer Corn saw Reed shove an object that appeared to be narcotics in his mouth. Id.
Reed says that he did not have a bag of drugs. Dkt. 22, Affidavit of Jean P. Homan ("Homan Aff."), Ex. 5 at 9. Reed also says that he did not attempt to hide anything from Officer Terwilliger. Id. As Reed explains in his deposition:
[Officer Terwilliger] did not ask me another question. The driver's door came open and with his left arm, [Officer Terwilliger] grabbed me around the front of my neck. With his right arm, he pushed my head down in the direction of the passenger seat and he struck me several times....
Id. at 5.
As she made her way around the car, Officer Corn heard two or three punches being thrown. Corn Dec. ¶ 9. Officer Corn does not know who was hitting who. Olmstead Dec., Ex. B at 13. Officer Terwilliger does not remember punching Reed in the head. Olmstead Dec., Ex. A at 24. Officer Terwilliger says that Reed struck his arms and tried to push his arms away. Terwilliger Dec. ¶ 15.
Officer Corn heard Officer Terwilliger say "F'ing head off." Olmstead Dec., Ex. B at 15. Officer Terwilliger remembers saying that he would "fucking shoot [Reed]." Olmstead Dec., Ex. A at 24. According to Reed, Officer Terwilliger said "If you move, I'll blow your fucking brains out." Homan Aff., Ex. 5 at 5.
Reed started revving the engine. Olmstead Dec., Ex. A at 20. Officer Terwilliger's body was mostly inside the car as he struggled to control Reed's hands. Id. at 19-20. Officer Corn attempted to gain control of Reed's legs. Olmstead Dec., Ex. B at 13-14.
Reed reached down for the gear shift. Olmstead Dec., Ex. A at 20. Officer Terwilliger was still partially inside the car. Id. Officer Terwilliger yelled "Let me out" several times. Terwilliger Dec. ¶ 17. Officer Corn backed a few feet away from the car and called for a backup unit. Olmstead Dec., Ex. B at 16-17.
Reed shifted the car into gear and the car jolted forward. Terwilliger Dec. ¶ 18. Officer Terwilliger was able to get out of the car. Olmstead Dec., Ex. A at 22. According to Officer Terwilliger, the door jamb bumped him as he was getting out. Id. Reed denies that a portion of the car hit Officer Terwilliger. Homan Aff., Ex. 5 at 14.
The tires were squealing and moving quickly. Olmstead Dec., Ex. A at 46. Reed started driving down the street away from the officers. Id. at 29. Reed was not driving in a direction where another car would be endangered. Id. at 30.
Officer Terwilliger drew his gun and fired six rounds into the driver's area of the car. Id. at 23, 26. Officer Terwilliger intended to use force that he knew could possibly kill Reed. Id. at 27. Officer Terwilliger did not see a knife or gun in Reed's possession. Id. at 26.
When he started shooting, Officer Terwilliger thought he "could possibly be pulled down or drug with [Reed's] vehicle." Id. at 30. As Officer Terwilliger explains in his deposition: "I believe[d] there was equipment of mine stuck in the vehicle as [Reed] was leaving." Id. at 29-30. "At some point I remember my microphone from my car, I couldn't see where it was in the car, in [Reed's] car... I thought I could be pulled by it." Id. at 52.
In his declaration, Officer Terwilliger further explains:
The microphone cord from my radio, which is attached to my uniform... apparently came unclipped during the struggle with Mr. Reed, and was stuck on something inside his car. The cord was stretching as the car continued to move forward. While my body was now outside the vehicle, my equipment appeared to be caught on something inside.... This was all happening very rapidly.... I believed that [Reed] was trying to leave with me caught in the car.
At this point I was fearful that I was going to be dragged with the vehicle as it sped away and be seriously injured or killed. Even though I had managed to pull my body out of the car, my radio cord was still inside Mr. Reed's car and I was afraid that I could be pulled along because by radio is secured to my uniform. I was fearful not only for my own safety but for the safety of other officers as well as members of the public. Mr. Reed was demonstrating a willingness to injure or possibly even kill a law enforcement officer in order to escape.
I drew my duty firearm and fired six rounds into the driver's area of the vehicle. I saw the back window of the [car] shatter. The car briefly slowed. It appeared my radio cord was no longer stuck as it was no longer tense and stretching so it appeared I was free of the car. After briefly slowing, the car continued to drive off at an accelerated speed. I did not fire any more shots at that point....
Terwilliger Dec. ¶¶ 18-20.
Officer Corn describes the situation ...