United States District Court, W.D. Washington
For David Lott, Plaintiff: Joseph R Shaeffer, LEAD ATTORNEY, Tiffany Mae Cartwright, David J Whedbee, MACDONALD HOAGUE & BAYLESS, SEATTLE, WA.
For Zack Anderson, Jacob Berry, City of Tukwila, and its Police Department, Defendants: Rachel B Turpin, LEAD ATTORNEY, KENYON DISEND, ISSAQUAH, WA; Amanda Gabrielle Butler, Richard B Jolley, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA.
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION RE JURY TRIAL
HONORABLE John C. Coughenour, UNITED STATES DISTRICT JUDGE.
These matters come before the Court on Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 18) and on Defendants' Motion for a Jury Trial (Dkt. No. 21). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES both Motions for the reasons explained herein.
On August 11th, 2011, Tukwila police responded to a 911 call regarding a reportedly intoxicated man " cursing and screaming" at a Tukwila bus stop shelter. (Defendants' Response to Plaintiff's Motion for Partial Summary Judgment, Dkt. No. 26 at 1.) Officer Zack Anderson was the first to arrive on the scene, and states that when he arrived, Plaintiff David Lott was screaming at people across a busy street. (Id. at 4.) Officer Anderson exited his patrol car and approached Plaintiff. (Id.) Officer Anderson reports that he could discern from Plaintiff's " labored speech and the strong odor of intoxicants on his breath" that he had been drinking. (Id.) Officer Anderson asked Plaintiff for identification, and to calm down and take a seat under the bus stop shelter. (Id.) Plaintiff allegedly refused to comply, moved away from Officer Anderson, and screamed " I can do whatever the fuck I want." (Anderson Declaration, Dkt. No. 27 at 4.) At this moment, a second Tukwila police officer, Officer Jake Berry, arrived on the scene. (Defendants' Response to Plaintiff's Motion for Partial Summary Judgment, Dkt. No. 26 at 6.) Officer Berry's on-car dash camera (dashcam) captured the remainder of this event on video. (Id.) The footage of the interaction between Plaintiff and officers begins at Plaintiff's backing away from Officer Anderson after being asked for identification. (DVD, Dkt. No. 2, Ex. A at 0:30.)
The parties dispute the manner in which Plaintiff moved backwards. Defendants allege that the video depicts Plaintiff standing with a boxer's " bladed" foot stance and with his hands in a " potentially threatening" position. Plaintiff dismisses this and states that Mr. Lott was simply backing up in a neutral manner, with his hands out to the side, away from his body, and his palms facing up. ( See DVD, Dkt. No. 2, Ex A at 0:30-0:37.)
South 144th Street, a busy thoroughfare, was behind Plaintiff as he backed away from Officer Anderson. (Defendants' Response, Dkt. No. 26 at 7.) Officer Anderson states that Plaintiff's intoxication raised concerns about Plaintiff backing into the street. (Id.) Officer Anderson reports that " [b]ecause of Plaintiff's confrontational and non-compliant behavior, and because of his intoxication . . . simply grabbing Plaintiff and trying to escort him into the bus shelter was [not] a viable option" as this would risk a " dangerous wrestling match adjacent to a busy street." (Id.)
The parties also differ in their interpretations of what the footage depicts happening next. Officer Anderson alleges that he decided that pushing Plaintiff towards the bus shelter would limit Plaintiff's ability to grab him, and so he did so. (Id.) Defendants contend that it was Mr. Lott's level of intoxication, and not the force exerted on him, that caused him to " f[a]ll into" the bus shelter. (Id.) However, Plaintiff alleges that the dashcam footage contradicts this " push" and depicts a violent throw directly into the brick and concrete wall of the bus shelter. (Plaintiff's Motion, Dkt. No. 18 at 4.)
Officer Anderson then seated Plaintiff on the bench in the shelter, and Officer Berry exited his car to join the two men. (Id.) The officers informed Mr. Lott that he was being arrested for disorderly conduct and obstructing a public servant. (Id.) The officers report that they repeatedly ordered Mr. Lott to get to the ground so that he could be " safely handcuffed." (Defendant's Response, Dkt. No. 26 at 7.) Plaintiff allegedly refused to get on the ground and yelled " fuck you, I'm not under arrest." (Id.) The footage then shows the two officers lifting Mr. Lott, each grabbing an arm, and forcing him facedown onto the sidewalk, possibly using a leg sweep. (DVD, Dkt. No. 2, Ex. A at 0:45-0:59.) The officers pulled Mr. Lott's arms behind his back and handcuffed him. (Id. at 0:55-1:30.) Standing Mr. Lott up, the officers walked him over to Officer Anderson's patrol car, while Plaintiff allegedly resisted. ( See id . at 1:30-2:25; see also Defendant's Response, Dkt. No. 26 at 8.) Once at the car, Plaintiff allegedly pulled away from Officer Anderson and tried to turn towards him. (Defendants' Response, Dkt. No. 26 at 8.) In response, the officers forced Plaintiff onto the trunk of Officer Anderson's patrol car, and searched him. As Officer Anderson did so, Plaintiff allegedly pushed against Officer Anderson, although it is unclear from the video if this is true. (Id.) The officers then allege that Plaintiff aimed a kick at Officer Anderson, but did not make contact. (Id.) However, Plaintiff's feet are partially obscured for much of this portion of the footage, and it is difficult to tell from the video the precise movements of Plaintiff's feet. There is a point at 3:40 on the video where one of the officers appears to trip over Plaintiff's raised foot.
At this point, the officers claim that they tried three times to push Plaintiff into the patrol car, twice pushing on his shoulders, and once pushing on his waist. (Defendants' Response, Dkt. No. 26 at 8.) Plaintiff allegedly resisted these efforts and the officers could not get him into the car. (Id.) It is difficult to discern from the footage what quantity of force is being exerted on Plaintiff or whether Plaintiff is exerting force back, although the parties are clearly in close contact with one another.
Officer Anderson then reports showing Plaintiff the pepper spray and telling him that he would countdown from five and spray Plaintiff if he did not get into the patrol car. (Id.) Officer Anderson alleges that Plaintiff responded " fuck you, I ain't doing shit." (Id. at 9.) Officer Anderson reports counting down from five, and when Plaintiff still did not comply, spraying him in the face with pepper spray for approximately one-and-a-half seconds. (Id.)
Plaintiff collapsed and the officers were able to get him into the patrol car. (Id.) They drove him to the police department three minutes away where they were met by the Fire Department, whom they had called to provide Plaintiff with access to chemical wipes to ameliorate the effects of the pepper spray. (Id.)
Plaintiff was taken to Highline Hospital, where he was reportedly placed in four-point restraints, and was treated for a head wound sustained during the arrest, Plaintiff was booked into the King County Jail on charges of disorderly conduct and obstructing a public servant. (Plaintiff's Motion, Dkt. No. 18 at 6.) The next day, the Tukwila City Attorney filed a criminal complaint against Mr. Lott, which included one count of unlawful transit conduct and one count of obstructing a police officer. (Id.) Mr. Lott pled not guilty. (Id.) During the course of his defense, Mr. Lott's attorney obtained a copy of the dashcam footage. (Id.) He showed it to the prosecutor, who then dismissed all charges on February 15, 2012. (Id.)
Two years later, on February 21, 2014, Plaintiff filed suit in this Court, alleging unlawful arrest and excessive use of force in violation of 42 U.S.C. § 1983 on the part of Officers Anderson and Berry, and unconstitutional policy, pattern, or practice of excessive use of pepper spray on the part of the City of Tukwila and its police department. (Complaint, Dkt. No. 1 at ...