United States District Court, W.D. Washington, Tacoma
NIKKOLAS WREN KENNETH LOOKABILL, FRANK WESCOM, JR., parent and as personal representative of the Estate of NIKKOLAS LOOKABILL, deceased,
CITY OF VANCOUVER, Vancouver Police Officers FRANKLIN N. GOMEZ, SERGEANT JOHN DARREN SCHULTZ, GERARDO GUTIERREZ; and DOES 1-5 inclusive, Defendants. DENISE WESCOM, and GAGE WESCOM, Plaintiffs,
ORDER ON DEFENDANTS' GOMEZ, SCHULTZ AND GUTIERREZ'S RENEWED MOTION FOR SUMMARY JUDGMENT
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on Defendants Franklin Gomez, John Schultz and Gerardo Gutierrez's Renewed Motion for Summary Judgment Re: Qualified Immunity (Dkt. 104) and their motion to strike (Dkt. 109). The Court has reviewed the pleadings filed regarding the motions and the remaining file.
This case arises from a tragic September 7, 2010 police officer involved shooting that resulted in the death of military veteran Nikkolas Lookabill, who suffered from post traumatic stress disorder. Dkt. 101. Plaintiffs bring constitutional claims pursuant to 42 U.S.C. § 1983 and a claim under the Americans with Disabilities Act ("ADA"). Id.
The individual defendants move to have the claims against them summarily dismissed. Dkt. 104. Even viewing the facts in a light most favorable to Plaintiffs, the record indicates that the individual officers did not violate the Plaintiffs' constitutional rights, and even if they had, the officers are entitled to qualified immunity. The individual officers' motion (Dkt. 104) should be granted.
I. FACTS AND PROCEDURAL HISTORY
A. BACKGROUND FACTS
On September 7, 2010, Mitchell Tarbutton and Devin Sailer lived at 2901 Fruit Valley Road in Vancouver, Washington. Dkt. 59, at 1. Mr. Sailer, Mr. Tarbutton, and two other friends, Kyle Tingley and Brandon Presler, were at Mr. Tarbutton's home after leaving a bar. Id., at 2. Mr. Tingley, Mr. Presler, and Mr. Tarbutton were outside on the porch smoking. Dkt. 45, at 7. Around 3:30 a.m. they heard yelling and barking dogs across the street. Id. Nikkolas Lookabill, who was walking south along Fruit Valley Road, stopped to yell, and even bark, at the dogs. Dkt 59, at 1. According to Mr. Tarbutton, Mr. Lookabill was wearing gray sweat pants and a sweatshirt. Id. Mr. Lookabill was talking on a cell phone. Dkt. 45, at 8. Mr. Tarbutton and the others did not know Mr. Lookabill. Dkt. 59.
Mr. Tarbutton threw a beer bottle at Mr. Lookabill to scare him off. Id. Mr. Lookabill then said, "Friend or foe?" Id. Mr. Tarbutton responded, "Friend, but leave. We're going to call the cops if you don't go." Id. Mr. Lookabill remained. Id. Mr. Tingley approached Mr. Lookabill and repeatedly asked him to leave. Id. Mr. Lookabill informed the group he had a gun and again asked "Friend or foe?" Id. Mr. Tingley shook Mr. Lookabill's hand, and then Mr. Lookabill pulled out his gun. Id. Mr. Presler called 9-1-1 and told dispatch that Mr. Lookabill was yelling at them, drunk, "not really coherent, " and "threatening with a gun." Dkt. 39-1, at 7-8. In response to the question of why Mr. Lookabill was upset, Mr. Presler told dispatch that Mr. Lookabill was "[j]ust walking down the road. And he's drunk. I don't know. He's just randomly causing problems. He started yelling at the dogs and then started yelling at us. We were standing across the street." Dkt. 39-1, at 7. Mr. Tingley stated that after Mr. Lookabill pulled the gun, he put the gun back into his right sweatshirt pocket. Dkt. 107-9, at 9. Mr. Tingley then turned and crossed the street. Dkt. 107-9, at 9.
City of Vancouver Police Officer Gerardo Gutierrez, a defendant here, arrived about that time, around 3:39 a.m. Dkts. 107-5, at 3, 107-10, at 3, and 107-12. Officer Gutierrez had his lights off at first, but then turned on his spotlight and pointed it at Mr. Lookabill. Dkt. 107-5, at 4. Officer Gutierrez stated that Mr. Lookabill pointed at him with his left hand and, although he could not see Mr. Lookabill's right hand, Mr. Lookabill was holding an object "at a low ready." Dkt. 107-5, at 4. Officer Gutierrez testified that Mr. Lookabill then began to back away from him and had the gun out. Dkt. 107-12, at 10 and 14. Officer Gutierrez testified that he told him to "stop" and "drop the gun." Dkt. 107-12, at 14. Mr. Lookabill did not drop the gun, but put it in his pocket. Dkt. 107-12, at 14. In a police interview, Mr. Presler stated that he did not see the gun out at that point, but stated that Mr. Lookabill was giving Officer Gutierrez "a little bit a problems [sic]." Dkt. 107-6, at 3-4. Officer Gutierrez told Mr. Lookabill to get on the ground, which he finally did, and to face away from the officer, which he did not do. Dkt. 107-5, at 5. As Mr. Lookabill got on the ground Officer Gutierrez heard a "metal clinking sound." Dkt. 107-5, at 5. Mr. Lookabill yelled erratically about being in the military and being in Iraq. Dkt. 107-5, at 6. Officer Gutierrez got out of his car, stood with the driver-side door open, and was using the police car and door as cover. Dkt. 107-5, at 5. His lower legs and upper body were exposed. His weapon was drawn. Dkt. 107-5, at 5.
Officer Gutierrez suspected that Mr. Lookabill was intoxicated. Dkt. 107-5, at 8. Mr. Lookabill acted extremely angry, then switched to being somber, then angry again. Dkt. 107-5, at 8. Officer Gutierrez felt that his manner and speech were aggressive. Dkt. 107-5, at 8. Officer Gutierrez stated that he ordered Mr. Lookabill to put his hands out to his side and then, when he stopped doing that, Officer Gutierrez tried ordering him to put his hands on his head. Dkt. 107-5, at 9.
Sergeant John Schultz, a defendant here, arrived on the scene a few minutes later, and as a prior hostage negotiator, began to talk to Mr. Lookabill. Dkt. 107-5, at 9. Other officers also arrived (Dkt. 107-6, at 4) including Officer Frank Gomez (Dkt. 107-4, at 2-9), who is also a defendant here. Officer Gomez, armed with a rifle, moved to the left of Officer Gutierrez, who was still using the police car and car door for cover. Dkt. 107-4, at 4. Officer Gomez could see the gun in Mr. Lookabill's right pocket. Dkt. 107-15, at 14. Mr. Lookabill was over 20 feet away from Officers Gomez and Gutierrez. Dkt. 107-15, at 17.
Sergeant Schultz stated that when he arrived, Mr. Lookabill was yelling. Dkt. 105-2, at 8. Sergeant Schultz testified they had the following exchange:
During the time that he was yelling and I was trying to talk to him he would say things like you mother-fuckers are going to have to shoot me. He said things like you are going to send that dog in to bite my face. He repeatedly said fuck you.
He said that he was in Iraq. He told me that he should be on the other side of this with us. He told me or I told him - as I'm attempting to talk to him I told him things like you are not in trouble, nobody is here to hurt you. I repeated that.
He told me he should have been on our side. He said that he had wanted to be a cop. When I told him that he was not in trouble, he told me not to use my cop shit - he said don't use your cop shit on me, it is not going to work, I believe is what he said. He said he was in fucking Iraq. He said you mother-fuckers are going to have to shoot me.
I repeatedly tried to talk to him. I repeatedly tried to get his attention. I told him my name was John. I told him I was with the police. He told me he had a gun. He told me it was in his front stomach pocket or front pocket.
He told me he was going to reach for his gun. I told him not to reach for his gun. I told him do not reach for your gun. I believe what I said was, Nikkolas, do not reach for your gun.
Dkt. 105-2, at 8-9.
Around this time, Officer Gutierrez realized that he knew Mr. Lookabill from a prior incident a few months before. Dkts. 107-5, at 6 and 107-12, at 18. Officer Gutierrez recalled Mr. Lookabill's girlfriend had reported Mr. Lookabill was suffering from post traumatic stress disorder and was talking about suicide. Dkt. 107-5, at 6-7 and 107-12, at 17-18. Officer Gutierrez remembered that in that incident, Mr. Lookabill was taken to the Veteran's Hospital. Dkt. 107-5, at 7. He recalled that Mr. Lookabill expressed an interest in becoming a police officer at that time as well. Dkt. 107-5, at 7. Officer Gutierrez did not have a chance to tell Sergeant Schultz that he had had prior contact with Mr. Lookabill. Dkt. 107-12, at 18.
At the officers' request, Mr. Tarbutton, Mr. Tingley and Mr. Presler moved toward Mr. Tarbutton's home. Dkt. 59, at 3. Mr. Tarbutton went in the home, looked out his open front door, and could see Mr. Lookabill lying down on his stomach. Dkts. 59, at 3 and 105-4, at 23. Mr. Tingley and Presler went to the side of the house and watched. Dkt. 107-6, at 5.
Mr. Tarbutton stated that Mr. Lookabill appeared to "be angry and agitated, " was "yelling to the officers about his girlfriend or something, " and slurring his words. Dkt. 59, at 3-4. In his declaration, Mr. Tarbutton stated that Mr. Lookabill was "flat on his stomach and his arms, legs and hands were spread out" the entire time. Dkt. 59, at 40. Mr. Tarbutton later testified that Mr. Lookabill flipped the officers off four or five times, was moving his arms "out and around" and was kicking his legs. Dkt. 107-16, at 15 and 13. Mr. Tarbutton also stated that his roommate, Devin Sailor, came downstairs and asked what all the shouting was about. Dkt. 59, at 4. Mr. Tarbutton turned and spoke with Mr. Sailer for a moment. Dkts. 59, at 4 and 105-4, at 11 and 22. Mr. Sailer then walked off and used the restroom. Dkt. 105-4, at 20. Mr. Tarbutton stated that he never felt like Mr. Lookabill's motions were threatening. Dkt. 107-16, at 14. He described Mr. Lookabill's movement more like a "tantrum... like just upset, waving his arms around because he's upset, not because he's trying to reach for his gun or anything." Dkt. 107-16, at 14. Mr. Tingley remembered Mr. Lookabill rolling around and flipping over onto his back and flipping the officers off. Dkt. 107-8, at 11. Mr. Presler stated that Mr. Lookabill stayed on the ground "but other than that he was just kinda flailing." Dkt. 107-6, at 6.
Officer Gomez stated that Mr. Lookabill kept lifting his upper body off the ground, turning his head, and looking around. Dkt. 107-4, at 5. Officer Gomez stated that Mr. Lookabill was screaming obscenities, was very agitated, and not compliant. Dkt. 107-4, at 5. Officer Gomez asserted that Mr. Lookabill kept raising his body off the ground looking around "as if he was looking to find where [the police officers] were" in order to target them. Dkt. 107-15, at 24. Sergeant Schultz described Mr. Lookabill as agitated and aggressive. Dkt. 107-7, at 8.
Sergeant Schultz was concerned about Mr. Lookabill's continued mention of his military service in Iraq. Dkt. 107-7, at 8. He was worried about Mr. Lookabill's combat experience and what that would mean tactically for the officers present. Dkt. 107-7, at 8. Sergeant Schultz kept trying to talk with Mr. Lookabill to calm him down. Dkt. 105-2, at 9. He stated that Mr. Lookabill kept saying that the police officers were "going to have to shoot [him]." Dkt. 105-2, at 9.
Mr. Tarbutton stated that Mr. Lookabill said, "come take the gun from me" multiple times. Dkt. 107-16, at 12. Mr. Tarbutton stated that Mr. Lookabill told the officers that the gun was in the center pocket of his sweatshirt. Dkt. 59, at 3. According to Mr. Tarbutton, the officers responded with "you need to calm down more." Dkt. 107-16, at 12. Mr. Tarbutton felt that the officers were just "waiting for something." Dkt. 107-16, at 13. Mr. Tarbutton heard the officers repeatedly tell Mr. Lookabill not to reach for his pocket. Dkt. 107-16, at 13-14.
Mr. Tarbutton stated that Mr. Lookabill started talking about wanting to throw the gun into the road and asked the officers if they were going to shoot him if he did. Dkt. 59, at 3. Mr. Tarbutton stated that eventually, Mr. Lookabill wasn't "barking orders, " but was kind of "begging" the police to come take the gun from him. Dkt. 107-16, at 16. According to Mr. Tarbutton, Mr. Lookabill was "literally begging like, Come take the gun from me.' Like, Please come take the gun from me.'" Dkt. 107-16, at 16.
According to Mr. Tarbutton, Mr. Lookabill said, "I'm going to countdown from thirty and then if you don't come take the gun from me, I'm going to start smashing my head into the sidewalk." Dkt. 59, at 3-4. Officer Gutierrez stated that he was under the impression that Mr. Lookabill was going to do a countdown and then stand up. Dkt. 107-5, at 11. Mr. Presler stated that he thought that Mr. Lookabill said that after he did the countdown "I'm gonna shoot myself in the head if I get to zero if you guys don't take my gun." Dkt.107-6, at 5.
Mr. Lookabill counted down. Dkt. 59, at 4. Mr. Tingley stated that after the countdown, Mr. Lookabill flipped over onto his back and flipped the officers off again while screaming obscenities. Dkt. 107-8, at 12. Mr. Tarbutton stated that after Mr. Lookabill "moved his arms up to flip the officers off" he then moved them over his head again. Dkt. 59, at 4. Officer Gutierrez stated that Mr. Lookabill kept saying "Just kill me, " and "I'm not going to shoot you" and that he wanted to be a cop. Dkt. 107-5, at 13. Mr. Presler stated ...