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Estate of Bourquin v. Pierce County

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

April 11, 2017

The ESTATE OF MICHAEL BOURQUIN, by and through JUDY BURCH, the personal representative for and on behalf of Plaintiff Decedent MICHAEL BOURQUIN, et al, Plaintiff,
PIERCE COUNTY, et al., Defendant.


          Ronald B. Leighton United States District Judge

         THIS MATTER is before the Court on Defendants' Motion for Summary Judgment [Dkt. #26]. Plaintiffs are the mother and children of Michael Bourquin, and the representative of his estate. Defendant Pierce County is the employer of Defendant Chad Helligso, who shot and killed Bourquin during a violent encounter in the early morning of February 1, 2014. As a result of Bourquin's death, plaintiffs filed a Civil Rights Act lawsuit alleging that Defendants' violated Bourquin's Fourth Amendment rights. Plaintiffs also bring a loss of consortium claim. In this motion, Defendants seek dismissal of (1) all Fourth Amendment claims against Deputy Helligso as Deputy Helligso did not commit a constitutional violation, and even assuming otherwise is entitled to qualified immunity; (2) the Monell[1] claim against Pierce County as Plaintiffs cannot establish the necessary elements of municipal liability; (3) all claims made by Plaintiff Judy Burch as Judy Burch lacks standing to sue; (4) any state claim of loss of consortium as that tort, and any other state tort claim, is barred by RCW 4.24.420; and (5) any Fourteenth Amendment claim for loss of companionship because there is no evidence that Deputy Helligso acted with a purpose to harm.

         I. FACTS

         Michael Bourquin, a suspect wanted on felony warrants, implicated in a murder, and a known associate of a person who had taken a death threat out on the two officers here, openly sprayed officers directly in the face with bear pepper spray during a traffic stop.

         As a result, officers were left blinded, defenseless, gasping for breath, and were forced to use deadly force in order to save their lives.

         Deputy Helligso and Olson both started working as Pierce County Sheriff's Deputies in 2006, and worked as Corrections Deputies prior to that. Both of them went through two separate law enforcement academies where they were exposed to OC-10 spray (oleoresin capsaicin, otherwise known as pepper spray or OC spray). Since 2011 they have worked together as a two man car, four days a week, 10-11 hours a day.

         At the time of this incident, Deputy Helligso and Olson patrolled the South Hill area, with a primary emphasis on the west side - the Parkland/Spanaway area. The Parkland/Spanaway area is a high traffic, high call volume area known for criminal activity such as methamphetamine, theft, burglary, stolen vehicles, identity theft and firearms. Because of this work environment, Deputy Helligso is familiar with the drug methamphetamine and its effects, having daily contact on patrol with individuals under the influence of this drug. In his experience it causes highly unpredictable and dangerous behavior.

         Deputy Helligso has been exposed to pepper spray before. In his experience, “You can't breathe. You start losing your breath. You can't talk. And within seconds you're basically completely incapacitated. You can't breathe. You can't see. Nothing.” (Helligso Decl., Dkt. #32). The effect can last for hours and for him personally, he is unable to see for 20 to 30 minutes at a minimum. The pain is said to feel like a “hot fire poker being struck directly into your eye and left there. Eyes are clamped shut due to the pain.” Id. Olson's prior experience with pepper spray is that it is completely “debilitating.” (Olson Decl., Dkt. #29).

         One of the areas Olson and Helligso routinely patrol within Spanaway is a well-known trailer park located at 180th and Pacific Avenue, hereinafter referred to as the “trailer park.”

         Around April 17, 2013, Deputy Olson and Helligso arrested Daniel Smith, a resident of the trailer park, for possession of a large amount of narcotics with intent to deliver. At the time of the arrest, Daniel Smith threatened Deputy Helligso and Olson, telling them that he would be looking for them when he gets out. During a search of the car following his arrest, officers found a large knife, a taser, drugs and scales, and two daggers. Olson reported that he took Smith's threats seriously based on his prior contact with Smith and the weapons found in the vehicle at the time of arrest.

         While in jail on those charges, Daniel Smith took a “hit” out on the lives of Deputy Helligso and Deputy Olson. According to an investigation, Daniel Smith made phone calls to his girlfriend, Eileen Lewis, and the calls were recorded on the jail's monitoring system. In the calls, Smith said that he knew a guy named “Dougie” was getting out on Friday and that:

. . . between me and you. Olson's already fucking done. Did you forget who I sold the SK 47 to .. or the SKS. Okay, I sold it to Dougie's dad. Yes . . . . Fucking Olson's badge is gone.

(Olson Decl., Dkt. #29).

         As a result of the phone calls, detectives contacted Douglas Reed, suspected to be “Dougie, ” who was in the same cell block as Daniel Smith and subject to be released soon. According to Reed, Smith was openly talking about setting up Deputy Olson outside the trailer park where he lives. Reed said Smith's plan was to call 911 and make a false drug complaint occurring outside the trailer park. Smith says he would then ambush Deputy Olson and shoot him with an automatic weapon. Deputy Olson and Helligso also had good rapport with Douglas Reed and he confirmed the death threat to them.

         On April 29, 2013, Deputy Brown contacted Deputy Olson and made him aware of the above threats.

         On June 7, 2013, in Pierce County Superior Court, a judgment and sentence was entered against Daniel Smith on the charge of Felony Harassment, the factual basis for which was the death threats against Olson and Helligso. Smith had a long criminal history, with the maximum number of offender points, and was sentenced to 60 months in prison for the threats against Deputy ...

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