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Thomas v. Cannon

United States District Court, W.D. Washington

May 25, 2017

FREDRICK and ANNALESA THOMAS; and JO-HANNA READ, as Guardian ad Litem of E.T., a minor, Plaintiffs,
JASON CANNON; BRIAN MARKERT; RYAN MICENKO; MICHAEL WILEY; MICHAEL ZARO; CITY OF FIFE; CITY OF LAKEWOOD; and PIERCE COUNTY METRO SWAT TEAM, Defendants. FREDRICK THOMAS and ANNALESA THOMAS, as o-Administrators of the Estate of Leonard Thomas, and its statutory beneficiaries, Plaintiffs,


          Barbara Jacobs Rothstein U.S. District Court Judge.


         In the early hours of May 24, 2013, Leonard Thomas was shot and killed by a Pierce County Metro SWAT Team member while clutching his four year old son, E.T. The shooting occurred after a four hour standoff at the home where Leonard lived with his parents, Fredrick and Annalesa Thomas.[1] The Thomas family has brought two complaints related to these events, and the cases have been consolidated. In one, Fredrick and Annalesa Thomas, as co-administrators of the Estate of Leonard Thomas (hereinafter the “Estate”), bring suit under 42 U.S.C. § 1983 for the unreasonable search and seizure of Leonard's home, in violation of the Fourth Amendment; the unreasonable seizure of Leonard's person, in violation of the Fourth Amendment; and the deprivation of Leonard's interest in a familial relationship with his son without due process of law, in violation of the Fourteenth Amendment. The Estate also brings state law claims for outrage and negligence.

         Additionally, Fredrick and Annalesa Thomas, and Jo-Hanna Read, as Guardian ad Litem of E.T. (hereinafter the “Family” or “Individual” Plaintiffs], bring suit under § 1983 for the unreasonable search and seizure of the home of Fredrick, Annalesa, and E.T., in violation of the Fourth Amendment; the unreasonable seizure of E.T., in violation of the Fourth Amendment; the unreasonable seizure of Fredrick, in violation of the Fourth Amendment; and the deprivation of E.T.'s interest in a familial relationship with his father, and Fredrick and Annalesa's interest in a familial relationship with their son, in violation of the Fourteenth Amendment. These Plaintiffs also bring state law claims for outrage, the false arrest of Fredrick, negligence, and the prompt production of public records.

         Currently before the Court is Defendants' Motion for Summary Judgment (Doc. No. 57).[2]Having reviewed the parties' submissions, the record of the case, and the relevant legal authority, the Court will GRANT in part and DENY in part Defendants' Motion for Summary Judgment.


         Leonard lived with his four-year-old son, E.T, in a home in Fife owned by his parents, Fred and Annalesa. Leonard had full custody of E.T. Kim Thomas, E.T.'s mother and Leonard's estranged wife, lived in a nearby town. In the evening of May 23, 2013, Leonard called Annalesa, said he was depressed over the death of a friend, and asked her to come take E.T. for the night. (Doc. No. 58 Ex. 1 at 72.) Annalesa was concerned that Leonard had been drinking that night, after a year of sobriety, and worried that Leonard would fall asleep and not be able to attend to E.T. (Id. at 127.) Leonard also called Kim and asked her to spend the night with him. (Doc. No. 58 Ex. 2 at 115.) Kim declined to spend the night, but said she would come pick up E.T. (Id. at 117.)

         Kim arrived at approximately 9:00 pm, and recognized that Leonard was intoxicated. (Id. at 124.) Annalesa arrived thereafter, and determined that both Leonard and E.T. should spend the night at her and Fred's home. (Doc. No. 77 Ex. 2 at 75.) Annalesa did not feel like E.T. was in danger from Leonard's intoxication, but she was concerned that E.T. would be unattended should Leonard fall asleep. (Id. at 90.) Leonard did not want to go home with Annalesa, and became upset as Annalesa prepared to leave with E.T. (Id. at 78-79.) Annalesa became “exasperated” when Leonard stopped cooperating, and threatened to call the police if Leonard did not let E.T. go with her. (Id. at 79-80.) The argument between Leonard and Annalesa escalated, and Annalesa slapped Leonard with an open hand twice on his face, drawing blood. (Id. at 86.) Annalesa called 911 at 10:18 pm, and told the dispatcher she needed the police. (Id. at 83.) Leonard grabbed the phone from Annalesa, and told the dispatcher that his mother had hit him and that he needed help. (Doc. No. 58 Ex. 6 at 1.)

         Fife Police Officers Pat Gilbert and Angelito Quinto responded to the Thomas house. (Doc. No. 58 Ex. 7 at 1.) Annalesa and Kim told Officer Quinto that Leonard was distraught over the death of a close friend, that Leonard was highly intoxicated, and the Leonard had resisted their efforts to take E.T. for the night. (Id.) As other officers arrived at the scene, Officer Quinto advised Lieutenant Scott Green that there was probable cause to arrest Leonard for “Assault 4 DV [domestic violence] and Interfering with the reporting of DV.” (Id. at 2.) Lt. Green was aware that Leonard had mental health issues. (Doc. No. 58 Ex. 9 at 1.)

         At approximately 10:30 pm, Lt. Green contacted Leonard via cell phone. (Doc. No. 58 Ex. 10 at 1.) During their initial 24 minute conversation, Leonard told Lt. Green that he was upset about the recent loss of a personal friend and had requested his mother come to pick up his son; that he had subsequently been assaulted by his mother and was bleeding from the face; that he had locked all the doors and would not be coming out of the house or allowing officers inside the house; and that the police were scaring his four-year-old son and should leave his property. (Id.) Lt. Green informed Fife Police Chief Brad Blackburn that Leonard was a suspect in at least two crimes, drunk, irrational, and barricaded inside with a four-year-old child. At approximately 11:21 pm, Chief Blackburn advised that he would activate the Pierce Metro SWAT team to respond to the scene. (Id.; id. at Ex. 6.)

         At about the same time, Sergeant Nils Luckman, a certified hostage negotiator in a neighboring city who had been monitoring the situation via radio, arrived to assist. From 11:20 pm to 12:24 am, Sgt. Luckman had 10 separate phone calls with Leonard, which consisted of “hang ups, [Leonard] screaming and yelling, hang ups, call backs, ” and so on. (Doc. 58 Ex. 11 at 7.) At one point, Luckman asked Leonard whether E.T. was ok. (Id. at 10.) Witnesses dispute the manner in which Leonard exhibited E.T. at the window, with accounts ranging from Leonard holding E.T. in front of him at the window to Leonard dangling E.T.'s entire body outside the window. (See Id. Ex. 6 at 1; Ex. 7 at 2; Ex. 13 at 15; id. Ex. 14; Doc. No. 77 Ex. 7 at 56; Ex. 33 at 18-19.)

         Leonard warned officers “not to use ‘flash bang' grenades to enter the house.” (Doc. No. 58 Ex. 6.) Officer Johnson heard Leonard “yelling, ‘I don't have any weapons, I don't have any weapons.' Then in a lower voice, ‘Except a pistol.'” (Doc. No. 58 Ex. 14.) It is undisputed that no officer heard Leonard make any threats to harm himself, his child, or any officer, and no officer saw Leonard with a weapon. (Doc. No. 77 Ex. 4 at 14; Ex. 10 at 45-46; Ex. 11 at 30, 35-38; Ex. 12 at 17; Ex. 13 at 40, 42, 53-55; Ex. 12 at 17.) Kim informed officers that Leonard was unarmed but was ignored because, as Officer Wiley described, “Baby's momma, ‘No he ain't got no gun, ' blah blah blah. I don't know how many times I've heard that and found weapons.” (Doc. No. 81 Ex. 12 at 53.) Annalesa also told Sgt. Luckman that there were no guns in the house. (Doc. No. 77 Ex. 15 at 79.)

Sgt. Luckman states that Leonard repeatedly told him he was unarmed:
I had heard from somebody that he said he had a pistol at some point. But he never said anything to me on the phone. And I kept repeating to him on the phone also, “Do you have any weapons at all?” He goes, “No, I'm unarmed. I have nothing. I'm” and he used the word “I'm unarmed” probably four to five times in the conversation.

(Doc. No. 77 Ex. 16 at 10.)

         At approximately 11:55 pm, Lt. Green called Fife Detective Jeff Rackley and instructed him to prepare a search warrant for the residence in order to arrest Leonard for domestic violence assault in the fourth degree, a misdemeanor. (Doc. No. 58 Ex. 16.) The warrant was signed at 2:00 am on May 24. (Id. Ex. 17.)

         At approximately 12:20 am, the Pierce Metro SWAT Team arrived on the scene. (Doc. No. 58 Ex. 6 at 2.) The Team brought two armored vehicles with them, an “AT” (“armored transport”) and a “Bearcat.” The AT was driven across the neighbor's yard, through a fence separating the neighbor's yard from the Thomas home, and parked just off the back patio of the Thomas residence. (Doc. No. 58 Ex. 52.) The Bearcat was parked on the street in front of the house. (Doc. No. 58 Ex. 53.) Officer Wiley informed the SWAT team that they were “responding to basically assault 4 DV, barricaded male suspect has his four year old son maybe pseudo hostage. The wife is outside. Made no threats towards the son.” (Doc. No. 77 Ex. 12 at 1-2.)

         The SWAT team consists of a tactical side, with Mike Wiley as Team Leader, and a team of negotiators, which included Sgt. Mark Eakes of Lakewood and Mike Malave of Fife. (Doc. No. 77 Ex. 7 at 21; Ex. 27 at 1.) Overseeing field operations was Defendant Mike Zaro, the Assistant Chief of Police for Lakewood. (Doc. No. 77 Ex. 23 at 30.) Malave made contact with Leonard and had a brief conversation, as reported by Malave:

I spoke to him for maybe about ten minutes. Um, and he was - he was up and down and he was angry, um, telling us that -- he was telling me that he wanted -- he wanted nothing to do with the Fife Police Department, um, that he didn't want to talk to any Fife officers and he was also saying that he wanted to, um, to have all the officers leave his property. Um, he told me that, um, he wasn't gonna talk about why he was angry, he wasn't gonna talk to me about why he was bleeding or why he, um, um, he said something to the effect of why his mother had assaulted him.

(Doc. No. 58 Ex. 24 at 3.)

         After four to five minutes, Leonard “became angry and hung up.” (Id. at 3.) Thereafter phone calls to Leonard went straight to voicemail. (Id.) Leonard then called 911, which connected him to the Fife Police Dispatch Center. (Doc. No. 58 Ex. 26 at 6.) Leonard told the dispatcher, “I do not wish to speak to you guys. I need to be transferred back to 9-1-1 Dispatch and I would like to have someone from a State Patrol or from a Pierce County Sheriff to come out.” (Id.) Leonard explained, “Ma'am, I am sheltered in my house trying to stay away from the Fife Police Department who are harassing me. I need to have a Sheriff out here.” (Id. at 8.) He further explained, “The problem is that they are here surrounding my house and I'm asking them to leave. . . . I'm on private property and I've had several occasions to tell them to leave.” (Id.)

         The state patrol patched Leonard's call to the cell phone of Sgt. Eakes, the SWAT team leader and senior negotiator. Eakes recalled that Leonard told him, “I'm bipolar and I've got some mental issues and am really upset about some things right now, [but] I don't need you cops here. Just get out of here.” (Doc. No. 58 Ex. 24 at 13.) Throughout the evening, Sgt. Eakes asked Leonard more than once whether he had a gun, and every time Leonard said he did not. (Doc. No. 77 Ex. 32 at 24.)

         The police had established a staging area in a convenience store parking lot a couple blocks away. Kim and Annalesa had been brought to the staging area. At approximate 1:08 am, Fred arrived at the staging area, in response to a call from Annalesa that Fred needed to come speak with his son. (Doc. No. 77 Ex. 37 at 17.) Fred told an officer that he needed to go down the road to a house he owned to talk to his son. (Id. at 18.) The officer responded, “You're not going anywhere.” (Id.). According to Officer Wyrwitzke, Fred “attempted to drive around the police barricade and was advised he could not pass.” (Doc. No. 58 Ex. 18 at 2.) Fred agreed he “tried to drive down the road” when a uniformed patrol officer “approached me and told me I can't.” (Doc. No. 58 Ex. 19 at 19.) Officer Wyrwitzke advised Fred “that his wife was seated in the back of my patrol car and that it would probably be beneficial for him to stay and talk to her.” (Id. Ex. 18 at 2.) A short time later, Officer Wyrwitzke “looked up . . . and noticed that [Fred] was nowhere to be found.” (Id. Ex. 16 at 2.) Annalesa told officers that Fred “was probably going to attempt to gain access to their property via the backyard.” (Id.) Kim reported seeing Fred “run past the [convenience store] to go to the back, ‘cause there's a back way to get there.” (Id. Ex. 2 at 153) She concluded Fred did this “so the cops won't see him, ” because “the police wouldn't let anybody just walk up to the house.” (Id. at 154.)

         Fred reports walking to the back of his property, which was not marked with crime scene tape and where he did not see any officers or vehicles. (Doc. No. 77 Ex. 31 at 67; Ex. 37 at 22-23.) Fred climbed the six foot chain link fence surrounding the backyard, and says police “yelled, Put your hands up, and shined lights in my face and just started screaming at me and basically made me get on my knees and threw me to the ground and handcuffed me.” (Doc. No. 77 Ex. 37 at 23.) Fred recalls:

They throw me on the ground. Well, they push - I'm on my knees, they push me to the ground, one puts his knee in my back, and I don't know whether it's him or another person because there were two there and one's zip tying me. And I tell them I can't breathe because I have COPD, and he says, You sure did hop that fence fine. And I asked him to let me catch my breath and instead they say no, they yank me up to a sitting position, drag me over to the tree and that's when I see the SWAT vehicle or whatever vehicle that was.

(Id. at 26-27.)

         Officer Ryan Micenko, who was behind the house at the time, remembers “kind of hearing, like rustling and looking back and seeing Fredrick jumping over the fence and coming - basically sprinting towards us, towards the house.” (Doc. No. 58 Ex. 20 at 79.) Officer Micenko further recalls “putting my flashlight on [Fred], identifying myself, telling him to stop several times. And when he got pretty close to us - there were several of us there. We were kind of like a wall. He lowered down to prone, like we eventually directed him to, and I placed him in handcuffs.” (Id.) Micenko told Fred he was under arrest for obstructing “[b]ecause he attempted to get through our cordon unlawfully. He made a physical step to get through the cordon and did not comply initially with directives to stop all the way at the back of the property.” (Id. at 84.)

         As negotiations with Leonard increasingly appeared unlikely to lead to a resolution, Eakes suggested to the scene commanders that perhaps if Leonard let E.T. go, they could simply leave for the night and come back to arrest Leonard another time. Chief Zaro agreed with the approach, and asked Fife Police Chief Blackburn “if we get the son tonight, are you good with us leaving here[?]” (Doc. No. 58 Ex. 24 at 14). Chief Blackburn agreed that “Yeah, if we have the son, then you can - we can walk away from this thing tonight and we'll get him at another time when it's not so volatile.” (Id.)

         When Eakes first proposed to Leonard that the police would leave if Leonard gave up E.T., Leonard responded, “I'm not giving him up.” (Id. at 17.) Eakes reassured Leonard that “[E.T.] could come out and we can give him to whoever you approve of. And then you can talk to that person on the phone to know that they have [E.T.] and you can talk to [E.T.] and we're gone. We're out of here.” (Id. at 18.) Eventually, Leonard responded, “Okay, we'll do that.” (Id.) However, when Eakes told Leonard that an officer would meet E.T. out front, Leonard got “real intense that I inserted an officer, you know, coming up to him, ” and told Eakes “he's not going to come to no officers. No officers are going to touch my son. You're screwing with me again.” (Id.)

         Rather than handing off E.T. to a waiting police officer, Leonard demanded that “I want my mom to come up here.” (Id.) Eakes told Leonard “we can't let your mom come up to the door . . . you guys already had one confrontation today and we can't let that happen again.” (Id.) Eakes continued pleading with Leonard to let E.T. leave the house, and Leonard continued demanding that “mom come up and take him.” (Id.) Eventually, Eakes suggested that Annalesa “meet [E.T.] around the corner and it'd be like 20 seconds from the time you let him go to she's in - or he was in mom's arms and then you - I'll make sure that you get to talk to make sure.” (Id.) At that point, Leonard stated “Okay. That sounds good . . . I gotta get him up.” (Id.)

         Approximately ten minutes later, SWAT Officers reported that Leonard had come out onto the front porch, made E.T. sit down on the top step, then stood there behind him “an arm's length” away. (Id. Ex. 27 at 13-14.) Leonard told Eakes he was outside with E.T., but again started demanding that Annalesa “comes up to - bring her up to the porch now.” (Id. Ex. 24 at 19.) Eakes again explained to Leonard, “You don't have to go to jail, anything like that, but you've got to start doing something for me and for yourself here. And, um - and your son . . . He doesn't need to be involved in this kind of drama tonight, he needs to be with grandma.” (Id. at 19.) Leonard responded “Well, no, she's only - only if she comes up here, ” and he “kept saying I want to see her.” (Id.) Eventually, Leonard again said he was outside on the porch, and demanded that Eakes “Tell her to come on up.” (Id. at 19.) Again, Eakes told Leonard “Well, we can't. Just let him go, you can watch him walk down to the - watch your son walk down a path and you can step back in the door, shut the door, lock it and look out the window if you'd like.” (Id.) Leonard responded, “No. I'm not doing that.” (Id.)

         Based on Leonard's continued demands to have Annalesa come up to the house, his continued refusal to let E.T. go, and the fact that he was now outside the house with E.T., Chief Zaro radioed the entire SWAT Team, ordering them “Do not let that kid back in the house. If we are able to separate the kid from the dad, do not let him go back in the house.” (Id. at 14.) Zaro explained that he gave this order

because of how agitated he was and because of all the background we have on him and, um, just his - his irrational behavior throughout the night, I was very, very concerned for that kid's safety, and if we - if he, you know, within those four walls of the house, we can't see the kid, we don't know where he's at, we don't know what the dad's got or where - where he's at, so, um, our best chance of effecting a safe separation is when they're outside.

(Id. at 15.) The two SWAT Team snipers, Kenyon and Brian Markert, said they were initially unsure whether Zaro's order was a “delta order” to use deadly force. (Doc. No. 77 Ex. 28 at 24; Ex. 29 at 62-63; Ex. 41 at 48.) Several other members of the SWAT team understood Zaro's order to authorize deadly ...

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