United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING IN PART AND REMANDING IN PART REPORT
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable David W.
Christel, United States Magistrate Judge (Dkt. 65), and
Plaintiff's objections to the R&R (Dkt. 67).
case involves the shooting of Plaintiff by Defendant Chris
Roberts, an officer with the City of Fircrest Police
Department. Plaintiff claims that Defendants used excessive
force by failing to warn Plaintiff prior to using deadly
force while Plaintiff was unarmed and fleeing. See
Dkt. 38. The procedural and factual background of this case
is set forth more fully in the R&R. Dkt. 65 at 2. On June 2,
2017, Judge Christel issued the R&R. Dkt. 65. On June 16,
2017, Defendants objected. Dkt. 67. On June 29, 2017,
Plaintiff responded to the objections. Dkt. 68.
district judge must determine de novo any part of the
magistrate judge's disposition to which a party has
properly objected. The district judge may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions. Fed.R.Civ.P. 72(b)(3).
raise four objections to the R&R. First, they argue that
Judge Christel improperly rejected their argument that
Plaintiff is collaterally estopped from claiming that Officer
Roberts failed to warn him prior to using deadly force. Dkt.
67 at 6-8. Second, they argue that Officer Roberts's use
of deadly force was reasonable as a matter of law.
Id. at 8-9. Third, they argue that Officer Roberts
is entitled to qualified immunity on the basis that the right
he allegedly violated is not clearly established.
Id. at 11. Fourth, they argue that Plaintiff's
claims against the City of Fircrest must be dismissed because
Plaintiff has failed to present evidence that the City's
subsequent investigation constitutes the type of
“ratification” necessary to impose liability on a
municipality under 42 U.S.C. § 1983. Id. at
the Defendants' argument on collateral estoppel, the
Court adopts the reasoning set forth in the R&R. Defendants
claim that Plaintiff is collaterally estopped from arguing
that Officer Roberts failed to issue a warning before
shooting on the basis that this fact was already litigated in
Plaintiff's criminal proceedings. Dkt. 67 at 7.
Specifically, Defendants cite to the Court of Appeal's
decision that the trial court did not abuse its discretion in
preventing Plaintiff from analogizing his case to a different
case out of California. However, Defendants fail to
articulate any rationale regarding how a factual finding on
the issuance of a warning pertains to the Washington
courts' decisions to prevent Plaintiff from analogizing
his arrest to unrelated cases during criminal proceedings.
Reviewing the record, it appears that the Washington
courts' decisions were based on a general policy that
such a practice should be avoided to prevent the jury from
reaching decisions based on the facts of other cases. The
Washington courts' decisions do not appear to depend on
any particular findings that the facts in Plaintiff's
case are too distinguishable from the California case. The
Court agrees with Judge Christel's conclusion that
“the issues of whether Defendant Roberts instructed
Plaintiff to show his hands and Plaintiff failed to comply
were not issues actually or necessarily decided by the state
trial or appellate courts.” Dkt. 65 at 14. Accordingly,
the Court concludes that Plaintiff is not collaterally
estopped from arguing that Officer Roberts failed to warn him
prior to shooting. In this case, whether or not a warning was
issued and the timing of the shooting are factual questions
involving credibility determinations that must be reserved
for the jury.
next argue that Officer Roberts's use of force was
reasonable as a matter of law. The Court disagrees. The
undisputed facts show that Plaintiff, a suspect for an
earlier armed assault, was unarmed and fleeing from Officer
Roberts when he was shot. Although Plaintiff was suspected of
brandishing a firearm in a previous assault, a reasonable
belief that Plaintiff was armed would be insufficient to
justify the use of deadly force in apprehending him absent
some further evidence of an imminent threat to someone
else's safety. See Harris v. Roderick, 126 F.3d
1189, 1203 (9th Cir. 1997) (finding that shooting an armed,
fleeing suspect was not objectively reasonable absent any
threatening movement, “even though the suspect had
engaged in a shoot-out with law enforcement officers on the
previous day and may have been the person responsible for the
death of one of the officers.”).
Officer Roberts saw any threatening movements or other
evidence to support a probable cause finding that Plaintiff,
a fleeing suspect, posed an imminent danger is a genuine
factual dispute. As noted by Judge Christel, “[t]he
evidence viewed in the light most favorable to Plaintiff
shows Plaintiff was escaping out the back door when he was
shot and therefore did not present an immediate threat to the
officer or others.” Dkt. 65 at 18. This finding is
supported by evidence suggesting that, at the time of the
shooting, Plaintiff had his hands on the door handle of a
sliding glass door at mid-chest height and was not otherwise
engaged in any particularly threatening movements. Officer
Roberts's own testimony suggests that, had Plaintiff
escaped out the back door, he would not have posed an
imminent threat to anyone. Dkt. 56-5 at 4. Yet, in order to
approach Plaintiff after the shooting, Officer Roberts had to
walk through the already open glass door to where Plaintiff
was lying shot on the back patio-suggesting that the door may
have already been open at the time Plaintiff was shot. Dkt.
56-14 at 43.
Court also adopts the conclusion in the R&R that Officer
Roberts is not entitled to qualified immunity. It is
well-established that the use of deadly force is only
reasonable when used to prevent the escape of a fleeing
felony suspect if “ it is necessary to prevent the
escape and  the officer has probable cause to believe that
the suspect poses a significant threat of death or serious
physical injury to the officer or others.”
Tennessee v. Garner, 471 U.S. 1, 3 (1985). There
does not appear to be a dispute over whether the force was
necessary to prevent an escape. However, as explained above,
there are too many genuine factual disputes surrounding the
circumstances of the shooting to determine whether an officer
in Officer Roberts's position would have probable cause
to believe that Plaintiff posed an imminent threat to
anyone's safety. Dkt. 56-5 at 4.
Court is more convinced by Defendants' arguments
regarding Plaintiff's claim against the City under
Monell v. Dep't of Soc. Servs. of City of New
York, 436 U.S. 658 (1978). Under Monell, a
local government can be held liable on a § 1983 claim
only “when implementation of its official policies or
established customs inflicts the constitutional
injury.” Monell, 436 U.S. at 708. Such a
policy can be proven by a local government's ratification
of a constitutional violation. Clouthier v. Cnty. of
Contra Costa, 591 F.3d 1232, 1250 (9th Cir. 2010).
Plaintiff's Monell claim is premised on a theory
case, Plaintiff argues that the City of Fircrest ratified the
allegedly unconstitutional shooting by Officer Roberts when
it conducted an investigation of the shooting and ultimately
“found that the use of force [Officer Roberts] used was
justified . . . .” Dkt. 56-13. To refute this claim,
Defendants argue that the City ratified the shooting based on
the version of facts presented by Officer Roberts and that in
doing so, it did not ratify the unconstitutional factual
basis for the shooting as alleged by Plaintiff.
Defendants point out, ratification under Monell
requires that a local government “ratif[y] a
subordinate's unconstitutional decision or action and
the basis for it.'” Clouthier, 591
F.3d at 1250 (emphasis added). The mere fact that an officer
was not reprimanded or provided with additional training
cannot support a theory of ratification. Morales v.
Fry, C12-2235-JCC, 2014 WL 1230344, at *14 (W.D. Wash.
Mar. 25, 2014); Clouthier, 591 F.3d at 1253-54
(holding that a failure to discipline employees, without
more, was insufficient to establish ratification).
“Ratification . . . generally requires more than
acquiescence.” Sheehan v. City & Cty. of San
Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014),
rev'd in part on other grounds sub nom. City & Cty.
of San Francisco, Calif. v. Sheehan, 135 S.Ct. 1765
this standard, lower courts appear to be divided on whether
an internal police investigation that concludes that a
shooting by its officers was lawful and within the
municipality's policies is alone sufficient to support a
theory of ratification for the purposes of Monell
liability. For instance, another judge in our district has
recently found that such circumstances create a question of
fact regarding ratification that should be resolved by a
jury. Thomas v. Cannon, 3:15-05346 BJR, 2017 WL
2289081, at *12-*13 (W.D. Wash. May 25, 2017) (“A
rational jury could find that [the Officer]'s decision to
shoot was not constitutionally justified, and that [the City]
ratified that unconstitutional decision by determining it was
lawful and within policy.”). On the other hand, other
courts have concluded that such an investigation and
conclusion will not constitute ratification on their own
absent evidence of “something more, ” such as a
“sham investigation” or “conduct so
outrageous that a reasonable administrator should have known
that he or she should do something about it.” See
Kanae v. Hodson, 294 F.Supp.2d 1179, 1191-92 (D. Haw.
noted in Kanae, the Ninth Circuit's leading
decision on ratification based on internal police
investigations appears to require “something
more” than merely a finding that the shooting was
justified. See Id. (citing Larez v. City of Los
Angeles, 946 F.2d 630 (9th Cir. 1991)). In
Larez, the Ninth Circuit found that the result of an
internal police investigation approving of an officer's
use of force could constitute ratification for the purposes
of Monell liability if the investigation was
premised on “flawed ...