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Petersen v. Gillaspie

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

August 23, 2017

JODY PETERSEN, Plaintiff,
v.
BRAD GILLASPIE, Defendants.

          ORDER ON SUMMARY JUDGMENT MOTION DKT. #35

          RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendants' Motion for Summary Judgment [Dkt. #35]. This case arises from a small-town marital dispute between Plaintiff Jody Petersen and her then-husband, Steve. They lived together in Woodland, Washington with their two small children. One night, they argued about Steve seeing another woman, and Petersen threw his clothing on their lawn. Their argument became public when Steve recounted it to his friend, Woodland police officer Defendant Brad Gillaspie. When Petersen, a police officer in nearby North Plains, Oregon, sought a divorce and a protective order against Steve, Gillaspie decided to “jerk her chain” by reporting her conduct to her superior officer, and ultimately, to his own.

         The Woodland Police Department commenced an investigation into Petersen (but not, she claims, into her husband), conducted by Gillaspie's friend and fellow officer, Defendant Brent Murray. Petersen was suspended during the investigation, though no charges were ultimately filed against her. Nevertheless, due to public scrutiny of the case in both towns, Petersen resigned from the North Plains Police Department.

         She sues Gillaspie, Murray, Woodland, and its mayor, Grover Laseke. The gist of her claim is that Gillaspie abused his position as a police officer to harass, intimidate, investigate and humiliate her, either to punish her for seeking a divorce from his friend, or to convince her not to do so. She claims Gillaspie and his allies violated a variety of her constitutional rights, including freedom of association, right to petition for redress, and equal protection. She also claims that Woodland knows about and condones Gillaspie's long history of discriminating against women, supporting her Monell claim against it.

         Gillaspie and Murray seek summary judgment on all of Petersen's claims, arguing they did not violate her constitutional rights and that, even if they did, they are entitled to qualified immunity. Woodland and Laseke also seek summary judgment, arguing that in the absence of a constitutional violation, Petersen's Monell claim must be dismissed.

         I. DISCUSSION

         A. Factual Background.

         Petersen and Steve tried to save their marriage for three years, to no avail. They were essentially separated at the time of their dispute, though they still lived together. On September 10, 2014, Petersen's son told her he saw Steve “make-out” with another woman in their kitchen. Petersen called Steve, who was out drinking with friends, and yelled at him over the phone. She threw his clothes in their yard and allegedly bleached his work uniform. She texted him that he was a cheater and that his clothes were buried in their yard.

         Steve told Gillaspie about the incident that night. Gillaspie encouraged him to report Petersen to the police “if he felt threatened.” He did not do so. Two weeks later, Petersen filed for divorce. That night, she returned home to find her children (5 and 6) unattended. She discovered Steve had left them alone to consume alcohol with friends. Petersen called the WPD to report the abandonment. Defendant Officer Murray responded to the call. He claims he called Steve's phone and went to Steve's friends-the neighbor's house-but could not locate Steve.

         The next day, Petersen petitioned the Superior Court of Washington County of Cowlitz for a protective order preventing Steve from contacting her or their children, citing Steve's alcohol abuse, philandering, and child abandonment. Petersen found Steve and Gillaspie in her driveway when she returned home. She got out of her car and Steve left, but Gillaspie lingered. He warned her: “You need to work this shit out, Jody. I know all the judges. You will lose everything. Your house. Your kids. Stop being so vindictive and make this shit work.”

         The Court granted Petersen's TPO, giving her primary custody of her children and sole access to their house until October 9, 2014. Steve moved in with Gillaspie. Gillaspie continued to urge Steve to report Petersen's damaging his clothes to the police. Steve feared she would be fired, which might increase his alimony payments. But Gillaspie persisted: “She needs to go to jail, ” and that Steve needed to “step up to bat.” Gillaspie explained that, if she was arrested, “[i]t would be hard for her to justify going after you for more money.” Steve still did not report the incident.

         Petersen claims Gillaspie began stalking her, parking his police car outside her home and knocking on her door. His vehicle's GPS confirms he lingered for hours outside her home, and Gillaspie does not deny it. Indeed, when a guardian ad litem was eventually appointed to investigate Petersen's and Steve's competency as parents, she interviewed Gillaspie, who admitted to watching Petersen's house and knocking on her door to “check in on her.” He claimed if she was not home she was probably out “cattin' around.” He did this often enough that neighbors complained to other officers about his presence.

         On October 7, Petersen reported a theft at her house to the WPD. She claimed Steve had violated the TPO by entering their house and taking her lawnmower and computer and rearranging pictures on a wall. Steve stored the taken items at his friend's house. WPD officer Casey investigated but determined the incident to be a civil matter related to the couple's divorce.

         The same day, Gillaspie and Murray discussed Petersen's calls to the WPD. Gillaspie told Murray he knew about the Petersens' marital problems, because they had been ongoing for years, and shared his belief that they were the impetus behind Petersen's calls. Murray told Gillaspie he had responded to Petersen's call about Steve abandoning his children. Murray and Gillaspie agreed the Petersen's issues were civil, not criminal, in nature, and wondered together whether Petersen had falsely reported the child abandonment and theft. Gillaspie told Murray about the incident with Steve's uniform (and other clothing), and they discussed whether it amounted to domestic violence. Murray told Gillaspie to check the WPD's officer-involved domestic violence policy. Gillaspie reviewed the OIDV policy and decided the incident did constitute domestic violence and that it required him to report Petersen to both her Oregon commanding officer and to his own WPD commanding officer.

         The next morning, a month after Petersen had thrown Steve's clothes in their yard, Gillaspie called Steve to tell him he “had” to report the incident to commanding officers from both police departments and that he was “sorry” because he knew Steve had disclosed the information to him as a friend. Gillaspie called North Plains Chief Snyder, and repeated what Steve had told him about the incident. He also reported that Petersen had told him the damage to Steve's uniform was an accident. Gillaspie told Snyder he did not believe her. Snyder claims Gillaspie also told him he “did not approve” of the TPO because Steve was now “homeless.” According to Snyder, Gillaspie asked him to advise Petersen not to “do something to screw herself and to knock the crap off” and to “jerk her chain.”

         Snyder immediately called WPD Interim Police Chief Mahoney. Mahoney reviewed the WPD OIDV policy. He, too, decided the policy required the WPD to investigate the (secondhand) allegations made against Petersen, an Oregon police officer. Mahoney assigned Murray to investigate the incident, ostensibly because Murray did not know her, or Steve, and despite the fact that he was Gillaspie's friend, had already been discussing the Petersens' dispute with him, and had responded to one of the calls Petersen had made complaining about Steve. Mahoney was confident that Murray could “conduct a thorough, fair, and impartial investigation.”

         Mahoney was aware of the potential for a conflict of interest because of Gillaspie's relationship with the Petersens. He ordered Gillaspie to cease all contact with them. Gillaspie ignored this order and talked to Steve on the phone twice. Their first call lasted one minute, but the second lasted thirty-three. Gillaspie claims he called Steve only to inform him they could not associate while the investigation was ongoing and that he did not disclose any information about the case. Mahoney apparently decided Gillaspie's communications with Steve had not interfered with, or influenced, Murray's investigation, and there is no indication Gillaspie was disciplined for disobeying orders. Nor is there any indication of what, if anything, Mahoney did about Gillaspie's “checking up on” Petersen and lingering for hours outside her home in his patrol car.

         Snyder placed Petersen on paid administrative leave pending the investigation into whether she had abused Steve. The local paper, The Oregonian, published an article about Petersen's suspension and the investigation (though it did not describe Petersen's underlying marital dispute).

         At some point-the record is oddly unclear on the timing-both Murray and Gillaspie served as personal references for Steve during the GAL proceedings, which is somewhat at odds with Mahoney's claim that Murray was assigned to investigate because he did not know either Petersen. Gillaspie told the GAL that during the investigation, Petersen “lied her ass off, ” and that he felt “she has no business being a cop with that level of dishonestly.” He called her “psychotic” and alluded to her having affairs. He also touted Steve's parenting abilities, telling the GAL “that poor guy did nothing but work hard and take care of those kids. He's an excellent father.” When prodded, Gillaspie admitted to the GAL that Steve's affairs provoked Petersen. The record is unclear about what Murray told the GAL.

         In any event, Murray's investigation involved interviewing Petersen, Steve, and other witnesses, and a review of limited evidence.[1] Petersen claims Murray investigated only the incident that Steve reported to Gillaspie, but he and the WPD failed to investigate her reports that Steve neglected their children, stole her personal belongings, and violated the TPO by entering their house. (Steve ultimately admitted that he took Petersen's personal belongings and stored them at the neighbor's “in order to upset her.”)

         Ultimately, Murray recommended Woodland City Attorney Fred Johnson charge Petersen with malicious mischief and third degree-domestic violence and telephone harassment. Johnson was not convinced that the witnesses were credible and doubted whether he had sufficient evidence to secure a conviction. He decided not to charge Petersen. But he did talk to the paper about his decision, and The Oregonian published another article about the case. It had requested the police report and published the details of the underlying incident that had led to the investigation.

         Snyder did not discipline Petersen, but Petersen claims the articles tarnished her image and reputation as a police officer to such an extent that she could no longer perform her duties. Petersen and Snyder agreed she should resign from the NPPD, and she did. The Petersens' divorce became final in May 2017.

         Petersen sued Murray, Gillaspie, Mayor Laseke, and the City of Woodland. She claims Murray and Gillaspie violated her constitutional rights to associate and to petition the government for redress of grievances by interfering (as police officers) with her employment, divorce, and child custody proceedings. She argues Gillaspie and Murray violated her equal protection right by initiating and conducting the investigation only into her-discriminating against her for being a woman-and not also into Steve. She claims Gillaspie and Murray maliciously prosecuted her by initiating and conducting an investigation without probable cause with an intent to discredit her in the divorce and GAL proceedings, to punish her for filing for divorce, or to persuade her not to follow through with it. Petersen also asserts a Monell claim against Laseke and the City. She claims they knew of, allowed, and sanctioned Gillaspie's unconstitutional abuses of power for years.

         Gillaspie and Murray argue they did not violate Petersen's constitutional rights and that, even if they did, they are entitled to qualified immunity. Gillaspie claims primarily that he was a “mandatory reporter” under the Woodland OIDV policy, and that if he had not reported what Steve had told him, he could have lost his job. Murray claims he did not violate any of Petersen's rights because he was ordered to investigate her and did so in accordance with WPD policy. Laseke and the City of Woodland argue that in the absence of a constitutional violation, Petersen's Monell claim must be dismissed.

         B. Legal Standards.

         1. Summary Judgment.

         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Anderson Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); see also Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. See Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. The moving party bears the initial burden of showing there is no evidence that supports an element essential to the nonmovant's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show there is a genuine issue for trial. See Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323-24.

         2. Qualified Immunity.

         Qualified immunity “shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The Supreme Court has endorsed a two-part test to resolve claims of qualified immunity: a court must decide (1) whether the facts that a plaintiff has alleged “make out a violation of a constitutional right, ” and (2) whether the “right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Pearson v. Callahan, 553 U.S. 223, 232 (2009).[2] Qualified immunity protects officers not just from liability, but from suit: “it is effectively lost if a case is erroneously permitted to go to trial, ” and thus, the claim should be resolved “at the earliest possible stage in litigation.” Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987). The purpose of qualified immunity is “to recognize that holding officials liable for reasonable mistakes might unnecessarily paralyze their ability to make difficult decisions in challenging situations, thus disrupting the effective performance of their public duties.” Mueller v. Auker, 576 F.3d 979, 993 (9th Cir. 2009). Because “it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause [to arrest] is present, ” qualified immunity protects officials “who act in ways they reasonably believe to be lawful.” Garcia v. County of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011) (quoting Anderson, 483 U.S. at 631). Qualified immunity “gives ample room for mistaken judgments” and protects “all but the plainly incompetent.” Hunter v. Bryant, 502 U.S. 224 (1991).

         C. § 1983 Claims.

         To establish a § 1983 claim, Petersen must show: (1) she suffered a violation of her rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under the color of state law. See Parratt v. Taylor, 451 U.S. 527, 535 (1981); see also Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Gillaspie and Murray do not deny they acted as police officers, and were state actors.

         1. Right of Association.

         i. Gillaspie.

         Petersen claims Gillaspie violated her First Amendment right[3] to associate (or, more specifically to not associate) with Steve by threatening her, stalking her, and initiating an investigation, all to interfere with her divorce. Gillaspie argues that because he was required to report Petersen's allegedly damaging Steve's uniform, he cannot be held liable for any incidental interference his report may have had on her rights. He claims he acted in furtherance of a legitimate government interest, and his actions were not arbitrary or conscious-shocking, in any event.

         The Court reviews the viability of a constitutional right to intimate association with a three-part inquiry: (1) whether the interest or right is fundamental; (2) whether the government has interfered directly and substantially with that right; and (3) whether the government has a reasonable justification in the service of a legitimate governmental objective, or whether it is instead “arbitrary or conscience-shocking in a constitutional sense.” See Christensen v. City of Boone IL., 483 F.3d 454 (7th Cir. 2007) (citing Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978)). An action is “conscience-shocking” when it is taken with an intent to injure and no government interest justifies it. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998).

         First, the right to associate-or to not associate-with one's husband is a fundamental right, and Defendants do not contend otherwise. See Zablocki, 434 U.S. at 383-386 (marriage is a protected fundamental interest); see also Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984) (The freedom to associate plainly presupposes a right not to associate.).

         Second, Petersen claims Gillaspie, as a state actor, directly and substantially interfered with her right to disassociate from Steve. She claims Gillaspie stalked her on police time, threatened her, lied about her, and, when his efforts were unsuccessful, ultimately initiated an investigation into her-with the admitted purpose of interfering with her divorce and child custody proceedings.

         Gillaspie denies that he substantially interfered with Petersen's Fourteenth Amendment right. He focusses on what he did not do: he did not “restrict, restrain, seize, arrest detain, imprison or otherwise prohibit her association” with Steve. He denies his conduct “shocked the conscience” and that it was arbitrary in a constitutional sense. And, he argues, even if it was, it still did not interfere with Petersen's right to form intimate relationships: she and Steve had been separated for a year and their “intimate” association was irretrievably broken at the time of the investigation. (If their relationship was “irretrievably broken, ” then this argument calls into question the truthfulness of Gillaspie's assertions that he wanted the Petersens to reconcile their marriage, and ...


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