United States District Court, W.D. Washington, Tacoma
ORDER DECLINING REPORT AND RECOMMENDATION AND
GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
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. 79), and
Plaintiff's objections to the R&R (Dkt. 80). For the
reasons stated below the Court declines to adopt the R&R
and grants Defendants' motion for summary judgment as it
pertains to Plaintiff's municipal liability claim.
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. 79 at 1-3. On November
14, 2017, Judge Christel issued the R&R, denying
Plaintiff's motion for summary judgment. Dkt. 79. On
November 28, 2017, Defendants objected. Dkt. 80. On December
13, 2017, Plaintiff responded to the objection. Dkt. 83.
object to the R&R and argue that the City is entitled to
summary judgment on Plaintiff's claim under Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S.
658 (1978). The 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).
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
such a theory of ratification. Specifically, 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 Officer Roberts's conduct
under the unconstitutional factual account of 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 a
Plaintiff adequately supports a theory of Monell
ratification on summary judgment whenever an internal police
investigation concludes that a shooting by its officers was
lawful and within the municipality's policies. For
instance, another judge in our district has recently found
that such circumstances necessarily 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 for the purposes of Monell
absent evidence of “something more, ” such as a
“sham investigation” or “conduct [by the
officer] 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. 2003).
noted in Kanae, the Ninth Circuit's leading
decision on ratification in the context of 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 procedures” under which,
“at least in the absence of independent, third-party
witnesses, [officers] could get away with anything.”
946 F.2d at 647.
on the analysis outlined in Larez, the Court agrees
with Defendants that, when establishing Monell
liability under a ratification theory, a plaintiff must
present more than just a police investigation that concludes
an officer applied reasonable force. A plaintiff must also
point to some set of facts to suggest that the
investigation's findings reflect a policy or custom that
encourages or condones the alleged underlying constitutional
deprivation. As subsequently noted by the Ninth Circuit in
Watkins v. City of Oakland, Cal., 145 F.3d
1087 (9th Cir. 1998), the Larez decision was based
on a set of facts where a jury could find that “that
the police chief was responsible for the
constitutional deprivations because he condoned,
ratified, and encouraged the excessive use of force.”
Id. at 1093 (emphasis added). Implicit in this
explanation is the understanding that the police chief's
conduct actually contributed to the plaintiff's
constitutional deprivation. Accordingly, it appears that the
ratification theory for Monell liability is not
premised on the ratification itself creating liability after
the fact of injury; but rather, it seems that ratification is
merely a method of proving a preexisting government
“policy, custom, or practice” that proximately
causes a plaintiff's constitutional deprivation. As
stated by the Ninth Circuit:
The ratification doctrine, asserted as a basis for municipal
liability, originated in St. Louis v. Praprotnik,
485 U.S. 112 (1988). There, a plurality of the Supreme Court
stated that “[i]f the authorized policymakers approve a
subordinate's decision and the basis for it, their
ratification would be chargeable to the municipality because
their decision is final.” Id. at 127. But the
sentence from Praprotnik must be read in context.
The Court held in Praprotnik that to establish
municipal liability, a plaintiff must “prove [ ] the
existence of an unconstitutional municipal policy.”
Id. at 128. A single decision by a municipal
policymaker “may be sufficient to trigger section 1983
liability under Monell, even though the decision is
not intended to govern future situations, ”
Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir.
1992) (citing Pembaur v. City of Cincinnati, 475
U.S. 469, 480-81 (1986)), but the plaintiff must
show that the triggering decision was the product of a
“conscious, affirmative choice” to ratify the
conduct in question.
Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir.
2003), overruled on other grounds by 543 U.S. 194
(2004) (emphasis added).
formulation of the ratification theory is in keeping with the
fundamental principle that Monell liability attaches
“when implementation of . . . official policies or
established customs inflicts the constitutional
injury.” Monell, 436 U.S. at 708 (emphasis
added). To conclude otherwise would undermine the Supreme
Court's instruction “that a municipality can be
liable under § 1983 only where its policies are the
‘moving force [behind] the ...