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German v. Roberts

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

December 22, 2017

JOSE GERMAN, Plaintiff,
CHRIS ROBERTS, et al., Defendants.



         This 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.

         I. BACKGROUND

         This 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.[1] 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.


         Defendants 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).

         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 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.

         As 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 (2015).

         Under 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).

         As 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.

         Based 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).

         Such a 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 ...

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