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Thomas v. Cannon

United States District Court, W.D. Washington

January 30, 2018

FREDRICK and ANNALESA THOMAS; and JO-HANNA READ, as Guardian ad Litem of E.T., a minor, Plaintiffs,
v.
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 Co-Administrators of the Estate of Leonard Thomas, and its statutory beneficiaries, Plaintiffs,
v.
BRIAN MARKERT; MICHAEL WILEY; NATHAN VANCE; MICHAEL ZARO; SCOTT GREEN; JEFF RACKLEY; CITY OF FIFE; CITY OF LAKEWOOD; PIERCE COUNTY METRO SWAT TEAM; and JOHN DOES 1 through 10, Defendants.

          FINAL ORDER DENYING DEFENDANTS' POST-TRIAL MOTIONS

          Barbara Jacobs Rothstein, U.S. District Court Judge

         Table of Contents

         I. INTRODUCTION ..................................................................................................................... 3

         II. FACTUAL BACKGROUND .................................................................................................. 3

         A. Shooting of Leonard Thomas .............................................................................................. 3

         B. Jury Trial ............................................................................................................................. 7

         III. DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW .................... 8

         A. E.T.'s Unreasonable Seizure Claim (Verdict Question One) ............................................. 9

         B. Estate's Unreasonable Seizure Claim (Verdict Question One) ........................................ 10

         C. Estate's Excessive Force Claim Against Wiley (Verdict Question Two) ........................ 11

         D. Fourteenth Amendment Deprivation of Familial Relationship (Verdict Question Three) 14

         E. Unreasonable Search and Seizure: Explosive Breach (Verdict Question Four) ............... 17

         F. Unreasonable Seizure of the Dog (Verdict Question Five) .............................................. 20

         G. Fred's Fourth Amendment Seizure Claim (Verdict Question Six) ................................... 21

         H. State Law False Arrest (Verdict Question Seven) ............................................................ 23

         I. E.T. and Annalesa's Outrage Claims (Verdict Question Eight) ....................................... 24

         J. Negligent Child Abuse Investigation (Verdict Question Nine) ........................................ 26

         K. Punitive Damages (Verdict Question Eleven) .................................................................. 27

         IV. DEFENDANTS' MOTION FOR REMITTITUR ............................................................. 28

         A. Compensatory Damages ................................................................................................... 31

         1. Jury's Awards to E.T. . .................................................................................................. 31

         2. Jury's Awards to the Estate of Leonard Thomas. . ........................................................ 34

         3. Jury's Awards to Annalesa Thomas. . ........................................................................... 35

         4. Jury's Awards to Fredrick Thomas. . ............................................................................. 37

         B. Punitive Damages ............................................................................................................. 38

         V. DEFENDANTS' MOTION FOR QUALIFIED IMMUNITY ........................................... 43

         A. Waiver ............................................................................................................................... 44

         1. Markert, Wiley, Cannon ............................................................................................... 44

         2. Zaro ............................................................................................................................... 46

         B. Constitutional Violation .................................................................................................... 47

         C. Clearly Established Law ................................................................................................... 51

         1. Excessive force against Leonard. . ................................................................................. 52

         2. Explosive breach. . ......................................................................................................... 54

         3. Shooting of the dog. . ..................................................................................................... 56

         4. Unlawful arrest .............................................................................................................. 59

         VI. DEFENDANTS' MOTION FOR A NEW TRIAL ............................................................ 59

         A. Exclusion of Weapons ...................................................................................................... 60

         B. Duplicative Case Presentations ......................................................................................... 61

         C. Race-Based Arguments ..................................................................................................... 62

         D. Excluding Reference to the Josh Powell Incident ............................................................. 63

         E. Excluding the 3D Animations ........................................................................................... 66

         F. Discussion of Markert's Legal Representation ................................................................. 66

         G. Answering Jury's Question Regarding Cannon's Employment ....................................... 67

         H. Cumulative Error .............................................................................................................. 68

         I. Inconsistent Verdicts ......................................................................................................... 68

         J. Evidentiary Deficiencies ................................................................................................... 69

         VII. CONCLUSION ................................................................................................................... 69

         I. INTRODUCTION

         Defendants have brought four post-trial motions for the Court's review: a Motion for Judgment as a Matter of Law (ECF 282); a Motion for Remittitur (ECF 284); a Motion for Qualified Immunity (ECF 280); a Motion for New Trial (ECF 283). Having reviewed the parties' submissions, the relevant legal authority, and all other relevant material properly before the Court, the Court will DENY Defendants' Motions.

         II. FACTUAL BACKGROUND

         On the night of May 23, 2013, a confrontation with tragic results occurred between police from the Cities of Fife and Lakewood and Leonard Thomas at his home in Fife. The events that unfolded resulted in the lethal shooting of Thomas, who was unarmed, by a police sniper. Plaintiffs, which include Leonard's Estate as well as his parents and son, brought this civil rights action, which resulted in a substantial jury verdict in their favor. While the full scope of the evidence required a lengthy trial, the essential facts are summarized here.

         A. Shooting of Leonard Thomas

         Leonard Thomas lived with his four-year-old son, E.T, in a home in Fife owned by his parents, Fred and Annalesa Thomas. In the evening of May 23, 2013, Leonard called Annalesa, explained he was depressed over the death of a friend, and asked her to come take E.T. for the night. Annalesa agreed. She was concerned that Leonard, after a year of sobriety, had been drinking, and she was worried that Leonard would fall asleep and not be able to attend to E.T. that night. When Annalesa arrived sometime after 9:00 p.m., Leonard changed his mind and became upset as Annalesa prepared to leave with E.T. The argument between Leonard and Annalesa escalated when Annalesa slapped Leonard's face with an open hand. Annalesa called 911 at 10:18 p.m., and told the dispatcher that she needed the police. Leonard grabbed the phone from Annalesa, and told the dispatcher that his mother had hit him and that he needed help.

         Fife Police Officers responded to the Thomas house and contacted Leonard via cell phone. During their initial 24 minute conversation, Leonard told the Fife officer 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. Approximately an hour later, after Leonard continued to refuse to emerge from the house, the Fife police chief called for the Pierce County Metro SWAT Team to respond to the scene.

         The SWAT Team arrived at approximately 12:20 a.m. with two tank-like armored vehicles. The “AT” (“armored transport”) 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. The “Bearcat” was parked on the street in front of the house. Two snipers, including Defendant Brian Markert, took up positions in front of the house. Defendant Mike Wiley was Team Leader of the SWAT Team's tactical side, while Defendant Mike Zaro, the Assistant Chief of Police for Lakewood, oversaw field operations. Officer Wiley informed the SWAT Team that they were “responding to basically assault 4 DV [domestic violence]” due to Leonard's grab of Annalesa's wrist when he snatched the phone during the initial 911 call. Wiley told the Team, “Barricaded male suspect has his four year old son maybe pseudo hostage. The wife is outside. Made no threats towards the son.” As negotiations with Leonard proceeded through the night, Leonard repeated that he did not have any weapons, and warned officers not to use flash-bang grenades to enter the house. No. officer heard Leonard make any threats to harm himself, his child, or any officer. During the course of negotiations Leonard repeatedly asked the officers to stop harassing him and to leave him alone.

         At approximate 1:08 a.m., Fred Thomas (Leonard's father) arrived at the police staging area a few blocks from the house in response to a call from Annalesa. Fred explained to the officers that he needed to go to his house to speak to his son, but was told that the road was closed to traffic. Fred walked to the back of the property and climbed the six foot chain link fence surrounding the backyard. Officer Ryan Micenko, who was behind the house at the time, stopped Fred, ordered him to the ground, and placed him in handcuffs. Fred explained to the officers that he lived at the residence and that he was there to talk to his son. Defendant Jason Cannon, the entry team leader stationed at the back of the house, radioed Zaro to say, “We've got the property owner and the father of the suspect detained. Where would you like [him]?” Zaro asked, “Other than him generally inserting himself onto the scene, does any of his activity warrant him going to jail?” Cannon responded, “I guess that depends on how cooperative he is with you guys but you have at least obstructing on him if you want to.” Zaro said, “That's what I need, thanks.” Fred was then taken to jail where he was kept until the following morning, when he was released without being charged.

         As negotiations with Leonard continued unsuccessfully, officers internally discussed the possibility that if Leonard let E.T. go, they could simply leave for the night and come back to arrest Leonard another time. Zaro agreed with this approach, and asked Fife Police Chief Blackburn “if we get the son tonight, are you good with us leaving here?” 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.”

         Leonard initially resisted this proposal, but eventually responded, “Okay, we'll do that.” Zaro radioed his team, “If, uh, the suspect comes out with the child and you can separate the child, let dad go back in.” Leonard brought E.T., who had been sleeping, out to the front porch, but insisted that E.T. leave with Annalesa, not with the police officers. The officers refused this request, and the stalemate continued.

         Based on Leonard's continued demands to have Annalesa come up to the house, his continued refusal to release E.T. to the police, and the fact that he was now on the front porch with E.T., Chief Zaro radioed the entire SWAT Team, ordering them “Do not let him back in the house with that kid.” Despite this order, which was never communicated to Leonard, Leonard continued to go in and out of the house with E.T. While Annalesa was not allowed to go up to the house, officers escorted her to the Bearcat, where Leonard could see and hear her.

         At 2:00 a.m. a warrant was signed for the arrest of Leonard for domestic violence assault in the fourth degree, a misdemeanor. SWAT officers began working to set an explosive breaching charge on the back door of the house. At approximately 2:45 a.m., Leonard returned to the porch again with E.T., E.T.'s car seat, and an overnight bag. Leonard was in the doorway and E.T. was sitting on the steps of the porch when, with Wiley's encouragement, Zaro gave permission to breach the back door with the explosive charge. The explosion was designed to sever the hinges of the door and create a deafening bang that would overwhelm a subject's senses so that he freezes in place. Trial testimony also suggested that it was foreseeable that the charge would cause Leonard to reach for E.T. in fear. Indeed, that's what happened.

         When the breaching charge detonated, Leonard ran to E.T., picked him up, and started retreating into the residence. While Leonard was holding E.T., Markert fired his rifle, striking Leonard just above the belt line on the right side of his abdomen. Leonard fell backward into the house. Wiley and Defendant Officer Nathan Vance ran toward the house through the front yard, where they encountered Leonard's dog, Baxter. Vance shot the dog twice, and then Wiley fired additional shots, killing it.

         Officers entering through the rear door encountered Leonard sitting on the floor, dying, clutching E.T.'s back against his chest. As the officers struggled to pry E.T. from Leonard's arms, one officer started punching Leonard in the face. Another officer recalled Leonard's last words, “Don't hurt my boy.” Later that morning, two detectives and a chaplain arrived at the jail where Fred was being held to inform him that his son was dead.

         B. Jury Trial

         The jury trial commenced on June 21, 2017 and lasted twelve days. After five days of deliberation, and the jury returned its verdict on July 14, 2017. The jury found Fourth and Fourteenth Amendment violations were committed by Defendants Zaro, Wiley, Markert, and the City of Lakewood due to the excessive force used against Leonard and the unreasonable method of seizing E.T. The jury further found that Zaro and Lakewood violated the Fourteenth Amendment rights of E.T., Fred, and Annalesa by illegally depriving them of their familial relationship with Leonard.

         The jury found Zaro, Wiley, and the City of Lakewood liable for Fourth Amendment violations related to the use of the explosive breach. The jury found Wiley, but not Vance, liable for Fourth Amendment violations related to the shooting of Leonard's dog. The jury found Zaro and Cannon, but not Micenko, liable for Fourth Amendment violations related to the arrest of Fred. And the jury found the City of Lakewood liable under state law claims for the false arrest of Fred, the outrage suffered by Annalesa and E.T., and the negligence in the investigation that separated E.T. from his father. The City of Fife was also found liable for the negligent investigation, but was found not liable for the false arrest of Fred. The jury awarded a total of $8, 635, 000 in compensatory damages. The jury also awarded a total of $6, 500, 000 in punitive damages against Zaro, Wiley, and Markert. Defendants subsequently filed four post-trial motions, which the Court will now address.

         III. DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW

         Federal Rule of Civil Procedure 50 provides that the Court may direct the entry of judgment as a matter of law where “the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” A directed verdict must be entered where “there is no substantial evidence to support the claim.” Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 677 (9th Cir. 1975) (quoting Cleary v. Nat'l Distillers & Chem. Corp., 505 F.2d 695, 696 (9th Cir. 1974)). A court may only grant a Rule 50(b) motion “if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict.” Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014) (internal punctuation omitted). The court “must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court “must disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. at 151. The court may only give credence to evidence favoring the moving party if that evidence is “uncontradicted, ” “unimpeached, ” and “comes from disinterested witnesses.” Id. The Ninth Circuit has noted that some of the prudential reluctance to grant summary judgment - a complete deprivation of a trial - may be relaxed in this context because the parties have had their day in court. See Santa Clara Valley Distrib. Co. Inc. v. Pabst Brewing Co., 556 F.2d 942, 944 n.1 (9th Cir. 1977). Like summary judgment, however, the mere existence of some alleged factual dispute between the parties or a “scintilla of evidence” will not defeat a properly supported motion for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 251 (1986); Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 593 (1986).

         Defendants argue they are entitled to judgment as a matter of law on ten of Plaintiffs' claims. The Court will address each in turn.

         A. E.T.'s Unreasonable Seizure Claim (Verdict Question One)

         Question One of the verdict form read:

Plaintiffs E.T. and the Estate of Leonard Thomas bring a Fourth and Fourteenth Amendment constitutional claim for the unreasonable seizure of E.T. from Leonard Thomas. Did any of the Defendants seize E.T. from his father Leonard Thomas in an unreasonable manner, or cause E.T. to be unreasonably seized?

(ECF 237 at 2.)

         The jury found Defendants Zaro, Wiley, Markert, and the City of Lakewood liable to E.T. and Leonard's Estate on this claim. (Id.) Defendants argue that this verdict was improper because E.T. could not bring a Fourteenth Amendment claim for his seizure and the Estate could not bring a Fourth Amendment claim for E.T.'s seizure. This objection misreads the verdict form. The Fourth Amendment claim was brought by E.T. and the Fourteenth Amendment claim was brought by the Estate. Those claims were combined in this question because they concern the same injury - the seizure of E.T. - and they turn on the same legal test - whether a reasonable person in the position of Leonard Thomas would have felt free to leave the scene with E.T. or to withhold consent to the officers taking E.T., and whether the scope of the intrusion used to seize E.T. was reasonably necessary to alleviate the threat posed to him. (See ECF 220 at 20; see also Jones v. Cty. of Los Angeles, 802 F.3d 990, 1000 (9th Cir. 2015) (“While the constitutional source of the parent's and the child's rights differ, the tests under the Fourteenth Amendment and the Fourth Amendment for when a child may be seized without a warrant are the same.”).) Thus, the verdict form was correct and there was no likelihood that the jury mistakenly applied an incorrect standard for the claims brought by E.T. and the Estate for E.T.'s seizure.

         Defendants further argue that Markert should not have been found liable because the Fourth Amendment does not apply to officers who make “every effort to deliver [hostages] from unlawful abduction.” (See ECF 282 at 24 (quoting Childress v. City of Arapaho, 210 F.3d 1154, 1157 (10th Cir. 2000).) But E.T. was not a hostage, and Markert and the other officers here were not attempting to separate him from a kidnapper. Rather, they were attempting to remove a child from his parent without the parent's consent. In such a situation, “[t]he Constitution requires an official separating a child from its parents to obtain a court order unless the official has reasonable cause to believe the child is in ‘imminent danger of serious bodily injury.'” Jones, 802 F.3d at 1000. Here the officers did not have a warrant to remove E.T. and the jury reasonably determined that E.T. was not in imminent danger at the time Markert shot Leonard. Further, the jury was not unreasonable in determining that shooting Leonard was an unreasonable way to remove E.T. from his father. Because this removal-by-shooting was precipitated by actions taken and orders given by Wiley and Zaro, the jury reasonably found them liable on this claim as well. Defendants acknowledge that a liability finding against Zaro also supports liability against the City of Lakewood. (ECF 282 at 25.)

         B. Estate's Unreasonable Seizure Claim (Verdict Question One)

         Defendants repeat their misreading of the verdict form and argue that the Estate cannot bring a Fourth Amendment claim for the seizure of E.T. As explained supra - and as apparent from the verdict from - the Estate's claim on this question is pursuant to the Fourteenth Amendment. Defendants further object that the Estate's Fourteenth Amendment claim was dismissed on summary judgment. In its summary judgment order, the Court said the Estate had abandoned its claim for deprivation of Leonard's familial relationship with E.T. (ECF 128 at 20 n.4.) The standard for the Fourteenth Amendment familial deprivation claim - whether excessive force shocked the conscience - is different from the standard for Fourteenth Amendment seizure of a child - whether the child was removed without reasonable cause. The Estate's familial deprivation claim did not go to the jury, pursuant to the summary judgment order, but the unreasonable seizure claim survived, and the jury's decision on that claim was supported by evidence presented at trial.

         C. Estate's Excessive Force Claim Against Wiley (Verdict Question Two) Question Two of the verdict form read:

Plaintiff the Estate of Leonard Thomas brings a Fourth Amendment constitutional claim for excessive force. Did any of the Defendants use excessive force against Leonard Thomas, or cause excessive force to be used against him?

(ECF 237 at 3.)

         The jury found Defendants Zaro, Wiley, Markert, and the City of Lakewood liable on this claim. (ECF 237 at 3.) Defendants argue that Wiley is entitled to judgment as a matter of law on this claim because he did not order or engage in any use of force. According to Defendants, the jury wrongfully held Wiley liable for the shooting of Leonard based on Wiley's role in the explosive breach, under the theory that the explosive breach provoked the shooting. Defendants argue that this liability finding was necessarily based on a “provocation theory” that was rejected by the Supreme Court in Cty. of Los Angeles v. Mendez, 137 S.Ct. 1539 (2017).

         In Mendez, police officers entered a shack on residential property without a search warrant. 137 S.Ct. at 1545. Mendez, who had been sleeping in the shack, responded by picking up a BB gun, which prompted the officers to immediately open fire on him. Id. at 1544-45. The district court determined that the officers' use of force was reasonable due to Mendez's possession of the gun, but, applying the Ninth Circuit's “provocation rule, ” nonetheless found the officers liable for excessive force because the illegal warrantless entry provoked the shooting. Id. at 1545. The Supreme Court reversed, explaining that once a use of force was judged to be reasonable, it cannot be recharacterized as excessive force due to a separate constitutional violation (such as warrantless entry, or in this case, the explosive breach). Id. at 1547. The Court recognized that the provocation rule would only “come[] into play after a forceful seizure has been judged to be reasonable.” Id. at 146. The Court went on to hold that the rule is improper because “[w]hen an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.” Id. at 1547.

         Thus, Mendez is not analogous to the situation present in this case. Plaintiffs did not argue that Defendants' reasonable use of force should be punished because of some distinct constitutional violation. Rather, they argued that the force exercised by Defendants was unreasonable at every stage. It was unreasonable for Zaro to order his team, including snipers, not to let Leonard back into his house with E.T. when there was no threat of harm to anybody. It was unreasonable for Wiley to cause an explosive breach that foreseeably led Leonard to panic and retreat with E.T. into the cover of his home while Zaro's order remained outstanding. And it was independently unreasonable for Markert to respond to the chaos Wiley created by firing a lethal shot at Leonard. Each of these Defendants proximately caused Leonard's death through unreasonable conduct.

         Next, Defendants cite Medrano v. City of Los Angeles, 973 F.2d 1499 (9th Cir. 1992), for the principle that “[w]ithout some evidence that the on-scene supervisors authorized use of excessive force, the decision to enter the [residence] cannot reasonably support a judgment in favor of the [Plaintiffs]” for an excessive force claim against the supervisors. 973 F.2d at 1504. Medrano concerned the death of Ruben Medrano, who had left a suicide note, locked himself in his bathroom with a loaded .357 magnum revolver, injected himself with a lethal dosage of heroin, and threatened to kill anyone who tried to enter the bathroom to prevent his suicide. Id. at 1501. Police officers negotiated with Medrano to come out of the bathroom, without success. Id. Once the officers could hear Medrano snoring, they determined that he was in a drug-induced state of unconsciousness and decided to enter the bathroom. Id. Two officers entered the bathroom and, according to their testimony, shot Medrano to death after Medrano awoke and fired his own gun. Id. at 1501-02. Medrano's family brought suit for excessive force, but the district court either dismissed or directed verdicts in favor of all the defendants except for the two officers who shot Medrano. Id. at 1502. On review, the Ninth Circuit held that directed verdicts in favor of the on-scene supervisors and team leaders was appropriate because the decision to enter the bathroom was reasonable. Id. at 1504. Defendants argue Wiley was entitled to judgment because, like the supervisors in Medrano, his entry order was not unreasonable.

         However, the facts of this case are easily distinguishable from Medrano. In Medrano, the supervising officers merely authorized entry into a bathroom where the suspect was believed to be unconscious, negotiations had failed, and the suspect was likely to die if he was not provided immediate medical attention for a drug overdose. Here, in contrast, Wiley was responsible for a deafening explosive breach while negotiations were still ongoing and after Zaro had instructed snipers not to allow Thomas to return inside his house with E.T., despite the fact that the breach could foreseeably cause Thomas to do exactly that. (See ECF 270 at 212.) These two entry orders are not comparable. Instead of reasonably attempting to mitigate the likelihood of death as in Medrano, Wiley's actions exacerbated that risk.

         D. Fourteenth Amendment Deprivation of Familial Relationship (Verdict Question Three)

         Question Three of the verdict form read:

Plaintiffs E.T., Fred Thomas, and Annalesa Thomas bring a Fourteenth Amendment claim for deprivation of their familial relationship with Leonard Thomas. Did Michael Zaro cause E.T., Fred Thomas, or Annalesa Thomas to be deprived of their familial relationship with Leonard Thomas by acting with deliberate indifference to the consequences of his (Zaro's) actions and decisions?

(ECF 237 at 4.)

         The jury found Zaro and Lakewood liable to E.T., Fred, and Annalesa on this claim. (ECF 237 at 4.) Parents and children may assert Fourteenth Amendment claims if they are deprived of their liberty interest in the companionship and society of their child or parent through official conduct. See Lemire v. Cal. Dept. of Corr. & Rehab., 726 F.3d 1062, 1075 (9th Cir. 2013) (parents and children); Smith v. City of Fontana, 818 F.2d at 1418-19; Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (parent); Crumpton v. Gates, 947 F.2d 1418, 1421-24 (9th Cir. 1991) (child). However, “the Due Process Clause is violated by executive action only when it can be properly characterized as arbitrary, or conscience shocking, in a constitutional sense.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-47 (1998). The cognizable level of abuse of power is that which “shocks the conscience” or “violates the decencies of civilized conduct.” Id. at 846. Mere negligence or liability grounded in tort does not meet the standard for substantive due process liability. Id. at 849.

         In determining whether an action “shocks the conscience, ” the court must first ask “whether the circumstances are such that ‘actual deliberation [by the officer] is practical.'” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (quoting Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 372 (9th Cir. 1998) (internal quotation marks omitted)). “Where actual deliberation is practical, then an officer's ‘deliberate indifference' may suffice to shock the conscience. On the other hand, where a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may be found to shock the conscience only if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.” Hayes v. Cty. of San Diego, 736 F.3d 1223, 1230 (9th Cir. 2013) (citing Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)); see also Porter v. Osborn, 546 F.3d 1131, 1137-40 (9th Cir. 2008).

         Zaro argues the “purpose to harm” standard should apply because he testified that he was operating in a time-pressured environment when he ordered officers to keep Leonard from taking E.T. back inside the house and when he issued the order to breach the door. However, these orders were made after several hours of negotiations and after Leonard had brought E.T. out to the porch with a car seat and overnight bag with the intent that E.T. be turned over to Annalesa. The jury could reasonably have determined that E.T. was at no risk of imminent harm when Zaro gave his orders, and that the situation was not “escalat[ing] so quickly that the officer must make a snap judgment.” See Porter, 546 F.3d at 1137 (9th Cir. 2008). Indeed, Defendants conceded in their summary judgment motion that “Chief Zaro's decision to breach the door and enter the home was admittedly made after actual deliberation, and the ‘deliberate indifference' standard therefore applies.” (ECF 57 at 49.)

         “Deliberate indifference occurs when ‘the official acted or failed to act despite his knowledge of a substantial risk of serious harm.'” Solis v. Cty. of Los Angeles, 514 F.3d 946, 957 (9th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S. 825, 841 (1994)). Accordingly, the jury was instructed to find for Plaintiffs if actual deliberation was practical and Zaro exhibited conscious or reckless disregard for the consequence of his actions. (See ECF 220 at 25.) The jury heard testimony that it was foreseeable that Leonard would react to the loud, unexpected explosion of the breach by reaching for his child. (See ECF 270 at 212.) Because Zaro had instructed his team, including snipers, not to let Leonard back into the house with E.T., it was also foreseeable that should Leonard respond to the explosion by grabbing E.T. and retreating to the cover of his house, he would be shot and killed despite posing no threat of harm. The jury reasonably concluded that Zaro recklessly disregarded these consequences, and that disregarding the consequences that an unarmed man might be shot and killed shocks the conscience.

         A jury finding that Zaro's order not to let Leonard return inside his house with E.T. was deliberately indifferent to the likely consequence that Leonard would be shot and killed for doing so is sufficient to support liability on this claim, without reference to Zaro's order to breach the back door. But even if the Court agreed with Defendants that the sole support for this claim rests on the argument that Zaro's order to breach the back door provoked the shooting, a directed verdict for Defendants still would not be appropriate. Defendants contend that such a finding would necessarily be based on a “provocation theory” that was rejected by the Supreme Court in Cty. of Los Angeles v. Mendez, 137 S.Ct. 1539 (2017). This contention is mistaken, as explained above. Unlike in Mendez, where the Supreme Court said a reasonable use of force could not be deemed unconstitutional due to another distinct constitutional violation, here the jury found that Defendants' use of force - including Zaro's authorization of that force - was itself unreasonable, and was unconstitutional as such. There is no reason to believe the jury applied a “provocation rule” that they were never instructed on and that did not fit the facts or arguments presented to them at trial.

         Because liability was properly found against Zaro, the jury's verdict on this claim against Zaro's employer, the City of Lakewood, was appropriate as well.

         E. Unreasonable Search and Seizure: Explosive Breach (Verdict Question Four)

         Question Four of the verdict form read:

Plaintiffs the Estate of Leonard Thomas, E.T., Fred Thomas, and Annalesa Thomas bring a Fourth Amendment constitutional claim for unreasonable seizure of their house through use of the explosive breach. Did any of the Defendants seize Plaintiffs' property through use of the explosive breach in an unreasonable manner, or cause their property to be unreasonably seized?

(ECF 237 at 5.)

         The jury found Zaro, Wiley, and the City of Lakewood liable to E.T., Annalesa, Fred, and Leonard's Estate, and awarded $125, 000 to E.T., $500, 000 to Annalesa, $125, 000 to Fred, and $125, 000 to the Estate for this claim. Defendants argue that this award was improperly inflated because “[c]learly, the jury was awarding damages for the shooting of Leonard Thomas that occurred after the breach.” (ECF 282 at 13.) Defendants maintain this was impermissible (once more) because the jury improperly relied on the Ninth Circuit's “provocation theory, ” and because these Plaintiffs were already compensated for the shooting of Leonard under other claims.

         The Court disagrees. As discussed above, the Supreme Court held that reasonable use of force may not be deemed unreasonable due to a separate constitutional violation, such as warrantless entry. See Cty. of Los Angeles v. Mendez, 137 S.Ct. 1539 (2017). Here, in contrast, the officers did have a valid warrant, but the jury found that the officers' entry was not executed in a reasonable manner. Even when a warrant is validly issued, the warrant may be “unreasonably executed.” See Dalia v. United States, 441 U.S. 238, 258 (1979). Given the state of negotiations with Leonard - he was on the front porch with E.T., a car seat, and an overnight bag, requesting Annalesa come to escort E.T. (see ECF 264 at 185) - the jury found that the use of an explosive charge was inherently dangerous and unreasonably destructive. That finding was supported by the evidence.

         Because the jury found in favor of Plaintiffs on several of their claims, the verdict form provided space for the jury to award damages under Question Ten. (ECF 237 at 11.) For each Plaintiff, the verdict form listed each claim brought by that Plaintiff and a line for the jury to assign damages for that claim. Thus, for example, Question 10a, as completed by the jury, read as follows:

         10a. E.T.: For the claims you found in favor of E.T., what damages do you find for E.T. for each claim:

• Unreaonable seizure from his father (Question 1): $500, 000
• Deprivation of his familial relationship with Leonard (Question ...

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