United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANTS' MOTION FOR SUMMARY
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and Local Rule MJR 13, the parties have consented to have
this matter heard by the undersigned Magistrate Judge. Dkt.
9. Currently before the Court is Defendants City of Tacoma,
Jimmy Welsh, and Patrick Patterson's Motion for Summary
Judgment (“Motion”). Dkt. 18.
Court concludes Plaintiffs, the Estate of Stephen Cunningham
and Phil Cunningham, have failed to rebut Defendants'
summary judgment showing. Accordingly, the Court grants the
Motion. Additionally, the Court dismisses the Doe defendants
due to Plaintiffs' failure to prosecute. Accordingly,
this case is closed.
bring this civil action under 42 U.S.C. § 1983
challenging the actions of Defendants City of Tacoma, Welsh,
and Patterson during a police-involved shooting. See
Dkt. 1-1. Plaintiffs allege Defendants City of Tacoma and
Welsh, a police officer with the Tacoma Police Department,
violated Stephen Cunningham's (“Stephen”)
constitutional rights when Defendant Welsh shot and killed
Stephen. Id. Plaintiffs also contend Defendants City
of Tacoma and Patterson violated Phil Cunningham's
(“Phil”) constitutional rights when Defendant
Patterson searched Phil's home without a warrant.
filed the Motion with supporting evidence on January 1, 2018.
Dkt. 18-23. Plaintiffs filed a Response with supporting
evidence on February 5, 2018. Dkt. 27-35. Defendants filed a
Reply and two additional affidavits on February 9, 2018. Dkt.
36-38. The parties did not request oral argument.
See Dkt. 18, 27. Regardless, the Court has reviewed
the record and independently determined oral argument is not
necessary in this case.
STANDARD OF REVIEW
judgment is proper only if the pleadings, discovery, and
disclosure materials on file, and any affidavits, show that
there is no genuine dispute as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(nonmoving party must present specific, significant probative
evidence, not simply “some metaphysical doubt”);
see also Fed. R. Civ. P. 56(e). Conversely, a
genuine dispute over a material fact exists if there is
sufficient evidence supporting the claimed factual dispute,
requiring a judge or jury to resolve the differing versions
of the truth. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
relevant evidence shows Defendant Welsh, a police officer
with the Tacoma Police Department, was on patrol on the
evening of May 10, 2015. See Dkt. 20, Welsh Dec.,
¶¶ 2-3. Defendant Welsh was a “single
officer, ” meaning he was the only officer in his
patrol car. See Dkt. 20, p. 13. At approximately
10:00 p.m., Defendant Welsh and non-party Officer Angela
Hayes, a police officer with the Tacoma Police Department who
was driving a separate patrol car, were dispatched to
investigate a noise complaint in the area of 3424 South
Proctor Street, Tacoma, Washington. Id.; Dkt. 20,
Welsh Dec., ¶ 4. The officers responded to the
complainant's location and spoke with Angela Sprinkle,
the complainant. Dkt. 20, Welsh Dec., ¶ 5; Dkt. 31,
Sprinkle Dec., ¶¶ 2-5; Dkt. 20, p. 13. Defendant
Welsh stated he could hear the music from inside Ms.
Sprinkle's home and the officers advised Ms. Sprinkle
that they would make contact with the neighbor and ask the
neighbor to turn the music down. Dkt. 20, Welsh Dec., ¶
5; Dkt. 20, p. 13.
Welsh and Officer Hayes “walked to the house that was
playing music.” Dkt. 20, Welsh Dec., ¶ 6. At the
time Defendant Welsh initially made contact at the residence,
it was a very simple call to request the music be turned
down. Dkt. 20, p. 15; Dkt. 23, pp. 19-20. “The house
was a duplex and the music was coming from the unit at the
back of the house [, (Unit B)].” Id. The
officers “entered through a pedestrian gate and walked
down a long walkway to reach the door of the unit playing
music.” Id. There was a large picture window
next to the front door of Unit B. Id. at ¶ 7;
Dkt. 21, Hayes Dec., ¶ 8. The officers could see the
lights were on in the home and on the back patio of the home.
Dkt. 20, Welsh Dec., ¶ 7. The entire inside of the house
was visible; Office Welsh could see the living room, a
hallway going back to what appeared to be the bedrooms, the
kitchen, and part of the back patio. Dkt. 20, p. 14; see
also Dkt. 21, Hayes Dec., ¶¶ 8-9.
point in the evening, the evidence is in dispute regarding
the events which transpired prior to Defendant Welsh shooting
evidence shows Defendant Welsh and Officer Hayes, who were
both in police uniform, stood in front of the large window
next to the front door so the occupants could see they were
police officers and not be startled. Dkt. 20, Welsh Dec.,
¶ 8; Dkt. 20, p. 13; Dkt. 21, p. 10. Defendant Welsh
testified he knocked on the metal storm door frame and said
“Tacoma Police.” Dkt. 20, Welsh Dec., ¶ 8.
Defendant Welsh did not hear anything immediately after he
knocked and announced the officers' presence.
Id. However, a few seconds later, Stephen came into
the living room, looked towards the back patio, and then made
brief eye contact with Defendant Welsh. Id.
Defendant Welsh continued to knock on the door and, at one
point, announced, “Tacoma Police. You just need to turn
down your music.” Dkt. 20, Welsh Dec., ¶ 9. While
Stephen appeared to react to the officers' presence when
he first entered the living room, Defendant Welsh did not
feel threatened. Dkt. 20, p. 15.
Hayes testified that Stephen looked at the officers and
Defendant Welsh knocked and said “Tacoma Police”
while Stephen was in the room. Dkt. 21, Hayes Dec., ¶ 9;
Dkt. 20, p. 11. Stephen had a blank stare, or “thousand
yard stare, ” and did not acknowledge the officers.
Dkt. 21, Hayes Dec., ¶ 9. Officer Hayes stated that a
“thousand yard stare” is usually associated with
“PCP, hallucinogens, ” and, in her training,
officers cannot negotiate with an individual exhibiting a
“thousand yard stare.” Dkt. 21, p. 15. Stephen
then walked back towards the kitchen and the sliding door
that provided access to the back patio. Dkt. 21, Hayes Dec.,
¶ 9; Dkt. 20, Welsh Dec., ¶ 10; Dkt. 20, p. 15.
Stephen walked away, both Defendant Welsh and Officer Hayes
noticed “a firearm sitting on the coffee table, with
two magazines right next to it.” Dkt. 20, Welsh Dec.,
¶ 10; Dkt. 21, Hayes Dec., ¶ 9. Defendant Welsh
stated the gun appeared to be a Kimber 1911 with a dark
metallic finish; it was in a small holster, like a pressure
holster. Dkt. 20, p. 15. Defendant Welsh did not consider the
mere presence of the firearm to be a threat. Dkt. 20, Welsh
Dec., ¶ 10; Dkt. 20, p. 15.
Welsh knocked an additional time and Stephen turned back
towards the living room. Dkt. 21, Hayes Dec., ¶ 10.
Defendant Welsh, who was standing at least partially in front
of the window, flashed his flashlight on himself briefly to
show he was a police officer. Dkt. 20, Welsh Dec., ¶ 11.
Stephen looked at the officers again; he now looked frantic,
angry, intense, and crazed. Id.; Dkt. 20, p. 16.
Stephen made a gesture and said something to the effect of
“oh, okay” or “oh, no, your (sic) gonna get
it.” Dkt. 20, Welsh Dec., ¶ 11. Stephen picked up
speed, moving towards the gun. Dkt. 21, p. 12. He fixated on
the gun and grabbed for it. Dkt. 20, Welsh Dec., ¶ 11;
Dkt. 21, Hayes Dec., ¶ 10. Defendant Welsh stated that
he was “immensely fearful” Stephen would begin
shooting the officers through the door of the house. Dkt. 20,
officers were in a terrible tactical position. Dkt. 20, Welsh
Dec., ¶ 12. The coffee table, where the gun was located,
was very close to the officers. Id. The officers
could not retreat the way they had come because it was a long
walkway with no cover and they would have their backs to
Stephen. Id.; see also Dkt. 20, p. 16.
Thus, when Stephen reached for the gun, both Defendant Welsh
and Officer Hayes ran to the west side of the house and into
the backyard. Dkt. 20, Welsh Dec., ¶ 11; Dkt. 21, Hayes
Dec., ¶ 11. There was no doubt in Officer Hayes's
mind that the officers were in danger when they ran around
the northwest corner of the house into the backyard. Dkt.
28-2, p. 10 (Hayes Depo., p. 31).
Hayes ran to take cover at the southwest corner of the house.
Dkt. 28-2, p. 10 (Hayes Depo., p. 31). When Officer Hayes
arrived at the southwest corner she engaged with a male
wearing a white shirt. Dkt. 21, Hayes Dec., ¶ 12. She
directed him to stay where he was and show her his hands.
Id. Officer Hayes heard Stephen say, “I'm
going to fucking kill you guys” and the male in the
white shirt ran into the house through the back patio door.
Defendant Welsh ran around the northwest corner of the house,
he began walking backwards towards the southwest corner of
the house when he heard Stephen slam the front door open and
heard Officer Hayes contact someone from her location near
the southwest corner of the house. Dkt. 20, Welsh Dec.,
¶ 13; Dkt. 20, p. 17. Defendant Welsh did not know if
the individual Officer Hayes was engaged with was
collaborating with Stephen or just someone in the backyard.
Dkt. 20, p. 18. When Defendant Welsh reached the southwest
corner of the house, he attempted to use as much of the
corner of the house as he could to shield Officer Hayes from
Stephen. Dkt. 20, p. 18. Defendant Welsh saw Stephen peer
around the northwest corner of the house like he was looking
for the officers with his gun out at “low ready.”
Dkt. 20, Welsh Dec., ¶ 13; Dkt. 20, p. 18. Defendant
Welsh could see the gun in Stephen's right hand. Dkt. 20,
p. 18. Defendant Welsh was repeatedly screaming,
“Tacoma Police! Drop your gun!” Dkt. 20, Welsh
Dec., ¶ 13.
Welsh's head was sticking out from behind the southwest
corner of the house and Stephen looked right at him. Dkt. 20,
p. 18. Stephen disappeared around the northwest corner of the
house and said something like “I'm going to get
you!” or “I'm going to fucking kill you
guys.” Dkt. 20, Welsh Dec., ¶ 13; Dkt. 21, Hayes
Dec., ¶ 12. Stephen then came directly around the
northwest corner of the house with his gun raised and aimed
at Defendant Welsh, who believed Stephen was coming to shoot
the officers. Dkt. 20, Welsh Dec., ¶ 13; see
also Dkt. 20, pp. 18-19. Officer Hayes heard Defendant
Welsh say “Drop your weapon. Drop your weapon”
and then heard Defendant Welsh fire his weapon several times.
Welsh dropped his flashlight and fired four or five shots at
Stephen. Dkt. 20, Welsh Dec., ¶ 13; Dkt. 20, p. 18. He
stopped for a “split second, ” saw that Stephen
was not incapacitated, still holding his gun in his left hand
three quarters of the way up, and facing the officers. Dkt.
20, Welsh Dec., ¶ 13; Dkt. 20, pp. 18-19. Defendant
Welsh fired a second volley of shots until Stephen fell to
the ground. Dkt. 20, Welsh Dec., ¶ 13; Dkt. 20, pp.
18-19. Stephen's gun was “recovered with the safety
off, in firing configuration with the hammer cocked and a
round in the chamber, ” indicating Stephen was intent
to fire the weapon. Dkt. 23, p. 26.
the shooting, the officers were located near the southwest
corner of the house and were standing close enough that the
casings from Defendant Welsh's weapon hit Officer Hayes
on the shoulder. Dkt. 20, Welsh Dec., ¶ 21; Dkt. 21,
Hayes Dec., ¶ 12; Dkt. 28-2, p. 13 (Hayes Depo., p. 34);
see also Dkt. 20, p. 17. Additionally,
Defendants' evidence shows Defendant Welsh knocked and
announced the officers probably four different times between
the time the officers arrived at the home and when Stephen
grabbed his gun. Dkt. 20, Welsh Dec., ¶ 9. There is also
evidence showing Andrew Blinn, one of Stephen's roommates
who was present that evening, stated “he knew that
Officer Hayes and Officer Welsh were police officers, and
that he didn't know why [Stephen] didn't also know
this.” Dkt. 23, p. 24.
submitted an expert report stating that when Stephen armed
“himself with a semi-automatic pistol” and moved
“aggressively towards the officers, ” his actions
constituted attempted assault in the first degree. Dkt. 23,
p. 22. Additionally, Stephen's actions of moving toward
the officers and raising the weapon met the elements ...