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Cunningham v. City of Tacoma

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

March 7, 2018

ESTATE OF STEPHEN CUNNINGHAM, PHIL CUNNINGHAM, Plaintiffs,
v.
CITY OF TACOMA, JIMMY WELSH, PATRICK PATTERSON, OFFICERS JOHN OR JANE DOE 1-5, Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.

         Pursuant 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.

         The 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.

         I. BACKGROUND

         Plaintiffs 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. Id.

         Defendants 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.

         II. STANDARD OF REVIEW

         Summary 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. 1987).

         III. EVIDENCE

         The 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.

         Defendant 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.

         At this point in the evening, the evidence is in dispute regarding the events which transpired prior to Defendant Welsh shooting Plaintiff.

         A. Defendants' Evidence

         Defendants' 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.

         Officer 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.

         After 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.

         Defendant 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, p. 17.

         The 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).

         Officer 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. Id.

         After 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.

         Defendant 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. Id.

         Defendant 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.

         During 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.

         Defendants 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 ...


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