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Orn v. City of Tacoma

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

April 9, 2018

THAN ORN, Plaintiff,
v.
CITY OF TACOMA, Defendant.

          ORDER

          RONALD B. LEIGHTON, UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendants' Motion for Summary Judgment [Dkt. #90]. The Court has reviewed the materials filed in favor and opposed to the motion and has received the benefit of oral argument of counsel. For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.

         I. PLAINTIFF'S VIEW OF THE FACTS

         Than Orn was a 34-year-old Cambodian-American husband and father of three living in an apartment complex on S. 65th St. and Tacoma Mall Boulevard. On October 12, 2011, at approximately 8:30 p.m., Orn was driving a white Mitsubishi Montero SUV down S. 64th St., with his parking lights on, but not his headlights. Orn passed a silver vehicle with no visible light bar, driven by Tacoma Police Department (TPD) Sgt. Alan Morris going in the opposite direction. Morris drove past the white SUV, turned his vehicle around, turned on his emergency lights mounted at the top of his windshield and accelerated to catch up to Orn. At 8:31 p.m., Sgt. Morris radioed to dispatch that he was attempting to pull the vehicle over but the vehicle was not stopping. Orn drove between 25 and 35 MPH. Morris characterized Orn's actions as failing to yield, but did not consider his driving reckless. Morris followed the vehicle and continued to give updates to dispatch.

         Officer Daniel Bortle joined Sgt. Morris in the pursuit of Orn. According to Bortle, he maneuvered his patrol car alongside Orn with Sgt. Morris “to try and box [Orn] in.” Bortle pulled up to Orn with Morris behind him, traveling 30-35 MPH, and according to Bortle, Orn swerved his car at him. Officer Bortle, Sgt. Morris and Officer Michael Johnson initiated a “rolling roadblock” maneuver in an attempt to stop Orn's vehicle.

         Officer Bortle, Sgt. Morris and Officer Johnson pulled alongside Orn, traveling between 5 and 15 MPH. According to Officer Bortle, TPD's policy at the time regarding the use of a rolling roadblock was that it was only allowable in situations involving the use of deadly force, where the situation involved an imminent threat to bodily injury or death. But Bortle admits there were no reports of Orn being suspected of a violent felony or that he had a firearm. Further, there were no reports of Orn's actions escalating which justified the use of deadly force.

         Officers Donald Rose and Kristopher Clark were inside TPD's three sector substation at Wapato Park when they heard Sgt. Morris first call out that he was trying to stop Orn's vehicle. Morris had radioed dispatch that the vehicle was failing to yield.

         Officers Rose and Clark went out to Clark's Ford Expedition patrol vehicle and headed to the direction that Sgt. Morris was calling out over the radio. Rose and Clark were about 15 blocks away from Morris. Rose and Clark knew that only a traffic violation had occurred and the Orn vehicle was failing to yield. The officers also knew that neither violation was a felony and that the Orn vehicle was not implicated in any felony situation. In the continuum of force, as the officers understood Than Orn's behavior, Orn was only considered to be “active resistant.” Rose and Clark were “paralleling the pursuit, ” meaning they were not in line with other officers following Orn but were following on side streets. Five to seven TPD vehicles were following behind Orn at this time.

         Clark and Rose blocked westbound traffic at the intersections of 56th and Alaska, by positioning the Expedition in the roadway with their lights on, in order to keep general traffic away. Neither Clark nor Rose left the vehicle. A nearby officer was laying out spike strips in the road to try and puncture the Orn vehicle's tires. According to Officer Rose, Than Orn, still only traveling about 30 mph, swerved his vehicle away from the officer deploying the spike strips rather than drive at him. At the time Orn's vehicle swerved around the spike strips, there was no oncoming traffic and no danger in his pathway. In addition, Orn's speed continued to be a “pretty low speed” between 30-35 mph.

         After paralleling Orn's vehicle, Clark and Rose heard over the radio that Orn's vehicle was registered to an apartment at the Valley Vista apartment complex just off Tacoma Mall Boulevard. At the time, the patrol cars following Orn were at the south entrance of the apartments. Clark and Rose pulled into the north entrance to get in front of the pursuit.

         Once he was inside the parking lot of Orn's apartment complex, Officer Clark positioned his vehicle in the thoroughfare of the main parking lot near the north entrance so that the front of his vehicle was near an island that butted out into the parking lot area. Officer Clark has submitted an affidavit admitting that he parked his Ford Expedition, a full-size SUV, “across a narrow point in the thoroughfare near the north entrance” of the apartment complex's parking lot, which he believed “would prevent Mr. Orn from exiting the parking lot.” Clark's declaration also further asserts that his intent was “containment” rather than to create a roadblock.

         Other officers concur that Clark's vehicle was a roadblock. Clark's partner, Officer Rose, described Clark's vehicle positioning as “effectively cut[ting] off northbound travel through the parking lot right there.” Officer Daniel Bortle described Clark's SUV as facing in an east-westerly position, and, blocking the roadway. Officer Clark ignored the command to stay in his vehicle, and instead, used his car as a roadblock.

         As Than Orn's vehicle entered the Valley Vista apartment complex, Officer Bortle, who was traveling in the caravan behind Orn with Officer Kim, K-9 Officer David Johnson, and Sgt. Morris, estimates that Orn traveled approximately 15 mph. Bortle also testified that as Orn's vehicle approached Clark's Expedition, “For just a brief second the vehicle did pause.”

         Officer Kim, travelling immediately behind Orn, testified in Than Orn's criminal trial and in his deposition that Orn was traveling very slowly in the apartment complex.

         As Orn approached Officer Clark's Ford Expedition, Than Orn drove away from where Officer Clark had positioned himself, and instead drove onto a grass planting strip around Clark's vehicle and opposite of where Clark was standing. Officer Steven Butts, who also came in at the north entrance of the apartment complex, arrived in his patrol car and parked his vehicle just north of where Clark's Expedition was blocking the road. Officer Butts stayed in his patrol vehicle behind Clark's vehicle but could see Orn's caravan coming forward. He watched as Than Orn's vehicle was coming closer to Clark's blocking vehicle. Orn was traveling “maybe five miles an hour when it slowed.” Then Orn either stopped or slowed down substantially before Officer Clark's vehicle. Butts watched the Orn vehicle drive away from where Clark had positioned himself, and then up on the grass planting strip. Officer Butts testified that Orn's vehicle was going very slowly, 3-4 mph, as it went onto the grass and back down again. As Orn was driving on the grass planting strip, Butts intentionally backed his car up seeking to cut off any route for Than Orn to escape. After doing so, Orn's vehicle, still traveling 4 mph according to Butts, came into contact with the front push bar of Butts's car. Butts heard plastic crunching and felt a jarring of the vehicle, but the impact was so minor that it didn't actually move Butt's vehicle.

         As he was coming through the narrow entrance, Orn also made contact with the rear bumper of Clark's Expedition. Officer Rose, who was still in the vehicle, called the contact from Orn a glancing blow.

         Officer Clark states that he moved from the grass median where he was standing (opposite of the grass patch Orn drove on), to a position either at or behind his vehicle's bumper. Clark further states that he was positioned “out of [Orn's] direct path of travel. However, neither of the officers immediately in the area, Rose or Butts, saw Clark.”

         Officer Clark claims he then saw Orn's vehicle turn towards him and the vehicle accelerated at him. Clark also states that at that same moment, he “could hear the engine of [Orn's] vehicle under hard acceleration.” Clark doesn't explain how but, despite his position behind the bumper, he claimed the vehicle was now coming at him. Clark then claims that he extended his left arm to brace for the impact of Orn's vehicle and began to move backwards. He claims he believed that Orn was trying to run him over, and because of his close proximity to Orn's vehicle, he had to raise his pistol and fire downward while his left hand remained on Orn's vehicle.

         Officer Butts, who approximates that he was no more than eight feet from Clark's vehicle, did not see Clark. Butts watched Orn's vehicle traveling right in front of him, going 3-4 mph as it was coming off the grass, but Butts also did not see Clark reach out his hand and touch the car. He just heard shots being fired and glass shattering on Orn's vehicle. Officer Butts also testified to a much different time sequence of the alleged hard acceleration by Than Orn's vehicle. Rather than a “hard acceleration” before shots were fired as claimed by Officer Clark, Butts heard the hard acceleration only after Clark fired his gun.

         Officer Clark has described his second volley of shots at the Orn vehicle as being fired because he was in fear for the safety of his partner, Donald Rose. “I believed that Mr. Orn had just assaulted me with a deadly weapon and that he would intentionally try and run other officers over, and therefore, I believed that Mr. Orn was an imminent threat to my partner. Therefore, I fired five or six more times, in rapid succession, at Mr. Orn through the back window of his SUV.” Officer Rose, however, was inside the Ford Expedition and never exited the patrol vehicle until after Than Orn was shot. More importantly, Rose does not recall his partner, Officer Clark, ever telling him about his concerns for Rose's safety. Instead, the only safety concern Clark told Rose about was his own, even as the Orn vehicle was moving away.

         Chief Donald Ramsdell, in his administrative review of the Use of Deadly Force Review Board's finding, confirmed two things: 1) That Officer Clark's official statement to investigators about his safety were different than what he told his partner, Officer Rose; and 2) No one, not Clark, Rose or anyone else, was in the path of danger while Officer Clark was “running and shooting, ” as Officer DeNully described it, as Than Orn's vehicle was moving away.

         In addition to the multiple, significant differences between what Officer Kristopher Clark told investigators versus what others observed and the admissions Clark made to his partner, Donald Rose, the evidence does not support Clark's claims about the shooting of Than Orn. First, Detective Gene Miller, the detective tasked with investigating the shooting scene, testified that Kristopher Clark's alleged palm print on the side of the Orn vehicle, could not be conclusively matched to Officer Clark.

         Second, the evidence supports the argument that Than Orn's vehicle was not a threat to Kristopher Clark at any point when he fired because Orn's vehicle was already passing by.

         Third, the defendants' ballistic expert testified that the angle of the first volley of shots shows that the paralyzing shot to Than Orn's back from the passenger-rear window was fired between 2 feet and 4 feet away from the side of the car, contradicting Officer ...


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