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McGregor v. Kitsap County

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

May 22, 2018

KITSAP COUNTY, et al., Defendants.


          Ronald B. Leighton United States District Judge

         THIS MATTER is before the Court on Defendants' Motion for Summary Judgment Regarding Qualified Immunity [Dkt. #33]. In June 2014, Kitsap County Sheriff's Deputies responded to a 911 call from Plaintiff Corinna McGregor's then-husband reporting that McGregor was suicidal. Deputies observed McGregor, who was armed with a handgun, exit her home and walk behind a nearby woodpile in her backyard. McGregor was shot by Deputy Wilson Sapp during the ensuing standoff. The parties disagree about whether McGregor was armed at the time Deputy Sapp shot her. McGregor survived the encounter and now brings suit alleging various torts and constitutional violations against Kitsap County and Deputy Sapp. Defendants move for summary judgment on McGregor's excessive force claim against Deputy Sapp, arguing that Sapp is protected by qualified immunity. Defendants also move for summary judgment on McGregor's Monell claim against Kitsap County, asserting that McGregor cannot establish a constitutional violation for which Kitsap County is liable. The Court would not be aided by oral argument and decides the motion on the parties' written submissions.

         I. BACKGROUND

         On the evening of June 9, 2014, Riley Barth, the Plaintiff's ex-husband, called 911 to report a domestic disturbance involving his then-wife, Corinna McGregor. Barth reported that McGregor was suicidal, prompting a response from Kitsap County Sheriff's Deputies. Deputy Rob Corn was the first officer to respond to the Barth-McGregor residence and spoke with Barth in the driveway. Barth reported that he had been in a verbal dispute with his wife, and that McGregor had been acting irrationally since discontinuing medications to treat her mental illness. Barth also advised Deputy Corn that McGregor had been committed for psychiatric problems in the past, had previously threatened suicide, and may have access to firearms inside the residence.

         Deputy Ben Herrin arrived at the Barth-McGregor residence and approached the front door on foot with Deputy Corn. Corn briefly spoke with McGregor through the front door. When Corn requested that McGregor speak to him through an open window, McGregor suggested that they could speak at the sliding glass door at the side of the house. When Corn arrived at the side door, he saw McGregor armed with a black semi-automatic pistol. Corn quickly retreated from the side door and advised Deputy Herrin that McGregor was armed and to take cover. The deputies repositioned their patrol cars in front of the house to provide additional cover. Deputies Wilson Sapp, [1] Greg Rice, and John Stacy arrived shortly thereafter.[2] Deputy Stacy approached the Barth-McGregor residence via a neighbor's property to the south to secure a better view of the backyard.

         Still armed with the handgun, McGregor exited the house through the side door and walked into the backyard positioning herself behind a stack of firewood at the southwest corner of the property. Deputy Herrin used the PA system on his patrol car to instruct McGregor to come to the front of the house with her hands visible. McGregor shouted an inaudible response. Shortly thereafter, McGregor fired a test-shot from the handgun into the ground by the woodpile. Fearing that McGregor had shot herself, deputies approached the woodpile behind the cover of a ballistic shield. As the deputies approached, they observed that McGregor was apparently unharmed and still armed with the handgun. The deputies retreated back to the front of the house, taking containment positions behind a patrol car and some large trees. Deputy Sapp, armed with an assault rifle, was positioned behind a large fir tree near the front of the residence approximately 114 feet away from McGregor and the woodpile.

         Deputy Corn again used his patrol car's PA system to request that McGregor come out from behind the woodpile unarmed. McGregor responded that she was going to kill herself, told the officers to leave her alone, and then demanded to speak to her husband. Eventually, McGregor emerged from behind the woodpile. The parties agree that soon after emerging, Deputy Sapp fired a single shot striking McGregor in the abdomen and causing her to collapse in front of the woodpile. Of significance to this lawsuit, the parties dispute whether or not McGregor was holding the handgun when she was shot.

         According to McGregor, the deputies promised her that she would be allowed to speak to her husband if she came out from behind the woodpile unarmed. Relying on these assurances, McGregor asserts that she set the gun down and slowly emerged from behind the woodpile holding only a bright pink e-cigarette in her hand. Dkt. 39 at 2-4. McGregor contends that she was shot without warning and denies ever waving or pointing a gun in the direction of the deputies. Id. at 4-6.

         Defendants assert that immediately prior to being shot, McGregor emerged from behind the woodpile intermittently shouting, waving the handgun around, pointing the gun at her own head, and pointing the gun at deputies.[3] Dkt. 33; Dkt. 35. Several of the deputies acknowledge having an obstructed view of McGregor. Deputy Sapp contends that he was in fear for his own safety as well as the safety of his fellow officers and the occupants of nearby homes when he shot McGregor. Dkt. 34. Deputies Sapp, Corn, and Herrin contend that McGregor dropped the handgun only after she was shot, however Deputy Stacy, the lone officer positioned to the south, reported that the object McGregor dropped was the e-cigarette. Dkt. 35.

         McGregor was promptly transported to the hospital and survived the encounter. She now brings suit against Kitsap County and Deputy Sapp alleging tort and constitutional violations. The Court previously dismissed the current and former Kitsap County Sheriffs as defendants from the suit as well as McGregor's negligent hiring, training, and supervision claim. See Dkt. 31.


         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323-24. “Because [the excessive force inquiry] nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom, we have held on many occasions that summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.” Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)).


         Defendants move for summary judgment on McGregor's excessive force claim against Deputy Sapp and on McGregor's Monell claim against Kitsap County.[4] Defendants contend Deputy Sapp is entitled to qualified immunity with respect to the excessive force claim because his use of deadly force against McGregor was objectively reasonable under the circumstances. Dkt. 33 at 2. Defendants also seek summary judgment on McGregor's Monell claim, arguing that it is derivative of her excessive force claim, and that McGregor cannot establish an underlying constitutional violation which would give rise to Monell liability against Kitsap County. Id. McGregor contends that ...

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