United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR SUMMARY JUDGMENT
B. Leighton United States District Judge
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.
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.
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,
Greg Rice, and John Stacy arrived shortly
thereafter. Deputy Stacy approached the Barth-McGregor
residence via a neighbor's property to the south to
secure a better view of the backyard.
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.
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.
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.
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. 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.
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.
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)).
move for summary judgment on McGregor's excessive force
claim against Deputy Sapp and on McGregor's
Monell claim against Kitsap County. 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 ...