United States District Court, W.D. Washington, Tacoma
MEGAN ELLIOTT, in her Personal Capacity and as Personal Representative of the Estate of TIM ELLIOTT, deceased, Plaintiff,
MASON COUNTY, a political subdivision of the State of WASHINGTON; Y SALISBURY, Sheriff, Mason County Sheriff's Office, individually and in his official capacity acting under the color of state law; Defendants.
ORDER ON DEFENDANT SERGEANT TREVOR SEVERANCE'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
J. BRYAN United States District Judge
matter comes before the Court on Defendant Sergeant Trevor
Severance's Motion for Partial Summary Judgment (Dkt. 27)
and Plaintiff's response, which while not properly
labeled, should be construed as a Fed.R.Civ.P. 56 (d) motion
(Dkt. 29). The Court has considered the pleadings filed in
support of and in opposition to the motions and the file
December 22, 2017, Plaintiff Megan Elliot filed this case, on
behalf of herself and as the personal representative of her
father Tim Elliott's estate, in connection with the
shooting death of Mr. Elliot by Defendant Mason County
Sheriff's Department Sergeant Trevor Severance. Dkt. 1
and 23. Plaintiff asserts federal constitutional claims for
violation of her father's Fourth Amendment right against
unreasonable seizures and for violation of her Fourteenth
Amendment due process right to the companionship of her
parent. Dkt. 23. She also makes state law claims for
negligence, gross negligence, battery, negligent use of
excessive force, and outrage. Id. Plaintiff seeks
damages, attorneys' fees, and costs. Id.
Severance now moves for summary dismissal of the Fourth
Amendment claim only, asserting that he meets both prongs of
the test for qualified immunity. Dkt. 27. Plaintiff opposes
the motion and asserts that more discovery is needed before a
decision can be made on the motion. Dkt. 29. For the reasons
provided below, the motion to summarily dismiss the Fourth
Amendment claim asserted against Defendant Severance (Dkt.
27) should be stricken, to be renoted at the completion of
discovery, if appropriate, and Plaintiff's Fed.R.Civ.P.
56 (d) motion (Dkt. 29) should be granted.
RELEVANT BACKGROUND FACTS
evening of January 2, 2015, Sergeant Severance responded to a
dispatch of a shooting on East Island Lake Drive, in Shelton,
Washington. Dkt. 30-1, at 2-3. The recording of the dispatch
call provides that the reporting party “states his dad
just shot himself . . . We're still trying to get
information . . . [a]nd it sounds like we're trying to do
CPR now.” Dkt. 30-1, at 2.
support of his motion, Sergeant Severance filed a declaration
in which he adopted (with the exception of the addition of a
single word) the statements he made during a January 6, 2015
Grays Harbor County Sheriff's Department
representative's interview about the incident. Dkt. 28-1,
at 2-3. In this interview, Sergeant Severance states that
right after he heard the dispatch, he grabbed extra latex
gloves and his first aid kit (which was full of equipment to
help trauma victims) and headed out. Dkt. 28-1, at 6 and 21.
In addition to being a police officer, he is an EMT and has
been for 20 years. Dkt. 28-1, at 6. As he left for the house,
he was in the “mind-set of . . . all the scenarios of
what we're going to need to do to help Aid help this
guy.” Dkt. 28-1, at 13.
Severance, reporting that he was in the area, received an
update from the dispatcher, who stated, “Update is the
hand is on his, correction, the gun is on his hand. The
[reporting party] is unsure exactly what you need done with
that.” Dkt. 30-1, at 2. Sergeant Severance told the
dispatcher to tell the reporting party, who he now knows was
Ms. Elliot, “Don't touch anything except for trying
to revive [Mr. Elliot].” Id.
Severance states that he pulled up to the house, grabbed his
kit, pulled on his latex gloves, and ran up to the front
door. Dkt. 28-1, at 6. He knocked and announced himself, then
heard a girl scream and so entered the house, moving toward
the scream. Dkt. 28-1, at 7. Sergeant Severance headed down a
hall, entered a room to his left, and there was another small
hall with a wall to his right, “and the room kind of
turn[ed] and open[ed] up into a larger room.” Dkt.
28-1, at 7. He saw Ms. Elliott at the foot of the bed, the
man he now knows to be Tim Elliot on the bed, laying on his
Severance then describes events as follows:
And I look at her, I look to him to start assessing the scene
to make sure it's safe and what I need to do; and I
realize that he's actually making eye contact with me,
which was strange because they were supposed to be doing CPR
on him. And I look and he's laying on the bed and his
shoulders are somewhat propped upon a pillow. And in his
right hand, laying on the -- on the bed, was a handgun. It
was a revolver.
Dkt. 28-1, at 7. (Sergeant Severance states that when he
heard from dispatch that they were performing CPR on the
victim, it meant to him, as an EMT, that the victim was
non-responsive. Dkt. 28-1, at 22.) He states that he
“kind of switch[ed] gears, grabbed her, got her out of
the room.” Dkt. 28-1, at 7. According to Sergeant
Severance, Ms. Elliot was hysterical, but followed his
command to leave the room. Dkt. 28-1, at 16.
Severance states that he “got in behind that small
wall, which [he] believe[d] was a part of a closet. [He was]
less than six feet from the bed, and it [was] the only
concealment [he] had” to still be able to see Mr.
Elliot. Dkt. 28-1, at 7. Sergeant Severance began yelling,
“Drop the gun, ” several times. Dkt. 28-1, at 8.
He states that Mr. Elliot was looking right at him, and that
he felt Mr. Elliot was “hearing” him.
Id. Sergeant Severance states that “during
this process, at least twice, [Mr. Elliot] says, ‘Just
shoot me.'” Dkt. 28-1, at 8. Mason County
Sheriff's Deputy Alfonso Mercado arrived on the scene.
Dkt. 28-1, at 73. (Deputy Mercado also filed a declaration in
support of the motion, and in it, he adopts his statements
made to Thurston and Lewis County Sheriff's Department
representatives in their investigative interview. Dkt. 28-1,
Deputy Mercado entered the room, Sergeant Severance ordered
him to confirm that Ms. Elliot was safely away. Dkt. 28-1, at
8. Deputy Mercado states that he returned, but could not see
Mr. Elliot around Sergeant Severance and some clothes hanging
on a rack ...