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Elliott v. Mason County

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

June 19, 2018

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.


          ROBERT J. BRYAN United States District Judge

         This 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 herein.

         On 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.

         Defendant 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.


         In the 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.

         In 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.

         Sergeant 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.

         Sergeant 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 back. Id.

         Sergeant 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.

         Sergeant 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, at 73-74).

         As 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 ...

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