United States District Court, W.D. Washington, Seattle
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
L. ROBART United States District Judge.
matter comes before the court on the report and
recommendation of United States Magistrate Judge Michelle L.
Peterson (R&R (Dkt. # 50)) and Defendants Patrick Pena,
Nicolas Sturlaugson, Travis Hauri, David Johnson, and City of
Bellingham's (collectively, “Defendants”)
objections thereto (Obj. (Dkt. # 52)). Plaintiffs Daniel
Young and Richard Young (collectively,
“Plaintiffs”) did not file objections or a
response to Defendants' objections. (See Dkt.)
Having carefully reviewed the foregoing, the relevant
portions of the record, and the applicable law, the court
ADOPTS in part and REJECTS in part the report and
2016, Mr. Young, a 65-year-old First Nations man, was renting
a two-bedroom apartment in Bellingham, Washington. (Young
Decl. (Dkt. # 35) ¶¶ 2-3, 9.) Mr. Young had three
roommates at the time, although only one of his roommates was
identified on the lease. (Id. ¶¶ 10-19.)
According to Mr. Young, each of his roommates went by
numerous false names. (Id. ¶¶ 12, 15-16,
17.) Mr. Young's longtime acquaintance, Heather (who was
identified by a false name on the lease), Heather's
daughter, Ashley (who was going by the name “Isabella
Petrova”), and Ashley's brother (or boyfriend),
Andrew Albers, were all living in the apartment with Mr.
Young. (Id.) On June 2, 2016, Mr. Young's
daughter, Ms. Katzenjammer, visited Mr. Young at the
apartment, but she did not live there. (Id. at
¶¶ 25, 30.)
Patrick Pena and Nicolas Sturlaugson, who are both City of
Bellingham Police Officers, were on patrol in the same
vehicle when they responded to a 911 call around 9:15 p.m.
that evening. (12/3/18 Sturlaugson Decl. (Dkt. # 12) ¶
3; Pena Decl. (Dkt. # 13) ¶ 3.) A woman who identified
herself to the 911 dispatcher and police officers as Isabella
Petrova reported that “Daniel” (Ms. Katzenjammer)
was drunk and starting fights at her apartment. (12/3/18
Sturlaugson Decl. ¶ 3, Ex. A (“CAD
Report”).) She further reported that Ms. Katzenjammer
was groping her and her friends, had broken a glass, and was
laying on the ground screaming. (12/3/18 Sturlaugson Decl.
¶ 4.) Ms. Petrova waited outside with a friend for the
officers to arrive. (Id. ¶¶ 4-5.)
Officers Pena and Sturlaugson arrived at the apartment
complex, they contacted Ms. Petrova in the parking lot.
(Id. ¶ 4.) She once again reported that Ms.
Katzenjammer was inside the apartment with Mr. Young.
(Id. ¶ 5.) Ms. Petrova identified Mr. Young to
the officers as her uncle, although they are not related.
(Id.) She again reported that Ms. Katzenjammer was
intoxicated and had groped her and her friend. (Id.)
Ms. Petrova reported that she lives at the apartment with her
brother and Mr. Young, and asked the officers to remove Ms.
Katzenjammer. (Id.; Pena Decl. ¶ 4.)
Petrova then walked Officers Pena and Sturlaugson to the
apartment and let them in. (4/26/19 Sturlaugson Decl. (Dkt. #
42) ¶ 8, Ex. A (“Video Recording”).) When
they entered the apartment, Mr. Young was sitting upright on
a couch in the living room. (Id.) Ms. Katzenjammer
was kneeling on the living room floor to the right of the
officers. (Id.) Officer Pena immediately stated,
“[h]ey guys” and “[a]re you Daniel?”
as he looked at Ms. Katzenjammer. (Id.) Officer Pena
told Ms. Katzenjammer the reason the officers were there and
explained, “if you are Daniel, we are just here to ask
you to leave.” (Id.) He told Ms. Katzenjammer
that “other people that live here” and that
“apparently you've been causing a ruckus, you are
too drunk they want you out.” (Id.) Officer
Pena asked Ms. Katzenjammer to come outside to talk.
point, Mr. Young and Ms. Katzenjammer began questioning the
officers as to who wanted Ms. Katzenjammer to leave the
apartment. (Id.) Ms. Petrova responded,
“[r]ight here.” (Id.) Officer Pena then
asked if Ms. Katzenjammer wanted to speak outside, at which
point Mr. Young stood up and walked quickly towards Officer
Pena saying “[s]ure, I want to talk to this human
being.” (Id.) When the officers informed Mr.
Young that they did not need to talk to him and he could sit
down, Mr. Young said, “you don't?” and then
raised his arms and reached towards Officer Pena's chest
or collar. (Id.) In the video, Mr. Young appears
intoxicated and hostile. (Id.)
Pena then pushed Mr. Young away, forcing Mr. Young back a few
feet, and issued verbal warnings to stop or Mr. Young could
be tased. (Id.) After a short pause, Mr. Young again
took several steps towards Officer Pena. (Id.)
Officer Sturlaugson then deployed his taser in “dart
mode.” (Id.) The taser prongs impacted Mr.
Young in his thigh, causing him to fall backwards abruptly,
close to where Ms. Katzenjammer was still kneeling on the
floor. (Id.) Taser records reflect that the taser
cycled one time for five seconds. (Starkovich Decl. (Dkt. #
15) ¶¶ 6-7, Ex. A.) Mr. Young remained on the
ground after being tased, but continued to argue with the
officers. (Video Recording.)
parties have different versions of what happened next between
Ms. Katzenjammer and the officers, and the video does not
resolve the factual dispute because only Ms.
Katzenjammer's torso and above are visible.
(Id.) Officers Pena and Sturlaugson assert that Mr.
Young was lying on the ground with the taser wires from
Officer Sturlaugson's taser still extending from the
probes attached to his leg. (12/3/18 Sturlaugson Decl. ¶
9; Pena Decl. ¶ 8.) After Ms. Katzenjammer told the
officers that Mr. Young had a serious medical condition,
Officer Sturlaugson said, “we aren't trying to hurt
him, but he can't hurt us.” (Video Recording.) By
this point, Officer Pena drew his taser and told Ms.
Katzenjammer to “sit down, get away.”
(Id.) Defendants claim that, after the taser cycle
was complete, Ms. Katzenjammer attempted to break the wires
connecting Officer Sturlaugson's taser to the probes in
Mr. Young's thigh. (12/3/18 Sturlaugson Decl. ¶ 9;
Pena Decl. ¶ 8.) Officer Sturlaugson asserts that he was
concerned that if the taser wires were broken, he would lose
the ability to control Mr. Young if he became violent.
(12/3/18 Sturlaugson Decl. ¶ 8.) In addition, Officer
Pena asserts that his path to Ms. Katzenjammer was obstructed
by Mr. Young's body, the taser wires from Officer
Sturlaugson's taser, and a coffee table. (Pena Decl.
contrast, Ms. Katzenjammer claims that she did not touch the
taser wires attached to Mr. Young, and remained kneeling on
the floor. (Katzenjammer Decl. (Dkt. # 36) ¶ 81.) In the
video recording, Officer Pena does not explicitly mention the
taser wires in his instructions to Ms. Katzenjammer, but
continues to warn her that if she does not sit back on the
couch, she will get tased. (Video Recording.) Ms.
Katzenjammer appears intoxicated and defiant, and is
non-compliant with Officer Pena's directive.
(Id.) The video, however, does not show Ms.
Katzenjammer's hands, or whether she was attempting to
remove the taser wires from her father's thigh.
Ms. Katzenjammer failed to comply with Officer Pena's
repeated orders, Officer Pena warned, “you're going
to get tased, you're going to get tased.” (Video
Recording.) Ms. Katzenjammer responded, “[y]ou can tase
the fuck out of me and I will make weird things happen for
your life.” (Id.; Pena Decl. ¶ 9.)
Officer Pena then said, “you need to get back and sit
on the couch, ” to which Ms. Katzenjammer responded,
“no.” (Video Recording.) Officer Pena then
deployed his taser in dart mode at Ms. Katzenjammer. (Pena
Decl. ¶ 11.)
to the video, the taser did not appear to incapacitate Ms.
Katzenjammer at first because she began wrapping the taser
wires around her hand. (Video Recording.) Officer Pena
deployed his taser a second time, which momentarily
incapacitated Ms. Katzenjammer. (Pena Decl. ¶ 11.) Taser
data shows that Officer Pena's first taser cycle lasted
five seconds, and the second taser deployment occurred
immediately thereafter for another five seconds. (Starkovich
Decl. ¶ 8.) The officers then physically restrained Mr.
Young and Ms. Katzenjammer. (Video Recording.)
Plaintiffs were in handcuffs, Officer Travis Hauri arrived at
the scene. (Hauri Decl. (Dkt. # 17) ¶ 5.) Officer Hauri
began to subdue Ms. Katzenjammer, who was struggling and
resisting the handcuffs. (Id.) Officers Sturlaugson
and Pena then handcuffed Mr. Young as additional officers
arrived on the scene. (Video Recording.) The entire incident
in the apartment-from the officers' arrival to both
Plaintiffs being in handcuffs-lasted about four minutes.
Officer Sturlaugson walked Mr. Young out of the apartment to
the patrol vehicle, Officer Pena asked Mr. Young to confirm
the identity of “Daniel.” (Id.) During
that conversation, Officer Pena explained that Mr. Young
would have been able to stay in his apartment but “you
rose up at me.” (Id.) Mr. Young was arrested
for felony assault in the third degree for assaulting Officer
Pena and transported to the Whatcom County Jail. (12/3/18
Sturlaugson Decl. ¶¶ 16-17; Pena Decl. ¶ 14.)
Katzenjammer remained uncooperative, and eventually medics on
the scene administered medication to sedate her. (Video
Recording; Hauri Decl. ¶ 11.) Ms. Katzenjammer then fell
asleep on the gurney and was taken to St. Joseph's
Hospital for treatment. (Id.) Ms. Katzenjammer was
never placed under arrest; nor was she transported to the
Whatcom County Jail like Mr. Young. (Pena Decl. ¶ 19.)
Hauri then went to the Emergency Department at St. Joseph
Hospital with his supervisor, Sgt. David Johnson, to speak
with Ms. Katzenjammer about the incident. (Johnson Decl.
(Dkt. # 18) ¶ 11.) However, Officer Hauri and Sgt.
Johnson found Ms. Katzenjammer “unconscious and unable
to answer any questions about the incident.”
(Id.) According to Sgt. Johnson, “as part of
the investigation, at the hospital Officer Hauri photographed
the taser impact sites on Daniel Young's body.”
(Id.) According to Sgt. Johnson's Longarm Case
Investigator Hauri and I went to the Emergency Department at
St Joseph Hospital and located DANIEL YOUNG (C1) who was
unconscious in one of the rooms. A nurse advised that the
taser probes had already been removed from DANIEL YOUNG (C1),
but she had noted that three taser probes that contacted his
abdomen and one had contacted his thigh. Investigator Hauri
photographed the possible locations where the probes had
contacted DANIEL YOUNG (C1). DANIEL YOUNG (C1) was
unconscious during this entire process and we were unable to
ask him any questions.
(Id. ¶ 12, Ex. A (“Johnson Report”)
at 4.) Officer Hauri has a similar account of ...