United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS,
GRANTING PLAINTIFF LEAVE TO AMEND, AND DENYING
PLAINTIFF'S MOTION TO STRIKE AS MOOT
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Jon VanGesen's
(“VanGesen”) motion to dismiss, Dkt. 19, and
Plaintiff Omari Taylor's (“Taylor”) motion to
strike exhibits attached to the motion to dismiss, Dkt. 24.
The Court has considered the pleadings filed in support of
and in opposition to the motions and the remainder of the
file and hereby grants in part and denies in part the motion
for judgment on the pleadings and denies the motion to strike
as moot for the reasons stated herein.
August 20, 2018, Taylor filed a complaint against VanGesen
and Defendant Kitsap County (“Kitsap County”).
Dkt. 1. Against VanGesen, Taylor alleged deprivation of his
right to equal protection under the Fourteenth Amendment,
deprivation of his right to be free from unreasonable search
and seizure under the Fourth Amendment, and deprivation of
his right to free speech under the First Amendment, all
pursuant to 42 U.S.C. § 1983. Dkt. 1, ¶¶
124-26. Against Kitsap County, Taylor alleged a violation of
Washington's Criminal Records Privacy Act, RCW Chapter
10.97. Id. ¶ 127. On January 9, 2019, the Court
entered the parties' stipulated dismissal of the
Washington Criminal Records Privacy Act claim. Dkt. 14.
24, 2019, VanGesen filed a motion to dismiss. Dkt. 19. On
June 26, 2019, Taylor filed a motion to strike exhibits
attached to the motion to dismiss. Dkt. 24. On July 1, 2019,
Taylor responded to VanGesen's motion. Dkt. 25. On July
5, 2019, VanGesen replied to Taylor's response and
responded to Taylor's motion to strike. Dkt.
facts relevant to the instant motion are as follows.
is an African-American man who resides in King County,
Washington. Dkt. 1, ¶ 1. VanGesen is a white man who
resides in Kitsap County and who is employed by the Kitsap
County Sheriffs Department as a deputy sheriff. Id.
¶ 2; Dkt. 8, ¶ 2.
alleges that just before 7 p.m. on September 13, 2015, he was
driving northbound on California Avenue Southeast in Port
Orchard, Washington on the way to visit a friend. Dkt 1,
¶¶ 9-11, 40. VanGesen, driving an unmarked Sheriffs
Office vehicle, passed Taylor going southbound. Id.
¶¶ 9-12. VanGesen looked directly at Taylor as the
two cars passed each other. Id.
police report, VanGesen alleged that as he passed Taylor, he
observed that the passenger side taillight on Taylor's
vehicle was broken and “white light was coming through
the lens.” Dkt. 20 at 8; Dkt. 1, ¶ 20. Taylor
alleges that while in fact a small piece was missing from the
taillight cover, VanGesen could not have observed this as his
vehicle passed Taylor's because: (1) the missing piece
was sufficiently small that it was only visible from a
distance of 20 feet, (2) the cars passed each other
travelling approximately 30 to 35 mph such that one second
after they passed they would have been 88 feet apart, and (3)
Taylor did nothing to activate the taillight as VanGesen
passed him (such as brake or signal a turn). Dkt. 1,
made a u-turn to follow Taylor. Id. ¶ 33.
Taylor turned right from California Avenue Southeast onto
East Van Buren Street and parked in the driveway at a
friend's home. Id. ¶¶ 36-40. VanGesen
stopped behind Taylor's parked car, turned on his
emergency lights, and parked his car so that it blocked the
driveway. Id. ¶¶ 41-46.
then approached the driver's side of Taylor's
vehicle. Id. ¶ 47. While VanGesen's report
stated that Taylor “dropped his head, ” Taylor
alleges this did not occur. Dkt. 20 at 8; Dkt. 1,
¶¶ 48-49. VanGesen told Taylor he had stopped him
because his brake light was broken. Dkt. 1, ¶ 52. At
some point, Taylor told VanGesen “we both know this
isn't about the brake light, ” to which VanGesen
did not respond. Id. ¶¶ 53-54.
asked Taylor “if he lived there.” Id.
¶ 55. When Taylor responded that he did not, VanGesen
asked him where he lived. Id. ¶ 55-58. Taylor
did not reply because VanGesen was holding Taylor's
driver's license which listed his address. Id.
VanGesen asked Taylor how long he had been at the address on
the license, to which Taylor did not respond, and asked what
brought Taylor to Port Orchard as he did not live there.
Id. ¶¶ 58-59. Taylor replied that he was
visiting someone but did not reply when VanGesen asked him if
that person lived in Unit A or Unit B. Id.
then ordered Taylor to get out of the car, walk to the back
of the car, and take his hands out of his pockets.
Id. ¶¶ 61-66. Taylor alleges that he
complied with these instructions. Id. VanGesen
instructed Taylor to put his hands on the trunk of the car,
step back from the vehicle, and spread his feet to be patted
down. Id. ¶¶ 67. While VanGesen's
report claims that Taylor refused to spread his feet or move
his hands along the trunk to be further from his waist,
Taylor alleges he complied with VanGesen's request. Dkt.
20 at 8-9, Dkt. 1, ¶¶ 68-70. When VanGesen used his
body to force Taylor closer to the trunk of the car, Taylor
told VanGesen that his use of force was unwarranted. Dkt. 1,
¶¶ 72. VanGesen then radioed for a second unit.
Id. ¶ 72.
alleges that VanGesen next shoved Taylor in the chest and put
his hand on his gun, to which Taylor “again protested
that any use of force was unnecessary.” Id.
¶¶ 74-75. Taylor's friend, who had been
observing the interaction from her home, called 911 to report
that a law enforcement officer was yelling at her friend, was
out of control, and asked the operator to “send someone
quick before the situation got out of hand.”
Id. ¶¶ 76-77.
Taylor's friend came outside and tried to ask VanGesen to
leave Taylor alone, but VanGesen instructed her to go back
inside. Id. ¶ 80. She complied and began
filming the interaction through the front window, which
VanGesen observed. Id. ¶¶ 81-83. When
Kitsap County deputy sheriff Fred Breed (“Breed”)
arrived on the scene, VanGesen arrested Taylor for
obstructing an officer, handcuffed Taylor with Breed's
assistance, and directed that Taylor be transported to jail.
Id. ¶¶ 84-86.
then interviewed Taylor's friend in her home, who told
Breed that Taylor was coming over for dinner. Id.
¶¶ 88-89. When asked, Taylor's friend told
Breed that Taylor did not use drugs or have any mental
disorders. Id. ¶¶ 90-93. Breed asked the
friend to show him the video she had taken of VanGesen and
Taylor's interaction and watched part of it. Id.
searched Taylor's car and took photographs or directed
other officers to take photographs. Id. ¶ 102.
Taylor alleges that this was the first time VanGesen
discovered that the taillight cover had a small piece
missing. Id. VanGesen issued Taylor a citation for
operating a motor vehicle with a ...