United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND
DENYING AS MOOT MOTION FOR CONTINUANCE
L. Robart United States District Judge.
the court are two motions: (1) Defendant City of
Seattle's (“the City”) motion for summary
judgment (MSJ (Dkt. # 46)); and (2) Plaintiff Brendan
Dunn's motion for a continuance of the trial date, which
was presented orally at the October 30, 2019, oral argument
on the City's motion for summary judgment (see
10/30/19 Hearing (Dkt. # 62)). The court has considered the
motions, the City's submissions in support of the motion
for summary judgment, the argument of the parties, the
relevant portion of the record, and the applicable law. Being
fully advised, the court GRANTS the City's motion for
summary judgment and DENIES as moot Mr. Dunn's motion for
The Officer Safety Alert
case revolves around a police officer safety alert that was
first placed on Mr. Dunn in 2006. On October 5, 2006, Mr.
Dunn was arrested at an anti-war rally in Seattle,
Washington, that he attended with two friends. (See
Am. Compl. (Dkt. # 3) ¶ 3.1; Esler Decl. (Dkt. # 51)
¶ 22, Ex. 21 at 3 (noting that the “Date of
Incident” for Mr. Dunn's arrest was
10/5/2006).) After his arrest, an officer with the
Seattle Police Department (“SPD”) placed an
“officer safety advisory” on Mr. Dunn. (Am.
Compl. ¶ 3.7; Answer (Dkt. # 24) ¶ 3.7.) The alert
said that Mr. Dunn was “potentially dangerous to law
enforcement officers” and had been “involved in
an assault against a police officer.” (Am. Compl.
¶ 3.7.) It also directed officers not to “arrest
or detain [Mr. Dunn] based” on the alert.
(Id.) Mr. Dunn maintains that none of the
information in the alert was true and alleges that “it
was designed to create a threat to [him] and result in future
harassment.” (Id. ¶ 3.8.)
originally entered this alert into a Washington State Patrol
database, the Washington Crime Information Center
(“WACIC”), after Mr. Dunn's arrest in October
2006. (See Am. Compl. ¶ 3.7; Bojang-Jackson
Decl. (Dkt. # 48) ¶¶ 2, 5; Noble Decl. (Dkt. # 47)
¶ 17.) SPD renewed the alert in the WACIC in November
2009. (See Am. Compl. ¶ 3.11; Noble Decl.
¶¶ 16-17.) The WACIC database “links”
with a Federal Bureau of Investigation database, the National
Crime Information Center (“NCIC”).
(Bojang-Jackson Decl. ¶ 3.) The NCIC is a
“national computerized index of criminal justice
information” that is populated by and made available to
“federal, state, local, and foreign justice agencies,
as well as authorized courts.” (Id.; see
also Noble Decl. ¶ 11.) As a result of the link
between the WACIC and the NCIC, information entered into the
WACIC “may be automatically entered in NCIC” and,
conversely, “a record removed from WACIC will also then
be removed from NCIC.” (Bojang-Jackson Decl. ¶ 3.)
It is not clear when the WACIC was first linked to the NCIC,
but an SPD employee responsible for managing SPD's
entries into the WACIC states that the WACIC and the NCIC
were linked “[a]s of at least 2016, and indeed much
earlier.” (See Bojang-Jackson Decl.
¶¶ 2-3.) Thus, at some point in time prior to 2016,
the alert on Mr. Dunn that SPD entered into the WACIC was
made available nationally on the NCIC. (See Id. at
¶¶ 3, 5; Noble Decl. ¶¶ 12-17.)
2008, Mr. Dunn sued the City and several SPD officers for
violating his First, Fourth, Fifth, Eighth, and Fourteenth
Amendment rights. (See Esler Decl. ¶ 9, Ex. 8,
¶ 1.1.) He alleged that he was falsely arrested, falsely
imprisoned, subjected to excessive force, and maliciously
prosecuted for what happened at the protest. (See
id.) The parties settled that case at the end of 2009.
(See Esler Decl. ¶ 2, Ex. 1 (“Settlement
Agreement”); id. ¶ 3, Ex. 2.) As part of
the settlement, the City agreed to remove the alert that SPD
placed on Mr. Dunn. (See Settlement Agreement at 2.)
The Settlement Agreement required the City to remove the
alert within “15 federal court days.” (See
parties agree that the City failed to timely remove the
alert. Mr. Dunn alleges that the City failed to remove the
safety alert until 2016, a point that the City concedes.
(See Am. Compl. ¶ 3.12; Answer ¶ 3.12; MSJ
at 1 (“The City admits that it failed to remove the
Alert [by the end of 2009], and instead did so in February
Post-Settlement Law Enforcement Encounters
the settlement agreement required the City to remove the
officer safety alert on Mr. Dunn by the end of 2009
(see Settlement Agreement at 2), Mr. Dunn continued
to have contentious encounters with police officials after
that time. In “late spring of 2010” an officer
stopped Mr. Dunn in Olympia, Washington for making an
incorrect turn. (Dunn Dep. (Dkt. # 59) at 14:14-15:11.) Mr.
Dunn stated that the officer asked if he was “ever in a
riot in Seattle” and indicated to Mr. Dunn that
“[the officer had] read something on his computer which
suggested that [there was a police alert out on Mr.
Dunn].” (See Id. at 15:25-16:16.)
January 2011, officers from the New York Police Department
(“NYPD”) stopped Mr. Dunn in Brooklyn, New York
by. (See Id. at 25:6-17, 30:20-31:9; Esler Decl.
¶ 4, Ex. 3 at 4-5 (stating that Mr. Dunn was stopped in
Brooklyn, New York in January 2011).) Mr. Dunn claimed that
the NYPD officers became much more aggressive and
confrontational after they ran his driver's license.
(Dunn Dep. at 26:13-27:4; 28:1-10; Esler Decl., Ex. 3 at 5.)
Although the NYPD officers did not issue a citation to Mr.
Dunn, Mr. Dunn contacted his counsel to discuss the NYPD
officers' conduct and also spoke with his cousin and his
roommate about the stop. (Dunn Dep. at 28:17-24, 30:1-6,
13, 2013, the Oneida County Sheriff detained Mr. Dunn in New
York for “holding a banner outside Oneida County
Jail.” (Esler Decl. ¶ 4, Ex. 3 at 4; see
also Dunn Dep. at 35:7-23.) Mr. Dunn alleges that the
sheriff “appeared to be pretty concerned and aggressive
after running [his] information.” (Esler Decl. ¶
4, Ex. 3 at 4; see also Dunn Dep. at 36:20-37:12,
39:16-40:3.) On July 30, 2014, an officer stopped Mr. Dunn
for speeding in Rotterdam, New York. (See Id. at
47:11-48:8; Esler Decl. ¶ 20, Ex. 19.) Mr. Dunn
testified that the officer “became much more
aggressive” after he ran Mr. Dunn's driver's
license. (See Dunn Dep. at 47:11-48:25.)
each of these post-settlement incidents, Mr. Dunn's
complaint alleges that he did not realize that the City
failed to remove the alert until “he began repeatedly
getting pulled over in 2015-2016 without cause in [u]pstate
New York.” (Id. ¶ 3.13.) But Mr.
Dunn's deposition testimony is inconsistent with this
allegation. Mr. Dunn initially testified that he believed
that some of these traffic stops escalated because the
officer safety alert had not been removed. (See Dunn
Dep. at 14:20-15:7; 15:25-16:16; 28:5-10, 28:25-29:9.) For
example, in response to questions about the 2010 stop in
Olympia, Mr. Dunn testified as follows:
Q: But that officer in the spring of 2010 told you that there
was still an alert out on you?
A: The officer asked me if I was in a riot in Seattle.
Q: And you believed he was asking that because there was
still an alert out?
A: He made it very aware to me that he read something on his
computer which suggested that.
Q: And do you remember what he said that suggested that? Was
it just the riot statement?
A: I said I was falsely charged, and the charges were
dropped, and I was suing the Seattle Police Department.
Q: But he made it pretty clear, at least you understood at
that time, that there was a police alert out on you at that
(Id. at 15:25-16:16.) When asked about the 2011 stop
in Brooklyn, Mr. Dunn doubled-down on his answer that he
suspected at the time that the City had not removed the
Q: So it's fair to say that the only reason you could
deduce that [the NYPD officers] would be acting that way
[during the January 2011 stop in Brooklyn] would be that when
they went back to the car, they saw an officer safety alert?
A: That would be safe to say. Their demeanor rapidly changed
after they ran my driver's license.
Q: And at least at that time you were pretty certain that the
treatment you received from the police [during the January
2011 stop in Brooklyn] ...