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Young v. Pena

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

December 4, 2019

DANIEL AND RICHARD YOUNG, et al., Plaintiffs,
v.
PATRICK PENA, et al., Defendants.

          AMENDED REPORT AND RECOMMENDATION

          MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION AND SUMMARY CONCLUSION

         This matter comes before the Court on the unopposed second motion for summary judgment brought by the only two remaining defendants in this action, Bellingham Police Department Officers Travis Hauri and Sergeant David Johnson (collectively, “Defendants”). (Dkt. # 61 (Defendants' Second Motion for Summary Judgment (“Mot. Summ. J.”)).) The Court previously granted Defendants' prior motion for summary judgment and dismissed all of Plaintiffs Richard Young and Katherine Wren Katzenjammer's claims, [1] with the exception of Ms. Katzenjammer's Fourth Amendment privacy claim and a related claim for intentional infliction of emotional distress. (Dkt. # 53 (Judge Robart's 8/6/19 Order Adopting In Part and Rejecting in Part Report & Recommendation).) These two remaining claims relate solely to photographs taken of Plaintiff's injuries at the hospital after the use of force incident between Defendants and Plaintiff on the evening of June 2, 2016, and Plaintiff's allegation of emotional harm stemming from the taking of the photographs without her knowledge or consent.

         Defendants filed a second motion for summary judgment on October 9, 2019, once again asking the Court to dismiss Plaintiff's Fourth Amendment privacy and outrage claims because the record now contains photographs showing that Ms. Katzenjammer was not fully naked when she was photographed, but was wearing underwear, contrary to Plaintiff's earlier representation in her declaration. (Mot. Summ. J.)[2] Although Plaintiff failed to file a brief in opposition to Defendants' motion, counsel for both parties participated in oral argument on November 25, 2019. (Dkt. # 75.) For the reasons set forth below, the Court recommends that Defendants' second motion for summary judgment (dkt. # 61) be DENIED, and this case proceed to trial.

         II. BACKGROUND

         The remaining claims in this action, following the Court's prior grant of partial summary judgment to Defendants, relate solely to the actions of Officer Travis Hauri and his superior, Sgt. David Johnson, at the hospital on the evening of June 2, 2016. As Plaintiff has not filed any additional declarations or other evidence opposing the instant motion for summary judgment, and was unconscious during the events at the hospital, the evidence in the record primarily consists of Officer Hauri and Sgt. Johnson's first and second declarations and supporting exhibits, including portions of Ms. Katzenjammer's deposition transcript and the photographs Officer Hauri took of an unconscious Ms. Katzenjammer in the hospital.[3] The Court also relies on Plaintiff's declaration submitted in opposition to Defendants' first motion for summary judgment, and construes the facts in Plaintiff's favor as the non-moving party. To the extent either party's version of events is contradicted by the photographs, however, the Court must accept the facts as depicted in the photographic evidence.[4]

         On June 2, 2016, Ms. Katzenjammer was involved in an incident with Bellingham Police Officers and others at her father's apartment on Maplewood Avenue. (Dkt. # 12 (11/9/2018 Nicolas Sturlaugson Declaration (“Sturlaugson Decl.”)) at ¶¶ 3-5; Dkt. # 13 (11/18/2018 Patrick Peña Declaration (“Peña Decl.”)) at ¶¶ 3-5.) She was tased twice by officers after she failed to comply with their directives. (Sturlaugson Decl. at ¶¶ 9-11; Peña Decl. at ¶¶ 8-11.) Although Ms. Katzenjammer's father, Richard Young, was arrested for assaulting an officer and booked into the Whatcom County Jail, Plaintiff was never arrested or booked into jail. (Sturlaugson Decl. at ¶ 17; Peña Decl. at ¶ 19.) The specific facts surrounding Defendants' use of force against Plaintiff are well-documented in the record, and need not be repeated here.

         After Ms. Katzenjammer was tased, Sgt. Johnson called medics to the scene because he believed Ms. Katzenjammer was experiencing excited delirium. (First Hauri Decl. at ¶¶ 9-10; Second Johnson Decl. at ¶ 5.) Plaintiff was sedated by the medics and taken to St. Joseph's Hospital for treatment. (First Hauri Decl. at ¶ 11.)[5]

         After their investigative duties on Maplewood Avenue were completed, Sgt. Johnson and Officer Hauri went to the Emergency Department at St. Joseph Hospital to speak with Ms. Katzenjammer about the incident. (First Johnson Decl. at ¶ 11.) Officer Hauri asserts that his purpose in going to the hospital was to “possibly discuss the incident if he was willing and to document via photograph any physical injuries he suffered from the incident.” (Second Hauri Decl. at ¶ 7.) Sgt. Johnson similarly asserts that his purpose in going to the hospital was to complete the use of force investigation, which would have included speaking with Ms. Katzenjammer about the incident and documenting via photography any physical injuries she suffered from the incident. (Second Johnson Decl. at ¶ 7.)

         Throughout Sgt. Johnson and Officer Hauri's interactions with Ms. Katzenjammer, Ms. Katzenjammer appeared to them to be male and had not yet begun the physical process of affirming her identity as a female. (Second Johnson Decl. at ¶ 4; Second Hauri Decl. at ¶ 4; Katzenjammer Dep. at 43:1-25.) Neither officer was advised that she identified as a woman, or observed evidence of that nature. (Id.) When Sgt. Johnson spoke with Ms. Katzenjammer's father, Richard Young, outside the apartment building following his arrest, he referred to Ms. Katzenjammer as “he, ” “him, ” and his “son.” (Second Johnson Decl. at ¶ 4.)

         When Sgt. Johnson and Officer Hauri arrived at the hospital, they were allowed by hospital staff to enter the room where Ms. Katzenjammer was located. (Id. at ¶ 9; Second Hauri Decl. at ¶ 9.) Both officers assert in their declarations that in their experience as police officers in Bellingham and elsewhere, “it is common for officers to contact suspects and others who were involved in a criminal incident or an accident in the emergency room. Further, as was the case here, hospital staff has always allowed officers to contact subjects in the emergency room and elsewhere in the hospital when it is medically safe to do so.” (Second Johnson Decl. at ¶ 10; Second Hauri Decl. at ¶ 10.)

         In Ms. Katzenjammer's hospital room, Sgt. Johnson and Officer Hauri found Ms. Katzenjammer unconscious in bed, wearing a hospital gown and underwear. (Second Johnson Decl. at ¶ 11; Second Hauri Decl. at ¶ 11.) Ms. Katzenjammer's genitalia were not exposed. (Id.; Katzenjammer Dep. at 41:5-12.) Sgt. Johnson and Officer Hauri assert that they did not see Ms. Katzenjammer's genitalia at any point during the contact, nor did they photograph her genitalia or bare buttocks. (Second Johnson Decl. at ¶ 11; Second Hauri Decl. at ¶ 11.) The officers' statements are contrary to Ms. Katzenjammer's assertion in her declaration, filed in opposition to Defendants' first motion for summary judgment, that “[w]hile I was in the hospital and unconscious[], the Bellingham Police Department came and manipulated my naked body in order to take pictures.” (Katzenjammer Decl. at ¶ 106.) However, Sgt. Johnson and Officer Hauri's descriptions of Ms. Katzenjammer's state of dress in her hospital bed are consistent with the photographs of Ms. Katzenjammer taken by Officer Hauri, which show that her entire torso (including her chest and upper back), underwear-clad groin, and right thigh were exposed at some point during their visit. (Second Hauri Decl., Ex. A; Second Johnson Decl. at ¶ 13; Second Hauri Decl. at ¶ 13.)[6]

         Specifically, in the pictures of Ms. Katzenjammer's bare chest, stomach, underwear-clad groin, and thigh, which include close-up shots of her injuries from the taser probes, she is laying on her left side with her hospital gown lifted up to right above her nipples, but still covering her shoulders. (Id. at 3-5.) The hospital bedsheets have apparently also been pulled down to her knees to reveal her thighs. Similarly, in the pictures documenting her taser probe injury to her right thigh, she appears to be in substantially the same position with the bedsheets pulled down to her knees. (Id. at 6-8.) In the two final photographs documenting a bruise on the back of her right shoulder, Ms. Katzenjammer's hospital gown has been pulled down by someone, leaving her upper back and entire right shoulder bare. (Id. at 9-10.) In the final photograph, a gloved hand is visible, holding up a placard with a ruler attached next to Plaintiff's shoulder, apparently to measure the size of Ms. Katzenjammer's bruise. (Id. at 10.) The placard indicates that the photograph was taken by Officer Hauri. (Id.)

         Both officers assert that, to the best of their recollection, they had a brief conversation with a nurse about the location of Ms. Katzenjammer's injuries. (Second Johnson Decl. at ¶ 12; Second Hauri Decl. at ¶ 12.) Officer Hauri “then photographed the locations on Mr. Young's body that the hospital staff identified.” (Id.) Officer Hauri also photographed a bruise on Ms. Katzenjammer's shoulder that Officer Hauri believed to have been caused by the force used to pin her to the ground when she was resisting arrest. (Second Hauri Decl. at ¶ 12.) The officers assert that they “did not physically examine Mr. Young's body.” (Second Johnson Decl. at ¶ 17; Second Hauri Decl. at ¶ 17.) Officer Hauri asserts that he “only looked at and photographed the areas that were believed to be the taser probe marks and a bruise on his shoulder.” (Second Hauri Decl. at ¶ 17.) Sgt. Johnson's Longarm Case Report regarding the hospital visit similarly provides as follows:

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.

(Dkt. # 18, Ex. A at 3.)

         Sgt. Johnson and Officer Hauri each assert that “[t]o the best of my memory and after looking at the photographs, which show Mr. Young laying in the same position in each photograph, I can say that I did not move or touch Mr. Young's body at any point.” (Second Johnson Decl. at ¶ 14; Second Hauri Decl. at ¶ 14.)

         Although the pictures clearly show that Ms. Katzenjammer's hospital gown (and likely bedsheets) were manipulated to reveal her bare torso, shoulder, and thigh, both officers assert that they do not recall moving or manipulating the hospital gown that Ms. Katzenjammer was wearing. (Second Johnson Decl. at ¶ 16; Second Hauri Decl. at ¶ 16.) Both officers assert that if Ms. Katzenjammer's gown “was moved or manipulated in some way, that would have been done by or with the supervision of the hospital staff on scene.” (Id.)

         After taking the photographs, Sgt. Johnson and Officer Hauri left the hospital. (Id. at ¶ 18.) Both officers assert that their usual practice is to not touch or move a hospitalized subject, or their clothing, and “if a hospitalized subject's body or clothing is manipulated while law enforcement is present, it would be done by hospital staff or under the supervision and assistance of hospital staff.” (Id. at ¶ 15.)[7]

         Sgt. Johnson asserts that “as a best practice, the officers at the Bellingham Police Department try to document injuries after a use of force incident. The purpose of the photographs in this case was to document any injuries from the use of force, not to gather more evidence to support the criminal charges.” (Second Johnson Decl. at ¶ 7.) Sgt. Johnson asserts that it is “best practice to have a complete investigation, which includes documenting potential injuries and injuries after a use of force incident” to provide “the involved subject, the City, the Police Chief, and the public [with] accurate information about the incident and any injuries.” (Id. at ¶ 8.) He further asserts that “it would be in the best interest of all parties to document the injury, regardless of whether those photographs support a claim of unlawful force or not, so that all parties and the public had accurate information.” (Id.)

         Similarly, Defendants submitted a declaration from a police sergeant with the City of Bellevue Police Department, Joseph Engman, who is unconnected with this incident but has substantial experience training new officers with regard to use of force. (Dkt. # 63 (10/1/19 Declaration of Joseph Engman (“Engman Decl.”)).) Officer Engman opined that “a complete and comprehensive Use of Force investigation where all the evidence is gathered and preserved combined with a transparent review process is essential . . . [and] [i]t is extremely important that this evidence be collected as soon as possible in order to clearly and accurately represent what occurred during the force incident.” (Engman Decl. at ¶ 28.) He indicated that it is “a common occurrence and standard practice for officers to continue investigations at medical facilities in order to contact and follow up with arrested or detained subjects who are receiving additional medical treatment for a variety of reasons.” (Id. at ¶ 29.) Mr. Engman opined, “in this case there was still probable cause to arrest Mr. Young and if he were to be medically cleared he could be booked into jail on the previously established criminal charges.” (Id.) Finally, Mr. Engman indicated that in most situations it is standard procedure to photograph injuries to suspects caused by police personnel, although “[i]n most situations this would be with the voluntary consent of the subject who was injured.” (Id. at ¶ 31.)

         During her deposition, Ms. Katzenjammer testified that she had been advised by her counsel that pictures of her had been taken by Defendants while she was unconscious, but she did not see the pictures until the day of her deposition on September 25, 2019, three years after the incident. (Katzenjammer Dep. at 35:10-36:24.)

         III. PROCEDURAL BACKGROUND

         As noted above, the only remaining claims in this case following the Court's ruling on Defendants' first motion for summary judgment are Ms. Katzenjammer's claims that Sgt. Johnson and Officer Hauri's conduct in photographing her unconscious body at the hospital violated her Fourth Amendment rights, as well as her related state law claim for intentional infliction of emotional distress stemming from this alleged invasion of her bodily privacy. (Dkt. # 53 (Judge Robart's Order).)

         On October 9, 2019, shortly before the dispositive motion deadline, Defendants filed the instant second motion for summary judgment which included, for the first time, the photographs taken of Ms. Katzenjammer by Officer Hauri at the hospital and further details about Sgt. Johnson and Officer Hauri's actions at the hospital. (Mot. Summ. J.) Following a telephonic status conference with counsel for both parties, the Court granted Plaintiff an extension of time to file any opposition. (Dkt. # 72.) Although Plaintiff failed to ...


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