at 150. Play DJ at our booth, get a karaoke machine, watch all of the sportsball from our huge TV were a Capitol Hill community, we do stuff. 2006), where the Plaintiff was also a suicidal man with a rifle who was shot in the face by the Defendant officer, after driving through town and firing his rifle near responding police officers. Notifications can be turned off anytime in the browser settings. Nevertheless, the non-moving party "may not rest upon the mere allegations or denials of his pleading, butmust set forth specific facts showing that there is a genuine issue for trial." On June 9, 2010, the Chelan County Prosecuting Attorney filed a criminal Information against Plaintiff, which stated: Marshall attended the Reserve Police Officer Academy through Tacoma Community College from March 2000 to September 2000. Peters opines that there were reasonable alternatives short of the use of lethal force available to Marshall, while the defense expert opines there were not. Having determined that Plaintiff has alleged a Fourth Amendment violation, the next question under the second Saucier prong is whether Defendant Marshall is nonetheless entitled to qualified immunity. Friends and family of road rage shooting victim struggle to find closure, Man killed in police shooting after allegedly holding knife to infant, Download KREM 2's Roku and Amazon Fire apps to watch live newscasts and video on demand, Spokane police make arrest in series of drive-by shootings, 'It's really frustrating': Spokane shootings prompt call to action from city leaders, Spokane parks committee considers naming playground after Candy Rogers. "[E]ven where some force is justified, the amount actually used may be excessive." Winds SW at 5 to 10 mph.. Clear skies. In their Reply, Defendants quote from Gardner's own book and contend he violated "one of his own cardinal rules of blood stain analysis": the presence of spatter resulting from gunshot for head wounds cannot be predicted. Deorle, 272 F.3d at 1279-80. All the officers involved are on administrative leave. That is, even assuming there was a constitutional violation, Marshall contends he is still entitled to qualified immunity because "[i]t cannot be said that 'every reasonable' police officer in Marshall's position would have understood that using deadly force on plaintiff was a violation of plaintiff's constitutional rights.". To prevail on a municipal liability claim, a plaintiff must show. When parties submit cross-motions for summary judgment, as here, the Court must consider each motion on its own merits. (ECF No. Defendants' Motion for Summary Judgment seeks judgment as a matter of law on all claims. They were not investigating a crime. In its Motion for Summary Judgment, the City contended this claim should be dismissed under the discretionary governmental immunity and public policy doctrines, and for lack of evidence of a failure to train and proximate cause. Both parties agree that the use of excessive or deadly force under 1983 invokes the Fourth Amendment's guarantee of the right to be free from unreasonable seizures. Id. 
Gardner performed a blood stain analysis using what he referred to as "standard Event Analysis methodology." Marshall and Martin had a brief discussion regarding the location of Kirby's residence and her duties at the intersection. It is undisputed that Mr. Kirby stepped out onto his front porch, and that when he exited the house, he was carrying a shotgun in his hands. 78, Ex. 9, Track 7). Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir.2003) (internal citation omitted). 10, 2013). According to Martin, she observed that Marshall was not moving from his seated position inside his car with his head bent down, so she low crawled over to Marshall's driver's side door (30-40 feet away), and alerted him by banging on his window, telling him to get out of the car and that Kirby was pointing a gun at them. See generally, A.D. v. Cal. at 392); see also Pembaur v. Cincinnati, 475 U.S. 469, 483(1986) (opinion of Brennan, J.) His declaration states that after he stepped out onto his front porch holding a shotgun in his hands, an officer began speaking with him from behind a large tree in his yard. Plaintiff and witnesses say he was not. As part of his Alford plea, Kirby admitted: "I held a gun in my hands while standing on my front porch. Whether the law was clearly established is an objective standard. However, the nature of expert witness testimony is specific to their expertise. (ECF No. Highway Patrol, --- F.3d ----, 2013 WL 1319453 (9th Cir. However, viewing the evidence in the light most favorable to Plaintiff, as the court must at this stage, there is an undeniable question of fact on whether there was an immediate threat of harm. In evaluating a Fourth Amendment claim of excessive force, courts ask "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them." (ECF No. Mental illness "is a factor that must be considered in determining, under Graham, the reasonableness of the force employed." In Valle v. City of Houston, the Plaintiffs alleged the City was liable for failing to adequately train its patrol supervisors in crisis intervention team (CIT) tactics for working with the CIT trained officers. (ECF No. The shooting took place near Living Hope Community Church last week. Fed.R.Evid. trail rock mountain lake wenatchee "; "Deadly force may only be used under the following circumstances: A. Det. Id. At one point a gun was drawn and fired. You have permission to edit this article. Get up-to-the-minute news sent straight to your device. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). According to the sheriffs office, the subject was armed with a knife when officers made contact. When WPD arrived at the church and confronted the man, things escalated resulting in an officer being injured and the man being fatally shot by the officers. " Id. There is no dispute that Marshall intentionally used deadly force when he aimed and shot Kirby from over 70 yards away. It is undisputed that there was no warning provided by Marshall to Kirby, nor did Marshall warn fellow officers of his intent. 9, Track 11 (00:51)). At 6:49 p.m., Chance attempted several calls to Kirby's cell phone with negative results. Albright v. Oliver, 510 U.S. 266, 271 (1994). At 6:43 p.m. The use of a firearm as deadly force is governed specifically by Garner and its progeny When a suspect is not attempting to escape, the Ninth Circuit has emphasized that an officer may not fire "unless, at a minimum, the suspect presents an immediate threat to the officer or others." Suspect down" was radioed at 18:53:15, just 20 seconds after Martin's earlier radio traffic. 90, Ex. A government official's conduct "violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" Ledbetter opines that, at best, the blood stain evidence is inconclusive as to all hypotheses. The court held that Plaintiffs could not demonstrate that the shooting of their mentally ill son was a "highly predictable consequence" of sending the non-CIT officers in response to their call for help. 2013) ("The defendants argue that McCrary's, District courts have held that lack of any training or policies on how to handle mentally unstable, Full title:MICHAEL KIRBY, Plaintiff, v. CITY OF EAST WENATCHEE, and OFFICER JAMES, Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON, denying summary judgment on Monell claim as there was a complete absence of any policy or training in handling with persons in a mental health crisis. Further, although officers are not required to use the absolute minimum force necessary to subdue a suspect, before using force they must consider "the availability of alternative methods of capturing or subduing a suspect." Defendants have also supplied the report of their own blood stain expert, Det. Jerry Moberg and James Baker represented Defendants. Material facts are those which may affect the outcome of the case. Interestingly, Plaintiff's supplemental brief states that his negligence claim against the City is not based upon any inaction by the City (or nonfeasance) and the brief only describes a claim based upon respondeat superior (the "failure to act with reasonable care during their interactions with Michael Kirby. However, the parties contest the reasonableness of Marshall's actions, with Defendants averring his use of deadly force was reasonable and Plaintiff claiming it was unreasonable. 2001); see also Glenn v. Washington Cty., 673 F.3d 864, 874 (9th Cir. He claims he was complying with instructions to put his weapon down and was responding to the Wenatchee officers trained in resolving such situations. I did not intend to harm anyone." The officers involved in the incident are Officer Cory Fuller, with 13 years of service in law enforcement and four at WPD; Officer Brian Hewitt with eight years of experience in law enforcement and one at WPD; and Officer Aly Mustain with four years of law enforcement service and one at WPD. Courts employ a two-step analysis to determine whether a government official is protected by qualified immunity. Deorle, 272 F.3d at 1285. Here, according to Plaintiff, all of these factors were present. The position of the gun and Plaintiff's conduct with the gun is in dispute. White from East Wenatchee. Witnesses located at the Preciado residence directly across the street from Kirby's residence also provide varying accounts. North Central Washington Special Investigations Unit. 2001). Plaintiff Kirby's evidence to establish his failure-to-train theory is narrow. The nature of Kirby's conviction and these facts distinguish this case from the single provocative act or single transaction cases applying Heck. 397, 735 P.2d 686 (1987)(emphasis in original); Robb v. City of Seattle, 295 P.3d 212 (2013). Aida Preciado watched the incident from an upstairs living room window, which has a direct view of the Kirby's front porch. From July 2003-April 2007, he worked for the Clyde Hill, Washington Police Department. This inquiry "requires a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. Wilson went to a perimeter position behind a vehicle, directly across the street from Kirby's residence, and was armed with a bean bag shotgun. When reasonably necessary to protect the member or others from what he or she reasonably believes is an imminent threat of death or serious physical injury.". 1983, police officers, as representatives of the government, are liable for the deprivation of rights guaranteed by the Constitution. Police continue to investigate the case, and it is expected it will take several weeks before the case can be forwarded to the Chelan County Prosecutor. No more vacant rooftops and lifeless lounges not here in Capitol Hill. "A less stringent standard of fault for a failure-to-train claim 'would result in de facto respondeat superior liability on municipalities.' " Id. See? 78, Ex. The character of the offense is often an important consideration. In this case, it will be for the jury to determine the circumstances thereafter facing Marshall after Martin spoke to him, after he exited his own vehicle, and after he decided to obtain Kirby in his sight instead of maintaining a position of cover. In its "gate-keeping" role, a trial court must evaluate the relevance and reliability of all expert testimony, whether the testimony offered is "scientific" or not. Here, as noted by the City, Plaintiff lacks any evidence of other prior incidents of excessive force involving the mentally ill, and cannot establish an ongoing pattern of misconduct. Come inside to our Social Lounge where the Seattle Freeze is just a myth and youll actually want to hang. (quoting City of Canton, 489 U .S. The names of the involved officers in the shooting and the man who died have not been released at this time. Ms. Preciado states in her declaration she saw Kirby on the front of the house with a gun pointed "straight up to the sky" and that she never saw Kirby point or aim the gun at anyone. The North Central Washington Special Investigations Unit (NCW SIU) continues to investigate the officer-involved shooting in Wenatchee. According to a press release, officers arrived on the scene and confronted White, who was fatally shot by officers. (ECF No. wenatcheeworld In addressing the scope of Heck, the Ninth Circuit in Smith v City of Hemet recognized that an allegation of excessive force by a police officer would not be barred by Heck if it were distinct temporally or spatially from the factual basis for the person's conviction. As to the immediacy of the threat, there is a material issue of fact as to whether Plaintiff was or was not displaying the gun in a threatening manner and whether he was being compliant in putting the weapon down or whether he was "barrel to barrel" with Marshall threatening the safety of those in the area. Gardner then analyzed whether the blood stains on the gun and the shirts aligned with any of his "predictions." Next, the court must determine whether the constitutional right at issue was clearly established. The law regarding excessive force for a law enforcement officer was clearly established at the time of this incident by Graham and its progeny in the Ninth Circuit. If it is possible for Kirby to have assaulted Martin and for Marshall's shooting of Kirby to have been objectively unreasonable, then Heck does not bar Kirby's claim. Plaintiff's account suggests he was not aiming at or threatening anyone and that Marshall rose up to expose himself and use lethal force without consideration of any alternative. Nevertheless, unlike in Valle, the facts of this case involve a complete absence of any policy and the complete absence of any training in dealing with persons in a mental health crisis. 14 at 175). However, Kirby asserts the officer convinced him that his "life was worth living" and instructed him to put down the shotgun. Id. The analysis involves three steps. Marshall's incident report indicates that upon arrival he exited his vehicle with his patrol rifle and maintained traffic control. Weve got kegerator space; weve got a retractable awning because (its the best kept secret) Seattle actually gets a lot of sun; weve got a mini-fridge to chill that ros; weve got BBQ grills, fire pits, and even Belgian heaters. In Kirby, the plaintiff provided data on the relative frequency with which the City's officers encountered mentally ill individuals, and a police practices expert who observed that law enforcement's response to mental ill people has become an issue of national concern. At 6:40 p.m. dispatch updated responding officers reports that Kirby was in possession of a revolver and a shotgun, that he was "HBD" (had been drinking), and on medications. Martin crouched low taking cover behind the engine of Marshall's car. "The city's 'policy of inaction' in light of notice that its program will cause constitutional violations 'is the functional equivalent of a decision by the city itself to violate the Constitution.' Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). On March 27, 2013, the court heard oral argument on the Motion for Summary Judgment. They were aware he had been drinking and was on medication. The fact that an expert's expertise and analysis is specific to discrete topics is the nature of scientific analysis, and is not grounds for exclusion. The following Order is intended to supplement and memorialize the oral rulings of the court. at 698 (emphasis added). WENATCHEE, WA - One man is dead and a Wenatchee Police Officer is injured after a shooting on Saturday morning, according to North Central Washington Special Investigations Unit. These cases left open the possibility, that the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under 1983 without proof of a pre-existing pattern of violations. 1350, 1360 (2011). Federal Rule of Evidence 702 provides as follows: In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the Supreme Court identified four non-exclusive factors that may be helpful to the court in assessing the relevance and reliability of expert testimony, including (1) whether a theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate and the existence and maintenance of standards controlling the theory or technique's operation; and (4) the extent to which a known technique or theory has gained general acceptance within a relevant scientific community. Id. Although the Supreme Court does "not require a case directly on point" to define the right at issue and the violation of that right, "existing precedent must have placed the statutory or constitutional question beyond debate." In addressing the parties' cross-motions for summary judgment, the court must draw all reasonable inferences in favor of the non-moving party. The use of deadly force by a police officer is a seizure. As the court has already concluded a question of fact exists as to whether the Plaintiff's constitutional rights were violated, the court focuses here on the deliberate indifference element, which requires a high degree of culpability on the part of the policymaker and is an onerous burden for a plaintiff. ("[M]unicipal liability under 1983 attaches whereand only wherea deliberate choice to follow a course of action is made from among various alternatives by [the relevant] officials."). Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. snohomish county I was distraught and confused. Wenatchee Police Officers Brian Chance and Ron Wilson responded to the call at 6:40 p.m., and requested additional personnel "for containment." Defendants rely upon Thomas Ovens (ECF No. 3]. If you have any information involving this shooting please contact, Douglas County Sheriffs Office Detective Ramon Bravo at (509) 888-6824. Fed.R.Civ.P. Defendants lastly argue that Gardner's opinion is nothing but conjecture and about mere possibilities. According to NCW SIC the investigation could take several weeks before it's handled over the Chelan County Prosecutor for review. The proponent has the burden of establishing that the pertinent admissibility requirements have been meet by a preponderance of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986). An Ithaca Model 37 12-gauge pump shotgun was seized from the scene. With five officers off-duty following police shootings May 7 and June 4, the Wenatchee Police Department says to expect longer response times to 911 calls. at 390 n. 10. See Newman v. San Joaquin Delta Community College Dist., 814 F.Supp.2d 967 (E.D.Cal. The Ninth Circuit has defined the warning required before using forceeven force that does not qualify as deadly forceas a "warning of the imminent use of such a significant degree of force." BEFORE THE COURT are Defendants' Motion for Summary Judgment (ECF No. The resolution of this question rests entirely on whose version of the story a fact-finder deems more credible. al- Kidd, 131 S.Ct. Defendants' initially contend Mr. Gardner's testimony should be excluded because he "based his opinions on blood stains on plaintiff's shotgun and clothes" and "completely ignored the testimony of neutral witness Officer Tracy Marshall of the Wenatchee Police Department and contemporaneous radio recordings seconds before and after the shooting." The Clerk of the Court shall enter this Order and provide copies to counsel. To establish an unconstitutional seizure, a plaintiff must prove that his person was seized and that seizure was unreasonable. The parties have engaged experts on police practices. Defendants contend that Kirby posed an immediate threat of serious injury "to Officer Marshall, Officer Martin and others including members of the public." Chain of custody evidence is a legal inquiry relevant to authenticity of the underlying subject matter. (ECF No. at 693. (ECF No. (ECF No. at 152. As an example, the Supreme Court in Canton referenced the obvious need to train police officers on the constitutional limitations on the use of deadly force, when the city provides the officers with firearms and knows the officers will be required to arrest fleeing felons. Plaintiff also has produced police practices experts, including T. Michael Nault, who makes the observation that law enforcement's response to people mental illness has become an issue of national concern. Martin exited her patrol car in a low position and at 18:52:55 radioed her observations: "he's at the door with the gun aiming at us." Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. A finding that Marshall's use of force was unreasonable would not imply that Plaintiff did not put Martin in fear of harm when she saw him with the gun. 
This case is necessarily fact-intensive and as such, difficult to resolve on summary judgment. The Valle plaintiffs claim failed because they did not present sufficient evidence of deliberate indifference showing there was an obvious need for more training. The plaintiff entered into an Alford plea to a simple assault on a different police officer admitting only that he had put that officer in fear and that he fired his rifle several times while near law enforcement officers. 2010). Defendants' Motion to Exclude Testimony of Blood Spatter Witness (ECF No. WENATCHEE, Wash. North Central Washington Special Investigation Unit (NCW SIU) released the name of the suspect killed in the police shooting in front of the Living Hope Church in Wenatchee. 2005). [ECF No. See generally, Katz v. United States, 389 U.S. 347 (1967). Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). North Central Washington investigators released the name of the suspect killed on May 7 after a confrontation with police. His Declarations states he "never saw Mike aim his gun at anyone.". The following are undisputed facts: On April 5, 2009 around 6:39 p.m., Plaintiff's former wife, Kim Kirby, called 911, reporting that Kirby was in the living room of a house on 723 Lynn Street in the city of Wenatchee, Washington with a "revolver" to his head and in possession of a shotgun. Local gas prices falling week after week, Eastern, Central Washington drought declaration lifted, We have a deal: Confluence Health inks first post-pandemic nursing contract; includes standard-setting pay, Venus Williams added as wild card for National Bank Open, Indiana's GOP-run Legislature heading into abortion debate, Showing war's toll, Ukraine first lady appeals for more arms, Officials: Starvation threat not over for Florida manatees, $5K reward for suspect in shooting of Lady Gaga's dog walker, Giuliani ordered to testify in Georgia 2020 election probe, Wisconsin AG sues 18 companies over PFAS contamination, Soledad O'Brien show makes impression in off-hours time slot, Uvalde schools looking to fire police chief after shooting, Liz Truss, a Margaret Thatcher fan at UK's diplomatic helm, Rishi Sunak, heir apparent who ran afoul of Boris Johnson, Alex Murdaugh pleads not guilty to murdering wife and son. 56(a). The parties have hired police practices experts who disagree as to whether any form of warning was appropriate and whether an alternative was available. 78, Ex. East Wenatchee Police Department Policy provides that "[t]he protection of life is at all times more important than either the apprehension of criminal offenders of the protection of property. A third degree assault conviction does not require a firearm to have been pointed at a victim in order to put another in apprehension of harm. 13 at 171). v. Brown, 520 U.S. 397, 410 (1997). Next, Defendants contend Gardner's opinion should be excluded because it is unreliable due to questions concerning the integrity of the blood stains and chain of custody of the gun. beretta 2011) (holding that the fact that "[the victim]'s family did not call the police to report a crime at all, but rather to seek help for their emotionally disturbed son" was relevant to a Graham analysis). (ECF No. 
86 at 2). The court has reviewed the large body of municipal liability jurisprudence shedding light on the issue of deliberate indifference in the context of tragic encounters between police officers and mentally ill individuals. According to 911 radio entries, "Shots fired Rivercom. Defendants separately move the court to exclude the testimony of Plaintiff's "blood spatter" expert, Ross Gardner. He arrived in his patrol vehicle at the area at approximately 6:46 p.m. Officer Chance denies having any conversation with Kirby between the time he arrived and the time of the shooting. 2011)(failure to have any continuing education training on handling mentally ill people and the failure to address the issue at all in the police manual created at least triable issues). There was a problem saving your notification. Sunny. As in Ballard, the court concludes Plaintiff's claim for excessive force is not barred by Heck v. Humphrey. MICHAEL KIRBY, Plaintiff, v. CITY OF EAST WENATCHEE, and OFFICER JAMES MARSHALL, Defendants. No discipline was imposed. Around 3:45 p.m., Wenatchee police officers were called to a burglary in progress in the the 400 block of Castle View Place in Wenatchee. The subject got away on foot prior to officers arrival, but someone matching their description was later spotted in the 200 block of South Western Avenue. 9, Track 8). A police officer is entitled to qualified immunity unless his conduct violates clearly established rights of which a reasonable officer would have known. Marshall returned to his vehicle and then opened his laptop to view his next assignment and changed his radio frequency. An officer then shot White. The unresolved material issues of fact as to whether there existed excessive force, are also "material to a proper determination of the reasonableness of the officers' belief in the legality of their actions." Accordingly, the court denies Defendants' Motion to Exclude the Testimony of Ross Gardner. of New York, 436 U.S. 658, 690-91 (1978). Accordingly, the court must deny Defendants' Motion for Summary Judgment based upon qualified immunity. "Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program." 2. Thirty-six-year-old Alexander White, a resident from East Wenatchee, died after an officer shot him during an altercation. Harris, 126 F.3d at 1201 (citing Garner, 471 U.S. at 11-12). Factual assertions in the moving party's affidavits may be accepted as true unless the opposing party submits its own evidence to the contrary. Learn about careers at Cox Media Group. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 86) is DENIED. Actual or constructive notice of the need for a particular type of training may be plainly obvious where a pattern of constitutional violations exists such that the municipality knows or should know that corrective measures are needed. 2002). Graham, 490 U.S. at 396. at 248. Chance took cover behind a van in the neighbor's driveway, East of Kirby's residence. Both sides have proffered experts in police policies and practices, as well as in blood stain analysis, whose reports are included in the record and discussed in more detail in the context of the court's analysis below. East Wenatchee Police Chief Randy Harrison testified at his deposition that in his role as Chief he was responsible for establishing policies and procedures for the police department. He positioned himself in the intersection of Cascade and Lynn Street, facing north and in sight of the Kirby residence (3 residences and approximately over 70 yards away). 104. According to the Wenatchee Police Department (WPD), they got a call about a shooting near the church and went to investigate. Email notifications are only sent once a day, and only if there are new matching items. a. Quantum of Force. 2010).
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