Amili v. City of Tukwila, Case No. C13–1299–JCC.

CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)
Writing for the CourtJOHN C. COUGHENOUR, District Judge.
Citation31 F.Supp.3d 1274
PartiesJahmez A. AMILI II and Charles A. Chappelle II, Plaintiffs, v. CITY OF TUKWILA, et al., Defendants.
Decision Date10 July 2014
Docket NumberCase No. C13–1299–JCC.

31 F.Supp.3d 1274

Jahmez A. AMILI II and Charles A. Chappelle II, Plaintiffs
CITY OF TUKWILA, et al., Defendants.

Case No. C13–1299–JCC.

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

Signed July 10, 2014.

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Felix G. Luna, Michael Simon Wampold, Tomas A. Gahan, Peterson Wampold Rosato Luna Knopp, Seattle, WA, for Plaintiffs.

Mary Ann McConaughy, Richard B. Jolley, Keating Bucklin & McCormack, John Turner Kugler, Turner Kugler Law, PLLC, Seattle, WA, Shelley M. Kerslake, Kenyon Disend, Issaquah, WA, for Defendants.


JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Plaintiffs' Motion for Partial Summary Judgment (Dkt. No. 17) and Defendants'

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Cross Motion for Summary Judgment on the Fourth Amendment Seizure Issue (Dkt. No. 23). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS Plaintiffs' motion (Dkt. No. 17) and DENIES Defendants' cross-motion (Dkt. No. 23) for the reasons explained herein.


This case concerns Defendant Officer Zachary Anderson's stop and eventual arrest of Plaintiffs in the early morning hours of May 12, 2012. Officer Zachary Anderson is a police officer with the Tukwila Police Department. (Anderson Dep. 10–11 (Dkt. No. 18, Ex. 1 at 6).) Plaintiffs are African American brothers who were walking to their mother's house. (Dkt. No. 17 at 2.)

At approximately 2:40 a.m. on that day, officers received a 911 call about a reported fight on a private party bus in the parking lot of the Southcenter Mall. (Dkt. No. 17 at 2; Dkt. No. 23 at 2.) Officer Anderson left the police station to drive toward the mall. (Dkt. No. 17 at 2; 23 at 3.) As Officer Anderson was driving, he saw Plaintiffs walking along an overpass. (Dkt. No. 17 at 2; Dkt. No. 23 at 3.) There was no sidewalk on the side of the road on which they were walking, although there was a sidewalk on the other side of the bridge. (Anderson Dep. 35:10–13 (Dkt. No. 25, Ex. B at 6).)

Officer Anderson made a U-turn and stopped his car on the other side of the overpass. (Dkt. No. 17 at 2; Dkt. No. 23 at 4.) He exited his car and told them that he was investigating a fight, that he needed them to come to his car, and that they weren't free to leave. (Dkt. No. 17 at 2; Dkt. No. 23 at 4.) Plaintiffs, using expletives, said that they hadn't done anything and refused to come to his car. (Dkt. No. 17 at 2–3; Dkt. No. 23 at 4–5.) They continued walking. (Dkt. No. 17 at 3; Dkt. No. 23 at 5.) Officer Anderson then informed Plaintiffs that they were under arrest for obstructing a law enforcement officer. See Wash. Rev.Code 9A.76.020(1). (Dkt. No. 17 at 3; Dkt. No. 23 at 5.) Officer Anderson pointed his taser gun at Plaintiffs from across the road. (Dkt. No. 17 at 3; Dkt. No. 23 at 6.) At this point, Officer Prasad arrived, followed seconds later by Officer Erik Kunsmann. (Dkt. No. 17 at 3; Dkt. No. 23 at 6.) Plaintiffs were then apprehended.

Plaintiffs filed this 42 U.S.C. § 1983 action on July 22, 2013 listing two causes of action: unconstitutional use of excessive force, and violations by the city and police chief. (Dkt. No. 1.) Both Plaintiffs and Defendants move for partial summary judgment on whether the initial seizure by Officer Anderson was unlawful. (Dkt. No. 17 at 2; Dkt. No. 23 at 2.) Whether excessive force was used is not an issue on summary judgment. (Dkt. No. 23 at 20.)


A. Standard on Summary Judgment

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that may affect the case's outcome. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if there is enough evidence for a reasonable jury to return a verdict for the nonmoving party. See id. at 249, 106 S.Ct. 2505. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party, and all justifiable inferences must be drawn in the nonmovant's favor. See Johnson v. Poway Unified

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Sch. Dist., 658 F.3d 954, 960 (9th Cir.2011).

B. Section 1983 Claims

Under 42 U.S.C. § 1983, a plaintiff may hold police officers personally liable for violations of the plaintiff's constitutional rights. The doctrine of qualified immunity, however, protects government officers “performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In determining whether an officer's actions are protected by qualified immunity, a court asks two questions in whatever order it chooses: “(1) whether the alleged misconduct violated a right and (2) whether the right was clearly established at the time of the alleged misconduct.” Maxwell v. County of San Diego, 697 F.3d 941, 947 (2012).

C. Whether The Alleged Misconduct Violated A Right

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. On the record here, the Court must first determine when a seizure occurred and then determine whether that seizure was unreasonable.

1. When the seizure occurred

“[A] person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.”United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The parties disagree about when the encounter became a seizure. Plaintiffs contend they were seized when Officer Anderson ordered them to come to his car and told them that they were not free to leave. (Dkt. No. 17 at 9) (citing Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870 (seizure occurs once “reasonable person would have believed that he was not free to leave”); State v. Richardson, 64 Wash.App. 693, 825 P.2d 754 (1992) (same).) Defendants argue that no Fourth Amendment seizure occurred “until [Plaintiffs] were physically subdued by officers.” (Dkt. No. 23 at 13) (citing Mendenhall, 446 U.S. at 553, 100 S.Ct. 1870 (no seizure until “freedom of movement is restrained”); Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (absent “actual submission” there is only an “attempted seizure”); United States v. Smith, 633 F.3d 889, 893 (9th Cir.2011) ). In Defendants' view, Plaintiffs evaded any “effective seizure” until they were physically arrested, at which point their “active resistance” contributed to the probable cause necessary for their arrest. (Dkt. No. 23 at 14.)

There is no dispute that Plaintiffs initially continued walking away from Officer Anderson. There is also no dispute, however, that as they were walking away Officer Anderson pointed a taser at them, told them to stop, and they stopped. (Prasad Dep. 43, 44:4–8 (Dkt. No. 25 at 7–8) (When Officer Prasad arrived, Officer Anderson was pointing a taser at Plaintiffs; they were asked to stop several times; they stopped within “a few seconds” of Prasad's arrival).); (Anderson Dep. at 64:10–18, 67 (Dkt. No. 25–2 at 3–4) (Plaintiffs “continued walking,” Anderson “told them at that point that they were under arrest for obstructing a public servant, and took [his] taser out,” and decided to wait to make contact with them until other officers arrived).) As described by Defendants: “To keep the men from simply walking away

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while he waited for back-up officers to arrive, Officer Anderson took out his taser and held plaintiffs at taser-point.” (Dkt. No. 23 at 6, lines 2–4.) Even assuming that Officer Anderson's statement that Plaintiffs were not free to leave did not constitute a seizure, they were effectively seized when they stopped at his command while having a taser pointed at them. Cf. Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (“no seizure without actual submission”); Mendenhall, 446 U.S. at 555, 100 S.Ct. 1870 (no seizure when DEA agents wore no uniforms, displayed no weapons, and issued no commands); United States v. Smith, 633 F.3d 889, 892–93 (2011) (no seizure when suspect engaged in “short verbal exchange” with officer before turning around and running away). The question thus becomes whether this seizure was constitutional.

2. Reasonable Suspicion

The parties agree that the reasonableness of the seizure depends on whether Officer Anderson's seizure of Plaintiffs was a justified investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). (Dkt. No. 17 at 8; Dkt. No. 23 at 10–11 (citing Terry and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229...

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