Beltran-Serrano v. City of Tacoma

• Court: Washington Supreme Court
• Writing for the Court: STEPHENS, J.
• Citation: Beltran-Serrano v. City of Tacoma, 442 P.3d 608 (Wash. 2019)
• Decision Date: 13 June 2019
• Docket Number: NO. 95062-8
• Parties: Cesar BELTRAN-SERRANO, an incapacitated person, individually, and Bianca Beltran as guardian ad litem of the person and estate of Cesar Beltran-Serrano, Petitioners, v. CITY OF TACOMA, a political subdivision of the State of Washington, Respondent.

442 P.3d 608

Cesar BELTRAN-SERRANO, an incapacitated person, individually, and Bianca Beltran as guardian ad litem of the person and estate of Cesar Beltran-Serrano, Petitioners,

v.CITY OF TACOMA, a political subdivision of the State of Washington, Respondent.

NO. 95062-8

Supreme Court of Washington.

Filed JUNE 13, 2019

Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Avenue SW, Third Floor, Suite C, Seattle, WA 98126-2138, John Robert Connelly Jr., Micah R. LeBank, Connelly Law Offices, 2301 N. 30th Street, Tacoma, WA 98403-3322, Sidney Charlotte Tribe, Camey Badley Spellman, 701 5th Avenue, Suite 3600, Seattle, WA 98104-7010, for Petitioners.

Jean P. Homan, Tacoma City Attorney's Office, 747 Market Street, #1120, Tacoma, WA 98402-3701, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Avenue N., Seattle, WA 98109-3007, for Respondent.

Philip Albert Talmadge, Micah R. LeBank, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Avenue SW, Third Floor, Suite C, Seattle, WA 98126-2138, John Robert Connelly Jr., Micah R. LeBank, Connelly Law Offices, 2301 N. 30th Street, Tacoma, WA 98403-3322, for Guardian Ad Litem.

Jose Dino Vasquez, Karr Tuttle Campbell, 701 5th Avenue, Suite 3300, Seattle WA 98104-7055, Antoinette M. Davis, American Civil Liberties Union of Washington, 901 5th Avenue, Suite 630, Seattle, WA 98164-2086, for Amicus Curiae American Civil Liberties Union of Washington Foundation.

Kimberly Ann Mosolf, Disability Rights Washington, 315 5th Avenue S., Suite 850, Seattle, WA 98104-2691, for Amicus Curiae Disability Rights Washington.

Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., 801 2nd Avenue, Suite 1210, Seattle, WA 98104-3175, for Amicus Curiae Washington Cities Insurance Authority and Washington Counties Risk Pool.

Daniel Edward Huntington, Richter-Wimberley PS, 422 W Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, for Amicus Curiae Washington State Association for Justice Foundation.

Daniel G. Lloyd, Vancouver City Attorney's Office, P.O. Box 1995, 415 W. 6th Street, Vancouver, WA 98668-1995, Jonathan Collins, Smith Goodfriend, 1619 8th Avenue N., Seattle, WA 98109-3007, for Amicus Curiae Washington State Association of Municipal Attorneys.

STEPHENS, J.

¶1 Cesar Beltran-Serrano, a mentally ill homeless man, was shot multiple times by Tacoma Police Officer Michel Volk, after a simple social contact escalated to the use of deadly force. Beltran-Serrano survived the shooting and, through a guardian ad litem, brought this action for negligence and assault and battery against the city of Tacoma (City). The Pierce County Superior Court dismissed the negligence claims on summary judgment, agreeing with the City that the sole avenue for any recovery must be an intentional tort claim for assault and battery.

¶2 We reverse. The fact that Officer Volk’s conduct may constitute assault and battery does not preclude a negligence claim premised on her alleged failure to use ordinary care to avoid unreasonably escalating the encounter to the use of deadly force. Under well-established negligence principles, police officers owe a duty of reasonable care in situations such as this. Beltran-Serrano has presented evidence to allow a jury to find that the City failed to follow accepted practices in Officer Volk’s interactions with him leading up to the shooting and that this negligence resulted in his injuries.

FACTS AND PROCEDURAL HISTORY¹

¶3 Beltran-Serrano suffers from mental illness and has limited English language proficiency. On June 29, 2013, he was homeless when Officer Volk noticed him standing on the corner of East 28th Street, an area of Tacoma where the police had received multiple complaints about panhandlers. Officer Volk parked her patrol vehicle near Beltran-Serrano and approached him with the goal of educating him about the City’s panhandling laws. She did not have reasonable suspicion or probable cause to believe he was committing a crime.

¶4 As Officer Volk approached Beltran-Serrano, he laid down on his stomach and started digging in a hole. Officer Volk greeted Beltran-Serrano, but he looked up at her blankly and kept digging in the hole. Noticing that the hole contained mainly garbage, Officer Volk observed Beltran-Serrano pull out an old soda container, take a drink, and throw it back in the hole. When Officer Volk asked Beltran-Serrano if he understood English, he shook his head no. Officer Volk then radioed for a Spanish-speaking officer. Officer Jake Gutierrez, who spoke Spanish, was within one and a half to five minutes away.

¶5 Instead of waiting for Officer Gutierrez to arrive, Officer Volk attempted to engage Beltran-Serrano in conversation; he was nonresponsive. She attempted to get Beltran-Serrano to produce identification, gesturing to indicate she wanted to see an ID card. Beltran-Serrano began to pat his pockets as if to look for identification, but then he bent down and reached back into the hole. When Officer Volk moved closer to Beltran-Serrano and continued to address him in English, he became scared and started to run away. Officer Volk shot him in the back with a stun gun as he ran across the street. Clerk’s Papers (CP) at 400-01. The stun gun did not have the desired effect, and Beltran-Serrano continued to run away. Id. Officer Volk then pulled out her duty weapon and fired multiple shots until Beltran-Serrano fell to the ground. CP at 401. The total time between when Officer Volk called for a Spanish-speaking officer and the shooting was 37 seconds. CP at 396.²

¶6 In resisting summary judgment, Beltran-Serrano offered declaration testimony from multiple witnesses who stated that they did not see Beltran-Serrano assault Officer Volk or brandish any weapon and that there was no instance of struggle or altercation on the street corner. Witnesses expressed concern as to why Beltran-Serrano was shot because he did not appear to be acting aggressively or making threatening motions. CP at 415-16, 432-33. A shooting scene reconstruction led a ballistics expert to conclude that "[n]one of the fired bullet paths to Beltran-Serrano support him ‘swinging’ or otherwise moving his arms at the time of receiving the gunshots." CP at 459.

¶7 Through a guardian ad litem, Beltran-Serrano brought this action against the City. In addition to a claim for assault and battery, his complaint alleged that Officer Volk improperly, unreasonably, and unnecessarily escalated the situation, and that the City failed to properly train and supervise officers to deal with the mentally ill and to exercise appropriate force. CP at 77. The City filed a motion for partial summary judgment, arguing it owed no duty of reasonable care to Beltran-Serrano. Specifically, the City asserted that (1) a negligence claim could not be based on an intentional tort, (2) the public duty doctrine barred any negligence claim, and (3) a negligent training and supervision claim was unavailable because Officer Volk was acting within the scope of her employment. CP at 240-54. The Pierce County Superior Court granted the City’s motion to dismiss the negligence claims and entered an order certifying for interlocutory review the issue of "whether a police officer owes a duty of reasonable care to act reasonably when using deadly force." CP at 698-99, 757.³ Beltran-Serrano then filed a motion for direct discretionary review in this court, which our commissioner granted pursuant to RAP 4.2(a)(4).⁴

ANALYSIS

¶8 Claims of negligent law enforcement are not novel. Washington courts have long recognized the potential for tort liability based on the negligent performance of law enforcement activities. See, e.g. , Washburn v. City of Federal Way, 178 Wash.2d 732, 310 P.3d 1275 (2013) (negligent service of a protective order); Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451 (1983) (negligent failure to respond with police assistance in a timely manner); Mason v. Bitton, 85 Wash.2d 321, 534 P.2d 1360 (1975) (negligent police vehicle chase); Garnett v. City of Bellevue, 59 Wash. App. 281, 796 P.2d 782 (1990) (negligent infliction of emotional distress for officers’ harsh and offensive language in responding to a call that plaintiffs were loitering). Indeed, the City readily acknowledges that such liability is consistent with the broad waiver of sovereign immunity for municipalities under RCW 4.96.010. Br. Of Resp’t at 10.

¶9 The question in this case is whether a claim of negligence can be based on Officer Volk’s shooting of Beltran-Serrano when it is clear the shooting was intentional, i.e., volitional. The City insists that "[t]here is no such thing as the negligent commission of an intentional tort." Id. at 18. The City further argues that the public duty doctrine precludes liability because the statutory duty "to enforce the laws and keep the peace ... is imposed solely on government and owed to the public at large." Id. at 36. We believe the City misunderstands both the nature of Beltran-Serrano’s negligence claim and the nature of its law enforcement duty.

A. An Intentional Tort Claim Does Not Foreclose a Negligence Claim Premised on the Failure To Use Reasonable Care To Avoid the Use of Force

¶10 In arguing that Beltran-Serrano seeks to allege negligence in the commission of an intentional tort, the City fails to appreciate the nature of Beltran-Serrano’s claim. The core of his negligence claim is that Officer Volk unreasonably failed to follow police practices calculated to avoid the use of deadly force. CP at 77-78. Beltran-Serrano focuses on Officer Volk’s negligence leading up to the shooting, including her failure to respond appropriately to clear signs of mental illness or impairment, her decision to continue to engage with Beltran-Serrano in English, and her decision to prevent him from walking away. The negligence allegations also identify Officer Volk’s lack of adequate training and her failure to recognize the...