Briscoe v. City of Seattle

• Decision Date: 01 September 2020
• Docket Number: C18-262 TSZ
• Parties: Devitta BRISCOE, as executor of the Estate of Che Andre Taylor; Joyce Dorsey ; Che Andre Taylor, Jr.; Sarah Settles on behalf of C.M.T., a minor; and Demeka Green, as executor of the Estate of Brenda Taylor, Plaintiffs, v. CITY OF SEATTLE; Michael and "Jane Doe" Spaulding; Scott and "Jane Doe" Miller; Timothy and "Jane Doe" Barnes; and Audi and "Jane Doe" Acuesta, Defendants.
• Court: U.S. District Court — Western District of Washington

483 F.Supp.3d 999

Devitta BRISCOE, as executor of the Estate of Che Andre Taylor; Joyce Dorsey ; Che Andre Taylor, Jr.; Sarah Settles on behalf of C.M.T., a minor; and Demeka Green, as executor of the Estate of Brenda Taylor, Plaintiffs,

v.CITY OF SEATTLE; Michael and "Jane Doe" Spaulding; Scott and "Jane Doe" Miller; Timothy and "Jane Doe" Barnes; and Audi and "Jane Doe" Acuesta, Defendants.

C18-262 TSZ

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

Signed September 1, 2020

James Bible, James Bible Law Group, Jesse Valdez, Valdez Lehman PLLC, Bellevue, WA, Shakespear N. Feyissa, Seattle, WA, for Plaintiffs.

Ghazal Sharifi, Jeffrey M. Wolf, Susan E. Park, Seattle City Attorney's Office, Thomas P. Miller, Christie Law Group PLLC, Seattle, WA, for Defendant City of Seattle.

Ghazal Sharifi, Susan E. Park, Seattle City Attorney's Office, Thomas P. Miller, Christie Law Group PLLC, Seattle, WA, for Defendants Michael Spaulding, Scott Miller.

ORDER

Thomas S. Zilly, United States District Judge

This case involves the shooting death of Che Andre Taylor. In more than one way, it is a "they said, he's dead" case.¹ The "they" in that phrase are members of the Seattle Police Department ("SPD"). The phrase is apropos because "they" say Taylor was reaching for a gun when he was shot multiple times at point-blank range, but Taylor's version of events will never be known because the bullet wounds

were fatal. The phrase is also fitting because issues of liability in this matter involve what "they" said to Taylor in the moments shortly before he died.

The incident leading to Taylor's death occurred in February 2016. An inquest was conducted in February 2017, see Sharifi Decl. at ¶ 5 & Exs. 4(a) – 4(e) (docket no. 83), and no criminal charges were filed against any officer involved. This civil action commenced in February 2018. See Compl. (docket no. 1). After three revisions of the operative pleadings, plaintiffs are now (i) Devitta Briscoe, Taylor's sister and the executor of his estate, (ii) Joyce Dorsey, Taylor's mother, (iii) Che Andre Taylor, Jr., Taylor's adult son, (iv) Sarah Settles on behalf of her daughter, C.M.T., Taylor's minor child, and (v) Demeka Green, the daughter of Taylor's deceased wife, Brenda Taylor, and the executor of her mother's estate. See 3d Am. Compl. at ¶¶ 2.1 - 2.5 (docket no. 62). They sue the City of Seattle, SPD Officers Audi Acuesta, Timothy Barnes, Scott Miller, and Michael Spaulding, and unknown SPD personnel. See id. at ¶¶ 2.6 - 2.11. In their Third Amended Complaint, plaintiffs² assert the following claims: (i) negligence; (ii) outrage; (iii) false arrest; (iv) unlawful seizure; (v) discrimination in violation of RCW 49.60.030 ; and (vi) deprivation of substantive due process rights in violation of 42 U.S.C. § 1983. See id. at ¶¶ 5.1 - 5.9.

This matter comes before the Court on defendants’ motion for summary judgment, docket no. 73, in which they seek dismissal of all claims on various grounds, including (i) qualified immunity as to the § 1983 claims brought against Acuesta, Barnes, Miller, and Spaulding, individually, (ii) failure to establish the policy or practice required for municipal liability under § 1983 pursuant to Monell v. Dep't of Soc. Servs. of N.Y.C. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), (iii) the bar on personal injury or wrongful death claims that is set forth in RCW 4.24.420, and (iv) lack of merit. Having reviewed all papers and other materials filed in support of, and in opposition to, defendants’ motion, the Court now enters this Order. The Court concludes that, because plaintiffs are entitled to have every reasonable inference from the evidence drawn in their favor, the key questions of whether the officers involved reasonably believed Taylor was armed when they approached to arrest him and whether they reasonably believed he was reaching for a weapon at the time they shot him cannot be decided on summary judgment. As a result, whether Miller and Spaulding are entitled to qualified immunity cannot be determined before trial. Certain other matters, however, can be resolved as a matter of law, and plaintiffs’ case can be narrowed for trial.

Background

A. Events Preceding the Shooting

On the afternoon of February 21, 2016, two members of SPD's Anti-Crime Team ("ACT"), a unit that focuses on "street-level narcotics and vice activity," see Miller Decl. at ¶ 3 (docket no. 81), were conducting surveillance from an unmarked vehicle near an apartment located at 2024 NE 85th Street #3 in Seattle, Washington. See Miller Interview, Ex. A to Miller Decl. (docket no. 85-1 at 8). These ACT officers, Miller and Spaulding, were there to arrest Sean Kelly, for whom a no-bail warrant was outstanding. See Spaulding Interview, Ex. A to Spaulding Decl. (docket no. 82 at 6). While waiting for Kelly to emerge from the apartment, Miller and Spaulding saw a Dodge Magnum drive up and park on the opposite side of street from them. See id. (docket no. 82 at 6-7). Spaulding, who knew from social media that Taylor had recently acquired a Dodge Magnum, wondered if Taylor was in the vehicle; both Miller and Spaulding were acquainted with Taylor from previous contacts. See id. at 7. According to Miller, as Taylor was getting out of the Dodge Magnum, Miller recognized him and saw a black handgun in a holster on Taylor's right hip. Miller Interview (docket no. 85-1 at 8). Miller told Spaulding that he had seen "a Glock, it's on his right hip." See Spaulding Interview (docket no. 82 at 7).

Miller ran a check and confirmed that Taylor was a felon, considered by federal authorities to be an "armed career criminal." Miller Interview (docket no. 85-1 at 8). After Taylor went into the apartment that Kelly was believed to be occupying, Miller radioed a request for backup to apprehend Taylor on suspicion of being a felon in possession of a firearm. See id. (docket no. 85-1 at 9). Acuesta and Barnes, who were on routine patrol, were dispatched to assist during the arrest, and they staged themselves a block west. Acuesta Report, Ex. A to Acuesta Decl. (docket no. 74 at 4). A "simple plan" was devised whereby Miller and Spaulding would signal when Taylor came out of the apartment and everyone would move in to arrest him. See Miller Interview (docket no. 85-1 at 10).

Just before Taylor exited the apartment, however, an older Sport Utility Vehicle ("SUV") pulled up and partially blocked Miller's and Spaulding's views. Id. They could see that Taylor was outside the apartment, talking to one or two other males, but then they lost sight of him. Id. When the SUV drove away, Taylor was gone. Id. Sometime later, a white sedan (a 1995 Ford Taurus) arrived and parked directly behind Taylor's Dodge Magnum. Id. ; see also Kineticorp Report at 1, Ex. B to Neale Decl. (docket no. 79 at 16) (describing the make and model of the sedan). At that point in time, Taylor had not been under Miller's or Spaulding's unobstructed observation for approximately thirty minutes.³

The Ford Taurus had three occupants: a white male later identified as Tom Papageorge was in the driver's seat, a white female later identified as Noelle Knudsvig was in the rear passenger's seat, and a black male later identified as Taylor was in the front passenger's seat. See Noble Report at ¶¶ 26 & 27, Ex. B to Noble Decl. (docket no. 80 at 45-46). Taylor got out of the Ford Taurus and, with the passenger door still open, stood facing inside the car. See Miller Interview (docket no. 85-1 at 11). Miller and Spaulding gave the signal to move in to arrest Taylor. Id. Miller and Spaulding then got out of their vehicle, armed with a shotgun and a rifle, respectively, and approached Taylor, while one or both of them allegedly yelled "Seattle Police." See id. ; Inquest Tr. (Spaulding), Ex. 4(a) to Sharifi Decl. (docket no. 83-1 at 33). Both Miller and Spaulding were dressed in plain clothes, but prior to exiting their vehicle, they had donned either a jacket or vest, respectively, bearing the word "POLICE" across the front chest. Inquest Tr. (Miller), Ex. 4(b) to Sharifi Decl. (docket no. 83-1 at 45); Spaulding Interview (docket no. 82 at 15).

B. "Their" Version of the Shooting

Although the patrol car carrying Acuesta and Barnes was equipped with a dash-mounted camera, the key events of the day cannot be seen on the recording, having been obstructed from view by the Ford Taurus. The encounter with Taylor, prior to the shooting, lasted only five to six seconds. The recording shows Miller and Spaulding beginning their approach toward the Ford Taurus before 4:15:48 p.m. on February 21, 2016. See Fig. 1. By 4:15:53 p.m., Taylor had been fatally wounded

. See Fig. 2.

During a recorded interview conducted shortly after midnight on the day of the shooting, Miller stated that, as he walked toward Taylor, he yelled "Seattle Police," called Taylor by a nickname ("Che T"), and said, "let me see your hands," "show me your hands, get on the ground." Miller Interview (docket no. 85-1 at 11-12). Figure 1, supra , shows the relative positions of the officers and Taylor when these commands were issued.⁴ Miller contends that, as he rounded the rear of the vehicle, he saw Taylor crouch slightly into the car and turn a bit toward him, and that Taylor's right arm made a "telltale sign of going for a weapon." Miller Interview (docket no. 85-1 at 12). Miller then fired one round from his shotgun. Id.

When Spaulding was interviewed about the incident, roughly three hours before Miller, he said that, while he was approaching Taylor, he also called Taylor "Che T," and directed Taylor two or three times to show his hands and get down on the ground. Spaulding Interview (docket no. 82 at 9). According to Spaulding, Taylor replied, "hey, what, what, what's going on, what's going on," and then said, "okay, okay," but instead of "simply dropp[ing] down to his knees," Taylor "turned to his right" and "started slouching over into the car." Id. Spaulding...