Dunn v. City of Seattle

• Decision Date: 31 October 2019
• Docket Number: CASE NO. C18-0257JLR
• Citation: 420 F.Supp.3d 1148
• Parties: Brendan DUNN, Plaintiff, v. CITY OF SEATTLE, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

420 F.Supp.3d 1148

Brendan DUNN, Plaintiff,

v.CITY OF SEATTLE, et al., Defendants.

CASE NO. C18-0257JLR

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

Signed October 31, 2019

Lawrence A. Hildes, Bellingham, WA, for Plaintiff.

Katie Loberstein, Nicholas Valera, Brian William Esler, Miller Nash Graham & Dunn LLP, Ghazal Sharifi, Kerala Thie Cowart, Seattle City Attorney's Office, Seattle, WA, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DENYING AS MOOT MOTION FOR CONTINUANCE

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

Before the court are two motions: (1) Defendant City of Seattle's ("the City") motion for summary judgment (MSJ (Dkt. # 46)); and (2) Plaintiff Brendan Dunn's motion for a continuance of the trial date, which was presented orally at the October 30, 2019, oral argument on the City's motion for summary judgment (see 10/30/19 Hearing (Dkt. # 62)). The court has considered the motions, the City's submissions in support of the motion for summary judgment, the argument of the parties, the relevant portion of the record, and the applicable law. Being fully advised, the court GRANTS the City's motion for summary judgment and DENIES as moot Mr. Dunn's motion for a continuance.

II. BACKGROUND

A. The Officer Safety Alert

This case revolves around a police officer safety alert that was first placed on Mr. Dunn in 2006. On October 5, 2006, Mr. Dunn was arrested at an anti-war rally in Seattle, Washington, that he attended with two friends. (See Am. Compl. (Dkt. # 3) ¶ 3.1; Esler Decl. (Dkt. # 51) ¶ 22, Ex. 21 at 3 (noting that the "Date of Incident" for Mr. Dunn's arrest was 10/5/2006).¹ ) After his arrest, an officer with the Seattle Police Department ("SPD") placed an "officer safety advisory" on Mr. Dunn. (Am. Compl. ¶ 3.7; Answer (Dkt. # 24) ¶ 3.7.) The alert said that Mr. Dunn was "potentially dangerous to law enforcement officers" and had been "involved in an assault against a police officer." (Am. Compl. ¶ 3.7.) It also directed officers not to "arrest or detain [Mr. Dunn] based" on the alert. (Id. ) Mr. Dunn maintains that none of the information in the alert was true and alleges that "it was designed to create a threat to [him] and result in future harassment." (Id. ¶ 3.8.)

SPD originally entered this alert into a Washington State Patrol database, the Washington Crime Information Center ("WACIC"), after Mr. Dunn's arrest in October 2006. (See Am. Compl. ¶ 3.7; Bojang-Jackson Decl. (Dkt. # 48) ¶¶ 2, 5; Noble Decl. (Dkt. # 47) ¶ 17.) SPD renewed the alert in the WACIC in November 2009. (See Am. Compl. ¶ 3.11; Noble Decl. ¶¶ 16-17.) The WACIC database "links" with a Federal Bureau of Investigation database, the National Crime Information Center ("NCIC"). (Bojang-Jackson Decl. ¶ 3.) The NCIC is a "national computerized index of criminal justice information" that is populated by and made available to "federal, state, local, and foreign justice agencies, as well as authorized courts." (Id. ; see also Noble Decl. ¶ 11.) As a result of the link between the WACIC and the NCIC, information entered into the WACIC "may be automatically entered in NCIC" and, conversely, "a record removed from WACIC will also then be removed from NCIC." (Bojang-Jackson Decl. ¶ 3.) It is not clear when the WACIC was first linked to the NCIC, but an SPD employee responsible for managing SPD's entries into the WACIC states that the WACIC and the NCIC were linked "[a]s of at least 2016, and indeed much earlier." (See Bojang-Jackson Decl. ¶¶ 2-3.) Thus, at some point in time prior to 2016, the alert on Mr. Dunn that SPD entered into the WACIC was made available nationally on the NCIC. (See id. at ¶¶ 3, 5; Noble Decl. ¶¶ 12-17.)

In June 2008, Mr. Dunn sued the City and several SPD officers for violating his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights. (See Esler Decl. ¶ 9, Ex. 8, ¶ 1.1.) He alleged that he was falsely arrested, falsely imprisoned, subjected to excessive force, and maliciously prosecuted for what happened at the protest. (See id. ) The parties settled that case at the end of 2009. (See Esler Decl. ¶ 2, Ex. 1 ("Settlement Agreement"); id. ¶ 3, Ex. 2.) As part of the settlement, the City agreed to remove the alert that SPD placed on Mr. Dunn. (See Settlement Agreement at 2.) The Settlement Agreement required the City to remove the alert within "15 federal court days." (See id. )

The parties agree that the City failed to timely remove the alert. Mr. Dunn alleges that the City failed to remove the safety alert until 2016, a point that the City concedes. (See Am. Compl. ¶ 3.12; Answer ¶ 3.12; MSJ at 1 ("The City admits that it failed to remove the Alert [by the end of 2009], and instead did so in February 2016.").)

B. Post-Settlement Law Enforcement Encounters

Although the settlement agreement required the City to remove the officer safety alert on Mr. Dunn by the end of 2009 (see Settlement Agreement at 2), Mr. Dunn continued to have contentious encounters with police officials after that time. In "late spring of 2010" an officer stopped Mr. Dunn in Olympia, Washington for making an incorrect turn. (Dunn Dep. (Dkt. # 59) at 14:14-15:11.) Mr. Dunn stated that the officer asked if he was "ever in a riot in Seattle" and indicated to Mr. Dunn that "[the officer had] read something on his computer which suggested that [there was a police alert out on Mr. Dunn]." (See id. at 15:25-16:16.)

In January 2011, officers from the New York Police Department ("NYPD") stopped Mr. Dunn in Brooklyn, New York by. (See id. at 25:6-17, 30:20-31:9; Esler Decl. ¶ 4, Ex. 3 at 4-5 (stating that Mr. Dunn was stopped in Brooklyn, New York in January 2011).) Mr. Dunn claimed that the NYPD officers became much more aggressive and confrontational after they ran his driver's license. (Dunn Dep. at 26:13-27:4; 28:1-10; Esler Decl., Ex. 3 at 5.) Although the NYPD officers did not issue a citation to Mr. Dunn, Mr. Dunn contacted his counsel to discuss the NYPD officers' conduct and also spoke with his cousin and his roommate about the stop. (Dunn Dep. at 28:17-24, 30:1-6, 33:15-34:13.)

On July 13, 2013, the Oneida County Sheriff detained Mr. Dunn in New York for "holding a banner outside Oneida County Jail." (Esler Decl. ¶ 4, Ex. 3 at 4; see also Dunn Dep. at 35:7-23.² ) Mr. Dunn alleges that the sheriff "appeared to be pretty concerned and aggressive after running [his] information." (Esler Decl. ¶ 4, Ex. 3 at 4; see also Dunn Dep. at 36:20-37:12, 39:16-40:3.) On July 30, 2014, an officer stopped Mr. Dunn for speeding in Rotterdam, New York. (See id. at 47:11-48:8; Esler Decl. ¶ 20, Ex. 19.) Mr. Dunn testified that the officer "became much more aggressive" after he ran Mr. Dunn's driver's license. (See Dunn Dep. at 47:11-48:25.)

Despite each of these post-settlement incidents, Mr. Dunn's complaint alleges that he did not realize that the City failed to remove the alert until "he began repeatedly getting pulled over in 2015-2016 without cause in [u]pstate New York." (Id. ¶ 3.13.) But Mr. Dunn's deposition testimony is inconsistent with this allegation. Mr. Dunn initially testified that he believed that some of these traffic stops escalated because the officer safety alert had not been removed. (See Dunn Dep. at 14:20-15:7; 15:25-16:16; 28:5-10, 28:25-29:9.) For example, in response to questions about the 2010 stop in Olympia, Mr. Dunn testified as follows:

Q: But that officer in the spring of 2010 told you that there was still an alert out on you?

A: The officer asked me if I was in a riot in Seattle.

Q: And you believed he was asking that because there was still an alert out?

A: He made it very aware to me that he read something on his computer which suggested that.

Q: And do you remember what he said that suggested that? Was it just the riot statement?

A: I said I was falsely charged, and the charges were dropped, and I was suing the Seattle Police Department.

Q: But he made it pretty clear, at least you understood at that time, that there was a police alert out on you at that time?

A: Yes.

(Id. at 15:25-16:16.) When asked about the 2011 stop in Brooklyn, Mr. Dunn doubled-down on his answer that he suspected at the time that the City had not removed the alert:

Q: So it's fair to say that the only reason you could deduce that [the NYPD officers] would be acting that way [during the January 2011 stop in Brooklyn] would be that when they went back to the car, they saw an officer safety alert?

A: That would be safe to say. Their demeanor rapidly changed after they ran my driver's license.

...

Q: And at least at that time you were pretty certain that the treatment you received from the police [during the January 2011 stop in Brooklyn] was due to the officer safety alert?

A: As I stated earlier, yes.

Q: Just so the record is clear, you understand when I say "officer safety alert," I'm talking about the alert that was the subject of the settlement that led to this lawsuit, correct?

A: Yes, I understand that you're talking about the alert with the false accusations against me.

(Id. at 28:5-10, 28:25-29:9.)

After a break in the deposition, however, Mr. Dunn's counsel interrupted the City's questioning and announced that Mr. Dunn wanted to make a clarification in his testimony:

[Defendant's counsel] Q: Before we took a break we were discussing this incident in New York City.

[Plaintiff's counsel] And I think Mr. Dunn wanted to make a clarification.

[Defendant's counsel] Q: Something you want to say?

A: So I heard you say, you know, as I'm sitting here now today, recalling these events and the incidents, and as I sit here today, and as I piece things together over the last couple years, I now know that these—that the officer safety alert had an impact on these altercations with the police. However, at the time I didn't.

We were just talking about this incident where I was pulled over by the police in Brooklyn. I didn't have any idea that the alert was still on my name. As far as I was concerned at that time, until, you know, we found

...