Dunn v. HYRA

• Decision Date: 02 November 2009
• Docket Number: Case No. C08-978JLR.
• Citation: 676 F. Supp.2d 1172
• Parties: Brendan DUNN, et al., Plaintiffs, v. Matthew HYRA, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

676 F.Supp.2d 1172

Brendan DUNN, et al., Plaintiffs, v. Matthew HYRA, et al., Defendants.

Case No. C08-978JLR.

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

November 2, 2009.

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

Heather L. Carr, Peter Anthony Altman, Stephen Powell Larson, Stafford, Frey, Cooper, Seattle, WA, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

This matter comes before the court on Defendants' motion for summary judgment (Dkt. # 62). At oral argument on October 29, 2009, the court granted summary judgment to Defendants on a number of Plaintiffs' claims. (Dkt. # 93.) Following oral argument, the court took the remaining issues under consideration. Having reviewed the papers filed in support and opposition, and having heard oral argument, the court GRANTS in part and DENIES in part the remainder of Defendants' motion for summary judgment (Dkt. # 62).

I. BACKGROUND¹

This action arises out of events that took place at the "World Can't Wait" peace rally at Cal Anderson Park in Seattle, Washington, on October 5, 2006. In the days before the rally, Kay Rood, a member of the Friends of Cal Anderson Park, saw anonymous postings on the Internet calling for "anarchists and anti-authoritarians. . . to assemble under the anarchist flag and, from there, cause some sort of disruption or damage." (Declaration of Kay Rood ("Rood Decl.") (Dkt. # 65) ¶ 10.) On the morning of the rally, Ms. Rood walked to the park and told Officer Matthew Hyra, who was patrolling the park on his bicycle, about the postings. (Id. ¶ 12.) Ms. Rood did not show the actual postings to Officer Hyra. (Id.)

Officer Hyra told his supervisors, Lieutenant John Hayes and Sergeant Ann Martin, about Ms. Rood's fear that a disruptive anarchist group would rally under a black flag. (Declaration of Heather Carr ("Carr Decl.") (Dkt. # 63), Ex. 1 (Deposition of Matthew Hyra) ("Hyra Dep.") 89:18-19.) Lieutenant Hayes determined that Officer Hyra and his partner, Officer Steven Bale, would "socially contact" persons at the rally who possessed such flags to determine how they intended to use the flags. (Hyra Dep. 89:20-90:5.)

A. Removal of the Flag

Plaintiffs Brendan Dunn, Jacob Erwin, and Ryan Tompkins attended the rally. The three men, along with about a dozen others, were sitting in the park socializing and eating lunch. (Declaration of Ryan Tompkins ("Tompkins Decl.") (Dkt. # 70) ¶ 6.)² Some members of the group passed out anarchist literature. (Declaration of Brendan Dunn ("Dunn Decl.") (Dkt. # 72) ¶¶ 20-21.) In his lap, Mr. Erwin held a large black-and-red "anarcho-syndicalist" flag attached to a bent metal pole. (Id. ¶¶ 6, 29.) The flag belonged to Mr. Dunn. (Id. ¶ 6.)

Officer Hyra and Officer Bale saw Mr. Erwin holding the black-and-red flag. Officer Hyra states that he did not identify Plaintiffs based on their political affiliation, but rather based on the fact that they possessed a flag matching the description provided by Ms. Rood. (Hyra Dep. 90:10-22.) The officers approached Mr. Erwin, and Officer Hyra took the flag from Mr. Erwin's lap. (Declaration of Jacob Erwin ("Erwin Decl.") (Dkt. # 71) ¶ 24.) Mr. Erwin states that he did not see Officer Hyra before the flag was unexpectedly "ripped" from his hand. (Erwin Decl. ¶ 24; Carr Decl., Ex. 3 (Deposition of Jacob Erwin) ("Erwin Dep.") 55:8-12.) Although Officer Hyra states that he tapped Mr. Erwin on the shoulder before taking the flag, it is undisputed that Officer Hyra did not speak to Mr. Erwin before he took the flag. (Hyra Dep. 56:21-24.) Officer Hyra contends that he did not intend to take the flag; he intended only to take the pole because it presented a safety hazard. (Id. 116:10-15.)

After he took the flag, Officer Hyra told Mr. Erwin to "get up and come with me." (Erwin Decl. ¶ 27; Erwin Dep. 55:13-17.) Mr. Erwin asked Officer Hyra to explain why he took the flag and why he wanted Mr. Erwin to go with him. (Erwin Decl. ¶ 35.) Officer Hyra did not answer, and again told Mr. Erwin to come with him. (Erwin Decl. ¶¶ 35-36; Erwin Dep. 55:18-25.)

At this point, other members of the group began to ask Officer Hyra why he had taken the flag and to demand that he return it. (Erwin Decl. ¶¶ 41-42.) Officer Hyra began to walk away, carrying the flag and pushing his bicycle. (Erwin Decl. ¶ 43; Dunn Decl. ¶ 40.) The group, which by now consisted of about 15 to 20 people including Mr. Erwin and Mr. Dunn, followed Officer Hyra and continued to ask him to return the flag. (Erwin Dep. 56:7-11; Erwin Decl. ¶ 50.) Mr. Dunn also shouted, "Who wants to witness suppression of free speech?" (Dunn Decl. ¶ 46.)

Officer Hyra contends that he told Mr. Erwin that he would return the flag after they talked. (Declaration of Lawrence A. Hildes ("Hildes Decl.") (Dkt. # 73), Ex. 5 (Deposition of Matthew Hyra) ("Pls. Hyra Dep.") 66:20-23.) "Seconds" after he tried to initiate the social contact with Mr. Erwin, however, Officer Hyra was "pelted with expletives, surrounded, yelled at." (Hyra Dep. 126:14-16.) Officer Hyra refused to return the flag while they were surrounded by the group because he feared that Mr. Erwin would use it as a weapon. (Id. 175:17-23.)

B. Plaintiffs' Arrests

At this point, Officer Bale called for additional officers. The officers, including Lieutenant Hayes, Sergeant Martin, Officer Richard Roberson, Officer John Skommesa, Officer Tim Greeley, and Officer Monique Avery, soon began to arrive on the scene to help Officer Hyra and Officer Bale. The exact sequence of the events that followed is in dispute, but by the end, all three Plaintiffs had been arrested.

1. Tompkins

As the group followed Officer Hyra, Mr. Tompkins moved ahead and walked backwards while taking photographs of Officer Hyra and Mr. Erwin. (Tompkins Decl. ¶¶ 41-42.) At this point, according to Plaintiffs, Officer Hyra lunged forward and struck Mr. Tompkins with his bicycle, running the bicycle wheel over Mr. Tompkins's foot and up his leg. (Tompkins Decl. ¶ 45, 48-50; Erwin Decl. ¶¶ 53-54; Dunn Decl. ¶ 49.) Mr. Tompkins shouted, "Hey, watch it asshole!" (Tompkins Decl. ¶¶ 53-54.) Officer Hyra then rested the bike on its kickstand, grabbed Mr. Tompkins's backpack, threw Mr. Tompkins into a nearby tree, and pinned him against the tree. (Dunn Decl. ¶¶ 53-55; Erwin Decl. ¶¶ 60, 69; Tompkins Decl. ¶¶ 66-68.) Mr. Erwin tried to grab Mr. Tompkins to pull him away from Officer Hyra. (Erwin Decl. ¶¶ 65, 70.)

According to Officer Hyra, however, Mr. Tompkins was blocking his path. (Hyra Dep. 158:21-159:6.) Officer Hyra contends that he told Mr. Tompkins three times that he would be arrested for obstruction if he did not get out of the way, and that Mr. Tompkins intentionally walked into the bike after Officer Hyra's third order. (Id.) When he tried to take control of Mr. Tompkins's arms to arrest him, Officer Hyra felt someone hanging from his back, trying to pull him away from Mr. Tompkins. (Id. 147:10-22.) Officer Hyra could not see the person who was on his back, but was later told by other officers that it was Mr. Dunn. (Id.) Officer Hyra felt other people try to remove his gun and to take away the flag, but he could not identify them. (Id. 119:2-14.)

Officer Bale helped Officer Hyra take Mr. Tompkins into custody. Mr. Tompkins states that Officer Bale grabbed his left hand and pulled his thumb and forefinger apart, causing pain.³ (Tompkins Decl. ¶¶ 73-75.) Mr. Tompkins was then handcuffed, and Officer Hyra placed Mr. Tompkins under arrest. (Id. ¶ 79.)

2. Erwin

It is undisputed that Mr. Erwin was trying to pull Mr. Tompkins away from Officer Hyra. (See Erwin Decl. ¶¶ 65, 70 (stating that Erwin "reached for his friend, to pull him away from the officer"); Carr Decl., Ex. 2 (Deposition of Steven Bale) ("Bale Dep.") 148:3-16.) When Officer Roberson arrived, Officer Bale ordered him to arrest Mr. Erwin. Mr. Erwin states that Officer Roberson pulled him away from Mr. Tompkins. (Erwin Decl. ¶¶ 70, 71; Erwin Dep. 69:20-71:17.) Officer Roberson tried to bend Mr. Erwin's right thumb back, but Mr. Erwin made his hand into a fist to prevent the officer from doing so. (Erwin Dep. 69:20-70:4.) Officer Roberson then threw Mr. Erwin to the ground, landing on top of him. (Erwin Decl. ¶ 75; Erwin Dep. 71:10-17.) Officer Roberson and Sergeant Martin handcuffed Mr. Erwin and refused to answer when Mr. Erwin asked why he was being arrested. (Erwin Decl. ¶¶ 79-80; Erwin Dep. 71:6-17.) The officers lifted Mr. Erwin from the ground by his handcuffs, twisting his shoulder. (Erwin Decl. ¶¶ 81-82.)

Officer Roberson testified that he did not put his weight on Mr. Erwin but simply caused him to fall off-balance. (Carr Decl., Ex. 7 (Deposition of Richard Roberson) ("Roberson Dep.") 38:1-25.)⁴

3. Dunn

Mr. Dunn states that he did nothing more than try to take photographs of the confrontation between Mr. Tompkins and Officer Hyra. (Dunn Decl. ¶¶ 56-58.) He asserts that he never touched Officer Hyra and remained at least three feet away from Officer Hyra at all times. (Id. ¶¶ 45, 77.) When he moved away from the group he was tackled by Officer Skommesa, handcuffed, and placed under arrest. (Id. ¶¶ 69-72.) Mr. Dunn was in pain after the arrest because he landed on top of his camera and because his handcuffs were too tight. (Id. ¶ 70; Dunn Dep. 262:13-22.)

Defendants' account is very different. Officer Skommesa states that when he arrived, he saw Mr. Dunn "holding the back of Officer Hyra's jacket." (Carr Decl., Ex. 8 (Deposition of John Skommesa) ("Skommesa Dep.") 45:3-11; see also Hyra Dep 147:10-22.) Officer Skommesa grabbed Mr. Dunn by his shirt and ordered him to let go of Officer Hyra. (Skommesa Dep. 45:5-6.) When Mr. Dunn tried to pull away from Officer Skommesa, Officer Skommesa pushed him sideways, causing him to let go of Officer Hyra's jacket and fall to the ground. (Id. 45:6-10.) Officer Skommesa and Officer Greeley handcuffed Mr. Dunn, and Officer Skommesa...