Estate of Lee ex rel. Lee v. Spokane

Citation101 Wash.App. 158,2 P.3d 979
Decision Date15 June 2000
Docket NumberNo. 18347-5-III.,18347-5-III.
CourtCourt of Appeals of Washington
PartiesThe ESTATE OF Elwood Rayvon LEE, By Joan LEE as personal representative, and Joan Lee, widow of Elwood Rayvon Lee, individually and as a surviving spouse; and Rhiannon Lee, a minor child, by and through Joan Lee; and Matthew Lee, a minor child, by and through Joan Lee, Appellants, v. The CITY OF SPOKANE, a municipal corporation, its agencies, and departments, and Officer Benjamin Estes, individually and the marital community composed of Benjamin Estes and Jane Doe Estes; and Officer Kevin Langford, individually and the marital community composed of Kevin and Jane Doe Langford, Respondents and Cross-Appellants.

Dennis C. Cronin, Maxey Law Offices, Thomas M. Smith, Spokane, for Appellants.

Rocco N. Treppiedi, Perkins, Coie, James C. Sloane, City Attorney, and John A. Level, Asst. City Atty., Spokane, for Respondents.

SWEENEY, J.

The estate and survivors of Elwood R. Lee brought federal and state tort claims against the City of Spokane and two individual police officers after Mr. Lee was fatally shot during a domestic violence incident. The issues presented by their 42 U.S.C. § 1983 action are governed by two separate legal standards. Whether police used excessive force in seizing Mr. Lee is judged by the Fourth Amendment objective reasonableness standard. Here, the police shot Mr. Lee after he pointed a rifle at one of the officers. We conclude that the officers' conduct in effecting the seizure was objectively reasonable.

Whether Mr. Lee's survivors have a viable § 1983 action based on violations of their own substantive due process rights under the Fourteenth Amendment turns on whether the officers acted with "deliberate indifference" to the family members in their use of force against Mr. Lee. Here, we conclude that the officers did not act with deliberate indifference. We, therefore, affirm the trial court's dismissal of the family's § 1983 action.

Because Mr. Lee's death was not wrongful, we also dismiss the remaining state survival and wrongful death claims.

FACTS

Joan Lee and Elwood Lee were married and the parents of two young children, Rhiannon and Matthew. At 2:00 a.m. on February 27, 1993, Mr. Lee was drinking at a Spokane bowling alley bar. Ms. Lee piled the two kids and the family dog in the car and drove to the bar to bring him home because she did not want him to drive drunk. Once there, she grabbed Mr. Lee's truck keys and ran off. The couple yelled at each other in the parking lot. Mr. Lee took back his keys, shoved his wife, punched her in the back and the face, and drove off, leaving Ms. Lee and the children at the bar. Ms. Lee called 911 from the bowling alley.

Spokane Police Officers Benjamin Estes and Kevin Langford arrived at the bowling alley about 3:30 a.m. They interviewed Ms. Lee, concluded she was the victim of domestic violence and decided to talk to Mr. Lee. They considered a custodial arrest for fourth degree assault. And they had probable cause to arrest Mr. Lee for domestic violence.

Ms. Lee told the officers she wanted her husband removed from the residence so she could take the children home. And she wanted him arrested for assaulting her. She told the officers that Mr. Lee would be at the house. Officer Estes strongly urged her to remain at the bowling alley with the children until the situation at the house was resolved. But Ms. Lee insisted on going immediately to the house.

Officers Estes and Langford arrived at the Lee house a couple of minutes before Ms. Lee and the children, and parked across the street. They could see Mr. Lee's truck in the driveway, but could not see whether he was at home.

After Ms. Lee arrived, both officers tried to persuade her to stay with her children in the car while they dealt with Mr. Lee. She refused. She took the children and approached the front door.

Ms. Lee knew Mr. Lee had access to firearms but did not fear any danger. Officer Estes realized this was not going to be a normal call.

Officer Langford took up a position on Ms. Lee's right side. Officer Estes was to her left and behind her. She tried to unlock the door with her key, but Mr. Lee held the lock in the locked position. She asked him several times to let her in. Mr. Lee responded, "get the f* * * out of here ... or two people are going to die tonight." Ms. Lee backed away, taking the children with her.

Officer Langford also started to back away from the doorway. Officer Estes stayed in position. Mr. Lee opened the door. The officers could see a rifle with the scope pointed down. Officer Estes shouted "drop the gun, drop the gun." Mr. Lee refused. Instead he raised the rifle and pointed it "directly at Officer Langford's stomach and chest area." Both officers drew their guns. Officer Estes fired once at Mr. Lee. The door closed and the porch light went out.

Police did not know Mr. Lee's condition, and so followed the procedure for dealing with a barricaded, armed suspect. They spent several hours trying unsuccessfully to contact Mr. Lee by telephone. Finally, a SWAT team entered the house and discovered Mr. Lee dead behind the front door with a bullet wound in his forehead. He appeared to have been killed instantly. His blood alcohol was 0.12 percent. He was still holding the rifle, and had three other guns and "significant ammunition" at strategic locations in the house.

PROCEDURAL HISTORY

The surviving Lees filed a 42 U.S.C. § 1983 action for damages against the City of Spokane, Officer Estes and Officer Langford. They alleged violations of Mr. Lee's Fourth and Fourteenth Amendment rights and violations of the survivors' substantive due process rights under the Fourteenth Amendment. Both the estate and the survivors asserted state claims of wrongful death. The survivors also claimed negligent infliction of emotional distress and outrage.

The City and the officers moved for dismissal of all claims. The court granted summary dismissal on the § 1983 claims. The court dismissed Mr. Lee's personal wrongful death claim but refused to dismiss the family's wrongful death claims. It dismissed the claim of outrage, but refused to dismiss the claim of negligent infliction of emotional distress.

The Lees appeal. The City cross-appeals the court's refusal to dismiss the wrongful death claims and the claim for negligent infliction of emotional distress.

DISCUSSION

§ 1983 CLAIMS

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ... for redress.

42 U.S.C. § 1983. The preferred approach to reviewing a § 1983 action is first to identify precisely which constitutional right, if any, has been violated, and only then to determine whether the defendants are entitled to qualified immunity. County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 371 n. 4 (9th Cir.1998). We take that approach.

Standard of Review on Summary Judgment. We review an order of summary judgment de novo. CLEAN v. City of Spokane, 133 Wash.2d 455, 462, 947 P.2d 1169 (1997). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56; CLEAN, 133 Wash.2d at 462, 947 P.2d 1169. We consider all the evidence in the light most favorable to the nonmoving party. Morinaga v. Vue, 85 Wash.App. 822, 828, 935 P.2d 637 (1997).

§ 1983 Fourth Amendment Claim. The Lees' § 1983 claim is predicated on the violations of Mr. Lee's Fourth Amendment rights. The heart of their Fourth Amendment claim focuses on the events leading up to the deadly confrontation. They contend that both officers unreasonably failed to avoid the confrontation, even if their conduct after Mr. Lee opened the door was objectively reasonable. The Lees urge that excessive force may be found where police conduct preceding the use of force is unreasonable and, thereby, creates the situation requiring deadly force. Sevier v. City of Lawrence, Kansas, 60 F.3d 695, 699 (10th Cir.1995); Alexander v. City & County of San Francisco, 29 F.3d 1355, 1366 (9th Cir.1994); Wood v. Ostrander, 879 F.2d 583, 594 (9th Cir.1989); Ward v. City of San Jose, 737 F.Supp. 1502, 1507-08, 1510 (N.D.Cal.1990), aff'd in part, rev'd in part, 967 F.2d 280 (9th Cir.1991).

The City responds that reasonableness must be judged solely from the officers' point of view at the time and place of the seizure, not with 20/20 hindsight. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). And it contends it is not necessary that the officers' conduct leading up to the fatal confrontation be perfect. Whether the officers' collateral judgments could have been better is not the issue. Id. at 395-97, 109 S.Ct. 1865. The question is: Was the conduct reasonable at the moment of seizure? Scott v. Henrich, 39 F.3d 912 (9th Cir.1994). The City argues further that it is not unlawful to shoot a suspected violent felon who is threatening immediate deadly force against an officer. Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

We begin our analysis by first noting that Fourth Amendment rights are personal and may not be vicariously asserted. Moreland, 159 F.3d at 369 (citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). Nor does 42 U.S.C. § 1983 create a vicarious cause of action. Claybrook v. Birchwell, 199 F.3d 350 (6th Cir.2000); Estate of Johnson v. Village of Libertyville, 819 F.2d 174, 177-78 (7th Cir.1987). The plaintiff must allege injury directly. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45...

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