Feis v. King Cnty. Sheriff's Dep't

• Decision Date: 19 December 2011
• Docket Number: No. 66062–4–I.,66062–4–I.
• Citation: 267 P.3d 1022,165 Wash.App. 525
• Court: Washington Court of Appeals
• Parties: David FEIS, Appellant, v. KING COUNTY SHERIFF'S DEPARTMENT, a division of King County, Deputies Christina Bartlett, Eric Franklin, Abigail Steele, and Kyle McCutchen, and Does 1–5 inclusive, Respondents.

165 Wash.App. 525

267 P.3d 1022

David FEIS, Appellant,

v.KING COUNTY SHERIFF'S DEPARTMENT, a division of King County, Deputies Christina Bartlett, Eric Franklin, Abigail Steele, and Kyle McCutchen, and Does 1–5 inclusive, Respondents.

No. 66062–4–I.

Court of Appeals of Washington, Division 1.

Dec. 19, 2011.

Darryl Parker, Premier Law Group, PLLC, Bellevue, WA, Riley Lovejoy, Attorney at Law, Seattle, WA, for Appellant.

Howard Phillip Schneiderman, Office of the Prosecuting Attorney, Kristofer John Bundy, Seattle, WA, for Respondents.

DWYER, C.J.

[165 Wash.App. 530] ¶ 1 In an action premised upon the alleged violation of a federal constitutional right, qualified immunity protects government officials from civil liability unless the plaintiff proffers evidence tending to establish the violation of a particularized right that was clearly established beyond debate at the time of the alleged violation. Ashcroft v. al-Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2080–83, 179 L.Ed.2d 1149 (2011); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” al-Kidd, 131 S.Ct. at 2085. David Feis filed a lawsuit against the King County Sheriff's Department (Department) and four individual officers in connection with his arrest for assault in the fourth degree—domestic violence and an ensuing entry of his home and seizure of his firearms. Finding that the officers were immune from suit, the trial court dismissed all of Feis's claims on summary judgment.¹ Feis² contends that the officers are not immune because their actions violated his clearly established right to be free from unreasonable searches and seizures. The trial court correctly ruled that Feis failed to defeat the officers' assertion of immunity. Accordingly, we affirm.

I

¶ 2 On March 31, 2007, King County Sheriff's deputies responded to a series of 911 calls regarding an incident in Shoreline involving Feis and his step-son, Joshua Petersen. Joshua himself placed one of the calls. He reported that Feis had hit him and requested that police come to the scene. Joshua placed the call while at a church across the street from the house where the incident had occurred. He told the dispatcher that he had just returned home³ from shopping with his brother when the incident began. Joshua also told the operator that he had run away and that he was worried that Feis might have pursued him. When the operator asked if there were any weapons in the house, Joshua responded that he believed that Feis kept guns.

¶ 3 Minutes later, Hope Feis, Feis's wife, called 911 to report the same altercation between her husband and son and to request that police come to the scene. During this call, the dispatcher asked to speak with Feis. Feis explained that he and Joshua had exchanged insults before Feis was hit in the nose by either Joshua or Edward, Joshua's brother. Feis was unsure whether it was Joshua or Edward who had hit him because Edward had positioned himself between Feis and Joshua as Edward “thought [Feis] was going to pop [Joshua] one.” Clerk's Papers (CP) at 30. Feis told the operator that, in response to being hit, he “reached out and barely slapped [Joshua] in the face.” CP at 30.

¶ 4 Three officers were dispatched to the scene, having been directed by radio to respond to a domestic violence incident.⁴ Sergeant Abigail Steele and Deputy Eric Franklin arrived at the scene almost simultaneously, where they encountered Feis, Hope, and Edward. Sergeant Steele immediately observed that Hope was “very upset and crying.” CP at 82. When the officers questioned Feis and Hope, Feis interrupted and talked over Hope. Consequently, Sergeant Steele asked to speak with Hope privately, but when Hope stood up and began to walk she collapsed and suffered what appeared to be a seizure. The officers summoned an aid unit. Medics treated Hope at the scene.

[165 Wash.App. 533] ¶ 5 As Hope was being treated, Deputy Franklin spoke with Feis while Sergeant Steele spoke with Edward. Feis told Deputy Franklin that he was very upset with Joshua, that they had argued but Edward separated them, and that Feis had merely “pushed Joshua's hand away” but had not hit him. CP at 97. Edward told Sergeant Steele that he and Joshua had returned home from shopping to find their parents inside their car parked on the front lawn. Edward reported that he saw Feis move his car toward Joshua, but “didn't think he was trying to run Joshua over.” CP at 83. Edward told Sergeant Steele that Joshua and Feis “started getting into it,” so Edward stepped between them to “prevent a problem.” CP at 83.

¶ 6 After speaking with Edward, Sergeant Steele spoke with Feis. Feis similarly reported that he and Hope were still inside their car parked on the front lawn when Joshua and Edward returned home from shopping. Feis told Sergeant Steele that he and Joshua had “fought, but landed no blows.” CP at 83. Sergeant Steele observed that Feis “expressed anger at Joshua,” and remembered Feis saying that he was “sick and tired of Joshua not working, not going to school, and costing him money by turning the heat up too high and not getting a job.” CP at 83.

¶ 7 Meanwhile, Deputy Kyle McCutchen spoke with Joshua at the nearby church where Joshua was waiting. Joshua told Deputy McCutchen that Feis had assaulted him. Specifically, Joshua reported that he and Edward had arrived home, where their parents were sitting inside of the family car on the front lawn, when the incident began. Joshua explained that Feis became angry because Joshua and Edward had spent money while shopping and that Feis “lunged” the car toward Joshua, almost hitting him. CP at 100. Joshua reported that, after the two exchanged “heated words,” ⁵ Feis slapped him. CP at 100. Joshua told Deputy McCutchen that he was certain that Feis had attempted to hit him with the car and that he was scared. Thereafter, Deputy McCutchen and Joshua returned to the Feis residence. In his declaration, Deputy McCutchen noted a remarkable size disparity between Joshua, who was very slight, and Feis, who was “extremely large and obese” and over six feet tall. CP at 100.

¶ 8 Now at the Feis residence, Deputy McCutchen relayed Joshua's account to Sergeant Steele before speaking with Hope inside the medic unit. According to Deputy McCutchen, Hope's report of events was “almost identical to Joshua's report,” as Hope told Deputy McCutchen that Feis had “lunged” his car at Joshua, got out of the car, and slapped Joshua. CP at 101. Hope confirmed her report in a signed statement prepared by Deputy McCutchen.⁶ Hope also indicated that Feis “had been behaving this way for nearly three years” and that “every time she tries to leave [Feis] he threatens her and takes her car keys and cell phone.” CP at 84. Deputy McCutchen relayed Hope's report to Sergeant Steele.

¶ 9 The deputies observed physical evidence corroborating the reports of an assault having taken place. Each of the deputies noted that Feis's car was parked on the lawn with rutted tire tracks behind its wheels, consistent with the reports of Feis rapidly accelerating his car toward Joshua. Sergeant Steele observed that Joshua's face was slightly red, consistent with a slap, although Deputy McCutchen did not notice any marks on Joshua's face.

¶ 10 Deciding that there was probable cause to arrest Feis for domestic assault and that an arrest was therefore mandatory, Sergeant Steele placed Feis in handcuffs. Because Feis is “exceptionally large,” the officers believed that he would not fit in a patrol car. CP at 85. Thus, Deputy Franklin called for a jail van to transport Feis from the scene.

¶ 11 After Feis's arrest, Sergeant Steele further questioned Joshua, pursuant to an established practice of the Department in handling domestic violence incidents. Following the questions included on the King County Sheriff's “Domestic Violence Supplemental Form,” ⁷ Sergeant Steele asked Joshua a variety of questions. During their conversation, Joshua reported to Sergeant Steele that he lived in the family home, where the incident had occurred, and provided that address as his home address. Joshua also provided the family home telephone number when asked for contact information.

¶ 12 Sergeant Steele also asked Joshua whether Feis had previously assaulted him. Joshua indicated that Feis had assaulted him four or five times previously, but that the assaults had not been formally reported. Joshua told Sergeant Steele that he and Feis had “had problems in the past” and that it “had ‘been physical’ before.” CP at 86.

¶ 13 Additionally, pursuant to Department policy, Sergeant Steele asked Joshua if Feis had any firearms and whether Feis had ever used or threatened to use firearms against Joshua. Joshua reported that there were firearms in the house and possibly in Feis's car and that Feis had previously threatened that he could use his firearms to “take care of business.” CP at 86. Finally, Sergeant Steele asked Joshua if he would like the deputies to remove the firearms, to which Joshua responded affirmatively. Joshua confirmed the information that he had imparted to Sergeant Steele in a written witness statement.

¶ 14 In her declaration, Sergeant Steele noted that Joshua had conveyed to her that he felt terrified and that both Joshua and Hope were “shaken and afraid.” CP at 87. Sergeant Steele further stated that, at the time, she was personally concerned for the safety of Joshua and Hope. Because Joshua had so requested, Sergeant Steele asked Deputy McCutchen to remove the firearms from the Feis residence. Sergeant Steele and Deputy McCutchen both recall that Joshua accompanied Deputy McCutchen into the house.

¶ 15 A search of Feis's vehicle uncovered no firearms. Deputy McCutchen then entered the Feis home, accompanied by Joshua.⁸ Joshua directed Deputy McCutchen to a bedroom where...