Gallegos v. Freeman
| Decision Date | 07 January 2013 |
| Docket Number | No. 67628–8–I.,67628–8–I. |
| Court | Washington Court of Appeals |
| Parties | David R. GALLEGOS, Appellant, v. Jeremy FREEMAN, an individual; and Whatcom County, Washington, a governmental entity, Respondents. |
OPINION TEXT STARTS HERE
Jeffery A. Thigpen, Attorney at Law, Bellingham, WA, for Appellant.
Michael A. Patterson, Sarah E. Spierling Mack, Patterson Buchanan Fobes & Leitch, Seattle, WA, Randall J. Watts, Bellingham, WA, for Respondents.
¶ 1 Qualified immunity shields a government official from liability for money damages in a lawsuit asserting the violation of a federal civil right unless the plaintiff pleads facts demonstrating that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. A right is “clearly established” only where existing precedent has resolved the statutory or constitutional question beyond debate—the contours of the right must be sufficiently clear that every reasonable official in the circumstances presented would have understood that the official's conduct violated that right.
¶ 2 In this case, a police officer shot and wounded David Gallegos after Gallegos, whom the officer reasonably believed to be suicidal, failed to obey the officer's commands to stop as he drove his vehicle toward the officer in a darkened field. Gallegos appeals from the trial court's determination that the officer was entitled to qualified immunity on Gallegos's federal constitutional claim of excessive force. However, Gallegos has failed to demonstrate that a reasonable police officer would understand that his or her use of force was clearly unlawful in the circumstances presented. Accordingly, because the particularized right at issue was not “clearly established,” the trial court correctly ruled that the police officer was entitled to qualified immunity against this claim. Moreover, even when all of the facts are viewed in the light most favorable to Gallegos, the police officer's use of force was reasonable. Thus, the officer was also entitled to qualified immunity because there was no violation of a constitutional right. Because Gallegos's remaining claims are also without merit, we affirm.
¶ 3 On February 10, 2005, at approximately 7:00 p.m., David Gallegos entered the home of his estranged wife, Emma, in violation of a no-contact order. Gallegos told Emma that he was looking for his firearms. When Emma feigned ignorance as to the whereabouts of the weapons, Gallegos picked up a large kitchen knife. He held the knife against the wall with the point toward his body. Gallegos pushed his body toward the wall and pretended to impale himself on the knife. He then slumped to the floor.
¶ 4 Gallegos's 16–year–old daughter, who had witnessed this event, telephoned 911. Gallegos, who was not actually injured, quickly left the house and drove away in a red Chevrolet Beretta, still possessing the knife. Emma told the 911 operator that Gallegos was likely driving to his parents' house.
¶ 5 Whatcom County dispatch thereafter relayed this information to officers in the field. The dispatcher informed officers that Gallegos had violated a no-contact order, that he had attempted to obtain firearms from his wife's residence, and that he was potentially suicidal. The dispatcher indicated that Gallegos had not acquired a firearm at his wife's residence but that he was armed with a knife.
¶ 6 Deputy Jeremy Freeman and Sergeant Steven Cooley were the first police officers to arrive at the home of Gallegos's parents. Deputy Freeman, a K–9 handler, was accompanied by a police dog. The area was unlit and extremely dark. Deputy Freeman observed several buildings, trees, and a large, open field on the property. The two officers began to talk to Gallegos's brother and father, who were also present on the property.
¶ 7 Shortly thereafter, Whatcom County dispatch received a second 911 phone call. Skyla McKee, who identified herself as Gallegos's girlfriend, indicated that her “boyfriend [was] going to commit suicide.” She told the operator that she was located “way back in the field” on Gallegos's parents' property. She reported that Gallegos had a knife and had taken an unknown number of unidentified pills. Gallegos, who could be heard yelling in the background, was threatening to “cut [his] own throat” if law enforcement attempted to intervene. The dispatcher immediately relayed this information to Sergeant Cooley and Deputy Freeman.
¶ 8 Deputy Freeman thereafter began to scan the field with his flashlight. He determined that the area was a large, open, grassy field. Deputy Freeman also observed a dirt pathway leading toward the back of the field. Having surveyed the area, Deputy Freeman quickly turned off the flashlight so as not to reveal his location to Gallegos.
¶ 9 Shortly thereafter, Deputy Freeman heard a scream from somewhere in the field. Having been informed by dispatch that there was a person in the field with Gallegos and that Gallegos was armed with a knife and possibly suicidal, Deputy Freeman was concernedfor this person's safety. He entered the field and traveled by foot in the direction of the scream. Sergeant Cooley ordered Gallegos's brother and father to remain behind at the edge of the field and then followed behind Deputy Freeman.
¶ 10 Deputy Freeman carried his unlit flashlight and dog lead in his left hand while keeping his right hand free. He jogged along the dirt pathway toward the rear of the field where he believed the scream had originated. As he moved up the path, Deputy Freeman heard a car engine revving and observed vehicle headlights in the back of the field. Deputy Freeman believed the vehicle was approximately 200 yards away from him.1
¶ 11 Concerned that the person in the car was using the headlights in order to locate the police officers in the field, Deputy Freeman drew his handgun from its holster with his right hand and held it at a low ready position. Although the dispatcher had informed Deputy Freeman that Gallegos had not acquired any firearms from his wife's residence, given that Gallegos had violated the no-contact order with the objective of obtaining such weapons, Deputy Freeman remained concerned that Gallegos might have a gun.
¶ 12 As Deputy Freeman resumed his movement toward the rear of the field, he observed the vehicle begin to travel toward him. The vehicle's tires spun and it appeared to fishtail as it accelerated. McKee, who remained on the line with the 911 operator, screamed as Gallegos began to pull away from the back of the field.
¶ 13 It appeared to Deputy Freeman that the vehicle was traveling directly toward him at a high rate of speed.2 Deputy Freeman was illuminated by the vehicle's headlights. Although he stepped to the side of the dirt pathway, Deputy Freeman believed that the vehicle continued to turn toward him, adjusting to his movements. McKee told the 911 operator that Gallegos was “coming straight towards them at a very high speed.” Just before the vehicle reached Deputy Freeman's location, McKee shouted,
¶ 14 As the vehicle approached, Deputy Freeman turned on his flashlight and loudly ordered the driver to stop. He commanded the driver, “Sheriff, canine, stop!” 3 Despite Deputy Freeman's command, the vehicle did not slow down. Believing that he was about to be run over and also fearing for the safety of the persons behind him, Deputy Freeman decided to fire his gun at the driver. He fired three shots.4 The bullets, which entered the vehicle through driver's side window and door, struck Gallegos in the left hand and upper arm.
¶ 15 The vehicle then slowed, veered to the left of Deputy Freeman's location, and came to a stop in the field. Gallegos was slumped over the steering wheel and unconscious. Moments later, upon regaining consciousness, Gallegos began to shout at Sergeant Cooley, who was attempting to ascertain the extent of Gallegos's injuries. Gallegos told Sergeant Cooley that he knew that it was not Cooley who had shot him because the person who shot him had been accompanied by a dog.5
¶ 16 Gallegos was thereafter charged with burglary in the first degree and violation of a no-contact order based upon the incident in which he entered his wife's residence. He was also charged with assault in the second degree based upon his alleged attempt to hit Deputy Freeman with his vehicle. A jury found Gallegos guilty of burglary in the first degree and violation of the no-contact order and, in addition, returned a special verdict finding that Gallegos was armed with a deadly weapon other than a firearm during the burglary. The jury acquitted Gallegos of assault in the second degree.
¶ 17 Gallegos thereafter filed a lawsuit pursuant to 42 U.S.C. § 1983, alleging that Deputy Freeman violated his constitutional rights under the Fourth and Fourteenth Amendments by using excessive force to seize Gallegos as he drove out of the field.6 Gallegos further alleged state law causes of action for negligence and battery.
¶ 18 On September 25, 2007, Deputy Freeman moved for summary judgment based upon the theory that his actions were reasonable under the circumstances. The trial court denied this motion, finding that there were genuine issues of material fact that precluded summary judgment.
¶ 19 On May 31, 2011, Deputy Freeman filed a second motion for summary judgment, asserting that he was entitled to qualified immunity from Gallegos's lawsuit. The trial court granted this motion after determining that “[Deputy Freeman's] actions were not unreasonable under the circumstances, and, therefore, he should be granted qualified immunity for the actions on that day.” The court also dismissed the state law claims against Deputy Freeman, determining that he was entitled to state qualified immunity on those claims. 7
¶ 20 Gallegos appeals.
¶ 21 Gallegos first asserts that the trial court erred by determining that Deputy Freeman was entitled to qualified...
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