Hernandez v. Fed. Way

• Decision Date: 24 April 2020
• Docket Number: Case No. 2:18-CV-01473-BJR
• Citation: Hernandez v. Fed. Way, 456 F.Supp.3d 1228 (W.D. Wash. 2020)
• Parties: Margarita HERNANDEZ, individually and as executor of the Estate of Ricardo Hernandez, Plaintiff, v. FEDERAL WAY, Blake Losvar, Tanner Pau and Several John and Jane Doe Officers, Defendants.
• Court: U.S. District Court — Western District of Washington

456 F.Supp.3d 1228

Margarita HERNANDEZ, individually and as executor of the Estate of Ricardo Hernandez, Plaintiff,

v.FEDERAL WAY, Blake Losvar, Tanner Pau and Several John and Jane Doe Officers, Defendants.

Case No. 2:18-CV-01473-BJR

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

Signed April 24, 2020

James Bible, James Bible Law Group, Jesse Valdez, Valdez Lehman PLLC, Bellevue, WA, Leah R. Altaras, Altaras Law PLLC, Seattle, WA, for Plaintiff.

J. Ryan Call, City of Federal Way, Federal Way, WA, Robert Leslie Christie, Thomas P. Miller, Christie Law Group PLLC, Seattle, WA, for Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE

I.INTRODUCTION

In the evening hours of October 8, 2016, Ricardo Hernandez("Ricardo") was shot and killed by two Federal Way Police Officers.The shooting occurred after a brief standoff at the home where Ricardo lived with his mother, stepfather, and two brothers.Plaintiff, Ricardo's mother, initiated this action against the City of Federal Way and the officers involved in the shooting (collectively "Defendants"), alleging claims under both federal and Washington law.Currently before the Court is Defendants’ motion for summary judgment, Plaintiff's opposition thereto, and Defendants’ reply in support of the motion.Dkt. Nos. 30, 48, 55.Having reviewed the parties’ submissions, the record of the case, and the relevant legal authority, the Court will GRANT the motion.

II.FACTUAL BACKGROUND

On October 8, 2016 at approximately 5:35 in the evening, 911 emergency services received a phone call from Ricardo's mother, Margarita Hernandez, at the Camelot Square Trailer Park in Federal Way, Washington.Dkt.No. 31-2.She was frantic and requested that the police "[p]lease ... come to my house ... right now."Id. at 1.There was a lot of background noise, including screaming, and the 911 operator had a difficult time understanding Ms. Hernandez.Id.After a few seconds, Ms. Hernandez handed the phone to her son, Joel, who reported that his brother, Ricardo, had four knives that were "about a foot" long and that Ricardo was "trying to kill us right now."Id. at 1, 6.Joel pleaded with the 911 operator to send police officers to their home: "He keeps throwing (unreadable) ... destroying the house.He's destroying the house ... Please he's trying to kill us."Id. at 4.Joel informed the operator that he, Ms. Hernandez, his stepfather, and his other brother were barricaded in a room, but that Ricardo was "right outside the door" and "he's going to break the door."Id. at 6.

Federal Way Police Officers Blake Losvar, Tanner Pau, Chase Smith, and Lieutenant Brigham Schultz were dispatched to the family's residence to respond to a "domestic [dispute] with a knife" at approximately 5:40 PM. Dkt.No. 31-4at 2.The dispatch report notified the police officers that Joel claimed that Ricardo had "mental health issues."Id. at 2.

Officer Losvar was the first to arrive at the scene, followed shortly after by Officer Pau at approximately 5:45 PM. Dkt.Nos. 32-2at 4; 36-1 at 4.Officers Losvar and Pau testified that they could see a man, woman, and two boys through what appeared to be a bedroom window in the trailer home and that the individuals "appeared to be extremely scared", "frozen in fear", and "were speaking in soft voices."Dkt.Nos. 32-2at 5; 36-1 at 5.Officers Losvar and Pau were able to evacuate Ms. Hernandez, Joel, and his brother out the bedroom window, but Mr. Zambrano, who had barricaded himself against the door of the bedroom, hesitated to leave his position because he was afraid that Ricardo would enter and harm him before he could make it out the window.Dkt. No. 40-1 at 10:14–25.Officer Losvar later testified that he also feared that Ricardo would injure or kill Mr. Zambrano if he successfully breached the door.Dkt.No. 32-2at 5.

Officer Losvar testified that during this time he looked through a different window in the trailer and he saw Ricardo standing "approximately 10 feet from me" and "hold[ing] multiple knives" in his hands.Dkt.No. 32-2at 5.Officer Losvar claims that he made eye contact with Ricardo, identified himself as a police officer, and ordered Ricardo to put down the knives.Id.He alleges that Ricardo did not comply with his instructions, but instead moved toward the other side of the trailer.Id. at 5–6.

Officer Pau testified that he was able to safely evacuate Mr. Zambrano from the bedroom window and that he and Officer Losvar then escorted the family to a nearby shed.Id. at 6.There is a dispute as to whether the family could see the scene at the trailer unfold from where they were standing by the shed.Mr. Zambrano testified that he could see "everything" from his vantage point (Dkt.No. 51-4at 5) while Officer Losvar claims that the family could no longer see the trailer from where they were standing (Dkt.No. 32-2at 6).Officer Losvar testified that, at this time, one of the family members told him that Ricardo had threatened to stab and kill the family.Dkt.No. 32-2at 6.In light of this and his own observations, Officer Losvar determined that he had probable cause to arrest Ricardo for felony harassment and broadcast the same over his police radio.Id.He also asked for additional officers to join him at his location and requested that an officer respond to the scene with a less lethal 40 mm shotgun.Id.

Corporal Riggles and Officers Chase Smith, Shawn Warrick, and others arrived on the scene and established a perimeter around the trailer home.Dkt. Nos. 30 at 5-6:7, 18; 32-2 at 6.Meanwhile, Officer Pau moved to the rear of the trailer home where he positioned himself in the "small backyard area, at the northeast corner of the trailer."Dkt.No. 36-1at 5.Officer Pau claimed that from his position, he had "a clear unobstructed view of the backdoor of the trailer," which was elevated above the ground "by a wooden landing area just outside the door" that had 2-3 steps leading down to the ground level.Id.Officer Pau testified that the backdoor of the trailer was "approximately fifteen to twenty feet from" where he was standing.Id.This is another area of dispute.Plaintiff alleges that Officer Pau was more than 21 feet from the backdoor.Dkt. No. 48 at 3:9–11.

Officer Pau testified that Ricardo opened the backdoor and yelled, " ‘Fuck you!Kill me!’ "Dkt.No. 36-1at 5.Officer Pau claimed that Ricardo opened and closed the door a few more times and, at that point, Officer Pau became "concerned for [his] personal safety as [he] was unable to make constant visual contact with Ricardo, did not know whether [Ricardo] had additional weapons, [Ricardo] continued to act in an aggressive and angry manner, and [Officer Pau] did not know if the trailer was clear of all other occupants."Id. at 6.In addition, Officer Pau was aware that Officer Losvar had determined that probable cause existed to arrest Ricardo for felony harassment.Id. at 5.Officer Pau request that another police officer join him in the backyard behind the trailer and Officer Losvar joined him.Id. at 6.Both officers testified that they continued to advise Ricardo that he was under arrest and to slowly exit the residence unarmed.Dkt.Nos. 32-2at 6; 36-1 at 6.

Officers Losvar and Pau alleged that Ricardo continued to partly open and close the backdoor in an agitated manner, shouting at the officers to kill him.Dkt.Nos. 32-2at 6; 36-1 at 6.This continued for another few minutes until, the officers allege, Ricardo opened the door and stepped onto the wooden landing toward the stairs leading down to the ground level.Id.Officers Losvar and Pau both testified that Ricardo was holding a large kitchen knife in one hand and two more knives in his other hand.Id.Officer Pau testified that at that point he"became concerned that Ricardo now posed a direct threat of serious physical injury to Officer Losvar or [him]self."Dkt.No. 36-1at 6.He testified that he felt Ricardo posed a serious threat to them because "[1] the distance between us would easily be covered by a simple jump from the [wooden landing], [2] Ricardo was armed with multiple weapons, [3]he recognized us as law enforcement, [4]he was agitated and angry, and [5] refused to response to commands."Id.

The officers reported that Ricardo continued to yell "just fucking kill me!" and then he"abruptly stepped forward as if he was about to come at [the officers], while raising the knives from his sides to about his abdomen level in [the officers’] direction."Dkt.No. 36-1at 6;see alsoDkt.No. 32-2at 6(stating that Ricardo "looked directly at [the officers] with a piercing stare and [ ] started to advance toward [them] in an aggressive fashion.").Both Officer Losvar and Officer Pau testified that they believed Ricardo was about to attack them and, as such, they fired their guns simultaneously.Dkt.Nos. 32-2at 7; 36-1 at 6.They collectively fired nine rounds, six of which struck Ricardo in the head, shoulder, and chest.Dkt. No. 40-17 at 18:8–18.The officers testified that when the rounds struck Ricardo, he fell backwards into the trailer's doorway, dropped the knives, and landed on his back.Dkt.Nos. 32-2at 7; 36-1 at 6.Officer Losvar recalled seeing "knives laying on the deck" after Ricardo was shot.Dkt. 32-2at 7.He then radioed for medics who pronounced Ricardo deceased at the scene when they arrived.Id.;Dkt.No. 51-7at 3.

III.LEGAL STANDARD

Rule 56 provides that a district court"shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."FED. R. CIV. P. 56(a);Fed. Home Loan Mortg. Corp. v. SFR Investments Pool 1, LLC , 893 F.3d 1136, 1144(9th Cir.2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 1618, 203 L.Ed.2d 897(2019).Disputes over facts become "material" only where they"might affect the outcome of the suit under...