Johnson v. City of Seattle

• Decision Date: 16 March 2005
• Docket Number: No. C03-2418L.,C03-2418L.
• Citation: 385 F.Supp.2d 1091
• Parties: Michael Alan JOHNSON, et al., Plaintiffs, v. THE CITY OF SEATTLE, et al., Defendants. Christopher J. Shirley, Plaintiff, v. The City of Seattle, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

385 F.Supp.2d 1091

Michael Alan JOHNSON, et al., Plaintiffs, v. THE CITY OF SEATTLE, et al., Defendants.

Christopher J. Shirley, Plaintiff, v. The City of Seattle, et al., Defendants.

No. C03-2418L.

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

March 16, 2005.

COPYRIGHT MATERIAL OMITTED

Karen Kathryn Koehler, Michael E Withey, Stritmatter Kessler Whelan, Withey Caluccio (Sea), Seattle, WA, for Michael Alan Johnson, Jesse Wilson, Jr, Allison Wilson husband and wife, Summer Thuney, Jessica Arnold, Adam Lazara, Ralph Radford, Stacey E Smith, Howard Jensen, Kai A Ralls, Plaintiffs.

Anne Melani Bremner, Scott Bissell, Raul R. Martinez, Stafford Frey Cooper, Seattle, WA, Blake Edward Marks-Dias, Riddell Williams, Seattle, WA, for City of Seattle, Paul Schell, defendants.

Anne Melani Bremner, Scott Bissell, Raul R. Martinez, Stafford Frey Cooper, Seattle, WA, Blake Edward Marks-Dias, Riddell Williams, Seattle, WA, Theron A Buck, Stafford Frey Cooper, Seattle, WA, for R. Gil Kerlikowske Chief of Police, defendant.

John WS Acheson, III, Acheson Law Offices, Bellevue, for Christopher J Shirley Plaintiff.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on a motion filed by defendants The City of Seattle, et al. (collectively, "defendants") for summary judgment on plaintiffs' two remaining claims. (Dkt.# 64). Plaintiffs suffered injuries from assaults by third parties that occurred in the Pioneer Square area of Seattle on February 27, 2001 during the "Mardi Gras Riot."

Plaintiffs allege that defendants, who include the City of Seattle, former Mayor Paul Schell, and Seattle Police Chief Gil Kerlikowske, violated plaintiffs' constitutional rights and are therefore liable pursuant to 42 U.S.C. § 1983. Specifically, Plaintiffs contend that defendants' policy of not intervening as the Mardi Gras Riot progressed created a danger of private violence and violated their "rights of life, liberty, freedom, and bodily integrity." See U.S. Const., Amdt. 14, § 1 ("no State shall ... deprive any person of life, liberty, or property, without due process of law"). The Court previously dismissed plaintiffs' outrage claim, but found that plaintiffs' complaint sufficiently alleged Section 1983 and negligence claims. (Dkt. ## 38, 43).

For the reasons set forth in this Order, the Court grants defendants' motion for summary judgment.

II. DISCUSSION

A. Background Facts.

1. Events Prior to Fat Tuesday.

In February 2001, private businesses sponsored events in Seattle's historic Pioneer Square neighborhood to celebrate Mardi Gras. The events were scheduled to begin on Friday, February 23 and end on Tuesday, February 27, "Fat Tuesday." During prior years, the Mardi Gras celebrations had been peaceful, and the police department expected that trend to continue.

Contrary to expectations, problems arose on the first night. On Friday night, police determined that the drunken crowd had become a threat to public safety and at around 2 a.m., they ordered the crowd to disperse. The police released chemical munitions to clear the crowd after they ignored a second dispersal order. Although the police department revised its operational plan for Saturday night, including enlarging the number of assigned officers, the crowd again engaged in riotous behavior. Around 11 p.m., officers were ordered to withdraw from the crowd to transition into protective equipment, referred to as "hardening up." When officers subsequently attempted to move the crowd, they were pelted with rocks and bottles. After the officers deployed chemical munitions, the crowd splintered into two groups, leaving some officers surrounded or flanked. Some individuals broke windows and looted retail establishments, and one officer suffered a broken arm while trying to apprehend a suspect. Although officers were assaulted with rocks and bottles on Friday and Saturday nights, there were no serious injuries to celebrants by other members of the crowd. The events on Sunday and Monday nights were relatively quiet.

2. Fat Tuesday.

Prior to the commencement of the 2001 Mardi Gras events, the police department drafted an operational plan to handle the Fat Tuesday celebration based on the relative peace of past celebrations. After the events of Friday and Saturday nights, officers met on Sunday to revise the operational plan for Fat Tuesday, including increasing the number of assigned officers to more than 350. The revised plan was designed to "deter unlawful activity by providing a strong uniform presence at the event." See Declaration of Lou Reiter (Dkt.# 85) ("Reiter Decl."), Ex. 4.¹ At approximately 1 p.m. on Tuesday, Assistant Chief Dan Bryant, the assigned incident commander for the night, and Captain Bill Moffat, the assigned field commander for the night, met to discuss the plan for the evening.

Between 9 and 9:30 p.m., as the crowd steadily increased in size and hostility level, Captain Moffat instructed officers to withdraw from the field to the staging area at the Colman Dock to transition into hardened protective gear. Once the uniformed officers withdrew, the police ordered the plainclothes Anti-Violence Team officers to withdraw from the crowd for their own protection. The commanders moved to the top of the Sunken Ship parking garage at 1st and Yesler Way where they remained for most of the night. When they peered over the top of the garage, they were often pelted with rocks and bottles from the crowd below.

Once a squad had hardened up, it was redeployed to a position on the perimeter of the crowd while other squads withdrew to don protective gear. Asst. Chief Bryant determined that it was not safe to reinsert officers back into the crowd, which had become more dense and confrontational. According to the logs of radio communications, a caller reported around 10 p.m. that he observed several "carloads of gang members" practicing "kick boxing" and fighting moves and heading to Pioneer Square. Reiter Decl., Ex. 9. Officers on the scene also reported observing known gang members in the crowd. Id., Ex. 2 at 11.

The crowd swelled to an estimated 5,000 to 7,000 people. Although the commanders were aware that sporadic fights were occurring in the crowd, Asst. Chief Bryant determined that any attempt to disperse the crowd could incite panic or lead to greater violence and injuries. Instead, he attempted to thin the crowd by directing the command post to contact the local bars and request that they close early, which several did.

A marked increase in the violence occurred between midnight and 12:30 a.m. The department's radio communications describe small groups randomly assaulting individuals, and multiple victims in need of medical care.

Despite the continuing violence, police officers were ordered to remain on the periphery of the crowd. The radio communications included the following orders to officers over the course of the night: "evacuate," "move to the perimeter," "keep your backs to the wall," and "no one go in to First and Yesler," where the majority of the crowd was congregated. Reiter Decl., Exs. 6, 13. Officers ordered the crowd to disperse around 1:30 a.m., and when they refused to do so, chemical munitions were deployed. The crowd eventually dispersed.

Plaintiffs were among the scores of individuals who were assaulted during Fat Tuesday. Tragically, one young man, Kristopher Kime, died from injuries he suffered around 1:10 a.m.² The plaintiffs in this case were assaulted and injured at various times between 9:45 p.m. and 1:45 a.m. in the Pioneer Square area. See Declaration of Michael E. Withey (Dkt.# 84), Ex. 7.

B. Summary Judgment Standard.

On a motion for summary judgment, the Court must "view the evidence in the light most favorable to the nonmoving party and determine whether there are any genuine issues of material fact...." Holley v. Crank, 386 F.3d 1248, 1255 (9th Cir.2004). All reasonable inferences supported by the evidence are to be drawn in favor of the nonmoving party. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002). "[I]f a rational trier of fact might resolve the issues in favor of the nonmoving party, summary judgment must be denied." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987).

C. 42 U.S.C. § 1983 Claim.

To state a 42 U.S.C. § 1983 claim, a plaintiff must allege that (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived the plaintiff of a constitutional right. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988) (as amended in 1990).

1. The Due Process Clause and Danger Creation Doctrine.

In analyzing plaintiffs' Section 1983 claim, the Court must first determine whether they have been deprived of a Constitutional right. Plaintiffs allege that defendants, by failing to intervene in the melee and prevent their injuries, violated their right to substantive due process guaranteed by the Fourteenth Amendment. Generally, "a State's failure to protect an individual from private violence, even in the face of a known danger, `does not constitute a violation of the Due Process Clause.'" Butera v. Dist. of Columbia, 235 F.3d 637, 647 (D.C.Cir.2001) (quoting DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). This general rule arises from the fact that the due process clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without `due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means." DeShaney, 489 U.S. at 197, 109 S.Ct. 998 (explaining that the purpose of the...