Kennedy v. City of Ridgefield
| Citation | 411 F.3d 1134 |
| Decision Date | 23 June 2005 |
| Docket Number | No. 03-35333.,03-35333. |
| Parties | Kimberly KENNEDY, individually and in her capacity as personal representative of the estate and as guardian for her children aka Kimberly Gorton; Jay D. Kennedy, aka JD Kennedy; Keith Teufel; Tera Teufel, Plaintiffs-Appellees, v. RIDGEFIELD CITY OF, a municipal corporation and political subdivision of the State of WA; Noel Shields, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ray P. Cox, Forsberg & Umlauf, Seattle, WA, for the defendant-appellant.
John R. Connelly, Jr., Darrell L. Cochran and Lincoln C. Beauregard, Gordon Thomas Honeywell Malanca Peterson & Daheim, Tacoma, WA, for the plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington; J. Kelley Arnold, Magistrate Judge, Presiding. D.C. No. CV-01-05631-JKA.
Before JAMES R. BROWNING, A. WALLACE TASHIMA, and JAY S. BYBEE, Circuit Judges.
Defendant Noel Shields appeals the district court's ruling that he is not entitled to summary judgment against Plaintiff Kimberly Kennedy's 42 U.S.C. § 1983 claim. He argues that his alleged conduct did not violate Plaintiff's clearly established constitutional rights. We disagree, and conclude the district court correctly determined that Shields is not entitled to qualified immunity. Accordingly, we affirm the decision below.
Kimberly Kennedy's § 1983 action against Ridgefield City and Ridgefield Police Officer Noel Shields stems from events occurring on September 24, 1998, when a thirteen year-old neighbor, Michael Burns, shot and killed her husband Jay Kennedy and severely wounded her.
On September 6, 1998, Kennedy called the Ridgefield Police Department ("RPD") and alleged that Michael Burns had molested Kennedy's nine-year-old daughter, Tera Teufel. RPD Officer Shields responded to the call.
Kennedy claims to have warned Shields of Michael Burns's violent tendencies at the September 6 meeting. Kennedy insists that during their initial meeting, she told Shields that the Burns family was unstable and that she had seen a lot of violence in their home. She alleges that she went on to describe several violent incidents involving Angela Burns, Michael's mother. Kennedy also claims she informed Shields that Michael Burns had been involved in a number of violent incidents, including fights at school, lighting a cat on fire, breaking into his girlfriend's house and attacking her with a baseball bat, and throwing rocks at a building in downtown Ridgefield.
Kennedy also alleges that during the September 6 meeting, Shields assured her that she would be given notice prior to any police contact with the Burns family about her allegations. Shields stated that he could not recall whether Kennedy asked to be notified prior to any contact by the authorities with the Burns family.
Shields forwarded his report to the Child Abuse and Intervention Center ("CAIC") following the September 6 meeting. It is undisputed that Shields had no contact with Kennedy between the September 6 meeting and September 24, the night of the shooting.
Kennedy alleges that on several occasions, she inquired into the status of the investigation of Michael Burns and reminded officers to notify her prior to any contact with the Burns family. She learned that Michael Burns had been investigated for sending death threats to a classmate, but that the investigation concluded that he was not responsible. Kennedy asserts that she expressed concerns about her safety and told the CAIC officer handling the investigation that she was anxious to have the investigation started.
On September 24, 1998, Kennedy called both Shields and the CAIC to inquire into the progress of the investigation. Kennedy left a message for Shields. The content of this message is disputed. Shields stated that when he arrived at work on September 24, there was a message from Kennedy inquiring about his contact with Angela Burns and the status of the molestation case. Shields's account clearly contradicts Kennedy's repeated testimony that she asked the RPD and CAIC to notify her prior to any contact with the Burns family. After receiving Kennedy's message, Shields called the CAIC to inquire into the status of the investigation. The officer responsible for the case was out so Shields left a message.
Shields decided to drive to the Kennedy house and inform Kennedy personally that he called the CAIC but did not know the status of the case. Shields stated that he did not call Kennedy before driving to her house. On the way to the Kennedy house, Shields changed his mind and decided to go to the Burns's residence first. He reasoned that it was on the way, and he could thus determine whether the Burns family had been contacted and so inform Kennedy. Shields talked to Angela Burns and informed her of Kennedy's allegations.
After speaking with Angela Burns, Shields proceeded to the Kennedy house. When he arrived, Shields told Kennedy that he had informed Angela Burns of the molestation allegations. Kennedy became upset and asked Shields why he had contacted the Burns family prior to notifying her and told Shields that she was in fear for her safety. Kennedy alleges that Shields assured her that the police would patrol the area around her and Michael's house to keep an eye on him.
After Shields left, Kennedy called a friend because she was very frightened of what Michael and Angela Burns's reaction would be. According to Kennedy, Shields told her Angela Burns was very angry after their conversation and Angela and Michael Burns began yelling at one another. Kennedy also alleges that her husband decided to stay the night at home because Shields had promised to patrol the premises. They planned to lock the doors to the house and leave town early the next morning. Kennedy also stated that she did not call 911 that night because she relied upon Shields's promise to patrol the area.
Early on the morning of September 25, 1998, Michael Burns broke into the Kennedy house and shot Jay and Kimberly Kennedy while they slept. Jay Kennedy died as a result of his injuries. Michael Burns was convicted of the premeditated murder of Jay Kennedy and attempted premeditated murder of Kimberly Kennedy.
Kennedy brought a lawsuit against Shields and Ridgefield City, among others, in Clark County Superior Court asserting several state causes of action and a claim under 42 U.S.C. § 1983 and the Fourteenth Amendment. The case was removed to the United States District Court for the Western District of Washington. On March 13, 2003, Shields and Ridgefield City moved for summary judgment. The court granted summary judgment to the defendants on all state law claims and to Ridgefield City on Kennedy's § 1983 "failure to train" claim.
The court denied Shields's motion for summary judgment based on qualified immunity. The district court concluded that viewing the facts in a light most favorable to plaintiffs, "a jury could find that Officer Shields unreasonably created a false sense of security in plaintiffs by agreeing to give plaintiffs advanced notice of advising the Burns family of the allegation that Michael Burns sexually molested Tera Teufel, and assuring the plaintiffs of a neighborhood patrol." Order, p. 4-5. This interlocutory appeal followed.
This case presents two legal issues. First, we must consider whether this Court has jurisdiction over Shields's interlocutory appeal concerning his qualified immunity defense. If so, we must then determine whether Shields is entitled to qualified immunity under the facts of this case.
We review de novo an interlocutory appeal from the denial of summary judgment based on qualified immunity. Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir.2003). In reviewing a summary judgment order in a § 1983 action where the district court determines that "the defendant's alleged conduct violated the plaintiff's clearly established constitutional rights ... we resolve all factual disputes in favor of the plaintiff...." Cunningham v. City of Wenatchee, 345 F.3d 802, 807 (9th Cir.2003).
In response to Shields's interlocutory appeal, Kennedy argues first that this Court lacks jurisdiction. We disagree, and conclude that we have jurisdiction to determine whether the trial court erred in holding that Shields was not entitled to qualified immunity.
As a general rule, interlocutory appeals from determinations of qualified immunity are permissible. In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that the denial of a defendant's motion for summary judgment is immediately appealable where the defendant is a public official asserting the defense of qualified immunity and the issue appealed concerns whether the facts demonstrated a violation of clearly established law.
Kennedy correctly notes that the Court created an exception to this general rule in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). There, the Court held that "a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a `genuine' issue of facts for trial." Id. at 319-20, 115 S.Ct. 2151. In ruling against Shields's motion for summary judgment based on his claim of qualified immunity, the trial court stated:
Viewed in a light most favorable to plaintiffs, a jury could find that Officer Shields unreasonably created a false sense of security in plaintiffs by agreeing to give plaintiffs advance notice of advising the Burns family of the allegation that Michael Burns had sexually molested Tera Teufal, and assuring the plaintiffs of a neighborhood patrol.... In essence there is...
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