Lassiter v. City of Bremerton

• Decision Date: 26 February 2009
• Docket Number: No. 07-35848.,07-35848.
• Citation: 556 F.3d 1049
• Parties: Kenneth Charles LASSITER; Alpha Doris Lassiter, Plaintiffs-Appellants, v. CITY OF BREMERTON; Matthew Thuring; John Van Santford; 1-10 Does; Claire Allison Bradley; Christian C. Casad; James T. Mitchell; Kitsap County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

556 F.3d 1049

Kenneth Charles LASSITER; Alpha Doris Lassiter, Plaintiffs-Appellants, v. CITY OF BREMERTON; Matthew Thuring; John Van Santford; 1-10 Does; Claire Allison Bradley; Christian C. Casad; James T. Mitchell; Kitsap County, Defendants-Appellees.

No. 07-35848.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 4, 2009.

Filed February 26, 2009.

David H. Smith, Garvey Shubert Barer, Seattle, WA, for the appellants.

John E. Zehnder, Jr., Scheer & Zehnder, Seattle, WA, for appellees Thuring and Van Santford.

Andrew G. Cooley, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, for appellee Kitsap County.

David P. Horton, Law Office of David P. Horton, Inc. P.S., Silverdale, WA, for appellees City of Bremerton and Robert Forbes.

Mark C. Jobson, Assistant Attorney General of Washington, Olympia, WA, for appellees Bradley, Casad, and Mitchell.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. CV-05-05320-RBL.

Before: B. FLETCHER, PAMELA ANN RYMER and RAYMOND C. FISHER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Kenneth and Alpha Lassiter appeal the dismissal, by summary judgment and by jury verdict, of their lawsuit against the City of Bremerton, the Bremerton Police Department, Bremerton Police Officers John Van Santford and Matthew Thuring, the Kitsap County Prosecutor's Office, and Kitsap County Deputy Prosecuting Attorney (DPA) James Mitchell. The Lassiters allege that their constitutional rights were violated by unlawful arrest, malicious prosecution, and failure to investigate their claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS

On July 25, 2003 the Lassiters' neighbor called 911 to report disturbing noises and threats coming from the Lassiters' home. She reported hearing Mr. Lassiter apparently threatening to cut his wife's throat, and said that she thought Mrs. Lassiter was either tied up or locked in a room. The neighbor went outside of the Lassiters' home and lifted her phone to the window. The 911 recording captured a man's voice saying, "Your job is to obey me. Right now."; "I will hurt you."; and, "You're too fucking close that's it. That's your own fucking throat and you're not going to cut mine."

The 911 operator called officers Thuring and Van Santford to investigate a possible domestic violence assault. The operator told them that the male had made threats to cut the female's throat, and that the female was yelling for the male to let go of her. The officers arrived at the scene in uniform. They could hear a male inside yelling.¹ They went to the door and knocked at least three different times, announcing themselves as police officers and directing the occupants to come to the door. Finally Mrs. Lassiter came to the door, peered out from behind it, and said there was no problem and there was nobody else in the house.

The officers entered the house and encountered Kenneth Lassiter standing between the living room and the kitchen. As the officers entered (or just prior), Mr. Lassiter activated a tape recorder. From that moment on, the verbal exchange was captured on tape.

Van Santford: What's going on?

Kenneth Lassiter: Nothing.

Van Santford: Nothing? We're standing out here. You're yelling and screaming all over town. Why don't you have a seat here for me?

Kenneth Lassiter: No. I'm not here to discuss this with you.

Van Santford: Okay. Have a seat. We're investigating a possible assault, okay? We're not leaving.

Kenneth Lassiter: Ahhh....

Van Santford: Have a seat here. Sir, I'm not gonna tell you again. [.393 second erasure in tape] We're not playing games with you.

Kenneth Lassiter: Ah ... who are you? Hold it!

Van Santford: I'm a police officer.

Kenneth Lassiter: No ... Get your hands off me. What are you doing?

At this point, Van Santford had placed his hand on Kenneth Lassiter, ostensibly to guide him to a chair. But Mr. Lassiter reacted and grabbed the officer's arm, at which point Van Santford pushed him to the floor and handcuffed him. Mrs. Lassiter protested the treatment of her husband, repeatedly saying, "This is our problem." The officers took Mr. Lassiter to the county jail, booking him for assault, obstructing a police officer, and resisting arrest. They left Mrs. Lassiter at home, but their report requested that she as well as Mr. Lassiter be charged with obstruction of a police officer.

The parties dispute several facts involved in the incident. The Lassiters dispute whether Mr. Lassiter was moving towards the kitchen as the officers told him to sit down. They also dispute whether Mrs. Lassiter physically interfered with the officers' attempt to control Mr. Lassiter.² Finally, in their reports, both officers stated that they repeatedly told Mr. Lassiter to stop or to stop and sit down. The tape reveals that what the officers said repeatedly was "sit down." It is possible, however, that the brief gap on the tape erased Van Santford's command to "stop."

On July 28, 2003 the Kitsap County Prosecutor's Office charged both of the Lassiters with obstruction of a police officer, and Mr. Lassiter with resisting arrest. The prosecuting attorney was defendant Claire Bradley.³ This criminal prosecution was still pending over a year later when the Lassiters filed a claim for damages against the City of Bremerton. In a letter dated October 15, 2004, the Lassiters revealed the existence of the tape, and claimed that it proved that officers Van Santford and Thuring had committed perjury and false swearing in their reports. This allegation was based principally on the difference between the command to "stop" as narrated in the officers' reports, and the commands to "sit down" as heard on the tape. Three days later, the criminal prosecutions against the Lassiters were dismissed.

The Chief of Police, defendant Robert Forbes, referred the allegations against the officers to the Washington State Patrol for an independent investigation. He also placed both officers on administrative leave pending the outcome of the investigation. In December 2004, the State Patrol issued its report clearing the officers of false swearing and perjury. The report also revealed that the tape had been altered and identified a .393 second gap where officer Van Santford may have used the word "stop." Chief Forbes reinstated the officers, and informed them that the department would not pursue an internal investigation.

On May 16, 2005 the Lassiters filed the instant lawsuit against the City of Bremerton and eight other defendants. Nine days later Kenneth Lassiter was charged with tampering with physical evidence, obtaining a signature by deception or duress,⁴ and obstructing a law enforcement officer. Deputy prosecutor James Mitchell had taken over for Claire Bradley; he signed the Certification for Determination of Probable Cause which accompanied the charges. This prosecution was subsequently dismissed for lack of evidence.

In this case, the district court dismissed on summary judgment all state law claims against Kitsap County, Police Chief Forbes, and the individual prosecutors. All federal claims against the City were also dismissed. The court submitted the state law claims against the City and officers Thuring and Van Santford for excessive force, assault and battery, and infliction of emotional distress to the jury. It had previously ruled in a summary judgment order that the officers were entitled to qualified immunity for their warrantless entry into the Lassiters' home, and that the arrests of Mr. and Mrs. Lassiter were lawful. Accordingly, the court instructed the jury that it should assume the entry into the Lassiters' home and the arrest of Mr. Lassiter were lawful. The jury returned a verdict for the defendants on all remaining claims.

DISCUSSION

We review a district court's summary judgment orders de novo. Mackinney v. Nielsen, 69 F.3d 1002, 1004 (9th Cir.1995). We give deference to a jury verdict, reviewing all evidence on appeal of those claims "in the light most favorable to the verdict." Larez v. City of Los Angeles, 946 F.2d 630, 634 (9th Cir.1991).

A. Probable Cause to Arrest Mr. Lassiter

The heart of the Lassiters' case is their 42 U.S.C. § 1983 claim that the police arrested Kenneth Lassiter for obstruction without probable cause, violating his Fourth Amendment rights. We agree with the district court that the police did have probable cause, and affirm the dismissal of this claim.

Probable cause exists when the facts and circumstances within the officer's knowledge are sufficient to cause a reasonably prudent person to believe that a crime has been committed. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). The crime of obstructing an officer has four essential elements: 1) an action or inaction that hinders, delays, or obstructs the officers; 2) while the officers are in the midst of their official duties; 3) the defendant knows the officers are discharging a public duty; 4) the action or inaction is done knowingly. WASH. REV. CODE § 9A.76.020.

Regardless of whether Van Santford said the word "stop" and whether Kenneth Lassiter physically moved toward the kitchen, the undisputed facts are sufficient to conclude that the officers had probable cause. They entered a potential domestic violence scene with information that Mr. Lassiter had threatened to cut his wife's throat. The couple was obviously reluctant to open the door, and when Alpha Lassiter eventually did open the door she attempted to hide herself behind it and lied to the officers that no one else was home. Given this background, it was reasonable for the officers to insist that Kenneth Lassiter sit down in the living room, away from any possible weapons, before the police could carry out their duty to ensure that Mrs. Lassiter was not in harm's way. But Mr. Lassiter's conduct made it impossible for the police to...