Reese v. City of Seattle

• Decision Date: 02 November 1972
• Docket Number: No. 42058,42058
• Citation: 81 Wn.2d 374,503 P.2d 64
• Parties: , 83 A.L.R.3d 157 Otis REESE, Administrator of the Estate of Robert L. Reese, Deceased, Appellant, v. CITY OF SEATTLE et al., Respondents.
• Court: Washington Supreme Court

Page 374

81 Wn.2d 374

503 P.2d 64, 83 A.L.R.3d 157

Otis REESE, Administrator of the Estate of Robert L. Reese Deceased, Appellant, v. CITY OF SEATTLE et al., Respondents.

No. 42058.

Supreme Court of Washington, En Banc.

Nov. 2, 1972.

Rehearing Denied Dec. 26, 1972.

Miller, Howell & Watson, Lembhard G. Howell, Lawrence L. Shafer, Seattle, Jack E. Tanner, Tacoma, David M. Roderick, Seattle, for appellant.

Jack P. Scholfield, Thomas D. Frey, Seattle, for respondents.

HUNTER, Associate Justice.

This is a wrongful death action brought by Otis Reese, plaintiff (appellant), the administrator of the estate of Robert L. Reese, deceased, against Harold J. Larsen a Seattle police officer, the City of Seattle and the Seattle Police Department, defendants (respondents). At the conclusion of a jury trial a verdict was returned in favor of the defendants, and judgment was entered accordingly.

The record discloses the following. At 8 p.m. on the evening of June 19, 1965, two Seattle police officers, Harold J. Larsen and Frank Junell, completed their work shift and prepared for a social evening with their wives. Both changed into civilian clothes before leaving. Under Seattle police department regulations officers are to be armed at all times, including off duty periods. Pursuant to these regulations both officers retained their firearms, wearing them in holsters concealed under their clothing.

It was the testimony of Larsen and Junell that while waiting for their wives they consumed one alcoholic drink at a downtown establishment. After their wives joined them, they frequented two or three other such establishments until midnight when, under the laws at that time, alcohol could no longer be sold. Until that time the testimony is that both officers had five or six drinks.

After midnight the two couples returned to an establishment they had visited earlier where they talked to the owner about a forthcoming fishing trip. They remained there for approximately 1 1/2 hours. Upon leaving the couples decided to go to a restaurant where they could obtain a Chinese food dinner. After some driving around they finally arrived at the Linyen Cafe at about 1:30 a.m.

At this point the testimony becomes confused and contradictory. It was the testimony of the officers and their wives that they entered the cafe and sat at a booth toward the rear. They testified that they were not overly boisterous; that they made no reference to race except for a comment concerning an adjacent oriental couple eating with chopsticks; that they ordered their food and were half way through the meal when trouble started. According to their testimony, a small group of blacks approached their table and suddently began beating the two officers. Due to their sitting position neither officer was able to defend himself effectively. Plates and food were tossed around and, at the end, both officers were rendered unconscious.

After the beating the Negroes turned and started to walk toward the entrance. At this time Larsen and Junell slowly became conscious of what was happening and tried to follow the Negroes out of the cafe. Larsen testified that, as for himself, he was groggy and not even aware that he was an officer immediately after the fight, and that it took a few moments for him to realize what was happening. In this condition he saw two Negroes running from the cafe and began to give chase. At this moment two uniformed officers arrived, one of whom Larsen recognized. Larsen yelled at the officer that there had been an assault and that the running Negroes were the assailants. Thus Larsen and the uniformed officer gave chase, followed closely by Junell. During the chase, Larsen testified, and both officers and Junell agreed, that he identified himself as a police officers and ordered the Negroes to halt. This order was ignored and instead, the Negroes turned into a parking lot where they entered a car and began to drive away. In exiting the parking lot Larsen testified that the car speeded up, fishtailed and sideswiped a parked car. Larsen testified that he again ordered the car to stop and, upon its failure to do so, he drew his revolver and fired five shots in rapid succession. Although Larsen testified that he was aiming to disable the car, four of the shots entered the car and one of those struck Robert Reese in the head and killed him.

A different version is testified to by the Negroes involved. It was the testimony of Osborne Moore, a Negro, that he and a companion were eating in the Linyen Cafe when the two couples came in. Moore testified that the couples were loud and boisterous, and made several derogatory remarks about the presence of negroes. A Miss Doris Blood, another Negro sitting with a separate group in the cafe, also testified as to the derogatory statements made by the couples concerning 'niggers.' Moore called the home of Robert Reese where he talked to James Williams and told him that there was trouble at the cafe with some whites making smart remarks. Shortly thereafter about five Negroes, including Williams and Reese, arrived at the cafe. Members of this group testified that as they entered one of the white couples remarked, 'Here comes some more niggers.' The entering group went to the back of the cafe where the couples were sitting and a fight ensued.

After the fight the Negroes turned and walked out of the cafe. Members of this group testified that Larsen and Junell followed them out of the cafe where they had a brief discussion and that the two officers even offered to shake hands. At this time, Moore and Reese decided to leave and began to walk to Moore's car which was parked in a lot a block or so away. They arrived at the car, entered and began driving away when one of the white men in the fight, who was running down the street after them, pulled a gun and began firing. Moore testified that he accelerated, striking a parked car, and eventually escaped. It was at this time that Moore discovered Reese had been struck with a bullet and was dead.

All of the Negroes involved who testified stated that at no time did Larsen or Junell identify themselves as police officers, either before or after the fight or during the chase.

From all the testimony it remains unclear the extent Reese personally participated in the fight. The other Negroes stated that they did not recall Reese throwing punches or being otherwise involved. Both officers and Mrs. Larsen also did not note Reese's participation. Only Mrs. Junell testified she saw Reese and that he in fact threw the first punch. However, there is testimony from the other assailants to the contrary.

Mr. Chin, a part owner of the cafe, and Mr. Liau, a waiter, both testified that the two couples were not unduly loud and that they heard no remarks concerning race, but that they too did not see the fight start and left immediately to summon help. A Mr. Nogamatsu and his wife, who were sitting in a nearby booth, both testified that they heard no racial remarks at all. They testified that during their meal a group of Negroes approached a nearby booth and when the fight began they left the booth for another part of the cafe, thus they too did not witness the fight.

The Nogamatsus further testified that after the fight Larsen and Junell followed the Negroes outside the cafe where, for a very short period of time, there was some sort of discussion although what was said was not testified to. Junell testified that he had some recollection of discussing the fight with someone just outside the cafe; however, he further testified that he was still staggered and confused and thus was not sure of what was happening at the time. Mrs. Larsen also testified that her husband conversed with the assailants after the fight, but again was not sure of what was said. Larsen testified that at no time did he apologize or offer to shake hands with the assailants.

There was also testimony as to whether Larsen was under the influence of alcohol at the time. After the above events Larsen went to the Swedish Hospital where he was treated for his injuries. The attending physician, Dr. Davis, stated that it was his opinion Larsen was under the influence of alcohol at that time. He based this upon smelling alcohol on Larsen's breath and on his observation of Larsen's reactions to the treatment--that he was groggy, sleepy and unresponsive. On the other hand, the uniformed officers who arrived at the scene testified that Larsen was sober and in full control of his faculties.

The injuries sustained by Larsen were varied, the major one being approximately a 3-inch laceration on the back of his head requiring five stitches. Other injuries included numerous cuts and bruises, two fractured ribs, and perhaps a broken tooth. These injuries were characterized by independent medical testimony as being a relatively minor type of injury, although producing moderately severe pain.

The plaintiff, administrator Otis Reese, appeals from the judgment in favor of the defendants entered upon the jury verdict.

It is the plaintiff's primary contention in this case that the trial court erred in submitting to the jury instruction No. 8:

If defendant Larsen, based on the circumstances as they appeared to him, honestly formed the opinion that in this assault either grievous bodily harm had been inflicted or that some object had been used likely to cause bodily harm and such circumstances were such that a reasonable mind could have formed such an opinion, then he had a right to act on such opinion.

This instruction should be considered in determining whether the homicide was justifiable under the definition given.

The defendant cites the following statute, RCW 9.48.160:

Homicide is justifiable when committed by a public officer, . . . in the following cases:

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(3) When necessary . . . in arresting a person who has committed a felony and is fleeing from justice; or in attempting, by lawful ways or means, to...