Schmitt v. Langenour

• Decision Date: 28 June 2011
• Docket Number: No. 39553–3–II.,39553–3–II.
• Citation: 162 Wash.App. 397,256 P.3d 1235
• Court: Washington Court of Appeals
• Parties: Lawrence SCHMITT, Appellant and Cross–Respondent,v.Doris LANGENOUR, Defendant,andJennifer Forbes, Deputy Prosecutor, Kitsap County Prosecuting Attorney's Office, Respondent and Cross–Appellant.

162 Wash.App. 397

256 P.3d 1235

Lawrence SCHMITT, Appellant and Cross–Respondent,

v.Doris LANGENOUR, Defendant,andJennifer Forbes, Deputy Prosecutor, Kitsap County Prosecuting Attorney's Office, Respondent and Cross–Appellant.

No. 39553–3–II.

Court of Appeals of Washington, Division 2.

June 28, 2011.

Lawrence Schmitt (Appearing Pro Se), Port Orchard, WA, for Appellant/Cross–Respondent.Andrew Logerwell, Attorney General's Office, Michael Patrick Lynch, Office of the Attorney General, Olympia, WA, for Respondent/Cross–Appellant.WORSWICK, J.

[162 Wash.App. 400] ¶ 1 Lawrence Schmitt appeals the trial court's grant of summary judgment based on qualified immunity in favor of Jennifer Forbes, a deputy prosecutor with the Kitsap County Prosecuting Attorney's Office (KCPAO), on his 42 U.S.C. § 1983 claims of false arrest, false imprisonment, and malicious prosecution. Forbes cross-appeals, arguing that she was entitled to absolute immunity. We affirm the order granting summary judgment, holding that Jennifer Forbes is entitled to both qualified immunity and absolute immunity.

FACTS

¶ 2 On June 16, 2002, Schmitt noticed two dogs on his property chasing after his geese, chickens, and rabbits. Based on the direction the dogs went as he chased them away, Schmitt assumed the dogs belonged to his neighbor, Doris Langenour. Schmitt paid a visit to Langenour's home. He explained to her what had happened and said that he would shoot the dogs if they came onto his property again. According to Schmitt, he was cordial and explained that he did not want to hurt Langenour's dogs but that he had a right to protect his animals. He also invited Langenour to bring her children over to his home sometime to see his animals.

¶ 3 Langenour then drove down her street to see where Schmitt lived. She saw his van and then visited his neighbors across the street to learn more about Schmitt. One of the neighbors, Anthony Fellis, informed her that criminal charges for assault were pending against Schmitt for allegedly shooting at Fellis. They also mentioned to Langenour that Schmitt shot one of their dogs. Langenour then called 911 to report that Schmitt threatened to shoot her dogs.

¶ 4 Langenour talked with Kitsap County Sheriff's Office Deputy Benjamin Herrin later in the day and explained that Schmitt had threatened to shoot her dogs. At this time, Langenour did not tell Deputy Herrin that Schmitt had threatened to shoot her. Deputy Herrin told Langenour that Schmitt could legally shoot her dogs if they came after his animals.

¶ 5 The next day, Langenour contacted Linda Fellis to discuss the situation. Linda Fellis suggested that she contact Forbes because she was the deputy prosecutor working on Schmitt's pending criminal case. Based on Linda Fellis's suggestion, Langenour contacted Forbes later that day. Langenour and Forbes had a very brief conversation in which Langenour characterized her encounter with Schmitt the day before a bit differently. Langenour told Forbes that she was scared and that she felt threatened by Schmitt. She also said that she was upset that Deputy Herrin did not react differently to the situation. Langenour then told Forbes that Schmitt threatened to shoot her and her dogs.

¶ 6 After their conversation ended, Forbes searched for a report from Deputy Herrin's visit with Langenour the previous day, but she was unable to find it in the computer system. Forbes then asked Deputy Mike Davis, a supervisor with the sheriff's department, to try to locate the report and to let her know if one was available. When Deputy Herrin contacted Forbes to follow up on her request, Forbes asked that Deputy Herrin provide her with a copy of the report when it was complete because it might show a violation of Schmitt's pretrial release on his criminal charges. Forbes also asked Deputy Herrin to interview Langenour again, suggesting that she might have additional information about what had happened. Forbes directed Deputy Herrin that if after the interview he found probable cause for an arrest, to be sure to book Schmitt under the pending case number. Forbes's involvement ended after this and she went on vacation. She conducted no additional work on this case.

¶ 7 Deputy Herrin talked to Langenour by telephone to discuss the situation again. This time Langenour told Deputy Herrin that Schmitt had threatened to shoot her and her dogs. Deputy Herrin visited Langenour's home and asked that she sign a written statement to that effect, which she did. After this, Deputy Herrin arrested Schmitt. Schmitt denied threatening Langenour or her dogs.

¶ 8 A few days later, another deputy prosecutor charged Schmitt with felony harassment based on Deputy Herrin's report and Langenour's statement. And based on Schmitt's alleged conduct, another deputy prosecutor successfully sought to revoke Schmitt's pretrial release agreement and to increase his bail on the assault charge involving Fellis. Based on this increase in bail, Schmitt was taken into custody. At the time these decisions were made, Forbes was still on vacation and was unaware of what had happened.

¶ 9 Before trial on the charge of felony harassment against Langenour, Schmitt moved to disqualify Forbes from prosecuting charges against him because she had investigated the case and would serve as a material witness. See State v. Schmitt, 124 Wash.App. 662, 665, 102 P.3d 856 (2004). The trial court agreed and also disqualified the entire prosecutor's office because Forbes had personal involvement with Schmitt's prosecution. Schmitt, 124 Wash.App. at 665, 102 P.3d 856. Our court granted the State's motion for discretionary review on that issue and ultimately held that the order disqualifying Forbes was proper, but we reversed the trial court's disqualification of the entire KCPAO. Schmitt, 124 Wash.App. at 669, 102 P.3d 856. After our court's decision, another deputy prosecutor reviewed the felony harassment case against Schmitt that was based on Langenour's allegations and dismissed the charges.

¶ 10 On October 10, 2005, Schmitt filed a complaint alleging false arrest, false imprisonment, and malicious prosecution under 42 U.S.C. § 1983, ¹ naming Langenour, Forbes, and the KCPAO as co-defendants. ² In early 2006, Langenour was dismissed from the suit by stipulation. And soon thereafter, the KCPAO was dismissed. In April 2008, Forbes moved for summary judgment based on absolute and qualified immunity. The trial court denied her motion based on absolute immunity and provided Schmitt with additional time for discovery in order to address the qualified immunity issues. On June 26, 2009, the trial court dismissed Schmitt's suit based on qualified immunity. Schmitt appeals and Forbes cross-appeals.

ANALYSIS

¶ 11 Schmitt contends that the trial court erred in granting Forbes's motion for summary judgment. And on cross-appeal, Forbes contends that the trial court erred in finding that she was entitled only to qualified immunity, not absolute immunity for her conduct.³

Standard of Review

¶ 12 We review an order granting summary judgment de novo and engage in the same inquiry as the trial court. Kahn v. Salerno, 90 Wash.App. 110, 117, 951 P.2d 321 (1998). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. CR 56(c). “A ‘material fact’ is one on which the outcome of the litigation depends, in whole or in part.” Morris v. McNicol, 83 Wash.2d 491, 494, 519 P.2d 7 (1974). We construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993).

¶ 13 A defendant moving for summary judgment bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharms., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). Thereafter, the nonmoving party must set forth specific facts evidencing a genuine issue of material fact for trial, but “[t]he nonmoving party may not rely on speculation or argumentative assertions.” Craig v. Wash. Trust Bank, 94 Wash.App. 820, 824, 976 P.2d 126 (1999).

Qualified Immunity

¶ 14 Schmitt contends that Forbes was not entitled to qualified immunity on his § 1983 claims of false arrest, false imprisonment, and malicious prosecution because she violated a clearly established right and because her conduct was not objectively reasonable. Under the doctrine of qualified immunity, “[g]overnment officials performing discretionary functions” are immune from § 1983 suits “if their conduct is objectively reasonable when measured against clearly established law.” Robinson v. City of Seattle, 119 Wash.2d 34, 64–65, 830 P.2d 318 (1992). For a constitutional right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It is not necessary that a court have previously held the official's conduct is unconstitutional; rather, “in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640, 107 S.Ct. 3034.

¶ 15 “When the defendant moves for summary judgment in a § 1983 suit and raises a qualified immunity defense, the court has two questions before it.” Jones v. State Dep't of Health, 170 Wash.2d 338, 349, 242 P.3d 825 (2010). “One is whether the plaintiff's allegations establish a connection between the defendant's conduct and the violation of a constitutional right.” Jones, 170 Wash.2d at 349, 242 P.3d 825 (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). “There must be ‘a genuine issue as to whether the defendant in fact committed those acts.’ ” Jones, 170 Wash.2d...