Sluman v. State

Citation418 P.3d 125
Decision Date22 May 2018
Docket NumberNo. 34467-3-III,34467-3-III
CourtCourt of Appeals of Washington
Parties Thomas L. SLUMAN, a single person, Appellant, v. STATE of Washington, by and through the Washington State Patrol; Bart H. Olson, individually and in his official capacity as a Trooper of the Washington State Patrol; and Jane/John Doe I-X, individually and as Employees/Agents of the Washington State Patrol and/or the State of Washington, Respondents.

Michael Scott Brumback, Brumback Law Group PLLC, 1905 Rainier Pl., Union Gap, WA, 98903-1672, George M. Ahrend, Ahrend Law Firm PLLC, 100 E Broadway Ave., Moses Lake, WA, 98837-1740 for Appellant.

Patricia D. Todd, Office of the Attorney General, 7141 Cleanwater Dr. Sw, PO Box 40126, Olympia, WA, 98504-0126 for Defendants.

Patricia D. Todd, Office of the Attorney General, 7141 Cleanwater Dr. Sw, PO Box 40126, Olympia, WA, 98504-0126, Catherine Hendricks, WA Attorney General/Torts, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188 for Respondent/Cross-Appellant.


Fearing, J.

¶ 1 In common parlance, a door check is an attachment used to close a door and prevent its slamming. In ice hockey, the term "check" or "checking" refers to a defensive move whereby the defenseman moves his body into an opposing player in order to disrupt the opponent’s possession of the puck. This lawsuit gives rise to a new meaning to the expression "door check" or "door-check," an import presumably derived from hockey.

¶ 2 In this appeal, we address the tort liability of a law enforcement officer, to an injured motorcyclist, when the officer purposely opens his patrol car door so that the door strikes and stops the speeding cyclist. Law enforcement refers to the officer’s tactic as door-checking. The defendant officer and other officers pursued the motorcyclist because of his speeding. In resolving the appeal, we ask whether some facts support a ruling that the law enforcement officer seized the motorcyclist within the meaning of the United States Constitution’s Fourth Amendment, and, if so, whether the officer warrants qualified immunity from civil liability. We also ask whether the officer and his employer gain immunity from state law claims under Washington’s felony bar statute. The trial court granted the officer and his employer summary judgment. We reverse.


¶ 3 The statement of facts arises from deposition testimony and from affidavits in support of and in opposition to summary judgment motions filed by defendants State of Washington and Washington State Patrol Trooper Bart Olson. Because the trial court granted the motions and dismissed plaintiff and motorcyclist Thomas Sluman’s claims, we view the facts in a light favorable to Sluman.

¶ 4 On the sunny morning of Wednesday, July 21, 2010, Thomas Sluman, a Port Angeles denizen, rode his motorcycle eastbound on Interstate 90 in lower Kittitas County ten miles west of Ellensburg. On that same morning, Washington State Patrol Trooper John Montemayor piloted the aircraft "Smokey 6" and patrolled traffic from the craft. An aerial patrol officer employs a series of white stains, known as aerial traffic surveillance marks, painted on the road at half-mile intervals to measure the speed of vehicles. The officer gauges the speed of a vehicle with a stopwatch as the vehicle travels between marks. Trooper Montemayor, by using the surveillance marks, measured Sluman as traveling between seventy-six and eighty-nine miles per hour on the seventy miles per hour interstate. Montemayor radioed Trooper David Hinchliff, who patrolled on the ground, to stop and cite Sluman. Trooper Hinchliff’s patrol car parked facing northbound on Thorp Highway near Interstate 90 exit 101, the location of Thorp Fruit and Antique Mall.

¶ 5 Thomas Sluman left Interstate 90 at exit 101. Sluman stopped at the stop sign at the end of the off-ramp, activated his motorcycle’s right turn signal, and turned right onto South Thorp Highway. According to Trooper David Hinchliff, Sluman did not turn his head to the left to see Trooper David Hinchliff’s patrol car before Sluman turned right. According to Sluman, he looked to the left and saw the patrol car, but the car faced the opposite direction.

¶ 6 South Thorp Highway mainly travels east and west, but south of Interstate 90. Trooper Hinchliff performed a U-turn on Thorp Highway, activated his overhead lights, and radioed dispatch to notify it that he would pursue Sluman. After radioing dispatch, Hinchliff activated his siren and chased Sluman on South Thorp Highway. Sluman never saw Hinchliff reverse directions in order to pursue him.

¶ 7 Trooper David Hinchliff soon lost sight of Thomas Sluman because the two-lane South Thorp Highway frequently curves. From Interstate 90 exit 101, the highway runs five miles before it again crosses the interstate at exit 106, the western exit for Ellensburg. Trooper John Montemayor eyed Sluman from the air while maintaining contact with Hinchliff. From his vantage point, Trooper Montemayor estimated Sluman reached a speed over one hundred and twenty miles per hour. Sluman disputes this speed approximation because South Thorp Highway lacks aerial traffic surveillance marks, but Sluman does not testify as to his speed. While riding on Thorp Highway, Sluman obeyed all traffic laws except the speed limit. Sluman never looked behind him to see Trooper Hinchliff in pursuit. Hinchliff concluded that he did not need to pursue Sluman at a high rate of speed, since the air patrolman followed Sluman.

¶ 8 Washington State Trooper Bart Olson also patrolled, in a Dodge Charger, along Interstate 90 near exit 101 on the morning of July 21, 2010. Trooper Olson had just completed a traffic stop, when he overheard Trooper David Hinchliff notify dispatch about Hinchliff’s pursuit of Thomas Sluman. Olson unilaterally joined the pursuit by traveling eastbound on Interstate 90, not on South Thorp Highway.

¶ 9 A Washington State Patrol regulation prohibits a trooper from unilaterally joining a suspect’s pursuit. Troopers may join a pursuit only when requested by the first officer in pursuit or when directed by a supervising officer. The State Patrol adopted this regulation because pursuits pose as one of the riskiest actions that a law enforcement officer undertakes. Trooper Bart Olson denies that he pursued Thomas Sluman since Olson did not chase Sluman on South Thorp Highway. Nevertheless, State Patrol rules consider an officer as pursuing the suspect, even if the trooper does not chase the suspect from behind, if the trooper acts to intercept or stop the pursued driver.

¶ 10 In his haste, Trooper Bart Olson passed another patrol officer, Trooper Paul Blume, on Interstate 90. Blume drove a sports utility vehicle (SUV). Trooper Olson then received instruction to end his pursuit since Trooper John Montemayor followed Thomas Sluman from the air. Olson ignored the instruction and proceeded to Interstate 90 exit 106 where Olson anticipated he could intercept Sluman on South Thorp Highway.

¶ 11 After Olson exited Interstate 90, he turned right on South Thorp Highway and journeyed in the opposite direction of Sluman and Trooper David Hinchliff. Olson then saw Sluman’s motorcycle rounding a corner in the oncoming lane. According to Olson, "nobody was in the area." Clerk’s Papers (CP) at 535. Trooper Olson drove his patrol car across the centerline of the road, quickly braked, and parked his car, while straddling the center line, on a bridge across the Yakima River, with the car’s emergency lights activated. Trooper Olson explained his intent:

And, anyway, the motorcyclist was coming at me. And I could see the speed of the motorcycle, which was at a high rate, rapidly slowing. ... I’m going to place this person in custody or worst [sic]—you know, I’m going to place him in custody, do a felony-style stop, or they’re going to be going slow enough that if it comes down to it I’m going to basically horse collar this person off the motorcycle and end this pursuit, so that they don’t end up with serious injuries, kill themselves, kill an innocent party.

CP at 532. After Trooper Olson parked, Trooper Paul Blume pulled behind Trooper Olson’s patrol car and blocked more of the road.

¶ 12 The Washington State Patrol does not authorize a state trooper to tackle, horse collar, or otherwise physically remove a driver from a motorcycle. State Patrol personnel deem such a maneuver to be unwise and unsafe. State Patrol regulations do not permit a trooper to drive patrol cars into the lane of oncoming traffic or to park in the middle of the road. Under a State Patrol regulation, a roadblock occurs when officers position one or more vehicles or other obstructions across a roadway in order to prevent the escape of a fleeing vehicle. The regulation requires any roadblock to afford an "escape route" for the suspect. CP at 246, 662. State Patrol rules allow a roadblock only with supervisory approval and only when law enforcement seeks to apprehend the suspect for homicide, assault with intent to kill, rape, robbery in the first degree, or prison escape. Trooper Olson lacked supervisory approval for blocking the road and law enforcement did not pursue Thomas Sluman for any of the requisite crimes. Olson insists that he allowed space for Sluman to steer around his patrol car.

¶ 13 According to Thomas Sluman, he traveled sixty miles an hour as he rounded a curve on South Thorp Highway into the straightaway across the Yakima River Bridge. Sluman applied his brakes because he saw lights and vehicles on the bridge. He did not know that one or more of the cars were police cars. He intended to stop near the cars. After he rounded the curve, he did not accelerate. Suddenly a sports utility vehicle entered his lane.

¶ 14 As Trooper Bart Olson remained parked in the middle of South Thorp Highway, he observed Thomas Sluman’s motorcycle rapidly slow. Sluman probably then traveled between thirty-one and thirty-seven miles per hour. As Sluman slowed, he steered his...

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