Strange v. Spokane Cnty.

• Citation: 287 P.3d 710,171 Wash.App. 585
• Decision Date: 16 January 2013
• Docket Number: No. 29812–4–III.,29812–4–III.
• Court: Court of Appeals of Washington
• Parties: Daniel Brian STRANGE, Appellant, v. SPOKANE COUNTY, and Spokane County Sheriff's Deputy Jeffrey Welton, in his official and individual capacity, Respondents.

171 Wash.App. 585
287 P.3d 710

Daniel Brian STRANGE, Appellant,
v.
SPOKANE COUNTY, and Spokane County Sheriff's Deputy Jeffrey Welton, in his official and individual capacity, Respondents.

No. 29812–4–III.

Court of Appeals of Washington,
Division 3.

Oct. 30, 2012.
Reconsideration Denied Jan. 16, 2013.

[287 P.3d 711]

Mary Elizabeth Schultz, Mary Schultz Law PS, Spangle, WA, for Appellant.

Hugh T. Lackie, Evans Craven & Lackie PS, Heather Yakely, Attorney at Law, Spokane, WA, Respondents.

SWEENEY, J.

[171 Wash.App. 587]¶ 1 This appeal follows a defense verdict in a suit for excessive use of force by a police officer. The [171 Wash.App. 588]plaintiff was tased by a Spokane County sheriff's deputy following a run-in with the deputy that followed a traffic stop. The plaintiff was a passenger in the car. The assignments of error include challenges to the court's various rulings on evidence and the refusal of the court to give certain proposed instructions on limitations on the use of force. But the most significant challenge here on appeal is to the court's refusal to impose liability as a matter of law or instruct based on a recent Ninth Circuit Court of Appeals decision that limits the use of tasers. Bryan v. MacPherson, 630 F.3d 805 (9th Cir.2010). We conclude that the 2010 Ninth Circuit decision does not apply to the events here, which took place in 2006. And we conclude that the court did not abuse its

[287 P.3d 712]

discretion in its rulings on evidence nor did it abuse its discretion in its instructions to the jury. We therefore affirm the judgment entered on the verdict.

FACTS

¶ 2 Spokane County Sheriff's Deputy Jeffrey Welton stopped a car for accelerating rapidly and making several improper turns during the early morning hours of January 22, 2006. Deputy Welton approached the driver's door. Kelly Garber, the driver, opened the door instead of rolling the window down. Deputy Welton requested Ms. Garber's driver's license and vehicle registration. He attempted to explain the reason for the stop. Daniel Brian Strange was seated in the front seat. He is Ms. Garber's boyfriend and the owner of the car. He became belligerent. Deputy Welton and Mr. Strange argued back and forth over whether Mr. Strange was wearing his seatbelt. Deputy Welton collected Ms. Garber's and Mr. Strange's identifications, instructed them to remain in the car, and closed the door with some force.

¶ 3 Mr. Strange got out of the car. He took two steps forward and yelled, “Don't slam my door.” Report of Proceedings[171 Wash.App. 589](RP) (Jan. 13, 2011) at 819. Deputy Welton drew his firearm and called for backup. He repeatedly ordered Mr. Strange to get back into the car. Deputy Welton eventually holstered his firearm and pulled out his taser. He advised Mr. Strange that if he did not get back into the car he would be arrested. Deputy Welton heard Mr. Strange say something in response and understood it to be defiant and challenging. He then told Mr. Strange that he was under arrest and ordered him to turn around with his hands behind his back. Mr. Strange started to re-enter the car. Deputy Welton discharged his taser into Mr. Strange's back. Deputy Welton arrested Mr. Strange for resisting arrest and obstructing a public servant.

¶ 4 Mr. Strange sued Deputy Welton and Spokane County for excessive use of force in violation of his civil rights under 42 U.S.C. § 1983 and for arrest without probable cause. He specifically alleged that Deputy Welton misused his law enforcement powers when he used a taser to effect a misdemeanor arrest. And he alleged that Spokane County knowingly maintained a custom and policy of deliberate indifference to the rights and safety of its citizens.

¶ 5 The matter proceeded to a jury trial in January 2011. The parties presented extensive testimony regarding use of force and the internal procedures used when dealing with such police actions. Spokane County Sherriff's Sergeant Dale Golman testified that he responded to the scene on the night that Mr. Strange was tasered. Counsel for Mr. Strange asked Sergeant Goiman whether Deputy Welton's incident report indicated how many times Deputy Welton pulled the trigger on the taser. He responded that Deputy Welton's report did not contain that information but then produced the taser dataport recording from the incident. The taser dataport records “triggering events” in five-second cycles, which can later be downloaded. He testified that the document showed that Deputy Welton only cycled his taser one time. The dataport recording showed a final triggering discharge [171 Wash.App. 590]occurring on January 22, 2006 at 1:55 a.m., which was consistent with the taser's use here. Mr. Strange moved for sanctions against the county on the ground that the dataport recording was incomplete and should have been produced earlier. The court denied the request.

¶ 6 Mr. Strange also maintained throughout trial that Spokane County had failed to create a “use of force report,” as required by department policy. Counsel for Spokane County produced what it called a “database entry form,” midway through trial. The document was titled “Unknown–Internal Affairs, Use of Force.” Ex. P–145. Mr. Strange requested a mistrial on the ground that the county had once again engaged in discovery abuses. The court concluded that the document should have been produced in response to Mr. Strange's prior interrogatories, but refused to grant a mistrial or impose sanctions: “I am satisfied that, through proper examination of witnesses, the nature of this document can be presented, can be argued by both sides as to what it represents.” RP (Jan. 10, 2011) at 407–08.

[287 P.3d 713]

¶ 7 Spokane County moved for judgment as a matter of law following the close of Mr. Strange's case in chief. Spokane County argued that Mr. Strange had failed to show that (1) the challenged conduct was the result of some custom or policy maintained by the county; (2) the challenged conduct was the result of some deliberate choice or failure to train by the county; or (3) the challenged conduct was ratified in some way by a supervisor or representative of the county. The court granted the motion and dismissed all municipal liability claims against Spokane County. The court specifically concluded that there was no official policy or policy maker that chose to use such force, no program-wide failure to train the officers on how and when to use force, and no affirmative decision to ratify the deputy's conduct.

¶ 8 At the close of trial, Mr. Strange moved for judgment as a matter of law as to excessive force and false arrest for the obstructing and resisting charges. He first argued that [171 Wash.App. 591]the acts of standing next to his car and shouting at Deputy Welton did not amount to obstructing. Mr. Strange argued that there was no evidence that he even heard Deputy Welton's arrest order and even if he did, getting back into the vehicle was not an intentional attempt to prevent arrest. The court ruled that Deputy Welton had the authority to make the arrest for the misdemeanors committed in his presence and state law authorized him to use force to perform that “legal duty” and the court denied the motion. The court ruled that whether the deputy had probable cause to make the arrest was a question for the jury. Finally, the court ruled that the Ninth Circuit Court of Appeals case of MacPherson, 630 F.3d 805, did not apply a new standard for the use of tasers retroactively:

So my ruling is that MacPherson can't apply as the law governing this case because it came four years after the fact and, therefore, represents a ruling that can only be applied to other cases prospectively and not retroactively.

RP (Jan. 24, 2011) at 1634.

¶ 9 The jury found that Deputy Welton did not use unreasonable force and did not conduct the arrest without probable cause. Mr. Strange moved for a new trial and judgment notwithstanding the verdict against both Deputy Welton and Spokane County. The court denied the motions. The court concluded that most of Mr. Strange's arguments had already been properly addressed during trial. The court did address the two claims of discovery violations. The court first characterized Spokane County's report as an administrative entry rather than a classic use of force report: “In my view, it didn't add anything one way or the other in terms of anything new in the case. [I]t is not a material omission here that justifies the order for a new trial.” RP (Mar. 4, 2011) at 15. The court next dismissed the argument that the taser dataport record would have proven multiple trigger pulls: “There was never anything more than pure speculation here that the Taser was exercised [171 Wash.App. 592]more than once.” RP (Mar. 4, 2011) at 17. The court then entered judgment on the verdict.

¶ 10 Mr. Strange appeals.

DISCUSSION Application of Bryan v. MacPherson

¶ 11 Mr. Strange argues that the court erred when it concluded that the Ninth Circuit Court of Appeals case of MacPherson¹ did not apply retroactively. And the court erred when it concluded that Washington law provided the controlling authority for the use of force in making the arrest and then denied his motion for judgment as a matter of law.

¶ 12 The court must grant a motion for judgment as a matter of law if, after viewing the evidence in the light most favorable

[287 P.3d 714]

to the nonmoving party, the court determines that there is no substantial evidence or reasonable inferences from the evidence to support a verdict for the nonmoving party. Goodman v. Goodman, 128 Wash.2d 366, 371, 907 P.2d 290 (1995). We review the denial of a motion for judgment as a matter of law to determine whether the evidence presented was sufficient to support the jury's verdict. Wright v. Engum, 124 Wash.2d 343, 356, 878 P.2d 1198 (1994). And here the issue presented turns on a question of law—does MacPherson apply or doesn't it. That is a question we will review de novo. Lewis v. Simpson Timber Co., 145...