Vargas v. Whatcom Cnty. Sheriff's Office
| Decision Date | 19 January 2021 |
| Docket Number | CASE NO. C20-0921-JCC-MAT |
| Court | U.S. District Court — Western District of Washington |
| Parties | MARTIN VARGAS, Plaintiff, v. WHATCOM COUNTY SHERIFF'S OFFICE, et al., Defendants. |
Plaintiff Martin Vargas filed this 42 U.S.C. § 1983 civil rights action pro se and in forma pauperis, raising claims associated with his apprehension by a police dog. (Dkt. 5.) He now proceeds with counsel. Defendants Whatcom County Sheriff's Office, Sheriff Bill Elfo, and K9 Deputy Stanley Streubel filed a Motion for Summary Judgment. (Dkt. 16.)1 Plaintiff responds to the motion in part and asks that the Court deny summary judgment. (Dkt. 25.) The Court, having considered the motion, response, and remainder of the record, recommends defendants' motion for summary judgment be GRANTED and this matter DISMISSED with prejudice.
Plaintiff reported his use of "meth and heroin" on the morning of September 14, 2018. (Dkt. 17, ¶3, Ex. B at 2 ().) That afternoon, Vargas, Nicholas Hale, Natalie Wiley, and "Trenton" went to burglarize a residence owned by Robert Barrow. Hale told Vargas he had recently burglarized the home, stealing a shotgun and rifle. (Dkt. 18, Ex. C.)
On the date of the burglary, suspects were reported to have fled Barrow's home in a gray Honda Civic, with one suspect "described as reaching for a handgun." Police officers identified the car as registered in Wiley's name, at the address of 8277 Harborview Road in Blaine, Washington. (Id.) At the Harborview Road residence, officers found both Hale and Wiley, were told the officers' arrival had been observed on security cameras and that plaintiff had fled out a back window, and found a box of bank checks in Barrow's name. (Id.; see also Dkt. 18, Ex. C (Vargas reported he went out the window after seeing police arrive).) Whatcom County Acting Sergeant Jason Thompson advised officers on the scene he had located evidence belonging to Barrow inside the residence and asked them to maintain security while a warrant was obtained. Thompson also called in a K9 unit. (Id.)
Defendant Deputy Stanley Streubel received the call from Thompson. (Dkt. 18, ¶4.)2 Streubel is a certified K9 officer, generalist K9 trainer, and narcotics K9 trainer with the Washington State Police Canine Association. (Id., ¶2 ().) Since December 2012, Streubel has partnered with a police dog named Jag. (Id., ¶3.) Streubel certifies Jag every two years, including at the master patrol team standard, an upgrade requiring fewer point deductions and increased difficulty.
In the call regarding a potential K9 track at 8277 Harborview Road, Thompson told Streubel (1) a burglary had occurred at a home on Elk Road; (2) the suspects' car had been identified; (3) the Sheriff's Office responded to the listed address for the car on Harborview Road and found the car there; (4) one of the suspects jumped out a back window and fled on foot; and (5) it had been reported that, during the burglary on Elk Road, one of the suspects reached for a handgun in the car. After Streubel arrived at Harborview Road at 6:55 p.m., Thompson informed Streubel (1) the suspect who fled out the window was Martin Vargas; (2) Vargas had a felony warrant for his arrest; (3) there was probable cause for burglary in the first degree and other property crimes; (4) it was not clear whether Vargas had fled by himself; and (5) the gun reported observed at the burglary scene had not been recovered. (Id., ¶¶5-6.)
Streubel decided to use Jag to try to locate plaintiff, with Deputy Roosma providing coverage. (Id., ¶7.) It was a "higher risk track" because plaintiff was a fleeing felon with a substantial criminal history, had been reported to be in a car where someone had a handgun, and the handgun had not been recovered. Streubel assumed, given these facts, the outstanding felony warrant, and probable cause to arrest, that plaintiff was armed, did not want to be caught, was desperate to avoid incarceration, and may use a firearm to prevent his apprehension. (Id., ¶¶6-7.)
Streubel, accompanied by Roosma, tracked with Jag from the window through which plaintiff jumped, through the yard and brush into a neighbor's property. (Id., ¶¶7-10.) While crossing a fence, he "gave a loud K9 warning, 'Sheriff's Office K9, come out or call out now, the dog will find you and he will bite you!'" (Id., ¶10.) Jag tracked to the south, through four or five yards until hitting Harborview Road, did not pick up a scent and returned to the house. At the house, Jag went towards thick, ten-to-fifteen feet high sticker bushes and a garage overgrown with the bushes, approximately fifteen feet from the window. (Id., ¶11.) Streubel noticed Jag change behavior as he went towards the bushes, meaning he may have picked up a scent. They circled the garage several times and Streubel gave two more loud warnings, to which there was no response.
Streubel saw a tree some fifteen feet inside of the sticker bushes and something unusual and mostly obscured alongside the tree that "did not seem to fit in." (Id., ¶13.) He gave at least two additional loud warnings, with no response. Given his concern regarding the still missing firearm and the wanted, fleeing felon, Streubel ordered Jag to search the bushes. (Id., ¶14.) Jag went in to the bushes and stopped at the tree, and Streubel heard someone, later identified as plaintiff, yell out. Streubel ordered plaintiff to show his hands and not fight the dog. Although plaintiff said he would comply, Streubel could not see anything and again ordered plaintiff to show his hands. Plaintiff made one hand visible and said he was trying to comply. Because he had verbal compliance and could see one hand, Streubel ordered Jag to release plaintiff and return.
On Streubel's order, plaintiff came out from behind the tree, holding a cell phone in his hand. (Id., ¶15.) Plaintiff identified himself and Roosma arrested him and took him to the road to be treated by medics. Roosma found a gun holster on plaintiff, but no gun. In a continued search of the sticker bushes, Jag found drug paraphernalia inside a sunglasses case and Streubel found, near the tree, a checkbook with credit cards belonging to Barrow. (Id., ¶¶15-16.)
After the search, plaintiff told Streubel he had not surrendered to verbal warnings because he had fallen asleep. (Id., ¶17.) Streubel attests that, from his experience, many wanted felons do not surrender even after multiple warnings because they believe they will not be found. Another deputy took a written statement from plaintiff and transported him to the hospital for treatment. (Id., ¶18.) In another conversation at the hospital, plaintiff told Streubel he would have responded to warnings if he had not been asleep and hid in the bushes because he did not want to go to jail.
Whatcom County Sheriff's Office policy allows for the use of a canine to locate and apprehend a suspect if the canine handler reasonably believes an individual has either committed or threatened to commit any criminal offense and if any of the following conditions exist: (1) a reasonable belief the individual poses an imminent threat of violence or serious harm to the public, any deputy, or the handler; (2) the individual is physically resisting or threatening to resist arrest and use of the canine reasonably appears necessary to overcome the resistance; or (3) the individual is believed to be concealed in an area where entry by other than the canine would pose a threat to the safety of deputies or the public. (Id. at 35 (Ex. E).) Also, absent a change in circumstances presenting an immediate threat, the use of a canine "should be conducted under such conditions that will minimize the likelihood that the canine will bite or otherwise injure the individual." (Id.)
Streubel attests he and Jag complied with the policies on canines and use of force throughout the search and arrest. (Id., ¶¶18-20, 22, Ex. E.) He states Jag followed every command and the apprehension occurred with minor injuries, including scratch marks and cuts on plaintiff's arms from the sticker bushes, bite marks on his lower right leg and on top of his right foot, and one puncture wound on the top of his right foot. (Id., ¶¶9, 20.) Plaintiff received one stitch for the puncture wound and the other wounds were cleaned out to prevent infection. A deputy took photographs of the injuries and stitch, and took plaintiff to jail for booking. (Id., ¶9, Ex. D.)
Plaintiff attests that, when he saw police arrive at Harborview Road, he climbed out a window he had been in the midst of repairing because he did not want to be taken into custody for an outstanding warrant. (Dkt. 24, ¶2.) He crawled about six feet into some bushes and concealed himself. (Id.) He was not armed with a weapon, remained quiet and still as he saw a police dog running loose on a search, and eventually fell asleep. (Id., ¶¶2-4.) He woke up when the dog bit him on his right leg. (Id., ¶4.) The dog then used used his mouth to grab plaintiff's foot, and tried to pull plaintiff out of the bushes, with his teeth tearing through plaintiff's shoe and causing extreme pain. After three-to-five bites, an officer appeared and called the dog off. (Id., ¶5.)
Plaintiff denies the dog-bite injuries were minor. He contends the puncture wound on his right foot caused extensive nerve damage, resulting in chronic, excruciating pain, a lack of feeling in his foot, and a limp. (Id., ¶7.) Plaintiff now walks with a cane to avoid falling and, due to his abnormal gait, developed arthritis in the joints of his right leg. (Id., ¶¶...
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