Watness v. City of Seattle

• Decision Date: 16 February 2021
• Docket Number: No. 79480-9-I,79480-9-I
• Citation: 16 Wash.App.2d 297,481 P.3d 570
• Court: Washington Court of Appeals
• Parties: Commissioner Eric WATNESS, as Personal Representative of the Estate of Charleena Lyles; Karen Clark, as Guardian Ad Litem on behalf of the decedent's four minor children, Appellant, v. The CITY OF SEATTLE, a municipality; Jason M. Anderson, an individual; Steven A. McNew, an Individual, Respondent.

16 Wash.App.2d 297

481 P.3d 570

Commissioner Eric WATNESS, as Personal Representative of the Estate of Charleena Lyles; Karen Clark, as Guardian Ad Litem on behalf of the decedent's four minor children, Appellant,

v.The CITY OF SEATTLE, a municipality; Jason M. Anderson, an individual; Steven A. McNew, an Individual, Respondent.

No. 79480-9-I

Court of Appeals of Washington, Division 1.

FILED February 16, 2021

Karen Kathryn Koehler, A. Melanie Nguyen, Stritmatter Kessler Whelan Koehler Moore, 3600 15th Ave., W. Ste. 300, Seattle, WA, 98119-1330, Garth L. Jones, Stritmatter Kessler Koehler Moore, 413 8th St., Hoquiam, WA, 98550-3607, Edward H. Moore Jr., Law Offices of Edward H Moore PC, 3600 15th Ave., W. Ste. 300, Seattle, WA, 98119-1330, Karen A. Clark, Dept. of Social and Health Services, P.O. Box 45600, Olympia, WA, 98504-5600, for Appellant.

Ghazal Sharifi, Seattle City Attorney's Office, 701 5th Ave., Ste. 2050, Seattle, WA, 98104-7095, Jeffrey Mark Wolf, Seattle City Light-Legal Affairs Office, P.O. Box 34023, Seattle, WA, 98124-4023, Robert L. Christie, Megan Maria Coluccio, Christie Law Group, PLLC, 2100 Westlake Ave., N. Ste. 206, Seattle, WA, 98109-5802, for Respondent.

PUBLISHED OPINION

Andrus, A.C.J. ¶ 1 On June 18, 2017, Seattle Police Officers Jason Anderson and Steven McNew (the Officers) shot and killed Charleena Lyles after, as the Officers contend, she threatened them with a knife. Retired Commissioner Eric Watness, personal representative of Lyles's estate, and Karen Clark, guardian ad litem for Lyles’ four minor children (referred here jointly as the Estate), sued the City of Seattle (the City) and the Officers alleging negligence and assault. The trial court granted the Officers’ motion for summary judgment, denied the Estate's motion for partial summary judgment on certain affirmative defenses, and struck the Estate's three expert declarations. Because there remain genuine issues of material fact, we reverse and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

¶ 2 In the six months prior to her death, Charleena Lyles called the Seattle Police Department (SPD) twenty-three times. On June 5, 2017, SPD responded to one of Lyles's calls in which she reported she had been the victim of domestic violence at her apartment in an affordable housing complex owned by Solid Ground. Police reports indicate that while officers were in her apartment, Lyles—who was present with her young daughter—"armed herself with a pair of extra long metal shears and was threatening [responding] officers." Lyles reportedly told officers, "Ain't none of y'all leaving here today." Both officers present drew their firearms and commanded her to drop the scissors to the floor. Lyles reportedly yelled, "[A]re you going to shoot me in front of my daughter?" The police reported that Lyles refused to put down the shears even after being repeatedly asked to do so. They told Lyles they were there to help her, not to shoot her.

¶ 3 Additional police officers responded to the scene and reported that during this incident, Lyles made several unusual comments, including wanting to "morph into a wolf" and talking about "cloning her daughter." The police described Lyles making several "unusual religious comments" and accusing the officers of being "devils" and members of the Ku Klux Klan. Officers were ultimately able to convince Lyles to take a seat on her sofa and to drop the scissors.

¶ 4 The police reports further indicate the officers separated Lyles and her young child from the scissors and obtained a phone number for a nearby family member who arrived at Lyles's apartment shortly thereafter. They then took Lyles into custody. The police learned from Lyles's sister that Lyles had experienced "a recent sudden and rapid decline in her mental health." The police report described Lyles as exhibiting "[d]isorientation/confusion," "[d]isorganized speech/communication," "[d]isorderly/disruptive behavior," and "[b]izarre, unusual behavior." They described her as "[b]elligerent/uncooperative, angry," "[o]ut of touch with reality," and experiencing "[h]allucinations/delusions." The incident led the officers to flag Lyles and her address with an "officer safety caution." The police booked Lyles into jail for harassment but recommended her case be transferred to mental health court.

¶ 5 On the morning of June 18, 2017, Lyles called 911 to report a residential burglary. Lyles informed police that three hours earlier, she had discovered her apartment door open and an Xbox missing. Seattle Police Officer Jason Anderson, on routine patrol, responded to the call and conducted a routine record check on the address. After Officer Anderson noted the officer safety caution associated with Lyles and reviewed the police report of the June 5 incident, he requested back up from another unit. When Officer McNew arrived, the two officers briefly discussed the prior incident. Officer McNew commented they should not let Lyles get behind them or get between the officers and her apartment door.

¶ 6 When the Officers contacted Lyles in her apartment, she was calm and cooperative. Lyles told the Officers she had left her apartment unlocked while she went to the store and returned to find her Xbox or PlayStation taken. She led the Officers down a hall to a back bedroom from which she reported items had been stolen. After returning to the kitchen, the officers noticed two young children playing in the living room. As Officer Anderson asked Lyles to clarify some information for his report, he glanced up and saw Lyles lunge at him with a knife.¹ Officer Anderson testified that had he not jumped back, Lyles would have stabbed him. He drew his firearm and told Lyles to get back. Officer Anderson testified Lyles was yelling at them but he could not make out what she was saying.

¶ 7 Officer Anderson testified Lyles then turned her attention toward Officer McNew, who was then cornered in her kitchen. Officer McNew asked Officer Anderson to use his stun gun.² Officer Anderson responded that he did not have his stun gun.³ The Officers both testified that Lyles continued to approach them, knife in hand, ignoring their commands to get back. Believing Lyles intended to stab one of them, both Officers repeatedly fired their service firearms at Lyles, killing her.

¶ 8 SPD's investigation into the police shooting revealed that Lyles had a black-handled knife with a four and one-half inch blade in her left jacket pocket and a knife sheath in her right jacket pocket. Police recovered a second knife, with a four-inch blade, near Lyles's apartment door. This knife matched the size and shape of the sheath in Lyles's pocket.

¶ 9 The Estate brought this lawsuit alleging common law negligence and assault.⁴ The City and the Officers asserted a number of affirmative defenses, including immunity under RCW 4.24.420, qualified immunity, assumption of risk, and discretionary immunity.

¶ 10 The City and Officers moved for summary judgment, principally arguing the Officers owed no legal duty to Lyles under the public duty doctrine and that they were immune from suit under Washington's felony defense statute, RCW 4.24.420. The Estate opposed this motion and moved to dismiss the affirmative defenses of qualified immunity and assumption of risk and the City's discretionary immunity defense, and submitted declarations from three expert witnesses, two in police conduct and practices and one in forensic psychology.

¶ 11 The admissibility of the experts’ testimony is a key issue in this appeal. Criminologist Thomas Mauriello opined that the Officers’ use of their firearms was unreasonable in light of the circumstances and contrary to SPD policies on de-escalation. Police practices expert D.P. Van Blaricom opined that Lyles's death could have been avoided had Officer Anderson been carrying his SPD-mandated stun gun and used it, rather than his firearm, to subdue Lyles. Criminal psychologist, Dr. Mark Whitehill, opined that Lyles was in a psychotic state during the shooting and did not have the capacity to form the intent to assault the Officers. The Officers moved to strike these declarations as inadmissible under ER 702 and Frye v. U.S., 293 F. 1013 (D.C. Cir 1923). The trial court granted the Officers’ motion to strike the expert declarations and granted their summary judgment motion. It denied the Estate's partial summary judgment motion. The Estate appeals all three orders.⁵

ANALYSIS

¶ 12 Appellate courts review a summary judgment order de novo and perform the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Properties, LLC, 196 Wash.2d 199, 205, 471 P.3d 871 (2020). A moving party is entitled to summary judgment "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." CR 56(c). We view all facts and reasonable inferences in the light most favorable to the non-moving party. Owen v. Burlington N. Santa Fe R.R. Co., 153 Wash.2d 780, 787, 108 P.3d 1220 (2005).

¶ 13 Although appellate courts generally review a decision to exclude expert witness testimony at trial under an abuse of discretion standard, State v. Arndt, 194 Wash.2d 784, 798, 453 P.3d 696 (2019), the de novo standard of review applies when reviewing trial court evidentiary rulings made in conjunction with a summary judgment motion. Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998). We review a trial court's Frye ruling de novo. Advanced Health Care, Inc. v. Guscott, 173 Wash. App. 857, 871, 295 P.3d 816 (2013).

A. Public Duty Doctrine

¶ 14 The Estate first argues its claims are not barred by the public duty doctrine. The Estate alleges the Officers acted unreasonably and violated SPD policy during their encounter with Lyles by failing to use nonlethal force. It contends the police officers could have used nonlethal methods, such as a stun gun or a police...