SPD Claims On Doj 1

Case 2:11-cv-01041-RSM Document 52
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CITY OF SEATTLE, a municipal corporation; SHANDY COBANE, an individual; MARY L. WOOLLUM, an individual, Defendants. v.
Honorable Ricardo S. Martinez
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE MARTIN MONETTI, JR., No. 2:11-cv-01041-RSM Plaintiff, PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE (NOTED ON JUNE 13, 2012 AT 1:00 PM FOR ORAL ARGUMENT)
PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT, ETC. 2:11-cv-01041-RSM 344337
SCHROETER, GOLDMARK & BENDER

500 Central Building 810 Third Avenue Seattle, WA 98104 Phone (206) 622-8000 Fax (206) 682-2305
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 V. D. E. C. B. 3. 2. III. IV. I. II.
TABLE OF CONTENTS Page INTRODUCTION ....................................................................................................... 1 FACTS RELATING TO PLAINTIFFS CLAIMS ..................................................... 2 A. B. Facts Set Forth In Defendants Motion. ........................................................... 2 Additional Facts Provided By Plaintiff. ........................................................... 4
EVIDENCE RELIED UPON AND MOTION TO STRIKE ...................................... 7 ARGUMENT ............................................................................................................. 11 A. Summary Judgment Should Be Denied on Plaintiffs Equal Protection Discrimination Claim. .................................................................. 11 1. Plaintiff Makes A Prima Facie Case Under The Burden Shifting Analysis Applicable To 1981 and 1983 Discrimination Claims. ...................................................................... 11 The Evidence Also Raises Material Issues Of Fact Rebutting Evidence Offered By Defendants Of NonDiscriminatory Reasons For The Force Applied. .............................. 13 Plaintiffs Discrimination Claim Is Supported By Other 1983 Precedent In The Ninth Circuit. ............................................. 18
Plaintiffs Provide Materially Disputed Evidence As To The Individual Defendants Assertion Of Qualified Immunity For the Equal Protection Claim. ........................................................................... 18 There Are Material Disputed Issues Of Fact Regarding Plaintiffs Fourth Amendment Claim And On The Individual Defendants Entitlement to Qualified Immunity For Such Claim. ............................................................................................................. 19 1. There Are Disputed Issues of Material Fact Regarding Plaintiffs Fourth Amendment Claim. ............................................... 19
There Are Disputed Issues Of Fact Regarding Seattles Municipal Liability. ....................................................................................... 23 Summary Judgment Should Be Denied As To Plaintiffs State Law Claims. ................................................................................................... 24
CONCLUSION .......................................................................................................... 24
PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT, ETC. 2:11-cv-01041-RSM 344337

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I.
INTRODUCTION
Plaintiff Martin Monettis equal protection claim against defendants under 42 U.S.C. 1981 and 1983 turns on evidence of racial or national origin animus being at least part of the motivation for defendants actions against him. See Serrano v. Francis, 345 F.3d 1071, 1083 (9th Cir. 2003) which also held that: racially tinged remarks made by a decision maker create a genuine issue of material fact as to whether [a defendants] actions violated the Equal Protection Clause. Plaintiffs evidence shows repeated statements by Seattle Police reflecting discriminatory animus accompanied by the repeated use of force causing Mr. Monetti pain, injury, and humiliation. Ninth Circuit law permits the jury to conclude that the remarks and threats show discriminatory animus and motive and are causally connected to actions at about the same time.1 This calls for the denial of defendants motion regarding this claim. Plaintiffs 1983 claim based on the Fourth Amendments prohibition on excessive force has different elements than the equal protection claim, e.g., defendants motives are
For example, the Ninth Circuit held in Cordova v. State Farm Ins. Companies, 124 F.3d 1145, 1149-50 (9th Cir. 1997) that [c]alling someone a dumb Mexican is an egregious and bigoted insult, one that constitutes strong evidence of discriminatory animus on the basis of national origin. (Emphasis added.) Plaintiff cites at pages 10-11, 13 and 17 more than a half dozen Ninth Circuit cases to similar effect. Given those holdings, it is hard to imagine that the Ninth Circuit would hold differently when Ofc. Cobane shouts Ill beat the fucking Mexican piss out of you, homey, you feel me? just before he pins plaintiffs hand with his boot also contacting plaintiffs head and causing pain and a scar. Moreover, at page 213 of Ofc. Shandy Cobanes deposition, attached to the Declaration of Janet L. Rice as Exhibit A (all exhibit references are attached to the Rice Declaration unless indicated otherwise), he admitted that there was a departmental culture that tolerated this language: Q. . The fact that no one commented to you at the scene about the use of the phrase fucking Mexican piss, does that indicate to you that there is a department culture that tolerates that phrase being used? . A. I would say yes. In the context that it was used, yes. Similarly, it is hard to imagine, given the existence of cases such as Cordova, that any reasonable police officer in Seattle in 2010 would not know that this remark was invidious discrimination. See Elliot-Park v. Manglona, 592 F.3d 1003, 1008-9 (9th Cir. 2010).
PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT, ETC. - 1
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largely irrelevant2 and the analysis depends on the totality of the circumstances including the availability of alternative methods of capturing or subduing a suspect. Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc). Plaintiffs evidence raises material disputed issues of fact both as to whether his Fourth Amendment rights were violated and whether the individual officers are entitled to qualified immunity on this claim. This evidence includes the expert Declaration of Johnny Gil Jurado which is relevant on these issues under Hemet and which disputes much of defendants evidence. Furthermore, defendants intentionally or negligently failed to obtain and/or destroyed relevant evidence by not retaining the video taken by defendant Mary L. Woollums in-car camera. Under controlling law including Ritchie v. United States, 451 F.3d 1019, 1025 (9th Cir. 2006), this evidence of spoliation, combined with the other evidence, also calls for denial of summary judgment on this claim.
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Defendants motion for summary judgment concerning plaintiffs state law claims also should be denied since defendants do not meet the state law test for immunity (which differs from the 1983 test) and there are material disputed issues of fact regarding those claims. II. A. FACTS RELATING TO PLAINTIFFS CLAIMS
Facts Set Forth In Defendants Motion. Defendants motion for summary judgment includes Ofc. Shandy Cobanes3
declaration at 4-7 (Ct.Rec. 26), which establishes that (a) there were more than a dozen police officers surrounding Mr. Monetti and two other young men, (b) one of the men other than Mr. Monetti was already in handcuffs when Ofc. Cobane arrived, (c) all three of the
As explained in Winterrowd v. Nelson, 480 F.3d 1181 (9th Cir. 2007): While we must consider the facts here without regard to the arresting officers subjective motivation for using force, Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006), the officers underlying motivations could cast doubt on their version of the incident. This is a matter to be sorted out by the trier of fact. (Emphasis added.) Defendants refer to Ofc. Cobane as Det. Cobane, however, his current title is Officer.
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young men were prone on the ground, and (d) Ofc. Cobane believed that all three young men were Hispanic.4 Defendants motion for summary judgment also includes as evidence the video tape in which defendant Cobane threatens Mr. Monetti: Ill beat the fucking Mexican piss out of you, homey, you feel me? Def. Mot., p. 5 (Ct.Rec. 24). Plaintiff agrees with the
Department of Justices characterization of portions of the videotaped episode and aftermath contained at page 27 of the Investigation of the Seattle Police Dept., U.S. Dept. of Justice, Civil Rights Div., U.S. Attys Office, Western Dist. Of Washington (Dec. 2011) (DOJ Report) (Ct.Rec. 36-1): . . . The number of people present, the failure to correct the officer, and the failure to immediately report the conduct all could be seen as a reflection of a hardened culture of accepting racially charged language. (Emphasis added.) Ofc. Cobane agrees at least in part with this DOJ assessment. Cobane Dep., p. 213 (Ex. A).
14 15 16 17 18 19 20 21 22 23 24 25 26 8. Also, almost immediately after hearing those statements, defendant Woollum not only did not challenge Ofc. Cobanes use of that language, but came over to plaintiff lying on the
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Furthermore, Sgt. Keith Swank, the Senior Officer at the scene, testified that Ofc. Cobanes remarks were not derogatory. Swank Dep., pp. 22-24 (Ex. B). Almost immediately after shouting these offensive and racially charged statements, Ofc. Cobane pinned plaintiffs hand to the ground with his booted foot for approximately 20 seconds which also struck plaintiffs head. Video (Ct.Rec. 39-6); Cobane Dec. 16, 17 (Ct.Rec. 26); May 9, 2012 Jurado Dec., p. 8 (Ct.Rec. 40), Declaration of Martin Monetti, Jr.,
Ofc. Christopher Hairstons declaration at paragraph 24 states that Mr. Monetti was detained for 20-30 minutes with multiple officers present. Ct.Rec. 29. Yet, during those 20-30 minutes, even with all of those officers present, and even though Ofc. Cobane believed that the three suspects Veteta-Contreras, GarciaGarcia, and Monetti, may be armed and dangerous, Mr. Monetti was neither searched for weapons nor handcuffed. See Cobane Dec., 9, 16-17 (Ct.Rec. 26).
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ground and forcefully pushed (Cobane Dec., 20-21 (Ct.Rec. 26)) or forcibly stomp[ed] (May 9, 2012 Jurado Dec., p. 9 (Ct.Rec. 40)), Mr. Monettis right leg to the ground and pinned it there even though his leg was already on the ground.5 B. Additional Facts Provided By Plaintiff. Det. Robert Sevaaetasi, who was Ofc. Cobanes partner at the scene, was deposed regarding the use of force against Mr. Monetti by both Ofc. Woollum and Ofc. DePina not recorded on the video. At pages 58-59, Det. Sevaaetasi recounts that Officer Woollum pushes his head down onto the pavement two or three times. Ex. C.6 Det. Sevaaetasi also describes Ofc. DePina putting his knee on Mr. Monettis back while plaintiff was on the ground. Id., at 59-60. Plaintiff also supplies excerpts of depositions of Officers Woollum, Hairston, Cobane and Sgt. Swank which show that defendants knew that handcuffing was a reasonably
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effective alternative to the use of force, but did not use it on Mr. Monetti although they
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Plaintiff believes that those events are accurately described at page 9 of the May 9, 2012 Jurado Declaration (Ct.Rec. 40): The final unnecessary use of force occurred while the plaintiff was in apparent pain from Officer Cobane standing on his hand. The video shows plaintiff Monetti twice slowly moved his right foot up a couple of inches. Officer Woollum is then seen walking over to plaintiff Monetti, and forcibly stomping on him apparently reacting to his right leg lifting. She then stood on top of him for approximately 20 seconds. According to Officer Woollum it was merely her intent to put his leg back on the ground. It is clear on the video that plaintiff Monetti had returned his leg flat to the ground as Officer Woollum was still approaching, therefore the force was unnecessary since there was no longer a need try to control him. (Emphasis added.) 6 It is not clear whether this is the same episode referred to by Ofc. Woollum in her declaration. Ct.Rec. 31, p. 12. If it is, Det. Sevaaetasis description is materially different than that provided by Ofc. Woollum in her deposition at 88-89 (Ex. D).
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handcuffed the person next to him.7 Plaintiff also supplies a December 3, 2010 letter (Ex. F) from the Los Angeles Police Department to defendants attorneys stating: By not demonstrating the fundamentals of officer safety and good tactics, the officer placed themselves, the suspects, and public at undo risk.8 _____________ 8 Had the officers handcuffed Monetti, it is in this reviewers opinion, the force used by the officers would not have occurred. (Emphasis added.) Plaintiff also provides evidence of other offensive remarks by police directed at him during this same encounter. Mr. Monetti recalls that prior to the remarks by Ofc. Cobane captured on videotape, a police officer told him You fucking Mexicans are making my job harder. Monetti Dec., 2.8 Moreover, he recalls being hit several times while I was lying face down on the ground and feeling pressure near the middle of my back that caused me pain as well as feeling somebody putting pressure on my head and pushing my head down causing my head to hit the concrete very hard causing me pain and an injury to the left side
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of my head. Id. (emphasis added). Furthermore, having a foot or knee being pressed strongly against his back ultimately required twelve weeks of chiropractic sessions to resolve. Id. at 5.
Captain Tag Gleasons Proposed Disposition for OPA-IS Case 10-0175 (Ex. E) (hereafter Gleason Report) states at page 6: In their statements, nearly all of the involved officers agree that the outcome of this investigative detention would have been different had all of the suspects been handcuffed, and not just Mr. GarciaGarcia. .... Sergeant Swank seems to be referring to Department Policy 6.010- Arrest Procedures, implying that not handcuffing Mr. Monetti could be interpreted as an effort by the officers to skirt the policys intent to have a supervisor screen these types of investigative detentions. (Emphasis added.) See also May 9, 2012 Jurado Dec. (Ct.Rec. 40); Cobane Dep., p. 74 (Ex. A); Woollum Dep., pp. 44-45, 82 (Ex. D), Hairston Dep., p. 89 (Ex. G), and Swank Dep., p. 96 (Ex. B). 8 The Gleason Report at page 7 admits that Detective Cobanes profane outburst to Mr. Monetti that preceded his use of force could be interpreted as evidence of ill will, contributing to his decision to use force. Ex. E.
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The reason that much of this additional evidence is not contained on video is because defendants, particularly Ofc. Woollum, violated Seattles policy concerning the use of in-car video equipment. Notably, Ofc. Woollum parked her police car in a position that was close to and had direct video and audio access to where these incidents took place. However, in violation of that Seattle policy,9 she did not activate the video camera until almost the end of the incident when, while still out of the car, she remotely activated the equipment when she was giving a Miranda warning to another of the three young men. See Woollum Dep., p. 115 (Ex. D). Ofc. Woollum obviously was aware that she could have activated the video earlier, since she did so when it was to her advantage, i.e., to prove that the Miranda warning was given.10
Seattle Police Department Policies & Procedures, Patrol Operations 17.260 In-Car Video (Apr. 2009) (Ex. H), states: POLICY Sworn Department members assigned a digital in-car video/audio recording system (DICVS) will make every effort to use it to document all traffic stops, pursuits, vehicle searches and citizen contacts when occurring within camera range. . . . 3. Multiple Units at Scene a. When two or more DICVS units respond to the same incident, all units present should record the incident. . . . 4. Citizen Contacts a. Officers will activate the video equipment, including microphone, prior to making citizen contacts. . . . 5. Miranda a. Whenever practicable the advisement of an individuals Miranda rights should be recorded. (Emphasis added.) 10 Plaintiff presents additional evidence permitting a finding of spoliation. Sgt. James Kim testified that the incar camera video is running when the car is on and could be retrieved at least in part (whether or not the audio is on) until the car is used again at the next shift. Kim Dep., pp. 70-72, 74-75, 80 (Ex. I). See also SPDs December 2011, Office of Professional Accountability, In-Car Video Review , pp. 4-5 (Ex. J). The video from Ofc. Woollums car would have given a direct view of the scene and she arrived near the beginning. Woollum In-Car Video (Ex. K). Ofc. Woollum also knew that the events that night had been filmed in part (Woollum Dep., pp. 88-89 (Ex. D)), was controversial, and knew or should have known that those events might well result in litigation and/or official review. The Media Relations Office of SPD knew on Saturday, April 17th of the video. Swank Dep., pp. 38-39 (Ex. B). Yet, the video is unavailable because neither Ofc. Woollum or anyone else at SPD made any effort to retrieve or save the video before the car was used again and the video was overwritten.
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The only reason that there was any videotape evidence of the incident involving plaintiff was that a journalist videotaped part of the incident beginning about five minutes after it began. See Kim Rpt., p. 4 (Ct.Rec. 30-1). If Ofc. Woollum had followed police policy, there would have been a complete video record of the use of force behavior including the actions that resulted in Mr. Monetti saying Ow my head, which is described quite differently by Ofc. Woollum and Det. Sevaaetasi.11 III. EVIDENCE RELIED UPON AND MOTION TO STRIKE
Plaintiff relies upon the Declaration of Janet L. Rice in Opposition to Defendants Motion for Summary Judgment and exhibits attached thereto, Declaration of Martin Monetti, Jr., Declaration of Robert Flennaugh II, and the May 9, 2012 Declaration of Johnny Gil Jurado (Ct.Rec. 40), and the May 31, 2012 Declaration of Johnny Gil Jurado.12 While plaintiff is relying on some portions of the Cobane and Woollum declarations, he objects to and moves to strike paragraphs 27-28 of the Cobane declaration (Ct.Rec. 26), paragraphs 21-22 of the Woollum declaration (Ct.Rec. 31)13 and paragraph 31 of the Hairston declaration (Ct.Rec. 29), as well as the Clark Declaration (Ct.Rec. 25), which all essentially assert that plaintiff participated in the robbery. Those assertions are based on hearsay in violation of Fed. R. Evid. 801 and are irrelevant under 401. They are based on hearsay because they are all based on the alleged out-of-court statements of Eliezer Duran.
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Plaintiff also provides evidence that defendants behavior changed markedly immediately after they became aware that they were being videotaped. Ofc. Woollum testified that after the comment by Ofc. Cobane referred to above, and the use of force by Cobane and Woollum, Sgt. Swank informed Cobane that they were being videotaped by a journalist. Woollum Dep., pp. 88:21-89:6 (Ex. D). Very shortly thereafter, Mr. Monetti, instead of being the victim of further abusive discriminatory comments and stomping, is helped to his feet, escorted to a police car, and released. 12 The parties have entered into a Stipulation and Confidentiality Agreement. Plaintiff has notified defendants of his intent to use documents designated as confidential by defendants. Ex. L. To date, defendants have not moved to seal the documents (the evidence offered by plaintiff is similar to evidence used by defendants, which had also been designated as confidential by defendants). 13 The two paragraphs of the two declarations use identical language.
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They are irrelevant because defendants only became aware of this information after April 17, 2010. These claims are not supposed to be based on 20-20 hindsight. As Ofc. Woollum admits at page 126 of her deposition, what defendants knew after the incident in question is irrelevant. Ex. D. Moreover, these assertions are contradicted by King County Assistant Prosecuting Attorney Thoms Gahan, who stated that based on a review of the evidence, I do not believe that you [Martin Monetti] played a criminal role in the robbery of either Eliezer Duran or Walter Flores Cruz (the two robbery victims) on the night in question. Exhibits A and B to the Declaration of Robert Flennaugh II. Particularly, given the
defendants knowledge that their motion to the Court would receive media attention, it is problematic that they chose to ignore the prosecutors determination that Mr. Monetti did not participate in the crime.14 Plaintiff also objects and moves to strike the opinions in Grant Fredericks Report giving opinions as to what the video shows. Ct.Rec. 28. His opinions violate Fed. R. Evid. 702 and Ninth Circuit cases.15 As in those cases, the court and the jury in this case is capable of discerning what was in the video and still photographs taken from the video. Moreover, Mr. Fredericks report does not explain why the jury could not understand the videos and
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Det. Clarks declaration states that Mr. Monetti did not respond to his interview request, raising the inference that Mr. Monetti was guilty of the robbery. Ct.Rec. 25. In fact, Det. Clark misrepresented his role in the investigation of the robbery to Mr. Monettis attorney by stating that he was investigating the officers misconduct rather than the robbery. Flennaugh II Dec., 5. Mr. Monetti cooperated with the internal investigation, but did not respond to Det. Clarks interview request. Ex. M. 15 Those include U.S. v. Burke, 506 F.2d 1165, 1170 (9th Cir. 1974) (trial court erred in admitting testimony of expert interpreting surveillance photos since it was within the capability of jury); U.S. v. Brewer, 783 F.2d 841, 842 (9th Cir. 1986) (affirming the exclusion of expert testimony concerning identification of surveillance photographs); and Beech Aircraft Corp. v. U.S., 51 F.3d 834, 842 (9th Cir. 1995) (question of what could be heard on tape recorded conversation was within ability of jury).
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stills by themselves or explain why the jury would receive appreciable help from the expert testimony. Little Oil Co., Inc. v. Atlantic Richfield Co., 852 F.2d 441, 446 (9th Cir. 1988).16 Citing Fed. R. Evid. 803(8) and analogous cases such as Gilbrook v. City of Westminster, 177 F.3d 839, 858-59 (9th Cir. 1999); Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir. 1991); and Combs v. Wilkinson, 315 F.3d 548, 554-56 (6th Cir. 2002), plaintiff previously explained that the DOJ Report covering excessive use of force and discriminatory practices and discussing this very incident is admissible against defendants.17 Moreover, pursuant to Fed. R. Evid. 703,18 the same DOJ report was appropriately relied upon by plaintiffs expert Mr. Jurado in reaching his opinions such as that the Seattle Police Department through its practices, customs and policies violated the constitutional rights of Monetti (May 9, 2012 Jurado Dec., p. 10 (Ct.Rec. 40)).
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Plaintiff does not object to the admission of the still photographs taken from the video, but objects to the witness commentary on what he sees in the stills. This is particularly true because the Frame by Frame Analysis submitted to the Court by Grant Fredericks is not what it purports to be. Ct.Rec. 28-1. In the deposition of defense expert Sgt. Kim, the plaintiff (and Sgt. Kim) discovered that the Analysis does not actually show a frame by frame progression of the You Tube video as represented. Kim Dep., pp. 113-124 (Ex. I). In fact, at the crucial point of the video where Ofc. Cobanes foot makes contact with Mr. Monettis head, the same frame of the video is shown three times. Exhibit A to Fredericks Declaration, frames 97-99 (Ct.Rec. 28-1). On Frame 99 of the video, Mr. Fredericks indicates no head motion, implying that after Ofc. Cobanes foot contacts Mr. Monetti in Frames 97 and 98, there is no movement of Mr. Monettis head, presumably evidence that there was no contact with his head. This is misleading in that Frames 97, 98, and 99 are the same frame, and one sees movement of Mr. Monettis head in Frames 100-105. Mr. Fredericks also purports to point out space between Ofc. Cobanes boot and Mr. Monettis head. Fredericks Dec. (Ct.Rec. 283), p. 12. Sgt. Kim admitted during his deposition that reasonable minds could disagree with his conclusion that there was no contact between Ofc. Cobanes boot and Mr. Monettis head. Ex. I, pp. 127-129 . In fact, Sgt. Kims opinion that there was no contact is contradicted by Mr. Jurados opinion that there was contact. May 31, 2012 Declaration of Jurado. 17 See Plaintiffs Response to Defendants Motion for Bifurcation, pp. 9-11 (Ct.Rec. 38). 18 Fed. R. Evid. 703 provides that An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. See Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 954 (8th Cir. 2000); First Nat. Bank of Louisville v. Lustig, 96 F.3d 1554, 1575-1576 (11th Cir. 1996); Westfield Ins. Co. v. Harris, 134 F.3d 608, 61112 (4th Cir. 1998); and U.S. v. Rollins, 862 F.2d 1282 (7th Cir. 1988).
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Defendants previously argued that there were a number of negative factors that weigh against the reliability and trustworthiness in the DOJ Report and therefore Fed. R. Evid. 803(8) does not apply.19 Defendants arguments are factually and legally mistaken as explained below. Defendants first argument was that 42 U.S.C. 14141 (which was only one of the three federal statutes relied upon by the DOJ) is under a reasonable cause standard, not the preponderance of the evidence standard under 1983. Def. Reply, p. 3 (Ct.Rec. 44). That misstates 14141 which in subsection (a) prohibits persons acting on behalf of a governmental authority from engaging in a pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. That latter language is similar to the language in 1983.20 Defendants also argue that 2) the only articulated support for DOJs Report comes from the subjective opinions of two retired law enforcement officials retained by DOJ as consultants . Def. Reply, p. 3 (Ct.Rec. 44). That is contrary to what the DOJ actually said. See DOJ Report, pp. 3, 8 (Ct.Rec. 36-1).21 Those same pages also contradict
defendants third argument that use of force must be analyzed under a totality of the
See Defendants Reply to Bifurcate, pp. 3-4 (Ct.Rec. 44). The reasonable cause standard referred to by defendants is the standard for initiating legal action not for proving it. 21 The DOJ Report at page 3 (Ct.Rec. 36-1) states: Specifically, with the assistance of our national policing experts, we systematically and thoroughly examined voluminous documents and records, including hundreds of hours of video footage, a variety of police reports, policy manuals, and SPD records related to its use of force and policing practices. This effort included obtaining and analyzing all use of force reports for the approximately two-year period preceding our review. Moreover, we did not limit ourselves to a document review. We also conducted multiple site visits and interviewed hundreds of individuals, including community leaders, individuals alleging SPD officers had violated their constitutional rights, and SPD personnel, including front-line officers, their immediate supervisors, and command level staff. See also id., p. 8. (Use inter alia of randomized, stratified and statistically valid sample of SPDs own use of force reports.) (Emphasis added.)
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circumstances analysis, not by a subjective review solely of use of force reports, which is the methodology used by the DOJ. Id. Moreover, defendants argument ignores the fact that the use of force reports were authorized by Seattle and were presumably intended to allow the officer to explain both the facts and the justification for the use of force. That is confirmed by Sgt. Kim at pages 68-70 of his deposition. Ex. I. IV. A. ARGUMENT
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Summary Judgment Should Be Denied on Plaintiffs Equal Protection Discrimination Claim. 1. Plaintiff Makes A Prima Facie Case Under The Burden Shifting Analysis Applicable To 1981 and 1983 Discrimination Claims.
Defendants motion at pages 17-18 (Ct.Rec. 24) acknowledges that both 1981 and 1983 equal protection cases properly call for the burden shifting analysis used, inter alia, in statutory discrimination cases such as Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977): In either a 1981 or 1983 case, the plaintiff must first establish a prima facie case of disparate treatment. Once the plaintiff establishes a prima facie case that the officers conduct was motivated by a discriminatory purpose, the burden then shifts to the defendants to show by undisputed evidence that there was no discriminatory effect, which is established by proof that the officers actions would have remained the same even absent the use of race-based language. See Village of Arlington Heights, 429 U.S. at 271 n. 21. Def. Mot., p. 18:3-15 (underlined emphases added; italics and bold emphasis in original) (Ct.Rec. 24). Defendants also rely on Keyser v. Sacramento City Unified School Dist., 265 F.3d 741, 754 (9th Cir. 2001), for the proposition that a discrimination claim turns on whether the action was racially motivated (quoting Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 473 (9th Cir. 1991). Def. Mot., p. 17 (Ct.Rec. 24). Defendants then argue that
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plaintiff must accordingly prove that the officers actions [their use of force] were motivated by racial animus. Def. Mot., p. 18:21-23 (Ct.Rec. 24).22 Defendants arguments ignore settled law holding that a burden shifting analysis applies both in Title VII and in 1983 discrimination actions. For example, Keyser, quoting Henderson, 265 F.2d at 754, held that summary judgment decisions with regard to 1983 claims are remarkably similar to their Title VII counterparts. Moreover, Title VII cases in the Ninth Circuit under very similar facts to the present case hold that discriminatory motives can be inferred when a decision maker has called someone a dumb Mexican, that such a statement is direct evidence of discriminatory animus. . . . and can create an inference of discriminatory motive. Cordova, 124 F.3d 1145 at 1149-50.23 The Ninth Circuit has
repeatedly relied on Cordova. For example, in Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 10027 (9th Cir. 2005), the Ninth Circuit citing Cordova held: . . . [I]n this circuit, we have repeatedly held that a single discriminatory comment by a plaintiffs supervisor or decisionmaker is sufficient to preclude summary judgment for the employer. (Emphasis added.) See also Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1128 (9th Cir. 2000); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1990).24
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In Village of Arlington Heights, 429 U.S. at 271, n. 21, the Supreme Court held that racial animus need only be part of the motivation not the entire motivation. Similarly, in Serrano v. Francis, supra, 345 F.3d at 1083, the Court held that intentional discrimination means that a defendant acted at least in part because of a plaintiffs protected status. . . . quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994). 23 In Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1113 (9th Cir. 1991), the Ninth Circuit similarly held: . . . In this instance, the fact that stereotyped remarks were made by Sischo-Nownejads superiors at the same time that they were subjecting her to less favorable working conditions is sufficient to raise an inference of discriminatory intent. (Underlined emphasis added.) 24 In Godwin, 150 F.3d at 1221, the Ninth Circuit held: . When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. . . . Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994).
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The evidence here demonstrates a prima facie case of discriminatory motive for summary judgment purposes.25 As in Cordova, Dominguez-Curry, Sischo-Nownejad, and Chuang, plaintiff provides evidence of discriminatory animus and motive connected with the
4 5 6 7 8 9 10 11 12 13 14 15 moving party, the benefit of evidence and inferences. Anderson v. Liberty Lobby, Inc., 477 16 U.S. 242, 255 (1986). 17 18 19 20 21 22 23 24 25 26
25
use of force. In perhaps the clearest evidence of such connection, almost immediately after Ofc. Cobanes discriminatory remarks,26 he pinned plaintiffs hand to the ground with his booted foot for approximately 20 seconds leaving a scar that still exists. See Monetti Dec., 4. Furthermore, at almost the same time Ofc. Woollum, who admits hearing those remarks (Woollum Dep., p. 86 (Ex. D)), walked over and forcefully pushed or stomped Mr. Monettis right leg to the ground and pinned it there. Moreover, as discussed above, there had been at least one prior profane and discriminatory statement directed against plaintiff based on his national origin, i.e., You fucking Mexicans are making my job harder. Under the Ninth Circuit precedent quoted above, this evidence provides a prima facie case particularly for purposes of summary judgment, which requires this Court to give plaintiff, as the non-
2.
The Evidence Also Raises Material Issues Of Fact Rebutting Evidence Offered By Defendants Of Non-Discriminatory Reasons For The Force Applied.
Cordova and Sischo-Nownejad as well as several earlier Ninth Circuit cases held that
The fact that Sgt. Swank, the highest ranking officer at the scene saw no discrimination in Ofc. Cobanes remarks demonstrates the large gap between the Ninth Circuit law and Seattle Police in their understanding of this matter. Swank Dep., pp. 24, 45 (Ex. B). See also Hairston Dep., p. 17 (Ex. G). 26 Not surprisingly, Ofc. Cobane admitted at pages 207-208 of his deposition that he had never read the policy of the City with respect to unbiased policing. Moreover, when evaluating Ofc. Cobanes intent in using the term homey was benign, this Court can consider Exhibit E to the Jinhong Declaration, pages 230-231, which is a transcript of recordings during the incident: Hey, homey, I no have nothing on me. Whats the problem? Police Officer: Okay. First off, dont call me homey. Male Speaker: I know. Sorry Police Officer: (Inaudible) Fucking homey. Ct.Rec. 34-5.
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the same evidence of discrimination that supports the prima facie case of disparate treatment also raises issues of material fact disputing defendants evidence of a non-discriminatory reason for the challenged action. In Cordova, 124 F.3d at 1150, the court held:
4 5 6 7 8 9 10 11 12 13 14 15 16 17
. . . When a plaintiff has established a prima facie inference of disparate treatment through direct or circumstantial evidence of discriminatory intent, he will necessarily have raised a genuine issue of material fact with respect to the legitimacy or bona fides of the employers articulated reason for its employment decision. Sischo-Nownejad, 934 F.2d at 1111.27 As in Cordova and Sischo-Nownejad and the cases cited therein, the evidence of discriminatory statements directed at Mr. Monetti before the force directed against him provides a genuine issue of material fact regarding whether the defendants articulated reasons are pretextual. Sischo-Nownejad, 934 F.2d at 1113; see also Lowe v. City of Monrovia, 775 F.2d 998, 1008 (9th Cir. 1985). Substantial additional evidence in the record supports plaintiffs position that defendants articulated reasons are pretextual. Defendants seem to argue that Mr. Monettis periodic raising of his head from the prone position, moving his arms while in the prone position, and sometimes raising his legs while in the prone position, justified the force directed at him. See Def. Mot., pp. 19-20 (Ct.Rec. 24). However, those arguments are
18 19 20 21 22 23 24 25 26
27
In Sischo-Nownejad, 934 F.2d at 1113, the court also held: The defendants attempt to rebut Sischo-Nownejad's prima facie case of intentional discrimination by asserting that the challenged actions occurred for nondiscriminatory reasons. They state that Janssens reassigned some of Sischo-Nownejads classes to himself, for instance, simply because he enjoyed teaching them. As in Lowe, however, the evidence that Sischo-Nownejad introduced to establish a prima facie case is direct and consists of more than the McDonnell Douglas presumption. Accordingly, that evidence serves a dual purpose. It is sufficient not only to establish her prima facie case, but also to create a genuine issue of material fact regarding whether the defendants articulated reasons are pretextual. See Lowe, 775 F.2d at 1008-10. . Evidence that is sufficient to create a genuine issue of material fact for purposes of those statutes [Title VII] also serves to create a genuine issue for purposes of 1983. See T & S Service Associates, Inc. v. Crenson, 666 F.2d 722, 724 & n.2 (1st Cir. 1981); Whiting v. Jackson State University, 616 F.2d 116, 121-22 (5th Cir.1980). Therefore, the district court erred when it granted summary judgment on Sischo-Nownejads 1983 claim. We reverse the district court on this count and remand for a trial on the merits. (Emphasis added.)
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defeated for summary judgment purposes by the fact that Detective Cobane and others testified that had Mr. Monetti been handcuffed, it is likely that no force would have been
3 necessary, thereby raising the issue as to whether handcuffing was a reasonably effective 4 5 6 7 8 9 10 11 12 13 14 15 16 him and Sgt. Swank. See also Cobane Dep., p. 112 (Ex. A). According to Ofcs. Hairston 17 18 19 20 21 22 23 24 25 26
28
alternative to using force. (Emphasis added.) Gleason Report, p. 7 (Ex. E). Both Ofcs. Cobane and Woollum agreed with that in their depositions. See Cobane Dep., p. 74 (Ex. A); Woollum Dep., p. 82 (Ex. D). It would not have been difficult or impracticable for
defendants to handcuff Mr. Monetti particularly because one of the three possible suspects was previously handcuffed by Ofc. Hairston and there subsequently were many officers around the three young men. See also Swank Dep., p. 60 (Ex. B). Other material evidence substantially supporting plaintiffs position that defendants claim of a non-discriminatory basis for their actions is pretextual is that the defendants actions towards Mr. Monetti changed markedly upon their becoming aware that their words and actions were being videotaped. In reviewing the videotape, this Court will observe Ofc. Cobanes tone and action towards Mr. Monetti changed after a communication between
and Swank, Sgt. Swank not only came over to Ofc. Cobane, but informed him of the videotaping. Hairston Dep., pp. 70-71, 86 (Ex. G); Swank Dep., pp. 83-84 (Ex. B).28 It was only then that defendants, instead of shouting discriminatory remarks at and stomping on Mr. Monetti, picked him up, brought him over to a police car, and ultimately let him go. Id. A jury could very reasonably believe that this marked change in approach upon learning of the videotaping, is an indication that defendants were unwilling to do on the record what they
This testimony that Sgt. Swank went to Ofc. Cobane is contrary to Ofc. Cobanes testimony at page 114 of his deposition (Ex. A), that he went over to Sgt. Swank.
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thought they were doing in private. That supports plaintiffs claim of discriminatory animus as well as pretext.
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Pretext can also be found from the Citys efforts to misstate its actual use of force policy in order to ratify the officers actions.29 Under the Citys policy to be [n]ecessary force both of two conditions must be met: (1) no reasonably effective alternative to the use of force appeared to exist, and (2) the amount of force used must be reasonable to effect the lawful purpose intended. Yet, Capt. Gleasons Report at page 7 (Ex. E) absolved
Ofc. Cobane from violating the use of force policy by reasoning: Though in hindsight, handcuffing Mr. Monetti might have been a good way to more immediately control the situation and avoid the need to use force, the failure to do so does not appear to create a policy violation on a theory it was an effective alternative that had to be used. That reasoning is flawed because the policy as written does not depend on the reasonably effective alternative to the use of force being required, i.e., had to be used; rather under the policy reasonably effective alternative simply has to appear to exist.30 In this case, there is substantial evidence that handcuffing Mr. Monetti was a reasonably
16 17 18 19 20 21 22 23 24 25 26 effective alternative that appeared to exist to the officers particularly because one was already handcuffed. Moreover, defendant officers did not need to use 20/20 hindsight to
29
The Citys use of force policy is set forth at Section 6.240 (Ct.Rec. 39-3), which states: POLICY Officers may, in the performance of their official duties, use only the amount of force necessary and reasonable to effect the lawful purpose intended. When determining the necessity for force and the amount of force required, officers shall consider known circumstances, including, but not limited to, the level of threat or resistance presented by the subject, the danger to the a community, and the seriousness of the crime. . I. Definitions A. Necessary: No reasonably effective alternative to the use of force appeared to exist, and the amount of force used was reasonable to effect the lawful purpose intended. (Emphasis added.) 30 If the policy had required that no reasonably effective and required alternative to the use of force appeared to exist, then the Citys interpretation would have been correct. But the words and required are nowhere in the policy.
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determine that handcuffing a suspect virtually eliminates the likelihood of the suspect using a weapon or of flight since that is obvious from its use.
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These same facts also provide substantial evidence rebutting defendants argument that animus based on race or national origin played no part in defendants action. Def. Mot., pp. 19-20 (Ct.Rec. 24). Defendants argue that it is just an unrelated coincidence that
Ofc. Cobane shouted derogatory threatening language referring to Mexicans just before he stepped on plaintiff. Cases such as Cordova, Dominguez-Curry, and Sischo-Nownejad held that a jury may find that the discriminatory statement made around the time of discriminatory actions is not coincidental, which is consistent with Ninth Circuit 1983 precedent, including Freeman v. Arpaio, 125 F.3d 732, 738, n. 6 (9th Cir. 1997), where the court held: Although not itself rising to the level of a constitutional violation, prison officials use of abusive language directed at an inmates religion may be evidence that prison officials acted in an intentionally discriminatory manner. (Emphasis added.) See also the Ninth Circuit cases cited infra at Subsection 3.
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Defendants other argument seems to be that because Ofc. Cobane only shouted derogatory remarks at and stepped on Mr. Monetti not the other two Latino males, that necessarily means he was not acting in a discriminatory fashion. That argument suffers from several serious logical and evidentiary flaws. Logically, it cannot be the case that a crime is not a hate crime or action is not discriminatory because the actor does not act against every member of the disfavored group he happens across none of the above cases so hold. Moreover, it was Cobane who directed the discriminatory language at Mr. Monetti, who happened to be born in Mexico. One could as easily ask if national origin had nothing to do with Ofc. Cobanes actions, why did he introduce national origin into his threat which was
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almost immediately followed up on.31 3. Plaintiffs Discrimination Claim Is Supported By Other 1983 Precedent In The Ninth Circuit.
In Price v. Kramer, 200 F.3d 1237, 1251 (9th Cir. 2000), the Ninth Circuit held that evidence of racial bias is relevant to explain the use of excessive force as well as to challenge an officers credibility. The Ninth Circuit in Serrano v. Francis, 345 F.3d at 1083, also explained that racially tinged remarks made by a decision maker create a genuine issue of material fact as to whether [a defendants] actions violated the Equal Protection Clause.32 Plaintiffs evidence fits well within this precedent since the evidence of racial or national origin slurs and remarks described above are relevant both to provide evidence of discriminatory motivation for the officers conduct and to challenge the officers credibility. Moreover, while defendants argue that Cobanes statements were atypical, Mr. Monetti provides evidence that a similar statement was directed at him by a police officer minutes
14 before the remarks captured on the video tape, and he was also taunted by the police. 15 16 17 18 19 20 21 22 23 24 25 26
31
Monetti Dec., 2.33 B. Plaintiffs Provide Materially Disputed Evidence As To The Individual Defendants Assertion Of Qualified Immunity For the Equal Protection Claim. In Elliot-Park v. Manglona, 592 F.3d 1003, 1008-9 (9th Cir. 2010), the Ninth Circuit
Defendants analogy is also false. An analogous situation to the instant incident is whether Ofc. Cobane would have treated a Caucasian suspect, who was in a prone position and moving around, in the same way he treated Mr. Monetti. A jury could find that Ofc. Cobane would not have, given the fact that Ofc. Cobane used discriminatory language in conjunction with his use of force against Mr. Monetti. 32 See also Cordero v. Hemet Police Dept., 2011 WL 7005720 (C.D. Cal. 2011), where the Court held: Officer Vaeosos use of ethnic slurs supports the inference that his prior use of force against Plaintiff was motivated by racial animus. See Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir. 2002) (holding allegations police officers directed racial slurs at the plaintiff was sufficient to demonstrate racial animus). (Emphasis added.)
33
Sgt. Kim, defendants expert, testified that unless an officer admits to racial animus, a claim of discrimination cannot be sustained. Kim Dep., pp. 178-180 (Ex. I). Such a test for discrimination is not only inconsistent with Ninth Circuit law, but would obliterate all such claims. Sgt. Kim would certainly not agree that a crime can only be proven by a criminal defendants confession.
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held that it has been clear since at least 1980 that: The constitutional right to be free from such invidious discrimination is so well established and so essential to the preservation of our constitutional order that all public officials must be charged with knowledge of it. Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980).34 See also Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (Equal Protection Clause protects prisoners from invidious discrimination based on race). Plaintiffs evidence supports a finding that these defendants and any reasonable Seattle police officer must be charged with knowledge that the use of force motivated in part by animus based on race or national origin was clearly illegal. For example, Det. Sevaaetasi, who is of Samoan origin, testified that there is no tactical reason for referring to a suspects national origin in talking to that suspect and could be offensive. Sevaaetasi Dep., pp. 73-74, 77-78 (Ex. C). Indeed, the individual defendants actions also violated city policy which (unlike Ofc. Cobane), a reasonable officer would have read. Ct.Rec. 39-4. C. There Are Material Disputed Issues Of Fact Regarding Plaintiffs Fourth Amendment Claim And On The Individual Defendants Entitlement to Qualified Immunity For Such Claim. 1. There Are Disputed Issues of Material Fact Regarding Plaintiffs Fourth Amendment Claim. Plaintiffs declaration lays out his recollection of the events of April 17, 2010, involving his being detained by the Seattle Police including statements made to him by the
19 20 21 22 23 24 25 26 Seattle Police, what happened to him and the injuries he received. 35 For summary judgment
34
Immediately preceding that quote, the Ninth Circuit explained: The officers argue that Elliotts equal protection rights werent clearly established because she cant find a case similar to hers-like a sobriety check and arrest case or a traffic case-where the court found an equal protection violation. But there doesn't need to be a prior case with materially similar facts in order for a right to be clearly established. Flores v. Morgan Hill Unified School Dist., 324 F.3d 1130, 1136-37 (9th Cir. 2003) (In order to find that the law was clearly established, however, we need not find a prior case with identical, or even materially similar, facts. (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508 (2002)). This is especially true in equal protection cases because the nondiscrimination principle is so clear. (Emphasis added.) 35 For unexplained reasons, defendants moved for summary judgment before either deposing plaintiff or even obtaining interrogatory answers requesting him to lay out the facts in detail as he recalled them.
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purposes, as the non-moving party, plaintiffs declaration should be accepted as correct even if it is disputed by declarations submitted by defendants or other witnesses. Liberty Lobby,
3 4 5 6 7 8 9 10 11 12 13 14 15
477 U.S. at 255. Yet while defendants pay lip service to the rule that differing facts could create a material issue of fact in dispute they claim that such rule does not apply here where the use of force was captured on video a record that belies plaintiffs version of the facts. See Scott v. Harris, 550 U.S. 372, 380-381 (2007). Def. Mot., pp. 11-12
(Ct.Rec. 24). Defendants claim is wrong for at least three reasons. First, as defendants own expert acknowledges, the video to which defendants are referring does not cover the entire incident or all of the use of force. See, e.g., Kim Rpt., pp. 4-5 (Ct.Rec. 30-1). As such, Scott is of limited applicability to this case. Secondly, the only reason that the entire episode was not on video is because defendants, particularly defendant Woollum, violated police policy on the use of video cameras and was responsible for spoliation of evidence. It would be unjust and contrary to federal law to permit defendants to benefit from any failure of proof
16 caused by their own violation of policy or their spoliation. See Anderson v. Mt. Clemens 17 18 19 20 21 22 23 24 25 26 Pottery Co., 328 U.S. 680, 687-88 (1946) (defendant should not benefit from its failure to keep proper records in conformity with his statutory duty); Kronisch v. U.S., 150 F.3d 112, 128 (2d Cir. 1998); Ritchie v. United States, 451 F.3d at 1025. This is directly relevant to this summary judgment motion as this Court explained in Loops, LLC v. Phoenix Trading, Inc., 2010 WL 3041866 (W.D. Wash. 2010): An adverse inference instruction, standing alone, is not enough to allow a party who has produced no evidence-or utterly inadequate evidence-in support of a given claim to survive summary judgment. Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998). However, at the margin, where the innocent party has produced some (not insubstantial) evidence in support of its claim, the intentional destruction of relevant evidence by the opposing party may push a claim that might not otherwise survive summary judgment over the line. Id.; see also Ritchie v. United States, 451 F.3d 1019, 1025 (9th Cir. 2006) (citing Kronisch and expressly adopting the Second Circuits
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careful and balanced approach to weighing the probative value of destroyed documents). As discussed at pages 5-6, supra, defendant Woollums actions violated City policy and constituted spoliation. See also Byrnie v. Town of Cromwell, Bd. Of Educ., 243 F.3d 93, 109
4 (2d Cir. 2001) and cases cited therein. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

36
Thirdly, the video that does exist directly supports plaintiffs version in a number of respects and is susceptible to different interpretations in other respects. For example,
defendant Cobane acknowledges standing on plaintiffs hand which is also shown on the video. Cobane Dec., 17-18 (Ct.Rec. 26).36 As to whether the video shows his foot contacting plaintiffs head, even defendants expert witness admits that is a matter of reasonable dispute. Kim Dep., pp. 117-129 (Ex. I). Plaintiff agrees that the Fourth Amendment excessive force analysis requires balancing of the amount of force applied against the need for that force under the circumstances. Def. Mot., p. 12 (Ct.Rec. 24). Defendants acknowledge that in addition to the factors specifically articulated in Graham v. Connor, 490 U.S. 386, 397 (1989), another relevant factor includes the availability of less intrusive alternatives to the force employed. Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010). Id. at 13. Furthermore, as explained in Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (en banc), the most important factor under Graham is whether the suspect poses an immediate threat to the safety of the police or other people. Defendants Motion at page 14 (Ct.Rec. 24) sets forth what they claim are Eleven discrete facts [which] illuminate why the officers safety was at risk because of Monettis behavior. However, most of those facts are either disputed or have little if anything to do
Similarly, while Ofc. Cobane declares that Monetti did not complain he suffered any injury to his hand, Mr. Monettis declaration at 4 indicates that he still has a scar from where he was stepped on by Ofc. Cobane.
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with issues of the safety of the officers or others at the time of the challenged use of force. For example, claimed facts 4, 5 and 6 have little if any relevance to officer safety at the time
3 of the excess force when Mr. Monetti was one of three individuals lying on the ground (one 4 5 6 7 8 9 10 11 12 13 14 15 search Mr. Monetti for weapons and that had he been handcuffed, none of the force would 16 have been necessary. May 9, 2012 Jurado Dec. (Ct.Rec. 40). This is in some ways the exact 17 18 19 20 21 22 23 24 25 26 opposite of a case in which a few officers encounter a dangerous and armed individual which may well call for considerable force. Stepping away from defendants overheated rhetoric, looking at the video itself, Mr. Monettis declaration, and the declaration of Mr. Jurado, there are disputed issues of fact relating to the Graham factors for evaluating excessive force. As to the force that took place before the journalist began filming (Ofc. Woollum pushing his head down and Ofc. DePina putting his knee in his back among others), Mr. Monettis declaration also provides disputed material issues of fact. While those disputes could well have been resolved if defendants had not rendered unavailable the video portion of Ofc. of whom was handcuffed), surrounded by more than half a dozen police. The claimed facts 9 and 10 were, according to the depositions of the defendants, only observed after the excessive force had already taken place and Mr. Monetti was brought to his feet. The reality of the situation as well as the actual degree of risk, if any, to these officers can best be seen in the videotape that was taken by Judd Morris, which much more shows a prone young man being shouted at and bullied by police officers than it does a hardened criminal planning to attack those officers or intending to flee. It is in this context that the importance of, the availability of less intrusive alternatives, to the force employed becomes apparent. For summary judgment purposes, it is established that there were more than enough officers and opportunity to handcuff and/or
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Woollums in-car camera, it is not plaintiff who properly should bear the cost of defendants violation of city policies.
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
37
Defendants argument for qualified immunity for the excess force claim at page 16 of their motion, seems to be that [E]ven if Det. Cobane or Ofc. Woollum made a mistake of fact (about whether Monetti actually presented a threat) or mistake of law (whether their actions were within the hazy border of lawful force) they are still entitled to qualified immunity as their use of force was, as discussed above, objectively reasonable under the Graham factors. Ct.Rec. 24. That argument proves too much. Plaintiffs argument is that objectively
defendants used excess force because there were effective alternatives to the use of force and that Mr. Monetti, inter alia, was not a risk to the more than half dozen armed officers standing around him. Under those circumstances, the use of force would not have been reasonable which undermines defendants argument that they would still be entitled to qualified immunity as their use of force was, as discussed above, objectively reasonable under the Graham factors.37 D. There Are Disputed Issues Of Fact Regarding Seattles Municipal Liability. Defendants only argument against municipal liability, citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) and Palmerin v. City of Riverside, 794 F.2d 1409, 1414-15 (9th Cir. 1986), is that as neither officer [Cobane and Woollum] violated Plaintiffs
Ofc. Cobanes misunderstanding of the right to be free of excessive force appears in the following exchange: Q. What is your understanding of the constitutional right of a citizen to be free from the use of excessive force by a police officer? . A. To be free and secure in their persons. I mean, if they havent done anything wrong, then, you know, they shouldnt be you know, I wont way contacted by police, but handled forcefully by police. Q. Anything else? A. No. Thats it. Cobane Dep., pp. 27-28 (Ex. A).
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constitutional rights, no Monell claim can exit. Def. Mot., p. 20 (Ct.Rec. 24). As discussed above, there are disputed issues of material fact precluding summary judgment in favor of
3 4
either officer. Therefore, there is no basis for summary judgment in favor of the City.38 E. Summary Judgment Should Be Denied As To Plaintiffs State Law Claims. Under Washington law, battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact,
5 6 7
or apprehension that such a contact is imminent. McKinney v. City of Tukwila, 103 Wn. 8 App. 391, 408, 13 P.3d 631 (2000). It is also true that: 9 10 11 12 13 14 15 16 assault and battery claim as well as whether defendants are entitled to immunity under state 17 18 19 20 21 22 23 denied. 24
38
Under Washington law, a police officer has qualified immunity if the officer (1) carries out a statutory duty, (2) according to procedures dictated to him by statute and superiors, and (3) acts reasonably. Id. at 393. Staats v. Brown, 139 Wn.2d 757, 991 P.2d 615, 627 (2000) (quoting Guffey v. State, 103 Wn.2d 144, 690 P.2d 1163, 1167 (1984)). We have concluded that the officers were properly carrying out a statutory duty according to the procedures dictated by Washington law and police training, and we have concluded that the officers acted reasonably in detaining and arresting Luchtel. Accordingly, the officers were entitled to qualified immunity on the assault-and-battery claim. Luchtel v. Hagemann, 623 F.3d 975, 984 (9th Cir. 2010). The facts provided above, present at least disputed material facts which call for the denial of summary judgment on plaintiffs
law. These facts include defendants violation of police policy as well as actions which a jury could well find to be neither reasonable nor authorized by state law. These same facts also support plaintiffs claims relating to outrage (see Brower v. Ackerly, 88 Wn. App. 87, 943 P.2d 1141 (1997)) as well as infliction of emotional harm. V. CONCLUSION
For the foregoing reasons, defendants motion for summary judgment should be
25 26
It is important to keep in mind that the City would not be entitled to summary judgment even if the officers were awarded summary judgment based on qualified immunity or an affirmative defense. This is explained in Palmerin, 794 F.2d at 1415. It is also explained in Thomas v. Cook County Sheriffs Dept., 604 F.3d 293, 30405 (7th Cir. 2010) and Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689, 697-98 (New Hampshire Supreme Ct. 1987). See also Plaintiffs Response to Defendants Motion for Bifurcation, pp. 8-9 (Ct.Rec. 38).
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DATED this 4th day of June, 2012. s/ M. Lorena Gonzlez JANET L. RICE, WSBA #9386 WILLIAM RUTZICK, WSBA #11533 M. LORENA GONZLEZ, WSBA #37057 MARTIN S. GARFINKEL, WSBA #20787 Counsel for Plaintiff

810 Third Avenue, Suite 500 Seattle, WA 98104 Phone: (206) 622-8000 * Fax: (206) 682-2305 rice@sgb-law.com * gonzalez@sgb-law.com garfinkel@sgb-law.com
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CERTIFICATE OF SERVICE I hereby certify that on June 4, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Brian G. Maxey, WSBA #33279 Dominique L. Jinhong, WSBA #28293 Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124 Phone: 684-8200 Fax: 684-8284 brian.maxey@seattle.gov dominique.jinhong@seattle.gov
Hannah Gilbert Legal Assistant SCHROETER GOLDMARK & BENDER 810 Third Avenue, Suite 500 Seattle, WA 98104 Phone: (206) 622-8000 Fax: (206) 682-2305 Email: gilbert@sgb-law.com
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Honorable Ricardo S. Martinez

SCHROETER, GOLDMARK & BENDER

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 V. D. E. C. B. 3. 2. III. IV. I. II.

SCHROETER, GOLDMARK & BENDER

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