city of everett tort claim

8/3/2019 City of Everett Tort Claim

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GENERAL LIABILITY CLAIMPursuant to Chapter 4.96 RCW, this form is for filing a tort

claim against the City of EVERETT. Information requested on

this form is required by RCW 4.96.020 and may be subject to

public disclosure. Claim forms cannot be submitted electronically

(via e-mail or fax).

PLEASE TYPE OR PRINT IN INKMail or deliver :TO CITY CLERK2930 Wetmore Ave. Ste. 1-A Everett, WA 98201Original claim to: CITY HALL

CLAIMANT INFORMATION

1. Claimants Name: Taamu, Brandia Alida Marea

2) Date of Birth: 07/29/1964

3) Current residential address: 16003 Hwy 99 Lynnwood Wa 98087

4) Residential address on the date of the incident (if different from current address)

6404 Highland Dr. Everett Wa

5) Claimants daytime telephone number: (425) 319-3298

Home/Business Phone (425) 319-3298

6.Claimants e-mail address: [email protected]

INCIDENT INFORMATION

7. Date of incident: 01/06/2011 Time: Approximately 10 a.m.

8. If the incident occurred over a period of time, date of first and last occurrences:from 01/04/2011 Time: 11 a.m to 01/06/2011 Time: approximately 10 a.m. (LATESTOCCURANCE) PLEASE NOTE: I am still waiting for other records regarding run-ins I havehad with Officer Trask over almost a decade's time

9. Location of incident:

6404 Highland Dr. Everett Wa

10. If the incident occurred on a street or highway:

Not Applicable

11.Agency or department alleged responsible for damage/injury:

(`1) CITY OF EVERETT LAW ENFORCEMENT;(2) CITY OF EVERETT ANIMAL CONTROL CARE AND CONTROL AUTHORITY; and(3) CITY OF EVERETT LAW ENFORCEMENT & ANIMAL CARE AND CONTROLPERSONNEL INDIVIDUALLY, AND AS AGENTS FOR CITY OF EVERETT,AND(4) OTHER MUNICIPAL /STATE ACTORS, INCLUDING THE STATE OF WASHINGTON

12. Names, address and telephone numbers of all persons involved in or witness to this

incident:


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1) City of Everett Prosecutor Mike Fisher 425- 257- 84062930 Wetmore Ave. Ste. 10-C Everett, WA 98201

2) Commissioner Tracy Waggoner 425-388-3778

3000 Rockerfeller Ave Everett Wa 98201

3) Animal Control Agent Shannon Delgado 425-257-6000333 Smith Island Rd Everett, WA 98201

4) Animal Control Agent Lori Trask 425-257-6000333 Smith Island Rd Everett, WA 98201

5) Animal Control Agent Ingrid Weaver 425-257-6000333 Smith Island Rd Everett, WA 98201

6) City of Everett Vet Lisa Thompson 425-257-6000333 Smith Island Rd Everett, WA 98201

7) Counseleman Gipson 425-257-87032930 Wetmore Ave. Ste. 9-A Everett, WA 98201

8) Mayor Ray Stephanson 425-257-71152930 Wetmore Ave. Ste. 10-A Everett, WA 98201

9) James Iles 425- 257- 84062930 Wetmore Ave. Ste. 10-C Everett, WA 98201

13. Names, addresses and telephone numbers of all CITY OF EVERETT employees &Officials having knowledge about this incident:

AC Officer Delgado (Contact info above)

AC Officer Trask (Contact info above)

AC Officer Weaver (Contact info above)

AC Officer Harner

Everett Police Officer Sutherland

Counselman Gipson

Mayor Ray Stephenson

City of Everett Attorney James Iles

14. Names, address and telephone numbers of all individuals not already identified in #12

and #13 above that have knowledge regarding the liability issues involved in this incident,

or knowledge of the Claimants resulting damages. Please include a brief description as to

the nature and extent of each person's knowledge. Attach additional sheets if necessary.


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15. Describe the cause of the injury or damages. Explain the extent of property loss or

medical, physical or mental injuries. Attach additional sheets if necessary.

IN LEGAL TERMS

Unlawful taking conversion & destrustion as well as forfeiture of personal property without due

process of law, and without compensation, by the City of Everett and its agents under the "Colorof Law"; violation of state and federal laws including 42 USC 1983 by the City of Everett and

its agents; violations under Washington state and U.S. constitutions; race, gender and agediscrimination under state and federal laws by the City of Everett and its agents; discriminationunder the federal ADA and parallel state law by City of Everett and its agents. Claimaint hassuffered unlawful racial discrimination and intimidation, as indicated in the attached reports byagents of the City of Everett in enforcement of its municipal ordinances. Claimant has sufferedsevere emotional distress, physical injury and financial damage in the market value and herinvestment in the sentient personalty seized and/or destroyed, transferred or otherwise disposed ofby defendants. The claimant has suffered damages in intrinsic value in a sum to be determined attrial. Claimant/guardian/owner of the animals has suffered severe impact regarding events leadingup to, and since, the animals were detained, injured, or killed by the wrongful and grievous

intentional acts of the City of Everett and its agents including loss of companionship, andemotional distress including mental anguish. Claimant has suffered as a result of unlawful,discriminatory, and intentional policies and enforcement actions of the wrongdoers in theintrinsic value of the pets. Claimant has been damaged in that the City of Everett has a standardpolicy and practice which violates the rights of taxpayers and citizens, and others similarlysituated, through unconstitutional and unlawful actions, errors and omissions, which result in theintentional and improper enforcement of its municipal codes and other state and federal laws. Aswell as outrageous violations of most of our states court rules & codes of ethics.

IN LAYMANS TERMS

In 2002 I moved into the City of Everett with a pit bull terrier & an AC agent harrassed usmercilessly, so much so that I gave my dogs away because I feared for their lives, because this

woman had actually WALKED INTO OUR HOUSE on several occasions

In 2009 I was rescuing terriers from the Everett Shelter that were ALL coming out injured ormaced, just because your city has BSL doesn't give you or any of your agents the rights to abusethem, so I complained & surprise they stopped me from pulling after complaints from Ms Trask

In 1/4/2011 Ms Trask came to a residence where I was temporarily residing part time & we had aconfrontation once again, on 1/6/2011 she showed up with a warrant & took all of my animalswithout giving me a citation or giving me a chance to rectify any situation she saw unfit. She didnot leave the warrant or a list of my legal options as required by law, because evidently YOUDONT HAVE any such forms. At which point they disallowed me from coming into see myanimals or letting my vet come & check them out further destroying any defense I had as to their

health. On 1/11/2011 in violation of my cultural & religious beliefs your city vet disemboweledmy terminally ill dog after killing him they cut out all of his internal organs & PUT STICKYNOTES ALL OVER THEM. They have also refused to give me back his body, & didn't informof his death until the next month. They are still withholding the dogs or any visitations with them,they have them farmed out all over the county & won't give me any staus reports so EVERYDAY, EVERY NIGHT I have to wonder if they are dead or alive, safe or not. Your own codesare directly in CONFLICT with Wa state RCW's & the only response from the City prosecutorwas that Everett was a first class city & you made the rules & didn't have to acknowledge thestate or US constition either: REALLY??? One also has to wonder WHY the City of Everett


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attorney wrote a brief for court defaming me in direct violations of court rules as well as 3.8Special rules of a prosecutor. Why did he take time out of his busy city schedule to write astatement about a woman sleeping in her car? So you have taken my property without a forfieturehearing as REQUIRED BY BASHINGTON STATE & CONSTITUTIONAL LAW. You are notabove the laws of the land you do not make up your own laws as you go along, you are onlygranted your very right to existance by the kindness of the state you so heartily disregard. Ms

Trask is OBVIOUSLY a very prejudiced woman, I put an ad on Craigslist asking for others whohad trouble with her & surprise all of them were ALSO minorities... I have been to court on 23seperate occasions, you have violated about 5 different Constitutional Amendments, as well asstate law & numerous codes of ethics & if you believe for one single solitary moment I will goaway & shut up you are absolutely mistaken. I wrote to Counsilman Gipson as well as MayorStephenson & both ignored me which I take as DIRECT CONDONEMENT of this behavior.Now as the final blow they have disallowed everyone on my witness list from rescuing animalsfrom the everett Shelter & just recently killed a puppy who had rescue & sanctuary outside of thecounty, showing further your bloodlust for innocent lives with your unconstitutional & antiquatedbreed specific legislation which I have several agencies looking into, I mean really: Who kills apuppy to get back at me for complaining about mistreatment at YOUR shelter? Haven't YOUnoticed that 94% of the time when you seize someone's property & they take it appeals you are

always ruled against? Why you continue to break the law & disregards RCW's is beyond me, Ican send you every one of the case files from the appeals courts f you need a subtle reminder. Ihave almost killed myself, I had myself admitted into a psych ward for this nonsense, thoseanimals were my life, they have been with me more than 5 yrs most of them, I am about ready totake this to every newspaper in this state, to let them know how YOU use & abuse tax dollars &citizens. Not only did your agents take my animals, & destroy them but the person YOU havechosen to represent YOUR shelter & your city actually laughed at me when I was crying for myanimals, it is against the law for you to keep me from them but it is your policy. Do you knowthat the Rutherford Institute is working with myself & my attorney on all of these matters, aninstitution that gets 1000's of requests every day is taking on my cause because it so blantentlylaughs in the face of the law & the Constitution that even they had to step in & do something,they have a current pool of 15 attorneys that I have to choose from to take this case, some of

which have offered to do it for free

16. Has this incident been reported to law enforcement, safety or security personnel? If so,

when and to whom?No

17. Names, addresses and telephone numbers of treating medical providers. Attach copies of

all medical reports and billings.

I reserve comment on this until this goes to court, to a jury, you will have discovery in time forcourt though.

18.Please attach documents which support the claims allegations. See Attached..

A) 3 DIFFERENT REPORTS STATING THAT I AM A "THIN NATIVE AMERICANWOMAN" FROM OFFICER TRASK AS WELL AS REPORTS FROM OTHER OFFICERSWHO DIDN'T FEEL THE NEED TO DESCRIBE ME AS SUCH & FROM THERESPONDING POLICE OFFICER WHO ALSO DIDN'T NEED TO POINT OUT MY BODYWIEGHT OR ETHNICITYB) STILL TRYING TO OBTAIN RECORDS FROM MY PAST EXPERIENCES &HARASSMENT FROM OFFICER TRASK OVER ALMOST A DECADE'S TIME PERIODC) NUMEROUS SLANDEROUS EMAILS FROM THE COMPLAINANT ABOUT ME &THE RELEASE OF PERSONAL INFORMATION ABOUT MYSELF & MY ANIMALS


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WHICH WERE NOT TRUED) REPORT FROM OFFICER WEAVER & OFFICER TRASK MAKING FALSESTATEMENTS ATTRIBUTED TO SOMEONE WHO DOES NOT EXIST FOR A TIMEPERIOD THAT DID NOT EXISTE) CHARGING PAPERS WHICH SLANDERED ME, & ATTACKED MY CHARACTERF) PHOTOS WHICH WERE OBVIOUSLY SLANTED TO MAKE ME LOOK BAD.

(TAKING PHOTOS OF 3 SIDES OF MY CAR & THE BACK & LEAVING OUT THEFOURTH SIDE WHICH CLEARLY SHOWED I HAD SUFFICIENT FOOD & SUPPLIESFOR MY ANIMALSG) FRIVOLOUS MOTIONS OF LIMINE FROM INFORMATION GLEANED FROM MYPUBLC BLOG REQUESTING I BRING IN ALL OF THE 169 PEOPLE WHO OFFERED TOTESTIFY ON MY BEHALF AFTER I HAD ALREADY GIVEN THE PROSECUTOR AWITNESS LIST OF 23 PEOPLE I HAD NARROWED IT DOWN TO

19.I claim damages from the City of EVERETT in the sum of$ 4,750,000FOUR MILLION SEVEN HUNDRED AND FIFTY THOUSAND DOLLARS.

(which will be itemized shortly before court as well which will also include my list ofdemands/requests)

The Claimant must sign this claim form unless he or she is incapacitated, a minor, or a

nonresident of the state, in which case it may be signed on behalf of the Claimant by any

relative, attorney, or agent representing the Claimant.

I declare under penalty of perjury under the laws of the State of Washington that the

foregoing is true and correct.

_________________________________________________________________________________(Signature of Claimant) (Date and place (residential address, City and County)

CC: Counsel, EJN, PDD


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INSTRUCTIONS FORGeneral Liability Claim

Please be advised that improperly filed Tort Claims will be rejected. Before filing a Tort Claim, please read these instructions and the Tort Claim forms in their

entirety.

Type or print clearly in ink and sign the Tort Claim form. If you are incapacitated, aminor or a nonresident of the state, a relative, attorney or agent may sign on yourbehalf.

Provide all requested information and any available documents or evidence supportingyour claim, such as medical records or bills for personal injuries, photographs,proof of ownership for property damages, receipts for property value, etc.

If the requested information cannot be supplied in the space provided, please useadditional blank sheets so your claim can be easily read and understood.

The following are examples on how to complete the Tort Claim Form:1. Smith, Karen Michelle2. 1234 College Way NW, Apt. 56, Seattle WA 981783. PO Box 910, Seattle WA 98178

4. Same5. (206) 123-45676. 8:00 a.m., August 9, 2004

7. If the incident that caused the damages occurred over a period of time, pleaseprovide the beginning time and the ending time in item 7.

8. Washington, Thurston, Tumwater, Campus of South Puget Sound CommunityCollege, Building number 22.9. I-5, Southbound, Milepost 109, near the Martin Way Exit10. Washington State Department of Transportation, Highway11. Smith, Thomas Arthur, 1234 College Way NW, Apt. 56, Seattle WA98178 (360) 456-3456;

Tow Truck Driver, Nisqually Towing12. Unknown

13. List all other witnesses having knowledge of the incident in question, withtheir names, addresses, and telephone numbers that are not listed withinitems 11 and 12. Also include a description of their knowledge. Forexample, if your sister was with you, when the alleged incident occurred,please include her name, address, telephone number, and indicate shewitnessed the incident.

14. Please provide all of your medical providers with their names, address,telephone numbers, and the type of treatment. If you were treated for apersonal injury, please include your medical records and bills.

15. Please describe the incident that resulted in the injury or damages,specifically answering the questions who, what, where, when and why.

16. If you reported this incident to law enforcement, safety, or security personnel,please provide a copy of the report or contact information to the person

you spoke with.17. Please provide the dollar amount for your damages, including your time loss,medical costs, property damage loss, etc. This amount should representyour opinion of total compensation.


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POLICE MISCONDUCT RESOURCE GUIDEWHAT IS POLICE MISCONDUCT

Police misconduct refers to brutality, corruption or other objectionable actions likeIt is a crime for one or more persons acting under color of law willfully to

deprive or conspire to deprive another person of any right protected by theConstitution or laws of the United States. (18 U.S.C. 241, 242). "Color of law"simply means that the persondoing the act is abusing power given to himor her by a governmental agency (local, State, or Federal).HOW TO FIGHT BACK AGAINST POLICE MISCONDUCT

If you feel your rights have been violated, make sure to document theincident. Thereis never an excuse for the police to abuse you. Police officers can and domakemistakes. In this respect, they are no different than you or I. And it is for thisreasonthat they must also be held accountable when their actions take them

beyond theirscope of privilege as a sworn officer of the law. The area of law concerningpolicemisconduct involves situations like excessive force, false arrest and maliciousprosecution. These are the most common cases that are filed in the CourtSystem. Police officers are trained to make split-second decisions under themost stressful of situations, yet it is in those situations where countlesspeople have found themselves victims of police misconduct. You can file acomplaint with the internal affairs department, or a tort claim with the city orcounty where the abuse took place. You can write letters to the editors ofcommunity papers; the idea being that this will help bring attentionto theissue, and possibly alert members of your community to what is happening.

Its also important to support your community members when needed. Whensomething happens in your community show up at Board of Supervisorsmeetings, City Council meetings, and at the Police Commission meetings;they listen when people are in numbers. If you witness someone beingabused by the police, write down as much information as you can: badgenumbers, car numbers, names, and uniform types.BECOME A COMMUNITY ACTIVIST. EDUCATE YOURSELF AND YOUR

COMMUNITY ABOUT YOUR RIGHTS

Youcan take what you learned and then help teach others of their rights. Itsimportant to network with people who have had similar experiences and havecommunity meetings. You can always volunteer at a local organization that isworking on these issues and find a way to start your own. The more

community awareness thebetter.HOW/WHERE TO FILE COMPLAINTS

Everyone has the right to access a departments grievance process withoutharassmentor obstacles. You should be able to pick up a complaint form in person orhave it mailedto you. A complaint can be filed at any time after your incident. You want tokeep in mind that there could be a risk of retaliation and also you dont want


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to do anything to impede your criminal case and have it result in beingplayed out longer than you would want it to.

. Malicious ProsecutionA malicious prosecution claim asserts that the officer wrongly deprived thevictim ofthe Fourteenth Amendment right to liberty. To win this type of claim, the

victim mustshow four things:1) the defendant police officer commenced a criminal proceeding;2) the proceeding ended in the victim's favor (that is, no conviction);3) there was no probable cause; and4) the proceeding was brought with malice toward the victim.Aswith falsearrest, this claim will fail if the officer had probable cause to initiate criminalproceedings.

42.20.040

False report.Every public officer who shall knowingly make any false or misleadingstatement in any official report or statement, under circumstances nototherwise prohibited by law, shall be guilty of a gross misdemeanor.

42.20.050

Public officer making false certificate.Every public officer who, being authorized by law to make or give a certificateor other writing, shall knowingly make and deliver as true such a certificate orwriting containing any statement which he knows to be false, in a case wherethe punishment thereof is not expressly prescribed by law, shall be guilty of agross misdemeanor.

42.20.080

Other violations by officers.Every officer or other person mentioned in RCW 42.20.070, who shall wilfullydisobey any provision of law regulating his official conduct in cases otherthan those specified in said section, shall be guilty of a gross misdemeanor.

42.20.110

Improper conduct by certain justices.It shall be a misdemeanor for any judge or justice of any court not of record,during the hearing of any cause or proceeding therein, to address any personin his presence in unfit, unseemly or improper language.

42.23.070Prohibited acts.(4) No municipal officer may disclose confidential information gained by reason of theofficer's position, nor may the officer otherwise use such information for his or herpersonal gain or benefit.

42.52.020

Activities incompatible with public duties.


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No state officer or state employee may have an interest, financial or otherwise, direct orindirect, or engage in a business or transaction or professional activity, or incur anobligation of any nature, that is in conflict with the proper discharge of the state officer'sor state employee's official duties.

42.52.050Confidential information Improperly concealed records.(1) No state officer or state employee may accept employment or engage in any businessor professional activity that the officer or employee might reasonably expect wouldrequire or induce him or her to make an unauthorized disclosure of confidentialinformation acquired by the official or employee by reason of the official's or employee'sofficial position.(2) No state officer or state employee may make a disclosure of confidential informationgained by reason of the officer's or employee's official position or otherwise use theinformation for his or her personal gain or benefit or the gain or benefit of another(3) Nostate officer or state employee may disclose confidential information to any person not

entitled or authorized to receive the information.

42.52.160

Use of persons, money, or property for private gain.(1) No state officer or state employee may employ or use any person, money, or propertyunder the officer's or employee's official control or direction, or in his or her officialcustody, for the private benefit or gain of the officer, employee, or another.

42.52.330

Interpretation.By constitutional design, the legislature consists of citizen-legislators who bring to bearon the legislative process their individual experience and expertise. The provisions of thischapter shall be interpreted in light of this constitutional principle.

42.52.460

Citizen actions.Any person who has notified the appropriate ethics board and the attorney general inwriting that there is reason to believe that RCW 42.52.180 is being or has been violatedmay, in the name of the state, bring a citizen action for any of the actions authorizedunder this chapter. A citizen action may be brought only if the appropriate ethics board orthe attorney general have failed to commence an action under this chapter within forty-five days after notice from the person, the person has thereafter notified the appropriateethics board and the attorney general that the person will commence a citizen's actionwithin ten days upon their failure to commence an action, and the appropriate ethicsboard and the attorney general have in fact failed to bring an action within ten days ofreceipt of the second notice.

If the person who brings the citizen's action prevails, the judgment awarded shallescheat to the state, but the person shall be entitled to be reimbursed by the state ofWashington for costs and attorneys' fees incurred. If a citizen's action that the court findswas brought without reasonable cause is dismissed, the court may order the person


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commencing the action to pay all costs of trial and reasonable attorneys' fees incurred bythe defendant.

Upon commencement of a citizen action under this section, at the request of a stateofficer or state employee who is a defendant, the office of the attorney general shallrepresent the defendant if the attorney general finds that the defendant's conduct complied

with this chapter and was within the scope of employment.

42.52.900

Legislative declaration.

Government derives its powers from the people. Ethics in government are the foundationon which the structure of government rests. State officials and employees of governmenthold a public trust that obligates them, in a special way, to honesty and integrity infulfilling the responsibilities to which they are elected and appointed. Paramount in thattrust is the principle that public office, whether elected or appointed, may not be used forpersonal gain or private advantage.

The citizens of the state expect all state officials and employees to perform theirpublic responsibilities in accordance with the highest ethical and moral standards and toconduct the business of the state only in a manner that advances the public's interest.State officials and employees are subject to the sanctions of law and scrutiny of themedia; ultimately, however, they are accountable to the people and must consider thispublic accountability as a particular obligation of the public service. Only when affairs ofgovernment are conducted, at all levels, with openness as provided by law and anunswerving commitment to the public good does government work as it should.

The obligations of government rest equally on the state's citizenry. The effectivenessof government depends, fundamentally, on the confidence citizens can have in thejudgments and decisions of their elected representatives. Citizens, therefore, should honorand respect the principles and the spirit of representative democracy, recognizing thatboth elected and appointed officials, together with state employees, seek to carry out theirpublic duties with professional skill and dedication to the public interest. Such servicemerits public recognition and support.

All who have the privilege of working for the people of Washington state can have butone aim: To give the highest public service to its citizens.

526 State v. Boehning May 2005 127 Wn. App. 511

ANALYSISProsecutorial Misconduct[1]19 We begin our discussion with an obvious truism: Every prosecutor is a quasi-judicial officer of the court, charged with the duty of insuring that an accused receives afair trial. State v. Coles , 28 Wn. App. 563 , 573, 625 P.2d 713, review denied , 95 Wn.2d1024 (1981); State v. Huson , 73 Wn.2d 660 , 663, 440 P.2d 192 (1968), cert. denied ,393 U.S. 1096 (1969). We hold that the prosecutor's misconduct in this case violated thatduty, both in the closing argument and in the presentation of evidence.[2]20 In order to establish prosecutorial misconduct, Boehning must show that theprosecutor's conduct was improper and prejudiced his right to a fair trial. State v.Dhaliwal , 150 Wn.2d 559 , 578, 79 P.3d 432 (2003). Prejudice is established where "


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'there is a substantial likelihood the instances of misconduct affected the jury's verdict.' "Dhaliwal , 150 Wn.2d at 578 (quoting State v. Pirtle , 127 Wn.2d 628 , 672, 904 P.2d 245(1995), cert. denied , 518 U.S. 1026 (1996)).[3, 4]21 Boehning did not object to the prosecutor's questioning and arguments below. Adefendant who fails to object to an improper remark waives the right to assert

prosecutorial misconduct unless the remark was so "flagrant and ill intentioned" that itcauses enduring and resulting prejudice that a curative instruction could not haveremedied. State v. Russell , 125 Wn.2d 24 , 86, 882 P.2d 747 (1994), cert. denied , 514U.S. 1129 (1995). In determining whether the misconduct warrants reversal, we considerits prejudicial nature and its cumulative effect. State v. Suarez-Bravo , 72 Wn. App. 359 ,367, 864 P.2d 426 (1994).[5, 6]23 We review a prosecutor's comments during closing argument in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and thejury instructions. Dhaliwal , 150 Wn.2d at 578 ; State v. Brown , 132 Wn.2d 529 , 561,940 P.2d 546 (1997), cert. denied , 523 U.S. 1007 (1998). A prosecutor has wide latitudein closing argument to draw reasonable inferences from the evidence and to express such

inferences to the jury. State v. Hoffman , 116 Wn.2d 51 , 94-95, 804 P.2d 577 (1991).However, a prosecutor may not make statements that are unsupported by the evidenceand prejudice the defendant. State v. Jones , 71 Wn. App. 798 , 808, 863 P.2d 85 (1993),review denied , 124 Wn.2d 1018 (1994).

134 Wn. App. 907, Sept. 2006 State v. Perez-Mejia

DISCUSSIONProsecutorial Misconduct30 In closing argument, the prosecutor appealed to the jury's passions and prejudices,urging jurors to base a guilty verdict on a goal of sending a message to gangs or takingpart in a mission to end violence, rather than returning a verdict based upon aconsideration of the evidence properly admitted in the case. The majority of this improperargument followed a timely objection interposed by Soto-Rodriguez's counsel. The trialcourt overruled this objection and, thus, no curative instruction was given. We concludethat the prosecutor's improper argument irreparably damaged the fairness of the trial anddiminishes our confidence in the verdict reached. As a result, Soto-Rodriguez'sconviction must be reversed and a new trial held.[1-3]31 Prosecutors have a duty to seek verdicts free from appeals to passion orprejudice. State v. Belgarde , 110 Wn.2d 504 , 507, 755 P.2d 174 (1988); State v.Echevarria , 71 Wn. App. 595, 598, 860 P.2d 420 (1993).7Accordingly, a prosecutorengages in misconduct when making an argument that appeals to jurors' fear andrepudiation of criminal groups or invokes racial, ethnic, or religious prejudice as a reasonto convict. Belgarde , 110 Wn.2d 504 . Likewise, inflammatory remarks, incitements tovengeance, exhortations to join a war against crime or drugs, or appeals to prejudice orpatriotism are forbidden. State v. Neidigh , 78 Wn. App. 71 , 79, 895 P.2d 423(1995).8In closing argument, a prosecuting attorney has wide latitude to draw andexpress reasonable inferences from the evidence. State v. Hoffman , 116 Wn.2d 51 , 94-95, 804 P.2d 577 (1991). However, a prosecutor may never suggest that evidence notpresented at trial provides additional grounds for finding a defendant guilty. State v.Russell , 125 Wn.2d 24 , 87, 882 P.2d 747 (1994) (citing United States v. Garza , 608


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F.2d 659, 663 (5th Cir. 1979)).7This principle is one of long standing. Almost three decades ago, our Supreme Courtexplained: "In presenting a criminal case to the jury, it is incumbent upon a publicprosecutor, as a quasi-judicial officer, to seek a verdict free of prejudice and based uponreason. As we have stated on numerous occasions, the prosecutor, in the interest of

justice, must act impartially, and his trial behavior must be worthy of the position heholds. Prosecutorial misconduct may deprive the defendant of a fair trial. And only a fairtrial is a constitutional trial." State v. Charlton , 90 Wn.2d 657 , 664-65, 585 P.2d 142(1978).8Federal courts addressing these issues have likewise held that it is improper for aprosecutor to urge the jury "to view this case as a battle in the war against drugs, and thedefendants as enemy soldiers," Arrieta-Agressot v. United States , 3 F.3d 525, 527 (1stCir. 1993), that the constitution prohibits appeals to racial, ethnic, or religious prejudice,United States v. Cabrera , 222 F.3d 590, 594 (9th Cir. 2000), and that it is improper for aprosecutor to "direct the jurors' desires to end a social problem toward convicting aparticular defendant." United States v. Solivan , 937 F.2d 1146, 1153 (6th Cir. 1991)

(reversing based on prosecutor's call to send a message to drug dealers, notwithstandingcurative instruction given by trial court).

125 Wn. App. 895, State v. Jungers

Court of Appeals: Holding that the prosecutor committed prejudicial misconduct at trialby attempting to elicit opinion testimony as to the defendant's guilt and by arguingstricken credibility testimony to the jury, and that the trial court erred by denying thedefendant's motion for a mistrial based on the prosecutorial misconduct, the courtreverses the judgment and remands the case for further proceedings.Pattie Mhoon , for appellant .Gerald A. Horne , Prosecuting Attorney, and John M. Sheeran , Deputy, for respondent .1 HUNT , J . - Lisa D. Jungers appeals her conviction for unlawful possession ofmethamphetamine. She argues (1) the trial court erred in admitting evidence seizedduring an illegal search of probationer Michael Hodgkins' residence, (2) the prosecutorcommitted misconduct in eliciting and arguing inadmissible opinion evidence, and (3) thetrial court abused its discretion in denying Jungers' motion for a mistrial based onprosecutorial misconduct. Holding that the search and seizure were legal, we affirm thetrial court's ruling that the methamphetamine was admissible. Holding further thatprosecutorial misconduct required a mistrial, we reverse.ANALYSISPROSECUTORIAL MISCONDUCT17 Jungers argues (1) the prosecutor committed misconduct by eliciting inadmissiblecredibility testimony and arguing stricken credibility testimony to the jury, and (2) thetrial court erred by denying her motion for a mistrial based on this prosecutorialmisconduct.A. Standard of Review[1]18 A criminal defendant's right to a fair trial is denied when the prosecutor makesimproper comments and there is a substantial likelihood that the comments affected thejury's verdict. State v. Reed , 102 Wn.2d 140 , 145, 684 P.2d 699 (1984). Such is the casehere.


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Screws v. United States, 325 US 91, 108 (1945).This section was before us in United States v. Classic, 313 U.S. 299, 326, where we said:"Misuse of power, possessed by virtue of state law and made possible only because thewrongdoer is clothed with the authority of state law, is action taken `under color of' state

law." Screws v. United States, 325 US 91, 109 (1945). For it was abuse of basic civil andpolitical rights, by states and their officials, that the Amendment and the enforcinglegislation were adopted to uproot. The danger was not merely legislative or judicial. Norwas it threatened only from the state's highest officials. It was abuse by whatever agencythe state might invest with its power capable of inflicting the deprivation. In all its flux,time makes some things axiomatic. One has been that state officials who violate theiroaths of office and flout 117*117 the fundamental law are answerable to it when theirmisconduct brings upon them the penalty it authorizes and Congress has provided.Screws v. United States, 325 US 91, 116-7 (1945) Mr. Justice Rutledge, concurring in theresult. "It is not open to question that this statute is constitutional. . . [It] dealt withFederal rights and with all Federal rights, and protected them in the lump . . ." United

States v. Mosley, 238 U.S. 383, 386, 387. Screws v. United States, 325 US 91, 119(1945) Mr. Justice Rutledge, concurring in the result. Separately, and often together inapplication, 19 and 20 have been woven into our fundamental and statutory law. Theyhave place among our more permanent legal achievements. They have safeguarded manyrights and privileges apart from political ones. Among those buttressed, either by directapplication or through the general conspiracy statute, 37 (18 U.S.C. 88),[24] are therights to a fair trial, including freedom from sham trials [including sham Collection DueProcess Hearings] ; to be free from arrest and detention by methods constitutionallyforbidden and from extortion of property [by threat of levy, lien, or lockdown letters] bysuch methods; from extortion of confessions; from mob action incited or shared by stateofficers; from failure to furnish police protection on proper occasion and demand; frominterference with the free exercise of religion, freedom of the press, freedom of speechand assembly;[25] and 127*127 the necessary import of the decisions is that the right tobe free from deprivation of life itself, without due process of law, that is, through abuseof state power by state officials, is as fully protected as other rights so secured. Screws v.United States, 325 US 91, 126-7 (1945) Mr. Justice Rutledge, concurring in the result.They simply misconceived that the victim had no federal rights and that what they haddone was not a crime within the federal power to penalize.[30] That kind of error relievesno one from penalty. Screws v. United States, 325 US 91, 128 (1945) Mr. JusticeRutledge, concurring in the result.

RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR

The prosecutor in a criminal case shall:(a) refrain from prosecuting a charge that the prosecutor knows is not supported byprobable cause;(b) make reasonable efforts to assure that the accused has been advised of the right to,and the procedure for obtaining, counsel and has been given reasonable opportunity toobtain counsel;(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights,such as the right to a preliminary hearing;


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(d) make timely disclosure to the defense of all evidence or information known to theprosecutor that tends to negate the guilt of the accused or mitigates the offense and, inconnection with sentencing, disclose to the defense and to the tribunal all mitigatinginformation known to the prosecutor, except when the prosecutor is relieved of thisresponsibility by a protective order of the tribunal;

(f) except for statements that are necessary to inform the public of the nature and extentof the prosecutor's action and that serve a legitimate law enforcement purpose, refrainfrom making extrajudicial comments that have a substantial likelihood of heighteningpublic condemnation of the accused and exercise reasonable care to prevent investigators,law enforcement personnel, employees or other persons assisting or associated with theprosecutor in a criminal case from making an extrajudicial statement that the prosecutorwould be prohibited from making under Rule 3.6 or this RuleComment[1] A prosecutor has the responsibility of a minister of justice and not simply that of anadvocate. This responsibility carries with it specific obligations to see that the defendantis accorded procedural justice and that guilt is decided upon the basis of sufficient

evidence. Precisely how far the prosecutor is required to go in this direction is a matter ofdebate and varies in different jurisdictions. Many jurisdictions have adopted the ABAStandards of Criminal Justice Relating to the Prosecution Function, which in turn are theproduct of prolonged and careful deliberation by lawyers experienced in both criminalprosecution and defense. Applicable law may require other measures by the prosecutorand knowing disregard of those obligations or a systematic abuse of prosecutorialdiscretion could constitute a violation of Rule 8.4.[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose avaluable opportunity to challenge probable cause. Accordingly, prosecutors should notseek to obtain waivers of preliminary hearings or other important pretrial rights fromunrepresented accused persons. Paragraph (c) does not apply, however, to an accusedappearing pro se with the approval of the tribunal. Nor does it forbid the lawfulquestioning of an uncharged suspect who has knowingly waived the rights to counsel andsilence.[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate toresponsibilities regarding lawyers and nonlawyers who work for or are associated withthe lawyer's office. Paragraph (f) reminds the prosecutor of the importance of theseobligations in connection with the unique dangers of improper extrajudicial statements ina criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonablecare to prevent persons assisting or associated with the prosecutor from making improperextrajudicial statements, even when such persons are not under the direct supervision ofthe prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutorissues the appropriate cautions to law-enforcement personnel and other relevantindividuals.

RCW 16.52.085.Notice requirements after removal of personal property by authorities is provided inparagraph (3). After removal of animals, notice must be provided by posting, personalservice or certified mail and the owner must be provided written notice of the reasons forremoval in this notice and legal remedies available to the owner.


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RCW 69.50.505Washington state's civil forfeiture act was adopted to protect people from having theirproperty wrongfully seized by the government. In Guillen v. Contreras (Sup. Ct. EnBanc. No. 82531-9 (9/2010), amicus notes that an owner has the right to resist the taking

of any of his property regardless of market value. Amicus Br. At 8, cf Guillen v.Contreras, Sup. Ct. En Banc, No. 82531-9 (9/9/2010). A citizen has the right to object toseizure, even if temporary, of his personal property no matter the market value.Forfeitures of personal and real property are not favored in the law and very specificprocedures must be followed.by government officials and its agents when seizingproperty, including animals. If statutory procedures are not followed, the property wasillegally seized and a person is lawfully entitled to possession thereof. Unless the seizedproperty is needed for evidence, the petitioners are not the rightful owners, the property iscontraband, or the property is subject to forfeiture pursuant to statute, the seized propertymust be returned.

RCW 69.50.505(a)(2).Notice must be given within 15 days of seizure. RCW 69.50.505(c). If the property ispersonal property, one claiming an interest in it then has 45 days to respond, and if aresponse is made, a hearing must be held. RCW 69.50.505(d), (e). Washington State'sforfeiture statutes are exclusive. Unless statutory procedure are followed, a Washingtoncourt cannot order forfeiture and must release the petitioners' property. A court does nothave inherent authority to forfeit property. See, State v. Alaway, 64 Wn. App. 796, 828P.2d 591, p. 3 (4/2/92).

RCW 16.52.207(4) In any prosecution of animal cruelty in the second degree under subsection (1) or (2)(a) of this section, it shall be an affirmative defense, if established by the defendant by apreponderance of the evidence, that the defendant's failure was due to economic distressbeyond the defendant's control.

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