the honorable judge ricardo s. martinez · 2012. 5. 3. · plaintiff alleges that during the course...

TO FED.R.CIV.P. 56 (11-CV-01041-RSM) - 1

PE T E R S. H O L M ES Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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THE HONORABLE JUDGE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE MARTIN MONETTI, JR., Plaintiff, vs. CITY OF SEATTLE, a municipal corporation; SHANDY COBANE, an individual; MARY L. WOOLLUM, an individual, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

No. 2:11-CV-01041-RSM

MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED.R.CIV.P. 56 NOTED FOR MAY 25, 2012

I . IN T R O DU C T I O N A ND R E L I E F R E Q U EST E D

This case arises out of the brief detention of plaintiff and two others in connection with an

armed robbery investigation, in the early morning hours of April 17, 2010, in the parking lot of a

known high-crime area. Plaintiff alleges that during the course of his detention he was subjected to the

use of excessive force (in the form of an alleged kick to the head) and an ethnic slur (in the form of the

1 Because competent evidence shows that there was, in fact, no contact to his

minimal force used to control plaintiff, a

1 The Court may recognize this matter in light of the substantial attention it garnered when certain portions of the incident that were captured on video by freelance videographer Judson Morris were publicized by local media outlets.

willias1

ORAL ARGUMENT REQUESTED



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non-compliant and furtive armed robbery suspect, was objectively reasonable under the totality of the

circumstances, claims alleging excessive force, assault, and battery should be dismissed.

the conscience, nor did the language used lead to a discriminatory effect insofar as the physical action

complained of was responsive not

and lawful orders, claims alleging negligent infliction of emotional distress/outrage and a

violation of equal protection rights should be dismissed. Finally, because plaintiff sustained no

underlying constitutional injury, claims arising under Monell2 should be dismissed. Accordingly,

pursuant to Fed. R. Civ. P. 56, defendants City of Seattle, Detective Shandy Cobane,3 and Officer

Mary Woollum (hereafter

judgment as to all claims.

I I . ST A T E M E N T O F F A C TS

Shortly after 1 a.m. on the morning of April 17, 2010, the Seattle Police Department

received a 911 call from Walter Flores-Cruz, who reported that he had been robbed by four Latino

males in the parking lot of the China Harbor Nightclub (on Westlake Avenue near South Lake

Union). Decl. of Sgt. Barbara Wilson, Ex. A (911 tape) and Decl. of Dominiqué L. Jinhong, Ex.A

(Certified Transcript of 911). Flores-Cruz reported that the individuals in question were armed with

a machete and a handgun. Decl. of Det. Frank Clark, ¶¶ 3-4; Dec. of Wilson, Ex. A; Decl. of

Jinhong, Exs. A (911 Transcript) and Ex. B (Testimony of Walter Flores-Cruz at 534-541, 544-

545). He reported that the four men were

2 Concurrently wi Monell claims and stay Monell

Monell claims solely on the basis that absent an underlying constitutional violation, there can be no municipal liability. If necessary, defendants will move

Monell claims. 3 Detective.



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Decl. of Wilson, Ex. B (Computer Aided Dispatch (CAD) record for

GO#2010-124469). Indeed, just minutes prior to the assault on Flores-Cruz, a group of four to five

Latino males reportedly attacked and robbed another victim (Eliezer Duran), also while brandishing

a machete and a gun. Decl. of Clark at ¶¶ 5-6.

Officers Felix Reyes and Michael Virgilio were the first officers to arrive at China Harbor in

response to the call. Officer Reyes described a , with a substantial crowd milling

about China Harbor and other nightclubs nearby. Decl. of Jinhong, Ex. C (Testimony of Ofc. Felix

Reyes at 332-333). While Officers Reyes and Virgilio attempted to control the growing crowd and

simultaneously investigate what they believed to be a single robbery, several persons yelled to the

officers that there was someone in the parking lot with a gun. Backup officers separately contacted

victim Eliezer Duran while Ofcs. Reyes and Virgilio met a Flores-Cruz. Id. at 333;

and Ex. Exhibit E (Transcribed Recorded Audio of Dash Cam 1 at 3-8, 12-18). Both ultimately

identified their attackers as Pedro Martinez and Hector Veteta-Contreras, Id.; Duran additionally

identified plaintiff, Martin Monetti. Ex. E at 22-24.

In total, 16 officers responded ispatch to China Harbor and the

surrounding vicinity, including Det. Cobane, Ofc. Woollum, and K9 Ofc. Chris Hairston. See id. at

347; Decl. of Wilson, Ex. B at 2-4. Upon arrival, Ofc. Hairston began searching for suspects

matching the descriptions provided by Duran and Flores-Cruz.4 While searching a parking lot just

south of the China Harbor near the Marina Mart, Ofc. Hairston observed three Latino men

walking away. Two of these individuals matched the description of the armed robbery suspects.

One (later identified as Dennis Garcia-Garcia) was had a skinny build, wore a 4 Both Duran and Flores-Crus described a group of four or five Latino males, approximately 20 years of age. They described one as approximately having curly hair touching his ears, a medium build, and wearing a black baseball cap, black jacket, black pants with a machete tucked into his belt. They described another as approximately having a skinny build, and wearing a long, loose-hanging white t-shirt with a hand gun tucked into the waist of his pants. See Decl of Wilson, Ex. B (CAD) and Decl. of Jinhong, Ex. B ( Testimony of Walter Flores-Cruz at 553-554).



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long, loose-hanging white t-shirt; another (later identified as Hector Veteta-Contreras) was

had a medium build and curly hair touching his ears, and wore a black t-shirt

and black jeans). Decl. of Hairston, ¶ 10. Ofc. Hairston stopped the three men at gunpoint, ordered

them to the ground, and radioed that he had three suspects detained. Id. at ¶ 8. Two of the three

(Garcia-Garcia and Veteta-Contreras) immediately obeyed . Decl. of Jinhong,

Ex. D at 483. The third (later identified as plaintiff Martin Monetti) did not. Instead, positioned

between Garcia-Garcia and Veteta-Contreras, Monetti threw an unknown object into the bushes and

remained standing. Id. Ofc. Hairston twice warned Monetti that he was accompanied by a police

dog and that if he did not comply with the order to lie down, he would release the dog. Id. After

second warning, Monetti sank to the ground, but remained propped-up on his

elbows, as if positioned to run. Id. at 484. Ofc. Hairston observed that Monetti had an abrasion to

the left side of his face near his eye, prior to Monetti lowering himself to the ground. Decl. of

Hairston at ¶ 15.

Ofc. Woollum, Det. Cobane, and Det. Robert Sevaaetasi radio

call. Upon arriving at the scene, they observed that Hairston had the three suspects on the ground,

prone, at gunpoint. Garcia-Garcia was in handcuffs; the other two (Monetti and Veteta-Contreras)

were not. While Veteta-Contreras appeared compliant with orders to remain still, Monetti refused

repeated commands to stop moving. Decl of Jinhong Ex. D, (Transcript pps. 487, 497-498); Decl.

of Ofc. M. Lynne Woollum, ¶¶ 9-11; Decl. of Grant Fredericks, Ex. C. Despite these multiple

orders, Monetti continued to move his hands, head, and legs, and repeatedly bobbed his head up and



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down as if to look around. Id. It is at this juncture that the officers initiated the actions that form

5.

directions, Det. Cobane briefly knelt down beside Monetti. Decl. of Woollum; Decl. of Cobane at

¶¶ 13-15. fuck advised him that

he was a suspect in an armed robbery, that a gun and a machete had yet to be located, and that

Monetti had not yet been searched. See id.; see also Decl. of Jinhong, Ex. F (Transcribed Recorded

Audio of Raw Video of Monetti uploaded to YouTube by Videographer Judson Morris at 3).

Monetti again raised his head, looked around to his side and moved his right hand underneath his

body and up towards his left temple. Decl. of Cobane at ¶ 16; Decl. of Fredericks, Ex. A (Frame by

).

Det. Cobane stood up, shifted to -

raised his voice, and again commanded Monetti to stop moving. Decl. of

Cobane at ¶ 15. When Monetti continued to disregard his commands, Det. Cobane, still using

command voice, ordered Monetti to Keep your fucking head on the ground. Do You

fucking Mexican piss out of

Id.; Decl. of Jinhong, Ex. G (Transcribed Recorded Audio of Dash Cam 2 at 11, lines

16-18); and Ex. F (Transcribed Recorded Audio of Raw Video at 3, lines 4-7). Despite Det.

and despite urging from the other two suspects to stop moving, Monetti

5 n his testimony or prior statements, Ofc. Woollum had

in an effort to communicate directly with him, Ofc. Woollum squatted beside him. She positioned her hand above the middle of his shoulders to protect her face from his repeatedly bobbing head. Decl. of Woollum at ¶¶ 12-14. When Monetti again lifted himself off the ground, he abruptly raised outstretched, open palm. He then dropped his head and body to t , my head. Id.; see also Decl. of Cobane, ¶¶ 12-13. From her limited vantage point, Ofc. Woollum could see no injury (including the injury that Ofc. Hairston had observed at the time of initial contact); she could not view because that would have required her to roll him face-up, compromising her safety. Decl. of Woollum at ¶ 13.



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continued to move his hands and arms about his body. Decl. of Cobane at ¶¶ 15-16. Decl. of

Jinhong, Ex. D at 488; Decl. of Hairston at ¶ 21. Unsure of whether Monetti was attempting to

possibly reach for a weapon, stage an attack, or flee, Det. Cobane moved his boot towards

a technique in which the foot is used to sweep and pin

body nd in order to prevent further movement.

Decl of Sgt. James Kim, Ex. A, Report; Decl. of Cobane ¶¶ 17-18; Decl. of Fredericks, Ex. A.

As he did this, Ofc. Woollum observed Monetti raise his right leg, as if he was attempting to

get up. Decl. of Woollum at ¶¶ 16-18; Decl. of Fredericks, Ex. B (Frame by Frame Analysis of

). In response, Ofc.

Woollum forcefully brought her foot down s right calf area in order to restrain his leg

by pushing it back down. Id. Det. Cobane walked away from Monetti and expressed his concern to

his on-scene supervisor, Sgt. Keith Swank, that Monetti was . Decl. of Cobane at ¶

23. He explained if the officers kept Monetti on the ground, he could easily see the situation

[ing] Id. Det. Cobane returned to Monetti, brought him to his

feet, led him to a patrol car, and searched him for weapons. Id. at ¶ 24. Monetti reeked of alcohol

and could hardly stand because of his apparent inebriation. Decl. of Cobane at ¶ 24; Decl of

Hairston at ¶¶ 28-29).

Victims Duran and Flores-Cruz later identified Veteta-Contreras as the man who also

demanded money and threatened them with what Duran and what

Flores-Cruz described as a Decl. of Jinhong, Ex. K (Testimony of Eliezer Duran at

697-701; and Ex. B (Testimony of Walter Flores-Cruz at 553-554). Duran and an eye-witness, Juan

Lopez-Pando, both identified Monetti as one of the four or five men who had surrounded them



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6 Decl. of Jinhong, Ex. L (Testimony of Juan Lopez-Pando at 628, 641-

642, 650) and Ex. K (Testimony of Eliezer Duran at 697, 722, 725-727, 729-730, 750-751, 774).

Duran and Lopez-Pando testified that while being robbed, Duran told Monetti to restrain his

machete- and gun-wielding companions, Id. at 697, 722, 725-

727, 729-730, 750-751, 774. Monetti responded by telling Duran

and Id.; see also Decl. of Clark at ¶18. While Monetti was

ultimately not arrested or charged, there is nonetheless substantial evidence that he was, in fact,

complicit in the robberies.7

Monetti claims

conjunction with command-voice tactics intended to gain compliance. With respect to the former,

Monetti claims that head, resulting in an injury to his left temple

area. See Decl of Jinhong, Ex. H (First Amended Complaint ¶ 4.6). He denies that anyone touched

his leg but claims , . Decl. of Jinhong, Ex. J,

(Monetti testimony at 852-853. These claims are belied not only by inconsistencies in Monetti

6 Concurrent with the events that were transpiring between Monetti, his two companions, and the officers south of China Harbor, Ofcs. Virgilio and Reyes had detained two additional Latino males, Pedro Martinez and Robin Barrera. See Decl. of Jinhong, Ex. C at 333-339. Flores-Cruz subsequently identified Pedro Martinez as part of the group (including Monetti, Veteta-Contreras, and Garcia-Garcia) that had robbed him. See Decl. of Jinhong, Ex.E at 50-51 starting at line 20. He reported that Martinez had demanded money from him, claiming they were or MS 13 gang members from El Salvador, and that Martinez had flashed a hand gun that was tucked between his belt under his t-shirt. Decl of Jinhong, Ex. B (Flores-Cruz Testimony at 541-542). He reported that Veteta-Contreras had threatened him with a machete. Id. at 542-543. 7 Monetti testified at the joint criminal trial against Pedro Martinez and Hector Veteta-Contreras, but only after he was granted full transactional and testimonial immunity in exchange for his testimony. See Decl. of Jinhong, Ex. J- (Testimony of Martin Monetti at 813-814, 816). Both men were convicted of Robbery in the First Degree while Armed with Deadly Weapons and sentenced to 11 and 13-years in prison, respectively. See Decl. of Jinhong, Exs. M and N, (certified Judgment and Sentence of St. v. Pedro Martinez, #10-C-03558-0 SEA; certified Judgment and Sentence of St. v. Hector Veteta-Contreras, #10-C-03559-8 SEA). Monetti admitted in his testimony that he had consumed five to six

Martinez and Hector Veteta-Contreras in the parking lot. Decl. of Jinhong, Ex. J (Monetti testimony at 818-824).



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recollection8 (a recollection suspect in light of his admitted intoxication, see fn. 6), but by forensic

examination of the video Monetti himself relies on.

Upon request of the , Grant Fredericks, an expert forensic

videographer, examined the raw video footage from the event. See Decl. of Jinhong, Ex. I

( , dated September 1, 2010). Mr.

Decl. of Fredericks, Ex.

C. Mr. Fredericks additionally clarified

calf area, not his upper leg, buttocks, or back.

I I I . ISSU ES PR ESE N T E D

a. Whether Det. Cobane and Ofc. Woollum are entitled to qualified immunity on claim of excessive force when both officers used reasonable, necessary, and minimal force to control a non-compliant suspect potentially involved in multiple armed robberies?

b. Whether Det. Cobane and Ofc. Woollum are entitled to summary judgment on

derogatory language, his actions would have been no different, dispelling any claim of discriminatory effect?

c. Whether the City of Seattle is entitled to summary judgment on Monell claim

d. Whether plaintiff s state law claims should be dismissed?

I V . E V ID E N C E R E L I E D UPO N

Defendants rely on the complaint and answer, and the declarations of Dominiqué L.

Jinhong, Ofc. Shandy Cobane, Ofc. Mary Lynne Woollum, Det. Frank Clark, K9 Ofc. Chris

Hairston, Sgt. Barbara Wilson, Sgt. James Kim and Grant Fredericks, and exhibits attached thereto.

8 Monetti first

Det. Cobane for this alleged kick). Id. Ex.J at 851. He then claimed that Det. , this time on camera.



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V . A R G U M E N T A ND A U T H O RI T Y

A . Det. Cobane and Ofc. Woollum are Entitled to Qualified Immunity because the Force used was Reasonable, Necessary and Minimal under the Totality of the C ircumstances.

1. Summary Judgment Standard

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal

quotation marks omitted). A fact is material if it could affect the outcome of the suit under the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits

or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine

Only admissible evidence may be considered in deciding a

y in affidavits

Soremekun, 509 F.3d at 984.

2. Qualified Immunity

Government officials exercising discretionary functions generally enjoy qualified immunity

from personal liability for actions within the scope of their official duties. See Harlow v.

F itzgerald, 457 U.S. 800, 807 (1982). Qualified immunity is determined by answering one of two

questions, considered in no particular order: 1) whether the facts that a plaintiff has shown make out



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time of defendant's alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 231-233 (2009).

Qualified immunity balances two important interests the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably. Id. The qualified immunity

Hunter v. Bryant, 502 U.S. 224, 227 (1991). It protects

officers from suit for decisions that, even if constitutionally deficient, reasonably misapprehend the

law governing the circumstances confronted. Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

Pearson, 555 U.S. at 231(citing Groh, 540 U.S. at 567; also see Ashcroft v. Al-Kidd, 563

U.S. ___, 131 S. Ct. 2074, 2083 (2011).

Hope v.

Pelzer, 536 U.S. 730, 752 (2002).

sufficiently clear that a reasonable official would understand what he is doing violates that

Anderson v. Creighton, 483 U.S. 635, 640 (1987). This standard was subtly, but

significantly, changed in al-Kidd every

(2011)(emphasis added). Moreover, existing precedent must have placed the statutory or

constitutional question beyond debate. Id.



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Excessive Force

the facts and circumstances confronting

Graham v. Connor,

countervailing gov Id. at 396 (quoting Tennessee v. Garner, 471 U.S.

1, 8 (1985)).

officers are often forced to make split-second judgments in circumstances that are tense,

uncertain, and rapidly evolving about the amount of force that is necessary in a particular

Id. at 396 97. Reasonableness therefore must be judged from the perspective of a

Id. at 396 (citing

Terry v. Ohio, 392 U.S. 1, 20 22 (1968)).

three questions: (1) the severity of the intrusion on

the individual's Fourth the type and

(2) the government's interest in the use of force; and (3) the gravity of the intrusion on the

individual against the government's need for that intrusion. See Espinosa, 598 F.3d at 537 (quoting

Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003)); Graham, 490 U.S. at 396.

a. The Type and Force Used on Monetti was Both Minimal and Reasonable under the C ircumstances.

Plaintiff alleges that he was kicked in the head by Det. Cobane and stomped in the back by

Ofc. Woollum. Fatal to excessive force claims are the simple facts that he was not

kicked in the head or stomped on the back. While typically such differing facts could create a

material issue of fact in dispute, they do not do so here where the use of force was captured on

video a record that belies version of the facts. See Scott v. Harris, 550 U.S. 372, 380-



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by the record, so that no reasonable jury could believe it, a court should not adopt that version of

A frame by frame forensic analysis of the video shows the type and amount of force used on

Monetti was both minimal and reasonable. See Decl. of Fredericks, Exs. A, B and C; and Decl. of

Sgt. Kim, Ex. A.

ned

numerous times by other officers, including Det. Cobane and Ofc. Woollum, to

Monetti simply refused to do so.

as a temporary control technique. Id. Indeed, Monetti did not complain he suffered any injury as a

result of Det. Cobane s Decl. of Cobane at ¶ 18; Decl. of

Fredericks, Ex. A. Similarly, Ofc. Wo

again, a minimal use of force reasonably used to achieve basic compliance. Monetti has never

complained about, or even claimed that, Ofc. Woollum stepped on his leg. See id. at ¶ 21; Decl. of

Woollum at ¶ 18. The oollum ever stepped

on his back. Her force was also minimal. See Decl. of Kim, Ex. A.

b. The Government's Interest in the Use of Force was Justified and Reasonable

Excessive force inquiries require balancing of the amount of force applied against the need

for that force under the circumstances. Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir.2003). The

strength of the government's interest in the force used is evaluated by examining three primary

[the suspect] is actively resisting arrest or

attempting to Graham, 490 U.S. at 396. These factors, however, are not

http://web2.westlaw.com/find/default.wl?mt=108&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2025375571&serialnum=2003612191&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=80A47877&referenceposition=1061&rs=WLW12.01



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exclusive. See Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). The court must further

actors may be

appropriate in a particular case, whether or not listed in Graham. Id. (quoting Franklin v.

Foxworth, 31 F.3d 873, 876 (9th Cir. 1994)). Other relevant factors include the availability of less

intrusive alternatives to the force employed, whether proper warnings were given, and whether it

should have been apparent to officers that the person they used force against was emotionally

disturbed. See, e.g., Bryan, 630 F.3d at 831; Deorle, 272 F.3d at 1282

factor is, however,

See, e.g., Bryan, 630 F.3d at 826 (internal quotation marks omitted).

of the facts

and circumstances confronting them, without regard to their underlying intent or motivation

Graham, 490 U.S. at 397 (italics added). The question is not simply whether the force was

necessary to accomplish a legitimate police objective; it is whether the force used was reasonable in

light of all the relevant circumstances. Hammer v. Gross, 932 F.2d 842, 846 (9th Cir.) (en banc),

cert. denied, 502 U.S. 980 (1991). The Graham analysis specifically incorporates a tolerance for

reasonable factual mistakes by police officers, including whether a suspect was actually resisting or

attempting to flee. Saucier i]f an officer reasonably, but mistakenly, believed

that a suspect was likely to fight back, for instance, the officer would be justified in using more

The first Graham factor weighs in favor of the officers. The severity of the crime at issue

was extremely serious two independent armed robberies, each reportedly involving a machete and

a gun.

in determining whether the use of f Deorle, 272 F.3d at 1280.



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The second Graham factor, whether the suspect posed an immediate threat to the safety of

the officers or others, also weighs in favor of the officers. Eleven discrete facts illuminate why the

ety was at

robberies involving a gun and a machete; (2) officers did not know whether Monetti was armed

with a machete, gun, or some other weapon, as he had not yet been searched; (3) officers believed

that Monetti was an active participant in the robberies because he was found walking with two

suspects that fit the descriptions of two of the four or five 20-something, Latino men; (4) Monetti

posed an immediate threat to officer safety because he refused to obey repeated commands to get

down on the ground as ordered by Ofc. Hairston; (5) instead of getting down on the ground as

ordered, Monetti looked around and threw an unknown object into the adjacent bushes; (6) after

multiple commands to get down on the ground and two threats that a K9 dog would be released to

force his compliance, Monetti only reluctantly lowered his body to the ground; (7) Monetti

remained perched on his elbows with his hands pressed to the cement, knees bent, toes flexed, as if

poised to run or attack; (8) Monetti continued to ignore all orders to remain still and prone (even the

urging of his own companions to do so), repeatedly bringing his hands to his head and body,

bobbing his head and body upward to look around, shifting his feet, and making other movements

consistent with preparing to flee or otherwise stage an attack; (9) Monetti reeked of alcohol and

appeared intoxicated (as opposed to mentally disturbed); (10) it was obvious, as evidenced by the

ineffectiveness of attempts to verbally communicate commands to Monetti, that his state of

impairment was interfering with his judgment; and (11 impulsivity and risk-prone

behavior was demonstrably heightened in light of his impaired judgment.

The third factor, whether the suspect actively resisted arrest or attempted to evade arrest by

flight, also weighs in favor of the officers. ent was of obvious concern to



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the officers (and amply reflected in the video record), both in terms of their safety and

failure to follow basic commands, his inappropriate affect (as evidenced by

his laughter and inability to recognize (as his companions did) the gravity of the situation), and his

apparent as to how much movement they would tolerate,

further evidenced his intoxication and resultant impaired judgment. See Decl. of Jinhong, Ex. D

(Testimony of Hairston at 499-500).

-guessing a police officer's assessment, made on

See Ryburn v. Huff, 132 S.Ct. 987, 991

(2012). Based on the totality of circumstances known to the officers at the time, all three Graham

the minimally intrusive force they ultimately employed.

c. The O fficers are Entitled to Qualified immunity.

In addition to

United States Supreme Court has made clear that the objective reasonableness analysis of an

immunity analysis. Saucier, 533 at 202-203. Instead, courts must consider both: 1) whether the

, and 2) if it did, whether the officer is entitled

to qualified immunity notwithstanding a possible constitutional deprivation. Id. at 206. The second

part of this analysis determining qualified immunity requires examination of both prongs of the

qualified immunity analysis: 1) whether the facts that a plaintiff has shown make out a violation of

a constitutional right; and 2) whether

defendant's alleged misconduct - i.e., whether a reasonable officer could believe his or her actions

were lawful under the facts and circumstances that existed at the time. Saucier, 533 U.S. at 201.



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protection to the officers than the pure Fourth Amendment analysis

immunity inquiry Saucier, 533 U.S. at 205. Beyond

the reasonable factual mistakes permitted under the Fourth Amendment (e.g., was the plaintiff

actually a threat?) qualified immunity recognizes that an officer may misapply the law to the

acknowledge that reasonable mistakes can be made as to the legal constraints on particular police

Id lified immunity applies regardless of whether the

Pearson, 555 U.S. at 231 (citing Groh, 540 U.S. at 567; also see

Ashcroft v. Al-Kidd, 563 U.S. ___, 131 S.Ct. 2074, 2083 (2011).

Accordingly, under the proper analysis, even 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.

Here, all existing case law supports the conclusion that low-level compliance techniques

would be lawful under the present circumstances. Jackson v. City of Bremerton, 268 F.3d 646, 652

(9th Cir. 2001) (use of pepper spray and force during arrest permissible); Forrester v. City of San

Diego, 25 F.3d 804 (9th Cir. 1994) (use of nunchucks to move passively resisting protestors

resulting in broken wrist and nerve damage constitutionally permissible); see also Alexander v.

County of Los Angeles, 64 F.3d 1315, 1320 (9th Cir. 1995)

reasonably believes force is necessary to protect his own safety or the safety of the public, measures

used to restrain individuals, such as stopping them at gunpoint and handcuffing them, are



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Terry sto

Woo p leg were not only objectively reasonable, both

minimally-intrusive methods were well within the permissible range of force options. The officers

are accordingly entitled to qualified immunity with respect to p force claims.

3. Equal Protection9

City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439, 105

S .Ct. 3249, 87 L.Ed.2d 313 (1985). Plaintiff cannot base his equal protection claim on mere verbal

harassment, insults, verbal abuse, racial epithets, or even threats. Such actions do not violate the

Constitution and, thus, do not give rise to a claim under 42 U.S.C. § 1983. See Oltarzewski v.

Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.1987).

In order to prevail on a claim for Equal Protection violations, a plaintiff must show

differential treatment from a similarly situated class. See Washington v. Davis, 426 U.S. 229, 239

(1976). Under both §§ 1981 and 1983 claims, a plaintiff must show that racial animus was the

motivating force behind the actions of the officers, proving that the officers would not have used

any force but for the fact that their racial animus compelled them to act. See Tanner v. Heise, 879

F.2d 572, 580 n. 5 (9th Cir. 1989); see Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

754 (9th Cir. 2001) (decision to use force must be ) (quoting F DIC v.

Henderson, 940 F.2d 465, 473 (9th Cir. 1991)); cf. Navarro v. Block, 72 F.3d 712, 716 (9th Cir.

9 Plaintiff brings his claim under 42 U.S.C. § 1981, which defendants submit is not the appropriate vehicle to advance their claims concerning racial discrimination. See Brew v. City of Emeryville, 138 F.Supp.2d 1217 (2001) (With regards to the § 1981 claicontracts, to sue, be [a party], give evidence, and to the full and equal benefit of all laws). Defendants believe that

l Protection Clause of the United States Constitution and argue

§1981 as well.



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requires proof of discriminatory intent or motive

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 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

remained the same even absent the use of race-based language. See

Village of Arlington Heights, 429 U.S. at 271 n. 21 (explaining that proof of discriminatory purpose

If the defendant carries this burden, the

plaintiff must then show the reasons offered by the defendants were not the true reasons, but were

instead a pretext for discrimination. The plaintiff retains the ultimate burden of persuasion. Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) (employment discrimination

under 42 U.S.C. § 2000e et seq.); General Building Contractors Ass'n v. Pennsylvania, 458 U.S.

375, 383-391 (1982) (for § 1981, plaintiff must prove intentional or purposeful discrimination).

Monetti cla

discriminatory treatment (unreasonable use of force and use of racial epithets) based on his race and

See Decl. of Jinhong, Ex. H (First Amended Complaint, ¶ 7.2). At the outset,

Graham irrelevant. As such, the allegation of

racial animus does not spill over into the force analysis, and is instead evaluated only under the

rubric of equal protection. Because racial epithets alone cannot sustain a claim, see Oltarzewski,

supra; Gaut, supra, plaintiff must accordingly actions (their use of force)

were motivated by racial animus. Plaintiff cannot meet this burden.



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At the outset, there is absolutely no evidence that Ofc. Woollum acted with racial animus.

She made no comments that were race-based or otherwise indicative of any racial bias. Any claim

that Ofc. Woollum was motivated by racial animus is complete speculation. Absent any evidence,

of racially discriminatory treatment against Ofc. Woollum must be dismissed.

Det. Cobane

fucking Mexican piss out of you

issued in the course of warning Monetti to stop moving after prior efforts

failed. While Det. Cobane and the City recognize that it was unprofessional for Det. Cobane to use

such language,10 demonstrated intent was to control, not to offend, Monetti.

Regardless of whether

proof whatsoever of any discriminatory effect of this statement; any claims

of force was motivated by any alleged racial animus simply is not supported by the record. To the

contrary, the facts of this case present a similarly situated class of detained, 20-something, Latino

men who were immediately present during this entire exchange.

and remain prone. Modest force was used on Monetti alone; Det. Cobane did not use any force on

any of the other Latino males under his control. The only differentiating factor between Monetti

and the other two similarly situated Latino males was that Monetti failed to comply with the

(and his own friends urging) to remain still and to stop moving in the course

had no appreciable discriminatory effect. All other things being equal, any speculation that Det.

10 Indeed, Det. Cobane received the harshest punishment that SPD has ever imparted for a verbal comment and Det. Cobane apologized directly to the Latino community for his statements. Nonetheless, SPD policy does not define the contours of the Constitution.



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ifferently has no basis in evidence, is completely

speculative, and simply Rather, on every front, the force used

was objectively reasonable. Monetti suffered no lasting or significant injury from his contact with

Det.

constitutional action under the totality of the circumstances. Monetti has the burden of rebutting

te, non-discriminatory purpose.

No such proof exists. Both officers a

protection claims, both under an examination of the merits of the claim and because the officers are

entitled to qualified immunity on this claim.

4. Municipal L iability

Monetti alleges that the City of Seattle had a policy, custom, and practice of training officers

to use excessive force and racial police practices, or ratifying the same. Logistically speaking, a

Monell claim cannot stand without a predicate finding that one or both of the officers actually

committed a Constitutional violation. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106

S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986), see also Palmerin v. City of Riverside, 794 F.2d 1409,

1414 15 (9th Cir.1986). Only then, after this predicate finding has been made does a Monell claim

truly ripen. As neither officer Monell claim can exist.

5. State Law Tort C laims

The claims brought under state law in this matter are assault and battery, outrage and

negligent infliction of emotional distress, and general negligence. All of these claims are dependent

on a finding that the officers used unlawful force. Because Det. Cobane and Ofc. Woollum did not

use unlawful force, the Court should dismiss all of these claims.

a. Assault and Battery



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Assault and battery

apprehension of imminent physical viole Brower

v. Ackerley, 943 P.2d 1141, 1144 (Wn. App. 1997). A battery is an intentional and unpermitted

McKinney v. City of Tukwila, 103 Wn.App. 391, 13 P.3d 631,

641 (2000).

carries out a statutory duty, (2) according to procedures dictated to him by statute and superiors, and

Luchtel v. Hagemann, 623 F.3d 975 (9th Cir. 2010); quoting 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)). Courts in this circuit have concluded that w

reasonable, all claims for assault, battery, and excessive force fail. McKinney, 103 Wn.App. at 391.

b. Negligent Infliction of Emotional Distress

A great deal of human conduct not otherwise tortious will cause emotional distress to other

persons, sometimes by accident and sometimes by intention. When a plaintiff attempts to recover

emotional distress damages in the absence of an independent basis of tort liability, there are special

requirements with respect to damages. The requirement that the damage suffered be somehow

extraordinary operates as a check against a flood of civil suits arising from nothing more than petty

feuds and hurt feelings. See Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 556-57, 114 S.Ct.

2396, 2411, 129 L.Ed.2d 427 (1994). See also Metro-North Commuter R.R. Co. v. Buckley, --- U.S.

----, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997) (collecting common-law cases requiring proof of

physical symptoms to recover for negligent infliction of emotional distress).

To succeed on his negligent infliction of emotional distress claim, Monetti must prove (1)

duty, (2) breach of that duty, (3) proximate cause, (4) damage or injury, and (5) objective

symptomatology that is susceptible to medical diagnosis and proven by medical evidence. Hunsley



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v. Giard, 87 Wn.2d 424, 434 36, 553 P.2d 1096 (1976); Hegel v. McMahon, 136 Wn.2d 122, 135,

960 P.2d 424 (1998). claim fails as a matter of law because he has not provided any

evidence, or even allegations, of objective symptomatology.

c. Outrage

Outrage and negligent infliction of emotional distress claims are subsumed by p

assault and battery, excessive force, and equal protection claims. In Rice v. Janovich, 109 Wash.2d

48, 742 P.2d 1230 (1987), the Washington Supreme Court held that a plaintiff cannot recover on an

outrage claim where damages for the emotional distress were already recoverable under the more

specific force claim, which is already plead here. Id. at 1238.

Even if such claims were not subsumed, they fail. The elements of the tort of outrage are

extreme and outrageous conduct, intentional or reckless infliction of emotional distress, and

resulting severe emotional distress. Dicomes v. Washington, 782 P.2d 1002, 1012 (1989). The

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

Id. at 1013. in the course of

attempting to control a non-compliant suspect in two armed robbery investigations was

unprofessional . And, when the

conduct offered to establish the tort's first element is not extreme, a court must withhold the case

from a jury notwithstanding proof of intense emotional suffering. Brower v. Ackerley, 88 Wn.App.

87, 943 P.2d 1141 (1997). Plaintiff does not allege any distress aside from ;

his embarrassment, particularly in light of the surrounding context, is too insignificant to satisfy the

tranquility



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distress is a par Restatement (Second) of Torts § 46 comment

j. Indeed, courts have properly dismissed claims for distress objectively more symptomatic than

that alleged here on the grounds that the conduct alleged was either not sufficiently outrageous

and/or the distress alleged was insufficient to give rise to a claim in tort. See, e.g., Spurrell v.

Bloch, 40 Wn.App. 854, 701 P.2d 529 (1985)

d. Negligence

To establish negligence against the officers, Plaintiff must prove (1) the officer owed him a

duty, (2) the officer breached that duty, (3) the breach caused his injury, and (4) damages. Degel v.

Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49-50, 914 P.2d 728, 731 (1996). As a general rule,

law enforcement activities are not reachable in negligence. Keates v. City of Vancouver, 73

Wn.App. 257, 260-261, 869 P.2d 88, 93 (1994). Under the public duty doctrine, public officials do

not owe a duty to any particular individual which can serve as the basis for a tort claim. Cummins

v. Lewis County, 133 P.3d 458, 461 (2006). Without a duty owed, there is no claim for negligence.

Id. Exceptions to the public duty doctrine are few, and plaintiff has alleged no facts to establish the

existence of any exception. See Id.

breach of any duty, even if such a duty were to exist.

As noted above, officers are entitled to qualified immunity from all state law tort claims if

their conduct meets a three-part test: (1) they are carrying out a statutory duty, (2) according to the

procedures dictated by statute and superiors, and (3) they acted reasonably. Estate of Lee v. City of

Spokane, 2 P.3d 979, 990 (Wn. App. 2000). The officer this test. Det. Cobane and

Ofc. Woollum were carrying out statutory duties to enforce the law and acted in accordance with

the procedures dictated by statute. See RCW 9A.56.200. They acted in accordance with

department procedures for their use of force. Decl. of Kim, Ex. A. Finally, and at the heart of this



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analysis, both officers acted reasonably. Because the officers are entitled to federal qualified

immunity, the Court should grant state qualified immunity as a matter of law and dismiss all state

law claims in this matter.

V I . C O N C L USI O N

The officers used minimal force to control Monetti, a suspect detained in the course of

investigating multiple robberies involving the display of a machete and a gun. Under the totality of

the circumstances, the force used was not only minimal, but objectively reasonable to attempt to

bring into control a non-compliant, and potentially armed, suspect. Because plaintiff cannot

produce evidence sufficient to establish a constitutional claim with respect to either the force

alleged or the language used, the officers and the City are entitled to dismissal, and defendants

respectfully request an order granting summary judgment as to all claims alleged in the Complaint.

V I I . PR OPOSE D O RD E R

A proposed order is attached hereto.

DATED this 1st day of May, 2012.

PETER S. HOLMES Seattle City Attorney

By:

Brian G. Maxey, WSBA #33279 Seattle City Attorney 600 4th Avenue, 4th floor

P.O. Box 94769 Seattle, WA 98124-4769 Phone -684-8251 FAX: 206-684-8284 Email: [email protected]

Attorneys for Defendants City of Seattle, Ofc. Cobane and Ofc. Woollum

mailto:[email protected]

the honorable judge ricardo s. martinez · 2012. 5. 3. · plaintiff alleges that during the course...

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