1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 JENNIFER DOLD, ET AL., CASE NO. 2:20-cv-00383-JHC 8 Plaintiffs, ORDER RE: MOTIONS FOR 9 RECONSIDERATION AND MOTION TO v. BIFURCATE 10 SNOHOMISH COUNTY, ET AL., 11 Defendants. 12 13
14 I 15 INTRODUCTION 16 Pending before the Court are three motions: (1) Snohomish County’s motion for 17 reconsideration on the negligent retention claim (Dkt. # 137), and (2) Plaintiffs’ motion for 18 reconsideration on their warrantless entry claim (Dkt. # 141), and (3) Defendants’ motion to 19 bifurcate (Dkt. # 139). The motions for reconsideration ask the Court to reconsider its 20 conclusions in its previous order (Dkt. # 134) and accompanying memorandum opinion (Dkt. 21 # 135).1 22
23 1 Motions for reconsideration are “disfavored,” and the Court “will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal 24 1 For the reasons below, the Court DENIES the three motions. 2 II 3 DISCUSSION
4 A. Motion for Reconsideration of the Negligent Retention Claim 5 The County asks the Court to reconsider its earlier ruling denying its summary judgment 6 motion on the negligent retention claim. Dkt. # 137. The County’s motion for reconsideration 7 makes two arguments. First, the County argues that the Court failed to recognize that a negligent 8 retention claim requires that the employee’s wrongful conduct occur “outside the scope of 9 employment.” Second, the County challenges the admissibility of the evidence relied on by 10 Plaintiffs to create a genuine dispute of material fact. 11 1. “Scope of Employment” Issue 12 The County primarily contends that the Court ignored a mandatory element of a negligent
13 retention claim. The County argues that under Washington law, a plaintiff asserting a negligent 14 retention claim must show that the employee was acting “outside the scope of his employment” 15 when they committed the wrongful act that harmed the plaintiff. The Court rejects this 16 argument. 17 As a federal court considering a question of state law, “we are bound to follow the 18 decisions of the state’s highest court.” Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 19 885, 889 (9th Cir. 2021) (quoting Diaz v. Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015)). 20 “[W]hen the state supreme court has not spoken on an issue, we must determine what result the 21 court would reach based on state appellate court opinions, statutes and treatises.” Id. (quoting 22
23 authority which could not have been brought to its attention earlier with reasonable diligence.” LCR 7(h)(1). 24 1 Diaz, 785 F.3d at 1329). While “we look to intermediate appellate courts for guidance, . . . we 2 are not bound by them if we believe that the state supreme court would decide otherwise.” 3 Radcliffe v. Hernandez, 818 F.3d 537, 543 (9th Cir. 2016); see also Miller v. County of Santa
4 Cruz, 39 F.3d 1030, 1036 n.5 (9th Cir. 1994) (“A state appellate court’s announcement of a rule 5 of law is a datum for ascertaining state law which is not to be disregarded by a federal court 6 unless it is convinced by other persuasive data that the highest court of the state would decide 7 otherwise.” (citation and quotation marks omitted)). 8 As described in the Court’s prior order, a negligent retention claim holds an employer 9 liable when the employer negligently elects to retain an employee and the employee then 10 commits a wrongful act. To succeed on a negligent retention claim, “a plaintiff must show that 11 the employer had knowledge of the employee’s unfitness or failed to exercise reasonable care to 12 discover unfitness before . . . retaining the employee.” Anderson v. Soap Lake Sch. Dist., 191
13 Wash. 2d 343, 356, 423 P.3d 197 (2018) (citation omitted). The plaintiff must also show the 14 employer’s retention of the employee was a proximate cause of the plaintiff’s injuries. Carlsen 15 v. Wackenhut Corp., 73 Wash. App. 247, 252–53, 868 P.2d 882 (1994). “The difference 16 between negligent hiring and negligent retention is timing. Negligent hiring occurs at the time of 17 hiring, while negligent retention occurs during the course of employment.” Anderson, 191 18 Wash. 2d at 356 (citations omitted). These causes of actions “are based on the concept that the 19 employer’s own negligence is a wrong to the injured party, independent from the employer’s 20 liability for its employee’s negligence imputed by the doctrine of respondeat superior.” Evans v. 21 Tacoma Sch. Dist. No. 10, 195 Wash. App. 25, 47, 380 P.3d 553 (2016). 22 The County directs the Court’s attention to a recent Washington Court of Appeals
23 decision, Hicks v. Klickitat County Sheriff’s Off., 23 Wash. App. 2d 236, 515 P.3d 556 (2022). 24 There, a plaintiff sued the Department of Social and Health Services for its negligent retention of 1 a social worker, Shirley DeArmond. Id. at 238. The plaintiff alleged that DeArmond negligently 2 investigated a child abuse report. Id. On appeal, the Court of Appeals dismissed the negligent 3 retention claim. The court observed that “[n]egligent retention claims generally arise when an
4 employee is acting outside the scope of their employment.” Id. at 248 (citing Evans, 195 Wash. 5 App. at 47). And “[b]ecause Hicks has failed to allege facts that show DeArmond acted outside 6 the scope of employment, Hicks’ negligent retention claim fails as a matter of law.” Id. 7 The Court acknowledges that some intermediate appellate courts in Washington (like the 8 Hicks court) have imposed an “outside the scope of employment” requirement in negligent 9 retention cases. But this Court must determine how the Washington Supreme Court would 10 decide the question. And while “we look to intermediate appellate courts for guidance, . . . we 11 are not bound by them if we believe that the state supreme court would decide otherwise.” 12 Radcliffe, 818 F.3d at 543. The Court believes that Hicks answered a different question than the
13 one presented here. Unlike in Hicks, there is no direct negligence claim that could give rise to 14 vicarious liability against the County. Under such circumstances, the Court believes that the 15 Washington Supreme Court would not adopt a “scope of employment” requirement for negligent 16 retention claims, at least in cases where there is no remaining claim for vicarious liability. 17 First, the Washington Supreme Court has never mentioned a “scope of employment” 18 requirement for negligent retention claims. In 2018, the Washington Supreme Court decided 19 Anderson v. Soap Lake School District. 191 Wash. 2d 343. In Anderson, the Court noted that 20 “[t]his court has not yet adopted a test for negligent hiring and/or retention of an employee.” Id. 21 at 356. It then “adopt[ed] the test used by the Courts of Appeals: to hold an employer liable for 22 negligently hiring or retaining an employee who is incompetent or unfit, a plaintiff must show
23 that the employer had knowledge of the employee’s unfitness or failed to exercise reasonable 24 care to discover unfitness before hiring or retaining the employee.” Id. 1 Notably, the test adopted in Anderson does not require that the employee’s conduct occur 2 outside the scope of employment. Nor is this omission attributable to oversight. In the next 3 section of the decision, the court considered claims for “negligent training and supervision.” Id.
4 at 360–63. And for those claims, the Court carefully analyzed whether negligent training and 5 supervision claims require that the employee acted outside the scope of employment when 6 committing the wrongful act. Id. Reading Anderson as a whole, the most reasonable inference is 7 that the Washington Supreme Court would not adopt an “outside the scope of employment” 8 requirement for negligent retention claims. 9 Second, the Washington Supreme Court in Anderson favorably cited the Second 10 Restatement of Torts when discussing the standard for negligent hiring and retention: “It is 11 negligence to use an instrumentality, whether a human being or a thing, which the actor knows or 12 should know to be so incompetent, inappropriate, or defective, that its use involves an
13 unreasonable risk of harm to others.” Restatement (Second) of Torts § 307 (1965); see also 14 Anderson, 191 Wash. 2d at 356. The Restatement then provides the following illustration: 15 A, the proprietor of an apartment house, employs as janitor B, a man whom A knows to be of an exceedingly fiery and violent temper. C, one of A’s tenants, 16 complains to B in regard to lack of heat. B becomes violently angry and attacks and harms C. Irrespective of whether B’s act is within the course of his 17 employment as janitor, A is negligent toward C.
18 Restatement (Second) of Torts § 307 cmt. a, illus. 1 (1965) (emphasis added). If Anderson is 19 read to endorse the rule found in the Second Restatement of Torts, then it is unlikely that the 20 Washington Supreme Court would adopt a “scope of employment” requirement, at least in this 21 case. See Mudpie, 15 F.4th at 889 (looking to treatises to determine how a state’s highest court 22 would resolve a legal question). 23 Third, the Hicks court turned a descriptive statement into mandatory rule. The Hicks 24 court stated that “[n]egligent retention claims generally arise when an employee is acting outside 1 the scope of their employment.” 23 Wash. App. 2d at 248 (emphasis added). In dismissing the 2 negligent retention claim because the employee was acting outside the scope of employment, the 3 Hicks court appears to have transformed this qualified statement into an exceptionless rule.
4 Fourth, and perhaps most importantly, the apparent justification for a “scope of 5 employment” requirement does not apply here. The Hicks court explained that when an 6 employee commits tortious conduct within the scope of employment, an employer can be held 7 liable under a different theory: vicarious liability or respondeat superior liability. 23 Wash. App. 8 2d at 248 n.9. The court explained that “[u]nder the doctrine of respondeat superior, an 9 employer can be vicariously liable for its employee’s torts committed within the scope of 10 employment. . . . An injured party generally cannot assert negligent retention claims when the 11 employer is vicariously liable for the employee’s conduct.” Id. The Hicks court apparently 12 believed that a negligent retention claim is unnecessary when an employee’s tortious conduct
13 occurs within the scope of employment because the plaintiff would always have another path to 14 recovery (and a less onerous one, at that) under the doctrine of respondeat superior. 15 Courts have explained that any “scope of employment” requirement is justified by 16 concerns about “redundant” causes of action: If a defendant is vicariously liable under a 17 respondeat superior theory for acts within the scope of employment, there is no need to 18 separately impose liability on a negligent retention theory. In LaPlant v. Snohomish County, 162 19 Wash. App. 476, 271 P.3d 254 (2011), the Court of Appeals concluded that any recovery based 20 on a negligent retention theory would be “superfluous” because “the County agreed that it would 21 be vicariously liable for any negligence on the part of the deputies.” Id. at 257 (emphasis added). 22 In Schiro v. Boyne USA, Inc., 21 Wash. App. 2d 1024, 2022 WL 782372 (2022), the Court noted
23 in dicta that it “question[s] the purpose of allowing a negligent hiring or retention claim to go 24 forward when the employer concedes any alleged act was within the scope of the employment 1 because this creates essentially duplicative claims.” Id. at *6 n.2; see also id. (rejecting 2 plaintiff’s argument because she “failed . . . to provide an example of when an employer might 3 be liable under a negligent hiring or retention claim but not a vicarious liability claim, even when
4 the employer has admitted the employee was acting within the scope of employment”). In 5 Gilliam v. Department of Social & Health Services, Child Protective Services, 89 Wash. App. 6 569, 950 P.2d 20 (1998), the court concluded that “a cause of action for negligent supervision is 7 redundant” because “the State acknowledged Morrow was acting within the scope of her 8 employment, and that the State would be vicariously liable for her conduct.” Id. at 585. And in 9 Tubar v. Clift, No. C05-1154-JCC, 2008 WL 5142932 (W.D. Wash. Dec. 5, 2008), a court in this 10 District permitted a negligent retention claim to proceed against an employer for conduct within 11 the scope of employment. The court concluded that there would be “no such redundancy [of 12 causes of action] because Plaintiff has not asserted a negligence claim against Officer Clift for
13 which the City would be vicariously liable by admission.” Id. at *7. 14 Here, there is no direct negligence claim against the deputies that could give rise to the 15 County’s vicarious liability. The Court previously dismissed Ms. Duncan’s direct 16 negligence/wrongful death claim for lack of standing.2 Dkt. # 39 at 8–9.3 And the Estate’s state- 17 law claims were dismissed for failure to file a claim form as required by Washington law. See 18 id. at 3–7. The only remaining cause of action against the County, then, is for negligent 19 retention. There is no risk of “redundant” or “superfluous” causes of action. When, as here, for 20 one reason or another, vicarious liability is unavailable and the only remaining cause of action 21 against an employer is based on negligent retention, the Court believes that the Washington 22
23 2 No party has challenged Ms. Duncan’s standing to bring a negligent retention claim. 3 This case was previously assigned to the Honorable Richard A. Jones before reassignment to the 24 undersigned judge in April 2022. 1 Supreme Court would not foreclose a negligent retention claim based on a “scope of 2 employment” requirement. 3 2. Evidentiary Objections
4 The County argues that various documents used to support Plaintiffs’ negligent retention 5 claim should be stricken or disregarded. These objections fall into two categories: (1) objections 6 to Dr. Harmening’s opinions based on his purported failure to comply with the expert report 7 rules found in Federal Rule of Civil Procedure 26, and (2) objections to the admissibility of 8 various other documents, primarily based on concerns of hearsay. 9 a. Dr. Harmening’s Report 10 The County argues (Dkt. # 97 at 6–9) that Dr. Harmening’s “supplemental” declaration— 11 attached to Plaintiffs’ motion for summary judgment (Dkt. # 60)—should be stricken. 12 According to the County, the declaration seeks to incorporate new opinions that were not
13 disclosed in Dr. Harmening’s initial expert report. See Dkt. # 98-2 (Dr. Harmening’s original 14 expert report); Fed. R. Civ. P. 26(a)(2) (requiring that the expert report contain “a complete 15 statement of all opinions the witness will express and the basis and reasons for them”). The 16 County argues that this declaration is not a “supplement” to the original expert report under Rule 17 26(e), and the expert report deadline passed before Dr. Harmening’s more recent declaration. 18 Thus, the County says, the new opinions should be excluded under Rule 37(c)(1). See Yeti by 19 Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (“Rule 37(c)(1) gives 20 teeth to these requirements by forbidding the use at trial of any information required to be 21 disclosed by Rule 26(a) that is not properly disclosed.”). 22 The Court agrees in part with the County. Dr. Harmening’s initial expert report did not
23 mention the Biondi “child rape” incident in any form. The first time that Dr. Harmening opined 24 about the Biondi incident (and its bearing on the County’s alleged negligence for retaining 1 deputy McGee) was in his declaration attached to Plaintiffs’ summary judgment motion, 2 submitted after the expert report deadline. Plaintiffs do not plausibly assert that the omission 3 was “substantially justified” or “harmless.” Fed. R. Civ. P. 37(c)(1); Yeti by Molly, Ltd., 259
4 F.3d at 1106. Nor can Plaintiffs characterize this declaration as a “supplement” to circumvent 5 the requirements of Rule 26. See Luke v. Family Care & Urgent Med. Clinic, 323 F. App’x 496, 6 500 (9th Cir. 2009). Accordingly, the Court does not consider Dr. Harmening’s statements about 7 the Biondi incident. 8 Similarly, Dr. Harmening’s initial report did not opine that the County was negligent in 9 retaining deputy McGee. The report says nothing about negligent retention or the County’s 10 employment practices. This omission was not substantially justified or harmless. Accordingly, 11 the Court does not consider any opinion by Dr. Harmening about whether the County negligently 12 retained deputy McGee.
13 But Dr. Harmening’s initial report did discuss the Colliers incident. See Dkt. # 98-2 at 14 22. Dr. Harmening summarized the Colliers incident and noted that deputy McGee’s conduct 15 toward Mr. Dold was “similar” to his conduct in the Colliers incident. Id. Dr. Harmening noted 16 concern that after “reviewing McGee’s personnel file, [he] was able to find no evidence of 17 McGee being disciplined or ordered to undergo remedial training.” Id. He also noted that the 18 “District Attorney” requested that deputy McGee receive additional taser training, and that “[i]t 19 is highly unusual for a prosecutor to request specific training,” perhaps indicating “concern” 20 about deputy McGee’s handling of the Colliers incident. Id. And during the deposition of Dr. 21 Harmening, the County questioned Dr. Harmening extensively about his conclusions from the 22 Colliers incident. See, e.g., Dkt. # 76 at 151–64. The County should not be surprised that Dr.
23 Harmening would opine about the Colliers incident and any similarities to this case. Construing 24 this evidence and reasonable inferences therefrom in the light most favorable to Plaintiffs, a 1 reasonable jury could rely on this information (along with other evidence) to conclude that the 2 County was on notice of deputy McGee’s unfitness and that the Colliers incident rendered 3 deputy McGee unfit.
4 b. Other Documents 5 In their response to Plaintiffs’ motion for partial summary judgment, Snohomish County 6 argued that the Court should “strike or disregard” the materials contained in Appendices A-K 7 and N of the Lobsenz Declaration. Dkt. # 97 at 9–10. Snohomish County gave two reasons for 8 this request. First, Snohomish County said that Plaintiffs “never produced or identified these 9 materials, despite the County’s [] discovery requests.” Id. at 9. Second, Snohomish County said 10 that “even if the documents had been properly disclosed, they contain multiple levels of 11 inadmissible hearsay.” Id. at 10. 12 The County’s first objection is baseless. The documents attached to the Lobsenz
13 Declaration were themselves produced by Snohomish County to Plaintiffs during discovery. See 14 Dkt. # 102 at 7–8. Snohomish County was on notice of the existence of the documents and could 15 have expected that Plaintiffs might rely on them during litigation. 16 The County’s hearsay objections require more careful consideration. At summary 17 judgment, a court may consider evidence only if it is “admissible at trial.” Fraser v. Goodale, 18 342 F.3d 1032, 1036 (9th Cir. 2003). For purposes of summary judgment, admissibility at trial 19 depends not on the evidence’s form, but on its content. See id. (“At the summary judgment 20 stage, we do not focus on the admissibility of the evidence’s form. We instead focus on the 21 admissibility of its contents.”); Block v. City of L.A., 253 F.3d 410, 418–19 (9th Cir. 2001) (“To 22 survive summary judgment, a party does not necessarily have to produce evidence in a form that
23 would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of 24 Civil Procedure 56.”). So long as the evidence “could be presented in an admissible form at 1 trial,” a court can consider the evidence, even if there are hearsay or best-evidence-rule 2 objections. Fraser, 342 F.3d at 1036. 3 The Court first addresses the “Bales Memorandum,” in which Captain David Bales
4 requested that Undersheriff Tom Davis investigate deputy McGee. See Dkt. # 59 at 7. The 5 memorandum states that Captain Bales received a complaint from Nicola Biondi alleging that 6 deputy McGee failed to “take a report” after Ms. Biondi submitted an allegation that her 7 daughter had been raped. Id. And while deputy McGee initially told a detective that he took a 8 statement but was not sure that he had written a report, McGee later told the detective that he 9 was not sure if he had taken a statement and did not take a report because the incident happened 10 in another County. Id. Captain Bales concluded that “[t]he issue of not filing a report is only 11 one concern. Another is the appearance of ‘changing his story’ and the apparent loss of the 12 written statement.” Id.
13 The Court concludes that it may consider this evidence at summary judgment. First, 14 Plaintiffs suggest that the memorandum is not hearsay because it is being used not to prove the 15 truth of the matter asserted, but to show the effect on the listener: that Snohomish County knew 16 about allegations of wrongdoing long before the incident with Mr. Dold. See L.A. News Serv. v. 17 CBS Broad., Inc., 305 F.3d 924, 935 (9th Cir. 2002) (“Out-of-court declarations introduced to 18 show the effect on the listener are not hearsay.”); Dkt. # 145 at 11 n.14. But even if the 19 document itself is inadmissible hearsay, the Court focuses on the admissibility of the document’s 20 contents, not its form. Fraser, 342 F.3d at 1036. This information could be presented in an 21 admissible form at trial through the testimony of Captain Bales (or the detective tasked with 22 investigation). The memorandum contains conclusions within the personal knowledge of
23 Captain Bales (e.g., that deputy McGee apparently submitted different versions of his story). See 24 id. (“The contents of the diary are mere recitations of events within Fraser’s personal knowledge 1 and, depending on the circumstances, could be admitted into evidence at trial in a variety of 2 ways. Fraser could testify to all the relevant portions of the diary from her personal 3 knowledge.”); see also id. (listing other ways a diary could be admitted at trial). To be sure, the
4 Bales memorandum only requests an investigation and does not make a final determination of 5 wrongdoing. But Captain Bales preliminarily concluded, based on the evidence presented to 6 him, that deputy McGee erred by failing to file a report and by changing his story. Viewing the 7 evidence and reasonable inferences therefrom in the light most favorable to Plaintiffs, a 8 reasonable jury could draw from this that, absent a subsequent report clearing deputy McGee of 9 wrongdoing, it would have been negligent to retain deputy McGee. 10 Similarly, some of the content of the memorandum issued by Jeffrey L. Miller may be 11 presented in an admissible form at trial. Dkt. # 59 at 9. Even if the memorandum itself is 12 inadmissible, and even if the memorandum’s statements about what Jeffrey Miller heard would
13 be hearsay, Jeffrey Miller made several conclusions within his personal knowledge (e.g., that 14 deputy McGee’s “failure to report a rape of a child” “led to complications for prosecution who 15 had to drop charges against the suspect,” and that there were “questions about Deputy McGee’s 16 honesty”). Id. He could testify directly to those conclusions. Fraser, 342 F.3d at 1036. Again, 17 a reasonable jury could conclude that, given the seriousness of the allegations, the County was 18 negligent in retaining McGee absent a subsequent report clearing deputy McGee of wrongdoing. 19 The County did not raise any specific evidentiary objection to documents establishing 20 facts about the Adam Colliers incident. See Dkt. # 97 at 14–15. In any event, deputy McGee 21 confirmed many of the critical facts about what happened during that incident, and those 22 statements are admissible as statements of a party-opponent. Fed. R. Evid. 801(d)(2). And Dr.
23 Harmening could rely on evidence that “experts in the particular field would reasonably rely on 24 . . . in forming an opinion on the subject,” even if that evidence is not otherwise admissible. Fed. 1 R. Evid. 703. The Colliers incident bears many similarities to the incident at issue here. If a jury 2 concludes that the deputies used excessive force against Mr. Dold, a reasonable jury could also 3 conclude that deputy McGee used excessive force or behaved inappropriately in the Colliers
4 incident. And from this, a reasonable jury could conclude that the County was negligent in 5 retaining deputy McGee. 6 B. Motion for Reconsideration of the Warrantless Entry Claim 7 Plaintiffs ask the Court to reconsider its decision on the warrantless entry claim. Dkt. 8 # 141. The Court previously concluded that the deputies were entitled to qualified immunity: 9 Even if the deputies’ conduct violated the Fourth Amendment, it was not clearly established that 10 warrantless entry under these circumstances would be unconstitutional. Dkt. # 135 at 11–26. 11 The Court denies Plaintiffs’ motion for reconsideration. 12 Plaintiffs’ motion primarily contends that the Court’s previous decision ignored the
13 “imminence” requirement embedded in the exigent circumstances and emergency aid exceptions 14 to the warrant requirement. See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) 15 (“[L]aw enforcement officers may enter a home without a warrant to render emergency 16 assistance to an injured occupant or to protect an occupant from imminent injury.” (emphasis 17 added)); Bonivert v. City of Clarkston, 883 F.3d 865, 877 (9th Cir. 2018) (“[A]ll of our decisions 18 involving a police response to reports of domestic violence have required an objectively 19 reasonable basis for believing that an actual or imminent injury was unfolding in the place to be 20 entered.”). 21 The Court agrees with Plaintiffs that warrantless entry is justified by the exigent 22 circumstances and emergency aid exceptions only when there is an imminent or immediate threat
23 to a person’s safety or wellbeing. The Court also agrees that this requirement was clearly 24 established in law when the deputies entered the home on March 21, 2017. 1 But as the Court understands Supreme Court and Ninth Circuit case law, this is not 2 enough. The Supreme Court has “repeatedly told courts . . . not to define clearly established law 3 at a high level of generality.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (quoting
4 Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). “The dispositive question is ‘whether the 5 violative nature of particular conduct is clearly established.’” Id. (quoting al-Kidd, 563 U.S. at 6 742). This inquiry “must be undertaken in light of the specific context of the case, not as a broad 7 general proposition.” Id. (citation and quotation marks omitted). And “[s]pecificity is especially 8 important in the Fourth Amendment context, where . . . it is sometimes difficult for an officer to 9 determine how the relevant legal doctrine . . . will apply to the factual situation the officer 10 confronts.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (quoting Mullenix, 11 577 U.S. at 12) (second alteration in original). Accordingly, Plaintiffs “must identify a case that 12 put [the deputies] on notice that [their] specific conduct was unlawful.” Id. (emphasis added).
13 The Ninth Circuit has confirmed that “[i]n recent years, the Court has tightened the 14 inquiry to focus closely on an analysis of existing precedent.” Morales v. Fry, 873 F.3d 817, 823 15 (9th Cir. 2017). While the law “‘do[es] not require a case directly on point . . . existing 16 precedent must have placed the statutory or constitutional question beyond debate,’ such that 17 ‘every’ reasonable official—not just ‘a’ reasonable official—would have understood that he was 18 violating a clearly established right.” Id. (quoting al-Kidd, 563 U.S. at 741). 19 In light of this case law, the Court believes that the proper inquiry is not whether an 20 imminence requirement was clearly established as of March 2017. Rather, the Court believes 21 that the proper inquiry is whether—as of March 21, 2017—it was clearly established that the 22 particular circumstances confronted by the officers would not constitute a sufficiently imminent
23 threat to justify warrantless entry. This is because the inquiry “must be undertaken in light of the 24 specific context of the case, not as a broad general proposition,” Mullenix, 577 U.S. at 12 1 (citation omitted), so as to provide an officer with guidance about “how the relevant legal 2 doctrine . . . will apply to the factual situation the officer confronts,” Rivas-Villegas, 142 S. Ct. at 3 8 (citation omitted).
4 The Court reluctantly concludes that no case decided before the incident at issue put “any 5 reasonable official” on notice that warrantless entry under these circumstances would violate the 6 Fourth Amendment. City & Cnty. Of San Francisco, Calif. V. Sheehan, 575 U.S. 600, 611 7 (2015) (emphasis added) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014)). The 8 deputies were dispatched to handle a “physical domestic” dispute. Dkt. ## 64 at 32; 76 at 29. 9 When they arrived, Mr. Dold apparently confirmed to the deputies that there had been a physical 10 altercation with Ms. Duncan. The victim, Ms. Duncan, was still in the house. Neither deputy 11 meaningfully communicated with Ms. Duncan.4 Deputy McGee—the deputy who ultimately 12 breached the threshold of the home—could not see Ms. Duncan. Dkt. # 63 at 7. In recognition 13 of the “combustible nature of domestic disputes,” courts have “accorded great latitude to an 14
15 4 Plaintiffs suggest that the deputies could have called Ms. Duncan on her cell phone if they wanted to talk to her. Dkt. # 141 at 8–9. But the Ninth Circuit rejected a similar argument in United 16 States v. Brooks, 367 F.3d 1128 (9th Cir. 2004): Brooks argues that Perez, rather than enter the hotel room without consent, could have asked Bengis to join him in the hallway so that he might there assess the safety risks 17 involved. Brooks contends that such a course of action would have minimized the need for the additional intrusion of the warrantless entry. We reject this argument. The 18 Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” Vernonia Sch. Dist. 47J v. 19 Acton, 515 U.S. 646, 663 (1995) (citing Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 629 n.9 (1989) (collecting cases for this proposition)). As for Brooks’s 20 argument that police should have been satisfied by interviewing Bengis in the hallway, such a method might have been attempted, but was not constitutionally required. A 21 hallway interview would not necessarily have been effective to protect Bengis in this context because it would not have addressed sufficiently the exigency with which Perez 22 was confronted. Considering the tendency of victims of domestic abuse to be less than forthcoming about the harms to which they were or will likely be exposed at the hands of an aggressor who remains on the scene, Perez was entitled to search inside the hotel 23 room, which in the total circumstances was an objectively reasonable way to address the exigency. 24 367 F.3d at 1135–36. 1 officer’s belief that warrantless entry was justified by exigent circumstances when the officer had 2 substantial reason to believe that one of the parties to the dispute was in danger.” United States 3 v. Brooks, 367 F.3d 1128, 1136 (9th Cir. 2004) (quoting Tierney v. Davidson, 133 F.3d 189, 197
4 (2d Cir. 1998)). Under these circumstances, the Court cannot say that “any reasonable official” 5 would understand warrantless entry to be unconstitutional. Sheehan, 575 U.S. at 611 (citation 6 omitted). 7 To be sure, Plaintiffs correctly note that, viewing the facts in the light most favorable to 8 them, the deputies encountered a calm scene without signs of a recent struggle. This cuts against 9 the deputies’ argument that there was an imminent need to enter the home. But even so, an 10 officer could (erroneously) conclude that the situation confronted—in which a domestic violence 11 victim was still in the home and the deputes could not directly confirm that she was safe— 12 qualified as an imminent threat under existing case law that would justify warrantless entry under
13 the exigency or emergency aid exceptions. 14 In their motion, Plaintiffs cite a number of cases to support their “clearly established” 15 analysis, but the Court finds each distinguishable in some way. For example, in United States v. 16 Harris, 642 F. App’x 713 (9th Cir. 2016),5 the alleged victim “answered the door and was within 17 the sight of the police” and was “unharmed and displayed no signs of being in distress.” Id. at 18 715. By contrast, while deputy McCoy apparently saw Ms. Duncan through the window, deputy 19
20 5 Some of the cases cited by Plaintiffs are unpublished. The Ninth Circuit has stated that, when considering whether law has been clearly established, courts “may look at unpublished decisions and the 21 law of other circuits, in addition to Ninth Circuit precedent.” Jessop v. City of Fresno, 936 F.3d 937, 941 (9th Cir. 2019) (quoting Prison Legal News v. Lehman, 397 F.3d 692, 702 (9th Cir. 2005)); Bahrampour 22 v. Lampert, 356 F.3d 969, 977 (9th Cir. 2004) (ODC argues before this Court that unpublished decisions can be considered in determining whether the law was clearly established. We agree.”). But the Ninth Circuit has also cautioned that “it will be a rare instance in which, absent any published opinions on point 23 or overwhelming obviousness of illegality, we can conclude that the law was clearly established on the basis of unpublished decisions only.” Hines v. Youseff, 914 F.3d 1218, 1230 (9th Cir. 2019) (quoting 24 Sorrels v. McKee, 290 F.3d 965, 971 (9th Cir. 2002)). 1 McGee—who was the first deputy to breach the threshold of the house—could not. See Dkt. 2 # 63 at 7 (Plaintiffs stating that “[a]t that point, McGee could not see Ms. Duncan”). Even 3 ignoring this distinction, a majority of the Harris panel stated (in Judge Wallace’s dissent) or
4 assumed (in Judge Berzon’s concurrence) that the “warrantless initial entry and first protective 5 sweep of the apartment were justified under the exigency or emergency exception.” See id. at 6 718 (Berzon, J., concurring); id. at 719 (Wallace, J., dissenting) (“Judge Berzon assumes and I 7 would hold that the initial entry and protective sweep of the apartment met the requirements of 8 the exigency exception to the Fourth Amendment.”). And in United States v. Struckman, 603 9 F.3d 731 (9th Cir. 2010), another case cited by Plaintiffs, there was no report of domestic 10 violence or any mention of a potential victim close by. 11 Plaintiffs’ strongest case is Maric v. Alvarado, 748 F. App’x 747 (9th Cir. 2018). In 12 Maric, as here, officers responded to a potential domestic violence call, but the alleged victims
13 remained in the house. But in Maric, it was “apparent to the officers that Mary and the children 14 were unharmed” because the officers could see them. Id. at 748. And more importantly, Maric 15 was decided in 2018, after the deputies’ warrantless entry here. See, e.g., Nicholson v. City of 16 Los Angeles, 935 F.3d 685, 690 (9th Cir. 2019) (requiring “that the right was clearly established 17 at the time of the alleged misconduct” (emphasis added) (citation omitted)); Brosseau v. Haugen, 18 543 U.S. 194, 200 n.4 (2004) (per curiam) (“The parties point us to a number of other cases in 19 this vein that postdate the conduct in question. . . . These decisions, of course, could not have 20 given fair notice to Brosseau and are of no use in the clearly established inquiry.”). Nor can 21 Maric’s “clearly established” conclusion apply retroactively to cover the conduct here. See 22 Sampson v. Cnty. Of Los Angeles by & through Los Angeles Cnty. Dep’t of Child. & Fam. Servs.,
23 974 F.3d 1012, 1028 (9th Cir. 2020) (Hurwitz, J., concurring in part and dissenting in part) (“The 24 1 ‘clearly established’ inquiry focuses on the judicial opinions extant at the time of the conduct at 2 issue, not on how subsequent cases characterize pre-existing law.”). 3 In recent years, qualified immunity has been roundly criticized. See, e.g., id. at 1025
4 (Hurwitz, J., concurring in part and dissenting in part) (calling qualified immunity a “judge-made 5 doctrine . . . found nowhere in the text of § 1983”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 6 (2017) (Thomas, J., concurring) (“In an appropriate case, we should reconsider our qualified 7 immunity jurisprudence.”); Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., 8 dissenting) (arguing that the Supreme Court’s qualified immunity decision “tells officers that 9 they can shoot first and think later, and it tells the public that palpably unreasonable conduct will 10 go unpunished”); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. 11 Rev. 1797 (2018); William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018). 12 Still, this Court is bound to apply binding precedent as it understands it. And whatever the
13 wisdom of qualified immunity may be, the Supreme Court has made clear that the doctrine 14 creates an “exacting standard,” Sheehan, 575 U.S. at 611 (internal quotation marks and citation 15 omitted), designed to “protect[] ‘all but the plainly incompetent or those who knowingly violate 16 the law.’” al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 17 Under these rules, and in light of case law emphasizing the “great latitude” afforded to officers 18 responding to domestic violence, Brooks, 367 F.3d at 1136, the Court reluctantly concludes that 19 as of March 2017, the law was not clearly established that the deputies’ entry would be 20 unconstitutional in these circumstances. 21 C. Motion to Bifurcate 22 Defendants submitted a “Renewed Motion to Bifurcate Claims Against Defendants
23 Bryson McGee and Cody McCoy.” Dkt. # 139. The Court denies the motion. 24 l Il 2 CONCLUSION 3 For the reasons above, the Court rules as follows: 4 (1) Snohomish County’s motion for reconsideration on the negligent retention claim (Dkt. # 137) is DENIED.° 5 (2) Plaintiffs’ motion for reconsideration on their warrantless entry claim (Dkt. # 141) is 6 DENIED. 7 (3) Defendants’ motion to bifurcate (Dkt. # 139) is DENIED. 8 Dated this 7th day of February, 2023. 9 10 Cok. Chur 11 John H. Chun United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 ® As stated above, however, the County’s request to strike Dr. Harmening’s supplemental 24 declaration is granted in part and denied in part.