Sims v. City of Seattle

Opinion

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5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 11 ANTHONY SIMS, CASE NO. 2:22-cv-00483-TL 12 Plaintiff, ORDER ON MOTIONS FOR v. SUMMARY JUDGMENT 13 CITY OF SEATTLE, a municipal 14 corporation, and ROBERT BROWN, GREGORY NASH, GARRETT 15 FOLLETTE, and BRADLEY RICHARDSON, Officers of the Seattle 16 Police Department, 17 Defendants. 18

19 This is a civil rights action under 42 U.S.C. § 1983 for damages, declaratory relief, and 20 injunctive relief stemming from an interaction between a Seattle resident and Seattle police 21 officers. This matter is before the Court on Defendants’ Motion for Summary Judgment (Dkt. 22 No. 28) and Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 40). Having considered 23 the Parties’ briefing and the relevant record, the Court finds oral argument unnecessary, see LCR 24 7(b)(4), and GRANTS IN PART and DENIES IN PART the motions. 2 The following facts are undisputed unless otherwise noted. 3 A. Events Prior to May 17, 2020 4 1. Defendant City’s Training and Policies for High-Risk Vehicle Stops

5 Defendant City of Seattle (the “City”) does not define a “high-risk vehicle stop” 6 (“HRVS”) anywhere in its policies. Dkt. No. 42-23 at 6 (81:12–14) (Davisson 30(b)(6) 7 deposition); see also Dkt. No. 54-2 (same). Defendant City provides guidelines and training 8 related to a HRVS and when to conduct it. See Dkt. No. 42-8 (training presentation on HRVS); 9 Dkt. No. 42-23 at 6 (81:22–82:2). Detective Leroy Outlaw of the Seattle Police Department 10 (“SPD”) authored the HRVS training presentation, according to which all Seattle police officers 11 have been trained since 2019. Dkt. No. 42-21 at 12 (89:1–92:11) (Outlaw 30(b)(6) deposition); 12 see also Dkt. No. 54-1 (same). 13 In the presentation, a HRVS is defined as “any stop which poses a significant risk to the 14 officer(s) when dealing with the occupant(s) of a motor vehicle” or “any stop of a vehicle with

15 subjects that are known, or have a high probability, of being armed and/or dangerous.” Dkt. 16 No. 42-8 at 7. The presentation depicts a HRVS where multiple officers are present and some 17 have drawn their firearms.1 Id. at 13, 15. Officers are trained to initiate a HRVS “if you have a 18 situation where you can articulate that you think you’re dealing with a possible higher risk . . . .” 19 Dkt. No. 42-21 at 13 (103:21–23); id. at 4 (51:7–14) (“[I]f they deem [HRVS] to be a safer 20 practice and they deem it necessary, then they need to articulate why they did it.”). 21 22

23 1 Defendant City clarifies that a different photograph (Dkt. No. 42-8 at 6) depicts techniques that were changed and does not depict the techniques as taught as of May 17, 2020 (although the speaker notes say, “Topic intro showing 24 our current technique.”). Dkt. No. 54-1 at 8 (92:21–93:13, 95:11–25). 1 With respect to the use of firearms during a HRVS at the time of the incident, Defendant 2 City trained its officers to have their firearms out but only pointing them directly at an individual 3 if they deem it necessary.2 Dkt. No. 42-21 at 5–6 (56:8–57:13). During a HRVS, a firearm may 4 be pointed or used in a “low ready” position. Dkt. No. 42-23 at 5 (79:22–80:3). Holding a

5 firearm in a “low ready” position means that the officer can see the hands of the person towards 6 which the firearm is pointed. Id. at 5 (77:12–16), 7 (88:3–8). It also means that the firearm is 7 pointed away from the person such that were it to discharge, it would not hit the person. Dkt. 8 No. 54-1 at 4 (65:25–66:10); Dkt. No. 54-2 at 6 (76:10–15). Defendant City admits that an 9 observer would not be able to tell whether a firearm is in the “low ready” position or simply 10 pointed at someone. Dkt. No. 42-23 at 8 (91:8–12). Officers are taught to assume the “low 11 ready” position at the rear of their vehicles. Dkt. No. 54-1 at 8 (95:21–22). Officers are not 12 required to report when they use a firearm in the “low ready” position because it is not 13 considered a use of force. Dkt. No. 42-23 at 3 (67:16–68:3). 14 With respect to the search of vehicles during a HRVS, Defendant City’s Rule 30(b)(6)

15 deponent testifies that officers are trained to perform a “sweep” of the vehicle where at least 16 three officers look at the outside of the car and “all of the open spaces they can see” for people or 17 hazards. Dkt. No. 42-21 at 8–9 (71:24–73:2). The opening of a closed trunk or other locked area 18 is only appropriate where “additional factors” are present. Dkt. No. 54-2 at 7 (93:10–12); see 19 also id. (94:7–9) (“[Q:] If you needed the key to open the trunk, then that would not be 20 permissible as part of a sweep or a clear? A: That’s correct.”); Dkt. No. 54-1 at 5 (73:19–23) 21 (can open locked area if “reason to believe” there is an “immediate hazard” or a person there); 22 Dkt. No. 42-8 at 21 (citing State of Washington v. Snapp, a Washington Supreme Court case, as 23 2 Defendant City’s testimony is conflicting as to whether it considers the display of a firearm to be a form of or part 24 of de-escalation. Compare Dkt. No. 42-21 at 14 (116:4–7) with Dkt. No. 54-2 at 3 (28:13–17, 23–25). 1 holding that “locked area of the vehicle not accessible by the occupants of the vehicle, cannot be 2 searched during a clearing or safety sweep unless there is reason to believe there is a person or 3 immediate threat in that area”). 4 2. Plaintiff’s Car Purchase

5 On January 8, 2020, Plaintiff Anthony Sims purchased a 2008 Ford Fusion. Dkt. 6 No. 56-1 at 2 (sale report). At that time, the vehicle was assigned license plate number 7 BEX1947. Id. at 12 (2019 registration). The next day, the seller reported the sale to the 8 Washington State Department of Licensing. Id. at 2. Plaintiff did not apply to register the vehicle 9 until June 1, 2020. Dkt. No. 56-1 at 5. 10 B. Events of May 17, 2020 11 1. Defendant Brown Follows Plaintiff 12 On the morning of May 17, 2020, Plaintiff was working as a delivery driver. Dkt. No. 41 13 ¶ 2 (Sims declaration). At about 5:07 a.m., Plaintiff was responding to a delivery order requiring 14 that he pick up items from a 7-Eleven at the intersection of First Avenue and Cherry Street in

15 downtown Seattle. Id. ¶ 3. At the same time, Defendant SPD Acting Lieutenant Robert Brown 16 was on patrol in downtown Seattle when he observed “a white Ford Fusion sedan bearing 17 Washington plate BEX1947”—Plaintiff’s vehicle. Dkt. No. 42-6 at 2 (field contact report); Dkt. 18 No. 35-1 at 12 (same); Dkt. No. 42-18 at 8 (44:14–24) (Brown deposition); Dkt. No. 29 ¶¶ 3–4 19 (Brown declaration). The light conditions were “twilight,” and it appeared to Defendant Brown 20 that the car did not have its headlights on. Dkt. No. 42-18 at 9 (45:8–14, 46:17–47:9); Dkt. 21 No. 29 ¶ 4. At 5:07:40 a.m., he performed “a standard license plate check” by entering the plate 22 number into a mobile data terminal (MDT), a touch screen device inside his vehicle, while he 23 was driving. Dkt. No. 42-18 at 9 (47:10–22, 48:1–9), 10 (50:5–14, 52:6–7), 11 (55:11–14), 12

24 (59:4–6); Dkt. No. 29 ¶¶ 5–6. The MDT allows law enforcement officers in the field to access 1 criminal justice information from databases including the Washington Crime Information Center 2 (“WACIC”) and the Department of Licensing (“DOL”). Dkt. No. 42-18 at 10–11 (52:15–53:1); 3 Dkt. No. 29 ¶¶ 7–8. 4 Defendant Brown received several MDT search results. Dkt. No. 29 ¶ 9; Dkt. No. 42-18

5 at 11 (53:24–54:6); Dkt. No. 33-1 (MDT results); Dkt. No. 42-16 (same). While driving, 6 Defendant Brown accessed the response page for two of the results. Dkt. No. 42-18 at 11 (53:24– 7 54:6, 55:11–14); Dkt. No. 42-21 at 3 (33:22–34:5). He first viewed the search result for license 8 plate BEX1997. Dkt. No. 42-18 at 11 (55:15–21, 56:3–16), 12 (57:12–18). The plate was marked 9 as a “near hit” to the plate of a stolen vehicle. Dkt. No. 42-16 at 4. Defendant Brown then viewed 10 the search result for license plate BEX1974. Dkt. No. 42-18 at 12 (57:19–58:22). This plate was 11 also marked as a “near hit” to the plate of a stolen vehicle. Dkt. No. 42-16 at 2. The MDT results 12 further stated that the vehicle had been sold four months prior and that there was no record of 13 license plate BEX1947. Dkt. No. 33-1 at 3–4. Defendant Brown states that he did not notice the 14 licensing issues and was only focused on the WACIC “near hit” for stolen license plate

15 BEX1974. Dkt. No. 29 ¶¶ 30–34. Defendant Brown also states that no other search results were 16 relevant to any action that he took in this matter. Dkt. No. 42-18 at 11 (54:17–19). 17 At about 5:08:19 a.m., Plaintiff activated his right-turn signal and turned right onto First 18 Avenue by moving into the leftmost lane. Dkt. No. 34-1, Ex. A, at 0:06–0:12 (Brown in-car 19 video); see generally Dkt. No. 42-1 (same). Plaintiff continued for about two blocks on First 20 Avenue before activating the right-turn signal at about 5:08:43 a.m. and pulling over to the right 21 side of the road. Dkt. No. 34-1 at 0:12–0:47. Almost simultaneously, at 5:08:46 a.m., Defendant 22 Brown made a radio call informing police dispatch that he was following a possible stolen 23 vehicle. Dkt. No. 29 ¶ 12; Dkt. No. 35-1 at 7 (CAD log); Dkt. No. 42-7 (same); Dkt. No. 42-5 at

24 0:57–1:13 (radio audio). This call triggered a response from other SPD officers, including 1 Defendants Garrett Follette, Gregory Nash, and Bradley Richardson, who arrived between 2 5:10:32 a.m. and 5:11:05 a.m.3 Dkt. No. 35-1 at 3; Dkt. No. 30 ¶ 7 (Follette declaration); Dkt. 3 No. 31 ¶ 11 (Nash declaration); Dkt. No. 32 ¶ 11 (Richardson declaration). In total, at least eight 4 officers ultimately responded to the scene, including Defendant Brown. Dkt. No. 42-18 at 24

5 (109:25–110:9). Defendant Brown was the highest-ranking officer on scene. Id. (110:12–14). 6 2. Defendant Brown Stops Plaintiff 7 At about 5:09:01 a.m., Plaintiff parked his vehicle and activated its hazard lights. Dkt. 8 No. 34-1 at 1 (0:48–0:53). Plaintiff opened the driver’s door, exited the vehicle, and started 9 walking toward the 7-Eleven. Id. at 0:53–1:00. When Plaintiff exited the vehicle, Defendant 10 Brown could see for the first time that Plaintiff was a Black male. Dkt. No. 42-18 at 22 (103:21– 11 24). Defendant Brown activated his emergency lights and told Plaintiff to “wait at your vehicle, 12 okay?” using a loudspeaker. Dkt. No. 34-1 at 1 (1:00–1:09). Plaintiff stopped, walked back to his 13 car, sat down in the driver’s seat, and shut the door. Id. at 1:10–1:28. At about 5:09:36 a.m., 14 Defendant Brown stated on radio that the driver “is compliant.” Id. at 1:23–1:26. At some point

15 during this period, Defendant Brown drew his firearm. Dkt. No. 42-18 at 22 (104:14–105:4). 16 Then, Defendant Brown again used his loudspeaker to talk to Plaintiff: “Your plate comes 17 back as a stolen vehicle,” and “I need you to step out and talk to us, okay?” Dkt. No. 34-1 at 1 18 (1:35–1:43). Plaintiff immediately opened the front door and turned his body while still seated 19 such that he was facing Defendant Brown. Id. at 1:43–1:48. Simultaneous to this exchange, 20 Defendant Nash walked to the rear of his patrol car and stood with his firearm drawn and angled 21 toward Plaintiff. Dkt. No. 34-1 at 3 (0:57–1:04) (Nash body-worn video); Dkt. No. 42-3 (same). 22

23 3 No arrival time was recorded for Defendant Nash. Also on the scene were Officer Reed (who arrived with Defendant Nash), Officers Smith and Farkas (who arrived together at 5:10:32 a.m.), Officer Richardson (who 24 arrived at 5:11:23 a.m.) and Officer Moore (who arrived at 5:13:11 a.m.). Dkt. No. 35-1 at 3. 1 At about 5:10:03 a.m., Defendant Brown began to speak again to Plaintiff about the 2 situation and to give him a series of directives. Dkt. No. 34-1 at 1 (1:49–3:14). He told Plaintiff 3 to stand up and hold up the back of his jacket so that he could view Plaintiff’s waistband. Id. at 4 2:00–2:08. Plaintiff complied, and no weapon was visible. Id. at 2:08–2:10; Dkt. No. 42-18 at 24

5 (111:25–112:14). He told Plaintiff to turn around, then to turn around again. Dkt. No. 34-1 at 1 6 (2:10–2:16). Plaintiff complied, completing a full-circle turn. Id. at 2:10–2:22. Defendant Brown 7 told Plaintiff to walk backwards to the sound of his voice; Plaintiff complied with his hands 8 raised, while also talking to Defendant Brown about “the vehicle being his vehicle.” Id. at 2:21– 9 2:55; Dkt. No. 42-18 at 121:7–14.4 During this exchange, Defendant Brown told Plaintiff, “I 10 have no doubt that’s probably your vehicle, and this may just be a misunderstanding of plates.” 11 Dkt. No. 34-1 at 1 (2:33–2:36). 12 After Plaintiff completed the backwards walk, Defendant Brown told Plaintiff to come 13 toward him so that he could talk to Plaintiff and make sure he has no weapons. Id. at 2:55–2:58. 14 To that point in time, Defendant Nash maintained his position with his firearm drawn, and

15 “multiple officers” had their firearms drawn, including Defendant Brown and an officer next to 16 Defendant Nash who stood in a similar position. Dkt. No. 34-1 at 3 (1:04–2:38); Dkt. No. 42-4 at 17 1:05–1:48 (Farkas body-worn video); Dkt. No. 42-18 at 26 (122:13–19). When Plaintiff turned 18 around to face Defendant Brown and walked toward him as instructed, Defendant Nash lowered 19 his firearm so that it pointed to the ground. Dkt. No. 34-1 at 3 (2:38–2:40); Dkt. No. 31 ¶ 18. 20 Officer Farkas then performed a pat-down frisk of Plaintiff’s clothing. Dkt. No. 34-1 at 3 (2:40– 21 2:52); id. at 2 (1:32–1:44); Dkt. No. 42-4 at 1:50–2:02. 22 23

24 4 Defendant Nash describes Plaintiff as “talking back.” Dkt. No. 42-19 at 62:2–3 (Nash deposition). 1 At about 5:12:10 a.m., Defendant Brown asked dispatch to verify that the license plate 2 was reported stolen. Dkt. No. 34-1 at 1 (3:55–4:00). After confirming the plate number, dispatch 3 stated at about 5:12:34 a.m. that Plaintiff’s license plate came back “clear” and noted a “near hit” 4 in Snohomish County. Id. at 4:02–4:26. When Defendant Brown then asked for clarification,

5 dispatch stated at about 5:12:58 a.m. that “the actual stolen plate out of Snohomish is BEX1997,” 6 to which Defendant Brown replied, “Copy that, understood, thank you.” Id. at 4:27–4:50. 7 At about 5:13:08 a.m., Defendants Follette, Nash, and Richardson approached Plaintiff’s 8 vehicle with firearms drawn and faced the windows.5 Dkt. No. 34-1 at 1 (4:55–5:21). Upon 9 reaching the vehicle, Defendant Nash stated that the “back is clear.” Dkt. No. 34-1 at 3 (4:18– 10 4:20). Moments later, Defendant Nash observed that the “car’s still running” (id. at 4:22–4:24), 11 and Defendant Richardson asked, “Do you wanna check the trunk real quick?” (id. at 4:25–4:27). 12 Defendant Richardson opened the driver’s door and removed the keys from the ignition. Id. at 13 5:21–5:28. He then used the keys to open the trunk. Id. at 5:28–5:37. During this time, Plaintiff 14 continued to speak to Defendant Brown about the situation. Id. at 4:51–6:08. When Defendant

15 Nash returned to his car, he commented to Officer Reed, “Should we give him a parking ticket? 16 I’m so confused on what’s going on.” Dkt. No. 34-1 at 3 (5:54–6:03). 17 At about 5:14:22 a.m., Defendant Brown told Plaintiff that he was “free to go” and “not 18 detained.” Id. at 6:09–6:11. In his declaration, Defendant Brown states that he “did not see a 19 deliberate act that directly indicated that [Plaintiff] was dangerous” at any point during the stop. 20 21 22 5 Defendants Follette, Nash, and Richardson supply virtually identical declarations stating that from their “training and experience,” they believe that occupied stolen vehicles are often associated with other crimes, including violent 23 and weapon offenses, thus presenting safety concerns. Dkt. No. 30 ¶¶ 5–6; Dkt. No. 31 ¶¶ 6–10; Dkt. No. 32 ¶¶ 6– 10. Further, Defendants Nash and Richardson claim that at the time, they were “not aware” of the report from 24 dispatch that Plaintiff’s vehicle was not stolen. Dkt. No. 31 ¶ 24; Dkt. No. 32 ¶¶ 19–20 1 Dkt. No. 42-18 at 102:19–24. Defendants agree that the interaction was a HRVS. Dkt. No. 42-18 2 at 107:118–120; Dkt. No. 42-19 at 54:7–8; Dkt. No. 42-20 at 108:3–6; Dkt. No. 42-12 at 2. 3 C. Events Following May 17, 2020 4 1. The City’s Investigation and Response

5 On May 18, 2020, Plaintiff filed a complaint with the City’s Office of Police 6 Accountability (“OPA”). Dkt. No. 36-1 at 20–21 (OPA complaint); Dkt. No. 42-9 (same). OPA 7 subsequently conducted an investigation. Dkt. No. 36-1 at 14–18 (director’s certification memo); 8 Dkt. No. 42-10 (same); Dkt. No. 42-11 (report of investigation). Sergeant Derek Ristau was 9 assigned to investigate the complaint. Id. at 2. 10 OPA addressed three allegations raised by Plaintiff’s complaint: (1) Defendant Brown 11 lied when he claimed that Plaintiff’s vehicle was stolen; (2) Defendant Brown improperly 12 stopped Plaintiff because of his race; and (3) officers improperly pointed their firearms at 13 Plaintiff. Dkt. No. 36-1 at 15. Sgt. Ristau reviewed records of the incident, including CAD logs, 14 the field contact report, the license plate and its “near hit,” and sunrise data. Dkt. No. 42-11 at 2–

15 4. He reviewed dispatch audio and several videos, including body-worn camera video and in-car 16 video. Id. at 4–9. And he interviewed both Plaintiff and Defendant Brown; Plaintiff’s interview 17 was audio-recorded. Id. at 9–11; Dkt. No. 36-1 at 16. 18 In September 2020, while the investigation was still ongoing, OPA legal advisor John 19 Berry advised Sgt. Ristau that he believed the license plate check and seizure of keys were 20 lawful, but that “it looks like the courts don’t think a mistaken license plate permits a terry [sic] 21 stop” and that he was “having trouble justifying” the opening of the trunk. Dkt. No. 42-14 at 4–6 22 (email correspondence). Defendant City states that new allegations could not be added to the 23 investigation at that point. Dkt. No. 53 at 24 (citing Dkt. No. 54-3 at 5 (61:9–19, 62:2–10)).

24 1 In a memo dated November 13, 2020, OPA did not sustain any of the allegations. Dkt. 2 No. 36-1 at 14–18. As to the first allegation, OPA found that Defendant Brown “genuinely 3 believed” that Plaintiff’s license plate matched that of a stolen vehicle, and OPA concluded that 4 the allegation of dishonesty was unfounded. Dkt. No. 36-1 at 17. As to the second allegation,

5 OPA found that “the stop was effectuated because of the near identical plates,” not because of 6 Plaintiff’s race, and concluded that the allegation was unfounded. Id. at 17–18. Finally, as to the 7 third allegation, OPA found that the officers “technically did not use force under policy, let alone 8 improper or excessive force.” Id. at 18. However, OPA noted “[t]he more fundamental question” 9 of “whether the officers should have drawn their firearms in the first place.” Id. The agency 10 recommended that SPD “create a policy governing high-risk felony stops” and train officers with 11 “examples of stops where drawing firearms may not be necessary.” Id. 12 In a letter dated December 14, 2020, OPA Director Andrew Myerberg presented the 13 agency’s recommendation to SPD Chief Adrian Diaz. Dkt. No. 42-12 (OPA letter). In a letter 14 dated February 15, 2022, Chief Diaz declined to adopt the recommendation. Dkt. No. 42-13

15 (SPD letter). He stated that guidance on high-risk vehicle stops was “a training issue, not a policy 16 one,” and that SPD training on “display of a firearm when initiating a stop” was “consistent” 17 with policies and training approved by federal authorities and with training provided by the state. 18 Id. at 2. He stated that “SPD’s data” showed that the “overwhelming majority” of such incidents 19 were consistent with these policies and training. Id. He stated that SPD would stress “the 20 decision-making aspect” of such incidents and “the importance of strong and respectful 21 communication” following any interaction. Id. 22 2. Other Developments 23 In August 2020, Defendant Brown was promoted to the rank of Lieutenant and was still

24 at that rank as of January 2023. Dkt. No. 42-18 at 3 (18:17–19:7). In September 2022, Defendant 1 Brown also became Aide to the Chief of Patrol Operations and was still in that role at the 2 deposition. Id. (19:8–12). In his role as Aide, Defendant Brown sits on the CSCC SPD Advisory 3 Committee, where he helps to manage relations with the dispatch center and is the SPD point of 4 contact for the city-wide Law Enforcement Assisted Diversion (“LEAD”) program. Id. at 3–4

5 (20:19–21:11), 5 (27:1–28:7). He works directly for the chief of patrol operations and assists 6 with policy matters. Id. at 6–7 (35:17–37:18). 7 As part of this litigation, Plaintiff retained an expert in police practices, Russ Hicks, who 8 opines that the officers’ behavior in this matter was indicative of bias because they did not 9 pursue various investigative steps available to them and instead escalated the encounter with 10 Plaintiff. Dkt. No. 52 at ¶¶ 49–51 (Hicks declaration); see Dkt. Nos. 52-1 (Hicks qualifications), 11 52-2 (expert report), 52-3 (supplemental report). Plaintiff also received records of Defendant 12 Brown’s stops of civilians from 2019 to 2022, which he claims show that Defendant Brown 13 disproportionately stopped Black men and people of color during that period. See Dkt. No. 51 14 (Friedenberg declaration); Dkt. No. 51-2 (compilation of field contact reports).

16 Summary judgment is appropriate where “the movant shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 18 Civ. P. 56(a). At this stage, the Court does not make credibility determinations, nor does it weigh 19 the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); accord Munden v. 20 Stewart Title Guar. Co., 8 F.4th 1040, 1044 (9th Cir. 2021). The inquiry turns on “whether the 21 evidence presents a sufficient disagreement to require submission to a jury or whether it is so 22 one-sided that one party must prevail as a matter of law.” Id. at 251–52. A genuine triable issue 23 of material fact exists where “the evidence is such that a reasonable jury could return a verdict

24 for the nonmoving party.” Id. at 248; see also McSherry v. City of Long Beach, 584 F.3d 1129, 1 1135 (9th Cir. 2009) (explaining that this is the inquiry at the summary judgment stage, 2 “[s]tripped to its core”). Additionally, “all justifiable inferences” must be drawn in the non- 3 movant's favor, id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)), 4 “only in the sense that, where the facts specifically averred by [the non-moving] party contradict

5 facts specifically averred by the movant, the [summary judgment] motion must be denied.” 6 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). 7 To establish that a fact cannot be genuinely disputed, the movant can either cite the 8 record or show “that the materials cited do not establish the . . . presence of a genuine dispute, or 9 that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. 10 P. 56(c)(1). Once the movant has made such a showing, “its opponent must do more than simply 11 show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 12 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted); see also Liberty 13 Lobby, 477 U.S. at 252 (specifying that the non-movant “must show more than the mere 14 existence of a scintilla of evidence”); accord In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387

15 (9th Cir. 2010). The non-movant “bears the burden of production under [FRCP] 56 to ‘designate 16 specific facts showing that there is a genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 17 586 (2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). “[A]ny dispute about 18 the facts must be ‘genuine’ and not ‘blatantly contradicted by the record, so that no reasonable 19 jury could believe it.’” Tabares v. City of Huntington Beach, 988 F.3d 1119, 1124 (9th Cir. 20 2021) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The Court will enter summary 21 judgment “against a party who fails to make a showing sufficient to establish the existence of an 22 element essential to that party's case, and on which that party will bear the burden of proof at 23 trial.” Celotex, 477 U.S. at 322 (1986); see also Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d

24 1 794, 798, 805 (9th Cir. 2010), cert. denied, 563 U.S. 1008 (affirming grant of summary judgment 2 against appellant who had “failed to adduce any evidence or authority to support her claim”). 3 “[W]hen parties submit cross-motions for summary judgment, each motion must be 4 considered on its own merits.” Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249

5 F.3d 1132, 1136 (9th Cir. 2001) (citations and quotation omitted). The court rules on each 6 motion “on an individual and separate basis.” Tulalip Tribes of Wash. v. Washington, 783 F.3d 7 1151, 1156 (9th Cir. 2015) (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay 8 Kane, Fed. Prac. & Proc. § 2720 (3d ed. 1998)). However, it is not required that the court’s 9 discussion of the cross-motions be organized in separate sections, particularly where the central 10 legal issues are the same. See id. (holding the district court acted properly where it summarized 11 party’s arguments, cited authority referenced by the party, and cited exhibits to a declaration 12 submitted by the party). 14 Defendants move for summary judgment on all claims and assert qualified immunity for

15 all Defendant Officers.6 Dkt. No. 28; see also Dkt. No. 50 (Plaintiff’s response); Dkt. No. 55 16 (Defendants’ reply). Plaintiff cross-moves for summary judgment on all claims except his 17 Fourteenth Amendment claim. Dkt. No. 40; see also Dkt. No. 53 (Defendants’ response); Dkt. 18 No. 56 (Plaintiff’s reply). 19 A. Claims Against Individual Officers: Qualified Immunity 20 “Under the doctrine of qualified immunity, police officers are not liable under § 1983 21 ‘unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of 22 their conduct was “clearly established” at the time.’” Hopson v. Alexander, No. C21-16706, 2023 23 6 Defendant City is not entitled to qualified immunity. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1250 (9th 24 Cir. 2016). 1 WL 4038631, at *3 (9th Cir. June 16, 2023) (quoting District of Columbia v. Wesby, 183 S. Ct. 2 577, 589 (2018)). The plaintiff “bears the burden of showing that the right at issue was clearly 3 established.” Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011). A court may address the 4 prongs of the inquiry in any order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).

5 The clearly established law should not be defined “at a high level of generality.” White v. 6 Pauly, 580 U.S. 73, 79 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). It must 7 be defined “on the basis of the ‘specific context of the case.’” Emmons v. City of Escondido, 921 8 F.3d 1172, 1174 (9th Cir. 2019) (quoting Tolan v. Cotton, 572 U.S. 650, 657 (2014)). “Such 9 specificity is especially important in the Fourth Amendment context, where the Court has 10 recognized that ‘it is sometimes difficult for an officer to determine how the relevant legal 11 doctrine will apply to the factual situation the officer confronts.’” Mullenix v. Luna, 577 U.S. 7, 12 12 (2015) (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)). 13 “That is not to say that an official action is protected by qualified immunity unless the 14 very action in question has previously been held unlawful.” Russell v. Lumitap, 31 F.4th 729,

15 737 (9th Cir. 2022) (quoting Anderson v. Leighton, 483 U.S. 635, 540 (1987)). “Instead, a 16 ‘clearly established right is one that is sufficiently clear that every reasonable official would have 17 understood that what he is doing violates that right.’” Id. at 738 (quoting Horton by Horton v. 18 City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019)). “General statements of the law are not 19 inherently incapable of giving fair and clear warning to officers.” Id. (quoting Kisela v. Hughes, 20 138 S. Ct. 1148, 1153 (2018)). “There can be the rare obvious case, where the unlawfulness of 21 the officer’s conduct is sufficiently clear even though existing precedent does not address similar 22 concerns.” Id. (quoting City of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019)); see also 23 Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (holding that “no reasonable correctional officer could

24 have concluded” that their actions were constitutionally permissible); Hope v. Pelzer, 536 U.S. 1 730, 741 (2002) (“[A] general constitutional rule already identified in the decisional law may 2 apply with obvious clarity to the specific conduct in question . . . .” (quoting United States v. 3 Lanier, 520 U.S. 259, 271 (1997))). 4 Therefore, with respect to each claim where the material facts are not in genuine dispute,

5 the Court will first determine if a constitutional right was violated. If so, the Court will determine 6 whether the right was clearly established. 7 1. Basis of the Stop 8 In their motion, Defendants argue that Defendant Brown’s mistaken belief that Plaintiff’s 9 vehicle might be stolen did not invalidate the stop. See Dkt. No. 28 at 9–11. Alternatively, they 10 argue that circumstances that night established five additional and independent bases for a stop. 11 Id. at 11–14. In his cross-motion, Plaintiff argues that Defendant Brown lacked a proper basis for 12 the stop because any mistake was unreasonable and other bases for the stop were discovered in 13 hindsight. See Dkt. No. 40 at 12–16. 14 a. Definition of the Right

15 “The Fourth Amendment permits an officer to initiate a brief investigative traffic stop 16 when he has ‘a particularized and objective basis for suspecting the particular person stopped of 17 criminal activity.’” Kansas v. Glover, 140 S. Ct. 1183, 1187 (2020) (quoting United States v. 18 Cortez, 449 U.S. 411, 417–418 (1981)); see also Terry v. Ohio, 392 U.S. 1, 21 (1968) (“[I]n 19 justifying the particular intrusion the police officer must be able to point to specific and 20 articulable facts which, taken together with rational inferences from those facts, reasonably 21 warrant that intrusion.”). 22 “The Supreme Court has made clear that an officer’s subjective thoughts play no role in 23 the Fourth Amendment analysis.” United States v. Ramirez, 473 F.3d 1026, 1030 (9th Cir. 2007)

24 (citing Whren v. United States, 517 U.S. 806, 811–813 (1996)). “So long as the facts known to 1 the officer establish reasonable suspicion to justify an investigatory stop, the stop is lawful even 2 if the officer falsely cites as the basis for the stop a ground that is not supported by reasonable 3 suspicion.” United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016); accord 4 Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (“[The officer’s] subjective reason for making

5 the arrest need not be the criminal offense as to which the known facts provide probable 6 cause.”); Edgerly v. City and Cnty. of San Francisco, 599 F.3d 946, 954 (9th Cir. 2010) 7 (“Although the Officers lacked probable cause to arrest [plaintiff] for violating . . . the statute 8 under which they cited him, we ultimately conclude that probable cause existed to arrest 9 [plaintiff] under another trespass provision.”). Still, “facts . . . unknown to the officer at the time 10 of the intrusion” may not retroactively justify a stop. Moreno v. Baca, 431 F.3d 633, 639 (9th 11 Cir. 2005); accord United States v. Collins, 427 F.3d 688, 691 (9th Cir. 2005) (“Facts uncovered 12 after the arrest are irrelevant.”). 13 b. Violation of the Right 14 Here, construing the facts in the light most favorable to Plaintiff yet also viewing the facts

15 “in the light depicted by the videotape,” Scott, 550 U.S. at 380, the Court finds that there is at least 16 one valid basis for the stop and, therefore, Plaintiff’s Fourth Amendment right was not violated.7 17 7 Defendants raise four other suggested bases for the stop (Dkt. No. 29 at 12-13; Dkt. No. 53 at 10-11). Defendants 18 concede that Defendant Brown “did not notice the responses informing him of the vehicle’s licensing issues,” to wit, (a) failure to display a valid license plate, in violation of RCW 46.16A.030(1)–(2) and 46.16A.200(7)(d); and (b) failure to transfer title within 45 days of purchase, in violation of RCW 46.12.650(5)(a) and (7). Dkt. No. 28 at 4, 19 12; Dkt. No. 29 ¶¶ 33–34. It was only upon a later review of the MDT responses that Defendant Brown says he was “now able to clearly see” the DOL information. Dkt. No. 29 ¶ 32. Since Defendant Brown concedes that he did not 20 view this information prior to the stop, he could not have known about the licensing issues at the time of the stop. Those facts were uncovered later and thus could not support reasonable suspicion for the stop. Moreno, 431 F.3d at 21 639; Collins, 427 F.3d at 691. As such, the Court finds these two bases inapplicable.

Defendants also assert probable cause existed for the stop because of an illegal wide turn, in violation of RCW 22 46.61.290(1), and Mr. Sims left a vehicle unattended and idling, in violation of RCW 46.61.600(1). Defendant Brown only noted that Mr. Sims’ car “made a right turn onto southbound 1 Av” in his field report right after the 23 incident. Dkt. No 42-6 at 2. Therefore, it is unknown whether the illegal turn was known to Defendant Brown at the time of the stop. And Defendant Brown noted in his field report only that “the driver’s door opened and Sims emerged and quickly walked toward the sidewalk.” Id. It is unclear from Defendant Brown’s in-car video whether 24 1 Plaintiff is seen on video driving without activating the vehicle’s headlights or taillights 2 at about 5:07am in apparently dark conditions. Dkt. No. 42-1 at 0:00–0:40. This appears to be a 3 violation of RCW 46.37.020 (“When lighted lamps and signaling devices are required”), which 4 states that vehicles “shall display lighted headlights, other lights, and illuminating devices” from

5 a half hour after sunset to a half hour before sunrise. Although Plaintiff did not actually violate 6 the statute because it was nine minutes past the end of the required time period, as Defendants 7 concede (Dkt. No. 28 at 13), the time of day and lighting conditions provided reasonable 8 suspicion for the stop. See State v. Snapp, 275 P.3d 289, 300 (Wash. 2012) (holding stop valid 9 where it was 24 minutes after sunset in dark conditions and officer “could rationally believe that 10 a traffic infraction was being committed”). 11 Significantly, Plaintiff does not contest this alleged violation with additional evidence or 12 legal argument, focusing instead on the licensing issues. Dkt. No. 50 at 7–10. Plaintiff simply 13 asserts that the alleged violation is “documented nowhere in the police reports or statements at 14 the scene” and further asserts without citation that “[a] reasonable jury could conclude that these

15 new justifications were invented after-the-fact, and were either non-existent or unnoticed by 16 Brown during the incident.” Id. at 7. 17 Plaintiff’s argument is unavailing. In opposition to a summary judgment motion, a party 18 “must do more than simply show that there is some metaphysical doubt as to the material facts.” 19 Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 586. It cannot be said that Plaintiff’s driving 20 violation was “non-existent” when it was captured by video on the dashboard of Defendant 21

one could tell whether the car was still running when Mr. Sims exited the vehicle. See Dkt. No. 34 at 1 (0:53–1:08). 22 Therefore, it also is unclear whether the unattended idling car was a known fact to Defendant Brown at the time of the stop. But the Court need not resolve the factual questions surrounding these issues or determine whether these 23 bases were a pretext, as Defendants provided another valid, known basis for the stop.

24 Because the Court finds an independent basis for the stop, the Court also need not reach at this stage the Parties’ arguments about Defendant Brown’s allegedly mistaken belief that Plaintiff’s vehicle was stolen. 1 Brown’s vehicle and uncontradicted by other evidence in the record. It also cannot be said that 2 Plaintiff’s driving was “unnoticed” where Defendant Brown was behind the wheel of the vehicle 3 closely following Plaintiff. Although Defendant Brown did not arrest Plaintiff for any traffic 4 violation, he recorded in his field contact report (signed one hour after the stop) that Plaintiff’s

5 vehicle “drew my attention because its headlights & taillights were not illuminated, despite the 6 dark.” Dkt. No. 42-6 at 2. Even if Defendant Brown did not consciously think to himself at the 7 moment of the stop that Plaintiff had committed a traffic violation, he had observed Plaintiff’s 8 driving, and his subjective purpose for the stop plays no role in the Court’s analysis. Ramirez, 9 473 F.3d at 1030. 10 Accordingly, as to the initial stop portion of Plaintiff’s Fourth Amendment claim, the 11 Court GRANTS Defendants’ motion and DENIES Plaintiff’s motion. 12 2. Duration and Scope of the Stop 13 In their motion, Defendants argue that the scope and duration of the stop were reasonable 14 because they “did not unreasonably prolong the traffic stop or expand investigation into areas

15 unrelated of the basis of the seizure.” Dkt. No. 28 at 14. In his cross-motion, Plaintiff argues that 16 the stop was unreasonable in scope because “the tactics used exceeded the reasonable needs of 17 any investigation into the license-plate information Brown had . . . .”8 Dkt. No. 40 at 16; see id. 18 at 16–23. 19 20 21 22

8 In his motion, Plaintiff appears to conflate arguments about the scope of the stop with arguments about excessive 23 force. Dkt. No. 40 at 16–21. However, in their response, Defendants acknowledge both arguments and address them separately. Dkt. No. 53 at 11–14 (scope of stop), 14–15 (excessive force). And in his reply, Plaintiff responds 24 accordingly. Dkt. No. 56 at 3–4 (scope of stop), 5 (excessive force). Therefore, the Court will address both issues. 1 a. Definition of the Right 2 (1) Duration and Scope of Stop 3 “Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is 4 determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop

5 and attend to related safety concerns.” Rodriguez v. United States, 575 U.S. 348, 354 (2015) 6 (internal citations omitted). “Authority for the seizure thus ends when tasks tied to the traffic 7 infraction are—or reasonably should have been—completed.” Id. “[A]n investigative detention 8 must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” 9 Florida v. Royer, 460 U.S. 491, 500 (1983). Moreover, “the investigative methods employed 10 should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion 11 in a short period of time.” Id. Still, police officers are “authorized to take such steps as [are] 12 reasonably necessary to protect their personal safety and to maintain the status quo during the 13 stop.” United States v. Hensley, 469 U.S. 221, 235 (1985). “It is the State’s burden to 14 demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was

15 sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” 16 Royer, 460 U.S. at 500. 17 Relatedly, “[t]he totality of the circumstances determines whether and when an 18 investigatory stop” exceeds its permissible scope. United States v. Edwards, 761 F.3d 977, 981 19 (9th Cir. 2014) (citing Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996)). In looking at 20 the totality of the circumstances, courts examine “the intrusiveness of the stop, i.e., the 21 aggressiveness of the police methods and how much the plaintiff’s liberty was restricted,” as 22 well as “the justification for the use of such tactics, i.e., whether the officer had sufficient basis 23 to fear for his safety to warrant the intrusiveness of the action taken.” Id. (citing Lambert, 98

24 F.3d at 1185). 1 (2) Mistakes of Fact 2 “[S]earches and seizures based on mistakes of fact can be reasonable.” Heien v. North 3 Carolina, 574 U.S. 54, 61 (2014). “The limit is that ‘the mistakes must be those of reasonable 4 men.’” Id. (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)); see also id. at 66 (“The

5 Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or 6 law—must be objectively reasonable.” (emphases in original)). 7 b. Violation of the Right 8 The Court finds that there is a genuine dispute of material fact: whether Defendant Brown 9 was mistaken as to whether Plaintiff’s vehicle was stolen. Compare Dkt. No. 28 at 10 10 (“[Defendant] Brown made a reasonable human error that any of us might commit.”) with Dkt. 11 No. 50 at 5 (“A reasonable jury could find that Brown saw that the search returns clearly labeled as 12 not being a match, and told [Plaintiff] as much, but detained him anyways, without reasonable 13 suspicion.”); compare also Dkt. No. 40 at 15 (“Brown’s contemporaneous statements establish that 14 he knew the plate was not a match, so his claim of a ‘mistake’ cannot be credited on summary

15 judgment.” (citing Dkt. No. 42-1 at 2:30)) with Dkt. No. 53 at 9 (“No reasonable person can 16 conclude that [Defendant] Brown was doing anything other than trying to mollify the situation.”). 17 Moreover, construing the facts in the light most favorable to each Party, the Court cannot 18 determine if that mistake, if true, was reasonable or unreasonable as a matter of law. 19 On one hand, cases in which mistakes have been deemed reasonable—like those cited by 20 Defendants (Dkt. No. 28 at 10)—address situations where an officer relied on information that 21 was apparently reliable but was later discovered to be inaccurate. See United States v. Miguel, 22 368 F.3d 1150, 1154 (9th Cir. 2004) (holding traffic stop lawful where officer relied on 23 inaccurate information in a computer database); United States v. Dorais, 241 F.3d 1124, 1130–

24 31 (9th Cir. 2001) (holding traffic stop lawful where officer relied on inaccurate report from car 1 rental company); United States v. Garcia-Acuna, 175 F.3d 1143, 1146–47 (9th Cir. 1999) 2 (holding traffic stop lawful where officer relied on inaccurate report from dispatcher); Rohde v. 3 City of Roseburg, 137 F.3d 1142 (9th Cir. 1998) (holding arrest lawful where officer relied on 4 inaccurate report from car dealership); accord Illinois v. Rodriguez, 497 U.S. 177, 186 (1990)

5 (holding search lawful where officer relied on person’s apparent authority to consent to the 6 search); Hill v. California, 401 U.S. 797, 802–04 (1971) (holding arrest lawful where officer had 7 reasons to believe arrestee was the actual target of investigation). 8 On the other hand, cases in which mistakes have been deemed unreasonable, questions 9 for the jury, or otherwise discounted—like those cited by Plaintiff (Dkt. No. 40 at 12–13)— 10 address situations where an officer had reason to believe the information was not reliable on its 11 face or where there was a large discrepancy between the officer’s factual determination and the 12 information available to them. See Green v. City and Cnty. of San Francisco, 751 F.3d 1039, 13 1045–46 (9th Cir. 2014) (denying qualified immunity for traffic stop where officer did not 14 independently verify a license-plate reader known to make frequent mistakes); cf. Liberal v.

15 Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011) (denying qualified immunity for traffic stop where 16 officer claimed that a car’s windows were rolled up and tinted but court required to accept 17 plaintiff’s claim at summary judgment stage that the windows were rolled down and not visible); 18 Lambert, 98 F.3d at 1190–91 (holding investigatory stop became arrest without probable cause; 19 officer stopped plaintiffs who bore only a vague and general resemblance to suspects). 20 Here, the information accessible to Defendant Brown, and subsequently relayed to and 21 relied on by the other responding officers, was reliable on its face and in fact accurate: the MDT 22 results showed that license plates BEX1997 and BEX 1974—and not Plaintiff’s license plate, 23 BEX1947—were associated with stolen vehicles. See Dkt. No. 33-1. Defendant Brown states

24 that he “made a mistake” and “confused the ‘near hit’ for BEX1974 . . . with the BEX1947 1 license plate I was behind.” Dkt. No. 29 ¶ 10. Whether Defendant Brown was actually mistaken 2 is for a jury to decide. See Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010) (“Credibility 3 determination, the weight of the evidence, and the drawing of legitimate inferences from the 4 facts are jury functions, not those of a judge [when she] is ruling on a motion for summary

5 judgment.”). Moreover, the alleged mistake is not analogous to Defendants’ examples of reliance 6 on inaccurate information, nor is it analogous to Plaintiff’s examples of unreliable information or 7 large discrepancies. Whether the mistake is reasonable is up to the jury. See Hernandez v. Fed. 8 Way, 456 F. Supp. 3d 1228, 1238 (W.D. Wash. 2020) (“The ‘factual matters underling the 9 judgment of reasonableness’ are generally a ‘question for the jury.’” (quoting McKenzie v. Lamb, 10 738 F.2d 1005, 1008 (9th Cir. 1984))). 11 c. Clearly Established Right 12 Construing the facts in the light most favorable to Plaintiff, there is no question that 13 without the mistake—and thus left with only reasonable suspicion that some traffic infractions 14 were committed—Defendants would not have a basis to extend and carry out the stop as they did

15 and would have violated a clearly established right. See supra, Section III.A.2.a; Rodriguez, 575 16 U.S. at 354; Royer, 460 U.S. at 500; see also United States v. Strickler, 490 F.2d 378, 380 (9th 17 Cir. 1974) (holding investigatory stop exceed its permissible scope where officers surrounded 18 vehicle and pointed firearm at occupants). 19 Accordingly, as to the duration and scope portion of Plaintiff’s Fourth Amendment claim, 20 the Court DENIES Defendants’ motion and DENIES Plaintiff’s motion. 21 3. Excessive Force 22 In their motion, Defendants argue that the allegation that Defendant Nash pointed a 23 firearm at Plaintiff does not constitute excessive force. Dkt. No. 28 at 17–19. In his cross-motion,

24 1 Plaintiff argues that Defendant Nash pointing a firearm at him, as well as multiple other officers 2 drawing their firearms on scene, constituted excessive force.9 Dkt. No. 40 at 16–21. 3 a. Definition of the Right 4 “Under the Fourth Amendment, law enforcement may use ‘objectively reasonable’ force

5 to carry out” an investigatory stop. Green, 751 F.3d at 1049 (quoting Graham v. Connor, 490 6 U.S. 386, 397 (1989)). To determine whether an officer used excessive force, a court balances 7 “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against 8 the countervailing government interests at stake.” Hopson, 2023 WL 4038631, at *4 (quoting 9 Felarca v. Birgeneau, 891 F.3d 809, 816 (9th Cir. 2018)); accord Green, 751 F.3d at 1049. A 10 court considers “the totality of the circumstances, including the ‘type and amount of force 11 inflicted,’ ‘the severity of the injuries,’ ‘the severity of the crime at issue,’ ‘whether the suspect 12 poses an immediate threat to the safety of the officers or others,’ and ‘whether he is actively 13 resisting arrest or attempt to evade arrest by flight.’” Hopson, 2023 WL 4038631, at *4 (quoting 14 Felarca, 891 F.3d at 817). A court may also consider “the availability of less intrusive

15 alternatives to the force employed and whether warnings were given.” Id. (quoting Felarca, 891 16 F.3d at 817). “Whether the suspect poses a threat is ‘the most important single element.’” Id. 17 (quoting Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)). In determining 18 whether an officer’s use of force was reasonable, a court bears in mind that “police officers are 19 often forced to make split second judgments—in circumstances that are tense, uncertain, and 20 rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. 21 (quoting Graham, 490 U.S. at 397). 22 23 9 Again, Plaintiff conflates this argument with arguments about the scope of the stop, but both Parties address the 24 arguments separately in their complete briefing. See supra, n.10. 1 b. Violation of the Right 2 The Court finds that there is a genuine dispute of material fact that precludes a 3 determination of whether Plaintiff’s Fourth Amendment right was violated: the manner in which 4 Defendant Nash displayed his firearm. Compare Dkt. No. 53 at 14 (“[Defendant] Nash did not

5 point his gun at Plaintiff at any time, as he explained at his deposition.” (citing Dkt. No. 54-5 at 6 82:7–17, 47:14–48:12)) with Dkt. No. 40 at 19 (“The video shows beyond genuine dispute that 7 [Defendant] Nash pointed his firearm directly at [Plaintiff].” (citing Dkt. Nos. 42-3 at 2:16 and 8 42-4 at 1:08)). In their motion, Defendants appear to concede that a dispute exists. See Dkt. 9 No. 28 at 17 (“The testimony on this point will conflict at trial, and the video footage is not 10 entirely dispositive, so a jury could in theory conclude that [Defendant] Nash pointed his firearm 11 at Plaintiff . . . .” (emphasis in original)). 12 The Court agrees that the video is not dispositive: while the firearm appears to be 13 displayed generally in Plaintiff’s direction, its precise angle—and its attendant effects—cannot 14 be determined. This distinction is material because whether the firearm was positioned to hit

15 Plaintiff immediately upon discharge, or whether it was angled away from Plaintiff, bears on the 16 reasonableness of Defendant Nash’s actions. See Liston v. Cnty. of Riverside, 120 F.3d 965, 976 17 n.10 (9th Cir. 1997) (“We have held repeatedly that the reasonableness of force used is ordinarily 18 a question of fact for the jury.”); cf. Green, 751 F.3d at 1049 (“Because this inquiry is inherently 19 fact specific, the ‘determination whether the force used to effect an arrest was reasonable under 20 the Fourth Amendment should only be taken from the jury in rare cases.’” (quoting Headwaters 21 Forest Def. v. Cnty. of Humboldt, 240 F.3d 1185, 1205–06 (9th Cir. 2000), cert. granted, 22 judgment vacated on other grounds, 534 U.S. 801 (2001)). Whether Defendant Brown was 23 mistaken that Plaintiff’s vehicle was stolen, and whether that alleged mistake is reasonable, also

24 bears on this issue. See supra, Section III.A.2.b. 1 c. Clearly Established Right 2 Construing the facts in the light most favorable to Plaintiff, there is no question that 3 without the mistake—and thus left with only reasonable suspicion that some traffic infractions 4 were committed—Defendants would not have a basis to display a firearm in the manner that they

5 did. No reasonable officer would believe they were permitted to point a firearm at a person who 6 is suspected only of traffic infractions and who was otherwise admittedly compliant and not 7 behaving in a threatening manner such that the use of a firearm would be appropriate. See 8 Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (“In the end, ‘pointing guns at persons who 9 are complaint and present no danger is a constitutional violation.’” (quoting Baird v. Renbarger, 10 576 F.3d 340, 346 (7th Cir. 2009)); Espinosa v. City and Cnty. Of San Francisco, 598 F.3d 528, 11 537–38 (9th Cir. 2010) (denying qualified immunity where questions of fact regarding the 12 reasonableness of the level of force used); id. at 537 (“[P]ointing a loaded gun at a suspect, 13 employing the threat of deadly force, is use of a high level of force.”). 14 Accordingly, as to the excessive force portion of Plaintiff’s Fourth Amendment claim, the

15 Court DENIES Defendants’ motion and DENIES Plaintiff’s motion. 16 4. Frisk of Plaintiff’s Person 17 In his motion, Plaintiff argues that the frisk of his person was unlawful “since no reason 18 existed to believe [Plaintiff] was armed.” Dkt. No. 40 at 23. In their response, Defendants justify 19 the frisk solely based on “the nature of the felony offense under investigation.” Dkt. No. 53 at 19. 20 a. Definition of the Right 21 “[A] Terry frisk is justified by the concern for the safety of the officer and others in 22 proximity.” Thomas v. Dillard, 818 F.3d 864, 875–76 (9th Cir. 2016) (citing Terry, 392 U.S. 23 at 22–24). “[A] frisk of a person for weapons requires reasonable suspicion that a suspect is

24 ‘armed and presently dangerous to the officer or to others.’” Id. at 876 (quoting Terry, 392 U.S. 1 at 24); see United States v. I.E.V., 795 F.3d 430, 437 (9th Cir. 2012) (“The ‘narrow scope’ of the 2 Terry exception only permits a frisk for weapons based on ‘a reasonable belief or suspicion 3 directed at the person to be frisked . . . .’” (quoting Ybarra v. Illinois, 444 U.S. 85, 94 (1979)) 4 (emphasis in original)). “[T]he police officer must be able to point to specific and articulable

5 facts which, taken together with rational inferences from those facts, reasonably warrant that 6 intrusion.” Dillard, 818 F.3d at 876 (quoting Terry, 392 U.S. at 21). Conduct that is “ambiguous 7 and susceptible of an innocent explanation” may be considered in this analysis. Illinois v. 8 Wardlow, 528 U.S. 119, 125 (2000). 9 “A lawful frisk does not always flow from a justified stop.” Dillard, 818 F.3d at 876 10 (quoting United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988)). “Rather, ‘[e]ach element, 11 the stop and the frisk, must be analyzed separately; the reasonableness of each must be 12 independently determined.’” Id. (quoting Thomas, 863 F.2d at 628). 13 b. Violation of the Right 14 As discussed above, there is a genuine dispute about whether Defendant Brown was

15 mistaken as to the belief that Plaintiff’s vehicle was stolen, and the Court cannot determine as a 16 matter of law whether that alleged mistake is a reasonable one. See supra, Section III.A.2.b. The 17 alleged mistake can only be credited towards reasonable suspicion for the frisk if the mistake is 18 found to be true and reasonable. See Heien, 574 U.S. at 61. Thus, the Court cannot determine 19 whether Plaintiff’s Fourth Amendment right was violated. 20 c. Clearly Established Right 21 Construing the facts in the light most favorable to Plaintiff, there is no question that 22 without the mistake—and thus left with only reasonable suspicion that some traffic infractions 23 were committed—Defendants would not have reasonable suspicion for a frisk and would thus

24 have violated a clearly established right. See supra, Section III.A.4.a. The evidence shows 1 unequivocally that Plaintiff followed all of Defendant Brown’s commands and did not otherwise 2 behave in any way that would give rise to a belief that he was armed and dangerous. See Dkt. 3 No. 34-1 at 1; Dkt. No. 42-18 at 22 (102:19–24). Thus, Defendant Brown would not have 4 possessed “specific and articulable facts” that would reasonably warrant a frisk. Dillard, 818

5 F.3d at 876; see also I.E.V., 795 F.3d at 437. 6 Accordingly, as to the frisk portion of Plaintiff’s Fourth Amendment claim, the Court 7 DENIES Defendants’ motion and DENIES Plaintiff’s motion. 8 5. Searches of Plaintiff’s Vehicle 9 In their motion, Defendants argue that there was no unconstitutional search of Plaintiff’s 10 vehicle. Dkt. No. 28 at 14–17. In his motion, Plaintiff focuses almost entirely on the search of the 11 vehicle’s trunk, which he contends was unlawful. Dkt. No. 40 at 21–23. 12 a. Definition of the Right 13 Warrantless searches “are per se unreasonable under the Fourth Amendment—subject 14 only to a few specifically established and well-delineated exceptions.” United States v. Scott, 705

15 F.3d 410, 416 (9th Cir. 2012) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); accord 16 United States v. Wilson, 13 F.4th 961, 971 (9th Cir. 2021) (observing “‘the most basic 17 constitutional rule’ in the Fourth Amendment arena: warrantless searches are per se 18 unreasonable, subject to few exceptions that are ‘jealously and carefully drawn’” (quoting 19 Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971))). A warrantless search is 20 unreasonable—and therefore unlawful—unless an exception applies. See, e.g., United States v. 21 Rodgers, 656 F.3d 1023, 1027–31 (9th Cir. 2011) (finding warrantless search of vehicle unlawful 22 where no probable cause that vehicle contained evidence of a crime); Barrentine v. United 23 States, 434 F.2d 636, 637 (9th Cir. 1970) (finding warrantless search of trunk unlawful where no

24 1 probable cause that vehicle contained evidence of a crime or contraband, search not incident to 2 arrest, vehicle not subject to forfeiture proceedings, and no exigent circumstances). 3 b. Violation of the Right 4 As an initial matter, Plaintiff does not contest that it was lawful for Defendant Officers to

5 look through Plaintiff’s car windows. See Dkt. No. 50 at 15–17. The Court agrees that this act 6 was lawful: it was not a search and did not trigger Fourth Amendment protection. See Texas v. 7 Brown, 460 U.S. 730, 740 (1983) (“There is no legitimate expectation of privacy shielding that 8 portion of the interior of an automobile which may be viewed from outside the vehicle by either 9 inquisitive passerby or diligent police officers.”); United States v. Orozco, 590 F.2d 789, 792 10 (9th Cir. 1979) (“[T]he deputies were not conducting a ‘search’ when they looked through the 11 car windows.”). 12 Further, Defendants concede that both the removal of the keys and the opening of the 13 trunk were “physical trespasses and so qualify as a ‘search’ . . . .” Dkt. No. 53 at 16 (citing 14 United States v. Jones, 565 U.S. 400, 404 (2012)); see also Dkt. No. 28 at 16 (stating that

15 “[m]omentarily opening the trunk was technically an intrusion into a constitutionally protected 16 private space”). The question now is whether these searches were permissible under an exception 17 to the Fourth Amendment’s warrant requirement. 18 (1) The Keys 19 Construing the facts in the light most favorable to Plaintiff, the Court finds that 20 Defendant Officers’ entry into the passenger compartment to turn off the engine and remove the 21 keys was lawful. 22 In his opposition to Defendants’ motion, Plaintiff does not contest the removal of the 23 keys on its own; instead, he links the act to the opening of the trunk and the broader sweep. See

24 Dkt. No. 50 at 15–16. Defendants argue that Defendant Richardson’s action “was a minor 1 intrusion necessary to secure the scene, maintain the status quo, and assure compliance” with the 2 state statute governing unattended motor vehicles. Dkt. No. 28 at 15. 3 The Court agrees with Defendants that removal of the keys to turn off the car was 4 permissible. As the Supreme Court explained in New York v. Class, “automobiles are justifiably

5 the subject of pervasive regulation by the State.” 475 U.S. 106, 113 (1986). Accordingly, 6 “[e]very operator of a motor vehicle must expect that the State, in enforcing its regulation, will 7 intrude to some extent upon that operator’s privacy.” Id. Here, Washington State prohibits a 8 driver from leaving their vehicle unattended while the engine is running and the key is in the 9 ignition. RCW 46.61.600(1). Defendant Richardson was thus permitted to briefly enter the 10 passenger compartment for the limited purpose of enforcing this regulation, as in Class, and 11 securing the scene. See Kim v. Budget Rent A Car Sys., Inc., 15 P.3d 1283, 1288 (Wash. 2001) 12 (“[RCW 46.61.600] is designed for the protection of the owner and for the protection of others in the 13 path of the vehicle if it should be put in motion by reason of having been insecurely parked.” (quoting 14 Pratt v. Thomas, 491 P.2d 1285, 1287 (Wash. 1971) (Rosellini, J., concurring))); see also Kim, 15 P.3d

15 at 1288 (“RCW 46.61.600 was enacted to prevent runaway vehicles on public streets.”). 16 (2) The Trunk 17 Construing the facts in the light most favorable to Defendants, the Court finds that 18 Defendant Officers’ opening of the locked trunk was unlawful. Even if Defendant Brown made a 19 true and reasonable mistake about Plaintiff’s vehicle, Defendants have not established that an 20 exception to the Fourth Amendment’s warrant requirement is applicable. Further, all of 21 Defendants’ authorities are inapposite and distinguishable. 22 Defendants concede that the exception for a search incident to arrest does not apply 23 because Plaintiff was never arrested. Dkt. No. 53 at 17 (citing Knowles v. Iowa, 525 U.S. 113,

24 117–118 (1998) (rejecting a “search incident to citation”)). Defendants also concede that the 1 automobile exception does not apply because there was not probable cause to believe that 2 Plaintiff’s vehicle contained contraband. Id.; see Scott, 705 F.3d at 417 (applying the automobile 3 exception). Thus, Defendants are left to characterize the search of the trunk as a “protective 4 sweep” that is justified by “heightened officer safety concerns” presented by “stolen vehicle

5 traffic stops”—concerns that are “increased” where the driver is not physically restrained. Dkt. 6 No. 28 at 15–16. This characterization is insufficient, especially where Defendants repeatedly 7 admit that sweeps of a locked trunk, even during a HRVS, are only permissible where additional 8 factors are present, such as an immediate hazard or a person in the trunk. See Dkt. No. 54-2 at 7 9 (93:10–12, 94:7–9); Dkt. No. 54-1 at 5 (73:19–23). Yet not a single Defendant Officer expressed 10 reason to believe that any additional factors were present in this case.10 11 Defendants now cite three cases from two Circuits to support the proposition that there 12 were heightened safety concerns justifying the search of the trunk. But United States v. Hanlon 13 addresses the lawfulness of a Terry frisk of a person, not the search of a vehicle, let alone a 14 trunk. 401 F.3d 926, 929–30 (8th Cir. 2005). United States v. Bullock holds the same. 510 F.3d

15 342, 345–48 (D.C. Cir. 2007). United States v. Rowland addresses the search of a vehicle. 341 16 F.3d 774, 782–84 (8th Cir. 2003). However, in Rowland, the court found that a search of the full 17 vehicle was permissible only after a lawful Terry search of the passenger compartment 18 uncovered contraband that created probable cause for a full vehicle search. Id. at 784–85. 19 Defendants concede that no probable cause was present here. Dkt. No. 53 at 17. 20 21

22 10 In his declaration, Defendant Richardson states that he opened the trunk “to confirm no person was inside and the scene was safe.” Dkt. No. 32 ¶ 18. But this language merely parrots Defendants’ legal argument about an alleged protective sweep exception to the Fourth Amendment. Defendant Richardson does not state any facts that provide 23 reason to believe that a person or hazard were present in the trunk; he merely states the conclusion that they might be present. See Nigro v. Sears, Roebuck and Co., 784 F.3d 495, 497 (9th Cir. 2015) (“The district court can 24 disregard a self-serving declaration that states only conclusions and not facts that would be admissible evidence.”). 1 Defendants cite New York v. Class for the proposition that “momentarily opening the trunk 2 for a brief visual inspection for safety purposes was ‘sufficiently unintrusive to be constitutionally 3 permissible.’” Dkt. No. 28 at 16 (quoting Class, 475 U.S. 106, 119 (1986)). In Class, the Supreme 4 Court held that it was lawful for an officer to enter the passenger compartment of a vehicle to move

5 papers to view the car’s vehicle identification number (VIN). 475 U.S. at 114. Importantly, the 6 Court found that “there was no reasonable expectation of privacy in the VIN.” Id. The Court went 7 on to find that the officer’s entry into the passenger compartment—at which point he observed a 8 firearm—was “sufficiently unintrusive to be constitutionally permissible in light of the lack of a 9 reasonable expectation of privacy in the VIN and the fact that the officers observed respondent 10 commit two traffic violations.” Id. at 119. The Court also considered “the danger to the officers’ 11 safety” presented by returning the driver to his vehicle when officers were already permitted to 12 demand inspection of the VIN and to order the driver to exit his vehicle. Id at 117. Here, Plaintiff 13 had a reasonable expectation of privacy in the locked trunk, which did not contain anything like a 14 VIN. Nor did Defendant Officers have similar authority to demand inspection of the trunk or

15 anything inside it. Thus, Class is easily distinguishable. 16 Finally, Defendants cite Arizona v. Gant for the proposition that “protective sweeps may 17 be justified even where the automobile exception or search-incident-to-arrest exceptions are 18 inapplicable.” Dkt. No. 53 at 17; see Gant, 556 U.S. 332, 347 (2009) (“[T]here may be still other 19 circumstances in which safety or evidentiary interests would justify a search.” (citing Maryland 20 v. Buie, 494 U.S. 325, 334 (1990))). Gant muses on this possibility in reference to a search 21 incident to arrest in a home. See Buie, 494 U.S. at 333 (“A protective sweep . . . occurs as an 22 adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for 23 a crime.”). In the rare cases where Buie has been extended to vehicles and beyond arrests, it has

24 been used to permit a search of the passenger compartment for persons that may pose a danger 1 when the inside of the vehicle cannot be easily viewed. See Wayne R. LaFave, Search and 2 Seizure (6th ed.) § 7.4(i) (“When lawful police activities are being conducted in the immediate 3 proximity of a vehicle which, by its nature, does not permit ready viewing from the outside of 4 any occupants, there may be a basis to conduct a ‘protective sweep’ of that vehicle.”); id. at

5 n.178 (gathering cases); cf. Sanders v. City of Bakersfield, No. C04-5541, 2009 WL 3300253, at 6 *3 (E.D. Cal. Oct. 14, 2009) (“Given the nature of space within a car, danger from hidden 7 persons is not generally a concern.”). 8 Gant does not purport to establish a new exception to the warrant requirement for a 9 “protective sweep” of a locked trunk during an investigative detention, much less an exception 10 that is well-delineated or carefully drawn. Nor do Defendants point to any court that has 11 understood Gant to do so in the 14 years since its issuance. Defendants thus invite the Court to 12 cut another hole in the Fourth Amendment. The Court declines the invitation. 13 c. Clearly Established Right 14 The Court finds that this is the “rare obvious case” where the unlawfulness of the trunk

15 search is “sufficiently clear,” even if there is no case directly on point. Russell, 31 F.4th at 738. 16 After all, it is well settled that warrantless searches “are per se unreasonable under the Fourth 17 Amendment—subject only to a few specifically established and well-delineated exceptions.” 18 Scott, 705 F.3d at 416 (quoting Katz, 389 U.S. at 357); see Gant, 556 U.S. at 338 (quoting the 19 same from Katz and characterizing this principle as a “basic rule”); Wilson, 13 F.4th at 971 20 (quoting Coolidge, 403 U.S. at 454–55). In Barrentine, the Ninth Circuit summarily held 21 unlawful a post-arrest vehicle search because it did not fit any number of exceptions. 434 F.2d at 22 637. If that search was not justifiable post-arrest, it is impossible that this pre-arrest search that 23 does not meet any exceptions could be lawful.

24 1 For all their briefing, Defendants are unable to establish an exception that could justify 2 the search of the trunk. In fact, they acknowledge that “a protective sweep of the trunk of a 3 suspected stolen vehicle during an investigative detention is not supported by a case directly on 4 point . . . .” Dkt. No. 28 at 22. This is not a case where an officer incorrectly applied the law of a

5 particular exception, such as believing (reasonably but wrongly) that they had probable cause to 6 search Plaintiff’s trunk for contraband pursuant to the automobile exception. Instead, this is a 7 case where an officer did not reasonably apply the law of the Fourth Amendment. Defendants try 8 to invent an exception that could justify the search, or at least cast Defendant Richardson as 9 acting reasonably within established law. But “no reasonable . . . officer could have concluded” 10 that a warrantless search of the trunk was authorized here.11 Taylor, 141 S. Ct. at 53. 11 Accordingly, as to the windows and keys portion of Plaintiff’s Fourth Amendment claim, 12 the Court GRANTS Defendants’ motion and DENIES Plaintiff’s motion. As to the trunk search 13 portion of Plaintiff’s Fourth Amendment claim, the Court DENIES Defendants’ motion and 14 GRANTS Plaintiff’s motion.

15 6. Race Discrimination 16 In their motion, Defendants argue that Plaintiff’s Fourteenth Amendment claim “is 17 meritless and is not supported by any evidence.” Dkt. No. 28 at 20; see id. at 19–20. In 18 opposition, Plaintiff argues that “a reasonable jury could conclude that Defendants used intrusive 19 tactics on [Plaintiff] because of his race.” Dkt. No. 50 at 19; see id. at 17–22. 20 21 11 Supporting the “obviousness” of this illegality are: (1) Defendant City’s admission that a search of a locked trunk 22 is not permissible as part of a standard sweep (see Dkt. No. 54-2 at 7 (93:10-94:9)); and (2) Defendant City’s HRVS training, which includes State of Washington v. Snapp, a Washington Supreme Court case holding that “a locked area of the vehicle not accessible by the occupants of the vehicle, cannot be searched during a clearing or safety 23 sweep unless there is reason to believe there is a person or immediate threat in that area.” Dkt. No. 42-8 at 21. See also Dkt. No. 54-1 at 5 (73:19–23) (Defendant City’s admission that officers can open locked area only if “reason to 24 believe” there is an “immediate hazard” or a person there). 1 a. Definition of the Right 2 “The central inquiry in an Equal Protection Clause claim is whether a government action 3 was motivated by a discriminatory purpose.” Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir. 4 2022). “To succeed on a § 1983 claim for a violation of the Equal Protection Clause, the plaintiff

5 must prove that the defendants acted in a discriminatory manner and that the discrimination was 6 intentional.” Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). “To avoid 7 summary judgment, [the plaintiff] must ‘produce evidence sufficient to permit a reasonable trier 8 of fact to find by a preponderance of the evidence that the decision was racially motivated.’” 9 Keyser v. Sacramento Unified Sch. Dist., 265 F.3d 741, 754 (9th Cir. 2001) (quoting FDIC v. 10 Henderson, 940 F.2d 465, 473 (9th Cir. 1991)); see Hernandez v. New York, 500 U.S. 352, 360 11 (1991) (“Discriminatory purpose . . . implies that the decisionmaker selected a particular course 12 of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable 13 group.”). Such discriminatory purpose may be established by direct or circumstantial evidence. 14 See Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir. 1985).

15 Moreover, “[t]he right to non-discriminatory administration of protective services is 16 clearly established.” Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010). “It hardly 17 passes the straight-face test to argue at this point in our history that police could reasonably 18 believe they could treat individuals disparately based on race.” Id 19 b. Violation of the Right 20 Construing the facts in the light most favorable to Plaintiff, the Court finds that there is a 21 genuine dispute of material fact as to whether Defendant Brown was motivated at least in part by 22 Plaintiff’s race. See Dkt. No. 50 at 17–22. Plaintiff notes that Defendant Brown activated his 23 lights and sirens, and drew his firearm, only after the point at which he was able to identify

24 Plaintiff’s race. See Dkt. No. 42-18 at 22–23 (103:1–7, 21–24; 105:5–7). Plaintiff also supplies a 1 declaration from an expert in police practices, Russ Hicks, who states that Defendant Brown’s 2 actions were “indicative of biased policing” and “a deviation from generally accepted police 3 tactics, procedures, training, and of bias-free policing that is expected by Washington State law 4 enforcement officers.” Dkt. No. 52 ¶¶ 49, 51. Plaintiff further supplies records of Defendant

5 Brown’s stops of civilians in 2019 and 2020, the vast majority of which involved a black male or 6 person of color.12 See Dkt. No. 51-2. 7 Ultimately, an inquiry into Defendant Brown’s intent “is best conducted by a finder of 8 fact at trial, not by the court at summary judgment.” Ortega-Melendres v. Arpaio, 836 F. Supp. 9 2d 959, 988 (D. Ariz. 2011) (citing Sluimer, 606 F.3d at 587). See also Taylor v. VanGesen, No. 10 C18-5682, 2021 WL 1140269, at *3 (W.D. Wash. Mar. 25, 2021) (denying summary judgment 11 on equal protection claim where circumstantial evidence of racial motivation); Wingate v. City of 12 Seattle, 198 F. Supp. 3d 1221, 1229 (W.D. Wash. 2016) (same); Lacy v. Villeneuve, No. C03- 13 2442, 2005 WL 3116004, at *4 (W.D. Wash. Nov. 21, 2005) (same). 14 Accordingly, as to Plaintiff’s Fourteenth Amendment claim, the Court DENIES

15 Defendants’ motion. 16 B. Claims Against Defendant City: Monell13 Liability 17 In their motion, Defendants argue that “Plaintiff has not identified any specific policies or 18 customs that were the direct cause of the alleged constitutional violations in this case.” Dkt. 19 No. 28 at 24; see id. at 23–25. In his cross-motion, Plaintiff’s argument is two-fold: 20 (1) Defendant City trains its officers to draw firearms and search locked trunks in a HRVS and 21 refuses to adopt a lawful policy for HRVS; and (2) Defendant City ratified Defendant Officers’ 22 12 Defendants point out that these records are not for HRVS, as Plaintiff contends. Dkt. No. 55 at 2. Upon review, 23 the Court agrees. Nevertheless, the records are relevant to and potentially probative of Defendant Brown’s intent when conducting stops, including HRVS. 24 13 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). 1 conduct in this matter by conducting a “sham investigation,” failing to discipline Defendant 2 Officers, and promoting Defendant Brown. See Dkt. No. 40 at 23–28. 3 a. Legal Standard 4 A municipality can be held directly liable under § 1983 only for actions attributable to the

5 municipality. City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (citing Monell, 436 U.S. 6 at 690). To establish municipal liability, a plaintiff must prove the existence of an 7 unconstitutional government policy or custom that caused the alleged deprivation of rights. Id.; 8 Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997). The policy must 9 also amount to “deliberate indifference” to rights and be the “moving force” behind the 10 deprivation. Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020). 11 A municipality cannot be held liable simply because an employee or agent violated 12 § 1983; it can be “held liable only for those deprivations resulting from the decisions of its duly 13 constituted legislative body or of those officials whose acts may fairly be said to be those of the 14 municipality.” Brown, 520 U.S. at 403–04 (emphasis added) (citing Monell, 436 U.S. at 694).

15 Thus, a plaintiff must establish the existence of an official policy or an unofficial custom by 16 (1) “[s]howing a longstanding practice or custom which constitutes the standard operating 17 procedure of the local government entity . . . [(2)] showing that the decision-making official was, 18 as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to 19 represent official policy in the area of decision . . . [or (3)] showing that an official with final 20 policymaking authority either delegated that authority to, or ratified the decision of, a 21 subordinate.” Ulrich v. City & Cnty. of San Francisco, 308 F.3d 968, 985 (9th Cir. 2002) 22 (internal quotations and citations omitted). 23 A municipality is liable if the alleged constitutional deprivation was caused by a failure to

24 adequately train its employees. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). 1 Failure-to-train liability arises only if (1) the training program is inadequate “in relation to the 2 tasks the particular [employees] must perform”; (2) local officials were deliberately indifferent 3 “to the rights of persons with whom the [local officials] come into contact”; and (3) the 4 inadequacy of the training “must be shown to have ‘actually caused’ the constitutional

5 deprivation at issue.” Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989) (internal 6 quotations and citations omitted); accord Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th 7 Cir. 2007). Deliberate indifference “requires proof that the municipality had ‘actual or 8 constructive notice that a particular omission in their training program’ will ‘cause[ ] [municipal] 9 employees to violate citizens’ constitutional rights.’” Kirkpatrick v. Cnty. of Washoe, 843 F.3d 10 783, 794 (9th Cir. 2016) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). “In turn, to 11 demonstrate that the municipality was on notice of a constitutionally significant gap in its 12 training, it is ‘ordinarily necessary’ for a plaintiff to demonstrate a ‘pattern of similar 13 constitutional violations by untrained employees.’” Id. (quoting Connick, 563 U.S. at 62). 14 Finally, a municipality is liable for “ratification” of an act where a plaintiff can “prove

15 that the ‘authorized policymakers approve a subordinate’s decision and the basis for it.’” 16 Sheehan v. City and Cnty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014) (quoting 17 Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999)). Ratification “generally requires more than 18 acquiescence.” Id. There must be evidence that policymakers “made a deliberate choice to 19 endorse” the officer’s actions. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). 20 b. Application 21 Plaintiff appears to assert three theories of Monell liability for the alleged Fourth 22 Amendment violations: (1) policy or practice; (2) failure to train; and (3) ratification. See Dkt. 23 No. 50 at 24. The Court considers the Parties’ motions as to each theory.

24 1 (1) Policy or Practice 2 Construing the facts in the light most favorable to Plaintiff, the Court finds that no 3 reasonable jury could conclude that Defendant City maintains a policy or practice of routine 4 trunk searches during HRVS. On the contrary, the record shows that Defendant City does not

5 authorize such searches. Detective Outlaw, a 30(b)(6) designee, states that officers are instructed 6 to open a trunk or another locked area only if there is reason to believe there is “an immediate 7 hazard” or “an actual person” in that area. Dkt. No. 42-21 at 73:19–23. Captain Davisson, 8 another 30(b)(6) designee, states that a closed trunk may not be opened “without additional 9 factors” though he does not elaborate. Dkt. No. 54-2 at 93:10–12. But he also states that officers 10 are not permitted to open a locked trunk with a key as part of a sweep. See id. at 94:7–9. These 11 rules do not endorse trunk searches as a routine practice. To be sure, Defendant Nash exhibits a 12 troubling understanding of the policy, suggesting that he routinely checks a trunk as part of a 13 vehicle sweep. See Dkt. No. 42-19 at 68:2–3, 69:11–13. But there is no allegation that Defendant 14 Nash is a policymaker or was delegated policymaking authority. See Praprotnik, 485 U.S. at 130

15 (“Simply going along with discretionary decisions made by one’s subordinates, . . . is not a 16 delegation to them of the authority to make policy.”). Nor is there data that shows a practice 17 widespread among officers of routinely conducting such trunk searches. 18 Similarly, the Court finds that no reasonable jury could conclude that Defendant City 19 maintains a policy or practice of routine unlawful firearm use during a HRVS. While officers are 20 trained to draw firearms during a HRVS, they are permitted to point a firearm at a targeted 21 individual only if it is deemed necessary, not as a routine matter. Dkt. No. 42-21 at 5–6 (56:8– 22 57:13). Moreover, Plaintiff appears to argue that it is Defendant City’s failure to properly train 23 its officers and adopt a comprehensive HRVS policy that is the source of the alleged violations.

24 See Dkt. No. 40 at 24–26. 1 Accordingly, as to Plaintiff’s policy or practice theory of Monell liability, the Court 2 GRANTS Defendants’ motion and DENIES Plaintiff’s motion. 3 (2) Failure to Train 4 The Court finds that a reasonable jury could conclude that Defendant City’s failure to

5 train its officers on the use of force during a HRVS amounts to deliberate indifference to 6 constitutional rights. Of central significance is OPA’s investigation of Plaintiff’s complaint. See 7 Dkt. No. 42-10. First, OPA did not discipline any officers for the use of force, concluding that 8 “the officers technically did not use force under policy, let alone improper or excessive force.” 9 Id. at 6. Second, OPA highlighted in its final memo a lack of policy or training as to when 10 firearms should be drawn during a HRVS—a concern the agency has apparently raised before, 11 thus putting Defendant City on actual or constructive notice of the problem: 12 The more fundamental question for OPA is whether the officers should have drawn their firearms in the first place. OPA has 13 repeatedly identified concerns with the Department’s use of high-risk felony stops. There is no policy that governs such 14 tactics even though they constitute a significant imposition on a person’s liberty and involve the drawing of firearms, all on a 15 reasonable suspicion stop. There is no written guidance concerning during [sic] on which high-risk felony stops firearms 16 should be drawn and, as far as OPA is aware, the training lacks any nuance in this respect. OPA interviewed a Sergeant assigned 17 to the Training Unit who confirmed that absence of such discussion in the training. 18 Dkt. No. 42-10 at 6 (emphasis added); see also Dkt. No. 42-13 (letter from SPD chief declining 19 to adopt policy); Dkt. No. 42-23 at 6 (81:12-14) (stating that a HRVS is not defined by policy). 20 This concern is consonant with the opinion of Plaintiff’s expert, who states that Defendant City’s 21 existing training on the use of force—specifically, how to display a firearm when it is drawn—is 22 “a departure from generally accepted (basic) police tactics, techniques, and academy training.” 23 Dkt. No. 52 ¶ 30; see id. ¶¶ 24–30. More generally, Defendant City states that all officers are 24 1 trained to engage in a HRVS “if they deem this to be a safer practice and they deem it 2 necessary,” but as to what that means, Defendant City simply says that officers “need to 3 articulate why they did it.” Dkt. No. 42-21 at 51:8–10. Officers are not given a “checklist” (id. at 4 51:10) but are left to generally decide whether there is a need for HRVS. Therefore, a reasonable

5 jury could conclude that the wide discretion given to officers to use a firearm during a HRVS, 6 endorsed by Defendant City and unaddressed despite prior warnings from OPA, amounts to 7 deliberate indifference toward the constitutional rights of persons with whom officers are likely 8 to come into contact. See, e.g., Ostling v. City of Bainbridge Island, 872 F. Supp. 2d 1117, 1131 9 (W.D. Wash. 2012) (denying summary judgment to municipality on failure-to-train theory). 10 However, for the reasons stated in the previous section, the Court finds that a reasonable 11 jury could also conclude that Defendant City’s training does not amount to deliberate indifference 12 to constitutional rights or was not the cause of the alleged violations here. Defendant City cites a 13 variety of SPD policies that govern warrantless searches and the use of force, among other issues. 14 Dkt. No. 53 at 21–22. The training slides and deposition testimony also may show that officers are

15 trained on searches and the use of force in a holistic manner. Dkt. No. 42-8 at 18–22; Dkt. No. 54-1 16 at 3 (59:9–19, 60:10–14). 17 Accordingly, as to a failure-to-train theory of Monell liability, the Court DENIES 18 Defendants’ motion and DENIES Plaintiff’s motion. 19 (3) Ratification 20 The Court finds that a reasonable jury could conclude that Defendant City ratified the use 21 of force in this matter. The Court has found that there is a genuine dispute of material fact about 22 whether excessive force was used in this case. See supra, Section III.A.3.b. Therefore, a 23 reasonable jury could conclude that Plaintiff’s right was violated by the use of force and, for the

24 reasons stated in the previous section, could also conclude that Defendant City “ratified that 1 unconstitutional [act] by determining that it was lawful and within policy.” Thomas v. Cannon, 2 No. C15-5346, 2017 WL 2289081, at *13 (W.D. Wash. May 25, 2017) (denying summary 3 judgment to municipality on ratification theory); see also Perkins v. City of Modesto, No. C19- 4 0126, 2022 WL 297101 (E.D. Cal. Feb. 1, 2022) (same).

5 A reasonable jury could also conclude that the Defendant City did not ratify the use of 6 force. The OPA investigation shows at least some responsiveness to Plaintiff’s complaint, and 7 the assigned investigator utilized multiple sources of information, including an interview with 8 Plaintiff, to reach a conclusion. See Dkt. No. 42-11. Although SPD declined to adopt OPA’s 9 recommendation (Dkt. No. 42-13), it cannot be said as a matter of law that this decision amounts 10 to ratification as opposed to merely a differing view about proper remedial actions. 11 However, no reasonable jury could conclude that Defendant City ratified the 12 unconstitutional trunk search. Mr. Meyerberg, a 30(b)(6) designee, testified that the OPA 13 investigation did not explicitly address the trunk search. See Dkt. No. 54-3 at 5 (70:19–21). Thus, 14 Defendant City has never stated that the search was permissible nor accepted the basis for it.

15 Plaintiff shades this as evidence that Defendant City conducted a “sham” investigation and thus 16 ratified the act anyway. Dkt. No. 40 at 27. But Plaintiff’s complaint to OPA makes no mention of 17 the trunk search: it only includes a passing statement that officers “went inside if [sic] my vehicle 18 without my permission and took my car keys and other identifying info off my car.” Dkt. 19 No. 42-9 at 2. No reasonable jury could conclude from these facts that the investigation was a 20 “sham.” As Plaintiff’s own authorities demonstrate, a stronger showing of likely misconduct is 21 required. See Peck v. Cnty. of Orange, 501 F. Supp. 3d 852, 871 (C.D. Cal. 2020) (denying 22 summary judgment for municipality on ratification theory where expert opined that police may 23 have improperly influenced the investigation and investigators ignored physical evidence), rev’d

24 on other grounds by Peck v. Montoya, 51 F.4th 877 (9th Cir. 2022); Larez v. City of Los Angeles, 1 946 F.2d 630, 647 (9th Cir. 1991) (finding evidence of policy or custom where investigation 2 contained obvious “holes and inconsistencies” and where two-year study showed review process 3 rarely resulted in officer discipline). 4 Accordingly, as to Plaintiff’s ratification theory of Monell liability for the use of force, the

5 Court DENIES Defendants’ motion and DENIES Plaintiff’s motion. As to Plaintiff’s ratification 6 theory of Monell liability for the trunk search, the Court GRANTS Defendants’ motion and DENIES 7 Plaintiff’s motion. 9 Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for Summary 10 Judgment (Dkt. No. 28) and Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 40). 11 Dated this 31st day of July 2023. 12 A 13 Tana Lin United States District Judge 14

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