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Dawson Appeal Brief
I. STATEMENT OF JURISDICTION
A. The trial court had jurisdiction over Plaintiffs' claims pursuant to 28 U.S.C. §1331 and § 1367.
B. This court has appellate jurisdiction over the issues presented in this appeal pursuant to 28 U.S.C. §1291.
C. The lower court's orders on the parties' respective motions for summary judgment were entered on September 22, 2003. Plaintiffs' filed their notice of appeal and civil appeals docketing statement and paid all necessary fees on October 22, 2003.
D. This appeal is from orders granting and denying motions for summary judgment pursuant to FRCP 56.
II. ISSUES PRESENTED
A. The trial court erred when denying plaintiffs' motion for summary judgment on their Section 1983 claims against defendants Lasby and Lee as the undisputed facts establish that those defendants violated plaintiffs' fourth amendment rights while acting under color of state law, and that qualified immunity was not appropriate.
B. The trial court erred when denying plaintiffs' motion for summary judgment on their Section 1983 claims against defendant King County's Motion as the undisputed facts establish that King County failed to adequately train defendants Lasby and Lee and were deliberately indifferent to the need to do so.
C. The trial court erred when denying plaintiffs' motion for summary judgment on their Section 1983 claims against the City of Seattle as the undisputed facts establish that the detention of plaintiffs by SPD officers was unreasonable and violated plaintiffs' fourth amendment rights.
D. The trial court abused its discretion when awarding costs to defendants.
III. STATEMENT OF THE CASE
In September 1999, plaintiffs Dawson, Sogga, Emry and Foltz resided in boarding houses located in Seattle's Roosevelt neighborhood at 6418 and 6420 Brooklyn Avenue ("6418" and "6420"). Plaintiffs Sogga and Emry rented units in 6418 and Plaintiffs Dawson and Foltz rented units in 6420. The property manager for the two homes also resides at 6418.
On September 28, 1999, defendants Bill Lasby and Perry Lee, inspectors for the Seattle-King County Department of Public Health (DPH), obtained criminal inspection warrants authorizing the forcible inspection of plaintiffs' homes. The warrants do not specify the particular crime for which they were issued, but rather authorize DPH to generally search the homes, including every "individual living unit" therein, "for violations of Seattle Municipal Health Code," particularly rodent and insect infestation. Pursuant to DPH policy, defendant Lasby, arranged for stand-by assistance from the Seattle Police Department (SPD).
Inexplicably, SPD arranged for approximately ten of its officers, including officers from its Anti-Crime Team (ACT), to provide DPH with the requested assistance. SPD formed ACT to respond to the increased number of drug houses and specially trained ACT officers in evidence documentation and handling, working with other city agencies, and serving search warrants. Yet, there is absolutely nothing in the record indicating that SPD had any knowledge of who resided at 6418 and 6420, or that SPD had any suspicion that criminal activity was associated with those homes or their occupants-except, of course, possible rodent harboring.
The first home searched was 6418. Immediately upon entry, the SPD Officers "quickly" and "systematically" extracted the shocked and passive residents from their individual units. As they did so, the Officers frisked residents and questioned each about their identity and whether they possessed drugs or weapons in their units. For the duration of the search, SPD allowed no residents to leave, go to the bathroom unescorted, smoke a cigarette or make a phone call. Rather, pursuant to SPD policy, the residents, including plaintiffs Sogga and Emry, were forcibly detained for two hours in a bare, empty room at the back of the house. The result of the inspection of 6418 was some dried rat droppings.
SPD followed the same procedure upon entry into 6420, and met with equally passive residents, including plaintiff Dawson. The residents of 6420, however, were not detained inside their home, but rather guarded by a uniformed SPD Officer in their backyard, in view of their neighbors and passersby. The inspection of 6420 resulted in the discovery of some mouse feces and one "well-preserved" rat.
As a result of the inspections and detentions, plaintiffs sued the defendants alleging the defendants violated their federal and state rights against unreasonable search and seizure when the defendants searched their homes pursuant to overbroad warrants unsupported by probable cause, and when the defendants detained them against their will for the duration of the inspections.
In normal course, both parties moved for summary judgment. Plaintiffs' moved for summary judgment on their Section 1983 claims against defendants King County, City of Seattle, Lasby and Lee. Plaintiffs argued that, as a matter of law, their Fourth Amendment rights were violated when the inspection warrants were obtained and executed.
Defendants moved for summary judgment asserting that the warrants were valid because a judge signed them, the detention of plaintiffs was reasonable, and that the named individuals were entitled to qualified immunity.
The trial court denied plaintiffs' motions and granted defendants' motions finding that, as a matter of law, the inspection warrants met the probable cause standard for administrative warrants, that the warrants were not overbroad and that defendants Lasby and Lee were entitled to qualified immunity. The court also ruled as a matter of law that the detention of plaintiffs was reasonable under the totality of the circumstances. It is those rulings which plaintiffs appeal.
IV. STATEMENT OF FACTS
The Parties and the Properties
Plaintiffs' houses are located in the Roosevelt neighborhood of Seattle, and are just two of many in that area owned by Mr. Hugh Sisley. Like most Sisley properties, 6418 and 6420 were low-rent boarding houses that consisted of individual living units. For over 15 years, Todd Ade has lived at 6418 and managed both properties for Mr. Sisley.
Sogga and the other plaintiffs lived at 6418 and 6420 because of the affordable rent-Emry was a talented but struggling artist, Dawson was on disability due to her MS, and Foltz was a single father whose support obligations required him to live modestly.
The Informant and the County's response
In early September 1999, Ade's soon to be ex-brother in law, Mr. Richard Coppock contacted the Seattle City Attorney's Office (SCA) and spoke with Ms. Sandy Watson, an attorney with the SCA's civil division. Coppock told Watson he had observed a wide spread problem of rat and pest infestations in each house while spraying them for pests. In response to this information, Watson contacted Lasby, and they subsequently met to discuss Coppock's information.
Several weeks later, Lasby and Lee went to 6418 and 6420 and attempted to inspect the houses. In stark contrast to the events to follow two days later, they did so without police escort. Despite understanding that the homes contained individual housing units, they asked Ade to allow a search of the houses. Although Ade refused to allow them to search, he was not rude, nor did he make either Lasby or Lee fearful of him.
While at the homes, Lasby and Lee did examine the exteriors for evidence of rodent infestation, and both inspectors observed the same conditions. Lee, who has handled 5,000-8,000 DPH rodent complaints, stated that the conditions observed did not collaborate any concern of "rat harborage." Still, after being denied entry, Lasby and Lee applied to the Seattle Municipal Court for criminal inspection warrants allowing them to forcibly enter 6418 and 6420. Lasby applied for the warrant for 6418 and Lee applied for the warrant for 6420. In support of their applications, the inspectors provided the judge with their own Declarations and a Declaration signed by Coppock, which contains descriptions of the conditions he asserts to have observed approximately a month and a half earlier when he sprayed the houses for ants and when he returned several weeks later to reset the rat traps. The inspectors set forth their observations in the supporting Declarations, and despite Lee's opinion regarding the import of those observations, both inspectors indicate that their observations were consistent with Coppock's Declaration.
DPH policy, practice, custom and training regarding inspection warrants
DPH has an expectation that its inspectors will obtain and execute criminal inspection warrants. Yet, DPH provides its inspectors with no formal training regarding the proper manner of obtaining, serving and executing these warrants. Rather, DPH depends upon ad hoc training by the SCA's criminal division. Yet, DPH takes no steps to ensure the occurrence of even this ad hoc training, but relies upon informal conversations between supervisors and inspectors and sometimes the criminal division of the SCA. In addition, the SCA clearly does not understand that the DPH depends upon it to play such a role, as the SCA claims that it is "not in charge of advising DPH at all."
DPH also currently has no written guideline for its inspectors to follow when obtaining, serving, or executing inspection warrants, although "at some point in the future" it is planning on doing so.
Thus, neither Lasby nor Lee had received any training from DPH regarding search and seizure or the Fourth Amendment prior to applying for the inspection warrants for 6418 and 6420. In fact, Lee believed he could obtain and execute those warrants in any manner he saw fit, and he could simply rely completely upon Lasby to tell him that he had a right to these warrants.
Sufficiency and scope of the warrants
Lasby stated that he requested the criminal inspection warrant based upon alleged violations of Seattle Municipal Code (SMC) chapter 10.34.030, which violations are misdemeanors. That ordinance provides:
All premises and places shall be maintained free from rats, mice, and other rodents; and it shall be unlawful for the owner or occupant thereof to fail to take such reasonable preventive and remedial measures for such purpose as shall be prescribed by the Director of Public Health.
Yet, none of the declarations supporting the warrant applications contain any allegation that the owner or occupants of 6418 or 6420 had failed to take any preventive or remedial measures as "prescribed by the Director of Public Health." The declarations also lacked any indication that the occupants of 6418 or 6420 posed a safety threat to any DPH personnel or necessitated any police assistance.
The municipal court judge issued the warrants on September 28, 1999. The warrants are not issued against any particular unit within 6418 or 6420 or any particular resident, but reference only the address of the respective house, e.g. "In Re the Health Code Inspection of the Premises Located at: 6418 Brooklyn Ave NE Seattle, WA 98115." The warrants also do not make a finding that there is probable cause to believe evidence of a particular crime may be found in either home, but rather only that "it appears that there is probable cause to believe that violations of the Seattle Municipal Health Code exist in and upon the subject premises". Last, although the warrants allow for the general search "for evidence of violations of the Seattle Municipal Health Code" and the seizure of "any evidence of such violations."
SPD and DPH policy, practice, custom and training regarding service of inspection warrants
DPH has a blanket policy that for all inspections pursuant to a warrant, its inspectors use SPD assistance. Likewise, SPD has a practice of providing assistance to DPH on the service of inspection warrants, and otherwise provides such "stand-by" assistance on a "fairly regular basis." The "standard practice" that is followed when SPD officers provide stand-by assistance is to conduct a safety sweep of the premises, and generally to detain the occupants during the execution of the search warrant.
Service of the inspection warrants
On the morning of September 30, 1999, Lasby, Lee, and four other DPH employees, met at an SPD precinct with approximately 10 SPD officers, including many from the SPD ACT unit. SPD formed ACT to respond to the increased number of drug houses, and SPD specially trained them in evidence documentation and handling, working with other city agencies, and serving search warrants. Following a brief morning meeting, the DPH employees and SPD Officers drove to the homes.
Once there, they quickly found Ade in the back yard and told him "they have a search warrant." Ade told the SPD Officers that he wanted to read the warrant, but the Officers told him that if he did not immediately start opening doors, they would "bash it open" with a battering ram they had at the ready.
Upon entering, the SPD Officer immediately commenced removing the residents from their rooms "quickly" and "systematically". The Officers yelled, pounded on doors, yanked residents out of their units and even drew their weapons. Lasby was of the opinion that if any resident refused to open his or her door, SPD would have broken it down. The Officers also searched and interrogated many of the residents, including Mr. Emry, about their possession of drugs and weapons. The Officers reported absolutely no resistance from the stunned, confused, and scared residents.
The search and detention at 6418
The residents, including Plaintiffs Sogga and Emry, were detained in a large empty room. Pursuant to SPD policy and training Ofc. Bauer, who was uniformed and armed, guarded the residents. Ofc. Bauer testified that such detention utilized the first step on SPD's continuum of force-officer presence. If any detained resident had attempted to leave the room, additional police action would have occurred. The detention also went beyond mere detention, as SPD: (1) interrogated the residents, (2) threatened to arrest the residents, (3) prevented them from contacting an attorney, (4) told the residents that they could use the bathroom only under police escort and smoke only if handcuffed to the front porch.
At some point, the DPH Defendants completed their search of 6418 and left the premises to go have coffee. Meanwhile, the 6418 residents remained under Ofc. Bauer's guard. When the DPH Defendants returned 20-30 minutes later to start their inspection of 6420, they had to wait for the SPD Officers to complete their inspection of 6418. Mr. Lasby believed that SPD had obtained its own warrant.
This additional search took approximately 30 minutes, after which the residents, including Ms. Sogga and Mr. Emry were released-free to re-enter their rooms, and move about their house and yard unrestricted. Total detention time: slightly over 2 hours.
The search of 6420 and detention of its residents
Despite having found no evidence of rodent harborage at 6418, the Search Team proceeded to 6420 and repeated the process. SPD cleared the house, and the residents of 6420, who had been previously free to move about and even observe the search of 6418 from their yard and residence, were detained. This detention, however, was not hidden like at 6418, but rather was carried out in the back yard of 6420 in full view of the residents' neighbors and passersby on busy 65th Avenue. Again, SPD collected identifying information from the detained residents, including Ms. Dawson, who was escorted to her room so that she could produce her license. In her room she found two additional armed SPD Officers searching it. Ms. Dawson got her license and then was escorted back to detention. SPD released Ms. Dawson about an hour later. When she returned to her unit, she found her personal belongings and papers had been searched. When Mr. Foltz returned, he too found his personal papers had been searched.
The results of the DPH search of 6418 and 6420 were one well-preserved dead rat and some old dried rat droppings.
V. SUMMARY OF ARGUMENT
This case exists because (1) defendants Lasby and Lee failed to appreciate the incredible constitutional implications of their conduct when they obtained and executed criminal warrants that lacked the necessary constitutional specificity and probable cause, (2) Lasby and Lee's employer King County fails to take any steps to ensure that the DPH inspectors it both authorizes and requires to obtain and execute criminal search warrants receive adequate training on the constitutional limitations of that power and duty, and (3) defendant City of Seattle fails to appreciate that a cookie cutter approach to detentions pursuant to a search warrant is not constitutionally reasonable as not every detention is reasonable.
The trial court should be reversed because (1) it applied the improper standard when finding that the criminal inspection warrants in this case were supported by probable cause despite a lack of any indicia that the owner or occupants of 6418 and 6420 had committed a criminal violation of SMC 10.34.030, (2) it erred when finding that a warrant that authorizes the search for evidence of violations of an entire Title of a municipal code provides the necessary level of specificity this Court requires for criminal search warrants, and (3) it erred when thereafter granting qualified immunity to defendants Lasby and Lee, and summary judgment to defendants King County and the City of Seattle when those municipal agencies are deliberately indifferent to the constitutional rights of citizens like plaintiffs, who through absolutely no fault of their own, fall victim to the unconstitutional exercise of municipal policy. The court's rulings are error and must be reversed.
VI. ARGUMENT
The Fourth Amendment provides one of the paramount protections afforded by our federal constitution-the right to be free from unreasonable searches and seizures: "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." "Common sense and a rudimentary familiarity with our national history and consciousness tell us that no privacy interest strikes closer to the heart of the fourth amendment than protection from physical entry of the home. It is for this reason that the Supreme Court has called 'the physical entry of the home …the chief evil against which the wording of the Fourth Amendment is directed.'" Thus, the "guarantee of protection against unreasonable searches and seizures … marks the right of privacy as one of the unique values of our civilization and, with few exceptions, stays the hands of the police unless they have a search warrant issued by a magistrate on probable cause supported by oath or affirmation."
In this case, the trial court erred when finding that plaintiffs' fourth amendment rights were not violated by the defendants' conduct.
A. Standard of Review
The standard on summary judgment is well established. In deciding such a motion, the court will accept as true all evidence of the non-moving party and draw all reasonable inferences in the non-moving party's favor. Following that examination, a plaintiff is "entitled to summary judgment on liability if no material dispute of facts as to the defendant's liability exists for trial." Plaintiffs assert that the trial court erred when ruling on the motions for summary judgment as the undisputed facts of this case should have resulted in judgments in their favor on their Section 1983 claims. Review of a trial court's summary judgment rulings is de novo. Such review in this case, should result in the reversal of these contested rulings.
B. The trial court erred when denying plaintiffs' motion for summary judgment on their Section 1983 claims against defendants Lasby and Lee as the undisputed facts establish that those defendants violated plaintiffs' fourth amendment rights while acting under color of state law, and that qualified immunity is not appropriate.
Section 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To establish a violation of this provision, plaintiffs must establish that defendants Lasby and Lee (1) were acting under color of title, and (2) denied plaintiffs of a right secured by the federal Constitution. In this case, there can be no dispute that Lasby and Lee were acting under color of title when obtaining the inspection warrants for 6418 and 6420. There can also be no dispute that when obtaining those warrants, Lasby and Lee denied violated plaintiffs' fourth amendment right against unreasonable searches and seizure as the undisputed facts establish that the warrants are both impermissibly overbroad and unsupported by probable cause. The trial court's ruling to the contrary must be reversed.
1. The trial court erred when testing the sufficiency of probable cause to support the criminal inspection warrants in this case by the lesser probable cause standard applicable to administrative search warrants.
Plaintiffs argued in the trial court that the warrants in this case were not supported by probable cause because the warrant documents submitted by defendants Lasby or Lee did not contain sufficient probable cause for a criminal inspection warrant. The trial court rejected this argument, and instead, sua sponte, tested the sufficiency of the warrant by the probable cause standard for administrative warrants enunciated in Camara v. Municipal Court of the City and County of San Francisco. This was error.
In Camara, the United States Supreme Court addressed whether the fourth amendment prohibits a routine, nonconsensual administrative inspection of a private residence without a warrant supported by probable cause. The Court held that, absent exigent circumstances, the fourth amendment prohibits such inspections. Yet, the Court went on to conclude that the probable cause for such warrants need not meet "the standard applied in criminal cases", but rather is satisfied "if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling." Herein lies the flaw in the trial court's application of the holding in Camara to the case at bar: the warrants obtained by Lasby and Lee have always been understood, and asserted to be, criminal warrants. Indeed, the court from which Lasby and Lee sought their warrants does not have jurisdiction to issue administrative warrants.
As previously established, a Seattle Municipal Court judge issued the inspection warrants in this case. It is well established in Washington State that the jurisdiction of a municipal court judge to issue a warrant is limited to the issuance of a criminal warrant for the search for evidence of a crime, not for a civil code violation. DPH is mindful of this limitation, and that limitation is reflected in Lasby's warrant application wherein he references the court rule that allows a municipal court judge to issue a criminal search warrant, and informs the judge that violations of SMC Chapter 10.34 "are misdemeanors for which criminal penalties may be assessed." Hence, Lasby and Lee did not, and could not, apply in Seattle Municipal Court for an administrative warrant, only a criminal warrant.
Therefore, when Lasby and Lee applied for warrants allowing them to search for evidence of criminal violations of SMC Chapter 10.34, they could obtain those warrants "only upon a traditional showing of probable cause applicable to searches for evidence of a crime." Consequently, the trial court erred when testing the sufficiency of the probable cause for the warrants obtained and executed by Lasby and Lee under the relaxed probable cause standard for administrative warrants.
Moreover, given this well known limitation upon the authority of a municipal court judge to issue a warrant, had defendants Lasby and Lee sought and obtained administrative inspection warrants, the execution of those warrants would still violate plaintiffs fourth amendment rights.
As set forth in Camara, "a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Given that a Seattle Municipal Court judge does not have the jurisdiction to issue an administrative warrant, such a warrant "has no more validity that a warrant signed by a private citizen." Thus, if Lasby and Lee obtained administrative warrants, they violated plaintiffs' fourth amendment rights when they searched plaintiffs' homes pursuant to patently invalid warrants.
2. The undisputed facts establish that the criminal inspection warrants obtained and executed by defendants Lasby and Lee do not meet the appropriate probable cause standard for criminal warrants.
Defendant Lasby did not elaborate in either his application for the inspection warrant, nor in his Declaration submitted in support thereof, which ordinance within SMC Chapter 10.34 he suspected was being violated at 6418. Defendant Lee's Declaration submitted in support of the issuance of the warrant for 6420 essentially mimicked Lasby's, and therefore, it too lacked any further specification of the crime suspected of being violated at that residence. The warrants themselves also do not specify the code violation for which they were issued, but rather reference only the "Seattle Municipal Health Code". Lasby was the individual who made the decision to seek the warrants. He was asked in discovery which criminal violation set forth in SMC Chapter 10.34 was the basis for the warrants. In response, Lasby specified SMC 10.34.030. That ordinance provides:
All premises and places shall be maintained free from rats, mice, and other rodents; and it shall be unlawful for the owner or occupant thereof to fail to take such reasonable preventive and remedial measures for such purpose as shall be prescribed by the Director of Public Health.
Yet, none of the warrant documents provided by Lasby and Lee in support of their warrant requests provide sufficient probable cause to support the issuance of a criminal warrant based upon a suspected violation of SMC 10.34.030.
The probable cause standard for a criminal search warrant is met when, viewing all the circumstances set forth in the supporting declaration, there is a fair probability that contraband or evidence of a crime will be found in the place to be searched. In this case, the warrant documents are devoid of any allegation or articulable fact that would enable a reasonable person to conclude that the owner or any resident of either 6418 or 6420 had failed to take any preventive or remedial measure prescribed by the DPH Director. Indeed, Lasby concedes the lack of any such evidence. Therefore, the trial court erred when rejecting plaintiffs' argument that the warrants obtained and executed by Lasby and Lee contained insufficient probable cause for a warrant based upon alleged violations of SMC 10.34.030.
When rejecting plaintiffs' argument on this issue, the trial court incorrectly viewed the plaintiffs' use of Lasby's discovery responses as an improper attempt "to limit the warrants' scope" because plaintiffs had failed to provide any "authority for the proposition that a defendant's statement three and a half years after the search warrant was obtained can alter the stated purpose of the warrant or its factual underpinnings." Yet, FRCP 56(c) specifically provides that motions for summary judgment may be based upon answers to interrogatories, which seems particularly appropriate in this case, as Lasby did not contest plaintiffs' argument based on the response.
Moreover, even if using discovery in this manner is improper, the response sought and received from Lasby's did not result in a contradiction of the terms of the warrants, but rather only in a clarification of the criminal violation for which they were sought. Thus, there is no reasonable basis for the trial court to decline to examine the warrants in light of Lasby's testimony regarding the suspected criminal violation for which they were issued.
The court also found that there was probable cause for a violation of SMC 10.34.030 because that ordinance "also mandates that all residences 'be maintained free from rats, mice, and other rodents…'" and that "Defendants had probable cause to suspect plaintiffs had failed to comply with this requirement". Yet, SMC 10.34.03 is not reasonably read to render criminal a violation of the opening language regarding the presence of rats, mice or other rodents in a residence. Indeed, such a reading would allow plainly absurd results, as every household containing any rodent, e.g. a rat, mouse, hamster, gerbil or guinea pig-either unwittingly or as a pet, would be subject to criminal search and prosecution.
Such a reading is also contrary to the ordinance itself. The section relied upon by the court is clearly separated by a semicolon from the section in which the ordinance declares certain conduct unlawful. Such a construction indicates a desire on the part of the drafters to set off its preamble language from that which it intended to deem criminal. Had the Seattle City Council intended to place such restrictions and strict liability upon a homeowner, they certainly could have done so by simply starting the ordinance with the language that follows the semicolon-"it shall be unlawful…". Absent such a drafting, the ordinance is not reasonably or logically read as making unlawful the mere failure to keep a premise free from rats, mice, and other rodents. Therefore, in this case, Lasby and Lee violated the plaintiffs' fourth amendment rights when obtaining and executing criminal search warrants that were unsupported by probable cause.
3. The undisputed facts establish that the criminal inspection warrants obtained and executed by defendants Lasby and Lee were impermissibly overbroad in that neither warrant specifies the crime for which it was issued, and both allowed for the search for and seizure of evidence of a violation of any portion of the local health code.
Plaintiffs' also argued to the trial court that summary judgment was appropriate against Lasby and Lee because the undisputed evidence established that the inspection warrants they obtained and executed were fatally overbroad. When rejecting this argument, the court found the warrants provided sufficient "guidance to the officer charged with its execution." This ruling is error.
This Court has previously held a warrant that which allows for essentially unrestricted seizure of items pursuant to such "catch-all" phrases like "'violation of' 21 U.S.C. § 841(a)(1) did not adequately describe the items to be seized" and were facially deficient. Likewise, warrants that allow for the seizure of 'evidence of violations of federal criminal law' without describing the specific crimes suspected is constitutionally inadequate." "Such warrants are suspect because 'nothing on the face of the warrant tells the searching officers for what crime the search is being undertaken.'" Indeed, this Court has also repeatedly criticized "the failure to describe in a warrant the specific criminal activity suspected", and found such warrants "not sufficiently particular."
Consequently, the inspection warrants obtained and executed by Lasby and Lee, which the trial court recognized as broad, are overbroad as a matter of law. The warrants neither specify the particular crime being investigated or the evidence to be seized. To the contrary, the warrants authorize the "search for evidence of violations of the [entire] Seattle Municipal Health Code", and the seizure of "any evidence of such violations, including photographs and any other evidence of filth, debris, rodent or insect infestation". These warrants violate the fourth amendment and plaintiffs were entitled to summary judgment on this issue.
4. The trial court erred when granting defendants Lasby and Lee qualified immunity as the undisputed facts establish that no reasonably trained inspector in their position would have applied for the criminal inspection warrants in this case.
The trial court granted defendants Lasby's and Lee's motion for qualified immunity. Review of this ruling requires that plaintiffs' facts be viewed as admitted, and if, the facts are not materially disputed, review is de novo. Such review must result in the reversal of the trial court's qualified immunity ruling.
In the context of obtaining a warrant, the qualified immunity analysis is resolved by determining "whether a reasonably well-trained officer in [defendant's] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. If such was the case, the officer's application for a warrant was not objectively reasonable" because, it created the possibility of unconstitutional conduct. That a judicial officer issues the warrant does not impact this conclusion. As pointed out by the Supreme Court, there is always the possibility that an overworked "magistrate will issue a warrant when one should not be authorized", and therefore the Court put the burden squarely "on the officer applying for the warrant to minimize this danger by exercising reasonable professional judgment." In this case, the only reasonable conclusion that can be drawn from the undisputed facts is that defendants Lasby and Lee "failed to exercise the requisite reasonable professional judgment" when they sought search warrants for the Plaintiffs' residences.
As previously established, Lasby and Lee sought criminal inspections warrants, and therefore should have possessed sufficient indicia of criminal probable cause prior to doing so. Yet, neither inspector provided the municipal court judge with any circumstances that allows for the probability that contraband or evidence of the suspected crime would be found in the plaintiffs' homes. That is, neither Lasby nor Lee averred to possess any facts indicating that either the owner or any occupant had violated SMC 10.34.030, or any other criminal law for that matter. Consequently, a reasonable officer in Lasby's and Lee's positions would not have sought the issuance of the warrants they obtained and executed, and the trial court erred when granting them qualified immunity.
C. The trial court erred when denying plaintiffs' motion for summary judgment on their Section 1983 claims against defendant King County's Motion as the undisputed facts establish that King County failed to adequately train defendants Lasby and Lee and were deliberately indifferent to the need to do so.
Plaintiffs moved for summary judgment on its section 1983 claim against defendant King County asserting that the above fourth amendment violations committed by defendants Lasby and Lee were the result of a failure of King County to properly train them regarding the parameters of the fourth amendment. The trial court denied plaintiffs' granting judgment to King County upon finding that the alleged failure to train was of no moment given the validity of the inspection warrants. As previously argued, however, the trial court erred when ruling on the sufficiency of the warrants. In addition, the record supports judgment in favor of plaintiffs.
The U.S. Supreme Court held in Canton v. Harris that "a city can be liable under § 1983 for inadequate training of its employees…where the failure to train amounts to deliberate indifference to the rights of person with whom the [employees] come into contact." This is so because
it may happen that in light of the duties assigned to specific officers or employees that the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may be fairly said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
In this case, the undisputed facts establish that King County was deliberately indifferent to the fourth amendment rights of the Seattle citizens, such as plaintiffs, whom its DPH inspectors would inevitably to come into contact as a result of a DPH inspection warrant.
DPH's FRCP 30(b)(6) designee, Roman Welyczko, testified that DPH expects its inspectors to obtain criminal inspection warrants. Mr. Welyczko also stated that it is DPH policy that every such inspection occurs with the assistance of SPD officers, who essentially run the show until the house is cleared of occupants. DPH, however, fails to provide its inspectors with adequate search and seizure training, or the any guidance regarding the manner in which a criminal warrant should be obtained, served and executed, or in the proper supervision of other agencies or individuals who act under the authority of a DPH criminal inspection warrant. To the contrary, the only training received by DPH inspectors is informal "ad hoc" training, although DPH takes no steps to ensure that even that training take place. Mr. Welyczko also stated that DPH provides no written guidelines to the inspectors who are expected to obtain, serve and execute criminal inspection warrants, although, "[a]t some point in the future", it is planning on doing so. Basically, Mr. Welyczko stated that DPH relies upon the City Attorney's Office to advise DPH inspectors, yet DPH failed to convey this understanding to that Office which claims that it "is not in charge of advising DPH at all."
Lasby and Lee provided similar testimony. Both testified that the DPH never provided him with any specific training regarding the fourth amendment and the search of a private home, and that DPH had no set procedure in place for inspectors to follow when applying for a search warrant. While Lasby did receive some assistance Ms. Watson, that assistance was limited and of no substance.
Thus, while DPH expects that its inspectors will obtain and execute criminal inspection warrants it fails to provide those same individuals, including defendants Lasby and Lee, with adequate training on the constitutional limitations of that authority. Indeed, the ultimate result of the sparse, unregulated, "ad hoc" training DPH provides its inspectors allowed Lasby to believe and operate under the untrained opinion that he could obtain and execute the inspection warrants in this case in whatever manner he saw fit, and allowed Lee to simply follow along. In fact, Lee did not even understand a violation of the rodent harborage ordinance to be criminal in nature. He simply relied upon Lasby's opinion that he had a right to the inspection warrant he sought for 6420.
Under such circumstance, King County should be held accountable for the constitutional deprivations that were certain to, and in this case did occur: a DPH inspector obtaining and executing a criminal search warrant in a manner that violates the fourth amendment. Lasby and Lee obtained and executed the inspection warrants in this case consistent with the level of training that they received. That is, they did so believing that they could obtain and execute the warrants in whatever fashion they believed appropriate. At a minimum, the evidence, when viewed most favorably to plaintiffs raises and issue of fact as to whether King County was deliberately indifferent to plaintiffs' fourth amendment rights, although plaintiffs insist that the record supports judgment in their favor.
D. Plaintiffs' were entitled to an order granting their motion for summary judgment on their Section 1983 and Fourth Amendment claims against the City of Seattle and Chief Kerlikowske, in his official capacity.
Fourth Amendment protections against unreasonable government seizures extend to detentions incident to execution of search warrants. The seminal Supreme Court decision defining the contours of a constitutionally permissible detention incident to the execution of a valid search warrant is Michigan v. Summers. In that case, Detroit police officers were about to execute a narcotics warrant against a residence when they encountered the respondent just outside of the house and requested the respondent to assist their entry into the residence; and thereafter detained him while they searched the residence.
In answering the dispositive question whether this detention violated the respondent's Fourth Amendment rights, the Supreme Court examined "both the character of the official intrusion and its justification." When doing so, the Court noted that such detentions during a search for contraband served four legitimate police interests: (1) the police would be able to apprehend the resident if the search resulted in the discovery of contraband, (2) the police could protect officer safety by controlling the premises, which during a narcotics search could become suddenly violent during a frantic effort by the occupants to destroy or conceal drug evidence, (3) that a judicial officer has previously determined that the police had probable cause to believe someone in the home had committed a crime, which connects the resident to a suspicion of criminal activity, and (4) the detained resident would enable police to assist with the search for narcotics because the residents could open locked containers.
The Court further noted that this type of limited detention is not unreasonable since a police officer will not likely exploit the detention because the officer will seek to gain any desired information from the search rather than from the detained resident. From these findings, the Court concluded that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Significantly, the Court questioned whether a detention during a search for mere evidence, as opposed to contraband, would be similarly justified by the above police interest thereby leaving the reasonableness of such detentions unresolved.
General Application of the Summers Factors in the Ninth Circuit
In Ganwich v. Knapp, this Court applied the holding from Michigan v. Summers to find that police detention of employees during a search of their work site violated their Fourth Amendment rights. In Ganwich, police officers searched a business looking for incriminating evidence of business practices suspected of being fraudulent and harmful to consumers. During the search, the police held the employees incommunicado in a large waiting room. The police told the employees that they were not under arrest, yet prevented them from going to the restroom without police escort, from retrieving their personal possessions, and from making or taking office telephone calls. The police held the employees for between one hour and forty-five minutes and four hours and forty-five minutes, yet released the employees only after they submitted to tape-recorded interrogations.
This Court, in noting that a seizure becomes unlawful when it is more intrusive than necessary because the scope of the detention must be carefully tailored to its underlying justification, stated that the government's conduct "went from fair to foul" when the police required the employees to submit to coerced tape-recorded interrogations. These types of interrogations did not serve any legitimate police interests that initially justified the detention; therefore the continued detention violated the employees' Fourth Amendment rights.
1. The Detention Violated Plaintiffs' Fourth Amendment Rights Because it Exceeded the Permissible Scope for Detentions Established by the Summers Factors.
The district court wrongly concluded that the plaintiffs were not entitled to an order granting their motion for summary judgment because it mistakenly found the subject detentions justified under a totality of the circumstances. Under the proper standard of review, this Court (1) reviews the district court ruling de novo, (2) views the evidence in the light most favorable to the defendants, who are the non-moving parties, and (3) may only rule in the plaintiffs' favor if the uncontroverted facts demonstrate that the plaintiffs are entitled to judgment as a matter of law.
The Detentions at 6418 and 6420 were Unlawful
On this appeal, the central question before this Court is whether the detentions at 6418 and 6420 violated the plaintiffs' Fourth Amendment rights as a matter of law. Applying the Summers factors to the undisputed evidence in this matter militates in favor of this Court answering the above question by finding unlawful the detentions at 6418 and 6420. The fundamental premise underlying the analysis is that a detention incident to a search becomes unlawful when it's not carefully tailored to its underlying justification and when it's more intrusive then necessary to accomplish legitimate governmental objectives. As noted above, the Supreme Court in Michigan v. Summers distilled a number of discreet factors by which a court may assess the reasonableness of any detention incident to a search. In this Court's previous application of those factors both to searches for criminal and municipal code violations, it has defined the permissible limits of a Summers-type detention. The searches at 6418 and 6420 exceeded those limits.
The Underlying Reason for the Search was to Seek Evidence of Rat Infestation
The conduct of the SPD officers during the search must be measured by the government's underlying justification for conducting the search in the first instance. The search warrant underlying the searches stated that the purpose of the search was "to discover violation of the Seattle Municipal Health Code." The DPH inspector in charge of the searches, Lasby, stated DPH specifically sought the warrant to search for violations of SMC 10.34, Seattle's rat harborage ordinance. In fact, Lasby understood that the DPH inspectors were conducting the searches to look for evidence in the houses such as rat droppings, gnawing marks, and chewed up nesting materials to determine if the house had rat harborage. Lasby brought in Lee to assist with the searches because Lee was an expert DPH inspector, who had conducted from 5,000 to 8,000 of these types of inspections. In Lee's opinion, the search was limited to accessible "man-made food sources" because as Lee explained, there is a direct correlation of food to the rodent population so without an available man-made food source the rodent population would migrate to the next available source. Lee made this statement because rats do not eat debris and rubbish and they tend to move only twenty to fifty feet away from their food source. Regardless of DPH's limited search for signs of rodent infestation and accessible "man-made food sources," the underlying inspection warrants did not authorize anyone to search inside any closed or locked container. Thus, according to the warrants, DPH's lead inspector, and DPH's search expert, the government's underlying justification for the searches was to search for evidence of rat harborage as evidenced by accessible man-made food sources, rat droppings, gnawing marks, and chewed up nesting materials. According to DPH's search expert, the dispositive critical item for which to search was the man-made food source because without the food source there would likely be no rodent infestation.
Having identified the purpose justifying DPH's search, the next step in the analysis is to assess whether the detention was carefully tailored to its underlying justification and not more intrusive then necessary to accomplish DPH's objectives as stated in the warrants and by their lead inspector.
Evidence of Rodent Infestation would not have led to a Criminal Arrest
The detentions are not justified by the first Summers factor, which is its reasonable to detain during a search when the detention will enable the police to easily apprehend the resident if the search yields contraband. Here, it is undisputed that the warrants ordered the DPH inspectors to search for evidence of SMC violations and evidence of, inter alia, rodent infestation. If the search had found this evidence, Lee confirmed that in his experience DPH would apprehend no one. Lee stated that once DPH found a violation of SMC's rodent harborage ordinance-by search or otherwise, he would send out an ordinance violation letter requiring remedial action. If the recipient failed to take the requested action, DPH would, according to Lee, refer the matter to the Seattle-King County Department of Land Use (DCLU) for civil fines because he understood, based on his 32 years of experience with DPH, that violating the rodent harborage ordinance was not criminal in nature. Thus, this factor does not support finding the detentions reasonable.
The Detention failed to prevent the Possible Destruction of Evidence of Rat Harborage
The detentions failed to support the second Summers factor, which is that detentions incident to a search may be more reasonable because they prevent the possible destruction of evidence and contraband. This failing occurred because DPH's lead inspector, Lasby, allowed the property manager, Ade, to go to the second house to be searched, 6420, to alert the residents about the pending search. Lasby even admits it's likely that the residents of 6420 may have cleaned up the premises as a result of Ade's early warning. DPH's decision to allow Ade to roam the properties during their inspection likely impeded their search and may have resulted in the destruction of evidence. The decision thus nullified the tendency of this Summers factor to cause a search to be more reasonable.
Evidence of Rodent Infestation would not have led to a Suspicion that any Resident was connected to any Criminal Activity
The detentions are also not justified by the third Summers factor, which is that detentions incident to a search may be more reasonable because a judicial officer has probable cause to determine that someone committed a crime at the residence thus rendering an occupant subject to the suspicion of criminal activity. As noted above, even if the searches had revealed evidence of rat harborage, DPH would not have criminalized the plaintiffs' occupation. According to Lee with his 32 years of DPH experience, DPH would have first sent an ordinance violation letter. If no one remedied the violation, DPH would have then forwarded the matter to DCLU for civil enforcement. Additionally, it is difficult to conceive that the Supreme Court in Michigan v. Summers intended a violation of a municipal health code by virtue of rat harborage to be considered as "criminal activity." This is especially true given that Michigan v. Summers and the vast majority of its progeny are cases involving detentions incident to the search for narcotics-not rats.
The Detentions Prevented the Residents from Assisting with the Searches
Detaining the residents and thereby preventing their assistance with the searches is not justified by the fourth Summers factor, which is that a detention is more reasonable when the detained residents are present during the search and are able to assist the search by opening locked doors and containers. First, it is undisputed that the defendants detained the plaintiffs during the entire search of each residence thus preventing them from observing or participating in the searches. Second, it is undisputed that the resident manager of both 6418 and 6420, Ade, assisted with the search of both houses and opened locked doors for the officers thus rendering moot any reason to detain the residents for this purpose. Third, it is also undisputed that the search warrants did not authorize the search of any container-locker or otherwise, thus rendering moot any reason to detain the residents for this purpose. Last, at least one resident, plaintiff Dawson, wanted to watch the search of her unit but rather then grant her multiple requests, the officers detained her thus directly undermining this Summers factor. Significantly, by preventing the plaintiffs from watching the search of their respective units, the defendants deprived them of the ability to review the warrant and then ensure by observation that the search did not exceed the warrant's scope into unlawful containers, personal papers, and other items outside the warrant's scope. Simply stated, if SPD or DPH had intended to exceed the scope of the warrant, their first step would have been to prevent the plaintiffs from observing their search, which is what occurred here. It is noteworthy that the police in Michigan v. Summers, unlike the officers here, allowed the plaintiff to observe the search of his residence.
SPD used the Detentions to gather Information beyond that authorized by the inspection search warrants
The detentions here also violated a fifth factor from Summers, upon which the Supreme Court appeared to place significant weight. The Supreme Court noted that a limited detention incident to a narcotics search for contraband is not unreasonable because a police officer will not likely exploit the detention because the officers will seek to gain information from the search rather than from the detained. As this Court noted in Alexander v. City and County of San Francisco in the execution of warrants for municipal code violations there is no assurance that the police would lack incentive to gain more information from the resident than from the search. This statement proved true here because the officers used the detentions to gain information outside the scope permitted by the warrant in direct violation of the test laid out by the Supreme Court in Michigan v. Summers. The uncontested testimony of plaintiffs Emry and Dawson is that the SPD officers extracted each of them from their units and interrogated them about the possession of drugs. Next, the uncontested evidence demonstrates that the SPD officers obtained identification information from each plaintiff and checked for outstanding criminal warrants on the residents of 6418 and 6420. SPD's interrogation and search of each residents' records is the very type of conduct which this Court cautioned against in Alexander when it commented that the authorities were "very clear" that police officers may not convert searches for violations of municipal codes into searches serving the "very different needs of law enforcement" as opposed to the needs of the municipal inspectors. SPD's conduct here evaporated the traditional protections against improper police intrusions.
The Detentions failed to promote officer safety
Last and most significantly, the detentions here failed to promote officer safety and thus fail to meet the last of the Summers factors, which is detention are more reasonable when they promote officer safety. The defendants will likely counter this assertion by claiming the detention protected them (1) from a dangerous individual, Gilbert, known to associate with a large number of boarding houses in the neighborhood, including 6418 and 6420, (2) from the possibility that the residents might leave the premises to seek outside assistance to impede the searches, and (3) from the unknown boarding house occupants.
Although perhaps initially appealing, these rationales fail when compared to the contemporaneous uncontested evidence and when assessed under this Court's holding in Ganwich. Factually, it is uncontested that SPD's local community police officer Bauer was familiar with Gilbert and that she participated in the initial entry and detention of the occupants. She failed to identify Gilbert as being in either residence. Interestingly though Ofc. Bauer admits that during pervious boarding house inspections where Gilbert had appeared, he was not a problem when she was at the scene in "stand-by" mode-her mere presence kept him a bay. In fact, it is uncontested that the SPD were so concerned with Gilbert's possible presence that instead of posting a look out to alert the DPH inspectors if he appeared, they focused all their energies in the premises for the duration of each search.
Factually related to the Gilbert issue are the uncontested facts that the officers (1) allowed one resident to leave the premises at the commencement of the search without being detained, (2) searched the two residences in sequence as opposed to simultaneously, and (3) allowed Ade to roam the properties during the search to open doors, but also possibly to destroy evidence of rat infestation. These facts are related to the Gilbert issue because it was quite possible for the released occupant to go and seek outside assistance. It appears also quite possible for Ade to have sought outside assistance. Last, because they searched the residences in sequence and because their close proximity to each other, the residences of 6420, the second house to be searched knew about the search both from their own observations and from Ade: they could have easily left to seek outside assistance or otherwise impede the search. These facts eviscerate any claim that the detention was for officer safety to prevent the summoning of outside assistance, whether from Gilbert or anyone else. If officer safety was the reason for the detention, then the officers would have not let anyone leave the scene, would have controlled Ade's movements, and would have search the two residences simultaneously.
This Court recognized and affirmed this type of analysis in its decision in Ganwich v. Knapp. As noted above, the Ganwich Court addressed facts in which the justification for holding occupants incommunicado vanished when the officers allowed the first detainee to leave the premise to interact with the general public. As in Ganwich, the decision to conduct the searches in a manner that allowed some of the residents to leave the scene prior to the search renders mute the justification that the detention promoted officer safety by not allowing the detained to seek outside help to impede the search.
The last and most spurious justification likely to be offered by the defendants for using officer safety to justify the detention is that the police lacked any intelligence on the residents of 6418 and 6420. The police admit that they had no intelligence on the residents to inform them of any dangerous individuals or drug activity at either residence. The SPD officers ultimately concluded that the residents were a danger to them simply because the lived in a boarding house. Ofc. Dornay from the ACT team that searched the residences admitted that narcotics detectives would not even write search warrants for boarding houses. Ofc. Zylak admitted that he believed that people living in boarding houses tend to have drug, alcohol, and mental health problems. These beliefs, without any supporting intelligence on the residents, amount to nothing more then gross stereotyping. In part, it was this stereotyping that led to the residents' detention.
The officers' decision to detain the residents under these facts and without any articulated intelligence violated their Fourth Amendment rights. Particularly egregious is the fact that the SPD officers used their participation in this inspection process to obtain information related to law enforcement interests but not related to finding evidence of rat harborage.
2. SPD's blanket policy of detaining all citizens subject to any search warrant prevented SPD from specifically tailoring the detention to the specific circumstances of this search.
SPD's blanket policy of detaining all occupants incident to any type of search runs a significant risk of violating the Fourth Amendment rights of those detained because it greatly impedes the detaining officers' ability to tailor the detention to the circumstances. As stated above, a fundamental premise in finding a detention incident to a search lawful or unlawful is an assessment of whether the detention was carefully tailored to the search's underlying justification and whether the detention is more intrusive then necessary to accomplish legitimate governmental objectives. This requirement to "carefully tailor" a detention to the justification underlying the search strongly militates in favor of finding any blanket policy mandating detention unconstitutional.
This reasoning was affirmed in Franklin v. Foxworth, an otherwise factually distinguishable case, when the Franklin Court rejected the police department's argument that the detention in Franklin was reasonable because it was carried out pursuant to an established practice or custom. The Franklin Court stated that reliance on a blanket practice or custom "simply ignores the [Supreme Court's] warning in Summers that detaining persons present at the premises for the duration of a search may be unreasonable in certain circumstances."
Here, the undisputed evidence is that SPD detained the plaintiffs for the entire search of their respective houses. SPD admitted, during a CR 30(b)(6) deposition, via its designated agent Captain Joseph C. Kessler, that it justified the detentions by citing SPD's training and basic principles that require SPD to detain "people when [SPD is] in the middle of a search warrant of any kind. Capt. Kessler specifically stated that this would include detaining people during the execution of any type of warrant, including any DPH inspection warrant.
In fact, this policy, combined with officer stereotyping, caused the detention in the first instance. SPD Chief Kerlikowske admits in his interrogatories answers that the reason for the detention was "officer safety." As discussed above, however, the admitted and uncontested facts of this case demonstrate that detention and search were in executed in a way that undermined officer safety and the officers involved admitted that they had no intelligence that any resident presented a danger. In fact, those two officers demonstrated a belief that people living in boarding houses were inherently dangerous simply because they both associated narcotics with poor people living in boarding houses. SPD's blanket detention policy and practice allowed the officers to act on their unsupported beliefs and authorized them to detain the plaintiffs regardless of the circumstances.
Municipal liability flows from the officers' decision to detain the plaintiffs because they made the decision in the absence of any intelligence regarding the residents and based solely on their unsupported beliefs that these plaintiffs likely had drug issues because other boarding house residents have drug issues. SPD's detention policy caused the improper detention because it trained the officers to always detain and failed to train them to tailor their decisions to the circumstances surrounding each individual search.
3. The order granting defendants' motion for summary judgment was improper because, at minimum, a question of material fact exists as to what portion of the detention at 6418 and 6420, if any, was reasonable under the Summers factors.
The district court wrongly concluded that the defendants were entitled to an order granting their motion for summary judgment on the detention related issues because it found the subject detentions justified as a matter of law under a totality of the circumstances. As noted above, this Court (1) reviews the district court ruling de novo, (2) views the evidence in the light most favorable to the plaintiffs, who are the non-moving parties, and (3) may only rule in the defendants' favor if there are no issues of material fact and the facts demonstrate that the defendants are entitled to judgment as a matter of law.
Based on the evidence in the record, the arguments set out above, and the shift in presumptions that renders all above cited facts a verity for purposes of this specific appeal, the plaintiffs are entitled to an order reversing the district court's order granting the defendants summary judgment.
E. The defendants' misconduct entitles plaintiffs to an order reversing the district court's award of defendants' cost bill.
The district court awarded defendants' costs bills without any reference to plaintiffs' request to strike the two cost bills as a result of their misconduct. Federal Rule of Civil Procedure 54(d)(1) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Yet, this presumption in favor of awarding costs to a prevailing party is not absolute, as the rule also vests discretion in the district court to refuse to do so. Plaintiffs assert that Defendants' requests for costs should be denied in their entirety, or at a minimum, significantly reduced.
Here the defendants' joint motion in-limine on the Requests for Admission constituted such misconduct worthy of punishment. Defendants' joint motion on the Requests for Admission was based on a serious, material misrepresentation to the district court. The all defendants claim that the city defendants served the Requests for Admission on the plaintiffs on May 8, 2003, and that plaintiffs never objected to the need to respond to those Requests. This is simply not true.
To the contrary, the evidence clearly establishes that the city defendants served the plaintiffs with the Requests for Admission on May 14, 2003 and that the plaintiffs' asserted on several occasions that they believed the untimely service relieved them of their obligation to respond. The evidence also unfortunately also establishes that ALL defendants were aware of these facts well before they filed their Motions in-Limine.
The damning evidence was overwhelming. First, the legal messenger slip used by the city defendants to serve the Requests for Admission is dated 05/14/2003. Second, the city defendants' Declaration of Service is executed by Ms. Betty A. Mantach, apparently Ms. Carr's legal secretary on May 14, 2003, in which Ms. Mantach states, under oath, that on May 14, 2003 she caused the service on the plaintiffs of the city defendants Requests for Admission via messenger. Last, Ms. Carr signed and dated the Requests for Admission on May 14, 2003-six days after she affirmed to the district court that she served them on the plaintiffs. Most disturbing was the fact that the city defendants' exhibits for the four plaintiffs were identical except for the top exhibit, which was the only exhibit stamped May 8, 2003, was missing Ms. Carr's dated signature and Ms. Mantach's affidavit of service. The remaining three exhibits contained both Ms. Carr's dated signature and the affidavit of service. It appears that someone removed these pages from the first exhibit thus making the misrepresentation less obvious. The King County defendants joined the city Defendants in making these misrepresentations when they filed King County Defendants' Joinder in City of Seattle Defendants' Motion in limine-thus they are equally responsible for these misrepresentations.
The misrepresentations are the type of conduct worthy of punishment. All parties and especially counsel have a duty of candor to the court. Breaching this duty damages not only the parties involved but also the very fabric of our justice system. Some may call knowing fabrications harmless error because they fail to immediately harm a party, but such statements are misplaced. When a party makes a misrepresentation to a court and before all other parties to the litigation that is contrary to their own public conduct, harm always results. Losing parties lose faith in the justice system and in its pronouncements when it appears that parties can make material factual misstatements without consequence. There ought to be a consequence to the misstatements made here, and it ought to be a denial of both defendants' cost requests.
VIII. CONCLUSION
Based on the foregoing, the trial court's rulings on summary judgment, qualified immunity, plaintiffs' motion to amend the complaint and order on costs, must be reserved.
DATED this 17th day of December 2003.
By:
Margaret M. Boyle WSBA#17089
Jose F. Vera WSBA#25534
ATTORNEYS FOR APPELLANTS