Kinerson v. Spokane County et al

Filing 66

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION - denying 59 Motion for Reconsideration. Signed by Senior Judge Justin L. Quackenbush. (CC, Case Administrator)

1

UNITED STATES DISTRICT COURT

2

EASTERN DISTRICT OF WASHINGTON

3
4
5

MATTHEW KINERSON,

6

Plaintiff,

7
8
9

vs.

NO. 2:14-CV-00216-JLQ
ORDER DENYING PLAINTIFF'S
MOTION TO RECONSIDER

SPOKANE COUNTY, et al.,
Defendants.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

BEFORE THE COURT is Plaintiff's Motion for Reconsideration (ECF
No. 59) of the court's Memorandum Opinion and Order (ECF No. 57) which granted
Defendant's Motion for Summary Judgment. Plaintiff is represented by Richard Wall.
Defendants, represented by Heather Yakely, have filed a Response (ECF No. 60).
Plaintiff's Reply brief was due on July 31, 2015, and none was filed. Rather, on July 29,
2015, Plaintiff filed a Notice of Appeal1 (ECF No. 61).
I. Discussion
Plaintiff brings the Motion pursuant to Fed.R.Civ.P. 59(e) and 60(b) and contends
that reconsideration is appropriate because the court committed a clear error of law. (ECF
No. 59, p. 2). Rule 59(e) permits a district court to reconsider and amend a previous
order, but such is "an extraordinary remedy, to be used sparingly in the interests of
finality and conservation of judicial resources." Kona Enterprises, Inc. v. Estate of
1

The filing of the Notice of Appeal does not divest the
court of jurisdiction. See United Nat. Ins. Co. v. R&D
Latex, 242 F.3d 1102, 1109 (9th Cir. 2001)("The notice of
appeal in this case did not, however, divest the district
court of jurisdiction at the time it was filed because there
was then a pending motion for reconsideration" citing
Fed.R.App.P. 4(a)(4)(B)(i).).
ORDER - 1

1

Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion "should not be granted, absent

2

highly unusual circumstances unless the district court is presented with newly discovered

3

evidence, committed clear error, or if there is an intervening change in the controlling

4

law." Id. A motion to reconsider may not be used to raise arguments or present evidence

5

for the first time which could have reasonably been raised earlier. Id.

6

Plaintiff does not rely on newly discovered evidence, nor does he argue an

7

intervening change in the law. Rather, Plaintiff argues that the court committed a clear

8

error of law in granting summary judgment when there were disputes of fact. Plaintiff

9

contends that because Defendants had conceded in a reply brief (a concession that

10

Defendants sought to withdraw at oral argument) that a question of fact existed on the

11

issue of excessive force, summary judgment was improper. Plaintiff appears to

12

misapprehend that a dispute of fact concerning use of force does not preclude summary

13

judgment on the basis of qualified immunity.

14

This court cited to the following language from the Supreme Court's opinion in

15

Saucier v. Katz, 533 U.S. 194, 202 (2001), in its Order granting summary judgment:

16

The approach the Court of Appeals adopted--to deny summary judgment any time
a material issue of fact remains on the excessive force claim--could undermine the
goal of qualified immunity to avoid "excessive disruption of government and
permit the resolution of many insubstantial claims on summary judgment." If the
law did not put the officer on notice that his conduct would be clearly unlawful,
summary judgment based on qualified immunity is appropriate. (ECF No. 57, p. 89).
The court additionally cited to Luchtel v. Hagemann, 623 F.3d 975 (9th Cir. 2010) and

17
18
19
20
21
22
23
24
25
26
27
28

LAL v. California, 746 F.3d 1112 (9th Cir. 2014) as additional cases in which there were
disputes of fact, yet summary judgment was granted on the basis of qualified immunity.
The principal argument advanced in Plaintiff's Motion--that the concession concerning a
dispute of fact precludes summary judgment on the basis of qualified immunity--is
erroneous.
Plaintiff's Motion hyperbolically accuses the court of "making up facts" and
"paying lip service" to the appropriate standard of review. (ECF No. 59, p. 5-6). Plaintiff
states that the court ignored that the Computer Aided Dispatch ("CAD") report stated that
ORDER - 2

1

Plaintiff had a "bad right arm". The court's Opinion stated that the Deputies were

2

informed that Plaintiff had a medical problem involving nerve pain, but did not have the

3

specifics. That Plaintiff had a "bad" arm is not a specific, nor is it particularly germane to

4

the analysis. An individual armed with deadly weapons (both a gun and a knife), and one

5

"bad" arm can still be a threat to the officers. As this court stated in its Opinion:

6

"Accepting for purposes of this Motion that the officers were informed, or recognized, a

7

disability affecting one arm, that does not mean Kinerson was not a threat." (ECF No. 57,

8

p. 13).

9

Plaintiff also states that the court misconstrued the record by stating the gun was

10

found on the front seat of the car rather than in a backpack in the backseat. Plaintiff

11

claims the "undisputed fact is that the gun was in Mr. Kinerson's backpack in the back

12

seat of his vehicle". (ECF No. 59, p. 7). The court's Opinion cites Plaintiff's own

13

testimony that when he was told to drop the gun he told officers he did not have a gun.

14

(ECF No. 57, p. 4). There is no evidence that prior to the use of force he told the officers

15

his gun was in a backpack in the backseat. There is minor inconsistency in the record as

16

to exactly where the gun was located. Deputy Jones' report states that Thurman found it

17

in a holster behind the front passenger seat. Deputy Thurman's report does not mention

18

it. Corporal Elliott's report states that after Kinerson was detained, he told the officers the

19

gun was in the "driver's seat area" of the vehicle. Kinerson's Declaration states that he

20

packed the gun in a backpack and placed it in the backseat when he left his parent's home.

21

It does not address where the gun was when the officers arrived. Regardless, this is not a

22

question of fact that precludes summary judgment. It is undisputed that the gun was

23

somewhere within the passenger compartment of the car, that the officers had been told

24

that Kinerson was armed with a firearm, and that rather than telling the officers where the

25

gun was (prior to the use of force), Kinerson denied having a gun.

26

The Motion further argues that the court "blatantly misstates the record" by stating

27

that "at the moment" Kinerson reached for his waist with his left arm he was shot with

28

the TASER. That testimony comes from Kinerson's own Declaration, at paragraph 10,
ORDER - 3

1

where he states, "I reached down with my left hand and pulled the front of my t-shirt over

2

my head...at that moment, I was shot in the chest with the TASER." (ECF No. 22).

3

Whether the TASER was shot at the moment his hand reached his waist, or less than one

4

second later as he lifted his shirt up is immaterial. It is well-recognized by the courts that

5

officers are often called upon to make "split-second" decisions and that such decisions,

6

when challenged, must be judged from the circumstances then existing, rather than from

7

the basis of hind-sight. Graham v. Connor, 490 U.S. 386, 396 (1989).

8
9

Plaintiff's Motion also devotes several pages to arguing a theory that was first
raised at oral argument--that the officers "rushed in" and could have avoided the use of

10

force by "taking just a few moments" to further investigate. (ECF No. 59, p. 10-12).

11

Plaintiff states they should have done more to determine why he was not complying with

12

the officers' commands. Not only was this theory not pled, or raised in the briefing, but it

13

is foreclosed by Ninth Circuit precedent. In Billington v. Smith, 292 F.3d 1177, 1188

14

(9th Cir. 2002), the court stated:

15
16
17
18
19
20
21

In Scott v. Henrich, we held that even though the officers might have had less
intrusive alternatives available to them, and perhaps under departmental guidelines
should have developed a tactical plan instead of attempting an immediate seizure,
police officers need not avail themselves of the least intrusive means of responding
and need only act within that range of conduct we identify as reasonable. We
reinforced this point in Reynolds v. County of San Diego, which distinguished
Alexander because the court must allow for the fact that officers are forced to make
split second decisions. We affirmed summary judgment for the defendant police
officers despite experts' reports stating--liked the expert report in the case at bar-that the officers should have called and waited for backup, rather than taking
immediate action that lead to deadly combat.

22
23

The Billington court concluded that a plaintiff could not avoid summary judgment by

24

"simply producing an expert's report that an officer's conduct leading up to a deadly

25

confrontation was imprudent, inappropriate, or even reckless." Id. at 1189; see also

26

George v. Morris, 736 F.3d 829, 839 n. 14 (9th Cir. 2013)("a plaintiff cannot establish a

27

Fourth Amendment violation based merely on bad tactics that result in a deadly

28

confrontation that could have been avoided"). Here, Kinerson did not offer an expert
opinion, but rather counsel only belatedly raised the argument in response to Defendants'
ORDER - 4

1

Motion for Summary Judgment.

2

Lastly, Plaintiff devotes the last two-pages of his Motion to arguing that "the court

3

erred by striking" the declarations of Julie Eddy and Tim Donahue. Plaintiff is incorrect.

4

The court did not strike the declarations. Page 18 of the Court's Opinion states:

5

"Defendants' Motion to Strike (ECF No. 34) is DENIED." (ECF No. 57, p. 18)(emphasis

6

in original). The court did point out that Plaintiff had failed to respond to the Motion to

7

Strike, and that there appeared to be merit in Defendants' argument. However, the court

8

clearly stated: "[I]n the interest of a fair determination of all evidence available to the

9

Plaintiff, the court has exercised its discretion and DENIES the Motion to Strike." (ECF

10

No. 57, p. 6)(emphasis in original).

11

II. Conclusion

12

Plaintiff's Motion does not demonstrate a clear error of law. For the aforesaid

13

reasons, IT IS HEREBY ORDERED that Plaintiff's Motion for Reconsideration (ECF

14

No. 59) is DENIED.

15
16
17

IT IS SO ORDERED. The Clerk is hereby directed to enter this Order and
furnish copies to counsel.
DATED this 6th day of August, 2015.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28
ORDER - 5