Caylor et al v The City of Seattle, et al

Filing 96

ORDER re 65 MOTION for Summary Judgment filed by Officer Eugene Schubeck, The City of Seattle, 62 MOTION for Summary Judgment filed by Don Leslie by Judge Richard A Jones. A jury will decide Mr. Caylor's § 19 83 excessive force claim against Ofc. Schubeck and Ofc. Leslie, his son's § 1983 Fourteenth Amendment claim against the same officers, and Plaintiffs' negligent investigation and outrage claims against the City. The court dismisses all other claims with prejudice. (JJ)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NATHANIEL CAYLOR, et al.,

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Plaintiffs,
CASE NO. C11-1217RAJ

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v.
ORDER
THE CITY OF SEATTLE, et al.,

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Defendants.

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I. INTRODUCTION

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This matter comes before the court on Defendants’ motions for summary
judgment. The court heard oral argument on April 23, 2013. For the reasons stated
herein, the court GRANTS one motion (Dkt. # 65) in part and DENIES it in part and
DENIES the other motion (Dkt. # 62). As to the issues that survive summary judgment,
trial will begin June 3.

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II. BACKGROUND

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Because this matter comes before the court on motions for summary judgment, the
court recounts the facts by resolving all material disputes of fact in favor of Plaintiff
Nathaniel Caylor and his minor son, and by taking all inferences from the evidence in
Plaintiffs’ favor. Flint v. Dennison, 488 F.3d 816, 825-26 (9th Cir. 2008).
A.

The May 22, 2009 Shooting Incident

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Just after 10:00 a.m. on May 22, 2009, Seattle Police Department (“SPD”)

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dispatch relayed a report from a 911 caller of a suicidal man inside a Greenwood

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apartment. Dispatch reported that the man had his 20-month-old son with him, and that

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he had been saying for two days that he was going to kill himself. Dispatch stated that

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the caller did not know if the man had any weapons, and that the caller was waiting

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outside the apartment.
Scott Miller was the first SPD officer to arrive at the apartment building. There he

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found Carolyn Stillabower, the woman who had made the 911 call. She explained that

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she was the sister of Carolyn Rhodes, who had died about a month before. She explained

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that the man in the apartment was Nathaniel Caylor, and that he had been despondent

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since the death of Ms. Rhodes, who was the mother of his young son. She explained that

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Mr. Caylor and the boy had been alone in the apartment since that morning, when she had

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tried unsuccessfully to take the boy from the apartment. Ms. Stillabower repeated that

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she did not know if Mr. Caylor had weapons. Ex. D (Miller Dep. at 37). 1 Although she

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provided more detail, her account of the situation was not materially different from the

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facts that dispatch had conveyed. Ofc. Don Leslie, who spoke separately to Ms.

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Stillabower when he arrived on the scene 15 to 20 minutes later, says that she told him it

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was possible that Mr. Caylor owned “an old muzzle loader handgun” that he kept in the

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apartment. Ex. F (Leslie Dep. at 13, 18).
Ms. Stillabower escorted Ofc. Miller past the common door of the apartment

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complex and took him to the front door of Mr. Caylor’s apartment, which was the last

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unit at the end of a hallway. Ofc. Miller knocked on the door, but no one responded.

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Ofc. Miller heard noises that he attributed to the boy, but did not believe the boy was in

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distress. Ex. D (Miller Dep. at 42, 44).

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Shortly thereafter, Ofc. Walter Bruce arrived on the scene and reported to Miller

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that he had seen a man through the exterior apartment windows. Id. at 41. Ofc. Miller

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Unless otherwise noted, the court cites evidence from the declaration of Evan Bariault (Dkt.
# 66) and the declaration of David Whedbee (Dkt. # 80). The Whedbee declaration attaches
numbered exhibits; the Bariault declaration attaches lettered exhibits.

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knocked again, this time using Mr. Caylor’s name and demanding entry. Id. at 44. In

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what would be a model for his communication that day, Mr. Caylor used profanity to tell

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the officers to leave him alone. Ex. 3 (Caylor Dep. at 155 (“I think I said ‘Go the fuck

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away,’ probably, or something along those lines.”). He also warned the officers that if

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they tried to force entry, they might hurt his son:

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I told them that my son kept coming over to the door because they kept
knocking on it and that if they were to kick the door he would be pinched,
you know, crushed by … he would have been just smashed so I told them
that my son was there, that they would hurt him if they kicked the door in.
Ex. B (Caylor Dep. at 91-92).
By the time Ofc. Eugene Schubeck arrived on the scene, Sgt. Steve Hirjak and
Ofc. Tammie Case had arrived. Ex. H (Schubeck Dep. at 29). Ofc. Hirjak was, at the
time, an acting sergeant, and served as the officer in charge of the incident. Id. at 29. It
is not clear exactly what information Ofc. Schubeck received when he arrived. Ofc.
Schubeck was not clear, for example, as to what Ofc. Miller told him about the possibility
officers would hurt the boy if they forced entry.
SCHUBECK:

[T]he information that [Ofc. Miller] gave me was that
the boy was on the other side of the door and that
Caylor had placed him there and had said that . . . the
boy would get hurt if we came through the door.

COUNSEL:

Did Officer Miller convey to you that Mr. Caylor’s
words were a warning or were they a threat?

SCHUBECK:

He didn’t say.

COUNSEL:

Did he say that Mr. Caylor said, “If you come in here
you might hurt my small child.”

SCHUBECK:

He didn’t say. Officer Miller told me that Caylor had
told them that if we tried to come into the door, the
boy was in front of the door and that if we tried to
come in the door, the boy would be hurt.

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Ex. H (Schubeck Dep. at 32). The other officers told Ofc. Schubeck that Mr. Caylor did
not want officers in his apartment. Id. at 33. Ofc. Schubeck could hear Mr. Caylor

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“yelling” or “ranting” from the other side of the front door, and could hear what he

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perceived as the boy “tapping on the door.” Id. at 33-34.

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At Sgt. Hirjak’s direction, Ofc. Schubeck took a position just outside the end of

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the hallway on the landing of a common exterior staircase. Id. at 29-30. Photographs

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and diagrams at oral argument demonstrated that the landing was a half-flight of stairs up

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from Mr. Caylor’s front door, but not far from the front door. The landing overlooked a

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patio that Mr. Caylor’s apartment unit opened onto via a sliding glass door. A high, solid

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fence enclosed the patio. The landing where Ofc. Schubeck stood was very close to the

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patio, and afforded a clear view of the patio, but not the inside of the apartment. From

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that vantage point, the court estimates based on the photographs and diagrams that Ofc.

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Schubeck was no more than 20 feet from the patio, although he was separated from the

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patio not only by the fence, but by a railing surrounding the landing. In addition, the

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bottom of the patio of the apartment unit above Mr. Caylor’s was overhead, such that the

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gap between Mr. Caylor’s patio fence and the bottom of the patio above was only a few

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vertical feet. It was through that gap that Ofc. Schubeck looked down on the patio.

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When Ofc. Schubeck first observed the patio, no one was there. Id. at 39. He

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could hear Mr. Caylor inside the apartment, “angrily yelling” that the officers should go

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away. Id. at 40. He did not, however, hear Mr. Caylor threaten either himself, his son, or

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the officers. Ex. 2 (Schubeck Dep. at 40-41). Eventually, Ofc. Miller summoned him

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back to the front door. Id. at 43-44. Ofc. Schubeck, like several other officers, reports

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that he heard a sound consistent with the presence of a firearm. Id. at 50 (“I heard [a]

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noise that sounded like a firearm being cycled.”); see also Ex. G (Case Dep. at 66) (“It

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sounded like a gun being racked.”), Ex. D (Miller Dep. at 55 (“It sounded like someone

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placing a shotgun shell into the chamber of a shotgun and . . . pumping it . . . .”), Ex. I

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(Bright Dep. at 36-37) (describing a “two-part clicking noise” that “sounded like a gun

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being cycled”).

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At some point, although it is not clear when, Sgt. Hirjak told all officers on the

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scene, via radio, that they should cease contact with Mr. Caylor while they awaited the

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arrival of a SWAT and hostage negotiation team. Jackson Decl. (Dkt. # 64), Ex. 2

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(Hirjak Dep. at 40-42). Ofc. Schubeck, who had turned down his radio to better hear Mr.

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Caylor, denies that he heard that communication. Ex. 2 (Schubeck Dep. at 51-55).

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Ofc. Schubeck moved back to the landing, where he found Mr. Caylor on the patio

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with his son. Ex. H (Schubeck Dep. at 55-56). Mr. Caylor was smoking a cigarette and

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was verbally combatative when Ofc. Schubeck tried to begin a conversation. Id. at 56.

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He told Ofc. Schubeck that if the officers tried to come in, they would be in for “a hell of

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a fight.” Id. Although the timing is not clear, Mr. Caylor admits that at some point he

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said “if you kick my fucking door in you’re going to hurt my kid and then you’re going to

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have one big angry father on your hands and then you’re going to be in for the fight of

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your fucking life.” Ex. 3 (Caylor Dep. at 100). Despite Mr. Caylor’s anger, his son was,

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in Ofc. Schubeck’s words “just playing with [an electric screwdriver that] was probably a

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toy to him, so he wasn’t crying, he wasn’t speaking, he was just walking around on the

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patio, just not really paying attention to what was going on . . . .” Ex. H (Schubeck Dep.

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at 57). It appears that Ofc. Schubeck had his sidearm drawn throughout his initial visual

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contact with Mr. Caylor. Ex. 3 (Caylor Dep. at 96);

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Mr. Caylor and the boy left the patio and returned to the interior of the apartment.

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When Mr. Caylor next looked at Ofc. Schubeck (perhaps by sticking his head out the

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patio door) Ofc. Schubeck was holding his firearm. At that point, Mr. Caylor used the

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phrase “suicide by cop.” The context in which he used the phrase is disputed. Mr.

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Caylor claims that when he saw the sidearm, he said: “Are you going to fucking shoot me

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and go to lunch, suicide by cop?” Ex. 3 (Caylor Dep. at 105-106). According to Ofc.

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Schubeck, Mr. Caylor asked him to shoot, pointing at his head and saying, “Suicide by

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cop sounds like a good idea.” Ex. H (Schubeck Dep. at 86).

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After that, Mr. Caylor was out of view of Ofc. Schubeck. Ofc. Leslie joined him

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on the landing. Ofc. Schubeck told Ofc. Leslie that if Mr. Caylor returned to the patio,

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Ofc. Schubeck would shoot him rather than allow him to go back inside. Ex. H

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(Schubeck Dep. at 103); Ex. 2 (Schubeck Dep. at 107). Ofc. Leslie’s response was

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“Don’t miss.” Ex. 2 (Schubeck Dep. at 107). The two officers had no other discussion

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about Ofc. Schubeck’s plan to shoot. Neither Ofc. Leslie nor Ofc. Schubeck

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communicated that plan to any other officer.

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Mr. Caylor returned to the patio without his son. Ofc. Schubeck had his sidearm
pointed at Mr. Caylor, whereas Ofc. Leslie had his sidearm in “low ready” position. Ex.

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1 (Leslie Dep. at 18). Ofc. Leslie attempted to engage Mr. Caylor in conversation.

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Among other things, he asked Mr. Caylor if he had any guns in the apartment, to which

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Mr. Caylor responded, “Yeah, there’s an old fucking 20-gauge in there.” Ex. 3 (Caylor

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Dep. at 103). Ofc. Leslie attempted to discuss Ms. Rhodes’ death, which angered Mr.

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Caylor further. Id. at 106. He uttered a string of expletives, then turned to go back

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inside. Id. at 106-07. Before he could reenter, Ofc. Schubeck fired a shot that hit Mr.

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Caylor in his lower jaw. Neither Ofc. Schubeck nor Ofc. Leslie warned Mr. Caylor that

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they would shoot, and neither officer ordered Mr. Caylor to stay on the patio.

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After Ofc. Schubeck fired the shot, the officers at the front door forced entry,

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finding Mr. Caylor bleeding on the apartment floor. They gave him medical treatment,

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arrested, him, and sent him to the hospital.

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Before moving from the shooting incident to its aftermath, the court emphasizes

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again that it has summarized the facts by resolving all disputes in Mr. Caylor’s favor.

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There are significant disputes, particularly with regard to what Mr. Caylor said about the

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weapons in his home. According to Mr. Caylor, he made only a single reference to a

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weapon, when he told Ofc. Leslie that he had an old 20-gauge shotgun in the apartment.

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Ex. 3 (Caylor Dep. 101). Ofc. Schubeck, however, reports that Mr. Caylor yelled

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through the front door that if officers tried to enter, they would “get a 20-gauge slug

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through the door.” Ex. H (Schubeck Dep. at 45). He repeated essentially the same threat

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when Ofc. Schubeck saw him on the patio, this time adding that his shotgun was “just

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inside the doorway.” Ex. 2 (Schubeck Dep. at 179-80); see also Ex. 1 (Leslie Dep. at 18,

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71). And according to Ofc. Schubeck, when Mr. Caylor turned to go inside just before

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the shot, he said, “Fuck you guys, I’m getting my gun.” Ex. H (Schubeck Dep. at 109).

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Ofc. Leslie did not hear Mr. Caylor make that threat, and Mr. Caylor denies saying

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anything about a weapon when he tried to reenter the apartment. Ex. 1 (Leslie Dep. at

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136-37), Ex. 3 (Caylor Dep. at 107). Although Mr. Caylor does not squarely deny all of

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the officers’ assertions regarding his statements about weapons, the court finds that his

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statement that his only comment about a firearm was his admission to Ofc. Leslie that he

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had an old shotgun is sufficient to place all of the officers’ contrary statements in dispute.

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Cf. Blanford v. Sacramento County, 406 F.3d 1110, 1113 n.3 (9th Cir. 2005) (noting that

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court considering summary judgment may accept officers’ version of plaintiff’s conduct

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where plaintiff merely testifies that he does not remember a particular act).

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B.

The Aftermath of the Shooting

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Mr. Caylor underwent at least one surgery, and was in the hospital until June 5.

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After his release from the hospital, Mr. Caylor was taken to jail. He had been

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charged with felony harassment and reckless endangerment.
On May 26, while Mr. Caylor was still hospitalized, Detective Jeffrey Mudd, who

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was partially responsible for investigating the incident, contacted Child Protective

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Services (“CPS”). Ex. 21. He described the May 22 incident to the CPS intake

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representative. The representative reports that Det. Mudd reported a version of events in

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which Mr. Caylor had first used his son as a human shield at the front door, and later

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directly threatened to kill his son. According to the intake report, Det. Mudd stated that

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Mr. Caylor “was going to put the child in front of the door and if anyone came in they

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would be killing the child,” and also that Mr. Caylor “said he was going to kill himself

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and anyone who came in the door[,] including the child.” Id. A CPS representative

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repeated those allegations the next day in dependency petition filed in King County

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Superior Court. Ex. 20. The petition led to a June 1 order placing Mr. Caylor’s son in

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the temporary custody of his mother’s cousin and temporarily suspending Mr. Caylor’s

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visitation privileges, subject to a CPS determination of whether a no-contact order was

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appropriate. Id. On June 9, the court issued an order prohibiting Mr. Caylor from contact

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with his son.

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On July 22, Mr. Caylor entered an Alford plea in King County Superior Court to

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resolve the criminal charges against him. He pleaded guilty solely to a charge of felony

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harassment. Ex. J. In his statement supporting the plea, he wrote as follows:

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I am not guilty of this crime. However, I have reviewed the police reports
with my attorney, and believe there is substantial likelihood that I would be
convicted of this and possibly another crime if I proceeded to trial. I do not
wish to take that risk. Instead, I wish to take advantage of the prosecutor’s
plea offer. I understand and agree that the court will consider the
Certification for Determination of Probable Cause to establish a factual
basis for the plea.

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Ex. J. There is no evidence regarding what, if anything, Mr. Caylor said during the plea

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colloquy.

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Det. Mudd had, on May 26, prepared the probable cause statement to which Mr.

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Caylor referred. Just as Det. Mudd had stated when he called CPS, the probable cause

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statement alleged that Mr. Caylor had “put the child in front of the door, so if police

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kicked the door in they would crush the child.” Ex. J. The statement also contained the

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allegation regarding Mr. Caylor’s threat to “put a 20-gauge slug though the front door.”

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Id. Det. Mudd stated that Mr. Caylor had promised a “firefight” and a “bloodbath” if

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officers attempted to enter. Id. He also stated that Mr. Caylor had admitted there was a

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shotgun just inside his door. Id.

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Mr. Caylor’s only comment about the contents of the probable cause statement

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was his written acknowledgement that “[f]or sentencing purposes” he “agree[d] to the

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accuracy of the [probable cause statement] except” for three corrections. Ex. J. He

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replaced the characterizations of Ms. Stillabower’s claims with a version consistent with

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the transcript of her 911 call. Id. He disputed that he told officers he had put his son in

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front of the door, and instead offered a version consistent with his deposition testimony –

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that he had merely told officers that his son was near the door and that they would hurt

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him if they forced entry. Id. Finally, he contested that officers had actually heard the

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sound of a weapon from inside his apartment, conceding only that they believed they

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heard a weapon. Id. He pointed out that officers who searched his apartment after the

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shooting had discovered a toy that made the sound they had heard. Id. The court

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accepted his plea and apparently sentenced him to time already served. Mr. Caylor left

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jail on or about July 22.

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It is not clear what Mr. Caylor did about his son immediately following his

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release. By August 28, Mr. Caylor signed an agreed order that kept the no-contact order

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in place pending an additional investigation, evaluation, and a hearing. Ex. T.

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At an October 13 hearing, the state court issued an order granting Mr. Caylor

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visitation privileges. Ex. 25. The order rejected the assertions based on Det. Mudd’s

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statements, finding that there was “no evidence presented to support that [Mr. Caylor]

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was holding a gun . . . or that he threatened the child directly.” Id. It appears that Mr.

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Caylor’s son remained in the custody of relatives until January 2010, when the court

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entered a stipulated order placing him in foster care. Ex. 26. In January 2011, the court

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dismissed the dependency action and returned the boy to Mr. Caylor’s custody. Ex. 27.

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In the aftermath of the shooting, SPD investigated it and on June 17 convened its

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Firearms Review Board (“FRB”). Mr. Caylor points to a host of deficiencies both in the

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SPD investigation preceding the FRB hearing and in the hearing itself. He contends, for

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example, that SPD delayed the investigation for days, immediately gave a so-called

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Garrity order 2 to Ofc. Schubeck immunizing him from liability for his written statement

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following the shooting, and declined to conduct face-to-face interviews of any witnesses.

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In a July 20 report, the FRB concluded that Ofc. Schubeck had probable cause to believe

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Mr. Caylor “posed a serious threat of harm to others.” Ex. 19 at 3. To support that

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conclusion, the FRB cited (among other things) Mr. Caylor’s alleged threat to “put a 20-

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gauge slug through the door,” his statement that his shotgun was “right inside the door,”

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and the sound officers heard that was consistent with the use of a shotgun. Id. at 2. The

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FRB concluded that the shooting was justified. Id. at 3. SPD Chief John Diaz concurred

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in that conclusion. Id.
Mr. Caylor and his son filed this suit in 2011, claiming via 42 U.S.C. § 1983 that

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all of the officers on the scene violated their constitutional rights, as did the City of

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Seattle. They also brought Washington-law outrage claims against the officers and

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Washington-law negligence claims against the City. Since then, the parties have agreed

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to dismiss all claims except for those against the City, Ofc. Schubeck, and Ofc. Leslie.

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The City and Ofc. Schubeck jointly moved for summary judgment; Ofc. Leslie filed his

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own summary judgment motion.
III. ANALYSIS

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On a motion for summary judgment, the court must draw all inferences from the

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admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred

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Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate

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where there is no genuine issue of material fact and the moving party is entitled to

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judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party must initially show

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In Garrity v. New Jersey, 385 U.S. 493, 500 (1967), the Supreme Court recognized that a
government unit violates the Fifth Amendment’s guarantee against self-incrimination when it
forces one of its officers by threat of discipline or termination to make a potentially incriminating
statement. A Garrity order simultaneously requires an officer to make a statement and
immunizes him from the use of that statement against him in a criminal case.

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the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

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323 (1986). The opposing party must then show a genuine issue of fact for trial.

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Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The

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opposing party must present probative evidence to support its claim or defense. Intel

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Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The

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court defers to neither party in resolving purely legal questions. See Bendixen v.

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Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999).
In applying this standard to the motions before it, the court considers three sets of

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issues. The court first considers whether Ofc. Schubeck or Ofc. Leslie violated the

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Constitution during the incident in question. That inquiry focuses largely on whether

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Ofc. Schubeck used excessive force in violation of the Fourth Amendment and whether

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Ofc. Leslie can be held liable for that use of force. It also, however, touches upon the

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Fourteenth Amendment right of Mr. Caylor’s son to be free from interference with his

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relationship with his father. The court also considers whether the officers violated the

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Fourth Amendment’s prohibition on unreasonable searches. The second set of issues

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relates to whether the City can be liable for its officers’ acts either via § 1983 or

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Washington law. Finally, the court will consider whether the City can be liable for Det.

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Mudd’s conduct in the aftermath of the shooting. Mr. Caylor believes that Det. Mudd’s

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false statements to CPS led to the no-contact order.

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A.

Did Ofc. Schubeck or Ofc. Leslie Violate Plaintiffs’ Constitutional Rights?

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Section 1983 provides a remedy for a plaintiff who proves that a defendant acting

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under color of state law violated her constitutional rights. Ofc. Schubeck and Ofc. Leslie

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deny that they violated the Constitution. They also invoke qualified immunity, which

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protects § 1983 defendants “from liability for civil damages insofar as their conduct does

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not violate clearly established statutory or constitutional rights of which a reasonable

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person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A

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defendant successfully invokes qualified immunity either by showing that a plaintiff has

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not alleged (or provided evidence for, depending on the stage of litigation) facts

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amounting to a violation of a constitutional right or that the right was not “clearly

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established” at the time of the defendant’s violation. Pearson v. Callahan, 555 U.S. 223,

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231 (2009). A court has discretion to consider either portion of the qualified immunity

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test first. Id. at 236 (overruling Saucier v. Katz, 533 U.S. 194 (2001)).

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1.

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Ordinarily, the summary judgment standard demands that the court adopt the non-

Judicial Estoppel

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moving party’s version of the facts. Scott v. Harris, 550 U.S. 372, 378 (2007). Scott

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asked the Supreme Court to determine whether a police officer used excessive force

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when he ended a high-speed car chase by rear-ending the plaintiff’s car with his patrol

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car, causing an accident that left the plaintiff a quadriplegic. The Scott Court departed

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from ordinary summary judgment practice because an undisputedly accurate videotape

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sharply contradicted the plaintiff’s version of events. Id. at 378-80.
In this case, the Defendants ask the court not to accept Mr. Caylor’s version of

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events because he is judicially estopped from contesting the version he relied on in his

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Alford plea. 3 If Mr. Caylor were bound to that version of events, he would be unable to

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contest that he threatened to use a shotgun against the officers, and he would be unable to

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contest that he deliberately placed his son near the front door as a type of human shield.

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Judicial estoppel permits a court, in its equitable discretion, to prevent a party

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from making improper use of the courts by relying on a position to her benefit in one

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court proceeding, then attempting to rely on an inconsistent position to her benefit in a

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At oral argument, Ofc. Schubeck’s counsel suggested that because Mr. Caylor tested positive
for drugs and alcohol at the hospital following the shooting, the court should be wary of
accepting his version of the facts. Counsel cited no authority for the notion that a court can
disregard the well-worn summary judgment standard in cases of intoxication or drug use, and the
court is aware of none. The court also notes that because there is no evidence at all that officers
on the scene suspected Mr. Caylor of being under the influence of drugs or alcohol, it is not
relevant to the court’s analysis of Mr. Caylor’s constitutional claims.

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second court proceeding. See New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001).

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Judicial estoppel is flexible, fact-specific, and not reducible to an “exhaustive formula.”

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Id. at 751. Typically, a court considers whether the party has adopted clearly inconsistent

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positions, whether she succeeded in the first instance in persuading a court to adopt her

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position, and whether she would gain an “unfair advantage or impose an unfair detriment

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on the opposing party if not estopped.” Id. at 750-51. The Ninth Circuit “follow[s] th[e]

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blueprint” the Supreme Court established in New Hampshire. United Nat’l Ins. Co. v.

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Spectrum Worldwide, Inc., 555 F.3d 772, 779 (9th Cir. 2009).

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So far as the court is aware, the Ninth Circuit has not considered the application of

10

judicial estoppel to statements made in connection with a guilty plea. Still, there seems

11

no reason to apply the doctrine differently in this context, and other circuits have done so.

12

E.g., Thore v. Howe, 466 F.3d 173, 187 (1st Cir. 2006) (affirming application of judicial

13

estoppel based on guilty plea); Lowery v. Stovall, 92 F.3d 219, 224-25 (4th Cir. 1996)

14

(same); Bradford v. Wiggins, 516 F.3d 1189, 1193, 1195 (10th Cir. 2008) (affirming

15

application of doctrine following no-contest plea); Zinkand v. Brown, 478 F.3d 634, 637-

16

38 (4th Cir. 2007) (reversing trial court that applied the doctrine following an Alford

17

plea); Johnson v. Lindon City Corp., 405 F.3d 1065, 1068-69 (10th Cir. 2005) (applying

18

judicial estoppel sua sponte to plea in abeyance). None of those courts, however, applied

19

judicial estoppel reflexively in the wake of a guilty plea. Each of them emphasized that a

20

plea itself is not dispositive, and that the circumstances in which the plea was made are

21

critical. E.g., Bradford, 516 F.3d at 1194 n.3 (“Applying judicial estoppel narrowly and

22

cautiously, as we must, we do not hold it to be dispositive that the [plaintiffs] simply

23

entered a no contest plea.”); See Thore, 466 F.3d at 185 (“[W]e reject the notion that

24

judicial estoppel automatically applies to facts admitted during guilty pleas.”).

25

As the court has noted, the version of facts presented in the probable cause

26

statement are inconsistent with the version of facts Mr. Caylor offers today. Of course,

27
28

ORDER – 13

1

the probable cause statement is not Mr. Caylor’s statement, it is Det. Mudd’s. For

2

purposes of his Alford plea, Mr. Caylor did not adopt or admit Det. Mudd’s statement, he

3

merely acknowledged that the court would consider that statement “to establish a factual

4

basis for the plea.” In other words, in order to gain the benefit of the plea, Mr. Caylor

5

expressly admitted nothing. Cf. Lowery, 92 F.3d at 225 (“The trial judge asked

6

[defendant] whether each of the assertions in the statement accompanying his guilty plea

7

was true, rather than whether he merely understood the statements.”). Moreover,

8

Washington law gave Mr. Caylor that option. A trial court need only be “satisfied that

9

there is a factual basis for the plea” before accepting a plea of guilty. Wash. CrR. 4.2(d).

10

The defendant need not admit anything. State v. Newton, 552 P.2d 682, 685-86 (Wash.

11

1976). Washington does not afford collateral estoppel effect to convictions following

12

Alford pleas because “the defendant, by entering an Alford plea, has not admitted

13

committing the crime.” Clark v. Baines, 84 P.3d 245, 250 (Wash. 2004). A federal

14

court, considering whether to apply judicial estoppel, should not manufacture admissions

15

from an Alford plea that contains none. To be sure, a defendant may make explicit

16

admissions during the course of an Alford plea, and those admissions may give rise to

17

judicial estoppel. See Bradford, 516 F.3d at 1195 (finding judicial estoppel following no-

18

contest plea because the defendants explicitly admitted at plea colloquy to facts

19

establishing disorderly conduct). In this case, however, Mr. Caylor made no admission.

20

Mr. Caylor was able to obtain the advantage of a guilty plea (the dismissal of some

21

charges and a favorable sentencing recommendation) without admitting anything. 4

22

4

23
24
25
26
27
28

The court need not decide whether an Alford plea, like a traditional guilty plea, serves at least
as a judicial admission to the essential elements of the crime. Cf. Brosseau v. Haugen, 543 U.S.
194, 197 (2004) (noting that by pleading guilty to felony “eluding” in violation of Washington
law, plaintiff admitted statutory elements of crime). In this case, Mr. Caylor has already
admitted to the elements of felony harassment. He admits that he threatened to fight officers if
they came through his door, in violation of RCW § 9A.46.020. See RCW § 9A.46.020(1)(a)(i)
(harassment requires a threat to “cause bodily injury immediately or in the future”), RCW
§ 9A.46.020(2)(b) (harassment is a felony if a threat is made to a “criminal justice participant
who is performing his or her official duties”). No aspect of Mr. Caylor’s claims today requires
him to repudiate his conviction for harassment.

ORDER – 14

Mr. Caylor did, however, at least arguably make admissions to portions of the

1
2

probable cause statement “for sentencing purposes.” Ex. J. But the court cannot ignore

3

the context of those admissions. His guilt was not in dispute, so any admission he made

4

was solely for the purpose of ensuring a more lenient sentence. Thus he made explicit

5

admissions, as the court has described, that softened several of the allegations in the

6

probable cause statement. The court might well hold him to those admissions, except

7

none of them are inconsistent with the evidence he presents today. He disputed (as he

8

does today) that he ever used his son as a human shield. He disputed (as he does today)

9

that the sounds the officers heard came from a weapon. He did not admit that he

10

threatened to use a shotgun, that he told officers he would shoot through the door, that he

11

told anyone his shotgun was “just inside the door,” or that he made any other statements

12

that implied he threatened to use a weapon against an officer or anyone else. Even if the

13

court were to construe the presence of those statements in the probable cause statement as

14

admissions, Mr. Caylor gained no advantage from those admissions. As noted, he had

15

gained the advantage of a guilty plea by making no admission at all. Admissions of

16

aggravating circumstances for sentencing purposes, even if Mr. Caylor had actually made

17

them, are not admissions Mr. Caylor made to gain an advantage.

18

The court declines to judicially estop Mr. Caylor from offering testimony

19

inconsistent with the statement of probable cause. 5 For that reason, the court relies on

20

Mr. Caylor’s version of events (at least where he has supported it with evidence) in

21

assessing the summary judgment motions.

22
23
24
25
26
27
28

5

Defendants also ask the court to give estoppel effect to the admissions Mr. Caylor made in the
agreed dependency order the state court entered in August 2009. Ex. T. That order contains no
admissions inconsistent with Mr. Caylor’s current position. It makes no admission regarding his
use or possession of a shotgun, it repeats Mr. Caylor’s version of what he told officers about his
son in front of the door, and it contains no admissions that Mr. Caylor threatened to hurt anyone.
Id.

ORDER – 15

1

2.

Unlawful Entry or Seizure

Although the focus of Mr. Caylor’s constitutional claims is on Ofc. Schubeck’s
2
use of force, he also contends that officers violated the Fourth Amendment by
3
“demand[ing] that he leave his home or allow them to enter without a warrant or other
4
lawful justification.” Pltfs.’ Opp’n (Dkt. # 79) at 20. Mr. Caylor does not contest that the
5
officers lawfully entered the apartment after Ofc. Schubeck shot him. Id. Mr. Caylor
6
chastises the officers for not recognizing this Fourth Amendment claim, but it appears
7
nowhere in Plaintiffs’ complaint. Put another way, the court would have had no idea Mr.
8
Caylor was raising this claim if he had not identified it, for the first time, in his
9
opposition to the summary judgment motions.
10
Rather than reward Mr. Caylor for pleadings that failed to apprise anyone of this
11
Fourth Amendment claim, the court addresses it sua sponte. To begin, the court knows of
12
no authority holding that a request or demand to enter a home, without actual entry, even
13
implicates the Fourth Amendment. In other contexts, it is plain that the Fourth
14
Amendment does not apply to mere requests. See, e.g., United States v. Drayton, 536
15
U.S. 194, 201 (2001) (“Even when law enforcement officers have no basis for suspecting
16
a particular individual, they may pose questions, ask for identification, and request
17
consent to search luggage -- provided they do not induce cooperation by coercive
18
means.”). Absent authority making it clear to officers that demands to enter a home
19
violate the Fourth Amendment, the officers are, at a minimum, entitled to qualified
20
immunity.
21
Even assuming that a request to enter a home implicates the Fourth Amendment, it
22
would not violate the Fourth Amendment on these facts. When officers arrived on the
23
scene, Ms. Stillabower had informed them that Mr. Caylor was threatening suicide, and
24
explained the circumstances of those threats. Although the Fourth Amendment typically
25
requires a warrant before entering a home, there is an exception where officers have an
26
objectively reasonable basis to believe there is an immediate need to protect others from
27
28

ORDER – 16

1

serious harm. Hopkins v. Bonvicino, 573 F.3d 752, 763-64 (9th Cir. 2009) (addressing

2

“community caretaker” exception to warrant requirement). The court need not decide

3

whether circumstances justified a warrantless entry into Mr. Caylor’s home to prevent

4

him from killing himself. It suffices to conclude that no clearly established law would

5

have put a reasonable officer on notice that he could not demand entry knowing what the

6

officers outside Mr. Caylor’s apartment knew. The officers’ demand to enter Mr.

7

Caylor’s apartment was either lawful or not clearly unlawful.

8

3.

9

Ofc. Schubeck’s decision to shoot Mr. Caylor was a seizure within the meaning of

Excessive Force

10

the Fourth Amendment, which governs both the lawfulness of a seizure and the means

11

used to accomplish it. See Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). As in any

12

Fourth Amendment case, the inquiry is whether the Ofc. Schubeck’s actions were

13

reasonable, balancing Mr. Caylor’s Fourth Amendment interests against the government

14

interests alleged to justify Ofc. Schubeck’s intrusion. Id. Reasonableness is evaluated

15

objectively, by asking whether a reasonable officer confronted with the same

16

circumstances would have believed the intrusion reasonable. The court considers three

17

principal factors to complete that inquiry in an excessive force case. Espinosa v. City &

18

County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). It evaluates the “severity of

19

the intrusion” by determining the degree of force used. Id. It then assesses the

20

government’s interest by considering “(1) the severity of the crime; (2) whether the

21

suspect posed an immediate threat to the officers’ or public’s safety; and (3) whether the

22

suspect was resisting arrest or attempting to escape.” Id. (summarizing factors from

23

Graham v. Connor, 490 U.S. 386, 396 (1989)). These factors are not exclusive, and the

24

court may consider any factor relevant to the reasonableness inquiry. Glenn v.

25

Washington County, 673 F.3d 864, 872 (9th Cir. 2011) (“Other relevant factors include

26

the availability of less intrusive alternatives to the force employed, whether proper

27
28

ORDER – 17

1

warnings were given and whether it should have been apparent to officers that the person

2

they used force against was emotionally disturbed.”). For example, the court may

3

consider the plaintiff’s culpability in creating the circumstances that led to the use of

4

force. Scott, 550 U.S. at 384. Ultimately, the court balances the government’s interests

5

against the individual’s to determine whether the force was reasonable. Espinosa, 598

6

F.3d at 537.

7

At the outset, the court finds that Ofc. Schubeck used deadly force and intended to

8

do so. Objectively, firing a sidearm at a person’s head is deadly force. Moreover, Ofc.

9

Schubeck’s testimony leaves no doubt that his intent was to kill or seriously injure Mr.

10

Caylor.

11

The difficult question is not the quantum of force Ofc. Schubeck used, but whether

12

he had objective justification for his decision. In that regard, the “most important” factor

13

is whether Mr. Caylor posed an immediate threat to the safety of officers or his son.

14

Glenn, 673 F.3d at 872. Ofc. Schubeck was confronted with a man who had threatened

15

to take his own life. His crime (which Mr. Caylor’s conviction establishes) was

16

threatening to fight officers, but only if they entered his home. He repeatedly refused

17

officers’ demands that he allow them to enter his home. He was solely responsible for

18

creating the standoff between himself and the officers. Had he simply acceded to the

19

officers’ demands to enter his apartment, it is unlikely that Ofc. Schubeck would have

20

considered the use of deadly force. Mr. Caylor was angry and agitated throughout the

21

encounter, repeatedly cursing at the officers. He was with his young son, and had

22

demonstrated, at least, a disregard for the boy’s safety. Rather than taking his son and

23

placing him in another room or otherwise out of harm’s way, he told officers that if they

24

forced entry, they ran the risk of seriously injuring him. Although this is a far cry from

25

the “human shield” situation that some of the officers described, it is nonetheless conduct

26

that showed disregard for his son’s safety. He admitted that he had a shotgun in the

27
28

ORDER – 18

1

apartment, although he did not suggest he was preparing to use it. Ofc. Schubeck (like

2

many of the officers) had heard sounds that were consistent with “cycling” or “racking” a

3

shotgun, but had no other indication that Mr. Caylor would use the weapon. 6 Ofc.

4

Schubeck twice observed Mr. Caylor on his patio, and each time he had no weapon. Ofc.

5

Schubeck, unlike every other officer on the scene, had actually seen Mr. Caylor’s son.

6

Not only was the boy playing without apparent distress, his presence on the patio belied

7

any belief that Mr. Caylor was keeping the boy near the front door as a human shield.

8

Ofc. Schubeck testified that an additional reason he believed the boy was in grave

9

danger was “common knowledge that people frequently will do a murder-suicide.” Ex. 2

10

(Schubeck Dep. at 86). Ofc. Schubeck was unable, however, to point to any objective

11

basis for his belief that suicidal people frequently kill others. Ex. H (Schubeck Dep. at

12

92-93). Ultimately, he explained his belief as follows: “You have to understand I’ve

13

been a police officer for 21 years, so I can’t nail it down exactly. Somewhere in my 21-

14

year career murder-suicides have been discussed, so that’s all I can say on that.” Id. at

15

93. No Defendant offers any evidence supporting the notion that it is objectively

16

reasonable to suspect that a homicide will occur when a person threatens suicide and

17

someone else is present. The court therefore declines to afford Ofc. Schubeck’s

18

suspicion more than minimal weight in assessing the objective reasonableness of his

19

decision to shoot.

20

Based his assessment of the facts, Ofc. Schubeck formed the belief that Mr. Caylor

21

was likely to seriously hurt his son. It was because of that belief that he determined, after

22
6

23
24
25
26
27
28

The court queries what conclusions it may draw, especially at the summary judgment stage,
from the officers’ reports regarding the “racking” or “cycling” sound. Of the many officers who
testified that they heard the sound, only Ofc. Miller testified that he concluded, based on the
sound, that Mr. Caylor was holding a weapon. Ex. D (Miller Dep. at 56). The others, including
Ofc. Schubeck, merely testified that it sounded like a shotgun, without testifying as to whether
they drew any conclusions about whether Mr. Caylor was holding a weapon. On this record, it is
not clear that a reasonable officer would have made that conclusion. For purposes of this order
only, the court assumes that Ofc. Schubeck reasonably believed that Mr. Caylor had “racked” or
“cycled” a shotgun.

ORDER – 19

1

his initial face-to-face contact with Mr. Caylor, that if Mr. Caylor reappeared on the

2

patio, he would shoot him rather than let him go back inside. There is no evidence to

3

suggest that Ofc. Schubeck’s belief that the boy was in danger was anything but sincere.
The Fourth Amendment, however, does not authorize the use of deadly force

4
5

whenever an officer sincerely believes that others face a threat of harm; it demands that

6

the officer’s belief be objectively reasonable. Price v. Sery, 513 F.3d 962, 967 (9th Cir.

7

2008). The court concludes, constrained by its acceptance of Mr. Caylor’s version of the

8

facts, that a jury could find that no reasonable officer would have concluded that Mr.

9

Caylor’s son or the officers faced a threat of imminent harm sufficient to justify the use

10

of deadly force. Officers believed only that Mr. Caylor had a shotgun and that at some

11

point he had “cycled” or “racked” it. He had not displayed the shotgun; he had not

12

explicitly threatened to use it on himself, his son, or the officers. The court finds nothing

13

that would permit it to conclude as a matter of law that a reasonable officer would have

14

believed it likely that Mr. Caylor would use the shotgun. The officers make much of Mr.

15

Caylor’s “suicide by cop” comment, but the circumstances make it debatable (at least)

16

that it was reasonable to infer from that comment (coupled with all of the other

17

circumstances) that the boy or the officers were at risk. 7 The mere presence of a weapon,

18

even a weapon that a suspect is actually brandishing, is not a sufficient basis to use

19

deadly force. Harris v. Roderick, 126 F.3d 1189, 1202 (9th Cir. 1997) (holding, in

20

review of case arising from Ruby Ridge standoff, that directive to kill any armed adult

21

male was unconstitutional); Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.

22

1991) (“[O]fficers could not reasonably have believed the use of deadly force was lawful

23

because [plaintiff] did not point the gun at the officers and apparently was not facing

24

them when they shot him the first time.”). The officers’ refusal to warn Mr. Caylor is

25

7

26
27
28

No one suggests that Ofc. Schubeck shot Mr. Caylor to keep him from taking his own life, nor
that it would be reasonable to do so. See Glenn, 673 F.3d at 872 (“[I]t would be odd to permit
officers to use force capable of causing serious injury or death in an effort to prevent the
possibility that an individual might attempt to harm only himself.”).

ORDER – 20

1

another factor mitigating against a finding that Ofc. Schubeck acted reasonably. The

2

court acknowledges that Ofc. Schubeck feared that a warning might provoke Mr. Caylor

3

to harm his son, Ex. H (Schubeck Dep. at 110-11), but a jury must decide if that fear was

4

objectively reasonable. See Deorle v. Rutherford, 272 F.3d 1272, 1284 (explaining that

5

“warnings should be given, when feasible, if the use of force may result in serious

6

injury”). 8
For all of these reasons, the court’s assessment of the totality of circumstances

7
8

confronting Ofc. Schubeck leaves it unable to conclude that his shot was “undisputably

9

reasonable.” Glenn, 673 F.3d at 864. The court accordingly cannot grant judgment as a

10

matter of law that Ofc. Schubeck’s use of force complied with the Fourth Amendment.

11

To determine whether Ofc. Schubeck can take shelter in qualified immunity, the

12

court must ask whether clearly established appellate authority prohibited him from

13

shooting. Blanford, 406 F.3d at 1119 (granting qualified immunity where “neither

14

Supreme Court nor circuit precedent in existence as of [the date of the incident] would

15

have put a reasonable officer in [defendant]s’ position on notice that using deadly force in

16

the particular circumstances would violate [plaintiff’s] Fourth Amendment rights”). The

17

court must examine clearly established law “in light of the specific context of the case,

18

not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)

19

(quoting Saucier, 533 U.S. at 201). Only in an “obvious case” do the generalized use-of-

20

force standards announced in Graham and Garner serve as clearly established law.

21

Brosseau, 543 U.S. at 199. Nonetheless, officers cannot claim qualified immunity

22

“simply because there was no case on all fours prohibiting that particular manifestation of

23

unconstitutional conduct.” Deorle, 272 F.3d at 1286.

24

8

25
26
27
28

Plaintiffs, seizing on a dictionary definition of “feasible,” contend that because it was possible
for Ofc. Schubeck to warn Mr. Caylor, a belief that the warning would result in harm to his son
is irrelevant. Plaintiffs eschew the Fourth Amendment touchstone of reasonableness in favor of
Merriam-Webster. It is not merely unreasonable to suggest that an officer must warn a suspect
of imminent deadly force when the officer reasonably believes the warning will result in harm to
an innocent person, it is absurd.

ORDER – 21

1

In this case, clearly established law would inform a reasonable officer in Ofc.

2

Schubeck’s position that he could not shoot a man in Mr. Caylor’s position unless he

3

posed a risk of harm to his son or to the officers. The court has already held that a jury

4

could find that it was not reasonable to believe that Mr. Caylor posed a threat of

5

immediate harm. It is not clear whether Ofc. Schubeck or any other Defendant seriously

6

contends that Ofc. Schubeck would not have known it was unlawful to shoot Mr. Caylor

7

absent a threat of harm. At oral argument, the officers made much of the Supreme

8

Court’s decision in Scott, which rejected the notion that Garner established inflexible

9

prerequisites to the use of deadly force. 550 U.S. at 382 (“Garner did not establish a

10

magical on/off switch that triggers rigid preconditions whenever an officer’s actions

11

constitute ‘deadly force.’”). Yet the Scott court found that an officer’s decision to use his

12

patrol car to rear end a suspect in a high-speed car chase was reasonable, despite the risk

13

of injury, precisely because the chase “threatened the lives of innocent bystanders . . . .”

14

Scott is thus not inconsistent with Ninth Circuit precedent requiring a threat of serious

15

harm to justify the use of deadly force. See Harris, 126 F.3d at 1201; Haugen v.

16

Brosseau, 351 F.3d 372, 392 (9th Cir. 2003). 9 That precedent was sufficient to advise

17

any reasonable officer in Ofc. Schubeck’s position, assuming the jury finds the facts as

18

Mr. Caylor presents them, that he could not lawfully shoot.
Harris v. Roderick provides additional specific guidance as to the lawfulness of

19
20

Ofc. Schubeck’s shot. Harris involved a team of federal agents surrounding a cabin

21

following an armed standoff just over a day prior. During the previous day, the plaintiff

22

had shot and killed a law enforcement officer before fleeing to the cabin. Unaware that

23

agents had surrounded the cabin, the armed plaintiff and two other people moved from

24

the cabin to another building. Id. at 1193, 1203. Without warning, an agent shot one of

25
9

26
27
28

The Supreme Court reversed the Ninth Circuit’s denial of qualified immunity in Brosseau v.
Haugen, 543 U.S. 194, 198 (2004). But the Court “express[ed] no view as to the correctness of
the Court of Appeals’ decision on the constitutional question itself.” Id.

ORDER – 22

1

his companions, causing the plaintiff and another person to run back toward the cabin.

2

Id. The agent shot again, seriously injuring the plaintiff. The agent later explained that

3

he believed that the plaintiff would pose a greater danger to the agents if he made it back

4

inside the cabin. Id. at 1203. Applying Graham, Garner, and Ninth Circuit precedent,

5

the court held that it was unlawful to shoot the plaintiff, although he was armed and had

6

killed an agent the day before, where the plaintiff was fleeing inside a building and not

7

threatening the agents. Id. Even at the time (more than 12 years prior to the shooting of

8

Mr. Caylor), the Harris court found that clearly established law prohibited the shooting.

9

Id.

10

No reasonable officer could believe, in light of Harris, that the law permitted Ofc.

11

Schubeck to shoot Mr. Caylor. The plaintiff in Harris was actually armed at the time of

12

the shooting, and had already killed a law enforcement officer. Nonetheless, it was

13

unconstitutional to use deadly force where he was not actively threatening to hurt

14

officers. The agent’s belief that the plaintiff would pose a greater danger once he was

15

inside the residence (much as Ofc. Schubeck believed Mr. Caylor posed a danger to his

16

son if he were to go back inside) was insufficient to justify his decision to shoot. Mr.

17

Caylor, by contrast, was not armed, he was merely near an apartment in which officers

18

reasonably believed a shotgun was located. He was not threatening officers or his son.

19

In light of Harris, no reasonable officer could have believed the law justified a shooting

20

(accepting the facts as Mr. Caylor presents them).

21

Before moving to the claim against Ofc. Leslie, the court rejects Mr. Caylor’s

22

request that the court grant summary judgment that the shooting was unconstitutional.

23

This request is specious. If, for example, the jury merely believes Ofc. Schubeck’s

24

testimony that Mr. Caylor’s last words were “I’m getting my gun,” then Ofc. Schubeck

25

likely did not act unconstitutionally. Indeed, if the jury were to resolve any of the key

26
27
28

ORDER – 23

1

factual disputes regarding Mr. Caylor’s threat to use a weapon in Ofc. Schubeck’s favor,

2

it might well be obligated as a matter of law to conclude that the shot was reasonable.

3

4.

4

Ofc. Leslie, like all law enforcement officers, “ha[s] a duty to intercede when [his]

Excessive Force – Ofc. Leslie

5

fellow officers violate the constitutional rights of a suspect or other citizen.” United

6

States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994); see also Motley v. Parks, 383

7

F.3d 1058, 1071 (9th Cir. 2004) (denying summary judgment in § 1983 claim for officers

8

who failed to intercede in harassment during a search); Cunningham v. Gates, 229 F.3d

9

1271, 1289-90 (9th Cir. 2000) (acknowledging, in evaluation of § 1983 claim, duty to

10

intercede). An officer who abrogates his duty to intercede to prevent a constitutional

11

violation is as liable as the officer who commits the violation. Koon, 34 F.3d at 1447

12

n.25.

13

When Ofc. Leslie joined Ofc. Schubeck on the landing, he knew everything Ofc.

14

Schubeck knew, with one exception. Although he had arrived at the apartment later than

15

Ofc. Schubeck, he knew either through direct observation or by communication with

16

other officers all of the pertinent facts regarding the situation. The exception is that he

17

had not witnessed Mr. Caylor’s initial appearance on the balcony with his son. Ofc.

18

Leslie arguably had better justification for believing deadly force was necessary because

19

he was likely unaware that they boy had previously appeared on the balcony in no

20

distress. Still, a jury could conclude that a reasonable officer who knew what Ofc. Leslie

21

knew would not have believed deadly force was reasonable.

22

When Ofc. Schubeck informed him of his intent to shoot Mr. Caylor, Ofc. Leslie

23

did nothing but tell Ofc. Schubeck not to miss. A jury could reasonably conclude that

24

Ofc. Leslie encouraged Ofc. Schubeck to shoot. A jury could hardly help but conclude,

25

however, that Ofc. Schubeck did nothing to intervene. And a jury could reject Ofc.

26

Leslie’s contention that he did not intervene because he did not believe that Ofc.

27
28

ORDER – 24

1

Schubeck would shoot. Because the circumstances known to Ofc. Leslie did not justify

2

the use of deadly force, and because Ofc. Schubeck’s announcement of his intent to shoot

3

offered Ofc. Leslie ample time to intercede, a jury could find that he is also liable for the

4

use of excessive force. The duty to intercede to prevent constitutional violations was

5

established at the time of the shooting. Ofc. Schubeck is therefore not entitled to

6

qualified immunity for his decision not to intercede. Assuming that Ofc. Leslie believed

7

the decision to shoot was reasonable, he is not entitled to qualified immunity for reasons

8

the court has already discussed.

9

Because it would appear to make no difference to the outcome of this order, the

10

court does not address Mr. Caylor’s contention that Ofc. Leslie had a separate duty to

11

warn Mr. Caylor before Ofc. Schubeck shot.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

5.

Plaintiffs’ complaint plainly advises Defendants of a claim for “interfering with
and damaging the Plaintiff[s’] liberty interest in their familial, parent-child relationship.”
Defendants nonetheless did not target this claim in their summary judgment motions.
The Fourteenth Amendment protects a right of family members to associate with
each other. Porter, 546 F.3d at 1136. A plaintiff may assert a violation of that right
where excessive force against a family member deprives them of familial association.
The target of the excessive force, however, has no Fourteenth Amendment claim. See
Curnow, 952 F.2d at 325; see also Graham, 490 U.S. at 395 (holding that more specific
guarantees of Fourth Amendment, rather than the Fourteenth Amendment, govern the
constitutional claims of a victim of excessive force). To the extent Plaintiffs assert that
Mr. Caylor has a Fourteenth Amendment claim, they are mistaken.
An officer violates the right of familial association only by acting in a matter that
shocks the conscience. Id. at 1137. What sort of conduct meets that standard depends in
part on whether the challenged conduct occurs after a period in which actual deliberation

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Fourteenth Amendment Claim Based on Interference with the Caylors’
Familial Relationship

ORDER – 25

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is practical, or whether it occurs in a situation that “escalate[s] so quickly that the officer

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must make a snap judgment.” Id. Unlike the Fourth Amendment inquiry, the Fourteenth

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Amendment inquiry has both objective and subjective components. Tamas v. Dep’t of

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Soc. & Health Servs., 630 F.3d 833, 844-45 (9th Cir. 2010). The court is unaware of any

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case in which an officer acting with a subjective intent to prevent harm to a child was

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held to have acted with deliberate indifference.
The court declines to pass judgment on Mr. Caylor’s son’s Fourteenth Amendment

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claim. Defendants’ failure to address it means that the court will not foreclose its

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presentation at trial.

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B.

Is the City Liable?
Plaintiffs concede, as they must, that the City can be liable for its officers’ § 1983

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violations only in certain circumstances. For example, when a city’s policy or custom

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causes its agents’ violation of a plaintiff’s constitutional rights, the city itself is liable.

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Price, 513 F.3d at 966 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).

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Alternatively, when an official with “final policy-making authority” ratifies a

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subordinate’s unconstitutional act, the city can be held liable. Price, 513 F.3d at 966.

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Plaintiffs point to a host of City policies that they believe underlie the

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constitutional violations here. They decry training skewed toward the use of force and

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away from de-escalation skills, they bemoan the City’s failure to provide more CIT

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officers, they contend that the FRB is merely a rubber stamp for unlawful shootings, and

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they suggest that the City’s written use-of-force policy authorizes the use of deadly force

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without an imminent deadly threat. The court does not decide whether Plaintiffs

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accurately characterize any of the City’s policies. Their § 1983 claim based on those

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policies fails for a different reason – there is no evidence that these policies caused Ofc.

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Schubeck to shoot Mr. Caylor. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th

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Cir. 2012) (“Under Monell, a plaintiff must also show that the policy at issue was the

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ORDER – 26

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‘actionable cause’ of the constitutional violation, which requires showing both but-for

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and proximate causation.”); Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir.

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1996) (same).
On the record before the court, Ofc. Schubeck undisputedly shot Mr. Caylor

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because he believed Mr. Caylor was going to kill or seriously injure his son. That belief

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may have been mistaken, and the court has already acknowledged that a jury could

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conclude that no reasonable officer would have formed a similar belief. But there is no

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evidence that Ofc. Schubeck formed that belief as a result of the City’s policies. Take,

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for example, Plaintiffs’ insistence that City policy permits the use of deadly force without

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an imminent threat to life. Assuming Plaintiffs accurately characterize the policy, Ofc.

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Schubeck was not following it. 10 He did not shoot because he believed he could do so

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without an imminent threat, he shot because he believed Mr. Caylor’s son’s life was in

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imminent danger. Similarly, Plaintiffs offer no evidence that better de-escalation training

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would have affected Ofc. Schubeck’s belief regarding the threat to the boy. See City of

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Canton v. Harris, 489 U.S. 378, 391 (1989) (“Neither will it suffice to prove that an

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injury or accident could have been avoided if an officer had better or more training . . . .

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Such a claim could be made about almost any encounter resulting in injury . . . .”). If the

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City were to design a perfect post-shooting review and investigation procedure, there is

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no evidence it would prevent Ofc. Schubeck or any other officer from shooting to protect

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the life of others. Finally, even if the court were to hold that the City’s inadequate

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investigations of shootings (and subsequent failure to discipline officers who shoot) had

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the effect of emboldening officers, no reasonable jury could conclude that effect played a

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role in Ofc. Schubeck’s decision to shoot to protect Mr. Caylor’s son.

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Plaintiffs ask the court to grant summary judgment that the City’s use-of-force policy is
unconstitutional because it permits the use of deadly force without an immediate threat of harm.
The court declines to render an advisory opinion.

ORDER – 27

The court could go on, but it suffices to summarize by observing that Plaintiffs

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point to a host of SPD policies, but do very little to explain (much less prove) how those

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policies led to the shooting. It is not enough to point to a policy and posit a connection

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between it and a constitutional violation. To do so would render Monell a “dead letter.”

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Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (“Obviously, if one retreats far

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enough from a constitutional violation some municipal ‘policy’ can be identified behind

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almost any . . . harm inflicted by a municipal official; for example [the defendant officer]

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would never have killed [the suspect] if [the city] did not have a ‘policy’ of establishing a

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police force.”). Because of the lack of a causal link between the SPD’s policies and Ofc.

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Schubeck’s decision, the court grants summary judgment in the City’s favor on Plaintiffs’

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§ 1983 claims. For the same reasons, the court concludes that Plaintiffs’ Washington-law

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negligent-training claim against the City fails as a matter of law.
Plaintiffs’ claim that SPD Chief John Diaz ratified an unconstitutional shooting is

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also lacking in evidentiary support. Plaintiffs rely solely on Chief Diaz’s bare signature

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concurring in the FRB’s assessment of the shooting, along with four unremarkable pages

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of Chief Diaz’s deposition testimony. Unlike this court, Chief Diaz had no obligation to

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construe facts in the light most favorable to Mr. Caylor. The evidence permits only the

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conclusion that Chief Diaz considered the disputed facts (with the assistance of the FRB)

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and decided that Ofc. Schubeck reasonably believed that Mr. Caylor posed a serious and

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immediate threat to his son. Chief Diaz did not ratify an unconstitutional decision, he

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ratified a constitutional one.

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C.

Is the City Liable for the No-Contact Order?

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Lastly, the court considers whether the City can be liable for negligent

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investigation. The court addressed this claim in its August 2, 2012 order granting the

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City’s motion to dismiss. The court explained in that order that Washington does not

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generally recognize the tort of negligent investigation. Courts have held, however, that

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ORDER – 28

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provisions within RCW Ch. 26.44 create actionable duties to both children and parents

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when investigating child abuse. See Roberson v. Perez, 123 P.3d 844, 850 (Wash. 2005).

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For example, in Tyner v. Dep’t of Soc. & Health Servs., 1 P.3d 1148, 1153-55 (Wash.

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1998), the court held that RCW § 26.44.050, which mandates that the Department of

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Social and Health Services (“DSHS”) investigate any “report concerning the possible

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occurrence of abuse or neglect,” imposed an actionable duty on DSHS workers. That

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duty applies not only to DSHS workers, but to “law enforcement agenc[ies].” RCW

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§ 26.44.050; see also Rodriguez v. Perez, 994 P.2d 874, 878 (Wash. Ct. App. 2000). The

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court thus concludes that Washington law permits a suit for negligent investigation by a

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law enforcement officer carrying out a child abuse investigation.
In this case, the law enforcement officer in question is Det. Mudd, who

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investigated the shooting. Det. Mudd had ample reason to be concerned about Mr.

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Caylor’s son: he knew at a minimum that he would have no parent to care for him until

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Mr. Caylor left custody. He also apparently concluded, however, that Mr. Caylor had

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used his son as a human shield and had threatened to kill his son. 11 The court has already

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noted that any “human shield” characterization is questionable. But to contend that Mr.

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Caylor threatened to kill his son is to contradict every officer who was on the scene, all of

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whom admit that Mr. Caylor never threatened to harm his son. There is thus ample

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evidence that Det. Mudd’s statement was the result of a negligent (at best) investigation.

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A jury could reasonably find, moreover, that the no-contact order was the result of that

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investigation. 12

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The only evidence in the record of Det. Mudd’s statement is the DSHS intake form, which a
DSHS worker prepared. The City’s summary judgment motion made no objection to the
statement. At oral argument, the City’s counsel contended that the statement was hearsay.
Rather than address a late evidentiary objection, the court assumes that Plaintiffs will be able, at
trial, to present admissible evidence of Det. Mudd’s statement.
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Ofc. Leslie, who is not a party to the negligent investigation claim, contends that Mr. Caylor is
estopped by virtue of the state court orders from contesting that his son was dependent. Putting
aside that Ofc. Leslie has no reason to oppose a claim to which he is not a party, Mr. Caylor is
not contesting the court’s dependency decisions, he is contesting the no-contact order.

ORDER – 29

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The damages arising from the negligent investigation are tightly constrained.

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From the day Mr. Caylor was shot until his release from custody on July 29, he had no

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opportunity to see his son, regardless of any court order. The court lifted the no-contact

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order on October 13, after rejecting any suggestion that Mr. Caylor had threatened to

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harm his son. Because the court rejected the statements Det. Mudd made conveying the

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results of his allegedly negligent investigation, Mr. Caylor cannot blame that

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investigation for any separation from his son after October 13. In August, Mr. Caylor

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acceded to a temporary extension of the no-contact order, although the record does not

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permit the court to determine whether he had any realistic choice in that decision.

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The evidence before the court would permit a jury to conclude that Mr. Caylor

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was kept from his son for at least part of the time between July 29 and October 13, 2009

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as a direct consequence of Det. Mudd’s negligent investigation. The court accordingly

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permits this claim to proceed to the jury.

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Finally, the court notes that Plaintiffs have presented a claim for outrage against

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the City, although it is not clear whether that claim belongs to both of them or solely to

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Mr. Caylor’s son. The court concludes that disputed issues of material fact prevent the

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court from resolving the outrage claim. At a minimum, Plaintiffs shall clarify before trial

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whether both of them are pursuing this claim.
IV. CONCLUSION

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For the reasons stated above, the court GRANTS in part and DENIES in part the

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summary judgment motion of the City and Ofc. Schubeck (Dkt. # 65) and DENIES Ofc.

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Leslie’s summary judgment motion (Dkt. # 62). A jury will decide Mr. Caylor’s § 1983

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excessive force claim against Ofc. Schubeck and Ofc. Leslie, his son’s § 1983 Fourteenth

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Amendment claim against the same officers, and Plaintiffs’ negligent investigation and

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outrage claims against the City. The court dismisses all other claims with prejudice.

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ORDER – 30

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The clerk will issue a separate order establishing a schedule for the submission of
motions in limine, jury instructions, and other pretrial matters.
Dated this 30th day of April, 2013.

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A

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The Honorable Richard A. Jones
United States District Court Judge

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ORDER – 31