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NO. 12-35376 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________________________________ LOANITA ADAMS, Plaintiff-Appellant, vs. THE CITY OF FEDERAL WAY, et al., Defendant-Appellees. __________________________________________________________________ RESPONSE BRIEF OF DEFENDANT-APPELLEES CITY OF FEDERAL WAY AND FEDERAL WAY POLICE OFFICERS _________________________________________________________________

Jeremy W. Culumber, WSBA #35423 Keating, Bucklin & McCormack, Inc., P.S. 800 Fifth Avenue, Suite 4141 Seattle, WA 98104 Telephone: (206) 623-8861 Fax: (206) 223-9423 Attorneys for Defendant-Appellees City of Federal Way and Federal Way Police Officers

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TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................... 1 II. STATEMENT OF THE CASE ........................................................................... 1 III. STATEMENT OF THE ISSUES ........................................................................ 3 IV. LEGAL ARGUMENT ........................................................................................ 3 A. The Trial Court Properly Dismissed State Law Claims Against the Officers .................................................................................................... 4 1. Common Law Immunity .......................................................................... 4 2. Statutory Immunity ................................................................................... 5 B. The Trial Court Properly Dismissed the Federal Claims Against the Officers........................................................................................ 6 C. The Trial Court Properly Dismissed All Claims Against the City of Federal Way ....................................................................................... 8 V. CONCLUSION ................................................................................................. 11 STATEMENT OF RELATED CASES ................................................................... 13 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ...................................... 14 CERTIFICATE OF SERVICE ................................................................................ 15

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TABLE OF AUTHORITIES

STATE CASES Guffey v. State 103 Wn.2d 144, 690 P.2d 1163 (1984) .......................................................... 4 Staats v. Brown 139 Wn.2d 757, 991 P.2d 516 (2000) ............................................................. 4 U.S. CONSTITUTION U.S. Const., Fourth Amendment ................................................................................ 7 42 U.S.C. 1983 ..............................................................................................7, 8, 10 STATE STATUES RCW 10.31.100..................................................................................................4, 5, 6 RCW 10.99.030.......................................................................................................... 4 RCW 10.99.070...................................................................................................... 4, 5

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I.

INTRODUCTION

Respondents City of Federal Way (the City), and Federal Way Police Officers Schmidt and Sant (Officers), respectfully request that this Court affirm the judgment of the trial court. II. STATEMENT OF THE CASE

On January 22, 2011, Federal Way Police Officers Schmidt and Sant responded to a 911 hang-up at Plaintiffs apartment. ER 28, et seq.1 While the officers were en route to the apartment, 911 received multiple additional calls about a fight at that location. Id. When they arrived at the scene, the officers found Plaintiffs daughter who was bleeding from the lip and arm Plaintiff, and Harold Harris (Plaintiffs roommate). Id. The officers separated and interviewed Plaintiff and her daughter, each of whom blamed the other for the fight, and each of whom declined to provide a written statement. Id. The third party, Harold Harris, told the officers that Plaintiff had been the aggressor, and that that he had intervened when Plaintiff was on top of her daughter, punching her repeatedly in the face. Id. Mr. Harris provided a signed written statement. Id. Based on the investigation, including the signed statement from eyewitness Harris and the documented injuries to Plaintiffs daughter, Officer Sant placed
1

Plaintiffs ER designations are incorrectly broken into separate documents. For ease of reference, all ER citations in this brief refer to the page numbers of Plaintiffs designation, with page 1 being the title page.
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Plaintiff under arrest for Assault 4 Domestic Violence, and transported her to the Enumclaw Jail. Id. Neither officer has had any further involvement with Plaintiff. In her 7-page Complaint, Plaintiff devotes a mere three sentences to her arrest: On January 22, 2011, there was a call to 911 dispatch regarding a domestic dispute at a residence in the City of Federal Way. The City of Federal Way Police arrived to observe that there has [sic] been an altercation between mother and daughter. After observation and questioning persons in attendance, officers determined Ms. Adams (Mother) would be arrested and charged with a misdemeanor assault 4 degree that would lead to her being detained for booking. ER 11, et seq. Based on the Officers investigation, including both Mr. Harris sworn statement and Plaintiffs own admission that she had struck her daughter several times, the Officers arrested Plaintiff and booked her into the Enumclaw Jail. When Plaintiff appeared before the municipal judge for arraignment, she refused to sign any documents, including the standard no-contact order. As a result, the Judge raised her bail, revoked bond, and Plaintiff remained in jail until her trial. At trial, the jury acquitted Plaintiff of the charges against her, and she was released from custody. Following her release, Plaintiff filed the present lawsuit. Her Fourth

Amended Complaint (the operative complaint here) made a variety of allegations, and listed numerous causes of action against Officer Schmidt and Sant, the public

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defenders who prosecuted her, the Judge who presided over her trial, and even the public defenders who ultimately gained her acquittal. Id. During the course of litigation, Defendants filed three separate summary judgment motions: (1) to dismiss all state claims against the individual officers (and other parties not involved in this appeal), (2) to dismiss the federal claims against the officers, and (3) to dismiss all claims against the City as a separate entity. In the end, all three motions were granted, and all of Plaintiffs claims against the officers and the City were dismissed with prejudice. See, ER 46-47, ER 26-27, and SER 13-14. This appeal followed. III. 1. STATEMENT OF THE ISSUES

Did the trial court err in dismissing the State law claims against the officers? NO.

2.

Did the trial court err in dismissing the federal claims against the officers? NO.

3.

Did the trial court err in dismissing all claims against the City? NO. IV. LEGAL ARGUMENT

For the reasons discussed below, the trial court properly ruled on all three summary judgment motions, and all three decisions should be affirmed.

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A.

The Trial Court Properly Dismissed State Law Claims Against the Officers The first motion at issue here is the Officers motion to dismiss all stat e law

claims (SER 1-12) and the trial courts order granting the motion in part ( ER 4647). 1. Common Law Immunity

In Washington, Police officers have common law qualified immunity from state tort claims if their conduct meets a three-part test: (1) they are carrying out a statutory duty, (2) according to the procedures dictated by statute and superiors, and (3) they acted reasonably. Guffey v. State, 103 Wn.2d 144, 152, 690 P.2d 1163 (1984); Staats v. Brown, 139 Wn.2d at 778, 991 P.2d 615 (false arrest and assault and battery). Here, the officers spoke to both the victim of Plaintiffs assault and an eyewitness, obtained a sworn statement from the eyewitness, and took photos of the victims injuries. Under the domestic violence statute, Officer Schmidt and Sant were required to arrest Plaintiff. When a peace officer responds to a

domestic violence call and has probable cause to believe that a crime has been committed, the peace officer shall exercise arrest powers with reference to the criteria in RCW 10.31.100 RCW 10.99.030(60) (emphasis added). Turning to RCW 10.31.100(2), that section requires the officers to arrest and take a person into custody when they have cause to believe the suspect has committed an assault against a family member.
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Officers Schmidt and Sant fulfilled their statutory duty by arresting Plaintiff for domestic violence, did so according to the procedures laid out under Washington law, and at all times acted reasonably. They are entitled to qualified immunity from Plaintiffs state tort claims, the trial Court correctly dismissed the state law claims on that basis. See, ER 46. 2. Statutory Immunity

Aside from the common law immunity discussed above, Officer Schmidt and Sant are also entitled to statutory immunity under both RCW 10.99.070 and 10.31.100(12). The first statute, 10.99.070, plainly states that A peace officer shall not be held liable in any civil action for an arrest based on probable cause or any other action or omission in good faith under this chapter arising from an alleged incident of domestic violence brought by any party to the incident. Here, Plaintiffs arrest was clearly based on probable cause, and was clearly made in good faith by Officer Schmidt and Sant. Moreover, the specific statute under which Plaintiff was arrested RCW 10.31.100 provides an additional protection for the officers: No police officer may be held criminally or civilly liable for making an arrest pursuant to subsection (2) or (8) of this section if the police officer acts in good fai th and without malice. RCW 10.31.100(12). Again, Plaintiff made no allegation that Officer Schmidt and Sant acted with malice in arresting her. The police reports prepared by the

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officers, along with the photos and the sworn statement of the eyewitness, make clear that Plaintiffs arrest was reasonable and made in good faith. Plaintiff makes no allegation that the particular manner in which she was arrested was somehow improper (i.e., excessive force, etc.). Officers Schmidt and Sant are entitled to immunity from Plaintiffs claims under RCW 10.31.100(12), and the trial court properly dismissed Plaintiffs state law claims against them on that basis. See, ER 46. B. The Trial Court Properly Dismissed the Federal Claims Against the Officers The second order on appeal is the trial courts grant of the Officers motion to dismiss the federal claims against them. See, ER 28, et seq. (Motion) and ER 26-27 (Order). As described above, Plaintiffs factual description of her arrest is a mere three sentences long. See, ER 11, et seq. Notably absent from that description is any fact that could conceivably support any federal liability against the Officers under 1983. She merely states that police received a 911 call, came to the scene, found that a fight had occurred, talked to everyone involved, and arrested her. Despite making no factual allegations that would support liability, Plaintiff includes a cause of action titled False Arrest, Malicious Prosecution, and Unlawful Detainment. ER 15. However, she includes no description of facts under that heading, and otherwise gives no indication about what this cause of
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action entails, what factual allegations might support it, or which defendants specifically it might apply against. The mere inclusion of a headin g titled False Arrest, Malicious Prosecution, and Unlawful Detainment with no further description, explanation, or factual basis should not be sufficient to maintain a cause of action for deprivation of important Constitutional rights under the 4th Amendment and 1983. Finally, in the Conclusion section of her Complaint, Plaintiff appears to make reference to a potential false arrest claim when she states, She [Plaintiff] claims that her being charged and detained did not constitute probable cause in accordance to state law. ER 16 (emphasis added). However, this single sentence is insufficient to support a claim against Officers Schmidt and Sant under the 4th Amendment for two reasons. First, this sentence merely references the way Plaintiff was charged and detained. Based on the entirety of her Complaint as well as her subsequent submissions to both the trial court and this Court Plaintiffs main allegations are that she was (1) improperly prosecuted by the City (i.e., charged), and (2) improperly denied bail (i.e., detained). So, in the context of her Complaint in general, Plaintiffs reference to being charged and detained without probable cause is not a reference to the manner in which she was arrested, but rather a

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reference to the way she was charged and the length of time she was incarcerated, neither of which implicate Officer Schmidt or Officer Sant. Second, even if Plaintiffs reference to the manner in which she was charged and detained does address the arrest itself, her allegation that it was not in accordance to state law does not support a Federal Constitutional claim under 1983. Id. (emphasis added). Plaintiffs Complaint makes no allegation that the fact of her arrest, or the way she was arrested, violated her federal constitutional rights. She fails to state a cause of action under 1983 and the trial court properly dismissed any purported federal claims against Officers Schmidt and Sant. C. The Trial Court Properly Dismissed All Claims Against the City of Federal Way The final motion and order at issue here is the trial courts order granting the City of Federal Ways motion to dismiss all federal claims against the City as a separate entity. See, ER 48, et seq. (Motion) and SER 48 (Order). Plaintiffs Fourth Amended Complaint the operative complaint in this action was filed on December 9, 2011. See, ER 11, et seq. That Complaint has a section titled Defendants, in which Plaintiff has individually numbered and listed each separate entity she is apparently suing. Id. Plaintiff lists the Defendants as follows:

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Municipal Court Judge David Larson; Arthur, City of Federal Way Prosecuting Attorney; Duclos, Candice M., Prosecuting Trial Attorney; Zumwalt, Public Defender Matthew Todd Crawford, Public Defender Police Officer K. Schmidt; and Police Officer M. Sant

ER 11-12. While Plaintiff lists these seven individuals, she does not list the City of Federal Way itself as a defendant. It appears the only reason the City is listed as a Defendant in this matter is because Plaintiff included the City in the caption when filing the case. Plaintiffs Statement of Facts describes her arrest in two sentences, without making any allegation that the arrest was somehow improper. ER 14. She then goes on to make allegations regarding imposition of bail and the Prosecutors exercise of strikes during jury selection at her criminal trial. Again, however, she makes no specific allegations against the City of Federal Way itself. Next, Plaintiff lists six separate causes of action. ER 15. None of these causes of action are directed at any particular defendant, and none of them seem to implicate the City of Federal Way as a distinct entity. Finally, in the section titled Conclusion, while Plaintiff does men tion the City itself, it is unclear (a) what she is claiming, (b) who she claims did it, and (c) what legal cause of action it may give rise to. For example, Plaintiff states the City of Federal Way would use abuse of discretionable acts that would

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demonstrate an act of retaliation by implementing enactment to prosecute in accordance to Sate of Washington Law. ER 16 (emphasis in original). She further claims that the City of Federal Way would subject her to being Racially Profiled and Desperate treatment and Impact has resulted while being charged with a crime. She then inserts a footnote with the citation 51m teno, K,Q, 409, 413 n. 15 (1978). Id., at fn. 9. The only other reference to the City itself seems to be on page 7 of her Complaint, where she states that The City of Federal Way should be liable in repayment for her losses Civil Rights Act 42 U.S.C. 1983. ER 17. When assessing Plaintiffs claims, it is important to remember that this is not Plaintiffs first federal lawsuit, and not even her first lawsuit against the City of Federal Way. She brought nearly identical claims more than two years ago after a prior conviction in Municipal Court. See, Case 2:09-cv-00867-TSZ. In dismissing the City from that case, Judge Zilly explained that [t]he Complaint, however, contains no allegation that any actions adverse to plaintiff were taken pursuant to an official policy or longstanding practice or custom of the City of Federal Way. Id., at Dkt. 25, p. 3, l. 9-11. The same is true here. Simply put, Plaintiff is well aware of what it takes to maintain a civil rights claim against the City as a separate entity, and has failed to do so in this case. While Plaintiff vaguely cites to 42 U.S.C. 1983 in her Complaint the fourth

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separate complaint she has filed in this case she presents no legitimate factual allegations that would lead to liability against the City. She does not list the City as a defendant, does not name the City in any of her causes of action, makes no allegations of policy, practice, or procedure, and does not claim the City ratified any improper behavior. Based on those facts, the trial court held that Plaintiff has not asserted facts which give rise to a plausible inference of liability on the part of the City. . . . Nor has plaintiff alleged any facts from which one could infer that the constitutionally infirm acts of subordinate employees were the result of a municipal policy or custom. SER 13-14. That ruling was proper, and should be affirmed. V. CONCLUSION

In this case, the trial court separately dismissed all state law claims against the individual Officers (ER 46-47), all federal claims against the individual officers (ER 26-27), and all purported claims against the City as a separate entity ( SER 1314). Each of those rulings was consistent with both the law and the facts at issue here, and Respondent respectfully request that each of those rulings be affirmed. / / /

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DATED this 8th day of October, 2012. KEATING, BUCKLIN & McCORMACK, INC., P.S. s/ Jeremy W. Culumber Jeremy W. Culumber, WSBA #35423 800 Fifth Avenue, Suite 4141 Seattle, WA 98104 Telephone: (206) 623-8861 Fax: (206) 223-9423 jculumber@kbmlawyers.com Attorneys for Defendant-Appellees City of Federal Way and Federal Way Police Officers

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STATEMENT OF RELATED CASES There are no related cases pending in this Court to Defendant-Appellees knowledge. DATED this 8th day of October, 2012. Respectfully submitted, KEATING, BUCKLIN & McCORMACK, INC., P.S. s/ Jeremy W. Culumber Jeremy W. Culumber, WSBA #35423 800 Fifth Avenue, Suite 4141 Seattle, WA 98104 Telephone: (206) 623-8861 Fax: (206) 223-9423 jculumber@kbmlawyers.com Attorneys for Defendant-Appellees City of Federal Way and Federal Way Police Officers

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CERTIFICATION OF COMPLIANCE WITH FRAP 32 (a) FOR Case #12-35376 I certify that: 1. Pursuant to FRAP 32(a)(7)(B), the attached Response Brief of

Defendant-Appellees City of Federal Way and Federal Way Police Officers contains 2,464 words (14,000 allowed), excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and 2. The attached Response Brief of Defendant-Appellees City of Federal Way and Federal Way Police Officers complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionately spaced typeface in 14-point Times New Roman. DATED this 8th day of October, 2012 KEATING, BUCKLIN & McCORMACK, INC., P.S. s/ Jeremy W. Culumber Jeremy W. Culumber, WSBA #35423 800 Fifth Avenue, Suite 4141 Seattle, WA 98104 Telephone: (206) 623-8861 Fax: (206) 223-9423 Attorneys for Defendant-Appellees City of Federal Way and Federal Way Police Officers

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CERTIFICATE OF SERVICE I, Jeremy W. Culumber, certify that on the 8th day of October, 2012, a copy of the foregoing Response Brief of Defendant-Appellees City of Federal Way and Federal Way Police Officers was filed electronically with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF. I also certify that on the 8th day of October, 2012, I caused a copy of the foregoing Response Brief of Defendant-Appellees City of Federal Way and Federal Way Police Officers to be sent out via U.S. first class mail, and courtesy email, addressed as follows: Loanita Adams General Delivery Seattle, WA 98101 Loanita2@aol.com Plaintiff Pro Se

KEATING, BUCKLIN & McCORMACK, INC., P.S. s/ Jeremy W. Culumber Jeremy W. Culumber, WSBA #35423 800 Fifth Avenue, Suite 4141 Seattle, WA 98104 Telephone: (206) 623-8861 Fax: (206) 223-9423 Attorneys for Defendant-Appellees City of Federal Way and Federal Way Police Officers
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