HUNT, J.
¶ 1 Tom Seymour appeals the trial court's (1) grant of partial summary judgment to Krista Osborne, holding him liable for violating her Fourth Amendment rights under 42 U.S.C. § 1983; (2) denial of his cross-motion and all defendants' summary judgment motion to dismiss Osborne's § 1983 claim against him, based on qualified immunity; and (3) award of attorney fees and costs of $340,654.14 against him. We affirm the trial court's summary judgment rulings. We vacate the trial court's award of attorney fees and costs and remand to the trial court to reduce the award to include the attorney fees and costs attributable only to Osborne's litigation of her § 1983 claim against Seymour. We also deny Osborne's request for attorney fees on appeal.
¶ 2 On July 25, 2004, Krista Osborne obtained an emergency temporary protection order against her then-husband, Lloyd Bird, prohibiting him from entering their residence. This protection order specifically stated:
¶ 3 [I]t is hereby ORDERED ... that the Respondent [Bird] is RESTRAINED from:
Clerk's Papers (CP) at 1046. This order was effective until August 6, 2004.
¶ 4 Also on July 25, the Pierce County Sheriff's Department (PCSD) suspended Bird, who was a detective assigned to the Domestic Violence Unit (DVU)
¶ 5 The next day, July 26, PCSD Sergeant Thomas E. Seymour, a "supervisor of the Domestic Violence Unit," "was ... advised of the situation" "as part of protocol" for "domestics involving other law enforcement officers including law enforcement officers within [the domestic violence] department." CP at 132. Around 2:00 PM that same day, Seymour served Bird with Osborne's restraining order against him and told Bird that the "order provided that [he (Bird)] w[asn't] supposed to go to [the residence]" and "that [he] w[asn't] supposed to have any contact with [Osborne]." CP at 781.
¶ 6 Later that same day, Bird obtained a protection order against Osborne. In his petition, he requested "possession of essential personal belongings," including "[a] Harley Davidson, Yamaha motorcycles ... clothing [and] essential items"; but he did not mark the boxes on the petition asking "the court [to] order the appropriate law enforcement agency to assist [him] in obtaining" "[p]ossession of [his] essential personal belongings" at "the shared residence." CP at 1051. A superior court commissioner signed Bird's protection order against Osborne; but, like Bird's petition, this form order did not have marks in the boxes that would have permitted law enforcement agencies to assist Bird in obtaining his belongings. Nor did this order list under the heading "Petitioner [Bird] shall have possession of essential personal belongings" any specific items that Bird had noted in his petition, such as his Harley Davidson, Yahama motorcycle, and clothing. CP at 1055. Approximately one hour after the commissioner signed Bird's protection order, Seymour drove to Osborne's residence and served her with it. While there, Seymour took possession of several of Bird's handguns, his "commission card," his "wallet badge," and his "access card."
¶ 7 The next day, July 27, Bird was in Seymour's office filling out paperwork to correct a "clerical error" in the temporary residential address noted in his restraining order against Osborne. CP at 140. The same superior court commissioner signed this modification order. CP at 110. Like the other two orders already in place, this modification order did not authorize law enforcement officers to assist Bird with taking possession of his personal property from Osborne's residence. On the contrary, this modification order stated only that the July 26 order "shall be ... continued in effect," notwithstanding the correction of Bird's residential address. CP at 140. When Seymour served Osborne with this modification order, Seymour did not mention any plan to recover Bird's other possessions from the family home.
¶ 8 Also on July 27, Bird told Seymour, "I need to get my clothing, and I don't have anything other than what I'm wearing," and "I need to get a civil standby or something to get my clothing out of there." CP at 796 (internal quotation marks omitted). Seymour then "quer[ied]" former DVU clerk's office employee Sarah Schaub about "her
¶ 9 Bird also called Sergeant William Wells Cassio and asked "to meet him in University Place over a civil standby." CP at 811. When they met, Bird explained to Cassio that he "had a protection order" and that "he was requesting a civil standby for that protection order so he could return to his residence"; and Bird "specifically asked [Cassio] if [he, Bird] could retrieve his Harley Davidson." CP at 812. Cassio reviewed both Bird's protection order against Osborne and Osborne's protection order against Bird. Cassio "didn't see the authority for this civil standby that [Bird] was asking for," concluded that there was "no authority" for Bird to retrieve his motorcycle, and "told [Bird] that [he, Cassio] wouldn't be assisting in [Bird's] civil standby." CP at 812-14.
¶ 10 The next day, July 28, at 1:40 PM, Bird and Jenna Bird,
¶ 11 According to Stonack, at the University Place police station meeting, Seymour (1) said that "the brass was aware that the [Pierce County Sheriff's] department was going to be doing a civil standby at the Bird residence," CP at 926; and (2) "indicate[d]" that Osborne's order against Bird "allowed Lloyd Bird to be accompanied by the sheriff's department and retrieve his personal effects." CP at 928. Seymour did not, however, read the protection orders.
¶ 12 Nor did Seymour later contact his superiors or other law enforcement officers in the DVU to ask "whether [they thought] it was appropriate to do a civil standby for Lloyd Bird." CP at 122. Despite the plan for law enforcement to accompany Bird to Osborne's home to retrieve Bird's personal belongings and the meeting at the University Place police station that afternoon, Seymour did not contact Osborne to inform her about the impending plan.
¶ 13 En route to Osborne's residence, Seymour called Craig S. Adams, a Pierce County deputy prosecuting attorney and the Pierce County Sheriff's legal advisor. Seymour "advise[d] [Adams] that [he, Seymour] w[as] going to do a civil standby for ... Bird" at Osborne's residence. CP at 125. But "because [he, Seymour, was] comfortable doing the civil standby"
¶ 14 Seymour did, however, ask Adams "to clarify whether or not [Bird] c[ould] take [his motorcycle]" because "[law enforcement] d[oesn't] move motorcycles or real property" during civil standbys. CP at 835-36. According
¶ 15 Seymour was the "lead," "commanding," or "primary" officer during the "civil standby" with Bird at Osborne's home. CP at 158, 162, 256. Seymour and Aloisio knocked on Osborne's door, but no one answered. When Aloisio realized that Osborne was not home, he "asked [Seymour] to make it stop," "point[ing] out to Sergeant Seymour that [Seymour, Stonack, and Aloisio] were not following what [he, Aloisio,] thought to be procedure." CP at 165, 188. Seymour responded that he had an "order" that gave "[Bird] ... the right to enter the property and get his stuff" and that he (Seymour) "would just make a list" of items that Bird was taking. CP at 166, 190.
¶ 16 Bird opened the garage door with an electric garage door opener. Parked inside the garage was a pickup truck that Osborne had loaded with "tons of [Bird's] personal items." CP at 129. Bird, Jenna, Seymour, and Aloisio entered the residence. Bird and Jenna went upstairs and "remov[ed] items." CP at 158. Seymour, who spent most of the time inside the house "downstairs by the garage or by the dining area," also went upstairs at one point. CP at 158. Bird took the pickup truck, a Harley Davidson motorcycle, and television sets. Seymour asked Aloisio for a camera because "there w[ere] too many items going out to make a list so [he, Seymour,] would just take pictures of it." CP at 166. The photos, however, were only "of the back of the truck with a bunch of bags." CP at 166.
¶ 17 Stonack stayed in his car. At least once, Aloisio "went out to Sergeant Stonack's car and ... told [Stonack] that [he, Aloisio,] objected and that ... [he, Aloisio,] didn't think [Seymour, Stonack, and Aloisio] were following policy." CP at 166. In response, Stonack told Aloisio that "it was Sergeant Seymour's call." CP at 191.
¶ 18 Around 5:00 PM. that day, Osborne returned to her residence and discovered evidence of the earlier activity. Inside the house, Osborne found Seymour's business card listing Seymour as "`domestic violence unit supervisor'" and containing a handwritten note on the back of the card reading, "`I was here with Lloyd [Bird] on a civil stand-by.'" V Verbatim Report of Proceedings (VRP) at 744 (internal quotation marks omitted). She discovered that, in addition to his personal possessions, Bird had taken some of her "own personal clothing ..., cameras, flashlights, ... personal toiletries," and "historical paperwork from when [she had] worked at [the] Pierce County Sheriff's Department." CP at 222-23.
¶ 19 On July 14, 2006, Osborne sued Bird, Jenna, Seymour, Stonack, Pierce County Sheriff Paul Pastor, Pierce County, and Brendan Harding Phillips.
¶ 20 Osborne moved for partial summary judgment against Seymour, seeking to establish his liability under 42 U.S.C. § 1983. Seymour cross-moved for summary judgment, seeking to dismiss Osborne's § 1983 claim on the basis of qualified immunity. Pierce County, Pastor, Seymour, and Stonack ("Pierce County Defendants") also moved for summary judgment, arguing that "[Osborne] ha[d] no evidence" supporting her claim that they had violated her equal protection rights by "pervert[ing] the internal affairs process and otherwise ... not treat[ing] [her] complaints appropriately."
¶ 21 Osborne sought partial summary judgment to establish Seymour's liability for "violat[ing] [her] constitutional rights by unlawfully entering her house on July 28, 2004, and enabl[ing] the unlawful entry of her estranged husband, Lloyd Bird." CP at 48. Osborne further alleged:
CP at 57 (footnotes and citations omitted).
¶ 22 Osborne argued that (1) acting "under the color of state law,"
¶ 23 The trial court granted Osborne's partial summary judgment motion, ruling, "Seymour is found to have violated [Osborne's]
¶ 24 Seymour did not dispute Osborne's facts. Instead, he argued that these facts did not amount to a violation of her constitutional rights. For example, Seymour contended that (1) "[t]he entry of [Osborne's] home was not a `search,' but rather a civil standby conducted with police escort of the co-owner of the house going to get his belongings"
¶ 25 Then Seymour further argued that, "[e]ven if the court were to conclude that a violation did occur,"
¶ 26 Osborne replied that (1) Seymour had not engaged in a "civil standby" because her protection order against Bird did not provide for one; and (2) Seymour's failure to read the protection orders did not entitle him to qualified immunity: "A Pierce County sergeant—especially one who is the supervisor of the domestic violence unit—must act in an objectively reasonable fashion and read the terms of the order or warrant that he is executing. Qualified immunity is not available to Sgt. Seymour." CP at 236.
¶ 27 The trial court denied Seymour's cross-motion for summary judgment, ruling that "[Osborne's] Fourth Amendment Rights were clearly established such that it would have been clear to a reasonable officer that his conduct was unlawful in the situation that Sgt. Tom Seymour faced on July 28, 2004," and, therefore, Seymour was not entitled to qualified immunity from Osborne's lawsuit. CP at 262.
¶ 28 Pierce County Defendants argued that (1) Seymour did not violate Osborne's constitutional rights because no search took place at her home; (2) rather, Bird, "the co-owner" of the home, simply "enter[ed] his own home to retrieve his personal belongings," "accompanied by law enforcement officers to do a civil standby as is commonly allowed by law"
¶ 29 Osborne responded that Seymour had "arranged for ... Bird to violate the restraining orders," "facilitated ... Bird's access to [Osborne's] computer, and allowed [Bird] to remove and re-arrange property at the residence, [in] violat[ion of] ... Osborne's privacy and her Fourth Amendment rights." CP at 904. Osborne also argued that Seymour could not invoke the "`advice of counsel'" argument in support of his qualified immunity defense because he (Seymour) had given "incomplete and inaccurate disclosures" to Adams, the Pierce County Sheriff's legal advisor. CP at 911. In addition to reiterating their original arguments, Pierce County Defendants replied that "officers who are present at a scene, and even those who enter a residence, as part of a community caretaking/peace keeping mission, do not violate
¶ 30 The trial court granted in part and denied in part Pierce County Defendants' summary judgment motion, ruling that (1) "there [we]re no genuine issues of material fact with regard to [Osborne's] [Fourteenth] Amendment equal protection violation claim"
¶ 31 Before trial, Osborne dropped some defendants and claims
¶ 32 A jury found that Bird had committed trespass against Osborne and awarded $15,000 in damages for this claim. The jury also found that Bird did not tortiously interfere with Osborne's employment and that Bird did not engage in outrageous conduct.
¶ 33 Because the trial court had previously ruled on summary judgment that Seymour had "acted under the color of law and violated [Osborne's] Fourth Amendment right to be secure in her home,"
¶ 34 The jury also found that the Pierce County Sheriff's Department had "fail[ed] to train ... Seymour, to handle civil standbys" and "act[ed] with deliberate indifference to the obvious consequences of its failure to provide adequate training to Defendant Seymour." CP at 437. The jury did not find, however, that this "failure to train was the moving force that caused injury or damage to... Osborne." CP at 437. Nor did the jury find that Seymour, "in violating the Fourth Amendment, act[ed] in accordance with a longstanding custom, policy, or practice in the Pierce County Sheriff's Department." CP at 437. Accordingly, the jury did not award any compensatory damages against Pierce County.
¶ 35 On September 1, 2009, the trial court issued its "Order and Judgment," which (1) entered judgment against Seymour and Bird
¶ 36 On January 21, 2010, the trial court (1) entered extensive findings of fact and conclusions of law for attorney fees and costs, including a "lodestar calculation" analysis
¶ 37 On February 22, Seymour amended his September 24, 2009 notice of appeal by adding three new issues for review: (1) the trial court's September 1, 2009 order imposing judgment of $17,500 against Seymour for violating Osborne's Fourth Amendment rights; (2) the trial court's January 21, 2010 "Findings of Facts and Conclusions of Law on Motion for Attorneys' Fees and Costs"; and (3) the trial court's February 17, 2010 "Supplemental Order and Judgment Against Defendant Tom Seymour for Attorney's Fees and Costs." CP at 1172.
¶ 38 Seymour first argues that the trial court erred (1) by granting Osborne's partial summary judgment motion establishing his liability under 42 U.S.C. § 1983 for violating her Fourth Amendment rights; (2) by denying his summary judgment cross-motion to establish his qualified immunity from Osborne's action; and (3) by denying Pierce County Defendants' summary judgment motion seeking to dismiss Osborne's § 1983 claim against him. Osborne contends that the trial court's summary judgment rulings were not erroneous because no reasonable officer could conclude that Seymour's actions were lawful. We agree with Osborne.
¶ 39 Seymour challenges the trial court's summary judgment rulings in Osborne's favor on two primary grounds: (1) Osborne's Fourth Amendment rights were "not clearly established"
¶ 40 When reviewing a summary judgment motion, we "must take the position of the trial court." Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). "The evidence before the judge is that contained in the pleadings, affidavits, admissions and other material properly presented." Chase v. Daily Record, Inc., 83 Wn.2d 37, 42, 515 P.2d 154 (1973). "Summary judgment is proper if pleadings, depositions, affidavits, and admissions, viewed in a light most favorable to the nonmoving party, show there is no genuine issue of material fact and demonstrate that the party making the motion is entitled to judgment as a matter of law." Bratton v. Welp, 145 Wn.2d 572, 576, 39 P.3d 959 (2002).
¶ 41 "If a genuine issue of fact exists preventing a determination of qualified immunity at summary judgment, the case must proceed to trial." Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993). A grant of summary judgment that rejects a qualified immunity defense is improper "if officers of reasonable competence could disagree" on the legality of the officer's action. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). But if "no reasonably competent officer would have concluded" that the action was lawful, then the trial court
¶ 42 "Under the doctrine of qualified immunity, government officials who perform discretionary functions are usually shielded from liability for civil damages if their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Musso-Escude v. Edwards, 101 Wn.App. 560, 568-69 n. 24, 4 P.3d 151 (2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Seaman v. Karr, 114 Wn.App. 665, 679-80, 59 P.3d 701 (2002) (quoting DeBoer v. Pennington, 206 F.3d 857, 864 (9th Cir.2000), rev'd on other grounds, City of Bellingham v. DeBoer, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 635 (2001)).
¶ 43 To satisfy the first step of a qualified immunity analysis, "`the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.'" Seaman, 114 Wash.App. at 680, 59 P.3d 701 (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). To this end, "[t]he plaintiff's allegations are crucial to `identify[ing] the contours of the right allegedly violated.'" Seaman, 114 Wash.App. at 680, 59 P.3d 701 (quoting DeBoer, 206 F.3d at 864).
¶ 44 Osborne alleges that Seymour violated her Fourth Amendment right to be free from the unreasonable physical intrusion of law enforcement officers into her home.
¶ 45 We now address whether Osborne's right to be free from the unlawful
Seaman, 114 Wash.App. at 680-81, 59 P.3d 701 (internal quotation marks omitted) (quoting Wilson, 526 U.S. at 614-15, 119 S.Ct. 1692).
¶ 46 Thus, the "salient question" under the second step of the qualified immunity analysis is whether the law provided Seymour with "fair warning" that his "actions were unconstitutional." Beier v. City of Lewiston, 354 F.3d 1058, 1068 (9th Cir.2004) (internal quotation marks and citations omitted). In other words, on July 28, 2004, was federal law sufficiently clear to give Seymour "fair warning" that the Fourth Amendment prohibited him from physically entering Osborne's residence without a warrant, court order, or other justification? Beier, 354 F.3d at 1068. Seymour answers this question in the negative, contending that his entry into Osborne's house was lawful because he was engaged in "a civil standby." Br. of Appellant at 18. This argument fails.
¶ 47 "To determine whether a federal right is clearly established, we look first to United States Supreme Court precedent and then to decisions of the controlling Circuit Court of Appeals." Seaman, 114 Wash.App. at 680, 59 P.3d 701. "In the absence of controlling precedent, we broaden our survey to include all relevant caselaw in order to determine `whether there was such a clear trend in the caselaw that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.'" Denius v. Dunlap, 209 F.3d 944, 951 (7th Cir.2000) (quoting Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir.1989)).
¶ 48 Controlling federal precedent clearly establishes that a police officer violates a resident's Fourth Amendment rights by entering the home without a warrant, court order, or other justification, such as an exigent circumstance. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ("[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.") Thus, federal law was sufficiently clear on July 28, 2004, to give Seymour "fair warning" that the Fourth Amendment prohibited him from physically entering Osborne's residence without a warrant, court order, or other justification. Beier, 354 F.3d at 1068.
¶ 49 Although federal law clearly establishes Osborne's Fourth Amendment right to be free from unauthorized government intrusions, whether Seymour had "fair warning" that he was violating Osborne's Fourth Amendment rights on July 28, 2004, also involves questions of state law. Seymour's actions would not have run afoul of Osborne's Fourth Amendment rights if a court order (such as the restraining orders) had expressly permitted those actions. Katz, 389 U.S. at
¶ 50 RCW 26.50.080 permits courts to issue "civil standby" orders in cases of domestic violence.
RCW 26.50.080 (emphasis added).
¶ 51 Neither protection order here, however, contained such statutory language authorizing Bird to retrieve his possessions from Osborne's residence or authorizing any law enforcement officer to accompany Bird to "assist in placing [him] in possession" of any items. RCW 26.50.080. On the contrary, Osborne's protection order against Bird expressly (1) prohibited Bird's "[g]oing upon the premises of the petitioner's residence or workplace" and (2) provided that "ONLY THE COURT CAN CHANGE THE ORDER UPON WRITTEN APPLICATION." CP at 86 (Ex. 16). The record includes no such separate court-ordered authorization; nor does Seymour claim that such authorization existed. Similarly, Bird's form protection order left blank and unchecked the boxes that would have authorized law enforcement to accompany him for this purpose.
¶ 52 Nevertheless, Seymour argues that RCW 26.50.080 does not contain any language "prevent[ing] a peace officer from assisting the petitioner absent an explicit court order." Br. of Appellant at 25 (second emphasis added). According to Seymour, the absence of such language implicitly authorized his intrusion into the residence. This argument also fails. Although, as Seymour notes, RCW 26.50.080 contains no language expressly prohibiting an officer from entering a residence in the absence of a court order, this "omission" did not authorize his entry into Osborne's home. On the contrary, such language would be unnecessary because both state and federal constitutions already expressly prohibit such law enforcement warrantless entry of a private home absent specific exigent circumstances, none of which existed here. See Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.") (quoting United States v. United States Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (internal quotation omitted)); see also State v. Hatchie, 161 Wn.2d 390, 397, 166 P.3d 698 (2007) ("[A]ny intrusion [by the State] into the home without a warrant is per se unreasonable.").
¶ 53 Because neither the protection orders nor RCW 26.50.080 authorized Seymour's
¶ 54 Despite the absence of any explicit authorization to accompany Bird to retrieve his possessions from Osborne's home, Seymour baldly asserts that there was an "uncertain legal effect under Washington law of the protection orders both Osborne and Bird relied upon." Br. of Appellant at 23. Again, we disagree. The protection orders were clear: By their plain language, neither order permitted a "civil standby," which Seymour admitted below.
¶ 55 Having "clearly established" the unlawfulness of Seymour's entering Osborne's private residence on July 28, 2004, we next address the third, and final, step of the qualified immunity analysis—"would a reasonable officer have believed that his conduct was lawful?" Seaman, 114 Wash.App. at 680, 59 P.3d 701. Seymour argues that (1) it was reasonable to believe that his intrusion into Osborne's residence was lawful; and (2) in the alternative, the legality of his actions depends on genuine issues of material fact, thus precluding summary judgment. Again, we disagree.
¶ 56 At the outset we again note that, especially in light of Seymour's position and experience with the sheriff's DVU, he reasonably should have read the protection orders before taking any action. Had he done so, he would have known that these orders not only failed to authorize a "civil standby," but also expressly prohibited Bird's entering the home absent a court order so authorizing. But Seymour failed to "review[] the orders and look[] at the language," and instead, apparently assumed they authorized a "civil standby." CP at 247. Such an error, caused by a failure to "learn[] the terms of [a] protection order," is "not one a reasonably competent officer should make." Beier, 354 F.3d at 1071.
¶ 57 Seymour cites several cases in support of his assertion that a reasonable officer would have believed that his physical intrusion into Osborne's residence was lawful. None of these cases support his position.
¶ 58 At the outset, we note that Seymour cites a case from our Supreme Court, Kalmas v. Wagner, 133 Wn.2d 210, 943 P.2d 1369 (1997). Because Osborne grounds her claim against him in 42 U.S.C. § 1983, only Osborne's federal constitutional rights are at issue; precedent from our state Supreme Court "do[es] not alter" federal constitutional rights. See Virginia v. Moore, 553 U.S. 164,
¶ 59 Citing Kalmas, Seymour argues that his entry into Osborne's residence fell under the "community caretaking function" exception to the Fourth Amendment's warrant requirement. Br. of Appellant at 18 (quoting Kalmas, 133 Wash.2d at 217, 943 P.2d 1369). In Kalmas, our Supreme Court affirmed a trial court's summary judgment grant of defendant police officers' motion to dismiss plaintiff's § 1983 claims against them where one of the plaintiffs called the officers and the officers entered the residence with the other plaintiff's consent. Kalmas, 133 Wash.2d at 213-14, 220, 943 P.2d 1369. The property manager served the plaintiffs, jointly renting a home, with notice of tenancy termination and gave them 24-hour notice that a real estate agent would be showing the property. Kalmas, 133 Wash.2d at 213, 943 P.2d 1369. One plaintiff, however, stood outside and belligerently refused to allow the property manager, real estate agent, and prospective buyer into the home. Kalmas, 133 Wash.2d at 213, 943 P.2d 1369. The other plaintiff, who remained inside the home during this confrontation, called 911 and requested assistance. Kalmas, 133 Wash.2d at 214, 943 P.2d 1369. Two deputy sheriffs arrived, spoke to the property manager, learned about the situation, told the belligerent plaintiff that under the Landlord/Tenant Act he did not have the right to prohibit the others from entering, and advised the plaintiff that the officers would arrest him if he did not back down. Kalmas, 133 Wash.2d at 214, 943 P.2d 1369. The plaintiff acceded, but he requested that the property manager and her fellow employee enter the premises accompanied by one of the deputies. Kalmas, 133 Wash.2d at 214, 943 P.2d 1369.
¶ 60 "Both officers stated their purpose was to keep the peace and prevent any kind of confrontation between the parties." Kalmas, 133 Wash.2d at 214, 943 P.2d 1369. One officer was present inside the residence for less than a minute, during which he did not disturb anything. Kalmas, 133 Wash.2d at 217, 943 P.2d 1369. The Washington Supreme Court held that the officers did not commit an "unreasonable search" in violation of the Fourth Amendment: (1) "[T]he public's interest in having the police perform a community caretaking function" outweighed "the individual's interest in freedom from police interference," Kalmas, 133 Wash.2d at 216-17, 943 P.2d 1369 (quoting State v. Mennegar, 114 Wn.2d 304, 313, 787 P.2d 1347 (1990), overruled on other grounds by, State v. Hill, 123 Wn.2d 641, 645, 870 P.2d 313 (1994)); and (2) "where a plaintiff invites a deputy into his residence in order to perform a caretaking function, we cannot find that an unreasonable search occurred." Kalmas, 133 Wash.2d at 217, 943 P.2d 1369.
¶ 61 Because of its distinguishing facts, Kalmas does not apply here. At the belligerent plaintiff's request, the officers in Kalmas accompanied a private person, the property manager, who had a legal right to enter the residence. In contrast, Seymour and Bird had neither a legal right nor the occupant's consent to enter the residence. Kalmas does not support Seymour's argument that a reasonable officer in the circumstances here would have believed that his conduct was lawful.
¶ 62 Seymour next cites Malatesta v. New York State Division of State Police, 120 F.Supp.2d 235, 237-38 (2000), in which a federal district court ruled that police officers were entitled to qualified immunity because "officers of reasonable competence could disagree on the legality of their actions." Br. of Appellant at 21 (quoting Malatesta, 120 F.Supp.2d at 240 (internal quotation marks and citations omitted)). Granting the defendant police officers' motion for summary judgment, the district court dismissed plaintiff's
¶ 63 Malatesta does not, however, support Seymour's argument that reasonable officers could disagree about the lawfulness of his actions here because Malatesta addressed a different issue. In Malatesta, the grandfather was engaged in "self-help repossession" to take back a truck that he legally owned from his grandson's property, from which no legal order prevented his entering. Malatesta, 120 F.Supp.2d at 240. Here, in contrast, Osborne's protection order expressly prohibited Bird from being at her residence without a specific court order and Bird knew this. Thus, unlike the grandfather in Malatesta, there was little chance that Bird would attempt a private repossession by himself without law enforcement accompaniment and, therefore, no need for the police to intervene to prevent a breach of the peace during a private repossession.
¶ 64 In concluding that "[t]he extent to which police officers can act to prevent a breach of the peace at the scene of a selfhelp repossession is less than clear," the district court in Malatesta ruled only that the Fourth Amendment did not provide well-defined protections when police officers, based on their own sense of prudence to prevent violence, accompany a private citizen on a private, legal, self-help repossession. 120 F.Supp.2d at 240. Here, in contrast, the contours of the Fourth Amendment are clear: The court orders prohibited Bird from going to or entering Osborne's residence; therefore, the police officers, including Seymour, had no derivative authority from these court orders, or any other law, to accompany Bird to the residence. Nothing about the circumstances here is "less than clear" as it was in Malatesta. 120 F.Supp.2d at 240. Accordingly, Malatesta does not support Seymour's argument.
¶ 65 In his statement of additional authorities, Seymour cites another repossession case, Hensley v. Gassman, 763 F.Supp.2d 876 (2011). Gassman, a private citizen who "made a profession of repossessing collateral for lenders,"
¶ 66 The Hensleys brought a § 1983 claim against the deputies for unlawful seizure of their vehicle. Hensley, 763 F.Supp.2d at 879. The deputies moved for summary judgment, arguing that they were entitled to qualified immunity. Hensley, 763 F.Supp.2d at 879, 884-88. The federal district court agreed, ruling that the deputies "reasonably, though mistakenly, believed that there was a
¶ 67 Also in his statement of additional authorities, Seymour cites Harvey v. Plains Township Police Department, 635 F.3d 606 (3d Cir.2011). Harvey, a private citizen, brought a § 1983 claim against a police officer who had assisted her ex-boyfriend in obtaining personal possessions from her apartment while she was not home, despite a "protection from abuse order" that granted her exclusive possession of the once-jointly-rented apartment. Harvey, 635 F.3d at 608. The federal district court instructed that, in order to find that the police officer "act[ed] under color of state law," the jury had to answer only one question: Did the police officer order the landlord to open the apartment door? Harvey, 635 F.3d at 609. The jury answered this question in the negative, and Harvey appealed. Harvey, 635 F.3d at 609. On appeal, the Third Circuit reversed and remanded for a new trial, holding that the jury instruction and verdict form were erroneous because "[t]he state action question must be addressed after considering the totality of the circumstances and cannot be limited to a single factual question." Harvey, 635 F.3d at 610-11.
¶ 68 Thus, the legal issue in Harvey is distinct from the relevant issues here. Neither party disputes that Seymour's conduct on July 28, 2004, rose to the level of state action. Seymour's reliance on Harvey therefore is misplaced.
¶ 69 In further support of his argument that his conduct was reasonable, Seymour claims that "other law enforcement personnel expressed conflicting views on the appropriateness" of his conduct. Br. of Appellant at 23. But, even viewed in a light most favorable to Seymour, the evidence does not support this claim. First, Seymour points to no evidence showing that he contacted any of his superiors or any other law enforcement officers in the DVU "to ask them whether they thought it was appropriate to do a civil standby for Lloyd Bird" or that any fellow officers believed that accompanying Bird to Osborne's home was reasonable. CP at 122. In contrast, when Bird first contacted Sergeant Cassio for his assistance in retrieving his possessions from Osborne's home, Cassio examined the protection orders, believed that Bird lacked authorization to engage in a "civil standby," and communicated to Bird this belief and his unwillingness to assist Bird. See CP at 812-14.
¶ 70 Deputy Aloisio also shared Casio's belief. Despite having accompanied Seymour and Bird to retrieve Bird's possessions from Osborne's home, once there, Aloisio asked Seymour to "make it stop," telling Seymour that he (Aloisio) thought the officers "were not following ... procedure." CP at 165, 189. It had been Aliosio who had secured Osborne's order against Bird, and
¶ 71 Nor did Seymour ask Adams, the department's legal advisor, for advice about a "civil standby" in these circumstances. (Seymour also failed to tell Adams that the restraining orders in place did not give explicit permission for a civil standby). Thus, Seymour cannot rely on the "attorney's advice" argument for evidence of "good faith" to justify the alleged "reasonable[ness]" of his actions and assertion of qualified immunity. See Dixon v. Wallowa County, 336 F.3d 1013, 1019 (9th Cir.2003) (attorney must have "all the relevant facts" for his advice to support an officer's qualified immunity defense). Moreover, Seymour cannot rely on "advice" that Bird or deputy clerk Schaub told him because Schaub was not an attorney and the DVU had a sign stating, "[C]lerks are not allowed to give legal advice." CP at 205. Thus, the record does not support Seymour's assertion that "conflicting views" showed he acted reasonably in entering Osborne's home. Br. of Appellant at 23.
¶ 72 Seymour next asserts that "[w]hether a civil standby may be conducted requires a balancing of the competing societal and privacy interests at stake under the particular circumstances." Reply Br. of Appellant at 14. We agree: As at least two Circuit Courts of Appeal have explained, the constitutionality of an officer's "community caretaking function" actions "requires a reviewing court to balance the governmental interest in the police officer's exercise ... and the individual's interest in being free from arbitrary government interference." Samuelson v. City of New Ulm, 455 F.3d 871, 877 (8th Cir.2006) (quoting United States v. King, 990 F.2d 1552, 1560 (10th Cir.1993) (internal quotation marks omitted)). But balancing these competing interests here does not render Seymour's unauthorized actions reasonable.
¶ 73 As we previously contrasted with some of the "self-help" repossession cases, the situation here did not present competing societal and privacy interests that required balancing by law enforcement.
¶ 74 Seymour suggests that requiring "express judicial authorization" for law enforcement to accompany a citizen under a protection order to retrieve personal property from the prohibited residence "would only encourage... self-help." Reply Br. of Appellant at 11. But if Bird engaged in "self-help," then the role of law enforcement officers should have been to arrest him for violating the protection order, not to assist him in the
¶ 75 Seymour's additional contention— "had the officers waited until Osborne returned to the home, the potential for a confrontation would have dramatically increased"
¶ 76 Also weighing against a strong governmental interest here is the "chief evil against which the wording of the Fourth Amendment is directed"—the government's "physical entry" into a private home without legal authorization. Payton, 445 U.S. at 585-86, 100 S.Ct. 1371 (quoting United States Dist. Court, 407 U.S. at 297, 92 S.Ct. 2125). Our nation "has long recognized that the home provides a special kind of sanctuary in modern life," and the highest court in the land "ha[s] long accorded special deference to the privacy of the home." McDonald v. City of Chicago, ___ U.S. ___, ___, 130 S.Ct. 3020, 3105, 177 L.Ed.2d 894 (2010). Osborne's Fourth Amendment right to be free from the unlawful, physical intrusion of police officers into her residence existed on July 28, 2004, when Seymour and Bird entered without legal authorization. Because Osborne's Fourth Amendment right was clearly established and there was no lawful justification for Seymour's entry into her home, Seymour had "fair warning" that his actions on July 28 violated that right. Beier, 354 F.3d at 1068. No reasonable officer could conclude that Seymour's conduct was lawful.
¶ 77 Seymour proffers several facts that he alleges were in dispute and should, therefore, have provided grounds for denying summary judgment to Osborne: (1) "whether Osborne had anticipated that Bird would retrieve his items from the home prior to the August 6th show cause hearing"; (2) "whether Sgt. Seymour properly inventoried and photographed the items removed from Osborne's home"; (3) "whether supervising University Place officer Sgt. Stonack supported conducting the civil standby"; and (4) "whether Sgt. Seymour's discussion with the Deputy Clerk [Schaub] gave him a reasonable basis for believing that [a] civil standby could occur in the absence of express judicial authorization." Reply Br. of Appellant at 18. We disagree with Seymour that these facts gave rise to genuine issues of material fact that should have defeated summary judgment.
¶ 78 Seymour contends that Osborne's packing up some of Bird's belongings and putting them in the back of a pickup truck in her garage raised a factual issue about whether Osborne expected Bird to retrieve belongings from her residence. We disagree. Especially where the protection order expressly forbade Bird's encroachment on Osborne's residence, merely packing up Bird's belongings and placing them in the pickup were not "activities or circumstances within a dwelling [that] may lessen the owner's reasonable expectation of privacy by creating a risk of which is reasonably foreseeable." United States v. York, 895 F.2d 1026, 1029 (5th Cir.1990) (quoting United States v. Bomengo, 580 F.2d 173 (5th Cir.1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979) (internal quotation marks omitted)).
¶ 79 Nor were there any material disputed facts about the extent to which Seymour "properly inventoried and photographed the items removed from Osborne's home." Reply Br. of Appellant at 18. On the contrary, Seymour's monitoring of Bird's repossession activities or inventorying what he removed from the house were immaterial to the summary judgment issues. Again, the protection orders did not authorize Bird, Seymour, or any other law enforcement officer to conduct any repossession activities at Osborne's home; therefore, there was no triggering of a need for proper inventorying and monitoring of repossession of personal items.
¶ 80 Similarly, it was not material that Stonack, the PCSD sergeant and Bird's personal friend who was present on July 28, may have believed the civil standby was legal. Such a fact, even if the record supported it, would not be sufficient grounds to reverse the trial court's summary judgment orders. As we have previously noted, a material fact for summary judgment purposes is "`one upon which the outcome of the litigation depends.'" Humleker v. Gallagher Bassett Services Inc., 159 Wn.App. 667, 674, 246 P.3d 249 (quoting Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993)), review denied, 171 Wn.2d 1023, 257 P.3d 662 (2011). Ample other evidence in the record significantly outweighed Stonack's belief: (1) Neither protection order authorized a civil standby (despite Bird's request for possession of his personal property), and, in fact, Osborne's protection order specifically prohibited Bird from entering her home; (2) Seymour failed to read the protection orders to determine whether either order authorized a "civil standby" or prohibited Bird's contacting Osborne; (3) Seymour lacked a warrant, a court order, or exigent circumstance authorizing his accompanying Bird and entering Osborne's residence; (4) Seymour did not seek approval of his proposed actions from any of his superiors or his department's legal advisor; (5) fellow officers Cassio and Aliosio expressed their disapproval of Seymour's "civil standby" and doubts about its legality; and (6) Seymour already had retrieved Bird's tools of the trade from Osborne's home two days before returning with Bird and entering her home while she was away.
¶ 81 Nor was it material that there was a potential issue of fact regarding Seymour's "discussion with the Deputy Clerk [Schaub, which] gave him a reasonable basis for believing that [a] civil standby could occur in the absence of express judicial authorization." Br. of Appellant at 18. Even if the content of Seymour's discussion with Schaub were subject to dispute, such dispute would be insufficient to warrant reversing the summary judgment orders. Seymour himself admitted that (1) Schaub did not provide any thoughts about whether the protection orders specifically permitted Bird to engage in a "civil standby"; and (2) Schaub "wasn't looking at the hard copy of the orders" when Seymour spoke to her. CP at 117. Moreover, because Schaub is not an attorney, her advice could not render Seymour's conduct any more reasonable. See Dixon, 336 F.3d at 1019.
¶ 82 Accordingly, we affirm the trial court's summary judgment orders because "no reasonably competent officer would have concluded" that Seymour's physical entry into Osborne's residence—without the authorization of either protection order, a warrant,
¶ 83 Finally, Seymour argues that the trial court erred in awarding fees and costs of $340,654.14, "over twenty times the jury's verdict against [him]." Br. of Appellant at 30. More specifically, Seymour contends:
Br. of Appellant at 33-34 (citations omitted). We agree.
¶ 84 We review "`[a]n attorney[] fee award under 42 U.S.C. § 1988
¶ 85 Although relevant in determining the reasonableness of a fee award, the amount of the recovery "is not a conclusive factor." Mahler, 135 Wash.2d at 433, 957 P.2d 632 (citing Beeson v. Atlantic-Richfield Co., 88 Wn.2d 499, 563 P.2d 822 (1977)). An appellate court will not overturn a large attorney fee award in civil litigation merely because the amount at stake in the case is small. Mahler, 135 Wash.2d at 433, 957 P.2d 632; see also Martinez v. City of Tacoma, 81 Wn.App. 228, 241-44, 914 P.2d 86 (1996); Steele v. Lundgren, 96 Wn.App. 773, 782-84, 982 P.2d 619 (1999), review denied, 139 Wn.2d 1026, 994 P.2d 846 (2000).
¶ 86 In addressing the trial court's attorney fee award, we again recount the trial litigation landscape. There were three named defendants: Bird, Seymour, and Pierce County. Osborne had four claims against Bird: assault, tortious interference with employment, trespass, and "outrage." CP at 337. Toward the end of trial, Osborne "abandoned" her assault claim. VRP (June 29, 2009) at 149-50. The jury then found that Bird had committed trespass against Osborne and awarded $15,000 in damages for this trespass. The jury did not find, however, that Bird had tortiously interfered with Osborne's employment or engaged in outrageous conduct.
¶ 87 Osborne had one § 1983 claim against Pierce County, which rested on two different theories, one of which was successful and one of which was not. The jury rejected the first theory, finding that Seymour did not act "in accordance with a longstanding custom, policy, or practice" of Pierce County. CP at 437. The jury did find, however, that Pierce County had "fail[ed] to train ... Seymour, to handle civil standbys" and "act[ed] with deliberate indifference to the obvious consequences
¶ 88 Osborne also had one § 1983 claim against Seymour, for which the jury had to decide only her damages. The jury assessed $2,500 in compensatory damages and $15,000 in punitive damages against Seymour.
¶ 89 In its Findings of Facts and Conclusions of Law granting Osborne's motion for attorney fees and costs, the trial court explained, "[I]t is impossible for the Court to segregate out how much ... trial preparation and trial time was spent on the Bird claims [of assault, tortious interference with employment, trespass, and `outrage']," but "the Bird claims constituted approximately one-third of the claims that went to trial."
¶ 90 By reducing Osborne's requested attorney fees by one-third, the trial court implicitly acknowledged that it was unfair to assess attorney fees against Seymour for Osborne's claims against Bird. We cannot tell from the record, however, why the trial court did not similarly reduce the attorney fees award further to reflect the similar unfairness in assessing attorney fees against Seymour for Osborne's § 1983 claim against Pierce County.
¶ 91 Osborne requests attorney fees on appeal, but she fails to "devote a section of [her] ... brief to the request for fees and expenses" and she fails to cite authority, contrary to RAP 18.1(b).
¶ 92 We affirm the trial court's summary judgment rulings in Osborne's favor, vacate the trial court's attorney fees and costs award, and remand with instructions to reduce the award to include attorney fees and costs attributable only to Osborne's litigation of her § 1983 claim against Seymour.
We concur: WORSWICK, A.C.J., and ARMSTRONG, J.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
As we explain elsewhere in this opinion, Osborne's restraining order prohibited Bird from entering Osborne's residence without a court order; and neither Osborne's protection order nor Bird's order authorized any law-enforcement-accompanied "civil standby" exception. Seymour would have known about these restrictions had he read the orders; his failure to read them was inexcusable. Because there was no court order, no search warrant, and no exigent circumstance justifying Seymour's physical intrusion into Osborne's residence or his accompanying Bird to enter the residence, qualified immunity does not insulate Seymour from Osborne's § 1983 action on either ground.
As we explain, however, whether Seymour violated Osborne's Fourth Amendment rights depends, in part, on some state law issues. We therefore consider the applicability of state law in addition to federal law.
In contrast, on July 28, 2004, Seymour stood inside Osborne's residence as Bird took possession of items that were not tools of his trade: a pickup truck, a Harley Davidson motorcycle, televisions, and a "bunch of bags" of possessions, which were so numerous that Seymour could no longer inventory them. CP at 165-66. Nothing in the record or in common understanding shows a strong governmental interest in allowing Bird to obtain possession of his motorcycle, televisions, and other possessions that were not tools of his trade, especially when balanced against a court order forbidding such intrusion to further the strong governmental interest in keeping the peace in domestic violence situations.
We further disagree with Osborne's characterization of her § 1983 claims against Seymour and Pierce County as inseparable for attorney fee award purposes. Osborne's § 1983 claims against Seymour and Pierce County rested on different legal theories and required different quantities and types of proofs. Osborne's § 1983 against Pierce County focused on (1) the Pierce County Sheriff's Department as an institution; (2) the policies, practices, and customs that pervaded this institution; (3) in entering Osborne's home, whether Seymour had acted according to official County policy; and (4) whether those policies adequately trained Seymour for the type of situation that this case presented. In contrast, because the trial court had already determined that Seymour was liable under 42 U.S.C. § 1983 for violating Osborne's Fourth Amendment rights, the trial of her § 1983 claim against Seymour was limited to damages.
