RONALD B. LEIGHTON, District Judge.
THIS MATTER comes before the Court upon Defendants' Motions for Summary Judgment. [Dkt. #59, 64, 66, 67, 68]. The Court has considered the entirety of the record herein, and for the reasons set forth below, the Court GRANTS the motions in part and DENIES the motions in part.
This action arises out of the Milwaukee Way Antiwar Protest in 2007. Plaintiffs Thomas McCarthy, Phan Nguyen, Elizabeth Rivera Goldstein, Leah Coakley, Patrick Edelbacher, and Charles Bevis participated in the protest and were arrested for violating a rule established by the Tacoma Police Department (TPD) that prohibited protestors from bringing backpacks into the designated protest zone.
In March 2007, the United States military used the civilian Port of Tacoma to load and ship military vehicles and equipment for deployment to the wars in Iraq and Afghanistan. On the night of March 3rd, military Strykers began moving in convoys from Fort Lewis to the port where the vehicles were then staged on port property, awaiting arrival of the ship that would take them overseas. Citizens gathered along Milwaukee Way to protest the use of the port for military purposes, to voice their opposition to the surge of troops for the war in Iraq, and to support the soldiers who would be deployed as part of the surge. On this first night, no protest zone had been established.
The parties in this case disagree about what occurred after the protest zone was established and after the rule to not cross the fog line was communicated to the protestors. Plaintiffs assert that on March 4th, the protestors were peaceful and obeyed the rules, but TPD suddenly began erecting barricades to prevent protestors from walking north on Milwaukee Way. [Jagodinski Dep., Dkt. #77-8, at 15]. Plaintiffs further contend that they were given no notice that the restrictions were going to change, and as a result, they felt disoriented and intimidated. [Coakley Dep., Dkt. # 76-1, at 16]. To effectuate the rule change, bicycle officers formed a line perpendicular to the road and used their bikes in a "wheels up" formation to push the protestors back. [Jagodinski Dep., Dkt. # 77-8, at 18].
Defendants, however, maintain that the northern barrier was added suddenly because protestors became emotionally charged and verbally abusive. [Wang Dec., Dkt. # 79-5, at 7]. They used bullhorns, tambourines, and drums to make noise. Id. Several protestors were wearing anarchist colors and covered their faces with bandanas. Id. Others were seen with large folding knives clipped to their pockets. Id. Their demeanor "appeared to be one of preparation to take on the police." Id. Furthermore, one officer testified that the protestors were given both vocal and visual cues that, effective immediately, they were no longer able to travel north up Milwaukee Way. [Jagodinski Dep., Dkt. # 77-8, at 15]. On this night, three protestors (none of whom are the plaintiffs) were arrested for assault. [Wang Dec., Dkt. # 79-5, at 7].
By March 5th, vehicles were no longer allowed to park along Milwaukee Way. [Barrett Dep., Dkt. # 77-9, at 12-13]. Defendants claim this restriction was implemented for traffic safety; Plaintiffs contend that TPD intended to prevent protestors from going back and forth to their cars. On March 6th, Defendants observed several protestors wearing bandanas over their faces. [Barrett Aff., Dkt. # 61, at 6]. One sergeant testified to seeing a protestor with a backpack that was "heavily laden." [Barrett Dep., Dkt. # 77-9, at 60-61]. After the protestors were gone for the night, a backpack filled with chains and padlocks was found in the protest zone. [Barrett Dep., Dkt. # 77-9, at 22-23].
The next afternoon, on March 7th, TPD implemented a "no-bag" rule, prohibiting
A checkpoint was set up at the entrance of the Milwaukee Way protest zone for the purpose of enforcing the new no-bag rule. [Barrett Dep., Dkt. #77-9, at 50-51]. There is conflicting testimony about whether the rule was reduced to writing, but it is clear that determining what constituted a "large bag" was left to the complete discretion of each individual officer. [Paris Dep., Dkt. #78-1, at 4-5]. The evidence shows that they all had widely varied interpretations. [Compare Heilman Dep., Dkt. # 78-8, at 7 (concluding a large bag meant something larger than an average size purse) with Strickland Dep., Dkt. # 77-6, at 31 (stating any bag was prohibited regardless of whether it was a small fanny pack or large mountaineering backpack)].
The only alternative to the no-bag rule that TPD considered was the implementation of voluntary searches, but Defendants ruled out that option after deciding it would be difficult to explain to protestors, it might violate the Fourth Amendment, and it would not treat all protestors equally. [Sheehan Dep., Dkt. # 77-3, at 16; Barrett Dep., Dkt. # 77-9, at 63-65]. Protestors were allowed to bring lawful items, such as food, water, and medicine, but if they wanted to enter the protest zone, they could not carry such items in a backpack, large bag, or cooler. [Barrett Aff., Dkt. # 61, at 12].
Consequently, protestors had to either walk the mile back to their car to dispose of their bags or risk stashing them somewhere outside the protest zone. Defendants have also maintained that if the protestors wanted to keep their bags, they could have simply protested outside of the designated zone. [Barrett Aff., Dkt. # 61, at 12].
During the time that the no-bag rule was in effect, no attempt was ever made to prohibit weapons from the protest zone, even though several protestors were seen carrying knives throughout the week. [Barrett Dep., Dkt. # 77-9, at 14-15]. No attempt was made to prevent protestors from carrying chains or locks underneath their coats. [Id. at 40-42]. Rather, TPD simply imposed a blanket restriction that prohibited anyone from carrying a large bag or backpack into the protest zone.
In the early morning hours of March 8th, after the no-bag rule had already been
By Friday, March 9th, the Strykers were all staged on private port property. Id. Convoys would no longer make their way down Milwaukee Way or any other public road, so TPD moved the designated protest zone to East 11th Street. Id. When selecting this new location, TPD took into specific consideration whether the zone was within sight of the ship where the Strykers were being loaded. [Barrett Aff., Dkt. # 61, at 12]. The zone was set up as close to the movement as safely possible on public streets. Id. Snipers were placed on rooftops surrounding the newly designated protest zone, floodlights were aimed inside the zone, and law enforcement continuously videotaped protestors. [Bevis Dep., Dkt. # 76-6, at 7]. To enter the protest area, protestors had to go through a checkpoint where TPD continued to enforce the no-bag rule. [Barrett Dep., Dkt. # 77-9, at 52-55]. Several protestors voiced their objection to the rule and asked the officers for an explanation but were simply told that it was a safety issue. [Heilman Dep., Dkt. # 78-8, at 20-21].
On Friday afternoon, Plaintiff McCarthy borrowed a young woman's backpack and entered the protest zone. Defendant Hannah Heilman immediately arrested him for carrying a backpack into the protest zone. [Barrett Dep., Dkt. # 77-9, at 36-37]. Defendants admit that after McCarthy was transported to jail, TPD stopped enforcing the no-bag rule that day. [Def. Answer, Dkt. # 21, at 16].
Sometime after midnight on March 10th, approximately seventy-five protestors collectively decided to leave the protest zone and head back towards their cars parked near the intersection of Milwaukee Way and Lincoln Avenue. [Edelbacher Dep., Dkt. # 76-8, at 22-23]. The parties dispute what happened next. Plaintiffs maintain that when they arrived at the intersection, they sat down in front of a line of riot police and barricades and began singing "Give Peace a Chance." [Coakley Dep., Dkt. #76-1, at 17-18]. Suddenly, TPD fired tear gas canisters directly into the crowd. Plaintiffs witnessed other protestors being pepper sprayed. [Edelbacher Dep., Dkt. # 76-8, at 26]. All of the plaintiffs who were in the crowd when the lesslethal munitions were used were too afraid to participate during the next night's protest; instead, they next returned to the Port in daylight hours. [Bevis Dep., Dkt. # 76-6, at 17]. Defendants, on the other hand, contend that the tear gas and pepper balls were used to disperse an aggressive crowd that was illegally marching and illegally blocking a public street. [Wang Dec., Dkt. # 79-5, at 9].
Defendant Todd Kitselman arrested Plaintiffs Bevis, Coakley, Edelbacher, Goldstein, and Nguyen on the afternoon of Sunday March 11th for bringing backpacks into the East 11th Street protest zone. [Id. at 10]. Plaintiff Goldstein carried her asthma inhaler, vinegar-soaked rags, Maalox, two rain ponchos, swim goggles, bottled water, and a teddy bear. [Homan Aff., Dkt. # 60, Ex. 8, at 16-17]. Plaintiff Coakley had turned her bag into a sign and wrote political messages on it with a black Magic Marker. [Homan Aff., Dkt. # 60, Ex. 6, at 20]. Plaintiff Nguyen carried only a copy of the U.S. Constitution in his bag. [Homan Aff., Dkt. # 60, Ex. 10, at 11-12].
After the protest, TPD continued surveillance against Tacoma SDS and individuals that they assumed were members of the organization in an attempt to establish a criminal predicate. It directed specific surveillance against the plaintiffs. [Caron Dep., Dkt. # 77-10, at 5-6]. It ordered officers to conduct "roll-bys" of plaintiffs' homes. [Id.; Adamson Dep., Dkt. # 78-2, at 9]. Plaintiffs claim this conduct caused them significant anxiety and fear. [Coakley Dep., Dkt. # 76-1, at 6-7]. TPD continued monitoring the plaintiffs and their student organization for over two years after the port protests. It never obtained any evidence that Plaintiffs were engaging in or planning to commit criminal conduct. [Adamson Dep., Dkt. # 78-2, at 9-10].
Plaintiffs claim that TPD's overall response to the protest, including their arrests and the no-bag rule, violated their civil rights under the First, Fourth, and Fourteenth Amendments of the U.S. Constitution. [Pl. Am. Comp., Dkt. # 19, at 27-28]. They also contend that TPD's surveillance during and after the protest violated their right to privacy under the Washington State Constitution. [Id. at 30-31]. Plaintiffs allege a number of state tort claims against various defendants, including false arrest, false imprisonment, assault and battery, outrage, and malicious prosecution. [Id. at 31-32]. Plaintiffs also seek to hold the City of Tacoma liable for the alleged constitutional violations. Id. Finally, Plaintiffs maintain that the City is liable for failure to train its police officers on how to protect protestors' right to free speech during a political demonstration. Id.
Defendants have filed five separate motions, moving for summary judgment on all claims and arguing in part that the individual defendants are entitled to qualified immunity:
Summary judgment is appropriate when the record shows that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty
Plaintiffs allege that nine individually named defendants violated their civil rights under the First, Fourth, and Fourteenth Amendments of the U.S. Constitution, and they assert claims under 42 U.S.C. § 1983. "Liability under section 1983 must be based on the personal involvement of the defendant." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Although Defendants argue that Plaintiffs do not identify with specificity the acts of each individual defendant that resulted in the alleged deprivation of constitutional rights, this section illustrates that Plaintiffs did in fact meet this burden.
Plaintiffs claim that Defendant Barrett is liable for alleged violations of their civil rights because (a) he recommended the adoption of the no-bag rule; (b) he assisted as on-scene commander for other law enforcement officers at the designated protest area; (c) as on-scene commander, he gave protestors the ground rules only once each evening and failed to ensure that all protestors who ultimately arrived were aware of the rules; (d) he served as the Assistant Tactical Commander of the Disorder Response Team (DRT), which twice deployed less-lethal munitions; and (e) he reiterated and enforced the "zero-tolerance" policy.
Plaintiffs claim that Defendant Heilman is liable for alleged violations of their civil rights because she enforced the no-bag rule and arrested Plaintiff McCarthy for violating the rule.
Plaintiffs claim that Defendant Roberts is liable for alleged violations of their civil rights because (a) he recommended the adoption of the no-bag rule; (b) he participated in the development and approval of the no-bag rule; and (c) he assisted as onscene commander for other law enforcement officers at the designated protest area.
Plaintiffs claim that Defendant Kitselman is liable for alleged violations of their civil rights because (a) he assigned officers to create the entrance checkpoint on March 11th; (b) he enforced the no-bag rule; and (c) he directed the arrests of Plaintiffs Nguyen, Goldstein, Coakley, Edelbacher, and Bevis.
Plaintiffs claim that Defendant Paris is liable for alleged violations of their civil rights because (a) he instructed other Tacoma Police officers to enforce the no-bag rule; and (b) he directed the arrest of individuals who failed to comply with the rule, including the arrest of Plaintiff McCarthy.
Plaintiffs claim that Defendant Strickland is liable for alleged violations of their civil rights because (a) he assisted as onscene commander for other law enforcement officers during the protest; (b) he suggested that checkpoints be set up in order to stop protestors from coming into the designated protest area with backpacks; (c) he participated in the development and approval of the no-bag rule; and (d) he directed the implementation of the no-bag rule, which resulted in Plaintiffs' allegedly unlawful arrests.
Plaintiffs claim that Defendant Miller is liable for alleged violations of their civil rights because (a) he assisted as day-shift incident commander during the protest; (b) he participated in the development and approval of the no-bag rule; and (c) he directed the implementation of the no-bag rule, which resulted in Plaintiffs' allegedly unlawful arrests.
Plaintiffs claim that Defendant Sheehan is liable for alleged violations of their civil rights because (a) he participated in the development of the no-bag rule; (b) he approved the implementation of the no-bag rule; (c) he implemented tactics to discourage antiwar protestors from demonstrating; and (d) he failed to properly train officers on the parameters of protestors' constitutional rights.
Plaintiffs claim that Defendant Ramsdell is liable for alleged violations of their civil rights because (a) he approved and ratified the no-bag rule; (b) he implemented tactics to discourage antiwar protestors from demonstrating; and (c) he failed to properly train officers on the parameters of protestors' constitutional rights.
Plaintiffs allege that Defendants violated their First Amendment rights to free speech, to free assembly, and to petition the government for redress, and they assert a claim under 42 U.S.C. § 1983. In order to succeed on this claim, a plaintiff must demonstrate that (1) a person deprived the plaintiff of a federal constitutional or statutory right, and (2) the person acted under color of state law when doing so. 42 U.S.C. § 1983. Defendants do not dispute that they were acting under color of state law at all times relevant to Plaintiffs' claims. [Def. Motion, Dkt. # 59, at 7].
Plaintiffs argue that Defendants planned a response to the protests that was not motivated by a need to prevent or mitigate any actual or plausible threats to the public safety, but instead was designed to deter anarchists and others from engaging in political speech at the Port of Tacoma. In order to prove a prima facie First Amendment violation, Plaintiffs must show
A defendant cannot escape liability because a plaintiff persists in the protected activity; rather, the dispositive question rests on whether the official acted with an improper intent to deter lawful speech. Id. Circumstantial evidence is sufficient to survive a summary judgment motion. Id. at 1301. Viewing all inferences in favor of the nonmoving party, Plaintiffs have presented enough evidence to raise a triable issue of fact about whether Defendants' response to the protest was motivated by an improper intent.
First, there is evidence from which a reasonable jury could conclude that Defendants intended to deter protestors' speech based on their association with certain student political organizations. For example, Defendants' contemporaneous reports, emails, and testimony show that when TPD learned that military vehicles would be shipped out of the Port of Tacoma, law enforcement focused its attention on Tacoma SDS and the Port Militarization Resistance (PMR), assuming the members of these organizations were anarchists. [See, e.g., Wang Dec., Dkt. # 81-7, at 12; Smith Dep., Dkt. # 78-5, at 47-50; Miller Dep., Dkt. #77-5, at 5; Barrett Aff., Dkt. # 61, Ex. 7, at 5].
Defendants regularly monitored the websites and activities of Tacoma SDS, and their reasons for doing so were potentially based on inaccurate and biased assumptions as opposed to a genuine concern that violent activity needed to be prevented. [Smith Dep., Dkt. # 78-5, at 39-40]. Although TPD certainly was not required to simply ignore the calls of protestors to "Fuck shit up" or "Tear it down," it was required to adequately consider the protestors' First Amendment rights when developing a plan to ensure public safety at the protest. See Fogel v. Collins, 531 F.3d 824 (9th. Cir.2008). Controversial political rhetoric is protected speech. See Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). Therefore, without establishing that the protestors' alleged anarchist associations posed an actual and immediate threat to public safety, a response to deter their political speech would have been improper. See Fogel, 531 F.3d at 824. Numerous testimony shows that TPD never found any indication beyond generalized threats over the internet that the individuals they believed to be anarchists were planning criminal activity. [Smith Dep., Dkt. # 78-5, at 61-62; Caron Dep., Dkt. # 77-10, at 11-12; Adamson Dep. Dkt. # 78-2, at 9-10, 14].
Defendants argue that Plaintiffs' First Amendment claims should be dismissed because Plaintiffs provided no evidence that anarchists were excluded from the protest; rather, the evidence demonstrates that assumed anarchists were present and fully participating. [Def. Reply, Dkt. # 86, at 9]. However, liability does not turn on whether speech was actually silenced. Liability turns on whether Defendants intended to deter lawful speech. Mendocino, 192 F.3d at 1300 (emphasis added).
Accordingly, a reasonable jury could conclude that Defendants designed a response to deter speech based upon their assumptions of the protestors', and in particular Plaintiffs' political ideology. Defendants have not shown as a matter of law that deterring the speech of assumed anarchists was not a substantially motivating factor for their conduct.
Second, a reasonable jury could conclude from the evidence of the numerous
Plaintiffs also contend that the evidence of the use of less-lethal munitions demonstrates that Defendants were motivated by the desire to silence the protestors' speech. [Pl. Reply, Dkt. #74, at 24-25].
Viewed in the light most favorable to the Plaintiffs, the evidence and inferences establish that Defendants' overall response to the port protest was motivated by an intent to deter lawful political speech. The factual dispute with respect to Defendants' intent is precisely the type of question that must be resolved by a jury.
Plaintiffs next argue that the no-bag rule violated their First Amendment rights because it was not a reasonable time, place, and manner restriction. In traditional public forums, content-based restrictions on speech are constitutional only if they survive strict scrutiny—the restrictions must be narrowly tailored and necessary to achieve a compelling government interest. Content-neutral restrictions are reviewed under intermediate scrutiny, which allows time, manner, and place restrictions if the regulation is narrowly tailored to achieve a significant government interest and leaves open ample alternatives for expression. The Supreme Court has consistently recognized that traditional public fora occupy "a special position in terms of First Amendment protection." Snyder, 131 S.Ct. at 1218. For the purposes of free speech and assembly protection, "public streets are the archetype of a traditional public forum." Id.; see also Seattle Affiliate of the October 22nd
Grounded in their argument that TPD adopted the rule in order to deter individuals with antiwar or anti-government beliefs from participating in the port protests, Plaintiffs maintain that the no-bag rule was a content-based restriction. The "principal inquiry" for determining the content neutrality of a time, place, and manner restriction is "whether the government had adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). In other words, "government regulation of expressive activity is `content neutral' if it is justified without reference to the content of regulated speech." Hill v. Colorado, 530 U.S. 703, 721, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).
As discussed in section II.C.1 above, Plaintiffs have shown that there is a genuine issue of material fact as to whether TPD's response, including the implementation and enforcement of the no-bag rule, was motivated by an improper intent to deter antiwar or anti-government speech. The same analysis applies here, and therefore, Defendants have not shown as a matter of law that the no-bag rule was content-neutral.
Plaintiffs next contend that even if the no-bag rule was content-neutral, it was not narrowly tailored to achieve a significant government interest. Defendants' assertion that they had a significant interest in ensuring public safety during the protest is undisputed.
The narrow tailoring analysis does not require the regulation to be the least restrictive means of furthering the government's interest, but the restriction may not substantially burden more speech than necessary to further the interests. Menotti v. City of Seattle, 409 F.3d 1113, 1130-31 (9th Cir.2005). Thus, "[a] statute is narrowly tailored if it targets and eliminates no more than the exact source of the `evil' it seeks to remedy." Id. at 1130 (quoting Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). For the following reasons, Defendants have not demonstrated as a matter of law that the no-bag rule was narrowly tailored to achieve the significant government interest in ensuring public safety.
First, Plaintiffs have demonstrated that there is a genuine dispute as to whether the no-bag rule was narrowly tailored to achieve TPD's interest in keeping dangerous items out of the protest zone. Defendants argue that given law enforcement's specialized training and experience they reasonably believed the protestors presented a credible threat to public safety, which necessitated the no-bag rule. [Def. Reply, Dkt. #86, at 16]. The repeated justification for the rule was that the police found a backpack with chains in it, which led them to conclude the protestors were planning to construct direct action devices. [Barrett Dep., Dkt. # 77-9, at 25; Miller Dep., Dkt. # 77-5, at 20; Strickland Dep., Dkt. # 77-6, at 3, 22-23]. But Defendants never made an effort to prohibit any type of weapon, or even chains and locks themselves, from the protest zone. [Caron Dep., Dkt. # 77-10, at 16; Barrett Dep., Dkt. # 77-9, at 40-41; Miller Dep., Dkt. # 77-5, at 25-26; Sheehan Dep., Dkt. # 77-3, at 15-16]. While Defendants were not required to adopt the
Second, Plaintiffs have also shown that there is a genuine dispute as to whether the no-bag rule was narrowly tailored to achieve the interest in allowing the convoys and other traffic to move safely. By March 9th, the Strykers were no longer moving through public roadways. [Wang Dec., Dkt. # 79-5, at 8]. Defendants, however, continued to maintain that the no-bag rule was necessary to prevent the protestors from disrupting the military vehicles as was done in 2006 during the protests at the Port of Olympia. [Strickland Dep., Dkt. # 77-6, at 33-36; Barrett Dep., Dkt. # 77-9, at 57; Barrett Aff., Dkt. # 61, at 13]. But it is unclear how preventing large bags from inside the protest zone would have any effect on the protestors' conduct outside the zone, which is where they would need to be if they wanted to use chains and locks to blockade public roadways. Moreover, Defendants point to the fact that if protestors wanted their bags, they could have protested outside the designated protest zone. [Def. Reply, Dkt. # 86, at 3; Barrett Aff., Dkt. # 61, at 12]. Based on that argument, it is again unclear how the no-bag rule was tailored to prevent individuals from obstructing the streets.
The final step in analyzing whether a time, place, and manner restriction on free speech is constitutional is whether the rule left open other alternative channels for individuals to communicate their message. A time, place, and manner restriction does not violate the First Amendment "simply because there is some imaginable alternative that might be less burdensome on speech." United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985). Generally, the Supreme Court will not declare a regulation unconstitutional for failure to leave open alternative channels unless the rule will "foreclose an entire medium of public expression across the landscape of a particular community or setting." Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1170 (9th Cir.2003) (quoting Colacurcio v. City of Kent, 163 F.3d 545, 555 (9th Cir.1998)). But an "alternative mode of communication may be constitutionally inadequate if the speaker's `ability to communicate effectively is threatened.'" Bay Area Peace Navy v. United States, 914 F.2d 1224, 1229 (9th Cir.1990) (quoting Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)).
In this case, the evidence shows that the no-bag rule left open ample opportunity for Plaintiffs to communicate their message. If protestors wanted to keep their bags, then they could have protested outside the designated zone. While Defendants do maintain that the protest area on East 11th Street was the closest and safest place for protestors to communicate their message during the time the Strykers were staged on private port property, individuals still could have effectively protested outside the zone.
In summary, Plaintiffs have shown that there is a genuine issue of material fact as to (1) whether Defendants' overall response to the Milwaukee Way Protest, including the no-bag rule, was motivated by an improper intent to deter political speech, and (2) whether the no-bag rule was narrowly tailored to achieve the Defendants'
Plaintiffs allege that Defendants violated their Fourth Amendment right to be free from unreasonable seizures.
Plaintiffs first contend that the checkpoints at the entrance of the protest zone were unconstitutional seizures.
In this case, Defendants have not presented evidence from which the Court can conclude as a matter of law that the protest zone checkpoints, where protestors were stopped and informed that they could not enter with their backpacks, were for any specified purpose other than general crime control. They have, however, demonstrated that the checkpoint stops and no-bag rule were blanket restrictions enforced
Plaintiffs further argue that their Fourth Amendment right to be free from unreasonable seizures was violated because Defendants arrested them without probable cause. "A warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Whether probable cause exists depends on the totality of the circumstances and the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. Id.
In this case, both parties simply rely on their disputed legal conclusions. Plaintiffs claim that because the no-bag rule was unlawful, Plaintiffs' arrests for violating the rule constituted an unconstitutional seizure. [Pl. Reply, Dkt. # 74, at 59]. Defendants maintain that because the City has the authority to take measures necessary to protect public safety, then clearly the no-bag rule was lawful, and therefore, the officers had probable cause to arrest the Plaintiffs for obstruction. [Def. Reply, Dkt. # 86, at 22].
As stated previously, when viewing all inferences in favor of the nonmoving party, Plaintiffs have shown that there is a question of fact as to whether the no-bag rule was lawful.
Because the question of whether the no-bag rule was constitutional is unresolved, this Court cannot determine if there was probable cause for Plaintiffs' arrests as a matter of law. However, Defendants claim they are protected by the doctrine of qualified immunity, so the resolution of Plaintiffs' Fourth Amendment claims will be addressed in section II.F of this Order.
Plaintiffs' final claims under 42 U.S.C. § 1983 include allegations that Defendants violated their Fourteenth Amendment rights to substantive due process and equal protection under the law.
Plaintiffs contend that their substantive due process rights were violated, but they have not shown how this claim is any different from their allegations under the First and Fourth Amendments. Generally, substantive due process accords protection for matters relating to marriage, family, procreation, and bodily autonomy. Albright v. Oliver, 510 U.S. 266, 271-72, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Furthermore, the U.S. Supreme Court has expressly stated that "where a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.'" Id. at 273, 114 S.Ct. 807 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
In this case, the First and Fourth Amendments provide Plaintiffs with a textual source of constitutional protection for their allegations. Therefore, they cannot seek further relief under substantive due process for the same alleged violations with the same factual basis.
Plaintiffs also allege that Defendants denied them equal protection under the law as guaranteed by the Fourteenth Amendment. In order to establish a claim under the Equal Protection Clause, a plaintiff must demonstrate that (1) she was treated differently from others similarly situated, and (2) the defendant acted with discriminatory intent. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Equal protection "is essentially a direction that all persons similarly situated should be treated alike." Id.
In this case, Plaintiffs have not produced any evidence that shows they were treated differently from protestors with a different message. Although Defendant Barrett admitted in his testimony that if there were counter-protestors they likely would have protested outside of the designated zone [Barrett Dep., Dkt. # 77-9, at 71], Plaintiffs have not shown that different rules were actually applied to pro-war protestors. Additionally, several defendants testified that if the antiwar protestors wanted to protest outside of the designated zone, they could have done so. Because Plaintiffs have not shown any disparate impact from the restrictions implemented throughout the protest, this Court does not need to address the discriminatory intent prong under Plaintiffs' equal protection claim.
In summary, Defendants have shown as a matter of law that Plaintiffs are not entitled to relief under either the substantive Due Process Clause or the Equal Protection Clause. Accordingly, Defendants' Motion for Summary Judgment on Plaintiffs' Fourteenth Amendment claims is GRANTED.
Government officials are entitled to qualified immunity from damages for civil liability as long as their conduct does not
In analyzing a qualified immunity defense, the court must determine (1) what right has been violated, and (2) whether that right was "clearly established" at the time of the incident. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The court should look to whatever decisional law is available to determine whether the law was clearly established at the time the alleged acts occurred. Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir.1985).
The first prong of the Saucier test for establishing qualified immunity "mirrors the substantive summary judgment decision on the merits." Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.2002). Because there are still questions for the fact-finder as to whether Defendants violated Plaintiffs' First and Fourth Amendment rights, Defendants' qualified immunity Motion for Summary Judgment turns on the second prong.
To be clearly established, the law must be sufficiently clear that a reasonable official would understand that his or her action violates that right. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. While courts must look to standards and precedent to determine this prong, it is not necessary that a previous case have been decided on exactly the same facts.
In this case, it is not clearly established law that a prohibition on backpacks within a designated protest zone is a violation of the First or Fourth Amendments. Furthermore, qualified immunity protects law enforcement officials from making reasonable mistakes. Plaintiffs have not presented any evidence that indicates gross incompetence on the part of TPD. Rather, Defendants have shown that they considered the previous events at the Port of Olympia in 2006 as well as the backpack filled with chains that was found during the Milwaukee Way Protest and concluded that the no-bag rule was a middle-ground solution in between taking no action whatsoever and implementing voluntary searches. At the time this decision was made, the right to carry a backpack into a protest zone was not clearly established. Only the plainly incompetent are punished, and therefore, this Court must conclude that the doctrine of qualified immunity protects the individual defendants in this case from any reasonable mistakes that allegedly caused violations of Plaintiffs' constitutional rights.
Accordingly, Defendants' Motions for Summary Judgment on Plaintiffs' First and Fourth Amendment claims are GRANTED.
Plaintiffs next claim that Defendants'
Plaintiffs argue that their private affairs were disturbed when Defendants (a) collected license plate information from vehicles they knew belonged to individuals protesting at the port, (b) monitored internet listservs, (c) recorded and zoomed in on protestors' faces during the protest, (d) created and shared Power-Point presentations that labeled Plaintiffs as local troublemakers based on their participation at the Milwaukee Way Protest, and (e) deployed officers to conduct "rollbys" of Plaintiffs' homes when they were suspected of preparing to participate in lawful protests. To determine whether a person's private affairs have been disturbed, courts do not examine a subjective expectation of privacy, but instead, examine "whether the expectation is one which a citizen of the State should be entitled to hold." State v. McKinney, 148 Wn.2d 20, 60 P.3d 46 (2002).
Generally speaking, an individual does not have a privacy interest in what she voluntarily exposes to the public. State v. Carter, 151 Wn.2d 118, 85 P.3d 887 (2004). While Plaintiffs do not automatically forfeit the constitutional protection to be free from governmental trespass when they step foot onto a public sidewalk or step into a designated protest zone, their privacy expectations do necessarily decrease. Thus, even if the collection of license plate information and the video monitoring of protestors during the event could indicate an improper motive to chill political speech, such conduct cannot be considered a disturbance of private affairs within the meaning of Article 1, Section 7 of the Washington constitution. Additionally, Plaintiffs had no privacy interest in any information that they voluntarily posted on public websites or listservs, and it is disingenuous for them to claim that their private affairs were disturbed when law enforcement monitored their public postings.
The drive-bys of Plaintiffs' homes are also outside the scope of Article 1, Section 7. Plaintiff Coakley testified that she observed police patrol cars drive by her home on a frequent basis [Coakley Dep., Dkt. # 76-1, at 6-8], but Defendants argue in their motion that Coakley lived on a busy street where officers were conducting "normal police business." [Def. Reply, Dkt. # 86, at 26, n. 19]. Even though Sgt.
Because Defendants have shown as a matter of law that they did not disturb Plaintiffs' private affairs, it is unnecessary to address the second prong of the test. Therefore, Defendants' Motion for Summary Judgment on the surveillance claim under Article 1, Section 7 of the Washington State Constitution is GRANTED.
Plaintiffs allege several state law tort claims, including false arrest, false imprisonment, assault and battery, outrage, and malicious prosecution against various individually named defendants. They also contend that the City of Tacoma is liable for its employees' tortious conduct under respondeat superior. Defendants move for summary judgment on all claims.
Plaintiff McCarthy asserts this claim against Defendants Ramsdell, Sheehan, Miller, Strickland, Roberts, Barrett, Paris, and Heilman. In order to establish a claim for false arrest, a plaintiff must prove that "the defendant violated the plaintiff's right of personal liberty or restrained the plaintiff without legal authority." Dunn, 676 F.Supp.2d at 1195 (citing Bender v. City of Seattle, 99 Wn.2d 582, 664 P.2d 492 (1983)). The elements for false imprisonment are identical except that no legal authority is required for a restraint or confinement to constitute false imprisonment. Jacques v. Sharp, 83 Wn.App. 532, 922 P.2d 145 (1996). Liability may be established provided the defendant had an active role in bringing about the unlawful arrest "by some affirmative direction, persuasion, request, or voluntary participation." Dunn, 676 F.Supp.2d at 1196. Probable cause is a complete defense to either claim. Id.
As explained above, Plaintiff McCarthy has shown that there are genuine issues of material fact as to whether law enforcement had probable cause to arrest him for violating the no-bag rule.
Plaintiff McCarthy asserts this claim against Defendants Ramsdell, Sheehan, Miller, Strickland, Roberts, Barrett, Paris, and Heilman. Battery is the intentional infliction of harmful or offensive contact with a person. McKinney v. Tukwila, 103 Wn.App. 391, 408, 13 P.3d 631 (2000). An assault is any act that causes a person apprehension that harmful or offensive contact is imminent. Id. Washington recognizes a form of qualified immunity for law enforcement officers, but that immunity is not "available for claims of assault and battery arising out of the use of excessive force to effectuate an arrest." Staats v. Brown, 139 Wn.2d 757, 991 P.2d 615 (2000).
Because Plaintiffs have not produced any evidence from which a reasonable jury could conclude that excessive
Plaintiffs McCarthy, Coakley, Edelbacher, and Bevis each assert an outrage claim against Defendants Ramsdell, Sheehan, Strickland, Roberts, and Barrett. Plaintiff McCarthy also asserts a claim against Defendants Paris and Heilman. Plaintiffs Coakley, Edelbacher, and Bevis assert outrage claims against Defendant Kitselman.
The tort of outrage requires a plaintiff to prove (1) extreme or outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual emotional distress. Kloepfel v. Bokor, 149 Wn.2d 192, 194, 66 P.3d 630 (2003). Defendants argue that as a matter of law the police conduct in this case does not meet the standard of "extreme or outrageous," especially considering that the claim is based on the same conduct that Plaintiffs allege violated their First Amendment rights. [Def. Motion, Dkt. # 68, at 11]. In their response to Defendants' Motion, Plaintiffs failed to address any of Defendants' arguments. As a result, Plaintiffs have not shown that there is a genuine issue of material fact under their outrage claims. Therefore, Defendants' Motion for Summary on this claim is GRANTED.
Plaintiffs McCarthy, Coakley, Edelbacher, and Bevis each assert a malicious prosecution claim against Defendants Ramsdell, Sheehan, Strickland, Roberts, and Barrett. Plaintiff McCarthy also asserts a claim against Defendants Paris and Heilman. Plaintiffs Coakley, Edelbacher, and Bevis assert malicious prosecution claims against Defendant Kitselman.
To prove the tort of malicious prosecution, a plaintiff must show that (1) the defendant initiated or continued a prosecution, (2) without probable cause, (3) with malice, (4) in a proceeding that is abandoned or terminated in the plaintiff's favor, and (5) the plaintiff suffered injury as a result. Hanson v. City of Snohomish, 121 Wn.2d 552, 558, 852 P.2d 295 (1993). "Although all elements must be proved, malice and want of probable cause constitute the gist of a malicious prosecution, and therefore, probable cause is a complete defense." Id. Plaintiffs have not introduced any evidence that shows that the criminal prosecutions were done with actual malice. Plaintiffs have not carried their burden to show that there is a genuine issue of material fact with respect to this element. Consequently, Defendants' Motion for Summary Judgment on the malicious prosecution claims is GRANTED.
A municipality is liable under 42 U.S.C. § 1983 only when an official policy, practice, or custom causes the constitutional violation at issue. Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). An official policy or practice may encompass "failure to act" claims such as the failure to train or supervise employees, and a municipality can be held liable if its failure to act caused constitutional violations. See City of Canton v. Harris, 489 U.S. 378, 380, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
Plaintiffs argue that the City of Tacoma is liable for the constitutional violations caused by TPD's overall response to the Milwaukee Way Protest and the implementation of the no-bag rule. A policy or custom claim against a municipality may be established in one of three ways: (1) when there is a formal and official policy,
In this case, Defendants admit that they considered alternatives to the nobag rule and consulted legal counsel when making decisions about the restrictions authorized during the protest. [Def. Motion, Dkt. #59, at 23]. Plaintiffs, however, maintain that TPD created this particular response to the 2007 protest in order to deter assumed anarchists and antiwar protestors from demonstrating at the port, and as a result, their First and Fourth Amendment rights were violated. As discussed previously, Plaintiffs have shown that there are still disputed facts regarding the course of action established and sanctioned by the Chief and Assistant Chief of TPD, including the implementation of the zero-tolerance policy, the increasing restrictions on parking, the lack of notice when the designated protest zones were changed or moved, the no-bag rule, the snipers on the rooftops, the floodlights shining directly in the zone, the use of cameras to zoom in on protestors, and the deployment of less-lethal munitions. Because Plaintiffs have shown that there is still an issue for trial with respect to whether TPD's policies caused constitutional violations, the City's Motion for Summary Judgment on this claim is DENIED.
In order to find a municipality liable under section 1983 for the failure to adequately train its police officers, Plaintiffs must prove that the failure to train (1) "amounts to deliberate indifference to the rights of persons with whom the police come into contact," and (2) actually causes the deprivation of rights. City of Canton v. Harris, 489 U.S. 378, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
Plaintiffs in this case argue that the City had not adequately trained its officers on how to use less-lethal munitions in the context of a political protest. [Pl. Reply, Dkt. # 74, at 72-73]. They further argue that the City failed to train law enforcement on the constitutional parameters of the restrictions that could be imposed during a demonstration. [Id. at 75]. In support of these contentions, Plaintiffs point only to testimony from TPD officers who stated that they never received any basic training regarding the First Amendment rights of protestors. Although Plaintiffs argue that this lack of training would predictably lead to constitutional violations of protestors' rights and therefore amounted to deliberate indifference, they have not offered any evidence in support of that contention. Without expert testimony that shows what training policies would be appropriate under these circumstances, Plaintiffs have failed to meet their burden in demonstrating that there remains an issue for trial. Accordingly, the City's Motion for Summary Judgment on the failure to train claim is GRANTED.
Plaintiffs request a declaration from the Court that the no-bag rule violated their First Amendment rights because it was an unconstitutional time, place, and manner restriction on free speech in a traditionally public forum. In order to seek declaratory relief, Plaintiffs must establish that (1) the federal court has subject matter jurisdiction, and (2) there is an existence of an actual case or controversy. 28 U.S.C. § 2201. Generally, an actual controversy exists when the conduct in question is likely to be repeated; however, the controversy must also present a concrete and immediate threat of injury to the party seeking declaratory relief. See Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 658 (9th Cir.2002).
In this case, Plaintiffs argue that the alleged constitutional violations are likely to reoccur because (1) Defendants' After Action Report on the Milwaukee Way Protest included the recommendation to "stop protestors in layers" at future events [Pl. Reply, Dkt. # 74, at 58; Wang Dec., Dkt. # 79-5, at 6], and (2) Defendants' planning documents for expected protests in 2008 identified plans to prohibit backpacks again. [Pl. Reply, Dkt. # 74, at 58]. Nevertheless, future protests will necessarily be different—they may take place in a different location or present different concerns for law enforcement. Furthermore, Plaintiffs have not shown the existence of an immediate threat of injury that would justify declaratory relief. Accordingly, Defendants' Motion for Summary Judgment on Plaintiffs' request for declaratory relief under the First Amendment is GRANTED.
Although Plaintiffs also seek a declaration that the no-bag rule violated their rights under Article 1, Section 5 of the Washington constitution, they failed to respond to Defendants' arguments on this claim. Because this failure constitutes an abandonment of their claim, Defendants' Motion for Summary Judgment on Plaintiffs' request for declaratory relief under Article 1, Section 5 of the Washington constitution is GRANTED.
Finally, Plaintiffs seek a declaration from the Court that continued surveillance unsupported by reasonable suspicion and motivated by Plaintiffs' political association violates Article 1, Section 7 of the Washington constitution. Because Plaintiffs have not demonstrated that Defendants are continuing surveillance on Plaintiffs' homes, they have not met their burden to show the existence of an actual controversy, which is required for declaratory judgment. Therefore, Defendants' Motion for Summary Judgment on Plaintiffs' request for declaratory relief under Article 1, Section 7 is GRANTED.
In order to have standing to seek injunctive relief, Plaintiffs must show either (1) an actual and immediate threat of a concrete and particularized injury, or (2) continuing present adverse effects. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Other than one unintentional disclosure of Plaintiffs' personal information by TPD,
Because it is well-established that a municipality may not be held liable for punitive damages and because Defendants are shielded from civil liability under the qualified immunity doctrine, Defendants' Motion for Summary Judgment on Plaintiffs' request for punitive damages is GRANTED.
The Court GRANTS in part and DENIES in part Defendants' Motions for Summary Judgment.