Fuhr v. City of Seattle

1 2 HONORABLE BARBARA J. ROTHSTEIN 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 JASON FUHR, individually, and as executor CASE NO. 2:23-cv-0600-BJR of THE ESTATE OF SHAUN FUHR, 10 ORDER GRANTING DEFENDANTS’ 11 Plaintiffs, MOTION FOR SUMMARY JUDGMENT 12 vs. 13 CITY OF SEATTLE, and NOAH ZECH 14 Defendants. 15 I. INTRODUCTION 16 This matter comes before the Court on the Motion for Summary Judgment filed by 17 Defendants City of Seattle and Noah Zech (“Defendants”). Dkt. No. 28. Plaintiffs’ claims arise out 18 of events that culminated in the shooting death of Shaun Fuhr by Seattle Police Department 19 (“SPD”) Officer Zech. Defendants seek judgment in their favor on all eight Causes of Action set out 20 in the Complaint filed by Plaintiff Jason Fuhr, individually, and as personal representative of the 21 Estate of Shaun Fuhr, his son (“Plaintiffs”). Dkt. No. 1. Having reviewed the briefs and exhibits 22 filed in support of and in opposition to the motion and the relevant caselaw, the Court finds and 23 rules as follows. 24 25 26 ORDER GRANTING DEFENDANTS’ 1 II. BACKGROUND 2 At approximately 2:11 p.m. on April 29, 2020, SPD 911 dispatch received a call from 3 Ajiona Taylor, who was at a ball field in Rainier Park in Seattle. See Decl. of C. Riedo, Ex. A, B. 4 Taylor was calling to report that her baby’s father, decedent Shaun Fuhr, had just taken their infant 5 daughter from her. Taylor told the dispatcher that Fuhr was intoxicated, that he had a gun that he 6 had just fired in the park, and that he had taken the baby and fled. Taylor stated that Fuhr had beaten 7 her up the day before, and that she was scared for her daughter. At around the same time, 911 8 received another call from a nearby witness, Terrance Roy, who reported “a guy with a gun and a 9 child” who was in an altercation with someone, “possibly his wife.” Riedo Decl., Ex. C. He told the 10 dispatcher that he saw the subject “pull a gun” and later place the gun “in the back of his pants,” in 11 his waistband. Id. Both Taylor and Roy provided a description of Fuhr and what he was wearing. 12 When SPD officers arrived at the park, they found Taylor in a state of extreme distress. She 13 repeated to SPD Officer Irwin what she had told the 911 dispatcher: that she and Fuhr had gotten 14 into a fight; that he had discharged a firearm in the park; and that he had taken their infant daughter 15 against Taylor’s will and fled on foot. Id., Ex. D. Taylor was clearly distraught. She reported to 16 Irwin that Fuhr had hurt her and was extremely intoxicated; that there was a “no contact order” in 17 place; and that the baby was in “danger, like danger.” Id. Irwin observed bruises on Taylor’s arms 18 and face. On a basketball court a short distance away, where Taylor indicated that Fuhr had 19 discharged the gun, Irwin located a shell casing where Fuhr had allegedly fired his gun towards 20 Taylor. Id. Irwin broadcast these facts over the police radio. 21 Meanwhile, SPD had called in a SWAT team, a police helicopter, and a K9 tracker, and put 22 an emergency ping on Fuhr’s cell phone. Within half an hour of the first 911 call, the K9 team, 23 accompanied by SWAT officers, had tracked Fuhr to an alley near the intersection of 37th and 24 Dakota streets, near residential apartment buildings and a vacant building that was under 25 construction. See Ness Dep., 23-26, Riedo Decl., Ex. J; Zech Dep., 21, 56, Riedo Decl., Ex. K. The 26 officers identified a man matching the description Taylor had given. They observed him carrying an ORDER GRANTING DEFENDANTS’ 1 infant in one arm, jostling the baby in a manner that the officers uniformly testified suggested the 2 baby was in grave danger; according to Defendant Zech, Fuhr “was carrying a small baby on his 3 right side down near his hip. (Demonstrating.) It looked like kind of wrapped around the torso, 4 around the waist of the baby. The -- as he’s running, the baby’s head and arms are flopping around 5 pretty violently.” Zech Dep., Riedo Decl., Ex. K, 57-58; see also Aguilar Decl., ¶ 5 (“What I do 6 remember is seeing the, the child. I want to say it was his, his left hand and how he was like running 7 with her. She was like floppy like, like I guess he was like running like with disregard or something, 8 is what it looked like, I mean like how you’d run with a ball, maybe.”). 9 Officers caught a glimpse of Fuhr behind one of the buildings, and repeatedly shouted at 10 him to “stop,” but Fuhr ran away from the officers and jumped over a fence and out of sight. He fled 11 behind the apartment building next door, through the backyard. Riedo Decl., Ex. O. Zech ran the 12 other direction around the front of the building with the intent of intercepting Fuhr. Zech Dep., 59. 13 Zech was the first officer to confront Fuhr when Fuhr, as expected, came out the other side, and was 14 stopped by another fence. Fuhr was holding the baby down near his waist, and was moving towards 15 the officers. Zech Dep., 61 (“He was looking at the fence line. He turned, looked at me, and then 16 glanced at a lower fence line about halfway between the two of us, and then started advancing my 17 direction.”). Zech raised his rifle and shot Fuhr once in the head, killing him. Officers quickly 18 grabbed the baby, who after examination was determined to be uninjured. At the time he was shot, 19 Fuhr had been unarmed; the gun he had been carrying, and that was linked to the shell casing found 20 in the park, was later found in the bushes approximately a block away from where he was shot. 21 Jason Fuhr, individually and on behalf of the estate of his son Shaun Fuhr, filed this lawsuit 22 on April 20, 2023. The Complaint outlines eight causes of action, each discussed below. For the 23 reasons the follow, the Court concludes all eight causes of action must be dismissed. 24 III. DISCUSSION 25 A. Summary Judgment Standard 26 ORDER GRANTING DEFENDANTS’ 1 A motion for summary judgment should be granted if there is no genuine issue of material 2 fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson 3 v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The moving party bears the initial burden of 4 demonstrating the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 5 323 (1986). “[C]ourts may not resolve genuine disputes of fact in favor of the party seeking 6 summary judgment.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). “The evidence of the non- 7 movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 8 U.S. at 255. 9 B. Claims Brought by Parties Not Properly Before the Court Must Be Dismissed 10 Defendants seek dismissal of all claims brought on behalf of the decedent’s estate. They 11 argue that Jason Fuhr is not a proper personal representative of the estate of his son, because he 12 (Jason) is a convicted felon. Under Washington law, a convicted felon is not qualified to act as a 13 personal representative. RCW 11.36.010(1). In addition, although Plaintiffs purport to bring claims 14 on behalf of Shaun Fuhr’s mother Davonta Fuhr, she was not named as a plaintiff in the original 15 Complaint, and has not been added as a party, either in her personal capacity or as a representative 16 of her son’s estate. On August 3, 2023, the parties filed a Stipulated Motion to Amend Plaintiff’s 17 Complaint. The Amended Complaint would have added Ms. Fuhr as a plaintiff. Dkt. No. 14. The 18 Court granted the motion, but Plaintiff never filed the Amended Complaint. Dkt. No. 22. 19 Defendants argue that Jason Fuhr, acting in an individual capacity (i.e., not on behalf of the estate of 20 his deceased son), is therefore the only proper Plaintiff in this lawsuit. 21 Plaintiffs fail to respond, either to Defendants’ position that Jason Fuhr is not a proper 22 personal representative of the Estate of Shaun Fuhr, or to the argument that Davonta Fuhr is not a 23 party to this case. Accordingly, the Court concludes that the claims purportedly brought on behalf of 24 the Estate of Shaun Fuhr are not properly before this Court, and must be dismissed. Furthermore, 25 any claims purportedly brought on behalf of Davonta Fuhr are dismissed as well, as she is not a 26 party to this case. ORDER GRANTING DEFENDANTS’ 1 Ordinarily, for a dismissal of claims on grounds such as these, the Court would consider a 2 request by Plaintiffs that the dismissal be without prejudice, to grant Plaintiffs leave to cure the 3 deficiencies in their complaint. The Court declines to do so in this case, however, as Plaintiffs have 4 not requested such leave. More critically, amendment in this case would be futile. As discussed 5 more fully below, the Estate’s and Ms. Fuhr’s underlying claims, regardless of who has brought 6 them, fail as a matter of law on substantive grounds as well. 7 C. Federal Law Claims 8 1. Cause of Action I: Violation of the United States Constitution, Fourth Amendment 9 Plaintiffs’ Cause of Action I claims a violation of the Fourth Amendment to the U.S. 10 Constitution, stating “Defendant City of Seattle and Defendant Officer Noah Zech are liable to the 11 Plaintiff for violations of the Fourth Amendment under the U.S. Constitution.” The claim does not 12 cite 42 U.S.C. § 1983, but appears to be attempting to state a claim directly under the Fourth 13 Amendment itself. 14 Defendants seek dismissal of this claim as improperly pled. As the Ninth Circuit has held, “a 15 litigant complaining of a violation of a constitutional right does not have a direct cause of action 16 under the United States Constitution but must utilize 42 U.S.C. § 1983.” Arpin v. Santa Clara 17 Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (citing Azul–Pacifico Inc. v. City of Los 18 Angeles, 973 F.2d 704, 705 (9th Cir.1992)). In addition, Defendants argue that even construing 19 Cause of Action I as stating a § 1983 claim, it is merely redundant to Cause of Action VII, discussed 20 infra, which explicitly claims a violation of the Fourth Amendment pursuant to § 1983. Plaintiffs 21 make no argument to the contrary. Cause of Action I is therefore dismissed. 22 2. Cause of Action VII: 42 U.S.C. § 1983 23 Cause of Action VII is brought under 42 U.S.C. § 1983, for violation of the Fourth and 24 Fourteenth Amendments to the U.S. Constitution. Compl., ¶¶ 95-99. Plaintiffs allege that 25 Defendants “used excessive force” and “unlawfully seized Shaun Fuhr.” Id., ¶¶ 97, 98. The Court 26 analyzes claimed violations of each Amendment separately. ORDER GRANTING DEFENDANTS’ 1 a. Fourteenth Amendment: Substantive Due Process 2 (1) Fourteenth Amendment Excessive Force Claim on Behalf of Estate 3 Defendants argue that the Estate’s claim for unlaw seizure and excessive force is properly 4 analyzed not under the Fourteenth Amendment’s Due Process Clause, but under the Fourth 5 Amendment to the U.S. Constitution. As the Supreme Court has held, “all claims that law 6 enforcement officers have used excessive force—deadly or not—in the course of an arrest, 7 investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth 8 Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ 9 approach.” Graham v. Connor, 490 U.S. 386, 395 (1989) (“Because the Fourth Amendment 10 provides an explicit textual source of constitutional protection against this sort of physically 11 intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive 12 due process,’ must be the guide for analyzing these claims.”). Plaintiffs do not respond to this 13 argument. To the extent that Cause of Action VII seeks relief on behalf of the Estate for any 14 violation of Shaun Fuhr’s right to be free from unlawful seizure or use of force under the Fourteenth 15 Amendment, it is dismissed. 16 (2) Fourteenth Amendment Claim on Behalf of Jason Fuhr, Individually 17 Defendants also seek dismissal of Cause of Action VII to the extent that it was brought on 18 behalf of Jason Fuhr, acting in his individual capacity, for violation of his “liberty interest in the 19 companionship and society of [his] son.” Pls.’ Opp. at 23. Defendants argue that such a claim was 20 inadequately pled. As they point out, Cause of Action VII specifically claims “damages for 21 deprivation of civil rights of Shaun Fuhr,” Compl., ¶ 96, but fails to make any reference to the 22 Fourteenth Amendment rights of Jason Fuhr himself (or even to “Plaintiffs” generically). In their 23 opposition, Plaintiffs fail to address this critical procedural deficiency. To the extent Plaintiffs had 24 intended to state a claim for violation of Jason Fuhr’s Fourteenth Amendment rights, they have 25 failed to do so, even construing the pleading liberally. Defendants’ request for dismissal of such 26 claim is therefore granted. ORDER GRANTING DEFENDANTS’ 1 The Court also concludes that even if this claim had been adequately pled on Jason Fuhr’s 2 behalf, it must be dismissed. The law has recognized that under the Due Process Clause of the 3 Fourteenth Amendment, a “parent has a constitutionally protected liberty interest . . . in the 4 companionship and society of his or her child.” Curnow v. Ridgecrest Police, 952 F.2d 321, 325 5 (9th Cir.1991). Even so, however, “only official conduct that ‘shocks the conscience’ is cognizable 6 as a due process violation.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008) (citations 7 omitted). Plaintiffs argue that “[t]he actions of [Officer] Zech were a product of actual deliberation 8 which resulted in a decision to shoot an unarmed Mr. Fuhr” and that “it is up to a jury to determine 9 whether [Officer] Zech was deliberately indifferent.” Pls.’ Opp. at 23. 10 However, “deliberate indifference” alone will not meet the shocks-the-conscious standard 11 where, as here, officers face “an evolving set of circumstances that took place over a short time 12 period necessitating ‘fast action’ and presenting ‘obligations that tend to tug against each other.’” 13 Porter, 546 F.3d at 1139-40 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998)). 14 Instead, a plaintiff must allege (and ultimately prove) that the officer’s actual purpose was “to cause 15 harm unrelated to the legitimate object of arrest.” Id. at 1140. “The purpose-to-harm standard is a 16 subjective standard of culpability,” which may be met by evidence that the use of force is meant, for 17 example, only to “teach a suspect a lesson” or to “get even.” A.D. v. California Highway Patrol, 712 18 F.3d 446, 453 (9th Cir. 2013). 19 Plaintiffs have failed to allege in their response to Defendants’ motion any facts that would 20 support a conclusion that Zech acted with a purpose of causing “harm unrelated to the legitimate 21 object of arrest,”—for example, that he intended to teach Fuhr a lesson or get even, or with some 22 other wholly improper ulterior purpose. It is undisputed that Zech’s intent was to stop a felony 23 suspect from causing further—and possibly deadly—harm to a defenseless baby, among other 24 legitimate law enforcement objectives discussed herein. See Zech Decl., ¶¶ 6, 7 (“At the time I 25 used force, I believed Mr. Fuhr presented a grave and immediate threat to the life of the baby. . . . 26 I recognized a fleeting window of opportunity to stop the threat Mr. Fuhr presented to the baby, ORDER GRANTING DEFENDANTS’ 1 as well as to the public, my fellow officers, and myself.”). Plaintiffs’ putative claims brought on 2 Jason Fuhr’s behalf under the Fourteenth Amendment are therefore dismissed on the merits as well. 3 b. Fourth Amendment: Excessive Force 4 The Complaint does not specify whether the Fourth Amendment claims are brought by 5 Jason Fuhr individually, or on behalf of Shaun Fuhr’s Estate. For the reasons that follow, the Court 6 concludes the claims must be dismissed in either event. 7 (1) Fourth Amendment Claims brought by Jason Fuhr, Individually 8 Defendants ask the Court to dismiss Plaintiffs’ Fourth Amendment claims to the extent they 9 are brought on behalf of Jason Fuhr. As Defendants point out, correctly, “Fourth Amendment 10 claims are ‘personal’ and may not be ‘vicariously asserted.’” Jones v. Las Vegas Metro. Police 11 Dep’t, 873 F.3d 1123, 1128 (9th Cir. 2017) (citing Moreland v. Las Vegas Metro. Police Dep’t, 159 12 F.3d 365, 369 (9th Cir. 1998)); Alderman v. United States, 394 U.S. 165, 174 (1969). This being so, 13 and Plaintiffs having failed to respond to this argument, the Court dismisses Plaintiffs’ Cause of 14 Action VII, Fourth Amendment claims to the extent they are brought on behalf of Jason Fuhr, 15 individually. 16 (2) Fourth Amendment Claims brought by Shaun Fuhr’s Estate 17 A claim based on the Fourth Amendment right to be free from the use of excessive force by 18 law enforcement officers is analyzed under a “reasonableness” standard. Graham v. Connor, 490 19 U.S. 386 (1989). The reasonableness inquiry in an excessive force case is an objective one: 20 “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances 21 confronting them.” Id., at 396–97. The analysis must allow “for the fact that police officers are 22 often forced to make split-second judgments—in circumstances that are tense, uncertain, and 23 rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. 24 In Graham, the Supreme Court outlined several factors to be used in weighing 25 reasonableness in excessive force cases, including “the severity of the crime at issue, whether the 26 suspect poses an immediate threat to the safety of the officers or others, and whether he is actively ORDER GRANTING DEFENDANTS’ 1 resisting arrest or attempting to evade arrest by flight.” 490 U.S. at 396. The threat element is the 2 most important consideration, and “[a]n officer’s use of deadly force is reasonable only if ‘the 3 officer has probable cause to believe that the suspect poses a significant threat of death or serious 4 physical injury to the officer or others.’” Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 5 2014) (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)). The question on summary judgment “is 6 whether a reasonable jury would necessarily find that [the officer] perceived an immediate threat of 7 death or serious physical injury at the time he shot” the decedent. Id., 747 F.3d at 794. 8 Defendants seek summary judgment on Plaintiffs’ Fourth Amendment claim, brought on 9 behalf of Shaun Fuhr’s estate. They argue that based on the Graham v. Connor factors, no 10 reasonable jury could conclude that Zech used excessive force against Shaun Fuhr. The Court 11 weighs each factor in turn. 12 Severity of Alleged Crimes 13 Defendants first point to the severity of the crimes that the officers, including Zech, had 14 probable cause to believe Fuhr had committed. As Zech testified, “there was probable cause 15 broadcast over the radio for assault one with a firearm and kidnapping.” Zech Dep., 39-40. Zech 16 was aware of the facts that had been reported about Fuhr taking the child. Id., 77 (“So the call that I 17 responded to was a person that had taken a baby from a mother and had fired a shot in the process of 18 doing it. They had fled the scene. Police were actively tracking them with a K-9 and a helicopter in 19 the area. It was a protracted event. They were tracking him through the neighborhoods, believed to 20 still have the child and be armed. We believed that he had obviously fired a round in the process of 21 taking the child and then also kicked in a door of a residence to evade police.”). The seriousness and 22 potentially ongoing nature of these crimes, Defendants argue, support Zech’s decision to use deadly 23 force. See Vasquez v. City of San Jose, 634 F. Supp. 3d 712, 722 (N.D. Cal. 2022), aff’d, No. 22- 24 16691, 2024 WL 445320 (9th Cir. Feb. 6, 2024) (citing Garner, 471 U.S. at 11–12) (“An officer 25 who has probable cause may prevent a fleeing suspect’s escape using deadly force.”). 26 ORDER GRANTING DEFENDANTS’ 1 In response, Plaintiffs argue that the officers lacked probable cause to believe Fuhr had 2 committed the alleged crimes. However, it is undisputed that the following evidence and 3 information were known to the officers: the 911 calls from Taylor and Roy, who both described 4 Fuhr’s appearance and stated that Fuhr, at the very least, had been brandishing a gun at Taylor in a 5 public park; Taylor’s in-person statements to Officer Irwin, stating Fuhr had beaten her up the day 6 before and had in fact discharged the gun at her; Irwin’s observations of the bruises on Taylor’s face 7 and arm; the shell casing found near where Taylor told the officer Fuhr had fired the gun; Taylor’s 8 description of Fuhr being severely intoxicated and having taken their baby from her against her will, 9 and her fear for the baby’s safety; and Zech’s and the other officers’ observation of Fuhr attempting 10 to evade arrest and carrying the baby in a way that threatened the baby’s safety. See supra, § II. 11 Plaintiffs do not provide evidence disputing any of these allegations, and the Court concludes that 12 the officers had probable cause to believe Fuhr had committed the crimes alleged. See Devenpeck v. 13 Alford, 543 U.S. 146, 152 (2004) (“Whether probable cause exists depends upon the reasonable 14 conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.”). 15 Moreover, the severity of these alleged crimes, which involved both the actual infliction and the 16 threatened infliction of serious physical harm to the baby and others, has not been, and could not be, 17 reasonably disputed.1 These circumstances support the conclusion that the use of deadly force was 18 reasonable. See Garner, 471 U.S. at 11–12, (“[I]f . . . there is probable cause to believe that [the 19 suspect] has committed a crime involving the infliction or threatened infliction of serious physical 20 harm, deadly force may be used if necessary to prevent escape.”). 21 Whether Suspect Was Attempting to Evade Arrest 22 Second, Zech witnessed Fuhr actively attempting to evade arrest by fleeing on foot, 23 trespassing through buildings and the backyard of private residences, and eluding arrest for over 30 24 minutes, while being chased by multiple officers, including a K9 tracker and a police helicopter. 25 1 As Defendants point out, Plaintiffs do not appear to dispute that the crimes it is alleged Fuhr committed 26 “involv[ed] the infliction or threatened infliction of serious physical harm,” such that “deadly force may be used if necessary to prevent” Fuhr’s escape. Defs.’ Repl. At 2 (citing Garner, 471 U.S. at 11). ORDER GRANTING DEFENDANTS’ 1 The Court rejects Plaintiffs’ farfetched argument that the body camera worn by Zech shows Fuhr in 2 the process of surrendering. Given the radical and reckless actions Fuhr took to elude capture in the 3 30 minutes leading up to the final seconds before he was shot, including running away from the 4 officers and jumping a fence while carelessly holding a baby just seconds earlier, the Court 5 disagrees that a reasonable jury could find that in advancing towards the officers in those last 6 moments, Fuhr was attempting to surrender. Plaintiffs also speculate that Fuhr may not have heard 7 the officers’ commands to stop and surrender. Pls.’ Opp. at 19. Again, this theory is utterly 8 unsupportable. On video footage from their body worn cameras, the officers can be heard shouting 9 “Stop!” loudly and repeatedly, within yards of the decedent. See, e.g., Riedo Decl., Ex. N. The 10 notion that Fuhr was unaware that he was being told to surrender, after being chased through the 11 neighborhood by a dozen officers (and a helicopter) for half an hour, is simply implausible. It is 12 evident that Fuhr was attempting to evade arrest up to and including in the last moments of his life. 13 These facts support the conclusion that Zech’s use of force was reasonable. 14 Immediate Threat to Officers or Others 15 Third and most crucially, Defendants argue that Fuhr posed an immediate threat to the life 16 and safety of the officers and others. Zech personally observed Fuhr actively running with the baby 17 in a way that evidenced blatant disregard for that baby’s safety. Zech has testified that he saw that 18 “the baby’s head and arms [were] flopping around pretty violently,” and that Fuhr was running with 19 “absolute disregard for the child’s safety, and then jumping a fence with the child.” Zech Dep 20 57:25-58:1; 78:1-3. Zech was aware that Fuhr was extremely intoxicated, was likely armed with a 21 gun (which he had recently and recklessly discharged in a public park), and that he had already 22 exhibited risky and erratic behavior, acting with extreme recklessness towards the life and safety of 23 nearby strangers, the officers, and most disturbingly of all, his own baby. As Zech has stated, he 24 reasonably believed not only that Fuhr was acting with dangerous disregard for the baby’s life and 25 safety; he also feared that Fuhr might escalate that danger by using the baby as a hostage or a human 26 shield to continue to evade arrest. See Zech Decl., ¶ 6 (“At the time I used force, I believed Mr. Fuhr ORDER GRANTING DEFENDANTS’ 1 presented a grave and immediate threat to the life of the baby. Based on my training and experience, 2 I believed Mr. Fuhr could injure the baby or use the baby as a bargaining chip, shoot the baby, use 3 the baby as a human shield, throw the baby down or at officers in an attempt to distract officers and 4 flee.”). 5 In response, Plaintiffs argue that Fuhr could not have been a threat to the officers’ safety 6 because he was no longer in possession of his gun. This argument is unavailing for at least two 7 independently sufficient reasons. First of all, whether or not they were right, the officers had reason 8 to believe Fuhr was in possession of a firearm, given that he had discharged one just 30 minutes 9 earlier and a witness observed him placing it in his pants waistband. The question before the Court 10 is what the officers reasonably believed, not what was actually true. Saucier v. Katz, 533 U.S. 194, 11 206 (2001) (“Officers can have reasonable, but mistaken, beliefs as to the facts establishing the 12 existence of probable cause or exigent circumstances . . . and in those situations courts will not hold 13 that they have violated the Constitution.”). Second and more importantly, whether or not Fuhr was 14 in possession of a firearm is irrelevant to whether the officers reasonably perceived that Fuhr was 15 posing a threat to the life and safety of the baby he was carrying. From the officers’ testimony, it is 16 clear that the manner in which Fuhr was handling the baby could have caused that baby deadly 17 harm. See Zech Dep., 57-58 18 For this reason (among others), Cruz v. City of Anaheim, on which Plaintiffs attempt to rely 19 for the proposition that a jury must decide whether the use of deadly force was reasonable, is 20 inapposite. 765 F.3d 1076, 1079 (9th Cir. 2014). Defendants’ liability in Cruz turned on whether the 21 decedent posed an immediate threat to the officers, and on whether Cruz was reaching for a gun in 22 his waistband when the officers opened fire and killed him. Because the facts were in dispute on this 23 question, the Ninth Circuit reversed the district court’s judgment in the defendants’ favor. In 24 contrast, any dispute in this case as to whether the decedent had or was reaching for a firearm is 25 immaterial. Regardless of whether Fuhr was armed and regardless of whether he posed an 26 immediate threat to the officers pursuing him, it simply cannot be disputed that Fuhr’s behavior in ORDER GRANTING DEFENDANTS’ 1 the 30 minutes leading up to his death was an immediate threat to the life and safety of the baby. 2 Under these circumstances, the Court concludes that no reasonable jury could find that the force 3 Zech used to prevent Fuhr from continuing to endanger the life of the child was unconstitutionally 4 excessive. 5 c. Qualified Immunity 6 Defendants also argue that even if they are not entitled to summary judgment on the merits 7 of Plaintiffs’ Fourth Amendment claim, that claim should be dismissed on the basis of Zech’s 8 qualified immunity. “The doctrine of qualified immunity protects government officials from 9 liability for civil damages ‘unless a plaintiff pleads facts showing (1) that the official violated a 10 statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the 11 challenged conduct.’” Wood v. Moss, 572 U.S. 744 (2014) (quoting Ashcroft v. al–Kidd, 563 U.S. 12 731, 735 (2011)). It essentially “protects all but the plainly incompetent or those who knowingly 13 violate the law.” Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 1152 (2018) (per curiam). The 14 plaintiff bears the burden of proof in showing that the right allegedly violated was clearly 15 established at the time. Romero v. Kitsap Cnty., 931 F.2d 624, 627 (1991). 16 Plaintiffs have not met this burden in this case. Instead, Plaintiffs cite cases that stand for 17 generally applicable propositions, but bear few similarities factually to the case at hand. For 18 example, Plaintiffs cite George v. Morris for the proposition that “officers may not use deadly force 19 against a person who is armed but cannot be reasonably be perceived to be taking any furtive, 20 harrowing, or threatening actions.” 736 F.3d 829, 838 (9th Cir. 2013). In George, however, it was 21 “undisputed that Mr. George had not committed a crime, and that he was not actively resisting arrest 22 or attempting to evade arrest by flight,” and whether the decedent had in fact made any threatening 23 gestures was in dispute. These facts alone render that case inapplicable to the one before this Court, 24 particularly in the context of whether Zech is entitled to qualified immunity. See Kisela,138 S. Ct. at 25 1152 (cautioning that clearly established law should not be defined at a “high level of generality” 26 and instead “must be particularized to the facts of the case”). In contrast here, as discussed above, ORDER GRANTING DEFENDANTS’ 1 the officers had probable cause to believe Fuhr had committed crimes involving “the infliction or 2 threatened infliction of serious physical harm,” was attempting to evade arrest, and according to 3 both witnesses and video footage, was posing an immediate threat to the safety of the infant he was 4 carrying. The law established in George is not a basis for denying Zech qualified immunity in this 5 case. 6 At least as inapposite as George is another case Plaintiffs cite, Harris v. Roderick, which 7 involved the shooting of an armed man by an FBI agent during the infamous Ruby Ridge, Idaho 8 standoff. 126 F.3d 1189 (9th Cir. 1997). That case involved a set of facts too dissimilar from the 9 facts here to be instructive as clearly establish law, not least because the man who was shot in 10 Harris did “not pose an immediate threat to [the officers’] safety or to the safety of others” at the 11 time. Id., 126 F.3d 1204. As discussed above, the undisputed evidence here demonstrates that the 12 officers reasonably perceived Fuhr to pose an immediate threat to the life and safety of the baby he 13 was holding and to the officers and other third parties around him. In short, Plaintiffs have failed to 14 demonstrate that clearly established law put Zech on notice that use of deadly force would have 15 been unreasonable, given the facts of this case that were known to him at the time. Zech, 16 accordingly, is entitled to qualified immunity from Plaintiffs’ claims, and they are dismissed on 17 these grounds as well. 18 3. Cause of Action VIII: Monell Claim 19 Plaintiffs assert Cause of Action VIII against the Defendant City of Seattle under Monell v. 20 New York City Dept. of Social Services, 436 U.S. 658, (1978), alleging that “[t]he conduct 21 described herein by Noah [Z]ech was undertaken pursuant to the policies, practices and customs of 22 the City of Seattle’s police department.” Compl., ¶¶ 100-103. The Complaint generally alleges that 23 the City failed to train, supervise, and hold officers accountable for use of excessive force, without 24 including any specific allegations. Id. Defendants seek dismissal of Plaintiffs’ Monell claim, 25 challenging the “conclusory” and “boilerplate” allegations in the Complaint as insufficient, and 26 arguing that “Plaintiffs have not identified, let alone produced evidence of, any specific policy, ORDER GRANTING DEFENDANTS’ 1 custom or practice on the part of the City that caused or contributed to the violation of Fuhr’s 2 rights.” Defs.’ Mot. at 22. In response, Plaintiffs fail to defend—or even discuss—their Monell 3 claim, neither arguing their allegations are sufficient, nor providing any additional allegations (let 4 alone evidence) necessary to oppose Defendants at this summary judgment stage. Plaintiffs’ Monell 5 claim is therefore dismissed. 6 D. State Law Claims2 7 1. Cause of Action II: Negligence 8 Plaintiffs’ Second Cause of Action is for negligence, brought under Washington law, against 9 both Defendants. Compl., ¶¶ 65-74. Plaintiffs claim that Defendants owed the decedent a duty of 10 reasonable care, and that they breached that duty “by failing to de-escalate the force used against 11 Shaun Fuhr.” Id., ¶ 68. To establish a claim for negligence, a plaintiff must demonstrate: “(1) the 12 existence of a duty owed to the complaining party; (2) a breach of the duty; (3) resulting injury; and 13 (4) that the breach was the proximate cause of the injury.” Folsom v. Burger King, 135 Wn.2d 658 14 (1998); see also Stalter v. State, 151 Wn.2d 148 (2004). Defendants seek dismissal of Plaintiffs’ 15 negligence claim, arguing that Plaintiffs have failed to establish the elements of duty, breach, and 16 causation. 17 The Court concludes that Plaintiffs have demonstrated that there is, at a minimum, a 18 question of fact as to whether Defendants owed Fuhr a duty of reasonable care. See Beltran-Serrano 19 v. City of Tacoma, 193 Wn. 2d 537, 540 (2019). However, Plaintiffs fail to provide any specific 20 evidence or argument regarding how that duty may have been breached, or how a breach may have 21 been the proximate cause of Fuhr’s injury. Instead, as to the element of breach, Plaintiffs state only 22 the following: “SPD officers were negligent as they failed to exercise reasonable care as a 23 24 2 Defendants argue that Plaintiffs’ state-law claims are barred by RCW 4.24.420, which provides that it is a “complete defense to any [state law] action for damages for personal injury or wrongful death that the person injured 25 or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death and the felony was a proximate cause of the injury or death.” Because the Court concludes that all of Plaintiffs’ state-law 26 claims fail on their merits, the Court does not reach the question of Defendants’ affirmative defense, but notes that by failing to respond to this argument, Plaintiffs have waived any objection to it. ORDER GRANTING DEFENDANTS’ 1 reasonably prudent person would have known that it is impossible to obey commands when he was 2 not given sufficient time to comply. SPD officers breached that duty.” Pls.’ Opp. at 25. As a 3 preliminary matter, as noted above, the Court rejects as implausible Plaintiffs’ suggestion that 4 Fuhr—having eluded for 30 minutes the officers chasing him—was not given time to comply with 5 the officers’ commands to stop. See supra, III.C.2.(b)(2). Furthermore, apart from this 6 unsupportable allegation, nowhere in the Complaint or in Plaintiffs’ response to Defendants’ motion 7 can the Court discern what specific (or for that matter, general) acts or omissions Plaintiffs are 8 claiming might constitute a breach. Indeed, while Defendants in their motion identify two specific 9 acts that they argue do not constitute a breach (“overall police response to the incident at the park or 10 calling out the incident as a kidnapping over police radio”), Plaintiffs fail in their response to refer to 11 these acts at all, let alone attempt to argue they constituted a breach. 12 The Court also concludes that Plaintiffs have failed to demonstrate the element of causation. 13 As Defendants point out, Plaintiffs have not defended their claim that “but for the failure to de- 14 escalate, Fuhr more likely than not would have survived.” Defs.’ Mot. at 25. Instead, Plaintiffs 15 merely restate this element of a negligence claim, claiming without any supporting evidence or 16 argument that the officers’ actions “caused resulting in [sic] Shaun Fuhr’s death and were the 17 proximate cause of his death. SPD’s negligence was the proximate cause of Shaun Fuhr’s death.” 18 Pls.’ Opp. at 25. Given the myriad intervening causes indisputably contributing to Fuhr’s death, this 19 general and conclusory assertion is inadequate to withstand summary judgment. At this stage, the 20 nonmoving party has a duty to provide argument and evidence supporting the essential elements of 21 its claims that the moving party has demonstrated are lacking. Anderson, 477 U.S. at 256. Simply 22 reciting the elements of the claim is insufficient. Plaintiffs’ Cause of Action II for negligence is 23 therefore dismissed. 24 2. Cause of Action III: Wrongful Death and Survivor 25 Defendants seek dismissal of the wrongful death and survivor claims brought on behalf of 26 Jason Fuhr individually. They argue that under the Washington statutes authorizing these claims, ORDER GRANTING DEFENDANTS’ 1 “where the decedent has a surviving spouse, domestic partner, or children, the causes of action can 2 only be brought by the decedent’s estate on behalf of those beneficiaries.” Defs.’ Mot. at 22-23 3 (citing RCW 4.20.010, 4.20.046(2), and 4.20.060). Defendants argue that since Shaun Fuhr has 4 surviving children, his father Jason Fuhr is not the proper party to bring claims under these statutes. 5 Plaintiffs fail to respond to this argument. Their wrongful death and survivor claims are therefore 6 dismissed. 7 3. Cause of Action V: Outrage 8 Cause of Action V is based on the tort of outrage. Compl., ¶¶ 88-91. Defendants seek 9 dismissal of this claim, arguing that as a matter of law, Plaintiffs cannot demonstrate, as they must, 10 that Zech or the City engaged in “extreme and outrageous conduct.” Defs.’ Mot. at 26. In their 11 response, Pls.’ Opp. at 25, Plaintiffs concede that their outrage claim rises and falls with their 12 excessive force claim which, as discussed above, lacks merit. The outrage claim accordingly is 13 dismissed as well. 14 4. Cause of Action VI: Washington Law Against Discrimination 15 In asserting their claim under the Washington Law Against Discrimination (“WLAD”), 16 Plaintiffs allege that “Defendants discriminated against Shaun Fuhr when Officer Noah Zech shot 17 him without investigation or de-escalation,” and claim Zech “consciously” chose to do so “because 18 Shaun Fuhr is African American.” Compl., ¶¶ 92-94. Defendants seek dismissal of this claim 19 because, among other deficiencies, Plaintiffs have alleged no facts supporting their assertion that 20 Zech’s actions were racially motivated. Plaintiffs state in response only that “there is evidence that 21 SPD officers knew that Shaun Fuhr was an African American. Shaun Fuhr was treated differently 22 because he was an African American, and SPD discriminated against him because of his race.” Pls.’ 23 Opp. at 26. As noted above, at the summary judgment stage, once the moving party has identified a 24 deficiency in the non-moving party’s claim, the latter may not merely rely on conclusory allegations 25 or a restatement of the elements of the claim, but “must set forth specific facts showing that there is 26 a genuine issue for trial.” Anderson, 477 U.S. at 256. Here, Plaintiffs have failed to provide any ORDER GRANTING DEFENDANTS’ 1 specific allegations, let alone evidence, supporting even an inference that Zech’s actions were 2 motivated by Fuhr’s race. Plaintiffs’ WLAD claim is dismissed. 3 5. Cause of Action IV: Respondeat Superior and Indemnification 4 Plaintiffs’ Cause of Action IV is for “Respondeat Superior and Indemnification,” 5 purportedly under Washington state law. Compl., ¶¶ 83-87. The Complaint asserts that “Defendant 6 City of Seattle is liable to the Plaintiff for Noah Zech’s actions under the doctrine of Respondeat 7 Superior,” and that “the City of Seattle must indemnify the Defendant Officer for any judgment 8 against him.” Id. As Defendants point out (and Plaintiffs do not dispute), these purported claims are 9 not independent causes of action against the City, but theories of liability that hinge on the liability 10 of another party, in this case Defendant Zech. Because, as discussed above, the Court has 11 determined that Zech is not liable on any of Plaintiffs’ claims, Cause of Action IV is also dismissed. 12 III. CONCLUSION 13 For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED 14 and Plaintiffs’ Complaint is DISMISSED with prejudice. 15 The pending motions (1) to Exclude Expert Opinions, Dkt. No. 42; (2) to Stay Trial, Dkt. 16 No. 53; and (3) to Compel Paternity Test, Dkt. No. 61, are DENIED as MOOT. 17 For the purpose of protecting the identity of the minor child, the Motion to Seal, Dkt. No. 18 39, is GRANTED. Exhibits A, F, I, M, N, and O to the Declaration of Catherine Riedo, and 19 Appendices C, D, and E to the Declaration of William Neale, filed in support of Defendants’ 20 Motion for Summary Judgment, are hereby sealed. 21 SO ORDERED. DATED this 23rd day of August, 2024. 22 A 23 24 B arbara Jacobs Rothstein U .S. District Court Judge 25 26 ORDER GRANTING DEFENDANTS’