Adamson v. Pierce Cnty.

1

CHRIS ADAMSON, et al., Plaintiffs, v. PIERCE COUNTY, et al., Defendants.

No. 3:21-cv-05592-TMC

United States District Court, W.D. Washington, Tacoma

May 28, 2024

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

TIFFANY M. CARTWRIGHT, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

In April 2020, the Pierce County Sheriff's Department (PCSD) shut down its narcotics trafficking investigations team, the Special Investigations Unit (SIU). Pierce County Sheriff Paul Pastor transferred Plaintiffs, who were SIU officers, to other units and launched an external investigation into the alleged misconduct. The shutdown came after the Pierce County Prosecuting Attorney's Office (PCPAO) raised concerns about the SIU's adherence to protocol, including confidential informant disclosure requirements. It also came within a month of the filing deadline for the Pierce County Sheriff election. Pastor decided to reopen the SIU in July 2020 and transferred back all Plaintiffs except Lieutenant Cynthia Fajardo and Sergeant Shaun Darby. But Pastor and Undersheriff Brent Bomkamp closed the unit again just three days later, almost immediately after publication of an article in the News Tribune (also referred to as “Tacoma News Tribune”) that revealed Plaintiffs had spoken to the press about the matter. Plaintiffs' suit raises First Amendment retaliation claims against Pastor and Bomkamp, and state law claims for defamation, false light, negligent infliction of emotional distress, intentional infliction of emotional distress, and breach of contract against Pierce County.

Before the Court is Defendants' motion for summary judgment (Dkt. 131) and motion to strike improper surreply (Dkt. 199). Having considered the parties' briefing and the balance of the record, the Court concludes that (1) Plaintiffs have not put forth evidence from which a jury could conclude the April 2020 shutdown was motivated by protected First Amendment activity; (2) Under the Pickering balancing test, Plaintiffs' right to speak to the News Tribune is outweighed by the PCSD's legitimate interests in performing its mission; and (3) Plaintiffs have not put forth evidence from which a jury could find in their favor on any state law claim. The Court therefore GRANTS the Defendants' motion for summary judgment. The Court also GRANTS the motion to strike an improper surreply and STRIKES the Declaration filed at Dkt. 197.^[1]A pending motion for reconsideration (Dkt. 208) of the Court's earlier order denying Plaintiffs' request for an adverse inference instruction is DENIED as moot.

II. BACKGROUND

A. Underlying Conflict between Plaintiffs and the Pierce County Prosecuting Attorney's Office

Plaintiffs-Retired Sergeant Chris Adamson, Deputy Jason Bray, Officer Lucas Cole, Sergeant Shaun Darby, Lieutenant Cynthia Fajardo, Deputy James Maas, Retired Detective Darrin Rayner, Retired Detective Elizabeth Reigle, and Detective Ryan Olivarez-were employees of the Pierce County Sheriff's Department (PCSD) Special Investigations Unit (SIU) in early 2020. Dkt. 185 at 1. The SIU was tasked with investigating narcotics trafficking and enforcing anti-vice laws in Pierce County. Dkt. 1-2 at 6-10. Defendant Paul Pastor was Sheriff and Defendant Brent Bomkamp was Undersheriff. Dkt. 132-6 at 3.

Plaintiffs allege that beginning in 2018, tensions arose between the Pierce County Prosecuting Attorney's Office (PCPAO) and SIU over practices related to confidential informant disclosures. Dkt. 185 at 9. In July 2019, the Washington state legislature enacted a law defining “confidential informant,” Dkt. 1-2 at 100; see Dkt. 186 at 54-56 (discussing the definition of confidential informant under RCW 10.56.040(5)), and the PCPAO adopted a policy conforming with that law, Dkt. 1-2 at 107; see Dkt. 185 at 9. That policy was the source of further tension. Plaintiffs allege they found the policy confusing and needed clarification. See Dkt. 185 at 10. They wrote a letter to Pastor raising concerns about releasing confidential informants' identifying information. Dkt. 132-1 at 13. Defendants, however, contend that SIU members were engaging in problematic practices and not following PCPOA's protocols. See Dkt. 131 at 3-4.

PCPOA prosecutors told Pastor they were having difficulty working with Plaintiff Darby in particular. Dkt. 132-1 at 11. This information prompted Pastor to have Darby's supervisor, Plaintiff Fajardo, speak with the PCPOA. Id. After meeting with the prosecutors, Fajardo spoke with Darby about his conduct. Id. But two significant incidents took place after this conversation.

First, in January 2020, Prosecuting Attorney Fred Wist declined to file charges against Andrew Lee Wales, a suspect in a narcotics case. See Dkt. 137-1 at 4. Wist explained in a written No Charges Filed (NCF) determination that Darby's warrant to search Wales's apartment contained a description of the entrance that was inconsistent with the actual entrance. Id. Wist noted numerous shortcomings of a second warrant as well, including an inaccurate description of the entrance, inconsistencies with facts in the first warrant, and procedural deficiencies. He asserted that “PCPAO is not willing to place this issue before the State appellate courts or Washington State Supreme Court.” Id. With respect to the entry of Wales's apartment, Wist stated that the SWAT team refused to enter the apartment because there was no warrant authorizing entry through the corresponding door. Id. at 5. Darby nonetheless entered and searched the residence himself. Id. Wist concluded that “Darby's entry into and the ultimate search of the residence with the French doors is not supported by the facts or the law.” Id.

Second, in February 2020, a suspect orally agreed to serve as a confidential informant during an interrogation by Darby. The confidential informant provided information that brought about the arrest of his supplier, Coronel Benitez. Dkt. 135-1 at 2. Although SIU referred the confidential informant and Benitez for prosecution, PCPAO declined to pursue the cases. Id. Former Chief Criminal Deputy Prosecutor for Pierce County James Schacht documented the reasons for declining to prosecute in a memorandum. Id. With respect to the confidential informant's case, he identified constitutional and statutory-based problems, including failure to provide the informant his constitutional rights in writing in his native language; sparse documentation of the Miranda waiver; deficits in Darby's documentation of his contact with the informant; and the oral nature and lack of a documented confidential informant agreement in violation of RCW 10.56.010 and related protocols. Id. at 11.

As to Benitez's case, Schacht asserted that “the entirety of [the informant's] participation is absent from the search warrant affidavit,” even though the “entire investigation of Mr. Coronel Benitez was based on information from an incentivized informant.” Id. at 12. Schacht contended that the warrant could be held void and evidence obtained through the warrant suppressed. Id. at 11-13. He also stated that the SIU wrote and filed false reports to mitigate the risk of cartel violence against the confidential informant and his family. Id. at 14. Schacht argued this constituted outrageous conduct for which a court could dismiss the case. Id.

B. Former Sheriff Pastor shuts down the Special Investigation Unit and reassigns Plaintiffs.

Pastor testified in his deposition that after hearing of these incidents, he was “beginning to say, ‘Hey, there may be a pattern here. There's a concern here. I need to have that looked into. Are they going their own way? And if they're going their own way, that bodes problems; so let's get it looked into.” Dkt. 132-1 at 12.

On March 20, 2020, Pastor emailed the elected Pierce County Prosecuting Attorney, Mary Robnett. Dkt. 132-2. He expressed his concern regarding SIU members' improper procedural conduct and possible criminal conduct in their use of informants and told Robnett his staff was reviewing materials Fajardo provided “regarding the conduct of cases, service of search warrants and use of informants.” Id. at 2. He stated, “it has become clear to all of us that something is wrong that goes way beyond professional disagreements or personality conflicts and the something that is wrong is on PCSD's plate ....We cannot bend rules or violate laws and do our jobs properly.” Id. He explained that PCSD would not implement an outside investigation yet, but that the department would take this step “[i]f and whenever necessary.” Id. at 3. He assured Robnett that he could not put the prosecutors in “a position [of] proceeding with cases if it can be found that pursuit of those cases involved either procedural or legal violations on our part.” Id. He further noted that he was “ready and willing to shut down the SIU function to” “get to the bottom of this and then step on any wrong-doing.” Id. He said SIU members may be engaged in “‘noble cause' corruption” but he did not yet have “concerns regarding personal-benefit corruption.” Id.

In early April 2020, Pastor hired the Kitsap County Sheriff's Office (KCSO) to conduct an Internal Affairs investigation of possible PCSD policy violations. Dkt 136-1 at 2. Specifically, Pastor requested that KCSO investigate (1) a search warrant served on February 7, 2020 leading to the arrest of a confidential informant and false reports; (2) a March 8, 2020 incident related to the use of a confidential informant and the arrest of Benitez, and (3) a false report created on March 17, 2020 related to the February 7, 2020 arrest and search warrant. Id. That investigation culminated in a report published on September 1, 2020. Dkt. 136 at 2; see Dkt. 136-1.

On April 22, 2020, while the investigation was ongoing,...