Thomas v. Cannon

289 F.Supp.3d 1182

Fredrick and Annalesa THOMAS; and Jo–Hanna Read, as Guardian ad Litem of E.T., a minor, Plaintiffs,

v.Jason CANNON; Brian Markert; Ryan Micenko; Michael Wiley; Michael Zaro; City of Fife; City of Lakewood; and Pierce County Metro SWAT Team, Defendants.

Fredrick Thomas and Annalesa Thomas, as Co–Administrators of the Estate of Leonard Thomas, and its statutory beneficiaries, Plaintiffs,

v.Brian Markert; Michael Wiley; Nathan Vance; Michael Zaro; Scott Green; Jeff Rackley; City of Fife; City of Lakewood; Pierce County Metro SWAT Team; and John Does 1 through 10, Defendants.

Nos. 3:15–05346 BJR

3:16–cv–05392 CONSOLIDATED CASES

United States District Court, W.D. Washington.

Signed January 30, 2018

Binah B. Yeung, Jennifer Kent Faubion, John Robert Rizzardi, Cairncross & Hempelmann, David J. Whedbee, Timothy K. Ford, Angela C. Galloway, Tiffany Mae Cartwright, MacDonald Hoague & Bayless, Seattle, WA, John R. Connelly, Jr., Meaghan M. Driscoll, Connelly Law Offices, Tacoma, WA, for Plaintiffs.

Leonard Estate of Thomas, pro se.

Catherine Wright Smith, Ian Christopher Cairns, Howard M. Goodfriend, Edwards, Sieh, Smith, & Goodfriend, PS, Jeremy W. Culumber, Brian Christopher Augenthaler, Richard B. Jolley, Keating Bucklin McCormack Inc. PS, Seattle, WA, for Defendant.

FINAL ORDER DENYING DEFENDANTS' POST–TRIAL MOTIONS

Barbara Jacobs Rothstein, U.S. District Court Judge

Table of Contents

I. INTRODUCTION ...1190

II. FACTUAL BACKGROUND ...1190

A. Shooting of Leonard Thomas...1191

B. Jury Trial...1193

III. DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW ...1193

A. E.T.'s Unreasonable Seizure Claim (Verdict Question One)...1194

B. Estate's Unreasonable Seizure Claim (Verdict Question One)...1195

C. Estate's Excessive Force Claim Against Wiley (Verdict Question Two)...1195

D. Fourteenth Amendment Deprivation of Familial Relationship (Verdict Question Three)...1196

E. Unreasonable Search and Seizure: Explosive Breach (Verdict Question Four)...1198

F. Unreasonable Seizure of the Dog (Verdict Question Five)...1200

G. Fred's Fourth Amendment Seizure Claim (Verdict Question Six)...1201

H. State Law False Arrest (Verdict Question Seven)...1202

I. E.T. and Annalesa's Outrage Claims (Verdict Question Eight)...1203

J. Negligent Child Abuse Investigation (Verdict Question Nine)...1203

K. Punitive Damages (Verdict Question Eleven)...1204

IV. DEFENDANTS' MOTION FOR REMITTITUR ...1204

A. Compensatory Damages...1206

1. Jury's Awards to E.T...1206

2. Jury's Awards to the Estate of Leonard Thomas...1208

3. Jury's Awards to Annalesa Thomas...1208

4. Jury's Awards to Fredrick Thomas...1209

B. Punitive Damages...1210

V. DEFENDANTS' MOTION FOR QUALIFIED IMMUNITY ...1213

A. Waiver...1213

1. Markert, Wiley, Cannon...1213

2. Zaro...1214

B. Constitutional Violation...1215

C. Clearly Established Law...1217

1. Excessive force against Leonard...1218

2. Explosive breach...1219

3. Shooting of the dog...1220

4. Unlawful arrest...1221

VI. DEFENDANTS' MOTION FOR A NEW TRIAL ...1222

A. Exclusion of Weapons...1222

B. Duplicative Case Presentations...1223

C. Race–Based Arguments...1223

D. Excluding Reference to the Josh Powell Incident...1224

E. Excluding the 3D Animations...1225

F. Discussion of Markert's Legal Representation...1226

G. Answering Jury's Question Regarding Cannon's Employment...1226

H. Cumulative Error...1227

I. Inconsistent Verdicts...1227

J. Evidentiary Deficiencies...1227

VII. CONCLUSION ...1227

I. INTRODUCTION

Defendants have brought four post-trial motions for the Court's review: a Motion for Judgment as a Matter of Law (ECF 282); a Motion for Remittitur (ECF 284); a Motion for Qualified Immunity (ECF 280); a Motion for New Trial (ECF 283). Having reviewed the parties' submissions, the relevant legal authority, and all other relevant material properly before the Court, the Court will DENY Defendants' Motions.

II. FACTUAL BACKGROUND

On the night of May 23, 2013, a confrontation with tragic results occurred between police from the Cities of Fife and Lakewood and Leonard Thomas at his home in Fife. The events that unfolded resulted in the lethal shooting of Thomas, who was unarmed, by a police sniper. Plaintiffs, which include Leonard's Estate as well as his parents and son, brought this civil rights action, which resulted in a substantial jury verdict in their favor. While the full scope of the evidence required a lengthy trial, the essential facts are summarized here.

A. Shooting of Leonard Thomas

Leonard Thomas lived with his four-year-old son, E.T, in a home in Fife owned by his parents, Fred and Annalesa Thomas. In the evening of May 23, 2013, Leonard called Annalesa, explained he was depressed over the death of a friend, and asked her to come take E.T. for the night. Annalesa agreed. She was concerned that Leonard, after a year of sobriety, had been drinking, and she was worried that Leonard would fall asleep and not be able to attend to E.T. that night. When Annalesa arrived sometime after 9:00 p.m., Leonard changed his mind and became upset as Annalesa prepared to leave with E.T. The argument between Leonard and Annalesa escalated when Annalesa slapped Leonard's face with an open hand. Annalesa called 911 at 10:18 p.m., and told the dispatcher that she needed the police. Leonard grabbed the phone from Annalesa, and told the dispatcher that his mother had hit him and that he needed help.

Fife Police Officers responded to the Thomas house and contacted Leonard via cell phone. During their initial 24 minute conversation, Leonard told the Fife officer that he was upset about the recent loss of a personal friend and had requested his mother come to pick up his son; that he had subsequently been assaulted by his mother and was bleeding from the face; that he had locked all the doors and would not be coming out of the house or allowing officers inside the house; and that the police were scaring his four-year-old son and should leave his property. Approximately an hour later, after Leonard continued to refuse to emerge from the house, the Fife police chief called for the Pierce County Metro SWAT Team to respond to the scene.

The SWAT Team arrived at approximately 12:20 a.m. with two tank-like armored vehicles. The "AT" ("armored transport") was driven across the neighbor's yard, through a fence separating the neighbor's yard from the Thomas home, and parked just off the back patio of the Thomas residence. The "Bearcat" was parked on the street in front of the house. Two snipers, including Defendant Brian Markert, took up positions in front of the house. Defendant Mike Wiley was Team Leader of the SWAT Team's tactical side, while Defendant Mike Zaro, the Assistant Chief of Police for Lakewood, oversaw field operations. Officer Wiley informed the SWAT Team that they were "responding to basically assault 4 DV [domestic violence]" due to Leonard's grab of Annalesa's wrist when he snatched the phone during the initial 911 call. Wiley told the Team, "Barricaded male suspect has his four year old son maybe pseudo hostage. The wife is outside. Made no threats towards the son." As negotiations with Leonard proceeded through the night, Leonard repeated that he did not have any weapons, and warned officers not to use flash-bang grenades to enter the house. No officer heard Leonard make any threats to harm himself, his child, or any officer. During the course of negotiations Leonard repeatedly asked the officers to stop harassing him and to leave him alone.

At approximate 1:08 a.m., Fred Thomas (Leonard's father) arrived at the police staging area a few blocks from the house in response to a call from Annalesa. Fred explained to the officers that he needed to go to his house to speak to his son, but was told that the road was closed to traffic. Fred walked to the back of the property and climbed the six foot chain link fence surrounding the backyard. Officer Ryan Micenko, who was behind the house at the time, stopped Fred, ordered him to the ground, and placed him in handcuffs. Fred explained to the officers that he lived at the residence and that he was there to talk to his son. Defendant Jason Cannon, the entry team leader stationed at the back of the house, radioed Zaro to say, "We've got the property owner and the father of the suspect detained. Where would you like [him]?" Zaro asked, "Other than him generally inserting himself onto the scene, does any of his activity warrant him going to jail?" Cannon responded, "I guess that depends on how cooperative he is with you guys but you have at least obstructing on him if you want to." Zaro said, "That's what I need, thanks." Fred was then taken to jail where he was kept until the following morning, when he was released without being charged.

As negotiations with Leonard continued unsuccessfully, officers internally discussed the possibility that if Leonard let E.T. go, they could simply leave for the night and come back to arrest Leonard another time. Zaro agreed with this approach, and asked Fife Police Chief Blackburn "if we get the son tonight, are you good with us leaving here?" Chief Blackburn agreed that "Yeah, if we have the son, then you can—we can walk away from this thing tonight and we'll get him at another time when it's not so volatile." Leonard initially resisted this proposal, but eventually responded, "Okay, we'll do that." Zaro radioed his team, "If, uh, the suspect comes out with the child and you can separate the child, let dad go back in."

Leonard brought E.T., who had been sleeping, out to the front porch, but insisted that E.T. leave with Annalesa, not with the police officers. The officers refused this request, and the stalemate continued.

Based on Leonard's continued demands to have Annalesa come up to the house, his continued refusal to release E.T. to the police, and the fact that he was now on the front porch with E.T., Chief Zaro radioed the entire SWAT Team, ordering them "Do not let him back in the house with that kid." Despite this order, which was never communicated to Leonard, Leonard continued to go in and...