Watness v. City of Seattle

11 Wash.App.2d 722

457 P.3d 1177

Commissioner Eric WATNESS, as personal representative of the estate of Charleena Lyles; Karen Clark, as guardian ad litem on behalf of the four minor children of decedent, Plaintiffs,

v.The CITY OF SEATTLE, a municipality; Jason M. Anderson and Steven A. McNew, individually Respondents,Solid Ground, a Washington nonprofit corporation, Defendant,Karen Koehler and Edward Moore, plaintiffs’ attorneys, Appellants.

No. 78819-1-I

Court of Appeals of Washington, Division 1.

FILED: December 30, 2019

Published February 3, 2020

Karen Kathryn Koehler, A. Melanie Nguyen, Stritmatter Kessler Whelan Koehler Moore, 3600 15th Ave. W Ste. 300, Seattle, WA, 98119-1330, Todd Maybrown, David Allen, Allen Hansen Maybrown & Offenbecher, PS, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, Garth L. Jones, Stritmatter Kessler Koehler Moore, 413 8th St., Hoquiam, WA, 98550-3607, Edward H. Moore Jr., Law Offices of Edward H. Moore PC, 3600 15th Ave. W Ste. 300, Seattle, WA, 98119-1330, for Appellant.

Ghazal Sharifi, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, Jeffrey Mark Wolf, Seattle City Light - Legal Affairs Offic., Po Box 34023, Seattle, WA, 98124-4023, Robert L. Christie, Megan Maria Coluccio, Christie Law Group PLLC, 2100 Westlake Ave. N Ste. 206, Seattle, WA, 98109-5802, for Respondent.

PUBLISHED OPINION

Appelwick, C.J. ¶1 This appeal arises from a negligence suit filed on behalf of Lyles’s estate. On June 18, 2018, Lyles was shot by two SPD officers and died as a result of her injuries. Koehler and Moore, counsel for Lyles’s estate, filed a motion under RCW 9.72.090, alleging that one of the officers had committed perjury during a deposition. The motion requested that the trial court refer the matter to the appropriate prosecuting attorney’s office. In response, the respondents moved for CR 11 sanctions against Koehler and Moore, alleging that the motion was not well grounded in fact or existing law, and lacked good faith arguments. The trial court granted the respondents’ motion and imposed CR 11 sanctions. Koehler and Moore raise several issues on appeal, arguing in part that the trial court deprived them of due process, erred in excluding its expert witness, abused its discretion in imposing sanctions, and violated their First Amendment rights. We affirm the imposition of sanctions, but reverse as to the trial court’s evidentiary ruling excluding the expert.

FACTS

¶2 On June 18, 2017, Charleena Lyles called 911 to report a burglary. In response, Seattle Police Department (SPD) officers Jason Anderson and Steven McNew were dispatched to her home. After Anderson and McNew arrived, the situation quickly escalated, and they shot Lyles seven times. SPD’s Force Investigation Team (FIT) was then dispatched to the scene. Lyles died as a result of her injuries.

¶3 During the incident, Anderson and McNew used in-car video (ICV) systems that made an audio recording of their actions. Later that day, SPD obtained surveillance video of the shooting from the Solid Ground Housing complex, which maintained and controlled the video system outside Lyles’s apartment. SPD video specialists then redacted and recoded the audio and video for public release.

¶4 FIT publicly released the video on June 19, 2017. The SPD media relations unit uploaded the video to YouTube,¹ which involved another proprietary transcoding process. King 5 News later synchronized the audio and video, matching the sound of gunshots to a visual of Anderson in the hall outside Lyles’s apartment.

¶5 FIT interviewed Anderson on June 20 and 22, 2017. During the interview, Anderson described firing his weapon toward Lyles from standing in the doorway of her apartment. Before doing so, he stated that Lyles had tried to stab him, stepped back into her living room, and "proceeded to come around the ... peninsula of the kitchen towards Officer McNew, who did not have an escape route." He also stated that the door to her apartment was closed.

¶6 On September 8, 2017, Commissioner Eric Watness, as personal representative of Lyles’s estate, and Karen Clark, as guardian ad litem of her four minor children, sued Anderson and McNew for negligence and wrongful death.² They later added the City of Seattle and Solid Ground as defendants.

¶7 On February 2, 2018, the trial court entered a stipulated protective order regarding discovery materials. With regard to deposition testimony, paragraph 5.2(b) of the order stated,

[T]he parties must identify on the record, during the deposition, all protected testimony, without prejudice to their right to so designate other testimony after reviewing the transcript. Any party or non-party may, within thirty (30) days after receiving a deposition transcript, designate portions of the transcript, or exhibits thereto, as confidential.

It also provided that "disclosure or discovery material that qualifies for protection under this agreement must be clearly so designated before or when the material is disclosed or produced."

¶8 Karen Koehler, counsel for the plaintiffs, deposed Anderson on February 13 and April 26, 2018. During the April 26 deposition, Koehler focused her questions on whether Anderson was inside Lyles’s apartment at the time of the shooting. She repeatedly asked him about his position relative to the door to Lyles’s apartment and the hallway outside her apartment when the shots were fired:

Q Well, looking at the transcript, did you step out of the door before or after the shots were fired?

A After ––

....

Q (By Ms. Koehler) So if we go to after the shots were fired, did you step out of the door before Officer McNew said, Suspect is down, we need officers on-scene.

A I’m sorry. I don’t-- I don’t know exactly at what point I stepped outside of the door other than it was after the shots were fired. I don’t know if it’s -- my memory is not clear of exactly what point.

Q How do you know that you stepped out of the door after the shots were fired?

A I remember opening the door, opening the door with the thought of how do we get the children out of the apartment, trying to assess how we’re going to do that safely.

In describing the moments before the shooting, Anderson also stated, "I sidestepped to my left slightly to be in front of the closed door of the apartment, trying to create more distance and gain some more time to assess what was going on." Koehler stated in a declaration that, during the deposition she told Anderson that it "looked like he was shooting in the hall," based on the surveillance video.³ Anderson did not change his testimony based on her observation.

¶9 After Anderson’s deposition, Koehler asked her co-counsel, Edward Moore, to have the redacted ICV audio recording and hallway surveillance video synchronized by an expert. Dr. Wilson "Toby" Hayes, a biomechanical engineer, completed this synchronization on May 8, 2018. He concluded,

7. It is my opinion, on a more probable than not basis, that the synchronized video is an accurate depiction of what occurred between Charleena Lyles and Officers McNew and Anderson.

8. The synchronized video and audio accurately depict Officer Anderson’s actions at the time the gunshots are heard. The synchronized video and audio accurately depict Officer Anderson in the open doorway and the hallway at the only time that gunshots can be heard.

Koehler received the synchronized videos on May 16, and asked her associate to locate the unredacted videos on May 17.

¶10 Based on the synchronized videos, Koehler grew concerned that Anderson had committed perjury during his deposition when he stated that he had his back to a closed door inside Lyles’s apartment at the time of the shooting. She considered writing a letter to the prosecuting attorney regarding this concern:

I wrote the letter on May 17, 2018. It was directed to the applicable public officials and requested not only that the matter be forwarded to the prosecutor, but that the FIT, [Force Review Board (FRB) ], [and Crime Scene Investigation Unit (CSI) ] investigations all be reopened. I then sat on the letter on advice of Mr. Moore as we were not sure if it was the correct approach to take. Most importantly, 30 days had not run regarding confidentiality of the deposition of Officer Anderson and the letter did not refer to the deposition as a result. We also wanted to make sure that all of the video issues were resolved. I communicated also on May 17, that I needed to be exactly 100% sure what was synchronized and that the letter would not be sent until I was 100% positive the officer was shooting in the hall. I had watched that video 20 times and it looked beyond doubt but I wanted to be sure. I asked Ms. Nguyen to continue to follow-up regarding the unredacted videos so those could also be synchronized.

(Footnote omitted.) She did not have the unredacted videos synchronized.

¶11 A few weeks later, Koehler decided that the best course of action would be to file a motion under RCW 9.72.090 :

I re-read all of the perjury statutes. This is when I zeroed in on the language of RCW 9.72.090. I read it over and over. This statute provided a mechanism for referring the charge of perjury to the prosecutor. The difference was that it empowered the judge to do so. This made enormous sense to me. Instead of writing a letter and asking the prosecutor to find perjury, I could apply directly to the court. This felt like a better and more reasonable course of action to take.

On June 18, 2018, the one year anniversary of Lyles’s death, the appellants filed a motion for a finding that Anderson committed perjury, and for transmittal to the prosecuting attorney pursuant to RCW 9.72.090. They did not request that the motion be heard with oral argument. Both Koehler and Moore signed the motion.

¶12 The plaintiffs filed the motion at 1:26 p.m. Koehler provided a copy of the motion to the media after filing. By 1:55 p.m., Alex Rozier of King 5 News tweeted a screen capture of the motion with the hashtag, "#BREAKING."...