Spd Claims on Doj 1

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, ETC.

2:11-cv-01041-RSM

344337

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SCHROETER, GOLDMARK & BENDER 500 Central Building ● 810 Third Avenue ● Seattle, WA 98104

Phone (206) 622-8000 ● Fax (206) 682-2305

Honorable Ricardo S. Martinez

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MARTIN MONETTI, JR.,

Plaintiff,

v.

CITY OF SEATTLE, a municipal

corporation; SHANDY COBANE, an

individual; MARY L. WOOLLUM, an

individual,

Defendants.

No. 2:11-cv-01041-RSM

PLAINTIFF’S MEMORANDUM IN

OPPOSITION TO DEFENDANTS’

MOTION FOR SUMMARY

JUDGMENT AND MOTION TO

STRIKE

(NOTED ON JUNE 13, 2012 AT

1:00 PM FOR ORAL ARGUMENT)

Case 2:11-cv-01041-RSM Document 52 Filed 06/04/12 Page 1 of 28

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, ETC.

2:11-cv-01041-RSM

344337

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TABLE OF CONTENTS

Page

I. INTRODUCTION ....................................................................................................... 1

II. FACTS RELATING TO PLAINTIFF’S CLAIMS ..................................................... 2

A. Facts Set Forth In Defendants’ Motion. ........................................................... 2

B. Additional Facts Provided By Plaintiff. ........................................................... 4

III. EVIDENCE RELIED UPON AND MOTION TO STRIKE ...................................... 7

IV. ARGUMENT ............................................................................................................. 11

A. Summary Judgment Should Be Denied on Plaintiff’s Equal

Protection Discrimination Claim. .................................................................. 11

1. Plaintiff Makes A Prima Facie Case Under The Burden

Shifting Analysis Applicable To § 1981 and § 1983

Discrimination Claims. ...................................................................... 11

2. The Evidence Also Raises Material Issues Of Fact

Rebutting Evidence Offered By Defendants Of Non-

Discriminatory Reasons For The Force Applied. .............................. 13

3. Plaintiff’s Discrimination Claim Is Supported By Other

§ 1983 Precedent In The Ninth Circuit. ............................................. 18

B. Plaintiff’s Provide Materially Disputed Evidence As To The

Individual Defendants’ Assertion Of Qualified Immunity For

the Equal Protection Claim. ........................................................................... 18

C. There Are Material Disputed Issues Of Fact Regarding

Plaintiff’s Fourth Amendment Claim And On The Individual

Defendants’ Entitlement to Qualified Immunity For Such

Claim. ............................................................................................................. 19

1. There Are Disputed Issues of Material Fact Regarding

Plaintiff’s Fourth Amendment Claim. ............................................... 19

D. There Are Disputed Issues Of Fact Regarding Seattle’s

Municipal Liability. ....................................................................................... 23

E. Summary Judgment Should Be Denied As To Plaintiff’s State

Law Claims. ................................................................................................... 24

V. CONCLUSION .......................................................................................................... 24


PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT, ETC. - 1 2:11-cv-01041-RSM 344337

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I. INTRODUCTION

Plaintiff Martin Monetti’s equal protection claim against defendants under 42 U.S.C.

§§ 1981 and 1983 turns on evidence of racial or national origin animus being at least part of

the motivation for defendants’ actions against him. See Serrano v. Francis, 345 F.3d 1071,

1083 (9th

Cir. 2003) which also held that: “racially tinged remarks” made by a decision

maker create “a genuine issue of material fact as to whether [a defendant’s] actions violated

the Equal Protection Clause.” Plaintiff’s evidence shows repeated statements by Seattle

Police reflecting discriminatory animus accompanied by the repeated use of force causing

Mr. Monetti pain, injury, and humiliation. Ninth Circuit law permits the jury to conclude

that the remarks and threats show discriminatory animus and motive and are causally

connected to actions at about the same time.1 This calls for the denial of defendants’ motion

regarding this claim.

Plaintiff’s § 1983 claim based on the Fourth Amendment’s prohibition on excessive

force has different elements than the equal protection claim, e.g., defendants’ motives are

1 For example, the Ninth Circuit held in Cordova v. State Farm Ins. Companies, 124 F.3d 1145, 1149-50 (9

th

Cir. 1997) that “[c]alling someone a ‘dumb Mexican’ is an egregious and bigoted insult, one that constitutes

strong evidence of discriminatory animus on the basis of national origin.” (Emphasis added.) Plaintiff cites at

pages 10-11, 13 and 17 more than a half dozen Ninth Circuit cases to similar effect. Given those holdings, it is

hard to imagine that the Ninth Circuit would hold differently when Ofc. Cobane shouts “I’ll beat the fucking

Mexican piss out of you, homey, you feel me?” just before he pins plaintiff’s hand with his boot also contacting

plaintiff’s head and causing pain and a scar.

Moreover, at page 213 of Ofc. Shandy Cobane’s deposition, attached to the Declaration of Janet L. Rice as

Exhibit A (all exhibit references are attached to the Rice Declaration unless indicated otherwise), he admitted

that there was a departmental culture that tolerated this language:

Q. …. The fact that no one commented to you at the scene about the use of the phrase “fucking

Mexican piss,” does that indicate to you that there is a department culture that tolerates that phrase

being used?

….

A. I would say yes. In the context that it was used, yes.

Similarly, it is hard to imagine, given the existence of cases such as Cordova, that any reasonable police officer

in Seattle in 2010 would not know that this remark was invidious discrimination. See Elliot-Park v. Manglona,

592 F.3d 1003, 1008-9 (9th

Cir. 2010).




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largely irrelevant2 and the analysis depends on the totality of the circumstances including

“the availability of alternative methods of capturing or subduing a suspect.” Smith v. City of

Hemet, 394 F.3d 689 (9th

Cir. 2005) (en banc). Plaintiff’s evidence raises material disputed

issues of fact both as to whether his Fourth Amendment rights were violated and whether the

individual officers are entitled to qualified immunity on this claim. This evidence includes

the expert Declaration of Johnny Gil Jurado which is relevant on these issues under Hemet

and which disputes much of defendants’ evidence. Furthermore, defendants intentionally or

negligently failed to obtain and/or destroyed relevant evidence by not retaining the video

taken by defendant Mary L. Woollum’s in-car camera. Under controlling law including

Ritchie v. United States, 451 F.3d 1019, 1025 (9th

Cir. 2006), this evidence of spoliation,

combined with the other evidence, also calls for denial of summary judgment on this claim.

Defendants’ motion for summary judgment concerning plaintiff’s state law claims also

should be denied since defendants do not meet the state law test for immunity (which differs

from the § 1983 test) and there are material disputed issues of fact regarding those claims.

II. FACTS RELATING TO PLAINTIFF’S CLAIMS

A. Facts Set Forth In Defendants’ Motion.

Defendants’ motion for summary judgment includes Ofc. Shandy Cobane’s3

declaration at ¶¶ 4-7 (Ct.Rec. 26), which establishes that (a) there were more than a dozen

police officers surrounding Mr. Monetti and two other young men, (b) one of the men other

than Mr. Monetti was already in handcuffs when Ofc. Cobane arrived, (c) all three of the

2 As explained in Winterrowd v. Nelson, 480 F.3d 1181 (9

th Cir. 2007):

While we must consider the facts here “without regard to the arresting officer’s subjective motivation

for using force,” Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006), the

officers’ underlying motivations could cast doubt on their version of the incident. This is a matter to

be sorted out by the trier of fact. (Emphasis added.) 3 Defendants refer to Ofc. Cobane as “Det. Cobane”, however, his current title is “Officer”.


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young men were prone on the ground, and (d) Ofc. Cobane believed that all three young men

were Hispanic.4

Defendants’ motion for summary judgment also includes as evidence the video tape

in which defendant Cobane threatens Mr. Monetti: “I’ll beat the fucking Mexican piss out of

you, homey, you feel me?” Def. Mot., p. 5 (Ct.Rec. 24). Plaintiff agrees with the

Department of Justice’s characterization of portions of the videotaped episode and aftermath

contained at page 27 of the Investigation of the Seattle Police Dept., U.S. Dept. of Justice,

Civil Rights Div., U.S. Atty’s Office, Western Dist. Of Washington (Dec. 2011) (“DOJ

Report”) (Ct.Rec. 36-1):

. . . The number of people present, the failure to correct the officer, and the

failure to immediately report the conduct all could be seen as a reflection of a

hardened culture of accepting racially charged language. (Emphasis added.)

Ofc. Cobane agrees at least in part with this DOJ assessment. Cobane Dep., p. 213 (Ex. A).

Furthermore, Sgt. Keith Swank, the Senior Officer at the scene, testified that Ofc. Cobane’s

remarks were not derogatory. Swank Dep., pp. 22-24 (Ex. B).

“Almost immediately” after shouting these offensive and racially charged statements,

Ofc. Cobane pinned plaintiff’s hand to the ground with his booted foot for approximately 20

seconds which also struck plaintiff’s head. Video (Ct.Rec. 39-6); Cobane Dec. ¶¶ 16, 17

(Ct.Rec. 26); May 9, 2012 Jurado Dec., p. 8 (Ct.Rec. 40), Declaration of Martin Monetti, Jr.,

¶ 8. Also, almost immediately after hearing those statements, defendant Woollum not only

did not challenge Ofc. Cobane’s use of that language, but came over to plaintiff lying on the

4 Ofc. Christopher Hairston’s declaration at paragraph 24 states that Mr. Monetti was “detained for 20-30

minutes with multiple officers present.” Ct.Rec. 29. Yet, during those 20-30 minutes, even with all of those

officers present, and even though Ofc. Cobane “believed that the three suspects – Veteta-Contreras, Garcia-

Garcia, and Monetti, may be armed and dangerous,” Mr. Monetti was neither searched for weapons nor

handcuffed. See Cobane Dec., ¶¶ 9, 16-17 (Ct.Rec. 26).




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ground and “forcefully pushed” (Cobane Dec., ¶¶ 20-21 (Ct.Rec. 26)) or “forcibly

stomp[ed]” (May 9, 2012 Jurado Dec., p. 9 (Ct.Rec. 40)), Mr. Monetti’s right leg to the

ground and pinned it there even though his leg was already on the ground.5

B. Additional Facts Provided By Plaintiff.

Det. Robert Sevaaetasi, who was Ofc. Cobane’s partner at the scene, was deposed

regarding the use of force against Mr. Monetti by both Ofc. Woollum and Ofc. DePina not

recorded on the video. At pages 58-59, Det. Sevaaetasi recounts that “Officer Woollum

pushes his head down onto the pavement two or three times.” Ex. C.6 Det. Sevaaetasi also

describes Ofc. DePina putting his knee on Mr. Monetti’s back while plaintiff was on the

ground. Id., at 59-60.

Plaintiff also supplies excerpts of depositions of Officers Woollum, Hairston, Cobane

and Sgt. Swank which show that defendants knew that handcuffing was a reasonably

effective alternative to the use of force, but did not use it on Mr. Monetti although they

5 Plaintiff believes that those events are accurately described at page 9 of the May 9, 2012 Jurado Declaration

(Ct.Rec. 40):

The final unnecessary use of force occurred while the plaintiff was in apparent pain from Officer

Cobane standing on his hand. The video shows plaintiff Monetti twice slowly moved his right foot up

a couple of inches. Officer Woollum is then seen walking over to plaintiff Monetti, and forcibly

stomping on him apparently reacting to his right leg lifting. She then stood on top of him for

approximately 20 seconds. According to Officer Woollum it was merely her intent to put his leg back

on the ground.

It is clear on the video that plaintiff Monetti had returned his leg flat to the ground as Officer

Woollum was still approaching, therefore the force was unnecessary since there was no longer a need

try to control him. (Emphasis added.) 6 It is not clear whether this is the same episode referred to by Ofc. Woollum in her declaration. Ct.Rec. 31,

p. 12. If it is, Det. Sevaaetasi’s description is materially different than that provided by Ofc. Woollum in her

deposition at 88-89 (Ex. D).




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handcuffed the person next to him.7 Plaintiff also supplies a December 3, 2010 letter (Ex. F)

from the Los Angeles Police Department to defendants’ attorneys stating:

By not demonstrating the fundamentals of officer safety and good tactics, the

officer placed themselves, the suspects, and public at undo risk.8

_____________ 8 Had the officers handcuffed Monetti, it is in this reviewers opinion, the force

used by the officers would not have occurred. (Emphasis added.)

Plaintiff also provides evidence of other offensive remarks by police directed at him

during this same encounter. Mr. Monetti recalls that prior to the remarks by Ofc. Cobane

captured on videotape, a police officer told him “You fucking Mexicans are making my job

harder.” Monetti Dec., ¶ 2.8 Moreover, he recalls “being hit several times while I was lying

face down on the ground” and feeling “pressure near the middle of my back that caused me

pain as well as feeling somebody putting pressure on my head and pushing my head down

causing my head to hit the concrete very hard causing me pain and an injury to the left side

of my head.” Id. (emphasis added). Furthermore, having a foot or knee being pressed

strongly against his back ultimately required twelve weeks of chiropractic sessions to

resolve. Id. at ¶ 5.

7 Captain Tag Gleason’s Proposed Disposition for OPA-IS Case 10-0175 (Ex. E) (hereafter “Gleason Report”)

states at page 6:

In their statements, nearly all of the involved officers agree that the outcome of this investigative

detention would have been different had all of the suspects been handcuffed, and not just Mr. Garcia-

Garcia.

. . . .

Sergeant Swank seems to be referring to Department Policy 6.010- Arrest Procedures, implying that

not handcuffing Mr. Monetti could be interpreted as an effort by the officers to skirt the policy’s intent

to have a supervisor screen these types of investigative detentions. (Emphasis added.)

See also May 9, 2012 Jurado Dec. (Ct.Rec. 40); Cobane Dep., p. 74 (Ex. A); Woollum Dep., pp. 44-45, 82

(Ex. D), Hairston Dep., p. 89 (Ex. G), and Swank Dep., p. 96 (Ex. B). 8 The Gleason Report at page 7 admits that “Detective Cobane’s profane outburst to Mr. Monetti that preceded

his use of force could be interpreted as evidence of ill will, contributing to his decision to use force.” Ex. E.




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The reason that much of this additional evidence is not contained on video is because

defendants, particularly Ofc. Woollum, violated Seattle’s policy concerning the use of in-car

video equipment. Notably, Ofc. Woollum parked her police car in a position that was close

to and had direct video and audio access to where these incidents took place. However, in

violation of that Seattle policy,9 she did not activate the video camera until almost the end of

the incident when, while still out of the car, she remotely activated the equipment when she

was giving a “Miranda” warning to another of the three young men. See Woollum Dep.,

p. 115 (Ex. D). Ofc. Woollum obviously was aware that she could have activated the video

earlier, since she did so when it was to her advantage, i.e., to prove that the Miranda warning

was given.10

9 Seattle Police Department Policies & Procedures, Patrol Operations 17.260 – In-Car Video (Apr. 2009)

(Ex. H), states:

POLICY

Sworn Department members assigned a digital in-car video/audio recording system (DICVS) will

make every effort to use it to document all traffic stops, pursuits, vehicle searches and citizen contacts

when occurring within camera range.

. . . 3. Multiple Units at Scene

a. When two or more DICVS units respond to the same incident, all units present

should record the incident.

. . . 4. Citizen Contacts

a. Officers will activate the video equipment, including microphone, prior to making

citizen contacts.

. . . 5. Miranda

a. Whenever practicable the advisement of an individual’s Miranda rights should be

recorded. (Emphasis added.) 10

Plaintiff presents additional evidence permitting a finding of spoliation. Sgt. James Kim testified that the in-

car camera video is running when the car is on and could be retrieved at least in part (whether or not the audio is

on) until the car is used again at the next shift. Kim Dep., pp. 70-72, 74-75, 80 (Ex. I). See also SPD’s

December 2011, Office of Professional Accountability, In-Car Video Review , pp. 4-5 (Ex. J). The video from

Ofc. Woollum’s car would have given a direct view of the scene and she arrived near the beginning. Woollum

In-Car Video (Ex. K). Ofc. Woollum also knew that the events that night had been filmed in part (Woollum

Dep., pp. 88-89 (Ex. D)), was controversial, and knew or should have known that those events might well result

in litigation and/or official review. The Media Relations Office of SPD knew on Saturday, April 17th

of the

video. Swank Dep., pp. 38-39 (Ex. B). Yet, the video is unavailable because neither Ofc. Woollum or anyone

else at SPD made any effort to retrieve or save the video before the car was used again and the video was

overwritten.




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The only reason that there was any videotape evidence of the incident involving

plaintiff was that a journalist videotaped part of the incident beginning about five minutes

after it began. See Kim Rpt., p. 4 (Ct.Rec. 30-1). If Ofc. Woollum had followed police

policy, there would have been a complete video record of the use of force behavior including

the actions that resulted in Mr. Monetti saying “Ow my head,” which is described quite

differently by Ofc. Woollum and Det. Sevaaetasi.11

III. EVIDENCE RELIED UPON AND MOTION TO STRIKE

Plaintiff relies upon the Declaration of Janet L. Rice in Opposition to Defendants’

Motion for Summary Judgment and exhibits attached thereto, Declaration of Martin Monetti,

Jr., Declaration of Robert Flennaugh II, and the May 9, 2012 Declaration of Johnny Gil

Jurado (Ct.Rec. 40), and the May 31, 2012 Declaration of Johnny Gil Jurado.12

While plaintiff is relying on some portions of the Cobane and Woollum declarations,

he objects to and moves to strike paragraphs 27-28 of the Cobane declaration (Ct.Rec. 26),

paragraphs 21-22 of the Woollum declaration (Ct.Rec. 31)13

and paragraph 31 of the

Hairston declaration (Ct.Rec. 29), as well as the Clark Declaration (Ct.Rec. 25), which all

essentially assert that plaintiff participated in the robbery. Those assertions are based on

hearsay in violation of Fed. R. Evid. 801 and are irrelevant under 401. They are based on

hearsay because they are all based on the alleged out-of-court statements of Eliezer Duran.

11

Plaintiff also provides evidence that defendants’ behavior changed markedly immediately after they became

aware that they were being videotaped. Ofc. Woollum testified that after the comment by Ofc. Cobane referred

to above, and the use of force by Cobane and Woollum, Sgt. Swank informed Cobane that they were being

videotaped by a journalist. Woollum Dep., pp. 88:21-89:6 (Ex. D). Very shortly thereafter, Mr. Monetti,

instead of being the victim of further abusive discriminatory comments and stomping, is helped to his feet,

escorted to a police car, and released. 12 The parties have entered into a “Stipulation and Confidentiality Agreement.” Plaintiff has notified defendants

of his intent to use documents designated as confidential by defendants. Ex. L. To date, defendants have not

moved to seal the documents (the evidence offered by plaintiff is similar to evidence used by defendants, which

had also been designated as confidential by defendants). 13

The two paragraphs of the two declarations use identical language.




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They are irrelevant because defendants only became aware of this information after April 17,

2010. These claims are not supposed to be based on “20-20 hindsight.” As Ofc. Woollum

admits at page 126 of her deposition, what defendants knew after the incident in question is

irrelevant. Ex. D. Moreover, these assertions are contradicted by King County Assistant

Prosecuting Attorney Thomás Gahan, who stated that based on a review of the evidence, “I

do not believe that you [Martin Monetti] played a criminal role in the robbery of either

Eliezer Duran or Walter Flores Cruz (the two robbery victims) on the night in question.”

Exhibits A and B to the Declaration of Robert Flennaugh II. Particularly, given the

defendants’ knowledge that their motion to the Court would receive media attention, it is

problematic that they chose to ignore the prosecutor’s determination that Mr. Monetti did not

participate in the crime.14

Plaintiff also objects and moves to strike the opinions in Grant Fredericks’ Report

giving opinions as to what the video shows. Ct.Rec. 28. His opinions violate Fed. R. Evid.

702 and Ninth Circuit cases.15

As in those cases, the court and the jury in this case is capable

of discerning what was in the video and still photographs taken from the video. Moreover,

Mr. Fredericks’ report does not explain why the jury could not understand the videos and

14

Det. Clark’s declaration states that Mr. Monetti did not respond to his interview request, raising the inference

that Mr. Monetti was guilty of the robbery. Ct.Rec. 25. In fact, Det. Clark misrepresented his role in the

investigation of the robbery to Mr. Monetti’s attorney by stating that he was investigating the officers’

misconduct rather than the robbery. Flennaugh II Dec., ¶ 5. Mr. Monetti cooperated with the internal

investigation, but did not respond to Det. Clark’s interview request. Ex. M. 15

Those include U.S. v. Burke, 506 F.2d 1165, 1170 (9th

Cir. 1974) (trial court erred in admitting testimony of

expert interpreting surveillance photos since it was within the capability of jury); U.S. v. Brewer, 783 F.2d 841,

842 (9th

Cir. 1986) (affirming the exclusion of expert testimony concerning identification of surveillance

photographs); and Beech Aircraft Corp. v. U.S., 51 F.3d 834, 842 (9th

Cir. 1995) (question of what could be

heard on tape recorded conversation was within ability of jury).




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stills by themselves or explain why the jury would receive “appreciable help” from the expert

testimony. Little Oil Co., Inc. v. Atlantic Richfield Co., 852 F.2d 441, 446 (9th

Cir. 1988).16

Citing Fed. R. Evid. 803(8) and analogous cases such as Gilbrook v. City of

Westminster, 177 F.3d 839, 858-59 (9th

Cir. 1999); Gentile v. County of Suffolk, 926 F.2d

142, 148 (2d Cir. 1991); and Combs v. Wilkinson, 315 F.3d 548, 554-56 (6th

Cir. 2002),

plaintiff previously explained that the DOJ Report covering excessive use of force and

discriminatory practices and discussing this very incident is admissible against defendants.17

Moreover, pursuant to Fed. R. Evid. 703,18

the same DOJ report was appropriately relied

upon by plaintiff’s expert Mr. Jurado in reaching his opinions such as that “the Seattle Police

Department through its practices, customs and policies violated the constitutional rights of

Monetti” (May 9, 2012 Jurado Dec., p. 10 (Ct.Rec. 40)).

16

Plaintiff does not object to the admission of the still photographs taken from the video, but objects to the

witness’ commentary on what he sees in the stills. This is particularly true because the “Frame by Frame

Analysis” submitted to the Court by Grant Fredericks is not what it purports to be. Ct.Rec. 28-1. In the

deposition of defense expert Sgt. Kim, the plaintiff (and Sgt. Kim) discovered that the “Analysis” does not

actually show a frame by frame progression of the You Tube video as represented. Kim Dep., pp. 113-124

(Ex. I). In fact, at the crucial point of the video where Ofc. Cobane’s foot makes contact with Mr. Monetti’s

head, the same frame of the video is shown three times. Exhibit A to Fredericks Declaration, frames 97-99

(Ct.Rec. 28-1). On Frame 99 of the video, Mr. Fredericks indicates “no head motion,” implying that after

Ofc. Cobane’s foot contacts Mr. Monetti in Frames 97 and 98, there is no movement of Mr. Monetti’s head,

presumably evidence that there was no contact with his head. This is misleading in that Frames 97, 98, and 99

are the same frame, and one sees movement of Mr. Monetti’s head in Frames 100-105. Mr. Fredericks also

purports to point out space between Ofc. Cobane’s boot and Mr. Monetti’s head. Fredericks Dec. (Ct.Rec. 28-

3), p. 12. Sgt. Kim admitted during his deposition that reasonable minds could disagree with his conclusion that

there was no contact between Ofc. Cobane’s boot and Mr. Monetti’s head. Ex. I, pp. 127-129 . In fact, Sgt.

Kim’s opinion that there was no contact is contradicted by Mr. Jurado’s opinion that there was contact.

May 31, 2012 Declaration of Jurado. 17

See Plaintiff’s Response to Defendants’ Motion for Bifurcation, pp. 9-11 (Ct.Rec. 38). 18

Fed. R. Evid. 703 provides that “An expert may base an opinion on facts or data in the case that the expert has

been made aware of or personally observed. If experts in the particular field would reasonably rely on those

kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be

admitted.” See Sphere Drake Ins. PLC v. Trisko, 226 F.3d 951, 954 (8th

Cir. 2000); First Nat. Bank of

Louisville v. Lustig, 96 F.3d 1554, 1575-1576 (11th Cir. 1996); Westfield Ins. Co. v. Harris, 134 F.3d 608, 611-

12 (4th

Cir. 1998); and U.S. v. Rollins, 862 F.2d 1282 (7th

Cir. 1988).




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Defendants previously argued that there were a number of “negative factors that

weigh against the reliability and trustworthiness in the DOJ Report and therefore Fed. R.

Evid. 803(8) does not apply.”19

Defendants’ arguments are factually and legally mistaken as

explained below. Defendants’ first argument was that 42 U.S.C. § 14141 (which was only

one of the three federal statutes relied upon by the DOJ) “is under a ‘reasonable cause’

standard, not the preponderance of the evidence standard under § 1983.” Def. Reply, p. 3

(Ct.Rec. 44). That misstates § 14141 which in subsection (a) prohibits persons acting on

behalf of a governmental authority from engaging “in a pattern or practice of conduct by law

enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or

protected by the Constitution or laws of the United States.” That latter language is similar to

the language in § 1983.20

Defendants also argue that “2) the only articulated support for DOJ’s Report comes

from the subjective opinions of two retired law enforcement officials retained by DOJ as

consultants ….” Def. Reply, p. 3 (Ct.Rec. 44). That is contrary to what the DOJ actually

said. See DOJ Report, pp. 3, 8 (Ct.Rec. 36-1).21

Those same pages also contradict

defendants’ third argument that “use of force must be analyzed under a totality of the

19

See Defendants’ Reply to Bifurcate, pp. 3-4 (Ct.Rec. 44). 20

The “reasonable cause” standard referred to by defendants is the standard for initiating legal action not for

proving it. 21

The DOJ Report at page 3 (Ct.Rec. 36-1) states:

Specifically, with the assistance of our national policing experts, we systematically and thoroughly

examined voluminous documents and records, including hundreds of hours of video footage, a variety

of police reports, policy manuals, and SPD records related to its use of force and policing practices.

This effort included obtaining and analyzing all use of force reports for the approximately two-year

period preceding our review. Moreover, we did not limit ourselves to a document review. We also

conducted multiple site visits and interviewed hundreds of individuals, including community leaders,

individuals alleging SPD officers had violated their constitutional rights, and SPD personnel, including

front-line officers, their immediate supervisors, and command level staff.” See also id., p. 8. (Use

inter alia of randomized, stratified and statistically valid sample of SPD’s own use of force reports.)

(Emphasis added.)




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circumstances analysis, not by a subjective review solely of use of force reports, which is the

methodology used by the DOJ.” Id. Moreover, defendants’ argument ignores the fact that

the use of force reports were authorized by Seattle and were presumably intended to allow

the officer to explain both the facts and the justification for the use of force. That is

confirmed by Sgt. Kim at pages 68-70 of his deposition. Ex. I.

IV. ARGUMENT

A. Summary Judgment Should Be Denied on Plaintiff’s Equal Protection

Discrimination Claim.

1. Plaintiff Makes A Prima Facie Case Under The Burden Shifting Analysis

Applicable To § 1981 and § 1983 Discrimination Claims.

Defendants’ motion at pages 17-18 (Ct.Rec. 24) acknowledges that both § 1981 and

§ 1983 equal protection cases properly call for the burden shifting analysis used, inter alia, in

statutory discrimination cases such as Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977):

In either a § 1981 or § 1983 case, the plaintiff must first establish a prima facie case of disparate treatment. Once the plaintiff establishes a prima facie case that the officer’s conduct was motivated by a discriminatory purpose, the burden then shifts to the defendants to show by undisputed evidence that there was no discriminatory effect, which is established by proof that the officers’ actions would have remained the same even absent the use of race-based language. See Village of Arlington Heights, 429 U.S. at 271 n. 21.

Def. Mot., p. 18:3-15 (underlined emphases added; italics and bold emphasis in original)

(Ct.Rec. 24). Defendants also rely on Keyser v. Sacramento City Unified School Dist., 265

F.3d 741, 754 (9th

Cir. 2001), for the proposition that a discrimination claim turns on whether

the action was “racially motivated” (quoting Federal Deposit Ins. Corp. v. Henderson, 940

F.2d 465, 473 (9th

Cir. 1991).” Def. Mot., p. 17 (Ct.Rec. 24). Defendants then argue that




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“plaintiff must accordingly prove that the officer’s actions [their use of force] were motivated

by racial animus.” Def. Mot., p. 18:21-23 (Ct.Rec. 24).22

Defendants’ arguments ignore settled law holding that a burden shifting analysis

applies both in Title VII and in § 1983 discrimination actions. For example, Keyser, quoting

Henderson, 265 F.2d at 754, held that “summary judgment decisions with regard to § 1983

claims are remarkably similar to their Title VII counterparts.” Moreover, Title VII cases in

the Ninth Circuit under very similar facts to the present case hold that discriminatory motives

can be inferred when a decision maker has called someone a “dumb Mexican”, that such a

statement is direct evidence of “discriminatory animus. . . .” and can create an inference of

discriminatory motive. Cordova, 124 F.3d 1145 at 1149-50.23

The Ninth Circuit has

repeatedly relied on Cordova. For example, in Dominguez-Curry v. Nevada Transp. Dept.,

424 F.3d 10027 (9th

Cir. 2005), the Ninth Circuit citing Cordova held:

. . . [I]n this circuit, we have repeatedly held that a single discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment for the employer. (Emphasis added.)

See also Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1128 (9th

Cir. 2000); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th

Cir. 1990).24

22

In Village of Arlington Heights, 429 U.S. at 271, n. 21, the Supreme Court held that racial animus need only

be part of the motivation not the entire motivation. Similarly, in Serrano v. Francis, supra, 345 F.3d at 1083,

the Court held that “intentional discrimination means that a defendant acted at least in part because of a

plaintiff’s protected status. . . .” quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th

Cir. 1994). 23

In Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1113 (9th

Cir. 1991), the Ninth

Circuit similarly held:

. . . In this instance, the fact that stereotyped remarks were made by Sischo-Nownejad’s superiors at

the same time that they were subjecting her to less favorable working conditions is sufficient to raise

an inference of discriminatory intent. (Underlined emphasis added.) 24

In Godwin, 150 F.3d at 1221, the Ninth Circuit held:

…. When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual

motivation of the employer is created even if the evidence is not substantial. . . . “Direct evidence is

evidence which, if believed, proves the fact [of discriminatory animus] without inference or

presumption.” Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994).


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The evidence here demonstrates a prima facie case of discriminatory motive for

summary judgment purposes.25

As in Cordova, Dominguez-Curry, Sischo-Nownejad, and

Chuang, plaintiff provides evidence of discriminatory animus and motive connected with the

use of force. In perhaps the clearest evidence of such connection, almost immediately after

Ofc. Cobane’s discriminatory remarks,26

he pinned plaintiff’s hand to the ground with his

booted foot for approximately 20 seconds leaving a scar that still exists. See Monetti Dec., ¶

4. Furthermore, at almost the same time Ofc. Woollum, who admits hearing those remarks

(Woollum Dep., p. 86 (Ex. D)), walked over and forcefully pushed or stomped Mr. Monetti’s

right leg to the ground and pinned it there. Moreover, as discussed above, there had been at

least one prior profane and discriminatory statement directed against plaintiff based on his

national origin, i.e., “You fucking Mexicans are making my job harder.” Under the Ninth

Circuit precedent quoted above, this evidence provides a prima facie case particularly for

purposes of summary judgment, which requires this Court to give plaintiff, as the non-

moving party, the benefit of evidence and inferences. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986).

2. The Evidence Also Raises Material Issues Of Fact Rebutting Evidence Offered By Defendants Of Non-Discriminatory Reasons For The Force Applied.

Cordova and Sischo-Nownejad as well as several earlier Ninth Circuit cases held that

25

The fact that Sgt. Swank, the highest ranking officer at the scene saw no discrimination in Ofc. Cobane’s remarks demonstrates the large gap between the Ninth Circuit law and Seattle Police in their understanding of this matter. Swank Dep., pp. 24, 45 (Ex. B). See also Hairston Dep., p. 17 (Ex. G). 26

Not surprisingly, Ofc. Cobane admitted at pages 207-208 of his deposition that he had never read the “policy of the City with respect to unbiased policing.” Moreover, when evaluating Ofc. Cobane’s intent in using the term “homey” was benign, this Court can consider Exhibit E to the Jinhong Declaration, pages 230-231, which is a transcript of recordings during the incident:

Hey, homey, I no have nothing on me. What’s the problem?

Police Officer: Okay. First off, don’t call me homey.

Male Speaker: I know. Sorry

Police Officer: (Inaudible) Fucking homey.

Ct.Rec. 34-5.




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the same evidence of discrimination that supports the prima facie case of disparate treatment

also raises issues of material fact disputing defendants’ evidence of a non-discriminatory

reason for the challenged action. In Cordova, 124 F.3d at 1150, the court held:

. . . “When a plaintiff has established a prima facie inference of disparate

treatment through direct or circumstantial evidence of discriminatory intent,

he will necessarily have raised a genuine issue of material fact with respect to

the legitimacy or bona fides of the employer’s articulated reason for its

employment decision.” Sischo-Nownejad, 934 F.2d at 1111.27

As in Cordova and Sischo-Nownejad and the cases cited therein, the evidence of

discriminatory statements directed at Mr. Monetti before the force directed against him

provides “a genuine issue of material fact regarding whether the defendants’ articulated

reasons are pretextual.” Sischo-Nownejad, 934 F.2d at 1113; see also Lowe v. City of

Monrovia, 775 F.2d 998, 1008 (9th

Cir. 1985).

Substantial additional evidence in the record supports plaintiff’s position that

defendants’ articulated reasons are pretextual. Defendants seem to argue that Mr. Monetti’s

periodic raising of his head from the prone position, moving his arms while in the prone

position, and sometimes raising his legs while in the prone position, justified the force

directed at him. See Def. Mot., pp. 19-20 (Ct.Rec. 24). However, those arguments are

27

In Sischo-Nownejad, 934 F.2d at 1113, the court also held:

The defendants attempt to rebut Sischo-Nownejad's prima facie case of intentional discrimination

by asserting that the challenged actions occurred for nondiscriminatory reasons. They state that

Janssens reassigned some of Sischo-Nownejad’s classes to himself, for instance, simply because he

enjoyed teaching them. As in Lowe, however, the evidence that Sischo-Nownejad introduced to

establish a prima facie case is direct and consists of more than the McDonnell Douglas presumption.

Accordingly, that evidence serves a dual purpose. It is sufficient not only to establish her prima facie

case, but also to create a genuine issue of material fact regarding whether the defendants’ articulated

reasons are pretextual. See Lowe, 775 F.2d at 1008-10.

…. Evidence that is sufficient to create a genuine issue of material fact for purposes of those statutes

[Title VII] also serves to create a genuine issue for purposes of § 1983. See T & S Service Associates,

Inc. v. Crenson, 666 F.2d 722, 724 & n.2 (1st Cir. 1981); Whiting v. Jackson State University, 616 F.2d

116, 121-22 (5th Cir.1980). Therefore, the district court erred when it granted summary judgment on

Sischo-Nownejad’s § 1983 claim. We reverse the district court on this count and remand for a trial on

the merits. (Emphasis added.)


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defeated for summary judgment purposes by the fact that “Detective Cobane and others

testified that had Mr. Monetti been handcuffed, it is likely that no force would have been

necessary, thereby raising the issue as to whether handcuffing was a reasonably effective

alternative to using force.” (Emphasis added.) Gleason Report, p. 7 (Ex. E). Both Ofcs.

Cobane and Woollum agreed with that in their depositions. See Cobane Dep., p. 74 (Ex. A);

Woollum Dep., p. 82 (Ex. D). It would not have been difficult or impracticable for

defendants to handcuff Mr. Monetti particularly because one of the three possible suspects

was previously handcuffed by Ofc. Hairston and there subsequently were many officers

around the three young men. See also Swank Dep., p. 60 (Ex. B).

Other material evidence substantially supporting plaintiff’s position that defendants’

claim of a non-discriminatory basis for their actions is pretextual is that the defendants’

actions towards Mr. Monetti changed markedly upon their becoming aware that their words

and actions were being videotaped. In reviewing the videotape, this Court will observe

Ofc. Cobane’s tone and action towards Mr. Monetti changed after a communication between

him and Sgt. Swank. See also Cobane Dep., p. 112 (Ex. A). According to Ofcs. Hairston

and Swank, Sgt. Swank not only came over to Ofc. Cobane, but informed him of the

videotaping. Hairston Dep., pp. 70-71, 86 (Ex. G); Swank Dep., pp. 83-84 (Ex. B).28

It was

only then that defendants, instead of shouting discriminatory remarks at and stomping on Mr.

Monetti, picked him up, brought him over to a police car, and ultimately let him go. Id. A

jury could very reasonably believe that this marked change in approach upon learning of the

videotaping, is an indication that defendants were unwilling to do “on the record” what they

28

This testimony that Sgt. Swank went to Ofc. Cobane is contrary to Ofc. Cobane’s testimony at page 114 of

his deposition (Ex. A), that he went over to Sgt. Swank.




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thought they were doing in private. That supports plaintiff’s claim of discriminatory animus

as well as pretext.

Pretext can also be found from the City’s efforts to misstate its actual use of force

policy in order to ratify the officers’ actions.29

Under the City’s policy to be “[n]ecessary”

force both of two conditions must be met: (1) no reasonably effective alternative to the use

of force appeared to exist, and (2) the amount of force used must be reasonable to effect the

lawful purpose intended.” Yet, Capt. Gleason’s Report at page 7 (Ex. E) absolved

Ofc. Cobane from violating the use of force policy by reasoning:

Though in hindsight, handcuffing Mr. Monetti might have been a good way to more immediately control the situation and avoid the need to use force, the failure to do so does not appear to create a policy violation on a theory it was an effective alternative that had to be used.

That reasoning is flawed because the policy as written does not depend on the

“reasonably effective alternative to the use of force” being required, i.e., “had to be used”;

rather under the policy reasonably effective alternative simply has to “appear to exist.”30

In

this case, there is substantial evidence that handcuffing Mr. Monetti was a reasonably

effective alternative that appeared to exist to the officers particularly because one was

already handcuffed. Moreover, defendant officers did not need to use “20/20 hindsight” to

29

The City’s use of force policy is set forth at Section 6.240 (Ct.Rec. 39-3), which states:

POLICY

Officers may, in the performance of their official duties, use only the amount of force necessary and

reasonable to effect the lawful purpose intended. When determining the necessity for force and the

amount of force required, officers shall consider known circumstances, including, but not limited to,

the level of threat or resistance presented by the subject, the danger to the a community, and the

seriousness of the crime.

….

I. Definitions

A. Necessary: No reasonably effective alternative to the use of force appeared to exist, and the

amount of force used was reasonable to effect the lawful purpose intended. (Emphasis added.) 30

If the policy had required that no reasonably effective and required alternative to the use of force appeared to

exist, then the City’s interpretation would have been correct. But the words “and required” are nowhere in the

policy.




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determine that handcuffing a suspect virtually eliminates the likelihood of the suspect using a

weapon or of flight since that is obvious from its use.

These same facts also provide substantial evidence rebutting defendants’ argument

that animus based on race or national origin played no part in defendants’ action. Def. Mot.,

pp. 19-20 (Ct.Rec. 24). Defendants argue that it is just an unrelated coincidence that

Ofc. Cobane shouted derogatory threatening language referring to Mexicans just before he

stepped on plaintiff. Cases such as Cordova, Dominguez-Curry, and Sischo-Nownejad held

that a jury may find that the discriminatory statement made around the time of discriminatory

actions is not coincidental, which is consistent with Ninth Circuit § 1983 precedent,

including Freeman v. Arpaio, 125 F.3d 732, 738, n. 6 (9th

Cir. 1997), where the court held:

Although not itself rising to the level of a constitutional violation, prison officials’ use of abusive language directed at an inmate’s religion may be evidence that prison officials acted in an intentionally discriminatory manner. (Emphasis added.)

See also the Ninth Circuit cases cited infra at Subsection 3.

Defendants’ other argument seems to be that because Ofc. Cobane only shouted

derogatory remarks at and stepped on Mr. Monetti not the other two Latino males, that

necessarily means he was not acting in a discriminatory fashion. That argument suffers from

several serious logical and evidentiary flaws. Logically, it cannot be the case that a crime is

not a hate crime or action is not discriminatory because the actor does not act against every

member of the disfavored group he happens across – none of the above cases so hold.

Moreover, it was Cobane who directed the discriminatory language at Mr. Monetti, who

happened to be born in Mexico. One could as easily ask if national origin had nothing to do

with Ofc. Cobane’s actions, why did he introduce national origin into his threat which was




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almost immediately followed up on.31

3. Plaintiff’s Discrimination Claim Is Supported By Other § 1983 Precedent In The Ninth Circuit.

In Price v. Kramer, 200 F.3d 1237, 1251 (9th

Cir. 2000), the Ninth Circuit held that

evidence of racial bias is relevant to explain the use of excessive force as well as to challenge

an officer’s credibility. The Ninth Circuit in Serrano v. Francis, 345 F.3d at 1083, also

explained that “racially tinged remarks” made by a decision maker create “a genuine issue of

material fact as to whether [a defendant’s] actions violated the Equal Protection Clause.”32

Plaintiff’s evidence fits well within this precedent since the evidence of racial or national

origin slurs and remarks described above are relevant both to provide evidence of

discriminatory motivation for the officer’s conduct and to challenge the officer’s credibility.

Moreover, while defendants argue that Cobane’s statements were atypical, Mr. Monetti

provides evidence that a similar statement was directed at him by a police officer minutes

before the remarks captured on the video tape, and he was also taunted by the police.

Monetti Dec., ¶ 2.33

B. Plaintiff’s Provide Materially Disputed Evidence As To The Individual Defendants’ Assertion Of Qualified Immunity For the Equal Protection Claim.

In Elliot-Park v. Manglona, 592 F.3d 1003, 1008-9 (9th

Cir. 2010), the Ninth Circuit

31

Defendants’ analogy is also false. An analogous situation to the instant incident is whether Ofc. Cobane

would have treated a Caucasian suspect, who was in a prone position and moving around, in the same way he

treated Mr. Monetti. A jury could find that Ofc. Cobane would not have, given the fact that Ofc. Cobane used

discriminatory language in conjunction with his use of force against Mr. Monetti. 32

See also Cordero v. Hemet Police Dept., 2011 WL 7005720 (C.D. Cal. 2011), where the Court held:

Officer Vaeoso’s use of ethnic slurs supports the inference that his prior use of force against

Plaintiff was motivated by racial animus. See Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th

Cir. 2002) (holding allegations police officers directed racial slurs at the plaintiff was sufficient to

demonstrate racial animus). (Emphasis added.) 33

Sgt. Kim, defendants’ expert, testified that unless an officer admits to racial animus, a claim of discrimination

cannot be sustained. Kim Dep., pp. 178-180 (Ex. I). Such a test for discrimination is not only inconsistent

with Ninth Circuit law, but would obliterate all such claims. Sgt. Kim would certainly not agree that a crime

can only be proven by a criminal defendant’s confession.


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held that it has been clear since at least 1980 that:

“The constitutional right to be free from such invidious discrimination is so well established and so essential to the preservation of our constitutional order that all public officials must be charged with knowledge of it.” Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980).

34

See also Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Wolff v. McDonnell, 418 U.S. 539,

556 (1974) (Equal Protection Clause protects prisoners from invidious discrimination based

on race). Plaintiff’s evidence supports a finding that these defendants and any reasonable

Seattle police officer must be charged with knowledge that the use of force motivated in part

by animus based on race or national origin was clearly illegal. For example, Det. Sevaaetasi,

who is of Samoan origin, testified that there is no tactical reason for referring to a suspect’s

national origin in talking to that suspect and could be offensive. Sevaaetasi Dep., pp. 73-74,

77-78 (Ex. C). Indeed, the individual defendants’ actions also violated city policy which

(unlike Ofc. Cobane), a reasonable officer would have read. Ct.Rec. 39-4.

C. There Are Material Disputed Issues Of Fact Regarding Plaintiff’s Fourth Amendment Claim And On The Individual Defendants’ Entitlement to Qualified Immunity For Such Claim.

1. There Are Disputed Issues of Material Fact Regarding Plaintiff’s Fourth Amendment Claim.

Plaintiff’s declaration lays out his recollection of the events of April 17, 2010,

involving his being detained by the Seattle Police including statements made to him by the

Seattle Police, what happened to him and the injuries he received.35

For summary judgment

34

Immediately preceding that quote, the Ninth Circuit explained:

The officers argue that Elliott’s equal protection rights weren’t clearly established because she can’t

find a case similar to hers-like a sobriety check and arrest case or a traffic case-where the court found

an equal protection violation. But there doesn't need to be a prior case with materially similar facts in

order for a right to be clearly established. Flores v. Morgan Hill Unified School Dist., 324 F.3d 1130,

1136-37 (9th

Cir. 2003) (“In order to find that the law was clearly established, however, we need not

find a prior case with identical, or even ‘materially similar,’ facts.” (quoting Hope v. Pelzer, 536 U.S.

730, 741, 122 S. Ct. 2508 (2002)). This is especially true in equal protection cases because the non-

discrimination principle is so clear. (Emphasis added.) 35

For unexplained reasons, defendants moved for summary judgment before either deposing plaintiff or even

obtaining interrogatory answers requesting him to lay out the facts in detail as he recalled them.


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purposes, as the non-moving party, plaintiff’s declaration should be accepted as correct even

if it is disputed by declarations submitted by defendants or other witnesses. Liberty Lobby,

477 U.S. at 255. Yet while defendants pay lip service to the rule that “differing facts could

create a material issue of fact in dispute” they claim that such rule does not apply here

“where the use of force was captured on video – a record that belies plaintiff’s version of the

facts.” See Scott v. Harris, 550 U.S. 372, 380-381 (2007). Def. Mot., pp. 11-12

(Ct.Rec. 24).

Defendants’ claim is wrong for at least three reasons. First, as defendants’ own

expert acknowledges, the video to which defendants are referring does not cover the entire

incident or all of the use of force. See, e.g., Kim Rpt., pp. 4-5 (Ct.Rec. 30-1). As such, Scott

is of limited applicability to this case. Secondly, the only reason that the entire episode was

not on video is because defendants, particularly defendant Woollum, violated police policy

on the use of video cameras and was responsible for spoliation of evidence. It would be

unjust and contrary to federal law to permit defendants to benefit from any failure of proof

caused by their own violation of policy or their spoliation. See Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 687-88 (1946) (defendant should not benefit from its “failure to

keep proper records in conformity with his statutory duty”); Kronisch v. U.S., 150 F.3d 112,

128 (2d Cir. 1998); Ritchie v. United States, 451 F.3d at 1025. This is directly relevant to

this summary judgment motion as this Court explained in Loops, LLC v. Phoenix Trading,

Inc., 2010 WL 3041866 (W.D. Wash. 2010):

An adverse inference instruction, “standing alone, is not enough to allow a party who has produced no evidence-or utterly inadequate evidence-in support of a given claim to survive summary judgment.” Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998). However, “at the margin, where the innocent party has produced some (not insubstantial) evidence in support of its claim, the intentional destruction of relevant evidence by the opposing party may push a claim that might not otherwise survive summary judgment over the line.” Id.; see also Ritchie v. United States, 451 F.3d 1019, 1025 (9th Cir. 2006) (citing Kronisch and expressly adopting the Second Circuit’s


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“careful and balanced approach” to weighing the probative value of destroyed documents).

As discussed at pages 5-6, supra, defendant Woollum’s actions violated City policy and

constituted spoliation. See also Byrnie v. Town of Cromwell, Bd. Of Educ., 243 F.3d 93, 109

(2d Cir. 2001) and cases cited therein.

Thirdly, the video that does exist directly supports plaintiff’s version in a number of

respects and is susceptible to different interpretations in other respects. For example,

defendant Cobane acknowledges standing on plaintiff’s hand which is also shown on the

video. Cobane Dec., ¶¶ 17-18 (Ct.Rec. 26).36

As to whether the video shows his foot

contacting plaintiff’s head, even defendants’ expert witness admits that is a matter of

reasonable dispute. Kim Dep., pp. 117-129 (Ex. I).

Plaintiff agrees that the Fourth Amendment excessive force analysis requires

“balancing of the amount of force applied against the need for that force under the

circumstances.” Def. Mot., p. 12 (Ct.Rec. 24). Defendants acknowledge that in addition to

the factors specifically articulated in Graham v. Connor, 490 U.S. 386, 397 (1989), another

relevant factor includes “the availability of less intrusive alternatives to the force employed.”

Bryan v. MacPherson, 630 F.3d 805, 831 (9th

Cir. 2010). Id. at 13. Furthermore, as

explained in Mattos v. Agarano, 661 F.3d 433, 442 (9th

Cir. 2011) (en banc), the most

important factor under Graham is whether the suspect poses an immediate threat to the safety

of the police or other people.

Defendants’ Motion at page 14 (Ct.Rec. 24) sets forth what they claim are “Eleven

discrete facts [which] illuminate why the officers’ safety was at risk because of Monetti’s

behavior.” However, most of those facts are either disputed or have little if anything to do

36

Similarly, while Ofc. Cobane declares that Monetti did not complain he suffered any injury to his hand,

Mr. Monetti’s declaration at ¶ 4 indicates that he still has a scar from where he was stepped on by Ofc. Cobane.




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with issues of the safety of the officers or others at the time of the challenged use of force.

For example, claimed facts 4, 5 and 6 have little if any relevance to officer safety at the time

of the excess force when Mr. Monetti was one of three individuals lying on the ground (one

of whom was handcuffed), surrounded by more than half a dozen police. The claimed facts 9

and 10 were, according to the depositions of the defendants, only observed after the

excessive force had already taken place and Mr. Monetti was brought to his feet. The reality

of the situation as well as the actual degree of risk, if any, to these officers can best be seen in

the videotape that was taken by Judd Morris, which much more shows a prone young man

being shouted at and bullied by police officers than it does a hardened criminal planning to

attack those officers or intending to flee.

It is in this context that the importance of, the “availability of less intrusive

alternatives, to the force employed” becomes apparent. For summary judgment purposes, it

is established that there were more than enough officers and opportunity to handcuff and/or

search Mr. Monetti for weapons and that had he been handcuffed, none of the force would

have been necessary. May 9, 2012 Jurado Dec. (Ct.Rec. 40). This is in some ways the exact

opposite of a case in which a few officers encounter a dangerous and armed individual which

may well call for considerable force. Stepping away from defendants’ overheated rhetoric,

looking at the video itself, Mr. Monetti’s declaration, and the declaration of Mr. Jurado,

there are disputed issues of fact relating to the Graham factors for evaluating excessive force.

As to the force that took place before the journalist began filming (Ofc. Woollum pushing his

head down and Ofc. DePina putting his knee in his back among others), Mr. Monetti’s

declaration also provides disputed material issues of fact. While those disputes could well

have been resolved if defendants had not rendered unavailable the video portion of Ofc.




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Woollum’s in-car camera, it is not plaintiff who properly should bear the cost of defendants’

violation of city policies.

Defendants’ argument for qualified immunity for the excess force claim at page 16 of

their motion, seems to be that

[E]ven if Det. Cobane or Ofc. Woollum made a mistake of fact (about whether Monetti actually presented a threat) or mistake of law (whether their actions were within the hazy border of lawful force) they are still entitled to qualified immunity as their use of force was, as discussed above, objectively reasonable under the Graham factors.

Ct.Rec. 24. That argument proves too much. Plaintiff’s argument is that objectively

defendants’ used excess force because there were effective alternatives to the use of force

and that Mr. Monetti, inter alia, was not a risk to the more than half dozen armed officers

standing around him. Under those circumstances, the use of force would not have been

reasonable which undermines defendants’ argument that they would still be “entitled to

qualified immunity as their use of force was, as discussed above, objectively reasonable

under the Graham factors.”37

D. There Are Disputed Issues Of Fact Regarding Seattle’s Municipal Liability.

Defendants’ only argument against municipal liability, citing City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986) and Palmerin v. City of Riverside, 794 F.2d 1409, 1414-15

(9th

Cir. 1986), is that “as neither officer [Cobane and Woollum] violated Plaintiff’s

37

Ofc. Cobane’s misunderstanding of the right to be free of excessive force appears in the following exchange:

Q. What is your understanding of the constitutional right of a citizen to be free from the use of

excessive force by a police officer?

….

A. To be free and secure in their persons. I mean, if they haven’t done anything wrong, then, you

know, they shouldn’t be – you know, I won’t way “contacted by police,” but handled forcefully by

police.

Q. Anything else?

A. No. That’s it.

Cobane Dep., pp. 27-28 (Ex. A).




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constitutional rights, no Monell claim can exit.” Def. Mot., p. 20 (Ct.Rec. 24). As discussed

above, there are disputed issues of material fact precluding summary judgment in favor of

either officer. Therefore, there is no basis for summary judgment in favor of the City.38

E. Summary Judgment Should Be Denied As To Plaintiff’s State Law Claims.

Under Washington law, battery is a “harmful or offensive contact with a person,

resulting from an act intended to cause the plaintiff or a third person to suffer such a contact,

or apprehension that such a contact is imminent.” McKinney v. City of Tukwila, 103 Wn.

App. 391, 408, 13 P.3d 631 (2000). It is also true that:

Under Washington law, a police officer has qualified immunity if the officer “(1) carries out a statutory duty, (2) according to procedures dictated to him by statute and superiors, and (3) acts reasonably.” Id. at 393. Staats v. Brown, 139 Wn.2d 757, 991 P.2d 615, 627 (2000) (quoting Guffey v. State, 103 Wn.2d 144, 690 P.2d 1163, 1167 (1984)). We have concluded that the officers were properly carrying out a statutory duty according to the procedures dictated by Washington law and police training, and we have concluded that the officers acted reasonably in detaining and arresting Luchtel. Accordingly, the officers were entitled to qualified immunity on the assault-and-battery claim.

Luchtel v. Hagemann, 623 F.3d 975, 984 (9th

Cir. 2010). The facts provided above, present

at least disputed material facts which call for the denial of summary judgment on plaintiff’s

assault and battery claim as well as whether defendants are entitled to immunity under state

law. These facts include defendants’ violation of police policy as well as actions which a

jury could well find to be neither reasonable nor authorized by state law. These same facts

also support plaintiff’s claims relating to outrage (see Brower v. Ackerly, 88 Wn. App. 87,

943 P.2d 1141 (1997)) as well as infliction of emotional harm.

V. CONCLUSION

For the foregoing reasons, defendants’ motion for summary judgment should be

denied.

38

It is important to keep in mind that the City would not be entitled to summary judgment even if the officers were awarded summary judgment based on qualified immunity or an affirmative defense. This is explained in Palmerin, 794 F.2d at 1415. It is also explained in Thomas v. Cook County Sheriff’s Dept., 604 F.3d 293, 304-05 (7

th Cir. 2010) and Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689, 697-98 (New Hampshire

Supreme Ct. 1987). See also Plaintiff’s Response to Defendants’ Motion for Bifurcation, pp. 8-9 (Ct.Rec. 38).


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Phone (206) 622-8000 ● Fax (206) 682-2305

DATED this 4th

day of June, 2012.

s/ M. Lorena González

JANET L. RICE, WSBA #9386

WILLIAM RUTZICK, WSBA #11533

M. LORENA GONZÁLEZ, WSBA #37057

MARTIN S. GARFINKEL, WSBA #20787

Counsel for Plaintiff

SCHROETER, GOLDMARK & BENDER 810 Third Avenue, Suite 500

Seattle, WA 98104

Phone: (206) 622-8000 * Fax: (206) 682-2305

[email protected] * [email protected]

[email protected]


mailto:[email protected]





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CERTIFICATE OF SERVICE

I hereby certify that on June 4, 2012, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which will send notification of such filing to

the following:

Brian G. Maxey, WSBA #33279

Dominique L. Jinhong, WSBA #28293

Seattle City Attorney

600 Fourth Avenue, 4th

Floor

P.O. Box 94769

Seattle, WA 98124

Phone: 684-8200

Fax: 684-8284

[email protected]

[email protected]

Hannah Gilbert

Legal Assistant

SCHROETER GOLDMARK & BENDER

810 Third Avenue, Suite 500

Seattle, WA 98104

Phone: (206) 622-8000

Fax: (206) 682-2305

Email: [email protected]




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