Case 2:11-cv-01041-RSM Document 55

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THE HONORABLE JUDGE RICARDO S. MARTINEZ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ) ) ) Plaintiff, ) ) vs. ) ) CITY OF SEATTLE, a municipal corporation; ) SHANDY COBANE, an individual; MARY L. ) WOOLLUM, an individual, ) ) Defendants. ) ) MARTIN MONETTI, JR.,

No.

2:11-CV-01041-RSM

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT NOTED FOR JUNE 8, 2012 ORAL ARGUMENT JUNE 13, 2012 AT 1:00 P.M.

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11-CV-01041-RSM)

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1

I.

CLARIFICATION OF CLAIMS AT ISSUE

To be clear, there are two discrete constitutional claims at issue: excessive force and equal protection. Plaintiff complicates this case by changing his factual allegations. In his amended complaint (Dkt. 17, 4.6), plaintiff alleges:
While Monetti was prone and being compliant, defendant Cobane used his foot to kick and stomp on Monettis head and hand several times. Defendant Woollum stomped on Monettis lower back with her foot. Defendant Cobane made a number of racist and demeaning comments to Monetti and Garcia during this incident, including You got me? I am going to kick the fucking Mexican piss out of you homey. You feel me?

Plaintiff now offers a declaration setting forth alleged facts that conflict not only with his pleadings but with his prior trial testimony and prior statements to the Office of Professional Accountability (OPA). Because plaintiff is barred from offering conflicting facts as a means of avoiding summary judgment, plaintiffs newest account of what happened should be disregarded. See Kennedy v. Allied Mutual Insurance Co., 952 F.2d 262, 266 (9th Cir. 1991); Nelson v. City of Davis, 571 F.3d 924 (9th Cir. 2009) (a plaintiff is barred from creating a factual dispute with himself for the purpose of defeating summary judgment); Corales v. Flagstar Bank, FSB, 822 F.Supp.2d 1102 (2011) (citing Container Recovery, Inc. v. Shasta Nw., Inc., No. 051749PK, 2007 WL 1724937, at *6 (2007)(sham affidavit rule barring inconsistent statements from establishing question of fact applies to affidavits that contradict a party's prior admission). Plaintiffs rampant contradictions here, not based on new evidence, constitute far more than minor inconsistencies, clarifications, or explanations of his prior testimony. See Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1086 n. 7 (9th Cir. 2002) (quoting Messick v. Horizon Indus. Inc., 62 F.3d 1227, 1231 (9th Cir. 1995)). Mr. Monetti1 now declares a variety of unreported and

inconsistent assaults and additional examples of racial language. While he now claims that he had a

Intending no disrespect, defendants will refer to Mr. Monetti as Monetti hereinafter. PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 1

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new and large scratch (which scarred) near his right wrist that he believes was caused by Cobane, Monetti Decl., 4, he unequivocally denied any injury to his hand when speaking to the OPA. Fitzgerald Decl., Ex. A, Monetti OPA Interview at 16 (Q: And what about injuries to your hand- any injuries to your hand?; A: No.). This newly offered assertion of injury to his hand contradicts his prior allegations and even now he cannot attribute this injury to Cobanes actions. Monetti Decl., 4. This allegation of injury to his hand should be stricken. Also, Monetti now claims that Woollum stomped on his leg. Monetti Decl., 9. But prior to this recent claim, Monetti repeatedly clarified that no officer ever stepped on his leg. Fitzgerald Decl., Ex. A at 6-7 (Was it on your back or on your legs?; My back.). He denied any injuries to his leg. Id. at 17 (What about any actual physical injuries to your leg, other than pain?; My back.; Okay, but nothing on your legs?; No.) Now faced with his own experts declaration (Dkt. 40, Jurado Decl., opining that Woollum stepped on his leg), Monetti concedes that there was no stomp on his back, but claims (upon review of the video alone) pain in his leg that he heretofore has consistently denied. Monetti Decl. 9. Plaintiff also now claims a head injury was caused by incidental contact with Woollums hand prior to the events captured on video, claiming to now recall feeling someone put pressure on my head and pushing my head down causing pain and injury. Importantly, he does not know which officer did so. Monetti Decl., 6. Plaintiff attributes this to Woollum, but this claim was not pled in the complaint and is not properly before this Court. Plaintiff now further complains that he was hit several times by an unknown person, that someone stepped on his hand at least twice (Monetti Decl., 3), and that an unknown person (perhaps, he speculates, non-party Officer DePina, see Opp. at 4) put a knee in his back causing a back injury. These claims cannot be at issue here; a defendant cannot be held liable based on his membership in a group without a showing that his individual participation was unlawful. Chuman v. DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 2
PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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Wright, 76 F.3d 292, 294 (9th Cir.1996). Conclusory allegations cannot suffice; the plaintiff must instead set forth specific facts as to each individual defendant's acts which deprived him of protected rights. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir. 1981). Because plaintiff has failed to offer any evidence as to either defendant for these contacts, those allegations must be dismissed. Plaintiff maintains that Cobanes foot made contact with his head, stating that a boot came towards my face and hit my head, but nowhere does he allege that Cobane intended to make contact with his head. Monetti Decl. While plaintiffs expert opines that (based on review of the video on a more probable than not basis) that it also appears that Officer Cobanes boot made contact with plaintiff Monettis forehead, describing accidental contact with Monettis head. In support of his equal protection allegations, plaintiff now submits that an unidentified person said, You fucking Mexicans are making my job harder (Monetti Decl., 2). He does not, however, attribute this statement to either defendant. Because Monetti cannot impute to these particular officers racist motives simply by conjuring a generalized, largely-unattributed specter of racism Henderson, 940 F.2d at 471, fn. 11, these conclusory allegations cannot suffice. Therefore, the specific alleged uses of force at issue by the named defendants here are: 1) Cobanes foot trap to plaintiffs hand with some level of incidental contact with his head (which did not result in any claimed injury); and 2) Woollums stomp on plaintiffs right calf resulting in no claimed injury); and 3) Woollums pushing of plaintiffs head to the ground causing an abrasion. II. DEFENDANTS MOTION TO STRIKE AND RESPONSE TO PLAINTIFFS

Defendants move to strike the following: 1) Declaration of Johnny Gil Jurado: Jurado gives no foundation for his expertise on racial animus or why his review of the DOJ report would assist a trier of fact). 2) Report of the Department of Justice (document not submitted with the Opp., has DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 3
PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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been stricken by the Court, see Dkts. 36-1, 46, and is not relevant to determination of summary judgment). 3) Tag Gleasons Proposed Disposition for OPA-IS Case 10-0175 (Ex. E) (document is inadmissible hearsay and is a proposed disposition). 4) Declaration and attachments A and B to the Declaration of Robert Flennaugh, III: all statements by Thomas Gahan and Frank Clark, and the opinion of Thomas Gahan in Exhibit A (inadmissible hearsay); 5) Letter from Gregory McKnight, LAPD (Ex. F) (inadmissible hearsay). 6) Allegation of injury to Monettis hand (prior admission). Defendants respond to plaintiffs motion to strike: 1) Statements are supported by the sworn incourt testimony of Elizer Duran, Jinhong Decl., Ex. K, pp. 697, 722, 725-727, 729-730, 750-751, 774 and not hearsay. Evidence regarding complicity in robbery was provided for context (res justae). 2) Opinion of Fredericks will aid because he brings expertise on reflection of light, pixel tracking, understanding of digital compression technology, color measurement/analysis, and digital and analog artifact (error) identification for the sole purpose of ensuring the accurate interpretation of video evidence. 3) Defendants decline to debate the admissibility of the DOJ report in this reply as plaintiff only offers it in support of his Monell claims, which are not at issue here. III. POLICIES AND TACTICS ARE IRRELEVANT TO THIS INQUIRY

Plaintiffs primary theory is that the officers used poor tactics and allegedly violated SPD policies, necessitating what would otherwise be unnecessary force (Opp. at 15, 22; Jurado Decl.), a theory completely unsupported by law. Bad tactics do not violate the constitution. Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002)(plaintiff may not establish a Fourth Amendment violation based merely on bad tactics). Plaintiff cites repeatedly to Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) for the proposition that one factor of the Graham analysis includes the availability of less intrusive alternatives to the force employed. E.g., Opp. at 21. While true, police officers need not avail themselves of the least intrusive means of responding even where DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 4
PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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less intrusive alternatives are available and need only act within [the] range of conduct [that] is reasonable. See Scott v. Henrich, 39 F.3d 912 (9th Cir.1994); Bryan, 630 F.3d 813 (an officer need not employ the least intrusive level of force); Tubar v. Clift, 2008 WL 5142932 (2008). Therefore, plaintiffs argument that the officers could have, or even should have, handcuffed Monetti is immaterial and cannot create a material disputed fact as to whether, applying Graham, where Monetti posed an safety threat to officers, where the crime was serious and violent (two armed robberies), and where Monetti was admittedly non-compliant, the force used was objectively reasonable. Cobane and Woollum gave multiple commands to Monetti to remain still, to keep his hands out to the side, and his head down. Monetti repeatedly pushed his body up as if to flee or fight. Only after Monetti refused to comply with these commands and warnings that the officers made the physical adjustments to Monettis hands and legs that plaintiff now complains of. Moreover, to the extent that plaintiff relies on a failure to handcuff as the gravamen of his claim, his own expert attributes that to non-parties Officer Hairston and Swank not Cobane or Woollum: The brunt of these tactical error falls mainly on the shoulders of Officer Hairston and Sergeant Swank. Jurado Decl, p. 5. But, regardless of an experts report opining that there were optional less intrusive measures, summary judgment for defendant police officers remains appropriate. See Reynolds v. County of San Diego, 84 F.3d 1162, 1169-70 (9th Cir. 1996), revd. on other grounds (police were entitled to summary judgment despite multiple experts reports saying they should have called and waited for back up rather than taking immediate action that resulted in the use of deadly force). [T]he fact that an expert disagrees with the officer's actions does not render the officer's actions unreasonable. Billington, 292 F.3d 1177 (9th Cir. 2002). Finally, there is absolutely no evidence (only speculation) that if Monetti had been handcuffed, he would have been compliant (particularly given his prior behavior and his inebriated state) during DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 5
PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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the actual cuffing and thereafter. It is likely that more force would have occurred if Monetti was similarly non-compliant during felony handcuffing2. Therefore, plaintiffs speculation and 20/20 hindsight analysis of the officers tactics is irrelevant. IV. THERE WAS NO SPOLIATION OF EVIDENCE

Plaintiff claims defendants should not benefit from their failure to keep proper records in conformity with [their] statutory duty. See Opp. at 22 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) (superseded by statute). Plaintiff complains that Woollum did not activate her in-car video system in time to capture the events at issue (in other words, an alleged failure to create a record that the department would then retain). First, there is no statutory duty to capture in-car video. While SPD policy calls for recording, departmental policies do not create a legal duty to act. See Melville v. State, 115 Wn.2d 34, 40, 793 P.2d 952 (1992) (distinction between regulations [and statutes] having the force of law and policy manuals or recommended procedures which lack the force of law.); Galapo v. City of New York, 95 N.Y.2d 568, 574-75 (2000) ([T]he Patrol Guide is an internal manual[]containing thousands of rules, procedures, and policies adopted by the Police Commissioner for the governance, discipline, administration and guidance of the Police Department. It is not a body of law, nor regulation establishing clear legal duties that should serve as a basis for civil liability.). Second, Plaintiff cannot meet his burden because 1) there was no evidence destroyed, only evidence not created3 and plaintiff cannot show a duty to maintain the evidence; 2) there is no

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Additionally, handcuffing a suspect during a Terry stop is a higher level of Fourth Amendment intrusion itself. All cases cited by plaintiff involve the intentional destruction of video, not the alleged failure to create video. See Kronisch v. U.S., 150 F.3d 112, 128 (2d Cir. 1998); Ritchie v. United States, 451 F.3d 1019, 1025 (9th Cir. 1996). Failure to create video is not spoliation. See Amine v. King, 09-13454, 2011 WL 4387229, at *1 (E.D. Mich. Sept. 21, 2011)(there is no evidence to suggest that the purportedly destroyed evidence ever existed, such an inference would be wholly inappropriate.); Duran v. Town of Cicero, Ill., 653 F.3d 632 (7th Cir. 2011)(no spoliation claim based on evidence not yet in existence). Plaintiff also claims that spoliation occurred because all in-car video from a shift is available whether the officer activates the system, but must be retrieved prior to the next shift. Opp. at 6. (citing to Sgt.
3

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 6

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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evidence of a culpable state of mind by any defendant; and 3) what Officer Woollums in-car video might have captured is purely speculative. See Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 509 (D.Md.2009); Surowiec v. Capital Title Agency, Inc., 790 F.Supp.2d 997 (D.Ariz.,2011). Additionally, plaintiffs harm that he does not have a video recording of the entire incident is misplaced because there is a recording of almost the entire event4. Plaintiff cites the declaration of Sgt. Kim as evidence that the video does not cover the whole time period. Opp. at 20 (citing Dkt. 30-1, Kim Rpt. pp. 4-5). In his report, Sgt. Kim specifies that the video captures all but the first three minutes and 20 seconds of the incident, but that the audio recording5 by DeLaFuente captures all but the first twelve seconds. Id. V. THERE WAS NO EXCESSIVE FORCE

In opposition to summary judgment, plaintiff states:

Plaintiffs 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. (Opp. at 23)

As discussed above, the effective alternatives argument is meritless. Therefore, plaintiffs sole remaining argument is that he did not present a risk to officer safety. Plaintiffs own expert recognizes that there was valid officer safety concern presented by Monetti at this scene. (Jurado Decl. at p. 4)(by leaving Monetti prone, unsearched, the officers needlessly created an officer safety concern.) Monetti admits that he was moving his hand (Monetti Decl., 8) and that he was moving while on the ground (Id., 10, I realize I was moving around some while I was on the ground.) As stated in great detail in defendants motion, Monetti repeatedly disobeyed commands to stop moving, stay on the ground, and keep his hands still. Monetti does not dispute this and
James Kim)(objection on record to examination of defendants use of force expert on in-car video issues, which they renew now). Id. n10; Jinhong Reply Decl., Att. D, Kim Dep at 73. 4 Defendants would benefit the most if there was additional available video. 5 Absent from the audio are any additional racial comments plaintiff alleges. Jinhong Decl., Ex. G, p. 6-13 (#7407)

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 7

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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concedes that Mr. Monettis periodic[ally] rais[ed] [] his head from the prone position, mov[ed] his
arms while in the prone position, and sometimes rais[ed] his legs while in the prone position . Opp. at

14.

Plaintiff offers no rebuttal to defendants argument that this was an armed robbery

investigation and therefore the crime in question was serious. Overall, [n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. Graham, 490 U.S. at 396 (citations omitted). Objectively, and based on the video and available evidence, the use of force in this case was minimally intrusive and does not rise to a constitutional level. Under the totality of the circumstances, defendants are qualifiedly immune. Moreover, plaintiff offers no evidence, or even the allegation, that Cobanes alleged incidental contact was intentional. While Cobane has maintained that he did not kick plaintiffs head and was executing a foot trap, assuming, arguendo, that contact did occur, it was incidental to the foot trap and unintentional. As such, the claim must be dismissed. See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (negligent or accidental conduct is not a Fourth Amendment violation). Jurado opines that [i]n an internal investigation several months after this incident, Officer Woollum stated she placed her hand on the back of plaintiff Monettis head, pushed it to the ground and may have caused his head to strike the pavement. Jurado Decl. at 7. Jurado recognizes that his opinions are valid only [i]f Officer Woollums account [as recounted by him in his declaration] is true. Id. Officer Woollum has consistently maintained that she placed her hand out, Mr. Monetti raised himself up into her hand, and that her hand made contact with his back (or possibly head). Fitzgerald Decl., Attachment B, OPA Testimony of Woollum at 7-8. As such, the opinion of Jurado has no bearing on plaintiffs unpled claim that Woollum caused the head abrasion. Finally, Plaintiff is completely silent as to the second prong of qualified immunity addressing whether the law was clearly established. As noted in Defendants motion, all existing case law DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 8
PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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supports the conclusion that low-level compliance techniques would be lawful under the present circumstances. Plaintiff offers nothing to rebut this assertion and identifies no case law that would put the officers on notice that their actions in this circumstance were clearly unlawful. The officers are entitled to qualified immunity on the second prong as a matter of law as well. VI. EQUAL PROTECTION IS DIFFERENT FROM TITLE VII

Suits brought pursuant to 1983 are analytically distinct from claims brought pursuant to Title VII, similar only in that both can utilize a burden shifting analysis. This court should decline to adopt the Title VII employment discrimination analysis plaintiff urges and follow the analysis required with respect to equal protection. See FDIC v. Henderson, 940 F.2d 465, 471-72 (9th Cir. 1991). (Courts are not bound by the formal Title VII disparate treatment burden shifting framework when trying 1983 claims.) Plaintiff cites to Cordova and Sischo-Nownejad for the proposition that 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. Opp. at 13. Sischo-Nownejad has been statutorily overruled insofar as the decision predated Congress's 1991 Civil Rights Act Amendments to Title VII.6 In contrast to the Title VII plaintiffs lesser burden, a plaintiff in a 1983 claim cannot simply rely on the allegation that the police acted with some discriminatory motivation. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 473 (9th Cir. 1991) ( 1983 claims differ from those brought

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1991 Civil Rights Act Amendments expressly overruled the basic premise that an employer could escape liability under Title VII if it proved it would have made the same decision even absent discriminatory animus as created by the Supreme Court's holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See 42 U.S.C. 2000e-5(g)(2)(B); Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1041-42 (9th Cir, 2005), citing Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002), aff'd, 539 U.S. 90 (2003) .

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 9

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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pursuant to Title VII.)7 Specifically, under a 1983 equal protection claim, a plaintiff must prove that the defendant acted in a discriminatory manner and that the discrimination was intentional and the but for reason for the disparate treatment. See Tanner v. Heise, 879 F.2d 572, 580 n. 5 (9th Cir. 1989); Stones v. Los Angeles Comm. College Dist., 796 F.2d 270, 275 (9th Cir.1986); Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir. 1985), as amended, 784 F.2d 1407 (1986). Here, plaintiff fails to make out even a prima facie case of discrimination against Woollum. Plaintiff admits that Woollum never made any comment to him that could serve as remote indicia of racial animus toward him or any other protected class of persons. He claims that because Woollum stomped on his lower right leg almost immediately after hearing Cobane make a racial comment, she must be guilty by association, but this claim cannot stand. Chuman v. Wright, 76 F.3d 292, 294 (9th Cir.1996). Nor can Monetti impute Cobanes allegedly racist motives to Woollum by simply by conjuring a generalized, largely-unattributed specter of racism. Henderson, 940 F.2d at 471, fn. 11. To avoid summary judgment, Monetti must produce evidence sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence that [Woollums actions] w[ere] racially motivated. Bingham v. City of Manhattan Beach, 329 F.3d 723, 732 (9th Cir. 2003). Plaintiff cannot meet his burden and his claims against Woollum fail. Additionally, Cobanes use of the entire phrase Keep your fucking head on the ground. Dont
you start. You got me? Ill beat the fucking Mexican piss out of you, homey. You feel me? Fucking hands You got it? Id.; Jinhong Decl., Ex. G, F. was intended as a control tactic, not to offend. Other than the inclusion of the single word Mexican (none of the rest of the phrase has any constitutional implications), plaintiff has absolutely no evidence of racial animus.

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There, a plaintiff generally must satisfy the four-pronged test established in McDonnell Douglas Corp. v. Green, and even that test, however, is less than rigid. Id. n. 13; see also Lowe, 775 F.2d at 1006 (a [Title VII] plaintiff can establish a prima facie case of disparate treatment without satisfying the McDonnell Douglas test).

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 10

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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VII.

PLAINTIFFS PRETEXT ARGUMENT FAILS

Plaintiff first repeats his criticisms of officer tactics as a sign that the use of force was not necessary and therefore valid officer safety concerns were pretextual. Opp. at 15. Again, disputed tactics do not serve as a basis for a constitutional violation. Similarly, a policy determination by OPA after the fact by investigators outside the control of the defendants does not demonstrate pretext. Such an argument is absurd. Id. at 16. Finally, plaintiff notes that shortly after the officers became aware of the presence of a cameraman, the officers brought plaintiff and the other suspects to their feet. Describing this as a change in mood, plaintiff speculates that the officers actions at this point suggest the officers stated reasons for keeping the suspects prone were pretextual. Without more, this immaterial speculation cannot defeat summary judgment. Additionally, all evidence is to the contrary: 1) none of the officers attribute their decision to bring Monetti to his feet to a concern that the encounter was being video recorded; 2) Cobane and Swank testified that the only reason Monetti was brought to his feet was because he was not getting it. See Cobane Decl. 23; Jinhong Reply Decl., Att. A, Cobane Dep., p. 112; Jinhong Reply Decl., Att. B, Swank Dep., pp. 59, 80-81 (noting as well that videographers often respond to crime scenes); 3) the undisputed fact that Monetti ignored all simple commands to remain still caused Cobane concern that the situation may get out of hand due to Monettis failure to cooperate. Cobane Decl. 23; Cobane Dep., p. 105; Swank Dep., p. 59. 4) All officers were already aware that SPD had an In Car Video policy that required them to record public contacts and that video and/or audio recording was likely. 5) More directly, Woollum specifically testified that the mood did not change after seeing the cameraman. Jinhong Reply Decl., Att. C, Woollum Dep., p. 89. Plaintiff has no evidence, other than speculation, that the mood changed, that if it did it was caused by the presence of the cameraman, or that even if all true, that such an allegation could be a pretext to defeat the but for DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 11
PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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causation required under the Equal Protection Clause. As such, there is no evidence that either defendant violated Monettis rights and, at the very least, both defendants are entitled to qualified immunity as not every officer would know that the inclusion of the single word Mexican into a control tactic would render a lawful and minimal use of force constitutionally deficient. VII. MONELL CLAIM

Plaintiff cites to the Department of Justices December 16, 2011, report in their response. See Opp. at 3. Plaintiff argues that Mr. Jurado properly relied on the DOJ report relates solely to plaintiffs Monell claims, which are not the subject of defendants motion. Id. at 11-13. Moreover, the DOJ report specifically did not result in a finding of a pattern and practice of the City of Seattle regarding biased policing.8 The reports broad assertion that the officers response to Cobanes language could be seen as a reflection of a hardened culture is so vague and non-committal that it is not evidence at all, much less evidence 9 that relates to the claims at issue here. VIII. STATE LAW TORT CLAIMS The claims brought under state law in this matter are assault and battery, outrage and negligent infliction of emotional distress, and general negligence. Plaintiff argues only that the officers are not entitled to state qualified immunity and is otherwise silent as to the reasonableness of the officers actions. Plaintiffs offer no response whatsoever to defendants substantive arguments regarding outrage and negligent infliction of emotional distress, and general negligence, and those claims must therefore be dismissed as unopposed on summary judgment. IX. CONCLUSION

Based on the foregoing, defendants respectfully request dismissal of all of claims.

8

Contrary to the statements in the DOJ report, Sgt. Keith Swank (Swank Dep., p. 87-88) and Shandy Cobane (Cobane Dep., p. 109) testified that there was an on-scene supervisory correction concerning the use of language. 9 If there is any evidentiary value to the DOJ report, which defendants deny, it would be to refute plaintiffs Monell claim regarding a policy and custom of discriminatory policing.

DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 12

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200

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DATED this 8th day of June, 2012. PETER S. HOLMES Seattle City Attorney By: s/Dominique L. Jinhong Dominique L. Jinhong, WSBA #28293 Brian G. Maxey, WSBA #33279 Seattle City Attorneys Office 600 4th Avenue, 4th floor P.O. Box 94769 Seattle, WA 98124-4769 Phone Dominique Jinhong: 206-684-8251 FAX: 206-684-8284 Email: dominique.jinhong@seattle.gov Attorneys for Defendants City of Seattle, Det. Cobane and Ofc. Woollum

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DEFENDANTS REPLY IN SUPPORT OF SUMMARY JUDGMENT (11CV-01041-RSM) - 13

PETER S. HOLMES
Seattle City Attorney 600 Fourth Avenue, 4th Floor P.O. Box 94769 Seattle, WA 98124-4769 (206) 684-8200