Akins et al v. Robb et al, No. 2:2019cv00363 - Document 133 (E.D. Wash. 2020)
Court Description: ORDER GRANTING SPOKANE CITY DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE - denying as moot ECF No. 71 Defendant Robb and Everette's Motion for Summary Judgment; denying as moot ECF No. 125 Plaintif f's Motion to Dismiss; denying as moot ECF No. 130 Plaintiff's Motion to Appoint Counsel; granting in part ECF No. 75 the City of Spokane Defendants' Motion for Summary Judgment. FILE CLOSED. Signed by Chief Judge Stanley A Bastian. (TR, Case Administrator) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)
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Akins et al v. Robb et al Doc. 133 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2260 Page 1 of 20 1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Jul 30, 2020 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 8 9 JACKIE AKINS SR., CASSANDRA 10 AKINS, and JACKIE AKINS JR., 11 Plaintiffs, 12 v. NO. 2:19-CV-00363-SAB 13 BRYAN ROBB, KRISHANA 14 EVERETTE, RAUFU EVERETTE, ORDER GRANTING SPOKANE 15 SUMMER ABRAHAMSON, SPOKANE CITY DEFENDANTS’ MOTION 16 POLICE DETECTIVE GREGORY FOR SUMMARY JUDGMENT; 17 LEBSOCK, SPOKANE POLICE DISMISSING STATE CLAIMS 18 OFFICER D. BETTS, SPOKANE WITHOUT PREJUDICE 19 POLICE OFFICER J.C. ANDERSON, 20 CITY OF SPOKANE, SPOKANE 21 POLICE OFFICERS DOES 1-30, 22 Defendants. 23 24 Before the Court are the City of Spokane Defendants’ Motion for Summary 25 Judgment, ECF No. 75; Defendants Bryant Robb and Krishana Everette’s Motion 26 for Summary Judgment, ECF No. 71; Plaintiffs’ Motion to Dismiss, ECF No. 125; 27 and Plaintiffs’ Motion to Appoint Counsel, ECF No. 130. Plaintiffs are 28 representing themselves in this matter. The City of Spokane Defendants’ are ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 1 Dockets.Justia.com Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2261 Page 2 of 20 1 represented by Salvatore Faggiano and Nathaniel Odle. The Robb/Everette 2 Defendants are represented by J. Scott Miller. The Court has reviewed the 3 briefings and concluded that oral argument is not warranted. See LR7(3)(B)(iii). 4 Motion Standard 5 Summary judgment is appropriate “if the movant shows that there is no 6 genuine dispute as to any material fact and the movant is entitled to judgment as a 7 matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue for trial unless 8 there is sufficient evidence favoring the non-moving party for a jury to return a 9 verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 10 (1986). The moving party has the initial burden of showing the absence of a 11 genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 12 If the moving party meets its initial burden, the non-moving party must go beyond 13 the pleadings and “set forth specific facts showing that there is a genuine issue for 14 trial.” Anderson, 477 U.S. at 248. 15 In addition to showing there are no questions of material fact, the moving 16 party must also show it is entitled to judgment as a matter of law. Smith v. Univ. of 17 Wash. Law Sch., 233 F.3d 1188, 1193 (9th Cir. 2000). The moving party is entitled 18 to judgment as a matter of law when the non-moving party fails to make a 19 sufficient showing on an essential element of a claim on which the non-moving 20 party has the burden of proof. Celotex, 477 U.S. at 323. The non-moving party 21 cannot rely on conclusory allegations alone to create an issue of material fact. 22 Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993). 23 When considering a motion for summary judgment, a court may neither 24 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant 25 is to be believed, and all justifiable inferences are to be drawn in his favor.” 26 Anderson, 477 U.S. at 255. 27 // 28 // ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 2 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2262 Page 3 of 20 1 Facts 2 On October 27, 2016, around 2 p.m., Spokane Police Officer Mathew 3 responded to a call at 3407 W. Wellesley, which is where Defendants Bryan Robb 4 and Krishana Everette live. Defendant Robb reported he found a bullet hole in his 5 vehicle. Officer Matthew recovered a bullet from the inside the vehicle. 6 Defendants Robb and Everette believed the shooting took place at approximately 7 1:45 a.m. earlier that day. They reported they had been having problems with their 8 neighbors to the east. Police radio advised there was a report of several shots fired 9 in this area around 1:33 a.m. on October 27, 2016. 10 Based on the location of the bullet hole, Officer Matthew concluded it was 11 most likely fired from the east and the residence immediately east was Plaintiffs’ 12 residence at 3401 W. Wellesley. Because there was no conclusive evidence who 13 fired the shots, no arrests were made. 14 The next day on October 28, 2020, a 911 call was made on 11:05 p.m. in 15 response to a conflict between two neighbors. It was reported that multiple shots 16 were fired. The caller indicated that the shooter lived at 3401 W. Wellesley, 17 Plaintiffs’ residence. The caller lived at 3407 W. Wellesley. When officers arrived, 18 Plaintiff Jackie Akins, Sr. was in his front yard at 3401 W. Wellesley. Plaintiff 19 Akins, Sr. was detained. He maintains the officers pointed guns at him. The 20 officers dispute this. 21 Defendant Officer D. Betts handcuffed Plaintiff Akins, Sr., patted him down 22 for weapons and placed him in the back of the police car. He was given a Miranda 23 warning. After about an hour passed, Officer Betts removed the handcuffs but 24 Plaintiff Akins, Sr. remained in the patrol car. 25 Plaintiff Akins, Sr. waived his right to be silent and told officers that he had 26 driven his car west in the alley behind his house. There was a group of people in 27 the alley blocking his path. The group was associated with his neighbors’ house, 28 3407 W. Wellesley. After “exchanging words” with the group, Plaintiff continued ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 3 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2263 Page 4 of 20 1 through the alley, circled the block and parked in the alley behind his house. He 2 went inside, then heard gunshots. He came outside to look around and was then 3 contacted by the officers. He told the officers that he was a convicted felon who 4 was not allowed to possess firearms. 5 Plaintiff Akins Sr. gave consent for the officers to enter his home to search 6 for anyone injured from the shooting. The officers ordered the occupants out of the 7 house and cleared it. While doing so, they located a spent shell casing near the 8 exterior stairwell to the basement of the house. 9 Plaintiff Jackie Akins Jr. was 19 years old at the time. He was interviewed 10 by Officer LeQuire. He stated he was in his bedroom when he heard about seven 11 gunshots. One of the bullets went through his bedroom window while he was still 12 in his room. He had no other information, except he was aware the neighbors at 13 3407 W. Wellesley previously had their vehicle shot. 14 Plaintiff Cassandra Akins is Plaintiff Jackie Akins, Jr.’s mother. She lived at 15 the residence. She was also interviewed by Officer LeQuire. She was in her 16 bedroom and heard three gunshots that sounded like they were right next to her 17 window. She told officers that she did not believe there were any firearms in the 18 house. 19 Defendant Krishana Everette told Officer J. Arredondo that Plaintiff Akins, 20 Sr. drove his car from the area behind his house, down the alley behind her house 21 and stopped his car. When he stopped the car, Defendant Everett saw him with a 22 handgun. He then continued through the alley, drove around the block, and pulled 23 back into the area behind his house and parked his vehicle. Plaintiff Akins, Sr. then 24 began shooting at the group. In response, Defendant Everette got a 9 mm Glock 25 handgun and fired it about five or six times, straight up in the air. Plaintiff Adkins, 26 Sr. then began to shoot at her house again. Six silver-colored 9 mm cartridges were 27 found in the alley behind Ms. Everette’s house. 28 Defendant Everette was placed under arrest for assault, based on her ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 4 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2264 Page 5 of 20 1 admission to firing the gun and because officers found bullet holes in blue tarp that 2 separated the residence. The bullet holes indicated that shots were fired from 3 Defendant Everette’s residence. She was booked into jail. However, Officer 4 Arredondo believed that Everette was possibility covering for her husband, 5 Defendant Bryan Robb because she told Officer Arredondo to tell her husband she 6 wanted a divorce. Also, the physical evidence contradicted her statement that she 7 fired the gun in the air. 8 Defendant Sunny Abrahamson is Defendant Krishana Everette’s sister. She 9 was interviewed by Officer Brown. She was outside in the alley behind the house 10 when Plaintiff Akins Sr. drove by. His passenger window was down. Defendant 11 Abrahamson walked up to the side of the car and asked him, “what’s the 12 problem?” She looked in the car and saw a black handgun. She ran inside and told 13 the children, who were in the house, to go downstairs. She then heard multiple 14 gunshots. 15 Defendant Raufu Everette stated he was visiting his sister, Defendant 16 Krishana Everette and her husband, Defendant Robb. He was on the back patio 17 when he heard two gun shots. He ran inside and heard more gun shots. 18 Janey Phea was in the basement. She is Raufu Everette’s girlfriend. She was 19 interviewed by Officer Brown. She heard the gunshots but did not see anything. 20 Defendant Bryan Robb told officers he was in the alley when Plaintiff 21 Akins, Sr. drove up. He asked Akins Sr. if he had heard the gun shots from the 22 other night and Akins, Sr. replied something to the effect of “maybe I do.” Robb 23 indicated he could see that Plaintiff Akins Sr. was holding a gun with his right 24 hand. Robb said he then ran into the house, and then he heard gunfire. Robb denied 25 shooting and said that at least a dozen gunshots were fired. When asked, he stated 26 that apparently his wife shot the gun. Then everyone went inside and Defendant 27 Everette called the police. 28 Defendant Robb indicated he was a convicted felon, but he did not possess ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 5 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2265 Page 6 of 20 1 any firearms. He denied having a DVR in his house and he said there was no 2 recording hard drive for his surveillance system. He explained that the security 3 system “box” got “burned out” and the cameras loaded everything to the cloud. He 4 gave the officers the password to his security system. 5 The officers collected the six 9 mm cartridge case found in the alley behind 6 3407 W. Wellesley. They concluded that shots were filed from the Robb/Everette 7 house and a gunshot or shots were filed from Plaintiffs’ residence as well. 8 Defendant Officer Gregory Lebsock showed up to the scene around 2:00 9 a.m. He started his investigation by looking at the residences. He contacted 10 Defendant Robb about getting footage from the surveillance cameras. Robb said it 11 was not available. Defendant Lebsock seized Robb and Everette’s cell phones as 12 evidence. 13 Defendant Lebsock then instructed the officers to release Plaintiff Akins, Sr. 14 This may have been around 3:30 a.m. Plaintiff was not allowed to return to his 15 house as the officers were preparing a search warrant to search the house. Officer 16 LeQuire drove Plaintiffs to another residence so they could stay there instead. 17 Around 1 p.m. on October 28, 2016, Defendant Lebsock ran a criminal 18 history check on Plaintiff Akins, Sr. that showed he had criminal history in 19 California, South Dakota, Montana, and Washington. The record from Montana 20 indicated he served a federal prison term for five years around 2005. This was a 21 drug-related conviction. It showed he was also convicted in California for Robbery 22 in 1989. 23 Defendant Lebsock then drafted affidavits and applied for search warrants to 24 search Plaintiffs’ residence (3401 W. Wellesley) and the Robb/Everette residence 25 (3407 W. Wellesley). Spokane County Superior Court Judge Michael Price signed 26 the warrants at 6 a.m. on October 29, 2016. 27 The search warrant for Plaintiffs’ residence was executed at 8 a.m. During 28 the search, Defendant Lebsock located a Nike shoebox that contained a 9 mm ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 6 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2266 Page 7 of 20 1 Jimenez semiautomatic handgun, with cartridges in the magazine and one in the 2 chamber, two Glock .45 caliber magazine, one of which had the capacity for 26 3 cartridges and was full, and the other that contained no cartridges, seven 9 mm 4 cartridges, three plastic ammunition containers, and a black nylon bag containing 5 five 9 mm cartridge cases. Defendant Lebsock located three more 9 mm shell 6 casings in the rear exterior stairwell. He also located areas in Plaintiffs’ house 7 where there were apparent bullet strikes. 8 Defendant Robb was then interviewed at the police station around 11:00 9 a.m. He said that he saw Defendant holding a handgun. Robb stated that Defendant 10 Abrahamson shouted, “he’s got a gun” and Robb and Abrahamson ran into the 11 house. Thereafter, he heard gunfire. He denied possessing or firing a gun, but 12 disclosed he was a convicted felon prohibited from possessing firearms. He said he 13 was convicted of Child Rape and is a registered sex offender. He again said the 14 surveillance footage was only available on the “cloud.” 15 Defendant Lebsock explained to Defendant Robb that he was going to 16 execute the search warrant regarding the video surveillance system. Defendant 17 Robb was returned to his house by Officer Gately. 18 While he was in the back of Officer Gately’s car, Defendant Robb indicated 19 he wanted to speak with Defendant Lebsock again. He then confessed to 20 Defendant Lebsock that the DVR box was downstairs and footage from his 21 surveillance camera would show him, not Ms. Everette, firing the Glock in the air 22 the night before. He said the DVR from the surveillance system was hidden in his 23 furnace and a handgun possessed by Raufu Everette was hidden next to it. He was 24 placed under arrest. 25 Officers executed the search warrant at the Robb/Everette house. They found 26 a hard drive, along with a handgun and box of ammunition. As soon as the found 27 the gun, they backed out of the house while patrol kept the scene secure. Officer 28 Lebsock then prepared a third search warrant requesting authorization to seize the ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 7 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2267 Page 8 of 20 1 handgun and ammunition from the furnace, as well as any other firearms and 2 ammunition located at the residence. 3 Detective Geren executed the third search warrant. Along with the handgun 4 and box of ammunition in the furnace, he found multiple handguns and rifle 5 ammunition at the residence. 6 In his Statement of Investigating Officer Affidavit of Facts, Defendant 7 Lebsock concluded there was probable cause to pursue charges against Defendant 8 Robb for two counts of First-Degree Assault based on the evidence that Plaintiffs 9 were in their house when Robb fired multiple rounds into the house, and probable 10 cause to pursue charges against Robb for two counts of First-Degree Unlawful 11 Possession of a Firearm. 12 A few days later, on November 3, 2016, Defendant Lebsock viewed the 13 footage from the Robb/Everette surveillance cameras. The footage showed that at 14 approximately 11:00 p.m. on October 26, 2016, Defendants Robb, Raufu Everette, 15 and Summer Abrahamson were standing in the alley behind the Robb/Everette 16 house, when Plaintiff Akins Sr.’s car approached. After approximately 20 seconds, 17 Plaintiff Akins, Sr. drove off and Defendant Abrahamson began to point excitedly 18 toward the car. It appeared to Defendant Lebsock that Defendant Abrahamson saw 19 the gun as she alleged and was reacting to it. 20 Thereafter, Defendants Robb and Raufu Everette emerged from the back of 21 the house into the view of the cameras and both were holding handguns. Defendant 22 Robb then fired at least four shots into the air. Defendant Raufu Everette pointed 23 his gun toward the Akins’ house and fired multiple shots. It did not appear that 24 shots were being fired at them. 25 Because of the tarp across the fence between the two houses and the canting 26 of the security cameras there was no footage of what transpired on Plaintiffs’ 27 property. 28 The next day, on November 4, 2016, Detective Lebsock submitted a second ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 8 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2268 Page 9 of 20 1 Statement of Investigating Officer Affidavit of Facts setting out details to support a 2 finding of probable cause for the arrest of Plaintiff Akins, Sr and Defendant Robb. 3 He recommended 10 counts of First-Degree Unlawful Possession of Firearm 4 against Defendant Robb and one count of First-Degree Unlawful Possession of a 5 Firearm and Drive-by Shooting against Plaintiff Akins, Sr. 6 Defendant Lebsock believe there was probable cause to charge Plaintiff 7 Akins Sr. because he had a hand gun while in the car that he shot after he got out 8 of the car; the cartridge cases that were located on his property; a handgun and 9 multiple cartridges were located in his residence; and he had prior criminal history. 10 Defendant Lebsock did not find Plaintiff Akins Sr.’s version of events to be 11 credible. Plaintiff gave no explanation as to why he drove down the alley, circled 12 the block, and then returned home. He gave no explanation as to why spent casings 13 were found outside his basement door. 14 Defendant Lebsock arrested Plaintiff Akins Sr. on November 9, 2016. On 15 November 9, 2016, Spokane County Superior Court Judge Gregory Sypolt found 16 probable cause to believe Plaintiff Akins Sr. committed the offenses charged. 17 Plaintiff was not able to make bail until 30 days passed. 18 On December 15, 2016, the Spokane County Prosecuting Attorney filed an 19 Information charging Raufu Everette with two counts of First-Degree Assault. He 20 plead guilty on January19, 2018 to one count of criminal mischief. On February 21 15, 2018, Defendant Robb pleaded guilty to one count of criminal mischief. The 22 charges against Plaintiff Akins, Sr. were dismissed. 23 24 Plaintiffs’ Complaint Plaintiffs filed suit on October 23, 2019 in the Eastern District of 25 Washington, asserting state claims against Defendants Bryan Robb, Krishana 26 Everette, Raufu Everette and Summer Abrahamson, and federal and state claims 27 against the City of Spokane Defendants. ECF No. 1. Plaintiffs filed their First 28 Amended Complaint on January 17, 2020, ECF No. 33. Plaintiffs filed their ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 9 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2269 Page 10 of 20 1 Second Amended Complaint on June 15, 2020. 2 Plaintiffs are bringing state law claims of outrage, civil conspiracy, and 3 malicious prosecution against Defendants Robb, Everette, and Abrahamson. 4 Against the City of Spokane Defendants, they are bringing federal claim of 5 unlawful detention, unlawful arrest, deliberate fabrication of evidence, wrongful 6 prosecution, false information and material omissions in the search and arrest 7 warrants, and judicial deception; and state law clams of malicious prosecution, 8 outrage, and negligent supervision and retention.1 Applicable Law 9 10 1. Section § 1983 11 To state a claim under 42 U.S.C. § 1983, a plaintiff must show: (1) a 12 violation of a right secured by the Constitution, and laws of the United States and 13 (2) the alleged deprivation was committed by a person acting under color of state 14 law. West v. Atkins, 487 U.S. 42, 48 (1988). 15 2. Qualified Immunity 16 Qualified immunity shields government officials from civil damages liability 17 unless the official violated a statutory or constitutional right that was clearly 18 established at the time of the challenged conduct. Reichle v. Howard, 566 U.S. 19 658, 664 (2012). 20 The court applies a two-prong analysis to determine whether officials are 21 entitled to qualified immunity: (1) whether the facts alleged show that the officer 22 violated a constitutional right; and (2) if so, whether that right was clearly 23 established at the time of the event. Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 24 1075 (9th Cir. 2011). The linchpin of qualified immunity is the reasonableness of 25 26 1 Plaintiff Akins, Sr. agrees that the Due Process and Equal Protections claims can 27 be dismissed, as well as the claims based on respondeat superior and Monell 28 liability. ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 10 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2270 Page 11 of 20 1 the official's conduct. Id. (citing Anderson v. Creighton, 483 U.S. 635, 638–39 2 (1987)) (“[W]hether an official protected by qualified immunity may be held 3 personally liable for an allegedly unlawful official action generally turns on the 4 objective legal reasonableness of the action, assessed in light of the legal rules that 5 were clearly established at the time it was taken.” (emphasis added) (internal 6 quotation marks and citations omitted)). 7 A plaintiff who seeks damages for violation of constitutional or statutory 8 rights may overcome a defendant official’s qualified immunity only by showing 9 that those rights were clearly established at the time of the conduct at issue. Davis 10 v. Sherer, 468 U.S. 183, 197 (1984). 11 3. Probable Cause 12 “Probable cause to arrest exists when officers have knowledge or reasonably 13 trustworthy information sufficient to lead a person of reasonable caution to believe 14 that an offense has been or is being committed by the person being arrested.” 15 United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir.2007) (citing Beck v. Ohio, 16 379 U.S. 89, 91 (1964)). “The probable-cause standard is incapable of precise 17 definition or quantification into percentages because it deals with probabilities and 18 depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 19 371 (2003). Indeed, “probable cause is a fluid concept-turning on the assessment of 20 probabilities in particular factual contexts-not readily, or even usefully, reduced to 21 a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). 22 In determining whether probable cause exists to support a search warrant, 23 the reviewing court looks to the “totality of the circumstances.” Id. at 238. The task 24 of the reviewing court “is simply to make a practical, common-sense decision 25 whether, given all the circumstances set forth in the affidavit before him . . . there 26 is a fair probability that contraband or evidence of a crime will be found in a 27 particular place.” Id. An affidavit must provide the reviewing court with a 28 substantial basis for determining the existence of probable cause. Id. at 239. ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 11 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2271 Page 12 of 20 1 4. Unlawful / Unreasonable Detention 2 The Fourth Amendment is not a guarantee against all searches and seizures, 3 but only against unreasonable searches and seizures. United States v. Sharpe, 470 4 U.S. 675, 681 (1985) (emphasis in original). In Terry v. Ohio, the United States 5 Supreme Court set out a two-step inquiry in determining whether an investigatory 6 stop is reasonable: (1) whether the officer’s action was justified at its inception; 7 and (2) whether it was reasonably related in scope to the circumstances which 8 justified the interference in the first place. 392 U.S. 1, at 20. An investigative 9 detention must be temporary and last no longer than is necessary to effectuate the 10 purpose of the stop. Sharpe, 470 U.S. at 684 (quoting plurality decision in Florida 11 v. Royer, 460 U.S. 491, 500 (1983)). In assessing the length of the detention, courts 12 should take into account whether the police diligently pursued a means of 13 investigation that was likely to confirm or dispel their suspicions quickly during 14 which time it was necessary to detain the defendant. Id. “A court making this 15 assessment should take care to consider whether the police are acting in a swiftly 16 developing situation, and in such cases the court should not indulge in unrealistic 17 second-guessing.” Id. If an investigative stop continues indefinitely, at some point 18 it can no longer be justified as an investigative stop. Id. 19 5. Deliberate Fabrication of Evidence 20 The Fourteenth Amendment prohibits the deliberate fabrication of evidence 21 by a state official. Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) 22 (en banc). Deliberate fabrication can be established by circumstantial evidence. Id. 23 For example, evidence that officials “continued their investigation of [a person] 24 despite the fact that they knew or should have known that he was innocent,’’ can 25 raise the inference that the investigator has an “unlawful motivation” to frame an 26 innocent person. Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1111 27 (9th Cir. 2010). Deliberate fabrication can be shown by direct evidence, for 28 example, when “an interviewer . . . deliberately mischaracterizes witness ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 12 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2272 Page 13 of 20 1 statements in her investigative report.” Id. In cases involving direct evidence, the 2 investigator’s knowledge or reason to know of the plaintiff’s innocence need not 3 be proved. Id. 4 To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove 5 that (1) the defendant official deliberately fabricated evidence and (2) the 6 deliberate fabrication caused the plaintiff’s deprivation of liberty. Id. To establish 7 the second element of causation, the plaintiff must show that (a) the act was the 8 cause in fact of the deprivation of liberty, meaning that the injury would not have 9 occurred in the absence of the conduct; and (b) the act was the “proximate cause” 10 or “legal cause” of the injury, meaning that the injury is of a type that a reasonable 11 person would see as a likely result of the conduct in question. Spencer v. Peters, 12 857 F.3d 789, 798 (9th Cir. 2017). 13 6. Unlawful Arrest 14 It is well established that “an arrest without probable cause violates the 15 Fourth Amendment and gives rise to a claim for damages under § 1983.” Borunda 16 v. Richmond, 885 F.2d 1384, 1391 (9th Cir.1988). An officer who makes an arrest 17 without probable cause, however, may still be entitled to qualified immunity if he 18 reasonably believed there to have been probable cause. See Ramirez v. City of 19 Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009). 20 In the context of an unlawful arrest, then, the two prongs of the qualified 21 immunity analysis can be summarized as: (1) whether there was probable cause for 22 the arrest; and (2) whether it is reasonably arguable that there was probable cause 23 for arrest—that is, whether reasonable officers could disagree as to the legality of 24 the arrest such that the arresting officer is entitled to qualified immunity. 25 Rosenbaum, 663 F.3d at 1076 (citing Jenkins v. City of New York, 478 F.3d 76, 87 26 (2nd Cir. 2007) (noting that an officer will not be entitled to qualified immunity “if 27 officers of reasonable competence would have to agree that the information 28 possessed by the officer at the time of arrest did not add up to probable cause”)). ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 13 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2273 Page 14 of 20 1 7. Material Misrepresentations – Judicial Deception 2 For a Fourth Amendment judicial deception claim to survive summary 3 judgment, Plaintiffs must (1) make a substantial showing of the officer’s deliberate 4 falsehood or reckless disregard for the truth in preparing the affidavit and (2) 5 establish that, but for the dishonesty, the searches and arrest would not have 6 occurred. Chism v. Wash. St., 661 F.3d 380, 387 (9th Cir. 2011) (quotation 7 omitted). Clear proof of deliberation or recklessness is not required at the summary 8 judgment stage. Id. If the plaintiff makes a substantial showing, the question of 9 intent or recklessness is a factual determination that must be made by the trial of 10 fact. Id. (quotation omitted). 11 “[I]f an officer submitted an affidavit that contained statements he knew to 12 be false or would have known were false had he not recklessly disregarded the 13 truth and no accurate information sufficient to constitute probable cause attended 14 the false statements . . . he cannot be said to have acted in a reasonable manner, 15 and the shield of qualified immunity is lost.” Id. (quotation omitted). 16 In reviewing a search warrant on probable cause grounds, the district court, 17 is “limited to the information and circumstances contained within the four corners 18 of the underlying affidavit.” Crowe v. Cnty of San Diego, 608 F.3d 406, 435 (9th 19 Cir. 2010). The evidence in the affidavit need not necessarily be admissible but 20 must be “legally sufficient and reliable.” Id. 21 A misrepresentation in the affidavit constitutes a violation of the Fourth 22 Amendment if the misrepresentation is material. Franks v. Delaware, 438 U.S. 23 154, 171–72 (1978). “The Franks standard, although developed in a criminal 24 context, also defines the scope of qualified immunity in civil rights actions.” 25 Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991). 26 Misrepresentations can be affirmative or based on omission. Affirmative 27 misrepresentations are material only if there is no probable cause absent 28 consideration of the misrepresented facts. Id. A misrepresentation based on an ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 14 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2274 Page 15 of 20 1 omission is material only where the omitted facts “cast doubt on the existence of 2 probable cause.” United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992) 3 (quotation omitted). 4 Thus, to determine whether a warrant was supported by probable cause, the 5 court must exclude any misrepresentation contained in the supporting affidavits, 6 add any information which was improperly omitted from the affidavits, and then 7 determine whether the remaining information is sufficient to create probable cause. 8 Crowe, 608 F.3d at 434. 9 8. 10 Malicious Prosecution In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff 11 “must show that the defendants prosecuted [him] with malice and without probable 12 cause, and that they did so for the purpose of denying [him] equal protection or 13 another specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 14 1189 (9th Cir. 1995). Malicious prosecution actions are not limited to suits against 15 prosecutors but may be brought against other persons who have wrongfully caused 16 the charges to be filed. Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1126–27 17 (9th Cir. 2002). 18 Ordinarily, the decision to file a criminal complaint is presumed to result 19 from an independent determination on the part of the prosecutor, and thus, 20 precludes liability for those who participated in the investigation or filed a report 21 that resulted in the initiation of proceedings. Awabdy v. City of Adelanto, 368 F.3d 22 1062, 1067 (9th Cir. 2004) (citation omitted). However, the presumption of 23 prosecutorial independence does not bar a subsequent § 1983 claim against state or 24 local officials who improperly exerted pressure on the prosecutor, knowingly 25 provided misinformation to him, concealed exculpatory evidence, or otherwise 26 engaged in wrongful or bad faith conduct that was actively instrumental in causing 27 the initiation of legal proceedings. Id. Thus, a plaintiff must be given the 28 opportunity to rebut a prima facie finding of probable cause and he can do so by ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 15 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2275 Page 16 of 20 1 showing that the criminal prosecution was induced by fraud, corruption, perjury, 2 fabricated evidence, or other wrongful conduct undertaken in bad faith. Id. Analysis 3 4 1. Claims against Defendant Betts and Anderson 5 Plaintiff Akins Sr. argues his initial detention was extended beyond the 6 scope of the initial inquiry, and as such, he was unlawfully detained. The Court 7 finds that a reasonable jury would not find that Plaintiff’s Fourth Amendment 8 prohibition against unreasonable seizure was violated. The undisputed facts show 9 that the officers pursued the investigation diligently in order to confirm or dispel 10 their suspicions. Plaintiff was detained around 11:00 p.m. and was released around 11 3:30 a.m. It was reasonable to detain Plaintiff during this time because it was 12 undisputed that witnesses said that Plaintiff Akins, Sr. had a gun and he told 13 officers that he was prohibited from possessing a gun. 14 Moreover, even if these officers had violated Plaintiff’s Fourth Amendment 15 rights, it was not clearly established that detaining a possible shooting suspect for 16 roughly four to five hours until an investigation was completed that involved 17 numerous witnesses and physical evidence would violate the suspect’s Fourth 18 Amendment rights. 19 As such, summary judgment on the Fourth Amendment claims asserted 20 against Defendant Betts and Anderson is appropriate. 21 2. Claims against Defendant Lebsock 22 After carefully reviewing the evidence and briefs submitted by the parties, 23 the Court concludes that probable cause existed to search Plaintiffs’ residence and 24 to arrest Plaintiff Akins, Sr. for Unlawful Possession of a Firearm and Drive-by 25 Shooting. Plaintiffs assert the statements made to the police officers by their 26 neighbors were false and the officers knew it. It is true that some of the statements 27 were false, i.e. who shot the gun, but there is nothing in the record to suggest that 28 other statements made were false. ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 16 Case 2:19-cv-00363-SAB 1 ECF No. 133 filed 07/30/20 PageID.2276 Page 17 of 20 Plaintiff Akins, Sr. maintains he did not have a gun in the car when he drove 2 down the alley. But witnesses stated they saw him with the gun and there was 3 nothing that should have put the officers on notice at the time they took the 4 statements that these witnesses were potentially lying. Moreover, the physical 5 evidence suggested they were not lying. After reviewing the surveillance tape, it 6 appeared to Defendant Lebsock that Sunny Abrahamson reacted as if she saw a 7 gun in Plaintiff Akins, Sr.’s car. 8 Also, Plaintiff Akins, Sr. had no explanation as to why he drove down the 9 alley, circled the block and then parked his car. Plaintiff Cassandra Akins stated 10 that she heard three shots that sounded like they were outside her window, which 11 suggested that the shots were fired from Plaintiffs’ residence. A spent casing was 12 found on Plaintiffs’ property and Plaintiff Akins, Sr. did not provide an 13 explanation as to how it got there. He fails to address that a handgun and 14 ammunition were found in his house, as well as the additional 9 mm cartridge 15 casings near his exterior basement stairs. 16 Moreover, the Affidavit included the incident from the day before when 17 Defendant Robb and Defendant Everette reported that their car had been shot, 18 reports to the police of several shots fired in the early morning hours and the 19 investigating officer concluded that it was like the shots came from the direction of 20 Plaintiffs’ house. 21 It was reasonable for Defendant Lebsock to conclude that Plaintiff Akins, Sr. 22 had a gun in his car and reasonable to conclude that he had shot at his neighbors’ 23 house. Thus, it was reasonable to include this information in his Affidavits. As the 24 recitation of the facts above suggest, this was a serious incident with shots being 25 fired in a residential neighborhood. There were many people involved, many 26 people to interview and physical evidence that needed to be sorted out. Several 27 officers responded and multiple interviews were conducted. Moreover, Defendant 28 Lebsock informed the judge that officers were concerned that Defendant Everette ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 17 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2277 Page 18 of 20 1 may have been covering for her husband, Defendant Robb, so the reviewing judge 2 would have viewed her statements with appropriate skepticism. 3 In reviewing the totality of the circumstances, a reasonable jury could only 4 reach one conclusion, namely that there was probable cause to issue the search 5 warrant and arrest warrant. It is not necessary for Defendant Lebsock to prove 6 beyond a reasonable doubt that a crime had been committed. Rather, the question 7 is whether the Affidavits contained sufficient facts to find probable cause and they 8 did. 9 Moreover, a reasonable jury could not conclude that Defendant Lebsock 10 made material misrepresentations in his Affidavits that would have negated the 11 existence of probable cause. It was reasonable for Defendant Lebsock to obtain, 12 rely on, and report Plaintiff Akins Sr.’s criminal history that came from NCIC. 13 Plaintiffs have not made a substantial showing of deliberate falsehood or reckless 14 disregard for the truth. It is undisputed that prosecutors decided to file charges 15 against Plaintiff Akins, Sr. for Drive-By Shooting and First-Degree Unlawful 16 Possession of a Firearm, and Judge Sypold concluded that probable cause existed 17 that Plaintiff Akins, Sr. committed the crimes. Plaintiff has not shown that 18 Defendant Lebsock engaged in fraud, corruption, perjury, fabricated evidence, or 19 other wrongful conduct undertaken in bad faith in order to convince the prosecutor 20 to charge Plaintiff Akins, Sr. 21 Because there was probable cause to support both the search warrant and 22 arrest warrant, summary judgment on the federal claims asserted against Defendant 23 Lebsock is appropriate. 24 25 Supplemental Jurisdiction Generally, federal courts have jurisdiction over state-law claims whenever 26 the federal-law claims and state-law claims in the case “derive from a common 27 nucleus of operative fact” and are “such that a plaintiff would ordinarily be 28 expected to try them all in one judicial proceeding.” Carnegie-Mellon Univ. v. ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 18 Case 2:19-cv-00363-SAB ECF No. 133 filed 07/30/20 PageID.2278 Page 19 of 20 1 Cohill, 484 U.S. 343, 349 (1988) (quotation omitted). Federal courts must consider 2 and weigh in each case, and at every stage of the litigation, the values of judicial 3 economy, convenience, fairness and comity in order to decide whether to exercise 4 jurisdiction over a case brought in that court involving pendent state-law claims. 5 Id. “When the balance of these factors indicates that a case properly belongs in 6 state court, as when the federal-law claims have dropped out of the lawsuit in its 7 early stages and only state-law claims remain, the federal court should decline the 8 exercise of jurisdiction by dismissing the case without prejudice.” Id. 9 Here, because the only remaining claims are state law claim, the Court 10 declines to exercise supplemental jurisdiction over these claims. The nature of the 11 claims being asserted and the underlying facts regarding conflicts between 12 neighbors indicate this case properly belongs in state court. As such, the Court will 13 dismiss the state-law claims without prejudice. 14 Accordingly, IT IS HEREBY ORDERED: 15 1. The City of Spokane Defendants’ Motion for Summary Judgment, ECF 16 No. 75, is GRANTED, in part. The federal claims are dismissed with prejudice. 17 The Court declines to exercise supplemental jurisdiction over the state law claims. 18 The remaining state law claims are dismissed without prejudice. 19 2. Defendant Robb and Everette’s Motion for Summary Judgment, ECF 20 No. 71, is DENIED, as moot. The Court declines to exercise supplemental 21 jurisdiction over the state law claims. The state law claims are dismissed with 22 prejudice. 23 3. Plaintiffs’ Motion to Dismiss, ECF No. 125, is DENIED, as moot. 24 4. Plaintiffs’ Motion for Appointment of Counsel, ECF No. 130, is 25 DENIED, as moot. 26 // 27 // 28 ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 19 Case 2:19-cv-00363-SAB 1 ECF No. 133 filed 07/30/20 PageID.2279 Page 20 of 20 5. The District Court Executive is directed to enter judgment in favor of 2 the City of Spokane Defendants and against Plaintiffs on the federal claims. 3 IT IS SO ORDERED. The District Court Executive is hereby directed to 4 file this Order, provide copies to counsel, and close the file. 5 DATED this 30th day of July 2020. 6 7 8 9 10 11 12 Stanley A. Bastian Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING SPOKANE CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DISMISSING STATE CLAIMS WITHOUT PREJUDICE ~ 20
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