Tuesday, April 16, 2019

WILKINSON v. TORRES

Judge Benjamin Settle's Opinion

Wilkinson v. Torres

Recounting the cover-up of the murder of Jason Wilkinson


Photo of Rick Torres May 8, 2005
Rick Torres

Resigned from VPD in 2006 shortly after shooting
Resigned from CCSO August 4, 2016 prior to this being exposed at a trial in Clark County


UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. C08-5281BHS

ORDER DENYING OFFICER TORRES’ MOTION FOR SUMMARY JUDGMENT AND GRANTING OFFICER KEY’S MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendant Torres’ Motion for Summary Judgment (Dkt. 25) and Defendant Key’s Motion for Summary Judgment (Dkt. 28). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies Torres’ motion without prejudice and grants Key’s motion for the reasons stated herein.

I. PROCEDURAL BACKGROUND

On May 2, 2008, Plaintiffs Scott Wilkinson, Alisha White, and the Estate of Jason Scott Wilkinson filed a complaint against Defendants Rick Torres, John Key, Brian Martinek, the City of Vancouver, and John and Jane Does 1-20. Dkt. 1. At all times material to the complaint, Defendants Rick Torres and John Key were police officers for the City of Vancouver. Id. ¶ 2.3.

 Plaintiffs allege the following claims against Defendant Torres:
 Defendant Torres’ actions violated decedent’s right to be free from summary execution and punishment and deprivation of life and liberty without due process of law under the Fifth and Fourteenth Amendments to the United States Constitution, to be free from unreasonable search and seizure under the Fourth and Fourteenth Amendments and to feely [sic]
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associate with family and friends under the First and Fourteenth Amendments. Id., ¶ 6.7. 
Plaintiffs allege the following claim against Defendant Key:

 KEY was present when TORRES used the unreasonable, excessive, and deadly force, KEY knew or should have known TORRES was using unreasonable, excessive, and deadly force, and had the ability to intercede and prevent the continued use of said force; however, KEY stood by, neglected to make any effort to stop or intercede in the unconstitutional force, and explicitly and/or tacitly approved of TORRES’ use of deadly force. Id., ¶ 7.2. 

 On November 7, 2008, Defendant Torres filed a Motion for Partial Summary Judgment. Dkt. 25. On December 2, 2008, Plaintiffs responded and included a motion to strike Defendant’s references to Jason Wilkinson’s Death Investigation Toxicology Report and to his criminal history. Dkt. 43. On December 5, 2008, Defendant Torres replied and included a motion to strike material Plaintiffs submitted in support of their response. Dkt. 47. On November 7, 2008, Defendant Key filed a Motion for Summary Judgment. Dkt 28. On December 15, 2008, Plaintiffs responded and included a motion to strike the Declaration of Colleen Lines (Dkt. 34). Dkt. 49. On December 19, 2008, Defendant Key replied. Dkt. 51.

 II. FACTUAL BACKGROUND

Judge Settle's opinion combines the "facts" by taking all the statements made by the officers and disregards the affidavit of Anthony Davis in its entirety.  There are two distinctly different versions of the facts in this case.  Either Officer Key was underneath the tires and he is getting chewed up by the tires of the minivan backing up, or Officer Key was nowhere near the tires when Torres started shooting.  This "combination of facts" does not comport with the law in the 9th Circuit.  "But in the deadly force context, we cannot "simply accept what may be a self-serving account by the police officer."  Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994).  Because the person most likely to rebut the officers' version of events - the one killed - can't testify, "the judge must carefully examine all the evidence in the record...to determine whether the officer's story is internally consistent and consistent with other known facts." Id.:  See also Gonzales v. City of Anaheim, 747, F.3d 789, 794-95 (9th Cir.1994).  This includes "circumstantial evidence that, if believed, would tend to discredit the police officer's story."  Scott, 39 F.3d at 915.

There are two completely different version of "facts" as outlined by the affidavit of Anthony Davis compared to the conflicting versions of Officer Torres and Officer Key.  

It should be noted that the Plaitiff's counsel is Beau Harlan, a former Prosecuting Attorney for Clark County.  In his submission of documents, which would create a factual dispute, the ballistics expert hired by the defense authored a report that Torres successfully moved to vacate.  This "additional evidence" has never been investigated by the investigating agency, Clark County Sheriff's Office.  

On May 8, 2005, Vancouver Police Officer John Key identified a stolen minivan with an unidentified driver inside the vehicle. Dkt. 30, Declaration of John Key (“Key Decl.”), Exh. A, Interview of John Key (“Key Interview”) at 4-5. After Officer Key yelled at the driver, the driver started the van and drove away from the scene. Id. at 5-6. Officer Key informed his dispatcher that the minivan “took off” and initiated a pursuit of the vehicle. Id. at 6.

Officer Rick Torres heard Officer Key’s communications over the radio and became concerned about the situation. Dkt. 36, Declaration of Rick Torres (“Torres

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Decl.”), Exh. A, Interview of Rick Torres (“Torres Interview”) at 5-6. At the time Officer Key radioed that the stolen van had driven away, Officer Torres claims that he was approximately six blocks away from Officer Key’s location. Id. at 6-8. After Officer Key radioed the direction of the pursuit, Officer Torres waited at an intersection to intercept Officer Key and the van. Id. Officer Torres saw both vehicles approaching at a speed that wasn’t over the speed limit. Id. He had his lights on and saw that Officer Key also had his lights on behind the van. Id. Both the van and Officer Key passed Officer Torres and Officer Torres joined the pursuit. Id. at 8-9.

 It is undisputed that Officers Key and Torres followed the van for approximately three minutes over a distance of approximately two miles. Officer Torres claims that the pursuit proceeded at speeds of “maybe 10 miles over” the speed limit. Id. at 11. Officer Torres also claims that Officer Key encouraged him to perform a Pursuit Immobilization Technique (“PIT”) on the van when he had the opportunity. Id. Defendant Torres states that a PIT is a recently developed law enforcement procedure where an “police officer places his vehicle parallel and a bit behind the suspect vehicle, and bumps the rear quarter panel with the front quarter panel of his vehicle sending the suspect vehicle into a spin.” Dkt. 25 at 4.

As the van and Officer Torres approached the intersection of NE 49th St. and NE 40th Ave., Officer Torres decided that the intersection would be the “best spot to take him.” Torres Interview at 12. When Officer Torres hit the van, the van spun 90 degrees. Id. at 13-14. Officer Torres claims that the van attempted to “take off again” so he hit the van again. Id. at 14. After the second hit, the van spun off the road into a side yard. Id. at 15. As the van continued driving through the yard, Officer Torres stopped and exited his vehicle. Id. at 15-16. He claims that he saw the van attempt to maneuver through numerous trees in the yard and eventually hit a telephone pole. Id. at 16. Thomas Fries, a Traffic Accident Reconstructionist obtained by Plaintiffs, claims that the van “entered the yard, at an assumed speed of 10-12 mph, leaving tire marks for about 75 feet.” Dkt. 46,

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Declaration of Thomas Fries (“Fries Decl.”), ¶ 2(b). Mr. Fries also concludes that the van “impacted the telephone pole at 12-15 mph.” Id. ¶ 2(c).

Clark County Deputy Sheriff Scott Shanaker was on patrol that day in the area of the pursuit. Dkt. 27, Declaration of Scott Shanaker, Exh. A, Interview of Scott Shanaker (“Shanaker Interview”), at 1-2. Deputy Shanaker heard the pursuit over the radio and proceeded to drive toward the pursuit. Id. He eventually reached the vehicles and saw Officer Torres’ PIT maneuver from a distance. Id. at 3. He briefly lost sight of the van, but then he saw it drive around the house and through the yard. Id. He positioned his car to block the van’s exit from the yard and, when the van compensated to avoid him, it ran into the telephone pole. Id. Deputy Shanaker positioned his car almost head-on with the van on the opposite side of the pole. Id. Deputy Shanaker observed Officer Key running toward the driver’s door of the van and Officer Torres running in from behind the van. Id.

Anthony Davis was also at the intersection when Officer Torres performed the PIT on the van. Dkt. 44, Declaration of Anthony Davis (“Davis Decl.”), Exh. A, Interview of Anthony Davis (“Davis Interview”) at 2. Mr. Davis claims that he saw the police lights, pulled over to the curb, and observed the remainder of the pursuit. Id. After the van entered the yard, Mr. Davis claims that “the cops blocked” the van in the yard, there was “no route of escape,” and two officers ran toward the van, one with his gun drawn. Id. at 3.

It is unclear whether the driver of the van was knocked unconscious when the van collided with the telephone pole. Deputy Shanaker claims that, from “the length [of] the hood of [his] car away,” it looked like the driver of the van got “knocked out.” Shanaker Interview at 3. Officer Key thought that the pursuit was over and “the car was stopped,” so when he reached the van, he grabbed the driver’s side door handle and tried to open the door. Key Interview at 12-13. At about the same time as Officer Key grabbed the door, the driver put the van in reverse. Id. at 13; Shanaker Interview at 4.


This is a photo of Officer Key after he had "fallen down".  There is a dispute as to whether Officer Key fell down, or if he was struck by the minivan as it backed up.  The officers version is that Key was struck by the van and was scrambling on the wet grass to get out from underneath the vehicle as it was running him over.  Contrarily, Anthony Davis' statement depicts Officer Key being away from the minivan as it backed up.  

This is further bolstered by the statements Torres made in the IA interview.  he stated that he saw the outline of Officer Key's vest and reacquired the target (Jason) and shot him an additional 4 times.  

Torres testified that he shot 4 times followed by another 2 times, when in reality, he fired 7 times followed by another 4 shots.  This is not "circumstantial" evidence, this is direct evidence depicting that Torres version of events was not internally consistent with the facts of the case.  However, Detective O'Dell, the lead detective, believed Torres version of events and recommended that Torres not be prosecuted for murder, and he recommended a finding of justifiable homicide.  


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Both Officer Key and Deputy Shanaker remember hearing the van’s engine rev as it began to move backward away from the pole. The grass was wet and muddy that morning. Key Interview at 19. As a result, the van threw mud forward as the tires spun in reverse. Deputy Shanaker claims that the hood and windshield of his car were sprayed with mud and grass when the van started to spin its front wheels in the yard. Shanaker Interview at 4.

The next significant event was Officer Key falling to the ground. Mr. Davis claims that Officer Key “slipped on the wet grass.” Davis Interview at 5. Officer Key claims that he was knocked to the ground by the van when it began to back away from the telephone pole. Key Interview at 13. It is undisputed that the driver accelerated backwards in a counterclockwise arc. The steering wheel was turned to the right so that the front end of the vehicle swung in the direction of the driver’s side while the rear of the vehicle swung in the direction passenger side. See Fries Decl., Exh 10 (aerial sketch of  the path of the van). At this time, Officer Torres claims that he was at the passenger side, middle window of the van with his gun drawn and yelling “show me your hands.” Torres Interview at 17. Officer Torres had his left hand on the van and he could feel it moving away from him as the engine revved. Id. He could see through the windows of the van that Officer Key went down. Id.

Officer Torres claims that his immediate thought was that the front wheels of the van were going to run over Officer Key. He stated that “the front end [of the van] is moving away from me, towards right were [Officer Key] went down.” Torres Interview at 18. Officer Torres remembers “thinking [that] the wheels are on top of [Officer Key], spinning. And [he yelled] at [the driver] to stop, and [the driver] just kept going.” Id. As the van continued arcing backward, Officer Torres saw Officer Key roll out onto the street “curled up, like, in a fetal position.” Id. at 19. He remembers hearing Officer Key yell and “thought that he was dead.” Id.

This is another fiction created by Judge Settle that disregards the false statements made by Torres in the first portion of his interview.  Torres initial states he doesn't hear a thing.  After a break and an "off the record" conversation, Torres recalls Officer Key yelling as he went down.  These inconsistent statements are "disputable facts" that cannot be decided during summary judgement.  Torres own contradiction give rise to the factual dispute, particularly when you have eyewitness testimony of another witness that contradicts the "self-serving" account of Torres and Key.  (see transcribed interview of Rick Torres).

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Concerned for the safety of both himself and Officer Key, Officer Torres began to fire bullets at the driver. Id. at 23. He claims that, “at some point, [he] shot . . . [he] fired at [the driver] to stop him.” Id. at 18. Officer Torres fired two volleys of bullets. Id. at 24. He initially remembered firing four bullets in the first volley, id. at 21; it was later determined that he fired seven rounds, Dkt. 25 at 10. He initially remembered firing two bullets in the second volley, Torres Interview at 18; it was later determined that he fired four rounds, Dkt. 25 at 11. There is a dispute as to the effect of the initial volley of bullets.

Officer Torres seems to contradict himself as to why he shot a second volley of bullets. At one point, he describes the situation as follows:

I thought what happened was I fired four rounds, and he kept going, and he was – and then, I fired . . . made a quick assessment, and he had stopped and I fired . . . I fired two more. That’s what I think happened. Torres Interview at 18. 

Later in the same interview, Officer Torres describes the situation as follows:

I remember it was kind of like, you know, I’m shooting . . . I was shooting like this and I came down and he was still looking at me like nothing had happened. And so, then I went back up and I think I fired two more rounds. Id. at 21.

The former description can reasonably be read to state that the driver “had stopped and [Officer Torres] fired . . . [he] fired two more” bullets, whereas the latter description states that the initial volley of bullets had no affect on the driver of the van.



Torres reason for shooting Jason another 4 times was due to the fact that he believed that the van was going to make a complete circle and run over Officer Key "again" when it made a complete circle.  According to the interview with Anthony Davis, he was videotaped when he returned to the scene the following day.  During the videotape, he places Officer Key and Officer Torres when the shooting started taking place.  Detective O'Dell does not mention videotaping Anthony Davis.  Nor does O'Dell place in his report that he stopped by Davis's residence on numerous occasions and attempted to persuade him to change his testimony.  

Mr. Davis claims that Officer Torres began to fire before Officer Key fell to the ground. Davis Interview at 7. He states that one “officer walked right up to the passenger window and started firing.” Id. at 4. Mr. Davis also claims that Officer Key fell to the ground because he slipped on the grass, which contradicts the story that the van knocked Officer Key to the ground. Id. at 5. Mr. Davis asserts that, after falling, Officer Key “jumped back up” and “jumped out of the way of the car so he wouldn’t get ran [sic] over.” Id. at 3.

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Deputy Shanaker claims that the driver was knocked out and came to at the same time that Officer Key reached the driver’s side door. Shanaker Interview at 4. He remembers seeing the driver put the van in gear and hearing the engine rev. Id. As the van began to move backwards, Deputy Shanaker decided that he should move his car in attempt to block any exit the van may have had from the yard. Id. at 7. He “turned around for just a second to make sure [he] was clear in back, because [he] was going to have to back [up] and maneuver” his car to block the van. Id. at 4. When he looked back toward the van, he saw Officer Torres with his gun “drawn out” and “he just starts shooting.” Id. Deputy Shanaker did not see Officer Key. Id. Deputy Shanaker claims that Officer Torres was “dumping rounds” as the van was “turning in a big arc backwards.” Id. at 4-5. After “three to six rounds,” Deputy Shanaker could see that the driver was “still animated at that moment . . . [he was] cognizant of what he’s doing, and then, it’s just like he’s not.” Id. at 4. Then, he saw that the van had “died down in speed” and that the driver was no longer in control of it. Id. at 5.

 Deputy Shanaker exited his vehicle, approached the driver’s side of the van, reached through the driver’s side window, and put the vehicle in park. Id. at 6. He cuffed the driver and checked for vitals. Id. He did not feel a pulse or any breathing. Id. The driver was later identified to be Jason Scott Wilkinson. Dkt. 26, Declaration of Stewart Estes, Exh. Q (“Report of Medical Examiner”). Mr. Wilkinson died from “multiple gunshot wounds.” Id.

Mr. Fries, the accident reconstructionist, claims that tire marks were left in the grass when the van was accelerating in the backwards arc. Fries Decl. ¶ 3(d).

After about 25-30' of tire marks . . . there is an abrupt difference in the texture and depth of these marks. This indicates that power is no longer being supplied to the wheels. The minivan (an automatic) continues backward at idle leaving light tire marks. Id. ¶ 3(I). 

Mr. Fries opines as follows:

The four glass patterns found on the vehicle path are most likely caused by exit bullets going out the driver’s side of the vehicle. The glass likely fell to within 1-3 feet from where the bullet penetrated the glass. 

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The glass pattern indicates three shots were fired after there was no longer power to the minivan. 

 Id. ¶ 3(h); see also id, Exh. 13 (aerial view of glass pattern in relation to the van’s tire marks and location).

 III. DISCUSSION 

 A. Plaintiff’s Motions to Strike

Plaintiffs move to strike Defendant Torres’ references to Jason Wilkinson’s Death Investigation Toxicology Report and to his criminal history. Dkt. 43 at 28. Plaintiffs argue that the legal questions before the Court turn on Officer Torres’ knowledge of Mr. Wilkinson when Officer Torres employed force against Mr. Wilkinson. Dkt. 43 at 28-29. Plaintiff concludes that Defendant’s reference to the toxicology report and Mr. Wilkinson’s criminal history have “no bearing” on the issues before the Court and are used only to “tarnish the character” of Mr. Wilkinson. Id.

Defendant counters that “Plaintiff’s drug use is relevant to his impaired and erratic driving, as is his criminal history.” Dkt. 47 at 3. If Plaintiff’s intoxication has any bearing on the questions before the Court, then the Court may consider this evidence. On the other hand, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. ” Fed. R. Evid. 404(b). Moreover, Mr. Wilkinson had not been identified when Officer Torres decided to exercise deadly force. For the purposes of this motion, Defendant’s reference to Mr. Wilkinson’s criminal history is both inadmissible and irrelevant evidence. Therefore, the Court grants Plaintiff’s motion to strike Defendant’s references to Mr. Wilkinson’s criminal history and denies the motion to strike the reference to his toxicology report.

Plaintiff also moves to strike the Declaration of Colleen Lines. Dkt. 49 at 13-14. Ms. Lines asserts that her car was struck by the van during the pursuit. Dkt. 34, ¶¶ 2-3. Plaintiff argues that the question before the Court “centers upon the facts known to [Officer] Torres at the moment he began pulling the trigger” and that Officer Torres does not remember seeing this accident during the pursuit. Dkt. 49 at 13-14.

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The Court disagrees as only part of the Court’s analysis will depend on what Officer Torres saw during the pursuit. Therefore, the Court denies Plaintiffs’ motion to strike Ms. Lines’ declaration.

B. Defendant Torres’ Motion to Strike

Defendant Torres “moves to strike (1) unsworn and unauthenticated report of Matthew Noedel, Ex. 7 to Harlan Dec., Dkt. No. 45; and (2) Notice of Findings as to Officer Rick Torres, Ex. 6 to Harlan Dec., Dkt. No. 45.” Dkt. 47 at 1-2.

           1. Matthew Noedel Report “

A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002) (citations omitted). Authentication is a condition precedent to admissibility. Id. To authenticate documents that are submitted to support or to oppose a summary judgment motion through personal knowledge, the party must attach the documents to the affidavit of a person through whom the exhibits could be admitted into evidence at trial. Id. The affiant must show affirmatively that he has personal knowledge and “is competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e).

Plaintiff has submitted a “[s]hooting scene examination and reconstruction” report by Matthew Noedel and his curriculum vitae. Dkt. 45-7. Plaintiffs, however, attached these documents to the Declaration of Beau Harlan, Plaintiffs’ attorney. See Dkt. 45, ¶ 2. Plaintiffs have neither submitted an affidavit of Mr. Noedel nor shown how these documents could be admitted into evidence through Mr. Harlan. Therefore, the Court grants Defendant’s motion to strike these documents.

This additional evidence has never been examined by the Clark County Sheriff's Office.  Neither has the affidavit of Anthony Davis.  In addition, there was another eyewitness to the shooting who has never been interviewed.  Clark County Sheriff's Office is aware that there is an additional eyewitness, yet they refuse to reopen the investigation. 

            2. Notice of Findings

Authentication is not a condition precedent for domestic public documents under seal. Fed. R. Evid. 902(1). Moreover, public documents are not excluded by the hearsay rule. Fed. R. Evid. 803(8).

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Plaintiffs submitted a document titled “Notice of Findings” that was issued under the official seal of the City of Vancouver Police Department and appears to be signed by Assistant Chief Mitch Barker. The Court declines to accept Defendant’s argument that this document is unauthenticated hearsay.

Defendant Torres also argues that the contents of the document are irrelevant based on the legal issues before the Court. Dkt. 47 at 2. The document shows that, after an internal investigation, Officer Torres initiated a pursuit of Mr. Wilkinson in violation of department guidelines. See Dkt. 45-6 at 3. Defendant asserts that “[w]hether a provision of a policy manual was violated is irrelevant to the question of whether [Mr.] Wilkinson’s constitutional rights were violated.” Dkt. 47 at 2 (emphasis in original). The Court agrees. See Case v. Kitsap County Sheriffs Dept., 249 F.3d 921, 929-30 (9th Cir. 2001). Moreover, based on the record before the Court, the decision on whether to initiate the pursuit is most likely insignificant in light of the decisions regarding whether to end the pursuit. Therefore, the Court grants Defendant Torres’ motion to strike the “Notice of Findings” because the finding that Officer Torres violated a department guideline is irrelevant to the questions of constitutional violations and qualified immunity.



C. Summary Judgment

Defendants Torres and Key move for summary judgment based on the doctrine of qualified immunity. Dkt. 25; Dkt. 28. Defendant Torres also moves for summary judgment on the grounds that “Plaintiffs parents’ claims are not legally viable.” Dkt. 25 at 12-33.

           1. Standard




This media advisory is dated May 9th, 2005.  Officer Torres was not interviewed until May 10th, 2005.  Officer Key testified on May 9th, the date of this press release.  There are no formal statements in the record that support this media release.  Contrarily, there are officers that are talking with the news media requesting they delay their broadcasts until the press release.  The media had the eyewitness account of Anthony Davis but took the advice of the IA investigative team and waited to publish anything until this press release.  



This news article depicts Jason Wilkinson as a troubled teen.  It also portrays Chief Martinek's view that tough choices need to be made in the heat of the moment by uniformed officers that had been on the force.  In essence, this is the beginning of the propaganda campaign to exonerate Torres for murdering Jason Wilkinson.  A theme that is replayed in the opinion of Judge Settle.  Obviously, the background of Jason Wilkinson is important in determining where Officer Torres was in relation to where Officer Key was when the shots rang out.  This opinion wreaks of bias and runs contrary to the opinions offered previously by the 9th Circuit.  

This article published on the 10th of May has the police version of events entirely plotted out prior to Torres testifying.  The only account that depicts these facts are the account of Torres which gave the day this article was printed.  The entire story contradicts what Anthony Davis stated to the police officers on May 8th and May 9th.  The videotape of Anthony Davis depicting where Officer Torres and Officer Key were when the shooting started is not part of the Internal Affairs Investigation.  It is not listed and an exhibit in any investigative documents nor in the court record in this case. 

The police version of events was given to the media on May 9th, 2005 prior to Officer Torres testifying.  This article either stemmed from interviews with Chief Martinek along with the Press Release dated May 9, 2005.  None of the statements made by Anthony Davis were in this article.   

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt”). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

 The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

            2. Qualified Immunity

“[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The immunity is “immunity

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from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court finds a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established . . . in light of the specific context of the case.” Id. This sequence, however, is no longer the mandatory procedure that a district court must implement when considering the shield of qualified immunity. See Pearson v. Callahan, 555 U.S. (January 21, 2009). The district court may “determine the order of decisionmaking that will best facilitate the fair and efficient dispostion of each case.” Id., slip opinion at 11-17.

                 a. Fourth Amendment

Plaintiffs assert that Officer Torres violated Jason Wilkinson’s Fourth Amendment right to be free from unreasonable seizure.

                          i. Constitutional Violation

 Plaintiffs’ excessive force claim is governed by the Fourth Amendment because “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). “Under the Fourth Amendment, officers may only use such force as is objectively reasonable under the circumstances.” Boyd v. Benton County, 374 F.3d 773, 778 (9th Cir. 2004). “Determining whether a particular use of force is reasonable requires the fact-finder to balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing government interests at stake.” Id. at 778-779. Accordingly, “[t]his balance must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The need for such balancing means that summary judgment in excessive force cases should be

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granted sparingly.” Id. Consideration of “reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.” Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir. 2001).

“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). However, if “there is probable cause to believe that [a suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Id. at 11-12. “[W]hen there is objective reason to fear for one’s safety . . ., but not one’s life, then force short of deadly force might be justified; to justify deadly force, an objective belief that an imminent threat of death or serious physical harm is required.” Price v. Sery, 513 F.3d 962, 969 (9th Cir. 2008).

 In this case, taking the facts in the light most favorable to Plaintiffs, Officer Torres fired three bullets at Jason Wilkinson “after there was no longer power to the minivan.” Fries Decl. ¶ 3(h). There at least exists a question of fact whether Mr. Wilkinson posed an “imminent threat of death or seriously bodily harm” when the van stopped accelerating. Further, it is undisputed that when Officer Torres fired, the van was always moving in a backward direction away from Officer Key. Although Defendant Torres argues that “it was obvious to any reasonable person that [the van] would come right back towards Officer Key,” Dkt. 47 at 12, the van would have had to avoid both the telephone pole as well as Officer Shanaker’s vehicle before it could have threatened Officer Key. Moreover, the record contains evidence that, while Officer Torres was shooting at Mr. Wilkinson, Officer Key had reached his feet and was “out of the way of the car so he wouldn’t get ran [sic] over.” See supra.

Case 3:08-cv-05281-BHS Document 63 Filed 01/23/09 Page 14 of 18

Therefore, the Court denies Defendant Torres’ motion for summary judgment on the issue of whether his use of deadly force was reasonable. The Court finds that questions of fact exist as to whether Mr. Wilkinson posed an imminent threat throughout the shooting that would justify the use of deadly force.

                       ii. Clearly Established Constitutional Right

The next step under Saucier in determining if Officer Torres is protected by qualified immunity, is to ascertain if Mr. Wilkinson’s constitutional right was clearly established at the time of the injury. Saucier, 533 U.S. at 201. In excessive force cases, the inquiry is whether “under the circumstances, a reasonable officer would have had fair notice that the force employed was unlawful, and whether any mistake to the contrary would have been unreasonable.” Boyd, 374 F.3d at 781; Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003).

When viewing the facts in the light most favorable to Plaintiffs, a reasonable officer would have had fair notice that deadly force was not justified to seize Mr. Wilkinson after the van was no longer under the control of Mr. Wilkinson. The very issues of fact that preclude summary judgment on the constitutional right question also preclude summary judgment on the fair notice question: was it reasonable for Officer Torres to believe throughout the shooting that Mr. Wilkinson posed an imminent threat of death or serious bodily harm? If Officer Torres observed Officer Key jumping up and moving away from the van, then Officer Torres should not have shot at a van moving in the opposite direction. Most importantly, the trier of fact could conclude that Officer Torres shot at the driver of a van that was no longer under power and that a coasting van did not pose a risk of death or serious injury to either Officer Torres or Officer Key.

Therefore, the Court denies Defendant Torres’ motion for summary judgment on the issue of whether Officer Torres violated a clearly established constitutional right.

Case 3:08-cv-05281-BHS Document 63 Filed 01/23/09 Page 15 of 18

                b.  Failure to Intercede

Plaintiffs assert that liability attaches to Officer Key because he “had the ability to intercede and prevent [Officer Torres’] continued use of” force. Complaint, ¶ 7.2. The Supreme Court determined that officers do have a duty to intercede as follows:

when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety. [An] affirmative duty to protect arises . . . from the limitation which [the state] has imposed on his freedom to act on his own behalf.  

United States v. Reese, 2 F.3d 870, 887-88 (9th Cir. 1993) (citing DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189, 199-200, (1989)). A “special relationship” which includes a duty to protect arises when the state has taken the person into custody. Id. at 888; Ting v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991).

In the Rodney King case the Ninth Circuit acknowledged that “[p]ursuant to a long line of civil cases, police officers have a duty to intercede when their fellow officers violate the constitutional rights of a suspect or other citizen.” United States v. Koon, 34 F.3d 1416, 1447 n. 25 (9th Cir. 1994), vacated in part on other grounds by Koon v. United States, 518 U.S. 81 (1996). Citing to several out-of-circuit cases, the Ninth Circuit noted that:

 the constitutional right violated by the passive defendant is analytically the same as the right violated by the person who strikes the blows. Thus an officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would, like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights. 

 Id.; see also Reese, 2 F.3d at 890 (determining that a defendant officer was liable for not intervening when reasonable steps could have prevented the excessive force, and when the defendant “deliberately chose not to act”). However, “officers can be held liable for failing to intercede only if they had an opportunity to intercede.” Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (emphasis added).

Defendant Key argues that Officer Torres did not violate Mr. Wilkinson’s constitutional right and, therefore, he had no duty to intercede to prevent the use of

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unreasonable force. Dkt. 28 at 11. The Court, however, has found that there exists material questions of fact regarding whether Officer Torres’ use of deadly force violated Mr. Wilkinson’s constitutional right to be free from unreasonable seizure. See supra. Thus, the Court will only address Defendant Key’s argument that he did not have a reasonable opportunity to intercede.

Plaintiffs argue that, taking the facts “in the light most favorable to Plaintiff, [Officer] Key had ‘a reasonable opportunity’ to stop [Officer] Torres from” using deadly force against Mr. Wilkinson. Dkt. 49 at 13. This conclusion is unsupported by the record. It is undisputed that Officer Key either fell down or was knocked down by the van. It is also undisputed that Officer Key was sprayed with mud from the tires of the van as it accelerated backwards, away from Officer Key. Although the record is unclear as to the period of time that may have elapsed between when Officer Key allegedly reached his feet and when Officer Torres began to shoot at Mr. Wilkinson, it is unreasonable to conclude that, in that period of time, Officer Key should have interceded to prevent Officer Torres from firing his weapon. Moreover, this is not a situation where Officer Key could be considered a tacit collaborator. See O’Neill v. Krzeminski, 839 F.2d 9, 12 (2nd Cir. 1988) (“three blows were struck in such rapid succession that [the other officer] had no realistic opportunity to attempt to prevent them.”). Officer Torres shot in rapid succession with a short pause between the two volleys of bullets. It is unreasonable to place a duty on Officer Key to assess the situation in that amount of time, conclude that shooting the driver would have been an unreasonable use of deadly force, and then somehow intercede to prevent Officer Torres either from continuing to fire the first volley of bullets or from not firing the second volley of bullets.

Therefore, the Court grants Defendant Key’s motion for summary judgment because he did not have a reasonable opportunity to intercede in Officer Torres’ use of deadly force against Mr. Wilkinson.

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                c. Due Process

Plaintiffs Scott Wilkinson and Alisha White assert that Officer Torres violated their Fourteenth Amendment due process right to associate with their son, Jason Wilkinson. “[A] parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child ” Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). The Supreme Court has made it clear that only official conduct that “shocks the conscience” is cognizable as a due process violation. See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

In Lewis, the Court recognized the police officer’s dilemma:

 A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers, or bystanders. 

Id. at 853. In such cases, a plaintiff “must demonstrate that [the officer] acted with a purpose to harm [the suspect] that was unrelated to legitimate law enforcement objectives.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). A purpose to harm may be found in the “rare situations where the nature of an officer’s deliberate physical contact is such that a reasonable factfinder would conclude the officer intended to harm, terrorize or kill.” Id. at 1141 (quoting Davis v. Township of Hillside, 190 F.3d 167, 174 (3d Cir. 1999) (McKee, J., concurring)).

The parties do not dispute that this standard of culpability was clearly established at the time of the shooting in 2005. Thus, whether Officer Torres is entitled to qualified immunity on summary judgment turns on whether Plaintiffs can present facts that would justify a jury finding that Officer Torres acted with an unconstitutional purpose to harm Jason Wilkinson. See Porter, 546 F.3d at 1140.

Defendant argues that Plaintiffs must show that Officer Torres “intended to harm the parent-child relationship.” Dkt. 25 at 32. Defendant concludes that Officer Torres is not liable because Plaintiffs cannot show that he was “aware that Jason Wilkinson had a

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relationship with his parents.” Id. Defendant has provided no binding authority for this proposed element of liability. Neither the Supreme Court in Lewis nor the Ninth Circuit in Porter included actual knowledge of the parental relationship as an element of the constitutional violation. Defendant’s argument is therefore without merit.

Plaintiffs argue as follows:

 Taking the facts in the light most favorable to the plaintiffs, there is no question that Torres acted with the unconstitutional purpose to harm, terrorize and in fact, kill Wilkinson. After Key walked to the front of the minivan and the minivan began to back away from the telephone pole, Key and Torres looked at each other, seemingly acknowledged each other; then Torres walked to the passenger side of the minivan and effectively executed Wilkinson by shooting him eleven times at close range. Torres shot Wilkinson when the minivan was traveling at a slow speed in the exact opposite direction from where Key stood. Even after Wilkinson dropped his hands from the steering wheel and slumped in the driver’s seat mortally wounded, Torres continued to fire into Wilkinson as the minivan coasted in reverse.

Dkt. 43 at 27. Based on this version of the events, which is supported by admissible evidence, a reasonable factfinder could conceivably conclude that Officer Torres intended to harm, terrorize or kill Jason Wilkinson and therefore acted beyond the scope of a legitimate law enforcement objective. Therefore, the Court denies Defendant Torres’ motion for summary judgment on Plaintiffs’ claim against him for violation of constitutional due process.

 IV. ORDER 

 Therefore, it is hereby ORDERED that Defendant Torres’ Motion for Summary Judgment (Dkt. 25) is DENIED without prejudice and Defendant Key’s Motion for Summary Judgment (Dkt. 28) is GRANTED.

 DATED this 23rd day of January, 2009. BENJAMIN H. SETTLE United States District Judge

========================================================================
Below is the synopsis of the shooting authored by Clark County Sheriff's Detective Eric O'Dell.  The synopsis is not dated, and the only signifying mark is MC 784


SYNOPSIS

On 05-08-05 at approximately 1118 hours, while on routine patrol, Officer John Key came across a suspicious van parked in the 3400 block of "T" street and ran the license plate.  Officer Key learned the van was a confirmed stolen vehicle,.  When Officer Key gave verbal commands to the driver, the driver concealed himself inside the van.  While waiting for backup units to arrive, the van was started and took off at a high rate of speed.

Officer Key activated his emergency lights and siren and followed the van as it drove North on "t" street to 39th Street, where it failed to stop for the traffic control sign..  The van went West on 39th Street to "P" street, North on "P" and onto State Route 500, Eastbound.  Officer Torres joined the pursuit and took the lead as the van turned North onto St. Johns Road.  The van travels North to 49th Street where when it turns East, the van fails to negotiate the turn and goes onto the sidewalk and into the Westbound lane of travel, the van collided with a vehicle that was West on NE 49th Street and stopped for the traffic signal.  (Accident Report #S05-6570).

The van continued East on 49th Street at a high rate of speed to the T intersection at NE 40th Avenue.  When the van slows at the intersection, Officer Torres attempts two PIT (Pursuit Intervention Technique) maneuvers on the van.  The van spun 180 degrees and was now traveling through a resident's yard and headed back West.  Deputy Schanaker had arrived in the area and placed his patrol car to block the van from re-entering onto 49th street.  The van attempted to go around Deputy Schanaker's car and ran head on into a utility pole.

The van struck the utility pole with such force it lead Officer Key to believe the driver was unconscious.  Officer Key had stopped his car at the N/W corner of the intersection of 49th Street and NE 40th Avenue.  Officer Torres had stopped his car where the van had entered into the car.  Both officer approached the van on foot.  Believing this was now a medical situation Officer Key did not haves weapon drawn as he approached the driver's side of the van.  Officer Torres, with his weapon drawn, approached from behind and went to he passenger side of the van and had his weapon drawn.

The driver of the van put the transmission in reverse and was attempting to flee.  The vans tires were spinning in the grass and mud as the van lurched backwards and toward the side that Officer Key was on.  Officer Key was struck by the vehicle and knocked him to the ground.  Officer Torres heard Officer Key yell out, but Officer Key had disappeared from his sight.  Officer Torres, believing that Officer Key was being run over by the van, fired his weapon at the driver.  Officer Torres recalled firing two separate volley's of rounds.  The second volley came after eh first volley appeared to have no effect on the driver and as the van made a  tight turn in reverse and appeared to. be heading in the directions where Officer Key had scrawled to the edge of the grass next to the roadway.


Officer Torres fired 11 rounds at the driver of the van until he slumped at the wheel.  The van continued rolling backwards, striking deputy Schanaker's patrol car and then was pinned to a stop by Officer Rawlins patrol car.  Officer Rawlins had just arrived on scene.

The driver of the van was transported to Emanuel Hospital where he succumbed from his gunshot wounds.  Officer Key was transported to SWWMC where he was treated for injuries to his left knee and hip.

CONCLUSION:

Officer Torres fired a total of 11 rounds in two separate volleys.  He fired until he felt the threat towards Officer Key was no longer present.  Officer Torres acted within the guidelines of RCW 9A.16.020 Use of Force and it is recommended that this case be cleared as a Justifiable Homicide in accordance with RCW 9A.16.040.


The telephone pole the van crashed into is marked by the grey icon.  From the previous pictures of the tire tracks, the van would have had to make more than a 360 degree turn, and back over Officer Key, who was supposedly underneath the tires of the vehicle east of the grey icon.  Torres testimony as to why he felt the need to shoot a second volley of shots into Jason Wilkinson was due to the fact the van was going to make a complete circle and run over his partner, who was in the middle of the street at the time the second volley of shots were fired, according to Torres.  Torres recounts seeing the outline of the back of Officer Key's vest, signifying he was no longer (if ever) underneath the tires of the minivan as it backed up.  

Torres account is nonsensical and illogical, in addition to being contradictory, as Judge Settle points out in his opinion.  

Anthony Davis places Officer Key in the street on the other side of the curb in the picture.  Torres states he shot Jason an additional 4 times due to the fact he believed the minivan was going to make a complete circle and run over Officer Key again.  This picture depicts where the van ended up after the shooting.  The van would have had to miss the police car and telephone poll in order to hit Officer Key who was in the middle of the street next to the grey curb.  The videotape taken the following day by Detective O'Dell when he interviewed Anthony Davis is not in the IA record.  Apparently this videotape is missing and is not mentioned in the IA investigation.  Nor is the placement of Officer Key noted when the shooting started.  

The recent interview of Anthony Davis on 3.30.19 and the statements he made the day of the shooting do not place Officer Key under the tires to the minivan.  Torres version of events that the vehicle was going to run over Officer Key "again" was a convenient fiction for his reasoning of pumping another 4 rounds into Jason Wilkinson.  

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