This afternoon, U.S. District Court Judge Thomas Zilly issued an order in the wrongful death lawsuit filed over the killing of Che Taylor by Seattle Police Department officers. His order dismisses some of the claims — as well as some of the plaintiffs and defendants — and clears the path for what remains to proceeds to a jury trial.
This is the third lap around the track for this case: the plaintiffs have amended their complaint twice, and with each successive version the defendants have filed motions to have the case partially dismissed. The complaint has remained largely the same, though, and Judge Zilly has given the defendants partial wins each time.
As a reminder, Che Taylor was shot dead in February 2016 by SPD officer Michael Spaulding while he and his partner Scott Miller were attempting to arrest him. In February 2018, Taylor’s mother, children, and the estates of Taylor and his deceased wife Brenda filed suit against Spaulding, Miller, the City of Seattle, and the two officers (Timothy Barnes and Audi Acuesta) who responded to the scene as backup before the shooting to assist with Taylor’s arrest.
Today’s ruling was in response to a motion for summary judgment by the defendants that included several overlapping requests to dismiss some or all of the charges for various reasons. Courts may only grant motions for summary judgment when the relevant facts are not in dispute and all that remains to decide are issues of interpreting the law; otherwise the case must proceed to trial where a judge or jury will hear evidence and testimony to resolve factual disputes. Judge Zilly’s ruling today was a mixed bag: on some issues he found the relevant facts to be clear and made a ruling on the law; on other issues he found the facts to be very much in dispute and declined to rule, leaving the matters to a future jury to decide.
Zilly begins his 28-page ruling by recapping the events preceding the shooting — at least the parts that are not in dispute. Spaulding and Miller, part of SPD’s “anti-crime team,” were in a parked car conducting surveillance on an apartment building in order to arrest another individual with an outstanding arrest warrant. Che Taylor drove onto the scene, and when he exited his car Miller recognized him and noticed that he was wearing a holster on his right hip that contained a gun; it’s a crime for a felon such as Taylor to be in possession of a firearm. Taylor entered the building, and Miller radioed for backup to assist in the arrest of Taylor; Barnes and Acuesta responded to the scene, staging a block away. The plan was that when Taylor existed the building, Miller and Spaulding would signal and both pairs of officers would move in to arrest him. However, then an SUV drove in and parked in a position that partially blocked Miller and Spaulding’s views; they saw that Taylor came outside and was talking with two other individuals, but then they lost sight of him, and when the SUV subsequently left, Taylor was gone. Thirty minutes later, a different car pulled in containing three individuals, with Taylor in the front passenger seat. Taylor stepped out of the car and remained in the doorway facing into the car. Miller and Spaulding signaled Barnes and Acuesta, exited their car armed with a rifle and shotgun, announced themselves as police and approached Taylor while officers Barnes and Acuesta arrived on the scene and exited their vehicle.
The remainder of the incident lasted only about 5-6 seconds, the facts surrounding it are in dispute, and the dash-cam video footage from the car driven by Barnes and Acuesta is mostly blocked by the car that Taylor had just arrived in and provides little illumination. All four officers shouted commands at Taylor, potentially confusing combinations of “get your hands up” and “get down on the ground.” Taylor appeared to lean back into the car, and then according to the four officers he moved his right arm as if he was reaching for a gun in his hip holster. That was when Spaulding said “hey no” twice before shooting Taylor.
With Taylor now lying on the ground, Spaulding approached him and saw that the holster was empty. A later search found a gun underneath the front passenger seat, of the type that would typically be matched with Taylor’s holster. The other two occupants of the car have provided testimony that, according to the judge, neither contradicts the police officers’ account nor fully corroborates it.
Judge Zilly referred to the case not as “he said, she said,” but rather as “they said, he’s dead.” Che Taylor can’t testify, and with limited hard evidence to go on, the case largely revolves around the credibility of the testimony of the four officers.
In his ruling the judge quickly takes care of narrowing the case down, largely by repeating similar rulings he had made on earlier versions of the complaint. He dismissed the claims against Officers Barnes and Acuesta, since the plaintiffs presented no evidence that either of them violated any of Taylor’s rights or broke the law. He also dismissed the claims against the City of Seattle under federal law; as we have discussed before, suing the city for the actions of city employees requires proof that the employees were acting upon a stated policy or practice of the city, and the plaintiffs did not establish that. Finally, he dismissed the due process claims by the estates of Taylor and his deceased wife, because those claims “lack merit.” That leaves the bulk of the case being the claims by Taylor’s mother and children against Officers Spaulding and Miller.
Keeping in mind that motions for summary judgment require the relevant facts not to be in dispute, Judge Zilly largely found the rest of the claims to be based upon facts that are still very much in dispute, and thus declined to grant summary judgment. That said, it’s worth reviewing some of the specific issues he discussed, as they will be the heart of the jury trial.
The first key question is whether Spaulding and Miller had probable cause to arrest Taylor at the time they shot him. They almost certainly did thirty minutes earlier, when Miller believes he saw Taylor carrying a gun in his holster. But then Taylor left the scene, and when he returned thirty minutes later the officers did not have a clear view as to whether he was still carrying it. Judge Zilly ruled that in such a situation existing case law requires an officer to re-confirm possession of the firearm before there is probable cause. This is extremely damaging to the officers’ case and will be a substantial issue at trial. The judge has essentially ruled that the officers did not have probable cause to arrest Taylor when they shot him during an attempt to arrest him, though officially he ruled that “the factual matters underlying the judgment of reasonableness generally mean that probable cause is a question for the jury.”
The Ninth Circuit has described as a “bedrock Fourth Amendment precept” that an arrest must be supported by probable cause. Beier, 354 F.3d at 1065. In Beier, which was decided twelve years before the events of this case, the Ninth Circuit admonished officers who arrested a man for violating a protection order without having acquainted themselves with the terms of the order so that they could assess whether the man had actually violated it. Id. at 1069-72. Although factually distinct, Beier suggests that officers whose mistakes of fact or mixed law and fact stem from a failure to adequately investigate should not be insulated from liability. See id. at 1071-72. The Court is satisfied that, at the time Miller and Spaulding took steps to arrest Taylor, the “clearly established” law required them, in light of the intervening circumstances, to confirm their original basis for probable cause.
The second big factual question is whether Taylor was actually reaching for a gun. The four officers all said yes, and the two other witnesses in the car did not contradict them. However, Judge Zilly went to great pains in his ruling to point out that a jury still might decide that the four officers are not credible and disbelieve them; in fact, he pointed to existing case law where the Ninth Circuit validated just such an outcome; for the purposes of a motion for summary judgment, the statements of the four officers alone is not sufficient to establish the truth, and the plaintiffs will have the opportunity to try to impeach their testimony at trial.
The two other big issues that the judge discussed relate to the two “free passes” that police officers have that often protect them from this sort of lawsuit. The first is the highly controversial doctrine of “qualified immunity” that has been gradually expanded by the U.S. Supreme Court and has recently come under fire for providing nearly universal immunity for officers. Judge Zilly himself said that qualified immunity is “due for a major overhaul,” while also acknowledging that he is bound to follow the precedents set by higher courts. The doctrine holds that officers are immune from being sued for their on-duty actions if either:
- the facts of the case don’t demonstrate a constitutional violation; or
- the constitutional right being asserted wasn’t clearly established at the time of the incident.
At this point in the case, Judge Zilly was unwilling to rule on whether the facts demonstrate a constitutional violation; he will leave that to a jury at trial.
The second “free pass” is a rule stating that officers have an absolute defense against personal injury or wrongful death lawsuits for actions when the individual in question was in the act of committing a felony. Again, the judge found that the facts as to whether Taylor was committing a felony (i.e. in possession of a firearm) are in dispute.
However, neither of these “free passes” are off the table; once a jury decides on the facts, Judge Zilly will need to revisit these two rules to decide whether either one — or both — apply. And when the trial wraps up and the jury is sent off to deliberate, expect the parties and the judge to ask them to address those two factual questions directly — along with all of the other issues that the case presents.
At the beginning of the year, the case was proceeding rapidly towards a trial date of June 12; then COVID-19 happened. At the moment, the federal courthouse is still closed, and there is no date set for the beginning of the trial. However, Judge Zilly has pushed ahead with nearly all of the pre-trial work, such that the case is nearly ready for trial. It could begin perhaps as early as next month, provided that the parties and the judge come to agreement on one key question: the format for a trial. Where possible, state and federal courts have begun scheduling trials that are either fully online or hybrid (part in court, part online), but whether that it an option depends on both the type of trial and the parties’ willingness to accommodate the constraints of the format. In this case, with so much hanging on the credibility of the four officers’ testimony, both the plaintiffs and the defendants will be asking themselves whether they want a jury to sit in the same room with the officers when they decide whether they believe them. If the conclusion is that the trial needs to be in-person, then it may be well into 2021 before a jury hears the case.
But there is one more deeply unsettling question that must be asked: given everything that has happened this summer — both locally and nationally — is it even possible to seat a jury for this case? Is there anyone left in Seattle who doesn’t have a strong opinion on defunding SPD? Or who hasn’t seen the George Floyd video, or footage of SPD lobbing tear-gas and blast balls into crowds, or the police violence in Portland and Kenosha? Thousands of Seattle residents have marched in protest over police violence; should all of them be disqualified from sitting on a jury? In the latter months of 2020, how do you find twelve people to sit on a jury and decide objectively whether two police officers acted reasonably? Is it inevitable that such a jury will exhibit the same deep divide as in our local and national politics — and if the best we can hope for is a “balanced” jury, is it destined to be a hung jury, unable to reach consensus?
We will soon find out.
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