1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 After oral argument on April 6, 2007, the Court GRANTED IN PART the motion and

DISMISSED with prejudice Plaintiffs’ state law claims against the Cities and the Port, which

were set forth in Plaintiffs’ Seventh, Eighth, Tenth and Eleventh Causes of Action, for the

reasons stated on the record in open court. See Minutes, docket no. 187.

ORDER 1–

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

THE ESTATE OF JAMES F. BRUTSCHE,

et al.,

Plaintiffs,

v.

CITY OF FEDERAL WAY, et al.,

Defendants.

No. C05-1538Z

ORDER

This matter comes before the Court on Defendants City of Federal Way, City of

Auburn, City of Kent, City of Renton, City of Tukwila, and the Port of Seattle (“the Cities’

and the Port’s”) Motion for Summary Judgment Re: Plaintiffs’ 42 U.S.C. § 1983 Claims and

State Law Claims, docket no. 134, as to the federal claims.1

 The Court DENIES IN PART,

GRANTS IN PART, and DEFERS IN PART the motion as to the federal claims, as outlined

below. 

//

//

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 1 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 2–

BACKGROUND

The Cities and the Port have formed a SWAT team, called the Valley Special

Response Team, or “VSRT,” by Interlocal Cooperative Agreement. Muenster Decl., docket

no. 149, Ex. G (Interlocal Cooperative Agreement). One of the purposes of the SWAT team

is to serve “narcotic/high risk search warrants.” Id., Ex. G at 734. The SWAT team is

governed by an executive board whose members are the police chief, or his/her designee,

from each participating jurisdiction. Id., Ex. G at 735. This board develops the SWAT

team’s policies, which take precedence over any conflicting policies of an individual

jurisdiction. Id., Ex. G at 736. 

This case arises from the SWAT team’s execution of a search warrant on July 10,

2003 on the Brutsche property located at 426 Naden Avenue, in Kent, Washington, and the

resulting injuries to James Frederick Brutsche (“Jim Brutsche”). Muenster Decl., docket no.

71, Ex. E (Search Warrant). Jim Brutsche resided in a mobile home on the property at the

time. Further factual background is presented in the Court’s Order, docket no. 113, at 1-4,

and in the Discussion Section below.

DISCUSSION

I. Summary Judgment Standard

Summary judgment shall be rendered “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” FED. R. CIV. P. 56(c).

II. Fourth Cause of Action: Damages to the Parent/Child Relationship

Plaintiffs allege that Defendants violated Jim Brutsche’s and his parents’ Fourteenth

Amendment substantive due process rights. First Am. Compl. ¶¶ 159-169. The Court

previously granted summary judgment on Mr. Brutsche’s parents’ substantive due process

claims as alleged against certain “uninvolved” officers – namely, Rankin, Sidell, Villa,

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 2 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 The Court also dismissed the claim against Officer Adam, but later reinstated the claim

against Officer Adam on Plaintiffs’ motion for reconsideration. See Order, docket no. 113, at

16; Order, docket no. 131, at 4-5.

ORDER 3–

Courtney, and Cline2 – because Plaintiffs failed to provide any evidence that the officers had

any “purpose to cause harm unrelated to the legitimate object of arrest.” See Order, docket

no. 113, at 14-16 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998)). At

the pretrial conference and with Plaintiffs’ consent, the Court dismissed the Estate’s

substantive due process claims as alleged against these same officers based on the same

rationale. Minutes, docket no. 188. 

In support of the present motion for summary judgment, the Cities and the Port argue

that Plaintiffs have similarly failed to provide any evidence that the Cities and the Port had

any purpose to cause harm unrelated to the legitimate object of arrest. Plaintiffs, however,

do not have to prove specific intent on the part of a municipality to achieve liability under

Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). See

Biberdorf v. Oregon, 243 F. Supp. 2d 1145, 1155-56 (D. Ore. 2002). Lewis explicitly did

not address the issue of municipal liability. Lewis, 523 U.S. at 838 n.2 (“the issue of

municipal liability is not before us”); see also Moreland v. Las Vegas Metro. Police Dep’t,

159 F.3d 365, 372-73 (9th Cir. 1998) (applying Lewis’s “purpose to commit harm” standard

to officers, not municipalities). The Cities and the Port failed to provide any case law in

which a plaintiff was required to show a purpose to cause harm on the part of a municipality

in order to achieve Monell liability. 

Accordingly, the Court DENIES the Cities’ and the Port’s summary judgment motion

as to the Fourth Cause of Action, and Plaintiffs’ substantive due process claims against the

Cities and the Port remain for trial.

III. Sixth Cause of Action: Municipal Liability for Defendant Cities and Port

Plaintiffs allege that the Cities and the Port are liable under 42 U.S.C. § 1983 

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 3 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 4–

(“Section 1983”) because their policies, practices, and customs caused the unreasonable use

of force in the execution of a narcotics search warrant and because the police chiefs ratified

the officers’ unreasonable use of force after the raid and failed to take disciplinary action

against any officers, thus violating Plaintiffs’ Fourth Amendment rights. First Am. Compl.

¶¶ 182-194. “[T]he use of force to effect an arrest is subject to the Fourth Amendment’s

prohibition on unreasonable seizures.” Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994). 

In their opening brief, the Cities and the Port argue that the officers were adequately

trained and that Plaintiffs have failed to show deliberate indifference on the part of the Cities

and the Port. Plaintiffs respond that this is not a “deliberate indifference” failure to train

case and contend that the Cities and the Port “blur theories of § 1983 municipal liability

which in fact are analytically distinct.” Pls.’ Opp’n, docket no. 148, at 3, 16. Plaintiffs

correctly assert that “deliberate indifference” applies in failure to train, supervise and screen

cases, but not in cases where the municipality acts affirmatively in adopting a policy, makes

a decision to deploy the SWAT team, or ratifies the SWAT team’s actions after the fact, as

alleged in this case. See Biberdorf v. Oregon, 243 F. Supp. 2d at 1154-56 (“deliberate

indifference is a critical element when the policy at issue is one of omission or failure to act”

but is not an element in Section 1983 cases where a plaintiff is attacking an affirmative

policy or action). The Court concludes that deliberate indifference is not applicable to

Plaintiffs’ Section 1983 claim against the Cities and the Port.

Here, the reasonableness of the officers’ use of force on Mr. Brutsche is at issue, and

the municipalities which employ the officers are being sued under Section 1983. 

Municipalities are “persons” subject to suit under 42 U.S.C. § 1983. See Monell, 436 U.S. at

691 n.55. However, “a municipality cannot be held liable solely because it employs a

tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on a

respondeat superior theory.” Id. at 691 (emphasis in original). Section 1983 “imposes

liability on a government that, under color of some official policy, ‘causes’ an employee to

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 4 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 5–

violate another’s constitutional rights.” Id. “City policy ‘need only cause the constitutional

violation; it need not be unconstitutional per se.’” Watkins v. City of Oakland, 145 F.3d

1087, 1092 (9th Cir. 1998) (quoting Chew v. Gates, 27 F.3d at 1444). “City policy ‘causes’

an injury where it is ‘the moving force’ behind the constitutional violation.” Chew v. Gates,

27 F.3d at 1444 (quoting Monell, 436 U.S. at 694). To prevail at trial, Plaintiffs need to

“show that the specific use of force . . . violated the Constitution, and that city policy caused

the unconstitutional application of force in this instance.” Chew v. Gates, 27 F.3d at 1444

n.12. “Where a plaintiff claims that the municipality has not directly inflicted injury, but

nonetheless has caused an employee to do so, rigorous standards of culpability and causation

must be applied to ensure that the municipality is not held liable for the actions of its

employee.” Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 405

(1997).

Plaintiffs assert that the SWAT team’s policies, not the individual municipalities’

policies, caused the unreasonable use of force against Jim Brutsche. The Cities and the Port

do not dispute that the chiefs of police of each defendant city are the final policymakers for

their respective cities in making the SWAT team’s policies. Thus, it is undisputed that the

SWAT team’s policies constitute official policies of the Cities and the Port, and the issue

before the Court is whether the SWAT team’s policies caused (i.e., were the moving force

behind) the alleged unreasonable use of force against Jim Brutsche. Plaintiffs contend the

SWAT team’s policies give rise to Monell liability in three ways.

First, Plaintiffs argue that the SWAT team’s policies caused the unreasonable use of

force because they call for the deployment of a SWAT team in narcotic search warrants,

regardless of the quantity of drugs suspected to be involved and regardless of the fact that the

police have no information that any weapons are present on the property to be searched. The

specific policy at issue here is the SWAT team’s operation manual’s provision for “Dynamic

Warrant Service,” which deploys the SWAT team for “high-risk” warrants. Muenster Decl.,

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 5 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 6–

docket no. 150, Ex. H. Warrants are categorized as “high-risk” based on the following seven

factors: 

“High-Risk”

a) The circumstances are unusual and beyond the capabilities of normal

warrant service. 

b) The location is heavily fortified. 

c) Shooters are known to be present.

d) Weapons are present and being used (high power, high volume, automatic,

etc.).

e) Gang members are known to be present.

f) The propensity for violence exists.

g) Dynamic entry is necessary to prevent destruction of evidence.

Muenster Decl., docket no. 150, Ex. H (VSRT’s “Dynamic Warrant Service” policy) at 1, 

Index page 8058. Chief James Kelly testified that contrary to Plaintiffs’ assertion, the

presence of weapons is a consideration in the risk analysis. Suppl. Gavery Decl., docket no.

153, Ex. F (Kelly Dep.) at 30:6-7. This is plain from the above-listed factors. Chief Kelly

also testified in his deposition that the SWAT team could be deployed even if the police have

no information that the person has weapons, depending on the other factors. Id. at 30:20-

31:7. He explained that a numerical count of these factors does not automatically mean

deployment, and that alternatives are explored. Id. at 31:24-32:6. 

In the present case, the parties dispute whether the warrant should have been

classified as “high-risk.” Plaintiffs argue that it was unreasonable to deploy the SWAT team

to serve this warrant based merely on two $20 controlled buys of a controlled substance (i.e.,

methamphetamines). See Muenster Decl., docket no. 149, Ex. K (Danaher Decl.) at 5. The

SWAT team’s Dynamic Warrant Service policy, however, allows for other considerations to

be taken into account in assessing risk, and other considerations were, in fact, taken into

account. See, e.g., Suppl. Gavery Decl., docket no. 153, Ex. B (Statement of Detective

David McKenzie) at 867 (suspecting the manufacture of methamphetamines); id. Ex. C

(Bridgman Dep.) at 14-17 (testifying to prior controlled buys of narcotics by King County

Detectives Bridgman and Herndon and prior search warrant on the Brutsche property); Ex. E

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 6 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 7–

(Villa Decl.) ¶¶ 5-6 (basing high risk status on the “logistical layout of the property” and “the

known lifestyle of those involved in the methamphetamine trade”); id. Ex. D (Majak Decl.) ¶

4 (noting that “persons involved in the methamphetamine trade are typically paranoid,

irrational and are often armed to protect themselves from other criminals”); id. Ex. E (Villa

Decl.) ¶ 7 (noting that Valley Narcotics Enforcement Team (“VNET”) detectives had

reported that the property owner allowed multiple suspected drug users to sleep/live

throughout the property). 

The Court need not resolve this dispute. The Court’s task on summary judgment is to

determine whether there is any evidence that the SWAT team’s Dynamic Warrant Service

policy caused the alleged unreasonable use of force against Jim Brutsche, not to determine

whether the SWAT team’s deployment was reasonable. Plaintiffs have failed to provide any

evidence that Jim Brutsche was injured by any reason specific to the SWAT team’s policies

and procedures. Because the Dynamic Service Warrant policy, which was used to decide to

deploy the SWAT team in this case, cannot be considered the cause of, or the moving force

behind, Jim Brutsche’s injuries, the Court GRANTS IN PART the Cities’ and the Port’s

motion for summary judgment, and DISMISSES with prejudice the Sixth Cause of Action to

the extent that it is based on the VSRT’s Dynamic Warrant Service policy.

Second, Plaintiffs argue that the SWAT team’s policies violate the standards in

Graham v. Connor, 490 U.S. 386, 396 (1989). Graham discusses standards for determining

whether the force used to effect a particular seizure is “reasonable” under the Fourth

Amendment:

[This determination] requires a careful balancing of the nature and quality of

the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake. . . . [T]he test of reasonableness

under the Fourth Amendment . . . requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the

officers or others, and whether he is actively resisting arrest or attempting to

evade arrest by flight. . . . The “reasonableness” of a particular use of force

must be judged from the perspective of a reasonable officer on the scene, rather

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 7 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 8–

than with the 20/20 vision of hindsight. The calculus 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.

490 U.S. at 396-97 (internal quotations and citations omitted) (emphasis added). 

Plaintiffs have not identified any SWAT team policy that violated Graham and caused

an unreasonable use of force, but they appear to be attacking the Valley Special Response

Team’s “Use of Force” policy. Muenster Decl., docket no. 149, Ex. I. The VSRT’s Use of

Force policy states, in pertinent part, as follows:

NEED: Members shall use a reasonable amount of force necessary to

accomplish the arrest, overcome resistance to arrest, defend themselves or

others from harm, or to control a situation. The degree of force used should be

in direct relationship to the amount of resistance perceived by the member, or

the imminent threat the person poses to the member or others.

Id. at Index page 4906 (emphasis added). Plaintiffs assert that this policy does not consider

the Graham “severity of the crime” factor because the quantity of drugs suspected to be

found is not a required consideration of the policy. Plaintiffs have provided no evidence that

the quantity of drugs should be the basis for determining the severity of the crime and the

concomitant need for force. Furthermore, the severity of the crime, as well as the other

Graham factors, are not requirements for every use of force policy, but rather are

considerations for a court in determining the reasonableness of force ex post facto. 

Plaintiffs also assert that this policy impermissibly considers “imminent” threats to

officers, which, they argue, is different and broader than the “immediate” threat recited in

Graham. Even if the Court is to accept that “imminent” does not have a time limitation, as

Plaintiffs argue was testified to by Lieutenant Villa, Plaintiffs have provided no evidence that

the policy’s use of “imminent” rather than “immediate” had an effect on the officers’ use of

force against Jim Brutsche. Because Plaintiffs cannot prove that the “imminent” language in

the VSRT’s Use of Force policy caused, or was the moving force behind, Jim Brutsche’s

injuries, the Court GRANTS IN PART the Cities’ and the Port’s motion for summary

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 8 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 9–

judgment, and DISMISSES with prejudice the Sixth Cause of Action to the extent that it is

based on the VSRT’s Use of Force policy.

Third, Plaintiffs argue that the SWAT team’s policies violate the Fourth Amendment’s

“knock and wait” requirement, and they rely on Richards v. Wisconsin, 520 U.S. 385 (1997),

and Wilson v. Arkansas, 514 U.S. 927 (1995). See Pls.’ Opp’n at 20. These cases discuss

how the Fourth Amendment protects against unreasonable searches and seizures by requiring

that, absent “countervailing law enforcement interests,” an officer must knock on the door

and announce his presence before using force to gain entry. Wilson, 514 U.S. at 929, 934,

936 (holding that the “common law ‘knock and announce’ principle forms a part of the

reasonableness inquiry under the Fourth Amendment”); see also Richards, 520 U.S. at 387. 

The knock-and-announce requirement could give way “under circumstances presenting a

threat of physical violence” or “where police officers have reason to believe that evidence

would likely be destroyed if advance notice were given.” Wilson, 514 U.S. at 936; see also

Richards, 520 U.S. at 394 (“In order to justify a ‘no-knock’ entry, the police must have a

reasonable suspicion that knocking and announcing their presence, under the particular

circumstances, would be dangerous or futile, or that it would inhibit the effective

investigation of the crime by, for example, allowing the destruction of evidence.”). “[L]ower

courts [have] the task of determining the circumstances under which an unannounced entry is

reasonable under the Fourth Amendment.” Wilson, 514 U.S. at 396; see also Richards, 520

U.S. at 394 (“[I]t is the duty of a court . . . to determine whether the facts and circumstances

of the particular entry justified dispensing with the knock-and-announce requirement.”). The

showing of exigent circumstances “is not high, but the police should be required to make it

whenever the reasonableness of a no-knock entry is challenged.” Richards, 520 U.S. at 394-

95.

Here, Plaintiffs argue that the VSRT’s Operations Manual’s “Verbal Commands”

policy does not comply with the Fourth Amendment. In particular, Plaintiffs point to the

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 9 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 Whether or not the officers in this case knocked and announced their presence in

conformity with the Fourth Amendment is a factual issue disputed by the parties, and one for

the jury to decide in connection with determining the liability of the officers. Compare Suppl.

Decl. Gavery, docket no. 153, Ex. G (Philips Dep.) at 48-49 (witness inside mobile home

testifying that the police made four announcements over a loudspeaker, “Kent SWAT Police.

Come out with your hands in the air,” over a ten second period prior to entry); Muenster Decl.,

docket no. 71, Ex. Y (Ulrich Dep.) at 15-17, 24-26 (witness inside mobile home not testifying

to any knocking or announcements when explaining how he knew the police were present).

However, the Court concludes that this factual issue is not relevant to the knock and announce

claim against the municipalities.

ORDER 10–

following language in the policy for entering buildings: “A designated officer will announce

clearly and loudly ‘POLICE, SEARCH WARRANT, GET DOWN’ as the team enters.” 

Muenster Decl., docket 150, Ex. H (VSRT’s Verbal Commands) at 1, Index page 8047

(emphasis added). On its face, however, the Verbal Commands policy does not dispense

with the knock and announce requirement. See id. at 1-2, Index pages 8047-8048 (referring

to plans that call for “knock and announce” entries). Indeed, the plan in this case included a

knock and announce element. See Muenster Decl., docket no. 71, Ex. I (VSRT Operations

Order) at Index page 986 (SWAT team members “1-8 will stack on the south 1 side door,

knock and announce, breach front door if necessary, deploy NFDD, enter and clear

residence”) (emphasis added). This case does not involve a policy with a per se exception to

the knock-and-announce requirement. Cf. Richards v. Wisconsin, 520 U.S. 385, 391-94

(1997) (rejecting the Wisconsin court’s blanket exception to the knock-and-announce

requirement for felony drug investigations). Accordingly, the Verbal Commands policy does

not violate the Fourth Amendment by eliminating the knock-and-announce requirement.3

The Court’s inquiry does not stop here. Plaintiffs have characterized the Fourth

Amendment requirement as a “knock and wait” rather than a “knock and announce”

requirement, and Plaintiffs have asserted that the Verbal Commands policy does not comply

with the Fourth Amendment because it allows simultaneous announcement and entry. The

Richards and Wilson cases relied upon by Plaintiffs do not address the need for officers to

wait after knocking and announcing their presence. Plaintiffs’ entire “knock and wait”

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 10 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4

 United States v. Banks addressed the issue of “how to go about applying the standard

of reasonableness to the length of time police with a warrant must wait before entering without

permission after knocking and announcing their intent in a felony case,” and concluded that the

reasonableness of the wait time should be assessed using a “totality of the circumstances”

analysis. Banks, 540 U.S. at 35, 41. 

5 As with the knock and announce issue, the facts need to be developed at trial as to

whether and for how long the officers waited after announcing their presence and authority, and

as to whether exigent circumstances were present.

ORDER 11–

argument is set forth in four sentences in their brief in opposition to Defendants’ motion for

summary judgment, and it is not fully developed. See Pls.’ Opp’n at 20. At oral argument,

Plaintiffs further developed their “knock and wait” argument, asserting that Jim Brutsche’s

injuries would not have occurred had the officers waited a reasonable time after announcing

their presence. But Plaintiffs still failed to cite any relevant case law, such as United States

v. Banks, 540 U.S. 31 (2003),4 to support their contention that the Fourth Amendment

requires officers to wait after announcing their presence. Defendants also failed to apply

United States v. Banks to support their contention that the SWAT team was justified in

dispensing with the “knock and wait” requirement.5

 See Defs.’ Reply at 8. Because the

issues have not been adequately developed by either party, the Court DEFERS IN PART the

Cities’ and the Port’s motion for summary judgment on the “reasonable wait time” issue. 

In addition to Plaintiffs’ contentions that the SWAT team’s policies give rise to

Monell liability, Plaintiffs argue that the Cities and the Port are liable under Section 1983 for

the unreasonable use of force on Jim Brutsche because the executive board ratified the

officers’ use of force by approving of the actions of the SWAT team after the raid took place. 

The Ninth Circuit summarizes the ratification doctrine as follows:

The ratification doctrine, asserted as a basis for municipal liability, originated

in St. Louis v. Praprotnik, 485 U.S. 112 (1988). There, a plurality of the

Supreme Court stated that ‘[i]f the authorized policymakers approve a

subordinate’s decision and the basis for it, their ratification would be

chargeable to the municipality because their decision is final.’ Id. at 127. But

the sentence from Praprotnik must be read in context. The Court held in

Praprotnik that to establish municipal liability, a plaintiff must ‘prove [ ] the

existence of an unconstitutional municipal policy.’ Id. at 128. A single

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 11 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 12–

decision by a municipal policymaker ‘may be sufficient to trigger section 1983

liability under Monell, even though the decision is not intended to govern

future situations,’ Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992)

(citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986)), but the

plaintiff must show that the triggering decision was the product of a

‘conscious, affirmative choice’ to ratify the conduct in question. Gillette, 979

F.2d at 1347. In the present case, Haugen has made no such showing. . . .

[H]ere there are no facts in the record that suggest that the single failure to

discipline Haugen rises to the level of such a ratification. See, e.g., Santiago v.

Fenton, 891 F.2d 373, 382 (1st Cir. 1989) (refusing to hold that the ‘failure of

a police department to discipline in a specific instance is an adequate basis for

municipal liability under Monell’). The City of Puyallup and the Puyallup

Police Department are therefore entitled to summary judgment.

Haugen v. Brosseau, 339 F.3d 857, 875 (9th Cir. 2003), rev’d on other grounds, 543 U.S.

194 (2004). Plaintiffs assert, without any evidentiary citations, that “. . . the executive board

of the SWAT team reviewed the deployment of the SWAT team in this case at its executive

board meeting after the raid took place, and approved of the same. Chief Kelly testified that

the board typically inquires into whether there was property destruction or injury to officers

or civilians.” Pls.’ Opp’n at 16. Although the Cities and the Port do not contest these facts,

see Defendants’ Reply at 9, Plaintiffs have failed to show that the VSRT’s executive board

made a “conscious, affirmative choice” to ratify the use of force in question. See Haugen,

339 F.3d at 875. Moreover, as in Haugen, there are no facts in the record that suggest that

the single failure to discipline the officers who injured Jim Brutsche rises to the level of such

a ratification. Accordingly, the Court GRANTS IN PART the Cities’ and the Port’s motion

for summary judgment, and DISMISSES with prejudice the Sixth Cause of Action to the

extent that it is based on the ratification doctrine.

CONCLUSION

The Court DENIES IN PART, GRANTS IN PART, and DEFERS IN PART

Defendants Cities’ and Port’s Motion for Summary Judgment, docket no. 134, as to the

federal claims, as follows: 

(1) The Court DENIES the motion as to Plaintiffs’ Fourth “Damage to the

Parent/Child Relationship” Cause of Action under 42 U.S.C. § 1983 and the Fourteenth

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 12 of 13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER 13–

Amendment. Accordingly, Plaintiffs’ substantive due process claims against the Cities and

the Port remain for trial. 

(2) The Court GRANTS IN PART and DEFERS IN PART the motion as to Plaintiffs’

Sixth “Municipal Liability of Defendant Cities and Port” Cause of Action under 42 U.S.C. §

1983 and the Fourth Amendment. The Court GRANTS IN PART the motion and

DISMISSES with prejudice Plaintiffs’ Sixth Cause of Action to the extent that it is based on

the VSRT’s Dynamic Warrant Service policy, the VSRT’s Use of Force policy, and the

ratification doctrine. The Court DEFERS IN PART the motion on the “reasonable wait

time” issue. 

DATED this 11th day of April, 2007.

A 

THOMAS S. ZILLY

United States District Judge

Case 2:05-cv-01538-JLR Document 200 Filed 04/11/07 Page 13 of 13