[00:00:00] Speaker 03:
Good morning.

[00:00:00] Speaker 03:
I may please the court.

[00:00:01] Speaker 03:
My name is Ryan Jevers-Scratton.

[00:00:02] Speaker 03:
I represent the plaintiff and the petitioner, Brian Tofte, who is the father and the personal representative of the estate of his late son, Justin Tofte.

[00:00:12] Speaker 03:
This case concerns whether the plaintiff met his burden on the application of Washington State's public duty doctrine, and the plaintiff did meet his burden.

[00:00:21] Speaker 03:
The trial court made three underlying errors that require reversal and remand this case.

[00:00:26] Speaker 03:
First, the trial court decided matters that were not in the defendant's opening brief.

[00:00:31] Speaker 01:
We don't need to find that there was an error by the district court.

[00:00:33] Speaker 01:
We're reviewing this de novo, correct?

[00:00:35] Speaker 03:
Correct.

[00:00:36] Speaker 03:
Yes, correct.

[00:00:39] Speaker 03:
The trial court decided matters that were not in the defendant's opening brief and which plaintiff did not have an opportunity to respond to.

[00:00:46] Speaker 03:
So let's take a look at by looking at what was brief on page 26 of the city's motion for summary judgment.

[00:00:53] Speaker 03:
three sentences asserting that law enforcement owed no duty to the decedent pursuant to the public duty doctrine.

[00:01:00] Speaker 03:
In response, plaintiff cited the duty to use ordinary care and avoid unreasonably escalating an encounter to use deadly force, and we cited two cases for that.

[00:01:09] Speaker 03:
Beltran-Saraño, a 2019 Washington State Supreme Court case, and Joseph the City of Kent, a 2021 District Court case that stand for exactly that proposition.

[00:01:21] Speaker 03:
And on reply in one sentence on page 12 of their reply brief, the city actually acknowledged that the plaintiff had identified a common law duty of care and thereby conceding the issue that should have been the end of it.

[00:01:34] Speaker 03:
That was the only.

[00:01:37] Speaker 03:
Issue that they move for on summary judgment the plaintiff's negligence claim should have been tried to the jury just like plaintiffs other claims But instead we're here and we're here because the city also went on to argue for the first time on Reply to the plaintiff had not created a genuine issue of material fact regarding the breach of that You're appealing the district court's decision correct so where did the district court go wrong in concluding that the public duty doctrine is

[00:02:04] Speaker 04:
Sure.

[00:02:05] Speaker 04:
So... Foreclosed your negligence claim.

[00:02:07] Speaker 03:
Absolutely.

[00:02:08] Speaker 03:
So the duty that was identified by the plaintiff below was a common law duty.

[00:02:16] Speaker 03:
The same duty that was stated by the court in Beltran-Serrano, it's been recognized by our court system for over a hundred years.

[00:02:26] Speaker 03:
Beltran-Serrano cited the case of Johns v. Clark for this proposition.

[00:02:31] Speaker 03:
It's a common law duty.

[00:02:33] Speaker 03:
On the other hand, as made clear by the Washington State Supreme Court in North versus City of Seattle, quote, the public duty doctrine applies only to claims based on alleged breach of special government obligations that are imposed by statute or ordinance, not common law negligence.

[00:02:50] Speaker 04:
So for some strange reason, the district court

[00:02:54] Speaker 04:
didn't grapple with those cases.

[00:02:56] Speaker 04:
Correct.

[00:02:57] Speaker 04:
Is that right?

[00:02:57] Speaker 04:
Correct.

[00:02:58] Speaker 04:
That is correct.

[00:02:58] Speaker 04:
And it's your view that if the district court had taken a hard look at those cases, might not have ruled the way it did.

[00:03:06] Speaker 04:
Is that right?

[00:03:07] Speaker 03:
Well, the public duty doctrine just did not apply in general to a common law.

[00:03:12] Speaker 04:
Well, I'm trying to get at what the district court would have done if the district court had read these cases carefully.

[00:03:17] Speaker 03:
Right.

[00:03:17] Speaker 03:
So if the district court would have read these cases carefully, it would have decided the public duty doctrine did not apply, that there was a common law duty to exercise reasonable care and law enforcement duties.

[00:03:32] Speaker 01:
And then there would be a genuine issue of material fact that was correct that would allow your claim to go beyond summary judgment.

[00:03:38] Speaker 03:
Correct.

[00:03:40] Speaker 03:
But it didn't get there.

[00:03:41] Speaker 03:
It just ruled that, well, it did get there.

[00:03:43] Speaker 03:
And it ruled that there was, that we were stopped by, there was no duty.

[00:03:50] Speaker 03:
Then additionally, that even if there was a duty, we didn't create an issue of material fact.

[00:03:57] Speaker 03:
But that sort of goes back to the issue to begin with.

[00:04:00] Speaker 03:
It wasn't argued in their motion that anything outside of the public duty doctrine that we couldn't meet our burden to create a genuine issue of material fact.

[00:04:09] Speaker 03:
So that's not what we briefed.

[00:04:11] Speaker 03:
But also importantly, there was material in the briefing

[00:04:16] Speaker 03:
That would allow the court to find an issue of material fact.

[00:04:20] Speaker 03:
First, there was no tactical plan.

[00:04:22] Speaker 03:
This meant that there was no de-escalation techniques contemplated.

[00:04:25] Speaker 03:
There was no contact or cover roles identified.

[00:04:28] Speaker 03:
There was no less lethal force contemplated.

[00:04:33] Speaker 03:
The poor planning led Officer Sanders to go straight to the use of deadly force.

[00:04:38] Speaker 03:
When other options would have otherwise been available to him, plaintiff's police practices expert explicitly opined on this.

[00:04:44] Speaker 03:
The other issue, and I think this is really important, was there was no perimeter established.

[00:04:50] Speaker 03:
And to do this would require backup, but they didn't have backup.

[00:04:53] Speaker 03:
Excerpt of record volume 4 at page 757, it's almost as positive on this issue.

[00:05:00] Speaker 03:
Deputy Sanders says to his colleague, hey, we need more people because he's going to run on foot.

[00:05:06] Speaker 03:
He then called one of his colleagues who apparently was at the jail and Officer Sanders then hung up on him.

[00:05:12] Speaker 03:
He said, we're trying to do this fairly quickly.

[00:05:15] Speaker 03:
So instead of doing things right, establishing a perimeter, using de-escalation tactics,

[00:05:20] Speaker 03:
They rushed it and created a dangerous situation.

[00:05:22] Speaker 01:
We don't need to address any of these issues if we decide that the city did not in the first instance meet its burden to argue these issues in a summary judgment motion, which would have shifted the burden to you to raise a genuine issue of material fact.

[00:05:38] Speaker 01:
We don't really even have to go through any of this, correct?

[00:05:41] Speaker 01:
That's correct.

[00:05:41] Speaker 01:
And that's your first argument.

[00:05:42] Speaker 01:
You're sort of making this argument now as an alternative.

[00:05:45] Speaker 03:
Correct, yeah.

[00:05:46] Speaker 03:
At the end of the day, the public duty doctrine did not apply because there's clearly a common law duty that was asserted.

[00:05:53] Speaker 03:
So that would have allowed the court to go move on to the merits, but they didn't move under the merits.

[00:05:59] Speaker 03:
So there was no reason for us to do that.

[00:06:02] Speaker 03:
Even if they had, though, it would have prevailed because there was genuine issues of material fact.

[00:06:08] Speaker 03:
And with that, I will just ask that, again, there were numerous issues of material facts cited below.

[00:06:13] Speaker 03:
This was a Beltran Sereno case.

[00:06:16] Speaker 03:
the on the mark and for these reasons the appellate respectfully requests that the district court's order be reversed and that the matter be remanded for trial of the merits I'll reserve the rest of my time

[00:06:36] Speaker 00:
May it please the court.

[00:06:38] Speaker 00:
My name is John Justice and I represent the City of Longview.

[00:06:42] Speaker 00:
It's Police Chief Robert Huta and Sergeant Jordan Sanders, members of the Longview Police Department.

[00:06:49] Speaker 00:
The District Court granted the City's motion for summary judgment on the negligence claim asserted in the complaint.

[00:06:55] Speaker 00:
The case did proceed to trial on the plaintiff's claims for excessive force and assault and battery under state law, which the jury rejected.

[00:07:03] Speaker 00:
The grant of summary judgment should be affirmed by this court because the plaintiffs did not meet their burden under Rule 56 to properly oppose the motion.

[00:07:13] Speaker 00:
The city moved for summary judgment on the negligence claim, arguing that the plaintiffs had not identified a non-statutory duty of care that was owed to the plaintiff.

[00:07:24] Speaker 00:
It's important to note that there's still public duty doctrine defenses applicable to law enforcement duties.

[00:07:33] Speaker 00:
The courts in Washington have held that general policing

[00:07:37] Speaker 00:
investigations, those things are still subject to public duty doctrine.

[00:07:42] Speaker 00:
So it's important to articulate, it was important for the plaintiffs to articulate what exactly they were arguing was the duty of care and what it required according to them in this case.

[00:07:54] Speaker 01:
They did not do that.

[00:07:58] Speaker 01:
your friend on the other side argued this morning, talks about the specific exception to the public duty doctrine that extends to individuals and sort of cites to this case and for the proposition that there was something more here, that this wasn't sort of just a generalized duty, but that was owed to this individual.

[00:08:18] Speaker 01:
So why isn't that enough?

[00:08:20] Speaker 00:
Well, the question here, I think, an issue really comes down to what

[00:08:24] Speaker 00:
Does rule 56 require of the non moving party and did the plaintiffs in this case meet that burden?

[00:08:31] Speaker 00:
It's not enough to simply do as they did cite a couple of cases that say it is possible to reach law enforcement duties and I agree with that.

[00:08:40] Speaker 01:
So we have to take the facts and a light most favorable to the non moving party.

[00:08:43] Speaker 01:
So we look at the

[00:08:45] Speaker 01:
the complaint and the allegations in the complaint that relate to these various steps that were taken and the chase that ensued and the fact that there wasn't this plan to be able to detain him, what happens if he runs, they tase him.

[00:09:01] Speaker 01:
So, I mean, I think those things are encapsulated in the complaint and we have to look at those allegations in a light most favorable to the non-moving party.

[00:09:11] Speaker 00:
Well, I think the question is, does the district court have to become the lawyer for the plaintiff or not?

[00:09:17] Speaker 00:
And that's really where I think this court in the Carmen versus San Francisco case reiterates the fact that it's not the district court, it's not the judge's burden to go to the record and say, where do the facts come from that support this cause of action?

[00:09:33] Speaker 00:
when the plaintiff's attorneys have not done that.

[00:09:35] Speaker 00:
And if you look at the section of their brief and their response to summary judgment, it doesn't cite to any portion of the record.

[00:09:41] Speaker 00:
There is not one citation.

[00:09:44] Speaker 04:
When you move for summary judgment, did you argue, even if there is a particular duty that was, common law duty that was owed to the plaintiff in this case, the facts here don't support that?

[00:09:59] Speaker 00:
We argued two things.

[00:10:01] Speaker 00:
One is that there was no articulable duty that the plaintiffs pointed out.

[00:10:05] Speaker 00:
And we also argued that there was a felony defense that barred their claim because it was undisputed that the plaintiff was a felon in possession of a firearm.

[00:10:14] Speaker 04:
Well, that's another, okay.

[00:10:15] Speaker 00:
And they didn't respond to that argument in their response.

[00:10:18] Speaker 00:
And so in reply, literally, we had their response, which... But did you argue the facts?

[00:10:23] Speaker 04:
Even beyond the felony defense, felony offense defense here, did you argue

[00:10:30] Speaker 04:
Well, these facts, a Trier fact, could only rule one way, come out one way.

[00:10:35] Speaker 02:
We did not, Your Honor, because... Because they didn't give you any facts.

[00:10:39] Speaker 00:
They didn't give us any facts in response to... You move for summary judgment.

[00:10:45] Speaker 00:
Right, which our burden is to point out a lack of evidence or a lack of a legal... But you argue here there was a lack of a legal theory.

[00:10:51] Speaker 00:
Correct.

[00:10:52] Speaker 00:
And in response, the district court found they didn't articulate a non-public duty, which they didn't.

[00:10:59] Speaker 04:
But the district court didn't seem to grapple or even deal with or even look at Beltran.

[00:11:04] Speaker 00:
Well, because the plaintiffs didn't say, how does Beltran apply?

[00:11:08] Speaker 04:
But did they point out Beltran to the district court?

[00:11:10] Speaker 00:
They cited the case, but no facts to say, this is how Beltran gets us there.

[00:11:15] Speaker 04:
Isn't the district court required to apply the law that applies to a case?

[00:11:20] Speaker 00:
the district court is required to review the arguments made by council and the facts cited by council.

[00:11:27] Speaker 04:
But they're not required to apply the law.

[00:11:30] Speaker 00:
They are required to apply the law to the arguments being made.

[00:11:33] Speaker 04:
No, no, don't talk about the law that applies to the case.

[00:11:35] Speaker 00:
Well, and I think the problem with the argument in response to this case is it didn't give the district court any analysis

[00:11:43] Speaker 00:
to analyze and cited the case.

[00:11:47] Speaker 02:
Under Washington law claims of negligent enforcement are not novel.

[00:11:52] Speaker 02:
There's potential for tort liability based on negligent performance of law enforcement activities citing Beltran.

[00:12:00] Speaker 02:
Is there anything else the plaintiff

[00:12:03] Speaker 00:
No, they cited another case, two other cases, excuse me, but didn't provide the district court with how do these facts support our case or getting to the jury in our case.

[00:12:15] Speaker 00:
And it's important, even in the Beltran Serrano quote, it states there is a potential for tort liability.

[00:12:22] Speaker 00:
That doesn't mean that in every case in which law enforcement interacts with a

[00:12:27] Speaker 00:
individual, there can be tort liability.

[00:12:30] Speaker 00:
And that's where the argument of counsel comes into play.

[00:12:34] Speaker 00:
And the district court should not, and didn't in this case, decide to be the lawyer for the plaintiff and say, well, how can I make Beltran Serrano support their case?

[00:12:44] Speaker 00:
Well, they didn't cite any evidence.

[00:12:45] Speaker 00:
So let me go back in the evidence that's in the record and find the evidence that supports their argument.

[00:12:51] Speaker 00:
Because again, it's not simply.

[00:12:53] Speaker 01:
So we're now here on appeal, and we're reviewing the summary judgment

[00:12:57] Speaker 01:
motion de novo correct and we have the complaint in front of us and I'm looking at er 44 to 57 and there are a number of allegations here that officer Sanders and Hartley did not follow proper police practices that they failed to adequately warn top D before shooting and that they failed to take measures to prevent foreseeable harm by tactical planning before engaging and apprehending top D so I understand your argument that the district court

[00:13:25] Speaker 01:
may not have had the time, the interest, or even the obligation to pour through the complaint to find how Beltran Serrano applies to these facts.

[00:13:37] Speaker 01:
The fact exists that there is a complaint with these allegations, that there is expert declarations that were attached to the response to the motion for summary judgment.

[00:13:47] Speaker 01:
And there is an argument that's made that taking the facts in a light most favorable to us plaintiffs as the non-moving party, this case plus these facts raise a genuine issue of material facts.

[00:14:00] Speaker 00:
Well, I would simply say that the arguments you heard today, the arguments in the briefing, were not made to the district court.

[00:14:08] Speaker 00:
And the declaration of the expert was not cited anywhere in their argument on the negligence claim.

[00:14:15] Speaker 00:
And really what it boils down to is there's not a

[00:14:19] Speaker 00:
There's not a cause of action under Washington law that every time the police respond to an incident, every aspect of their response is subject to a negligence claim.

[00:14:29] Speaker 00:
For example, the investigation portion of it, deciding that Mr. Tofte should be arrested, making a decision, a plan to make that arrest happen.

[00:14:40] Speaker 00:
It's certainly not clear in the case law.

[00:14:42] Speaker 00:
that that is a viable negligence claim.

[00:14:45] Speaker 01:
Well, he may lose on his negligence claim.

[00:14:47] Speaker 01:
I'm not making any sort of suggestion as to the merits or the viability of the claim.

[00:14:52] Speaker 01:
We're reviewing this on summary judgment.

[00:14:54] Speaker 01:
From what I gather, this was claim four or five, and neither of the parties really spent a whole lot of time briefing or focusing on this particular claim.

[00:15:04] Speaker 01:
We're here on appeal merely because it's the last remaining claim that

[00:15:08] Speaker 01:
hasn't been disposed of and now we're going back and sort of, you know, your entire motion for summary judgment on this claim is one paragraph.

[00:15:18] Speaker 00:
And I think the real, the nub of the issue for this court to decide is not whether if plaintiffs had done all the things they're now doing or if the plaintiffs had done something different in the district court, the district court might have gotten it wrong or right, but they didn't.

[00:15:35] Speaker 00:
And so does the district court

[00:15:38] Speaker 00:
error by not making the plaintiff's arguments for them or combing the record.

[00:15:43] Speaker 00:
And I think there's a couple of policy issues.

[00:15:46] Speaker 04:
Are you concerned?

[00:15:50] Speaker 04:
When they reply to the motion for summary judgment, they go through the whole story.

[00:15:57] Speaker 00:
Not in response to the negligence?

[00:15:58] Speaker 04:
Well, I mean, by the whole story, I mean, what happened that day, correct?

[00:16:03] Speaker 00:
They put in their version of the facts, not in that section, but in the brief response.

[00:16:09] Speaker 04:
What difference does it make if it's in one section or the other section?

[00:16:11] Speaker 04:
It was in the brief, right?

[00:16:12] Speaker 00:
Because the district court has to know what it is the plaintiffs are arguing as to that claim, not just to the Fourth Amendment claim.

[00:16:20] Speaker 04:
I appreciate everything you're saying, but I recall very well my days as a district judge.

[00:16:24] Speaker 04:
And lawyers, they don't do things maybe the way I would like it done as a district judge, everything really nice and sharp and tidy.

[00:16:34] Speaker 04:
But the whole story about what happened here is in their opposition to the motion for summary judgment.

[00:16:41] Speaker 04:
They even got photos in the opposition, right?

[00:16:46] Speaker 04:
Correct.

[00:16:47] Speaker 04:
So it struck me that what really was going on here, the district court just didn't think that there was a private duty that was owed here.

[00:16:58] Speaker 04:
Well, because... You know, you can look at all the facts

[00:17:03] Speaker 04:
I'm curious, are there other facts that are unique to the negligence claim?

[00:17:09] Speaker 00:
Yes, Your Honor.

[00:17:10] Speaker 00:
Because the negligence claim against law enforcement is a fairly new phenomenon in Washington state.

[00:17:19] Speaker 00:
And it's certainly not clear that what portions of this event would be, in fact, a non-public duty.

[00:17:27] Speaker 00:
And so it's incumbent on the plaintiffs in a case like that to articulate to the court.

[00:17:32] Speaker 00:
You know, these cases say you can't sue the police for negligently investigating something.

[00:17:38] Speaker 00:
These cases say you can't sue the police for policing to the general public.

[00:17:43] Speaker 00:
So what is it about this case, particularly?

[00:17:46] Speaker 00:
You're saying the police owe a duty of care.

[00:17:50] Speaker 00:
At what point?

[00:17:51] Speaker 00:
At what point does the duty of care to this person apply when they're reaching for the gun?

[00:17:56] Speaker 04:
If you look at Beltran, it talks about, you know, in the performance of the duty, right?

[00:18:03] Speaker 00:
But what performance?

[00:18:05] Speaker 04:
OK, so here, if you just look at these photographs that are in the opposition, the question is, it seems kind of obvious.

[00:18:16] Speaker 04:
Were the police reasonable?

[00:18:18] Speaker 04:
Did they follow reasonable procedures in the way in which they went about trying to apprehend this fellow?

[00:18:26] Speaker 00:
But that's not anywhere clear in any case that they have a duty to do that.

[00:18:32] Speaker 00:
And that's the problem, is the plaintiffs didn't do the things.

[00:18:35] Speaker 04:
Because I understand Beltran pretty looks like there is a duty here.

[00:18:40] Speaker 00:
There could be a duty at certain points of this event.

[00:18:45] Speaker 00:
But the plaintiffs didn't tell the district court at what point they're claiming there was a duty.

[00:18:50] Speaker 00:
And let me point the court to a couple of policy issues to consider as to why it would be unfair to do

[00:18:56] Speaker 00:
to reverse the district court in this case.

[00:18:58] Speaker 00:
If the plaintiffs had made the arguments that they're making now in the district court, which they didn't, if they had cited to the portions of the record that they believe supported their negligence claim in the district court, which they didn't, we would have had the opportunity as the moving party to respond to that.

[00:19:14] Speaker 00:
that evidence and those arguments in our reply and perhaps resolve this case in a different way at the district court level.

[00:19:24] Speaker 00:
We weren't given that opportunity to do that because the plaintiffs didn't do what they're doing now in the district court.

[00:19:29] Speaker 00:
And in the Carmen versus San Francisco Unified School District case, the court pointed out the prejudice

[00:19:36] Speaker 00:
to the moving party in a scenario where the plaintiff doesn't adequately argue their response on summary judgment.

[00:19:43] Speaker 00:
And so now we have to potentially go back and have another trial.

[00:19:47] Speaker 00:
We've already had a trial that the jury soundly rejected these claims.

[00:19:50] Speaker 01:
What happens in this case that you have this sort of state law claim that's the only remaining claim and was brought with the rest of these claims that were federal claims if it's remanded?

[00:19:59] Speaker 01:
What happens to this claim?

[00:20:00] Speaker 01:
Do you stay in federal court?

[00:20:01] Speaker 01:
Can it be

[00:20:02] Speaker 00:
I don't think so.

[00:20:03] Speaker 00:
I think there's been recent case law.

[00:20:04] Speaker 00:
I can't cite the case in the Ninth Circuit where that would get remanded, that claim would get remanded to state court.

[00:20:11] Speaker 00:
And then we'd be forced to go through another trial when this should have been dealt with at the district court if the plaintiffs had met their burden under Rule 56 to cite, to cite.

[00:20:22] Speaker 01:
Well, their burden doesn't really, doesn't get triggered until your burden is met first under Rule 56 to make the arguments.

[00:20:32] Speaker 00:
But under Celotex, all we have to do is point out to the court there is an absence of authority or facts to support their cause of action.

[00:20:39] Speaker 00:
Then the burden shifts to them to say to the court, here's the legal authority for a cause of action, and here's the evidence that supports that legal theory, which they didn't do.

[00:20:50] Speaker 00:
And so as a result, the district court did not.

[00:20:53] Speaker 00:
The district court was correct in granting summary judgment, and we would ask this summary judgment be affirmed.

[00:21:00] Speaker 00:
Thank you, Counsel.

[00:21:06] Speaker 03:
I'll be brief Council here just just hit on the nail on the head that he has to point out an absence of material fact That's not what that's not what they moved under

[00:21:18] Speaker 03:
They made two arguments.

[00:21:19] Speaker 03:
One, that the felony statute precluded an award for plaintiff.

[00:21:28] Speaker 03:
Two, that we were precluded by the public duty doctrine.

[00:21:33] Speaker 03:
We pointed out the public duty doctrine applies only to new duties that arise because of statute.

[00:21:41] Speaker 03:
This is not one of them.

[00:21:42] Speaker 03:
The duty that we pointed out was a common law duty.

[00:21:45] Speaker 03:
That was it.

[00:21:47] Speaker 02:
Somebody missed the boat here because as all the law students know, Rule 56 is kind of predicated on presence or absence of material fact.

[00:21:56] Speaker 02:
Correct.

[00:21:56] Speaker 02:
And you're saying it just didn't come up.

[00:21:59] Speaker 03:
They didn't move under that.

[00:22:00] Speaker 03:
They had two legal theories.

[00:22:01] Speaker 02:
One- Doesn't the district court have to make a decision under Rule 56 on the absence of a material for that?

[00:22:09] Speaker 03:
Right.

[00:22:09] Speaker 02:
Well, the- Yes or no, does the district court need to make that decision?

[00:22:13] Speaker 03:
Yes.

[00:22:14] Speaker 03:
Yes.

[00:22:15] Speaker 03:
Thank you.

[00:22:17] Speaker 01:
Thank you for the argument presented today and that council agreed to do that at the law school.

[00:22:23] Speaker 01:
I think it's of great value to the students to hear the argument.

[00:22:28] Speaker 01:
That case is now submitted and I'd