by Michael S. Kolker, Jay H. Krulewitch

This article originally appeared in the March 2013 issue of Trial News, the monthly publication of the Washington State Association for Justice .

Not all victories are huge victories. But, sometimes, even the smallest victories for our clients have lasting effects and serve to educate various powers that there are limits to the exercise of their authority. Justice comes in all shapes and sizes. And, nowhere is there more dramatic proof of that statement than the case of Andrew Rutherford v. Jason McKissack, et al., where an award of nominal damages taught the Seattle Police Department that limits exist on how they can conduct investigatory stops and what kind of force they are entitled to use when detaining occupants of a vehicle following a traffic stop involving minor misdemeanor offenses.

Andrew Rutherford is a courageous young man who was needlessly brutalized by several Seattle Police (SPD) Officers in an unfortunate incident occurring on September 9, 2008, as a result of the wrongful behavior of an off-duty SPD officer, Jonathan Chin. Mr. Rutherford, an independent videographer, was asked to produce a video for a local hip-hop collective. On the day of the incident, at 2:00 a.m., after a full day of shooting video clips, Mr. Rutherford was being driven home by his friend, Jared Alfonzo, who also was taking home Myo Thant, another friend. Leaving the Capitol Hill neighborhood in Seattle, Mr. Alfonzo, in a Jeep Cherokee, allegedly cut off another vehicle, a Toyota Camry, which happened to belong to off-duty Seattle Police officer Jonathan Chin.

Chin, upset about being cut off, followed Alfonzo all the way onto I-5, onto the West Seattle Freeway, onto Andover, and finally onto 22nd Avenue SW, a lonely dead-end residential street. Chin, in jeans and a white T-shirt, parked some distance behind Alfonzo’s vehicle. At that time, Chin claims he saw three occupants outside of the Jeep Cherokee and that he did not know who had been the driver. In order to “freeze the scene,” he decided to get out of his vehicle and confront all three occupants at gun-point. Chin then threw Thant down onto the hood of Chin’s vehicle and when Alfonzo and Rutherford turned to check on their friend, he ordered them, at gunpoint, to sit down in the middle of the street and called for fast back-up on his personal cell phone.

Afraid that the first approaching SPD patrol vehicle, which was speeding towards him, would not see him, Mr. Rutherford got up to move to the side of the road where Chin was standing. Chin grabbed Mr. Rutherford in an effort to throw him down. But it was Jason McKissack, the first responding officer, who ran over and actually knocked Mr. Rutherford down, smashing his face into the pavement, and applying brute force to keep him down. Chin and another officer, Joshua Rurey, also participated. Rutherford, who sustained a concussion in the incident, was eventually taken to Harborview Medical Center for evaluation of a possible head injury. Alfonzo, the driver of the Jeep, was allowed to leave the scene and drive home. In Seattle Municipal Court, Rutherford was later charged with obstructing a public servant, a charge the city later dismissed before trial.

Mr. Rutherford brought suit under 42 U.S.C. § 1983 alleging federal constitutional claims under the Fourth Amendment, including excessive force and an unreasonable seizure, as well as state tort claims of false arrest, assault and battery, and malicious prosecution. At trial, in a verdict issued on May 24, 2011, the jury found for the plaintiff on the issue of an unconstitutional Terry stop, but did not find for the plaintiff on the issue of excessive force or on the pendent state tort claims. In addition, the jury did not award any damages. However, in a post-trial motion, the Honorable Marsha Pechman corrected the oversight of the jury and awarded the plaintiff one dollar in damages. This epochal decision by Judge Pechman began what can only be described as a “War of the Roses” type-fight between the City of Seattle (“City”) and Mr. Rutherford.

The City brought a renewed motion for judgment notwithstanding the verdict (JNOV) requesting that Judge Pechman reverse the jury’s findings and instead, find that no constitutional violation could have been found by the jury with regard to the finding of an unconstitutional Terry stop, i.e. an unconstitutional investigatory stop. Second, the city asked Judge Pechman to reconsider her earlier finding and grant Officer Chin qualified immunity claiming that no “reasonable officer could believe under the admitted facts that it was [un]lawful to display his handgun [under the circumstances of this case].” In attacking the court’s ruling on qualified immunity, the defense tried to posture Officer Chin as outnumbered three to one, on a dark, dead-end street, at 2:30 a.m., dealing with three individuals who were apparently intoxicated.

In a decision issued on August 4, 2011, Judge Pechman made short work of the city’s arguments on its renewed motion JNOV. Rutherford v. McKissack, No. C09–1693, 2011 WL 3421516 (W.D. Wash. Aug. 4, 2011). First, she found that Mr. Rutherford “put on substantial evidence that his detention exceeded a reasonable length and scope.” She noted that “Defendant Chin used a highly aggressive manner in confronting all three individuals . . . [that] Chin pointed his gun at Rutherford and forced him to sit at gun point.” She noted that Chin’s actions “severely restricted Rutherford’s liberty and used an extremely high level of force for a situation where none of the suspects were armed and where there was no ongoing criminal activity.”

Regarding qualified immunity, Judge Pechman was more direct in her criticisms of the city’s arguments. First, she noted that the jury returned a general verdict finding that defendant Chin did “exceed the reasonable length and scope of the Terry stop.” She noted that the jury was instructed to consider the totality of the circumstances and that there were several factors it could have relied on to return a verdict in Rutherford’s favor. In essence, she found that there was no way to conclude that the sole basis of the jury’s decision was Chin’s use of his weapon.

Judge Pechman further found that “even if the Court accepts for the sake of argument that the jury’s verdict turned solely on the use of the weapon, the Court finds that Defendant Chin violated clearly established law and is not entitled to qualified immunity.” Applying the two-step qualified immunity analysis, derived from Saucier v. Katz, 533 U.S. 194, 201 (2001), the court was obligated to determine if the plaintiff has alleged a violation of a constitutional right and whether that right was clearly established at the time of the incident. Id. Applying Katz to the Rutherford case, Judge Pechman relied upon Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996), in finding that “[t]he law is clearly established that, when making a Terry stop, officers may not use highly intrusive measures such as the ones used here [pointing a gun and ordering individuals out of a car] unless the circumstances reasonably justify such extraordinary procedures in order to ensure the officer’s safety. See Lambert, 98 F.3d at 1192. As Judge Pechman noted, Lambert makes it clear that “under ordinary circumstances, when the police have only reasonable suspicion to make an investigatory stop, drawing weapons and using handcuffs and other restraints will violate the Fourth Amendment.” The court noted that Lambert defined four types of extraordinary circumstances:

“[T]he use of especially intrusive means of effecting a stop [is permitted] in special circumstances, such as (1) where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight; (2) where the police have information that the suspect is currently armed; (3) where the stop closely follows a violent crime; and (4) where the police have information that a crime that may involve violence is about to occur.” — Lambert, 98 F.3d 1189

As Judge Pechman construed the facts in a light most favorable to Rutherford, the non-appealing party, she did not find any of these extraordinary circumstances present in this case. Thus, Judge Pechman concluded Chin had violated Mr. Rutherford’s clearly established constitutional right to be free from an unlawful detention by using a weapon during a Terry stop and detaining Rutherford after learning that Rutherford was not the driver of the vehicle.

The defense tried arguing that “only in extreme circumstances have courts found a mere display of potential force to be sufficient to transform a Terry stop into an arrest.” In response, Judge Pechman stated:

“[A]stoundingly, defendants cite Washington v. Lambert to make this point, while ignoring the very holding of the case. Pointing and brandishing a gun during a Terry stop is only permissible in extreme cases. Washington, 98 F.3d at 1192. Defendants’ argument is poorly thought through and not well taken.”

In view of the fact that Judge Pechman had previously found that Mr. Rutherford was entitled to an award of one dollar in nominal damages for the violation of his constitutional rights, which was in keeping with George v. City of Long Beach, 973 F.2d 706, 708 (9th Cir. 1992), the plaintiff brought a motion for an award of attorney’s fees and costs under 42 U.S.C. § 1988. The defense pulled out all the stops in trying to convince Judge Pechman that an award of attorney’s fees and costs in this matter was inappropriate. Judge Pechman cast aside most of the defense arguments except for the actual amount to be awarded. First of all, in her August 4, 2011 decision, Judge Pechman found that “an award of attorney’s fees and costs is appropriate in this case.” Judge Pechman found that Rutherford, the recipient of an award of nominal damages, was a prevailing party and, therefore, entitled to an award of attorney’s fees and costs. Then the court undertook an analysis of the reasons for its award of fees and costs pursuant to Malach-Watkins v. Dupee, 593 F.3d 1054 (9th Cir. 2010), which enunciated a three-part test to be applied when considering a fee award in nominal damage cases. Per Malach-Watkins, the court was to consider: (1) the difference between the amount recovered and the damages sought, (2) the significance of the legal issue on which the plaintiff claims to have prevailed, and (3) whether the plaintiff accomplished some public goal. See id. at 1059–60.

Judge Pechman stated that “[t]he jury’s decision served an important public function by declaring Defendant Chin violated Rutherford’s constitutional rights by exceeding the reasonable length and scope of the stop. Having a jury consider and determine the permissible length and scope of the investigatory stop in this case served an important role of providing feedback to law enforcement as to when the scope and length of a stop can be exceeded.”

The City, in its opposition to plaintiff’s motion for an award of fees and costs as prevailing party, submitted a declaration from Assistant Chief of Police Dick Reed of the Seattle Police Department, in an attempt to convince Judge Pechman that “the jury’s finding on claim one [the finding of an unconstitutional Terry stop] has provided the Department no basis to revisit current training protocols or policies.” Judge Pechman cast aside the self-serving declaration of Assistant Chief Reed and found:

“Just as the court in Guy gave little weight to such a statement, the Court here cannot rely on this self-serving declaration as the sole means of gauging whether the award of fees will have a remedial effect . . . It is a sad day when the Seattle Police Department cannot stop to reflect upon the voices of citizen jurors who think that their conduct has overstepped the line or contemplate a change when an officer’s judgment is found wanting. It should be a marker laid down to police officers that their authority is not absolute and before deadly force is used or displayed to gain compliance with their orders they must recognize that citizens hold precious rights given to them by the Constitution that cannot be breached.”

Noting that the SPD’s own Office of Professional Accountability had found fault with Chin’s actions, Judge Pechman went on to say that “[t]he Assistant Chief’s statement also seems disingenuous because the Seattle Police Department conducted an internal investigation into the incident and determined [that] Chin needed ‘supervisory intervention’ and remedial counseling. The Court therefore finds the award of fees and costs proper in this matter because this litigation has accomplished a public goal beyond the award of nominal damages, regardless of whether or not the department is wise enough to take action.”

In terms of the actual award, Judge Pechman awarded the plaintiff about one-fifth of what was sought, “which reflected the degree of success obtained by Rutherford at trial.” As a result, the court ordered that plaintiff receive $83,600 in fees and $6,442.12 in costs.

The City appealed the verdict, the denial of qualified immunity, and the award of fees and costs to the Ninth Circuit Court of Appeals. In a memorandum decision issued on January 22, 2013, by the three-judge panel that heard the oral argument on appeal, the court affirmed the jury verdict as well as Judge Pechman’s ruling denying the renewed JNOV, the denial of the qualified immunity defense, and the fees and costs ordered by the court to plaintiff Andrew Rutherford. Just recently, the City filed a petition seeking en banc review before the Ninth Circuit Court of Appeals.

Jay H. Krulewitch and Michael S. Kolker