By Alexis Krell | Originally published in the News Tribune, June 2019
A mentally ill man who was shot by a Tacoma police officer can proceed with his claim that the officer’s actions were negligent, the Washington State Supreme Court said in a 5-4 decision Thursday.
Cesar Beltran-Serrano and his family sued the department after the June 29, 2013 shooting, alleging negligence and assault and battery.
Beltran-Serrano appealed Superior Court Judge Susan Serko’s decision to dismiss the negligence claim.
The state’s high court reversed Serko’s decision, which sends the case back to the trial court for further proceedings.
“The decision is important as it establishes that police, like other professions, can be held liable when they perform law enforcement activities in an unreasonable manner,” Beltran-Serrano’s attorney, Jack Connelly, said in a press release. “The Court analyzed cases nationally and permitted claims to be filed based on theories of both assault and battery and negligence principles.”
The Tacoma Police Department said it does not comment on pending litigation.
Court records give this account of the shooting: Beltran-Serrano speaks limited English and is mentally ill.
He was on a corner of East 28th Street, where police had gotten complaints about panhandlers, when Officer Michel Volk approached him. She intended to educate him about the local laws about panhandling.
Beltran-Serrano laid on his stomach and started digging a hole as she approached and kept doing so as she greeted him.
Beltran-Serrano shook his head when the officer asked if he spoke English, at which point she called for another officer who spoke Spanish. That officer was a few minutes away.
Meanwhile, Volk tried to speak with Beltran-Serrano, who didn’t respond.
He did search his pockets when she tried to communicate that she wanted to see his identification. Then he bent back over the hole.
Volk moved closer and kept speaking in English, at which point Beltran-Serrano started to run away, and Volk shot him in the back with a stun gun.
He kept running, and Volk fired multiple shots.
Thirty-seven seconds after Volk called for a Spanish-speaking officer, Beltran-Serrano fell to the ground.
Witnesses said he had not appeared to be acting aggressively or making threatening motions. Charging papers filed against him say he hit Volk with a piece of metal when she approached and refused to drop it. He was found incompetent to stand trial, and the Police Department found Volk acted within department policy.
The Supreme Court decision said that Volk’s alleged conduct is enough for Beltran-Serrano to bring claims for negligence and for assault and battery.
“Under well-established negligence principles, police officers owe a duty of reasonable care in situations like this,” Justice Debra L. Stephens wrote for the majority. “Beltran-Serrano has presented evidence to allow a jury to find that the City failed to follow accepted practices in Officer Volk’s interactions with him leading up to the shooting and that this negligence resulted in his injuries.”
All his claims remain for trial, the high court said.
The opinion, signed by Justices Mary E. Fairhurst, Steven C. González, Sheryl Gordon McCloud and Mary I. Yu, also says:
“We believe the City misunderstands both the nature of Beltran-Serrano’s negligence claim and the nature of its law enforcement duty. … The core of his negligence claim is that Officer Volk unreasonably failed to follow police practices calculated to avoid the use of deadly force. Beltran-Serrano focuses on Officer Volk’s negligence leading up to the shooting, including her failure to respond appropriately to clear signs of mental illness or impairment, her decision to continue to engage with Beltran-Serrano in English, and her decision to prevent him from walking away. The negligence allegations also identify Officer Volk’s lack of adequate training and her failure to recognize the ineffectiveness of using a stun gun against a mentally ill individual.”
The dissenting justices argued that the shooting was an intentional act and that therefore a negligence claim isn’t possible.
“… where a police officer is alleged to have used excessive force in accomplishing an arrest, a claim for assault and battery may lie, and Beltran-Serrano has so alleged,” Justice Barbara A. Madsen wrote in an opinion signed by Justices Charles W. Johnson and Susan Owens.
Justice Charles K. Wiggins wrote in a concurring dissent: “A claim is one of either negligence or intention — it cannot be both.”