                                                                         FILED
                                                                       MAY 22, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

THOMAS L. SLUMAN, a single person,        )
                                          )            No. 34467-3-III
                      Appellant,          )
                                          )
       v.                                 )
                                          )
STATE OF WASHINGTON, by and               )            PUBLISHED OPINION
through the WASHINGTON STATE              )
PATROL; BART H. OLSON, individually )
and in his official capacity as a TROOPER )
of the WASHINGTON STATE PATROL; )
and JANE/JOHN DOE I-X, individually       )
and as Employees/Agents of the            )
WASHINGTON STATE PATROL                   )
and/or the STATE OF WASHINGTON,           )
                                          )
                      Respondents.        )

      FEARING, J. — In common parlance, a door check is an attachment used to close a

door and prevent its slamming. In ice hockey, the term “check” or “checking” refers to a

defensive move whereby the defenseman moves his body into an opposing player in

order to disrupt the opponent’s possession of the puck. This lawsuit gives rise to a new

meaning to the expression “door check” or “door-check,” an import presumably derived

from hockey.
No. 34467-3-III
Sluman v. State


       In this appeal, we address the tort liability of a law enforcement officer, to an

injured motorcyclist, when the officer purposely opens his patrol car door so that the door

strikes and stops the speeding cyclist. Law enforcement refers to the officer’s tactic as

door-checking. The defendant officer and other officers pursued the motorcyclist

because of his speeding. In resolving the appeal, we ask whether some facts support a

ruling that the law enforcement officer seized the motorcyclist within the meaning of the

United States Constitution’s Fourth Amendment, and, if so, whether the officer warrants

qualified immunity from civil liability. We also ask whether the officer and his employer

gain immunity from state law claims under Washington’s felony bar statute. The trial

court granted the officer and his employer summary judgment. We reverse.

                                          FACTS

       The statement of facts arises from deposition testimony and from affidavits in

support of and in opposition to summary judgment motions filed by defendants State of

Washington and Washington State Patrol Trooper Bart Olson. Because the trial court

granted the motions and dismissed plaintiff and motorcyclist Thomas Sluman’s claims,

we view the facts in a light favorable to Sluman.

       On the sunny morning of Wednesday, July 21, 2010, Thomas Sluman, a Port

Angeles denizen, rode his motorcycle eastbound on Interstate 90 in lower Kittitas County

ten miles west of Ellensburg. On that same morning, Washington State Patrol Trooper

John Montemayor piloted the aircraft “Smokey 6” and patrolled traffic from the craft.

                                              2
No. 34467-3-III
Sluman v. State


An aerial patrol officer employs a series of white stains, known as aerial traffic

surveillance marks, painted on the road at half-mile intervals to measure the speed of

vehicles. The officer gauges the speed of a vehicle with a stopwatch as the vehicle

travels between marks. Trooper Montemayor, by using the surveillance marks, measured

Sluman as traveling between seventy-six and eighty-nine miles per hour on the seventy

miles per hour interstate. Montemayor radioed Trooper David Hinchliff, who patrolled

on the ground, to stop and cite Sluman. Trooper Hinchliff’s patrol car parked facing

northbound on Thorp Highway near Interstate 90 exit 101, the location of Thorp Fruit

and Antique Mall.

       Thomas Sluman left Interstate 90 at exit 101. Sluman stopped at the stop sign at

the end of the off-ramp, activated his motorcycle’s right turn signal, and turned right onto

South Thorp Highway. According to Trooper David Hinchliff, Sluman did not turn his

head to the left to see Trooper David Hinchliff’s patrol car before Sluman turned right.

According to Sluman, he looked to the left and saw the patrol car, but the car faced the

opposite direction.

       South Thorp Highway mainly travels east and west, but south of Interstate 90.

Trooper Hinchliff performed a U-turn on Thorp Highway, activated his overhead lights,

and radioed dispatch to notify it that he would pursue Sluman. After radioing dispatch,

Hinchliff activated his siren and chased Sluman on South Thorp Highway. Sluman never

saw Hinchliff reverse directions in order to pursue him.

                                              3
No. 34467-3-III
Sluman v. State


       Trooper David Hinchliff soon lost sight of Thomas Sluman because the two-lane

South Thorp Highway frequently curves. From Interstate 90 exit 101, the highway runs

five miles before it again crosses the interstate at exit 106, the western exit for

Ellensburg. Trooper John Montemayor eyed Sluman from the air while maintaining

contact with Hinchliff. From his vantage point, Trooper Montemayor estimated Sluman

reached a speed over one hundred and twenty miles per hour. Sluman disputes this speed

approximation because South Thorp Highway lacks aerial traffic surveillance marks, but

Sluman does not testify as to his speed. While riding on Thorp Highway, Sluman obeyed

all traffic laws except the speed limit. Sluman never looked behind him to see Trooper

Hinchliff in pursuit. Hinchliff concluded that he did not need to pursue Sluman at a high

rate of speed, since the air patrolman followed Sluman.

       Washington State Trooper Bart Olson also patrolled, in a Dodge Charger, along

Interstate 90 near exit 101 on the morning of July 21, 2010. Trooper Olson had just

completed a traffic stop, when he overheard Trooper David Hinchliff notify dispatch

about Hinchliff’s pursuit of Thomas Sluman. Olson unilaterally joined the pursuit by

traveling eastbound on Interstate 90, not on South Thorp Highway.

       A Washington State Patrol regulation prohibits a trooper from unilaterally joining

a suspect’s pursuit. Troopers may join a pursuit only when requested by the first officer

in pursuit or when directed by a supervising officer. The State Patrol adopted this

regulation because pursuits pose as one of the riskiest actions that a law enforcement

                                               4
No. 34467-3-III
Sluman v. State


officer undertakes. Trooper Bart Olson denies that he pursued Thomas Sluman since

Olson did not chase Sluman on South Thorp Highway. Nevertheless, State Patrol rules

consider an officer as pursuing the suspect, even if the trooper does not chase the suspect

from behind, if the trooper acts to intercept or stop the pursued driver.

       In his haste, Trooper Bart Olson passed another patrol officer, Trooper Paul

Blume, on Interstate 90. Blume drove a sports utility vehicle (SUV). Trooper Olson then

received instruction to end his pursuit since Trooper John Montemayor followed Thomas

Sluman from the air. Olson ignored the instruction and proceeded to Interstate 90 exit

106 where Olson anticipated he could intercept Sluman on South Thorp Highway.

       After Olson exited Interstate 90, he turned right on South Thorp Highway and

journeyed in the opposite direction of Sluman and Trooper David Hinchliff. Olson then

saw Sluman’s motorcycle rounding a corner in the oncoming lane. According to Olson,

“nobody was in the area.” Clerk’s Papers (CP) at 535. Trooper Olson drove his patrol

car across the centerline of the road, quickly braked, and parked his car, while straddling

the center line, on a bridge across the Yakima River, with the car’s emergency lights

activated. Trooper Olson explained his intent:

               And, anyway, the motorcyclist was coming at me. And I could see
       the speed of the motorcycle, which was at a high rate, rapidly slowing. . . .
       I’m going to place this person in custody or worst [sic]—you know, I’m
       going to place him in custody, do a felony-style stop, or they’re going to be
       going slow enough that if it comes down to it I’m going to basically horse
       collar this person off the motorcycle and end this pursuit, so that they don’t
       end up with serious injuries, kill themselves, kill an innocent party.

                                              5
No. 34467-3-III
Sluman v. State



CP at 532. After Trooper Olson parked, Trooper Paul Blume pulled behind Trooper

Olson’s patrol car and blocked more of the road.

       The Washington State Patrol does not authorize a state trooper to tackle, horse

collar, or otherwise physically remove a driver from a motorcycle. State Patrol personnel

deem such a maneuver to be unwise and unsafe. State Patrol regulations do not permit a

trooper to drive patrol cars into the lane of oncoming traffic or to park in the middle of

the road. Under a State Patrol regulation, a roadblock occurs when officers position one

or more vehicles or other obstructions across a roadway in order to prevent the escape of

a fleeing vehicle. The regulation requires any roadblock to afford an “escape route” for

the suspect. CP at 246, 662. State Patrol rules allow a roadblock only with supervisory

approval and only when law enforcement seeks to apprehend the suspect for homicide,

assault with intent to kill, rape, robbery in the first degree, or prison escape. Trooper

Olson lacked supervisory approval for blocking the road and law enforcement did not

pursue Thomas Sluman for any of the requisite crimes. Olson insists that he allowed

space for Sluman to steer around his patrol car.

       According to Thomas Sluman, he traveled sixty miles an hour as he rounded a

curve on South Thorp Highway into the straightaway across the Yakima River Bridge.

Sluman applied his brakes because he saw lights and vehicles on the bridge. He did not

know that one or more of the cars were police cars. He intended to stop near the cars.


                                              6
No. 34467-3-III
Sluman v. State


After he rounded the curve, he did not accelerate. Suddenly a sports utility vehicle

entered his lane.

       As Trooper Bart Olson remained parked in the middle of South Thorp Highway,

he observed Thomas Sluman’s motorcycle rapidly slow. Sluman probably then traveled

between thirty-one and thirty-seven miles per hour. As Sluman slowed, he steered his

motorcycle to the right and away from the highway’s centerline in order to pass Trooper

Olson’s vehicle. According to Trooper Paul Blume, Sluman appeared to be stopping his

motorcycle. As Sluman attempted to pass, Olson opened his patrol car door into the

oncoming lane where Sluman traveled. The parties refer to Olson’s maneuver as “door-

checking.” In his investigation report, Olson did not volunteer that he purposely opened

the door to cause the door to strike Sluman. Trooper Olson’s open door struck Sluman’s

motorcycle and propelled Sluman over the Yakima River Bridge to the ground thirty feet

below and into a campground. A video captured Sluman crossing the Yakima River

Bridge, Olson opening his patrol car door, and Sluman driving by the side of the door.

       During a deposition, Thomas Sluman testified that he only remembered

encountering a sports utility vehicle. According to Sluman, the SUV drove toward him in

his lane and struck him.

       Washington State Patrol regulations consider intentional intervention to be the act

of ramming or hitting another vehicle with a patrol car in order to damage or force

another vehicle off the road. During discovery in this suit, State Patrol personnel

                                             7
No. 34467-3-III
Sluman v. State


confirmed that a trooper driving his car into the oncoming lane of traffic on a two-lane

road with a suspect approaching constitutes the use of intentional intervention. The State

Patrol equates intentional intervention with lethal force. Intentional intervention should

only be used as a last resort to apprehend a suspect. Intentional intervention should also

be used only when the officer knows or has reasonable grounds to believe the suspect

committed or is attempting to commit a crime that poses a threat of death or serious

bodily injury.

       A State Patrol regulation declares that intentional intervention “shall not be used to

apprehend a traffic offender, misdemeanant, or fleeing felon whose only felony is

attempting to elude a pursuing police vehicle.” CP at 662. The regulation further reads

that an officer “attempting intentional intervention with a vehicle shall be held to the

same standards as are applied to any other use of lethal force.” CP at 662.

       When Thomas Sluman hit the ground, he lost consciousness. After Sluman

regained cognizance, but before receiving treatment for his injuries, Trooper Bart Olson

asked Sluman why he fled from the police. Sluman answered that he had outstanding

arrest warrants. An audio recording captured Sluman’s response. Sluman admits he

uttered the response, but he denies his statement to be correct. According to Sluman, he

had outstanding warrants but he did not flee the police pursuit particularly since he knew

not of the pursuit. When responding to Bart Olson’s question, Sluman lay on the ground

in severe pain.

                                              8
No. 34467-3-III
Sluman v. State


       As a result of the collision with the patrol car door and descent into the

campground, Thomas Sluman sustained fractures of the tibia and fibula of his right leg,

pubic bone, tailbone, and left elbow. The tibia and fibula breaks required multiple

surgeries to implant and replace hardware and to graft skin and muscle. Sluman spent

one year in a wheelchair while recovering. He suffered permanent physical impairments.

       Thomas Sluman later entered an Alford plea to charges of attempting to elude a

police vehicle. According to Sluman, he entered the plea because he wanted to end the

prosecution because he still recovered from injuries.

                                       PROCEDURE

       Thomas Sluman filed suit against Washington State Patrol Trooper Bart Olson and

the State of Washington. Sluman asserted a federal cause of action for a civil rights

violation and state law causes of action for false arrest, false imprisonment, negligence,

gross negligence, negligent infliction of emotional distress, intentional infliction of

emotional distress, and negligent training and supervision. He asserted the latter claim

only against the State. Sluman alleged that Trooper Olson at all times relevant to the suit

acted within the scope of his employment with the State of Washington.

       In response to the civil rights cause of action, the State of Washington pled the

defense of Eleventh Amendment immunity and Olson pled the defense of qualified

immunity. Both the State and Olson raised the felony bar statute in defense of Thomas



                                              9
No. 34467-3-III
Sluman v. State


Sluman’s state law claims. The State agreed in its answer that Trooper Bart Olson acted

within the scope of his employment at all times.

       The State of Washington and Bart Olson moved for summary judgment. In

response, Thomas Sluman agreed to dismissal of claims for false arrest and false

imprisonment. The trial court granted summary judgment and dismissed all remaining

claims.

                                  LAW AND ANALYSIS

                                Civil Rights Cause of Action

       Thomas Sluman asserts a civil rights claim under 42 U.S.C. § 1983 against the

State of Washington and Trooper Bart Olson, and the trial court dismissed the claim

against each defendant. Sluman only appeals the dismissal of the claim against Olson.

Therefore, we do not address the merits of a civil rights claim against the State. The

appeal of this dismissal centers on whether Trooper Olson seized Sluman and imposed

excessive force within the meaning of the Fourth Amendment and whether Olson

qualifies for qualified immunity under the federal civil rights statute, 42 U.S.C. § 1983.

       42 U.S.C. § 1983, an often employed, but rarely quoted, statute reads:

               Every person who, under color of any statute, ordinance, regulation,
       custom, or usage, of any State or Territory or the District of Columbia,
       subjects, or causes to be subjected, any citizen of the United States or other
       person within the jurisdiction thereof to the deprivation of any rights,
       privileges, or immunities secured by the Constitution and laws, shall be
       liable to the party injured in an action at law, suit in equity, or other proper
       proceeding for redress. . . .

                                              10
No. 34467-3-III
Sluman v. State



Section 1983 is not itself a source of substantive rights. Graham v. Connor, 490 U.S.

386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Section 1983 only fulfills the

procedural or remedial role of authorizing the assertion of a claim for relief. Graham v.

Connor, 490 U.S. at 393-94. The pleader must also allege an independent substantive

basis for his claim, whether grounded in a federal constitutional or a statutory right.

Nabozny v. NCS Pearson, Inc., 270 F. Supp. 2d 1201, 1205 (D. Nev. 2003). Thomas

Sluman contends Trooper Bart Olson employed excessive force when blocking the path

of his motorcycle and thereby violated the United States Constitution’s Fourth

Amendment.

       42 U.S.C. § 1983 admits no immunities. The United States Supreme Court,

however, has, based on common law and policy grounds, crafted immunities shielding

government officials and employees from personal liability for damages. We will

address available immunities later.

       Issue 1: Whether Thomas Sluman presents facts to establish that Washington State

Trooper Bart Olson seized Sluman?

       Answer 1: Yes.

       We first address whether facts support a conclusion that Trooper Bart Olson

infringed Thomas Sluman’s Fourth Amendment rights. In doing so, we view the facts in

the light most favorable to the party asserting the injury, Sluman. Saucier v. Katz, 533


                                             11
No. 34467-3-III
Sluman v. State


U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Since Sluman sues under the

federal civil rights statute and since he relies on the United States Constitution, we

examine only federal cases.

       The Fourth Amendment protects “[t]he right of people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” We

first determine if Trooper Bart Olson seized Thomas Sluman and later decide whether the

seizure was reasonable. Olson denies any seizure and characterizes his conduct as

reasonable as a matter of law.

       Trooper Bart Olson impeded the travel of Thomas Sluman when Olson door-

checked Sluman’s motorcycle. Whenever an officer restrains the freedom of a person, he

or she seizes that person for purposes of the Fourth Amendment. Tennessee v. Garner,

471 U.S. 1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). Seizure occurs when the

government official intentionally terminates a suspect’s freedom of movement. Brower

v. County of Inyo, 489 U.S. 593, 597, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989).

       Brower v. County of Inyo informs our decision. William Brower died after the

stolen car he drove at high speeds in an effort to elude pursuing police crashed into a

police roadblock. The United States Supreme Court held that law enforcement seized

Brower, within the meaning of the Fourth Amendment, by placement of the roadblock.

Contrary to the Court of Appeals’ holding, the high Court explained that Brower’s

opportunities to stop the vehicle prior to impact did not preclude violation of the Fourth

                                             12
No. 34467-3-III
Sluman v. State


Amendment. The Court explicated:

              [A] roadblock is not just a significant show of authority to induce a
      voluntary stop, but is designed to produce a stop by physical impact if
      voluntary compliance does not occur. It may well be that respondents here
      [law enforcement officers] preferred, and indeed earnestly hoped, that
      Brower would stop on his own, without striking the barrier, but we do not
      think it practicable to conduct such an inquiry into subjective intent. Nor
      do we think it possible, in determining whether there has been a seizure in a
      case such as this, to distinguish between a roadblock that is designed to
      give the oncoming driver the option of a voluntary stop (e.g., one at the end
      of a long straightaway), and a roadblock that is designed precisely to
      produce a collision (e.g., one located just around a bend). In determining
      whether the means that terminates the freedom of movement is the very
      means that the government intended we cannot draw too fine a line, or we
      will be driven to saying that one is not seized who has been stopped by the
      accidental discharge of a gun with which he was meant only to be
      bludgeoned, or by a bullet in the heart that was meant only for the leg. We
      think it enough for a seizure that a person be stopped by the very
      instrumentality set in motion or put in place in order to achieve that result.
      It was enough here, therefore, that, according to the allegations of the
      complaint, Brower was meant to be stopped by the physical obstacle of the
      roadblock—and that he was so stopped.

Brower v. County of Inyo, 489 U.S. at 598-99 (internal citations omitted).

      In a footnote in his brief, Trooper Bart Olson denies that he established a

roadblock. But he presents no argument or case law to the contrary. Looking at the facts

in the light most favorable to Thomas Sluman and accepting his version of the facts, we

conclude Trooper Olson orchestrated a roadblock.

      Trooper Bart Olson’s own deposition testimony suggests he implemented a

roadblock. Olson explained his intent for driving across the centerline of the road and

parking in the middle of the bridge as placing Sluman in custody by stopping him or

                                            13
No. 34467-3-III
Sluman v. State


horse collaring him. Trooper Olson stationed his patrol car to achieve the result of

stopping Sluman’s travel. Olson’s supervisor testified that Trooper Olson created a

roadblock.

       Trooper Bart Olson highlights that a semi-tractor trailer could have squeezed on

either side of his patrol car parked on the Yakima River Bridge. But this emphasis

ignores important facts, including his own testimony that he opened his car door at the

last moment in order to impede Thomas Sluman’s progress. He intended a roadblock and

effectuated this intent. Any opportunity by Sluman to steer clear of the door does not

preclude application of the Fourth Amendment.

       We also do not consider the question of whether Trooper Bart Olson erected a

roadblock as controlling. A Fourth Amendment seizure does not require use of a

roadblock. For example, a police officer’s fatal shooting of a fleeing suspect constitutes a

Fourth Amendment seizure presumably because the death impedes the suspect’s

movement. Tennessee v. Garner, 471 U.S. at 7 (1985). Even assuming Olson employed

no roadblock, he, like the officers in Brower v. County of Inyo and Tennessee v. Garner,

employed means to stop the movement of Thomas Sluman.

       Issue 2: Whether Thomas Sluman presents facts of an unreasonable seizure?

       Answer 2: Yes.

       Seizure alone does not violate the Fourth Amendment. The amount of force used

to effect the seizure must be unreasonable to amount to a constitutional violation.

                                            14
No. 34467-3-III
Sluman v. State


Brower v. County of Inyo, 489 U.S. at 599 (1989). Courts analyze a claim of excessive

force in the course of making a seizure of a person under the Fourth Amendment’s

“objective reasonableness” standard. Ashcroft v. al-Kidd, 563 U.S. 731, 736, 131 S. Ct.

2074, 179 L. Ed. 2d 1149 (2011); Graham v. Connor, 490 U.S. at 388 (1989). In

assessing the reasonableness of the manner of a seizure, courts balance the nature and

quality of the intrusion on the individual’s liberty interest against the importance of the

governmental interests alleged to justify the intrusion. Graham v. Connor, 490 U.S. at

396. Courts examine the government interest in safely effecting an arrest in light of 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 actively resists arrest or attempts to evade arrest

by flight. Graham v. Connor, 490 U.S. at 396. Even when some force is justified, the

amount actually used may be excessive. Santo v. Gates, 287 F.3d 846, 853 (9th Cir.

2002).

         Determining whether a police officer’s use of force was reasonable or excessive

requires careful attention to the facts and circumstances of each particular case.

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2003).

Because such balancing nearly always requires a jury to sift through disputed factual

contentions to draw inferences therefrom and to assess credibility of witnesses, courts

should grant summary judgment in excessive force cases sparingly. Santos v. Gates, 287

F.3d at 853; Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997).

                                             15
No. 34467-3-III
Sluman v. State


       Courts judge the reasonableness of the force exacted by a law enforcement officer

from the perspective of a reasonable officer on the scene, rather than with hindsight.

Graham v. Connor, 490 U.S. at 396-97 (1989). The calculus of reasonableness must

recognize that police officers must often render split-second judgments, in tense,

uncertain, and rapidly evolving circumstances, about the amount of force necessary in a

particular situation. Graham v. Connor, 490 U.S. at 396-97.

       When determining if Trooper Bart Olson exercised unreasonable force, we must

measure the amount of force employed by Olson. In this regard, Thomas Sluman

contends that Olson exercised deadly force. Even when law enforcement does not intend

to kill or does not kill, courts characterize the force employed as deadly if the force could

cause death or serious injury. Drummond ex rel. Drummond v. City of Anaheim, 343

F.3d at 1056. “Deadly force” entails a substantial risk of causing death or serious bodily

harm. Robinette v. Barnes, 854 F.2d 909, 911-12 (6th Cir. 1988).

       Bart Olson used his car to impede Thomas Sluman’s progress. In Brosseau v.

Haugen, 543 U.S. 194, 200, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004), the Supreme Court

noted that a car can be a deadly weapon, although the Court deemed reasonable the

officer’s decision to stop the car from possibly injuring others. Brosseau v. Haugen, 543

U.S. at 200. We observe that Thomas Sluman rode a motorcycle, rather than drove an

automobile. A law enforcement officer’s use of a squad car to block a motorcycle’s path

constitutes deadly and unreasonable force. Walker v. Davis, 649 F.3d 502, 503-04 (6th

                                             16
No. 34467-3-III
Sluman v. State


Cir. 2011); Donovan v. City of Milwaukee, 17 F.3d 944, 949-50 (7th Cir. 1994).

       Washington State Patrol regulations confirm use of a patrol car to be lethal force.

The regulations provide “intentional intervention . . . of a vehicle is the deliberate act of

hitting another vehicle with a patrol vehicle(s) for the purpose of functionally damaging

or forcing the other vehicle off the road.” CP at 661. The State Patrol rules also declare

that “intentional intervention is considered the use of lethal force . . . [and] officers

attempting intentional intervention with a vehicle shall be held to the same standards as

are applied to any other use of lethal force.” CP at 661-62.

       We proceed on the assumption that Trooper Bart Olson’s door-checking

constituted deadly force. Although the seizure did not kill Thomas Sluman, the seizure

imperiled Sluman’s life and caused serious injury. Bart Olson denies that he exerted

deadly force, but he provides no decision to support the denial.

       We must now address whether Thomas Sluman’s conduct justified Trooper Bart

Olson’s exercise of deadly force. The balancing process applied in excessive force cases

demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not

always do so by killing him. Tennessee v. Garner, 471 U.S. at 9 (1985). As a subset of

excessive force claims, the United States Supreme Court has held that police use of

“deadly force” violates the Fourth Amendment unless the officer has probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer or to

others. Tennessee v. Garner, 471 U.S. at 11. The individual interests at stake rise to their

                                               17
No. 34467-3-III
Sluman v. State


zenith when law enforcement seizes a citizen by deadly force because of the fundamental

interest in one’s life. Tennessee v. Garner, 471 U.S. at 9. The use of deadly force by law

enforcement against a suspect frustrates the interest of the individual, of society, and in

the judicial determination of guilt and punishment. Tennessee v. Garner, 471 U.S. at 9.

       The peaceful submission of suspects holds no priority over the interest in life.

Tennessee v. Garner, 471 U.S. at 9-10. Employing deadly force to vindicate our criminal

justice system defeats its purpose since, if successful, that system will not be set in

motion. Tennessee v. Garner, 471 U.S. at 10. Thus, the use of deadly force to prevent

the escape of all felony suspects, whatever the circumstances, is constitutionally

unreasonable. Tennessee v. Garner, 471 U.S. at 11. On the other hand, if the suspect

threatens the officer with a weapon or probable cause exists to believe that he committed

a crime involving the infliction or threatened infliction of serious physical harm, deadly

force may be used if necessary to prevent escape, and if, when feasible, some warning

has been given. Tennessee v. Garner, 471 U.S. at 11-12. Under Thomas Sluman’s

version of the facts, he received no warning.

       Even under the State’s version of the facts, Thomas Sluman did not commit a

crime involving serious physical harm to another. Law enforcement sought to stop

Sluman for speeding. Washington State Patrol officers did not even seek to capture

Sluman because of a crime. Sluman was not armed. No officer knew that Sluman

discerned he was being pursued. According to Trooper Paul Blume, Sluman never

                                              18
No. 34467-3-III
Sluman v. State


looked in his direction. Thus, no officer knew that Sluman sought to elude the police.

       Trooper Bart Olson asserts that he held a governmental interest in protecting the

public from injury or death when stopping Thomas Sluman. Olson emphasizes that the

motorcycle’s high speed posed a risk to persons in the immediate area.

       Language in Tennessee v. Garner, 471 U.S. 1 (1985) disassembles Bart Olson’s

argument. In Garner, the Supreme Court noted, based on extensive research and

consideration, that laws permitting police officers to use deadly force to apprehend

unarmed, nonviolent fleeing felony suspects do not protect citizens or law enforcement

officers, do not deter crime or alleviate problems caused by crime, and do not improve

the crime fighting ability of law enforcement agencies. Tennessee v. Garner, 471 U.S. at

19. Thus, the government’s interest in ending a high-speed chase of an unarmed

perpetrator does not justify deadly force. Accordingly, the Fourth Amendment’s right to

be free from unreasonable seizure prohibits the use of lethal force to apprehend a fleeing

felon in the absence of an immediate threat of serious physical harm or death. Tennessee

v. Garner, 471 U.S. at 11.

       Trooper Bart Olson cites three United States Supreme Court decisions to support

his argument that, as a matter of law, he did not exert excessive force: Mullenix v. Luna,

___ U.S. ___, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015); Plumhoff v. Rickard, ___ U.S.

___, 134 S. Ct. 2012, 188 L. Ed. 2d 1056 (2014); and Brosseau v. Haugen, 543 U.S. at

200 (2004). We review each decision and find each factually distinguishable because the

                                            19
No. 34467-3-III
Sluman v. State


person seized actually endangered the lives of officers and others.

       In Mullenix v. Luna, 136 S. Ct. 305 (2015), the Court only addressed the qualified

immunity question, not whether the officer breached the Fourth Amendment. Thus, the

Supreme Court only focused on whether the right at issue was clearly established.

       In Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), a law enforcement officer stopped

Donald Rickard for an inoperable headlamp on his car. A passenger rode in Rickard’s

automobile. When the officer asked Rickard to exit the vehicle, he sped away. A chase

ensued that took Rickard and the pursuing officers to an interstate. The vehicles swerved

through traffic at speeds over one hundred miles per hour. During the chase, Rickard and

officers passed more than two dozen vehicles. Eventually Rickard exited the interstate

and executed a quick turn that caused contact with a police cruiser. As a result of the

contact, Rickard’s car spun into a parking lot and collided with Officer Plumhoff’s

vehicle. Two officers exited their vehicles to approach Rickard’s car and pound on the

passenger’s window. At this point, Rickard’s car struck another police vehicle, causing

his car to temporarily intertwine with the bumper of the police car. Officer Plumhoff

exited his patrol car and fired three shots into the car, but an undeterred Rickard unstuck

and reversed his car. Rickard maneuvered onto the street, while forcing an officer to step

to the side in order to avoid being hit by Rickard’s vehicle. As Rickard fled down the

street, two other officers fired twelve shots. Rickard lost control of his car, which

crashed into a building. A combination of bullets and the impact with the structure killed

                                             20
No. 34467-3-III
Sluman v. State


Rickard and his passenger. The high Court held that the Fourth Amendment allowed

deadly force in this instance because of the high speed, the passing of many vehicles by

Rickard, Rickard forcing other motorists off the road, the collision with a patrol car, the

acceleration and escape after the interlocking of Rickard’s car with the patrol car, and

Rickard’s continued flight after the first shots. Thomas Sluman’s suit possesses none of

these critical circumstances.

       In Brosseau v. Haugen, 543 U.S. 194 (2004), law enforcement garnered a felony

warrant for the arrest of Kenneth Haugen on drug and other offenses. Thereafter a

neighbor of Kenneth Haguen’s mother notified police that Haugen and another man

fought on the mother’s yard. Officer Rochelle Brosseau responded to the call. When

Officer Brosseau arrived, Haugen escaped. Brosseau called for assistance and officers

arrived at the scene and spread through the neighborhood to locate a hiding Haugen.

       Officer Rochelle Brosseau eventually found Kenneth Haugen, who ran from her

toward his mother’s home’s driveway, jumped into the driver’s seat of a Jeep, and closed

and locked the door. Brosseau ran to the Jeep, pointed her weapon at Haugen inside the

vehicle, and ordered Haugen to exit the Jeep. Brosseau repeated the command while

hitting the window several times with her handgun. The window shattered. Brosseau

unsuccessfully attempted to grab the Jeep’s keys from Haugen, and she struck Haugen in

the head with the barrel and butt of her gun. A persistent Haugen started the Jeep.

Officer Brosseau fired a shot through the rear driver’s side window, which shot struck

                                             21
No. 34467-3-III
Sluman v. State


Haugen’s back. An undeterred Haugen left the driveway, swerved across the neighbor’s

lawn, and drove down the street. A half block later, Haugen noticed his gunshot wound

and stopped the vehicle.

       Brosseau’s facts differ from the facts of this appeal. Kenneth Haugen posed an

immediate threat to law enforcement officers. He fought with another man, which

evidenced his violent nature before officers even arrived at the scene. The violence and

escape occurred in a neighborhood with other officers in the streets of the neighborhood

looking for Haugen after Brosseau already located him. People occupied two cars on

both sides of the Jeep when Haugen maneuvered the car out of the driveway. Haugen

persisted in escaping after multiple commands to exit the car, after being hit in the head

with a gun, and after being shot in the back. These actions led the United States Supreme

Court to find Haugen a threat thereby making Brosseau’s actions reasonable. The Court

explained that Haugen proved he would take extreme measures to avoid capture and he

posed a major threat to, among others, the officers at the end of the street. Thomas

Sluman’s appeal bears none of these critical facts.

       Trooper Bart Olson also mentions Scott v. Harris, 550 U.S. 372, 374-75, 127 S.

Ct. 1769, 167 L. Ed. 2d 686 (2007). The speeding motorist also initiated a chase on a

two-lane highway. But, unlike in Thomas Sluman’s case, the motorist exited the road

and entered a parking lot of a shopping center because of a crowded roadway. Police

vehicles nearly trapped the motorist’s car inside the lot. In order to evade the trap, the

                                             22
No. 34467-3-III
Sluman v. State


motorist executed a sharp turn, collided with an officer’s police car, exited the parking

lot, and again sped away.

       The facts viewed in the light most favorable to Thomas Sluman distinguish this

appeal from Brosseau, Scott, Mullenix, and Rickard. Thomas Sluman drove on a two-

lane highway, not in a residential neighborhood. An unpopulated South Thorp Highway

lacked turns into business parking lots. Sluman did not endanger the public by driving

erratically through a parking lot. Officers formed the intent to stop Sluman after

witnessing him speeding on the highway. Sluman bore no arms, did not appear armed,

and communicated no threats to police officers or anyone else. Sluman did not weave

through traffic and did not aggressively pass cars in an attempt to elude the police.

Sluman also did not act as a threat by hitting police cars in an attempt to escape. Sluman

only struck Trooper Olson’s car when Olson door-checked Sluman and sent him

careening over the edge of the bridge to the ground below.

       Thomas Sluman obeyed all traffic laws except the speed limit. The one hundred

miles per hour speed reached in Plumhoff was not disputed. Sluman disputes Bart

Olson’s claim that Sluman exceeded one hundred miles per hour, and Sluman provides a

sound reason to discount the plane operator’s estimate of the speed.

       In his argument, Trooper Bart Olson erroneously claims that Thomas Sluman does

not dispute Olson’s version of the facts. Bart Olson also repeatedly pictures the facts in a

light favorable to him, while ignoring his own testimony and the testimony of other

                                             23
No. 34467-3-III
Sluman v. State


Washington State Patrol troopers.

       Trooper Olson repetitively writes of the safety of pedestrians and other motorists

imperiled by Thomas Sluman’s flight on a motorcycle. Nevertheless, facts support the

conclusion that Sluman endangered no pedestrians or other motorists as he drove on

South Thorp Highway. Olson asserts that he acted, as part of a team, to protect citizens at

a well-traveled intersection from a motorcyclist traveling at speeds over 120 miles per

hour. Olson did not act as a team. Instead, the undisputed facts show he performed as a

rogue officer who violated numerous Washington State Patrol regulations. Olson

forwards no evidence of the number of travelers, if any, near the point of impact on South

Thorp Highway. Sluman traveled between 30 and 40 m.p.h. when Trooper Bart Olson

door-checked him.

       Trooper Bart Olson writes that South Thorp Highway runs through a high density

residential farm area. We doubt that any farm area, regardless of the presence of some

residences, to be of high density. Regardless, no facts show the area to be high density.

The video filed as evidence contradicts this assertion. A photograph cited for this

proposition shows police cars parked on a bridge, not a high-density farm area.

       Bart Olson contends that Thomas Sluman’s speed on South Thorp Highway

endangered others. Nevertheless, in his deposition, Trooper Olson testified that “nobody

was in the area.” CP at 535. The State also mentions the presence of innocent parties at

the nearby campground. No evidence shows any persons then present in the campground

                                            24
No. 34467-3-III
Sluman v. State


to be endangered. No decision has held that the theoretical possibility that people may be

in the area qualifies as the type of immediate threat that justifies the use of lethal force.

       Based on the United States Supreme Court decision in Scott v. Harris, 550 U.S.

372 (2007), Trooper Bart Olson argues that Thomas Sluman cannot testify or present

testimony of witnesses contrary to the videotape that recorded Sluman’s collision of

Olson’s patrol car door. We accept this argument but observe that the video supports

Sluman’s version of the facts, not the State’s description of the facts.

       Although not United States Supreme Court decisions, we consider two federal

appeals court decisions, Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003) and Walker v.

Davis, 649 F.3d 502 (6th Cir. 2011), to parallel the facts in Thomas Sluman’s appeal.

Both decisions support our holding that Thomas Sluman presents facts to establish that

Trooper Bart Olson exercised unreasonable force. We outline the facts and rulings of the

two cases in our Appendix A.

       Trooper Bart Olson violated many Washington State Patrol rules when pursuing

Thomas Sluman and impeding Sluman’s progress. Some federal circuits have held that

an officer’s violation of department standards lacks relevance to whether the officer

violated the Fourth Amendment, in part because such a rule would promote law

enforcement departments to lower their standards. Smith v. Freland, 954 F.2d 343, 347-

48 (6th Cir. 1992); see Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988). Other circuits,

including our home circuit, have ruled that training bulletins, department regulations, and

                                              25
No. 34467-3-III
Sluman v. State


guidelines hold relevance to the reasonableness of an officer’s conduct in applying force.

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d at 1059 (9th Cir. 2003).

Under this second view, a court may question an officer’s action as reasonably prudent if

banned by his or her department or of whose dangers he or she had been warned.

Gutierrez v. City of San Antonio, 139 F.3d 441, 449 (5th Cir. 1998); Scott v. Henrich, 39

F.3d 912, 915-16 (9th Cir. 1994). We see no reason to resolve this discrepancy. We

note, however, that the United States Supreme Court in Tennessee v. Garner, 471 U.S. 1

(1985), considered the regulations of major cities and the Federal Bureau of Investigation

when ruling deadly force unconstitutional except when the suspect threatens the life of

another and only after a warning.

       Issue 3: Whether qualified immunity shields Trooper Bart Olson from liability to

Thomas Sluman as a matter of law?

       Answer 3: No.

       After concluding that facts support a conclusion that Trooper Bart Olson violated

Thomas Sluman’s Fourth Amendment right to be free from unreasonable seizures, we

now address whether disputed facts prevent application of qualified immunity in favor of

Bart Olson. We again rely on federal cases.

       Under United States Supreme Court precedent, a law enforcement officer receives

qualified immunity under § 1983 unless (1) he or she violated a federal statutory or

constitutional right, and (2) the unlawfulness of the conduct was “clearly established at

                                            26
No. 34467-3-III
Sluman v. State


the time.” District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 589, 199 L. Ed.

2d 453 (2018). A clearly established right constitutes a sufficiently clear right that every

reasonable official would recognize. Mullenix v. Luna, 136 S. Ct. at 308 (2015). This

test may be redundant since a reasonable person, or at least a reasonable government

officer, should know of all clearly established constitutional rights.

       42 U.S.C. § 1983 immunity balances two important interests, the need to hold

public officials accountable when exercising power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they perform their duties

reasonably. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565

(2009). When government officials abuse their offices, actions for damages may offer

the only realistic avenue for vindication of constitutional guarantees. Anderson v.

Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987).

       The United States Supreme Court has employed various phrases in an endeavor to

elucidate and define the idiom “clearly established law.” Existing law must have placed

the constitutionality of the officer’s conduct “beyond debate.” District of Columbia v.

Wesby, 138 S. Ct. at 589. To be clearly established, a legal principle must have a

sufficiently clear foundation in then-existing precedent. District of Columbia v. Wesby,

138 S. Ct. at 589. The violated rule must be “settled law.” Hunter v. Bryant, 502 U.S.

224, 228, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). The law must result from

“controlling authority” or a robust consensus of “cases of persuasive authority.” Wilson

                                             27
No. 34467-3-III
Sluman v. State


v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). The precedent

must be clear enough that every reasonable official would interpret it to establish the

particular rule the plaintiff seeks to apply. District of Columbia v. Wesby, 138 S. Ct. at

590.

       The “clearly established” standard also requires that the legal principle clearly

prohibit the officer’s conduct in the particular circumstances before him. District of

Columbia v. Wesby, 138 S. Ct. at 590. The rule’s contours must be so well defined that a

reasonable officer will clearly know that his conduct was unlawful in the situation he

confronted. Carroll v. Carman, ___ U.S. ___, 135 S. Ct. 348, 350, 190 L. Ed. 2d 311

(2014).

       We encounter some difficulty in discerning clearly established law, since the law

does not and cannot mathematically quantify the specificity or generality of its tenets, the

clearness or opaqueness of its rules, or the concreteness or abstraction of its principles.

Nevertheless, we seek to assess qualified immunity by musing and meditating on the

facts in reported Fourth Amendment decisions and the closeness of those facts to the

conduct of Thomas Sluman and Trooper Bart Olson. We also examine and evaluate the

specificity of the rules announced in the decisions.

       United States Supreme Court jurisprudence has announced some conflicting

principles with regard to assessing clearly established law. On the one hand, some

United States Supreme Court decisions caution lower courts when measuring the

                                             28
No. 34467-3-III
Sluman v. State


particularity of a constitutional rule. The Supreme Court has repeatedly admonished

courts from defining clearly established law at a high level of generality. Mullenix v.

Luna, 136 S. Ct. at 308 (2015). Withholding immunity requires a high “degree of

specificity.” Mullenix v. Luna, 136 S. Ct. at 309. A rule is too general if the

unlawfulness of the officer’s conduct does not follow immediately from the conclusion

that the rule was firmly established. Anderson v. Creighton, 483 U.S. at 641 (1987). For

example, the Court has reversed cases when lower courts denied an official qualified

immunity based on Garner’s general holding that an officer employs unreasonable force

when he or she uses deadly force on an unarmed fleeing felon. Mullenix v. Luna, 136 S.

Ct. at 308-09. The general proposition, for example, that an unreasonable search or

seizure violates the Fourth Amendment helps little in determining whether the law clearly

establishes the violative nature of particular conduct. Ashcroft v. al-Kidd, 563 U.S. at

742 (2011); Saucier v. Katz, 533 U.S. at 201-02 (2001).

       On the other hand, the United States Supreme Court has also cautioned lower

courts not to demand identical facts to prior decisions before withholding qualified

immunity. Qualified immunity does not automatically protect official action only if a

court has held unlawful the very action in question. Anderson v. Creighton, 483 U.S. at

640 (1987). The Court does not require a case directly on point to deny immunity.

Mullenix v. Luna, 136 S. Ct. at 308. There can be the rare “obvious case,” when the

unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent

                                             29
No. 34467-3-III
Sluman v. State


does not address similar circumstances. Brosseau v. Haugen, 543 U.S. at 199 (2004).

Officials can still be on notice that their conduct violates established law even in novel

factual circumstances. Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d

666 (2002). The “salient question” is whether the state of the law gave the defendant

“fair warning” that their alleged conduct was unconstitutional. Hope v. Pelzer, 536 U.S.

at 741.

          The Supreme Court has outlined steps for a court to undertake when determining

whether a law enforcement officer charged with excessive force by employing deadly

force deserves qualified immunity. The court starts by defining the circumstances that

confronted the law enforcement officer. District of Columbia v. Wesby, 138 S. Ct. at 589.

The court then evaluates the constitutionality of the police officer’s use of deadly force in

light of Garner. Tennessee v. Garner, 471 U.S. at 11-12; Vaughan v. Cox, 343 F.3d at

1332 (11th Cir. 2003). Nevertheless, the court may not base its decision on any “general”

rule found in Garner as to excessive force. Brosseau v. Haugen, 543 U.S. at 199.

Instead, an officer will be entitled to qualified immunity if he had “arguable probable

cause” to employ deadly force. Vaughan v. Cox, 343 F.3d at 1332 (11th Cir. 2003). In

essence, the court decides whether “the officer reasonably could have believed that

probable cause existed” to use deadly force. Montoute v. Carr, 114 F.3d 181, 184 (11th

Cir. 1997). In evaluating an officer’s assertion of a qualified immunity defense, we apply

an objective standard, asking whether the officer’s actions are objectively reasonable in

                                             30
No. 34467-3-III
Sluman v. State


light of the facts confronting the officer, regardless of the officer’s underlying intent or

motivation. Montoute v. Carr, 114 F.3d at 183. Judges must be cautious about second

guessing a police officer’s assessment, made on the scene, of the danger presented by a

particular situation. Ryburn v. Huff, 565 U.S. 469, 477, 132 S. Ct. 987, 181 L. Ed. 2d 966

(2012).

       Although law enforcement officers are not trained lawyers, they are taught search

and seizure law in training. One decision suggests that officers should be able to reason

as to what facts are important in a United States Supreme Court decision. Hope v. Pelzer,

536 U.S. at 742 (2002).

       The United States Supreme Court has yet to decide what precedents, other than its

own decisions, qualify as controlling authority for purposes of qualified immunity.

District of Columbia v. Wesby, 138 S. Ct. at 591 n.8. Therefore, we begin with some

Supreme Court decisions.

       In Mullenix v. Luna, 136 S. Ct. 305 (2015), the Court did not address whether the

officer breached the Fourth Amendment, but instead addressed whether the law had

clearly established the right at issue. Trooper Bart Olson highlights Mullenix.

       In Mullenix, one officer approached Israel Leija’s vehicle at a drive-in restaurant

to inform Leija that he was under arrest pursuant to active arrest warrants. After the

officer spoke, Leija sped toward a Texas interstate highway as other officers joined the

pursuit. Twice during the chase, Leija called police dispatch and claimed to hold a gun

                                              31
No. 34467-3-III
Sluman v. State


while threatening to shoot police officers if they did not abandon their pursuit. The

dispatcher relayed Leija’s threats, together with the report that Leija might be intoxicated,

to all concerned officers.

         While the chase of Israel Leija continued, other officers laid spike strips at three

locations, the first of which was located beneath an overpass. Trooper Chadrin Mullenix

was one of the responding officers. He journeyed to the overpass initially intending to

help lay the spike strip, but upon arrival at the overpass, he switched to a different tactic:

shooting at Leija’s car in order to disable it. Trooper Mullenix radioed the idea to

another officer who agreed with the plan so Mullenix asked the dispatcher to inform his

supervisor in order to gain his approval. Before receiving a response, Mullenix stood on

top of the overpass and twenty feet above the interstate with his rifle aimed below.

Mullenix knew that another officer manned the spike strip on the roadway beneath the

overpass. Three minutes after taking his sniper’s position, Trooper Mullenix spotted

Leija’s vehicle approaching the overpass and fired six shots, one or more which killed

Leija.

         The United States Supreme Court, in Mullenix v. Luna, held that the officer did

not violate a clearly established right but only in the context of the unique facts. The

Court stated “none of our precedents ‘squarely governs’ the facts here.” Mullenix v.

Luna, 136 S. Ct. at 310. Those facts included a suspect threatening to shoot at officers.

The Court defended Trooper Mullenix’s actions by highlighting that fellow officers stood

                                               32
No. 34467-3-III
Sluman v. State


below the overpass, that Mullenix knew of the officers’ presence, that Leija had twice

threatened to shoot officers, and that Leija raced toward an officer’s location.

         The facts in our appeal lack any of these or similar details. Thomas Sluman never

threatened to shoot anyone, let alone officers, and never appeared armed. The Supreme

Court specifically distinguished Mullenix from four other cases where it found the facts

too distinct to speak to the circumstances involved in Mullenix.

         We already detailed facts in Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), Scott v.

Harris, 550 U.S. 372 (2007), and Brosseau v. Haugen, 543 U.S. 194 (2004). In

Brosseau, the Court held that an officer did not violate clearly established law when she

shot a fleeing suspect out of fear that he endangered other officers on foot who she

believed were in the immediate area, the occupied vehicles in his path, and any other

citizens who might be in the area. In Scott v. Harris, 550 U.S. 372, the Court held that an

officer did not violate the Fourth Amendment by ramming the car of a fugitive whose

reckless driving posed an actual and imminent threat to the lives of any pedestrians who

might have been present, to other civilian motorists, and to the officers involved in the

chase.

         In Plumhoff v. Rickard, 134 S. Ct. 2012, the Court reaffirmed Scott by holding that

an officer acted reasonably when he fatally shot a fugitive who was intent on resuming a

chase that posed a deadly threat for others on the road. During that chase, Rickard passed

more than two dozen other vehicles, several of which were forced to alter course.

                                              33
No. 34467-3-III
Sluman v. State


Rickard’s outrageously reckless driving posed a grave public safety risk. When

Rickard’s car eventually collided with a police car and came temporarily to a standstill

that did not end the chase. Less than three seconds later, Rickard resumed maneuvering

his car. Just before the shots were fired, when the front bumper of his car was flush with

that of one of the police cruisers, Rickard was obviously pushing down on the accelerator

because the car’s wheels were spinning, and then Rickard threw the car into reverse in an

attempt to escape.

       The law directs us to outline the important facts as seen by the defending law

enforcement officer when the officer employs force or at least those facts that a

reasonable officer confronted with the same circumstances would know. Trooper Bart

Olson underwent training not to block the path of a vehicle on the road. Trooper Olson

had been directed to end his pursuit of Thomas Sluman. Olson knew that an aircraft

followed Sluman and could continue to follow Sluman. Olson, as he testified in his

deposition, knew no one else was in the area where he parked his patrol car and Thomas

Sluman rode his motorcycle. Therefore, Olson knew that Sluman did not endanger the

public or officers. Olson had no knowledge that Sluman knew he was being pursued.

Olson knew that Sluman had made no threats to law enforcement officers. Olson had no

knowledge of Sluman being armed. By training, Bart Olson knew erecting a roadblock

or interfering with a motorcyclist’s movement constituted deadly force. Still, Olson

employed deadly force to stop the movement of Sluman.

                                            34
No. 34467-3-III
Sluman v. State


       Assuming we must ground our determination of clearly established law only on

United States Supreme Court precedent, the Supreme Court decided Brower v. County of

Inyo, 489 U.S. 593 (1989) and Tennessee v. Garner, 471 U.S. 1 (1985) decades before

Trooper Bart Olson’s conduct in 2010. Both cases warned Trooper Bart Olson that a law

enforcement officer violates the Fourth Amendment when terminating the citizen’s

movement with force when the citizen does not violate the law. The high Court rulings

cautioned Olson that he may not employ deadly force unless he had probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer or to

others. Brower v. County of Inyo imposed liability on an officer for erecting a roadblock

when the suspect did not pose such a threat. Although Olson may be able to identify

some distinguishing facts from Brower, he cannot identify any facts that call for a

different outcome in his suit.

       We find no case involving a door-check. Nevertheless, any reasonable officer by

2010 should have known not to door-check a motorcyclist traveling on an uncrowded

road when the motorcyclist had not earlier interfered in the travel of other motorists. No

reported decision excuses a law enforcement officer’s conduct under these circumstances.

       Four federal circuit court decisions withhold qualified immunity to a law

enforcement officer in similar cases as presented in this appeal. Walker v. Davis, 649

F.3d 502 (6th Cir. 2011); Adams v. Speers, 473 F.3d 989 (9th Cir. 2007); Vaughan v.

Cox, 343 F.3d 1323 (11th Cir. 2003); Hawkins v. City of Farmington, 189 F.3d 695 (8th

                                              35
No. 34467-3-III
Sluman v. State


Cir. 1999). To shorten a lengthy decision, we outline all decisions in Appendix B.

       Trooper Bart Olson phrases the issue in Thomas Sluman’s appeal as: assuming all

facts in the light most favorable to Sluman, was the law clearly established in July 2010

that the Fourth Amendment prohibited a law enforcement officer, making a split-second

decision concerning the safety of pedestrians and other motorists imperiled by a suspect

fleeing on a motorcycle, from opening the door of his patrol car into the motorcycle’s

path, even when the suspect had done no more than elude police? In so framing the

issue, Trooper Olson assumes facts in the light most favorable to him, not Thomas

Sluman. Thomas Sluman did not endanger pedestrians or other motorists when Sluman

drove on South Thorp Highway. Some facts show that Sluman did not elude law

enforcement.

       Trooper Bart Olson also frames the issue as: does the law afford Olson qualified

immunity when he performed a traffic stop to prevent Sluman from entering a high traffic

density highway interchange when Sluman sped over one hundred twenty miles per hour

to elude law enforcement? Again, Olson views the facts in a glow beneficial to him. No

facts support a finding that Sluman entered a high traffic density interchange. Olson

averred that no one else was present. Inferences from facts suggest Sluman did not travel

even over one hundred miles per hour. Again, some facts question whether Sluman

sought to elude police. Assuming Sluman knew of the pursuit, his only felony was

eluding an officer.

                                            36
No. 34467-3-III
Sluman v. State


       Trooper Bart Olson also emphasizes that he made a split-second judgment when

parking his car on the Yakima River Bridge and when opening his car door. We

recognize that the United States Supreme Court wishes police officers leniency when

rendering split second decisions. Nevertheless, the Court has never held that all quick

decisions carry qualified immunity. We also question whether Bart Olson engaged in a

split-second decision. Inference from other facts suggest that, from the time of his notice

that Trooper David Hinchliff pursued Thomas Sluman, Olson intended to take

extraordinary steps to end the travel of Sluman. Olson reflected before parking his car in

the middle of the road in an attempt to horse collar Sluman.

       Trooper Bart Olson presents no testimony relating his knowledge of the law of

search and seizure. Olson presents no testimony that he relied on any particular court

decisions or deemed himself compliant with constitutional principles when door-

checking Thomas Sluman. Under the facts as presented by Thomas Sluman, Trooper

Bart Olson’s conduct breached clearly established constitutional rights. Federal case law

interpreting similar claims would have placed a reasonable officer on notice that using

unauthorized deadly force against a fleeing suspect that is only wanted for traffic

violations breaches the Fourth Amendment. The only risk posed in this case was the risk

of an accident which Trooper Olson, not Thomas Sluman, turned into a reality.

       Washington State Trooper Bart Olson emphasizes recent United States Supreme

Court decisions that reverse lower court decisions denying a law enforcement officer

                                            37
No. 34467-3-III
Sluman v. State


qualified immunity. District of Columbia v. Wesby, 138 S. Ct. 577 (2018); White v.

Pauly, ___ U.S. ___, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017); Mullenix v. Luna, 136 S.

Ct. 305 (2015); Taylor v. Barkes, ___ U.S. ___, 135 S. Ct. 2042, 192 L. Ed. 2d 78 (2015);

City and County of San Francisco v. Sheehan, ___ U.S. ___, 135 S. Ct. 1765, 191 L. Ed.

2d 856 (2015); Carroll v. Carman, 135 S. Ct. 348 (2014); Plumhoff v. Rickard, 134 S. Ct.

2012 (2014); Wood v. Moss, ___ U.S. ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039 (2014);

Stanton v. Sims, 571 U.S. 3, 134 S. Ct. 3, 187 L. Ed. 2d 341 (2013); Reichle v. Howards,

566 U.S. 658, 132 S. Ct. 2088, 182 L. Ed. 2d 985 (2012); Ryburn v. Huff, 565 U.S. 469

(2012); Messerschmidt v. Millender, 565 U.S. 535, 132 S. Ct. 1235, 182 L. Ed. 2d 47

(2012); Ashcroft v. al-Kidd, 563 U.S. 731 (2011). Carroll v. Carman concerns the

application of the knock and talk practice. District of Columbia v. Wesby, 138 S. Ct. 577

(2018) concerns an amusing false arrest claim, not an excessive force allegation, wherein

partygoers at a bachelor party could not identify the bachelor. Messerschmidt v.

Millender addressed an arrest pursuant to a search warrant. Reichle v. Howards involves

a First Amendment retaliatory arrest. Stanton v. Sims and Ryburn v. Huff concern

warrantless entries into homes. Taylor v. Barkes involves the Eighth Amendment. Wood

v. Moss is a First Amendment case. In White v. Pauly, the officer used deadly force when

the injured party said he had a gun. In City and County of San Francisco v. Sheehan,

officers also used deadly force against a decedent who possessed a knife and threatened

to use the weapon.

                                           38
No. 34467-3-III
Sluman v. State


       We accept the recent decisions as precautionary instructions to carefully review

the facts of each case and ensure that the facts support a conclusion that the officer

violated clearly established law. Nevertheless, the decisions do not bestow absolute

immunity on the officers. In short, Thomas Sluman presents many cases that establish

that Trooper Bart Olson violated his clearly established Fourth Amendment rights. Bart

Olson forwards no decision that helps him under these circumstances. All of Olson’s

promoted decisions involve the speeding person to have endangered the lives of others.

                                     Felony Bar Statute

       We now begin our review of Thomas Sluman’s state law claims. Since Sluman

seeks to reverse dismissal of state law claims asserted against both Trooper Bart Olson

and the State of Washington and since the two defendants’ interests coincide, we

hereafter refer to both defendants in the aggregate as the State.

       Thomas Sluman pled state causes of action of false arrest, false imprisonment,

negligence, gross negligence, negligent infliction of emotional distress, intentional

infliction of emotional distress, and negligent training and supervision. Sluman agreed to

dismissal of false arrest and false imprisonment. The trial court dismissed on summary

judgment the remaining claims over the objection of Sluman. We will later briefly

analyze each of these remaining claims but must first address a defense common to all

state law claims, the felony bar rule.



                                             39
No. 34467-3-III
Sluman v. State


       In his brief, Thomas Sluman argued against application of the public duty

doctrine. The State does not contend, in its brief, that the public duty doctrine bars

Sluman’s state law causes of action. Therefore, we proceed on the assumption the State

has abandoned any defense, for purposes of a summary judgment motion, based on the

doctrine. The State may still assert the doctrine before the trial court since Sluman has

not asked for the dismissal of the defense as a matter of law.

       On appeal, the State asks us to affirm summary judgment dismissal of all state

claims based on Washington’s felony bar statute. RCW 4.24.420 provides:

              It is a complete defense to any action for damages for personal
       injury or wrongful death that the person injured or killed was engaged in
       the commission of a felony at the time of the occurrence causing the injury
       or death and the felony was a proximate cause of the injury or death.
       However, nothing in this section shall affect a right of action under 42
       U.S.C. Sec. 1983.

(Emphasis added.)

       Thomas Sluman resists application of the felony bar statute on two grounds. First,

he did not commit a felony. Second, any crime he committed was not a proximate cause

of his injuries. We could base our reversal of the application of the statute as a matter of

law in favor of the State solely on proximate cause, but because the question of Sluman’s

purported commission of a felony may arise again on remand, we also address this

second ground.




                                             40
No. 34467-3-III
Sluman v. State


       Issue 4: Whether collateral estoppel bars Thomas Sluman from denying he

committed felony eluding a police officer?

       Answer 4: No.

       RCW 46.61.024 declares:

               (1) Any driver of a motor vehicle who willfully fails or refuses to
       immediately bring his or her vehicle to a stop and who drives his or her
       vehicle in a reckless manner while attempting to elude a pursuing police
       vehicle, after being given a visual or audible signal to bring the vehicle to a
       stop, shall be guilty of a class C felony. The signal given by the police
       officer may be by hand, voice, emergency light, or siren. The officer giving
       such a signal shall be in uniform and the vehicle shall be equipped with
       lights and sirens.

The State relies on RCW 46.61.024 when asserting that Thomas Sluman committed a

felony. In turn, the State contends that collateral estoppel bars Thomas Sluman from

denying application of the felony bar statute because Sluman pled guilty to felony

eluding. Based on Clark v. Baines, 150 Wn.2d 905, 84 P.3d 245 (2004), we disagree.

       The doctrine of collateral estoppel prevents a party from relitigating issues raised

and litigated by the party in an earlier proceeding. Reninger v. Department of

Corrections, 134 Wn.2d 437, 449, 951 P.2d 782 (1998). Washington employs a four-part

test to determine whether previous litigation should be afforded collateral estoppel effect

in a subsequent litigation. The party asserting collateral estoppel must prove: (1) the

issue decided in the prior adjudication is identical to the one presented in the current

action, (2) the prior adjudication resulted in a final judgment on the merits, (3) the party


                                             41
No. 34467-3-III
Sluman v. State


against whom collateral estoppel is asserted was a party or in privity with a party to the

prior adjudication, and (4) precluding relitigation of the issue will not work an injustice

on the party against whom collateral estoppel is to be applied. State v. Harrison, 148

Wn.2d 550, 561, 61 P.3d 1104 (2003). We limit our discussion to element four.

       The determination of whether application of collateral estoppel will work an

injustice on the party against whom the doctrine is asserted depends primarily on whether

the parties to the earlier proceeding received a full and fair hearing on the issue in

question. Thompson v. Department of Licensing, 138 Wn.2d 783, 795-96, 982 P.2d 601

(1999). Accordingly, a criminal conviction after a trial may, under certain circumstances,

be given preclusive effect in a subsequent civil action. Kyreacos v. Smith, 89 Wn.2d 425,

429-30, 572 P.2d 723 (1977). When a criminal conviction results from an Alford plea,

however, the parties never engaged in a full hearing. Falkner v. Foshaug, 108 Wn. App.

113, 122-23, 29 P.3d 771 (2001); Safeco Insurance Company of America v. McGrath, 42

Wn. App. 58, 62-64, 708 P.2d 657 (1985). A criminal defendant convicted on the basis

of an Alford plea, unlike a defendant convicted after a trial, has not enjoyed a fair

opportunity to litigate the issues in the criminal case. Safeco Insurance Company of

America v. McGrath, 42 Wn. App. at 62-63.

       The Evergreen State Supreme Court has held that an Alford plea to a criminal

charge does not act as collateral estoppel so as to preclude the offender from litigating the

commission of the underlying act in a civil suit. Clark v. Baines, 150 Wn.2d at 907

                                              42
No. 34467-3-III
Sluman v. State


(2004). Clark controls and compels a ruling that collateral estoppel does not prevent

Thomas Sluman from denying he committed the felony of eluding an officer.

         Our dissenting in part brother refuses to follow Clark v. Baines. The dissenting

opinion correctly notes that the plea of guilty may be used as evidence at trial. Based on

this principle, the dissent decides to accept the plea as evidence and refuses to allow

Thomas Sluman to contradict the plea, in essence rendering the plea dispositive.

Indirectly, the dissent applies collateral estoppel to Sluman’s claim because of a dislike of

Clark.

         The state Supreme Court issued Clark v. Baines. This appellate court remains

bound by a decision of the Washington Supreme Court. State v. Gore, 101 Wn.2d 481,

486-87, 681 P.2d 227 (1984). We must follow Supreme Court precedence, regardless of

any personal disagreement with its premise or correctness. State v. Jussila, 197 Wn.

App. 908, 931, 392 P.3d 1108 (2017).

         Issue 5: Whether Thomas Sluman may, in response to a summary judgment

motion, deny that he attempted to elude police because he told Trooper Bart Olson of his

outstanding warrants for arrest?

         Answer 5: Yes.

         As noted by the concurring opinion, the author of this lead opinion disagrees with

his two colleagues as to whether an issue of fact lies as to whether Thomas Sluman



                                              43
No. 34467-3-III
Sluman v. State


eluded state troopers such that he violated the felony statute. Therefore, I write in the

singular with respect to issues five and six, since I am in the minority.

       In addition to pleading guilty to felony eluding a law enforcement officer, Thomas

Sluman, at the situs of the door-check, responded to a question of Trooper Bart Olson by

stating he faced outstanding arrest warrants. Trooper Olson had asked Sluman why he

fled from the police. Although Sluman did not expressly state he fled, I assume that, in

the context of the question, he conceded the eluding. Sluman admits he uttered the

response, but he denies the accuracy of the statement. This factual background and

denial poses a fascinating question: may a party, in response to a summary judgment

motion, deny a fact to which he previously admitted? In answering this question, I

emphasize two factors. First, Sluman did not utter his concession under oath in the

context of litigation. Second, Sluman suffered from serious pain when speaking.

       Washington follows the sham affidavit rule, sometimes known in Washington as

the Marshall rule. Taylor v. Bell, 185 Wn. App. 270, 294, 340 P.3d 951 (2014). Under

the rule, when a party earlier rendered clear answers to unambiguous deposition

questions that negate the existence of any genuine issue of material fact, that party cannot

thereafter create such an issue with an affidavit that merely contradicts, without

explanation, previously given clear testimony. Taylor v. Bell, 185 Wn. App. at 294

(2014); Marshall v. AC&S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989). This rule

is a narrow one. Taylor v. Bell, 185 Wn. App. at 294. The self-serving affidavit must

                                             44
No. 34467-3-III
Sluman v. State


“directly contradict” the affiant’s “unambiguous sworn testimony” previously given.

Kaplan v. Northwest Mutual Life Insurance Co., 100 Wn. App. 571, 576, 990 P.2d 991

(2000). Moreover, if the subsequent affidavit offers an explanation for previously given

testimony, the trier of fact should determine the explanation’s plausibility. Safeco

Insurance Co. of America v. McGrath, 63 Wn. App. 170, 175, 817 P.2d 861 (1991).

       I decline to apply the sham affidavit rule in Thomas Sluman’s appeal for many

reasons. First, Sluman did not utter his comment to Trooper Bart Olson under oath. All

cases applying the rule entail earlier deposition testimony or statements under oath, not

statements outside the context of litigation. When rendering his concession, Thomas

Sluman underwent excruciating pain from disabling injuries, including numerous broken

bones. Sluman had just regained consciousness and the inferences suggest Olson

confronted Sluman immediately after the latter regained cognizance. No decision

addresses statements uttered, while under debilitating pain, because deponents generally

avoid questioning immediately after regaining consciousness from having been door-

checked and after having broken bones without any treatment.

       My dissenting brother emphasizes Marshall v. AC&S, Inc., 56 Wn. App. 181

(1989), in which this court applied the sham affidavit rule to preclude the claimant from

declaring he lacked knowledge of asbestos exposure more than three years past.

Although we noted that the claimant’s denial contradicted medical records, we also noted

that the denial naysaid the claimant’s application for workers compensation from the

                                            45
No. 34467-3-III
Sluman v. State


United States Department of Labor. The applicant must sign such forms, as a witness

signs a declaration, under the penalty of perjury.

       Our dissenting brother also notes that evidence of speed can suffice to convict one

of the crime of eluding. Of course, considering evidence as sufficient to convict says

nothing about whether some evidence contradicts guilt. Sufficient evidence does not

equate with undisputed evidence.

       Issue 6: Whether an issue of fact exists as to whether Thomas Sluman sought to

elude law enforcement officers?

       Answer 6: Yes.

       Thomas Sluman testified in his affidavit and his deposition that he knew not that

police pursued him. The State provides no percipient testimony to the contrary. Trooper

David Hinchliff agrees that he never observed that Sluman noticed him trailing Sluman.

Also although Sluman sped, no one testified to any underlying facts that would show

Sluman operated his motorcycle in a reckless manner. The State argues that Sluman

endangered the safety of others, but the State provides no testimony or photographic

evidence supporting this argument. Therefore, a question of fact exists as to whether

Sluman eluded police officers, and, if so, whether he drove in a reckless manner.

       I have already quoted RCW 46.61.024, the statute creating the crime of felony

eluding a police officer. The elements of the crime are: a suspect must (1) willfully fail,

(2) to immediately bring his vehicle to a stop, (3) and drive in a manner indicating a

                                             46
No. 34467-3-III
Sluman v. State


wanton and willful disregard for the lives or property of others, (4) while attempting to

elude police after being signaled to stop by a uniformed officer. State v. Tandecki, 153

Wn.2d 842, 848, 109 P.3d 398 (2005).

       This court reviews a summary judgment order de novo, engaging in the same

inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6,

15, 548 P.2d 1085 (1976). Summary judgment is proper if the record shows “there is no

genuine issue as to any material fact” and “the moving party is entitled to a judgment as a

matter of law.” CR 56(c). A genuine issue is one upon which reasonable people may

disagree; a material fact is one controlling the litigation’s outcome. Ranger Insurance

Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). This court construes all

facts and reasonable inferences in the light most favorable to the nonmoving party.

Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972). In

ruling on summary judgment, we do not weigh evidence or assess witness credibility.

Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633

(2006).

       The dissent and concurring author weigh the evidence and assess Thomas

Sluman’s credibility, contrary to summary judgment principles. They present no case

law that states a witness may not contradict himself for purposes of a summary judgment

motion, when the claimant did not render the earlier statement under oath or when the

claimant uttered the earlier statement under extreme circumstances faced by Thomas

                                            47
No. 34467-3-III
Sluman v. State


Sluman. Even in trial, a witness may present contradictory testimony and the jury may

believe that testimony favorable to him or her.

       The dissent may believe that, if a hearsay exception allows a contemporary

statement to be admitted, that the testimony controls the outcome of the case. The

exception to the hearsay rule, however, allows only introduction of the statement and

fails to accord the statement controlling power. The dissent further weighs the evidence

by writing that Thomas Sluman accelerated on the bridge after feigning a stop.

       Finally, the dissent and the concurring opinion assume that Thomas Sluman

violated the felony statute merely by speeding and eluding a law enforcement officer.

Neither recognizes that the crime requires the further element of driving in a manner

indicating a wanton and willful disregard for the lives or property of others. The record

lacks facts of such wanton and willful disregard for the lives of others. That is in part

why all members of the panel have held a question of fact lies as to whether Trooper Bart

Olson lacked reason to door-check Sluman.

       Issue 7: Whether a question of fact exists as to whether Thomas Sluman’s

purported eluding of a police officer caused his injuries?

       Answer 7: Yes.

       The concurring author agrees that an issue of fact exists as to whether any felony

eluding proximately caused Thomas Sluman’s injuries. Therefore, this lead opinion

returns to writing in the plural, and the remaining portion of the opinion, along with the

                                             48
No. 34467-3-III
Sluman v. State


answers and discussion with regard to issues one to four, should be deemed the majority

opinion.

       We also hold that questions of fact as to proximate causation also work to preclude

summary judgment in favor of the State. RCW 4.24.420 allows the defendant a complete

defense if the plaintiff engaged in a felony that qualifies as a proximate cause of the

injury. This statutory requirement of proximate cause corresponds with the common law

rule of proximate cause being an element of negligence. Wuthrich v. King County, 185

Wn.2d 19, 25, 366 P.3d 926 (2016).

       Proximate cause consists of two elements: cause in fact and legal causation.

Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Cause in fact concerns the

“‘but for’” consequences of an act: those events the act produced in a direct, unbroken

sequence, and that would not have resulted had the act not occurred. Smith v.

Department of Corrections, 189 Wn. App. 839, 850, 359 P.3d 867 (2015), review denied,

185 Wn.2d 1004, 366 P.3d 1244 (2016). Legal causation rests on considerations of logic,

common sense, policy, justice, and precedent as to how far the defendant’s responsibility

for the consequences of its actions should extend. Hartley v. State, 103 Wn.2d at 779.

       Thomas Sluman argues a question of fact exists because Trooper Bart Olson’s

parking of the car and opening of the car door superseded any conduct of Sluman in

causing the injuries. The State argues that Sluman’s engagement in felony eluding was a

cause, which in direct sequence, produced Sluman’s injuries. According to the State, if

                                             49
No. 34467-3-III
Sluman v. State


Sluman had obeyed law enforcement, followed the rules of the road to yield to lights and

sirens, and stopped the motorcycle, he would not have been injured. Of course, we

already have ruled that a question of fact exists as to whether Sluman engaged in a

felony. More importantly, the State provides no response to Sluman’s contention that

Trooper Olson’s conduct constitutes a superseding cause.

       Proximate cause, in part, involves the concept of superseding causation. An act

generally is a proximate cause of an injury if it produces the injury. Riojas v. Grant

County Public Utility District, 117 Wn. App. 694, 697, 72 P.3d 1093 (2003).

Nevertheless, if a new, independent intervening act breaks the chain of causation, it

supersedes the defendant’s original act and is no longer the proximate cause of the injury.

Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 813, 733 P.2d 969 (1987). Whether an

act may be considered a superseding cause sufficient to relieve a defendant of liability

depends on whether the intervening act can reasonably be foreseen by the defendant; only

intervening acts that are not reasonably foreseeable are deemed superseding causes.

Campbell v. ITE Imperial Corp., 107 Wn.2d at 813. Unforeseeable intervening acts

break the chain of causation. Washburn v. City of Federal Way, 178 Wn.2d 732, 761,

310 P.3d 1275 (2013).

       When we view the facts in a light favorable to Thomas Sluman, Sluman rode his

motorcycle without any knowledge that police pursued him or desired him to stop. Based

on these facts, Sluman need not have reasonably foreseen that someone would park his

                                            50
No. 34467-3-III
Sluman v. State


car in his lane of traffic, let alone open his car door at the last moment in order to strike

Sluman. Whether an intervening act constitutes a superseding cause is generally a

question of fact for the jury. Hertog ex rel. S.A.H. v. City of Seattle, 138 Wn.2d 265, 275,

282-83, 979 P.2d 400 (1999); Indoor Billboard/Washington, Inc. v. Integra Telecom of

Washington, Inc., 162 Wn.2d 59, 83, 170 P.3d 10 (2007).

                                      State Law Claims

       Thomas Sluman assigns error to the trial court’s dismissal of all of his state law

claims, which include negligence, gross negligence, negligent infliction of emotional

distress, intentional infliction of emotional distress, and negligent hiring and supervision.

Sluman asserts the last claim against only the State of Washington and contends the State

negligently hired and supervised Trooper Bart Olson.

       We discern no purpose behind Thomas Sluman’s pleading gross negligence in

addition to negligence, since gross negligence does not improve Sluman’s chance of

prevailing. Gross negligence provides no exception to the felony bar statute. We also

discern no purpose of Sluman pleading negligent infliction of emotional distress and

intentional infliction of emotional distress since the two causes of action allow a plaintiff

to recover emotional distress damages when the plaintiff suffered no physical injuries.

Thomas Sluman indisputably suffered serious bodily injury. Finally, the State conceded

in its answer that Trooper Bart Olson acted within the scope of his employment when

pursuing and door-checking Sluman. When the employer does not disclaim liability for

                                              51
No. 34467-3-III
Sluman v. State


the employee, claims of negligent hiring, training, and supervising collapse into a direct

tort claim against the employer. Brownfield v. City of Yakima, 178 Wn. App. 850, 878,

316 P.3d 520 (2013).

       The State of Washington provides no argument in support of summary judgment

dismissal of the state law claims other than the application of the felony bar rule and the

unwise argument discussed in the following paragraph that Trooper Paul Blume, not Bart

Olson, door-checked Thomas Sluman. Because the State does not present arguments to

dismiss any of the state law claims on their merits, we reverse the summary judgment

order as to all claims.

       The State raises the injudicious argument that Thomas Sluman sued the wrong

trooper. In his deposition, Thomas Sluman declared that a sports utility vehicle struck

him. Trooper Paul Blume drove the SUV, and Olson drove a Dodge Charger.

Nevertheless, the overwhelming facts establish that Olson’s patrol car, not Blume’s

vehicle, struck Sluman. All Washington State Patrol witnesses, including Olson, testified

that Olson, not Blume, door-checked Sluman. Sluman understandably must be confused.

A confused witness’ testimony presents precarious grounds for granting summary

judgment.




                                             52
No. 34467-3-III
Sluman v. State


                                  CONCLUSION

      We reverse summary judgment dismissal of Thomas Sluman’s federal civil rights

claims and state law claims.


                                         _________________________________
                                         Fearing, J.




                                        53
No. 34467-3-III
Sluman v. State
Appendix


                                      APPENDIX A

       In Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), a Georgia County’s Sheriff’s

Department received a report that a red pickup truck with a silver tool box in its bed had

been stolen from a service station along Interstate 85 south of Atlanta. The report

included the information that the suspect, a white male wearing a white t-shirt, was

heading north on Interstate 85. In response to the report, Deputy Fred Lawrence Cox and

Deputy Jeff Looney headed to the northbound lanes of Interstate 85 in separate vehicles.

Deputy Looney pulled onto the grass median to observe passing traffic. Deputy Cox

continued farther north and stopped at the site of a recent accident. Deputy Looney soon

spotted a truck traveling northward that matched the description of the stolen vehicle but,

contrary to the report, it towed a trailer loaded with two personal watercraft. Looney

reported his sighting on his radio and began to follow the truck.

       After hearing Looney’s report, Deputy Lawrence Cox radioed Deputy Jeff Looney

to inform him of an accident north of Looney’s position and that he should not attempt to

stop the vehicle until it had passed the accident. As the red pickup and Deputy Looney

passed him, Deputy Cox joined the pursuit. While tracking the truck, the deputies made

efforts to determine whether the vehicle was indeed the stolen truck. To this end, Deputy

Cox passed the truck, which proceeded at or near the speed limit of seventy miles per

hour. He observed two men in the cab. The man in the passenger’s seat, Jerry Vaughan,


                                            54
No. 34467-3-III
Sluman v. State
Appendix


matched the description of the suspect. Cox relayed his suspicion to Looney, and the two

deputies performed a “rolling roadblock” to stop the vehicle. The rolling roadblock

entails officers blocking a suspect vehicle with their police cruisers and reducing their

speed, in the hope that the suspect car will slow as well. Deputy Looney positioned his

cruiser directly behind the pickup. The officers thereby signaled their desire to stop the

pickup. As soon as he had positioned his vehicle in front of the truck, Cox applied his

brakes. According to Vaughan and the pickup’s driver, Freddy Rayson, the impact was

both accidental and insufficient to cause Cox to lose control of his patrol car. After the

collision, Rayson accelerated while staying in the same lane of traffic.

       Deputy Lawrence Cox decided to reposition his vehicle behind the truck. He

unholstered his sidearm and rolled down the passenger side window. Cox then shifted

his cruiser one lane to the left and slowed to allow the truck to pass him. As soon as his

cruiser was even with the pickup, Deputy Cox turned on his rooftop lights. Rayson

responded by accelerating to eighty to eighty-five miles per hour in a seventy-mile-per-

hour zone. Cox fired three rounds into the truck without warning. Deputy Cox sought to

disable either the truck or Rayson so that he could force the truck off the road.

Nevertheless, his volley disabled neither the truck nor Rayson. The third bullet instead

punctured Vaughan’s spine, instantly paralyzing him below the chest. Rayson’s only

reaction to the shooting was to drive faster and more recklessly. Rayson began a


                                             55
No. 34467-3-III
Sluman v. State
Appendix


desperate break for freedom that involved weaving in and out of lanes, driving at high

speeds through exit ramps, and dragging at least one of the watercraft, which had fallen

off the trailer, along the ground. As the chase continued into more heavily congested

sections of the highway, Cox fired his weapon again and repositioned his cruiser in front

of the truck. The truck struck Cox’s cruiser, causing the cruiser to spin out of control and

ram into a steel guard rail. Cox was injured and his cruiser was badly damaged, but the

truck continued while dragging the trailer and watercraft behind. Finally, when Rayson

tried to force the truck between two vehicles, he lost control of the pickup, the trailer

jack-knifed, and the truck hit the cement median. Both Vaughan and Rayson were taken

to the hospital.

       Jeffrey Vaughan sued Lawrence Cox. The trial court granted Deputy Cox

summary judgment on the basis that, since Cox aimed his shots at the driver, he did not

seize Vaughan. The trial court also concluded that Cox was entitled to qualified

immunity. The Eleventh Circuit Court of Appeals reversed. Since Cox sought to stop

Rayson and Vaughan, the deputy seized both when firing his weapon. The appellate

court also held that a reasonable jury, based on Vaughan’s version of the facts, could

conclude that Deputy Cox exerted unreasonable force. Neither Vaughan nor his driver

had threatened the lives of others or committed a violent felony before the shots.

Evidence showed that Rayson’s truck was easily identifiable and could have been


                                             56
No. 34467-3-III
Sluman v. State
Appendix


tracked, and that the officers could have sought assistance from other jurisdictions to

follow the suspects. Also, a jury could have reasonably concluded that Cox had the

feasibility to warn Vaughan and Rayson of the potential use of deadly force.

       In Walker v. Davis, 649 F.3d 502 (6th Cir. 2011), shortly after midnight in rural

Kentucky, a police officer clocked Thomas Germany riding his motorcycle at seventy

miles per hour in a fifty-five mile per hour zone. That officer attempted to pull over

Germany for speeding, but Germany refused to stop. Deputy Danny Davis heard about

the pursuit over the radio. As Germany approached Davis’ location, Davis blocked the

road with his cruiser. Germany maneuvered around him, and Davis gave chase. The

pursuit lasted five minutes and transpired on empty stretches of highway. Germany never

went above sixty miles per hour during the chase. He ran one red light.

       Thomas Germany eventually turned off the rural road and journeyed across a

muddy field. Officer Danny Davis followed in his cruiser. According to a reconstruction

expert, who analyzed the location of paint transfers between the two vehicles, Davis then

intentionally rammed Germany’s motorcycle. The ramming threw Germany from the

motorcycle and dragged him underneath the cruiser, crushing him to death.

       The Sixth Circuit, in Walker v. Davis, focused on whether Officer Danny Davis

should receive qualified immunity. The court noted, however, that settled law for a

generation held that, under the Fourth Amendment, when a suspect poses no immediate


                                            57
No. 34467-3-III
Sluman v. State
Appendix


threat to the officer and no threat to others, the harm resulting from failing to apprehend

him does not justify the use of deadly force. The court added that ramming a motorcycle

with a police cruiser involves the application of deadly force.




                                             58
No. 34467-3-III
Sluman v. State
Appendix


                                        Appendix B

       In Hawkins v. City of Farmington, 189 F.3d 695 (8th Cir. 1999), the court

disagreed with the officer’s contention that, in September 1994, his actions in creation of

a partial roadblock violated any constitutional right. Brower v. County of Inyo, decided

in 1989, held that a roadblock breached the Fourth Amendment.

       While conversing with a senior ranking police sergeant in the Farmington High

School parking lot, Walters’ dispatcher notified him that the Highway Patrol was in

pursuit of a motorcycle and that the Highway Patrol requested assistance. Without

receiving any information as to the description of either the motorcycle or its operator,

Walters left the high school parking lot and drove to the area of the Bray Road/Maple

Road intersection with Highway 67. The police sergeant, with whom Walters had been

conversing, received the same radio transmissions and did not comment on them to

Walters, nor did he accompany Walters as Walters left the parking lot. Upon arriving at

Highway 67, Walters positioned his vehicle in the median and waited for any southbound

motorcycle to appear, during which time Walters overheard another Missouri State Patrol

radio report stating that a motorcycle was being pursued along southbound Highway 67.

After Walters idled for two minutes, a southbound motorcycle operated by Donald

Hawkins traveled in the left hand lane, closest to the median, emerged from around the




                                             59
No. 34467-3-III
Sluman v. State
Appendix


bend and appeared for the first time in Walters’ line of sight. No other vehicles were in

the vicinity.

       Donald Hawkins testified that at no point during his journey along Highway 67

did he hear police sirens or exceed the posted speed limit, nor had he, prior to coming

upon Walters’ police car, seen activated emergency police lights. As Hawkins traveled in

the left passing lane along southbound Highway 67, he came around the bend and

proceeded toward the Bray Road intersection with Highway 67. Hawkins first became

aware of the police car when the car was thirty yards away. When Hawkins saw the

police car, it sat in the cut-through median between southbound and northbound Highway

67 facing west in the direction of, and perpendicular to, the southbound lanes.

       Very shortly thereafter, Hawkins noticed that the police car activated its

emergency lights and moved. Hawkins thought the vehicle would turn onto the left lane

and travel southbound on Highway 67, so Hawkins changed lanes to the right lane. The

police car, however, moved across southbound Highway 67, into Hawkins’ lane and hit

Hawkins’ motorcycle and Hawkins’ person on the left side. Hawkins, who was wearing

a helmet, landed head-first on the concrete, lost consciousness, and came to a stop in a

ditch over 165 feet away from the point of collision. Walters testified that it was his

intention to stop the motorcycle. Walters also testified that he did not intentionally




                                             60
No. 34467-3-III
Sluman v. State
Appendix


attempt to ram the motorcycle with his police car. The Circuit Court of Appeals reversed

a summary judgment ruling in favor of the officer on the basis of qualified immunity.

       In Adams v. Speers, 473 F.3d at 989 (9th Cir. 2007) an officer observed Alan

Adams run several stop signs so the officer signaled Adams to stop. Adams did not pull

to the side, and at least three more officers entered a chase. The court characterized

Adams’ driving during the pursuit as nonchalant because Adams drove within the speed

limit, stopped for some stop signs, and rolled slowly through others. Officer Paul Speers

learned over the radio of the police chase of Adams and joined the pursuit. As he

associated with the expedition, Speers retrieved as a passenger a county probation officer

who occasionally partnered in apprehending probation violators. Speers parked at a spot

he guessed Adams would pass if he continued with his route. When Adams’ vehicle

reached Speers’ location, Speers, without advising other pursuing law enforcement

officers of his identity or intentions, tried to ram Adams’ vehicle. Speers missed Adams’

car so Speers continued at the head of the chase now aided by a police helicopter. Adams

exited on an off-ramp, turned left over the freeway, and entered the on-ramp to travel in

the opposite direction. Speers successfully rammed Adams with the two cars entangling.

A sheriff’s department manual characterized the intertwining as a “significant hazard.”

Adams continued to drive his car and dragged Speers’ patrol car for some distance before

the cars separated and the chase continued.


                                              61
No. 34467-3-III
Sluman v. State
Appendix


       Paul Speers again butted his patrol car into Alan Adams’ vehicle, which action

sent Adams’ car into a ditch. Despite patrol cars completely surrounding him, Adams

reversed his car toward Speers’ patrol car. Another officer approached Adams’ vehicle,

struck the window with his baton, and reached in the car to pepper spray Adams. Before

the officer sprayed, Speers exited his patrol car, stood in front of Adams’ vehicle, and

without warning fired six shots and killed Adams.

       An investigation by the sheriff’s department found that Paul Speers violated

department regulations. Speers lacked permission for the probation officer to ride as a

passenger. Speers did not request or receive permission to enter the pursuit. He did not

communicate with other officers involved in the chase and did not garner permission to

ram Adams’ vehicle or to discharge his weapon. The appeals court denied Speers

qualified immunity while writing he was an officer “on a mission of his own creation,”

who abandoned his assignment, retrieved a friend for no apparent reason, barged ahead of

officers already engaged in the pursuit, and used force against Adams that created a

hazard for both Adams and Speers. The court noted that Tennessee v. Garner had

decades earlier established a shooting under these circumstances to violate the Fourth

Amendment. No officer reasonably acting could have believed he could employ deadly

force. Because an officer may not shoot an unarmed, nondangerous suspect to prevent

flight, the court denied Paul Speers qualified immunity.


                                            62
No. 34467-3-III
Sluman v. State
Appendix


       We previously outlined the facts in Walker v. Davis, 649 F.3d 502 (6th Cir. 2011).

The court denied qualified immunity to Officer Danny Davis because it had been settled

law for a generation that, under the Fourth Amendment, when a suspect poses no

immediate threat to the officer and no threat to others, the harm resulting from failing to

apprehend him does not justify the use of deadly force to do so. Tennessee v. Garner,

471 U.S. at 11 (1985). Thomas Germany posed no immediate threat to anyone as he rode

his motorcycle across an empty field in the middle of the night in rural Kentucky. The

circuit court did not find relevant the fact that, at the time of Davis’ actions, there were

few, if any, reported cases in which police cruisers intentionally rammed motorcycles. It

was only common sense—and obviously so—that intentionally ramming a motorcycle

with a police cruiser involves the application of potentially deadly force.

       We previously reported the facts in Vaughan v. Cox, 343 F.3d 1323 (11th Cir.

2003). Despite some of these facts being disputed, the court accepted the passenger’s

version of the facts. The immediacy of threat caused by the driver’s flight was a disputed

material fact that defeated summary judgment on the basis of qualified immunity in favor

of the officer. The court ruled that the passenger’s Fourth Amendment right was clearly

established such that an objectively reasonable officer in Deputy Cox’s position would

not have believed he was entitled to use deadly force. The court reasoned that the danger

presented in this case by the driver’s flight was the risk of an accident during the pursuit.


                                              63
                                      No. 34467-3-III

       LAWRENCE-BERREY, C.J. (concurring in part) — I concur in the lead opinion on

all issues except issues 5 and 6. Therefore, the majority reverses the summary judgment

application of the felony bar rule insofar as proximate cause is a question of fact.

       My dissenting colleague claims that the felony bar rule does not allow us to

inquire whether an intervening act could break the chain of causation. I disagree.

       The felony bar rule applies only if the felony “was a proximate cause of the injury

or death.” RCW 4.24.420. Proximate cause is absent if an intervening act has broken the

chain of causation. See, e.g., Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 812-13,

733 P.2d 969 (1987); Washburn v. City of Federal Way, 178 Wn.2d 732, 761, 310 P.3d

1275 (2013). Were we to ignore the concept that an intervening act can break the chain

of causation, we would be ignoring the meaning of proximate cause, and therefore the

statute.



                                                  ________________________________
                                                  Lawrence-Berrey, C.J.
                                      No. 34467-3-III

       KORSMO, J. (dissenting in part)- While I agree that the plaintiffs allegations 1

were sufficient to let the excessive force claim go to trial, I disagree with the majority's

reversal of the felony bar ruling. Mr. Sluman presented nothing other than a self-serving

denial that the trial court correctly concluded was insufficient. I would affirm that ruling.

       As to the excessive force claim, I agree that Mr. Sluman had a clearly recognized

right to be free from the use of excessive force during this arrest for eluding a pursuing

officer. He endangered no one during the pursuit. The mechanism by which force was

applied should not change the analysis. The fact that a "door check" might not have been

the subject to a prior § 1983 2 action is not a basis for immunity merely because it was the

first time such an action was predicated on that particular use of force. The right was




       1
          While we must view the evidence in a light most favorable to the losing party in
an appeal from an order granting summary judgment, it does not mean we need disparage
the other side's evidence or dismiss it because it conflicts with the losing party's view of
the facts. That is particularly true where, as here, the issues on appeal revolve around
legal issues rather than factual questions. The factual disputes between the parties, while
not truly relevant to this appeal, boil down to whether the trooper assaulted the plaintiff
with the door of his patrol car or whether Mr. Sluman struck the bridge while attempting
to negotiate his way around the patrol vehicle as he accelerated after feigning a stop.
        2
          42 U.S.C. § 1983.
No. 34467-3-III
Sluman v. State-Dissent in Part


clearly established, even if the particular method by which it was infringed was novel.

Accordingly, I agree that summary judgment was improperly granted on that issue.

       However, the trial court correctly granted summary judgment on the felony bar

statute and dismissed the state law claims. All of the admissible evidence on this issue

was on the State's side and there was no material question of fact presented.

       There are a few basic principles that should guide this discussion. First among

them are those principles involving responses to a motion for summary judgment. A

party opposing a motion for summary judgment may not rely on speculation or

argumentative assertions that unresolved factual issues remain. Seven Gables Corp. v.

MGMIUA Entm 't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Likewise, a party may not

rely on having its own affidavits accepted at face value. Id. Instead, the nonmoving

party must set forth specific facts that sufficiently rebut the moving parties' contentions

and disclose that a genuine issue as to a material fact exists. Id. Ultimate facts or

conclusions of fact are insufficient; conclusory statements of fact will not suffice.

Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988).

       Also important is the fact that a party may not contradict itself in order to create a

question of material fact. This is a corollary to the principle that one cannot rely on

having affidavits taken at face value. It is recognized in a few different contexts, but

perhaps the most common-and the one relevant here-is where a self-serving affidavit

contradicts prior statements or sworn testimony. E.g., Overton v. Consol. Ins. Co., 145

                                              2
No. 34467-3-III
Sluman v. State-Dissent in Part


Wn.2d 417, 429-30, 38 P.3d 322 (2002) (affidavit denying event due to lack of memory

whether it occurred); McCormick v. Lake Wash. Sch. Dist., 99 Wn. App. 107, 111, 992

P.2d 511 (1999) (affidavit contradicting deposition testimony); Marshall v. AC&S, Inc.,

56 Wn. App. 181, 184-85, 782 P:2d 1107 (1989) (affidavit contradicting hospital and

Department of Labor record). In such circumstances, the later ("sham") affidavit is

insufficient to overcome the earlier evidence.

       Here, the State established its defense. The troopers described the felony flight 3

(aided by the car video that captured the final moments) and Mr. Sluman confirmed that

he was committing a felony by his recorded admission at the scene and by his guilty plea.

The only contradiction offered in response was Mr. Sluman's deposition testimony that

he did not know the officer was chasing him. That is belied by his statement at the time

of the accident and his guilty plea. Under Overton and Marshall, the belated change of


       3  Although the lead opinion questions whether the speed of the motorcycle during
the chase constituted driving in a reckless manner, that fact is well settled in our case law,
just as it was under the former reckless driving standard. E.g., State v. Young, 158 Wn.
App. 707, 723-24, 243 P.3d 172 (2010), review denied, 171 Wn.2d 1013 (2011)
("overwhelming" evidence of driving in reckless manner, including speed of 85 m.p.h. in
a 30 m.p.h. zone); State v. Randhawa, 133 Wn.2d 67, 77-78, 941 P.2d 661 (1997) (proof
of sufficiently excessive speed can permit a rational inference of reckless driving); State
v. Hanna, 123 Wn.2d 704, 713, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994) ("the
presumed fact of reckless driving more likely than not flows from the proved fact of
Hanna's excessive speed."). Our statute is to the same effect. RCW 46.61.465 ("The
unlawful operation of a vehicle in excess of the maximum lawful speeds provided in this
chapter at the point of operation and under the circumstances described shall be prima
facie evidence of the operation of a motor vehicle in a reckless manner by the operator
thereof.").

                                              3
No. 34467-3-111
Sluman v. State-Dissent in Part


view is insufficient. However, the lead opinion dismisses his admission on the basis that

he was injured, in pain, and not under oath when he made it. The lead opinion also

rejects use of his guilty plea due to reading too much into the decision in Clark v. Baines,

150 Wn.2d 905, 84 P.3d 245 (2004). Neither justification has merit.

       As the lead opinion properly noted, RCW 4.24.420 provides that it is "a complete

defense" to a damages action that the injured party was engaged in the commission of a

felony and that the felony was the proximate cause of the injury. This is a legislative

policy determination that a person injured in the course of committing a felony is solely

responsible for his injury. As the trial court correctly recognized, it applies here.

       There should be no question that the injury occurred at the conclusion of the

incident and resulted from his crime. The causation element is thus easily satisfied. 4 The

remaining question is whether Mr. Sluman was committing a felony at the time of the

accident.

       The lead opinion dismisses Mr. Sluman's statement at the scene on the basis that it

was not made under oath. While many previous cases have involved prior statements

made under oath that subsequently were contradicted by a more self-serving version of

the facts, the majority cites no authority requiring that a prior oath is a requirement.


       4 Although the concurrence agrees that Mr. Sluman was committing a felony, that
opinion believes the "door check" was an intervening cause of injury. That approach
appears to write an intentional tort exception into the felony bar rule, something that the
legislature did not do.

                                              4
No. 34467-3-III
Sluman v. State-Dissent in Part


Indeed, the seminal case on this topic appears to be Marshall. There, the defendant's

affidavit contradicted two official records and was deemed unreasonable and, therefore,

insufficient. 56 Wn. App. at 184-85. While Marshall itself invalidates the lead opinion's

position, there are additional reasons for disregarding the deposition testimony.

       A contemporaneous statement typically is considered so reliable that multiple

hearsay exceptions exist to allow consideration of that type of evidence. E.g., ER

803(a)(l)-(3) (present sense impressions, excited utterance, then existing condition). 5 For

purposes of the "sham affidavit" argument, I do not see why the defendant's

contemporaneous nonhearsay statement against his own interest is not considered at least

as truthful as one given under oath at some later time. In either circumstance, it should

defeat a self-serving version of events given years after the fact. If an earlier statement

under oath is sufficient to defeat a later affidavit under the sham affidavit rule, an

uncontested and contemporaneous admission against interest should do the same.

       That is particularly the case where the earlier statement is clearly reliable. The

statement was captured on video. The statement accurately reported that Mr. Sluman had

outstanding warrants. He also followed up on that statement by pleading guilty and

admitting that he had fled from the troopers.




       5
         Of course, Mr. Sluman's statement was admissible as a non-hearsay statement
against his own interest. ER 80l(d)(2).

                                                5
No. 34467-3-III
Sluman v. State-Dissent in Part


       The lead opinion disregards this evidence due to its reading of Clark. That

decision does not really aid resolution of this problem. Recognizing the ambiguous

nature of an Alford plea, the court was very straight-forward in stating its holding: "We

hold an Alford plea cannot be used as the basis for collateral estoppel in a subsequent

civil action." Clark, 150 Wn.2d at 907 (emphasis added). That holding merely prevents

giving the plea binding effect in subsequent litigation; the plea still may be admitted into

evidence as an admission of the defendant. 6 State v. Price, 126 Wn. App. 617, 634-35,

109 P.3d 27 (2005) (citing cases); 5A KARL B. TEGLAND, WASHINGTON PRACTICE:

EVIDENCE LAW AND PRACTICE§ 410.3, at 87 (6th ed. 2016). 7 The judgment itself also is

admissible as an exception to the hearsay rule. Tegland, supra; ER 803(a)(22) (felony

judgment admissible against the former criminal defendant in a subsequent action).

       Under Washington law, an Alford plea is a guilty plea. State v. Hubbard, 106 Wn.

App. 149, 156, 22 P.3d 296 (2001). Accord CrR 4.2(a) (recognizing the existence of only

three types of pleas: "not guilty, not guilty by reason of insanity, and guilty.") Criminal

defendants have a right to plead guilty under our court rules. State v. Martin, 94 Wn.2d

1, 4, 614 P.2d 164 (1980). The right to plead guilty extends to entering an Alford plea.



       6
          A three justice concurrence noted this fact in Clark. 150 Wn.2d at 918 (Ireland,
J ., concurring).
        7
          Even evidence from a criminal case that ended in acquittal can be used in a
subsequent civil case. E.g., In re Det. ofStout, 159 Wn.2d 357, 377-78, 150 P.3d 86
(2007).

                                             6
No. 34467-3-111
Sluman v. State-Dissent in Part


Hubbard, 106 Wn. App. at 155-56. Felony judgments are admissible evidence. ER

803(a)(22). Mr. Sluman's plea was properly admitted into evidence.

       While not being conclusive due to the holding in Clark, the plea and the criminal

judgment both are admissible against Mr. Sluman in this civil action. 8 They support Mr.

Sluman's initial statement at the time of the accident that he was fleeing police due to the

warrants for his arrest. Under the Marshall (or "sham affidavit") rule, Mr. Sluman's

deposition is insufficient to overcome his earlier statements and admissions that he was

running from the police.

       The trial court correctly determined that the evidence established the felony bar

because there was no reasonable material evidence in opposition. Summary judgment

was properly granted on the state law claims. Therefore, I respectfully dissent from the

majority's contrary holding.




       8
         The lead opinion misperceives this point. Clark held at an Alford plea will not
be given preclusive effect. 150 Wn.2d at 917 (emphasis added). It did not forbid
evidentiary use of an Alford plea, and that is all that this opinion does-considers the
Alford plea and the ensuing judgment along with Mr. Sluman's original statement as part
of the evidence that the State used to establish its affirmative defense. It is the sham
affidavit rule that, under these facts, renders Mr. Sluman's belated assertions from being
considered weighty enough to raise a triable question of fact about his crime.
Accordingly, the trial court correctly looked at the evidence before it and saw that the
State had established its defense because it had sufficient evidence and Mr. Sluman did
not have contrary evidence sufficient to raise a jury question.

                                             7
