Jason Schmidt v. City of Seattle (Spd)

FILED
NOT FOR PUBLICATION DEC 04 2009

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JASON SCHMIDT, No. 08-36016

Plaintiff - Appellant, D.C. No. 2:08-cv-00105-TSZ

v.
MEMORANDUM *
CITY OF SEATTLE; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding

Argued and Submitted November 6, 2009
Seattle, Washington

Before: ALARCÓN, KLEINFELD and CLIFTON, Circuit Judges.

In this 42 U.S.C. § 1983 civil rights action, Jason Schmidt appeals from the

grant of summary judgment in favor of the City of Seattle and Chief Gil

Kerlikowske, Officer Richard Zurcher and Lieutenant Donnie Lowe of the Seattle

Police Department who were sued in their individual and official capacities. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, vacate in part,

and remand for further proceedings.

I

Schmidt contends that Officer Zurcher and Lieutenant Lowe violated his

federal constitutional right to participate in a street parade that had been authorized

by the City of Seattle. See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515

(1939) (Citizens of the United States have right to assemble in public areas to

discuss views on public questions as part of their “privileges, immunities, rights

and liberties”). The district court concluded that Officer Zurcher and Lieutenant

Lowe were entitled to qualified immunity based on the declarations they filed in

support of their motion for summary judgment. In its order granting summary

judgment, the district court stated that

Officer Zurcher observed plaintiff meandering down one
of the west lanes of Fourth Avenue. Westlake Park is on
the east side of Fourth Avenue, and Plaintiff did not
appear to be heading in the direction of the A.N.S.W.E.R.
rally. Plaintiff was not near the participants of the march,
and he did not have any obvious impairment that might
have inhibited his ability to keep up with the march.

Schmidt filed a declaration in response to the defendants’ motion for

summary judgment in which he alleged

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 I was clearly and obviously part of the march. I had no
intention of stopping or blocking traffic, and never did
so. I was at the tail end of the march as we approached
Westlake Plaza, where a rally and some speakers were
planned. . . . There were other marchers also in this tail
end, also on the street, in my immediate vicinity.

The accounts submitted by Schmidt and the officers of what led to

Schmidt’s arrest are clearly in conflict. Summary judgment cannot be granted

where a genuine issue of material fact is in dispute. Fed R. Civ. P. 56(c). The

district court violated Rule 56(c) by failing to consider the facts in the light most

favorable to Schmidt as the non-moving party. See United States v. Diebold, Inc.,

369 U.S. 654, 655 (1962) (“On summary judgment the inferences to be drawn

from the underlying facts contained in such materials must be viewed in the light

most favorable to the party opposing the motion.”). It follows, therefore, that we

must vacate the order holding that Officer Zurcher and Lieutenant Lowe were

entitled to summary judgment.

II

The district court did not err in granting summary judgment under

Rule 56(c) in favor of the City of Seattle and Chief Kerlikowske because Schmidt

failed to demonstrate that the City and Chief Kerlikowske engaged in a pattern or

practice of arresting march participants, or that they failed adequately to train,

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supervise, or discipline their officers. See Blankenhorn v. City of Orange, 485 F.3d

463, 484 (9th Cir. 2007) (To show a failure to train police officers, a plaintiff must

present evidence that “(1) he was deprived of a constitutional right, (2) the City

had a training policy that amounts to deliberate indifference to the constitutional

rights of the persons with whom its police officers are likely to come into contact;

and (3) his constitutional injury would have been avoided had the City properly

trained those officers.”) (internal quotation marks omitted). Schmidt has not

presented any evidence of a pattern or policy amounting to deliberate indifference,

nor has he presented evidence that the alleged constitutional violation was a result

of a failure to train the officers.

Supervisors are only personally liable for damages under 42 U.S.C. § 1983

when the evidence shows that they participated in, directed, or knew of the alleged

constitutional violations, and failed to intervene to prevent them. Taylor v. List,

880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability under section 1983 arises only

upon a showing of personal participation by the defendant.”). There is no evidence

in the record that Chief Kerlikowske had any knowledge nor any personal

participation in any of the alleged constitutional violations.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Each party shall pay its own costs.

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