¶14 (dissenting) — The unusual facts presented make this the rare case in which an individual subjected to an unlawful search by law enforcement officers is entitled to pursue a claim for common law invasion of privacy. I therefore respectfully dissent.
¶15 I say “rare” because as the majority opinion explains, invasion of privacy, including the cause of action for intrusion upon seclusion, is an intentional tort and therefore not one that many officers will ever commit or even be accused of committing. “The comments and illustrations to [Restatement (Second) of Torts] Section 652B [(1977)] disclose that an ‘intrusion upon seclusion’ claim usually involves a defendant who does not believe that he has either the necessary personal permission or legal authority to do the intrusive act.” O’Donnell v. United States, 891 F.2d 1079, 1083 (3d Cir. 1989). In most cases in which law enforcement officers are ultimately established to have entered a plaintiff’s home without permission or legal authority, it is reasonable to expect that evidence will suggest only negligent, not intentional, conduct. And as pointed out in our prior decision in this case, damages are limited, since a law enforcement officer’s search will not be the legal cause of injury or damage occurring after any fully informed decision to prosecute. Youker v. Douglas County, 162 Wn. App. 448, 467, 258 P.3d 60, review denied, 173 Wn.2d 1002 (2011).
¶16 Here, however, the sheriff’s deputies were approached by JoAnn Youker, who informed them that Jason *799Youker — whom she identified as her ex-husband, not her current husband — had a rifle in his home that she offered to show them: one red flag. She told them that her ex-husband was a convicted felon and she knew that his possession of a rifle was forbidden: another red flag. Before traveling to the home with Ms. Youker, the sheriff’s deputies learned that Mr. Youker had a no-contact order in effect against Ms. Youker: a third red flag. They also learned before traveling to the home with Ms. Youker that she had an outstanding arrest warrant for failing to appear or comply — a fourth red flag — although they did not determine before traveling to Mr. Youker’s home to conduct the search, as they determined later, that the arrest warrant was for violating Mr. Youker’s no-contact order.
¶17 When facts are presented that raise an issue as to a person’s state of mind, summary judgment is seldom available. 4 Karl B. Tegland, Washington Practice: Rules Practice CR 56 author’s cmt. 21, at 417 (6th ed. 2013) (citing Haubry v. Snow, 106 Wn. App. 666, 31 P.3d 1186 (2001); Pearson v. Gray, 90 Wn. App. 911, 954 P.2d 343 (1998); Sedwick v. Gwinn, 73 Wn. App. 879, 873 P.2d 528 (1994)). A number of courts have recognized that a warrantless and otherwise unauthorized entry into or search of a home by law enforcement can be actionable as intrusion upon seclusion if there is evidence from which to infer that the. officers doubted their authority. See, e.g., Mauri v. Smith, 324 Or. 476, 929 P.2d 307, 311-12 (1996) (reversing directed verdict for defendant officers on plaintiffs’ intrusion on seclusion claim); Monroe v. Darr, 221 Kan. 281, 559 P.2d 322, 327 (1977); Muhammad v. United States, 884 F. Supp. 2d 306, 317 (E.D. Pa. 2012) (noting that “ [according to the illustrations in the Restatement, a warrantless search of a home qualifies as a physical intrusion into a place where the plaintiff has secluded himself” (citing Restatement § 652B)); Walker v. Jackson, 952 F. Supp. 2d 343, 353 (D. Mass. 2013) (plaintiffs’ stated claim under Massachusetts’s statutory right of privacy, which includes “ ‘unreasonable intrusion *800upon a person’s right to seclusion,’ ” where police department traced the call reporting a crime in progress to an individual they knew had made prior false reports (quoting Amato v. Dist. Attorney, 80 Mass. App. Ct. 230, 952 N.E.2d 400 (2011)); Garay v. Liriano, 943 F. Supp. 2d 1, 25 (D.D.C. 2013) (denying summary judgment dismissal of plaintiffs’ invasion of privacy claim for warrantless entry into their home). Here, while a jury may well find in favor of the defending deputies, Mr. Youker has presented enough evidence to entitle him to argue to a jury that the deputies did not believe they had the necessary permission to conduct the search but decided to go ahead anyway.
¶18 As to damages, Douglas County showed that most of the damages originally alleged by Mr. Youker were proximately caused by the prosecutor’s charging decision, not the deputies’ search. But Mr. Youker responded with his own declaration, in which he testified that learning of the search had caused him humiliation, a form of emotional distress. Damages for privacy invasion include “ ‘the harm to [the plaintiff’s] interest in privacy resulting from the invasion’ ” and “ ‘[the plaintiff’s] mental distress proved to have been suffered if it is of a kind that normally results from such an invasion.’ ” Reid v. Pierce County, 136 Wn.2d 195, 205 n.4, 961 P.2d 333 (1998) (quoting Restatement § 652H). Though these damages may be nominal, Mr. Youker may prove them by his testimony alone. See 16A David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 21:11, at 218 (4th ed. 2006); Restatement § 652H cmt. c.
¶19 Construing all of the evidence and reasonable inferences in the light most favorable to Mr. Youker, a genuine issue of material fact exists on the issues of intent and damages. He should have been permitted to proceed to trial.
Review denied at 180 Wn.2d 1011 (2014).