Petition for Writ of Certiorari — Lonnie Tofsrud, Petitioner v. City of Spokane, Washington, et al.

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LONNIE TOFSRUD,

an individual,

Plaintiff-Appellant,

v.

No. 21-35450

D.C. No.

2:19-cv-00371-RMP

MEMORANDUM*

CITY OF SPOKANE,

a municipal corporation in

the State of Washington; et al.,

(Filed May 9, 2022)

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Washington

Rosanna Malouf Peterson, District Judge, Presiding

Argued and Submitted April 15, 2022

Seattle, Washington

Before: HAWKINS and FORREST, Circuit Judges, and

RESTANI,** Judge.

Lonnie Tofsrud, a detective with the Spokane Police Department, appeals the district court’s adverse

grant of summary judgment on his claims for First

Amendment retaliation and state law defamation. We

* This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jane A. Restani, Judge for the United

States Court of International Trade, sitting by designation.

App. 2

have jurisdiction under 28 U.S.C. § 1291. Reviewing

the summary judgment grant de novo, Barone v. City

of Springfield, 902 F.3d 1091, 1097 (9th Cir. 2018), we

affirm.

1. Summary judgment was proper on Tofsrud’s

First Amendment retaliation claim because he failed

to show that he spoke as a private citizen when he approached the prosecuting attorney about the arrest of

his confidential informant (“CI”). See Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1259 (9th Cir.

2016). The “practical” inquiry into Tofsrud’s duties and

the circumstances of his speech reveals that he spoke

as a public employee. See Garcetti v. Ceballos, 547 U.S.

410, 424 (2006). His role as a detective involved collaboration with the prosecution, and the conversation at

issue was one of a series between Tofsrud and the prosecutor that related to the CI’s arrest and its impact on

pending cases. By virtue of their working relationship,

Tofsrud was able to enter the prosecutor’s office casually and without advance notice. See Barone, 902 F.3d

at 1100–01 (concluding that a police officer spoke as a

public employee in part because she had access to a

community event “by virtue of her position”). Tofsrud

worked with CIs in the course of his role, and he had

worked with the individual in question for two years.

Further, Tofsrud asked for and received his supervisor’s endorsement before approaching the prosecutor.

Cf. Dahlia v. Rodriguez, 735 F.3d 1060, 1075 (9th Cir.

2013) (en banc) (explaining that speech “in direct

contravention to” a supervisor’s orders suggests that

the employee spoke as a private citizen). Finally, it is

App. 3

undisputed that Tofsrud’s speech to the prosecutor

touched only on his CI’s arrest rather than any broader

concerns related to the Patrol Anti-Crime Team. Thus,

neither Tofsrud’s privately held systemic concerns nor

any failure to follow the chain of command can “transform” his speech into that of a private citizen versus a

public employee. See Barone, 902 F.3d at 1100.

2. Summary judgment was properly granted on

Tofsrud’s defamation claim under Washington law.

Tofsrud acknowledges that the police chief ’s communication to the prosecutor’s office was privileged, and he

has failed to make out a prima facie case of abuse of

privilege. See Moe v. Wise, 989 P.2d 1148, 1157 (Wash.

Ct. App. 1999). The minor shift in language in the letter of reprimand is insufficient to meet Tofsrud’s burden to “show by clear and convincing evidence [the

police chief ’s] knowledge of falsity or his or her reckless disregard as to the falsity of a statement.” See

Kauzlarich v. Yarbrough, 20 P.3d 946, 952 (Wash. Ct.

App. 2001).

AFFIRMED.

App. 4

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

LONNIE TOFSRUD,

an individual,

Plaintiff,

v.

NO. 2:19-CV-371-RMP

ORDER GRANTING IN

PART DEFENDANTS’

MOTION FOR

SUMMARY JUDGMENT

SPOKANE POLICE

(Filed Jun. 2, 2021)

DEPARTMENT, a political

division of City of Spokane;

CRAIG MEIDL, in his

personal and official capacity;

JUSTIN LUNDGREN, in his

personal and official capacity;

and DAVE STABEN, in his

personal and official capacity,

Defendants-Appellees.

BEFORE THE COURT is Defendants’ Motion for

Summary Judgment, ECF No. 32. The Court heard

oral argument via video conferencing. Plaintiff Lonnie

Tofsrud was represented by Jeffry K. Finer and Emerson Lenon. Thomas W. McLane appeared on behalf of

Defendants Spokane Police Department, Craig Meidl,

Justin Lundgren, and Dave Staben. The Court has considered the motion, the record, heard oral argument,

and is fully informed.

App. 5

STATEMENT OF FACTS

Plaintiff Lonnie Tofsrud is employed by the Spokane Police Department (“SPD”) as a detective and

was assigned to the Targeted Crimes Unit (“TCU”).

ECF No. 14 at 4. The TCU has had a longstanding

working relationship with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). ECF Nos. 14

at 4, 15 at 4. In 2016, Tofsrud and ATF Special Agent

Adam Julius began utilizing a specific confidential informant to facilitate criminal investigations related to

the trafficking of firearms and narcotics. ECF Nos. 14

at 5–6, 15 at 4.

On November 6, 2017, Spokane Police Department

officers Corporal McCullough and Sergeant Vigessa arrested the confidential informant utilized by Tofsrud

and Special Agent Julius. ECF Nos. 14 at 6, 15 at 5.

Corporal McCullough is assigned to the Patrol AntiCrime Team (“PACT”). ECF No. 34-2 at 3. Sergeant

Vigessa contacted Tofsrud and made him aware of the

arrest. ECF Nos. 14 at 6, 15 at 5. Tofsrud reviewed the

written arrest report and accompanying documents

and noticed alleged discrepancies between the official

report and the notes Corporal McCullough had entered

in the Computer Aided Dispatch (“CAD”) unit history.

ECF No. 14 at 6–7. On December 27, 2017, Tofsrud

called Corporal McCullough to discuss the issue. ECF

Nos. 14 at 7, 15 at 5.

On December 28, 2017, Tofsrud contacted Spokane

County Deputy Prosecutor Eugene Cruz and discussed

the discrepancies in Corporal McCullough’s report.

App. 6

ECF No. 34-1 at 4. The Prosecutor’s Office dismissed

the case against the confidential informant. ECF Nos.

14 at 7, 15 at 5, 41–1. Chief Criminal Prosecutor, Jack

Driscoll, contacted Lieutenant Stevens regarding possible misconduct by Corporal McCullough. ECF No. 15

at 5, 34–5 at 3.

Lieutenant Stevens contacted Lieutenant Staben,

who was Corporal McCullough’s and Tofsrud’s superior officer. ECF Nos. 14 at 8, 15 at 5. Lieutenant

Staben began a shift level internal affairs (“IA”) investigation and added Tofsrud to the IA investigation on

January 15, 2018. ECF Nos. 14 at 8–9, 15 at 6.

On January 16, 2018, Lieutenant Staben interviewed Detective James Erickson, who worked with

Tofsrud in the TCU. ECF Nos. 14 at 9, 15 at 6. During

the interview, Detective Erickson stated that Tofsrud

had used the word “lie” or “lied” when reporting the

discrepancies in Corporal McCullough’s report to Deputy Prosecutor Cruz. ECF Nos. 14 at 9, 33 at 2. Tofsrud

alleges that the statement elicited from Detective Erickson was the product of “deceptive interrogation

techniques.” ECF No. 14 at 9.

The investigation was reassigned to Sergeant

Carr and Sergeant Waters who handled the bulk of the

investigation. ECF Nos. 14 at 10, 15 at 6. On March 22,

2018, Sergeant Carr interviewed Tofsrud, and Tofsrud

was read his administrative rights. ECF Nos. 14 at 11,

15 at 7.

Tofsrud contacted the City’s Human Resources

(“HR”) Department with respect to the handling of the

App. 7

IA investigation by Lieutenant Staben. ECF Nos. 14 at

10, 15 at 7. On May 4, 2018, Tofsrud filed a discrimination/harassment complaint with HR, outlining behavior by Lieutenant Staben. ECF No. 14 at 14, 15 at 9.

Tofsrud was advised that the HR complaint would not

be investigated until after the IA investigation had

been completed. ECF Nos. 14 at 14, 15 at 9.

On May 25, 2018, an administrative review panel

concluded that Tofsrud had violated several policies including SPD Policy 340.3.5(f ): “knowingly making

false, misleading, or malicious statements that are reasonably calculated to harm or destroy the reputation,

authority or official standing of the Department or

members thereof.” ECF No. 34-2 at 22, 24. The administrative review panel found that “Tofsrud was [not]

consistent in his accusations against Cpl. McCullough

during the entire investigation” and “levied many accusations not only against McCullough but also Sgt.

Vigessa and Officer Stephanie Kennedy for various

levels of untruthfulness and called into question their

integrity.” ECF No. 34-2 at 22.

On June 22, 2018, Chief Meidl authored a Letter

of Reprimand outlining the policy violations found to

have been committed by Tofsrud. ECF No. 34-4. ECF

No. 34-4 (“While I did not find that you knowingly

made these false allegations, I find that your actions

and statements were reckless.”).

On June 24, 2018, Tofsrud submitted a letter of rebuttal addressing the IA investigation, findings of the

App. 8

administrative review panel, and Letter of Reprimand.

ECF Nos. 14 at 12, 15 at 8.

On September 21, 2018, Spokane Police Guild President John Griffin submitted a letter to Chief Meidl

asking him to reconsider the Letter of Reprimand that

was issued to Tofsrud. ECF No. 54-9. President Griffin

also met with members of the administrative review

panel. ECF Nos. 14 at 12, 15 at 8. Chief Meidl declined

to reconsider the Letter. ECF No. 54-10.

On August 30, 2018, Plaintiff was served with a

potential impeachment disclosure (“PID”) letter by

Chief Criminal Deputy Prosecutor Mark Cipolla. ECF

Nos. 14 at 13, 15 at 10. Corporal McCullough also was

issued a PID letter. ECF Nos. 14 at 16, 15 at 10. The

Prosecutor’s Office confirmed its decision to maintain

Tofsrud on the Potential Impeachment Disclosure List

(“PIDL”), colloquially known as the “Brady list,” in

January of 2019. ECF No. 54-2.

On November 20, 2018, a report was submitted regarding Tofsrud’s HR complaint. ECF Nos. 14 at 15, 15

at 9. Tofsrud claims that the report lacked crucial information and the HR investigation was inadequate.

ECF No. 14 at 15–16.

After returning from medical leave, Tofsrud was

transferred to the North Precinct where his duties

would include screening cases, distributing stickers for

the scat program, and conducting background investigations for [prospective] senior volunteers at the precinct. ECF Nos. 14 at 17, 15 at 10. Tofsrud was assigned

to an office in the reception area of the precinct where

App. 9

Department of Corrections offenders would report to

their probation officers. ECF Nos. 14 at 17, 15 at 10.

The office was previously occupied by a Brady officer.

ECF Nos. 14 at 17, 15 at 10. After a discussion with his

superiors, it was decided that Tofsrud would share an

office with his former partner. ECF Nos. 14 at 18, 15 at

10. On August 14, 2019, Tofsrud was directed to report

to the Academy for training. ECF Nos. 14 at 18, 15 at

11. Tofsrud contends the training had no relative connection to Plaintiff ’s new assignment. ECF No. 14 at

18. Tofsrud further contends that he was denied other

training opportunities, including the opportunity to attend a leadership conference. ECF No. 34-1 at 5–6, 10–

11.

Tofsrud was purportedly being “actively recruited”

to join the Major Crimes Unit and alleges that he no

longer was considered for any of the several open positions after the IA investigation. ECF No. 14 at 5. However, Tofsrud had not formally applied for a position in

the Major Crimes Unit. ECF No. 34-1 at 13, 15.

Tofsrud initiated the present matter seeking monetary damages and injunctive relief under 42 USC

§ 1983 for unlawful retaliation under the First Amendment, violations of due process and equal protection

under the Fourteenth Amendment, and state law

claims of defamation and outrage. See ECF No. 14.

Defendants Spokane Police Department, Craig

Meidl, Justin Lundgren, and Dave Staben (collectively

“Defendants”) seek dismissal of all claims. See ECF

No. 32.

App. 10

LEGAL STANDARD

Summary judgment is appropriate if the evidence,

viewed in the light most favorable to the nonmoving

party, shows “that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the

suit will preclude the entry of summary judgment, and

the disputed evidence must be “such that a reasonable

jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

“[A] party seeking summary judgment always

bears the initial responsibility of informing the district

court of the basis for its motion and identifying those

portions of [the record] which it believes demonstrate

the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Parties

opposing summary judgment must cite to “particular

parts of materials in the record” establishing a genuine

dispute. Fed. R. Civ. P. 56(c)(1). “[T]here is no issue for

trial unless there is sufficient evidence favoring the

non-moving party for a jury to return a verdict for that

party. If the evidence is merely colorable or if not significantly probative, summary judgment may be

granted.” Anderson, 477 U.S. at 249–50 (internal citations omitted).

App. 11

DISCUSSION

I.

42 U.S.C. § 1983—First Amendment

Plaintiff claims that his referral of Corporal McCullough’s potential misconduct was protected speech

under the First Amendment, and that speech was the

sole motivating factor for subsequent retaliatory actions. ECF No. 14 at 22–23. Defendants argue that

they are entitled to summary judgment on Tofsrud’s

retaliation claim under the First Amendment because

(1) Tofsrud did not speak as a private citizen, but rather, as a public employee; and (2) Defendants had an

adequate justification for treating the employee differently from other members of the general public. ECF

No. 32 at 8–10.

“The First Amendment does not protect speech

by public employees that is made pursuant to their

employment responsibilities—no matter how much a

matter of public concern it might be.” Coomes v. Edmonds School Dist. No. 15, 816 F.3d 1255, 1260 (9th

Cir. 2016) (citing Garcetti v. Ceballos, 547 U.S. 410,

423–24 (2006)). In evaluating First Amendment retaliation claims, courts employ the following five-factor

inquiry. Coomes, 816 F.3d at 1259. “First, the plaintiff

bears the burden of proof at trial of showing (1) that

she spoke on a matter of public concern; (2) that she

spoke as a private citizen rather than a public employee; and (3) that the relevant speech was ‘a substantial or motivating factor in the adverse employment

action.’ ” Id. (quoting Eng v. Cooley, 552 F.3d 1062,

1070–71 (9th Cir. 2009)). “If the plaintiff establishes

App. 12

such a prima facie case, the burden of proof shifts to

the government to show that (4) ‘the state had an adequate justification for treating the employee differently from other members of the general public’; or (5)

‘the state would have taken the adverse employment

action even absent the protected speech.’ ” Coomes, 816

F.3d at 1259 (quoting Eng, 553 F.3d at 1070–72).

“For the purposes of this argument, the Defendants admit that Plaintiff spoke on a matter of public

concern. However, Defendants do not concede that

Plaintiff spoke as a private citizen.” ECF No. 53 at 6.

“[W]hen public employees make statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes,

and the Constitution does not insulate their communications from employer discipline.” See, e.g., Garcetti,

547 U.S. at 422 (holding that district attorney’s memo

addressing the proper disposition of a pending criminal case was not protected speech because memo was

written pursuant to attorney’s official duties as calendar deputy). Speech which “owes its existence to an

employee’s professional responsibilities” is not protected by the First Amendment. Id. at 421.

“[W]hether the plaintiff spoke as a public employee or a private citizen [ ] is a mixed question of fact

and law.” Posey v. Lake Pend Oreille Sch. Dist. No. 84,

546 F.3d 1121, 1129 (9th Cir. 2008). The proper inquiry

to determine the scope of an employee’s professional

duties is a practical one. Garcetti, 547 U.S. at 424.

App. 13

“[T]he scope and content of a plaintiff ’s job responsibilities is a question of fact.” Id. at 1130. The Court

must, as a matter of law, decide the “ ‘ultimate constitutional significance’ of those facts.” Johnson v. Poway

Unified Sch. Dist., 658 F.3d 954, 966 (9th Cir. 2011)

(quoting Eng, 552 F.3d at 1071). “[A]nalyzing whether

Garcetti applies involves the consideration of factual

circumstances surrounding the speech at issue, [but]

the question of whether [plaintiff ’s] speech is entitled

to protection is a legal conclusion properly decided at

summary judgment.” Charles v. Grief, 522 F.3d 508,

513 n.17 (5th Cir. 2008) (citation omitted).

“In evaluating whether a plaintiff spoke as a private citizen, [the court] must therefore assume the

truth of the facts as alleged by the plaintiff with respect to employment responsibilities.” Eng, 552 F.3d at

1071. With respect to Tofsrud’s position as an employee

with SPD, Tofsrud testified that although he was not a

commander, he held an “informal leadership role . . .

within the Targeted Crimes Unit.” ECF No. 34-1 at 6.

According to Tofsrud, as part of his normal course of

practice and consistent with his training and assignment, he “review[ed] arrest reports and investigation

outlines prepared by other units,” such as PACT. ECF

No. 42 at 4; see also ECF No. 54-3 (City of Spokane job

description for Detective position). He also “worked

closely with confidential informants to investigate and

prosecute major criminal violations at a high level.”

ECF No. 40 at 2 (citing ECF No. 42 at 3). Accordingly,

for purposes of resolving this motion, the Court assumes as true that Tofsrud held an informal leadership

App. 14

role within the TCU, and his official duties included reviewing arrest reports and investigations, even those

prepared by other units, as well as working closely

with confidential informants.

The Ninth Circuit has articulated the following

“guiding principles” in determining the scope of a

plaintiff’s job duties for the purposes of the First

Amendment: (1) whether or not the employee confined

his communications to his chain of command; (2) the

subject-matter of the communication; and (3) whether

the employee spoke in direct contravention to his supervisor’s orders. Dahlia v. Rodriguez, 735 F.3d 1060,

1074–76 (9th Cir. 2013). “These principles serve as a

necessary guide to analyzing the fact-intensive inquiry

mandated by Garcetti.” Id. at 1076.

“[P]articularly in a highly hierarchical employment setting such as law enforcement, whether or not

the employee confined his communications to his chain

of command is a relevant, if not necessarily dispositive,

factor in determining whether he spoke pursuant to

his official duties.” Dahlia, 735 F.3d at 1074. “When a

public employee communicates with individuals or entities outside of his chain of command, it is unlikely

that he is speaking pursuant to his duties.” Id.; see

Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir. 2006) (holding that correctional officer’s communications with a

state senator and the inspector general were protected

speech, but internal reports were not constitutionally

protected).

App. 15

A basis for the Letter of Reprimand issued to

Tofsrud was that “instead of filing a formal complaint

through [his] chain of command or directly with Internal Affairs, [Tofsrud] chose to make [his] allegation

directly to a prosecuting attorney,” thereby he “inappropriately circumvented [his] chain of command.”

ECF No. 34-4 at 3. The fact that Tofsrud did not confine

his communications to his chain of command “is a relevant factor in determining whether he spoke pursuant to his official duties.” Dahlia, 735 F.3d at 1074.

Here, however, it is “not necessarily dispositive.” Id.

In making a practical, fact-specific inquiry, the

Court considers the relationship between the SPD and

Spokane County Prosecuting Attorney’s Office as separate, but coexisting entities. See, e.g., ECF No. 44 at 3

(“As part of my assignment I have testified in state and

federal courts here in Eastern Washington on behalf of

the prosecution.”). Tofsrud did not communicate with

a state senator, the inspector general, or the public

through the press. See Freitag, 468 F.3d at 545–46;

see also Alaska v. EEOC, 564 F.3d 1062, 1071 (9th Cir.

2009). Rather, his communications were with Deputy

Prosecutor Cruz. Although Cruz was “outside the

workplace” in the sense that he is not employed by

SPD, he was intimately related to the matter by virtue

of being a prosecutor working on the case involving

Corporal McCullough’s arrest of the confidential informant. ECF No. 34-3 at 4 (“Eugene Cruz issued the

first of many different legal ‘opinions’ on this particular arrest.”); see also ECF No. 41-1 at 5 (memo from

App. 16

Deputy Prosecutor Cruz opining that the case involving the CI should be dismissed).

The subject matter of the communication is also

“highly relevant to the ultimate determination whether

the speech is protected by the First Amendment.”

Dahlia, 735 F.3d at 1074–75. Whereas a routine report

pursuant to normal departmental procedure about a

particular incident or occurrence is typically within an

employee’s duties, “broad concerns about corruption or

systemic abuse” are less likely to be reasonably classified as being within the job duties of an average public

employee. Id.

Here, the subject matter of the communication

was Corporal McCullough’s stop and arrest of a confidential informant. Of particular significance is the fact

that the individual stopped and arrested by Corporal

McCullough and Sergeant Vigessa was a confidential

informant utilized by Tofsrud. ECF Nos. 14 at 6, 15

at 5. The communication focused on a particular case,

as opposed to “broad concerns” about the PAC Team.

Dahlia, 735 F.3d at 1075. Such concerns seemed to

have arisen only after Tofsrud’s meeting with Deputy

Prosecutor Cruz. ECF No. 42 at 10 (Tofsrud indicating

that after meeting with DPA Cruz, he reflected on similar complaints regarding PACT investigations). Although Tofsrud states that he was “aware that past

reports of misconduct had not received attention,” ECF

No. 42 at 11, Tofsrud’s communication with Deputy

Prosecutor Cruz, by his own recollection, was limited

to the case involving Corporal McCullough and the

confidential informant. ECF No. 34-1 at 4 (Tofsrud

App. 17

testifying that he “met with Mr. Cruz one time to discuss the discrepancies in the report.”); see also 34-2 at

15 (Tofsrud responding that he “didn’t discuss anything in particular with [DPA Cruz]” regarding PACT).

Finally, where a public employee speaks in direct

contravention to his supervisor’s orders, that speech

may fall outside the speaker’s professional duties.

Dahlia, 735 F.3d at 1075. Tofsrud had a conversation

with Sergeant Preuninger prior to speaking with Deputy Prosecutor Cruz. ECF No. 34-2 at 18. According to

Tofsrud, “Sergeant Preuninger endorsed my intention

to meet with prosecutor Cruz, saying ‘go talk to him.’ ”

ECF No. 42 at 8 (citing ECF No. 41-1 at 17). However,

the “Internal Affairs investigation was inconclusive

concerning the exact content or level of detail [Tofsrud]

provided to Sgt. Preuninger regarding this matter.”

ECF No. 34-4 at 2.

Although “external communications are ordinarily not made as an employee, but as a citizen,” given

the factual circumstances underlying the speech at issue, the Court finds that Tofsrud was speaking as an

SPD detective i.e. a “public employee.” Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (citing Freitag,

468 F.3d 528); see also Dahlia, 735 F.3d at 1089

(O’Scannlain & Kozinski, JJ., concurring) (“[T]he police have a unique role in society that makes it inappropriate to rely on case law involving other types of

public employment to decide that officers’ speech will

be protected when delivered ‘to persons outside the

work place,’ i.e., outside their own police department.”).

App. 18

As set forth by Tofsrud himself in his claim for

damages against Spokane County, “Tofsrud’s concern

was not to implicate McCullough but to ensure prosecutions based on good probable cause and the attempt

to salvage his cases which featured the arrestee as a

[confidential informant].” ECF No. 54-2 at 5. Any “attempt to salvage his cases which featured the arrestee

as a CI,” id., was necessarily undertaken in Tofsrud’s

role as a public employee, as opposed to as a private

citizen.

Although Tofsrud’s job duties may not include disclosing concerns to the Prosecutor’s Office, Tofsrud’s

job duties, including working with this specific confidential informant, compelled the disclosure at issue. In

other words, his speech “owe[d] its existence” to official

responsibilities. See Garcetti, 547 U.S. at 421. Accordingly, Tofsrud cannot demonstrate that he spoke to

Deputy Prosecutor Cruz as a private citizen. In speaking as a public employee, Tofsrud’s speech was not protected. Id. at 421–22 (“Restricting speech that owes its

existence to a public employee’s professional responsibilities does not infringe any liberties the employee

might have enjoyed as a private citizen.”). Accordingly,

Defendants are entitled to summary judgment on

Tofsrud’s First Amendment retaliation claim.

II.

42 U.S.C. § 1983—Fourteenth Amendment

A. Substantive & Procedural Due Process

Tofsrud asserts both procedural and substantive

due process claims against Defendants arising out of

App. 19

the Brady listing and subsequent change in job duties,

lost overtime, and training opportunities. ECF No. 14

at 18–21. Tofsrud further claims that Defendants

“failed to provide adequate notice and opportunity to

be heard regarding his [discipline] and his Brady listing.” Id. Additionally, Tofsrud contends that the “investigation against [him] was so flawed that it deprived

him of due process.” Id.

“A threshold requirement to a substantive or procedural due process claim is the plaintiff ’s showing of

a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v. City of Phoenix,

24 F.3d 56, 62 (9th Cir. 1994) (citing Bd. of Regents v.

Roth, 408 U.S. 564, 569 (1972)). Since both substantive

and procedural due process claims require the deprivation of a constitutionally protected property or liberty interest, the Court assesses first whether Tofsrud

adequately has alleged such an interest.

1. Property Interest

Tofsrud claims that he has “property interest in

his job” and Defendants deprived him of his constitutionally protected interests by “effectively end[ing] his

employability as a police officer.” ECF No. 14 at 19.

Tofsrud further claims that the Brady listing “effectively blacklisted Plaintiff.” Id. Defendants counter

that Plaintiff ’s substantive due process claim is subject to dismissal on summary judgment because the

Spokane County Prosecuting Attorney’s Office, not Defendants, issue Brady letters, and Tofsrud’s inclusion

App. 20

on the Brady list does not foreclose him access to his

chosen profession. ECF No. 32 at 10–12.

“The substantive component of the Due Process

Clause forbids the government from depriving a person of life, liberty, or property in such a way that . . .

interferes with rights implicit in the concept of ordered

liberty.” Engquist v. Oregon Dep’t of Agric., 478 F.3d

985, 996 (9th Cir. 2007). “[T]here is substantive due

process protection against government employer actions that foreclose access to a particular profession to

the same degree as government regulation.” Id. at 998

(dismissing substantive due process claim where there

was no evidence that the defendants caused the plaintiff ’s job search difficulties).

However, substantive due process claims in the

public employment context are limited to “extreme

cases, such as a ‘government blacklist,’ which when circulated or otherwise publicized to prospective employers effectively excludes the blacklisted individual from

his occupation, much as if the government had yanked

the license of an individual in an occupation that requires licensure.” Id. at 997–98 (citing Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997)). “Stated

differently, one does not have a constitutional right to

a specific job or position, but only to ‘a liberty interest

in pursuing an occupation of one’s choice.’ ” Lane v.

Marion County, No. 6:19-CV-287-MC, 2020 WL 5579820,

at *3 (D. Or. Sept. 17, 2020) (quoting Engquist, 478 F.3d

at 997).

App. 21

The Court finds that there is insufficient evidence

to support the conclusion that Tofsrud has been “blacklisted” from an occupation in law enforcement, nor that

this case falls into the narrow category of fact patterns

identified by the Engquist court.

First, Tofsrud has not been “blacklisted” from an

occupation in law enforcement as his employment with

the City of Spokane Police Department continued after

he received the Letter of Reprimand and he was placed

on a Brady list. See, e.g., Lane, No. 6:19-CV-287-MC,

2020 WL 5579820, at *3 (holding that plaintiff ’s inclusion on the Brady list did not violate plaintiff ’s right

to work in his chosen occupation given that plaintiff

was currently employed by the Sherriff ’s Office); see

also Boyd v. Edwards, No. 6:15-cv-238-MC, 2015 WL

3407890, at *2 (D. Or. 2015) (“Boyd is still employed as

an OSP officer, so he cannot meet the extremely high

bar to make out a substantive due process violation.”).

In response to summary judgment, Plaintiff now

contends that “either he continues working under an

administration which has already [allegedly] abused

him and retaliated against him or resign and face

the end of his career.” ECF No. 40 at 13. See Heidt v.

City of McMinnville, No. 3:15-CV-00989-SI, 2016 WL

7007501, at *11 (D. Or. Nov. 29, 2016) (describing “constructive discharge” meaning that an “employee quit

because his working conditions were such that a reasonable person would feel he or she had no choice but

to quit or retire”) (citing Knappenberger v. City of

Phoenix, 566 F.3d 936, 940 (9th Cir. 2009)). However,

Tofsrud remains employed by the City as a detective,

App. 22

and Tofsrud did not assert a theory of “constructive discharge” in his First Amended Complaint. ECF Nos. 14,

40 at 13, 42 at 2.

Second, Tofsrud’s conclusory allegation that he is

unable to transfer laterally to a different department,

ECF No. 14 at 19, is unsubstantiated by the record.

Tofsrud does not allege nor does the record support

that Tofsrud has attempted to transfer to another police agency and has been unable to do so because of either the Letter of Reprimand or his inclusion on the

Brady list. See Lane, No. 6:19-CV-287-MC, 2020 WL

5579820, at *4 (“Providing evidence of one unsuccessful application with another law enforcement agency

falls far short of establishing one is blacklisted from a

career in law enforcement.”); see also Tillotson v. Dumanis, 567 F. App’x 482, 483 (9th Cir. 2014) (“Evidence

of four rejections “fall[s] far short of [establishing] a

complete prohibition” on Tillotson obtaining employment as a police officer.”) (quoting Lowry v. Barnhart,

329 F.3d 1019, 1023 (9th Cir. 2003)).

Third, Tofsrud’s contention that Defendants have

effectively “blacklisted” Tofsrud from his law enforcement career and advancement by “labeling him as a

liar” mischaracterizes the evidence. ECF No. 40 at 13.

The Letter of Reprimand issued by SPD Chief Meidl is

devoid of the terms “liar” or “lying,” but rather states:

By bringing unsubstantiated allegations of

untruthfulness on the part of Corporal McCullough to the attention of the Spokane County

Prosecutor’s Office, you inappropriately circumvented your chain of command and the

App. 23

Internal Affairs process and harmed the reputation of members of the department. While

I do not find that you knowingly made these

false allegations, I find that your actions and

statements were reckless.

ECF No. 34-4 at 2–3.

Although Tofsrud’s placement on the Brady list

was based on the Letter of Reprimand, ECF No. 54-1

at 7–8, the Spokane County Prosecuting Attorney

Larry Haskell and Chief Criminal Deputy Prosecutor

Mark Cipolla, not the Defendants, were the decisionmakers with respect to whether Tofsrud was

placed on the list. ECF No. 34-5 at 6. Other courts

have found that prosecutors are entitled to absolute

prosecutorial immunity for such decisions. See Harris

v. Chelan County, No. 2:17-CV-0137-JTR, 2019 WL

1923924, at *4 (E.D. Wash. Apr. 30, 2019) (granting

summary judgment against Plaintiff on substantive

and procedural due process claims pertaining to Brady

list designation because absolute immunity applies to

a prosecutor’s decision to “Brady list” an officer); Pendell v. Spokane County, No. 2:19-CV-00426-SAB, 2020

WL 3270150, at *3 (E.D. Wash. June 17, 2020) (“Defendants Driscoll and Haskell are entitled to absolute

prosecutorial immunity for the decision to place Deputy Pendell on the [Potential Impeachment Disclosure

List].”). Thus, to the extent that Tofsrud claims that he

was labeled as a “liar” by virtue of being placed on the

Brady list, that designation was not made by the

named Defendants.

App. 24

As the record does not support a conclusion that

Tofsrud has been “blacklisted” from engaging in his

chosen profession of law enforcement by the named

Defendants, Tofsrud’s substantive due process claim

based on the right to work in his chosen occupation

fails.

2. Entitlement to Terms & Conditions

of Employment

Tofsrud also claims that he has “lost overtime

work, lost training and promotion opportunities, advancement, and disqualification from testifying in the

course of employment.” ECF No. 14 at 20.

“Generally, the right to a particular position or to

receive overtime hours is not a constitutionally protected property interest.” Heidt, No. 3:15-CV-00989-SI,

2016 WL 7007501, at *10. “Public employees have a

‘property interest’ in the terms and conditions of their

employment if that interest is established ‘by existing

rules or understandings that stem from an independent source such as state law rules or understandings

that secure certain benefits and that support claims of

entitlement to those benefits.’ ” Id. (quoting Bd. of Regents, 408 U.S. at 577). A reasonable expectation of

entitlement is derived from the wording of the independent source of law, and the “extent to which the entitlement is couched in mandatory terms.” Wedges/

Ledges, 24 F.3d at 62.

App. 25

Overtime Work

In the First Amended Complaint, Tofsrud claims

that his entitlement to “fair and equal access to overtime and promotional and training opportunities . . .

arises out of SPD’s promises of specific treatment in

specific circumstances including disciplinary action

implemented upon existence of just cause, made in

City and Department disciplinary policies, the Brady

best practice policy and the collective bargaining

agreement.” ECF No. 14 at 19. However, Tofsrud concedes that his claim and suit alleged violations of federal statutory rights, and “not rights under a collective

bargaining unit.” ECF Nos. 33 at 4, 45 at 4. Tofsrud has

not alleged any independent authority or pointed to evidence in the record that gives him the right to work

overtime hours or receive training, specifically leadership training where Tofsrud had no formal leadership

or command position. ECF No. 34-1 (Tofsrud describing his role within TCU as an “informal leadership

role.”).

“Although Plaintiff has a property interest in continued employment under Washington law, see RCW

41.14.120, this provision does not give [Tofsrud] an entitlement to future promotions or overtime, and is only

“triggered by removal, suspension, demotions, or discharge.” Pendell, No. 2:19-CV-00426-SAB, 2020 WL

3270150, at *6. Under RCW 41.14.120, “[n]o person in

the classified civil service . . . shall be removed, suspended, demoted, or discharged except for cause,” and

proscribes the procedures due when triggered. See Pendell, No. 2:19-CV-00426-SAB, 2020 WL 3270150, at *6

App. 26

(“Placement on the PIDL does not amount to removal,

suspension, or demotion.”). Thus, Tofsrud cannot show

that the statute does anything more than create procedural guarantees, as opposed to creating a reasonable

expectation of opportunities for overtime work. See,

e.g., Stiesberg v. State of Cal., 80 F.3d 353, 357 (9th Cir.

1996) (finding that officer’s transfer from one post to

another, which had no adverse effect on his rank, pay,

or privileges, did not deprive plaintiff of a property interest protected by the Due Process Clause).

In response to summary judgment, Tofsrud contends that he has “articulated a substantive due process claim in alleging that he was demoted or

transferred arbitrarily.” ECF No. 40 at 14. The facts, as

alleged by Tofsrud, include that after returning from

medical leave, he was transferred to the North Precinct

to a less desirable office where his duties would include

screening cases, distributing stickers for the scat program, and conducting background investigations for

perspective senior volunteers at the precinct. ECF No.

14 at 17; see also ECF No. 54-3 at 2 (examples of job

functions for City of Spokane Detectives includes “performs general police duties and other related work as

required.”); ECF No. 54-7 at 3 (Major Eric Olsen testifying that Tofsrud was reassigned to the North Precinct “for the productiveness of both [the TCU and

PACT] units.”). Like the plaintiff in Stiesberg, Tofsrud’s

transfer or reassignment to the North Precinct does

not constitute a deprivation of a property interest

protected by the Due Process Clause. Stiesberg, 80

F.3d at 357 (“[W]e reject the proposition that merely

App. 27

transferring an employee without notice gives rise to a

due process claim.”).

Promotions & Training Opportunities

Tofsrud alleges that he was being recruited for an

opening in the Major Crimes Unit, and that recruitment ceased subsequent to the events at issue. ECF

No. 3401 at 13. However, “the prospect of a promotion

does not give rise to such an entitlement, and the fact

that a person was not promoted is not grounds for a

due process property claim.” Pendell, No. 2:19-CV00426-SAB, 2020 WL 3270150, at *5 (citing Nunez v.

City of Los Angeles, 147 F.3d 867, 871–72 (9th Cir.

1998)). Furthermore, Tofsrud never formally applied

for a position, and he has not directed the Court to an

independent source of law which provides an entitlement to future promotions. See id. at *6 (“Although

Plaintiff is correct that he has a property interest in

continued employment under Washington law, see

Wash. Rev. Code 41.14.120, he is incorrect that this

provision gives him an entitlement to future promotions.”).

Ability to Testify

Tofsrud contends that Defendants caused his disqualification from testifying in the course of employment. ECF No. 14 at 20 (“As a direct and proximate

result of the acts and omissions of Defendants complaint of herein, Plaintiff has suffered . . . disqualification from testifying in the course of employment.”).

App. 28

However, Tofsrud’s inclusion on the Brady list is not a

complete bar on his ability to testify in court. As set

forth by Chief Deputy Prosecutor Cipolla, “just because

a person is on the list, doesn’t mean [the Prosecutor’s

Office”] just lay[s] down and die[s].” ECF No. 34-5 at 4.

According to Chief Deputy Prosecutor Cipolla, there is

no “hard and fast rule” systematically excluding officers on the list from testifying. Id. For example, Corporal McCullough has testified in court since receiving

his Brady letter. ECF No. 34-5 at 7. Rather, from Chief

Deputy Prosecutor Cipolla’s perspective, it depends on

what the Brady issue is. Id.

Tofsrud has failed to provide an independent

source entitling him to overtime work, training and

promotion opportunities, and the ability to testify in

court. Accordingly, Tofsrud cannot establish that he

was deprived of a protected property interest.

3. Liberty Interest

Tofsrud did not expressly claim a liberty interest

in his occupation. See ECF No. 14. However, “the Due

Process clause does recognize such an interest if a public employer terminates an employee and, in doing so,

makes a charge that might seriously damage the employee’s standing or impose a stigma on him that prevents him from taking advantage of other employment

in his chosen profession.” Pendell, No. 2:19-CV-00426SAB, 2020 WL 3270150, at *6 (citing Blantz v. California Dep’t of Corr. & Rehab., Div. of Corr. Health Care

Servs., 727 F.3d 917, 925 (9th Cir. 2013)). Thus, the

App. 29

Court turns to whether Defendants’ “stigmatizing

statements” in this context triggered the protections of

due process.

“If, in the course of dismissing an employee, the

government takes steps or makes charges that so severely stigmatize the employee that she cannot avail

herself of other employment opportunities, a claim for

deprivation of liberty will stand.” Hyland v. Wonder,

972 F.2d 1129, 1141 (9th Cir. 1992) (citing Bd. of Regents, 408 U.S. at 573–574). “Stigmatizing statements

that merely cause ‘reduced economic returns and diminished prestige, but not permanent exclusion from,

or protracted interruption of, gainful employment

within the trade or profession’ do not constitute a deprivation of liberty.” Blantz, 727 F.3d at 925 (quoting

Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361,

366 (9th Cir. 1976)).

To satisfy the “stigma-plus” test, plaintiff must

show that “the accuracy of the charge is contested,”

that there is “some public disclosure of the charge,” and

the charge “is made in connection with the termination

of employment or the alteration of some right or status

recognized by state law.” Pendell, No. 2:19-CV-00426SAB, 2020 WL 3270150, at *6 (quoting Vanelli v.

Reynolds Sch. Dist., 667 F.2d 773, 778 (9th Cir. 1982)).

The Court recognizes that “placement on a ‘Brady

list’ involves a negative credibility finding and can

have severe employment consequences.” Heidt, No.

3:15-CV-00989-SI, 2016 WL 7007501, at *11 (“Because

Heidt remains employed, the Court dismisses with

App. 30

prejudice Heidt’s claim that his liberty interest has

been unconstitutionally deprived.”). However, similar

to the plaintiff in Heidt, Tofsrud “does not allege that

he was terminated—his current claim involves only a

change in job duties and an inability to receive overtime hours or training.” Heidt, No. 3:15-CV-00989SI, 2016 WL 7007501, at *11; see also Pendell, No.

2:19-CV-00426-SAB, 2020 WL 3270150, at *6–7 (declining to expand due process jurisprudence to cover

all adverse employment decisions in the context of liberty interest claims, “given language and subsequent

caselaw from the Ninth Circuit that is specific to employment termination.”).

As discussed supra, Tofsrud has not demonstrated

that he would, in fact, be deprived of all employment

in his field by virtue of his placement on the Brady list.

See Pendell, No. 2:19-CV-00426-SAB, 2020 WL 3270150,

at *6. “If [Plaintiff ] has shown any damage to his reputation, it has only deprived him of prestige and future

possibilities of promotions and advancement.” Id.

“This is insufficient to make out a liberty interest claim

and therefore Plaintiff is not entitled to the process he

desires.” Id.

Accordingly, Tofsrud’s allegations fail to articulate

the deprivation of a constitutionally protected liberty

interest.

Tofsrud has failed to support that a protected

property or liberty interest is implicated in this case.

See Wedges/Ledges, 24 F.3d at 62 (“A threshold requirement to a substantive or procedural due process

App. 31

claim is the plaintiff ’s showing of a liberty or property interest protected by the Constitution.”). Accordingly, Defendants are entitled to summary judgment

on Tofsrud’s substantive and procedural due process

claims under the Fourteenth Amendment.

B. Equal Protection

“Plaintiff concedes several factual conditions . . .

render[ ] his Equal Protection claim invalid.” ECF No.

40 at 16. “Understanding the ‘class of one’ theory of

equal protection is disfavored in the Ninth Circuit[,]

Plaintiff wishes to focus the Court on his other claims

and agrees to voluntarily dismiss his [Equal Protection] cause of action.” ECF No. 40 at 15–16. Accordingly, Plaintiff ’s Equal Protection claim is dismissed

with prejudice.

III. Defamation

Defendants argue that they are entitled to summary judgment because “Plaintiff cannot identify anyone who communicated the allegedly defamatory

statements to others.” ECF No. 32 at 17.

The elements a plaintiff must establish in a defamation case are (1) falsity, (2) an unprivileged communication, (3) fault, and (5) damages. Mohr v. Grant, 153

Wash.2d 812, 822, 108 P.3d 768 (2005). The falsity

prong is satisfied with evidence that a statement is

provably false or leaves a false impression. Id. at 825,

108. P.3d 738.

App. 32

“When a defendant in a defamation action moves

for summary judgment, the plaintiff has the burden of

establishing a prima facie case on all four elements.”

Paterson v. Little, Brown & Co., 502 F. Supp. 2d 1124,

1132 (W.D. Wash. 2007) (citing LaMon v. Butler, 112

Wash.2d 193, 197, 770 P.2d 1027 (1989)). “The prima

facie case must consist of specific, material facts, rather than conclusory statements, that would allow a

jury to find that each element of defamation exists.”

Paterson, 502 F. Supp. 2d at 1132 (citing LaMon, 112

Wash.3d at 197, 770 P.2d 1027).

The basis for Tofsrud’s defamation claim is a moving target. In the First Amended Complaint, Tofsrud

claims that “Defendants made statements in the form

of the IA investigation, memos and reports, letters,

emails, and public comments in which they labeled

Plaintiff as untruthful.” ECF No. 14 at 25. However,

Tofsrud fails to identify with particularity the statements, speakers, and recipients of the alleged defamatory statements.

When deposed and asked to state the basis for his

defamation claim, Tofsrud testified that “the entire

process defamed me. So, I guess we’ve yet to identify

who the entire process included, but the entire process

defamed me . . . one of the worst things that you can

have as a police officer is to be called a ‘Brady officer.’

So that is defaming in my mind.” ECF No. 34-1 at 16;

see also ECF No. 45 at 5 (“Tofsrud considered the entire

process to be based on false information that harmed

his reputation.”). This evidence fails to establish a

prima facie case for defamation.

App. 33

In response to summary judgment, Tofsrud contends that the Letter of Reprimand, finding that

Tofsrud had violated SPD Policies including “knowingly making false, misleading, or malicious statements,” which was forwarded to the Spokane County

Prosecuting Attorney’s Office, is false and actionable

as defamation. ECF No. 40 at 17; see also ECF No. 344 at 3 (Chief Meidl stating that “[w]hile I do not find

that you knowingly made these false allegations, I find

that your actions and statements were reckless.”). Defendants contend that if this the basis for Plaintiff ’s

defamation claim, the communication between Chief

Meidl and the Prosecutor’s Office is privileged. ECF

No. 53 at 11; see Lackey v. Lewis County, No. C095145RJB, 2009 WL 3294848, at *12 (W.D. Wash. Oct. 9,

2009) (finding defamation claim was subject to dismissal because the plaintiff failed to prove that Lewis

County Prosecuting Attorney’s communication to Mason County Prosecutor regarding officer’s Brady designation was not privileged).

Furthermore, as there are only specific allegations

asserted against Defendant Meidl, Defendants argue

that Defendants Lundgren and Staben should be dismissed as a matter of law. The Court agrees that there

are no specific allegations or evidence of defaming

communications made by Defendants Lundgren and

Staben and dismisses Plaintiff ’s defamation claim

against them with prejudice.

“A privileged communication involves the occasion

where an otherwise slanderous statement is shared

with a third person who has a common interest in the

App. 34

subject and is reasonably entitled to know the information.” Pate v. Tyee Motor Inn, Inc., 77 Wash.2d 819,

821, 467 P.2d 301 (1970). Most situations in which the

common interest privilege applies involve persons

from the same organization or enterprise. Moe v. Wise,

97 Wash.App. 950, 957, 989 P.2d 1148 (1999).

Here, it is undisputed that the Letter of Reprimand was shared with the Spokane County Prosecuting Attorney’s Office. Pursuant to a memorandum

entitled “Potential Impeachment Disclosure Guidelines,” created on January 8, 2018, and shared with local law enforcement leadership, ECF No. 54-13 at 2,

the Prosecutor’s Office “relies on law enforcement

agencies to conduct investigations into allegations of

officer misconduct, and to advise [the Prosecutor’s Office] of the results of those investigations.” ECF No. 5413 at 4. “On completion of the investigation, the agency

is requested to notify the PID Deputy of all relevant

information. This should be done whether or not the

agency determined that the allegations were well

founded.” Id. at 5.

Once an internal affairs investigation commenced

and concluded, Chief Meidl advised the Prosecutor’s

Office of the results of the investigation pursuant to

the Guidelines. The Prosecutor’s Office had a common

interest in the information, based on the prosecutors’

duties set forth in Brady v. Maryland, 373 U.S. 83

(1963). Therefore, the Prosecutor’s Office was reasonably entitled to the results of the underlying investigation. Accordingly, the Letter of Reprimand authored by

Chief Meidl falls within the common interest privilege.

App. 35

If a qualified privilege applies, such has the common interest privilege, the burden then shifts to the

plaintiff to show that the publisher abused the privilege. Alpine Indus. Computers, Inc. v. Cowles Pub. Co.,

114 Wash.App. 371, 382, 57 P.3d 1178 (2002). “Whether

the speaker has abused a qualified privilege such that

the privilege is lost is ordinarily a question of fact for

the jury unless the facts support only one reasonable

conclusion.” Little v. Kitsap Transit, No. C08-5010RJB,

2008 WL 4621584, at *12 (W.D. Wash. Oct. 17, 2008)

(citing Moe, 97 Wash.App. at 963, 989 P.2d 1148).

Defamation plaintiffs can demonstrate that a

qualified privilege has been abused in one of five ways:

(1) the speaker knew the statement to be false or acted

in reckless disregard as to its falsity, (2) the speaker

did not make the statement for the purpose of protecting the common interest, (3) the speaker knowingly

published the matter to a person who is not covered by

the privilege, (4) the speaker did not reasonably believe the subject matter was necessary to serve the

common interest, or (5) the speaker published both privileged and unprivileged statements. Moe, 97 Wash.App.

at 989, 989 P.2d 1148. Evidence of abuse of the privilege must be clear and convincing. Id.

Tofsrud argues that Plaintiffs can show that Chief

Meidl knew the falsity of the statement “Detective

Tofsrud made a knowingly false, misleading statement” based upon contradictory statements in the Letter of Reprimand. ECF No. 40 at 17.

App. 36

The statement “Detective Tofsrud made a knowingly false, misleading statement” does not appear verbatim in the Letter of Reprimand. ECF No. 34-4 at 2–

3. Rather, the Letter states that after reviewing the

matter, Chief Meidl found Tofsrud to have violated

SPD policies, including “knowingly making false, misleading or malicious statements. . . .” Id. The Letter of

Reprimand then states “[w]hile I do not find that you

knowingly made these false allegations, I find that

your actions and statements were reckless.” ECF No.

34-4 at 3.

The Court does not find that Chief Meidl’s statement that Tofsrud’s “actions and statements were

reckless” is a contradiction, but rather serves as clarification as to the basis for sustaining the findings of

SPD policy violations by the Administrative Review

Panel. Furthermore, the finding regarding recklessness is not clear and convincing evidence that Chief

Meidl forwarded the Letter of Reprimand with actualmalice knowledge as to the falsity of the Letter’s contents. Tolan v. Washington, No. C04-2091JLR, 2005 WL

1378755, at *3 (W.D. Wash. June 8, 2005) (“A defendant

abuses the official duty privilege if he publishes a

statement with actual malice-knowledge of the statement’s falsity or reckless disregard for its truth or falsity.”) (citation omitted). The record also does not

indicate that Chief Meidl forwarded the Letter of Reprimand for an unreasonable purpose not encompassed

by the common interest or that he knowingly published the Letter to a person who was not part of the

Spokane County Prosecuting Attorney’s Office.

App. 37

Defendants asserted that “any written or oral

statements made or otherwise attributed to any or all

of the named Defendants are protected by either a

qualified privilege or an absolute privilege.” ECF No.

15 at 23. Tofsrud argued in response to summary judgment that “Defendants have not articulated any basis

under which this communication would be privileged

and therefore, Plaintiff has carried his burden on this

element.” ECF No. 40 at 18. In replying, Defendants

asserted the common interest privilege presumably because Tofsrud had failed to identify with sufficient particularity which statements formed the basis of his

defamation claim prior to his response to summary

judgment. Since Tofsrud failed to identify with particularity which statements formed the basis of his defamation claim, and since he already has argued that

“the speaker knew the statement to be false or acted in

reckless disregard as to its falsity” and the Court has

rejected that as a basis for abuse of privilege, the Court

finds that it is futile to allow Plaintiff to attempt to rebut the privilege with a sur-reply.

IV. Outrage

Tofsrud claims that “Defendants’ acts of investigating and labeling a law enforcement officer as a liar

. . . consists of an extraordinary transgression of the

bounds of socially tolerable conduct that is extreme

and outrageous.” ECF No. 1 at 24. Defendants contend

that summary judgment is appropriate on Tofsrud’s

claim for outrage because the issuance of a Letter

of Reprimand after a lengthy investigation does not

App. 38

amount to the requisite “extreme and outrageous conduct.” ECF No. 32 at 18–19. Tofsrud argues that the

facts, when considered in the context of a career in law

enforcement, are sufficiently “shocking and outrageous.” ECF No. 40 at 20.

“The tort of outrage requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and

(3) actual result to plaintiff of severe emotional distress.” Kloepfel v. Bokor, 149 Wash.2d 192, 195, 66

P.3d 630 (2003). A claim for outrage must be predicated

on behavior “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291 (1975) (citing Restatement (Second) of Torts § 46 cmt. d).

Although “whether conduct is sufficiently outrageous is ordinarily a jury question,” “the trial court

must initially determine if reasonable minds could

differ on whether the conduct was extreme enough

to result in liability.” Kirby v. City of Tacoma, 124

Wash.App. 454, 473, 98 P.3d 827 (2004).

The Court finds that Defendants’ actions were not

so extreme as to shock the conscience. See id. at 473–

74, 98 P.3d 827 (“Workplace disciplinary actions such

as writing administrative reports, receiving oral reprimands, and internal affairs investigations are not ‘so

outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be

App. 39

regarded as atrocious, and utterly intolerable in a civilized community.’ ”) (quoting Grimsby, 85 Wash.2d at

59, 530 P.2d 291). In Kirby, Division II of the Washington State Court of Appeals found that Kirby, a police

officer, had failed to show that there was a genuine issue of material fact as to his claim of outrageous conduct where he alleged various adverse employment

actions, including that he was the subject of numerous

administrative investigations, “some of which lasted

for months and some for up to two years.” Kirby, 124

Wash.App. at 460–61, 474, 98 P.3d 827.

Thus, even in the context of a career in law enforcement, Tofsrud has failed to set forth specific facts

showing that there is a genuine issue of material facts

or evidence supporting his prima facie case with respect to his tort claim for outrage. Therefore, Plaintiff ’s

claim of outrage is dismissed with prejudice.

Accordingly, IT IS HEREBY ORDERED:

1. Defendants’ Motion for Summary Judgment,

ECF No. 32, is GRANTED.

2. Plaintiff ’s claims against Defendants are

DISMISSED WITH PREJUDICE.

3.

Judgment shall be entered for Defendants.

4. Any remaining, pending motions are DENIED

AS MOOT, and any hearing dates are STRICKEN.

IT IS HEREBY ORDERED. The District Court

Clerk is directed to enter this Order, enter judgment

App. 40

as directed, provide copies to counsel, and close the

file in this case.

DATED June 2, 2021.

s/ Rosanna Malouf Peterson

ROSANNA MALOUF PETERSON

United States District Judge

App. 41

SPOKANE POLICE DIVISION

[LOGO]

CHIEF OF POLICE

CRAIG N. MEIDL

Letter of Reprimand

June 22, 2018

Detective Lonnie Tofsrud Spokane Police Division

Detective Tofsrud,

The purpose of this letter of reprimand is to advise you

that after an Internal Investigation (I.A. # C18-002),

Administrative Review Panel, and thorough review of

this matter, I find you violated the following Spokane

Police Department Policies:

SPD Policy 340.3.5 PERFORMANCE: f ) Knowingly

making false, misleading or malicious statements that

are reasonably calculated to harm or destroy the reputation, authority or official standing of the department

or members thereof.

Ethical Standard 3.1: Members of the Spokane Police

Department, as professionals, shall maintain an

awareness of those factors affecting their responsibilities.

Ethical Standard 3.6: Members of the Spokane Police

Department, with due regard for compassion, shall

maintain an objective and impartial attitude in official

contacts.

Ethical Standard 4.9: Members of the Spokane Police

Department shall at all times conduct themselves in a

App. 42

manner which does not discredit the law enforcement

profession or the Spokane Police Department.

On November 6, 2017, Corporal McCollough initiated

a traffic stop that resulted in the arrest of the driver.

You alleged that Corporal McCollough was untruthful

in his arrest report and brought these allegations to

the attention of the Spokane County Prosecutor’s Office after a conversation with your supervisor, Sgt.

Preuninger. The Internal Affairs investigation was inconclusive concerning the exact content or level of detail you provided to Sgt. Preuninger regarding this

matter. However, as a detective with your degree of

tenure and experience you should have known the seriousness of your allegation and the potential consequences of your actions. Integrity is the cornerstone of

any officer’s reputation. The public, our coworkers, and

our professional partners expect and deserve the highest levels of integrity from the members of our department. As such, I take allegations of dishonesty very

seriously and demand that all members of our organization do the same. In this instance, you did not provide any facts or proof that Corporal McCollough had

been untruthful in his arrest report or at any other

time. You were asked during the Internal Affairs investigation to provide the basis for your allegation and

were unable to provide any information to support

your assertion. Instead of filing a formal complaint

through your chain of command or directly with Internal Affairs you chose to make your allegation directly

to a prosecuting attorney. Your meeting with the prosecutor as a peer to Cpl. McCollough and with no direct

App. 43

involvement in the criminal case was unsolicited, reckless, and inappropriate. You also made additional unsubstantiated claims of wrongdoing against Corporal

McCollough, Sergeant Vigesaa and Officer Stephanie

Kennedy.

I have reviewed the completed investigation, Administrative Review Panel report and evidence in this case.

I concur with the Administrative Review Panel and

have concluded that there is sufficient evidence to support a finding that you violated the above-referenced

SPD policies.

SPD employees are expected to report all complaints

regarding the conduct of members and employees of

the department to a supervisor or Internal Affairs in

accordance with SPD Policy 1020. By bringing unsubstantiated allegations of untruthfulness on the part of

Corporal McCollough to the attention of the Spokane

County Prosecutor’s Office, you inappropriately circumvented your chain of command and the Internal

Affairs process and harmed the reputation of members

of the department. While I did not find that you knowingly made these false allegations, I find that your actions and statements were reckless. Going forward,

you are expected to notify your supervisor in detail if

you become aware of potential misconduct and comply with all aspects of SPD Policy 1020 governing Personnel Complaints. Further violations of the abovereferenced SPD policies will result in further discipline

up to and including termination.

App. 44

This Letter of Reprimand will remain in your Civil Service Personnel File for three (3) years. If there is no

reoccurrence of similar misconduct after a minimum

period of three years, you may request that this Letter

of Reprimand be removed from your Civil Service File.

Sincerely,

/s/ Craig N Meidl

Craig Meidl

Police Chief