Cronk v. City of West Richland et al, No. 4:2014cv05041 - Document 188 (E.D. Wash. 2016)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL denying 185 Motion for New Trial. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
Download PDF
<![CDATA[
Cronk v. City of West Richland et al Doc. 188 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 8 11 12 13 14 15 16 17 18 19 4:14-CV-5041-EFS Plaintiff, 9 10 No. KENNETH LEE CRONK, ORDER DENYING PLAINTIFF’S MOTION FOR NEW TRIAL v. CITY OF WEST RICHLAND, a municipal corporation; MAYOR DONNA NOSKI, in her official and personal capacity, CITY ATTORNEY BRONSON BROWN, in his official and personal capacity, POLICE CHIEF BRIAN MCELROY, in his official and personal capacity, TONY BENEGAS, in his official and personal capacity, RICHARD BLOOM, in his official and personal capacity, GAIL BROWN, in her official and personal capacity, BRENT GERRY, in his official and personal capacity, RON HAYDEN, in his official and personal capacity, ROBERT PERKES, in his official and personal capacity, RICH BUEL, in his official and personal capacity and DOES 1-25, 20 Defendants. 21 22 Before the Court, without oral argument, is the Plaintiff’s Motion 23 for New Trial, ECF No. 185, asking the Court to set aside the jury 24 verdict and order a new trial on the grounds that (1) the testimony of 25 two witnesses was perjured; (2) the Court erred by granting judgment as 26 ORDER - 1 Dockets.Justia.com 1 a matter of law as to Plaintiff’s claims under § 1985; (3) the notices 2 of trespass in the case are facially invalid under the First and 3 Fourteenth Amendments; (4) the notices are invalid under state and local 4 law; (5) the jury instructions were flawed; and (6) the Verdict, ECF 5 No. 179, is contrary to the weight of the evidence. Defendants oppose 6 the Motion. ECF No. 187. After reviewing the submitted materials and 7 relevant authority, the Court is fully informed. As is explained below, 8 the Court denies Plaintiff’s motion. 9 I. Background and Procedural History 10 Mr. Cronk has been a citizen of West Richland for over 30 years 11 and was a regular attendee of the West Richland City Council meetings. 12 ECF No. 166, at 3. He has over 25 years of law enforcement experience 13 — including military service with the Army Military Police and time on 14 the Hanford Patrol — and is familiar with firearms. ECF No. 166, at 3, 15 8. Mr. Cronk attended 11 city council meetings between April 2008 and 16 November 2013. ECF No. 166, at 3. During the public comment period of 17 these meetings, Mr. Cronk spoke regarding incidents with the police that 18 had occurred at his home. See ECF No. 166, at 3. 19 According to Mr. Cronk, in 2006 and 2007 encounters with the police 20 occurred at his home that involved his son, a “mentally disabled third 21 party,” and Mr. Cronk’s wife, and the encounters resulted in the 22 hospitalization of Ms. Cronk and criminal citations being issued to Mr. 23 Cronk’s wife and son. See ECF Nos. 56 & 73. Mr. Cronk believes that the 24 police investigation related to those encounters was improper and 25 insufficient. ECF Nos. 56 & 73. City officials, including Defendant 26 ORDER - 2 1 Mayor Noski, have looked into the matter and determined that there was 2 nothing the City could do. See ECF No. 166, at 4. 3 On June 8, 2012, another incident occurred involving police at Mr. 4 Cronk’s home. ECF No. 166, at 6–7. Mr. Cronk had called the Washington 5 Department of Social and Health Services and allegedly threatened 6 employees there and other government officials. ECF No. 166, at 6–7. As 7 a result, the police were dispatched to Mr. Cronk’s home. ECF No. 166, 8 at 6–7. Police arrived and transported Mr. Cronk to the hospital for a 9 mental health evaluation. ECF No. 166, at 7. 10 As a result of that incident and Mr. Cronk’s alleged threats, 11 Defendants Police Chief McElroy and Mayor Noski believed that Mr. Cronk 12 was a public safety concern. ECF No. 56, at 10-12. After consulting with 13 the city attorney, they decided to “trespass” Mr. Cronk from city 14 property. ECF No. 166, at 7–8. The City claims that trespassing Mr. 15 Cronk was preferred over a criminal citation or a restraining order 16 because it was less intrusive. ECF No. 166, at 8; ECF No. 182, at 37. 17 A notice of trespass was delivered to Mr. Cronk on June 19, 2012. ECF 18 No. 166, at 2, 7. This notice was a complete bar to entry onto city 19 property at 3801 W. Van Giesen Street (City Hall and Public Works). ECF 20 No. 166, at 3, 7. 21 In July 2012, Mr. Cronk filed a lawsuit against the City. ECF No. 22 166, at 7; see also Complaint, Cronk v. City of West Richland, No. 12- 23 CV-5094-TOR (E.D. Wash. July 18, 2012) ECF No. 1. Mr. Cronk claims that 24 at some point during the pendency of that lawsuit the U.S. Marshals 25 Service instituted a policy requiring Mr. Cronk to advise security in 26 advance of his presence in the federal courthouse. ECF No. 1, at 16. ORDER - 3 1 When present, Mr. Cronk claims that he was required to be accompanied 2 by a deputy U.S. Marshal or other security personnel. ECF No. 1, at 16. 3 In prosecuting that federal case, Mr. Cronk would routinely deliver 4 documents to West Richland City Hall. ECF No. 166, at 6. In July 2012, 5 Mr. Cronk delivered a set of documents to Ms. Richardson, a clerk at 6 West Richland City Hall. ECF No. 56, at 8. Ms. Richardson alleges that 7 during their conversation, Mr. Cronk said something to the effect that 8 he “had to take medications so that he doesn’t think about shooting 9 people.” ECF No. 56, at 8. Ms. Richardson reported this statement to 10 her superiors. ECF No. 11 allegation. 12 threatened any governmental employee. ECF No. 78-1 ¶¶ 37–38. He agrees 13 that he stated his displeasure and that he “had the right to ‘sue’ each 14 of the departments or agencies.” ECF No. 78-1 ¶¶ 37–38. ECF No. 56, at 78-1 8. Mr. ¶¶ 37-38. He Cronk adamantly claims that he denies the has never 15 As a result of Mr. Cronk’s encounter with Ms. Richardson, a second 16 notice of trespass was issued on August 29, 2012, which covered 3803 17 (Police Station) and 3805 (Public Library) W. Van Giesen Street. ECF 18 No. 166, at 2–3, 7. City Council meetings were held at the public 19 library. ECF No. 166, at 7. Police Chief McElroy served the second 20 notice on Mr. Cronk on August 30, 2012. ECF No. 166, at 2. This notice 21 also included a provision allowing Mr. Cronk to access city services 22 and facilities by contacting Chief McElroy. 23 On November 5, 2013, after the second notice of trespass was 24 issued, Mr. Cronk attended a City Council meeting at the library to 25 inquire as to why he was trespassed. ECF No. 166, at 4. The City Council 26 informed him that they would look into it and have an answer at their ORDER - 4 1 next meeting. ECF No. 166, at 4. At the next meeting on November 19, 2 2013, Mr. Cronk again asked why he was trespassed. ECF No. 166, at 4. 3 The Council referred him to Chief McElroy. ECF No. 166, at 4. Mr. Cronk 4 was not asked to leave either of these Council meetings. ECF No. 166, 5 at 8. After the second meeting, however, Chief McElroy wrote to Mr. 6 Cronk and reiterated that Mr. Cronk was allowed to go to the meetings 7 but needed to contact the Chief before he did so. ECF 56, at 21. 8 On March 27, 2014, Mr. Cronk brought this lawsuit, claiming that 9 under 42 U.S.C. § 1983 the notices of trespass were a violation of his 10 First and Fourteenth Amendment rights. ECF No. 1. He further claimed a 11 conspiracy by government officials to deprive him of said rights under 12 42 U.S.C. § 1985, but that claim was dismissed by judgment as a matter 13 of law. ECF No. 163. Additional claims against the city council members 14 were dismissed by summary judgment. ECF No. 95. The original complaint 15 included a number of state law claims but those were also dismissed via 16 summary judgment. ECF No. 35. 17 Following mediation and settlement attempts, ECF Nos. 97 & 111, a 18 jury trial was held from July 18, 2016, to July 21, 2016. On July 21, 19 2016, the jury returned a verdict in favor of Defendants on all remaining 20 claims. ECF No. 179. Plaintiff filed a timely motion for new trial on 21 August 18, 2016, based on claims that (1) two defendants testified 22 falsely; (2) the Court had erroneously granted Defendants’ Motion for 23 Judgment as a Matter of Law as to the § 1985 claims; (3) the Court did 24 not adjudicate the facial validity of the notices of trespass under the 25 First and Fourteenth Amendments; (4) the Court did not determine that 26 the notices of trespass were issued in violation of state law; (5) the ORDER - 5 1 Court’s jury instructions were an incorrect expression of the law; and 2 (5) the verdict was inconsistent with the law. ECF No. 185. Defendants 3 filed a memorandum in opposition to Plaintiff’s motion on August 24, 4 2016. ECF No. 187. 5 II. Discussion 6 Under Federal Rule of Civil Procedure 59, a district court may 7 grant a new trial “after a jury trial, for any reason for which a new 8 trial has heretofore been granted in an action at law in federal court.” 9 Fed. R. Civ. P. 59(a)(1)(A). Such reasons include claims “that the 10 verdict is against the weight of the evidence, that the damages are 11 excessive, or that, for other reasons, the trial was not fair to the 12 party moving.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). 13 The Ninth Circuit has further clarified the appropriate grounds for 14 granting a new trial, holding: “The trial court may grant a new trial 15 only if the verdict is contrary to the clear weight of the evidence, is 16 based upon false or perjurious evidence, or to prevent a miscarriage of 17 justice.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) 18 (quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 19 510 n.15 (9th Cir. 2000)); accord Tortu v. Las Vegas Metro. Police 20 Dep’t, 556 F.3d 1075, 1087 (9th Cir. 2009). The district court is in 21 the best position to determine whether a new trial is appropriate 22 because “the district court can weigh the evidence and assess the 23 credibility 24 Hendrixlicensing.com Ltd, 762 F.3d 829, 842 (9th Cir. 2014). In this 25 case, the Court finds that none of Plaintiff’s claims justify granting 26 a new trial. ORDER - 6 of the witnesses.” Experience Hendrix L.L.C. v. 1 A. 2 Plaintiff argues that Defendants Mayor Noski and Chief McElroy 3 committed perjury at trial and seems to suggest that such testimony 4 deprived him of a fair trial. ECF No. 185, at 2–9. 5 Whether Witnesses Testified Falsely Plaintiff first argues that Mayor Noski’s testimony at trial was 6 contradictory to her deposition testimony. ECF No. 185, at 2–4. 7 Specifically, Plaintiff notes that Mayor Noski testified during her 8 deposition that the notice of trespass was related only to Mr. Cronk’s 9 threats communicated to Ms. Richardson, and subsequently testified at 10 trial that the first notice of trespass was based on Mr. Cronk’s June 11 2012 encounter with the police at his house. 12 The Court finds no material discrepancy between Mayor Noski’s 13 deposition and trial testimony, much less evidence of perjury. A witness 14 commits perjury when the witness “gives false testimony concerning a 15 material matter with the willful intent to provide false testimony, 16 rather than as a result of confusion, mistake, or faulty memory.” United 17 States v. Dunnigan, 507 U.S. 87, 94 (1993). At most, it seems that Mayor 18 Noski may have confused the justifications for the two notices of 19 trespass. Mayor Noski’s deposition testimony that the notice of trespass 20 was based on Mr. Cronk’s interaction with Ms. Richardson is consistent 21 with her trial testimony regarding the second notice of trespass. 22 Regardless, Mr. Cronk was free to introduce the testimony that he 23 perceived to be contradictory, and Mr. Cronk did, in fact, question 24 Mayor Noski as to the content of her deposition testimony. ECF 182, at 25 26–28. Accordingly, the Court finds that any discrepancy between Mayor 26 ORDER - 7 1 Noski’s deposition testimony and trial testimony was minor 2 and unintentional, and therefore insufficient to constitute perjury. 3 Plaintiff next argues that Chief McElroy also committed perjury 4 based on discrepancies between his deposition testimony and trial 5 testimony. ECF No. 185, at 4–9. The alleged discrepancy is similar to 6 the alleged discrepancy in Mayor Noski’s testimony. Plaintiff notes that 7 Chief 8 trespass prohibiting Mr. Cronk from entering City Hall — the first 9 notice McElroy — was testified issued during based on his Mr. deposition Cronk’s that the interaction notice with of Ms. 10 Richardson, but at trial Chief McElroy testified that the first notice 11 was based on an incident at Mr. Cronk’s house. ECF No 185, at 4–7. As 12 above, the Court finds that this discrepancy is minor and, if anything, 13 demonstrates only that Chief McElroy had confused the two notices during 14 his deposition testimony. It is undisputed that the first notice of 15 trespass was issued before Mr. Cronk’s interaction with Ms. Richardson 16 regarding his lawsuit filed in July 2012. Complaint, Cronk, No. 12-CV- 17 5094, ECF No. 1. In addition, Plaintiff had the opportunity to introduce 18 Chief McElroy’s deposition testimony during his examination of Chief 19 McElroy and did so in relation to other perceived discrepancies. ECF 20 No. 183, at 25–27. Accordingly, the Court finds that any variations in 21 Chief McElroy’s testimony were immaterial, unintentional, and did not 22 constitute perjury so as to effect a miscarriage of justice. 23 B. Whether the Court Erred by Granting the Defendant’s Motion 24 for Judgment as a Matter of Law on Plaintiff’s § 1985 claims 25 Plaintiff also seems to claim that the Court erred by granting 26 Defendant’s Motion for Judgment as a Matter of Law as to Plaintiff’s ORDER - 8 1 claims under § 1985. ECF No. 185, at 7–9. Plaintiff argues that the 2 Court relied on “pure supposition” and a typographical error to conclude 3 that Defendants had not engaged in a conspiracy to prevent Plaintiff 4 from attending district court hearings in his 2012 lawsuit. ECF No. 185, 5 at 7–9. 6 In its Order granting in part Defendant’s Motion for Judgment as 7 a Matter of Law, the Court explained that Plaintiff had not called any 8 witness from the U.S. Marshals Service and that evidence in the record 9 of Mr. Cronk’s 2012 case provided a reasonable basis, other than a 10 conspiracy, for the action taken by the Marshals. ECF No. 163, at 2–3. 11 For that reason, Plaintiff did not satisfy his burden of proof as to 12 the § 1985 claims, and the Court’s decision to grant Defendant’s motion 13 was appropriate. Ward v. E.E.O.C., 719 F.2d 311, 314 (9th Cir. 1983)(“To 14 prove a conspiracy [under § 1985], [Plaintiff] had to show an agreement 15 or ‘meeting of the minds’ to violate his constitutional rights.”). C. 16 Whether the Court Erred by Failing to Determine the Facial 17 Validity of the No Trespass Notices Under the First and 18 Fourteenth Amendments Plaintiff’s 19 generalized arguments regarding facial challenges 20 under the First and Fourteenth Amendments carry little weight. The issue 21 of 22 applicable in this case. Because the notices of trespass apply only to 23 Mr. Cronk, it is not clear how the two approaches would vary. Hoye v. 24 City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (“Because the 25 difference between an as-applied and a facial challenge lies only in 26 whether all or only some of the statute’s subrules (or fact-specific facial ORDER - 9 challenge versus as-applied challenge is not clearly 1 applications) are being challenged, the substantive legal tests used in 2 the two challenges are ‘invariant.’” (emphasis added)). Regardless, the 3 Ninth Circuit has held that “a facial challenge must fail unless, at a 4 minimum, the challenged ordinance is directed narrowly and specifically 5 at expression or conduct commonly associated with expression.” Nunez by 6 Nunez v. City of San Diego, 114 F.3d 935, 950 (9th Cir. 1997)(internal 7 quotation 8 determined that the notices in this case were reasonable and not 9 motivated by a desire to limit Mr. Cronk’s First Amendment rights. 10 11 marks omitted). As reflected in the verdict, the jury Accordingly, any facial challenge to the notices would have failed. D. Whether the Court Erred by Failing to Determine the Validity 12 of the No Trespass Notices Under State and Local Law. 13 In his Motion for New Trial, Plaintiff also argues that the Court 14 erred by failing to determine that the notices of trespass were invalid 15 under state and local law. ECF No. 185, at 14–16. In his Motion, however, 16 Plaintiff cites to no statutory provisions that the notices violated. 17 ECF No. 185. More importantly, Plaintiff did not raise this claim in 18 his complaint. See ECF No. 1. In his motion for new trial, Plaintiff 19 claims to have briefed the issue of the validity of the notices under 20 state law and cites to ECF Nos. 137 and 72. ECF No. 185, at 15. Nowhere 21 in these filings does Plaintiff argue specific state laws or local 22 ordinances that Defendants violated by issuing the notices of trespass. 23 Plaintiff contends that “at trial it was settled that, neither of 24 the Notices satisfied the State statutory requirements for a [sic] 25 enforceable 26 question of the validity of the notices, however, was not settled at ORDER - 10 ordinance or resolution.” ECF No. 185, at 14–16. The 1 trial, as multiple Defendants testified that such a notice of trespass 2 was a standard practice and that the notices in this case complied with 3 the law. See, e.g., ECF No. 182, at 47–48. Accordingly, Plaintiff failed 4 to appropriately plead a claim that the notices were invalid under state 5 law and, regardless of his insufficient pleading, Plaintiff has never 6 provided evidence to support such a claim. E. 7 Whether the Jury Instructions Were an Incorrect Expression 8 of the Law that Resulted in a Verdict Inconsistent with the 9 Law 10 Plaintiff filed notice with the Court prior to trial that he had 11 no objection or suggested modifications to the Court’s preliminary jury 12 instructions. ECF No. 150. Now, in his claim that the Court’s jury 13 instructions were erroneous, Plaintiff argues that the Court should have 14 instructed the jury as to the law for determining the type of forum at 15 issue 16 reasonableness. ECF No. 185, at 16–17. Plaintiff did not propose an 17 instruction defining reasonableness or instructing the jury as to the 18 law regarding the type of forum at issue. Instead, Plaintiff’s proposed 19 jury instructions included the “undisputed fact” that the city council 20 forum at issue was a limited public forum. ECF No. 150, at 9. In 21 addition, Plaintiff’s proposed jury instructions 13 through 24 and 26 22 used the term “reasonable” or “reasonableness” without defining it. 23 Accordingly, Plaintiff has waived the argument that the instructions 24 should have defined reasonableness or allowed the jury to determine the 25 type of forum at issue. See Fed. R. Civ. P. 51; Fireman’s Fund Ins. Co. 26 v. Alaskan Pride P’ship, 106 F.3d 1465 (9th Cir. 1997). Nevertheless, and ORDER - 11 given the jury guidance as to the definition of 1 the Court correctly stated that the government buildings at issue 2 included limited public forums and non-public forums. Reza v. Pearce, 3 806 F.3d 497 (9th Cir. 2015) (“[C]ity council meetings, where the public 4 has the opportunity to address officers of a local government or local 5 governmental agency, are limited public fora.” (citing White v. City of 6 Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990)); Greer v. Spock, 424 U.S. 7 828, 8 government property remains a nonpublic forum because the government 9 “has power to preserve the property under its control for the use to 10 11 836 (1976) (explaining that unless opened to public speech, which it is lawfully dedicated”). F. Whether the Verdict is Contrary to the Law Due to Want of Evidence 12 13 Finally, Plaintiff claims that “no direct evidence was presented 14 concerning any threats to any individual at any time by Plaintiff” and 15 that “each of the defendants testified that at no time did the Plaintiff 16 threaten them or anyone at city council meetings or at anytime.” ECF 17 No. 185, at 16. Based on this claim, Plaintiff argues that the jury’s 18 verdict was not supported by the evidence. Contrary to Plaintiff’s 19 claim, however, multiple witnesses testified as to the threats made by 20 Mr. Cronk, including Defendants Mayor Noski and Chief McElroy. The Court 21 finds that the jury appropriately credited this testimony. 22 Chief McElroy testified that the incident that prompted the first 23 notice of trespass involved threats to staff at the Department of Social 24 and Health Services. ECF No. 182, at 37–38; ECF No. 183, at 69. Mayor 25 Noski testified that she learned of Mr. Cronk making threats to clerk 26 Ms. Richardson on July 18, 2012, and that the second notice of trespass ORDER - 12 1 was issued as a result. ECF No. 182, at 29–31. Chief McElroy also 2 testified that the second notice of trespass was prompted by a statement 3 Mr. Cronk made to Ms. Richardson about shooting up the office. ECF No. 4 182, at 43; ECF No. 183, at 71, 75. In fact, Plaintiff introduced an 5 email by Chief McElroy in which Chief McElroy wrote that the first 6 trespass notice was “based solely on safety concerns raised during the 7 past couple of weeks.” ECF No. 182, at 45–46. Chief McElroy further 8 explained that the notices were issued based on “concerns for staff 9 safety” in order to give the police the “ability to take enforcement 10 action” and the “ability to control . . . the situation” and to avoid 11 “a situation where we have staff members that feel threatened and cannot 12 conduct business.” ECF No. 182, at 47–48. Chief McElroy also indicated 13 that he considered Mr. Cronk to be an “imminent risk” based on an 14 analysis by mental health professionals. ECF No. 182, at 50. Plaintiff also claims that “at trial defendants failed to introduce 15 16 any direct or circumstantial evidence of city council meeting 17 disruptions or alike caused by the Plaintiff.” ECF No. 185, at 18. This 18 is immaterial, as the Defendants did not argue that Mr. Cronk was 19 disruptive at such meetings or that disruptive behavior supported the 20 notices of trespass. Regardless, Chief McElroy did testify that Mr. 21 Cronk “would become agitated and frustrated” at city council meeting. 22 ECF No. 183, at 68. 23 Based on the above statements and the testimony of other witnesses, 24 it is clear that there was substantial evidence to support a finding 25 that Mr. Cronk was reasonably trespassed based on threats he had made 26 and the perception that Mr. Cronk presented a legitimate and imminent ORDER - 13 1 threat to city staff. The jury’s verdict is supported by the weight of 2 the evidence presented at trial. 3 III. Conclusion 4 For the above reasons, the Court concludes that Mr. Cronk is not 5 entitled to a new trial because the verdict is not against the weight 6 of the evidence and the trial was fair. Mr. Cronk was not prejudiced by 7 any variation in Mayor Noski and Chief McElroy’s deposition and trial 8 testimony, and there is no evidence that Mayor Noski and Chief McElroy 9 committed perjury. In addition, the Court did not err by failing to 10 perform a facial challenge to the notices of trespass under the First 11 and Fourteenth Amendments or by failing to assess the validity of the 12 notices under local or state law. The Court also finds that the jury 13 instructions were not erroneous and that Plaintiff has waived any 14 argument to the contrary. The verdict in this case is based upon 15 substantial evidence presented at trial and, therefore, allowing the 16 verdict to stand will not result in a miscarriage of justice. 17 18 19 20 21 Accordingly, IT IS HEREBY ORDERED: Plaintiff Cronk’s Motion for New Trial, ECF No. 185, is DENIED. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 28th day of September 2016. 22 23 __________________s/Edward F. Shea______________________ EDWARD F. SHEA Senior United States District Judge 24 25 26 Q:\CMECF_Intake\ORDERS\15cv5041.efs-9-28.docx ORDER - 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
