ANNA J. BROWN, District Judge.
This matter comes before the Court on Defendants' Motion (#29) for Summary Judgment. For the reasons that follow, the Court
On November 11, 2010, Plaintiffs filed their original Complaint on behalf of themselves and a class of those similarly situated alleging they were unlawfully arrested for drunk driving as a part of a pattern and practice of the City of McMinnville and its police department to detain, charge, and arrest suspected drunk drivers without legal justification.
On March 10, 2011, Plaintiffs filed their Amended Complaint.
On March 24, 2011, Defendants moved to dismiss the Amended Complaint or, in the alternative, to deny class certification. At a hearing on July 15, 2011, the Court granted the Motion to Dismiss as set out on the record but permitted Plaintiffs to replead.
Plaintiffs filed their Second Amended Complaint on July 29, 2011, in which Plaintiffs each assert three claims: (1) violation of their Fourth Amendment rights pursuant to 42 U.S.C. § 1983 against the respective arresting officers individually and against the City of McMinnville and Police Chief Noble in his individual and official capacities pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978); (2) common-law unlawful arrest against the City of McMinnville; and (3) common-law negligence against the City of McMinnville. Plaintiffs did not repeat their class-based allegations in their Second Amended Complaint and confirmed at the hearing on December 15, 2011, that they had withdrawn all class-based claims without prejudice.
On May 24, 2012, Defendants filed their Motion for Summary Judgment as to each of Plaintiffs' claims. At oral argument on May 21, 2012, Plaintiffs conceded their Monell claims against the City of McMinnville and against Chief Noble.
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9
An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9
A mere disagreement about a material issue of fact, however, does not preclude summary judgment. Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir. 1990). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." Wong v. Regents of Univ. of Cal., 379 F.3d 1097 (9
The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9
Defendants move for summary judgment as to each of Plaintiffs' claims and, accordingly, request the Court to dismiss Plaintiffs' Second Amended Complaint in its entirety.
In their Reply Defendants object to Plaintiffs' Exhibit 1, a DVD of Officer Christensen's deposition testimony submitted in opposition to Defendants' Motion for Summary Judgment, on the grounds that: (1) Plaintiffs did not authenticate the DVD, (2) Plaintiffs did not provide Defendants with a copy of the DVD, and (3) Plaintiffs did not properly authenticate the deposition testimony.
At the hearing on May 21, 2012, the Court heard argument on Defendants' objections to Plaintiffs' Exhibit 1 and denied Defendants' objections as moot for the reasons stated on the record at the hearing.
Defendants also object to Plaintiffs' Exhibit 4, a letter from Plaintiff Fuller's former criminal defense counsel to the McMinnville District Attorney, and Plaintiffs' Exhibit 5, the criminal defense counsel's draft motion to suppress, on the grounds that these Exhibits are not admissible evidence and are not based on any justiciable facts (i.e., these Exhibits are essentially Fuller's former criminal counsel's argument). At the hearing on May 21, 2012, the Court sustained Defendants' objections to Exhibits 4 and 5, but the Court permitted Plaintiffs' counsel to make the same or similar legal arguments as posed in Exhibits 4 and 5.
As noted, Plaintiffs confirmed at oral argument on May 21, 2012, that they concede Defendants' Motion as to the Monell claims against the City of McMinnville and Chief Noble, and, therefore, the Motion is granted to that extent.
With respect to the balance of their Motion, Defendants assert the parties' Joint Statement of Agreed Facts does not leave any triable issues for a jury to resolve and, based on those Agreed Fats, Defendants contend Plaintiffs' remaining § 1983 claims for unlawful arrest in violation of their Fourth Amendment rights should be resolved against Plaintiffs as a matter of law.
Under the Fourth Amendment "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250 (1991)(citations omitted).
An officer may stop a citizen if there is reasonable suspicion that he has committed or will commit a crime. Terry v. Ohio, 392 U.S. 1 (1968). "Reasonable suspicion is formed by 'specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.'" United States v. Dorais, 241 F.3d 1124, 1130 (9
A warrantless arrest is lawful only if there is "probable cause to believe that the arrestee has committed, or is committing, an offense." Torres v. City of Los Angeles, 548 F.3d 1197, 1207 n.7 (9
In Morgan v. Woessner the Ninth Circuit noted "stops" of individuals fall into three categories under the Fourth Amendment:
997 F.2d 1244, 1252 (9
State of Oregon v. Rodgers, 347 Or. 610, 621 (2010).
The following facts are taken from the parties' Joint Statement of Agreed Facts. The observations made by the officers that are set out below have been agreed to by the parties and are undisputed unless otherwise noted.
On November 21, 2008, at approximately 7:36 p.m., police received a 911 report during which the caller stated that "an older white Ford vehicle, license plate number 052QWE, was swerving into oncoming traffic as it headed southbound on Highway 47 from Carlton." Deputy Russell Meade of the Yamhill County Sheriff's office responded to the dispatch 911 call about a possible intoxicated driver, spotted the described vehicle, and "observed the described vehicle swerve about a foot over the center dividing line as it crossed a bridge near the north end of McMinnville." Deputy Meade also "observed the described vehicle swerve to the right side of the road toward the fog line and then swerve back over the center lane again about a foot."
Deputy Meade initiated a traffic stop on the described vehicle, which was driven by Anderson, and asked Anderson to provide his license, registration, and proof of insurance. Deputy Meade observed Anderson "had difficulty finding his driver's license," and he "passed over [it] twice" while searching. Deputy Meade also observed "Anderson's eyes were bloodshot and glassy," his "speech was slurred," and "detected an odor of alcohol coming from inside Mr. Anderson's vehicle." Anderson told Deputy Meade that he had consumed three beers with dinner prior to being stopped by Deputy Meade. Anderson does not know whether his eyes were bloodshot when Deputy Meade pulled him over.
Officer Jonathan Summers also responded to the 911 call involving Anderson, and he also "detected the odor of alcohol coming from either Mr. Anderson or Mr. Anderson's vehicle" and heard Anderson admit to consuming three beers with dinner. "Anderson agrees that the odor of alcohol from him was due to the alcohol he had consumed at Wilson's Sports Bar."
When Officer Summers asked Anderson whether he would voluntarily consent to the National Traffic Highway Safety Administration (NTHSA) Standard Field Sobriety Tests (SFST), Anderson consented. Anderson, however, failed numerous aspects of the SFST; for example, he stepped out of line multiple times, missed several heel-to-toe walking steps, and raised his arms for balance during the Walk-and-Turn test; he placed his foot on the ground for balance several times, only maintained his balance for approximately three seconds, and took extra steps to maintain his balance when placing his foot on the ground during the One-Leg Stand test; and he swayed during both tests.
Officer Summers also asked for and received Anderson's consent to perform the Horizontal Gaze Nystagmus (HGN) test, which revealed Anderson's lack of smooth pursuit in each eye.
Officer Summers arrested Anderson for Driving While under the Influence of Intoxicants (DUII) in violation of Oregon law and transported him to the jail where Anderson was subjected to a Breathalyzer test that revealed a .05% Blood Alcohol Content (BAC). Based on Officer Summers's experience, however, Anderson's blood alcohol level was not consistent with his performance on the field sobriety tests.
Officer Summers, therefore, requested Anderson to complete a Drug Recognition Exam (DRE), and Oregon State Police Senior Trooper Randy Ogle performed the DRE. Anderson told Trooper Ogle that he may have had three or four beers before being pulled over, and Trooper Ogle detected a slight odor of alcohol coming from Anderson's breath during the DRE exam.
Trooper Ogle asked Anderson to perform the One-Leg Stand and Walk-and-Turn tests during the DRE exam. Anderson stepped off the line between his fourth and fifth steps during the first series of nine steps of the Walk-and-Turn test. Anderson swayed and put his right foot down four times and his left foot down once during the One-Leg Stand test.
Although Trooper Ogle determined Anderson was not under the influence of a controlled substance, he agreed Anderson, nevertheless, exhibited signs of impairment. Officer Summers cited Anderson for DUII.
On December 28, 2008, at approximately 2:28 a.m., Officer William Christensen "observed the Jeep drift to the right, about two feet into the right lane of northbound Baker Street." Fuller "acknowledges that his vehicle crossed over the left and right lanes of Baker Street, without signaling, on December 28, 2008 prior to being pulled over by Officer Christensen" but contends "he crossed over the left and right lanes of Baker Street on December 28, 2008 to avoid snow and ice."
Fuller had two passengers in his vehicle at the time he was stopped and stated he was acting as their designated driver. Christensen asked for Fuller's identification, proof of insurance, and registration. Fuller gave Christensen his driver's license and proof of insurance, but he did not provide Officer Christensen with his vehicle registration until Christensen repeated his request.
Officer Christensen noted and Fuller acknowledges "a strong odor of alcohol coming from . . . his vehicle." Christensen also detected a "moderate odor of alcohol from Mr. Fuller's breath." Fuller told Officer Christensen that the odor of alcohol might be from the passengers in his vehicle. Officer Christensen observed "Fuller's eyes were bloodshot." Although Fuller testified in his deposition that he does not know if his eyes were bloodshot, he denied they were bloodshot in his response to Defendants' Request for Admissions.
Officer Christensen also observed "Fuller's movements and speech [at the scene] were slow" and that he "frequently faced forward while talking with Officer Christensen." Moreover, Fuller admits he smoked marijuana twice on the day of the incident before being pulled over by Officer Christensen, but Fuller denies consuming any alcohol that day.
Officer Christensen asked Fuller to exit his vehicle and sought and obtained Fuller's voluntary consent to the SFST. The HGN test revealed six clues of impairment. During the Walk-and-Turn test, Fuller's second step in the second set of nine steps was off the line. When Fuller began the One-Leg Stand test, he lifted his left foot and immediately swayed before putting his foot down.
Officer Christensen arrested Fuller and took him into custody for DUII. Although Fuller refused to take the Intoxilyzer test at the Yamhill County Jail, he was cited for Failure to Maintain Lane, Failure to Obey Traffic Control Signal, Refusing Breath Test, and DUII.
Defendants maintain the Joint Statement of Agreed Facts establishes there was a fair probability that both Plaintiffs committed the crime of driving under the influence of intoxicants, and, therefore, all of Plaintiffs' claims fail.
Under Oregon law:
Or. Rev. Stat. § 813.010(1). A person is "under the influence" when his physical or mental faculties are adversely affected to a noticeable or perceptible degree by the use of intoxicating liquor and/or a controlled substance. See State v. Gaylor, 19 Or.App. 154, 164 (1974). See also State v. Eumana-Moranchel, 352 Or. 1, 7-8 (2012).
At oral argument on May 21, 2012, Anderson conceded the initial traffic stop by Deputy Meade was lawful. Anderson, however, contends his arrest was not lawful because it was not supported by probable cause. Specifically, on the basis of the Breathalyzer test that showed Anderson had a BAC below .08% and the DRE examination that did not reveal Anderson was under the influence of any controlled substances, Anderson contends there was not any probable cause to arrest or to charge him with DUII.
Defendants contend the totality of the circumstances surrounding Anderson's arrest as set out in the Joint Statement of Agreed Facts establishes there was a fair probability that Anderson had committed the crime of driving while under the influence of intoxicants under Oregon law. Defendants cite State v. Gilmour in which the Oregon Court of Appeals found probable cause for an arrest based on the following set of circumstances:
136 Or.App. 294, 299-300 (1995).
Here Deputy Meade made very similar observations about Anderson (bloodshot eyes, slurred speech, odor of alcohol) and, in addition, Deputy Meade witnessed Anderson's vehicle swerving across the center line while responding to a 911 call that reported a vehicle matching Anderson's had been swerving into oncoming traffic. Both Deputy Meade and Officer Summers noted Anderson admitted he had recently consumed alcohol. Officer Christensen also noted Anderson's difficulty retrieving his license. Finally, the field sobriety tests performed on Anderson by Officer Summers revealed numerous indicia of drunkenness.
The fact that Anderson's Breathalyzer test revealed a BAC below .08% does not undermine the validity of his arrest under Oregon law, which, as noted, requires only that the driver's mental or physical faculties be impaired to a noticeable degree. Or. Rev. Stat. § 813.010(b). Furthermore, the results of the Breathalyzer and DRE tests were not available to the officers at the time of Anderson's arrest and, therefore, do not undermine an objective conclusion that there was a fair probability Anderson was impaired.
On these facts the Court concludes as a matter of law that there was probable cause to arrest Anderson for driving under the influence of intoxicants in violation of Oregon law. Accordingly, the Court concludes there is not any basis on which a reasonable juror might conclude Anderson's arrest was in violation of his Fourth Amendment rights.
Fuller appears to challenge the legal basis for both his initial traffic stop and his arrest as unconstitutional under the Fourth Amendment.
As noted, an officer may lawfully stop a person based on his reasonable suspicion that the person has committed a crime. Here Fuller concedes he pulled the rear wheels of his Jeep past the stop line painted in the roadway at a red-light intersection just before Christensen initiated the stop.
With respect to Fuller's contention that there was not probable cause to arrest him, Defendants rely on the following facts from Officer Christensen's observations to support a probable-cause finding: Fuller swerved while driving, he stopped beyond the intersection stop line, he required repeat instructions to produce his registration, both he and his vehicle smelled of alcohol, he had bloodshot eyes, his movements and speech were slow, and he faced forward frequently while addressing Officer Christensen. On the basis of these observations, Officer Christensen asked Fuller to submit to a battery of field sobriety tests, which Fuller indisputably failed and which led to his arrest for DUII.
Fuller, nevertheless, contends there were not sufficient signs of impairment to give rise to probable cause to arrest him. He contends Officer Christensen's observation of Fuller as "lethargic" with "slow speech" and "bloodshot eyes" is consistent with someone who is tired at 2:30 a.m. Fuller also maintains the smell of alcohol emanating from his vehicle came from the two friends he had been called to pick up from the bar and reiterates that Fuller told Christensen that he had not had anything to drink. Despite Fuller's interpretation of Officer Christensen's observations, a traffic infraction, bloodshot eyes, the odor of alcohol, and lethargic movement and speech are sufficient in combination to establish probable cause to believe that Fuller was intoxicated, particularly in light of the hour and the fact that Fuller admitted he had been at a bar. See Gilmour, 136 Or. App. at 299-300. In Gilmour the defendant asserted exculpatory facts to support his position such as a lack of slurred speech and the ability to retrieve his license without difficulty. Id. Nevertheless,
Id. at 300 (emphasis in original).
Based on observations similar to those of the officer in Gilmour, Officer Christensen requested and received Fuller's consent to field sobriety tests, which indisputably revealed additional numerous indicia of intoxication.
Finally, Fuller challenges Officer Christensen's authority to arrest him based on a public policy argument that supports using designated drivers to assist passengers who have been drinking. The Court notes Fuller did not cite in his briefs or at oral argument nor is the Court aware of any authority suggesting the sort of "Good Samaritan" exception that Fuller appears to be invoking. Although Fuller's assertion to Officer Christensen that he was serving as a designated driver for his passengers is an explanation as to why he was driving, Fuller's assertion does not in itself undermine Christensen's observations that supported his assessment that Fuller was "under the influence" of alcohol.
On these facts the Court concludes as a matter of law that Officer Christensen`s stop of Fuller was supported by "reasonable suspicion" and that Officer Christensen also had probable cause to believe there was a "fair probability" that Fuller was driving under the influence of intoxicants. Accordingly, the Court concludes there are not any genuine issues of material fact on which a reasonable juror could conclude the stop or arrest of Fuller violated his Fourth Amendment rights.
Even if Officers Summers and Christensen had violated Plaintiffs' constitutional rights, Defendants contend the officers are entitled to qualified immunity.
"Generally officers performing discretionary duties have qualified immunity, which shields them `from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.'" Haynie v. County of Los Angeles, 339 F.3d 1071, 1077 (9th Cir. 2003)(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).
The Ninth Circuit set out the relevant analysis in Skoog v. County of Clackamas:
469 F.3d 1221, 1229 (9th Cir. 2006)(footnotes omitted)(citing Saucier v. Katz, 533 U.S. 194, 201-02 (2001)).
At step one of the analysis, "[a] Government official's conduct violates clearly established law when, at the time of the challenged conduct, `[t]he contours of [a] right [are] sufficiently clear' that every `reasonable official would have understood that what he is doing violates that right.'" Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011)(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Defendants contend the officers are entitled to qualified immunity because they reasonably believed their conduct did not violate Plaintiffs' constitutional rights. See Skoog 469 F.3d at 1229. Defendants emphasize Officers Summers and Christensen are entitled to qualified immunity unless their purported violations of Plaintiffs' rights were so clear that "every reasonable official" would know such actions violate those rights.
Without much explanation, however, Plaintiffs contend the arresting officers disregarded clearly-established probable-cause requirements and, therefore, violated Plaintiffs' constitutional rights.
Because the Court has found on this record that Defendants did not violate Plaintiffs' Fourth Amendment rights, the Court concludes it is not necessary to resolve Defendants' qualified immunity defense.
Plaintiffs also assert a common-law claim of false arrest against the City of McMinnville.
Under Oregon law "the tort [of false arrest] has four elements: (1) defendant must confine plaintiff; (2) defendant must intend the act that causes the confinement; (3) plaintiff must be aware of the confinement; and (4) the confinement must be unlawful." Hiber v. Creditors Coll. Serv. Of Lincoln County, Inc., 154 Or.App. 408, 413 (citing Lukas v. J.C. Penney Co., 233 Or. 345, 353 (1963), and Walker v. City of Portland, 71 Or.App. 693, 697 (1985)). As noted, a warrantless arrest must be supported by probable cause to believe the arrestee has committed a crime.
Only the fourth element of Plaintiffs' false-arrest claim is at issue here. Because the Court has already determined the officers had probable cause to arrest Plaintiffs and there is not any other basis on which to conclude that those arrests were otherwise unlawful, the Court concludes as a matter of law that Plaintiffs' claims for false arrest fail.
Plaintiffs also bring negligence claims against the City of McMinnville exclusively based on the actions of the City's police officers in arresting Plaintiffs and on general allegations that the City failed to appropriately train and to discipline its officers. See Second Am. Compl. at ¶¶ 49-56.
A person is negligent when that person performs an act that a reasonably careful person would not do or fails to do something that a reasonably careful person would do under similar circumstances. Whether a party used reasonable care is determined in light of the dangers apparent or reasonably foreseeable when the events occurred rather than in light of subsequent events. See Kirby v. Sonville, 286 Or. 339, 344-345 (1979). See also White v. Milner Hotels, Inc., 267 Or. 628, 632-36 (1974).
In addition to the foregoing, the following relevant facts are taken from the parties' Joint Statement of Agreed Facts:
Plaintiffs do not have any knowledge as to the type of training members of the McMinnville Police Department receive related to either DUII or impaired driving, and Plaintiffs do not have any evidence admissible at trial that the City of McMinnville failed to administer timely and appropriate training to any of its officers at any time within the past ten years. Plaintiffs also do not have any evidence admissible at trial that the City of McMinnville has failed to administer timely and appropriate discipline or failed to discipline officers who arrested or stopped a citizen without reasonable suspicion or probable cause.
Plaintiffs' negligence claims appear to be based both on the particular arrests of Fuller and Anderson and also on a litany of alleged general failures by the City to appropriately train and to discipline officers, to supervise and to review the actions of its officers, and to review and to investigate DUII policies and practices. The grounds for Plaintiffs' negligence claims are not entirely clear even though the Court provided Plaintiffs with an opportunity to clarify those claims at oral argument. Plaintiffs allege in their Second Amended Complaint that the City, through the actions and omissions of Officers Summers and Christensen, was negligent as follows: (1) by arresting Plaintiffs without probable cause, (2) by failing to release Plaintiffs after failing to obtain BAC tests or DRE exams that demonstrated Plaintiffs were intoxicated, (3) by issuing citations to Plaintiffs for DUII without BAC or DRE results to support the citations, (4) by failing to utilize and to apply the training they received for detecting impaired drivers and for the administration of the SFST, and (5) by failing to comply with the McMinnville Police Department's General Orders. Plaintiffs also allege the City failed to maintain the sufficient competency of their officers to perform their duties. Plaintiffs, however, do not set out the standard of care applicable to their theories nor do they provide any analysis of what a "reasonably careful" city would do under these circumstances that the City of McMinnville did not do. In their Response to Defendants' Motion for Summary Judgment, Plaintiffs merely repeat their allegations from the Second Amended Complaint and do not point to any evidence that would support their claims.
As noted, the Court has already determined Officers Summers and Christensen had probable cause to arrest Plaintiffs. To the extent that Plaintiffs contend the duration of their arrests somehow constitutes negligence on the part of the City of McMinnville, Plaintiffs have not cited any authority for such a claim nor pointed to any facts that would support such a claim. Moreover, Plaintiffs have not offered any legal basis for concluding that the charges or citations were unlawful or otherwise negligent. As noted, for example, Defendants are not required to show that Plaintiffs had a BAC above .08% or to provide the conclusion of a DRE officer to support their charge of DUII under Oregon law. Finally, Plaintiffs concede they do not have any evidence to support their claims of negligence based on training and discipline by the City.
Accordingly, the Court concludes there is not a genuine issue of material fact in dispute as to Plaintiffs' negligence claims and that a reasonable juror could not find in favor of Plaintiffs on this record.
Having already held each of Plaintiffs' foregoing claims are insufficient as a matter of law, the Court concludes there is not any basis for Plaintiffs to pursue a claim for punitive damages in this matter.
In summary, the Court concludes on this record that each of Plaintiffs' claims fail as a matter of law and, therefore, should be dismissed.
For these reasons, the Court
IT IS SO ORDERED.
