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Miller v. City of Portland

United States District Court, Ninth Circuit

January 29, 2014

SCOTT MILLER, Plaintiff,
CITY OF PORTLAND, a municipal corporation, DEAN HALLEY, personally, and MICHAEL REESE, personally, Defendants.


MICHAEL W. MOSMAN, District Judge.

The parties filed cross motions for summary judgment in this suit for wrongful arrest, excessive force, negligence, and battery. Magistrate Judge Jelderks issued his Findings and Recommendation ("F&R") [49], recommending that Plaintiff's Motion for Summary Judgment [32] be DENIED in full and that Defendants' Motion for Partial Summary Judgment [36] be GRANTED in part and DENIED in part. Plaintiff objected to the F&R.[1] I GRANT Defendants' Motion for Summary Judgment [36] and DENY Plaintiff's Motion for Summary Judgment [32].


Around seven o'clock in the morning on June 22, 2011, Scott Miller, on his way to work, was walking toward a bus stop located on the east side of Southwest Second Avenue, near its intersection with Southwest Madison Street. (Miller Decl. [34] ¶ 2.) Second Avenue runs one-way north through downtown Portland.

Mr. Miller was walking north on Second Ave., and needed to cross the street in order to reach this bus stop. ( Id. ¶ 2; Miller Depo. [41-1] at 31:11-18.) While walking north on Second Avenue, Mr. Miller noticed a police officer-Defendant Halley-standing on the southwest corner of Second and Madison talking with another person. (Miller Depo. [41-1] at 33:7-11, 34:8-23.)

As Mr. Miller approached Madison Street, he thought he saw his bus approaching "from the corner of [his] eye." (Miller Decl. [34] ¶ 2.) He explains that this is why he "jaywalked" across the street towards the bus stop. Id. After the last oncoming traffic on Second Avenue passed, Mr. Miller "ran across" the street in the middle of the block. (Miller Depo. [41-1] at 29:7-10.) He acknowledges that he was never within a crosswalk. Id. at 29:17-21.

Ultimately, Mr. Miller was cited for and convicted of the traffic violation of failure to obey a traffic control device. Id. at 29:22-30:11. He has paid the fine associated with the conviction and does not dispute his liability for the offense. Id. at 30:12-31:4. This opinion addresses Mr. Miller's claim for wrongful arrest under the Fourth Amendment, which arises from the circumstances surrounding this jaywalking offense. He has brought suit against City of Portland Police Officer Dean Halley, the officer who Mr. Miller had noticed standing at the corner of Second and Madison and who observed him committing the jaywalking offense.

I. Mr. Miller's Interaction with Officer Halley

Defendant Officer Halley and Mr. Miller do not disagree on the basic facts surrounding their interaction on the morning of June 22, but they submit different characterizations of their own and each other's demeanor during the interaction. The F&R [49] provides a thorough summary of the facts as set out by both parties, which I adopt as an accurate summary of the parties' respective positions. (F&R [49] 2-7.) I thus discuss only those facts of particular relevance to the Fourth Amendment wrongful arrest claim here.

Both parties agree that Officer Halley noticed Mr. Miller while he was jaywalking across the street and called out "Sir!" to get his attention. (Halley Decl. [38] ¶ 7; Miller Decl. [34] ¶ 3.) Both parties agree that Mr. Miller did not respond. (Halley Decl. [38] ¶ 7; Miller Decl. [34] ¶ 3.) Officer Halley attests that "Miller appeared to ignore me, and continued walking across the street." (Halley Decl. [38] ¶ 7.) Mr. Miller explains that he ignored this call because he "assumed" the person calling to him was "a panhandler asking me for money." (Miller Decl. [34] ¶ 3.)

Officer Halley attests that as soon as the pedestrian signal for the crosswalk across Second Avenue changed, he walked "quickly" across the street towards Mr. Miller (who was now standing near the bus stop.) (Halley Decl. [46] ¶ 4.) He explains that he "intended to remind Miller not to jaywalk, especially in front of a police officer." (Halley Decl. [38] ¶ 8.) However, he attests that he "immediately knew Mr. Miller was jaywalking and had committed the offense of failing to obey a pedestrian signal." Id. ¶ 7. Officer Halley called out "Sir!" a second time. (Miller Decl. [34] ¶ 3.) Officer Halley attests that Mr. Miller continued to face away from him, while Mr. Miller explains that he "stopped and turned around" when he heard this second call. (Halley Decl. [46] ¶¶ 4-5; Miller Decl. [34] ¶ 3; Miller Depo. [41-1] at 39:10-22.)

Officer Halley approached Mr. Miller and asked for his identification. (Miller Depo. [41-1] at 40:18-19; Miller Decl. [34] ¶ 3.) Defendants' position is that Mr. Miller responded sarcastically to Officer Halley, refusing to turn and face him while saying "Are you going to hurt me?" in a "sarcastic tone of voice." (Halley Decl. [46] ¶ 5.) Officer Halley then told Mr. Miller that he was stopping him for jaywalking and asked for his identification, to which Mr. Miller responded "Why?" in "a belligerent tone of voice with his torso facing away from [Officer Halley]." Id. ¶ 6. Officer Halley attests that he "became concerned that Miller might try and flee." Id. ¶ 9. He thus instructed Mr. Miller to put his hands on top of his head, intending to handcuff him while investigating the traffic violation. Id. However, he explains, Mr. Miller did not comply with the command to place his hands on his head. Id.

Officer Halley then "took hold of" Miller's wrist to handcuff him. Officer Halley attests that Mr. Miller "spun around quickly... in an aggressive manner" to face Officer Halley. Id. He explains that he then decided to "take Mr. Miller to the ground to better control his actions and to complete the handcuffing" and so he "got" Mr. Miller "off balance" and "guided him to the sidewalk." Id. ¶ 10.

Mr. Miller does not dispute that he initially ignored Officer Halley and that he said "Are you going to hurt me?, " but he describes the situation very differently. He contends that he was facing Officer Halley when he said "are you going to hurt me?" and that he asked this question because he was genuinely "scared" that Officer Halley might use "disproportional violence." (Miller Depo. [41-1] at 45:18-25.) He attests that he was in the act of reaching for his identification, intending to hand it to Officer Halley, when Officer Halley grabbed his arm to handcuff him. (Miller Decl. [34] ¶ 4.) According to Mr. Miller, Officer Halley "pushed [him] to the ground by kicking at the backs of [his knees], " and Mr. Miller "was thrown to the ground on [his] stomach." (Miller Decl. [34] ¶ 5; Miller Depo. [41-2] at 57:6.) He attests that Officer Halley "knocked" the ID onto the ground while handcuffing him.[2] (Miller Decl. [34] ¶ 5.) It is uncontested that Officer Halley ordered Mr. Miller to place his hands on his head and that Mr. Miller did not comply.

A squad car driven by another officer arrived, and Mr. Miller was placed in the car and driven around the block to the front of the police station.[3] (Halley Decl. [46] ¶ 14; Miller Decl. [34] ¶¶ 7-8.) He was never "booked" or even taken inside the station, but instead was issued a citation for the traffic violation and released. (Halley Decl. [46] ¶ 14; Miller Dep. [41-2] at 75:23-77:7, 83:6-17.) As noted, Mr. Miller was subsequently convicted of the jaywalking offense and has paid the fine assessed. (Miller Depo. [41-1] at 31:1-2.)

II. Mr. Miller's Claims

Mr. Miller brought suit on five claims arising from the events of June 22, 2011. Three claims, brought under 42 U.S.C. § 1983, are for violations of the Fourth Amendment: excessive force against Officer Halley, wrongful arrest against Officer Halley, and ratification of Officer Halley's conduct against the city and Chief of Police Michael Reese.[4] Two other claims against the city are for violations of state law: negligence, for "failing to administer violation training, " failing to "hire, train, and supervise employees regarding ticketing and investigating violation suspects safely, " and failing to "hire, train, and supervise employees regarding safe restraint of civilians;" and battery, under a respondeat superior theory. (Compl. [1] ¶¶ 27, 31-32.)

Mr. Miller has conceded his § 1983 claim against the City and Mr. Reese. (Pl.'s Mot. for Summary Judgment [32] at 1.) As such, Plaintiff's third ...

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