United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Plaintiff David Picray brings this action seeking damages for alleged violation of his rights under the First and Fourth Amendments as selectively incorporated by the Fourteenth Amendment Due Process Clause pursuant to 42 U.S.C. § 1983, and other tortious conduct under Oregon common law. Defendants filed this motion for summary judgment, ECF No. 24. This Court has jurisdiction under 28 U.S.C. §§ 1331 & 1367. Upon review, defendants' motion for summary judgment, ECF No. 24, is GRANTED IN PART and DENIED IN PART.
PROCEDURAL AND FACTUAL BACKGROUND
This action arises out of an alleged violative arrest and search warrant. On May 27, 2010, a third-party, Alexander Humphrey, contacted Benton County Sheriff's Dispatch to report that Picray was "videotaping [Humphrey] and taking multiple pictures of [Humphrey]" while driving on interstate highway 99. Decl. of Robert E. Franz, Jr. 2, ECF No. 27-2. During Humphrey's conversation with dispatch, Humphrey indicated that "[Picray] just hit the brakes while [Humphrey] was directly behind him. [Humphrey] almost rear-ended [Picray]." Id. at 6. Eventually Picray turned off of interstate highway 99, id. at 8, and Humphrey drove to Benton County Sheriff's Office to meet with Deputy Duffitt to give a statement, Decl. of Christopher Duffitt 2, ECF No. 26. Humphrey met with Duffitt at about 4:30 PM. Decl. of Robert E. Franz, Jr. 1, ECF No. 53-3. At that meeting, "Humphrey told [Duffitt]: when [Picray] slammed on his brakes, [Humphrey] was in fear of serious injury.'" Decl. of Christopher Duffitt 3, ECF No. 26.
After Humphrey left, Duffitt went to the Courthouse and conferred with Deputy District Attorney Karen Stanley. Id. at 3. Stanley informed Duffitt that probable cause existed to arrest Picray for Reckless Driving, ORS § 811.140 (2013), and Recklessly Endangering Another Person, ORS § 163.195 (2013). Id. Duffitt then contacted Humphrey and asked him to return to the Sheriff's Office for photographic identification. Id. at 4. Humphrey returned and then identified Picray as the other driver. Id.
After the photographic identification, Lieutenant Ridler informed Duffitt and Deputy Hardison that Picray was at the intersection of Third and Van Buren, Corvallis, Oregon. Decl. of Robert E. Franz, Jr. 5, 7, ECF No. 53-3. Duffitt and Hardison met up with Ridler and then made contact with Picray at the intersection of Fourth and Van Buren, near the Benton County courthouse. Id .; see also Decl. of Greg Ridler 2, ECF No. 28 (indicating that Ridler observed Picray's arrest). Importantly, both Duffitt and Ridler had previously interacted with Picray in January 2010. Decl. of David E. Picray 5, ECF No. 45. At the time of contact, Picray was picketing "police misconduct in Benton County." Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. 2, ECF No. 43. Duffitt and Hardison arrested Picray without warrant after he admitted being the other driver. Decl. of Christopher Duffitt 5, ECF No. 26; see also Decl. of David E. Picray 5, ECF No. 45. Duffitt, Hardison and Ridler then secured Picray's picket sign in the trunk of one of the police vehicles. Decl. of Christopher Duffitt 5, ECF No. 26. Picray was subsequently booked and released the same day. Decl. of David E. Picray 5, ECF No. 45.
On or about May 29, 2010, Picray visited Police Chief Justin Jones of the Adair Village Police Department. Decl. of David E. Picray 5-6, ECF No. 45; see also Decl. of Robert E. Franz, Jr. 7-8, ECF No. 53-6 (indicating that Picray and Jones met on June 4, 2010). During that visit, Picray showed Jones two photographs and a DVD copy of the video taken during Picray's altercation with Humphrey. Decl. of David E. Picray 6, ECF No. 45; Decl. of Robert E. Franz, Jr. 8, ECF No. 53-6. On or about June 9, 2010, Duffitt spoke with Jones via telephone about the photographs and DVD. Decl. of Robert E. Franz, Jr. 8, ECF No. 53-6; see also supra note 6-7.
On June 10, 2010, Benton County Circuit Judge David Connell issued two search warrants based on an affidavit submitted by Duffitt. Decl. of Christopher Duffitt 1-4, ECF No. 32-1 (search warrants); Decl. of Robert E. Franz, Jr. 1-11, ECF No. 53-6 (affidavit in support of search warrants). Both warrants authorized Benton County Police Officers:
TO SEARCH FOR, SEIZE AND FORENSICALLY ANALYZE; Cellular Phones inclusive of any images, videos, recordings, digital cameras, video recorders, computers including any computer hardware and computer software, Internet, Internet Sites, Multimedia devices including USB Drives, CD-R diskettes, Compact Disks, external and removable memory, and any printed pictures.
Decl. of Christopher Duffitt 1, 3, ECF No. 32-1. That evening, at about 8:45 PM, Duffitt and seven other officers went to Picray's residence to execute the search warrants. Aff. of David Force 8, ECF No. 44-4. The officers repeatedly knocked and shouted loudly "Sheriffs Office Search Warrant." See, e.g., Decl. of Robert E. Franz, Jr. 9, ECF No. 53-3; Decl. of David E. Picray 6, ECF No. 45 (indicating that there "was a rapid series of sudden and very loud knocks on [Picray's] front door, accompanied by shouting"). After waiting,  Bowers forced entry through the front door. Decl. of Robert E. Franz, Jr. 8, ECF No. 53-3. Upon entering, Picray was located in the hallway and subsequently handcuffed. Id. at 9. Ridler arrived at the scene after the other officers had entered Picray's home. Id. at 10; Decl. of Greg Ridler 2, ECF No. 28. Incident to execution of both warrants, defendants seized a variety of multimedia devices.
On August 12, 2010, Ridler sent an email to Picray informing Picray that "Criminal Charges [would] not be filed against [Picray]" and that Picray's property would be returned. Decl. of Gregory Ridler 1, ECF No. 28-1. Picray's property was released to the Adair Village Police Department and subsequently picked up by Picray on or about August 19, 2010. Decl. of David E. Picray 8, ECF No. 45 (indicating that Picray picked up his property "a few days" after August 12, 2010).
STANDARD OF REVIEW
The court must grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue of fact is genuine "if the evidence is such that a reasonably jury could return a verdict for the nonmoving party." Villiarimo v. Aloha I. Air., Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). This Court views the evidence in the light most favorable to the non-moving party. Allen v. City of L.A., 66 F.3d 1052, 1056 (9th Cir. 1995) (citing Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994)). If the moving party shows that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see Fed.R.Civ.P. 56(c).
Plaintiff, in his complaint, asserts: (1) Fourth Amendment violations pursuant to 42 U.S.C. § 1983; (2) First Amendment violations pursuant to 42 U.S.C. § 1983; and (3) other tortious conduct under Oregon common law. Defendants move for summary judgment as to all claims.
I. Plaintiff's Fourth Amendment Claim under 42 U.S.C. § 1983
Plaintiff, in his Fourth Amendment claim (#2), asserts multiple violations, including: (1) defendants unlawfully arrested plaintiff; (2) defendants obtained search warrants under false pretenses; and (3) defendants used excessive force in executing the search warrants. This Court addresses each argument in turn.
A. Plaintiff's Arrest
The Fourth Amendment protects persons against "unreasonable searches and seizures." U.S. CONST. amend. IV. "The reasonableness" of a warrantless arrest is determined by the existence of probable cause. Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir. 1995) (citations omitted). "Probable cause for a warrantless arrest arises when the facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe that the suspect has committed, is committing, or is about to commit an offense.'" Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (quoting Mich. v. DeFillippo, 443 U.S. 31, 37 (1979)).
Picray was arrested without warrant on May 27, 2010, for Reckless Driving, ORS § 811.140 (2013), and Recklessly Endangering Another Person, ORS § 163.195 (2013). Decl. of Christopher Duffitt 5, ECF No. 26; see also Decl. of David E. ...