United States District Court, D. Oregon
ALAN J. GALLOWAY, TIMOTHY M. CUNNINGHAM, Davis Wright Tremaine, LLP, Portland, OR, CHARLES J. PATERNOSTER, Parsons Farnell & Grein, LLP, Portland, OR, Attorneys for Plaintiff.
ROBERT S. WAGNER, DAVID C. LEWIS, Miller & Wagner, LLP, Portland, OR, Attorneys for Defendants City of Portland, City of Gresham, Tri-County Metropolitan Transportation District of Oregon, and Officer Taylor Letsis.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
This matter comes before the Court on the Motion (#23) to Dismiss filed by Defendant Tri-County Metropolitan Transportation District of Oregon (TriMet). The Court heard oral argument on the Motion on June 19, 2015, and took the matter under advisement at the conclusion of that hearing. For the reasons that follow, the Court DENIES TriMet's Motion.
The following facts are taken from Plaintiff's Complaint (#1) and documents referenced therein and are assumed to be true for purposes of this Motion only:
Plaintiff describes herself as a "camera of accountability" who has reported on the internet about various topics ranging from a bicycle accident to an incident in which a Portland high-school student was pepper-sprayed to the Occupy Portland protests.
I. February 12, 2013, Incident
While riding on a bus in downtown Portland on February 12, 2013, Plaintiff observed police arresting an individual "rather roughly" on a sidewalk. Plaintiff left the bus and began broadcasting the arrest live over the internet using her smartphone and Ustream, an online, real-time, video-streaming application.
When Plaintiff began to broadcast video of the arrest, there were police officers on scene and the suspect was already in custody. One of the officers, Defendant Officer Taylor Letsis, is an employee of the Gresham Police Department who was working that day as a member of TriMet's Transit Police.
Throughout the time that Plaintiff broadcasted the arrest, Plaintiff did not interfere with any police activities or cross any police line. Officer Letsis approached Plaintiff after she had been broadcasting for nearly four minutes. He asked to see the video that she had been broadcasting to determine whether it recorded any evidence of a crime. After Plaintiff initially declined to show the video to Officer Letsis and explained she only began broadcasting after the suspect was in custody, Officer Letsis informed her that permitting him to watch the video was "not a choice" and that Plaintiff could either show the video to him or he would seize her smartphone. After Plaintiff insisted she would not show the video to Officer Letsis without a subpoena, Officer Letsis grabbed the smartphone from Plaintiff's hands, which resulted in termination of the live video broadcast.
After seizing the smartphone, Officer Letsis grabbed Plaintiff's wrist and jacket cuff, twisted Plaintiff's arm, and instructed Plaintiff to "stop resisting." Another officer (Defendant Unknown Officer No. 1) approached Plaintiff and Officer Letsis. Officer Letsis continued to grip Plaintiff's arm for approximately 20 seconds before he released her.
Because the broadcast had been terminated, the Ustream application prompted the smartphone user to determine whether to "archive" the video. Officer Letsis appeared poised to press the "No" button (which would have resulted in the broadcast being deleted), but Plaintiff protested. Officer Letsis then archived the video and followed Plaintiff's instructions to have it posted on Facebook, Twitter, and YouTube websites.
After the video had been archived on Ustream, Office Letsis handed the smartphone to Plaintiff and ordered her to show him the video. Plaintiff located the video on Ustream's public website and pressed "play." Officer Letsis then grabbed the smartphone again from Plaintiff's hands.
After Officer Letsis viewed the video for approximately ten seconds, Plaintiff asked if she was free to leave. Officer Letsis responded she was not. While still holding Plaintiff's smartphone, Officer Letsis told Plaintiff that he could take her smartphone at any time and warned Plaintiff that her phone could be seized if she did not comply with future demands by police to view video.
Officer Letsis then returned the smartphone to Plaintiff and informed her that she was free to go. Plaintiff recorded a follow-up segment that spanned approximately four minutes and 48 seconds.
Approximately three days later on February 15, 2013, a local television station published a report on the incident in which Gresham police spokesman Claudio Grandjean stated: "[Officer Letsis] wasn't doing something illegal. Now, was he inappropriate, or... a little rough, or officious or whatever? We can look at that, but that's not nearly as important as was he doing something illegal."
On March 5, 2013, Gresham Police Chief Craig Junginger issued a memorandum to all Gresham police officers at least in part in response to the February 12, 2013, incident. In the memorandum he stated he "support[s] the reasonable actions of officers to seize cell phones when there is probable cause to believe the recording contains evidence of a crime and there are exigent circumstances to seize the cell phone to prevent the destruction or loss of the evidence, " but he advised he "highly ...