United States District Court, D. Oregon, Medford Division
OPINION & ORDER
Michael McShane United States District Judge.
matter comes before the Court on Defendants' Motions for
Summary in Civil Nos. 1:16-cv-00012-MC and l:16-cv-00013-MC.
These cases are essentially identical. They share the same
Defendants, the same set of facts, common questions of law,
and the parties are represented by the same counsel in both
cases. Accordingly, the Court has determined that these cases
will be most efficiently resolved on a consolidated basis.
Court heard oral argument on August 16, 2018, at which time
the Court GRANTED the motions for summary judgment. This
Opinion and Order is to memorialize those rulings.
in these consolidated cases are Fernando Morales-Pena, Sr.,
and his son Fernando Morales, Jr. Plaintiffs lived together
in the City of Klamath Falls in Klamath County, Oregon.
Klamath County Animal Control ("KCAC") is a part of
the Klamath County Sheriffs Office and enforces animal
control laws. Klamath Defs. Ans. ECF No. 17. Defendant Gale
McMahon ("McMahon") is an Assistant County Code
Officer for Klamath County and a Special Deputy employed by
KCAC. Id; Warren Decl. Ex. 6, at 6. ECF No. 22.
Defendant City of Klamath Falls Police Department
("KFPD") is the municipal police department for the
City of Klamath Falls, Oregon. Klamath Defs. Ans. Collectively,
the Court will refer to these public Defendants as the
Klamath Humane Society ("KHS") is a non-profit
corporation operating in Klamath County, Oregon. KHS Ans. ECF
No. 15. KHS is not a governmental entity and has no ability
to set municipal, county, or state policy. Barks Decl. ECF
No. 24. KHS has a contractual relationship with the Klamath
County government, under which KHS agrees to house and care
for animals seized and taken into custody by KCAC.
The Investigation and Search
April 3, 2015, Katerina Sekavec contacted the police to
report that she suspected Morales Jr. was engaged in
cockfighting based on videos Morales Jr. had posted on
Facebook. Bergstrom Decl. ECF No. 20. KFPD Officer Kiley
Bergstrom was assigned to investigate Sekavec's
showed Bergstrom a series of three videos that Morales Jr.
had posted on his Facebook account. Bergstrom Decl. The
videos depicted roosters fighting and Morales Jr. was visible
in at least one of the videos. Id. Sekavec also
showed Bergstrom a Facebook text message conversation in
which Sekavec confronted Morales Jr. and accused him of
illegal cockfighting. Id. Morales Jr. replied that
the videos had been filmed in Mexico, after which Morales Jr.
deleted Sekavec from his Facebook friend list. Id.
Sekavec told Bergstrom that she did not believe that the
videos had been filmed in Mexico because she recognized the
Plaintiffs' residence in Klamath Falls in the background
of one of the videos. Id.
viewed the publically accessible portions of Morales
Jr.'s Facebook profile. From those portions of the
Facebook page, Bergstrom found pictures of Morales Jr. posing
with roosters at his residence in Klamath Falls. Bergstrom
Decl. Bergstrom also noted that Morales Jr. had
"liked" the Facebook pages of a number of
cockfighting groups. Id.
and KFPD Officer Kameron Gordon then went to Plaintiffs'
neighborhood. Bergstrom stood on a neighboring property with
a view of Plaintiffs' residence and confirmed that it was
Plaintiffs' house in the Facebook videos. Berstrom Decl.
Ex. 1, at 9-10. Bergstrom could also see chicken coops in
Plaintiffs' yard and could hear roosters crowing.
Id. Gordon interviewed Plaintiffs' neighbors,
who reported that they could hear roosters in Plaintiffs'
yard. Id. at 10.
on the results of her investigation, Bergstrom sought and
received a search warrant for both Plaintiffs' residence
and Morales Jr.'s Facebook profile to search for evidence
of illegal cockfighting. Bergstrom Decl. Ex. 3; Duckler Decl.
Ex. 1. ECF No. 26.
April 4, 2015, Bergstrom executed the search warrant at
Plaintiffs' residence. Bergstrom Decl. Ex. 1, at 10. A
number of other KFPD officers, KCSO deputies, KCAC Special
Deputy McMahon, and Klamath County Deputy District Attorney
Sharon Forster also participated in the search. Id.
Prior to the execution of the search warrant, McMahon was not
involved in the investigation, nor was he consulted in
Bergstrom's search warrant application. McMahon Decl. ECF
No. 21. Plaintiffs were both present when the warrant was
executed. Bergstrom Decl. Ex. 1, at 10.
the search, officers seized a stuffed rooster, raffle
paperwork, rooster boxing gloves, wingbands, and rooster
medication. Bergstrom Decl. Ex. 1, at 6-8. Most notably, the
officers discovered a set often knives known as "rooster
gaffs," in Morales Sr.'s dresser. Id. at 8.
Metal gaff blades are attached to roosters for use in
cockfighting. Id. at 11, 15.
officers also seized twenty-eight roosters from
Plaintiffs' home. Bergstrom Decl. Ex. 1, at 12. McMahon
reported that most of the roosters were missing their waddles
and combs. Id. at 15. Morales Jr. told police that
one of the roosters had a broken beak "from getting in a
fight with another rooster that was tied up."
denied that they were engaged in breeding, raising, or
training roosters for cockfighting. Plaintiffs claimed they
raised the roosters only for competitive poultry shows and
for sale to other individuals engaged in showing roosters.
Bergstrom Decl. Ex. 1, at 14. During his interrogation,
Morales Jr. told the officers that the gaffs were mementos
and that Plaintiffs never put the gaffs on their roosters.
Id. at 13. When questioned about the Facebook
videos, Morales Jr. told officers that he "has the
roosters fight so they can relieve stress." Id.
At McMahon's request, Bergstrom presented Plaintiffs with
an animal surrender form, which they refused to sign.
Id. at 15. Plaintiffs were taken into custody and
lodged at the Klamath County Jail on charges of illegal
called KHS to take custody of the seized birds pursuant to
its contract with the county government. Barks Decl. KHS
president Charlotte Barks and a KHS volunteer arrived at
Plaintiffs' residence and transported the roosters to a
KHS facility. Id. Prior to taking custody of the
birds, KHS had no involvement in the investigation, nor was
any KHS employee aware of Plaintiffs' rooster breeding
Criminal Prosecution and Forfeiture Proceedings
April 9, 2015, a Klamath County grand jury issued indictments
against Plaintiffs. Warren Decl. Ex. 3, 15-20 (Indictment of
Morales Jr.); Ex. 4, at 14-19 (Indictment of Morales Sr.).
ECF No. 22-1. The indictments charged each Plaintiff with
twenty-nine counts of felony Cockfighting in violation of ORS
167.428. Plaintiffs pleaded "not guilty" to the
first count of each indictment alleged that Plaintiffs
"did unlawfully and knowingly possess gaffs, slashers or
other sharp implements designed for attachments to a fighting
bird with the [i]ntent that the gaff, slasher or other sharp
implement be used in cockfighting[.]" Warren Decl. Ex.
3, at 15; Ex. 4, at 14. The remaining twenty-eight counts
alleged that Plaintiffs "did unlawfully and knowingly
own, possess, keep, rear, train, sell, advertise or otherwise
offer to sell a fighting bird[.]" Warren Decl. Ex. 3, at
15-20; Ex. 4 at 14-19. The indictments were sought by the
Klamath County District Attorney's Office and the only
witnesses called to testify before the grand jury were KFPD
Officers Bergstrom and Gordon. Id. McMahon was not
involved in the charging decisions, nor was he called to
testify before the grand jury. McMahon Decl. Similarly, no
employee of KHS was involved in the charging decision and no
KHS employee was called to testify before the grand jury.
13, 2015, the Klamath County District Attorney filed motions
for forfeiture of the seized and impounded roosters pursuant
to ORS 167.347. Warren Decl. Ex. 3, at 23-26; Ex. 4, at
22-25. The motions ...