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Banks v. Berge

United States District Court, D. Oregon, Portland Division

March 18, 2019



          Ann Aiken, United States District Judge.

         Plaintiffs Claudius Banks and Daynelle Banks filed this action against defendants Officer Christian Berge ("Officer Berge") and the City of Portland ("the City"), asserting that defendants violated their constitutional rights and state law in connection with a traffic stop. On April 17, 2017, I denied defendants' motion to dismiss, but granted their motion to order plaintiffs to make the allegations related to their federal law claims more definite and certain. Banks v. Berge, 2017 WL 1428709 (D. Or. Apr. 17, 2017). On August 15, 2017, plaintiffs filed their Third Amended Complaint (doc. 28) alleging Fourth Amendment and racial discrimination claims against all defendants and state law claims against the City. Officer Berge and the City have separately moved for summary judgment on all of the claims, (docs. 46, 48). For the reasons set forth below, Officer Berge's motion is GRANTED in part and DENIED in part and the City's motion is GRANTED in part and DENIED in part.


         At approximately 2:00 am on March 21, 2015, plaintiffs, who are African American, were driving down NE Ainsworth Street in Portland, Oregon, on their way to Popeye's when Officer Berge drove up behind them and activated his overhead lights to initiate a traffic stop. Plaintiffs pulled into a nearby Popeye's parking lot. Officer Berge then approached the car and asked them to exit it, and plaintiffs complied. At some point during the stop, while plaintiffs were outside the car, Officer Berge broke the key off in the ignition, leaving the car inoperable. Officer Berge then left the scene, without issuing any citations. The stop lasted no longer than ten minutes. Because they could not drive the car, plaintiffs took a taxi home and had the car towed the next day.

         The parties dispute what occurred immediately before the stop and exactly what happened during the stop itself.

         According to Officer Berge, he was driving behind plaintiffs on March 21, 2015, when he observed their El Camino "twice drift entirely into the oncoming westbound lane of traffic and then back into the eastbound lane," Berge Decl. ¶ 6 (doc. 47). Those observations led him to believe that the driver was impaired and had violated two traffic laws: (1) failure to drive within lane and (2) unlawful or unsignaled change of lane. Id. at ¶ 7. At that time, he could see that the car had two occupants, but could not make out their race or gender. Id. at ¶ 8, When Officer Berge approached the driver's side window, both plaintiffs appeared visibly intoxicated with "bloodshot and watery eyes" and "slurred" speech, and he could smell alcohol. Id. at ¶ 9. Because he believed that neither plaintiff could drive lawfully, Officer Berge asked them to exit their car. Id. at ¶ 10. Plaintiffs complied and gave Officer Berge the keys, and he entered the car to roll up the windows and secure the car. Id. While securing the car, Officer Berge accidentally broke the car key. Id. Officer Berge asserts that he did not search the car. Id.

         Plaintiffs dispute many of the key details of Officer Berge's account. According to plaintiffs, Claudius Banks had returned from a long day of work when he and Daynelle Banks headed out on the drive. Claudius Banks Decl.¶ 4 (doc. 63). While driving, Claudius Banks did not drift into oncoming traffic. Id. at ¶ 6; Daynelle Banks Decl. ¶ 5, Jul. 23, 2018 (doc. 62), Neither plaintiff was intoxicated when Officer Berge stopped them and they did not smell of alcohol. Claudius Banks Decl. ¶ 5; Daynelle Banks Decl. ¶ 4, Jul. 23, 2018, In fact, plaintiffs both stated that they had not consumed alcohol "in the twelve hours prior to the incident." Claudius Banks Decl. ¶ 7; Daynelle Banks Decl. ¶ 6, Jul. 23, 2018. Officer Berge did not ask if Claudius Banks had been drinking or otherwise accuse him of intoxication or violating traffic laws. Claudius Banks Decl. ¶ 12. Instead, Officer Berge exited his vehicle and commanded, "Get your black ass out of the car." Id. at ¶ 8; Daynelle Banks Decl. ¶ 7, Jul. 23, 2018. After plaintiffs complied, Officer Berge searched the vehicle "thoroughly, including the inside of the glove box." Claudius Banks Decl. ¶ 9. Officer Berge then "jerked and twisted the key at least three times until it broke off in the ignition" and exited the car. Id. at % 10. Officer Berge left the scene without conducting field sobriety or breathalyzer tests on plaintiffs. Id. at ¶ 12.

         Plaintiffs filed a complaint against Officer Berge with the Independent Police Review ("IPR") division of the City Auditor's office the following month. Daynelle Banks Decl. Ex. A at 6, Feb. 21, 2017 (doc. 16). In that complaint, plaintiffs alleged that Officer Berge engaged in racial profiling when he initiated the traffic stop, that the stop was unjustified, that Officer Berge's entry and search of the car was unlawful, and that Officer Berge's communication with plaintiffs was inadequate and rude. Id. After an investigation, the IPR decided to refer the complaint to the Portland Police Bureau's Internal Affairs ("IA") unit, which completed its investigation in November 2015. Id.; Daynelle Banks Decl. Ex. C, Feb. 21, 2017. Daynelle Banks also filed a "General Liability Claim Against the City of Portland" with the City's Risk Management division on May 22, 2015 to recover the cost of the taxi ride and towing from the City. Daynelle Banks Decl, Ex, A, Feb. 21, 2017, LEGAL STANDARD

         Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The materiality of a fact is determined by the substantive law on the relevant issue, while the authenticity of a dispute is determined by inquiring whether a reasonable jury could return a verdict for the nonmoving party in light of the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

         The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e). "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008). Any doubt about the existence of a genuine issue of material fact should be resolved against the moving party. Celotex, 477 U.S. at 339.


         In their Third Amendment Complaint, plaintiffs assert Fourth Amendment and racial discrimination claims under federal law against all defendants and false arrest and trespass to chattels claims under Oregon law against the City. Both Officer Berge and the City move for summary judgment on all of the claims against them. I will address each of their motions in turn.

         I. Scope of Summary Judgement Record

         The scope of the summary judgment record in this case is limited. To support his motion, Officer Berge submitted a declaration asserting his version of events. And plaintiffs responded in kind, submitting declarations asserting their version of events. To support their Monell claims against the City, plaintiffs submitted two depositions. Kiel Decl. Ex. B & C (doc. 61). Plaintiffs also relied on the arguments that they made in their response to defendants' earlier motion to dismiss. As a result, the record also includes the evidence relevant to those arguments, which are found in the exhibits attached to Daynelle Banks' February 21, 2017 declaration. Daynelle Banks Decl. Ex. A-C, Feb. 21, 2017. Finally, plaintiffs offered evidence of Officer Berge's 2017 judgment of conviction for Official Misconduct in the First Degree. Kiel Decl. Ex. A. The parties dispute whether the Court should consider this conviction as part of the summary judgment record.

         Plaintiffs assert that the Court should consider Officer Berge's prior misdemeanor conviction as evidence that bears on his credibility. In 2017, Officer Berge was found guilty of Official Misconduct in the First Degree, which is a Class A misdemeanor. ORS § 162, 415(2). Although Officer Berge does not formally move to strike the evidence, he opposes plaintiffs' request and argues that credibility determinations are not appropriate for summary judgment.

         At the summary judgment stage "the judge does not weigh conflicting evidence with respect to a disputed material fact. . . . Nor does the judge make credibility determinations with respect to statements made in affidavits, answers to interrogatories, admissions, or depositions. . . . These determinations are within the province of the factfinder at trial." T.W. Elec. Serv., 809 F.2d at 630 (citations omitted). When direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." Id. at 631. And, if that fact is material to an issue, then summary judgment must be denied on that issue. Id.

         Plaintiffs acknowledge that, ordinarily, credibility determinations are not made at the summary judgment stage, B\it plaintiffs argue that, in this case, the Court should consider the existence of evidence that bears negatively on Officer Berge's credibility because Officer Berge's motion relies entirely on his declaration.

         When the parties present two different version of events, it is not appropriate for the Court to engage in credibility determinations at the summary judgement stage-credibility is an issue for the fact-finder. When versions of events differ on points of material fact, the summary judgment standard dictates the denial of the motion. Moreover, plaintiffs do not provide any authority to support their proposed exception to the general standard of review. Therefore, I decline to consider evidence related to Officer Berge's credibility at this stage.

         II. Officer Berge's Motion

         Plaintiffs allege two § 1983 claims against Officer Berge: (1) that Officer Berge stopped, detained, and searched their car in violation of the Fourth Amendment and (2) that he engaged in racial discrimination in violation of 42 U.S.C. § 1981, 42 U.S, C. § 2000d, 42 U.S.C. § 3789d, and the Equal Protection Clause of the Fourteenth Amendment. Officer Berge moves for summary judgment on both claims, arguing that there is no genuine issue of material fact and that he is entitled to qualified immunity.

         A. Plaintiffs' Fourth Amendment Claim

         Plaintiffs allege that Officer Berge violated the Fourth Amendment when he stopped, detained, and searched their vehicle without justification.

         A police officer may conduct an investigatory traffic stop if the officer has "reasonable suspicion" that a particular person "has committed, is committing, or is about to commit" a traffic violation. United States v. Lopez-Soto, 205 P.3d 1101, 1104 (9th Cir. 2000). Reasonable suspicion requires that officers have "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." Id., at 1105. An investigative stop is not subject to strict time limitations as long as the officer is pursuing the investigation in a "diligent and reasonable manner." United States v. Sharpe, 470 U.S. 675, 686-87 (1985). An officer's conduct during the detention must be reasonably related in scope to the circumstances which justified the initial stop. Terry, 392 U.S. at 20. Officers may search cars involved in traffic stops if the officer has adequate justification for the search. For example, an officer may search inside of a car if the officer has reasonable suspicion that any passenger may be armed and dangerous. Arizona v. Gant, 556 U.S. 332, 346-47 (2009). Or, if there is probable cause to believe that a car contains evidence of a crime, an officer may search any area in the car where evidence might be found. United States u. Ross, 456 U.S. 798, 820-21 (1982). An officer may also search a vehicle pursuant to valid consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

         Officer Berge states in his sworn declaration that he had reasonable suspicion that plaintiffs had committed three traffic violations: (1) failure to drive within a lane, in violation of ORS § 811.370; (2) unlawful lane change, in violation of ORS § 811.375; and (3) driving while under the influence of intoxicants, in violation of ORS § 813.010. Officer Berge also asserts that the length of and his conduct during the stop were reasonable, given his belief that plaintiffs were intoxicated. Finally, Officer Berge asserts that he did not search the car and argues that the length of the stop undermines plaintiffs' claim that he "thoroughly" searched the car.

         Plaintiffs submitted their own sworn declarations challenging Officer Berge's version of events. Drawing all reasonable inferences in plaintiffs' favor, their declarations create genuine issues of material fact concerning the justifications for the stop and whether Officer Berge searched the car. Officer Berge argues that the declarations are not sufficient to establish a "genuine" dispute of facts because they "merely reiterate the facts alleged in their complaint." Berge Reply at 4 (doc. 65). But plaintiffs did not merely rely on the allegations in their complaint. Instead, plaintiffs responded to the evidence that Officer Berge submitted to support his motion by submitting their own declarations. And those declarations provide more than just conclusory statements that Officer Berge violated plaintiffs' Fourth Amendment rights by providing specific facts within plaintiffs' personal knowledge that contradicted Officer Berge's declaration.

         In sum, genuine disputes of material fact remain that preclude the Court from concluding that no Fourth Amendment violation occurred during the stop.

         B. Plaintiffs' Racial Discrimination Claims

         Plaintiffs allege that Officer Berge's stop and his conduct during the stop were motivated wholly or in part by racial animus, and that his actions violated (1) plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment, (2) 42 U.S.C. § 1981, (3) 42 U.S.C. § 2000d (Title VI of the Civil Rights Act of 1964), and (4) 42 U.S.C. § 3789d (renumbered as 34 U.S.C. § 10228 by the Omnibus Control of Crime and Safe Streets Act). Officer Berge argues that plaintiffs cannot establish that he intentionally discriminated against them and that the statutes cannot sustain plaintiffs' § 1983 action.

         1. Equal Protection ...

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