United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken, United States District Judge.
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
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.
parties dispute what occurred immediately before the stop and
exactly what happened during the stop itself.
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.
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.
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
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.
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.
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.
Scope of Summary Judgement Record
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.
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.
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.
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.
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.
Officer Berge's Motion
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.
Plaintiffs' Fourth Amendment Claim
allege that Officer Berge violated the Fourth Amendment when
he stopped, detained, and searched their vehicle without
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).
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.
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.
genuine disputes of material fact remain that preclude the
Court from concluding that no Fourth Amendment violation
occurred during the stop.
Plaintiffs' Racial Discrimination Claims
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.
Equal Protection ...