United States District Court, D. Oregon
RICHARD H. RIZK ATTORNEY FOR PLAINTIFF
C. LEWIS RICHARD PAUL FREUD ATTORNEYS FOR DEFENDANTS
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
matter comes before the Court on Defendants' Motion (#12)
for Summary Judgment. The Court concludes the record is
sufficiently developed such that oral argument would not be
helpful to resolve Defendants' Motion. For the reasons
that follow, the Court GRANTS in part and
DENIES in part Defendants' Motion as
1. GRANTS Defendants' Motion as to the
impropriety of Officer Durbin as the defendant in
Plaintiff's state-law claims and, therefore,
SUBSTITUTES the City of Gresham as the
defendant in Plaintiff's state-law claims;
2. GRANTS Defendants' Motion as to
Plaintiff's Fourth Claim for negligent retention; and
3. DENIES Defendants' Motion as to
Plaintiff's First, Second, Third, Fifth, and Sixth Claims
because the Court concludes Defendants have not established
as a matter of undisputed fact and/or law entitlement to
judgment on these claims.
following facts are taken from the parties' Joint
Statement of Agreed Material Facts and the parties'
filings related to Defendants' Motion for Summary
Judgment and are undisputed unless otherwise indicated.
15, 2017, 10:20 a.m., Gresham Police Officer Matt Hardy
radioed to dispatch: “My folks with warrants from
earlier are reported to be at McDonald's. I'm in the
area. Send me another car.” Joint Statement of Agreed
Facts at ¶ 3. Officer Hardy also advised
“they're probably going to run.” Id.
10:24 a.m. Officer Hardy radioed dispatch that the two
suspects were fleeing on foot from the McDonald's
restaurant located at S.E. Stark Street in Gresham, Oregon.
Joint Statement of Agreed Material Facts at ¶¶ 3-4.
Officer Hardy described the male suspect as wearing a
“red and gray sweatshirt” and the female suspect
as wearing a “dark-colored hoody with brown hair in a
bun.” Joint Statement of Agreed Facts at ¶¶
4-5. The female suspect was wanted on a warrant for felony
heroin possession. Joint Statement of Agreed Facts at ¶
10:26 a.m. a Gresham police officer radioed dispatch that the
suspects described by Officer Hardy were headed westbound and
had jumped over a fence. Joint Statement of Agreed Facts at
¶ 5. Other Gresham police officers, including Defendant
Officer Jeffrey Durbin, began “converging on the
scene.” Joint Statement of Agreed Facts at ¶ 6.
Another Gresham police officer (call sign 8156) asked
dispatch for an updated description of the suspects. The
dispatcher replied: “You have a male, red and gray
sweatshirt, should be with a female in a dark hoody.”
Joint Statement of Agreed Facts at ¶ 6. “Both
suspects were reported to be ‘white.'”
10:29 a.m. “Officers 161 and 8145” radioed
dispatch that they had located the male suspect at the
O'Reilly Auto Parts store on S.E. Stark Street, which was
one block west of the McDonald's restaurant where the
pursuit began. Joint Statement of Agreed Facts at ¶ 7.
point shortly before 10:30 a.m. Plaintiff Aimee Knight entered
the Plaid Pantry at the corner of S.E. Stark Street and S.E.
181st Avenue in Gresham through the only entrance.
Decl. of David Lewis, Ex. 6 at 10:25:41. Plaintiff was
wearing a baseball hat and a black hoody with a gold circle
on the back and the hood pulled up over her baseball hat.
Id. Plaintiff crossed the store away from the
entrance and selected nasal spray. Approximately 40 seconds
after Plaintiff entered the store, she went down the aisle
that was the farthest away from the entrance to select some
chips. Lewis Decl., Ex. 6 at 10:26:20. Due to the height of
the shelving and the items on the shelves, Plaintiff was
unable to see the entrance from that aisle and she was not
visible from the entrance.
10:30 a.m. Officer 8145 radioed dispatch: “There was a
female running across to the Plaid Pantry, she had a black
hoody on with the hoody up if you want to check her.”
Joint Statement of Agreed Facts at ¶ 8. Plaid Pantry is
across S.E. 181st Avenue directly to the west of
O'Reilly Auto Parts on S.E. Stark Street where the male
suspect had been apprehended and less than two blocks west of
the McDonald's where the pursuit began. Joint Statement
of Agreed Facts at ¶ 8.
than one minute after Plaintiff entered the Plaid Pantry,
Officer Durbin entered the Plaid Pantry following up on the
message from dispatch about the “female running across
to the Plaid Pantry.” Lewis Decl., Ex. 6 at 10:26:33.
Officer Durbin entered the Plaid Pantry 13 seconds after
Plaintiff turned into the chip aisle, and, therefore, he was
unable to see her and she was unable to see him.
Plaid Pantry video does not include sound. Officer Durbin,
however, testified at deposition that when he entered the
store he asked the clerk “if a white female with a
black hoody up on her head had run into the store.”
Lewis Decl., Ex. 1 at 5. Officer Durbin testified the store
clerk “pointed to the back of the store.”
Id. The Plaid Pantry video reflects the store clerk
pointed to the area where Plaintiff was approximately seven
seconds after Officer Durbin entered the Plaid Pantry. Lewis
Decl., Ex. 6 at 10:26:40. At that time Plaintiff was in the
middle of the aisle farthest from Defendant and from the
door. Plaintiff was unable to see whether there were other
people in the Plaid Pantry due to the height of the shelving
and the store layout.
Durbin testified at deposition that he “called out to
the person, said that he knew she was in the store and to
show her hands and come out to me.” Lewis Decl., Ex. 1
at 5. Officer Durbin testified he could not see Plaintiff,
but Plaintiff “did not show her hands as ordered”
and at that point he pulled out his gun and put it in the
ready position. Id. at 6. Plaintiff testified at
deposition that she first heard Officer Durbin say
“something along the lines of turn around. Hands up. On
the ground, ” but to her “it sounded like it was
coming from outside” so she continued to shop. Lewis
Decl., Ex. 8 at 2. Plaintiff heard Officer Durbin a second
time and realized he was inside the store, but she
“assumed . . . the store was either being robbed or
they had chased somebody in there. So . . . [she] turned
around to see what was going on.” Id. The
video reflects Officer Durbin raised his gun and pointed it
at the area where Plaintiff was located five seconds after
the clerk pointed to the back of the store and before
Plaintiff was out of the chip aisle.
Decl., Ex. 6 at 10:26:45. Officer Durbin testified at
deposition that he “did not see [Plaintiff's] face
before [he] pulled [his] gun. . . . So [he] was not able to
identify the person before [he] pulled the gun.” Lewis
Decl., Ex. 1 at 7. Officer Durbin advanced with his gun drawn
toward the area where Plaintiff was standing. The video shows
Plaintiff putting her hands out from her side and beginning
to get down on her knees five seconds after Officer Durbin
drew his weapon. Lewis Decl., Ex. 6 at 10:26:50. Plaintiff
testifies Officer Durbin told her to lie face down on the
ground with her arms out, at which point she told him:
“Sir, I'm not supposed to lay on my chest. I had a
botched mastectomy and I have a collapsed expander.”
Pl.'s Resp., Ex. A(1) at 8. According to Plaintiff,
Officer Durbin “screamed at me to lay down, ” so
she did. Id. The video shows Plaintiff was fully
prone on the ground with her arms out ten seconds after
Officer Durbin drew his weapon. Lewis Decl., Ex. 6 at
10:26:57. Officer Durbin continued to point his firearm at
Plaintiff and radioed to ask the other officers whether the
suspect had “a gold circle on her back, on the
hoody?” Lewis Decl., Ex. 3 at 6. Another officer
responded: “I couldn't tell.” Id.
30 seconds after Plaintiff was fully prone on the floor,
Gresham Officer McFarland entered the Plaid Pantry and joined
Officer Durbin. Lewis Decl., Ex. 6 at 10:27:24. As Officer
McFarland made his way to Officer Durbin, Officer Durbin
lowered and holstered his gun. Lewis Decl., Ex. 6 at
10:27:27. Five seconds after Officer McFarland entered the
Plaid Pantry, Officer Hardy entered the Plaid Pantry. Lewis
Decl., Ex. 6 at 10:27:29. Officers Durbin and McFarland
handcuffed Plaintiff as Officer Hardy made his way over to
Officer Durbin. Lewis Decl., Ex. 6 at 10:27:35. A fourth
unidentified police officer entered the Plaid Pantry during
the handcuffing. Lewis Decl., Ex. 6 at 10:27:38.
30 seconds later “the woman was identified as
[Plaintiff]. She was not the woman with [the] warrant [that]
officers were searching for. [Plaintiff] was released from
handcuffs. Officer Hardy . . . radio[ed] ‘And this
isn't her so we need to keep looking for her.'”
Joint Statement of Agreed Facts at ¶ 11; Lewis Decl.,
Ex. 6 at 10:28:29.
18, 2017, Plaintiff filed a Complaint in Multnomah County
Circuit Court against John Doe and the City of Gresham
alleging state-law claims for false arrest, assault, and
battery based on the events of June 15, 2017.
August 4, 2017, Plaintiff filed an Amended Complaint in
Multnomah County Circuit Court against John Doe, Officer
Durbin, and the City of Gresham alleging state-law claims for
false arrest, assault, and battery.
August 18, 2018, Plaintiff filed a Second Amended Complaint
in Multnomah County Circuit Court against Officer Durbin and
the City of Gresham alleging state-law claims for false
arrest, assault, battery, and negligent retention and federal
claims for arrest without probable cause and excessive force
in violation of the Fourth Amendment to the United States
September 26, 2018, Defendants removed the matter to this
Court on the basis of federal-question jurisdiction.
April 1, 2019, Defendants filed a Motion for Summary Judgment
as to all of Plaintiff's claims.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Washington Mut. Ins.
v. United States, 636 F.3d 1207, 1216 (9th
Cir. 2011). See also Fed. R. Civ. P. 56(a). The
moving party must show the absence of a genuine dispute as to
a material fact. Emeldi v. Univ. of Or., 673 F.3d
1218, 1223 (9th Cir. 2012). In response to a
properly supported motion for summary judgment, the nonmoving
party must go beyond the pleadings and point to
"specific facts demonstrating the existence of genuine
issues for trial." In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010)
"This burden is not a light one. . . . The non-moving
party must do more than show there is some 'metaphysical
doubt' as to the material facts at issue."
Id. (citation omitted).
dispute as to a material fact is genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1061
(9th Cir. 2002)(quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must
draw all reasonable inferences in favor of the nonmoving
party. Sluimer v. Verity, Inc., 606 F.3d 584, 587
(9th Cir. 2010). "Summary judgment cannot be
granted where contrary inferences may be drawn from the
evidence as to material issues." Easter v. Am. W.
Fin., 381 F.3d 948, 957 (9th Cir.
2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v.
Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand
summary judgment." F.T.C. v. Stefanchik, 559
F.3d 924, 929 (9th Cir. 2009)(citation omitted).
When the nonmoving party's claims are factually
implausible, that party must "come forward with more
persuasive evidence than otherwise would be necessary."
LVRC Holdings LLC v. Brekka, 581 F.3d 1127,
1137 (9th Cir. 2009) (citing Blue Ridge Ins.
Co. v. Stanewich, 142 F.3d 1145, 1149 (9th
substantive law governing a claim or a defense determines
whether a fact is material. Miller v. Glenn Miller Prod.,
Inc., 454 F.3d 975, 987 (9th Cir. 2006). If
the resolution of a factual dispute would not affect the
outcome of the claim, the court may grant summary judgment.
move for summary judgment on all of Plaintiff's claims on
the grounds that (1) Officer Durbin had reasonable suspicion
to investigate Plaintiff; (2) Officer Durbin's conduct
did not convert his interaction with Plaintiff into an
arrest; (3) even if the interaction was converted into an
arrest, Officer Durbin had probable cause to arrest
Plaintiff; (4) even if the interaction was converted into an
arrest and Officer Durbin did not have probable cause to
arrest Plaintiff, Defendants are, nevertheless, entitled to
qualified immunity on Plaintiff's federal claim for
arrest without probable cause; (5) Defendants are entitled to
qualified immunity on Plaintiff's federal claim for
excessive force; (6) Officer Durbin is not a proper defendant
on Plaintiff's state-law claims; (7) Officer Durbin was
justified in detaining Plaintiff, and, therefore,
Plaintiff's claims for false arrest, assault, and battery
fail; and (8) Plaintiff has not established a genuine dispute
of material fact exists as to her claim for negligent
Investigatory Stop and/or Arrest
alleges in her Fifth Claim that Officer Durbin arrested her
without probable cause in violation of the Fourth Amendment.
In her Response to Defendants' Motion for Summary
Judgment, Plaintiff asserts she was “de facto”
arrested by Officer Durbin without probable cause in
violation of the Fourth Amendment. Plaintiff, however, also
states in her Response that there is a “genuine issue
of material fact regarding . . . whether Officer Durbin had
probable cause or reasonable suspicion to believe
[Plaintiff] was the suspect he sought.” Pl.'s Resp.
at 12 (emphasis in original). Thus, Plaintiff appears to
assert Officer Durbin violated her Fourth Amendment rights by
conducting an investigative stop without reasonable suspicion
and/or by de facto arresting Plaintiff without
In Terry v. Ohio, the Supreme Court created a
limited exception to the general requirement that officers
must have probable cause before conducting a search. 392 U.S.
1, 30 (1968). The Court held that officers may conduct an
investigatory stop consistent with the Fourth Amendment
[when] "a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience
that criminal activity may be afoot. . . .”
Id. In addition, an officer may conduct a brief
pat-down (or frisk) of an individual when the officer
reasonably believes that “the persons with whom he is
dealing may be armed and presently dangerous.”
Id. The stop and the frisk, must be analyzed
separately; the reasonableness of each must be independently
United States v. I.E.V., 705 F.3d 430, 440
(9th Cir. 2012) (citation omitted).
Terry v. Ohio a police officer may "seize"
a person for an investigatory stop if there is reasonable
suspicion that the person has committed or will commit a
crime. 392 U.S. 1 (1968). “[R]easonable suspicion
exists when an officer is aware of specific, articulable
facts which, when considered with objective and reasonable
inferences, form a basis for particularized suspicion”
that the person detained is engaged in criminal activity.
United States v. Cotterman, No. 09-10139, 2013 WL
856292, at *31 (9th Cir. Mar. 8, 2013)(citation
omitted). An officer may perform a Terry stop only
when under the "totality of the circumstances"
there is a "particularized and objective basis for
suspecting legal wrongdoing." I.E.V., 705 F.3d
at 440 (citation omitted). Reasonable suspicion requires only
“a minimal level of objective justification.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
record reflects Officer Durbin was advised there was a
suspect wanted on a warrant for felony heroin possession who
had begun running from police officers less than two blocks
from the Plaid Pantry. The suspect was described as a white
female wearing a dark-colored hoody sweatshirt. At the same
time the officers were looking for the female suspect,
Officer Durbin was advised there was a woman wearing a black
hoody running into the Plaid Pantry. Plaintiff points out
that the suspect was described as having brown hair in a bun,
but Plaintiff has blonde hair. Officer Durbin, however,
testified at deposition that he did not remember hearing that
the suspect had brown hair. In addition, the record reflects
Plaintiff's hair was covered by a hat and the hood of her
sweatshirt during her entire encounter with Officer Durbin.
the totality of the circumstances, the Court concludes as a
matter of law that Officer Durbin initiated a Terry
stop of Plaintiff when he entered the Plaid Pantry to look
for the female suspect, called out to Plaintiff, said he knew
she was in the store, asked Plaintiff to show her hands, and
directed her to come out before he drew his weapon.
addition, the Court concludes Officer Durbin had the required
minimal level of objective justification to initiate the stop
because he was aware there was a white female suspect wearing
a dark-colored hoody sweatshirt who ran from police from a
location that was close to the Plaid Pantry and close in time
to when Plaintiff (a white female wearing a black hoody
sweatshirt) was seen entering the Plaid Pantry. The Court,
therefore, concludes on this record that the Terry
stop was supported by reasonable suspicion.
Conversion to Arrest
asserts even if the Terry stop was justified
initially by reasonable suspicion, Officer Durbin's
actions transformed the Terry stop into an arrest
without probable cause when he drew his weapon and pointed it
Ninth Circuit has observed "[t]here is no bright-line
rule to determine when an investigatory stop becomes an
arrest." Washington v. Lambert, 98 F.3d 1181,
1185 (9th Cir. 1996).
Rather, in determining whether stops have turned into
arrests, courts consider the “totality of the
circumstances.” As might be expected, the ultimate
decision in such cases is fact-specific.
In looking at the totality of the circumstances, we consider
both the intrusiveness of the stop, i.e., the
aggressiveness of the police methods and how much the
plaintiff's liberty was restricted and the justification
for the use of such tactics, i.e., whether the
officer had sufficient basis to fear for his safety to
warrant the intrusiveness of the action taken. In short, we
decide whether the police action constitutes a Terry
stop or an arrest by evaluating not only how intrusive the
stop was, but also whether the methods used were reasonable
given the specific circumstances. As a result, we
have held that while certain police actions constitute an
arrest in certain circumstances, e.g., where the
“suspects” are cooperative, those same
actions may not constitute an arrest where the
suspect is uncooperative or the police have specific reasons
to believe that a serious threat to the safety of the
officers exists. "The relevant inquiry is always one of
reasonableness under the circumstances."
Id. (citations omitted; emphasis in original).
Ninth Circuit has held a stop is not automatically converted
into an arrest when officers point their weapons at a
suspect, use handcuffs, and place the suspect in a police car
for questioning. Allen v. City of Los Angeles, 66
F.3d 1052, 1056 (9th Cir. 1995). Compare
United States v. Steel, 486 Fed.Appx. 690, 690-91
(9th Cir. 2012)(concluding the officer's use
of handcuffs was justified and did not convert a
Terry stop into an arrest when the suspect did not
comply with the officer's commands and made a movement
with his right elbow towards his right side, which made the
officer concerned that the suspect was either carrying a
firearm or attempting to discard contraband); United
States v. Guzman-Padilla, 573 F.3d 865, 884
(9th Cir. 2009)(“[B]ecause the purpose of a
Terry stop is to allow the officer to pursue his
investigation without fear of violence, we allow intrusive
and aggressive police conduct without deeming it an arrest
when it is a reasonable response to legitimate safety
concerns on the part of the investigating officers.”);
Alexander v. Cty. of Los Angeles, 64 F.3d 1315, 1320
(9th Cir. 1995)(“The use of force during a
stop does not convert the stop into an arrest if it occurs
under circumstances justifying fears for personal
safety.”) with Washington, 98 F.3d at 1187
(Terry stop converted to an arrest when police
ordered the plaintiffs from their car at gunpoint; frisked,
handcuffed, and placed the plaintiffs in patrol cars while
officers investigated allegations; and, at the same time,
plaintiffs were compliant and the officers had merely a
generalized concern that plaintiffs might be armed);
United States v. Del Vizo, 918 F.3d 821, 825
(9th Cir. 1990)(there was a “lack of
investigatory justification for” handcuffing and making
the plaintiff lie on the ground even though he was suspected
of drug trafficking because the plaintiff complied with the
officers' commands and there was not any other evidence
to suggest that the plaintiff was “particularly
“the aggressiveness of the police methods and . . . the
justification for the use of such tactics, ” the Ninth
Circuit has held “‘pointing a loaded gun at a
suspect [and thereby] employing the threat of deadly force,
is use of high level of force.'” Thompson v.
Rahr, 885 F.3d 582, 586 (9th ...