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Knight v. Durbin

United States District Court, D. Oregon

July 11, 2019

AIMEE KNIGHT, Plaintiff,
v.
JEFFREY DURBIN and CITY OF GRESHAM, Defendants.

          RICHARD H. RIZK ATTORNEY FOR PLAINTIFF

          DAVID C. LEWIS RICHARD PAUL FREUD ATTORNEYS FOR DEFENDANTS

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

         This 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 follows:

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.

         BACKGROUND

         The 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.

         On June 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.[1] Officer Hardy also advised “they're probably going to run.” Id.

         At 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 ¶ 1.

         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.'” Id.

         At 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.

         At some point shortly before 10:30 a.m.[2] 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.

         At 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.

         Less 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.

         The 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.

         Officer 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.

         Lewis 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.

         Approximately 30 seconds after Plaintiff was fully prone on the floor, Gresham Officer McFarland[3] 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.

         Approximately 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.

         On July 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.

         On 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.

         On 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 Constitution.

         On September 26, 2018, Defendants removed the matter to this Court on the basis of federal-question jurisdiction.

         On April 1, 2019, Defendants filed a Motion for Summary Judgment as to all of Plaintiff's claims.

         STANDARDS

         Summary 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).

         A 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)).

         "A 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 Cir. 1998)).

         The 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. Id.

         DISCUSSION

         Defendants 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 retention.

         I. Investigatory Stop and/or Arrest

         Plaintiff 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 probable cause.

         A. Investigatory Stop

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 determined.

United States v. I.E.V., 705 F.3d 430, 440 (9th Cir. 2012) (citation omitted).

         Under 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).

         The 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.

         Considering 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.

         In 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.

         B. Conversion to Arrest

         Plaintiff 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 at Plaintiff.

         The 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).

         The 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 dangerous.”).

         As to “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 ...


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