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Banks v. Berge

United States District Court, D. Oregon, Portland Division

December 18, 2019




         Plaintiffs Claudius and Daynelle Banks assert civil rights claims against Christian Berge, a former Portland police officer, and tort claims against the City of Portland arising out of a traffic stop. Defendants have moved in limine for an order excluding any evidence that Berge pleaded guilty to and was convicted of first-degree official misconduct in violation of ORS 162.415(1) in December 2017. Because of the close relationship between Berge's conviction and resignation, defendants also seek an order excluding evidence of the reasons for Berge's resignation. For the reasons below, Defendants' motions (docs. 78, 81) are granted in part and denied in part.


         I. The Stop and Evidence Offered To-Date

         On March 21, 2015, at around 2:00 am, the Banks were stopped by Berge while they drove down NE Ainsworth Street in Portland on their way to Popeyes. They pulled over into the Popeyes parking lot. Less than ten minutes later, Berge left the scene without arresting plaintiffs or citing them for a traffic violation. Plaintiffs' key had broken off in the ignition, which rendered the car inoperable, so plaintiffs took a taxi home. During the night, the car was towed.

         According to plaintiffs, Claudius Banks had returned from a long day of work at FedEx when they decided to drive to Popeyes. While driving, Claudius did not violate any traffic laws. Neither plaintiff was intoxicated at the time, nor had they consumed alcohol for at least twelve hours before the stop. Plaintiffs allege that Berge did not ask if they had been drinking or otherwise state that he had observed them violating traffic laws, but instead exited his vehicle and commanded plaintiffs to "Get your black ass out of the car." They also allege that Berge searched plaintiffs' car, including inside the glove box. Finally, plaintiffs allege that Berge jerked and twisted the key at least three times until it broke off in the ignition.

         According to Berge, he was driving behind the Banks' car when he observed it drift into the oncoming lane of traffic twice. He believed the driver had committed two traffic violations: (1) failure to drive within a lane and (2) unlawful or unsignaled lane change. He could see that the car had two occupants but could not tell their race or gender. When he approached the driver's side window, both plaintiffs appeared visibly intoxicated. Berge did not perform field sobriety tests on either plaintiff or otherwise perform a DUE investigation. Berge denies using racially charged language to order plaintiffs out of the car. He also denies searching the car, but admits that he briefly entered the car to roll up the windows and secure the car. Berge also asserts he accidentally broke the key while securing the car.

         The parties have not provided accounts from any other eyewitnesses and Berge did not prepare a police report in connection with the stop. Instead, the conflicting testimony presents a classic credibility contest, where one of the critical issues in the upcoming trial will be the credibility of the witnesses, which is for the jury to determine.

         II. Berge's Conviction

         In December 2017, Berge was charged with first-degree official misconduct, ORS 162.415(1). OES 162.415(1) provides, in part, that "[a] public servant commits the crime of official misconduct in the first degree if the public servant "knowingly performs an act constituting an unauthorized exercise in official duties" with "intent to obtain a benefit or to harm another[.]" ORS l62.4l5(1)(a). Berge was charged with

on or between August 12, 2015 and May 3, 2017, . . . being a public servant, to-wit: a police officer employed by the Portland Police Bureau, [who] did unlawfully and knowingly perform an act, which act constituted an unauthorized exercise of his official duties, with intent to obtain a benefit[.]

Coit Decl. Ex. 1, Doc. 79-1. On December 14, 2017, Berge pleaded guilty and in his plea petition, admitted that

between August 12, 2015, and May 3, 2017, [he] engaged in conduct on duty as a police officer which was an unauthorized exercise of [his] official duty, with an intent to obtain a benefit.

         Coit Decl. Ex. 2 at 2, Doc. 79-2 at 2. On the same day, Berge was sentenced to 18 months of bench probation and, as a condition of probation, was ordered to resign from the Portland Police Bureau, which ...

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