Opinion
3:20-cv-1878-JR
05-23-2023
MARIE TYVOLL, Plaintiff, v. CITY OF PORTLAND, a municipal corporation; JUSTIN D. DAMERVILLE, an individual; and JOHN DOE, unknown individual, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff, Marie Tyvoll, brings this action alleging defendants, City of Portland (“City”) and Justin Damerville, violated her First and Fourteenth Amendment rights. Plaintiff also asserts claims for intentional infliction of emotional distress and assault and battery against the City. Defendants separately move for summary judgment as to all claims. For the reasons stated below, the motions should be granted in part and denied in part.
BACKGROUND
Following the death of George Floyd during a confrontation with the Minneapolis, Minnesota Police in May 2020, large scale protests erupted around the country throughout the summer including in Portland, Oregon.
Plaintiff contends the Portland Police Bureau (PPB) strongly disagrees with left-wing ideology and confronted left-wing protestors in a “heavy-handed manner” while treating “right-wing protestors supporting white supremacist ideology” far more delicately. Plaintiff's Response (ECF 60) at pp. 2-5. However, to support these factual assertions, plaintiff relies on hearsay news articles. Defendant City of Portland seeks to strike the references to the online news articles and related documents cited by plaintiff in response to the motions for Summary Judgment found at footnotes 1-8, 20-22, and 25 of the Response (ECF 60). “It is axiomatic to state that newspaper articles are by their very nature hearsay evidence and are thus inadmissible if offered to prove the truth of the matter asserted.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 1990 WL 126500, at *3 (D. Ariz. July 25, 1990). Accordingly, the Court will not consider the content of the articles for the truth of the matters asserted therein. Plaintiff also offers a notice of compliance assessment report from Case No. 3: 12-cv-2265-SI and asserts PPB training for crowd control focused primarily on training members to articulate their justification for uses of force in such a way as to comply with the constitutional use of force. See Response (ECF 60) at p. 12. However, plaintiff cites to a document that does not have the language she quotes in support of this argument. Moreover, the City and Damerville seek to strike this document as hearsay. (ECF 61-7) The cited document should not be considered for purposes of summary judgment. In addition, plaintiff offers purported testimony by Officer Brent Taylor from another case for the same purpose of supporting the argument that PPB focused training on providing justification for force. ECF 60 at pp. 11-12. However, the cited testimony is mischaracterized as it actually related to disengaging when smoke is deployed. See Transcript (ECF 61-6) at pp. 2-3.
During the summer of 2020, 60-year-old plaintiff attended protests five to six nights a week to support the Black Lives Matters effort by setting up a medical tent at protest staging areas. Deposition of Marie Tyvoll at pp. 17, 48 (ECF 61-1 at pp. 17, 25). Plaintiff provided items such as masks, hand sanitizers, water, snacks, band-aides, ibuprofen, feminine hygiene products, goggles, baking soda/water solution, ballistic vests, gloves, and earplugs. Id. at pp. 19-22 (ECF 61-1 at pp. 9-12).
On September 28, 2020, plaintiff went to Kenton Park in North Portland around 7 or 8 pm to set up a medical tent for a protest march scheduled later that evening. Id. at pp. 27-28 (ECF 611 at pp. 13-14). Plaintiff asserts the police arrived and started “to mess with things,” “pin down groups of people,” detain “innocent people,” “started searching the med tent and any other supplies they found,” “started macing or gassing people,” and “just harassing people.” Deposition of Rose Threet at pp. 37-38 (ECF 61-2 at pp. 6-7); Deposition of Scott La Fetra at pp. 33-34 (ECF 61-3 at pp. 3-4); Deposition of Paul Threet at p. 28 (ECF 61-4 at p. 4). Plaintiff asserts she followed the police to videotape them and they “violently and brutally assaulted [a medic].” Deposition of Marie Tyvoll at pp. 32-34 (ECF 61-1 at pp. 16-17).
Plaintiff states she also witnessed police “bear-mace” and force a man to the ground while holding a sign to register people to vote, followed by “violently assault[ing] him.” Deposition of Marie Tyvoll at pp. 40-41 (ECF 61-1 at pp. 19-20). Plaintiff asserts as she was using her phone to film the start of that sequence, “that's when I was assaulted and bear-maced.” Id. Plaintiff states the spray “was within an inch of [her] and covered [her] neck ... ears ... face, [and] head. Id. at p. 46 (ECF 61-1 at p. 23). Plaintiff further states when she was about five to ten feet from the man with the sign, she “was violently pushed backwards” while defendant Damerville and another officer “kept swatting at me trying to get my phone.” Id. at p. 41 (ECF 61-1 at p. 20). Plaintiff asserts Damerville “violently pushed her in the chest backwards . was violently thrown backwards.” Id. Plaintiff recalled Damerville did say “get back” as he pushed backwards. Id. After reviewing video, plaintiff recalled Damerville said “get back” a second time as well. Id. at p. 106 (ECF 61-1 at p. 39). Plaintiff emphasizes that she “can't begin to express the trauma and emotional devastation of being assaulted doing nothing but videotaping cops brutally assault protestors ... and is in fear of [assault] every single time [she] goes to a protest staging area.” Id. at pp. 60-61 (ECF 61-1 at pp. 34-35).
At the time, plaintiff was wearing reading glasses and a mask. Deposition of Marie Tyvoll at pp. 105-06 (ECF 611 at pp. 39-39) Plaintiff asserts after she was sprayed, she was initially in shock and didn't feel a burning sensation until she was treated by medics and then felt “the most horrific burning sensation you can ever possibly imagine.” Deposition of Marie Tyvoll at p. 48 (ECF 61-1 at p. 25). Plaintiff stated the burning continued for a couple of days and she couldn't wear her contacts for those couple of days. Id. at p. 55, (ECF 61-1 at p. 31). Beyond treatment from medics onsite, plaintiff did not seek medical treatment. Id. at p. 65, (ECF 61-1 at p. 36).
Plaintiff also acknowledges she “may have inadvertently touched [Damerville's] hand as [she] was pushing back to keep him from grabbing [her] phone.” Id. at p. 46 (ECF 61-1 at p. 23).
Defendant Damerville, a squad leader for the Portland Police Rapid Response Team (RRT), described the incident as follows:
On September 28, 2020, I deployed with the RRT to a large gathering or protestors in Kenton Park in North Portland.
The RRT was tasked to identify and confiscate items that were or could be used as weapons by the protestors.
RRT members identified an individual holding a large, approximately six-foot pipe with a sign attached to it that could possibly be used as a weapon.
When officers went to address the individual with the pipe, a crowd began to move toward and gather around that interaction.
I directed the crowd to move back multiple times and began to physically direct the crowd away from the interaction. Ms. Tyvoll, who I did not know at the time, was in this crowd.
My purpose in moving the crowd was to prevent injury to officers or others by creating a safe area for officers to effectuate their law enforcement duties.
I gave the verbal directive “move back” multiple times when directing the crowd away from the other officers.
I was carrying a can of OC (“pepper spray”) with me and had been trained in using the pepper spray when appropriate, under the totality of the circumstances, in accordance with PPB Directive 1010.00.
Ms. Tyvoll ignored my directives to move back, pushed against me as I made efforts to create the safe space for officers to perform their duties, swung at my hands, and then grabbed my hand.
I deployed an approximately one second burst of pepper spray to stop her physical resistance. Ms. Tyvoll then complied with my demand and moved back into the crowd. I did not see Ms. Tyvoll again after that time.Declaration of Justine D. Damerville (ECF 43) at ¶¶ 5-14.
Weapons are prohibited in Portland parks. PCC 20.12.050 (“No person shall possess in any Park any thing specifically designed for and presently capable of causing, or carried with the intent to threaten or cause, bodily harm to another.”).
Portland Police Bureau (PBB) Directive 1010.00 provides, among other things:
The Portland Police Bureau recognizes that this commitment may require members to use force. The community expects and the Portland Police Bureau requires that members use only the objectively reasonable force necessary to perform their duties and overcome the threat or resistance of the subject under the totality of the circumstances.
. . .
5. Graham Standard Force Performance Requirements
5.1. To comply with this Directive and satisfy the constitutional standard members shall only use force that is objectively reasonable under the totality of circumstances. When determining to use any force, members must balance the individual's Fourth Amendment rights against the government's interest. Members shall at least consider the following three criteria in making a decision to use force:
5.1.1. Threat. Whether the individual poses an immediate threat to the safety of the officers or others. The extent and immediacy of the threat are the most important determining factors when considering the need for and type of force that may be reasonable during an encounter.
5.1.2. Severity. The severity of the crime at issue.
5.1.3. Active Resistance or Evading. Whether the individual is actively resisting control or attempting to evade When force is used the amount of force used shall be reduced as resistance decreases. Only the amount of force reasonably calculated to maintain control shall be used.
5.2. Though the above three factors are of primary consideration, a reasonableness inquiry is not limited to these factors and force will be evaluated under the totality of the circumstances.
. . .
6.4.3. Aerosol Restraints
6.4.3.1. Authorized Uses
6.4.3.1.1 When a person engages in physical resistance or indicates the intent to engage in physical resistance.PBB Directive 1010.00 (Ex. 2 to the Declaration of Peter Heltzer (ECF 46-1 at pp. 3, 5, 7).
The Directive defines physical resistance as a “person's physical attempt to evade a member's control that does not rise to the level of active aggression.” ECF 46-1 at p. 2.
DISCUSSION
Plaintiff alleges five claims for relief: (1) Fourth Amendment violation against defendant Damerville; (2) First Amendment Violation against Damerville; (3) Monell liability for the First and Fourth Amendment violations against defendant City of Portland; (4) intentional infliction of emotional distress against the City for Damerville's actions; and (5) Assault and Battery against the City for Damerville's actions. Defendants seek summary judgment as to all claims.
Plaintiff also alleged claims against a Doe police officer defendant but has not substituted a named party. The time for joining parties has expired. Accordingly, the Court should dismiss all claims against the Doe defendant.
A. Fourth Amendment
The Fourth Amendment requires police officers to use only an amount of force that is objectively reasonable considering the circumstances facing them. Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). To determine whether a specific use of force is reasonable, courts balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). Relevant factors include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting. Id. When appropriate, a reasonableness determination must also make “allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97. Reasonable force is that force which is necessary to secure the safety of the officers. Id. at 395. Police officers are not required to pursue the least intrusive degree of force when force is reasonably necessary. Cady v. Dombrowski, 413 U.S. 433, 447 (1973). Reasonableness is an objective standard determined in light of the facts and circumstances confronting an officer. Graham, 490 U.S. at 397.
Balancing the intrusion on individual rights and government interests generally requires a jury to sift through disputed factual contentions and then draw inferences. Therefore, summary judgment in excessive force cases should be granted sparingly. Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). Defendant Damerville and plaintiff offer considerably divergent recitations of their September 29, 2020, encounter. Plaintiff asserts, Damerville, a product of a violent, heavy-handed, anti-left-wing police force, violently assaulted her, without warning, as a black-lives matter supporter as she “passively” resisted his attempts to take her phone. Damerville, on the other hand, asserts he was trying to remove, from another individual, a six-foot metal pole that could be used as a weapon when the crowd pushed into him. Damerville states he then instructed the crowd to move back when plaintiff grabbed his hand and pushed it away. As a result, Damerville claims he used a one-second burst of pepper spray to stop plaintiff's physical resistance resulting in plaintiff backing away and a continuation of the filming. As plaintiff concedes, video of the incident shows Damerville did say “get back” twice and acknowledges she may have inadvertently touched Damerville's hand as she pushed back to keep him from grabbing her phone.
The police have a legitimate interest in quickly dispersing and removing lawbreakers with the least risk of injury to police and others. Felarca v. Birgeneau, 891 F.3d 809, 818 (9th Cir. 2018). Pepper spray is a form of force capable of inflicting significant pain and causing serious injury. Young v. Cty. of Los Angeles, 655 F.3d 1156, 1161 (9th Cir. 2011). An objectively reasonable person in defendant Damerville's position could conclude that plaintiff posed a reasonable threat to the efforts to remove a potential weapon. See Don't Shoot Portland v. City of Portland, 503 F.Supp.3d 1022, 1036 (D. Or. 2020):
testimony and video of the incident show that an officer deployed OC spray against Mr. Cleinman mere seconds after Mr. Cleinman grabbed an officer's baton. Though this action may have been inadvertent and without any aggressive intent, there is no dispute that Mr. Cleinman grabbed an officer's weapon during a physical altercation. As an officer reasonably could have interpreted Mr. Cleinman's actions as more than passive resistance, the use of OC spray complied with the Order.
The order referred to PBB Directive 1010.00 which, as noted above, prohibited use of aerosol restraints in cases of passive resitence.
A reasonable officer, accepting the facts in a light most favorable to plaintiff, could also conclude plaintiff offered nothing more than passive resistance to Damerville's move toward plaintiff as she attempted to film the police encounter with the protestor holding the sign attached to a long metal pole. The use of pepper spray under these circumstances can constitute excessive force. See, e.g., Headwaters Forest Def, v. Cty. of Humboldt, 276 F.3d 1125, 1129 (9th Cir. 2002), as amended (Jan. 30, 2002) (use of pepper spray directly in the face within one foot of a protestor constituted excessive force); Thomas v. Dillard, 818 F.3d 864, 885 (9th Cir. 2016), as amended (May 5, 2016) (A reactive, instinctive movement in response to an officer's own aggressive movement differs significantly from the unprovoked, sudden movements that may justify force). A jury is better suited to determine the objective reasonableness of Damerville's actions in light of the many disputed facts concerning the encounter. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986) (A judge may exercise discretion in denying summary judgment when she has “reason to believe that the better course would be to proceed to a full trial”); Williams v. Howard Johnson's Inc., 323 F.2d 102, 105 (4th Cir. 1963) (stating that where a trial judge is in doubt as to whether genuine issues of fact exist, he may postpone consideration of summary judgment until after a trial on the merits); Veillon v. Exploration Servs., Inc., 876 F.2d 1197, 1200 (5th Cir. 1989) (same); Marcus v. St. Paul Fire & Marine Ins. Co., 651 F.2d 379, 382 (5th Cir. 1981) (explaining that the judge may exercise discretion in denying summary judgment “to give the parties an opportunity to fully develop the case.”); Nat'l Screen Serv. Corp. v. Poster Exch., Inc., 305 F.2d 647, 651 (5th Cir. 1962); McLain v. Meier, 612 F.2d 349, 356 (8th Cir. 1979) (same). The motion for summary judgment as to the excessive force claim against defendant Damerville should be denied.
Qualified Immunity
Defendant Damerville asserts he is entitled to qualified immunity with respect to the excessive force claim. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection afforded by qualified immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507 (1978)).
There is generally a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether plaintiff's alleged facts violate a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001) (receded by Pearson v. Callahan, 555 U.S. 223 (2009) (finding Saucier step beneficial, but not mandatory)). Second, the court must decide whether the right at issue was “clearly established” at the time of defendant's alleged misconduct. Id.
As noted above, a trier of fact could conclude that Damerville engaged in excessive force when deploying pepper spray directly at plaintiff's face. Qualified immunity entitles an official to fair warning that his conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 739 (2002). The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Saucier, 533 U.S. at 202. The issue is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id.
The use of pepper spray against plaintiff presents a difficult question as to whether the use of force against her resistance to commands to get back clearly violated her right to be free from excessive force. However, assuming the facts in a light most favorable to plaintiff, it is clearly established that the use of such force (pepper spray in the face) in light of plaintiff's asserted passive resistance violates her Fourth Amendment rights. See Cordeiro v. United States, 2013 WL 5514504, at *9 (D. Haw. Oct. 3, 2013) (citing Nelson v. City of Davis, 685 F.3d 867, 882 (9th Cir.2012)) (Active resistance is not to be found simply because of a failure to comply with the full extent of an officer's orders. To the contrary, “where an individual's resistance was not particularly bellicose,” the Ninth Circuit has held that various applications of force, including the use of pepper spray, were not reasonable.). The motion for summary judgment as to plaintiff's excessive force claim based on qualified immunity should be denied.
The right to be free from the force of pepper spray at close range when not reasonably necessary is clearly established. See Headwaters Forest Defense, 276 F.3d at 1130 (noting use of pepper spray from distances of less than three feet is expressly discouraged).
B. First Amendment
Plaintiff asserts a vague claim based on her frequent participation in protests in the summer of 2020 in support of Black Lives Matter and PPB's purported long history of disparate treatment of left-wing protestors substantially designed to chill their speech. However, plaintiff does not offer admissible evidence to support the alleged left-wing abhorrence by the PPB. Moreover, plaintiff offers no evidence of defendant Damerville's supposed bias other than disciplinary action and removal from the RRT for “political reasons.” See Deposition of Justin Damerville at pp. 5255. (ECF 61-5 at pp. 4-5); Report for Employee Justin Damerville (ECF 61-5 at pp. 8-14). There is no elaboration or explanation of the phrase “political reasons.”
To prevail on this claim, plaintiff must show: (1) she engaged in constitutionally protected activity; (2) defendant's actions would chill a person of ordinary firmness from continuing to engage in the activity; and (3) defendant's action was substantially motivated by the constitutionally protected activity. Cain v. Tigard-Tualatin Sch. Dist. 23J, 262 F.Supp.2d 1120, 1129-30 (D. Or. 2003). At best, plaintiff provides pure speculation of Damerville's motivation in taking the actions against plaintiff on September 28, 2020.The motion for summary judgment as to this claim should be granted. Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003) (speculation as to improper motive does not rise to the level of evidence sufficient to survive summary judgment).
To the extent plaintff asserts Damerville intended to stop plaintiff from engaging in filming the incident, the undisputed evidence shows that Damerville did not stop plaintiff from continuing to capture video with her phone after discharging his pepper spray. Indeed, the evidence shows numerous other bystanders and protestors were capturing video and Damerville did not attempt to stop them.
C. Monell Liability
Plaintiff asserts defendant City of Portland ratified Damerville's excessive force, failed to properly train him in the use of force, and had a custom or policy of violating the expressive activity undertaken by plaintiff.
“Respondeat superior liability does not apply in section 1983 actions.” T.R. v. Boy Scouts of America, 344 Or. 282, 290, 181 P.3d 758, cert. den., 555 U.S. 825 (2008). Instead, the public body must, itself, “be the actor, and its own actions must violate the citizen's constitutional rights.” Id. Thus, a plaintiff seeking recovery from a government body must identify a “‘policy' or ‘custom' that caused the plaintiff's injury.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997). “[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [section] 1983.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, (1978). Official policy “includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. These are actions for which the [government actor] is actually responsible.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (internal citation, brackets, and quotation marks omitted); see St. Louis v. Praprotnik, 485 U.S. 112, 126-27 (1988) (government policy or custom is one that is authorized by an official with final policy-making authority); Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986) (“[M]unicipal liability under [section] 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.”).
Plaintiff asserts the City ratified Damerville's unconstitutional use of pepper spray when it conducted a review of the use of force; citing the declaration of Jeffrey Bell in support. (ECF 47). Plaintiff may prove Monell liability by showing an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it. Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). However, the declaration cited does not address any review of Damerville's conduct on September 28, 2020. Accordingly, plaintiff fails to present any evidence to demonstrate an issue of fact as to whether a final policymaker reviewed and ratified any purported unconstitutional conduct by Damerville even if such a claim were alleged in the complaint with respect to excessive force.
The complaint does not allege ratification of the excessive force conduct. The complaint did allege ratification of the purported violation of plaintiff's First Amendment rights. Complaint (ECF 1) at ¶ 27. However, plaintiff does not address this Monell claim in her response and thus summary judgment should be granted in favor of the City as to her First Amendment Monell claim based on ratification. Moreover, plaintiff fails to address the alleged Monell claims based on alleged inadequate supervision and failure to discipline (id. at ¶ 32). Accordingly, summary judgment should be granted in favor of the City as to these Monell claims as well.
Plaintiff next asserts the City's training of officers during crowd situations was aimed at creating "better post-hoc justifications for the use of force rather than avoiding unconstitutional force." Response (ECF 60) at p. 24.
In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the
level of an official government policy for purposes of § 1983. A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.... To satisfy the statute, a municipality's failure to train its employees in a relevant respect must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.”Connick v. Thompson, 563 U.S. 51, 61 (2011).
Deliberate indifference is a stringent standard requiring proof that a municipal actor disregarded a known or obvious consequence of his action, and thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. Id. at p. 61-62.
A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference with continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees that can trigger municipal liability. Id. at p. 62. Plaintiff argues the City has a training policy in place that allows its employees to repeatedly violate protestors' rights while escaping culpability. However, as noted above in footnote 1, plaintiff fails to provide admissible evidence to support this argument. Accordingly, plaintiff's argument is based on speculation and is insufficient to create a genuine dispute of fact regarding Monell liability against the City for unconstitutional use of force based on a failure to train.
Finally, plaintiff asserts the City has an "unconstitutional policy/custom/practice for the First Amendment" and was motivated by the goal of silencing advocates of police reform and argues:
The pervasiveness of the campaign is evidence enough to suggest the existence of an established practice, policy, or custom of the city of Portland.... Advocating for police accountability in support of the movement for Black Lives is protected
speech... A jury could easily find the campaign of violence by PPB would chill a person of ordinary firmness from continuing to engage in the protected activity.Response (ECF 60) at p. 25.
It is unclear to which alleged policy, custom, or practice plaintiff refers but, as noted above, plaintiff has not submitted sufficient admissible evidence to demonstrate, beyond speculation, a violation of her First Amendment rights based on conduct attributable to the City or its policymakers. Accordingly, the Court should grant summary judgment in favor of the City as to plaintiff's Monell claims against the City based on the First and Fourth Amendments.
D. State Law Claims
1. Intentional Infliction of Emotional Distress
Plaintiff alleges defendant Damerville's actions in interfering with and attempting to prevent plaintiff from lawfully filming a protest, swatting at her phone on multiple occasions, shoving her in an effort to prevent her from filming, and spraying her with an aerosol pepper spray at extremely close range were committed deliberately and intentionally to cause plaintiff severe emotional distress or were undertaken with reckless disregard that plaintiff would suffer severe emotional distress. Complaint (ECF 1) at ¶ 35.
A claim for intentional infliction of severe emotional distress (IIED) requires plaintiff to prove three elements: (1) defendant intended to cause plaintiff severe emotional distress or knew with substantial certainty that his conduct would cause such distress; (2) defendant engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and (3) defendant's conduct in fact caused plaintiff severe emotional distress. McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841, 849 (1995).
To the extent plaintiff alleges a reckless infliction of emotional distress claim, Oregon does not recognize such a claim. Logan v. West Coast Benson Hotel, 981 F.Supp. 1301, 1322 (D. Or. 1997).
A person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for that purpose. Or. Rev. Stat. § 161.209. In addition, a person may use physical force upon another person in self-defense, Or. Rev. Stat. § 161.205(5). Moreover, due consideration should be given to the extraordinary demands of day-to-day police work,
police officers exercise special authority and, because of that authority, they are, in some circumstances, subject to special standards of conduct. Thus, conduct that would not be exceptional for a private citizen may represent an extraordinary transgression by a police officer.Mauri v. Smith, 135 Or.App. 662, 675-76, 901 P.2d 247, 255-56 (1995) (reversed on other grounds, 324 Or. 476 (1996)). Accordingly, a police officer can be held liable for IIED when engaging in extreme abuse of his position. Id.
Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be considered on a case-by-case basis, based on the totality of the circumstances. The inquiry examines whether the offensiveness of the conduct exceeds any reasonable limit of social tolerance, which is a judgment of social standards rather than of specific occurrences. Hall v. The May Dept. Stores, 292 Or. 131, 137, 637 P.2d 126, 130-31 (1981). There are several factors that guide this determination, such as the relationship between plaintiff and defendant and where and how the conduct occurs. It is for the trial court to determine, in the first instance, whether a defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. If the minds of reasonable people would not differ on the subject, the court is obliged to grant summary judgment. Pakos v. Clark, 253 Or. 113, 132, 453 P.2d 682, 691 (1969).
The City argues Officer Damerville's conduct did not go beyond the bounds of socially tolerable conduct. I agree. See Thomas v. City of Portland, 2007 WL 2286254, at *16 (D. Or. Aug. 3, 2007) (“Employing force against person resisting arrest in front of [plaintiff's] house, although in full view of his neighbors, may be offensive, but does not rise to the level of outrageous conduct.”). But See, Terhune v. City of Salem, 2013 WL 1363020, at *4 (D. Or. Apr. 1, 2013) (Outside the home context inflicting substantial physical harm by throwing a person to the ground causing his head to strike the curb, hitting his ear, and applying a Taser without justification could amount to an extraordinary transgression of the bounds of socially tolerable conduct); Mauri, 135 Or.App. At 675, 901 P.2d at 255 (officers entering home, even with consent, allowing entrance to a third party over objection, throwing a summons in resident's face along with an expletive, and allowing the third party to vilify residents constitutes extraordinary transgression of the bounds of socially tolerable conduct). Even if Damerville's actions were unreasonable, the case law regarding use of force by police officers supports a finding that reasonable people would agree that the conduct of officer Damerville in this case does not rise to the level of socially intolerable conduct. Accordingly, defendants' motion for summary judgment as to plaintiff's IIED claim should be granted.
2. Assault and Battery
Plaintiff alleges the City is liable for officer Damerville's intentional and harmful offensive contact against plaintiff. Complaint (ECF 1) at ¶¶ 40-42.
A battery is:
An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if
(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and
(b) the contact is not consented to by the other or the other's consent thereto is procured by fraud or duress, and
(c) the contact is not otherwise privileged.Cook v. Kinzua Pine Mills Co., 207 Or. 34, 48, 293 P.2d 717, 723 (1956) (citing Restatement of Torts, § 13, p. 29).
As noted above, police, under certain circumstances, are authorized to use reasonable force in self-defense. But, as also noted above, there is an issue of fact as to whether the use of force was reasonably necessary. Accordingly, defendants' motion for summary judgment as to plaintiff's battery claim should be denied.
E. Punitive Damages
Defendant Damerville asserts plaintiff cannot present factual evidence that he acted with sufficient intent to support a claim for punitive damages.
It is well established that a jury may award punitive damages under section 1983 either when a defendant's conduct was driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others. Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993). Plaintiff does not address this argument in her response. Nonetheless, because a trier of fact could conclude that Damerville violated plaintiff's Fourth Amendment rights, the Court should permit a jury to weigh the facts to determine if those facts support a finding of evil intent or reckless disregard of plaintiff's Fourth Amendment rights. Accordingly, the motion for summary judgment as to punitive damages should be denied.
CONCLUSION
Defendant Damerville's motion for summary judgment (ECF 44) should be granted as to plaintiff's First Amendment claim and otherwise denied. Defendant City of Portland's motion for summary judgment (ECF 45) should be granted as to plaintiff's IIED and Monell claims and otherwise denied. In addition, the Court should dismiss the Doe defendant at this time.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.