Opinion
3:21-cv-01340-YY
06-03-2022
LUCAS S. CARILLO, Personal Representative of the Estate of Aaron Joseph Danielson, Plaintiff, v. THE CITY OF PORTLAND, a municipal corporation; MICHAEL SCHMIDT, an individual; and EDWARD TEVIS TED WHEELER, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff brings this suit as the personal representative of Aaron Danielson, who was killed during a protest in downtown Portland in the summer of 2020. Plaintiff alleges a Fourteenth Amendment substantive due process claim under 42 U.S.C. § 1983 and a state law negligence claim against defendants, alleging in essence that defendants' “hands off” approach to the increasingly violent clashes between competing protest groups in Portland created an environment that encouraged lawlessness and led to Danielson's murder.
Defendants City of Portland and Ted Wheeler have filed a motion to dismiss (ECF 15) under Federal Rule of Civil Procedure 12(b)(6), which should be granted. As currently alleged, plaintiff's complaint fails to allege facts sufficient to state a plausible substantive due process violation because no state actor took affirmative action that placed Danielson in a “worse position” than he otherwise found himself. See Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018). Plaintiff's state law negligence claim also fails because it is subject to “discretionary immunity” under ORS 30.265(6)(c). Plaintiff's claims against defendant City of Portland and Mayor Wheeler should be dismissed with prejudice because the additional facts plaintiff offers in response to defendants' motion do not change the analysis on either claim.
These Findings and Recommendations only address claims brought against defendants City of Portland and Mayor Wheeler. The claims against Defendant Michael Schmidt, and the motions related to them, are addressed in separate Findings and Recommendations.
I. Motion to Dismiss Standard
To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This standard “does not require ‘detailed factual allegations,' ” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' ”Id. (quoting Twombly, 550 U.S. at 555). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Id. (quoting Twombly, 550 U.S. at 570).
In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition to the allegations in the complaint, the court may consider documents that are attached to or incorporated by reference in the complaint, where the parties do not contest the authenticity of those documents, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
II. Background
The following facts are taken from plaintiff's complaint and are, for the purposes of this motion, assumed to be true. During the summer and fall of 2020, demonstrators came to downtown Portland for nightly protests. Compl. ¶ 11, ECF 1. Clashes between left- and rightleaning protest groups often occurred. Id. ¶¶ 13, 29. In response to the increasing violence between competing groups, defendant Ted Wheeler, the Mayor of Portland and Commissioner of the Portland Police Bureau (“PPB”), proposed in mid-July that Portland police officers avoid engaging with crowds gathered in downtown Portland “unless a life safety situation develop[ed].” Id. ¶¶ 7, 24. Defendant Michael Schmidt, the Multnomah County District Attorney, announced that his office would “presumptively decline to prosecute cases that don't involve deliberate property damage, theft, or threat of force against another person.” Id. ¶ 12.
As the protests and counter-protests continued, defendants knew that left- and right-wing protest groups had “individuals who provided security services” and these individuals “were assessing and responding to” threats, both internal and external, to their groups. Id. ¶ 16. This, plaintiff alleges, meant that Mayor Wheeler and the City “delegated actual or apparent authority to these private security details to engage in crowd control and crime prevention at demonstrations, and to ‘self-police.' ” Id. ¶ 17.
According to plaintiff, defendants took a different approach to crowd control depending on the groups' political makeup. At a “left-leaning” demonstration earlier in August, police blocked the marchers from approaching a police union office and a PPB precinct building. Id. ¶¶ 31-32. For right-leaning rallies, PPB tended to use a smaller police presence, and it was “common knowledge among rival demonstrators” that PPB gave “preferential treatment to the right-leaning groups.” Id. ¶¶ 26, 29. On August 22, 2020, right-leaning demonstrators held a “No Marxism in America Rally” and “Trump 2020 Cruise Rally” in downtown Portland. Despite knowing that left-leaning counter-protestors were likely to come downtown to meet the rightleaning groups, PPB deployed thirty officers for crowd control and “largely stood by as the violence escalated.” Id. ¶ 27. The competing demonstrators clashed, using “weapons, smoke bombs, shields, and chemical irritants” against each other. Id. Federal officers eventually cleared the crowds later in the afternoon. Id. ¶ 28.
A week later, on August 29, 2020, demonstrators organized a caravan to drive through the city, and counter-demonstrators planned to meet downtown. Id. ¶ 18. Caravan organizers disclosed their intended route to defendants, but during the caravan, a “primary group of demonstrators” left the designated route and drove into downtown. Id. ¶ 18. Despite knowing or suspecting that the competing groups might eventually meet downtown, defendants did not block the caravan from leaving the pre-planned route. Id. ¶ 21. Mayor Wheeler “deployed a minimal PPB presence,” and ordered PPB officers to “stay out of sight” and allow the demonstrators to “express their emotions.” Id. ¶¶ 19, 21. PPB announced on social media that the caravan was traveling through downtown and encouraged people to avoid the area if possible. Id. ¶ 20. The anticipated “skeletal and passive police presence” on August 29, 2020, “fostered a culture of vigilante policing between the opposing factions, which filled the void created by a lack of policing.” Id. ¶¶ 30, 33
Danielson was walking in downtown Portland with a companion on the evening of August 29, 2020. Id. ¶ 14. Another individual named Michael Reinoehl hid inside a parking garage as Danielson and his companion walked by. Id. Reinoehl then emerged and shot Danielson twice; Danielson died at the scene. Id.
Reinoehl was apparently known to police as he had been arrested in July of 2020 during another demonstration and “charged with possessing and concealing a loaded firearm in public, resisting arrest, and interfering with a public safety officer.” Compl. ¶ 17, ECF 1.
Plaintiff represents Danielson's estate and alleges that defendants “created a vacuum where peacekeeping efforts and criminal accountability should be” and that “in its place, an environment of vigilantism emerged that ultimately led” to Danielson's death. Id. ¶ 4. Plaintiff alleges claims for deprivation of Danielson's substantive due process rights under the Fourteenth Amendment and state law negligence.
Although plaintiff alleges the federal constitutional claim as a violation of Danielson's procedural due process rights, see Compl. 12, ECF 1, the allegations are better understood as a substantive due process claim, as plaintiff acknowledges. Resp. 15 n.1, ECF 22.
III. Discussion
Defendants Mayor Wheeler and the City (hereafter “defendants”) move to dismiss plaintiff's federal claim because, in short, the Due Process Clause of the Constitution does not “impose an affirmative obligation on the State” to protect an individual from, among other things, the criminal acts of a third party. Mot. Dismiss 10, ECF 15 (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989); Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011)). Defendants move to dismiss plaintiff's state law negligence claim because “failure to protect is not a viable claim under state law,” and even if it were, defendants assert that their conduct is insulated by the doctrines of discretionary immunity and immunity for “civil commotions.” Id. at 24, 27.
A. Judicial Notice
As an initial matter, in response to defendants' motion, plaintiff requests that the court take judicial notice of a substantial amount of additional materials, including news articles, police reports, and online videos. Resp. 9-14, ECF 22. In resolving a Rule 12(b)(6) motion, review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh'g, 275 F.3d 1187 (9th Cir. 2001). The Ninth Circuit has identified two exceptions to this general rule: (1) “a court may consider material which is properly submitted as part of the complaint,” and “[i]f the documents are not physically attached to the complaint, they may be considered if the documents' authenticity . . . is not contested and the plaintiffs' complaint necessarily relies on them”; and (2) “under Fed. R. EVID. 201, a court may take judicial notice of matters of public record,” but “a court may not take judicial notice of a fact that is subject to reasonable dispute.” Allshouse v. Caliber Home Loans, Inc., No. CV1401287DMGJCX, 2014 WL 12594210, at *2 (C.D. Cal. Oct. 29, 2014) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (internal quotations and citations omitted)).
None of plaintiff's proposed documents satisfy either exception. Plaintiff's complaint does not mention these proffered materials, much less “necessarily rely” on them. Gumataotao v. Dir. of Dep't of Revenue & Tax'n, 236 F.3d 1077, 1083 (9th Cir. 2001) (denying request for judicial notice where plaintiff did not reference any of the extrinsic evidence in pleadings). And while the court may take judicial notice of the existence of the proffered materials, plaintiff asks the court to go further and draw inferences from the materials to establish, among other things, Danielson's and Reinoehl's political affiliations, the sequence of events on August 29, 2020, and the defendants' actions before and during that day. Resp. 9-11, ECF 22. These types of facts are not properly subject to judicial notice. See Lee, 250 F.3d at 689 (“[A] court may not take judicial notice of a fact that is “subject to reasonable dispute.”) (quoting Fed.R.Evid. 201(b)).
B. Substantive Due Process
Section 1983 provides a civil action against any person who, acting under the color of law, deprives another of any “rights, privileges, or immunities secured by the Constitution and laws[.]” 42 U.S.C. § 1983. A § 1983 claim requires both (1) the deprivation of a right secured by the U.S. Constitution or federal statute, and (2) that the person who committed the deprivation was acting under the color of law.
“As a general rule, members of the public have no constitutional right to sue [public] employees who fail to protect them against harm inflicted by third parties.” Hernandez, 897 F.3d at 1133 (quoting L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992)) . The state-created danger exception to that general rule applies when government employees “affirmatively place the plaintiff in a position of danger,” or in other words, the government actors created or exposed to individuals a danger that they otherwise would not have faced. Id. (citing Kennedy v. City of Ridgefiled, 439 F.3d 1055, 1061 (9th Cir. 2006)) . The affirmative actions must “create an actual, particularized danger” that causes a foreseeable injury to the plaintiffs. Id. (citing Kennedy, 439 F.3d at 1063; Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003)) . The state actor must also have acted with “deliberate indifference to a known or obvious danger.” Herrera v. Los Angeles Unified School District, 18 F.4th 1156, 1158 (9th Cir. 2021) (quoting Patel, 648 F.3d at 971-72.
“In determining whether a state actor placed a person in danger, courts do not look at what options may have been available to a defendant to make the area safer.” Sinclair v. City of Seattle, No. 221CV00571JCCJRC, 2021 WL 6053883, at *3 (W.D. Wash. Sept. 21, 2021), report and recommendation adopted, No. C21-0571-JCC, 2021 WL 5049838 (W.D. Wash. Nov. 1, 2021) (citing Martinez v. Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019)). “Instead, courts consider whether the state actor left the person in a situation that was more dangerous than the one in which they found” the person. Id. (quoting Kennedy, 439 F.3d at 1063) (simplified).
Plaintiff alleges the following actions by defendants Mayor Wheeler and the City:
• Adopting and maintaining a policy of providing “only a skeletal police presence with orders to stay out of sight and apart from demonstrators,” which in turn emboldened demonstrators to engage in unlawful and violent behavior;
• Providing “preferential treatment to certain demonstration groups” which led to “all groups involved to preemptively and defensively arm themselves”;
• Failing to use adequate crowd control policies, or alternatively delegating that authority to “armed private security details within demonstration groups;” and
• Failing to investigate “the armed private security details of demonstration groups.”Compl. ¶¶ 37a-i, ECF 1.
But these actions are not specific to Danielson; rather, they are generalized and aimed at the public-at-large and they are different than the types of affirmative actions that have been the basis of “state-created danger” liability. For example, the plaintiffs in Hernandez v. City of San Jose attended a pro-Trump rally in 2016 at a convention center in San Jose; a crowd of anti Trump protestors gathered outside. 897 F.3d at 1129. Officers from the San Jose Police Department on crowd control patrol witnessed or were informed about attacks against rally attendees outside the center before and during the rally. Id. As the plaintiffs left the rally, officers allegedly “directed them into” the mob of violent protestors waiting outside. Id. The officers only allowed the plaintiffs to exit the convention center at a single point and down a single route leading into the anti-Trump crowd. Id. Officers actively blocked alternative exits to the building and other, safer routes the plaintiffs could have followed to avoid the counter-protestors. Id. at 1129-30. The counter-protestors then allegedly physically assaulted, robbed, and threw things at the plaintiffs. Id. at 1130.
The Ninth Circuit held that these allegations were sufficient to state a claim under the state-created danger doctrine because the officers actively prevented the plaintiffs from leaving through alternative exits and via safer routes, thus directing the plaintiffs into harm's way and “placing them in a more dangerous position than the one in which they found themselves.” Id. at 1133 (citing Penilla, 115 F.3d at 710) (internal quotation marks omitted).
Here, plaintiff does not allege that any government actor took any affirmative action toward Danielson that paced him in danger. The complaint alleges that Danielson was “walking” downtown with another individual before going past the parking garage where Reinoehl had “concealed himself.” Compl. ¶ 14, ECF 1. The complaint does not allege that any government actor encountered Danielson before he was shot, or even knew that Danielson was downtown, and no state actor took any actions specific to him or forced him into a “worse position.” Unlike the officers in Hernandez, whose took direct actions against specific plaintiffs by forcing them to walk into a dangerous crowd, here it was Danielson's own actions, without any direct interference or involvement from government actors, that placed him at risk.
A pair of recent cases from Seattle further demonstrate the difference between, on the one hand, affirmative actions by state actors against a known plaintiff and, on the other, the plaintiff's own actions without any direct involvement from a state actor, which created the danger that caused the plaintiff harm. In June of 2020, amid the same types of civil rights protests that form the background of the current dispute, the City of Seattle “abruptly deserted” the Seattle Police Department's East Precinct in the Capital Hill neighborhood. Hunters Capital, LLC v. City of Seattle, 499 F.Supp.3d 888, 893 (W.D. Wash. 2020); Sinclair, 2021 WL 6053883, at *3. The area was then occupied by individuals who declared it a “no-cop” zone and used “large barriers” the city “left behind to block off streets” around the precinct. Hunters Capital, 499 F.Supp.3d at 893. The area became known as the “Capitol Hill Organized Protest” or “Capitol Hill Occupying Protest” (“CHOP”). Id.
The plaintiffs in Hunters Capital included businesses and residents located or living inside the CHOP zone. Id. at 897-98. They alleged that the city “entirely handed over” the CHOP zone to demonstrators, and provided “medical equipment, washing/sanitation facilities, portable toilets, nighttime lighting, and other material support.” Id. at 894. They further alleged that city leaders “communicated clearly to CHOP participants that they may continue occupying the area,” and the mayor suggested that the city “agreed to deploy police to CHOP only for ‘significant life-safety issues,' such as ‘an active shooter incident, an assault, a structure fire, significant medical emergency, and other incidents that threaten a person's life safety.' ” Id.
The plaintiffs asserted a substantive due process claim against the city, alleging that the city's “affirmative actions exposed them to actual, particularized harm that they otherwise would not have faced.” Id. at 899, 902. Specifically, the plaintiffs alleged that the city “adopted a ‘no response' strategy with respect to CHOP, after negotiating with CHOP participants,” which “resulted in police and other emergency personnel refusing to respond to 9-1-1 calls made from within or near CHOP.” Id. at 902. “Some [p]laintiffs allegedly called 9-1-1 to report incidents involving personal injuries or threats of personal injury, but they were unable to secure assistance.” Id. Further, the plaintiffs alleged that the city “provided concrete barriers to CHOP participants and allowed them to seal off Plaintiffs' neighborhood from the rest of the city,” and that their resulting injuries were foreseeable and the city was deliberately indifferent “to this known danger.” Id. These allegations were sufficient to state a claim because the city “encouraged CHOP participants to wall off the area” and “agreed to a ‘no response' zone within and near CHOP's borders,” which “foreseeably placed the plaintiffs in a worse position that they would been” without any city intervention. Id. (simplified).
Plaintiff's case, however, is nearly identical to the other case arising out of the CHOP, Sinclair v. City of Seattle. There, the plaintiff was not a resident living in or a business located in the CHOP zone, but rather the mother of an individual who had “visited CHOP,” where he was shot and killed by another person with whom he “had a history of antagonism.” 2021 WL 6053883, at *1-2. Onlookers took the injured son to a medical tent inside the CHOP zone. Id. at *2. Allegedly, the Seattle Fire Department had an ambulance standing by about a block away, and the medics were “apparently waiting for a green light” from the Seattle Police Department, but a miscommunication between the departments delayed any police or fire response for about 20 minutes. Id. By the time police entered the area, the son had died. Id.
The plaintiff brought a substantive due process claim against the city, under the “state-created danger” doctrine. Id. The complaint was dismissed for failing to state a claim because it did not allege there had been any contact between the plaintiff's son and any police officer or other municipal representative before the altercation. Id. at *3. The son “entered CHOP on his own accord” and the complaint did not allege that any city representative knew about the history of antagonism between the son and the person who shot him. Id. And while it was true that the complaint alleged a “general risk of increased gun violence at CHOP, it was not a particular risk to” the son, and thus there were no facts alleging that the city's actions increased the danger to the son specifically. Id. (emphasis in original).
Similar to the City of Seattle's “no response” policy and the leeway it allowed the CHOP participants to police themselves, plaintiff here alleges defendants adopted “policies of nonintervention” regarding the competing demonstrations and “fostered an environment in which demonstrators on both sides could reasonably anticipate a skeletal and passive police presence.” Compl. ¶¶ 23, 30, ECF 1. The deceased son in Sinclair came to the CHOP zone “on his own accord”; similarly, here, Danielson was “walking” in downtown Portland. The complaint does not allege that any government actors directed Danielson to the location where he was shot, prevented him from leaving that area, or had any contact with him or were even aware of his presence downtown. Id. ¶ 7. Like Sinclair, the gravamen of plaintiff's complaint is that the government actors created a “general risk” of increased violence in the relevant area. And like Sinclair, the allegations here fail to show how the government's actions created “a particular risk” to Danielson. The similar risk of danger that befell both the plaintiff's son in Sinclair and Danielson here was one they created for themselves by voluntarily going to a dangerous area. Thus, it was not the government's action or inaction that created the risk of harm to Danielson in this case and there is no substantive due process violation.
According to the complaint, Portland Police Bureau used Twitter to announce less than an hour before Danielson was shot that a political rally was “caravanning throughout downtown Portland and that there have been some instances of violence between demonstrators and counter demonstrators” and followed up with a “sub-Tweet to avoid downtown, if possible.” Compl. ¶ 20, ECF 1.
Hunters Capital is distinguishable because the plaintiffs were already located within the CHOP zone when the city adopted its “no response” policy; thus, the city's policy had a direct impact on each of them. For example, one plaintiff alleged that his apartment was broken into four times, and each time he contacted the police, but they never responded. Hunters Capital, 499 F.Supp.3d at 898. One officer told this plaintiff that the police could not respond due to the apartment's location within the CHOP zone and asked the plaintiff to meet the officer “eight blocks from his apartment.” Id. This was a danger particularized to a specific individual whom the city knew was located within the CHOP zone, and the dangers were plausibly alleged to be the result of the city's abdication of the CHOP zone to protestors. Id. There are no such allegations here, and therefore plaintiff's complaint fails to state facts sufficient to plausibly allege a substantive due process claim.
Given the complaint does not plausibly allege any state actor created an actual, particularized danger to Danielson, it is not necessary to reach the other elements of the “state-created danger” analysis. See Patel, 648 F.3d at 974.
C. State Law Negligence
Defendants also move to dismiss plaintiff's state law negligence claim. “[T]raditionally, the elements of common-law negligence required a plaintiff to plead and prove that the defendant owed the plaintiff a duty, that the defendant breached that duty, and that the breach was the cause-in-fact of some legally cognizable damage to the plaintiff.” Chapman v. Mayfield, 358 Or. 196, 205 (2015) (citation and quotation marks omitted). However, under Oregon's “contemporary jurisprudence, the traditional duty-breach analysis is subsumed in the concept of general foreseeability, unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty.” Id. (citation and quotation marks omitted). “Foreseeability (what prospectively might happen) is considered separately from causation (what retrospectively did happen) and serves as a limit on the scope of liability” to cover only those events that “could have been anticipated because there was a reasonable likelihood that it could happen.” Buchler v. State By & Through Oregon Corr. Div., 316 Or. 499, 511-12 (1993) (citations and quotation marks omitted).
Here, there is a question whether Reinoehl's criminal conduct that caused Danielson's death was “foreseeable” to defendants. Under Oregon law, “it is generally foreseeable that criminals may commit crimes,” but “that level of foreseeability does not make the criminal's acts the legal responsibility of everyone who may have contributed in some way to the criminal opportunity.” Id. at 511. Nevertheless, even assuming, without deciding, that Danielson's death was a foreseeable consequence of defendants' actions or omissions, plaintiff's complaint would still fail to state a claim because defendants are immune from liability under the “discretionary immunity” doctrine codified as part of the Oregon Tort Claims Act. ORS 30.265(6)(c).
That statute provides that “[e]very public body and its officers, employees, and agents acting within the scope of their employment or duties . . . are immune from liability for . . . [a]ny claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” ORS 30.265(6)(c). This discretionary immunity applies to “actions that embody ‘a choice among alternative public policies by persons to whom responsibility for such policies have been delegated.' ” Ramirez v. Hawaii T & S Enterprises, Inc., 179 Or.App. 416, 419 (2002) (quoting Miller v. Grants Pass Irrigation District, 297 Or. 312, 316 (1984)). Discretionary immunity is subject to a three-part test: (1) the action must have required “the exercise of judgment, as opposed to the mere implementation of a judgment made by others”; (2) the action must “involve public policy”-in other words, it “generally must take place at a relatively high level of public authority” and the mere “routine decisions which every employee must make” do not qualify; and (3) the “policy choice must be exercised by someone with authority to do so.” Id. at 419-20 (citations and quotation marks omitted).
As plaintiff's complaint alleges, Mayor Wheeler was the Commissioner of the Portland Police Bureau at the relevant time. Compl. ¶ 7, ECF 1. For months, between May 2020 and November 2020, downtown Portland was “the location of nightly demonstrations,” and “tensions between rival demonstrators continuously grew, escalating in physical and property violence later in the evenings[.]” Id. ¶¶ 11, 13. On August 29, 2020, Mayor Wheeler and other unidentified municipal actors knew or suspected that the caravan would be driving through the city, that a counter-protest was planned for downtown, and that the two groups were likely to encounter each other. Id. ¶¶ 18, 21. Plaintiff alleges that, in response to these planned events, defendants “deployed a minimal [police] presence” and ordered officers to “stay out of sight” and “allow the protestors to ‘express their emotions.' ” Id. ¶ 21. Plaintiff asserts this was consistent with Mayor Wheeler's previous proposal that PPB change its response to the “continuing escalation of violence at the nightly demonstrations,” and adopt a more passive approach to policing the increasingly unruly crowds. Id. ¶ 24.
Defendants' decisions regarding how to respond to the ongoing civil unrest in downtown Portland easily qualifies for discretionary immunity. The choices they made involved a weighing of priorities, the availability and effectiveness of resources, and past experiences in the face of difficult circumstances. See Ramirez, 179 Or.App. at 422 (holding that decision “to divert city employees from sidewalk inspection duties to flood-related duties . . . involved the exercise of judgment; in putting flood-related activities before sidewalk inspection, the decision prioritized public services according to perceived needs.”). According to the complaint, Mayor Wheeler decided how to approach policing the protests, and as the highest municipal executive officer and Commissioner of PPB, he had the authority to make and delegate decisions about how PPB should attempt to handle the situation. Comp. ¶¶ 17, 21, 24-25, ECF 1; see also Ramirez, 179 Or.App. at 422 (affirming grant of summary judgment on discretionary immunity where decision was “high-level . . . involving public policy issues, as opposed to a routine, day-to-day choice by a line employee. And the decision emanated from the city council itself, which has the authority to make and to delegate decisions regarding the allocation of city resources.”). These decisions exemplified the exercise of judgment, made at the highest level of municipal decisionmaking, by those with authority to make such decisions, and are therefore immune from liability under ORS 30.265(6)(c).
Because plaintiff's allegations are subject to discretionary immunity, it is not necessary to analyze whether those allegations are also subject to so-called “civil commotion” immunity under ORS 30.265(6)(e).
IV. Leave to Amend
As mentioned above, in response to defendants' motion to dismiss, plaintiff has offered new facts based on materials extrinsic to the complaint. Plaintiff requests that, if these materials are not subject to judicial notice, he should be given leave to amend the complaint to add these additional factual allegations. Resp. 15, ECF 22. The proposed new facts include that Danielson was a “supporter of the Patriot Prayer group” and Reinoehl supported Antifa. Resp. 9, ECF 22. Also, Danielson had been part of a “flag wave” in the Portland suburbs earlier on August 29, 2020, and had come downtown with another individual to “observe” the protests. Id. at 11. Danielson had armed himself with a pistol, a retractable baton, hard-knuckled gloves, a respirator, and bear mace. Id. Several times, police officers cleared from the streets counter-protestors who had blocked the caravan's route into downtown. Id. at 9. Additionally, plaintiff offers a video interview with Reinoehl after the incident, and a report from the City's Independent Police Review that details PPB's “interactions with right-leaning groups” and “their willingness to affirmatively delegate its policing authority” to the competing groups “and assure them that consequences would not arise related to their activities.” Id. at 11-15.
Rule 15(a) directs courts to “give leave freely when justice so requires,” and the Ninth Circuit allows courts to give leave to amend even when it is not requested. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). Rule 15 and cases applying the rule create “a liberal policy in favor of granting leave to amend so that matters may be decided on merit rather than bare pleadings.” Harrison v. Harry & David Operations, Inc., No. 1:18-CV-00410-CL, 2021 WL 2660033, at *1 (D. Or. June 28, 2021) (citation and quotation marks omitted); Yentz v. Nat'l Credit Adjusters, LLC, No. 3:20-CV-01364-AC, 2021 WL 1277961, at *2 (D. Or. Feb. 15, 2021), report and recommendation adopted, (D. Or. Apr. 6, 2021). Where amendment would be futile, it is appropriate to dismiss the claim with prejudice. See Universal Mortg. Co. v. Prudential Inc. Co., 799 F.2d 458, 459 (9th Cir. 1986) (“Although leave to amend ‘shall be freely given when justice so requires,' it may be denied if the proposed amendment either lacks merit or would not serve any purpose because to grant it would be futile in saving the plaintiff's suit.”). A proposed amendment is futile if the plaintiff could not allege a set of facts that would constitute a claim or defense. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988), overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009).
None of the additional facts proffered by plaintiff change the fundamental problems with the complaint. There is still no basis for finding that any government actor took affirmative action that created a specific and particularized danger that caused Danielson's harm; the alleged facts do not indicate that any government actor interacted with Danielson in any way. Hernandez, 897 F.3d at 1133. Even if, as the new facts provide, officers cleared counter-protestors from the road several times to allow the caravan to travel into downtown, that is not significantly different than any of the original actions alleged as part of plaintiff's initial complaint. See Compl. ¶ 31, ECF 1 (alleging that defendants failed to use the same “tactic of diverting vehicular and/or foot traffic” as they had for previous demonstrations). At best, those actions may have increased the general risk inherent to anyone in downtown at the time; however, the state-created danger doctrine requires showing that government actors created a particular risk specific to the harmed individual. Sinclair, 2021 WL 6053883 at *3. Nor do the proposed additional facts have any bearing on the analysis on “discretionary immunity” regarding plaintiff's state law negligence claim; they do not change the fact that the decision for how to police the ongoing protests was an exercise of judgment made at the highest level of municipal government by the person with authority to make such a decision. Ramirez, 179 Or.App. at 422
Given these problems persist, even with the additional facts that plaintiff proffers, plaintiff's proposed amendment is futile and dismissal with prejudice is appropriate; there do not appear to be any facts plaintiff could allege to change the result.
RECOMMENDATIONS
Plaintiff's motion for judicial notice (ECF 22) should be DENIED. Defendants' motion to dismiss (ECF 15) should be GRANTED because plaintiff's complaint fails to state a substantive due process violation and the alleged state law negligence claim is subject to discretionary immunity under ORS 30.265(6)(c). Plaintiff's claims against defendant Mayor Wheeler and the City of Portland should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, June 17, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are 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 a judgment.