Opinion
Civil No. 00-047-HA
July 13, 2001
Spencer M. Neal, Ginsberg Neal, Portland, Oregon, Attorney for Plaintiff.
Harry Auerbach, Bill Manlove, Portland, Oregon, Attorneys for Defendants.
OPINION AND ORDER
On January 7, 2000, plaintiff filed this action, asserting claims seeking relief under 42 U.S.C. § 1983 for alleged violations of constitutional rights and deprivations of liberty interests arising from ORS 181.575. Both parties seek an award of summary judgment, and oral argument regarding these motions was heard on April 23, 2001. For the following reasons, plaintiff's motion for partial summary judgment (doc. # 61) is denied, and defendants' motion for summary judgment (doc. # 64) is granted.
BACKGROUND
Plaintiff alleges the Portland Police made a preliminary designation of him as a "criminal gang affiliate," in part because he is a member of a motorcycle club and wears patches and clothing (referred to as "colors") signifying that membership, and that defendants have interfered with his constitutional rights by collecting, maintaining and distributing information about plaintiff solely as a result of his non-criminal, constitutionally protected activities. Plaintiff's amended complaint asserts that the city of Portland has violated his constitutional rights under the First and Fourteenth Amendments based upon the practice of the Portland police to collect information and to designate persons as criminal gang associates. Plaintiff also alleges that the city police have engaged in activity that plaintiff believes is in violation of ORS 181.575.
The summary judgment motions from both parties essentially present the same question: is there a genuine issue of material fact regarding alleged violations of the First Amendment and/or the Due Process clauses of the United States Constitution? This court has considered the oral argument and briefings from both parties, and concludes that defendants are entitled to summary judgment.
STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
Special rules of construction apply to evaluating summary judgment motions: 1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; 2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and 3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. T.W. Electrical Service v. Pacific Electrical Contractors, 809 F.2d 626, 630 (9th Cir. 1987). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
The issue of material fact required by Rule 56 to entitle a party to proceed to trial need not be resolved conclusively in favor of the party asserting its existence; all that is required is sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Id. At this stage of the litigation, the judge does not weigh conflicting evidence or make credibility determinations. These determinations are the province of the fact finder at trial. Id., see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (on a motion for summary judgment, the court is not to weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial).
DEFENDANTS MOTION FOR SUMMARY JUDGMENT
Defendants seek summary judgment on both of plaintiff's claims, arguing that there have been no violations of the First Amendment, and that there are no unconstitutional deprivations of liberty under ORS 181.575. Defendants also assert that defendants Mayor Katz and Officer Gunderson are entitled to qualified immunity. Plaintiff concedes that Katz and Gunderson are not individually liable, but nevertheless maintains that these defendants would be subject to equitable relief in plaintiff's favor granted by this court to prevent future violations of constitutional rights to free expression and due process of law. This court agrees that defendants are entitled to summary judgment.
QUESTION PRESENTED REGARDING PLAINTIFF'S FIRST AMENDMENT CLAIM
This court has concluded previously that plaintiff adequately described allegations that suggest that his constitutionally protected expressive conduct (wearing expressive club colors) may have been burdened unduly by defendants. The relevant allegations in plaintiff's amended complaint and arising from the parties' discovery consist of claims that the defendants are collecting and maintaining non-criminal information about plaintiff's association with his motorcycle club, and sharing this information with other law enforcement agencies. In June, 1998, Officer Gallagher stopped plaintiff and Frank Neagle, a member of the "Outsiders' Club," another motorcycle organization "because they had committed traffic infractions." Gallagher Affidavit, Para. 3. The officer completed Field Contact Reports ("FCRs") about the stop, and noted that plaintiff and Neagle were wearing the colors of their respective clubs. While the two were stopped for a traffic infraction, the officer testified in deposition that he had no reason to believe that they were engaged in criminal activity. The reports were later entered into the police data bank. Officer Gunderson also stopped plaintiff on at least two occasions because he observed plaintiff commit traffic infractions. Gunderson Affidavit at Para. 1; Gunderson Supplemental Affidavit at Para. 4. Gunderson has issued plaintiff citations for some of these infractions. Gunderson Supplemental Affidavit at Para. 4.
Gunderson also initiated the process established in Portland for designating plaintiff as a gang affiliate based upon plaintiff's association with the Brother Speed motorcycle club. Gunderson Affidavit at Para. 3. Plaintiff appealed this process, and avoided the designation. Further, Gunderson photographed plaintiff and distributed his picture to other law enforcement officials.
Plaintiff was stopped by Officer Lefler in May, 1999, "because he did not come to a complete stop at a stop light before turning right. . . ." Lefler Affidavit at Para. 2. This stop lasted five minutes, and plaintiff was released without a citation. Id. at Para. 3.
Later, in October, 1999, police officers investigated an excessive noise complaint at the Jolly Inn. During this investigation, license plate numbers on motorcycles that were parked outside of the establishment were recorded by Officer Sharp, and she was compelled to remove a cloth plaintiff had placed over his license plate when plaintiff refused to do so. Sharp Deposition Excerpt, pp. 2-9, Exhibit 6 to Defendants' Statement of Facts.
The Portland police have a Criminal Intelligence Unit (CIU) that collects information. FCRs are used to gather data, and the information collected is stored in the Portland Police Data System ("PPDS"). Files are maintained for six to ten years. Lieutenant Randy Kane of the CIU acknowledges that CIU has gathered, and is gathering, information about plaintiff's club to assist in the investigation and development of racketeering charges against it. Kane Affidavit at Para. 3. Kane asserts that plaintiff's club is being investigated for criminal activities involving stolen vehicles, forgery conspiracies, liquor law violations, and harboring fugitives. Id. at Para. 4.
Plaintiff contends he has been stopped, questioned and investigated merely because he was wearing colors. Plaintiff asserts that this conduct is intended to chill his freedom to express his membership. In Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300-01 (9th Cir. 1999), the Ninth Circuit recognized that a plaintiff asserting a First Amendment violation claim must establish three elements: that plaintiff was engaged in constitutionally protected free speech activity; that the defendants' actions caused an injury that would chill a person of ordinary firmness from continuing in that activity; and that the defendants specifically intended to inhibit the plaintiff's constitutionally protected speech.
ANALYSIS
Defendants first contend that there is no valid First Amendment claim because plaintiff himself admits that he is not engaged in constitutionally protected free speech activity when he wears colors. At his deposition, plaintiff was asked what wearing his colors means to him. Plaintiff said he did not understand the question. Defendants' counsel then explained that in this lawsuit, plaintiff's attorney is claiming that when plaintiff wears colors, plaintiff is trying to say something; counsel then asked plaintiff "when you wear your colors, are you attempting to say something to the people on the road that see you?"
Plaintiff replied, "I still don't understand the question." When asked what he did not understand, plaintiff responded, "Say to somebody on the road." Counsel then asked, "Are you trying to communicate any type of message to people . . . you see on the road when you wear your colors?" Plaintiff responded, "No."
Plaintiff's counsel then suggested that the question remained unclear. Later, on re-direct examination, plaintiff's counsel elicited the explanation that plaintiff wears his colors to indicate his membership in Brother Speed. Defendants argue that plaintiff understood the questions posed to him, and that he should be bound by his answer that he is not trying to convey a message when he wears his colors. The rehabilitation by plaintiff's counsel amounted to eliciting plaintiff's explanation that he wears colors to "represent" his membership in Brother Speed. Defendants assert this is not constitutionally protected free speech activity.
This court agrees that there is a serious question as to whether plaintiff's choice to wear club colors amounts to constitutionally protected free speech activity. The referenced colloquy among plaintiff and counsel during his deposition provides little assistance to answering this question. However, because defendants are entitled to summary judgment on other grounds, this court need not resolve this difficult question. Even if wearing colors should be deemed to be constitutionally protected free speech activity, the second element of a free speech claim, as described above, requires that the defendants' actions caused an injury that would chill a person of ordinary firmness from continuing in that activity. There is no serious dispute that plaintiff's encounters with Portland police fail to include examples of intimidation, threats to plaintiff about wearing his colors, or any demonstrations of force. Each of the specific encounters between plaintiff and the police was supported by circumstances justifying the encounter: three stops for traffic violations, and one investigation for excessive noise at a public establishment. Officer Gunderson's attempt to have plaintiff designated as a gang affiliate was in accordance with a process implemented by the city, and plaintiff successfully challenged the process. Consequently, there is no evidence supporting an allegation that defendants' actions caused an injury that would "chill a person of ordinary firmness from continuing in free speech activity."
The court also concludes that plaintiff is unable to show that the City of Portland (the only defendant not entitled to qualified immunity) specifically intended to inhibit the plaintiff's constitutionally protected speech through the exercise of a policy, practice or custom. In order for a municipal policy or practice to subject a city to liability under 42 U.S.C. § 1983, that policy or practice must demonstrate deliberate indifference by policy makers to the deprivation of plaintiff's rights. Blair v. City of Pomona, 223 F.3d 1074, 1079 (9th Cir. 2000). Plaintiff relies on the facts that when he was stopped by police, the police sometimes recorded that he was wearing colors. Plaintiff argues that this record establishes that the police actions "were intended to burden" the constitutional right to wear colors. Allegedly, this "burdening" is demonstrated in part by the police policy of designating people as members of criminal gangs based in part because of wearing colors. Plaintiff contends that enforcing this policy is an effort to inhibit plaintiff's constitutionally protected speech through "the exercise of a policy, practice or custom."
This court concludes that there is insufficient evidence to raise an issue of fact as to whether the City of Portland specifically intended to inhibit the plaintiff's possible constitutionally protected free speech activity through the exercise of a policy, practice or custom. Assuming, without deciding, that plaintiff's choice of wearing club colors is a constitutionally protected free speech activity, the challenged conduct and methods of police data-collecting, while pertaining at least in part to the wearing of colors, fall short of evincing an intent to chill, or a deliberate indifference toward, plaintiff's free speech activities on the part of the city. Defendants are entitled to summary judgment on plaintiff's First Amendment claim.
QUESTION PRESENTED REGARDING DEPRIVATION OF DUE PROCESS
The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law. . . ." U.S. Const. Amend. XIV, § 1; see Hewitt v. Helms, 459 U.S. 460, 466 (1983). A liberty interest may arise from either of two sources: the due process clause itself or state law. Hewitt, 459 U.S. at 466; see also Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1987).
State laws "create a protected liberty interest by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (requiring a plaintiff to show that the state law contains particularized and objective standards or criteria). "The state statutes in question must do more than merely channel administrative discretion; they must be `explicitly mandatory.'" Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting Hewitt, 459 U.S. at 472). The law "must direct that a given action will be taken or avoided only on the existence or nonexistence of specified substantive predicates." Toussaint, 801 F.2d at 1094. "[T]he liberty interest is created when the word `shall' is used to mandate certain procedures. . . ." Id. at 1098 (citing Hewitt, 459 U.S. at 472).
Plaintiff asserts a due process deprivation claim on the basis that the police conduct violates his right not to have information collected about him in the absence of evidence of criminal wrongdoing. This is based on plaintiff's "right to privacy" and right to be left alone, as well as upon the liberty interest created by ORS 181.575.
The statute at issue, ORS 181.575, prohibits Oregon law enforcement agencies from collecting or maintaining information about a group's or individual's political religious or social views "unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct."
This court concluded previously that a protected liberty interest is created by the statute, because it places "substantive limitations on official discretion." Order issued May 16, 2000, quoting Olim, 461 U.S. at 249. The language of the statute contains objective criteria and requires mandatory action. Under its terms, there is no room for discretion — the word "shall" and the particularized criteria combine to create a liberty interest in being free from the collection and maintenance of information about oneself in the absence of (1) a direct relationship to a criminal investigations and (2) reasonable grounds for suspecting that one is or may be involved in the criminal conduct.
Treating all of plaintiff's factual allegations as true and construing them in the light most favorable to plaintiff, this court concluded that plaintiff adequately pled liberty interests, and he was permitted to maintain this litigation in pursuit of protection of such interests under the Fourteenth Amendment and 42 U.S.C. § 1983. See Order issued May 16, 2000.
1. Did this Court Err in Concluding that a Liberty Interest is Created?
Defendants first request that this court reconsider its conclusion that ORS 181.575 creates a liberty interest protected by the United States Constitution. Defendants refer to Campbell v. Burt, 141 F.3d 927 (9th Cir. 1998), which defendants assert interprets the doctrine under which a state law may create a federal liberty interest and limits the doctrine to "a certain core of prisoners' rights." Id. at 930.
This court declines to extrapolate a principle from the dicta in Campbell, which was decided upon qualified immunity issues, that only prisoners can have state-created liberty interests arising from statutes. Defendants' request for reconsideration of this court's prior ruling is rejected.
2. Did Defendants Violate ORS 181.575?
Plaintiff argues Portland is in plain violation of ORS 181.575 because information was collected from plaintiff solely because plaintiff wore club colors. Plaintiff refers to Officer Gunderson's decision to initiate the gang affiliation designation because he believes plaintiff's club is a criminal gang. Plaintiff also asserts that Officer Sharp collected information arising from a complaint of excessive noise at the Jolly Inn because she expected people to complain about her conduct at the scene, and not because of reasonable suspicions regarding criminal activity. Plaintiff also contends that Officer Gallagher collected information when he observed plaintiff merely associating with another club's member, and that the officer lacked any belief that the two were engaged explicitly in criminal activity. Plaintiff says this violates the prohibition against law enforcement agencies collecting or maintaining information about a group's or individual's views "unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct."
This court concludes that defendants did not violate ORS 181.575 or plaintiff's due process rights. In each of the incidents relied upon by plaintiff, the officers in question were acting reasonably while harboring suspicions of the possibility of criminal activity. Officer Sharp's report at the Jolly Inn was in response to a criminal investigation for excessive noise, and Sharp recorded plaintiff's license number after he failed to properly display his registration. Similarly, the other incidents arose after officers, based upon their training and experience, had reasonable beliefs that plaintiff's club might be a criminal gang. Lieutenant Kane of the CIU explains in his affidavit that reasonable suspicions that plaintiff's club is, or may be, involved in criminal activity have arisen from "confidential reliable informants, and from on-going investigations, including those conducted by other law enforcement agencies such as the Bureau of Alcohol, Tobacco and Firearms." Kane Affidavit at Para. 2. Kane discloses that agencies are developing a racketeering case against the club, and that there is information being gathered regarding the club's involvement in various criminal activities. Id. at Paras. 3-4.
Detective Michael Gibbons of the Boise Police Department, who has over 500 hours of training in outlaw motorcycle gang training, asserts that the federal Bureau of Alcohol, Tobacco and Firearms and the United States Marshal's Service "consider the Brother Speed Motorcycle Club to be an outlaw motorcycle club." Gibbons Affidavit at Para. 4. In accordance with this information, the affidavits of Lieutenant Kane and Officer Gunderson indicate that Portland police officers are trained to identify plaintiff's club as a criminal organization. Kane Affidavit at Para. 2; Gunderson Affidavit at Para. 4. Despite the inherent sensitivity of inquiring into the reasonableness of suspicions regarding criminal activities while there are on-going investigations, this court determines that the officers' challenged conduct regarding data collection of plaintiff and his club is, in fact, supported by reasonable grounds for believing plaintiff's club is, or may be, involved in criminal activities. Because there are reasonable grounds for believing that Brother Speed might be involved in criminal activity, the complained-of maintenance of information regarding the club's associations and activities has not been improper. This court concludes that plaintiff has been afforded due process that satisfies the requirements of the Due Process Clause. Plaintiff's interests in being free from the police collecting information about him is relatively minimal when contrasted with the police's legitimate interest in investigating and preventing serious crime by organized gangs. Defendants are entitled to summary judgment on plaintiff's claim of due process deprivations.
CONCLUSION
For the reasons provided above, defendants' motion for summary judgment (doc. # 64) is GRANTED. Plaintiff's motion for partial summary judgment (doc. # 61) is DENIED. This case is closed pursuant to the accompanying Judgment. Any other pending motions are denied as moot.
IT IS SO ORDERED.