Opinion
No. 3:18-cv-00800-HZ
05-03-2019
CHUCK CROCKETT, Plaintiff, v. CITY OF GRESHAM and OFFICER H. CARRANZA ID#53795, Defendant.
Chuck Crockett 1771 NE Bryant Street Portland, OR 87211 Pro Se Plaintiff David C. Lewis Richard P. Freud KRAEMER & LEWIS P.O. Box 1469 Lake Oswego, OR 97035 Attorneys for Defendants
OPINION & ORDER Chuck Crockett
1771 NE Bryant Street
Portland, OR 87211
Pro Se Plaintiff David C. Lewis
Richard P. Freud
KRAEMER & LEWIS
P.O. Box 1469
Lake Oswego, OR 97035
Attorneys for Defendants HERNÁNDEZ, District Judge:
Pro Se Plaintiff Chuck Crockett brings this civil rights action alleging violations of his Fourth, Fifth, and Fourteenth Amendment rights against Defendants City of Gresham and Officer H. Carranza ID#53795. Defendants move for summary judgment on all of Plaintiff's claims. Def. Mot. Summ. J. ("Def. Mot."), ECF 18. For the reasons that follow, the Court grants in part and denies in part Defendants' Motion for Summary Judgment.
BACKGROUND
Late in the evening on January 4, 2018, Plaintiff was stopped by Defendant Carranza, a Gresham Police Officer, while driving a Cadillac DeVille in southeast Portland. First Lewis Decl. Ex. 1 (Crockett Dep.) 15:12-15, ECF 19; Second Lewis Decl. Ex. 3 (Crockett Dep.) 13:9-12, ECF 24; First Crockett Decl. Ex. 8 ("Police Rept.") at 1, ECF 21. Defendant Carranza stopped Plaintiff because he believed Plaintiff was driving at night with non-functioning taillights. Police Rept. 1. In his report, Defendant Carranza also noted that the vehicle did not have license plates. Id. Photos of the vehicle taken by Defendant Carranza that evening show that the car had a trip permit in its rear window. First Lewis Decl. Ex. 8.
After approaching the car to talk to Plaintiff, the parties began to dispute the reason for the stop. Police Rept. 1. Plaintiff asked Defendant Carranza why he was stopping Plaintiff. Id. Defendant Carranza informed Plaintiff that he was driving without taillights, to which Plaintiff responded that the Officer was lying. Id. Plaintiff insisted that it was "impossible" because the lights and taillights are "automatically on at night." First Lewis Decl. Ex. 1 (Crockett Dep.) 30:10-16. According to Defendant Carranza, Plaintiff subsequently "reached toward his dashboard and manipulated a knob" causing "the head lights of the vehicle [to turn] on and off." Police Rept. 1. Plaintiff asserts that he "flicked the lights to show him that . . . the lights worked" and Defendant Carranza "got upset[,] . . . put his hand in the car[,] and almost hit [him] in the eye[.]" First Lewis Decl. Ex.1 (Crockett Dep.) 37:3-14.
Defendant Carranza asked Plaintiff for his driver license, registration, and proof of insurance. Police Rept. 1; First Lewis Decl. Ex. 1 (Crockett Dep.) 30:17-20. Plaintiff continued to insist Defendant Carranza had no basis to stop him and refused to provide the documents. Police Rept. 1; First Lewis Decl. Ex. 1 (Crockett Dep.) 30:21-31:13. Defendant Carranza responded that he had lawfully stopped him as his taillights were not turned on or non-functioning and that Plaintiff was required by law to provide his license. Police Rept. 1. Again, Plaintiff claimed that his lights were on and that he did not have to comply with Defendant Carranza's request. Id.
Defendant Carranza requested Plaintiff's license a second time, and Plaintiff responded that he did not have one and quickly recited his license number. Id. Plaintiff testified that he accidentally left his license at home. First Lewis Decl. Ex. 1 (Crockett Dep.) 32:22-25. Defendant Carranza asked Plaintiff to repeat it so he could write it down, and Plaintiff said that he had already provided it to the officer and "was no longer required to repeat it." Police Rept. 1.
Defendant Carranza informed Plaintiff that it was a crime to fail to carry or present his license. Id. Plaintiff insisted that Defendant Carranza had no reason to stop him and, therefore, that he was not required to identify himself. Id. Defendant Carranza responded that he had lawfully stopped him, and Plaintiff once again quickly recited his license number. Id. Defendant Carranza repeated the number back to Plaintiff to confirm that it was correct. Id. Plaintiff laughed and claimed he did not have to provide his driver license number anymore. Id.
Defendant Carranza then arrested Plaintiff for failing to carry or present his driver license. Id. In his deposition, Plaintiff testified that he was "pulled and yanked out of the car," put in handcuffs, and placed in the back of the patrol car. First Lewis Decl. Ex. 1 (Crockett Dep.) 92:6-16; id. at 20-24 (Dep. Ex. 8). Plaintiff was not read his Miranda rights. Id. at 95:16-17, 100:7-11. At some point after that, Plaintiff identified himself as Chuck Crockett. Police Rept. 1. After viewing a DMV photo of Plaintiff and confirming his identity, Defendant Carranza discovered that Plaintiff's license was suspended and issued Plaintiff a citation for driving while suspended. Id.; First Lewis Decl. Ex. 3.
Defendant Carranza indicated that Plaintiff's vehicle was "parked at an angle about 24 inches from the sidewalk curb on the north side of the street . . . . partially blocking the unmarked westbound lane on SE Alder St." Police Rept. 1. Accordingly, Defendant Carranza deemed the vehicle a hazard. Id.; First Crockett Decl. Ex. 11 (Tow Receipt) (indicating that the vehicle was "abandoned, parked illegally or hazardously"). Defendant Carranza inventoried and photographed the vehicle where it was parked. Police Rept. 2; First Lewis Decl. Ex. 8 (photograph of vehicle). The vehicle was subsequently towed. Police Rept. 2. One of the owners of the vehicle, Elyse Spencer, was on the Oregon coast at the time of the incident and unable to get back to Portland before Officer Carranza called for a tow truck. Second Lewis Decl. Ex. 6 (Spencer Dep.) 12:3-13:1; Second Crockett Decl. Ex. 5 ("Spencer Decl.") ¶ 1, ECF 28. Dorothy Wickersham, the other owner of the vehicle, and Phillip Sanders both arrived at the scene, but neither had a valid driver license. Second Lewis Decl. Ex. 4 (Wickersham Dep.) 20:15-18; Spencer Decl. ¶ 4; Second Lewis Decl. Ex. 5 (Sanders Dep.) 8:1-8.
Defendant Carranza then released Plaintiff. First Lewis Decl. Ex. 1 (Crockett Dep.) 78:13-80:4. He allegedly pressed Plaintiff against the patrol car and told him to spread his legs further and further. Id. at 78:13-25. Plaintiff objected to spreading his legs, and Defendant Carranza allegedly told him repeatedly to "stop resisting." Id. at 78:25-80:4. Finally, Plaintiff "screamed out for help," and Defendant Carranza laughed and told him "nobody is going to fucking help you." Id. at 79:8-15. Defendant Carranza then let Plaintiff out of his handcuffs. Id. at 79:17-24. Plaintiff thanked him for letting him out of the cuffs and walked away "cussing him out." Id. at 80:1-4. As a result of the officer's use of handcuffs, Plaintiff was left with red marks on his wrists. Id. at 87:1-90:15.
The citation issued to Plaintiff instructed Plaintiff to appear at the Multnomah County Circuit Court in East County at 5:00 PM on January 30, 2018. First Lewis Decl. Ex. 3 at 1. However, the courthouse was not open at that time. First Lewis Decl. Ex. (Crockett Dep.) 95:10-23. Because the court was closed when Plaintiff was supposed to appear, the ticket "went against" him. Id. at 96:1-5. Plaintiff's court date was reset. Id. at 96:6-9; Second Crockett Decl. Ex. 4.
Plaintiff subsequently filed this lawsuit in state court, alleging violations of his rights under the Fourth, Fifth, and Fourteenth Amendments. Notice of Removal Ex. 1 (Compl.), ECF 1; First Am. Compl. ("FAC"), ECF 5. Specifically, Plaintiff alleges that Defendant Carranza violated his Fourth and Fourteenth Amendment rights when they pulled him over without probable cause, removed him from his vehicle, detained him, used "unnecessary force" while detaining him, and searched his person and vehicle. Compl. 1. He alleges his Fifth Amendment rights were violated when he was detained and Defendant Carranza failed to read him his Miranda rights. Id. He contends that his due process rights were violated when "Officer Carranza . . . purposely falsified documents" and "intentionally put the wrong time to appear at court on the ticket." Id.; FAC 2. Plaintiff also alleges that Defendant City of Gresham is liable because it "supports the officers' actions and denies any wrong doing" and its "invalidated support of officer practices creates a policy of violating people's rights." FAC 3. He also asserts that Defendant City of Gresham "is known to defend officer practices knowing the officer is guilty of violating a citizens rights." Id. Plaintiff seeks $105,000 in damages. FAC 4.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011). If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Summary judgment is improper where divergent ultimate inferences may reasonably be drawn from the undisputed facts." Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (internal quotation marks omitted); see also Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985) ("Even where the basic facts are stipulated, if the parties dispute what inferences should be drawn from them, summary judgment is improper.").
DISCUSSION
Under 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law[.]"To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). Government officials may be entitled to qualified immunity for claims brought under § 1983. To determine whether a government official is entitled to qualified immunity, "[t]he court must first determine whether, examining the facts in the light most favorable to the plaintiff, the official violated the plaintiff's constitutional rights." Barnes v. Gower, No. 2:12-CV-01880-HZ, 2015 WL 736348, at *8 (D. Or. Feb. 17, 2015) (citing Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002)). Then, if the court concludes the official violated the plaintiff's constitutional rights, it must determine "whether the right was clearly established." Saucier v. Katz, 533 U.S. 294, 201 (2001).
Plaintiff appears to bring seven claims for relief under § 1983: (1) a Fourth Amendment claim for lack of probable cause during the traffic stop; (2) a Fourth Amendment claim for wrongful arrest and for the unlawful search of Plaintiff's person and vehicle; (3) a Fifth Amendment claim for failure to read Plaintiff his Miranda rights; (4) a Fourteenth Amendment due process claim for providing a wrong appearance time on the citation; (5) a Fourteenth Amendment due process claim for the tow of the vehicle; (6) a Fourth Amendment excessive force claim; and (7) a Monell liability claim against Defendant City of Gresham. Defendants move for summary judgment on each of Plaintiff's claims. Defendants argue: (1) Defendant Carranza is entitled to qualified immunity, primarily because Plaintiff cannot establish a violation of any constitutional right; and (2) Plaintiff has failed to establish a claim for Monell liability against Defendant City of Gresham.
Though Plaintiff does not cite § 1983 in either his Complaint or Amended Complaint, Plaintiff's claims are properly construed as § 1983 claims as he brings a suit for damages against Defendants for alleged violations of the United States Constitution.
Because a reasonable jury could find that Defendant Carranza violated Plaintiff's rights in making the initial traffic stop and in the amount of force Defendant Carranza used against Plaintiff, the Court denies Defendants' Motion for Summary Judgment on these Fourth Amendment claims. As to the rest of Plaintiff's claims, however, the Court grants Defendants motion. As a matter of law, Plaintiff cannot demonstrate that Defendant violated Plaintiff's rights in searching his person and vehicle, arresting him, towing his vehicle, or failing to inform him of his Miranda rights. Plaintiff has also failed to demonstrate that Defendant Carranza's acts were the result of a policy or custom of Defendant City of Gresham.
Defendants and Plaintiff also make various evidentiary objections. Because the Court has not relied on the objected-to evidence, it declines to reach these objections. The Court also notes, however, that Plaintiff makes many unsupported assertions of fact throughout his briefing. Because these assertions are not supported by materials in the record as required by Fed. R. Civ. P. 56(c), they are insufficient to create a dispute of fact or serve as evidence in support of Plaintiff's opposition.
I. Fourth Amendment: Traffic Stop
Defendants first argue that Defendant Carranza is entitled to qualified immunity for the traffic stop because he had a lawful basis for the stop. Specifically, Defendants contend that Plaintiff was driving his vehicle without functioning taillights and, in the alternative, that he was driving without a visible license plate. Def. Reply 11, ECF 23.
"A traffic stop for a suspected violation of law is a 'seizure' of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment." Heien v. North Carolina, 135 S. Ct. 530, 535-36 (2014) (citing Brendlin v. California, 551 U.S. 249, 255-59 (2007)). However, "the Fourth Amendment requires only reasonable suspicion in the context of investigative traffic stops." United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000); see also Navarette v. California, 572 U.S. 393, 397 (2014). "Put another way, the officer must possess a 'particularized and objective basis for suspecting the particular person stopped of criminal activity.'" McCabe v. Gonzales, No. 1:13-CV-00435-CWD, 2015 WL 5679735, at *4 (D. Idaho Sept. 25, 2015) (citing Navarette, 572 U.S. at 397). "Reasonable suspicion exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion." United States v. Evans, 786 F.3d 779, 788 (9th Cir. 2015) (internal citations and quotations omitted). "An officer is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also be grounded in objective facts and capable of rational explanation." Lopez-Soto, 205 F.3d at 1105 (internal citations and quotations omitted). "To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on part of government officials, giving them 'fair leeway for enforcing the law in the community's protection.'" Heien, 135 S. Ct. at 536 (citing Brinegar v. United States, 338 U.S. 160, 176 (1949)). But "[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable." Id. at 539.
Here, the parties dispute the facts that serve as the basis for Defendant Carranza's reasonable suspicion. Defendant Carranza's police report indicates that Plaintiff's "vehicle was driving with non-functioning tail lights" and without license plates, which are violations of Oregon law. See Or. Rev. Stat. § ("ORS") 811.520 ("Unlawful use or failure to use lights; penalties"); ORS 803.540(1) ("Failure to display registration plates; offense and penalty"). By contrast, Plaintiff testified that the taillights were on, and photographs of the vehicle demonstrate that it had a visible trip permit in the rear window in lieu of plates. In other words, a reasonable jury could infer from Plaintiff's testimony and the evidence in the record that Defendant Carranza had no particularized and objective basis for suspecting Plaintiff of these violations.
Accordingly, construing all the facts in Plaintiff's favor, there was not reasonable suspicion for Defendant Carranza to detain Plaintiff, and Defendant Carranza's conduct may have violated the Fourth Amendment. Because "[i]t has been settled law since the 1970's that in order for a police officer to initiate an investigatory stop of a motorist, there must at least exist reasonable suspicion that the motorist is engaging in illegal activity," Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011) (internal citations and quotations omitted), Defendant Carranza is not entitled to qualified immunity on this claim.
II. Fourth Amendment: Unlawful Arrest
Defendants next argue that Defendant Carranza's arrest of Plaintiff was not unlawful because Defendant had probable cause to support the arrest and, to the extent that the traffic stop was unlawful, the exclusionary rule is inapplicable to claims under § 1983. Def. Mot. 6. Specifically, Defendants contend that at the time of the arrest Defendant Carranza had probable cause to believe that Plaintiff had violated ORS 807.570 and ORS 811.175, respectively "Failure to Carry or Present License" and "Violation Driving While Suspended or Revoked." Id.
A warrantless arrest is constitutional if, "at the moment the arrest was made, the officer had probable cause to make it." Beck v. State of Ohio, 379 U.S. 89, 91 (1964). This is true even where the alleged offense is minor and nonviolent:
[T]he standard of probable cause applies to all arrests, without the need to "balance" the interests and circumstances involved in particular situations. If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (internal citations, quotations, and brackets omitted). And "while States are free to regulate . . . arrests however they desire, state restrictions [on arrests] do not alter the Fourth Amendment's protections." Virginia v. Moore, 553 U.S. 164, 176 (2008) (holding that a Virginia state law prohibiting arrests for certain crimes did not render an arrest for such a crime unlawful under the Fourth Amendment); see also Miller v. City of Portland, No. 3:11-CV-01509-JE, 2014 WL 320555, at *5-9 (D. Or. Jan. 29, 2014) (holding that "Oregon's redefinition of certain violations of its laws as mere 'violations,' and not 'crimes,' cannot be held to affect the parameters of the Fourth Amendment's protections.").
Probable cause under the Fourth Amendment exists if "under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime." United States v. Lopez, 482 F.3d 1067, 1071 (9th Cir. 2007) (alteration in original) (quoting United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)). "Probable cause is an objective standard." Id. "Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest" and need not be "based on the same conduct as[] the offense identified by the arresting officer at the time of the arrest." Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004). In addition, "the exclusionary rule does not apply in § 1983 cases." Lingo v. City of Salem, 832 F.3d 953, 959 (9th Cir. 2016) (rejecting the argument "that probable cause to arrest may be supported only by information that was obtained in accordance with the Fourth Amendment").
There is no dispute of fact that at the time of the arrest Defendant Carranza had probable cause to believe that Plaintiff had violated Oregon law. Defendant Carranza repeatedly asked Plaintiff for his license. Plaintiff refused each time and, instead, recited his driver license number for Defendant Carranza. At his deposition, he testified that he accidentally left his license at home. First Lewis Decl. Ex. 1 (Crockett Dep.) 32:22-25. Based on these facts, a reasonable officer would have concluded that Plaintiff had likely committed a violation of Oregon law, which makes it unlawful for a driver to fail to carry or present their driver license. See ORS 807.570. The fact that the initial stop was unlawful does not bear on this analysis. See Lingo, 832 F.3d at 959. As no reasonable jury could find that Defendant Carranza lacked probable cause for Plaintiff's arrest, the Court grants Defendants summary judgment on this claim. /// ///
The statute provides: "A person commits the offense of failure to carry a license or to present a license to a police officer if the person either: (a) Drives any motor vehicle upon a highway in this state without a license, driver permit or out-of-state license in the person's possession; or (b) Does not present and deliver such license or permit to a police officer when requested by the police officer under an of the following circumstances: (A) Upon being lawfully stopped or detained when driving a vehicle[; or] (B) When the vehicle that the person was driving is involved in an accident." ORS 807.570(1). "Highway" is defined in ORS 801.305 to include "every public way, road, street, thoroughfare and place . . . within the boundaries of [Oregon], open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right."
III. Fourth Amendment: Unlawful Search
Defendants next argue that they are entitled to summary judgment on Plaintiff's claim for an unlawful search in violation of the Fourth Amendment because: (1) the search of Plaintiff's person was a lawful search incident to arrest; and (2) the search of the vehicle was a valid inventory search. Def. Mot. 7.
A. Search Incident to Arrest
The Supreme Court has "recognized . . . that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence." Moore, 553 U.S. at 176-77 (citing United States v. Robinson, 414 U.S. 218 (1973)) (finding a search of the respondent's person incident to his arrest was lawful even though, under state law, the respondent could not be arrested for the traffic offense). As the Court noted above, the arrest of Plaintiff was lawful. See supra Section II. Accordingly, the search incident to that arrest was lawful, and Plaintiff cannot establish that Defendant Carranza violated the Fourth Amendment when he searched his person.
B. Inventory Search
"Once a vehicle has been legally impounded, the police may conduct an inventory search without a warrant." United States v. Torres, 828 F.3d 1113, 1120 (9th Cir. 2016); see also Colorado v. Bertine, 479 U.S. 367, 370 (1987). However, the scope of the inventory search must conform to the standard procedures of the local police department. United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012) (citing South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976)); see also United States v. McCartney, 550 F.Supp.2d 1215, 1224 (E.D. Cal. 2008) (inventory search was reasonable after vehicle was stopped because vehicle's left rear taillight was not properly functioning and it was discovered that the vehicle lacked registration for over a year and there was no proof of insurance).
Defendant Carranza's inventory of Plaintiff's vehicle was lawful. As described in more detail below, Plaintiff's vehicle was lawfully impounded. See infra Section VI. Gresham City Code provides guidelines for conducting inventories of impounded vehicles. Gresham Rev. Code 2.82.010 et. seq. Among other things, the purpose of the inventory is to avoid claims to property, establish accountability, prevent theft of property, locate dangerous or toxic substances, and reduce danger to persons and property. Id. at 2.82.040(2). Pursuant to that code, Defendant Carranza was required to inventory Plaintiff's vehicle prior to impoundment: "The contents of all vehicles impounded by a police officer shall be inventoried. The inventory shall be conducted before constructive custody of the vehicle is released to a third-party towing company[.]" Id. at 2.82.040(1). There is no evidence in the record that the inventory did not conform to these procedures, was done in bad faith, or purely for investigatory purposes. See Police Rept. 2 ("I inventoried Crockett's vehicle for items of value, none were found. I photographed Crockett's vehicle and the location where it was parked."). Accordingly, Plaintiff cannot establish that the inventory search of his car constitutes a Fourth Amendment violation, and summary judgment must be entered for Defendants on this claim.
IV. Fifth Amendment: Miranda Rights
Defendants argue that Plaintiff cannot sustain a claim for a violation of his Miranda rights under the Fifth Amendment because his statements were not used against him and Miranda is inapplicable to an "ordinary traffic stop." Def. Mot. 9 (citing Chavez v. Martinez, 538 U.S. 760 (2003)).
"In Miranda v. Arizona, the Court addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation." Berkemer v. McCarty, 468 U.S. 420, 429 (1984). Miranda's central principle is "if the police take a suspect into custody and then ask him questions without informing him of [certain rights], his responses cannot be introduced into evidence to establish his guilt." Id. However, in the context of a § 1983, the Court has indicated that "a violation of the constitutional right against self-incrimination [under the Fifth Amendment] occurs only if one has been compelled to be a witness against himself in a criminal case." Chavez v. Martinez, 538 U.S. 760, 770 (2003) (emphasis in original). In other words, the "failure to read Miranda warnings to [an individual] does not violate [the individual's] constitutional rights and cannot be grounds for a § 1983 action" where the individual is not compelled to be a witness against himself in a criminal case. Id. at 772-73; see also Michigan v. Tucker, 417 U.S. 433, 444 (1974) (Miranda's safeguards "were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected."): "A coerced statement has been 'used' in a criminal case when it has been relied upon to file formal charges against the declarant, to determine judicially that the prosecution may proceed, and to determine pretrial custody status." Stoot v. City of Everett, 582 F.3d 910, 925 (9th Cir. 2009)
Based on the evidence before the Court, Plaintiff cannot sustain a claim for a violation of the Fifth Amendment. Even assuming the police should have informed Plaintiff of his rights at some point during the stop and subsequent arrest, this alone is not enough to establish that Plaintiff's right against self-incrimination was violated. Plaintiff provides no admissible evidence to suggest that he was compelled to be a witness against himself in a criminal case or that his statement identifying himself was relied on to file formal charges, determine judicially that the prosecution may proceed, or determine pretrial custody status. Indeed, Plaintiff merely suggests in his briefing—without citation to an affidavit, declaration, deposition, or any other material in the record—that "the officer attempted to use [his] statements against [him]." Pl. Surreply 12, ECF 27. Accordingly, the Court grants Defendants summary judgment on this claim.
Plaintiff asserts that Exhibit 4 shows that Defendant Carranza used Plaintiff's statements against him "because the traffic court trial was about driving while suspended." Pl. Surreply 12. He further asserts that the details of the case are provided in Exhibit 4. Id. However, Plaintiff's Exhibit 4 appears to be an order setting aside a default judgment and setting the case for a new trial and does not indicate that a trial was held in which Plaintiffs statements were used against him. See Second Crockett Decl. Ex. 4.
V. Fourteenth Amendment: Traffic Citation
Defendants argue that Plaintiff cannot state a due process claim because he was "received all the process he was due." Def. Mot. 11. To the extent that Defendant Carranza indicated the wrong appearance time on the citation, there is no evidence that Defendant Carranza intentionally tried to deprive Plaintiff of an opportunity to be heard or that Plaintiff suffered any harm from the alleged act. Id. at 11-12.
The Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property without due process of law," U.S. Const. amend XIV, § 1, and "protects the individual against arbitrary action of government." Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989). This protection extends to both the procedural and substantive realms: "The touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective." Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (internal citations, quotations, and brackets omitted).
A procedural due process claim requires the plaintiff to show: (1) that "there exists a liberty or property interest which has been interfered with by the State"; and (2) that "the procedures attendant upon that deprivation were constitutionally [in]sufficient." Thompson, 490 U.S. at 460 (internal citations omitted). By contrast, to succeed on a substantive due process claim the plaintiff must show that the government has "depriv[ed] a person of life, liberty, or property in such a way that shocks the conscience or interferes with rights implicit in the concept of ordered liberty." Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (citation and internal quotation marks).
As a preliminary matter, the Court fails to discern the exact contours of Plaintiff's theory of liability. Plaintiff asserts Defendant Carranza intentionally provided an incorrect appearance time on his citation, but it is unclear whether Plaintiff is alleging that this was a violation of his procedural or his substantive due process rights. Neither party has adequately addressed the fundamental nature of Plaintiff's claim.
Assuming Plaintiff alleges that this constitutes a violation of Plaintiff's procedural due process rights, Plaintiff's claim fails. First, there is no evidence that Defendant Carranza's action interfered with Plaintiff's liberty or property interests or that the procedures to safeguard against this deprivation were insufficient. Though the record suggests that Plaintiff missed his initial appearance as a result of Defendant Carranza's actions and a default was entered against him, there is nothing—other than an unsupported assertion by Plaintiff in his surreply that the state court entered a guilty conviction and his license was briefly revoked—to indicate that Plaintiff was deprived of his liberty or property interests. In addition, the undisputed evidence shows that Plaintiff was successful in moving to set aside the default judgment and reset the trial date. Second Crockett Decl. Ex. 4.
Plaintiff asserts that "Exhibit 5" shows that the Court documents entered a guilty conviction and revoked his license, Pl. Surreply 12, but Exhibit 5 is: (1) a declaration of Elyse Spencer, (2) a notice of deposition for Phillip Sanders, (3) a portion of Gresham Revised Code, and (4) excerpts of Mr. Sanders's deposition. See First Crockett Decl. Ex. 5; Second Crockett Decl. Ex. 5; First Lewis Decl. Ex. 5; Second Lewis Decl. Ex. 5.
Alternatively, if Plaintiff is alleging that Defendant Carranza's act was an abuse of Government power in violation of his substantive due process rights, the record does not support his claim. Plaintiff asserts that Defendant Carranza's error was "intentional." Pl. Opp'n 7, ECF 20. But the evidence suggests otherwise. Plaintiff's citation indicates that Plaintiff should appear at the East County Courthouse at 5:00 PM on January 30, 2018. First Lewis Decl. Ex. 3. Though a photo from Plaintiff taken on January 30 shows that the courthouse closed at 4:00 PM beginning in October of 2017, First Crockett Decl. Ex. 7, a printout of the website for the Multnomah County Circuit Court from May 10, 2018 indicates that "[f]or appearances cited to East County Courthouse, all appearance times are at 5pm, Mondays through Thursdays," First Lewis Decl. Ex. 4. In addition, the citation form itself provides a checkbox for appearance times at 8:30 AM, 1:00 PM, and 5:00 PM. First Lewis Decl. Ex. 3. Based on the record, no reasonable juror could find that Defendant Carranza acted in a way that shocks the conscience or interfered with rights implicit in the concept of ordered liberty. Accordingly, the Court finds for Defendants on this claim.
VI. Fourteenth Amendment: Tow
Defendants argue that Plaintiff cannot succeed on his claim for a violation of his Fourteenth Amendment due process rights related to the tow of the vehicle. Def. Mot. 12. First, Defendants argue that Plaintiff lacks standing to bring this claim because he was not the owner of the vehicle. Id. Second, Gresham City Code allowed the tow of the vehicle because it was a "hazardous" vehicle and no licensed drivers were available to move the vehicle. Id. at 12-13.
Plaintiff alleges this claim as a violation of his Fourteenth Amendment rights, but both parties appear to address this claim as an unlawful seizure under the Fourth Amendment. However, to the extent that Plaintiff alleges that he was deprived of his property in violation of the Fourteenth Amendment, Plaintiff has not demonstrated a violation of his due process rights. See Miranda v. City of Cornelius, 429 F.3d 858, 867 (9th Cir. 2005) ("Impoundment of a vehicle left in a public place or a vehicle for which there is no licensed driver . . . presumably would not require pre-deprivation notice and a pre-seizure hearing because the burden of such procedures would vitiate the legitimate purposes of the impoundment.").
The impoundment of Plaintiff's car "is a seizure within the meaning of the Fourth Amendment." Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). However, "[i]n their 'community caretaking' function, police officers may impound vehicles that 'jeopardize public safety and the efficient movement of vehicular traffic.'" Id. at 864 (citing South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976)). "Whether an impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft." Id. (internal citations omitted). To justify impoundment, however, officers "ha[ve] no Fourth Amendment obligation to offer the driver an opportunity to avoid impoundment, United States v. Penn, 233 F.3d 1111, 1116 (9th Cir. 2000), or "make other arrangements for the safekeeping of his property," Bertine, 479 U.S. at 373.
The facts demonstrate that the seizure of the vehicle was within the bounds of the Fourth Amendment. Without citing to any evidence, Plaintiff asserts that the vehicle was legally parked and not hazardous. Pl. Opp'n 7-8. Pointing to the direction of the tires in Defendant Carranza's photographs, he suggests that the vehicle was moved to prepare for the tow prior to being photographed. Id. But the photos of the vehicle on the night in question—which according to the police report were taken where the vehicle was parked—show that it was parked some distance from the curb, partially blocking the roadway. First Lewis Decl. Ex. 8. The police report similarly indicates that Defendant Carranza deemed Plaintiff's vehicle a "hazard" because it was "parked at an angle about 24 inches from the sidewalk curb on the north side of the street . . . partially blocking the unmarked westbound lane on SE Alder street." Police Rept. 1; Crockett Decl. Ex. 11 (Tow Receipt) (indicating that the vehicle was "abandoned, parked illegally or hazardously").
Under Gresham City Code, a vehicle can be towed without prior notice when it is a "hazardous vehicle" or is "unlawfully parked on a public or private street in a conspicuously restricted space, zone or traffic lane . . . at any time when the vehicle interferes with the intended use of such space, zone or traffic lane." Gresham Rev. Code 8.35.010(1)(a), (e). A hazardous vehicle is defined as a vehicle that "block[s], impede[s], or interfere[s] with the vision or normal flow of vehicular, bicycle, or pedestrian traffic on public or private streets and sidewalk." Id. at 8.30.020(1)(a). In addition, Plaintiff's license was suspended, and neither of the owners of the vehicle nor Mr. Sanders were able to move the vehicle. Ms. Spencer was two hours away, and Ms. Wickersham and Mr. Sanders did not have valid licenses. Accordingly, there is no admissible evidence demonstrating a dispute of fact on this claim, and the record shows both that Defendant Carranza had the authority under the Gresham City Code to impound the vehicle and that impoundment was justified under the community caretaking doctrine. Defendants are therefore entitled to summary judgment on this claim.
VII. Fourth Amendment: Excessive Force
Defendants argue that, as a matter of law, Defendant Carranza did not use excessive force against Plaintiff. Def. Mot. 13. Defendants argue that Defendant Carranza used "garden variety force" and "standard police procedures" to detain and handcuff Plaintiff. Id.
"Under the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances." LaLonde v. Cty. of Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). "Determining whether force used in making an arrest is excessive or reasonable 'requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Id. (quoting Graham, 490 U.S. at 396 (balancing "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interest at stake")). "Summary judgment 'should be granted sparingly' in excessive force cases, because the excessive force inquiry often 'requires a jury to sift through disputed factual contentions, and to draw inferences therefrom.'" Tucker v. Las Vegas Metro. Police Dep't, 470 F. App'x 627, 628 (9th Cir. 2012) (quoting Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc)).
In the Ninth Circuit, handcuffing can constitute excessive force. See Palmer v. Sanderson, 9 F.3d 1433 (9th Cir. 1993); Hansen v. Black, 885 F.2d 642 (9th Cir.1989). Whether handcuffing constitutes excessive force "is usually fact-specific and is likely to turn on the credibility of witnesses." LaLonde, 204 F.3d at 960. For example, in Palmer, the court concluded that handcuffing the plaintiff "so tightly around his wrist that [the handcuffs] caused [the plaintiff] pain and left bruises that lasted for several weeks" constituted excessive force. 9 F.3d at 1436. There, the officer "presented no evidence that would justify handcuffing [the plaintiff] so tightly that he suffered pain and bruises, or to justify his refusal to loosen the handcuffs after [the plaintiff] complained of the pain." Id. The circuit court affirmed the district court's denial of summary judgment and found that "no reasonable officer could believe that the abusive application of handcuffs was constitutional." Id. Similarly, in Hansen, the plaintiff testified that she was handcuffed in an "abusive manner" and sustained injures during the arrest—including the bruising of her wrist and upper arm and pain in her little finger and arm—requiring medical treatment. 885 F.2d at 645. Taking these facts in the light most favorable to the plaintiff, the court concluded that the officers used excess force on the plaintiff. Id.
Here, taking the facts in the light most favorable to Plaintiff, the Court determines a reasonable juror could conclude that Defendant Carranza used excessive force in handcuffing and arresting Plaintiff. First, the Court considers the "nature and quality of the intrusion," including "the type and amount of force inflicted" on Plaintiff. Jackson v. City of Bremerton, 268 F.3d 646, 651-52 (9th Cir. 2001). Plaintiff testified that he was "pulled and yanked out of the car," put in handcuffs, and placed in the back of the patrol car. Later, before releasing him, Plaintiff alleges he was pressed against the patrol car and told to spread his legs. He asked for help, and Defendant Carranza laughed and said "nobody is going to fucking help you." First Lewis Decl. Ex. 1 (Crockett Dep.) 79:8-15. Photos show that Plaintiff was left with red marks and possible bruising and broken skin from the handcuffs. First Lewis Decl. Ex. 1.
Next, the Court considers the governmental interests at stake, including "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Jackson, 268 F.3d at 652 (quoting Graham, 490 U.S. at 396). The police report and Plaintiff's testimony indicate that Plaintiff made angry faces, was argumentative throughout their interaction, and "cussed out" Defendant Carranza as he walked away. Police Rept. 1; First Lewis Decl. Ex. 1 (Crockett Dep.) 80:1-4. However, Plaintiff was arrested and cited for traffic violations, and there is no evidence that Plaintiff was actively resisting arrest, posed a threat to the safety of the officer, or was attempting to flee.
Balancing these interests, the Court cannot conclude that Defendants are entitled to summary judgment on this excessive force claim. In the context of this traffic stop, a reasonable juror could find that the amount of force used was excessive. Compare Palmer, 9 F.3d at 1436 (where there was no justification as to the amount of force used, the court found that tight handcuffing that left bruising and pain constituted excessive force) with Tucker, 470 F. App'x at 628-29 (finding that the amount of force used in handcuffing was reasonable given the plaintiff's violent resistance). In addition, on the date that these events occurred, it was clearly established that the amount of force Plaintiff says Defendant used in handcuffing him was excessive, and a reasonable officer in Defendant Carranza's position would have known that such conduct violated the Fourth Amendment. See e.g. Hansen, 885 F.2d at 645. Defendant Carranza, therefore, is not entitled to qualified immunity on Plaintiff's claim for excessive force. VIII. Monell Liability
Defendants argue that they are entitled to summary judgment on Plaintiff's claim against Defendant City of Gresham under Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). As to any claim brought against Defendant City of Gresham, Plaintiff must show that a City of Gresham custom or policy caused a violation of his constitutional rights. Id. at 690 (holding that a municipality is a "person" subject to damages liability under § 1983 where it has caused a constitutional tort through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers"). In Monell, the Court specifically rejected the use of the doctrine of respondeat superior to hold a municipality liable for the unconstitutional acts of its employees. Id. at 694. Rather, municipalities may be held liable only when an injury is inflicted by a city's "lawmakers or by those whose edicts or acts may fairly be said to represent official policy[.]" Id. Additionally, while in some instances a single decision may subject a municipality to section 1983 liability, such liability "attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).
Thus, to establish an official policy or custom sufficient for Monell liability, a plaintiff must show a constitutional violation resulting from (1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or custom; or (3) an employee acting as a final policymaker. Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003).
In his complaint, Plaintiff alleges that Defendant City of Gresham is liable because it "supports the officers' actions," "denies any wrongdoing," and "defend[s] officer practices knowing the officer is guilty of violating a citizens rights." FAC 3. In his brief, Plaintiff suggests that Defendant City of Gresham's policy allowing inventory searches is a violation of citizens' Fourth Amendment rights. Pl. Opp'n 9. He also suggests that Defendant City of Gresham is part of a racist system. Id. at 9-10.
Plaintiff has not established that Defendant City of Gresham can be found liable under Monell. First, the City of Gresham's policy allowing the inventory of a vehicle pursuant to impoundment is not unconstitutional, as the Supreme Court has found such searches valid under the Fourth Amendment. See South Dakota v. Opperman, 428 U.S. 364 (1976). Second, to the extent that Defendant City of Gresham is part of a "racist system," Plaintiff has not demonstrated how the alleged constitutional violations in this case are a product of this alleged bias. Plaintiff's only evidence on this ground is an article from the Portland Tribune titled "The High Cost of Being Black in Multnomah County." First Crockett Decl. Ex. 13. Even assuming it is admissible for the purposes Plaintiff intends, this evidence does not establish a policy, custom, or practice by the City of Gresham. Finally, Plaintiff's unsupported assertions that Defendant City of Gresham defends its police officers and denies wrongdoing is insufficient to demonstrate that the alleged constitutional violations by Defendant Carranza were the result of an official policy or longstanding practice adopted by Defendant City of Gresham. Accordingly, the Court dismisses Plaintiff's § 1983 claim against Defendant City of Gresham.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment [18]. Defendants' Motion is denied as to Plaintiff's Fourth Amendment claim for an unlawful traffic stop and his Fourth Amendment claim for excessive force. Defendants' Motion is granted as to all other claims, and Defendant City of Gresham is dismissed from this case.
IT IS SO ORDERED.
Dated this 3 day of May, 2019.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge