Opinion
3:17-cv-01749-YY
03-08-2023
KATHLEEN DUNLAP, personal representative of the Estate of James Ross Dunlap, Jr., deceased, and KATHLEEN DUNLAP, individually, Plaintiffs, v. CITY OF SANDY and LUKE A. HODGES, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Defendant City of Sandy has filed a motion for summary judgment. ECF 66. The motion should be denied because there are disputed issues of material fact as to what plaintiff Kathleen Dunlap told Officer Luke Hodges about the incident with her husband on January 9, 2016. These factual questions are critical to determining whether Officer Hodges had probable cause to arrest plaintiff's husband but failed to do so as required by O.R.S. 133.055(2)(a).
I. Background and Procedural History
Plaintiff filed this suit, individually and on behalf of the estate of her late husband, after her husband, who suffered from bipolar disorder, was found deceased in his vehicle with a selfinflicted gunshot wound to his chest on January 11, 2016. First Am. Compl. ¶ 29, ECF 32. In her First Amended Complaint, plaintiff alleges that, two days earlier, she and her husband were involved in a domestic dispute that generated phone calls to the police dispatch and emergency hotlines. Id. ¶¶ 16-25. Plaintiff claims that in response to one of her phone calls, Officer Hodges from the City of Sandy Police Department called her and the two talked about what had happened between her and her husband that day. Id. ¶ 17. Plaintiff alleges that, over the course of different phone conversations, Officer Hodges agreed to meet plaintiff at her home to retrieve some of her belongings, though the parties also dispute several other details about what plaintiff and Officer Hodges discussed during these calls. Id. ¶¶ 17-21. There is no dispute, however, that the arranged meet-up did not happen. Id. ¶ 23-26. Plaintiff claims she made additional phone calls to police dispatch, and she also spoke with Officer Hodges' partner about the situation. Id. ¶¶ 26-27. Plaintiff's husband was never arrested. See id. ¶ 29. Plaintiff alleges that both Officer Hodges and his partner told her that the officers would not get involved because it “was the policy of the Sandy Police Department not to get involved when dealing with mentally ill individuals.” Id. ¶¶ 17, 27.
In the original and amended complaints, plaintiff and the estate alleged claims under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), 42 U.S.C. § 1983 for violations of substantive and procedural due process, and Oregon law for negligence and wrongful death. Compl., ECF 1; First Am. Compl. ¶¶ 30-61, ECF 32. Defendant filed motions to dismiss for failure to state a claim, the motions were granted, and all of the claims were dismissed. ECF 45. Plaintiff and the estate appealed, and the Ninth Circuit affirmed the dismissal of all of the claims asserted by the estate and most of the claims asserted by plaintiff, except it found “[t]he district court incorrectly dismissed Dunlap's associational ADA and RA claims.” Dunlap v. City of Sandy, 846 Fed.Appx. 511, 512-13 (9th Cir. 2021). Specifically, the Ninth Circuit held that plaintiff had sufficiently alleged associational ADA and RA claims based on “her husband's disability and her association with him,” and that plaintiff was “plausibly denied the benefit of a covered service-namely, the arrest of her husband on January 9, 2016, as mandated by Oregon law-because [defendant's] noninvolvement policy instructs police not to intervene in mental health crises.” Id. at 513.
The case was returned to this court via Ninth Circuit mandate on April 23, 2021. ECF 55. Defendants have now moved for summary judgment, primarily on the basis that the responding officer did not have probable cause to arrest plaintiff's husband in January of 2016, and thus the mandatory arrest statute at O.R.S. 133.055(2)(a) did not apply and does not provide a basis for recovery on plaintiff's associational ADA and RA claims. Mot. Summ. J. 9-17, ECF 66.
II. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.' ” Id. at 324 (citing Fed.R.Civ.P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
Defendant's present motion for summary judgment asserts that Officer Hodges lacked probable cause to arrest plaintiff's husband on January 9, 2020, and thus plaintiff did not have a legal right under O.R.S. 133.055(2)(a) to have her husband arrested. Mot. Summ. J. 9, ECF 66.
III. Discussion
Although the Ninth Circuit has not directly addressed the issue, “district courts throughout the circuit appear to be in consensus that a plaintiff may bring an associational discrimination claim . . . only if the plaintiff has suffered an injury independent of the injury suffered by his or her disabled associate.” Kim v. Beaverton Sch. Dist. 48J, No. 3:20-CV-2025-SI, 2021 WL 2188238, at *7 (D. Or. May 28, 2021) (citing Glass v. Hillsboro Sch. Dist. 1J, 142 F.Supp.2d 1286, 1288 (D. Or. 2001); Cortez v. City of Porterville, 5 F.Supp.3d 1160, 1164-66 & n.2 (E.D. Cal. 2014)); see also Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002) (analyzing Title II ADA and § 504 RA claims together). Here, the Ninth Circuit found that plaintiff's independent injury arises from an Oregon statute, O.R.S. 133.055(2)(a), which provides:
[W]hen a peace officer responds to an incident of domestic disturbance and has probable cause . . . to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.O.R.S. 133.055(2)(a); see Dunlap, 846 Fed.Appx. at 512. The Ninth Circuit recognized that this mandatory arrest statute “confers a legal right to victims of domestic disturbance to have their alleged assailants arrested.” Dunlap, 846 Fed.Appx. at 513 (citing Nearing v. Weaver, 670 P.2d 137, 140, 142-43 (1983)).
The Ninth Circuit further held that the officer's “refusal” to arrest plaintiff's mentally disabled husband “plausibly denied [her] a protected benefit.” Id. Specifically, the Ninth Circuit held that because defendant's alleged policy of “noninvolvement” when individuals are suffering from a mental health crisis “explicitly disallows the provision of police services only when individuals are experiencing a mental health crisis, it can be reasonably inferred to be facially discriminatory toward the mentally disabled.” Id.
Given this, it is certainly plausible that the City knew that it was substantially likely that its policy would harm the right of mentally disabled individuals, or those associated with them, to have their domestic abuse assailants arrested by City police pursuant to § 133.055. The policy plausibly constitutes a failure to act upon the likelihood that mentally disabled individuals, or those associated with them, would be denied the benefit conferred by § 133.055, as it is the policy itself that requires City police to ignore the statute's clear command.Id. (citing Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)).
Defendant argues that Officer Hodges lacked probable cause to arrest plaintiff's husband as a result of the January 9, 2016 incident, and thus did not have a duty to arrest him under O.R.S. 133.055(2)(a). Mot. Summ. J. 9, ECF 66.
A. Whether O.R.S. 133.055(2)(a) Provides an Independent Basis for Arrest
As a threshold matter, it is necessary to resolve whether this court must look to O.R.S. 133.055(2)(a) or the menacing statute, O.R.S. 163.190, in determining whether probable cause exists. The parties dispute whether the mandatory arrest provision of O.R.S. 133.055(2)(a) provides an independent basis for making an arrest, or whether the arrest must be supported by probable cause to believe that plaintiff's husband committed a separate crime, specifically menacing as defined by O.R.S. 163.190. See Mot. Summ. J. 10-11, ECF 66; Resp. 21-22, ECF 77.
O.R.S. 163.190 provides that a “person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” O.R.S. 133.055(2)(a), by contrast, provides that “when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, . . . or to believe that one such person has placed the other in fear of imminent serious physical injury, the officer shall arrest and take into custody the alleged assailant or potential assailant.” The relevant difference between these two statutory provisions is that the menacing statute requires a showing of criminal intent, whereas the mandatory arrest statute does not appear to. See Resp. 21, ECF 77 (“[T]he crime of menacing requires an additional finding of intent; ORS 133.055 does not impose any requirement that the person assaulting another or placing another in fear of physical injury intend to do so.”).
The question then is whether the legislature intended to fully incorporate the crime of menacing into the mandatory arrest statute, or intended to create a new circumstance where conduct falling short of criminal menacing would still require the responding officer to arrest the suspected abuser. The Oregon Supreme Court has not specifically considered these competing interpretations of the mandatory arrest statute. This court's task is to “predict how the [Oregon Supreme Court] would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises and restatements for guidance.” Alliance for Prop.Rights & Fiscal Responsibility v. City of Id. Falls, 742 F.3d 1100, 1102 (9th Cir. 2013).
Interpreting an Oregon statute requires the same approach that the Oregon Supreme Court would use. Powell's Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th Cir. 2010). “When interpreting Oregon statutes, the question is what the Oregon legislature that enacted that statute intended.” State v. Phillips, 313 Or.App. 1, 6 (2021). Thus, the first step is an examination of statute's text and context “to discern the intent of the legislature.” Portland Gen. Elec. Co. v.Bureau of Labor & Indus. (PGE), 317 Or. 606, 610 (1993), superseded by statute, O.R.S. 174.020; see State v. Gaines, 346 Or. 160, 171 (2009) (explaining that O.R.S. 174.020 did not alter the holding in PGE regarding the first step of statutory interpretation). “[A]fter examining text and context,” the court may consider the legislative history, “even if the court does not perceive an ambiguity in the statute's text, where that legislative history appears useful to the court's analysis.” Gaines, 346 Or. at 172. The “evaluative weight” given to the legislative history is for the court to determine. Id. At the “third and final step of the interpretive methodology,” if “the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id. (simplified).
Here, the text of the mandatory arrest statute provides some helpful clues as to the legislature's intent. Subsection (1) states that a “peace officer may issue a criminal citation to a person if the peace officer has probable cause to believe that the person has committed a misdemeanor or has committed any felony that is subject to misdemeanor treatment under ORS 161.705.” O.R.S. 133.055(1) (emphasis added). Put another way, the statute authorizes, but does not require, a criminal citation for misdemeanors and certain other crimes. Subsection (2)(a), which is at issue here, modifies the officer's discretion to issue a criminal citation provided for in subsection (1) “when a peace officer responds to an incident of domestic disturbance and has probable cause to believe that an assault has occurred between family or household members, as defined in ORS 107.705, or to believe that one such person has placed the other in fear of imminent serious physical injury[.]” O.R.S. 133.055(2)(a). By directly mentioning subsection (1), subsection (2)(a) establishes that, in a situation that would otherwise give the officer the discretion to issue a criminal citation for a misdemeanor but that also involves a domestic disturbance, the officer's discretion is constrained. In other words, the statute describes procedures that must be followed if a peace officer has probable cause that a certain crime has been committed. True, the statute's language could be clearer. It could have, for example, expressly pointed to O.R.S. 163.190 for the elements of menacing, as it did for the definition of “family or household members.” But the text of the mandatory arrest statute suggests that the statute was intended to provide specific procedures that apply to existing crimes, and not, as plaintiff asserts, to create some new category of quasi-criminal conduct that could lead to an arrest.
Other cases have examined whether the mandatory arrest statute actually eliminates the officer's discretion to arrest and have concluded that the statute does not go that far. See Van Patten v. Leach, No. 3:15-CV-0891-AC, 2016 WL 5928803, at *5 (D. Or. Oct. 11, 2016) (explaining that “the language in ORS 133.055 appears mandatory in that it states an officer ‘shall' arrest an alleged or potential assailant when probable cause is present but is not ‘truly' mandatory.... Specifically, despite probable cause to believe an assault, menacing, or strangulation has occurred, an officer likely has some discretion to determine that the circumstances of the situation weigh against arrest in a particular domestic violence instance.”) (internal citation omitted) (emphasis in original).
The legislative history further supports reading the mandatory arrest statute as establishing a procedure incident to a crime and not as defining a new crime. The minutes of the legislative hearings on the original bill show that legislators understood the statute to reference existing crimes. For example, in discussing the effect of amending the proposed bill to read, as it does today, “arrest and take into custody,” Representative Lombard “asked if [the amendment] satisfies the problem with the original bill-if this will require custody for either the crime of assault or the crime of menacing,” and Representative Rutherford “said yes.” House Committee on Judiciary, HB 2438, May 2, 1997, Tape 43, Side 1 at 0562. After another proposed amendment, Representative Myers “said then he would like to make it clear by legislative history that the committee is not intending to restrict this to situations in which the alleged offense occurs in the presence of the police officer. Mr. Gillette said if it occurred in the presence of the officer there would be no need for the statute.” Id. at 0597. Later, the committee unanimously adopted an amendment that “would insert ‘serious' after the word ‘imminent' . . . to conform with the definition of the crime of ‘menacing.' ” Id. at 0724.
The representatives also discussed at length whether to “creat[e] a new substantive criminal offense” for violating an existing restraining order, and the committee declined to do so. Id. at 0819. Instead, the committee recommended amending a different statute to authorize an officer to arrest an individual suspected of violating an existing restraining order. Id.; see also O.R.S. 133.310(3). Thus, 1977 HB 4238 did not create a new crime. Rather, it enacted a new procedure that essentially authorized “a police officer in the street to exercise a judge's contempt power.” Id. at 0800. This discussion is important because it demonstrates that the committee carefully considered whether the proposed bill was creating new crimes or was effectuating some kind of procedure by which officers were empowered to make arrests. Accordingly, the legislative history cannot be read to indicate that the legislature intended to create, sub silentio, a new kind of crime for “menacing-like” actions in O.R.S. 133.055(2)(a).
As least one Oregon appellate court decision recognizes that the mandatory arrest statute “identifies two misdemeanors, assault and menacing, that would typically be committed during an episode of domestic violence and that, but for the provision, would not be crimes for which officers would be required to arrest the person committing them.” Holbert v. Noon, 245 Or.App. 328, 345 (2011). According to the Holbert court, “[o]ne of the two crimes, assault, was identified by its name; the other, menacing, was identified by its operative terms. The identification of the two crimes was an essential feature of the provision because the authority to arrest depends on the commission of a crime by the person to be arrested, so the statute had to identify crimes for which abusers could be arrested.” Id. (internal citations omitted). Several other cases have suggested, without directly analyzing the question, that the crime of menacing is indeed incorporated into O.R.S. 133.055(2)(a). See Cederberg v. Washington Cnty. Consol. Commc'nsAgency, No. 3:18-CV-02044-HZ, 2019 WL 2929505, at *13 (D. Or. July 8, 2019) (“In fact, as the Nearing and McAlpine courts noted, on its face § 133.055(2) is clear in its intention to reduce the risk of harm to the non-assailant in an incident of domestic violence or menacing ‘between family or household members.' ”); Van Patten, 2016 WL 5928803 at * 5 (“Specifically, despite probable cause to believe an assault, menacing, or strangulation has occurred, an officer likely has some discretion to determine that the circumstances of the situation weigh against arrest in a particular domestic violence instance.”)
In sum, the text and legislative history of O.R.S. 133.055, along with judicial interpretation and application of the mandatory arrest statute, confirm that the legislature intended to incorporate the crime of menacing into the mandatory arrest statute, and did not intend for the mandatory arrest statute to establish a new, independent basis for arrest.
B. Probable Cause to Arrest for Menacing
The next question is whether Officer Hodges had probable cause to arrest plaintiff's husband for the crime of menacing on January 6, 2016. As already described, the menacing statute provides: “A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” O.R.S. 163.190(1). An imminent threat is not necessarily one that may bring immediate injury; rather, “it is sufficient if the threatened injury is ‘near at hand,' ‘impending,' or ‘menacingly near.' ” State ex rel. Juv. Dep't of Klamath Cnty. v. Dompeling, 171 Or.App. 692, 695 (2000) (holding that statements that “I could stab you right now” or “I thought about doing it while you were in your sleep” a few hours later were sufficiently imminent to constitute menacing).
The parties agree that Oregon's probable cause standard applies here. Resp. 24, ECF 77; Reply 9, ECF 81. Under Oregon law, probable cause consists of two parts: “an officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances.” State v. Owens, 302 Or. 196, 204 (1986). In determining whether the officer's belief was objectively reasonable, the court looks at the totality of the circumstances including the officer's training and experience. State v. Vasquez-Villagomez, 346 Or 12, 23 (2009).
Here, there are disputed issues of fact about what Officer Hodges knew or reasonably believed about the incident between plaintiff and her husband; therefore, summary judgment is not appropriate. At the outset, neither party disputes the computer automated dispatch (“CAD”) notes taken during plaintiff's initial phone call to the emergency hotline at 4:55 p.m. on January 9, 2016:
PHN/C FIRST ... MEN ... INF'S HUSB JAMES DUNLAP JR 072862 IS BIPOLAR ... HAS BEEN MANIC FORA COUPLE DAYS, CAME HOME DK TODAY ... WAS MAKING THREATS TO KILL INF AND HER 81 YO FATHER ... INF AND FATHER LEFT, BUT THE HSE HAVE NO WHERE TO GO ... THERE ARE GUNS IN THEHSE THAT ARE LOCKED UP -BUT HE WAS SMASHING THINGS WHEN SHE LEFT, CONCERNED HE'LL BE ABLE TO GAIN ACCESS TO THEMOfficer Hodges began his shift that day at 5 p.m. The CAD notes indicte “PHN/C FIRST,” meaning that the informant, here plaintiff, requested a phone call from an officer.
Snyder Decl., Ex. 17 at 1, ECF 78 at 242 (as written). Note that the exhibits attached to the Snyder Declaration were not filed separately; thus the citations to these exhibits include the page numbers assigned by ECF to facilitate easier reference.
Snyder Decl., Ex. 6 (“Hodges Dep”) at 87:7-12, ECF 78 at 76.
Id. at 79:11-13; 87:8-9, ECF 78 at 69, 76.
At 5:06 p.m., Officer Hodges called plaintiff, and the parties dispute what transpired during this call. At her deposition, plaintiff testified she told Officer Hodges that her “husband had been at the bar drinking and that he had come home and that he was in a bad mental health state.” Plaintiff told Officer Hodges that her husband “came home and immediately threatened to kill my father, threatened to kill me,” and that she and her father “ran out of the house, left the residence in a hurry.” Plaintiff told Officer Hodges she had tried to go back into the house to get her father's medication out of a safe that also held weapons and she “felt that there was a chance that [her husband] could gain access to those weapons.” She asked Officer Hodges for “help to remove” her husband and “get him . . . out of the house into a hospital” and that she “wanted [the officer] to arrest him for threatening to kill us.” According to plaintiff, Officer Hodges then “reminded [plaintiff] that they don't get involved with the mentally ill,” told plaintiff and her father that they “should not go back to the residence” and instead “seek a hotel for the night,” and recommended that plaintiff “should seek a restraining order.”
Id. at 87:15-18, ECF 78 at 76.
Stabler Decl., Ex. 1 (“Dunlap Dep.”) at 118:16-21, ECF 68-1.
Id. at 118:24-119:2.
Id. at 119:3-8.
Id. at 119:9-16.
Id. at 119:19-23.
Officer Hodges remembers the conversation differently. At his deposition, Officer Hodges testified that during the phone call, plaintiff “never mentioned guns” or that her husband was making threats to kill her and her father. Officer Hodges further denied that plaintiff ever said that her husband was bipolar and had been experiencing a manic episode for several days.Instead, Officer Hodges remembers plaintiff told him “she wanted to get her stuff, her property” from the house and her husband was intoxicated, and Officer Hodges responded that he “would try to facilitate helping her do that.” Officer Hodges denied that plaintiff ever requested to have her husband removed from the house, and denied telling plaintiff about any “policy” regarding how to respond to calls when a person is suffering from a mental health crisis.
Hodges Dep. 89:24-90:16; 92:5-9, ECF 78 at 78-79, 81.
Id. at 91:2-92:1, ECF 78 at 80-81.
Id. at 89:18-22, ECF 78 at 78.
Id. at 93:11-13, ECF 78 at 82.
Id. at 93:22-94:8, ECF 78 at 82-83.
Officer Hodges acknowledged that the CAD notes would have come up on his computer, but he did not recall what questions he may have asked plaintiff in relation to the CAD notes.Instead, Officer Hodges explained that when someone requests a phone call from an officer, his practice is to “give them a call, and I identify myself and ask them how I can help them today. And then I let them tell me the circumstances that they are perceiving or alleging.” He does not rely on the CAD notes to decide what he should do; rather he has an “obligation to do [his] best to ascertain what's true, what's not true and in what way [he] can help.” Thus, whatever the CAD notes might have said, Officer Hodges testified that his conversation with plaintiff was focused on getting her help to return to her home to retrieve some property, but the two did not discuss the potentially criminal behavior of plaintiff's husband or his mental state.
Id. at 85:12-14, 91:18-93:10, ECF 78 at 74, 81-82.
Id. at 92:12-17, ECF 78 at 81.
Id. at 95:3-6; see also id. at 95:18-25, ECF 78 at 84.
Id. at 89:18-92:24, ECF 78 at 78-81.
Plaintiff and Officer Hodges had additional calls on January 9, 2016, during which they attempted to arrange to meet at plaintiff's residence so she could gather some personal items and her father's medication. The meeting did not happen. The parties dispute whether, early the next morning, Officer Hodges called and left a voicemail explaining to plaintiff that he was unable to meet the previous night because of other calls that came in during his shift.
Dunlap Dep. 121:22-124:5, ECF 68-1; Hodges Dep. 99:23-100:15, ECF 78 at 85-86.
Dunlap Dep. 128:3-129:4, ECF 68-1; Hodges Dep. 102:8-21, ECF 78 at 88.
Dunlap Dep. 128:9-22, ECF 68-1; Hodges Dep. 108:16-23, ECF 78 at 93.
Plaintiff testified that she called the non-emergency line in the morning of January 10, 2016, because she had not heard from Officer Hodges and had been receiving threatening texts from her husband. Officer Jesse Steffanson called her back and identified himself as Officer Hodges' partner. According to plaintiff, Officer Steffanson said he had spoken with plaintiff's husband, and “saw that he was mentally off and that the house was trashed.” However, Officer Steffanson too repeated an unwillingness to “get involved because he's mentally ill” and “[t]hey were feeling that their involvement would only escalate the problem, the situation.”
Dunlap Dep. 128:23-129:7, ECF 68-1.
Id. at 129:24-25.
Id. at 130:3-5.
Id. at 130:6-11.
Contrary to plaintiff's testimony, Officer Steffanson testified at his deposition that he had not gone to plaintiff's residence. He further testified that plaintiffs husband's mental illness would not have been a factor in how he would have responded to the call, and denied that the police department had any policy of not arresting persons who are mentally ill. Officer Steffanson encouraged plaintiff to get a restraining order against her husband, which she did on Monday, January 11, 2016. Plaintiff's husband was found deceased later that day.
Snyder Decl., Ex. 8 (“Steffanson Dep.”) 18:22-19:1, ECF 78 at 121-22.
Id. at 46:4-23, ECF 78 at 126.
Dunlap Dep. 130:17-18, 137:11-24, ECF 68-1; Steffanson Dep. 18:1-8, ECF 78 at 121; see also Snyder Decl., Ex. 16, ECF 78 at 234.
Snyder Decl., Ex. 1 (“Dunlap Decl.”) ¶ 42. ECF 78 at 16.
These factual disputes cut to the essence of the question posed by defendant's pending motion. The parties offer competing versions of the conversation between plaintiff and Officer Hodges, which is critical to determining whether Officer Hodges had probable cause to arrest plaintiff's husband for menacing. If plaintiff's version of events is true, then the totality of circumstances suggests that probable cause likely existed-plaintiff told Officer Hodges that her husband had threatened to kill both her and her father, he had access to guns, he was intoxicated and suffering a mental health episode, and the threats of harm were sufficiently imminent that it caused plaintiff and her father to immediately flee the residence and hide out in a local hotel. See Hernandez v. Jefferson Cnty. Sheriff's Off., No. 3:19-CV-01404-JR, 2021 WL 7542408, at *3 (D. Or. Nov. 16, 2021) (finding statement that plaintiff “was going to the house to get a gun and if [the victim] was still there when he returned, he would shoot him” was sufficient to establish probable cause for menacing and thus preclude plaintiff's constitutional claims arising from subsequent arrest). However, if Officer Hodges's testimony is believed, none of those facts were established during his conversations with plaintiff and thus probable cause likely did not exist. Deciding whose version is more credible is for a jury, not the court, to decide. Wilkins v. City ofOakland, 350 F.3d 949, 955-56 (9th Cir. 2003) (holding that when an officer's reasonable belief “depends on disputed issues of material fact, it is not a legal inquiry, but rather a question of fact best resolved by a jury”); Van Patten, 2016 WL 5928803 at *7 (denying summary judgment in mandatory arrest case under O.R.S. 133.055 because there were disputed issues of fact regarding whether the officers reasonably determined they lacked probable cause to arrest the assailant for assault or menacing); Hartfield v. Besner, No. 3:11-CV-00100-KI, 2012 WL 2788050, at *9 (D. Or. July 9, 2012) (“Hartfield has raised a question of fact whether what Officer Besner knew was sufficient to constitute probable cause” and thus “whether there was probable cause to arrest Hartfield is a question for the jury.”) (citing Graves v. City of Coeur D'Alene, 339 F.3d 828, 845 (9th Cir. 2003)).
C. Scope of Duty Under Mandatory Arrest Statute
Although the parties' briefing focused primarily on whether Officer Hodges had probable cause to arrest plaintiff's husband for menacing, the court asked the parties to submit supplemental briefing on the related issue of the scope of an officer's duty to arrest that arises under O.R.S. 133.055(2)(a). Order (January 10, 2023), ECF 86; Sur-Resp., ECF 87; Sur-Reply, ECF 88. As mentioned above, many courts have recognized that despite the statutory direction that an officer “shall” arrest an alleged assailant when probable cause exists, “an officer likely has some discretion to determine that the circumstances of the situation weigh against arrest in a particular domestic violence instance.” Van Patten, 2016 WL 5928803 at *5; see also Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 760 (2005) (concluding that for 14th Amendment due process purposes, the plaintiff did not have a property interest in the enforcement of a restraining order against her estranged husband because the Colorado statute mandating arrest in domestic violence cases did not eliminate officer discretion).
However, given there is a question of fact as to whether probable cause existed to arrest plaintiff's husband, it is unnecessary at this time to rule on the scope of the duty to arrest under O.R.S. 133.055(2)(a). See McSherry v. City of Long Beach, 584 F.3d 1129, 1135 (9th Cir. 2009) (noting that summary judgment is not appropriate “if there is any genuine issue of material fact”). And there are other reasons counseling against a ruling on the scope or applicability of the mandatory arrest statute at this juncture. Although Officer Hodges spoke to plaintiff over the phone multiple times over the course of two days, it is unclear from the record whether he was ever physically present at the scene during an “incident of domestic disturbance.” That factual ambiguity muddies the analysis of whether O.R.S. 133.055(2)(a) required Officer Hodges to, for example, attempt to arrest a person who was not in his physical proximity.
Compare Dunlap Dep. 130:3-5, ECF 68-1; Hodges Dep. 118:17-22, ECF 78 at 101; Steffanson Dep. 18:22-19:5, ECF 78 at 121-22.
There is a vast difference between a mandatory duty to arrest and a mandatory duty to conduct a follow up investigation. In the arrest situation the officer is on the scene, the arrest is merely a matter of deciding to do so and a few minutes to physically effectuate the arrest. A mandatory duty to investigate, on the other hand, would be completely open-ended as to priority, duration and intensity.... Law enforcement must be vested with broad discretion to allocate limited resources among the competing demands.Donaldson v. City of Seattle, 65 Wash.App. 661, 671-72 (1992).
Importantly, Officer Hodges stated that one reason he was not able to connect with plaintiff on January 9, 2016, was that several other high priority calls came in that night, including an active shooter situation and a sexual assault investigation. This is in conflict with plaintiff's testimony that both Officers Hodges and Steffanson told her they “[could] not get involved because [her husband] was mentally ill.” These competing explanations are relevant to determining whether plaintiff can establish the causal connection between the denial of a protected benefit and plaintiff's association with a disabled person. See Castro v. Classy, Inc., No. 3:19-CV-02246-H-BGS, 2020 WL 996948, at *3 (S.D. Cal. Mar. 2, 2020) (“In discrimination by association cases, courts have generally required that a plaintiff show a causal connection between the adverse employment action and her association with a disabled person.”) (citing Austin v. Horizon Human Servs. Inc., No. CV-12-02233-PHX-FJM, 2014 WL 1053620, at *2 (D. Ariz. Mar. 19, 2014); Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1085 (10th Cir. 1997)). Neither party has addressed the appropriate standard for determining causation for an associational discrimination claim under the ADA, which is an “open question in the Ninth Circuit.” Bukiri v. Lynch, 648 Fed. App'x 729, 731 n.1 (9th Cir. 2016) (collecting cases and listing tests adopted by other circuits, including “determining factor,” “motivating factor,” and whether a plaintiff's “case falls within one of three categories of cases encompassing the intended scope of the associational discrimination subsection” of the ADA) (simplified). Given those uncertainties, a definitive ruling on how the scope of the duty under O.R.S. 133.055(2)(a) applies to the as-yet-to-be determined facts or as to the causation element of plaintiff's associational ADA claim in this case is not warranted at this time.
Hodges Dep. 110:14-25, ECF 78 at 95; Dunlap Dep. 123:24-124:5, ECF 68-1.
Dunlap Dep. 119:19-23, 130:3-18, ECF 68-1.
The parties dispute whether Officer Hodges' knowledge of a domestic dispute between plaintiff and her husband in November of 2015 should be considered in the probable cause analysis as to the January 2016 incident. Resp. 18-19, ECF 77; Reply 2-6, ECF 81. The questions of fact related to the conversations between plaintiff and Officer Hodges in January of 2016, though, caution against making any definitive determination as to whether Officer Hodges had, under the totality of the circumstances, probable cause to arrest plaintiffs' husband for menacing in January of 2016. See Van Patten, 2016 WL 5928803 at *7. (D. Or. Oct. 11, 2016) (“In determining whether the officers probable cause belief was objectively reasonable, the court looks at the ‘totality of the circumstances' including the officer's training and experience.”). Thus, the court does not reach the issue as to whether the November 2015 incident should be included in the probable cause analysis for the January 2016 incident.
RECOMMENDATIONS
Defendant's motion for summary judgment (ECF 66) should be denied because there are disputed issues of material fact as to what plaintiff told Officer Hodges about the incident with her husband on January 9, 2016, that are critical to determining whether Officer Hodges had probable cause to arrest plaintiff's husband but failed to do so as required by O.R.S. 133.055(2)(a).
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, March 22, 2023. 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.