Summary
declining to borrow Oregon's wrongful death statute's restrictions on available damages because they were inconsistent with § 1983
Summary of this case from Kaady v. City of SandyOpinion
Civil No. 99-1576-AS
June 7, 2001
ORDER
For the reasons stated in the accompanying Opinion, the Officers' motion (37) on the First Claim for Relief is DENIED. The City's motion (37) for summary judgment on the Second Claim for Relief is GRANTED with regard to the Officers' actions prior to falling to the floor and DENIED with regard to the Officers' actions in attempting to take Gilbaugh into custody by grabbing his arms. Defendants' motion (37) for partial summary judgment on Plaintiff's request for damages is GRANTED with regard to damages for pain and suffering under Oregon's wrongful death statute and DENIED with regard to general damages on Plaintiff's excessive force claim.
IT IS SO ORDERED and DATED this 7th day of June, 2001.
OPINION
This action was filed by Herbert Gilbaugh ("Plaintiff") on behalf of his deceased brother Peter Gilbaugh ("Gilbaugh"), who was shot and killed by a Portland police officer. Plaintiff alleges that the officers involved in the shooting, defendants Stephanie D. Rabey ("Rabey") and William R. Balzer ("Balzer") (collectively the "Officers") used excessive force in their confrontation with Gilbaugh in violation of his rights under the Fourth Amendment. Additionally, Plaintiff seeks to hold the Officers' employer, the City of Portland (the "City"), liable for the acts of the Officers under a negligence theory.
BACKGROUND
At 2:44 a.m. on December 31, 1998, the front desk clerk of the Helen Swindells Apartments (the "Apartments"), called the City's Bureau of Emergency Communications Dispatch to report that a tenant had urinated on the door of another tenant. Rabey responded to the complaint call and Balzer was dispatched as back up when Rabey requested that a cover car meet her at the Apartments.
Upon arrival at the Apartments, the Officers interviewed the desk clerk and the tenant whose door had been violated. The tenant indicated that he wanted to report the trouble to avoid a repeat of the incident and that he didn't expect Gilbaugh to be arrested. The Officers were shown a picture of Gilbaugh and were directed to Gilbaugh's apartment on the third floor by the desk clerk.
The Officers took the elevator to the third floor and confirmed that the tenant's doorjamb and carpet outside the door was wet. The Officers then knocked on Gilbaugh's door and advised him that they were City police officers. Gilbaugh opened the door wearing only his underwear. The Officers told Gilbaugh that they wanted to talk to him. Gilbaugh closed and deadbolted his door while he put on some pants. When he attempted to open his door, Balzer reminded Gilbaugh that he had deadlocked the door and that he needed to unlock the door. Gilbaugh then opened the door and stepped into the hallway.
The Officers observed that Gilbaugh's eyes were half-closed, bloodshot, red and glassy and that his face was flushed, red and sweaty. The Officers concluded that Gilbaugh was intoxicated. This conclusion was later confirmed by toxicology reports revealing a blood alcohol level of .12.
Rabey informed Gilbaugh that they were investigating a neighbor's complaint that Gilbaugh had urinated on his door. Gilbaugh immediately became angry and argumentative and stated that he had not been drinking, had not been out of his room and had not urinated on anyone's door. As the Officers attempted to explain why they were there and that they would leave if they were sure there wouldn't be any more problems, Gilbaugh became more argumentative and aggressive toward the Officers. The Officers then explained that Gilbaugh could be arrested for urinating on the door and could be sent to "detox" since he had been drinking and was in the hallway. Gilbaugh continued to deny that he had urinated on the door, became increasingly agitated and refused to listen to the Officers.
After unsuccessfully attempting to calm Gilbaugh down with conversation, the Officers asked, and then told, Gilbaugh to go back into his apartment to "sleep it off." Gillbaugh refused to listen to the Officers and continued to argue with them. Based on Gilbaugh's aggression and anger and Rabey's concern that Gilbaugh might challenge the tenant if the Officers left, Rabey determined that it would be best to take Gilbaugh to a detoxification facility.
The Officers attempted to take Gilbaugh into custody. As each officer grabbed one of Gilbaugh's arms, Gilbaugh tensed up and started resisting. The Officers told Gilbaugh to relax and stop fighting. Gilbaugh denied that he was resisting but continued to push against Balzer. Gilbaugh eventually broke free of both Officers and hit Balzer in the face as he spun toward Rabey.
Gilbaugh then tackled Rabey, who fell to the ground underneath Gilbaugh. Balzer fell to the ground to the side of Gilbaugh and Rabey. Gilbaugh and Rabey struggled intensely and both Rabey and Balzer were concerned that Gilbaugh was going to get Rabey's gun and shoot her. In response to Rabey's "terror-type screams" and his concern that Rabey had "completely lost control," Balzer punched Gilbaugh in the head three times. When Gilbaugh did not react to Balzer's punches, Balzer pointed his firearm at Gilbaugh's midsection and yelled to Rabey that he was going to shoot Gilbaugh. Rabey responded "O.K." or "I know."
Gilbaugh became more angry and enraged and yelled "Oh, you're going to shoot me, are ya?" Gilbaugh then moved toward Balzer in a threatening manner. Balzer raised his gun and pointed it directly at Gilbaugh's forehead. Gilbaugh did not stop, back away or surrender. Instead, he grabbed for Balzer's gun. Balzer pulled his gun away and then fired one shot into Gilbaugh's forehead. Gilbaugh died instantaneously.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:
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). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
Fourth Amendment
Plaintiff alleges that the Officers violated Gilbaugh's rights under the Fourth Amendment by using excessive force in the seizure of his person. The Officers assert that they are entitled to the protection of qualified immunity in that they acted in ance. Where, however, the officer uses unreasonable force to arrest a person who is offering no resistance, that person is entitled to defend himself.
State v. Castle, 48 Or. App. 15, 19 (1980) (citing State v. Crane, 46 Or. App. 547, 552-53 (1980). The court initially notes that it has found that the Officers had reasonable grounds to arrest Gilbaugh for Criminal Mischief in the Second Degree based on his urinating on his neighbors door and the hall carpet. This justifies the Officers attempts to take Gilbaugh into custody. The court will now address each of the specifications of negligence alleged by Plaintiff.
(1) Grabbing Gilbaugh without first verbally arresting him and giving him an opportunity to submit.
The evidence is clear that Gilbaugh was not in a cooperative mood the night of the incident. While he did voluntary leave his apartment to speak with the Officers, he refused to listen to what the Officers were saying and argued with them at all times. Even when the Officers asked Gilbaugh to go into his apartment and sleep it off, Gilbaugh refused and continued to argue with him. It was reasonable for the Officers to assume that Gilbaugh would not cooperate with them by putting his hands behind his back and allow himself to be handcuffed if they advised him that they intended to take him into custody. This, viewed in light of the fact that the Officers had already told Gilbaugh that they could arrest him, makes the Officers' actions reasonable under the circumstances.
(2) Failing to maintain a reactionary gap and bladed stance before grabbing Gilbaugh.
There is no evidence that the Officers did not maintain a reactionary gap and bladed stance before grabbing Gilbaugh. The testimony of the Officers is that they each grabbed Gilbaugh by an arm and then moved him across the hall and up against the wall opposite Gilbaugh's doorway. The court could not find any testimony from either officer that they were not in a bladed stance with a proper reactionary gap at the time they had the initial contact with Gilbaugh. Accordingly, Plaintiff has failed to support this specification of negligence and summary judgment is appropriate.
(3) Failing to use OC spray before physically grabbing Gilbaugh: and
(4) Failing to use their batons before physically grabbing Gilbaugh.
The Officers were allowed by law to use reasonable force necessary to arrest Gilbaugh. At the time the Officers grabbed Gilbaugh, they had had no previous physical contact with him. There was no way for them to know how Gilbaugh would react. As far as anyone knew, Gilbaugh could have been controlled and taken into custody without incident. It would have been inappropriate for the Officers to assume, based solely on Gilbaugh's inebriated state and his prior willingness to argue with the Officers or ignore their oral directions, that any force above and beyond grabbing him would have been required to take him into custody. The court finds that it was reasonable for the Officer to attempt to take Gilbaugh into custody peacefully with merely the use of their hands before attempting more forceful methods, such as OC spray or batons.
(5) Failing to use their batons after the altercation started.
The Officers initially grabbed Gilbaugh by the arms and had managed to control him sufficiently to allow Rabey to reach for her handcuffs. Gilbaugh then broke lose, tackled Rabey and all three fell to the floor. It was reasonable for the Officers to continue to use their hands to arrest Gilbaugh while that method appeared to be working. Once Gilbaugh broke lose, the question of what happened while the altercation continued on the floor is in dispute and is not appropriate for a determination at summary judgment.
(6) Failing to use non-lethal force on him instead of shooting him; and
(7) Using deadly and excessive force.
The court has found that a genuine issue of material fact exists with regard to what happened once everyone fell to the floor. Accordingly, the court finds that it is precluded from ruling on these specifications of negligence.
In it's opening memorandum, the City argued that Gilbaugh's own conduct in fighting with the Officers is an intervening intentional criminal act that bars Plaintiff from recovering in this action. The City relies on the Oregon Supreme Court of Buchler v. Oregon, 316 Or. 499, 511 (1993) in which the court observed that, though it is generally foreseeable that criminals may commit crimes and that prisoners may escape and engage in criminal activity while at large, the "mere facilitation' of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it." The court finds this reasoning inapplicable to the case at hand.
Buchler, and its progeny, address the liability of a defendant to a plaintiff for injuries caused by a third party. Here, there is no third party involved. The court has been unable to find any cases which apply the intervening criminal act defense to a situation in which the defendant is directly responsible for the injury to the plaintiff. In the absence of some additional authority on this issue, the court declines the opportunity to extend the defense to this situation. This consideration on this factual situation is best handled by the standard negligence rule: Should the Officers reasonably known that their actions would cause Gilbaugh to react so aggressively when they attempted to take him into custody in light of the fact that the Officers had no background information about Gilbaugh and only knew that he appeared inebriated and defensive during their conversation with him.
The City also argues that: (1) ORS 161.235-.325 provide a defense for the Officers' actions; (2) Oregon common law provides further justification for the Officers' actions; and (3) ORS 30.085 provides a complete defense for the Officers' actions. ORS 161.325(1) provides that a police officer may use physical force in making an arrest while ORS 161.235(2) and ORS 161.245 provide that a police officer may use physical force in self-defense or in defense of a third person. In addition, a police officer may use deadly force when he or she reasonably believes that the use of deadly force is necessary to defend himself or others from the use or threatened use of deadly force. ORS 161.239(1)(c). Deadly force is further justified when, under the totality of the circumstances, the officer believes its use is necessary. ORS 161.239(1)(d). Lastly, if an officer reasonably believes his life or personal safety is endangered, deadly force is justified. ORS 161.239(1)(e).
In addition to these statutory protections, a police officer is justified under Oregon common law in using physical force when he or she believes it is reasonably necessary to make an arrest. Gigler v. Klamath Falls, 21 Or. App. 753, 763 (1975). A police officer is presumed to be acting in good faith in determining the amount of force necessary to make the arrest. Rich v. Cooper, 234 Or. 300, 309 (1963). Lastly, ORS 30.085 provides that:
(1) It is a complete defense in any civil action for personal injury or wrongful death based on ordinary negligence that: (a) the person damaged was engaged in conduct at the time that would constitute aggravated murder, murder, or a Class A or Class B felony; and (b) the felonious conduct was a substantial factor contributing to the injury or death.
The City asserts that "it is undisputed in this case that when Gilbaugh was killed, he was engaged and did engage in assault in the second degree in violation of O.R.S. 163.175 and attempted assault in the first degree in violation of O.R.S. 163.095. Further, it could be argued that Gilbaugh was engaged in attempted aggravated murder in violation of O.R.S. 163.095." Once again, the presence of genuine issues of fact about what actually happened after the Officers and Gilbaugh fell to the floor prevent a ruling on these defenses at this time. The final three specifications of negligence need to be considered by the ultimate trier of fact.
Damages
Plaintiff seeks funeral and other expenses, pain and suffering and general damages. Defendants argue that Plaintiff is not entitled to pain and suffering under O.R.S. 30.020(2)(b) or general damages under Section 1983.
O.R.S. 30.020(2)(b) allows for the reasonable recovery of pain and suffering only between the time of injury to decedent and the time of decedent's death. Here, Plaintiff concedes that Gilbaugh died instantaneously and is not seeking post-injury pain and suffering damages. Instead, Plaintiff argues that it is entitled to recover for the pre-impact terror and fright suffered by Gilbaugh when he saw Balzer point the gun at his face.
The court finds that such pre-impact damages are not allowed under the statute. The statute specifically limits the damages to the time period "between injury to the decedent and the decedent's death. Additionally, the court finds that no reasonable juror would award damages to Gilbaugh for pre-impact terror when the record is void of any evidence that Gilbaugh was intimidated in anyway by Balzer's threat to shoot him or Balzer's pointing his gun at Gilbaugh. To the contrary, the evidence shows that Gilbaugh questioned Balzer's intent to shoot him and continued to fight aggressively with Balzer, rather than submit or back away in fear, after the gun was pointed at his forehead.
The question of Plaintiff's right to recover general damages for his Section 1983 claim is more problematic. Congress directed the courts to look to state law when determining what remedies were available under Section 1983. 42 U.S.C. § 1988. The state remedies, and restrictions on these remedies, are to be adopted by the court unless the state statute is inconsistent with the Constitution and the laws of the United States. The problem here is that Oregon law does not provide a remedy for Gilbaugh's death.
In Robertson v. Wegmann, 436 U.S. 584 (1978), the United States Supreme Court held that Louisiana state abatement statue which prevented a personal representative from continuing a Section 1983 claim after the plaintiff passed away was not inconsistent with federal law. The Court explained that the policies underlying Section 1983 included "compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law." Id. at 592. The Louisiana statue allowed most actions to survive a plaintiff's death in favor of a spouse, children, parents or siblings. It merely required abatement of the action in the rare situation where the plaintiff who originally filed the action passed away without the specified survivors. The Court reasoned:
It is therefore difficult to see how any of Section 1983's policies would be undermined if Shaw's action were to abate. The goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased's estate. And, given that most Louisiana actions survive the plaintiff's death, the fact that a particular action might abate surely would not adversely affect Section 1983's role in preventing official illegality, at least in situations in which there is no claim that the illegality caused the plaintiff's death. A state official contemplating illegal activity must always be prepared to face the prospect of a Section 1983 action being filed against him. In light of this prospect, even an official aware of the intricacies of Louisiana survivorship law would hardly be influenced in his behavior by its provisions.
Id. at 593. The Court held that the fact that a state abatement statute would, in some cases, abate a Section 1983, was not sufficient to declare the state law inconsistent with federal law. The Court specifically stated, on two occasions, that they were not considering the situation in which the alleged deprivation of federal rights grounding the Section 1983 caused the death. Id. at 594.
As acknowledged by the Supreme Court in Robertson, we have a very different situation in which the alleged deprivation of civil rights caused the death. Oregon's wrongful death statute provides no claim for general damages. The spouse, children and parents may recover for pecuniary loss and for loss of the society, companionship and services of the decedent. This statute may be argued to be as comprehensive as that considered by the Court in Robinson, which allowed recovery by a decedent's spouse, children, parents or siblings. However, this case is clearly distinguishable on other grounds.
If the court held that Plaintiff's Section 1983 action was barred by the state wrongful death statute, Plaintiff's sole remedy for Gilbaugh's death would be for funeral expenses under the common law tort claim. Plaintiff would have no way to recover anything for the deprivation of Gilbaugh's federal civil rights. The message this would send to state actors is that they can kill older, unmarried individuals with near impunity. As long as the victim is killed quickly and cleanly, the most their employer will be liable for is funeral expenses. This is clearly inconsistent with the purposes of Section 1983 as stated in Robertson.
In Robertson, the deceased filed a Section 1983 action four years before his death alleging bad faith prosecution. The alleged deprivation of the deceased's civil rights was likely limited to the loss of income and possibly companionship suffered by the decedent and his immediate family. Allowing the personal representative of the decedent's estate to recover these damages, where no immediate family existed, would have allowed individuals or entities totally unaffected by the deprivation of civil rights to be compensated. Here, Gilbaugh is dead. His brother and sister, who are his closest family members, have suffered the loss of their brother and deserve to be compensated for such loss. Allowing the state wrongful death statute to prevent those who experienced losses as a result of a deprivation of federal rights, is clearly inconsistent with the desire of Congress to compensate those injured as a result of a deprivation of federal rights.
Similarly, in this instance, the state actors who killed Gilbaugh would get away virtually unpunished. Plaintiff seeks $3,393.05 in funeral expenses. This amount is hardly an amount that will prevent abuses of power by those acting under color of state law.
Finally, the court finds the Supreme Court's obvious concern that Robertson not be applied to cases where the deprivation of civil rights caused death is indicative that the Court would find that any statute that eliminates remedies under Section 1983 for actions similar to the one at hand is inconsistent with federal law. Accordingly, the court finds that Plaintiff is not limited to the remedies allowed under Oregon's wrongful death statute and may recover damages suffered by Plaintiff and his sister as a result of Gilbaugh's death.
CONCLUSION
The Officers' motion (37) on the First Claim for Relief is DENIED. The City's motion (37) for summary judgment on the Second Claim for Relief is GRANTED with regard to the Officers' actions prior to falling to the floor and DENIED with regard to the Officers' actions in attempting to take Gilbaugh into custody by grabbing his arms. Defendants' motion (37) for partial summary judgment on Plaintiff's request for damages is GRANTED with regard to damages for pain and suffering under Oregon's wrongful death statute and DENIED with regard to general damages on Plaintiff's excessive force claim.