Opinion
Civil No. 04-130-AS.
July 25, 2005
FINDINGS AND RECOMMENDATION
PROCEDURAL BACKGROUND
Elizabeth Shilo, Kathy Shelby, Greggory Krieger, Jamie Buell, David Groshowski, and Patricia Buell (collectively Individuals), filed a Third Amended Complaint against the City of Portland (City), and certain named police officers (Officers), in their individual capacities, asserting claims under 42 U.S.C. § 1983 for unreasonable search and seizure and excessive force in violation of the Fourth Amendment, including a claim of liability against the City under the authority of Monell v. Dep't. of Soc. Servs., 436 U.S. 658 (1978) (hereafter Monell claim). The Individuals also asserted state-law claims for negligence and invasion of privacy against all defendants. The Individuals seek both declaratory and monetary relief.
All parties have moved for summary judgment. Oral argument was heard and, for the reasons that follow, the Individuals' Motion for Summary Judgment as to Liability should be denied, and the City and Officers' Motion for Summary Judgment should be granted, in part, and denied, in part.
FACTUAL BACKGROUND
A review of the parties' affidavits, Concise Statement of Material Facts, and all other materials submitted by the parties reveal the following:
The house located at 2905 N. Willis Boulevard, Portland, Oregon, was at all times material to this action owned by Elizabeth Shilo. On March 27, 2002, Portland Police Sergeant Douglas D. Justus (Justus) submitted an affidavit in support of an application for a search warrant that applied to the dwelling located at 2905 N. Willis Boulevard, Portland, Oregon. On that same date, Multnomah County Circuit Judge Dorothy Baker notarized Justus' affidavit and signed a search warrant that authorized a search of the premises located at 2905 N. Boulevard, Portland, Oregon, as well as the persons of David N. Groshowski, Michael Lynn Shelby and Greggory Krieger.
On March 27, 2002, Justus submitted a "Service Request — High Risk Planned Operations S.E.R.T./H.N.T." to the Portland Police Bureau Special Emergency Reaction Team (SERT). Justus sought SERT assistance in the March 29, 2002, search because he believed the occupants of the house presented a danger of being "hostile and uncooperative to the police." SERT analyzes such requests and assigns "points" on the basis of various asserted risk factors. SERT participation in execution of a search warrant is mandatory where 25 or more points are assigned. In this instance, the risk factors demonstrated in the "Service Request" garnered 50 points, and SERT participation in execution of the search warrant was mandatory. SERT created a Tactical Operations Plan on March 27, 2002, which was approved by the Portland Police Bureau (PPB) on March 28, 2002, for execution the following day.
On March 29, 2002, SERT officers met and discussed the planned operations, then assembled at a staging area near the premises at 2905 N. Willis Boulevard. After a final briefing, SERT officers approached the premises to be search and took up positions at the front and back doors to the house. SERT officers made the main entry through a sliding-glass door at the rear of the house, rather than the front door, based on information from a confidential informant.
After SERT officers secured the premises at 2905 N. Willis Boulevard on March 29, 2002, Portland Police Officers Reinke, Coffey, Cruthers, Brace, Malanaphy, Jones, Daniels and Christensen, led by Justus, searched the residence. Justus interviewed the occupants of the house. Evidence was seized by the Officers.
On November 27, 2002, Portland Police Detective Christopher Brace (Brace) submitted an affidavit in support of an application for a search warrant that applied to the dwelling located at 2905 N. Willis Boulevard, Portland, Oregon. On that same date, Multnomah County Circuit Judge Ronald E. Cinnegar notarized Brace's affidavit and signed a search warrant that authorized a search of the premises located at 2905 N. Willis Boulevard, Portland, Oregon, as well as the persons of Krieger and Patricia Ann Buell.
On December 3, 2002, Brace submitted a "Service Request — Planned Operations Risk Assessment" to the PPB SERT. In this instance, the risk factors demonstrated in the Service Request garnered 60 points, and SERT participation in execution of the search warrant was mandatory. SERT created a Tactical Operations Plan on December 3, 2002, for execution on December 5, 2002.
On December 5, 2002, SERT officers met and discussed the planned operations, then assembled at a staging area near the premises at 2905 N. Willis Boulevard. After a final briefing, SERT officers approached the premises to be searched and took up positions at the front and back doors to the house. SERT officers made the main entry through the front door.
After SERT officers secured the premises at 2905 N. Willis Boulevard on December 5, 2002, Portland Police Officers Schliech, Coffey, Cruthers, Zajac, Jansen, Seaters, Rosson, Malanaphy, Vernelson and Justus, led by Brace, searched the residence. Brace interviewed the occupants of the house. The officers seized evidence.
While the Individuals do not dispute the foregoing account of the events of March 29, 2002, and December 5, 2002, they maintain that the Officers conducted an unreasonable search and seizure and used excessive force. Specifically, the Individuals allege the following:
• Shilo, Patricia Buell and Krieger never heard a "knock and announce" or any delay in either the March or December searches prior to the forcible entry and property damage in both instances;
• On March 29, 2002, Krieger heard banging at the front of the house and proceeded to the front door; after he opened the door, an officer shot him in the shoulder with a "flash bang" device from approximately two feet away; Krieger fell to the ground and was kicked in the temples; Krieger suffered burns to his shoulder and arm and damage to his hearing;
• Shilo's mattress and head were six feet from the front door and front wall at the time of both searches;
• During both searches, the Individuals were awoken by police and were in their bedrooms;
• Portland Police have a policy that suggest that police must allow residents time to comply with a knock and announce before initiating a forcible entry;
• Sgt. Mel Tellinghusen, a SERT team leader since 1999, is in charge of SERT team operations; Tellinghusen has conducted dozens of searches both before and after becoming SERT team leader;
• Tellinghusen always conducts a knock and announce, but routinely begins forcible entry immediately after knock and announce;
• Tellinghusen is unaware of any case law requiring a delay after knock and announce and prior to forcible entry;
• Tellinghusen has never waited 20 seconds after knock and announce prior to beginning forcible entry;
• Tellinghusen does not believe a federal 20 second delay rule after knock and announce applies to Portland Police;
• Tellinghusen draws a distinction between trying to open a hinged door, rather than a sliding glass door prior to forcible entry. He has tried opening hinged doors but never sliding glass doors;
• While Tellinghusen concedes that it only takes a second to test a door, he believes that breaking glass on entry is a proper diversionary tactic to gain resident compliance;
• Tellinghusen was at the front door of 2905 N. Willis Boulevard prior to entry on both searches;
• Tellinghusen does not know if there was enough time between knock and announce and the forcible entry at the Shilo residence for someone to come to the door from another room and voluntarily open the front door;
• Officers used excessive force on Shilo's arms and shoulders by handcuffing her from behind even though she indicated she had arthritis; they also threw Shilo on the couch;
• Although the Individuals are unable to identify any of the Officers individually, they believe that all of the Officers violated their right to privacy; and were negligent in their forceful entry of the residence;
• The Officers failed to knock and announce and allow time to open the residence;
• The Officers' conduct caused physical injury and pain and destroyed private property;
• Patricia Buell was forced to walk, sit and stand half-naked, which caused her undo embarrassment;
• Shilo, Patricia Buell and Jamie Buell did not resist arrest or otherwise give the Officers any reason to use force;
• Shilo, Patricia Buell and Jamie Buell, witnessed damage to the home and property of Shilo;
• On March 29, 2002, Jamie Buell, although sleeping, did not hear any officer knock or announce prior to the sound of an explosion, breaking glass and Officers storming his residence;
• Out of fear and bewilderment, Jamie Buell jumped out his bedroom window; upon instructions by the Officers Buell, dropped to the ground inside the fenced yard; while he was on the ground, Officers fired a bean bag hitting Buell in the arm;
• Officer Gradwahl admitted that prior to deployment of bean bag rounds, Buell was "somewhat following orders"; Gradwahl shot Buell with the bean bag based only on his intuition that he may flee;
• Officers used force on Jamie Buell's back and neck and handcuffed him to a fence with an attack dog nearby; Jamie Buell was never charged or arrested;
• Officers were negligent in restraining Jamie Buell since he never resisted them and was compliant;
• Groshowski was subjected to a "concussion grenade";
• Shelby lost property and was detained by the search.
With some exceptions related to Tellinghusen's experience and certain procedures he routinely follows, the Officers and City dispute the facts alleged by the Individuals.
STANDARD
Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56©). If the moving party shows that there are genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989). The substantive law governing a claim determines whether a fact is material. T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts as to the existence of a material fact issue are resolved against the moving party. Id. at 631. Inferences drawn from facts are viewed in the light most favorable to the non-moving party. Id. at 630-631.
DISCUSSION
Both parties filed motions for summary judgment. The Individuals seek summary judgment on the question of liability for their Fourth Amendment and negligence claims against the Officers and the City. The Officers and the City seek summary judgment against all of the Individuals' claims on the grounds that the Officers, pursuant to a valid search warrant, conducted a reasonable search and seizure at the Shilo residence; there is no evidence that the Officers individually named here caused the complained of harm; certain Officers are entitled to qualified immunity for their actions; the Individuals are unable to state a claim for common law invasion of privacy; and there is not evidence to support their common-law negligence claim.
I. Fourth Amendment
Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights. 42 U.S.C. § 1983; see also Conn v. Gabbert, 526 U.S. 286, 290 (1999). Thus, to state a claim for relief in an action brought under § 1983, plaintiff must establish that he was deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law. See Azer v. Connell, 306 F.3d 930, 935 (9th Cir. 2002). Moreover, as is the case here, government officials may assert the defense of qualified immunity, which immunizes them from suit. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); accord Saucier v. Katz, 533 U.S. 194, 200-201 (2001). The court will consider the grounds alleged for a Fourth Amendment violation in this case.
The Individuals' Third Amended Complaint alleges that certain named Officers, on behalf of the City, deprived them of their Fourth Amendment rights, in violation of 42 U.S.C. § 1983. Specifically, the Individuals allege that the Officers denied their right to be free of unreasonable searches and seizures; namely, because (1) the warrants lacked probable cause; (2) the Officers conducting the search unreasonably caused property damage, bodily harm and improper detention; and (3) the unreasonable search was conducted pursuant to City policies regarding knock and announce and those policies resulted in harm to them. The court will consider each of the grounds asserted by the Individuals and determine whether their Fourth Amendment rights were violated.
A. Search Warrants
The Third Amended Complaint states, in part, that the search and seizure was conducted "with a warrant lacking probable cause." At summary judgment, the Individuals do not offer any evidence to refute the Officers and City's evidence that the warrants were obtained in good faith and were not Constitutionally defective. Indeed, in their opposition to the Officers and City's Motion for Summary Judgment, the Individuals concede that "the warrants obtained in good faith were not necessarily defective under Fourth Amendment analysis." Accordingly, summary judgment should be entered on the Individuals' claim that their Fourth Amendment rights were violated by search warrants lacking in probable cause.
B. Knock and Announce, Use of Force and Detention
The Fourth Amendment proscribes only "unreasonable" searches and seizures. The reasonableness of a search or a seizure depends "not only on when it is made, but also on how it is carried out."Tennessee v. Garner, 471 U.S. 1, 7-8 (1985). Thus, even when supported by probable cause, a search or seizure may be invalid if carried out in an unreasonable fashion.
Here, the Individuals appear to argue that the search and seizure (detentions) were unreasonable for three reasons. First, the Officers did not properly knock and announce, thereby denying the occupants of the Shilo residence an opportunity to open the door. This resulted in property damage when the Officers forced their way into the home. Second, some of the Individuals allege that the Officers used excessive force. Third, some of the Individuals allege that the Officers unreasonably detained them.
1. Knock and Announce
The Individuals contend that the Officers violated the "knock and announce" requirement of 18 U.S.C. § 3109 at the time they executed the arrest warrant against them. The Individuals argue that Officers did not wait a reasonable amount of time between the knock and announce and entering the Shilo residence. The Individuals argue that because there was no affirmative denial of entry, it was illegal for the Officers to enter the house immediately after knocking on the door and announcing their identity.
The knock and announce rule is set forth in 18 U.S.C. § 3109, and provides:
The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.18 U.S.C. § 3109.
Thus, the statute requires that an officer seeking to enter a house to execute a warrant must give notice of his purpose and authority, and must be refused entry before entering the house. The statute codifies the common law rule of announcement, which the Supreme Court has held to be "an element of the reasonableness inquiry under the Fourth Amendment." United States v. Ramirez, 523 U.S. 65, 73 (1998).
Law enforcement officers may be excused from the knock and announce requirement only when they are faced with exigent circumstances that support "a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, 394 (1997); accord United States v. Banks, 540 U.S. 31 (2003). Succinctly put, "if circumstances support a reasonable suspicion of exigency when the officers arrive at the door, they may go straight in." Banks, 540 U.S. at 37. Whether exigent circumstances existed or it would have been futile to continue waiting is determined by examining the totality of the circumstances in a give case. Id. at 36.
To determine whether an entry is reasonable, this court must consider all the circumstances surrounding the entry, including, but not limited to, officer safety, time of day, destructibility of evidence, the size of the residence, the nature of the offense, and any other observations by law enforcement that would support a forced entry. See United States v. Bynum, 362 F.3d 574, 581 (9th Cir. 2004); United States v. Chavez-Miranda, 306 F.3d 973, 980 (9th Cir. 2002).
All parties agree that the Officers were required to knock and announce prior to entry of the Shilo residence. Moreover, the Individuals do not appear to challenge that the Officers did, in fact, knock and announce prior to entering the Shilo residence. Rather, the dispute is focused on the time lapse between the Officers' knock and announce and the forcible entry into the Shilo residence that resulted in the property damage.
In Oregon, judges do not have the authority to issue "no-knock" warrants. See Or. Rev. Stat. 133.575(2); see also, State v. Arce, 83 Or.App. 185, 730 P.2d 1260 (1986) (Judge has no authority to waive the knock-and-announce requirement.).
The record is incomplete concerning the actual time lapse between the knock and announce and the forcible entry. Officer Tellinghusen testified that in both the March 2002 and December 2002 searches SERT officers engaged in a knock and announce. This testimony is uncontroverted. Further Officer Tellinghusen testified that, generally, in his experience, the process of entering the home begins immediately after the knock and announce.
Here, the court must determine whether sufficient exigency existed to excuse the Officers' failure in both searches to await refusal and forcibly enter the residence. Based on the circumstances set forth below, the court concludes that the entry was reasonable in this case, even though little or even no time elapsed between the knock and announce and the forcible entry into the Shilo residence.
Several factors support a finding of exigency: the warrant was obtained for narcotics and firearms; firearms were present in the residence on previous occasions; occupants and associates of the occupants had possessed firearms in the past; the weapons assessment revealed that it was known or suspected that two sawed-off shotguns would be placed near the front and back doors, and a handgun was present in the residence as well; the traffic in and the presence of illegal drugs in the residence; occupants presented a danger of being hostile and uncooperative to the police; and the criminal history of the occupants of the residence. In addition, the size and configuration of the residence — three bedrooms on the main floor, a basement bedroom, a motor home parked in the driveway in which at least one of the occupants lived, and a difficult entry point — and the number of potential occupants — at least seven people were in the home at the time of the March 2002 entry, and five people were in the home at the time of the December 2002 entry. Finally, the Officers announced their presence to the extent possible given their legitimate safety concerns. Given these circumstances, it was reasonable for Officer Tellinghusen to limit the amount of time SERT officers delayed before entering the Shilo residence.
Based on the foregoing, the court concludes that on the basis of the information Officers possessed both times they executed the search warrants, the Officers could reasonably infer a "likelihood" that the occupants would "try to escape, resist, or destroy evidence." As such, the entry into the home was reasonable under the circumstances and Officers should not be held liable for the attendant property damage. Summary judgment should be granted against the Individuals claim Fourth Amendment Claim for unreasonable search based on an improper knock and announce.
The court's finding here also validates the Officers' forcible entry under section 3109. See Banks, 540 U.S. at 528-529.
As a threshold matter, the individually named Officers contend that they were not involved in the initial entry into the Shilo residence. Rather, that initial entry, including securing all of the persons within the residence in a single room, was made by SERT officers. Only after that did the individually named Officers enter the Shilo residence to conduct the search. As such, the Individuals cannot show that any of the individually named Officers caused the property damage that occurred during the forcible entry and, thus, they are entitled to be dismissed with prejudice. See, e.g., Talyor v. List, 880 F.2d 1040, 1045 99th Cir. 1989) (Liability under section 1983 arises only upon a showing of personal participation by defendant.);Hall v. Multnomah County Health Dept. of Corrections Health, 2004 WL 1068790 *2 (D.Or. 2004). Because the court is able to dispose of this claim on the merits, it need not provisionally dismiss this claim only as to the individually named defendants and grant the Individuals leave to renew. Rather, the Individuals claim should be dismissed with prejudice.
2. Excessive Force
An officer's use of force in any "seizure" of a person is analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388 (1989). The reasonableness of the force used to effect a particular seizure is determined by "careful[ly] balancing . . . `the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Id. at 396 (quoting Tennessee, 471 U.S. at 8). As the Ninth Circuit has held, "the force which [is] applied must be balanced against the need for that force." Liston v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997). "Less than deadly force, like deadly force, may not be used without sufficient reason; rather it is subject to the Graham balancing test." Deorle v. Rutherford, 272 F.3d 1272, 1284-1285 (9th Cir. 2001).
Where there is a claim of excessive force and a subsequent assertion of qualified immunity, a court's inquiry focuses on whether the totality of the circumstances (taking into consideration the facts and circumstances of the 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) justified the particular type of seizure. Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). Furthermore, "the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene." Id.
a. Elizabeth Shilo
The Individuals allege that excessive force was used against Shilo in March 2002 when an unnamed officer threw her on the couch after SERT officers entered her residence. Thereafter, Shilo was handcuffed from behind, causing her pain, even after she told SERT officers that she suffered from arthritis.
It is undisputed that the initial entry into the Shilo residence and securing the residents for the March 2002 search was carried out by SERT officers. Once all of the persons within the residence were secured in a single room, SERT officers contacted the detectives and informed them that the residence was secure. It is also undisputed that individually named Officers Justus, Coffey, Cruthers, Brace, Malanaphy, Jones, Daniels and Christensen did not participate in the initial SERT entry on either March 29, 2002, or December 5, 2002. In fact, Officer Gradwahl is the only individually named Officer that participated with SERT officers that preceded the detectives into the residence. Officer Gradwahl, however, was on the perimeter, and did not participate in the initial entry into the Shilo residence.
Moreover, Shilo is unable to identify any of the individually named Officers as being involved in her claim for excessive force. In fact, Shilo acknowledged in her deposition that it was the "SWAT" team that damaged her home. The individually named Officers have offered undisputed evidence that they were not in the residence at the time the events complained of by Shilo occurred. Accordingly, Shilo's claim for excessive force should be dismissed with prejudice as to the individually-named Officers, including Officer Gradwahl. Shilo is granted leave to renew her claim for excessive force upon naming SERT officers who participated in the March 2002 search.
b. Greggory Krieger
The Individuals allege that excessive force was used against Krieger in the March 2002 search when an unnamed officer shot him with a "flash bang" device from approximately two feet away. Krieger fell to the ground and suffered burns to his shoulder and arm and hearing damage. In addition, an unnamed officer kicked Krieger in the temple as he lay on the ground.
Krieger is unable to identify any of the individually named Officers as involved in his claim for excessive force. In fact, Krieger testified that the detectives that came in after SERT officers were not the responsible officers. As set forth above, the individually named Officers have offered undisputed evidence that they were not in the residence at the time the events complained of by Krieger occurred. Accordingly, Krieger's claim for excessive force should be dismissed with prejudice as to the individually named Officers, including Officer Gradwahl. Krieger is granted leave to renew his claim for excessive force upon naming SERT officers who participated in the March 2002 search.
c. Jamie Bruell
The Individuals allege that Officer Gradwahl used excessive force against Jamie Buell when he shot Buell in the arm with a bean bag. In addition, unnamed officers used excessive force when they threw Buell to the concrete, jumped on him and handcuffed Buell to a fence, with an attack dog nearby, even though Buell was fully compliant and not resisting officers.
In his deposition, Jamie Buell testified, in part, about being shot in the left arm with a beanbag:
A. My arms were flat out, all in one — when they said, "Get on the ground," it was still all in one directive. They basically said, "Make an airplane and cross your feet." So my arms were flat out, not against my sides, but in an airplane shape.
Q. Did you cross your ankles?
A. I did.
Q. So your legs were fully extended?
A. They were.
Q. What position was your face in?
A. My face was face down in the dirt; however, it was looking towards the officers, and at that point they told me to turn my head in the other direction. I lifted my head to do so, and that's when I was shot in the arm.
. . . .
Q. At some point somebody get you to move or tells you to move?
A. Yes, After — well, this is what I gather, because I heard the officers talking to each other. They said that everybody in the house had been either subdued or contained, and so they needed to get me into the house. None of the officers actually came and picked me up. They kept me at gunpoint and made me walk backwards to the gate of the fence. At that point I felt the gate hit me in my rear or I had bumped backwards into the gate; and at that point the police officer had opened the gate and threw me onto the concrete slab. And I believe it was about three officer had jumped on top of me. And they never gave me a chance to comply with the directives. They just put my arms behind my back forcefully.
. . . .
A. Yes. And then at that point I was cuffed. From the force of the take-down, my chin hit the concrete and was split open.
Q. Was it bleeding?
A. It was.
In his deposition, Officer Gradwahl explained his decision to shoot Jamie Buell with a bean bag as follows:
A. He then started to get down on the ground. As he started to get down on the ground, we started ordering him to get his arms out, away from his body, get his head on the ground. He refused these orders; I continued to give him these orders. At this point he was still looking for a path to run. At this point his hands were underneath him, not all the way down on the ground. He said, "Whatever," loud enough that I could hear it and started to push off to run. At this point I deployed a beanbag round and hit him in the left forearm.
The court finds that there are material questions of fact that preclude summary judgment on Buell's claim for excessive force. Officer Gradwahl explains that he fired the beanbag because Jamie Buell was about "to push off to run." Conversely, Jamie Buell insists that the beanbag was fired at him despite the fact that he was face down on the ground, arms fully extended and legs crossed and following Officers' orders. In addition, Jamie Buell offers accounts of additional force used by unnamed officers. Assuming the truth of Jamie Buell's account, it is unclear on this record whether Officer Gradwahl was justified in shooting Jamie Buell in the arm with a bean bag and the unnamed officers were justified in throwing Buell down on a concrete slab and jumping on him if, in fact, Buell was complying with their directives. Summary judgment against Jamie Buell's Fourth Amendment claim for excessive force should be denied.
d. David Groshowski
The Individuals allege that an unnamed officer used excessive force against Groshowski when the officer subjected him to a "concussion grenade" during the execution of the March 2002 search.
Groshowski is unable to identify any of the individually named Officers as involved in his claim for excessive force. In addition, SERT Team Leader Sgt. Tellinghusen testified that the PPB SERT officers are equipped with and use "flash bang" devices, but that they are not deployed using any kind of a gun. As set forth above, the individually named Officers have offered undisputed evidence that they were not in the residence at the time the events complained of by Groshowski occurred. Accordingly, Groshowski's claim for excessive force should be dismissed with prejudice as to the individually named Officers, including Officer Gradwahl. Groshowski is granted leave to renew his claim for excessive force upon naming SERT officers who participated in the March 2002 search.
3. Unreasonable Detention
In Michigan v. Summers, the Supreme Court stated that for Fourth Amendment purposes, "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." 452 U.S. 692, 705 (1981) (footnotes omitted). The Court acknowledged, however, that: "[S]pecial circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case. . . ." Id. at 705 n. 21. It appears then that, while detentions of occupants during the period of a search will under most circumstances prove to have been reasonable, a detention may be unreasonable in a particular instance either because the detention itself is improper or because it is carried out in an unreasonable manner.
The question here is whether the manner in which the Portland Police carried out that detention was reasonable. The court's assessment of the reasonableness of the manner of detention imposed in connection with the execution of a search warrant involves a number of considerations that are similar, although not identical, to those involved in determining the reasonableness of the manner in which police effect an arrest. The factors identified in Graham — the severity of the crime, whether the person being detained poses an immediate threat, whether he is actively resisting or attempting to flee — may be helpful in the conduct of the court's inquiry. The court is mindful, however, that there is a basic difference between the an arrest detention and a search detention. In the typical case, a person being arrested is suspected of having committed a serious offense. Conversely, a person being detained while a search of a house is being conducted may be visiting a home or business for a legitimate purpose.
a. Kathy Shelby
The Individuals alleged that Shelby "lost property and was detained as a result of the search." In her deposition, Shelby stated that she arrived at the Shilo home after the March 2002 search was underway. An unnamed officer intercepted her before she entered the residence, handcuffed and detained her in a police car for about one hour while the Officers conducted the March 2002 search. Shelby also alleged in her deposition that the officer that detained her took her jewelry — ten rings and one necklace — and never returned it. Shelby is unable to identify the officer that detained her and allegedly took her jewelry.
The court will consider first Shelby's claim that her detention was unreasonable. Officers were executing a search warrant for the Shilo residence. By Shelby's own testimony, she was handcuffed and detained in the police car for the pendency of the search, about one hour. Nor does Shelby allege that her detention was exploited by the officer, i.e., interrogation, or unduly prolonged in order to gain more information. It was reasonable for the Officers to take command of the situation, both for their safety and the safety of the multiple occupants. Although special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case, the court is satisfied that this routine detention of Shelby while the Shilo residence was being searched for contraband pursuant to a valid warrant is not such a case. Shelby's detention was reasonable under the Fourth Amendment.
The Officers urge the court to dismiss this claim with prejudice because Shelby is unable to identify which officer detained her. The court declines. Unlike the circumstances above, where the individually named Officers could conclusively establish that they were not involved in the use of excessive force against certain Individuals, it is possible that one of the individually named Officers did detain Shelby.
Similarly, Shelby's allegation that an officer took her jewelry and never returned it cannot survive Fourth Amendment analysis. The court notes that there is testimony that Shelby was wearing her jewelry after officers left the scene. Shelby testified that she never filed a request for the return of her property. In any event, even if the Shelby can allege that an officer took her jewelry and it was not returned, Shelby's remedy is not under the Fourth Amendment. Shelby's claim for unreasonable detention should be dismissed with prejudice.
b. Patricia Buell
The Individuals allege that Patricia Buell was unreasonably detained during the December 2002 search when she was forced to walk, sit and stand half-naked and not allowed to put on proper clothing causing her undue embarrassment. In her deposition Patricia Buell testified, in part, as follows:
A. At one point they led me, tied up with a blanket wrapped around my waist out the front door, down the driveway, to the garage to let our dogs out of the garage and be put in the motor home.
. . . .
A. . . . . They embarrassed me by parading me out the front door with a blanket wrapped around my lower body because I had no clothing on underneath there and it was up tight around my waist, it was hanging past my ties on my wrists by an officer. When they laid me on my stomach in the bedroom when I was with my son to put the ties on me and then rolled me back over, the sat me in glass, and I had a piece of glass in my leg and they had to roll me back over and shine a light on me to see where the glass was. That was embarrassing to me.
Viewing the evidence in the light most favorable to Jamie Buell, the court finds that there are material questions of fact regarding the reasonableness of Patricia Buell's detention. Moreover, the fact that Patricia Buell is unable to identity the officers involved is not grounds to dismiss the individually named Officers here. Unlike the March 2002 search, Officer Gradwahl was involved in the SERT entry of the home in December 2002 and, therefore, may have participated in Patricia Buell's detention. In addition, the sequence and timing of her detention is not clear from the record such that the court is satisfied that none of the other individually named Officers did not subsequently become involved in her detention. Summary judgment against Patricia Buell's Fourth Amendment claim for unreasonable detention should be denied.
C. Monell Liability
In count two of their Third Amended Complaint, the Individuals set forth the following Monell claim:
Plaintiffs were denied their civil liberties and civil rights while in the care of City of Portland and/or their agents, while acting the course and scope of their employment, defendants conducted an unreasonable search and seizure, pursuant to existing policies, customs, practices or procedures promulgated, maintained or enforced by the City of Portland that violated the Fourth Amendment by routinely failing properly to "knock and announce" and allow time for inhabitants to comply with an entry request before beginning a forceful entry.
As the court reads this count, the Individuals Monell claim is grounded in the allegedly improper knock and announce that was conducted pursuant to City policies and procedures.
Here, the Individuals point to Policy and Procedure 652.00, Execution of the Warrant. Subsection(c) states that:
Before entering any premises, the executing member will knock and give appropriate notice of identity, authority and purpose to the person to be searched or to the person in apparent control of the premises to be searched. If the member is not admitted after such notification, force may be used to enter the premises.
Execution of Warrant (652.00).
A municipality may be held liable under § 1983 "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. . . ." Monell, 436 U.S. at 694. To prevail on a 42 U.S.C. § 1983 claim against the City, the Individuals must show: (1) the Officers violated their constitutional rights, and (2) the City's policy caused the violation. Id. at 690-92. If the Individuals' fail to show that their constitutional rights were violated, the court does not address the issue of the City's policies.
As discussed above, the court finds that the Officers did not violate the Individuals' Fourth Amendment right against unreasonable search when they forcibly entered the home. Thus, the Individuals are unable to show the first prong of theirMonell claim — that the Officers violated their constitutional rights. If the Individuals fail to show that their constitutional rights were violated, the court does not address the issue of the City's policies. Accordingly, summary judgment should be granted against the Individuals' Monell claim.
II. Negligence
In count three of their Third Amended Complaint, the Individuals allege that the City was negligent in its hiring, training and supervision of the Officers. In addition, they allege that the City should have known that the search warrants were deficient and should not have issued against the Individuals. Individuals also allege in count three that the Officers breached a duty of care when conducting the searches that resulted in "unnecessary injury to persons and property."
As mentioned above, the Individuals have conceded that the search warrants were not deficient and, thus, the warrants cannot be the basis for a negligence claim against the City. Moreover, the Individuals have not come forward with any evidence regarding the hiring, training or supervision of any of the named Officers. Mere allegations that genuine issues of material fact exist, without any supporting evidentiary materials, are insufficient to withstand a motion for summary judgment. See, e.g., Gasaway v. Northwestern Mutual Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994) ("[M]ere allegations or denials" are insufficient to defeat summary judgment.).
The court turns now to the Individuals' claim that the Officers were negligent in carrying out the search of the Shilo residence. At oral argument, counsel for the Individuals explained that if the Officers were negligent in carrying out a search that resulted in property damage or bodily harm, the City would be liable in negligence under the doctrine of respondeat superior.
The court cannot agree. In Oregon, evidence of intentional conduct may not support a claim for negligence. See, e.g., Kasnick v. Cooke, 116 Or.App. 580, 842 P.2d 440, 441 (1992). When defendant's conduct is wilful and intentional, such as a forcible entry into a home based on a search warrant sought and received, it is no longer negligence. See generally Denton v. Arnstein, 197 Or. 28, 45, 250 P.2d 407 (1952); see also Restatement (Second) of Torts § 282 (There is generally no claim of negligence that flows from intentionally tortious conduct.).
Here, there is no dispute that the Officers intentionally obtained the search warrant and SERT officers intentionally carried out a forcible entry into house. Moreover, the court has previously found that the actions of SERT officers in executing the search warrants were reasonable under the exigent circumstances. Absolved of Fourth Amendment liability, it would be incongruous for the court to now find that the Officers nevertheless may be liable under a state law theory of negligence for conduct that was reasonable under the Fourth Amendment. Summary judgment should be granted against the Individuals' negligence claim.
An additional basis for dismissing the Individuals' negligence claim is that it has been established conclusively that SERT officers, not the individually named Officers, first entered the Shilo residence and secured the premises and its occupants. Therefore, the individually named Officers cannot be liable for the property damage even if the Individuals were able to state a claim for negligence here.
III. Invasion of Privacy
In count three of their Third Amended Complaint, the Individuals allege that the Officers violated their rights to seclusion when they entered the residence without a warrant supported by probable cause. In Mauri v. Smith, the Oregon Supreme Court held that to establish a claim for invasion of privacy, a plaintiff must prove three elements: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person. 324 Or. 476, 482-483, 929 P.2d 307 (1996). A person intrudes by thrusting himself in without invitation, permission or welcome.Id. at 484.
After viewing the facts and allegations in the light most favorable to the Individuals, the court finds that no genuine questions of material fact exist that would summary judgment. In this case, the Officers were authorized by virtue of the search warrants to enter the Shilo residence. The Individuals have conceded that the search warrants were valid and, as such, entry was authorized. In addition, the court has determined that the entry here was reasonable under the circumstances. Thus, the Individuals are unable to establish a claim for invasion of privacy as a matter of law. Summary judgment should be granted against the Individuals' invasion of privacy claim.
CONCLUSION
Based on the foregoing, the Individuals' Motion for Summary Judgment as to Liability (doc. #22) should be DENIED. The Officers' FRCP 56 Motion for Summary Judgment (doc. #26) should be GRANTED, in part, and DENIED, in part.