Opinion
3:21-cv-00561-YY
04-26-2022
HANNAH AHERN, Plaintiff, v. ERIK KAMMERER, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
YOU, MAGISTRATE JUDGE.
FINDINGS
Plaintiff Hannah Ahern was arrested and charged with disorderly conduct after spitting in the street toward a police riot truck at a protest in downtown Portland. The charge was dropped, and plaintiff has brought this lawsuit against Portland Police Bureau Officer Erik Kammerer, the officer who initiated her arrest, and his employer, the City of Portland. Plaintiff asserts civil rights claims pursuant to 42 U.S.C. § 1983 for violations of the First, Fourth, and Fourteenth Amendments and state tort claims for false arrest and battery. See Compl., ECF 1. The court has subject matter jurisdiction over the federal claims and supplemental jurisdiction over the state tort claims. See 28 U.S.C. §§ 1331, 1343; 28 U.S.C. § 1367(a).
Officer Kammerer has filed a Rule 12(b)(6) motion to dismiss plaintiff's Fourth Amendment unlawful seizure claim (Claim 1) and First Amendment unlawful retaliation claim (Claim 4). Kammerer Mot. Dismiss & Strike (“Kammerer Mot.”), ECF 16. The City has filed a Rule 12(b)(6) motion to dismiss plaintiff's related claims for unlawful pattern and practice (Claims 2 and 5) and false arrest (Claim 6, Count 1). City Mot. Dismiss & Strike (“City Mot.”), ECF 17. Defendants argue that these claims must be dismissed because there was probable cause to arrest plaintiff. Because that argument lacks merit, defendants' motions to dismiss should be DENIED.
In his motion, Officer Kammerer also asserts a motion to strike pursuant to Rule 12(f), which the City joins. Because the motion to strike is a non-dispositive motion, it will be addressed in a separate ruling. See Reddy v. Morrissey, No. 3:18-CV-00938-YY, 2018 WL 4407248, at *1 n.1 (D. Or. Sept. 17, 2018) (citing cases).
I. Factual Allegations
The following factual allegations are taken from plaintiff's Complaint (ECF 1):
On the afternoon of August 17, 2019, plaintiff left work and walked towards a counterdemonstration against the Proud Boys in downtown Portland. Compl. ¶¶ 7, 37, ECF 1. The complaint contains several pages of allegations about the Proud Boys and other “far-right” groups and their activities. See id. ¶¶ 12-36. Plaintiff summarizes those allegations in her Response as follows:
[The Proud Boys are] a far-right group with a predilection for wanton, unchecked violence....The Proud Boys have used Portland as a staging ground for testing out their paramilitary tactics of intimidation and destruction. These activities, while violent and caustic for the community, are consistently and continually given a free pass by the Defendant City of Portland.Resp. 3, ECF 19 (citing Compl. ¶¶ 12-36, ECF 1).
Plaintiff walked toward where she heard a commotion and witnessed a femme-presenting person get arrested for “twerking,” a type of dance. Id. ¶ 38. Several officers directed onlookers not to interfere with the arrest. Id. Plaintiff tried to document what was happening with her phone, but two police officers directed her to cross the street against a red stop light. Id. ¶ 42. Officer Kammerer observed this interaction. Id.
Plaintiff followed the officers' directions and began to cross the street. Id. To avoid traffic, she stopped walking and flagged several cars to pass. Id. ¶ 43. When she entered the street, plaintiff observed a police truck enter the middle of the intersection. Id. She was displeased at the sight of the arriving officers, who were clad in riot gear. Id. Plaintiff “spat in the direction of, but nowhere near, the officers arriving on the riot truck.” Id. ¶ 44. Officer Kammerer saw plaintiff crossing the street and saw her spit in the direction of the approaching riot truck. Id. ¶ 45. Although he never saw plaintiff cause a truck to stop, Officer Kammerer lied in his police report and claimed plaintiff committed the crime of Disorderly Conduct II by causing a truck to stop. Id. ¶¶ 45, 48.
II. Relevant Law Regarding Rule 12(b)(6) Motions to Dismiss
To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This standard “does not require ‘detailed factual allegations,'” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id.(quoting Twombly, 550 U.S. at 555).
A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept all well-pleaded material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v.Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).
III. Plaintiff's Claims
A short synopsis of the law pertaining to the claims at issue is set forth below. As discussed, a showing of probable cause would defeat each of these claims.
A. Unlawful Seizure (Claim 1)
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. To state a claim for unlawful seizure under the Fourth Amendment, a plaintiff must allege that the arrest lacked probable cause. See Lacey v. Maricopa Cty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting Dubner v. City and Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001)).
B. Unlawful Retaliation (Claim 4)
The First Amendment “prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019) (simplified). “If an official takes adverse action against someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim.” Id.(simplified).
“To state a First Amendment retaliation claim, a plaintiff must plausibly allege “that (1) [the plaintiff] was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant's conduct.” Capp v. Cty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (quoting O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016)). When the adverse action is an arrest, the plaintiff must also “plead and prove the absence of probable cause for the arrest” unless the plaintiff alleges “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Nieves, 139 S.Ct. at 1724, 1727.
C. Pattern and Practice (Claims 2 and 5)
There is no respondeat superior or vicarious liability under § 1983. Iqbal, 556 U.S. at 676. However, “[l]ocal governing bodies . . . can be sued directly under §1983“ where the alleged constitutional violation “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v.Dep't of Soc. Servs. Of City of New York, 436 U.S. 658, 690 (1978)).
To establish Monell liability, Plaintiffs must allege that: (1) they were deprived of a constitutional right; (2) the municipality had a policy, custom, or practice; (3) the policy, custom, or practice amounted to deliberate indifference of the plaintiffs' constitutional rights; and (4) the policy, custom, or practice was the ‘moving force' behind the constitutional violation.Cantu v. City of Portland, No. 3:19-cv-01606-SB, 2020 WL 2952972, at *3 (D. Or. June 3, 2020) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). If no constitutional violation occurred, then a municipal liability claim necessarily fails. City of LosAngeles v. Heller, 475 U.S. 796, 799 (1986) (holding that aMonell claim cannot survive without an underlying constitutional violation).
Because plaintiff's pattern and practice claims are contingent on her unlawful seizure and unlawful retaliation claims, they too would be defeated by a showing of probable cause. See Compl. ¶¶ 60-65, 77-81, ECF 1.
D. False Arrest (Claim 6, Count 1)
To prevail on a claim for false arrest under Oregon law, a plaintiff must establish the arrest was unlawful. Miller v. Columbia Cty., 282 Or.App. 348, 355 (2016). O.R.S. 133.310(1)(b) provides that a warrantless arrest is lawful if an officer has probable cause to believe the person committed a felony, a misdemeanor, an unclassified crime for which the maximum penalty allowed by law is equal or greater than the maximum penalty allowed for a Class C misdemeanor, or any other crime committed in the officer's presence.
IV. Lack of Probable Cause
Defendants do not argue that Officer Kammerer had probable cause to arrest plaintiff for committing Disorderly Conduct II, the misdemeanor crime for which she was arrested. Instead, they argue that Officer Kammerer had probable cause to arrest plaintiff under O.R.S. 164.785(2) for spitting on the street. Kammerer Mot. Dismiss 6-9, ECF 16; City Mot. Dismiss 5-10, ECF 17.
A. Probable Cause Standard
Probable cause exists when “under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.” United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007) (quoting United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)) (alteration in original). The court reviews the officer's actions under “objective standards of reasonableness.” Nieves, 139 S.Ct. at 1725. “Thus, when reviewing an arrest, [the court] ask[s] whether the circumstances, viewed objectively, justify the challenged action, and if so, conclude that action was reasonable whatever the subjective intent motivating the relevant officials.” Nieves, 139 S.Ct. at 1725 (simplified, brackets added, emphasis in original). Otherwise stated, “[a] particular officer's state of mind is simply irrelevant, and it provides no basis for invalidating an arrest.” Id. (simplified). Because the arresting officer's state of mind is irrelevant, the officer's “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004).
B. O.R.S. 164.765(2)
Oregon courts have not decided whether spitting on the street violates O.R.S. 164.785(2). In deciding whether such conduct constitutes a crime under O.R.S. 164.785(2), this court must “interpret the law as would the [Oregon] Supreme Court.” Powell's Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th Cir. 2010) (alteration in original). “When the state's highest court has not squarely addressed an issue, [this court] must predict how the highest state 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 ofId. Falls, 742 F.3d 1100, 1102 (9th Cir. 2013).
Oregon rules of statutory construction therefore apply. See Powell's Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th Cir. 2010) (applying Oregon rules of statutory construction when interpreting law as the Oregon Supreme Court would). “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 the text and context of the statute in order “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 will “consult” 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.
O.R.S. 164.785 is titled “Placing offensive substances in waters, on highways or other property; exceptions.” Relevant to this case, subsection (1)(a) contains a list of substances:
It is unlawful for any person, including a person in the possession or control of any land, to discard any dead animal carcass or part thereof, excrement, putrid, nauseous, noisome, decaying, deleterious or offensive substance into or in any other manner befoul, pollute or impair the quality of any spring, river, brook, creek, branch, well, irrigation drainage ditch, irrigation ditch, cistern or pond of water.
O.R.S. 164.785(1)(a) (emphasis added). Subsection (2), which defendants contend plaintiff violated, provides, in pertinent part, that those substances may not placed on any “street”:
It is unlawful for any person to place or cause to be placed any polluting substance listed in subsection (1) of this section into any road, street, alley, lane, railroad right of way, lot, field, meadow or common.
O.R.S. 164.785(2) (emphasis added).
The only published decision in which any Oregon court has examined O.R.S. 163.785 is Mignot v. Dep't of Env't Quality, 46 Or.App. 751, 753 (1980). There, the Oregon Department of Environmental Quality charged the owners of a mobile home park with violating O.R.S. 164.785(2) for placing several hundred tires within a drainage way. In determining whether the owners violated subsection (2), the Oregon Court of Appeals asked, “do tires constitute substances within the class described in subsection (1)?” The court answered this question in the negative:
An examination of the items set out in O.R.S. 164.785(1) reveals that they are representative of a class which includes and is limited to materials, whether organic or otherwise, which may decay or degrade in such a way as to produce nauseous, foul smelling or otherwise chemically offensive conditions in the environment....Moreover, we think the statute speaks to materials offensive in themselves.Id. at 754 (emphasis added).
Defendants argue that spit is not a “polluting substance listed in subsection (1).” See O.R.S. 164.785(2). Again, the “polluting substances” listed in subsection (1)(a) consist of “any dead animal carcass or part thereof, excrement, putrid, nauseous, noisome, decaying, deleterious or offensive substance.” O.R.S. 164.785(1)(a). These terms are not statutorily defined and are not terms of art, so they must be given their ordinary meaning. State v. Rankins, 280 Or.App. 673, 678 (2016).
The first term, “carcass,” which means “a dead body of a human being or an animal: CORPSE,” is clearly distinguishable from the spit at issue in this case but is discussed for context. Webster's Third New International Dictionary 337 (unabridged ed. 1966). “Excrement” is “waste matter discharged from the body; usu. waste discharged from the alimentary canal: fecal matter: DUNG.” Id. at 793. Both “carcass” and “excrement” are nouns.
The remaining words are adjectives, and they all describe the noun “substance,” which has several meanings, the most relevant being: “material from which something is made and to which it owes its characteristic qualities.” Id. at 2279.
“Putrid” means “1a: in an advanced state of putrefaction: ROTTEN; 1b: of, relating to, or due to putrefaction or decay: FOUL.” Id. at 1850.
“Nauseous” means “affected with or inclined to nausea: NAUSEATED” and “causing or such as might be expected to cause nausea: SICKENING, LOATHSOME, DISGUSTING.” Id.at 1508.
“Noisome” means “1: NOXIOUS, HARMFUL, UNWHOLESOME, DESTRUCTIVE” and “offensive to the smell or other senses: DISGUSTING, DISTASTEFUL.” Id. at 1534.
“Decaying” is the present participle of “decay,” used here as an adjective. “Decay” has many definitions, but the most fitting here is “to undergo decomposition: ROT.” Id. at 584.
“Deleterious” means “HURTFUL, DESTRUCTIVE, NOXIOUS, PERNICIOUS.” Id. at 596.
These adjectives readily describe “carcass” and “excrement,” and as observed by the Mignot court, describe substances that “may decay or degrade in such a way as to produce nauseous, foul smelling or otherwise chemically offensive conditions in the environment.” 46 Or.App. at 754.
“Offensive” has many definitions. “Offensive” can mean:
(1) “making attack: relating to or characterized by attack: AGGRESSIVE”;
(2) “causing injury or damage: HARMFUL”;
(3) “giving painful or unpleasant sensations NAUSEOUS, OBNOXIOUS, REVOLTING <offensive odor of garbage>”; and
(4) “causing displeasure or resentment: giving offense: INSULTING, AFFRONTING <loud, offensive behavior>.” Webster's Third New International Dictionary 1566 (unabridged ed. 1966).
Finally, “spit” is defined as “the secretion normally occurring in the mouth: SPITTLE, SALIVA.” Id. at 2199. “Saliva is 99 percent water.” Howard Bennett, Ever wondered about saliva?, Washington Post, March 6, 2016, https://www.washingtonpost.com/lifestyle/kidspost/ ever-wondered-about-saliva/2016/03/04/9e11e7c2-db38-11e5-891a-4ed04f4213e8story.html (last visited April 24, 2022).
Defendants assert the Oregon legislature intended the term “offensive” to take the meaning of the fourth Webster's definition described above. They invoke a similar definition from Black's Law Dictionary: “4. Causing displeasure, anger, or resentment; esp., repugnant to the prevailing sense of what is decent or moral <patently offensive language and photographs>.” Offensive, BLACK'S LAW DICTIONARY (11th ed. 2019). Defendants reason:
By way of example, if a house guest casually spit on the kitchen floor while visiting, it would cause displeasure, anger, and resentment in the host, as well as in every other reasonable guest. The host and every guest would find the substance unpleasant and consider it repugnant to what is decent.
Kammerer Reply 4, ECF 25.
This example, however, highlights the error in defendants' reasoning. What if instead of the house guest, it was the house guest's baby who drooled spit on the kitchen floor? Surely, a reasonable host would not find such an action to cause displeasure, anger, and resentment. That is because it is generally the act of spitting that is offensive-not necessarily the spit itself. Indeed, “[s]pitting in someone's face can be an act of hostility towards a person that also involves physical contact, which we have likened to striking or slapping.” Phillips, 313 Or.App. at 6-7 (citing State v. Keller, 40 Or.App. 143, 146 (1979)).
Given that the term “offensive” is listed in O.R.S 164.785(1)(a) together with terms defined as putrid, nauseous, noisome, decaying, and deleterious, Webster's second and third definitions more appropriately apply. These second and third definitions describe an affront to the physical senses, not an emotional reaction or understanding of what is decent or moral. As plaintiff correctly observes, spit is not an offensive substance under Webster's second and third definitions. Spit does not cause injury or damage. And although spit may not necessarily be odorless, it is not readily described as giving painful or unpleasant sensations in the same vein as a dead animal carcass, feces, or something that is decaying, nauseating, sickening, or noxious.
Moreover, in addition to making it a crime, the Oregon legislature has authorized the Oregon DEQ to impose civil penalties. O.R.S. 164.785(5). This provides support for plaintiff's argument that the legislature intended for O.R.S. 164.785 to be an environmental protection statute. As plaintiff correctly observes, O.R.S. 164.785 was previously codified in former O.R.S. 449.105, which was part of a statutory scheme related to “water pollution.” Opp., Ex. 3, at 1, ECF 20. This statutory scheme “declared” it was “the public policy of the state to conserve the waters of the state,” former O.R.S. 449.077(1), and defined “pollution” as “such alteration of the physical, chemical or biological properties of any waters of the state.” Former O.R.S. 449.070(8), Opp., Ex. 3, at 2, 5, ECF 20. Defendants correctly observe that the Oregon legislature subsequently repealed these statutes and enacted O.R.S. 164.785. Nevertheless, the legislative history shows the legislature's intent in enacting O.R.S. 164.785 was to protect the environment, including its waters, which is further evidenced by the fact that the legislature vested Oregon DEQ with authority to separately pursue civil remedies. Indeed, it is obvious why the legislature extended the prohibition in subsection (1)(a) to “any road, street, alley, lane, railroad right of way, lot, field, meadow or common.” O.R.S. 164.785(2). Water runoff from streets, highways, and land carries those polluting substances into the waters that the state has historically sought to protect.
Finally, the City argues, unconvincingly that plaintiff placed excrement on the street when she spat on it. City Reply 2 n.2, 4, ECF 27. As noted, Webster's describes excrement as “waste matter discharged from the body; usu. waste discharged from the alimentary canal: fecal matter: DUNG.” Webster's Third New International Dictionary 337 (unabridged ed. 1966). “Excrement” is generally defined as referring to feces. E.g., Excrement, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/excrement (“the solid waste that is released from the bowels of a person or animal.”) (last visited April 24, 2022); COLLINS DICTIONARY, https://www.collinsdictionary.com/us/dictionary/english/excrement (“the solid waste that is passed out of a person or animal's body through their bowels”) (last visited April 24, 2022); Oxford Advanced American Dictionary, https://www.oxfordlearnersdictionaries.com /us/definition/americanenglish/excrement (“solid waste matter that is passed from the body through the bowels”; synonym feces) (last visited April 24, 2022). Spit is therefore not excrement.
In summary, plaintiff has adequately alleged in her Complaint that there was no probable cause for her arrest. Therefore, the unlawful seizure, unlawful retaliation, pattern and practice, and false arrest claims all survive defendants' Rule 12(b)(6) motions to dismiss.
RECOMMENDATIONS
Officer Kammerer's and the City of Portland's motions to dismiss (ECF 16, 17) on grounds that there was probable cause to arrest plaintiff should be DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, May 10, 2022. 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.