Opinion
CV 99-366-BR
August 23, 2001
Spencer M. Neal, Ginsburg Neal, Attorneys at Law, Portland, Or, David W. Owens, David W. Owens Pc Associates, Attorneys at Law, Portland, Or, for Plaintiffs.
Jeffrey L. Rogers, City Attorney, David N. Lesh, Deputy City Attorney, Portland, Or, for defendants Shropshire, Schmautz, Hudson, and City of Portland.
Hardy Myers, State Attorney General, Robert A. Petersen, Assistant Attorney general, Department of Justice, Salem, Or, for Defendant Mcdonnell.
OPINION AND ORDER
This matter comes before the Court on the Renewed Motion for Partial Summary Judgment Regarding Deferred Summary Judgment Issues (#131) filed by Defendant police officers Nathan Shropshire, Brian Schmautz, James Hudson, and Defendant City of Portland (City Defendants). Before the Court on this Motion are Plaintiffs' claims against City Defendants for: (1) alleged violations of Plaintiffs' rights under Or. Rev. Stat. §§ 165.659 and 133.737, (2) statutory damages pursuant to Or. Rev. Stat. §§ 165.659 and 133.739, and (3) punitive damages. For the reasons that follow, City Defendants' Renewed Motion for Partial Summary Judgment is GRANTED.
PERTINENT FACTUAL ALLEGATIONS
In their Second Amended Complaint, Plaintiffs allege City Defendants characterized Plaintiff American Agriculture as a business that sells marijuana-grow equipment. Based on that premise, City Defendants unlawfully applied for, installed, and used trap and trace devices on Plaintiffs' business and residential telephone lines without sufficient probable cause and with the intent of using the trap and trace devices longer than legally permissible in violation of the applicable Oregon statutes. Plaintiffs also allege City Defendant police officers unlawfully disclosed communications intercepted by the trap and trace devices to law enforcement officers in other jurisdictions.
PROCEDURAL BACKGROUND
Plaintiffs brought a civil rights action under 42 U.S.C. § 1983, together with pendent state claims, against City Defendants, Deputy District Attorney Mark McDonnell, and unknown others relating to the allegedly unlawful installation and use of trap and trace devices on Plaintiffs' business and residential telephone lines. On August 18, 2000, the Court granted Defendant McDonnell's Motion to Dismiss for Failure to State a Claim and issued a Judgment on October 4, 2000, dismissing all claims against Defendant McDonnell. On August 18, 2000, the Court also granted summary judgment to City Defendants on certain claims brought by Plaintiffs under 42 U.S.C. § 1983.
On October 3, 2000, the Court granted Plaintiffs' Motion for Interlocutory Appeal of Court Order to the Ninth Circuit. At Plaintiffs' request, this Court also stayed proceedings on Plaintiffs' remaining claims until the Ninth Circuit decided whether to exercise its discretion to hear the interlocutory appeal and, if so, until after the appellate court issued its decision. On January 16, 2001, the Ninth Circuit denied the petition for permission to appeal and dismissed the appeal in a mandate issued on March 7, 2001.
On May 7, 2001, this Court issued an Order directing City Defendants to renew any issues still pending from their previously-filed Motion for Partial Summary Judgment (#82). The parties were permitted to file responses and replies to any renewed motions.
On June 1, 2001, City Defendants timely filed an Initial Memorandum Regarding Deferred Summary Judgment Issues. In a letter dated June 14, 2001, Plaintiffs informed the Court they would rely on their prior memoranda submitted in response to City Defendants' original Motion for Partial Summary Judgment. In an Order issued June 19, 2001, the Court construed the letter to be Plaintiffs' response and directed the letter to be filed as such. City Defendants timely filed their reply. The Court subsequently noted City Defendants had filed only a Renewed Memorandum rather than a renewed motion. The Court requested City Defendants also file a "renewed motion" to formally bring the unresolved issues before this Court and to accommodate the Court's docketing system.
The parties were notified no further briefing would be necessary or permitted, and City Defendants' renewed motion would be taken under advisement as of the date filed. None of the parties objected. On July 19, 2001, City Defendants filed their Renewed Motion for Partial Summary Judgment Regarding Deferred Summary Judgment Issues (#131), and the Court took the Renewed Motion under advisement on that date.
STANDARDS
Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir. 1992). In response to a properly-supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e). Evidence must be significantly probative to present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809 (1989). When the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than otherwise would be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir. 1998) (citation omitted).
The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The Court must resolve against the moving party all reasonable doubts about whether issues of material fact exist, and the Court must view all inferences drawn from the facts in the light most favorable to the nonmoving party. Id. A mere disagreement about a material issue of fact does not preclude summary judgment. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1389 (9th Cir. 1990).
DISCUSSION
City Defendants move for summary judgment on the following claims set forth in Plaintiffs' Second Amended Complaint:
¶ 6.8 Claim — Violation of Plaintiffs' state law rights guaranteed under Or. Rev. Stat. § 165.659, General prohibition (against installation or use of a pen register or trap and trace device), and § 133.737, Disclosure of intercepted communications;
¶ 7.5 Claim — Statutory damages and attorneys' fees pursuant to Or. Rev. Stat. §§ 165.659 and 133.739; and
¶ 7.5 Claim — Punitive damages plus interest from the date of judgment on the state law claims.
I. ¶ 6.8 CLAIM — VIOLATION OF PLAINTIFFS' RIGHTS GUARANTEED UNDER OR. REV. STAT. §§ 165.659 AND 133.737.
Plaintiffs contend City Defendants violated Plaintiffs' rights guaranteed under Or. Rev. Stat. §§ 165.659 and 133.737. In City Defendants' original Motion for Partial Summary Judgment and Plaintiffs' Response to same, the only issue addressed by the parties concerning Plaintiffs' ¶ 6.8 Claim was whether Plaintiffs were barred from bringing this claim against the individual City Defendant police officers. In their Renewed Motion, however, City Defendants also assert City Defendants did not violate § 133.737. As noted, Plaintiffs rely on their previous memoranda filed in response to City Defendants' original Motion for Partial Summary Judgment; thus, they have not elected to address this issue directly as it pertains to their ¶ 6.8 Claim.
Or. Rev. Stat. § 165.659 provides:
Except as provided in ORS . . . 133.737, no person may install or use a pen register or trap and trace device.
For purposes of their Motion only, City Defendants do not dispute their applications for, installation of, and use of the trap and trace devices on Plaintiffs' residential and business telephones violated Oregon law. See Memorandum in Support of Defendants' Motion for Partial Summary Judgment, May 10, 2000, at 3.
Or. Rev. Stat. § 133.737 provides in pertinent part:
(1) Any investigative or law enforcement officer who, by any means authorized by ORS 133.721, 133.724 and 133.729 to 133.739, has obtained knowledge of the contents of any wire, electronic or oral communication under ORS 133.724, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure or to the extent that such disclosure is otherwise authorized by law.
(Emphasis added.)
In the Opinion and Order issued August 18, 2000, this Court discussed at length the issues at the heart of Plaintiffs' claim that Defendants' violated § 133.737. See Opinion and Order at 21-25. In the interest of clarity, however, the Court will summarize the reasoning and conclusions therein.
To violate § 133.737, a person must disclose the "contents" of "intercepted communications." Plaintiffs argue the telephone numbers captured by trap and trace devices pursuant to Or. Rev. Stat. § 165.657, et seq., are "intercepted communications" as defined in § 133.721, a statute containing definitions primarily applicable to wire, electronic, and oral communications. Plaintiffs do not reconcile the fact that distinct, if frequently overlapping, state statutory schemes govern (1) wire, electronic, and oral communications and (2) pen registers and trap and trace devices. These statutory schemes conflict with one another at times. When statutory schemes conflict, the Court's task is to examine "both the text and context of the statute." Portland General Elec. Co. v. Bureau of Labor and Industries, 317 Or. 606, 609, 859 P.2d 1143, 1145-56 (1993). See also State of Oregon v. Fleetwood, 331 Or. 511, 517, 16 P.3d 503 (2000) (If an examination of "the text and context" of the statutes at issue "unambiguously disclose[s] the legislature's intent," the court's "inquiry is at an end.").
Or. Rev. Stat. §§ 133.721 — 133.739 govern devices that intercept communications, such as wire taps. Or. Rev. Stat. §§ 165.657 — 165.673 govern trap and trace devices and pen registers.
The state statutory definitions applicable to wire, electronic, and oral communications and to trap and trace devices generally track the federal statutory language; however, there are some minor differences. For example, § 133.721(5) and 18 U.S.C. § 2510(4) are similar: § 133.721(5) defines "intercept" as "the acquisition, by listening or recording, of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device." Section 2510(4) defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." Or. Rev. Stat. § 133.721(2) defines "content" to include any information that reveals the "identity of the parties to such communication or the existence, substance, purport or meaning of that communication" while the definition in 18 U.S.C. § 2510(8) is "information concerning the substance, purport, or meaning of that communication." As noted in the Court's earlier Opinion and Order, it is reasonable to turn to the federal courts' interpretation of those similar portions of state and federal statutes governing trap and trace devices in the absence of explicit interpretation by the Oregon courts to the contrary. In fact, even the Oregon courts have done so. See, e.g., State of Oregon v. Cotter, 125 Or. App. 210, 864 P.2d 875 (1993).
The definitions provided in Or. Rev. Stat. § 133.721 are specifically applicable to § 133.737 as well as other statutes.
The Supreme Court has held pen registers (which record only the telephone numbers of outgoing calls) and similar devices such as trap and trace (which record only the telephone numbers of incoming calls) do not record the content of communications, establish the identity of the persons making or receiving the calls, or indicate whether a communication was completed or actually occurred because they do not hear sound. See Kyllo v. United States, U.S., 121 S.Ct. 2038, 2051 (2001) (citations omitted). See also Smith v. Maryland, 442 U.S. 735, 741-44 (1979); United States v. New York Tel. Co., 434 U.S. 159, 161 n. 1 167 (1977); United States v. Koyomejian, 970 F.2d 536, 538-39 (9th Cir.), cert. denied, 506 U.S. 1005 (1992); United States v. Carneiro, 861 F.2d 1171, 1177 (9th Cir. 1988); United States v. Freitas, 800 F.2d 1451, 1461 (9th Cir. 1986); United States v. Hallmark, 911 F.2d 399, 402 (10th Cir. 1990); In Re Application of the United States of America for an Order Authorizing the Installation of a Pen Register and Trap and Trace Device, 846 F. Supp. 1555, 1561 (M.D.Fla. 1994). Telephone numbers captured by pen registers and trap and trace devices, therefore, do not constitute "intercepted communications." Smith v. Maryland, 442 U.S. at 742-44.
See Or. Rev. Stat. § 165.657(2) and (4). See also 18 U.S.C. § 3127(3) and (4). Pen registers and trap and trace devices are, in effect, two sides of one coin as illustrated by their consistent coupling in both the cases and governing statutes cited herein. See, e.g., Or. Rev. Stat. § 165.659, Chapter 165, Title 16, "Offenses Involving Fraud or Deception Use of Pen Registers and Trap and Trace Devices." Because of their mirrored characteristics, regulations and references to one device generally apply to the other.
Plaintiffs concede the trap and trace devices did not record any oral communications, did not identify the person making or receiving the call, and did not determine whether the call was completed. Plaintiffs' Response to Statement of Facts of City Defendants at 2.
In State of Oregon v. Cotter, the Oregon Court of Appeals acknowledged and relied upon the reasoning in Smith v. Maryland when it observed there was "no way to determine from the pen register whether any of the calls were completed or whether they merely resulted in busy signals or no answer. Moreover, the register does not identify the subject matter of the calls or the persons who placed them." 125 Or. App. at 213, 864 P.2d at 877. In other words, both federal and Oregon courts recognize trap and trace devices do not intercept the substance or content of communications, do not reveal the identity of the parties who may be communicating, and do not indicate whether a communication actually took place. In effect, City Defendants could not have disclosed the content of any communication in this instance because the trap and trace devices did not intercept any communication.
C. Plaintiffs' ¶ 6.8 Claim Against Individual Officers
City Defendants contend the individual City Defendant police officers cannot be held liable in any event for violations of §§ 165.659 or 133.737 under the circumstances of this case because Plaintiffs' ¶ 6.8 Claim can only be brought against the City of Portland pursuant to Or. Rev. Stat. § 30.265(1). Or. Rev. Stat. § 30.265(1) (Scope of liability of public body, officers, employees and agents. . . .) provides in pertinent part:
. . . . every public body is subject to action or suit for its torts and those of its officers, employees and agents acting within the scope of their employment or duties. . . . If an action or suit is filed against an officer, employee or agent of a public body, on appropriate motion the public body shall be substituted as the only defendant.
There is controversy concerning whether § 30.265(1) violates the Oregon Constitution. The Oregon Supreme Court now has this issue before it by way of questions certified from another action in this Court. See Jensen v. Whitlow, Or. S.Ct. No. S48130 (oral argument to be heard September 11, 2001).
(Emphasis added.)
In any event, Plaintiffs contend the individual City Defendant police officers may be named as defendants because the Oregon Legislature intended Or. Rev. Stat. § 133.739, the statutory authority Plaintiffs rely on to bring their ¶ 6.8 Claim, to be an exception to § 30.265(1).
Or. Rev. Stat. § 133.739 provides, in pertinent part, that a civil cause of action may be brought by "[a]ny person whose wire, electronic or oral communication was intercepted, disclosed or used in violation of ORS 133.724 [Order for interception of communications; content; duration; progress reports] or 133.737 [Disclosure of intercepted communications]" against persons who willfully committed these unlawful acts.
In light of the Court's ruling that no communications were intercepted by the trap and trace devices, however, § 133.739 does not apply to nor provide authority for Plaintiffs to bring a claim against any of the City Defendants for violation of the statutes governing trap and trace devices. Accordingly, the Court need not resolve who may be included as a proper defendant in Plaintiffs' ¶ 6.8 claim. Notwithstanding, this Court lacks authority to create an exception to an Oregon statute.
II. § 7.5 CLAIM — STATUTORY DAMAGES, PUNITIVE DAMAGES, AND ATTORNEYS' FEES PURSUANT TO OR. REV. STAT. §§ 165.659 AND 133.739.
Plaintiffs seek statutory damages, punitive damages, and reasonable attorneys' fees pursuant to Or. Rev. Stat. §§ 165.659 and 133.739.
Again, Plaintiffs turn to Or. Rev. Stat. § 133.739, which provides in pertinent part:
(1) Any person whose wire, electronic or oral communication was intercepted, disclosed or used in violation of ORS . . . 133.737 [Disclosure of intercepted communications] . . . shall be entitled to recover from any such person:
(a) Actual damages . . . and
(b) Punitive damages. . . .
(4) . . . .the court may award reasonable attorney fees to the prevailing party in an action under this section.
The Court earlier ruled trap and trace devices do not intercept communications; therefore, § 133.739 does not apply to violations of statutes that govern trap and trace devices. Or. Rev. Stat. § 165.659 itself does not provide for an award of damages. Accordingly, Plaintiffs are not entitled to damages, attorneys' fees, or punitive damages against City Defendants under § 133.739 for violation of § 165.659 or any other statutes that govern trap and trace devices.
In addition, punitive damages are not available as a remedy against City Defendants pursuant to any authority cited by Plaintiffs. Or. Rev. Stat. § 30.270(1) limits the liability of "any public body or its officers, employees or agents acting within the scope of their employment," and § 30.270(2) provides "[n]o award for damages" on a claim against a public body "shall include punitive damages." If any conflict exists concerning whether these restrictions apply only to a public body or include individual employees of the public body, it is for another court and another day.
CONCLUSION
For these reasons, Defendants' Renewed Motion for Partial Summary Judgment Regarding Deferred Summary Judgment Issues (#131) is GRANTED.
Motion practice to date leaves unresolved the following claims set out in Plaintiffs' Second Amended Complaint:
¶ 6.5 Claim — Violation of Plaintiffs' rights "to be free from retaliation for exercising their right to petition for redress of their grievances that is protected by the First Amendment to the Constitution of the United States for which they seek redress pursuant to 42 U.S.C. § 1983."
¶ 6.6 Claim — Violation of Plaintiffs' "right to effective assistance of counsel that is protected by the Sixth Amendment to the Constitution of the United States for which they seek redress pursuant to 42 U.S.C. § 1983."
The Court directs the parties to submit a Joint Status Report by October 15, 2001, setting out the progress made by the parties on these issues. If any party disagrees with the Court's identification of the claims that remain in the case, it should be noted in the Joint Status Report.
The case management dates previously set remain in effect: discovery, expert disclosures, and Joint ADR Report are due October 31, 2001; dispositive motions are due November 9, 2001; the Pretrial Order is due February 15, 2002; and pretrial documents are due March 15, 2002.
The Pretrial Conference will be held at 9:00 a.m., April 26, 2002, and the six-day jury trial will begin at 9:00 a.m., May 7, 2002.
IT IS SO ORDERED.