Opinion
3:21-cv-01340-YY
07-11-2022
LUCAS S. CARILLO, Personal Representative of the Estate of Aaron Joseph Danielson, Plaintiff, v. THE CITY OF PORTLAND, a municipal corporation; MICHAEL SCHMIDT, an individual; and EDWARD TEVIS TED WHEELER, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff brings this suit as the personal representative of Aaron Danielson, who was killed during a protest in downtown Portland in the summer of 2020. Plaintiff alleges a Fourteenth Amendment substantive due process claim under 42 U.S.C. § 1983 and a state law negligence claim against defendants, alleging in essence that defendants' “hands off” approach to the increasingly violent clashes between competing protest groups in Portland created an environment that encouraged lawlessness and led to Danielson's murder.
Defendant Michael Schmidt, who was the Multnomah County District Attorney during the relevant time, has filed a motion to dismiss (ECF 9) under Federal Rule of Civil Procedure 12(b)(6). The motion should be granted because Schmidt's decision to focus prosecutorial efforts on specific crimes and his communication of that decision are protected by absolute prosecutorial immunity. Botello v. Gammick, 413 F.3d 971, 977 (9th Cir. 2005) (holding that the “decision not to prosecute . . . cases and [the] communication of that decision is intimately tied to the judicial process and is thus entitled to absolute immunity.”) (citations omitted).
These Findings and Recommendations only address claims brought against defendant Schmidt. The claims against defendants City of Portland and Mayor Ted Wheeler were addressed in separate Findings and Recommendations (ECF 31).
I. Motion to Dismiss Standard
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) (citingBell 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). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, 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 the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. ParksSch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In addition to the allegations in the complaint, the court may consider documents that are attached to or incorporated by reference in the complaint, where the parties do not contest the authenticity of those documents, as well as matters capable of judicial notice. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
II. Background
The following facts are taken from plaintiff's complaint and are, for the purposes of this motion, assumed to be true. During the summer and fall of 2020, demonstrators came to downtown Portland for nightly protests. Compl. ¶ 11, ECF 1. Clashes between left- and rightleaning protest groups often occurred. Id. ¶¶ 13, 29. In response to the increasing violence between competing groups, defendant Ted Wheeler, the mayor of Portland and commissioner of the Portland Police Bureau (“PPB”), proposed in mid-July that Portland police officers avoid engaging with crowds gathered in downtown Portland “unless a life safety situation develop[ed].” Id. ¶¶ 7, 24. Schmidt “issued a District Attorney statement” that his office would “presumptively decline to prosecute cases that don't involve deliberate property damage, theft, or threat of force against another person.” Id. ¶ 12.
Danielson was walking with a companion in downtown Portland on the evening of August 29, 2020. Id. ¶ 14. Another individual named Michael Reinoehl hid inside a parking garage as Danielson and his companion walked by. Id. Reinoehl then emerged and shot Danielson twice; Danielson died at the scene. Id.
Plaintiff represents Danielson's estate and alleges that defendants “created a vacuum where peacekeeping efforts and criminal accountability should be” and that “in its place, an environment of vigilantism emerged that ultimately led” to Danielson's death. Id. ¶¶ 4-5. Plaintiff alleges claims for deprivation of Danielson's substantive due process rights under the Fourteenth Amendment and state law negligence.
Although plaintiff alleges the federal constitutional claim as a violation of Danielson's procedural due process rights, see Compl. ¶¶ 35-39, ECF 1, the allegations are better understood as a substantive due process claim, as plaintiff acknowledged in briefing related to the City Defendants' Motion to Dismiss. Resp. 15 n.1, ECF 22.
III. Absolute Immunity
Schmidt primarily asserts that his decision not to prosecute a certain class of cases is subject to absolute prosecutorial immunity. Mot. 5, ECF 9. “Prosecutors are absolutely immune from liability under section 1983 for their conduct in initiating a prosecution and in presenting the State's case insofar as that conduct is intimately associated with the judicial phase of the criminal process.” Roe v. City & Cnty. of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997) (citing Burns v. Reed, 500 U.S. 478, 486 (1991)) (internal quotation marks omitted). “However, when prosecutors perform administrative or investigative, rather than advocatory, functions they do not receive absolute immunity.” Id. (citing Fletcher v. Kalina, 93 F.3d 653, 655 (9th Cir. 1996)) (internal quotation marks omitted). “To determine whether an action is judicial, administrative or investigative, the court looks at the nature of the function performed, not the identity of the actor who performed it.” Botello, 413 F.3d at 976 (internal quotation marks omitted).
While “the line between” judicial, administrative, and investigative functions “is not entirely clear,” Schmidt's decision not to pursue a class of cases is clearly “connected with the prosecutor's role in judicial proceedings” and is therefore subject to absolute immunity. Id. at 976. It is well-established that absolute immunity attaches to conduct that “necessarily require[s] legal knowledge and the exercise of related discretion” and those “actions need not relate to a particular trial and may even be administrative in nature.” Lacey v. Maricopa County, 693 F.3d 896, 912 (9th Cir. 2012); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272 (1993) (rejecting as “extreme” the argument that absolute immunity “extends only to the act of initiation itself and to conduct occurring in the courtroom.”). “Functions for which absolute prosecutorial immunity have been granted include the lawyerly functions of organizing and analyzing evidence and law, and . . . they also include internal decisions and processes that determine how those functions will be carried out.” Lacey, 693 F.3d at 913.
Ninth Circuit law makes no distinction between the decision not to prosecute a single case or “a decision involving a whole line of cases[.]” Roe, 109 F.3d at 583. “In analyzing the rational underpinnings of absolute prosecutorial immunity . . ., there is ‘no meaningful distinction between a decision on prosecution in a single instance and decisions on prosecutions formulated as a policy for general application.' ” Id. (quoting Haynesworth v. Miller, 820 F.2d 1245, 1269 (D.C. Cir. 1987)). “Both practices involve a balancing of myriad factors, including culpability, prosecutorial resources and public interests and both procedures culminate in initiation of criminal proceedings against particular defendants, and in each it is the individual prosecution that begats the asserted deprivation of constitutional rights.” Id. at 583-84.
Schmidt's policy to only prosecute a certain class of cases is entitled to absolute immunity because there is “no question that the nature of the decision not to prosecute is intimately associated with the judicial phase of the criminal process.” Id. at 583. (internal quotation marks omitted). Schmidt's decision to not prosecute “cases that don't involve deliberate property damage, theft, or threat of force against another person,” Compl. ¶ 37(a), ECF 1, related to the ongoing demonstrations in downtown Portland is driven by the same balancing of factors including prosecutorial resources and the public interest, and the decision has no function other than one related to Schmidt's role as an advocate. Botello, 413 F.3d at 977. Even if Schmidt's charging decisions are framed as the creation of administrative policy regarding how trial resources should be used, that does not change the function of those decision from “advocatory” to “administrative” for analyzing absolute immunity. A policy of pursuing particular cases may be an administrative decision, but it is distinctly related to the prosecutor's advocacy role, and stands apart from other administrative tasks such as “workplace hiring, payroll administration, the maintenance of physical facilities, and the like.” Van de Kamp v.Goldstein, 555 U.S. 335, 344 (2009) (holding that prosecutor's “supervision or training” program was a “administrative obligation” that was “directly connected with the prosecutor's basic trial advocacy duties,” and thus subject to absolute immunity).
Plaintiff also has not identified, nor has extensive research uncovered, any decision that distinguishes between the decision not to prosecute an existing case and the decision not to prosecute a potential future case. See Resp. 4, ECF 13 (asserting that defendant's nonprosecution is not absolutely immune because it concerned “categories of normally criminal conduct . . . in advance of the perpetration of that conduct (and in advance of investigation of any criminal conduct that may have occurred).”). Absolute immunity for the decision not to prosecute a class of cases often arises in the context where a prosecutor decides not to prosecute cases involving a certain police officer. Roe, 109 F.3d at 581-82; see also Botello, 413 F.3d at 974 (officer alleged that prosecutors refused to file any case he was involved in after he raised concerns about a state's medical expert); Heidt v. City of McMinnville, No. 3:15-cv-00989-SI, 2016 WL 7007501, at *2 (D. Or. November 29, 2016) (prosecutors disqualified officer as a witness for the state based on officer's alleged use of force against criminal suspects and concerns about his credibility). These cases suggest, if not directly state, that a nonprosecution decision is subject to absolute immunity for cases already under investigation and for any hypothetical future cases the officer in question might later refer. See Barnett v. Marquis, 16 F.Supp.3d 1218, 1223 (D. Or. 2014), aff'd, 662 Fed.Appx. 537 (9th Cir. 2016) (holding that prosecutor's stated refusal to work with officer “during the investigative phase of possible criminal prosecutions” was subject to absolute immunity) (emphasis added); Walters v. Cnty. of Maricopa, Ariz, No. CV 04-1920-PHX NVW, 2006 WL 2456173, at *5 (D. Ariz. Aug. 22, 2006) (holding that decision to not prosecute cases brought by officer and adding related information to the “permanent files of the Maricopa County Attorney's Office” and noting that the information “shall be disclosed to defense attorneys in any case where [the officer] is a potential witness” was subject to absolute immunity); see also Lacey, 693 F.3d at 912 (noting that prosecutorial actions subject to absolute immunity “need not relate to a particular trial”). The function of the decision not to prosecute certain cases, whether the cases existed at the time of the decision or not, is fundamentally and inextricably tied to the initiation of criminal proceedings and thus falls squarely within Schmidt's role as the state's advocate. Heidt, 2016 WL 7007501, at *14 (noting that the “creation of a nonproseuction policy” is a “judicial function” and subject to absolute immunity under Ninth Circuit law) (citing Botello, 413 F.3d at 977; Roe, 109 F.3d at 584).
Plaintiff asserts that Schmidt's “broadcast” of his decision not to prosecute particular cases is a separate act that is not subject to absolute immunity. Compl. ¶ 37(a), ECF 1; Resp. 5, ECF 13. But it is well-established that a prosecutor's “decision not to prosecute . . . cases and [the] communication of that decision is intimately tied to the judicial process and is thus entitled to absolute immunity.” Botello, 413 F.3d at 977 (citing Roe, 109 F.3d at 583); Barnett, 662 Fed.Appx. at 540 (same); Heidt, 2016 WL 7007501, at *14 (“[T]he Ninth Circuit has held that creation of a nonprosecution policy, a decision not to prosecute a particular police officer's cases, and conveying a nonprosecution decision are all judicial functions.”) (citing Botello, 413 F.3d at 977; Roe, 109 F.3d at 584). Thus, Schmidt's communication or “broadcast” of the nonprosecution policy is also subject to absolute immunity.
Plaintiff relies on Buckley for the proposition that Schmidt's actions “were made in the form of statements to the press,” which are not protected by absolute immunity. Resp. 5, ECF 13 (citing Buckley, 509 U.S. at 278). That argument is unavailing for several reasons. First, the complaint does not specify that Schmidt made “statements to the press.” Rather, the complaint alleges that Schmidt “issued a District Attorney's statement” or “broadcast[t] this policy to the general public.” Compl. ¶¶ 12, 37(a). And perhaps more importantly, whatever form the communication took here, whether it was to the press or not, it is distinct from Buckley and its progeny. The prosecutor in Buckley conducted a press conference while a criminal trial was pending and made false statements about the defendant, including that “numerous pieces of evidence . . . tied” the defendant to the crime. 509 U.S. at 276. The Court relied on historic principles and precedent that described the boundaries of absolute immunity: “[Absolute immunity] does not apply to or include any publication of defamatory matter before the commencement, or after the termination of the judicial proceeding (unless such publication is an act incidental to the proper initiation thereof, or giving legal effect thereto).” Id. at 277 n.8 (citing Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 COLUM. L. REV. 463, 489 (1909); Viosca v. Landfried, 140 La. 610, 615 (1916); Youmans v. Smith, 153 N.Y. 214, 220-223 (1897) (additional citations omitted)). Schmidt's statements here are “incidental” to the initiation of criminal proceedings because the communication served no other purpose than to announce his decision to forego prosecuting certain categories of cases. There is no allegation that the statement was false or defamatory, and plaintiff has not offered any meaningful distinction between writing a letter describing a nonprosecution decision, which several cases have held is subject to absolute immunity, e.g. Botello, 413 F.3d at 977, and issuing a “District Attorney's statement” or otherwise “broadcasting” that same decision, even to the press. Compl. ¶¶ 12, 37(a), ECF 1.
Schmidt asserts that a finding of absolute immunity applies to all of plaintiff's claims against him, including plaintiff's section 1983 and state law negligence claims. Mot. 5, ECF 9 (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). “Under both federal and state law, a prosecutor is absolutely immune when performing the traditional functions of an advocate.” Peterson v. Porter, No. 3:16-CV-01955-JR, 2018 WL 7078667, at *12 (D. Or. Nov. 1, 2018), report and recommendation adopted, 2019 WL 267704 (D. Or. Jan. 18, 2019), aff'd, 805 Fed.Appx. 522 (9th Cir. 2020) (citing Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005)) (internal quotations omitted). Therefore, absolute immunity applies to all of plaintiff's claims, including his state law claims, and they must be dismissed.
IV. Qualified Immunity
Alternatively, Schmidt contends that he is entitled to qualified immunity. Reply 3-4, ECF 14. It is unnecessary to reach this argument because he is entitled to absolute immunity, as discussed above.
RECOMMENDATIONS
Defendant Schmidt's motion to dismiss (ECF 9) should be granted and plaintiff's claims against him should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, July 25, 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.