Allen v. City of Portland

Citation73 F.3d 232
Decision Date22 August 1995
Docket NumberNo. 93-35212,93-35212
Parties95 Cal. Daily Op. Serv. 9656, 95 Daily Journal D.A.R. 16,814 Joyce Lynne ALLEN, Plaintiff-Appellant, v. CITY OF PORTLAND; Richard D. Walker, Chief of Police; George E. Fort, Police Officer, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Joyce Lynne Allen, Portland, Oregon, Pro Se.

Harry Auerbach, Deputy City Attorney, Portland, Oregon, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: CHOY, SNEED, and FERGUSON, Circuit Judges.

OPINION

FERGUSON, Circuit Judge:

The plaintiff appeals pro se the district court's judgment for the defendants and the denial of her motion for a new trial. The plaintiff brought suit under 42 U.S.C. Sec. 1983 alleging that the defendants violated her civil rights when they arrested her without probable cause, subjected her to excessive force, and deprived her of liberty without due process of law. The plaintiff also asserted state common law claims for false arrest, battery, and negligence. We hold as a matter of law that the plaintiff was arrested without probable cause in violation of her Fourth Amendment rights. The judgment of the district court is reversed and remanded.

I. BACKGROUND

On September 14, 1989, Joyce Allen, her husband Dwight Allen, and their 10-year-old son, Michael Allen, had dinner at John's Meatmarket in Portland, Oregon. Dwight intended to pay for part of the meal with an Entertainment card, which offered a half-price discount. Dwight claims that he told the waiter before the family ordered dinner, that he planned to use the Entertainment card. The restaurant manager, Lanny Blanks, claims that Dwight never mentioned the Entertainment card before the family ordered.

After dinner, when the bill arrived, Dwight presented the waiter with the Entertainment card and the waiter refused to accept the card. Dwight asked to speak to the restaurant manager. Blanks, the restaurant manager, informed the Allen family that they could not use the discount coupon because Joyce had one meal and as Dwight and his son had split a meal, the coupon could not be used when meals were shared. Dwight and Blanks then argued about the restrictions on the use of the coupon which were written in the Entertainment book. Dwight left fifteen dollars and the discount coupon to pay for the twenty-five dollar meal. The Allen family then left the restaurant.

Blanks called 911 and reported a theft. Despite the fact that the dispute over the bill was between Blanks and Dwight, Blanks reported to the dispatcher that there were three suspects and gave descriptions of Joyce, Dwight, and their son. Officer George Fort and Officer Darrell Miller responded to the call. At trial, Officer Fort testified to what Blanks and a waitress at the restaurant told the officers about the dispute:

And they [Blanks and the waitress] quickly related to us that the folks that had been called about had left without paying their full price, the full price on a meal, or something mentioned, I recall, about a coupon being used invalid, incorrectly. And there was a balance of money owed. I don't recall if I knew, at that time, the exact amount, but it did not seem to be a very large amount.

Officer Fort further testified that the restaurant manager and the waitress assisted the officers in locating Joyce and her son who had entered a nearby restaurant, Rose's Restaurant.

Officer Fort testified that he entered Rose's Restaurant and saw Joyce and her son going into the women's restroom. Officer Fort entered the women's restroom, and after a brief discussion told Joyce that she was under arrest. At trial Officer Fort relayed the following conversation that took place in the restroom:

And then she [Joyce] said, "I haven't done anything wrong." I said, "Well, according to the restaurant manager, you have. You have been involved in a theft at the Meatmarket. You didn't pay all that was owed."

There was a short discussion then about she acknowledged the fact that they had been there, that there was a dispute over the cost of the meal, and that they had left....

I said to her something like, "You are under arrest for theft, and you are going to have to come outside with me."

Joyce refused to leave the restroom. Officer Fort took Joyce's arm and told her that she could either walk out with him or he would handcuff her. Joyce did not want Officer Fort to touch her. Officer Fort testified that he attempted to take Joyce's arm and lead her out of Rose's Restaurant, but Joyce jerked her arm away from him. When Officer Fort, Officer Miller, and Joyce finally got outside the restaurant a crowd had gathered. By this time, Joyce was very upset about the arrest and was shouting at the officers.

Officer Fort testified that once they were outside the restaurant he reminded Joyce that she was under arrest. After asking where her husband was, Fort told Joyce he wanted her to sit in his car so that he could continue with his investigation. According to Officer Fort, when he grabbed Joyce's arm to escort her to the car she hit him in the chest. Moments later, Officer Fort broke Joyce's arm as he pulled her arm behind her back in an attempt to handcuff her. Dwight Allen arrived on the scene and took his wife to the hospital. Officer Fort never cited Joyce for theft, although he did issue her a citation for harassment because she had hit him.

Joyce sued the City of Portland, Officer Fort, and Richard Walker, the Portland Chief of Police 1 under 42 U.S.C. Sec. 1983, claiming that Officer Fort subjected her to an unconstitutional arrest and used excessive force. She also brought pendent state law claims for false arrest, battery, and negligence. In the defendants' answer to the complaint, Officer Fort did not assert the defense of qualified immunity.

Before trial, the district judge granted the defendants' motion to bifurcate the trial. The bifurcation order established that Officer Fort's liability and the amount of damages, if any, would be decided in the first phase of the trial. If Officer Fort was found liable, then in the second phase the City's liability would be determined. Under the bifurcation order, the City stipulated it would be responsible under respondeat superior for any compensatory damages, costs, and attorney fees awarded to plaintiff on any claim.

After a three-day jury trial, a verdict was returned in favor of the defendants on all counts and judgment was entered for the defendants. Joyce then moved for a new trial, but the motion was denied. Joyce now appeals pro se on several grounds. Because we find that Joyce's Fourth Amendment rights were violated as a matter of law, we do not address Joyce's other claims on appeal.

II. DISCUSSION

"The critical inquiry in a Sec. 1983 action 'is whether the plaintiff has been deprived of a right secured by the Constitution and laws.' " Barry v. Fowler, 902 F.2d 770, 773 (9th Cir.1990) (citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979)). The Fourth Amendment protects persons against "unreasonable searches and seizures." U.S. Const. amend. IV. The "reasonableness" of a warrantless arrest is determined by the existence of probable cause. Barry, 902 F.2d at 772. Thus, we must address two issues: 1) whether Officer Fort arrested Joyce; and 2) if so, whether the arrest was supported by probable cause.

A. Arrest

Under the Fourth Amendment there are two categories of police seizures. First, a police officer may seize a citizen for a brief investigatory stop if the officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); See also, Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir.1993), cert. dismissed sub nom. Searle v. Morgan, --- U.S. ----, 114 S.Ct. 671, 126 L.Ed.2d 640 (1994). During a Terry stop, police officers are entitled to employ reasonable measures to protect themselves and others in potentially dangerous situations. Allen v. City of Los Angeles, 66 F.3d 1052, 1056-57 (9th Cir.1995). Second, a seizure which is a full-scale arrest, must be supported by probable cause. Morgan, 997 F.2d at 1252. To determine whether a seizure has ripened into a full-scale arrest, the court must consider the "totality of the circumstances." United States v. Del Vizo, 918 F.2d 821, 824 (9th Cir.1990) (quoting United States v. Baron, 860 F.2d 911, 914 (9th Cir.1988), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 414 (1989)). No one factor is dispositive when evaluating the totality of the circumstances. Del Vizo, 918 F.2d at 824.

The Ninth Circuit has established that, "[t]he proper focus when determining coerciveness or restraint sufficient to constitute an arrest or detention is not on the subjective belief of the agents. Rather we review the situation from the perspective of the person seized." United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295 (9th Cir.1988) (emphasis added). In Delgadillo-Velasquez, the court ruled that the test is whether "a reasonable innocent person in these circumstances would not have felt free to leave after brief questioning." Id. at 1295-96; See United States v. Ricardo D., 912 F.2d 337 (9th Cir.1990); Eberle v. City of Anaheim, 901 F.2d 814 (9th Cir.1990).

At trial the defendants argued that the seizure of the plaintiff did not amount to an arrest, but was merely a detention or investigatory stop. Applying the test established in Delgadillo-Velasquez to the present case, we hold as a matter of law that Officer Fort's conduct in the restroom of Rose's Restaurant amounted to an arrest. In the ladies' restroom of Rose's Restaurant, Officer Fort told Joyce that she was under arrest for theft. Clearly, a reasonable innocent person...

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