Davison v. Venemon, 87-3910
| Citation | 857 F.2d 1477 |
| Decision Date | 29 August 1988 |
| Docket Number | No. 87-3910,87-3910 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Harry L. DAVISON, Plaintiff-Appellant, v. Rikki VENEMON, Caroline Crawford, Robert Keating, Michael Barnes, Thomas Huff, Robert Baxter, individually and in his/her capacity as a police officer of the City of Portland, City of Portland, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Before GOODWIN, Chief Judge, ALARCON and FERGUSON, Circuit Judges.
Plaintiff Harry Davison appeals a summary judgment in an action brought under 42 U.S.C. Sec. 1983 (1982), against several Portland police officers and the City of Portland. We affirm in part, and reverse in part.
On September 3, 1984, Officer Rikki Venemon stopped Davison for making a right hand turn without activating a turn signal. When Officer Venemon approached the vehicle, Davison volunteered that his turn signal was not working and that he used the appropriate hand signal instead. Venemon informed him that hand signals were not allowed after dark.
During the course of the conversation, Officer Venemon asserts that she smelled alcohol on Davison's breath. She asked how much he had had to drink. Davison admitted to having had two or three drinks. She asked him to get out of the vehicle. Davison complied, but tried to explain the use of his hand signal.
Venemon asked Davison to perform several field sobriety tests. Instead of completing the tests, Davison continued to try to explain that he was not drunk. Officer Venemon then advised Davison that she was placing him under arrest for "driving while intoxicated." Davison protested that he was sober. The officer told Davison to put his hands behind his back so that she could handcuff him. Instead, he tried to reason with her. Venemon responded, "you'll do it my way or you'll find your face in the concrete."
Davison continued to try to reason with Venemon, but did not threaten her. She radioed for assistance. Davison states that suddenly, without warning, he was grabbed by the throat. Someone also grabbed his arm and twisted it behind him. He was thrown to the sidewalk, his hair was pulled and his face was pushed into the sidewalk. Someone kicked his side. He was handcuffed, and shoved into the patrol car.
At the police station, Davison was twice administered a breathalyzer test by another officer. Both registered 0.00--no alcohol in the blood stream. Davison was held for an hour, and cited for resisting arrest and for making an improper right hand turn. After being taken by taxi back to his car, he drove to a hospital where he was examined for injury to his neck, wrist, and pain in the back of his head.
He was subsequently found guilty of making an improper right turn, but was not convicted of resisting arrest.
This court reviews de novo a grant of summary judgment. Summary judgment is appropriate only if the pleadings and supporting material, read in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Kaiser Cement Corp. v. Fischbach and Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.), cert. denied, 107 S.Ct. 435 (1986).
For the purposes of this appeal we assume that Davison is prepared to prove his version of facts regarding the lawfulness of the stop, probable cause to arrest and the use of excessive force.
Davison contends that the initial stop of his vehicle was unlawful, and thus, that the stop deprived him of his right to be free from unlawful detention. This contention is wrong.
Traffic infractions constitute criminal conduct which is sufficient to support a brief investigatory stop. United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir.1985), citing Delaware v. Prouse, 440 U.S. 648, 661 (1979). Officer Venemon claims that she pulled Davison over for failing to use signal lights before making a right hand turn and for an improper lane change after the turn was made.
Under Oregon law, hand signals cannot be used to substitute for signal lights "[d]uring limited visibility conditions." Or.Rev.Stat. Sec. 811.405(1)(a). Oregon defines "[a]ny time from sunset to sunrise" as a "[l]imited visibility condition." Or.Rev.Stat. Sec. 801.325(1). Davison admits, in his affidavit, that when he left the bar, "[t]he sun was down and it was dark."
There is no material dispute on the failure to signal. Since this alone would support the stop, summary judgment on this issue was appropriate.
Arrests without probable cause give rise to a cause of action for damages under Sec. 1983. McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984); see Or.Rev.Stat. 133.310(1)(e) (). Probable cause does not require conclusive evidence of guilt, but only "some objective evidence which would allow a reasonable officer to deduce that a particular individual has committed or is in the process of committing a criminal offense." McKenzie, 738 F.2d at 1008. Venemon claims that she smelled alcohol on Davison's breath when she approached him to discuss the traffic infraction. 1 Davison admitted that he had had two or three drinks. Venemon asked Davison to perform sobriety tests which Davison admits that he failed.
Davison argues that he demonstrated quick responses inconsistent with being under the influence (e.g., use of a hand signal, and pulling over almost immediately after Venemon turned on her lights). Further, he attempts to discount his failure of the sobriety tests by asserting that his failure was due to his attempt to reason with the officer rather than to perform the tests successfully. (He ignores, however, the impact of his attitude toward the officer as evidence of possible inebriation.) He offers the breathalyzer, tests which showed no alcohol in the bloodstream, as evidence that his failure to perform the field tests were not due to intoxication.
However, Davison's alternative explanation of the circumstances, which in retrospect may be true, does not vitiate the existence of probable cause to arrest Davison under the facts known to Venemon at the time she acted. See Baker v. McCollan, 443 U.S. 137, 145-46 (1979) ( ). Even taking the evidence in the light most favorable to Davison, a rational trier of fact could not find that Officer Venemon lacked objective evidence sufficient to reasonably conclude that Davison was driving while intoxicated. See McKenzie, 738 F.2d at 1008. Thus, summary judgment was also appropriate on this issue.
Finally, Davison claims that the officers used excessive force when they arrested him. In determining whether the use of force violated Davison's...
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