Addison v. City of Baker City

Citation258 F.Supp.3d 1207
Decision Date29 June 2017
Docket NumberCase No. 2:15-cv-2041-SI.
Parties Brian ADDISON, Plaintiff, v. CITY OF BAKER CITY, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)

Clifford S. Davison and Kristen G. Hilton, Sussman Shank LLP , 1000 S.W. Broadway, Suite 1400, Portland, OR 97205, Of Attorneys for Plaintiff.

Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr. , P.O. Box 62, Springfield, OR 97477, Of Attorneys for Defendants.


Michael H. Simon, United States District Judge

Plaintiff Brian Addison ("Addison") brings this action against Wyn Lohner ("Lohner"), the Police Chief for the City of Baker City ("Baker City"), in his official and personal capacities, and Baker City, an Oregon municipality (collectively, "Defendants"). Addison asserts the following claims: (1) First Amendment retaliation under 42 U.S.C. § 1983 (" § 1983"), against Lohner; (2) supervisory liability for First Amendment retaliation under § 1983, against Lohner; (3) municipal liability for First Amendment retaliation under § 1983, against Baker City; (4) intentional interference with economic relations,1 against Baker City and, in the alternative, against Lohner; (5) defamation, against Baker City and, in the alternative, against Lohner; (6) deprivation of federal procedural due process under § 1983, against both Defendants; and (7) deprivation of federal substantive due process under § 1983, against both Defendants. Before the Court are: (1) Defendants' motion for summary judgment against all claims asserted by Addison; and (2) Addison's cross motion for partial summary judgment against Defendants' Second, Third, Seventh, Tenth, Eighteenth, and Twentieth Affirmative Defenses. For the reasons stated below, Defendants' motion for summary judgment is granted in part and denied in part, and Addison's motion for partial summary judgment is granted.


A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards , Inc. v. Sixshooters , Inc. , 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment," the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient...." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

When parties file cross-motions for summary judgment, the court "evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences." A.C.L.U. of Nev. v. City of Las Vegas , 466 F.3d 784, 790–91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass'n , 605 F.3d 665, 674 (9th Cir. 2010) ("Cross-motions for summary judgment are evaluated separately under [the] same standard."). In evaluating the motions, "the court must consider each party's evidence, regardless under which motion the evidence is offered." Las Vegas Sands, LLC v. Nehme , 632 F.3d 526, 532 (9th Cir. 2011). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating "specific facts demonstrating the existence of genuine issues for trial." Id. "This burden is not a light one." Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a "metaphysical doubt" as to the material facts at issue. Matsushita , 475 U.S. at 586, 106 S.Ct. 1348.


From 2006 to 2008, Addison worked as a reporter at the Record–Courier , a newspaper in Baker City. On March 6, 2008, Addison wrote an editorial published in the Record–Courier titled "How About a Favorable Interpretation of the 4th Amendment." ECF 52–2 at 17. In this editorial, Addison commented on the "weakening" of the Fourth Amendment, particularly through the official use by the police of canine units. In the editorial, Addison wrote that the Baker City Police Canine Drug Enforcement Unit "patrolled" the Baker City High School gymnasium during half time of a high school basketball tournament, in what Addison stated was a violation of the basketball game attendees' rights under the Fourth Amendment.

The Baker City Police Chief, Lohner, read the editorial and was upset that the community might think the Baker City Police Department ("BCPD") was using its new canine unit to violate people's constitutional rights. Lohner telephoned the publisher of the Record–Courier , Debbie Schoeningh, to express his displeasure with the editorial. Although the parties dispute whether Lohner demanded a meeting or Schoeningh suggested one, it is undisputed that after the editorial was published, Lohner met with Schoeningh and Addison. At this meeting, Lohner expressed his disagreement with the conclusion that the BCPD violated the Fourth Amendment. He also threatened to stop providing weekly articles to the newspaper and questioned the integrity of the newspaper for publishing the editorial.

On June 5, 2008, the Record–Courier fired Addison. At the time of his termination, Addison argued with Greg Brinton ("Brinton"), the owner of the Record–Courier. Addison also went to the workplace of Brinton's wife, Patricia Brinton, to discuss Addison's termination with her because she recently had been involved in a personnel decision at the newspaper involving Addison. Patricia Brinton was not in the office at the time of Addison's visit. Addison also tore a book that Schoeningh had given him, put it in a plastic bag, and hung it on the rearview mirror of Schoeningh's car. On June 6, 2008, Addison returned to the Record–Courier offices, perhaps to retrieve his final paycheck. The parties dispute Addison's demeanor on both June 5th and June 6th and whether he banged on the doors and raised his voice.

On June 6, the police were called. At the suggestion of Baker City Officer Wayne Chastain, that officer issued a stalking complaint against Addison. Officer Chastain also was the police officer who had brought the canine unit to the high school gymnasium that was the subject of Addison's editorial on March 6, 2008.

On or about June 11, 2016, the state court held a hearing on the stalking complaint filed against Addison. Brinton testified that he did not feel threatened by Addison. Schoeningh testified that she did not have anything to add to Brinton's testimony. The state court judge dismissed the stalking complaint. Schoeningh later testified in her deposition that she did not recall hearing any threatening language from Addison.

When Lohner heard about the argument involving Addison at the Record–Courier , he instructed persons at police dispatch to "flag" Addison's name as a "caution." This resulted in a notation placed in Addison's "file" that he had "made threats" against Brinton and Schoeningh and challenged Brinton to a fight. From that point forward, whenever a police officer would run a check on Addison's name, the officer would see a warning that Addison has been "flag [ged] as caution," as well as those details. This caution was not removed after the state court dismissed the stalking complaint, nor was the fact that the stalking complaint had been dismissed added to the caution's details. The information continued to appear prominently and in more than one location in Addison's electronic record as of at least 2016, when his electronic file was retrieved, printed, and produced during this lawsuit.

When a caution appears on a person's name in the local law enforcement electronic file, a warning flashes "red" on the dispatch screen. According to Baker City's corporate designee at deposition, this warning is used if someone is "a threat, that could hurt a police officer who didn't know the history of the person." ECF 63–2 at 62–63. A review of the BCPD records of persons known to be violent towards police officers, however, shows that those persons were not generally flagged with a caution on their file.

Before the editorial was published, Addison had few interactions with the BCPD. After the editorial was published in March 2008, Addison had significantly increased personal contacts with the Baker City police. These included documented incidents on April 22, 2008, January 8, 2009, May 21, 2009, January 18, 2010, February 14, 2010, March 14, 2010, September 11, 2012, April 25, 2013, May 9, 2013, May 25, 2013, August 3, 2013, September 2, 2013, September 18, 2013, June 1, 2014, and June 7, 2014, most of which resulted only in "warning" tickets being issued to Addison. Addison testified that in addition to the contacts that were documented, there were more undocumented contacts that resulted in informal warnings.

In 2010, Addison left Baker City. He returned in 2012. On June 1, 2014, Addison had a contact with Baker City Police Officer (now Lieutenant) Dustin Newman. The parties dispute the details of that interaction. Lohner testified that at the time, Officer Newman reported that he "had a guy go completely off...

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