Hall v. Dodge, Civ. No. 6:12-cv-1808-MC

• Decision Date: 05 September 2013
• Docket Number: Civ. No. 6:12-cv-1808-MC
• Parties: KEVIN M. HALL, Plaintiff, v. JAMES DODGE, Defendant.
• Court: U.S. District Court — District of Oregon

KEVIN M. HALL, Plaintiff, v. JAMES DODGE, Defendant.

Civ. No. 6:12-cv-1808-MC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DATED: September 5, 2013

OPINION AND ORDER

MCSHANE, Judge:

Plaintiff brings this action seeking damages and injunctive relief for alleged violation of his rights under the Fourth Amendment as selectively incorporated by the Fourteenth Amendment Due Process Clause pursuant to 42 U.S.C. § 1983, for alleged violation of his rights under the Oregon Constitution pursuant to the Oregon Torts Claim Act (OTCA), Oregon Revised Statute 30.260 et seq., and for battery pursuant to the OTCA. Both plaintiff and defendant filed motions for summary judgment. This court has jurisdiction under 28 U.S.C. §§ 1331 & 1367. Upon review, defendant's motion for summary judgment (#12) and plaintiff's motion for summary judgment (#16) are GRANTED IN PART and DENIED IN PART.

PROCEDURAL AND FACTUAL BACKGROUND

This action arises out of an alleged violative search and seizure conducted on October 26, 2011 by Officer James Dodge in Corvallis, Oregon. At approximately 12:00 p.m., Officer Dodge was on a directed patrol in the area of Southwest 6th Avenue and Southwest D Avenue. Officer Dodge, along with other officers of the Corvallis Police Department, regularly patrolled thislocation because it was considered a "high crime"¹ area due to its proximity to railroad tracks. Officer Dodge observed plaintiff walking in a very slow manner² on a gravel road near the railroad tracks, wearing a dark colored hooded sweatshirt with the hood extended over his head, and wearing a handgun in holster on his hip. Upon making these observations, Officer Dodge parked his vehicle, exited, and then approached Hall. Hall, upon perceiving Officer Dodge's exit, briefly turned to Hall and asked whether he was being detained. Officer Dodge informed Hall that he was not being detained, but asked Hall to keep his hands away from his handgun and informed him that he would like to speak with him.³ Hall remained silent and didn't answer Officer Dodge's questions. Hall then asked again, whether or not he was being detained and Officer Dodge responded affirmatively.

Upon observing that Hall had a knife clipped to his front pocket, Officer Dodge proceeded to pat down Hall. Officer Dodge didn't find anything other than the knife and gun already identified. Officer Dodge, seeking Hall's identity, was able to acquire the name "Kevin Hall" from articles of mail "held" by Hall.⁴ Officer Dodge used his two-way radio to run the license plate of a nearby car to check for ownership under "Kevin Hall," and then to check foroutstanding warrants for "Kevin Hall." Shortly thereafter,⁵ Officer Dodge informed Hall that "he was free to go." Decl. of James Dodge 2, Apr. 1, 2013, ECF No. 13.

STANDARD OF REVIEW

The court must grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue of fact is genuine "if the evidence is such that a reasonably jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air., Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court views the evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995) (citing Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994)). If the moving party shows that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see Fed. R. Civ. P. (56)(c).

DISCUSSION

Defendant contends that: (1) his detention and frisk of plaintiff were lawful under the Fourth Amendment; (2) his identification of plaintiff's name from plaintiff's mail was lawful under the Fourth Amendment; (3) he is entitled to qualified immunity under 42 U.S.C. § 1983; and (4), plaintiff's state claims for unreasonable search and seizure and battery are not supported by the Oregon Constitution and are subject to qualified immunity.

I. Detention and Frisk under the Fourth Amendment

The Fourth Amendment⁶ applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Brown v. Texas, 443 U.S. 47, 50 (1979) (citing Davis v. Mississippi, 394 U. S. 721, 726-27 (1969)). A seizure arises when the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded. United States v. Delgado, 466 U.S. 210, 217 (1984). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Florida v. Bostick, 501 U.S. 429, 434 (1991). Mere police questioning does not constitute a seizure. Id. (citing Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion)). Rather, an officer may, in compliance with the Fourth Amendment, approach an individual on the street or other public place and ask whether the individual is willing to answer questions by putting questions to the individual. Royer, 460 U.S. at 497.

Officer Dodge, in uniform, approached Hall and proceeded to engage Hall in conversation.⁷ Officer Dodge's initial probing for Hall's identity does not constitute a seizure because it occurred in a public place and related to identity acquisition. Delgado, 466 U.S. at 216 ("interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure."). However, "if the [person] refuses to answer and the police take additional steps . . . then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure." Id. at 216-17 (emphasis added). AfterHall refused to answer Officer Dodge's initial inquiries, Officer Dodge informed Hall that he was being detained "for a moment." Decl. of James Dodge Attachment 1, at 2, Apr. 1, 2013, ECF No. 13. Officer Dodge, by informing Hall he was being detained, seized Hall through show of authority by restraining his freedom of movement. United States v. Mendenhall, 446 U. S. 544, 553-54 (1980); Bostick, 501 U.S. at 435 ("as long as the police do not convey a message that compliance with their requests is required.").

An officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion is a less demanding standard than probable cause, but still requires an officer to articulate more than an "inchoate and unparticularized suspicion or hunch" of criminal activity. Id. at 124 (quoting Terry, 392 U.S. at 27) (internal quotation marks omitted). "In evaluating the validity of a stop such as this, we must consider the totality of the circumstances—the whole picture." United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)) (internal quotation marks omitted).

Defendant contends that he had reasonable suspicion to detain Hall based upon: (1) Hall's presence in a high crime area; (2) Hall's manner of dress; (3) Hall's display of a firearm, (4) Hall's refusal to answer posed questions; and (5), Hall's "suspicious" behavior and movement. These facts, even when combined with the experience and legitimate concerns of a trained police officer, do not rise to the level of reasonable suspicion required for temporary detention.

First, "[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing acrime." Wardlow, 528 U.S. at 124 (2000) (citing Brown, 443 U.S. at 47). Yet, an officer is not required to ignore relevant characteristics of location and may consider relevant contextual considerations in Terry detention analysis. Id; Adams v. Williams, 407 U.S. 143, 144 (1972). Thus, Officer Dodge is entitled to consider Hall's proximity to a "high crime area" known for criminal trespass and other "transient related crimes and violations."⁸ However, the "reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger (e.g., drunken and/or reckless driving), and any risk of escalation (e.g., disorderly conduct, assault, domestic violence)," i.e., an assessment of "public safety" importance should be considered within the totality of the circumstances. United States v. Grigg, 498 F.3d 1070, 1081 (9th Cir. 2007). Here, the relatively harmless investigated "misdemeanor conduct—[alleged criminal trespass]—need not spur the police into instant action as might the opportunity to stop a reputedly armed felon, street fighter, or reckless driver." Id. Any threat to public safety from Hall's investigated criminal trespass would have been minimal, and Hall's "interest in personal security against governmental intrusion is entitled to more deference." Id.

Second, "[f]or law enforcement officers to base a search, even in part, on a 'pop' guess that persons dressed in a particular fashion are likely to commit crimes not only stretches the concept of reasonable suspicion beyond recognition, but also is inimical to the self-expression which the choice of wardrobe may provide." Sokolow, 490 U.S. at 16 (Marshall, J., dissenting); but see United States v. Chambers, 918 F.2d 1455, 1462 (9th Cir. 1990) (finding that photographs shown to jury that included defendant wearing expensive clothing and gold jewelrycould be considered in determining whether defendant fit "drug courier profile."). Officer Dodge does not...