Skoog v. County of Clackamas

• Decision Date: 20 November 2006
• Docket Number: No. 04-35286.,No. 04-35087.,No. 04-35568.,04-35087.,04-35286.,04-35568.
• Citation: 469 F.3d 1221
• Parties: Daniel SKOOG, Plaintiff-Appellee, v. COUNTY OF CLACKAMAS; Mark Fresh, Defendants, and Herbert Royster, Defendant-Appellant. Daniel Skoog, Plaintiff-Appellant, v. County of Clackamas; Mark Fresh; Herbert Royster, Defendants-Appellees. Daniel Skoog, Plaintiff-Appellant, v. County of Clackamas, Defendant-Appellee, and Mark Fresh; Herbert Royster, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1221

469 F.3d 1221

Daniel SKOOG, Plaintiff-Appellee, v. COUNTY OF CLACKAMAS; Mark Fresh, Defendants, and Herbert Royster, Defendant-Appellant.

Daniel Skoog, Plaintiff-Appellant, v. County of Clackamas; Mark Fresh; Herbert Royster, Defendants-Appellees.

Daniel Skoog, Plaintiff-Appellant, v. County of Clackamas, Defendant-Appellee, and Mark Fresh; Herbert Royster, Defendants.

No. 04-35087.

No. 04-35286.

No. 04-35568.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2006.

Filed November 20, 2006.

COPYRIGHT MATERIAL OMITTED

Montomery W. Cobb, Cobb & Bosse, LLP, Portland, OR, for plaintiff-appellant-appellee Daniel Skoog.

Rolf C. Moan, Assistant Attorney General, Salem, OR, for defendant-appellant-appellee Herbert Royster.

Edward S. McGlone, Assistant County Counsel, Clackamas County, Oregon City, OR, for defendant-appellee County of Clackamas.

Appeal from the United States District Court for the District of Oregon; Michael W. Mosman, District Judge, Presiding. D.C. No. CV-00-01733-MWM.

Before BRUNETTI, T.G. NELSON, and PAEZ, Circuit Judges.

T.G. NELSON, Circuit Judge.

I. Introduction

This set of appeals arises from a single lawsuit that is still ongoing. The district court granted summary judgment on the basis of qualified immunity to one of the defendants, Officer Herbert Royster, on all but one claim: the plaintiff's claim that Royster seized his still camera in retaliation for the exercise of his First Amendment rights. In 04-35087, Royster interlocutorily appeals the court's denial of summary judgment on that claim, and we reverse. Although the plaintiff stated a valid retaliation claim, the right assertedly violated—the right to be free of intentional, retaliatory action for which probable cause exists—was not clearly established. Accordingly, Royster is entitled to summary judgment based on the second prong of our qualified immunity analysis.

In part of 04-35286, the plaintiff, Daniel Skoog, appeals the district court's grant of summary judgment to Royster based on qualified immunity on Skoog's illegal search and seizure claim. On the facts pled in the complaint, it is clear that probable cause existed for the search and seizure. Accordingly, we affirm the district court's grant of summary judgment based on the first prong of the qualified immunity analysis.

In the remainder of 04-35286, Skoog seeks to appeal the district court's limitation of his retaliation claim (the subject of Royster's interlocutory appeal) to one item and its denial of his motion for leave to amend. In 04-35568, he seeks to appeal various other decisions of the district court. We lack jurisdiction over these issues because the district court did not certify them pursuant to Federal Rule of Civil Procedure 54(b) and no final judgment exists regarding them.

II. Background¹

On February 19, 2001, Officer Herbert Royster first encountered the plaintiff, Daniel Skoog. At the time, Royster was engaged in a sting operation at a Get & Go convenience store. Using a juvenile "decoy," he caught the cashier selling tobacco products to a minor. While engaged in conversation with the cashier, Royster noticed Skoog filming him with a digital video camera.

Skoog had been in a dispute with the county since his arrest on a DUI charge in December 2000. He had been photographing and videotaping police activities for some time. It so happened that Skoog's business, which sells protective armor to law enforcement agencies, is in the same building as the Get & Go. Skoog had gone to the store to buy some tobacco when he noticed Royster talking loudly to the cashier. He then retrieved his video camera from his office and began filming.

Skoog filmed the scene from outside the store for approximately two minutes. During that time, Royster was talking with the cashier, and the juvenile "decoy" and at least three other customers were inside the store. Skoog was not close enough to Royster to record his conversation with the cashier. However, after Skoog had been filming for two minutes, Royster approached Skoog, showed him his police identification, and asked why he was filming. Skoog told him he just enjoyed filming things.

Royster told Skoog that he might have committed a crime, saying that "if you are recording my words, sir, without notifying me, that is a felony offense in the State of Oregon. . . . If you are recording my voice, you must advise me before you do so . . . ." Skoog admitted that he had recorded Royster's voice. Royster asked for the videotape. Skoog refused to give it to him, but told him he would give him a copy. Royster said that he would turn the matter over to the Clackamas County District Attorney's office.

Skoog returned to his office and began making a copy of the videotape. Royster requested a uniformed deputy to accompany him to Skoog's office. When that deputy, Deputy Kraus, arrived at the scene, he gave Royster some background regarding Skoog.

Specifically, Kraus told Royster that Skoog was engaged in a lawsuit against the county and another deputy, Deputy Fresh, who had arrested Skoog on the DUI charge in December 2000. Skoog had filed a suit alleging that Deputy Fresh had arrested him without probable cause and with excessive force, and that county officials had denied him medical treatment for the eleven hours he was in the county jail. Skoog subsequently added other claims to the suit, including those on appeal. In addition to that suit, the criminal proceeding for the DUI was continuing in state court at the time of the Get & Go incident.

After Royster learned of Skoog's suit, he and Deputy Kraus went to Skoog's office. There, Skoog was using his computer to copy the videotape. As the tape played on the computer, the deputies saw and heard the part of the tape in which Royster was talking to Skoog. Skoog gave them "what purported to be a copy of the tape." He also took photos of the officers with his "still" (i.e., not video) digital camera. Of particular importance to this appeal is the fact that Royster believed that Skoog's video camera, attached to his computer, may have been in the background of the photos.

Royster heard from fellow officers that Skoog had been taking photographs of other officers. Indeed, as part of his defense in his state DUI case and in his federal § 1983 claims, Skoog had been taking pictures of officers watching his house and following people who left his house. He stored his photos and observations on his computer. Royster told fellow officers that Skoog had been "venemous" during their encounter. He also described Skoog as presenting a danger to law enforcement and described "the protective armor, large caliber shells, and bullet-riddled car door he had seen while in[the] plaintiff's office."

Over two weeks after the incident with Skoog at the Get & Go, Royster viewed the tape Skoog had given him. It turned out to be a partial copy containing only the first fourteen seconds of the tape. Royster sought advice from his superiors and from the District Attorney's office. The District Attorney's office told him that he had sufficient evidence to approach a judge. Royster obtained a search warrant from a magistrate judge.

In the affidavit accompanying his application for the search warrant, Royster stated that the reason for the warrant was to obtain evidence of a violation of Oregon Revised Statute Section 165.543, a statute that makes it a misdemeanor to intercept oral communications when "none of the parties to the communication has given prior consent to the interception."² Royster sought and received a warrant authorizing the seizure of Skoog's computer system and associated hardware, video cameras, and, most important to this appeal, Skoog's still digital camera. The affidavit asserted that the still camera should be seized because Royster saw Skoog use the camera to take photos of Royster and Kraus while they were in his office. Those photos, in turn, "[we]re of additional evidentiary value as they are independent evidence of our contact that day in [plaintiff's] office and may depict [plaintiff's] computer and digital [video] camera at his desk area." Finally, the affidavit described the protective armor, shells, and car door Royster had seen, though it did not seek their seizure.

Royster and eleven other armed officers, some with guns drawn, executed the warrant. Before the raid, the officers received copies of the search warrant as well as an "Operation Plan" that listed the armor, shells, and car door Royster had seen in Skoog's office and noted that Skoog had filed a lawsuit against the county. While officers seized Skoog's equipment and copied his hard drive, Skoog protested that they were seizing attorney-client privileged communications. The officers continued to seize the items. At some point, Royster said that "people shouldn't sue cops" or "it wasn't right to sue an officer." The officers seized all the equipment listed on the warrant, including the still camera.

The state refused to return the seized items for over a year and has allegedly never returned several items, including two tapes containing attorney-client privileged information regarding Skoog's state DUI defense and this case. The state court judge found that officers had improperly reviewed privileged communications found on the seized tapes and therefore dismissed the DUI charges against Skoog that were pending in state court. The judge also found that the search warrant had been issued without probable cause.

Meanwhile, in federal court, Skoog amended his complaint to add claims against Royster and the county from the search of his office and the seizure of his equipment. Relevant to this appeal, Skoog's third amended complaint asserted that Royster violated Skoog's Fourth Amendment right to be free of unlawful searches and seizures and that Royster obtained and executed the warrant to retaliate against Skoog, in violation of the First Amendment, for filing his...