Walker v. City of Portland

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: BUTTLER
• Citation: Walker v. City of Portland, 71 Or.App. 693, 693 P.2d 1349 (Or. App. 1985)
• Decision Date: 23 January 1985
• Parties: Cliff WALKER, Appellant, v. The CITY OF PORTLAND, a municipal corporation, Respondent. A8202-00922; CA A27846.

Page 1349

693 P.2d 1349

71 Or.App. 693

Cliff WALKER, Appellant, v. The CITY OF PORTLAND, a municipal corporation, Respondent.

A8202-00922; CA A27846.

Court of Appeals of Oregon.

Argued and Submitted April 30, 1984.

Decided Jan. 23, 1985.

Laurel S. Terry, Portland, argued the cause for appellant. With her on the briefs was Stoel, Rives, Boley, Fraser & Wyse, Portland.

Rhona Wolfe Friedman, Deputy City Atty., Portland, argued the cause and filed the brief for respondent.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Plaintiff brought this action for damages, alleging, in separate counts, false imprisonment and outrageous conduct arising out of his detention by defendant's police officers in connection with their investigation of an alleged burglary and assault. The trial court granted defendant's motion for summary judgment on both counts, and plaintiff appeals from the resulting judgment. We reverse only as to the false imprisonment count and remand for further proceedings.

The sole issue on the false imprisonment count is whether there are genuine issues of material fact precluding the granting of defendant's motion for summary judgment. ORCP 47; Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978). We view the record in the light most favorable to the party opposing the motion, Stanfield v. Laccoarce, 288 Or. 659, 665, 607 P.2d 177 (1980), and draw all reasonable inferences from the affidavits and depositions against the moving party. Uihlein v. Albertson's, Inc., 282 Or. 631, 634, 580 P.2d 1014 (1978); Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 576 P.2d 356 (1978). The facts recited here are derived primarily from plaintiff's affidavit in opposition to defendant's motion for summary judgment.

On June 29, 1981, at approximately 9:25 a.m., two of defendant's police officers received a radio call requesting assistance in locating a suspect in an alleged burglary and assault, reported a few minutes earlier. The suspect was described as a black male of average build, wearing a blue and white striped shirt and tan slacks. As they patrolled the area they spotted plaintiff, who closely met the description of the suspect. ¹ Around 9:30 a.m., as plaintiff was leaving the home of a friend, he was approached by the two armed and uniformed officers. He stated that the officers were "extremely threatening" and looked as if they were about to draw their guns. He told the officers his name and responded to questions regarding the ownership of the residence from which he had departed; however, he refused to give them his address, because he had been advised previously by an attorney that, in the event of police questioning, he should provide only his name. The police subsequently threw plaintiff against the car, frisked him, kicked him and slammed the car door on his leg. Although plaintiff admitted that he did not enter the police car voluntarily, he also stated that he did not resist the officers' pushing.

Once plaintiff was in the car, the officers continued their questioning, but he refused to provide information other than his name. In response to plaintiff's questioning, the officers stated that defendant was under arrest, but they would not advise him of the charges against him or state the reason for his detention. Plaintiff gave the officers his attorney's name and asked them to use their radio to call the attorney or to let him go to a telephone; they refused both requests. Plaintiff was driven to another location, where an individual approached the police car, peered in and stated, "No, that's not the person." Plaintiff was then left alone in the police car while the officers walked around the neighborhood. Approximately 25 to 30 minutes later, they returned to the car and drove plaintiff to another location, where there were three police cars and approximately seven police officers. There, another individual confirmed that plaintiff was not the suspect.

Plaintiff was then taken from the police car and brought before another officer, Sergeant Johnson. His renewed requests to be advised of the charges against him and to contact his attorney were denied. At that time, plaintiff overheard Johnson ask the officers who had picked him up whether he was the man for whom they were looking. One of the officers responded that he was not, but told Johnson to keep plaintiff until they got the information they wanted from him. After hearing that, plaintiff asked again to speak to his attorney.

Subsequently plaintiff was transferred to another police car and driven to a new location. There, he was approached by an individual, whom he later learned was the victim of the crime under investigation. She informed the police that plaintiff was not the suspect. After that identification, plaintiff was held involuntarily in the car for approximately five more minutes while the police ran a records check by phone. When he finally was released, he attempted to learn what was happening by talking to the victim, but was ordered by the police to "get out." The police did not apologize to plaintiff and refused to return him to the area from which he had been picked up, because, they said, they did not have the time. The entire incident lasted approximately 40 minutes.

In his first assignment, plaintiff contends that, on those facts, the trial court erred in granting defendant's motion for summary judgment on his false imprisonment claim. False imprisonment is the imposition of unlawful restraint on another's freedom of movement. Lukas v. J.C. Penney Co., 233 Or. 345, 353, 378 P.2d 717 (1963); Christ v. McDonald, 152 Or. 494, 500, 52 P.2d 655 (1936). The restraint need not be for more than a brief time. Lukas v. J.C. Penney Co., supra. The confinement required to establish a cause of action for false imprisonment may be accomplished by actual or apparent physical barriers, compulsive physical force, a threat to apply physical force or assertion of legal authority, Gaffney v. Payless Drug Stores, 261 Or. 148, 150, 492 P.2d 474 (1972); Roberts v. Coleman et al, 228 Or. 286, 293, 365 P.2d 79 (1961), so long as the plaintiff is aware of the confinement. Roberts v. Coleman et al, supra.

Although defendant concedes that plaintiff was confined against his will, and was aware of his confinement, it contends that the restraint was authorized by ORS 131.615 and, therefore, was not unlawful. ² ORS 131.615 provides:

"(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.

"(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

"(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer's suspicion."

Plaintiff acknowledges that the initial stop and inquiry were lawful, but contends that at some point in time the officers exhausted their authority to detain him. We agree. As we stated in State v. Carter/Dawson, 34 Or.App. 21, 31, 578 P.2d 790 (1978), aff'd. 287 Or. 479, 600 P.2d 873 (1979):

"Detention and inquiry beyond the time, place and subject-matter limits codified in ORS 131.615--all components of what we call 'intrusiveness'--constitute an invalid 'random intervention into the liberty and privacy of a person.' " Quoting State v. Evans, 16 Or.App. 189, 197, 517 P.2d 1225, rev. den. (1974).

The officers' initial detention of plaintiff was based on a reasonable suspicion that he was the suspect sought for a burglary and an assault; however, once they had determined that he was not that individual, the immediate circumstances that aroused their suspicion dissipated, and any further detention and inquiry was unreasonable. Because plaintiff could not have been lawfully detained solely for the purposes of running a records check on him, it would be incongruous to say that he could be detained for that purpose after any reasonable suspicion regarding his...