Ahern v. Kammerer

1

HANNAH AHERN, Plaintiff, v. ERIK KAMMERER, et al., Defendants.

No. 3:21-cv-00561-YY

United States District Court, D. Oregon, Portland Division

April 26, 2022

FINDINGS AND RECOMMENDATIONS

YOU MAGISTRATE JUDGE.

FINDINGS

Plaintiff Hannah Ahern was arrested and charged with disorderly conduct after spitting in the street toward a police riot truck at a protest in downtown Portland. The charge was dropped, and plaintiff has brought this lawsuit against Portland Police Bureau Officer Erik Kammerer, the officer who initiated her arrest, and his employer, the City of Portland. Plaintiff asserts civil rights claims pursuant to 42 U.S.C. § 1983 for violations of the First, Fourth, and Fourteenth Amendments and state tort claims for false arrest and battery. See Compl., ECF 1. The court has subject matter jurisdiction over the federal claims and supplemental jurisdiction over the state tort claims. See 28 U.S.C. §§ 1331, 1343; 28 U.S.C. § 1367(a).

Officer Kammerer has filed a Rule 12(b)(6) motion to dismiss plaintiff's Fourth Amendment unlawful seizure claim (Claim 1) and First Amendment unlawful retaliation claim (Claim 4). Kammerer Mot. Dismiss & Strike (“Kammerer Mot.”), ECF 16. The City has filed a Rule 12(b)(6) motion to dismiss plaintiff's related claims for unlawful pattern and practice (Claims 2 and 5) and false arrest (Claim 6, Count 1). City Mot. Dismiss &amp Strike (“City Mot.”), ECF 17. Defendants argue that these claims must be dismissed because there was probable cause to arrest plaintiff. Because that argument lacks merit, defendants' motions to dismiss should be DENIED.^[1]

In his motion, Officer Kammerer also asserts a motion to strike pursuant to Rule 12(f), which the City joins. Because the motion to strike is a non-dispositive motion, it will be addressed in a separate ruling. See Reddy v Morrissey, No. 3:18-CV-00938-YY, 2018 WL 4407248, at *1 n.1 (D. Or. Sept. 17, 2018) (citing cases).

I. Factual Allegations

The following factual allegations are taken from plaintiff's Complaint (ECF 1):

On the afternoon of August 17, 2019, plaintiff left work and walked towards a counterdemonstration against the Proud Boys in downtown Portland. Compl. ¶¶ 7, 37, ECF 1. The complaint contains several pages of allegations about the Proud Boys and other “far-right” groups and their activities. See id. ¶¶ 12-36. Plaintiff summarizes those allegations in her Response as follows:

[The Proud Boys are] a far-right group with a predilection for wanton, unchecked violence....The Proud Boys have used Portland as a staging ground for testing out their paramilitary tactics of intimidation and destruction. These activities, while violent and caustic for the community, are consistently and continually given a free pass by the Defendant City of Portland.

Resp. 3, ECF 19 (citing Compl. ¶¶ 12-36, ECF 1).

Plaintiff walked toward where she heard a commotion and witnessed a femme-presenting person get arrested for “twerking,” a type of dance. Id. ¶ 38. Several officers directed onlookers not to interfere with the arrest. Id. Plaintiff tried to document what was happening with her phone, but two police officers directed her to cross the street against a red stop light. Id. ¶ 42. Officer Kammerer observed this interaction. Id.

Plaintiff followed the officers' directions and began to cross the street. Id. To avoid traffic, she stopped walking and flagged several cars to pass. Id. ¶ 43. When she entered the street, plaintiff observed a police truck enter the middle of the intersection. Id. She was displeased at the sight of the arriving officers, who were clad in riot gear. Id. Plaintiff “spat in the direction of, but nowhere near, the officers arriving on the riot truck.” Id. ¶ 44. Officer Kammerer saw plaintiff crossing the street and saw her spit in the direction of the approaching riot truck. Id. ¶ 45. Although he never saw plaintiff cause a truck to stop, Officer Kammerer lied in his police report and claimed plaintiff committed the crime of Disorderly Conduct II by causing a truck to stop. Id. ¶¶ 45, 48.

II. Relevant Law Regarding Rule 12(b)(6) Motions to Dismiss

To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This standard “does not require ‘detailed factual allegations,'” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id.(quoting Twombly, 550 U.S. at 555).

A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept all well-pleaded material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v.Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).

III. Plaintiff's Claims

A short synopsis of the law pertaining to the claims at issue is set forth below. As discussed, a showing of probable cause would defeat each of these claims.

A. Unlawful Seizure (Claim 1)

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. To state a claim for unlawful seizure under the Fourth Amendment, a plaintiff must allege that the arrest lacked probable cause. See Lacey v. Maricopa Cty., 693 F.3d 896, 918 (9th Cir. 2012) (quoting Dubner v. City and Cnty. of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001)).

B. Unlawful Retaliation (Claim 4)

The First Amendment “prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019) (simplified). “If an official takes adverse action against someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim.” Id.(simplified).

“To state a First Amendment retaliation claim, a plaintiff must plausibly allege “that (1) [the plaintiff] was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant's conduct.” Capp v. Cty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (quoting O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016)). When the adverse action is an arrest, the plaintiff must also “plead and prove the absence of probable cause for the arrest” unless the plaintiff alleges “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Nieves, 139 S.Ct. at 1724, 1727.

C. Pattern and Practice (Claims 2 and 5)

There is no respondeat superior or vicarious liability under § 1983. Iqbal, 556 U.S. at 676. However, “[l]ocal governing bodies . . . can be sued directly under §1983“ where the alleged constitutional violation “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v.Dep't of Soc. Servs. Of City of New York, 436 U.S. 658, 690 (1978)).

To establish Monell liability, Plaintiffs must allege that: (1) they were deprived of a constitutional right; (2) the municipality had a policy, custom, or practice; (3) the policy, custom, or practice amounted to deliberate indifference of the plaintiffs' constitutional rights; and (4) the policy, custom, or practice was the ‘moving force' behind the constitutional violation.

Cantu v. City of Portland, No. 3:19-cv-01606-SB, 2020 WL 2952972, at *3 (D. Or. June 3, 2020) (citing Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)). If no constitutional violation occurred, then a municipal liability claim necessarily fails. City of LosAngeles v. Heller, 475 U.S. 796, 799 (1986) (holding that aMonell claim cannot survive without an underlying constitutional violation).

Because plaintiff's pattern and practice claims are contingent on her unlawful seizure and unlawful retaliation claims, they too would be defeated by a showing of probable cause. See Compl. ¶¶ 60-65, 77-81, ECF 1.

D. False Arrest (Claim 6, Count 1)

To prevail on a claim for false arrest under Oregon law, a plaintiff must establish the arrest was unlawful. Miller v. Columbia Cty., 282 Or.App. 348, 355 (2016). O.R.S. 133.310(1)(b) provides that a warrantless arrest is lawful if an officer has probable cause to believe the person committed a felony, a misdemeanor, an unclassified crime for which the maximum penalty allowed by law is equal or greater than the maximum penalty allowed for a Class C misdemeanor, or any other crime committed in the officer's presence.

IV. Lack of Probable Cause

Defendants do not argue that Officer Kammerer had probable cause to arrest plaintiff for committing Disorderly Conduct II, the misdemeanor crime for which she was arrested. Instead, they argue that Officer Kammerer had probable cause to arrest plaintiff under O.R.S. 164.785(2) for spitting on the street. Kammerer Mot. Dismiss 6-9, ECF 16; City Mot. Dismiss 5-10, ECF 17.

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