McCrae v. City of Salem

660 F.Supp.3d 993

Eleaqia MCCRAE, Plaintiff, v. CITY OF SALEM, City Manager Steve Powers,Police Chief Jerry Moore, Officer Kevin Ramirez,and Officer Robert Johnston, Defendants.

Case No. 6:20-cv-01489-IM

United States District Court, D. Oregon

Signed March 10, 2023

Kevin C. Brague, The Brague Law Firm, 4504 S Corbett Avenue, Suite 250, Portland, OR 97239. Attorney for Plaintiff.

Dan Atchinson, City of Salem, 555 Liberty St SE, Suite 225, Salem, OR 97301; Aaron Hisel, Law Offices of Montoya, Hisel and Associates, 901 Capitol St NE, Salem, OR 97301. Attorneys for Defendants.

OPINION & ORDER GRANTING DEFENDANTS' RULE 50 MOTION

IMMERGUT, District Judge.

Before this Court is Defendants' renewed motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) on the basis that Defendant Officer Robert Johnston ("Officer Johnston") is entitled to qualified immunity. Based on the evidence introduced at trial and the jury's findings, this Court finds that Officer Johnston is entitled to qualified immunity. While the jury found that Officer Johnston violated Plaintiff Eleaqia McCrae's ("Plaintiff") Fourth Amendment right to be free from excessive force, the evidence presented at trial showed Officer Johnston used the Stinger 40-mm 60-Caliber Round ("Stinger round") in accordance with his training to disperse the crowd and did not intentionally target Plaintiff.

It is regrettable that Plaintiff suffered an injury while attending a protest on May 31, 2020. However, this Court finds that Plaintiff has not satisfied her burden of showing that there was clearly established law in existence at the time of the events at issue that a police officer violates the Fourth Amendment by using a Stinger round in the manner described and under the particular circumstances Officer Johnston confronted. Since Plaintiff has not demonstrated that existing precedent placed the constitutional question in this case beyond debate, and mindful that the United States Supreme Court mandates that clearly established law must be defined with particular specificity in the Fourth Amendment context, this Court finds that Officer Johnston is entitled to qualified immunity. Accordingly, Defendants' Rule 50 Motion, ECF 115, is GRANTED.

BACKGROUND

On May 31, 2020, Plaintiff sustained injuries to her eye and chest while attending a protest in Salem, Oregon. ECF 16 at ¶¶ 29-30.

A. Complaint

On August 31, 2020, Plaintiff filed this action in federal court raising numerous claims related to her injuries. ECF 1. On May 28, 2021, Plaintiff brought First Amendment and Fourth Amendment claims under 42 U.S.C. § 1983 against Officers Powers, Moore, Ramirez, and Johnston and Monell claims against the City of Salem. ECF 16 at ¶¶ 41-71. Plaintiff also brought racial discrimination claims under 42 U.S.C. § 1981 against Officers Powers, Moore, Ramirez, and Johnston, id. at ¶¶ 72-78, as well as state law claims for battery, assault, and intentional infliction of emotional distress against the City of Salem and Officer Johnston and a state law claim for negligence against the City of Salem. Id. at ¶¶ 79-101. Finally, Plaintiff sought a declaratory judgment and attorney's fees as to the alleged violations of her First and Fourth Amendment rights. Id. at ¶¶ 102-106.

B. Summary Judgment and Qualified Immunity

On August 27, 2021, Defendants moved for summary judgment on all claims. ECF 25. Defendants argued that Plaintiff was in a group that was engaging in violent and unlawful protest, that Plaintiff did not state sufficient grounds to support a Monell claim against the City of Salem, and that the individual officers were entitled to immunity under the Oregon Tort Claims Act on Plaintiff's state law claims. Id. at 8. Defendants also argued that summary judgment should be granted as to Plaintiff's First and Fourth Amendment claims because, even if the individual officers committed constitutional violations, they were entitled to qualified immunity. Id. The Honorable Michael J. McShane granted summary judgment as to Plaintiff's First and Fourth Amendment claims under Section 1983 against Officers Powers, Moore, and Ramirez. ECF 65 at 6, 9. Judge McShane also granted summary judgment as to Plaintiff's Monell claim and intentional infliction of emotional distress claims. Id. at 14, 16. Finally, Judge McShane granted summary judgment as to Plaintiff's Section 1981 claim that she was intentionally targeted with less-lethal munitions based on her race—Judge McShane concluded: "The evidence is clear that less-lethal munitions were employed on the crowd at large due to the perceived threat to officers and public safety. While issues of fact remain as to whether the use of force was reasonable, nothing suggests that officers targeted individual protesters for any reason." Id. at 12.

Nonetheless, summary judgment was denied as to Plaintiff's First and Fourth Amendment claims under Section 1983 against Officer Johnston, Plaintiff's battery and assault claims against the City of Salem and Officer Johnston, and Plaintiff's negligence claim against the City of Salem. Id. at 11, 15, 16. Judge McShane concluded that genuine issues of material fact precluded summary judgment as to these claims, including the nature of the crowd, whether Office Johnston caused Plaintiff's injury, and whether his use of force was reasonable. Id. at 10-11, 15. Judge McShane further concluded that "because the question of whether [Officer] Johnston's conduct violated a clearly established constitutional right turns on disputed facts, the Court cannot make a determination regarding qualified immunity at this stage." Id. at 11.

C. Trial and Jury Verdict

On July 1, 2022, this case was reassigned to this Court. ECF 73. Through conferral of the parties, Plaintiff voluntarily dismissed her assault claims against the City of Salem and Officer Johnston, ECF 92 at 2, and this Court dismissed Plaintiff's negligence claim against the City of Salem as inconsistent with her Section 1983 claims. ECF 102 at 4-5. Before this case proceeded to trial on Plaintiff's remaining claims, Defendants requested that the jury's verdict form include special findings of fact to address two questions: (1) whether Officer Johnston caused Plaintiff's injury, and (2) whether Officer Johnston targeted Plaintiff. ECF 90 at 6. Plaintiff objected to the inclusion of special findings of fact. Id. at 8. However, this Court concluded that these findings would assist this Court in making a qualified immunity determination, if necessary.

On September 26, 2022, this case proceeded to trial on Plaintiff's First and Fourth Amendment claims against Officer Johnston and Plaintiff's battery claim against the City of Salem based on the conduct of Officer Johnston. ECF 103. After the close of the evidence, Defendants moved for judgment as a matter of law pursuant to Rule 50(a) on the basis that Officer Johnston was entitled to qualified immunity when he shot less-lethal munition (a Stinger round) to disperse the crowd on May 31, 2020. ECF 115 at 2. This Court denied Defendants' motion and sent this case to the jury, finding again that the jury's determination of the facts would assist this Court in determining whether Officer Johnston was entitled to qualified immunity.

On September 30, 2022, the jury returned its verdict. First, the jury made the following special findings: (1) Plaintiff "prove[d] by a preponderance of the evidence that Officer Johnston shot her in the eye and chest," and (2) Plaintiff did not "prove by a preponderance of the evidence that Officer Johnston targeted her." ECF 114. The jury then found (1) Plaintiff did not prove by a preponderance of the evidence that Officer Johnston violated her First Amendment right to speech or lawful assembly, (2) Plaintiff proved by a preponderance of the evidence that Officer Johnston violated her Fourth Amendment right not to be subjected to excessive force, and (3) Plaintiff did not prove by a preponderance of the evidence that Officer Johnston committed Battery against Plaintiff. Id. On October 14, 2022, Defendants renewed their motion for a judgment as a matter of law pursuant to Rule 50(b). ECF 115. On October 27, 2022, Plaintiff filed a response. ECF 121. The conduct that forms the basis of Plaintiff's challenge is Officer Johnston's firing of a Stinger round towards the crowd on May 31, 2020.

STANDARDS

A. Federal Rule of Civil Procedure 50

A court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. Rule Civ. Pro. 50(a); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The standard for judgment as a matter of law under Rule 50 "mirrors the standard for summary judgment under Rule 56." Reeves, 530 U.S. at 150, 120 S.Ct. 2097. Thus, in reviewing a Rule 50 motion, a court should review all of the evidence in the record, drawing all reasonable inferences in favor of the nonmoving party. Id. A court may not make any credibility determinations or weigh any evidence. Id.

A party seeking a judgment as a matter of law must file a Rule 50(a) motion before a case is submitted to the jury. Fed. R. Civ. P. 50(a)(2). If the court does not grant a Rule 50(a) motion and the jury later returns a verdict against the moving party, this party may then renew its motion under Rule 50(b). Fed. R. Civ. P. 50(b). A Rule 50(b) motion may be considered only if a Rule 50(a) motion was previously made. Id.; Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1083 (9th Cir. 2009). Defendants made a Rule 50(a) motion at the close of evidence at trial and properly preserved the Rule 50(b) motion currently before this Court.

B. Qualified Immunity

Qualified immunity is a question of law that only a judge can decide. Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017). The entitlement is "an immunity from suit...