Opinion
3:20-cv-01361-IM
04-19-2023
ISIDRO ANDRADE-TAFOLLA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
Caitlin Van Tassel Mitchell and Jennifer J. Middleton, Johnson, Johnson, Lucas & Middleton, Attorneys for Plaintiff. Natalie K. Wight and Dianne Schweiner, United States Attorney's Office, Attorney for Defendant.
Caitlin Van Tassel Mitchell and Jennifer J. Middleton, Johnson, Johnson, Lucas & Middleton, Attorneys for Plaintiff.
Natalie K. Wight and Dianne Schweiner, United States Attorney's Office, Attorney for Defendant.
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
KARIN J. IMMERGUT, UNITED STATES DISTRICT JUDGE
Before this Court is Defendant United States of America's (“Defendant”) Motion for Summary Judgment. ECF 70. For the following reasons, this Court finds that genuine disputes of material fact exist as to whether Plaintiff Isidro Andrade-Tafolla (“Plaintiff”) was confined under Oregon law and whether the U.S. Immigration and Customs Enforcement (“ICE”) agents' conduct was reasonable under the circumstances. Accordingly, Defendant's motion is DENIED.
BACKGROUND
Plaintiff is a United States citizen who has lived with his family in Washington County, Oregon, since 1984. ECF 1 at ¶ 1. On September 18, 2017, Plaintiff accompanied his wife, Renee Selden-Andrade, to the Washington County Courthouse in Hillsboro, Oregon. Id. at ¶ 7. Ms. Selden-Andrade had a court appearance on the 8:30 a.m. DUII diversion docket. Id.
On September 18, 2017, six ICE officers also traveled to the Washington County Courthouse to arrest three individuals whom they suspected were illegally present in the United States and who were expected to appear at hearings related to criminal charges. ECF 76, Ex. I at 37; ECF 76, Ex. J at 39. One of the individuals, who had been under surveillance by the officers and targeted for an arrest, was an individual named Arturo Garcia-Ramirez. ECF 1 at ¶¶ 9-10; ECF 79-5, Ex. E at 4. The officers had an unsigned warrant for Garcia-Ramirez's arrest, as well as a Field Operations Worksheet (“FOW”) stating that Garcia-Ramirez was a citizen of Mexico. ECF 76, Ex. C at 11; ECF 76, Ex. B at 8. The FOW also included a photograph of Garcia-Ramirez and listed his age as 35, his weight as 130 pounds, and his height as five feet. ECF 76, Ex. B at 8.
Deportation Officer Ron Crawford was initially scheduled to effectuate Garcia-Ramirez's arrest. ECF 76, Ex. B at 9; see also ECF 76, Ex. D at 13. On the day of the planned arrest, however, Officer Crawford reassigned the case to Officers Sarah Eichler, Christopher Jarvis, Andrew Johnson, and Scott Smith. ECF 76, Ex. D at 13. In reassigning the case, Officer Crawford forwarded Officers Eicher, Jarvis, Johnson, and Smith an email thread between him and a Supervisory Detention and Deportation Officer authorizing Garcia-Ramirez's arrest. Id. at 13-14. The email thread included Garcia-Ramirez's name and Alien Registration File number (“A-File”) and indicated that he had been subject to a voluntary removal in 2003. Id. at 14.
The FOW submitted by Defendant does not include Garcia-Ramirez's Alien Registration File number (“A-File”); instead, the row where the A-File would typically be located appears blank. ECF 76, Ex. B at 8. Defendant does not include any explanation in their briefing as to why this number appears blank on the FOW, nor does Defendant explain, anywhere in their briefing or exhibits, the significance of an individual being assigned an A-File.
Officers Eichler and Jarvis arrived at the Washington County Courthouse sometime before 8:38 a.m. ECF 76, Ex. M at 47. Officers Randy Roberts and Rita Soraghan were also pursuing individuals at the courthouse that day, whom they believed to be in the United States illegally. ECF 76, Ex. O at 53; ECF 76, Ex. N at 50. When the ICE officers arrived at the courthouse, they encountered a group of approximately fifty to seventy protesters protesting ICE enforcement actions. ECF 1 at ¶ 8; ECF 72-1, Ex. E at 12-13; ECF 72-1, Ex. L at 40; ECF 72-1, Ex. M at 44; ECF 72-1, Ex. O at 49.
Plaintiff and Ms. Selden-Andrade arrived at the Washington County Courthouse between 8:40 a.m. and 8:45 a.m. ECF 76, Ex. Q at 60; ECF 76, Ex. R at 84. Once inside the courthouse, Plaintiff and Ms. Selden-Andrade spent between five and fifteen minutes outside of the courtroom before entering. ECF 76, Ex. Q at 62-63; ECF 76, Ex. R at 84. Plaintiff and Ms. Selden-Andrade then entered the courtroom. ECF 1 at ¶ 10. Ms. Selden-Andrade's case was called at 9:04 a.m. and concluded at 9:05 a.m. ECF 76, Ex. H at 34. Plaintiff and his wife left the courtroom immediately after her hearing concluded. ECF 76, Ex. Q at 61. Plaintiff attended the hearing to provide transportation and emotional support to his wife. ECF 80 at ¶ 2.
Defendant requests that this Court take judicial notice of three documents pursuant to Federal Rule of Evidence: the certified copy of the criminal docket for Arturo Garcia-Ramirez from Washington County Courthouse; the certified copy of the criminal docket for Renee Selden-Andrade from Washington County Courthouse; and the log of Washington County Courtroom hearing times from September 18, 2017 for Renee Selden-Andrade and Arturo Garcia-Ramirez. ECF 74. Courts may take judicial notice of proceedings in other courts, U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992), as well as information made publicly available on the internet by government entities, Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010). Plaintiff has not objected to Defendant's request and does not appear to dispute the authenticity or veracity of the information. See Daneils-Hall, 629 F.3d at 998-99. As such, Defendant's Motion for Judicial Notice, ECF 74, is granted.
Garcia-Ramirez's hearing was also scheduled for the 8:30 a.m. DUII diversion docket in the same courtroom. ECF 76, Ex. F at 21; ECF 76, Ex. H at 34-35. However, Garcia-Ramirez's hearing was not called until 11:18 a.m., and his hearing was completed by 11:20 a.m. ECF 76, Ex. H at 35; ECF 76, Ex. F at 21-22. As a result, Plaintiff and his wife would have left the courtroom and the courthouse before Garcia-Ramirez's hearing was called. ECF 76, Ex. Q at 63; ECF 76, Ex. R at 86.
It is undisputed that Officers Eichler and Jarvis observed Plaintiff and Ms. Selden-Andrade in the hallway outside of the courtroom before Ms. Selden-Andrade's appearance. ECF 76, Ex. S at 99; ECF 76, Ex. Q at 61. The parties do, however, dispute whether Officers Eichler and Jarvis observed Ms. Selden-Andrade's court appearance itself. According to Plaintiff's deposition testimony and sworn declaration, Officers Eichler and Jarvis followed Plaintiff and Ms. Selden-Andrade into the courtroom and proceeded to sit behind Plaintiff to his left. ECF 76, Ex. Q at 61; ECF 80 at ¶ 5. Plaintiff further states in his sworn declaration that the officers were in the courtroom when his wife's matter was called and when Plaintiff and his wife left the courtroom. ECF 80 at ¶¶ 6, 7. Officer Eichler testified, however, that she did not follow Plaintiff and Ms. Selden-Andrade into the courtroom, but instead “peek[ed] [her] head in” for “a couple of seconds.” ECF 76, Ex. S at 100. Officer Eichler further testified that she did not see any hearings take place because, at the time that she briefly entered the courtroom, the judge was not on the bench and the hearing had not started. Id.
At approximately 9:00 a.m., the ICE officers received notice from their supervisors directing them to leave the courthouse due to the presence of protesters and members of the news media. ECF 76, Ex. S at 99; see also ECF 76, Ex. M at 47-48; ECF 76, Ex. N at 50; ECF 76, Ex. S at 100. Officers Eichler and Jarvis left the courthouse, returned to their vehicle, and began driving away. ECF 76, Ex. S at 101. As they were driving, Officers Eichler and Jarvis observed Plaintiff and his wife walking on a street a few blocks away from the courthouse and believed Plaintiff to be Garcia-Ramirez, one of their suspects to be arrested that day. ECF 1 at ¶¶ 9, 13; ECF 76, Ex. S, at 101; see also ECF 76, Ex. T at 110-11. Officer Eichler stated that she believed Plaintiff to be Garcia-Ramirez because the two men had similar physical characteristics, including “the same facial hair, the same eyebrows, [and] the same . . . cheekbone to the ears.” ECF 76, Ex. S at 99. Officers Eichler and Jarvis parked their vehicle in front of Plaintiff's vehicle, exited their vehicle, and approached Plaintiff. Id. at 101. Officer Eichler stated that she had some questions for Plaintiff. Id. Officer Eichler then asked Plaintiff for his name and identification. ECF 1 at ¶ 14; ECF 76, Ex. A; ECF 76, Ex. S at 102; ECF 76, Ex. Q at 65. Plaintiff gave Officer Eichler his name, but did not provide her with his identification. ECF 76, Ex. Q at 64-65; ECF 76, Ex. S at 102-03.
At some point during the encounter, Officer Eichler showed Plaintiff a photo of Garcia-Ramirez on her cell phone. ECF 76, Ex. S at 102. The parties dispute whether Officer Eichler asked Plaintiff if it was him depicted in the photo or told Plaintiff that he was the man in the photo. ECF 76, Ex. S at 102; ECF 80 at ¶ 12. Plaintiff and his wife told Officer Eichler that the man in the photo was not Plaintiff. ECF 76, Ex. S at 102; ECF 80 at ¶ 12. At some point during the encounter, Plaintiff's wife appears to attempt to move Officer Eichler away from them with her arm. ECF 76, Ex. A. It is unclear from the video, however, whether Plaintiff's wife made physical contact with Officer Eichler. Id.
Officers Johnson, Smith, Roberts, and Soraghan, who had also left the courthouse around 9:00 a.m. and were driving down the street away from the courthouse, noticed the incident taking place between Plaintiff and Officers Eichler and Jarvis. ECF 76, Ex. U at 120-121. The officers parked their vehicles around Plaintiff's truck. ECF 76, Ex. A. Officer Johnson describes the officers as “maintaining a perimeter” around Office Eichler and Plaintiff to prevent observers from running towards Officer Eichler. ECF 76, Ex. U at 121. One of the officers was wearing a badge and a shirt that said “ICE.” ECF 80 at ¶ 14.
Officer Eichler requested Officer Johnson's opinion as to whether Plaintiff matched the photograph of Garcia-Ramirez on her cell phone. ECF 76, Ex. U at 121. Officer Johnson testified that despite noticing similarities in facial features between Plaintiff and Garcia-Ramirez- including facial hair, skin tone, ear shape, and the lack of a widow's peak hairline-he did not believe they were the same individual. Id. at 121-22. Officer Johnson told Officer Eichler that Plaintiff was not Garcia-Ramirez. ECF 76, Ex. Q at 66. The officers then left the scene. Id. Based on a video of the encounter, the officers spoke to Plaintiff for just over one minute. ECF 76, Ex. A.
Plaintiff filed his complaint in federal court on August 12, 2020, alleging two claims against Defendant United States of America under the Federal Torts Claims Act (“FTCA”): (1) false arrest/imprisonment, and (2) negligent arrest. ECF 1 at ¶ 22-27. Defendant moved to dismiss Plaintiff's complaint on December 7, 2020. ECF 10. On May 3, 2021, this Court granted Defendant's motion to dismiss Plaintiff's claim for negligent arrest, finding that Oregon law did not support such a cause of action. ECF 29 at 17. Accepting the factual allegations in Plaintiff's complaint as true, however, this Court concluded that Plaintiff had plausibly alleged a seizure without reasonable suspicion such that the discretionary function exception to the FTCA did not protect the ICE agents' conduct. Id. at 15. As such, the sole claim before this Court is Plaintiff's claim for false arrest/imprisonment under the FTCA.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, a party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court views the evidence in the light most favorable to the non-movant and draws all reasonable inferences in the non-movant's favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). While a court must view the evidence in the light most favorable to the non-movant, a court “need not draw all possible inferences in [the non-movant's] favor, but only all reasonable ones.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 n.10 (9th Cir. 2002) (citing O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1466-67 (9th Cir. 1986)). Nevertheless, a district court must deny summary judgment where it finds that a reasonable trier of fact could find in favor of the non-moving party, “even if it seems unlikely that a jury would do so.” McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1176 (9th Cir. 2016).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The “mere existence of a scintilla of evidence in support of the plaintiff's position,” however, “[is] insufficient” to create a genuine dispute of material fact. Id. at 252. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted).
DISCUSSION
A. Defendant's Motion for Summary Judgment
“The United States can be sued only to the extent that it has waived its sovereign immunity.” Conrad v. United States, 447 F.3d 760, 764 (9th Cir. 2006). The FTCA, 28 U.S.C. § 2671, et seq., provides a limited waiver of sovereign immunity, making the United States liable for “personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Where the FTCA applies, the United States may be liable for certain torts “in the same manner and to the same extent as a private individual under like circumstances ....” 28 U.S.C. § 2674. “Liability is determined by the tort law of the state where the claim arose.” Gasho v. United States, 39 F.3d 1420, 1427 (9th Cir. 1994).
Under Oregon law, the torts of false arrest and false imprisonment have the same four elements: (1) the defendant must confine the plaintiff; (2) the defendant must intend the act that causes the confinement; (3) the plaintiff must be aware of the confinement; and (4) the confinement must be unlawful. Fossen v. Clackamas Cnty., 271 Or.App. 842, 847 (Or. Ct. App. 2015) (citation omitted). Once the plaintiff establishes the first three elements, the burden shifts to the defendant to show that the imprisonment was lawful. Ross v. City of Eugene, 151 Or.App. 656, 663 (Or. Ct. App. 1997) (citation omitted).
1. Disputed Material Facts Preclude Summary Judgment on the Element of Confinement
Defendant argues that there is no dispute of material fact regarding Plaintiff's alleged confinement. ECF 70 at 16-17. Defendant relies on a video of the encounter, taken by a legal observer with the American Civil Liberties Union (“ACLU”), which Defendant argues “clearly shows the distance between Plaintiff and the agents, the space he had to walk away, and [the] fact that [Plaintiff's] wife was lunging toward the agents.” ECF 70 at 16. Plaintiff argues that a fact-finder could find that the ICE agents confined Plaintiff based on disputed facts, including the ICE agents' demeanor, the extent of physical and apparent barriers to Plaintiff's exit, and Plaintiff's subjective perception of his ability to terminate the encounter. ECF 78 at 9-13. This Court finds that Plaintiff has identified disputed material facts that preclude summary judgment on the element of confinement.
Under Oregon law, “the threshold element of confinement may be satisfied by establishing that the defendant did at least one of four things: (1) put up actual or apparent physical barriers to prevent plaintiff's exit, (2) used physical force to prevent exit, (3) used threats of force to prevent exit, or (4) asserted legal authority to prevent exit.” Campbell v. Safeway, 332 F.Supp.2d 1367, 1373 (D. Or. 2004); see also Roberts v. Coleman, 228 Or. 286, 294 (1961); Buckel v. Nunn, 133 Or.App. 399, 405 (Or. Ct. App. 1995). Courts in Oregon have found that a plaintiff's subjective belief that they are not free to leave, when coupled with one of those four indicia of confinement, is sufficient to create a triable issue of fact as to confinement. See, e.g., Buckel, 133 Or.App. at 406 (allowing jury to decide confinement issue where plaintiff testified she “did not feel that she was free to leave” and security guard “positioned himself between plaintiff and the door”); Campbell, 332 F.Supp.2d. at 1373-74 (finding confinement on a motion for summary judgment where defendant “established a physical barrier to prevent exit” and “plaintiff testified that she felt she could not leave.”)
This Court has carefully reviewed the video of the encounter on which Defendant relies. This Court notes that the encounter between Plaintiff and the ICE agents appears to begin as a consensual encounter, with Officer Eichler approaching Plaintiff from the side to request his name and identification. ECF 76, Ex. A. The beginning of the video shows Officer Eichler and Jarvis's van parked in front of Plaintiff's truck, leaving Plaintiff with a mode of exit to the right side of his vehicle. Id. This Court also acknowledges that while Plaintiff and other witnesses have submitted declarations alleging that Officers Eichler and Jarvis's demeanor as “aggressive,” “authoritative,” “demanding,” and “commanding,” ECF 80 at ¶ 13; ECF 81 at ¶ 6; ECF 82 at ¶ 6, the objective evidence as shown by the video does not support this characterization. See Scott v. Harris, 550 U.S. 372, 380 (2007) (concluding that a court need not accept a party's characterization of evidence that is contradicted by the record). Indeed, arguably the only people acting in aggressive manner during the encounter were Plaintiff's wife and the legal observer who was apparently filming the encounter. ECF 76, Ex. A.
Nonetheless, an encounter that does not begin as a confinement may develop into a confinement. See Campbell, 332 F.Supp.2d at 1373 (finding “no confinement initially” because “plaintiff voluntarily accompanied” her manager into an office for an interview, but finding that “[c]onfinement . . . arose during the course of the interview ....”). Here, the encounter between Plaintiff and the ICE agents does not end with Officers Eichler and Jarvis questioning Plaintiff. Instead, the video shows that after Officers Eichler and Jarvis initially approached Plaintiff, four more ICE agents arrive, with at least one agent joining the encounter in such a way that a reasonable inference can be drawn that Plaintiff was aware of more agents approaching. ECF 76, Ex. A. Likewise, the video shows that, at some point during the encounter, these other agents parked their vehicles directly next to and behind Plaintiff's truck, which supports an inference that the ICE agents created a physical barrier that prevented Plaintiff from terminating the encounter by driving away. Id. The video does not provide a broad enough perspective, without more, to determine whether or not Plaintiff's truck was completely blocked from leaving at some point during the encounter.
Although this Court has doubts about whether Plaintiff truly felt unable to terminate the encounter, particularly given his wife's actions towards the ICE agents and his testimony that he did not know that the officers were ICE agents until after the encounter, ECF 76, Ex. A; ECF 76, Ex. Q at 69, such credibility determinations are inappropriate on a motion for summary judgment. Plaintiff has submitted evidence to support the inference that the ICE agents created apparent or physical barriers to Plaintiff's exit, as well as sworn testimony as to his subjective belief that he could not leave the encounter. This Court finds that Plaintiff has set forth sufficient evidence to survive a motion for summary judgment on the element of confinement.
2. Disputed Material Facts Preclude Summary Judgment on the Element of Intent to Confine
Defendant next argues that there is no dispute of material fact regarding the ICE agents' intent to confine Plaintiff. ECF 70 at 16-17. Defendant relies on the ICE officers' testimony and memoranda submitted after the incident, which Defendant argues “establish that they never intended to confine the Plaintiff, but rather they merely wanted to establish his name and identity to confirm whether he was Garcia-Ramirez.” ECF 70 at 16. Plaintiff argues that a fact-finder could find that the ICE agents confined Plaintiff because evidence in the record supports the inference that at least some of the officers anticipated making an arrest. ECF 78 at 9-13. This Court finds that the record contains disputed facts that are material to the determination of whether the ICE agents intended to confine Plaintiff.
First, there is no evidence in the record that unequivocally demonstrates the officers' intent in parking their cars in such a way as to plausibly block Plaintiff's truck. Ms. Selden-Andrade testified that all the parking spaces on the street were full. ECF 76, Ex. R at 86. It is unclear from the video, however, whether the objective evidence supports this conclusion, as there do appear to be some spaces where a car could park that would not block Plaintiff's vehicle. ECF 76, Ex. A. Taking the disputed evidence in the light most favorable to Plaintiff, this Court finds that an inference could be made that the officers had other parking spots available to them and instead parked in such a way to purposefully block Plaintiff's car from leaving.
Second, the record contains disputed evidence regarding whether the officers providing backup thought that they were going to arrest Plaintiff. Officer Roberts, for instance, testified that he retrieved his ICE badge and placed it around his neck before joining the encounter because he “figured [the agents] were about to make an arrest.” ECF 79-4, Ex. D at 8. But Officer Soraghan testified that they joined the encounter not to arrest Plaintiff, but to ensure that Officers Eichler and Jarvis remained safe. ECF 79-6, Ex. F at 5. Given these factual disputes, this Court finds that summary judgment is inappropriate on the element of whether the officers intended to confine Plaintiff.
3. Disputed Material Facts Preclude Summary Judgment on the Element of Awareness of Confinement
Defendant additionally argues that there is no dispute of material fact regarding Plaintiff's awareness of his confinement. ECF 70 at 16-17. This Court disagrees.
As an initial matter, this Court rejects Defendant's argument that Plaintiff cannot have been aware of his confinement solely because he testified that he did not realize that the officers were ICE agents until after the encounter. ECF 70 at 16-17. As noted above, confinement through “asserted legal authority” is just one way that a Plaintiff can show confinement under Oregon law. See Campbell, 332 F.Supp.2d at 1373. It is not necessary for Plaintiff to have believed that the officers had legal authority to show that he was confined, and Defendant's argument to the contrary misstates Oregon law. See Roberts, 228 Or. at 299 (listing assertion of legal authority as one of “the four possible ways . . . to indicate confinement”).
Moreover, this Court finds that Plaintiff's own testimony contains conflicting evidence about whether and when he knew that the officers were associated with ICE. Plaintiff testified that he realized that the officers who questioned him were the same ICE officers he saw in the courthouse “after the whole incident,” ECF 76, Ex. Q at 64, but also testified in the same deposition that he “didn't know they were agents until after they started questioning” him. Id. at 63. Plaintiff also testified that he saw an ICE officer “with a shirt that said ICE on it,” id. at 67, but stated that he “thought these were random civilians on the street.” Id. at 69. And while the ACLU video taken of the encounter does not show the initial moments between the officers and Plaintiff, Officer Eichler testified in her deposition that she initiated the encounter by “explain[ing] that [she] was with immigration and . . . show[ing] her badge.” ECF 76, Ex. S at 101. Considering these disputed statements, as well as the disputed nature of Plaintiff's confinement, this Court finds that summary judgment is inappropriate on the element of whether Plaintiff was aware of his confinement.
4. Disputed Material Facts Preclude Summary Judgment on the Element of Lawfulness
Once a plaintiff has shown the elements of confinement, intent to confine, and awareness of the confinement, the burden shifts to the defendant to show that the confinement was lawful. Ross, 151 Or.App. at 663. Where, as here, the moving party on summary judgment has the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
Defendant argues that the encounter was lawful because it was a consensual encounter or, in the alternative, a permissible detention based on reasonable suspicion and a reasonable and good faith mistake of fact. ECF 70 at 14, 18. Plaintiff argues that disputed material facts exist regarding whether the encounter was in fact consensual, whether the ICE agents had reasonable suspicion to detain Garcia-Ramirez, and whether the agents' mistake of Plaintiff for Garcia-Ramirez was both reasonable and held in good faith. ECF 78 at 13. This Court finds, based on the evidence in the record, that a genuine dispute of material fact exists regarding whether the ICE agents' conduct was reasonable under the circumstances.
a. Disputed Material Facts Preclude Finding that the Encounter was Consensual
ICE agents, like all law enforcement officers, must comply with the Fourth Amendment. Sanchez v. Sessions, 904 F.3d 643, 651 (9th Cir. 2018). Under the Fourth Amendment, ICE agents “may not stop and briefly detain a person for investigative purposes . . . unless they have reasonable suspicion supported by articulable facts that criminal activity may be afoot.” Id. (internal quotation marks and citation omitted). ICE agents are also required to comply with 8 C.F.R. § 287.8, a regulation setting out enforcement standards which reflect the Fourth Amendment's restrictions. Perez Cruz v. Barr, 926 F.3d 1128, 1137 (9th Cir. 2019) (noting immigration enforcement regulatory standards are at least as stringent as the Fourth Amendment).
Under 8 C.F.R. § 287.8, “[a]n immigration officer . . . has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.” 8 C.F.R. § 287.8(b)(1). Moreover, “[i]f the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.” Id. § 287.8(b)(2).
The parties agree that the ICE agents did not arrest Plaintiff on September 18, 2017. ECF 70 at 13. The parties do dispute whether the encounter constituted a consensual encounter under subsection (1) of 8 C.F.R. § 287.8(b), or a detention under subsection (2). Id.; see also ECF 78 at 14-17. “Law enforcement officers do not . . . violate the Fourth Amendment by merely approaching an individual on the street . . .[or] by asking him if he is willing to answer some questions.” United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994) (internal quotation marks and citation omitted). An encounter constitutes a detention, rather than a consensual encounter, where “the official interference . . . is some sort of ‘meaningful interference . . . with an individual's freedom of movement' ....” United States v. Enslin, 327 F.3d 788, 795 (9th Cir. 2003). As discussed above, this Court finds that disputed material facts exist regarding whether Plaintiff was confined such that there was a “meaningful interference” with his freedom of movement. As such, Defendant has not met its burden to support a finding on summary judgment that the encounter was consensual.
b. Disputed Material Facts Preclude Finding that the ICE Agents' Mistake of Fact was Reasonable Under the Circumstances
This Court additionally finds that disputed material facts preclude a finding on summary judgment that the encounter was a lawful detention within the bounds of the Fourth Amendment. Specifically, this Court finds that disputed facts exist regarding whether the ICE agents' mistake of Plaintiff for Garcia-Ramirez was reasonable under the circumstances.
As an initial matter, this Court finds that, despite some deficiencies noted by Plaintiff, there is strong evidence in the record to support the inference that the ICE officers had reasonable suspicion to interrogate Garcia-Ramirez. Reasonable suspicion exists where “articulable facts” give rise to the inference that “criminal activity may be afoot.” United States v. Sokolow, 490 U.S. 1, 7 (1989); see also Sanchez, 904 F.3d at 651. Defendant's evidence shows that Garcia-Ramirez's country of citizenship was Mexico. ECF 76, Ex. B at 8. Defendant's evidence also shows that ICE prepared a warrant for Garcia-Ramirez's arrest under 8 C.F.R. § 287.8. ECF 76, Ex. C at 11. Finally, Defendant's evidence shows that an ICE supervisor had separately authorized Garcia-Ramirez's arrest on September 15, 2017. ECF 76, Ex. D at 13. In her deposition, Officer Eichler testified that she relied on the information contained in the FOW, including the associated information about Garcia-Ramirez's “criminal history,” in forming her reasonable suspicion that Garcia-Ramirez was illegally present in the United States. ECF 76, Ex. S at 97-98. However, this Court need not conclusively find that the ICE agents had a reasonable suspicion to detain Garcia-Ramirez at this stage, because this Court finds that material disputed facts exist regarding whether the ICE agents' mistake of Plaintiff for Garcia-Ramirez was reasonable under the circumstances.
An officer's factual mistake must be reasonable and held in good faith. United States v. Twilley, 222 F.3d 1092, 1096 n.1 (9th Cir. 2000) (citations omitted); Liberal v. Estrada, 632 F.3d 1064, 1077 (9th Cir. 2011) (“[A]n officer's belief in a mistaken fact must be held reasonably and in good faith” (citations omitted)). Defendant argues that the officers' belief that Plaintiff was Garcia-Ramirez was both reasonable and held in good faith, based on physical similarities between the two men and the fact that Plaintiff was at the courthouse while Garcia-Ramirez was supposed to be present for his hearing. ECF 70 at 18; ECF 87 at 8-9. Plaintiff counters that whether there were sufficient physical similarities between Plaintiff and Garcia-Ramirez to render the mistake reasonable is a “highly contested factual question,” as is the “agents' presence at the courthouse and what they did or did not witness.” ECF 78 at 20.
Undisputed evidence shows that Plaintiff was present at the courthouse while Garcia-Ramirez was scheduled to appear for his hearing. ECF 76, Ex. Q at 60; ECF 76, Ex. G at 27. Undisputed evidence shows that the officers saw Plaintiff outside of the courtroom where Garcia-Ramirez's hearing was scheduled to take place on the morning of September 18, 2017. ECF 76, Ex. Q at 61; ECF 76, Ex. S at 99. Undisputed evidence also shows that both Plaintiff and the officers left the courthouse before Garcia-Ramirez's hearing was held. ECF 76, Ex. Q at 63; ECF 76, Ex. R at 86; ECF 76, Ex. M at 47-48; ECF 76, Ex. N at 50; ECF 76, Ex. S at 100. Finally, undisputed evidence shows that the ICE officers observed Plaintiff and his wife “a couple of blocks down the street” from the courthouse shortly after Garcia-Ramirez was scheduled to appear for a hearing. ECF 76, Ex. S at 101; see also ECF 76, Ex. Q at 63.
The record does contain disputed facts, however, regarding what the ICE officers did or did not observe within the courtroom itself. Officer Eichler testified that she entered the courtroom for “a couple of seconds” to “wait[] for . . . [Garcia-Ramirez] to be called by the judge,” ECF 76, Ex. S at 100, but that she did not remain in the courtroom long and did not see any hearings take place, id. at 100-01. Plaintiff stated in a declaration that ICE officers entered the courtroom after him, sat down behind him, and looked at him. ECF 80 at ¶ 5. Plaintiff also stated that the ICE agents were in the courtroom when his wife's name was called and her hearing re-set, and that the ICE agents watched Plaintiff and his wife leave the courtroom after her hearing. Id. at ¶¶ 6, 7.
This Court finds that the dispute over what the ICE agents did or did not observe in the courtroom is material to the reasonableness of the officers' mistake. If the ICE officers were present in the courtroom, observed Plaintiff sitting next to his wife, observed Plaintiff's wife be called for her hearing, observed that Plaintiff was not called, and observed Plaintiff and his wife exit the courtroom together, this could support the inference that Plaintiff was not on the docket that day and therefore was not Garcia-Ramirez.
This Court likewise finds that material disputed facts exist regarding the extent to which Plaintiff resembled Garcia-Ramirez. Officer Eichler testified that she initially thought Plaintiff was Garcia-Ramirez when she first saw him at the courthouse because Plaintiff and Garcia-Ramirez had “the same facial hair, the same eyebrows” and “the same . . . cheekbone to the ears.” ECF 76, Ex. S at 99. Officer Eichler also testified that Officer Jarvis agreed with her opinion that Plaintiff and Garcia-Ramirez had similar features. Id. Officer Johnson, who arrived at the scene after Officers Eichler and Jarvis had initiated the encounter, testified that he noticed “several similarities” including haircut, facial features, and skin color. ECF 76, Ex. U at 121-22. Officer Soraghan, who also arrived at the scene after Officers Eichler and Jarvis has initiated the encounter, testified that she believed that there was a “very good resemblance” between Plaintiff and Garcia-Ramirez, based on similarities including a “goatee” and “hairline.” ECF 76, Ex. V at 129. Officer Soraghan further testified that she felt, “in all [her] years of trying to [identify] people from FOWs” that Plaintiff “very possibly could [have been] Mr. Garcia [Ramirez].” Id. at 129-30. Officer Roberts, who also arrived at the scene after Officers Eichler and Jarvis had initiated the encounter, likewise testified that he thought Plaintiff was Garcia-Ramirez based on similar physical characteristics, including similar “ears,” “facial structure,” and “facial hair.” ECF 76, Ex. W at 135-36.
Nevertheless, sworn statements from Plaintiff and his wife, as well as statements made by Plaintiff's wife during the encounter, suggest that Plaintiff did not resemble the photo of Garcia-Ramirez. Plaintiff stated in his declaration that “the only similarity between [himself and Garcia-Ramirez] was that [Garcia-Ramirez] appeared to be Latino.” ECF 80 at ¶ 12. Ms. Selden- Andrade likewise stated in her deposition that “the man in the picture looked nothing like [Plaintiff], except that he appeared to be Latino.” ECF 81 at ¶ 7. The video of the encounter also shows that Ms. Selden-Andrade told Office Eichler “that is not him” and “that is not my husband” in response to being shown the photo of Garcia-Ramirez. ECF 76, Ex. A. This Court finds that a determination of the extent to which the photograph on which the ICE agents relied resembles Plaintiff would require this Court to weigh conflicting evidence, which is not appropriate on a motion for summary judgment. Crane v. Conoco, Inc., 41 F.3d 457, 549 (9th Cir. 1994) (“The court must not weigh evidence [on a motion for summary judgment] or determine the truth of the matter but only determine whether there is a genuine issue for trial.”).
This Court also finds that the record contains genuine disputes of material fact regarding the extent to which the ICE agents relied on certain information contained in the FOW, including Garcia-Ramirez's height, in determining that Plaintiff was their suspect. The FOW for Garcia-Ramirez listed his height as five feet and his weight as 130 pounds. ECF 76, Ex. B at 8. Plaintiff states in his declaration that in September of 2017 he was five feet, seven inches tall and weighed between 175 and 180 pounds. ECF 80 at ¶ 16. There is no evidence in the record that the officers asked about or knew Plaintiff's height and weight. There is conflicting evidence, however, regarding the extent to which the ICE agents relied on the height listed on the FOW in identifying Plaintiff as Garcia-Ramirez. Officer Eichler testified that she relied on the “FOW that showed . . . [Garcia-Ramirez's] picture and his name” to initially identify Plaintiff as Garcia- Ramirez, which suggests that Officer Eichler relied primarily on the photograph rather than any physical description in the FOW. ECF 76, Ex. S at 97. In the same deposition, however, Officer Eichler testified that she and Officer Jarvis agreed that Plaintiff “resembled the person described in the FOW,” which suggests that Officers Eichler and Jarvis did rely at least partially on the physical descriptions in the FOW. Id. at 99. And while Officer Smith testified that “oftentimes the height and weight [on an FOW] might be wrong,” ECF 79-6, Ex. F at 3, Officer Johnson testified that it was the difference in height and weight between Plaintiff and the FOW that made him think that Plaintiff was not Garcia-Ramirez, ECF 76, Ex. U at 121-22.
This Court further notes that while the FOW shows that Garcia-Ramirez was 35 years old at the time of the ICE agents' encounter with Plaintiff, there is nothing in the record that indicates how old Plaintiff was at the time of the encounter. See ECF 76, Ex. B at 8. The lack of evidence in the record regarding Plaintiff's age at the time of the encounter further hinders this Court's ability to judge the objective reasonableness of the ICE agents' mistake on a motion for summary judgment.
The record also contains genuine disputes of material fact about the extent to which the officers were aware of Plaintiff's real name during the encounter. While it is not contested that Plaintiff gave Officer Eichler his name when asked, it is contested whether Officer Eichler heard Plaintiff's full name, ECF 76, Ex. Q at 65; ECF 76, Ex. S at 102. Construing the disputed evidence in light most favorable to Plaintiff, this Court must assume that Plaintiff gave Officer Eichler his first name and that Officer Eichler heard him. See ECF 76, Ex. Q at 65 (“I gave her my name. I said Isidro.”) This name is not the same as Garcia-Ramirez's first name. ECF 76, Ex. B at 8.
This Court reiterates that, at the summary judgment stage, it must make all reasonable inferences in favor of Plaintiff and cannot grant summary judgment if a reasonable fact finder could find in favor of the non-moving party. McIndoe, 817 F.3d at 1176. This is not the stage to make credibility findings or to weigh conflicting evidence. Taking the facts in the light most favorable to Plaintiff, this Court finds that there are genuine issues of material fact in dispute regarding whether Plaintiff was confined under Oregon law and whether the agents' conduct was reasonable under the circumstances. As such, Defendant's motion for summary judgment is denied.
CONCLUSION
For the reasons stated above, Defendant's motion for summary judgment is DENIED.
IT IS SO ORDERED.