City of Portland

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United States District Court, D. OregonSep 13, 2002
Civil No. 00-703-HA (D. Or. Sep. 13, 2002)

Civil No. 00-703-HA

September 13, 2002

Thomas K. Coan, Portland, Oregon, Attorney for Plaintiff.

James P. Martin, Michael V. Tom, Hoffman, Hart Wagner L.L.P., Portland, Oregon, Harry Auerbach, Mark R. Moline, Office of City Attorney, Portland, Oregon, Attorneys for Defendants.


Plaintiff asserts claims under 42 U.S.C. § 1983 for alleged violations of constitutional rights and deprivations of certain liberty interests arising from ORS 181.575. After a number of extensions, both parties moved for summary judgment, and plaintiff voluntarily dismissed Police Officer Douglas Gunderson as a named defendant, and withdrew his claim against defendant City of Portland for alleged First Amendment violations. After the briefing on the motions for summary judgment was completed, plaintiff moved for leave to file a second amended complaint, to add Portland Mayor Vera Katz as a defendant. For the following reasons, defendant's motion for summary judgment is granted, and plaintiff's motion for partial summary judgment is denied.


Plaintiff alleges the city of Portland, through the Portland Police Bureau and its official policies and practices, collected and maintained information about plaintiff and his "social views, associations and activities" when (1) this information had nothing to do with any criminal investigation, and (2) there were no reasonable grounds to suspect plaintiff was or may have been involved in criminal conduct. Therefore, plaintiff asserts, defendant's action violated ORS 181.575 and plaintiff was deprived of procedural due process as guaranteed under the Fourteenth Amendment. Plaintiff brings a claim under 42 U.S.C. § 1983 seeking the equitable relief of expunging the records maintained about him.

The parties agree on the following facts: on November 20, 1997, Portland police conducted a traffic stop of a person who had previously retained plaintiff as his attorney. The officers involved were Officer Lobaugh, who was serving as a training coach, and Officer Harris. They observed plaintiff's client make an unsignaled right turn. During the traffic stop, the driver called plaintiff. Plaintiff arrived at the scene and participated in a belligerent encounter with the police officers. Officer Lobaugh's report of the incident suggests plaintiff attempted to intervene and disrupt an otherwise routine traffic stop. Officer Harris wrote a report collaborating Lobaugh's observations. See Affidavit of Michael V. Tom in Support of Defendant's Motion for Summary Judgment, Ex. 1 and 2.

Plaintiff describes the confrontation as merely being one at which "plaintiff did not express himself in the most courteous manner" and "may have used words that may even offend some people." Plaintiff's Memorandum in Support of Plaintiff's Motion for Summary Judgment at 6.

Four days after the incident, each officer wrote a "Special Report" about plaintiff's behavior. Lobaugh noted in his report that he considered filing a complaint with the Oregon State Bar due to plaintiff's inappropriate conduct. Tom Affidavit, Ex. 1. Officer Harris described plaintiff as appearing to have "made it a point to interfere" with the traffic stop. Id., Ex. 2.

These reports were written on formal "Special Report" police stationary, and both were signed by a supervisor. The reports address plaintiff's conduct, make little or no reference to the traffic stop, and have been retained by the City of Portland in accordance with routine procedures of the Office of the City Auditor. This office maintains a policy of keeping most police incident records for 21 years before disposing of them. See Supplemental Affidavit of Michael V. Tom in Support of Defendant's Motion for Summary Judgment.

Seven months later, on the evening of June 24, 1998, Portland Police Officer Gunderson was on duty and observed a vehicle driven by plaintiff pull away from a curb without turning on its headlights or signaling. The vehicle then negotiated an illegal U-turn in the middle of the street.

When Gunderson approached plaintiff's vehicle, he observed a sticker on the rear bumper declaring "Support Your Local Free Souls." Because of his training and experience, the officer believed the Free Souls Motorcycle Club to be a criminal organization. The officer asked plaintiff where he had obtained the bumper sticker. Plaintiff replied "Why?" Gunderson replied, "that's not a sticker I have on the back of my car," and asked plaintiff whether he was a member of Free Souls. Plaintiff again replied "Why?" Plaintiff eventually disclosed that he was the attorney for Free Souls, and Officer Gunderson made no further inquiries. The officer issued plaintiff a citation for an illegal U-turn and for operating a vehicle without headlights. Plaintiff unsuccessfully contested the ticket. The citation was the only memorialization the officer made of the traffic stop.

These two incidents are relied upon by plaintiff for his allegation that the police violated his due process rights. The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law. . . ." U.S. Const. Amend. XIV, § 1; see Hewitt v. Helms, 459 U.S. 460, 466 (1983). A liberty interest requiring due process may arise from either the due process clause itself, or from state law. Hewitt, 459 U.S. at 466; see also Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1987).

A state law "creates a protected liberty interest by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (requiring a plaintiff to show the state law contains particularized and objective standards or criteria). To create a protected liberty interest, "[t]he state statutes in question must do more than merely channel administrative discretion; they must be `explicitly mandatory.'" Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting Hewitt, 459 U.S. at 472). The law "must direct that a given action will be taken or avoided only on the existence or nonexistence of specified substantive predicates." Toussaint, 801 F.2d at 1094.

Plaintiff identifies a protected liberty interest arising from plaintiff's right to privacy and right to be left alone, as well as upon liberty interests created by ORS 181.575. This statute provides:

No law enforcement agency, as defined in ORS 181.010, may collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct.

This court concluded previously that a protected liberty interest is created by the statute, because it places "substantive limitations on official discretion." Order issued May 16, 2000, in Challis v. Katz, 00-47-HA, quoting Olim, 461 U.S. at 249. The language of the statute contains objective criteria and requires mandatory action, which leaves no room for discretion. The wording of the statute and the particularized criteria combine to create a liberty interest in being free from the collection and maintenance of information about oneself in the absence of (1) a direct relationship to a criminal investigation and (2) reasonable grounds for suspecting that one is or may be involved in the criminal conduct.

In Challis, this court ruled that the plaintiff, a member of a motorcycle club, adequately pled liberty interests arising from ORS 181.575. He was permitted to maintain litigation in pursuit of protection of such interests under the Fourteenth Amendment and 42 U.S.C. § 1983. See Order of May 16, 2000. The plaintiff asserted Portland police violated ORS 181.575 because information was collected from him solely because he wore "club colors," and because Officer Gunderson initiated a process to designate plaintiff's motorcycle club as a criminal gang.

Although this court accepted the plaintiff's argument that ORS 181.575 created liberty interests, the court ultimately concluded the defendants did not violate ORS 181.575 or plaintiff's due process rights. In each of the police encounters relied upon by plaintiff, the officers in question were acting reasonably while harboring suspicions of the possibility of criminal activity. Reasonable suspicions that the plaintiff's club is, or may be, involved in criminal activity arose from confidential reliable informants and on-going investigations. This court reasoned:

Despite the inherent sensitivity of inquiring into the reasonableness of suspicions regarding criminal activities while there are on-going investigations, this court determines that the officers' challenged conduct regarding data collection of plaintiff and his club is, in fact, supported by reasonable grounds for believing plaintiff's club is, or may be, involved in criminal activities. Because there are reasonable grounds for believing that Brother Speed might be involved in criminal activity, the complained-of maintenance of information regarding the club's associations and activities has not been improper. This court concludes that plaintiff has been afforded due process that satisfies the requirements of the Due Process Clause. Plaintiff's interests in being free from the police collecting information about him is relatively minimal when contrasted with the police's legitimate interest in investigating and preventing serious crime by organized gangs.

Summary Judgment Opinion and Order in Challis v. Katz, 00-47-HA, at p. 12.


Both parties seek summary judgment regarding plaintiff's remaining claim: whether the city of Portland violated plaintiff's constitutional rights under the Fourteenth Amendment because the Portland police collected and maintained certain information about plaintiff in apparent violation of ORS 181.575.


Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

Special rules of construction apply to evaluating summary judgment motions: 1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; 2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and 3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. T.W. Electrical Service v. Pacific Electrical Contractors, 809 F.2d 626, 630 (9th Cir. 1987). When different ultimate inferences can be reached, summary judgment is not appropriate. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).

The issue of material fact required by Rule 56 to entitle a party to proceed to trial need not be resolved conclusively in favor of the party asserting its existence; all that is required is sufficient evidence supporting the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Id. At this stage of the litigation, the judge does not weigh conflicting evidence or make credibility determinations. These determinations are the province of the fact finder at trial. Id., see also Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (on a motion for summary judgment, the court is not to weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial).


Defendant seeks summary judgment on plaintiff's claim, arguing (1) the constitutional claims are time-barred; (2) there are no violations of ORS 181.575, and therefore no unconstitutional deprivations of liberty; and (3) there is no municipal liability for tortious acts of city employees. The court has considered defendant's timeliness argument, and rejects it. However, because the court concludes there was no violation of ORS 181.575, defendant is entitled to summary judgment, and the issue of potential municipal liability need not be reached.

Defendant seeks summary judgment on grounds the reports about plaintiff's conduct during a 1997 traffic stop of a third party, and Gunderson's 1998 inquiries about plaintiff's bumper sticker, fail to constitute the "collection" or "maintenance" of information as contemplated by ORS 181.575. This court agrees. Gunderson's brief inquiries about plaintiff's bumper sticker during the June, 1998, stop of plaintiff amounts to nothing more than a casual, limited dialogue between the parties, from which there was no information gathered and no report maintained. As a matter of law, the officer's inquiries made to plaintiff fall short of constituting the "collection of information about plaintiff's associations and activities" as described by ORS 181.575.

The preservation of the police reports regarding plaintiff's conduct during a traffic stop of plaintiff's client in 1997 is more troubling. Defendant describes the 1997 reports as mere "field reports," generated because of plaintiff's unusual actions and attempts to interfere with the police during a routine traffic stop. Defendant contends these reports do not mention plaintiff's associational activities or his political, religious or social views. To the extent the reports could be construed as concerning plaintiff's social views (possibly as an activist opposing police harassment), defendant argues those portions of the report "directly relate" to the officers' investigation of the traffic stop.

Plaintiff disagrees, saying while nothing prohibits police officers from gathering information related to a criminal investigation, what the officers did here was record information — unrelated to any criminal investigation — about plaintiff's "social or political views" regarding police conduct. Plaintiff asserts the officers had no reasonable suspicion that plaintiff was engaged in criminal conduct, and that he was deprived of procedural due process because the city never advised him of the collection and maintenance of the information contained in the 1997 reports, and never gave him the opportunity to object to those reports. He seeks an Order from this court expunging the 1997 police reports.

The reports' descriptions of plaintiff's behavior establish that the police collected and maintained information about plaintiff that was unrelated to a criminal investigation, while lacking suspicion that plaintiff was involved in criminal activity. Whether this constitutes a violation of ORS 181.575 depends upon whether these descriptions of plaintiff's behavior can be construed as "information about the political, religious or social views, associations or activities of" plaintiff. This court concludes as a matter of law that the reports memorialize plaintiff's unusual behavior during a traffic stop of another party, but fall short of containing information regarding plaintiff's views or activities.

Lobaugh's report describes plaintiff's conduct at the stop, and contains observations that plaintiff was contributing to a "tense situation" by attempting to antagonize the police. Lobaugh provided reasons for his belief that plaintiff acted unprofessionally, but made no reference to plaintiff's possible political or social views or activities. See Tom Affidavit in Support of Defendant's Motion for Summary Judgment, Ex. 1.

The report by Officer Harris made similar observations that plaintiff attempted to "interfere" with the traffic stop and uttered inappropriate comments. However, this report also lacks any reference to plaintiff's possible political or social views or activities. Id., Ex. 2.

While a reader of the reports might infer that plaintiff maintains views antithetical to certain police practices, the reports themselves cannot fairly be described as containing information about plaintiff's social views or activities. To the contrary, these reports do nothing more than record plaintiff's conduct at the stop and the officers' reactions to that conduct.

Accordingly, plaintiff's liberty interests created by ORS 181.575 were unaffected by the officers' records of plaintiff's behavior in November, 1997, and plaintiff was not denied procedural due process when deprived of an opportunity to review and object to the reports. Defendant is entitled to summary judgment regarding the remainder of plaintiff's claims, and plaintiff's motion for summary judgment is denied.


For the reasons provided, defendant's motion for summary judgment (# 38) is granted. Plaintiff's motion for partial summary judgment (#45) is denied. Plaintiff's motion for leave to file a second amended complaint (#59) is denied as moot. Defendant's motion to strike a number of paragraphs from plaintiff's declaration and to strike similar references to these statements from plaintiff's Concise Statement of Facts (#53) is denied. Defendant Gunderson's motion for attorney fees shall be taken under advisement following the filing of plaintiff's Response, due on or before July 1, 2002, and any Reply from defendant.


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