Deconnick v. City of Seaside et al

Filing 39

OPINION & ORDER: Plaintiff's motion for summary judgment 27 is denied and Defendants motion for summary judgment 16 is granted as to all claims except the battery claim. See 17-page opinion & order attached. Signed on 11/3/2013 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOHN DECONNICK,
No. 3:12-cv-01501-HZ
Plaintiff,
OPINION & ORDER
v.
CITY OF SEASIDE,
JOSHUA ZUNDEL,
Defendants.
Leonard R. Berman
4711 SW Huber Street, Suite E-3
Portland, OR 97219
Attorney for Plaintiff
Gerald L. Warren
901 Capitol Street NE
Salem, OR 97301
Attorney for Defendants

1 - OPINION & ORDER

HERNANDEZ, District Judge:
Plaintiff John Deconnick brings this 42 U.S.C. § 1983 action against Defendants City of
Seaside and City of Seaside Police Officer Joshua Zundel. Plaintiff raises Fourth Amendment
claims of excessive force and unreasonable seizure against Zundel and state law claims of battery
and negligent hiring, training, and supervision against the City.
Defendants and Plaintiff move for summary judgment on all claims. Defendants argue
that (1) the Fourth Amendment excessive force and unreasonable seizure claims fail as a matter
of law and, alternatively, Defendant Zundel has qualified immunity; (2) the battery claim fails
because Defendant Zundel’s actions were justified; and (3) the negligent hiring, training, and
supervision claims fail as a matter of law. Because I agree with Defendants that Zundel is
entitled to qualified immunity on the excessive force claim and that the unreasonable seizure
claim as well as the state law negligence claims fail as a matter of law, I grant Defendants’
motion as to those claims. However, because I find issues of fact going to the reasonableness of
the force used, I deny Defendants’ motion as to the battery claim. I deny Plaintiff’s motion.
BACKGROUND
Late on Saturday, August 21, 2010, and into the morning hours of Sunday, August 22,
2010, Plaintiff John Deconnick was working as a bouncer at Pudgy’s Bar in Seaside, Oregon.
Jeffrey Oja Decl. (“Oja Decl.”) ¶¶ 2–3; see also Ex. 1 to Gerald L. Warren Decl. (“Warren
Decl.”) at 4 (Pl.’s Dep.). While on duty at Pudgy’s, Plaintiff wore a black hooded sweatshirt,
known as a “hoody,” that read “Security” in small yellow print on the left front breast of the
sweatshirt and in large yellow print on its center back. John Deconnick Decl. (“Deconnick
Decl.”) ¶ 2; Ex. 1 to Warren Decl. at 19, 52–53.

2 - OPINION & ORDER

Defendant Joshua Zundel was at that time and remains currently employed as an officer
for the City of Seaside Police Department. Joshua Zundel Decl. (“Zundel Decl.”) ¶ 1. At around
1:20 a.m. on August 22, 2010, Zundel and Officer Jeffrey Oja entered Pudgy’s during a routine
bar check. Oja Decl. ¶¶ 2–3. Because of these routine bar checks, Zundel and Plaintiff were
professional acquaintances. Deconnick Decl. ¶ 3; Ex. 1 to Warren Decl. at 9–10.
Earlier that night, Pudgy’s patrons Scott Lucia and Wade Horning were acting unruly and
were asked to leave the bar. Ex. 1 to Warren Decl. at 20; Ex. 2 to Warren Decl. at 18 (William
Nielsen Dep.). While some of the details of Lucia and Horning’s removal from Pudgy’s are
unclear, the essence is undisputed. Horning, accompanied by Officers Oja and Zundel, exited
the bar through the front door while Lucia, accompanied by Plaintiff, remained inside to pay.
Ex. 1 to Warren Decl. at 24–25; see also Zundel Decl. ¶ 4. Officers Oja and Zundel stood
outside the bar’s front door speaking with Horning. Oja Decl. ¶ 4; Zundel Decl. ¶¶ 4–5.
After Lucia paid, Plaintiff began to escort Lucia out of the bar by walking behind him
toward the front exit. Ex. 1 to Warren Decl. at 25. When Lucia passed William Nielsen,
Pudgy’s off-duty general manager, Lucia made a motion to push Nielsen. Id. at 25–26; Ex. 2 to
Warren Decl. at 5. Plaintiff tried to stop Lucia by wrapping his arms around Lucia in a bear hug.
Ex. 1 to Warren Decl. at 25–26. Plaintiff and Lucia both fell to the ground. Id. at 26, 29. Both
stood up and faced each other, with Plaintiff facing the front door, trying to push Lucia down the
hall toward it. Id. at 30. Lucia tried to punch Plaintiff, and they again fell to the ground,
knocking over a potted plant. Id. at 39. Lucia grabbed at Plaintiff’s clothes. Id. at 40. The fight
was “out of control.” Id. at 39. Other Pudgy’s patrons surrounded Plaintiff and Lucia, yelling
and screaming. Id. at 40. Plaintiff tried to subdue Lucia by wrapping his arm around Lucia’s
neck, and clung to Lucia’s back, feet off the ground, both facing away from the front door. Id. at

3 - OPINION & ORDER

41, 43, 48. Plaintiff’s “Security” sweatshirt was bunched halfway up his torso. Id. at 41, 47;
Deconnick Decl. ¶ 6.
While the officers were outside talking to Horning, Zundel heard a commotion coming
from inside the bar. Zundel Decl. ¶ 5. Through the window, Zundel could see two men, both
facing away from him, fighting in the hallway near the front door. Id. Zundel did not recognize
either man. Id. Zundel entered the bar and approached the fight. Id. ¶ 6. Although Zundel
yelled “Police” and ordered the men to separate, Plaintiff did not hear him. Id. ¶ 6; Ex. 1 to
Warren Decl. at 41. Plaintiff and Lucia continued fighting. Zundel Decl. ¶ 6; see also
Deconnick Decl. ¶ 4. Because of the crowd, Zundel determined that going “hands on” to
separate the fighting men would put his safety in danger. Zundel Decl. ¶ 6. He also decided
against pepper spray because it would disperse into the crowd and affect more than just the men
fighting. Id.
Zundel took out and activated his Taser X26. Id. ¶ 7. He yelled “Taser, Taser, Taser,”
but Plaintiff did not hear him, and the men did not stop fighting. Id.; Deconnick Decl. ¶ 5; Ex. 1
to Warren Decl. at 44. Pudgy’s waitress Jessica Biros approached the scene and yelled at Zundel
not to taser Plaintiff because Plaintiff was a Pudgy’s employee. Jessica Biros Decl. ¶¶ 2, 5.
Patron Amanda Jenkins also approached Zundel and said “don’t tase him! That’s the bouncer, he
works here.” Amanda Jenkins Decl. ¶¶ 2, 5. Zundel did not hear anyone identify Plaintiff as a
bouncer, an employee, or John Deconnick, nor did he hear anyone yell not to use his Taser.
Joshua Zundel Supp’l Decl. ¶ 2. Zundel fired the Taser at the man whose back was visible to
him. Zundel Decl. ¶ 7. The Taser’s prongs struck Plaintiff’s bare back, and the Taser activated
for a five-second cycle. Id. The Taser incapacitated Plaintiff, and the fight broke up as a result.
Ex. 2 to Warren Decl. at 28; Zundel Decl. ¶ 7. Officer Oja, who had entered behind Zundel,

4 - OPINION & ORDER

secured Lucia, while Plaintiff stood up on his own. Ex. 1 to Warren Decl. at 50–51; Oja Decl.¶
4; Zundel Decl. ¶¶ 7–8. Zundel personally knows both Lucia and Horning, who were arrested.
Zundel Decl. ¶¶ 4, 7, 9. Plaintiff was not arrested. Id. ¶ 9. Zundel called paramedics, who
removed the Taser probes from Plaintiff’s back. Id. ¶ 8; Ex. 2 to Warren Decl. at 30.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotation marks omitted).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present specific facts
showing a genuine issue for trial. Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28 (9th
Cir. 2009). The nonmoving party must go beyond the pleadings and designate facts showing an
issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S.
at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011). When both parties move for summary judgment, the court draws

5 - OPINION & ORDER

inferences from the facts in both parties’ favor. Baldwin v. Trailer Inns, Inc., 266 F.3d 1104,
1117 (9th Cir. 2001).
If the factual context makes the nonmoving party’s claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
the claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
I.

Excessive Force
Whether a police officer used excessive force during an arrest is governed by the

reasonableness standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395
(1989); Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (“Mattos II”). The court must
determine whether the officer’s actions were objectively reasonable in light of the facts and
circumstances confronting the officer, without regard to underlying intent or motivation.
Graham, 490 U.S. at 397. “The ‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. at 396 (recognizing that police officers are often forced to make split-second
judgments about amount of force necessary in particular situation). The court must first consider
the nature and quality of the Fourth Amendment intrusion, then balance it against the
governmental interest at stake, considering such factors as the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officer or others, and whether
the suspect is actively resisting arrest or attempting to evade arrest by flight. Id.; Deorle v.
Rutherford, 272 F.3d 1272, 1279–80 (9th Cir. 2001). In other words, the court balances “the
amount of force applied against the need for that force.” Bryan v. MacPherson, 630 F.3d 805,

6 - OPINION & ORDER

823–24 (9th Cir. 2010).
Since the question of the reasonableness of force depends on the totality of the
circumstances, it is usually a question of fact for the jury. See Tennessee v. Garner, 471 U.S. 1,
8–9 (1985); Luchtel v. Hagemann, 623 F.3d 975, 987–88 (9th Cir. 2010). However, on summary
judgment, the court may make a determination as to reasonableness where, viewing the evidence
in the light most favorable to the nonmoving party, the evidence compels the conclusion that the
officer’s use of force was reasonable. Long v. City & Cnty. of Honolulu, 511 F.3d 901, 905 (9th
Cir. 2007).
A.

Was Zundel’s Use of Force Excessive?
1.

Nature and Quality of the Intrusion

“We begin by analyzing the quantum of force—the type and amount of force—that
[Defendant] used against [Plaintiff].” Bryan, 630 F.3d at 824. Zundel shot Plaintiff in the back
using a Taser X26 in dart mode, 1 and activated the Taser for a single, five-second cycle. Zundel
Decl. ¶ 7. There is no evidence describing the sensations Plaintiff experienced upon being
tasered, although paramedics were called to remove the Taser’s probes from Plaintiff’s skin
immediately following the incident, and Plaintiff was later treated at Providence Seaside
Hospital for a concussion, contusions, headaches, and a brain injury resulting from Zundel’s use
of the Taser. Deconnick Decl. ¶ 8; Zundel Decl. ¶ 8. While it is unnecessary to decide the

1

The Taser X26 may be deployed in dart mode and drive-stun mode. Mattos II, 661 F.3d at 443.
Dart mode shoots two probes attached to the Taser by insulated wires into the target, which then
deliver an electrical charge that “instantly overrides the victim’s central nervous system,
paralyzing the muscles throughout the body, rendering the target limp and helpless.” Id. Drivestun mode requires the operator to “remove[] the dart cartridge and push[] two electrode contacts
. . . directly against the victim.” Id. Unlike dart mode, drive-stun mode does not override the
central nervous system, but does deliver an electric shock to the target. Id. Although the parties
7 - OPINION & ORDER

precise level of force in order to determine the reasonableness of that force, Mattos II, 661 F.3d
at 443 (citing Scott v. Harris, 550 U.S. 372, 383 (2007)), the Ninth Circuit has held that “the X26
. . . used in dart-mode constitute[s] an intermediate, significant level of force that must be
justified by the governmental interest involved.” Bryan, 630 F.3d at 826. In Bryan, the officer
activated his Taser a single time, and the court considered the use of force to be intermediate and
significant. See id. at 822. Therefore the level of force used by Zundel on Plaintiff was
intermediate and significant, and in order to be reasonable must be justified by an intermediate
and significant need for force.
2.

Governmental Interest at Stake

The next step in the excessive force analysis is evaluating the governmental interest at
stake, or the need for force. The court measures the need based on the severity of the crime at
issue, the threat to the safety of the officer or others, whether the subject is actively resisting
arrest or attempting to evade arrest by flight, and any other relevant factors. E.g., Mattos II, 661
F.3d at 441. The most important factor in this analysis is the threat to the safety of the officer or
others. Id. (citing Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir. 2005) (en banc)).
When Zundel observed the struggle between two men inside Pudgy’s, he believed they
were both engaged in the crime of disorderly conduct in the second degree, a Class B
misdemeanor. Or. Rev. Stat. § (O.R.S.) 166.025(2)(a) (2011); Zundel Decl. ¶ 5. “While the
commission of a misdemeanor offense is not to be taken lightly, it militates against finding the
force used to effect an arrest reasonable where the suspect was also nonviolent and posed no
threat to the safety of the officers or others.” Bryan, 630 F.3d at 828–29 (emphasis added)

do not describe Zundel’s Taser deployment as “dart mode,” it can be inferred from the fact that
probes shot into Plaintiff and had to be removed by paramedics. See Bryan, 630 F.3d at 824.
8 - OPINION & ORDER

(internal quotation marks omitted). On the one hand, although disorderly conduct in the second
degree is a misdemeanor as opposed to a more serious crime, Plaintiff and Lucia were physically
fighting in a violent manner. On the other hand, there is no evidence that Zundel believed either
man fighting had a weapon, and the fight was between Plaintiff and Lucia exclusively. Because
the undisputed facts create multiple reasonable inferences, questions remain as to the severity of
Plaintiff’s crime and the appropriate response to that crime.
There is also no evidence that Zundel felt his personal safety was threatened by either
Plaintiff or Lucia. However, the physical contact between Plaintiff and Lucia indicates that their
individual safety, at the very least, was in danger. Furthermore, Plaintiff admitted that the
situation was “out of control.” Ex. 1 to Warren Decl. at 39. Although the threat to Plaintiff and
Lucia’s safety alone justified a use of force, when all inferences are drawn in the light most
favorable to Plaintiff, the threat was minimal. In contrast, drawing all inferences in the light
most favorable to Defendant, the “out of control” fight could have put the gathering crowd in
danger as well. As with the severity of the crime, the threat to the safety of the officer or others,
the most important factor in the governmental interest analysis, also creates competing
inferences.
The third factor is whether Plaintiff was “actively resisting arrest or attempting to evade
arrest by flight, and any other exigent circumstances[.]” Deorle, 272 F.3d at 1280 (internal
quotation marks omitted). Zundel states that he yelled “Police” when he entered Pudgy’s.
Zundel Decl. ¶ 6. Plaintiff, however, states that he did not hear Zundel and was unaware that the
police had reentered. Ex. 1 to Warren Decl. at 41, 44. Plaintiff further states that if he had been
aware that the police were there, he “would have let the police handle it.” Id. at 44. Drawing all
inferences in the light most favorable to Plaintiff, he was not even aware the police were there,

9 - OPINION & ORDER

so actively resisting arrest was impossible. And even drawing inferences in the light most
favorable to Defendants, Plaintiff was at most passively resisting arrest. Continually ignoring an
officer’s command is not active resistance. See Smith, 394 F.3d at 703. Even deliberately
refusing to comply with an officer’s command is not active resistance. Forrester v. City of San
Diego, 25 F.3d 804, 805 (9th Cir. 1994). “[P]urely passive resistance can support the use of
some force, but the level of force an individual’s resistance will support is dependent on the
factual circumstances underlying that resistance.” Bryan, 630 F.3d at 830. Notably, the record
does not show that Zundel intended to or indeed made any effort to arrest Plaintiff, and it is
impossible to passively or actively resist an arrest that does not exist or was not attempted.
Therefore this factor does not support use of significant force.
Plaintiff argues that Zundel should have recognized Plaintiff as the bouncer. Plaintiff
supports this argument by pointing to the professional relationship Zundel and Plaintiff maintain,
Officer Oja’s recognizing Plaintiff as the bouncer, and Jessica Spiros, Amanda Jenkins, and
others telling Zundel that Plaintiff was one of the men fighting and not to taser him. Zundel
states that he did not recognize either party fighting because the writing on Plaintiff's sweatshirt
was not visible. Zundel also states that Officer Oja recognized Plaintiff only one or two seconds
before Zundel deployed his Taser, and that Zundel did not hear Spiros, Jenkins, or anyone else
identifying Plaintiff or imploring Zundel not to taser him. Both parties present reasonable
interpretations of the facts regarding whether Zundel should have recognized Plaintiff. If Zundel
knew Plaintiff was one of the men fighting, this knowledge might decrease the need for force
because Zundel would consider Plaintiff an ally in controlling the only threat, Lucia. In that
case, a reasonable jury could conclude that tasering Plaintiff was excessive. The undisputed
facts create competing reasonable inferences as to whether Zundel should have recognized

10 - OPINION & ORDER

Plaintiff.
3.

Balancing the Competing Interests

In order for the intermediate, significant use of force Zundel used against Plaintiff to be
reasonable, the overall need for force, based on the governmental interest factors, must also be
intermediate and significant. Drawing all inferences in the light most favorable to Plaintiff, the
need for force was relatively minor because the perceived crime was mild and contained, only
Plaintiff’s and Lucia’s safety was threatened, Plaintiff was not resisting arrest at all, and Zundel
should have recognized Plaintiff as one of the participants in the fight. Yet drawing all
inferences in the light most favorable to Defendants, the need for force was intermediate and
significant because the fight was violent and out of control, the entire crowd’s safety was in
danger, and Zundel did not recognize Plaintiff. Because the evidence does not compel the
conclusion that the force was excessive or reasonable, summary judgment on the merits of the
excessive force claim is not warranted for either Defendants or Plaintiff.
B.

Is Zundel Entitled to Qualified Immunity?

The United States Supreme Court has described the qualified immunity doctrine as
follows:
The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known. Qualified immunity balances two important interests—the need to
hold public officials accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and liability when they
perform their duties reasonably. The protection of qualified immunity applies
regardless of whether the government official’s error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citations, internal quotation marks omitted).
The analysis of whether a government official is entitled to qualified immunity requires

11 - OPINION & ORDER

two steps. Saucier v. Katz, 533 U.S. 194, 201 (2001). “First, a court must decide whether the
facts that a plaintiff has alleged or shown make out a violation of a constitutional right.”
Pearson, 555 U.S. at 232 (citations omitted). Second, “the court must decide whether the right at
issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. (quoting
Saucier, 533 U.S. at 201). Qualified immunity applies “unless the official’s conduct violated a
clearly established constitutional right.” Id. In other words, the government official is entitled to
qualified immunity if either prong is answered negatively. Following Pearson, courts are
“permitted to exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.” Id. at 236.
For the purpose of this Opinion, I assume the violation of a constitutional right and
proceed to the second prong of the qualified immunity analysis, “whether [Defendant’s] use of
force was premised on a reasonable belief that such force was lawful[.]” Deorle, 272 F.3d at
1285. The question is “whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Id. (citing Saucier, 533 U.S. at 194–95). This inquiry
is based on “the state of the law at the time” of the use of force. Bryan, 630 F.3d at 832. The
case law need not be exactly analogous as long as a reasonable officer would be on notice that
his conduct is lawful or not. Deorle, 272 F.3d at 1286.
On August 21–22, 2010, it was not clear to a reasonable officer that use of a Taser in the
situation Zundel confronted was unlawful. At the time, the two most relevant Ninth Circuit
decisions on tasering as excessive force were Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010)
(“Mattos I”) and Brooks v. City of Seattle, 599 F.3d 1018 (9th Cir. 2010). In Mattos I, the Ninth
Circuit held on January 12, 2010 that tasering an unarmed woman who interfered with the arrest

12 - OPINION & ORDER

of her belligerent husband was not excessive. Mattos I, 590 F.3d at 1089. In Brooks, the Ninth
Circuit decided on March 26, 2010 that deploying a Taser in drive-stun mode three times on a
pregnant, unarmed woman who refused to sign the Notice of Infraction that accompanied her
speeding ticket was also not unconstitutionally excessive. Brooks, 599 F.3d at 1020, 1030. In
both cases, the need for force was relatively low, and the actual use of force was the same as or
higher than here. See Mattos I, 590 F.3d at 1089; Brooks, 599 F.3d at 1030–31. Although these
cases were consolidated and reheard en banc after the tasering at issue here, and the excessive
force holdings were ultimately reversed, on August 21–22, 2010, the state of the law indicated
that tasering Plaintiff in this situation was reasonable. Mattos II, 661 F.3d at 446, 451. Zundel
therefore could not have been on notice that use of his Taser on Plaintiff was excessive;
accordingly, Zundel is entitled to qualified immunity on the excessive force claim. Defendants’
motion for summary judgment on this claim is granted and Plaintiff’s motion is denied.
II.

Unreasonable Seizure
Plaintiff also contends that Zundel’s Taser deployment constituted an unreasonable

seizure. The Fourth Amendment protects people from unreasonable searches and seizures. See
U.S. Const. amend. IV; Cameron v. Craig, 713 F.3d 1012, 1021 (9th Cir. 2013). The Fourth
Amendment, however, “does not proscribe all state-initiated . . . seizures; it merely proscribes
those which are unreasonable.” United States v. Willis, 431 F.3d 709, 714 (9th Cir. 2005) (citing
Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Under the Fourth Amendment, a police officer
may arrest a person without a warrant if the officer has probable cause to believe the person has
committed a crime in the officer’s presence. Blankenhorn v. City of Orange, 485 F.3d 463, 470–
71 (9th Cir. 2007). “Probable cause” exists if the available facts suggest a “fair probability” that
the suspect has committed a crime. Tatum v. City & Cnty. of S.F., 441 F.3d 1090, 1094 (9th Cir.

13 - OPINION & ORDER

2006). To determine whether an officer had probable cause at the time of a plaintiff’s arrest, the
court must determine “whether at that moment the facts and circumstances within [his]
knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant
a prudent man in believing that the [plaintiff] had committed or was committing an offense.”
Beck v. Ohio, 379 U.S. 89, 91 (1964) (citations omitted).
Although the officers did not arrest Plaintiff on August 21–22, 2010, I assume for the
purpose of analysis that tasering Plaintiff constituted a seizure requiring probable cause that
Plaintiff had committed a crime. See Blankenhorn, 485 F.3d at 470–71. Probable cause to
believe a crime was committed does not necessarily preclude a finding of excessive force, and
both must be analyzed separately. See Brooks, 599 F.3d at 1022. As noted above, when Zundel
returned inside Pudgy’s, he believed Plaintiff and Lucia were engaged in the crime of disorderly
conduct in the second degree under O.R.S. 166.025(1). Section 166.025(1) provides, in pertinent
part, “A person commits the crime of disorderly conduct in the second degree if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person
. . . [e]ngages in fighting or in violent, tumultuous or threatening behavior[.]”
Plaintiff essentially argues that because he was an employee escorting a patron out of the
bar, Plaintiff lacked the requisite intent under O.R.S. 166.025(1). Plaintiff further argues that
Zundel should have recognized him as an employee, and had Zundel recognized Plaintiff, Zundel
would not have had probable cause to believe Plaintiff was engaged in a crime. However even if
Zundel had recognized Plaintiff and knew him to be the Pudgy’s bouncer, once he announced
“Police” and ordered the men to separate, the fact that the men failed to comply gave Zundel the
facts and circumstances sufficient to warrant his reasonable belief that Plaintiff was engaged in
disorderly conduct in the second degree, regardless of whether Plaintiff was a Pudgy’s employee.

14 - OPINION & ORDER

Therefore, Zundel had probable cause to seize Plaintiff. Drawing all inferences in the light most
favorable to Plaintiff, the undisputed facts establish that the seizure was reasonable. Defendants’
motion for summary judgment on Plaintiff’s unreasonable seizure claim is granted and Plaintiff’s
motion on this claim is denied. 2
III.

Battery
Plaintiff contends that Zundel’s use of his Taser on Plaintiff constituted a battery under

Oregon law. Zundel argues that, because his use of force was reasonable, it was justified, 3 and
therefore not battery. Police officers using reasonable force to legitimately fulfill their duty as
police officers are not liable for battery. E.g., Gigler v. City of Klamath Falls, 537 P.2d 121, 126
(Or. Ct. App. 1975). However, as explained above, there are genuine issues of material fact as to
whether the force Zundel used on Plaintiff was reasonable or excessive. Because the battery
claim depends on whether the use of force was reasonable, and the question of whether the force
was reasonable remains, the parties’ motions for summary judgment on Plaintiff’s battery claim
are denied.
IV.

Negligence
Plaintiff’s final claims assert the City of Seaside negligently hired, trained, and

supervised Officer Zundel, which directly led to Plaintiff’s injuries. In his motion for partial
summary judgment, Plaintiff concedes the negligent hiring claim. Negligent supervision

2

Given my conclusion that there was no constitutional violation, it is unnecessary to discuss
Defendants’ alternative qualified immunity argument.
3
In the Memorandum of Law in Support of Defendants’ Motion for Summary Judgment,
Defendants describe this justification as both a “privilege” and “good-faith immunity.” Defs.’
Mem. Supp. Mot. Summ. J. 15–16. I understand Defendant to be using the three phrases
interchangeably, however I note that “the doctrine of qualified immunity does not shield
defendants from state law claims.” Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159,
1171 (9th Cir. 2013). The appropriate defense is justification as outlined in O.R.S. 161.235.
15 - OPINION & ORDER

requires that the employer knew or should have known that the employee had dangerous
propensities, and nonetheless placed the employee “in a position where it is foreseeable that he
could injure the plaintiff in the course of the work.” Chesterman v. Barmon, 727 P.2d 130, 132
(Or. Ct. App. 1986). There is no evidence in the record that Officer Zundel had dangerous
propensities, or that the City of Seaside knew or should have known that Officer Zundel had
dangerous propensities. Moreover, the thorough background check that the Seaside Police
Department conducted on Officer Zundel before employing him did not reveal any dangerous
propensities. Robert Gross Decl. ¶¶ 2–3. As to the training claim, the Department of Public
Safety Standards and Training certified Zundel as a police officer pursuant to state requirements.
Id.
Plaintiff brings forth no evidence on the supervision or training claims to create a
disputed issue of fact. Plaintiff’s only argument is that because Zundel’s single use of a Taser—
on Plaintiff—was constitutionally unreasonable, he must have been negligently trained and
supervised in the use of his Taser. Even assuming the force was excessive does not, without
more, expose any negligence in training or supervision. There are no material facts presenting a
genuine issue for trial. The undisputed facts establish that the City of Seaside was not negligent
in training or supervising Zundel; accordingly Defendants’ motion for summary judgment on the
negligent training and supervision is granted. Plaintiff’s motion on these claims is denied.
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16 - OPINION & ORDER

CONCLUSION
Based on the reasons above, Plaintiff’s motion for summary judgment [#27] is denied and
Defendants’ motion for summary judgment [#16] is granted as to all claims except the battery
claim.
IT IS SO ORDERED.
Dated this _________ day of ___________________, 2013.

______________________________
MARCO A. HERNANDEZ
United States District Judge

17 - OPINION & ORDER