Greisen v. Hanken et al
Opinion and Order - Defendant Hanken's Renewed Motion for Judgment as a Matter of Law and Alternative Motions for New Trial and Remittitur (ECF 120 ) are denied. Signed on 5/12/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:14-cv-1399-SI
OPINION AND ORDER
John D. Ostrander and William A. Drew, ELLIOTT, OSTRANDER & PRESTON, P.C., 707 S.W.
Washington Street, Suite 1500, Portland, OR 97205. Of Attorneys for Plaintiff.
Karen M. Vickers and Blake H. Fry, MERSEREAU SHANNON LLP., One S.W. Columbia Street,
Suite 1600, Portland, OR 97258. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Plaintiff, Doug Greisen (“Greisen”), is the former Chief of Police of Scappoose, Oregon.
Greisen brought this lawsuit against Defendant Jon Hanken (“Hanken”), the former City
Manager for the City of Scappoose, and others. Before trial, the Court dismissed all defendants
other than Hanken. From July 19, 2016 through July 21, 2016, this action was tried before a jury
on Greisen’s claim that Hanken violated 42 U.S.C. § 1983 by retaliating against Greisen based
on Greisen’s exercise of speech protected under the First Amendment. The jury found in favor of
Greisen and awarded him $1,117,488 in economic damages and $3,000,000 in non-economic
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damages. Hanken timely filed post-trial motions seeking, in the alternative, judgment as a matter
of law, a new trial, or remittitur. ECF 120. For the reasons that follow, Hanken’s post-trial
motions are denied.
A. Renewed Motion for Judgment as a Matter of Law
Under Rule 50(b) of the Federal Rules of Civil Procedure, a court may grant a renewed
motion for judgment as a matter of law if “the evidence permits only one reasonable conclusion,
and that conclusion is contrary to the jury’s verdict.” E.E.O.C. v. Go Daddy Software, Inc., 581
F.3d 951, 961 (9th Cir. 2009) (quotation marks omitted); see also Weaving v. City of
Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (explaining that judgment as a matter of law must
be granted if it is clear that “the evidence and its inferences cannot reasonably support a
judgment in favor of the opposing party”). Because a motion under Rule 50(b) is a renewed
motion, a party may not “raise arguments in its post-trial motion for judgment as a matter of law
under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion.” Go Daddy Software,
581 F.3d at 961 (quotation marks omitted).
In evaluating a motion for judgment as a matter of law, the Court must view all the
evidence in the light most favorable to the non-moving party and draw all reasonable inferences
in favor of that party. Experience Hendrix, LLC v. Hendrixlicensing.com Ltd., 762 F.3d 829, 842
(9th Cir. 2014). The Court may not make credibility determinations, weigh the evidence, or
“substitute its view of the evidence for that of the jury.” Krechman v. Cty. of Riverside, 723
F.3d 1104, 1110 (9th Cir. 2013) (quotation marks omitted). A jury’s verdict must be upheld if it
is supported by substantial evidence. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242
(9th Cir. 2014); Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th
Cir. 2001). Substantial evidence is “such relevant evidence as reasonable minds might accept as
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adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from
the evidence.” Weaving, 763 F.3d at 1111 (quotation marks omitted).
B. New Trial
Under Rule 59(a) of the Federal Rules of Civil Procedure, a court “may grant a new trial
only if the verdict is contrary to the clear weight of the evidence, is based upon false or
perjurious evidence, or to prevent a miscarriage of justice.” Molski v. M.J. Cable, Inc., 481
F.3d 724, 729 (9th Cir. 2007) (quotation marks omitted); see also Shimko v. Guenther, 505
F.3d 987, 993 (9th Cir. 2007). Unlike a determination under Rule 50, the Court is not required to
view the evidence in the light most favorable to the non-moving party when considering a
motion for new trial under Rule 59(a). Experience Hendrix, 762 F.3d at 842. Instead, the Court
“can weigh the evidence and assess the credibility of the witnesses.” Id. (citing Kode v.
Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per curiam)).
As explained by the Ninth Circuit, after weighing the evidence, the trial judge faces a
On the one hand, the trial judge does not sit to approve
miscarriages of justice. His power to set aside the verdict is
supported by clear precedent at common law and, far from being a
denigration or a usurpation of jury trial, has long been regarded as
an integral part of trial by jury as we know it. On the other hand, a
decent respect for the collective wisdom of the jury, and for the
function entrusted to it in our system, certainly suggests that in
most cases the judge should accept the findings of the jury,
regardless of his own doubts in the matter. Probably all that the
judge can do is to balance these conflicting principles in the light
of the facts of the particular case. If, having given full respect to
the jury’s findings, the judge on the entire evidence is left with the
definite and firm conviction that a mistake has been committed, it
is to be expected that he will grant a new trial.
Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987). Thus, a
district judge should not award a new trial unless the court has a definite and firm conviction that
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the jury has made a mistake. Id. at 1372. “While the trial court may weigh the evidence and
credibility of the witnesses, the court is not justified in granting a new trial merely because it
might have come to a different result from that reached by the jury.” Roy v. Volkswagen of Am.,
Inc., 896 F.2d 1174, 1176 (9th Cir. 1990) (quotation marks and citation omitted).
Remittitur is available to reduce an excessive verdict. Pershing Park Vilas Homeowners
Ass’n. v. United Pac. Ins. Co., 219 F.3d 895, 905 (9th Cir. 2000) (citation omitted). “Where there
is no evidence that passion and prejudice affected the liability finding, remittitur is an
appropriate method of reducing an excessive verdict.” Seymour v. Summa Vista Cinema,
Inc., 809 F.2d 1385, 1387 (9th Cir. 1987), amended on other grounds, 817 F.2d 609 (9th
Cir. 1997). In considering a motion for remittitur, the trial court must view the evidence
concerning damages in a light most favorable to the prevailing party. Id. If the trial court
concludes that an award of damages is excessive, it may either grant the defendant’s motion for a
new trial or deny the motion conditioned upon the prevailing party’s acceptance of a remittitur.
Silver Sage Partners v. City of Desert Hot Springs, 251 F.3d 814, 818 (9th Cir. 2001); see also
Seymour, 809 F.2d at 1387.
The Ninth Circuit has explained, however, that a district court “must uphold the jury’s
finding unless the amount is grossly excessive or monstrous, clearly not supported by the
evidence, or based only on speculation or guesswork.” Del Monte Dunes at Monterey, Ltd. v.
City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996); see also Brady v. Gebbie, 859 F.2d 1543,
1557 (9th Cir. 1988) (“An otherwise supportable verdict must be affirmed unless it is ‘grossly
excessive’ or ‘monstrous’ or ‘shocking to the conscience.’”). Thus, when granting a motion for
remittitur, the trial court does not substitute its judgment for that of the jury, but instead reduces
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the judgment to the “maximum amount sustainable by the proof.” Oracle Corp. v. SAP AG, 765
F.3d 1081, 1094 (9th Cir. 2014).
In 2001, Greisen became the Chief of Police in Scappoose, Oregon. In 2004, Hanken
became the City Manager of Scappoose. The City Manager has the authority to hire, fire, and
supervise the Chief of Police. The City Manager also is responsible for the City’s budget, among
other things. The Scappoose City Council, as a body, has the authority to hire and fire the City
Manager. The City Council has no direct authority over the Chief of Police.
A. Greisen’s Statements About Hanken’s Management of the City Budget
By 2012, Greisen had become concerned about Hanken’s management of the City’s
overall budget. Greisen voiced his concern to several people outside his chain of command,
including City Councilor Judi Ingham. In addition to discussing his specific concerns about the
Police Department’s budget, Greisen discussed with Councilor Ingham matters concerning
Hanken’s management of the overall City budget, including the budgets of other departments.
Greisen also discussed his concerns regarding several other departmental budgets with City
Councilor Donna Gedlich.
On May 14, 2012, the Scappoose City Council held a budget meeting. Two councilors
expressed a desire to hire more police officers than Hanken’s proposed City budget would have
allowed. At that meeting, Greisen did not voice support for Hanken’s overall budget. The
following day, May 15, 2002, Hanken said to Greisen, “I’m mad at you. You stay on your side of
City Hall. I don’t want to see you over here.” Trial Transcript 72. After Hanken told Greisen to
stay on his side of City Hall, Greisen began to ask himself, “What’s being hidden?” Id. at 73.
Greisen then spoke with City Finance Administrator Jill Herr and with other departmental heads,
including the heads of the Water Department, the Sewer Department, and the Public Works
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Department. From these conversations, Greisen learned that, shortly before going into the
budgeting process, Hanken had been holding back the City from paying invoices received from
various City vendors for as much as three or four months. Greisen also learned that vendors had
been asking when they would be paid. Eventually, the vendors would be paid in the following
fiscal year. Greisen learned that this practice was happening not only with the Police
Department’s budget but in other department budgets throughout the City.
Greisen also raised questions about the city’s audit. In August 2012, Hanken told Greisen
that Greisen had better “quit listening to Councilor Ingham about her—the budget.” Id. at 76.
Hanken added: “Ms. Ingham will be the one that [sic] will ruin your career here in the City of
In the spring of 2013, Greisen continued to be concerned about the fact that vendor
invoices were still being held back by more than 30 days throughout the City’s departments.
Greisen asked City Finance Administrator Herr about that practice. Herr confirmed that vendor
invoices were still being held back for payment in other City department besides the Police
Department, explaining that she was just doing what she had been told to do by Hanken.
B. Hanken’s Actions Against Greisen in 2013
1. The First Investigation: Allegations Relating to the PIT Maneuver
In February 2013, Greisen learned that one of his officers was attempting a traffic stop
and arrest of a hit-and-run suspect. The officer requested backup. Greisen was less than a mile
away, so he left a city council meeting to assist. It was common for Greisen to assist his officers
when they needed help. After observing the suspect, Greisen directed another officer to perform
a PIT maneuver, to stop the suspect’s vehicle. (“PIT” is an acronym for “precision
immobilization technique.” A PIT maneuver is a law enforcement pursuit tactic by which a
pursuing car causes a pursued car to turn sideways, resulting in the pursued driver losing control
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and being forced to stop.) The suspect was arrested and later pleaded guilty to reckless driving
and recklessly endangering another.
On July 17, 2013, Hanken sent Greisen a letter notifying Greisen that Hanken had
directed an outside agency to investigate Greisen’s February 3, 2013 authorization of the PIT
maneuver. In his letter, Hanken also told Greisen, “You are hereby notified and ordered not to
discuss this matter with anyone except your spouse, significant other, or your attorney.” Trial
Ex. 33. As a result of this investigation, on August 23, 2013, Hanken imposed a disciplinary
sanction on Greisen of two weeks suspension without pay. Hanken informed Greisen of that
suspension by letter, adding: “As I draft this letter, I cannot help but wonder if you would be able
to maintain your position if this report was known by or reported to the news media.” Trial
Ex. 35. Until this time, this was the only disciplinary sanction that Greisen had received in 26
years in law enforcement.
On August 26, 2013, Greisen appealed his disciplinary sanction to the City’s Personnel
Review Committee. Trial Ex. 37. On October 14, 2013, the Personnel Review Committee
concluded that “the degree of discipline issued to Police Chief Doug Greisen . . . is entirely out
of proportion based on the totality of the circumstances on the night of Feb. 4th.” Trial Ex. 49.
The Personnel Review Committee further recommended that “the City Manager retract, and the
Scappoose City Council oversee the retraction, all discipline issued to Chief Greisen.” Id.
2. The Second Investigation: Allegations of a Hostile Work Environment
On August 1, 2013, Hanken sent Greisen a letter notifying him that the City will be
conducting a second investigation into Greisen’s conduct. This investigation related to the
management of the Scappoose Police Department. According to Hanken, information had come
forward “that raises the issue of whether a hostile work environment exists within the City’s
Police Department.” Trial Ex. 34. Again, Hanken wrote to Greisen, directing: “You are hereby
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notified and ordered not to discuss this matter with anyone except your spouse or your attorney.”
Id. On September 6, 2013, less than two weeks after Greisen filed his appeal on August 26, 2013,
relating to his disciplinary sanction concerning the February 2013 PIT maneuver, Hanken placed
Greisen on paid administrative leave pending the outcome of the investigation relating to the
allegation of a hostile work environment. Hanken also informed the local newspaper that there
are additional “potential issues” that are prompting a second investigation into Greisen. Trial
Ex. 39. This was contrary to City policy and “wasn’t appropriate.” Trial Transcript 467, 474-76.
Retired Oregon State Police Officer Aaron Olson investigated Police Chief Greisen for
the City. After interviewing witnesses and reviewing documents, Olson concluded that the
allegation that Greisen harassed employees or maintained a hostile work environment was not
supported by the evidence. Id. at 217.
3. The Third Investigation: Allegations of Unauthorized Bank Accounts
On September 30, 2013, Hanken sent Greisen a letter notifying him that the City will be
conducting a third investigation into Greisen’s conduct. This investigation related to allegations
that Greisen may have violated the City’s financial policies by using unauthorized bank
accounts. Trial Ex. 47. Again, Hanken directed Greisen: “You are hereby notified and ordered
not to discuss this matter with anyone except your spouse, significant other, or your attorney.”
This investigation related to charitable fundraising activities that the Scappoose Police
Department had been conducting since the mid-1980s, including under three police chiefs who
came before Greisen. Trial Transcript 101. As Greisen explained at trial, when people
contributed small amounts of money to the police for charitable programs run by the police, the
money was deposited into accounts maintained by the Police Department at Chase Bank.
Eventually, these accounts had more than $2,000, and Chase began to charge a $15 per month
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service fee. After discussing this with then-Lieutenant Norman Miller of the Scappoose Police
Department (who later succeeded Greisen as chief), Greisen closed the Chase accounts and kept
the charitable money in cash in a bag maintained in the chief’s office. Id.
When people would donate money, they would be given a receipt. According to Greisen,
everyone in the City “knew about this account,” and no one ever told Greisen that it was
unauthorized. Id. at 102-03. Miller knew about the charitable contributions, the fact that the bank
accounts that had been maintained for that money for a long time were closed in September
2012, and that the cash, then totaling approximately $2,400, was afterwards kept in the police
chief’s office. In fact, in 2011, Miller had been one of the signers on the bank accounts. Id.
at 375-77, 388-89. After Hanken appointed Miller as interim Police Chief while Greisen was on
administrative leave, Miller had another Police Department employee take several photographs
of the money spread out on a desk. Id. at 391. Copies of those photographs were given to
Hanken then provided comments and a photograph of the cash spread to the newspaper,
in violation of City policy. Id. at 467, 474-76. Based on information provided by Hanken, the
local newspaper ran a story with the headline, “Greisen’s use of unauthorized account probed”
and depicted a spread of several hundred dollar bills. Trial Exhibit 51; Trial Transcript 480-81.
When Miller saw the photograph of the money spread in the local newspaper his reaction was to
wonder, “How did it get there?” Id. at 391. Miller had not authorized the photograph to be sent to
the newspaper because “[t]his was an internal investigation that needed to be dealt with
internally, not outside.” Id. at 392. Miller knew all about the charitable source of the cash and its
history. At trial, Miller confirmed that when “you lay it out on a table like this and you take a
picture of it,” it could be “perceived” as a “drug bust photo.” Id.
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At trial, Hanken admitted during cross examination that he provided a copy of the
photograph to the news media and made the statements that were attributed to him in the
newspaper article. Trial Transcript 481; Trial Ex. 51. He admitted that he told the news media
“that a bank bag was discovered in the chief’s desk and that its contents raised questions about
whether the chief was maintaining an unauthorized account.” Trial Transcript 481. But Hanken
also admitted during cross examination that at the time he knew that this was not money that had
just been found or discovered in Greisen’s office. Id. at 481-82. Indeed, Hanken admitted that he
had known for some time about the Police Department’s charitable fundraising activities (indeed,
Hanken had contributed to them), that the money had not being going through the City’s
budgetary process, and that the practice of maintaining this money outside of the City’s
budgetary process had in fact previously been “authorized.” Id. at 482-89. Hanken also admitted
that he knowingly made false statements to the news media, including stating that the money in
Greisen’s desk was “unauthorized.” Id.
C. Hanken Resigns
On October 14, 2013, the City’s Personnel Review Committee recommended retracting
all discipline issued against Greisen relating to the PIT maneuver. Hanken “viewed this as being
the end of [Hanken’s] career in Scappoose.” Trial Transcript 456. Less than 30 days later, on
November 8, 2013, Hanken resigned his position as City Manager.
As described previously, however, shortly before Hanken resigned, he went to the local
news media and told them about finding cash in Greisen’s desk drawer. Hanken also provided
the news media with a photograph of the discovered cash, which the news media published. Trial
Transcript 491; Trial Ex. 51. As Hanken further admitted at trial
Isn’t it true that you called up the media in the middle of
the investigation to give them this information, this false
information that you testified is incorrect, because you learned city
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councilors were sending emails to each other and the one that you
had received had basically said they wanted to stop the
investigations of Mr. Greisen?
And you didn’t want that to happen, did you?
No, I didn’t.
Before you resigned, you went to the press and gave these
statements about a bag of money found in the desk drawer with no
accounting whatsoever when you know, you’ve testified, that those
were not true statements; correct?
I believed the statements were true at the time.
Well, I believe your testimony was earlier that you knew
And you gave them this photograph, Exhibit 51? This
Yes, I did.
Have you seen photographs like that before?
Yes, I have.
In the news, on TV, in newspapers.
In instances where money is seized or stolen; correct?
Or drug busts, yes?
Yes. I’ve also seen where the money is in piles related to an
economic development effort.
Trial Transcript 490-92.
Also, regarding the second investigation, Hanken admitted the following:
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And you had never observed anything about Mr. Greisen
that led you to believe there was a hostile work environment?
Not with Carpenter.
Not with anyone?
No. There was a incident a few years back with an Officer
Scott Hanley who came to complain about an incident but came
back the next day and said, “No, I’m not going to file a complaint.”
You testified in your deposition that you had never
observed anything that seemed to be a hostile work environment
with Mr. Greisen. Did you make that statement in your deposition?
Yes, I did.
Okay. And you had no knowledge of any retaliation by
Trial Transcript 494-95.
D. Greisen Is Later Fired by Interim City Manager Otterman
After Hanken resigned, Mayor Scott Burge briefly served as interim City Manager. In
January 2014, the City Council appointed Donald Otterman as the new interim City Manager,
succeeding Mayor Burge. Otterman served for four months. In May 2014, just before he
resigned, Otterman made the decision to terminate Greisen’s employment pursuant to a “nocause” termination provision in Greisen’s contract. Otterman explained at trial that he had
“reviewed the three reports that had been done – the report regarding the pursuit, the financial
report, and the hostile work environment report – and after I reviewed those reports, I felt that it
was the best for the City if he [Greisen] was to leave.” Trial Transcript 291. Otterman also
testified that he was aware of the news articles about Greisen and the controversy related to the
Chief of Police in Scappoose. Otterman said that it is “difficult for a city to be in turmoil for any
extended period of time.” Id. at 303. According to Otterman, “There were several articles about
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it and about what was going on in the City. The city manager had been fired. The police chief
was on administrative leave. And that causes commotion or turmoil in the organization and
needs to be resolved as soon as possible.” Id. at 303-304. Otterman “just felt that the best
situation for the City was to exercise the, quote, ‘no-cause,’ unquote, clause.” Id. at 313.
E. Greisen’s Economic and Non-Economic Damages
Greisen received Otterman’s letter dated April 8, 2014, informing Greisen that his
employment with the City is terminated effective May 8, 2014. Trial Exhibit 59. Greisen and his
wife then spent about 25 to 30 hours preparing his resume. Trial Transcript 108; Trial Exhibit 60.
Over the next two years, Greisen applied for more than 200 different jobs, from Alaska to
Arizona to New York. Trial Transcript 108-09; Trial Exhibit 61. He received some temporary,
part-time work, which he described at trial. Trial Transcript 110.
At trial, Greisen presented expert economic damage testimony from a certified public
accountant, Ronald Greisen, Plaintiff’s brother. Id. at 253-54. Plaintiff’s expert witness
concluded that Greisen’s economic damages through trial, less the part-time wages earned by
Greisen in mitigation, totaled $300,194. Id. at 256. Plaintiff’s expert witness also testified that
Greisen’s future economic losses over the next seven years, discounted to present value, totaled
$817,294. Id. at 259. The sum of these two figures is $1,117,488, which is the precise amount
awarded by the jury as economic damages. ECF 107 at 2. At trial, Greisen also described his
emotional distress caused by Hanken’s conduct. Trial Transcript at 113. Greisen’s wife gave
further and more detailed testimony about her husband’s emotional distress, based on her
observations of him. Id. at 163-80. The jury awarded Greisen $3,000,000 in non-economic
damages. ECF 107 at 2.
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A. Renewed Motion for Judgment as a Matter of Law
The only claim the Court allowed to proceed to trial was Greisen’s claim against Hanken
alleging that Hanken violated 42 U.S.C. § 1983. “Traditionally, the requirements for relief under
[§] 1983 have been articulated as: (1) a violation of rights protected by the Constitution or
created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under
color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Greisen alleges that
Hanken violated Greisen’s rights under the First Amendment by causing adverse employment
actions to be taken against Greisen, while Greisen was a public employee, in retaliation for
Greisen’s exercise of speech protected under the First Amendment. Colloquially, this is referred
to as a claim of “First Amendment retaliation against a public employee.”
During the time when Hanken took the actions that Greisen alleges, Hanken was the City
Manager of the City of Scappoose. “[M]unicipalities and other local government units . . . [are]
among those persons to whom § 1983 applies.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
(1978). In addition, municipal government officials also are persons for purposes of § 1983. Id.
at n.55. Hanken does not dispute that he was a person acting under color of state law.
Regarding the issue of whether Hanken violated Greisen’s constitutional right to free
speech, “[t]he First Amendment shields a public employee if he speaks as a citizen on a matter of
public concern. However, when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” Ellins v. City of
Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013) (quotation marks and citations omitted). The
Ninth Circuit follows a sequential five-step inquiry to determine whether a public employer,
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including a municipal government officer, impermissibly retaliated against a public employee for
engaging in protected speech.
First, the plaintiff bears the burden of showing: (1) whether the
plaintiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee; and
(3) whether the plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment action. Next, if the
plaintiff has satisfied the first three steps, the burden shifts to the
government to show: (4) whether the state had an adequate
justification for treating the employee differently from other
members of the general public; and (5) whether the state would
have taken the adverse employment action even absent the
Id. (quotation marks and citations omitted); see also Allen v. Iranon, 283 F.3d 1070, 1076 (9th
Cir. 2002). Hanken did not assert either the “adequate justification” or the “same action”
defense. Thus, only the first three steps are relevant in this case to Defendant’s renewed motion
for judgment as a matter of law.
Hanken raises four arguments in support of his renewed motion. First, Hanken argues
that Greisen did not present sufficient evidence of “protected speech” to support his claim of
First Amendment retaliation, either because Greisen did not establish that his speech was related
to an issue of public concern or because Greisen spoke not as a private citizen but only in his
capacity as a public employee under his official duties. These points concern the first two steps
discussed in Ellins. Second, Hanken argues that Greisen did not establish that his allegedly
protected speech was a substantial or motivating factor in any adverse employment action taken
by Hanken against Greisen. This concerns the third step, also known as “retaliatory motive.”
Third, Hanken argues that Greisen did not prove that Hanken caused the termination of Greisen’s
public employment, which occurred after Hanken had resigned from his official position.
Finally, Hanken argues that he is protected under the “qualified immunity” doctrine. Each
argument is addressed in turn.
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1. Protected speech
Hanken argues that Greisen did not establish at trial either that his speech was related to
an issue of public concern or that Greisen spoke as a private citizen, in contrast to speaking as a
public employee as part of his official duties. If Hanken is correct on either point, then Greisen
would not have shown that he engaged in speech protected under the First Amendment, which is
required for a claim of First Amendment retaliation against a public employee.
a. Matters of public concern
“Speech involves a matter of public concern when it can fairly be considered to relate to
any matter of political, social, or other concern to the community.” Ellins, 710 F.3d at 1057
(quotation marks and citations omitted). “Speech that deals with individual personnel disputes
and grievances that would be of no relevance to the public’s evaluation of the performance of
governmental agencies generally is not of public concern.” Id. (quotation marks and citations
omitted). “‘Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the whole
record.’” Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).
The trial record shows that, among other things, Greisen made statements critical of
Hanken’s general approach to city budgeting and specifically to Hanken’s practice of
withholding payments on vendor invoices until the next fiscal year, including invoices sent to
departments other than the Police Department. These are not statements about individual
personnel disputes or grievances that would be of no relevance to the public’s evaluation of the
performance of governmental agencies and officials generally. Instead, these are statements of
concern about potential systemic financial abuse on a citywide basis. Thus, they are matters of
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b. Speaking as a private citizen, rather than as a public employee
A plaintiff speaks as a public employee when he or she makes statements pursuant to his
or her official duties. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). In contrast, a plaintiff
speaks as a private citizen “‘if the speaker had no official duty to make the questioned
statements, or if the speech was not the product of performing the tasks the employee was paid to
perform.’” Ellins, 710 F.3d at 1058 (quoting Eng v. Cooley, 552 F.3d 1062, 1071
(9th Cir. 2009)). The scope and content of a plaintiff’s job responsibilities is a question of fact.
Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 2008). The “ultimate
constitutional significance of the facts as found” is a question of law. Id. Moreover, Garcetti
requires the undertaking of a “practical inquiry.” Brandon v. Maricopa Cty., 849 F.3d 837, 845
(9th Cir. 2017).
In Dahlia v. Rodriguez, the Ninth Circuit described three factors that are relevant to a
determination of the scope of a plaintiff’s job duties. 735 F.3d 1060, 1074-76 (9th Cir. 2013).
First, “particularly in a highly hierarchical employment setting such as law enforcement,” an
appropriate factor is “whether or not the employee confined his communications to his chain of
command.” Id. at 1074. “When a public employee communicates with individuals or entities
outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.” Id. For
example, in Freitag v. Ayers, the Ninth Circuit held that a correctional officer’s communications
with a state senator and the inspector general about inmate sexual misconduct were not made
pursuant to her official duties and thus constituted speech protected by the First Amendment. 468
F.3d 528, 545-46 (9th Cir. 2006).
Second, the subject matter of the communication may be considered. Dahlia, 735 F.3d
at 1074-75. “When an employee prepares a routine report, pursuant to normal departmental
procedure, about a particular incident or occurrence, the employee’s preparation of that report is
PAGE 17 – OPINION AND ORDER
typically within his job duties.” Id. at 1075. For example, in Freitag, the correctional officer’s
internal reports of inmate sexual misconduct were not constitutionally protected speech. 468 F.3d
at 546. Similarly, in Garcetti, the Supreme Court held that a deputy district attorney’s
memorandum regarding the merits of a case before him was not protected speech because he
routinely prepared such memoranda as part of his job duties. 547 U.S. at 421. “By contrast, if a
public employee raises within the department broad concerns about corruption or systemic
abuse, it is unlikely that such complaints can reasonably be classified as being within the job
duties of an average public employee.” Dahlia, 735 F.3d at 1075.
Third, “when a public employee speaks in direct contravention to his supervisor’s orders,
that speech may often fall outside of the speaker’s professional duties.” Id. at 1075. Under this
scenario, the speech likely is not being made pursuant to the employee’s official duties.
Greisen concedes that the discussions he had regarding the Police Department’s budget—
including the conversations Greisen had with Hanken regarding Ingham’s request to hire
additional police officers and the conversations Greisen had with the City’s Finance
Administrator regarding unpaid and delayed Police Department vendor invoices—all were made
pursuant to Greisen’s job duties as Chief of Police. Thus, these statements are not
constitutionally protected and are not part of Greisen’s claim. They only provide background or
context for the issues at trial, and the jury was so instructed.
Greisen, however, also presented evidence at trial that he made statements critical of
Hanken’s general approach to city budgeting, not limited to the Police Department, and
specifically to Hanken’s practice of withholding payments on vendor invoices until the next
fiscal year, including invoices sent to departments other than the Police Department. For these
statements, the Court applies the three Dahlia factors.
PAGE 18 – OPINION AND ORDER
First, the Court considers whether the statements were made to individuals within
Greisen’s chain of command. The trial record indicates that Greisen raised concerns about
Hanken’s handling of the city budget with City Finance Administrator Herr and with several City
Councilors, including Councilors Ingham and Gedlich. As City Finance Administrator, Herr was
not within Greisen’s chain of command. In addition, although City Councilors are Hanken’s
supervisors, and thus within Hanken’s chain of command, the City Councilors are not within
Greisen’s direct chain of command. The Scappoose City Council, as a body, has the authority to
hire and fire the City Manager, but it has no direct authority over the Chief of Police.
Greisen testified that he spoke to City Councilors Ingham and Gedlich in part as a
concerned private citizen. Hanken presented no evidence that it was among Greisen’s official
duties as Police Chief to expose city-wide budgetary concerns to the City Council. Thus, the first
Dahlia factor suggests that Greisen was speaking as a private citizen when he raised concerns
about Hanken’s budgetary and invoice payment practices with Herr and City Councilors Ingham
and Gedlich. See Freitag, 468 F.3d at 545 (stating that the right to complain to an elected public
official “is guaranteed to any citizen in a democratic society regardless of his status as a public
Regarding the second Dahlia factor, Greisen’s complaints about Hanken’s handling of
the budget for departments other than the Police Department and Hanken’s practice of holding
back vendor invoices for payment until the next fiscal year can be viewed as an expression of
“broad concerns about . . . systemic abuse” made by a private citizen. Dahlia, 735 F.3d at 1074.
Although Greisen’s concerns regarding Hanken’s practice of holding back and delaying payment
on invoices began with Greisen’s questions about unpaid vendor invoices related to Police
Department acquisitions, Greisen’s critical statements later extended to Hanken’s more
PAGE 19 – OPINION AND ORDER
widespread practice of holding back and delaying payment on vendor invoices until the new
fiscal year for other City departments as well. This practice, according to Greisen, was a
violation of sound accounting principles. Greisen questioned whether Hanken had engaged in
serious misconduct in the management of the City’s finances. This fact also distinguishes this
case from the Ninth Circuit’s recent decision in Brandon, 849 F.3d at 845 (“Indeed, if Brandon
alleged any sort of misconduct this would be a different case.”).
Regarding the third Dahlia factor, the record, viewed most favorably to Greisen, shows
that Greisen’s statements were made in direct contravention to Hanken’s orders because Hanken
repeatedly told Greisen not to question Hanken’s budget practices. This includes Hanken’s
practices relating to other departments in the City besides the Police Department.
Thus, all three Dahlia factors support the jury’s conclusion that Greisen acted outside of
the scope of his official duties when he complained about Hanken’s handling of the budget for
departments other than the Police Department and Hanken’s practice of holding back or delaying
payment of vendor invoices until after the new fiscal year. Drawing all reasonable inferences in
favor of Greisen, who prevailed at trial, there was substantial evidence supporting the jury’s
finding that Greisen’s statements at issue were made as a private citizen.
2. Retaliatory motive: substantial or motivating factor
Hanken argues that Greisen failed to present evidence at trial that Hanken was aware of
Greisen’s protected speech. Hanken further argues that Greisen failed to present evidence at trial
required to show retaliatory motive.
In cases alleging First Amendment retaliation, the Ninth Circuit has explained that the
plaintiff must produce evidence that the defendant knew of the plaintiff’s protected speech. “In
order to retaliate against an employee for his speech, an employer must be aware of that speech.”
Allen, 283 F.3d at 1076. In addition, the plaintiff must produce evidence that the plaintiff’s
PAGE 20 – OPINION AND ORDER
constitutionally protected conduct was a motivating factor in the adverse actions taken against
him. Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). In
other words, there must be evidence of a defendant’s retaliatory motive.
A plaintiff may prove retaliatory motive with either direct or circumstantial evidence.
When only circumstantial evidence is relied upon to prove retaliatory motive, however, the
plaintiff must present “at least one of three general types of circumstantial evidence of such
motive.” Allen, 283 F.3d at 1077. According to the Ninth Circuit:
The three types of circumstantial evidence are: (1) proximity in
time between the protected speech and the alleged retaliation;
(2) the employer’s expressed opposition to the speech; and
(3) other evidence that the reasons proffered by the employer for
the adverse employment action were false and pretextual.
Id. (citing Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751–52 (9th Cir. 2001)).
The Court refers to these three types of circumstantial evidence as the “Keyser plus factors.”
Before directly addressing Hanken’s argument, however, the Court notes that termination
of employment is not the only type of adverse employment action that can be actionable. Greisen
argues that Hanken’s initiation of three meritless investigations are each an adverse employment
action. Greisen adds that imposing a suspension without pay also is an adverse employment
action. The Court agrees with Greisen. As the Ninth Circuit explained in Ellins,
In addressing a First Amendment retaliation claim, we also
examine whether the actions taken by the defendants were
reasonably likely to deter [the public employee] from engaging in
protected activity under the First Amendment. The government’s
act of retaliation need not be severe and it need not be of a certain
Ellins, 710 F.3d at 1061 (quotation marks and citations omitted). Being subjected to one or more
meritless investigations is the sort of employment action that is reasonably likely to deter a
public employee from engaging in activity protected under the First Amendment.
PAGE 21 – OPINION AND ORDER
At trial, Greisen presented evidence of the following facts. On May 15, 2002, Hanken
said to Greisen, “I’m mad at you. You stay on your side of City Hall. I don’t want to see you
over here.” Greisen, however, did not stop making his inquiries and statements. In August 2012,
Hanken told Greisen that Greisen had better “quit listening to Councilor Ingham about the
budget.” Hanken added: “Ms. Ingham will be the one that [sic] will ruin your career here in the
City of Scappoose.”
In the spring of 2013, after Greisen expressly asked City Finance Administrator Herr
about the City’s practice of holding back payment of vendor invoices until the next fiscal year,
Herr responded that she was just doing what she had been told to do by Hanken. Then, within a
matter of months after Greisen spoke with Herr, Hanken took his first adverse employment
action against Greisen. On July 17, 2013, Hanken sent Greisen a letter notifying Greisen that an
investigation had been opened relating to Greisen’s February 2013 authorization of the PIT
maneuver. On August 1, 2013, Hanken took his second adverse employment action against
Greisen. On that date, Hanken sent Greisen a letter notifying him that the City will be conducting
a second investigation into Greisen’s conduct, this time related to an allegation that Greisen had
maintained a hostile work environment within the Police Department. Three weeks later, on
August 23, 2013, Hanken sent a letter to Greisen imposing a disciplinary sanction of a two-week
administrative suspension without pay relating to the PIT maneuver. One month later, on
September 30, 2013, Hanken initiated the third investigation into Greisen and sent Greisen a
letter notifying him that the City would be conducting an investigation into Greisen’s conduct
related to allegations that Greisen may have violated the City’s financial policies by using
unauthorized bank accounts.
PAGE 22 – OPINION AND ORDER
When Hanken told Greisen in May 2012 that Hanken was “mad” at Greisen and that
Greisen had better stay on his “side of City Hall,” this is evidence that Hanken was aware of
Greisen’s protected statements and opposed them. The reference to Greisen staying on his “side
of City Hall” reasonably can be understood to refer to Greisen’s comments about City matters
other than those involving only the operation of the Police Department and its budget.
When Hanken told Greisen in August 2012 that Greisen had better “quit listening to
Councilor Ingham about the budget” and that “Ms. Ingham will be the one that [sic] will ruin
your career here in the City of Scappoose,” this is evidence that Hanken was aware that Greisen
and Ingham had been communicating in violation of Hanken’s earlier warning to Greisen and
that Hanken continued to oppose this. It is also evidence that Hanken was threatening to take
adverse employment action against Greisen, action that could “ruin” Greisen’s career.
Notwithstanding Hanken’s orders to Greisen to stop commenting on matters outside of
Police Department business, Greisen did not stop his questioning and making statements about
matters of public concern. In the spring of 2013, Greisen spoke with Herr about the citywide
practice of delaying payments to vendors until the next fiscal year. The actions taken by Hanken
shortly thereafter, between July 17 and September 30, 2013, came sufficiently close in time to
Greisen’s conversation with Herr in the spring of 2013 to constitute sufficient circumstantial
evidence that Hanken must have learned of those communications made in violation of Hanken’s
previous directions and that Hanken continued to disapprove of them. This is sufficient temporal
proximity to satisfy the first Keyser plus factor. The second Keyser plus factor also is shown by
Hanken’s direct statements to Greisen, demonstrating that Hanken disapproved of Greisen
commenting on City financial matters that were not on Greisen’s “side of City Hall,” i.e., that did
not strictly concern Police Department business.
PAGE 23 – OPINION AND ORDER
Finally, Hanken admitted at trial during cross examination that when he provided the
news media with a copy of the photograph of the cash that Greisen had been keeping in his
office, along with Hanken’s related statements, Hanken knew that this was not money that had
just been found or discovered in Greisen’s office. Hanken also admitted that he had known for
some time about the Police Department’s charitable fundraising activities, that the money being
held by the Police Chief had not being going through the City’s budgetary process, and that the
practice of maintaining this money outside of the City’s budgetary process had in fact been
“authorized.” Thus, as Hanken admitted at trial, he knowingly made false statements to the news
media that the money in Greisen’s desk was “unauthorized.” Hanken also admitted during cross
examination that Hanken’s statements to and conduct with the news media violated City policy.
and “wasn’t inappropriate.” Trial Transcript 476. This is evidence that the reasons given for the
adverse employment actions, including the initiation of the third investigation, were false or pretextual and is sufficient to satisfy the third Keyser plus factor.
Even though the Ninth Circuit in Keyser noted that a plaintiff need only show at least one
of the three Keyser plus factors, Greisen at trial presented evidence of all three. Thus, Greisen
presented sufficient evidence to show that Hanken acted with the requisite retaliatory motive.
Hanken argues that Greisen must prove that it was Hanken who took an adverse
employment action against Greisen. Greisen does not dispute this point. Hanken then adds:
The only adverse [ ] employment action Hanken took was issuing a
two week suspension. Plaintiff did not even seek damages related
to the two week suspension. The only adverse employment action
for which plaintiff sought damages was his termination. Hanken
did not terminate plaintiff, he was terminated by subsequent City
Manager named Don Otterman. (Tr. Plt. 137:19-24 & Ex. 59)
Plaintiff presented no evidence indicating that Hanken participated
in the decision to terminate his employment or otherwise
influenced Mr. Otterman’s decision to terminate him.
PAGE 24 – OPINION AND ORDER
ECF 120 at 24 (internal page 17). Hanken continues: “The record contains uncontroverted
evidence that in fact Hanken played no part in the decision to terminate plaintiff.” Id. From this,
Hanken concludes that he “cannot be liable for the plaintiff’s termination because plaintiff did
not present any evidence that Hanken sufficiently influenced Mr. Otterman’s later legitimate,
independent decision to terminate plaintiff.” Id. at 24-25 (internal pages 17-18). In support of
this conclusion, Hanken cites Lakeside-Scott v. Multnomah Cty., 556 F.3d 797 (9th Cir. 2009).
Before directly addressing Hanken’s argument, the Court observes that Hanken is
incorrect when he argues that the only adverse employment action that Hanken took was issuing
a two-week suspension to Greisen. Initiating each of the three investigations against Greisen also
are adverse employment actions. See Ellins, 710 F.3d at 1061 (holding that an adverse
employment action includes all “actions taken by the defendants [that] were reasonably likely to
deter [the public employee] from engaging in protected activity under the First Amendment. The
government’s act of retaliation need not be severe and it need not be of a certain kind.”
(quotation marks and citations omitted)). In addition, as will be discussed below, Hanken
overstates his case when he asserts that “Hanken played no part in the decision to terminate
A person deprives another of a constitutional right “within the meaning of § 1983, if he
does an affirmative act . . . that causes the deprivation of which complaint is made.” Preschooler
II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quotation marks and
citations omitted). “The requisite causal connection may be established when an official sets in
motion a series of acts by others which the actor knows or reasonably should know would cause
others to inflict constitutional harms.” Id. (emphasis added) (quotation marks and citation
PAGE 25 – OPINION AND ORDER
omitted). This standard of causation “closely resembles the standard ‘foreseeability’ formulation
of proximate cause.” Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981).
These principles also apply in a § 1983 case alleging First Amendment retaliation. In
Austin v. Terhune, 367 F.3d 1167 (9th Cir. 2004), the Ninth Circuit held that Austin, a state
prisoner, sufficiently alleged a claim for First Amendment retaliation. Austin claimed that a
guard, Williams, filed a false disciplinary complaint against Austin in retaliation for Austin
reporting inappropriate conduct by Williams. As a result of the false disciplinary complaint filed
by Williams, Austin was placed in administrative segregation for six weeks. The district court
granted summary judgment in favor of Williams. The Ninth Circuit reversed, holding:
a jury could find that the administrative segregation was the
natural and proximate result of [the guard’s] filing a false report
accusing an inmate of violating prison rules . . . [and] could also
infer that [the guard] intended that result, and acted only after
Plaintiff said he planned to report the incident to prison officials.
We conclude that a claim of retaliation for the filing of a First
Amendment-protected grievance was sufficiently, though certainly
not expertly, raised in the district court.
Austin, 367 F.2d at 1171 (emphasis added) (quotation marks omitted).
Further, in McCollum v. Cal. Dep’t. of Corr. & Rehab., 647 F.3d 870 (9th Cir. 2011), the
Ninth Circuit considered a claim alleging First Amendment retaliation brought by McCollum, a
volunteer prison chaplain, against a prison official, Sabrina Johnson. The chaplain alleged that
Johnson retaliated against the chaplain for filing a lawsuit against the prison. Specifically,
McCollum, the chaplain, alleged that Johnson falsely alleged that McCollum misrepresented
himself as a “paid-chaplain” when he was in fact only a volunteer chaplain. This caused an
investigation to be instituted that resulted in McCollum losing access to the prison facility for
seven months. The district court granted summary judgment in favor of Johnson after finding
PAGE 26 – OPINION AND ORDER
that Johnson was not involved in the decision to suspend McCollum’s volunteer chaplain
privileges. Rejecting that analysis, albeit in dicta, the Ninth Circuit explained:
This conclusion is inconsistent with our case law. See Austin v.
Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (a false accusation
may constitute retaliation where deprivation of a benefit “was the
natural and proximate result of” that accusation and one can infer
based on the facts alleged that the accuser “intended that result”).
We may, however, affirm on any ground supported by the record.
O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir.
2007). We affirm because McCollum has failed to meet his burden
to raise a genuine issue of material fact as to retaliatory motive.
McCollum, 647 F.3d at 882.
Thus, to prove causation in a First Amendment retaliation case, a plaintiff need not show
that the defendant personally made the decision that directly resulted in the damage to the
plaintiff. All that a plaintiff need prove to show causation is that the defendant, acting with
retaliatory motive based on the plaintiff’s protected conduct, did something where the natural
and proximate result was to set in motion a series of acts by others that caused harm or injury to
the plaintiff and that the defendant intended to bring about that harm or injury. The facts in
McCollum are analogous to the fact in the present case.
The evidence presented at trial shows that Hanken, acting with retaliatory motive based
on Greisen’s protected conduct, initiated three meritless investigations of Greisen in quick
successive order, gave knowingly false information and misleading photographic evidence to the
news media during an official investigation in violation of City policy, and expressly prohibited
Greisen from presenting to the news media his side of the story. These actions set in motion a
series of acts by others (including by the news media and later by interim City Manager
Otterman) that a reasonable jury could find naturally led to Hanken’s economic and
non-economic damages. Further, based on Hanken’s prior experience with local governments,
see Trial Transcript 397-400, it is a reasonable inference that Hanken was aware that these
PAGE 27 – OPINION AND ORDER
damages to Greisen would be the natural and proximate result of Hanken’s actions and that he
intended these results. As in McCollum, the fact that someone other than Hanken, namely
Otterman, made the decision to terminate Greisen’s employment, does not relieve Hanken of
responsibility for the natural and proximate consequences of his actions, just like the fact that
someone other than Johnson made the decision to suspend McCollum’s volunteer chaplain
Hanken argues that the Ninth Circuit’s decision in Lakeside-Scott demonstrates an
instance of an intervening cause that breaks the chain of proximate causation. In Lakeside-Scott,
a discharged county employee (Scott) sued the county and a supervisor (Brown), alleging
retaliatory discharge after Scott made certain comments about her co-workers and one of her
other supervisors. Scott was directly supervised by Hogue, who reported to Gorton, who reported
to Brown. Brown, in turn, reported to the department director Fuller. Scott complained to Hogue
and Gorton about alleged misuse of the County’s computers by co-workers and managers. Scott
also filed a formal complaint with the Oregon Bureau of Labor and Industries (“BOLI”), alleging
among other things that Brown gave preferential treatment to gays and lesbians in hiring and
promotion. Brown learned about the BOLI complaint shortly thereafter. Lakeside-Scott, 556 F.3d
In an unrelated episode, Fuller ordered Brown to search the work emails of a different
employee, Landis, as part of an investigation of still another employee who allegedly sent
racially discriminatory emails at work. Brown directed another employee (Williams) to perform
the search. As part of this search, Williams discovered a journal written by Scott and sent by
Scott to Landis. After the discovery of Scott’s journal, either Human Resources or Fuller
instructed Brown to look for additional materials from Scott. Id. at 800.
PAGE 28 – OPINION AND ORDER
In the meantime, either someone in Human Resources, or perhaps Williams, informed
Brown about Scott’s journal having been found. Brown read the journal, which included
inappropriate remarks. Brown showed Scott’s journal to Fuller, who placed Scott on
administrative leave. Fuller then directed another employee, Turner, to conduct an internal
inquiry into Scott’s possible violations of County work rules or policies. Brown was not involved
in this investigation. Ultimately, it was discovered by Fuller that Scott misused County property,
conducted personal business on County time, inappropriately accessed emails and other
documents of other employees, and engaged in prohibited workplace harassment. Fuller notified
Scott of these charges. At the conclusion of Turner’s investigation, Turner prepared a report for
Fuller, concluding that the charges had been sustained. Although Scott’s journal was the reason
that Fuller decided to initiate the investigation of Scott, Fuller based her decision to fire Scott on
the evidence that Turner uncovered. Id. at 801.
Scott sued, alleging among other claims retaliatory discharge based on Scott’s filing of a
BOLI complaint and her criticisms of Brown. A jury found in favor of Scott. Id. at 802. The
Ninth Circuit reversed, holding that Scott was discharged after Fuller, the department director,
made an independent decision to terminate Scott’s employment. As explained by the Ninth
Here, it is not clear that Scott relies on Brown’s role in bringing the
journal to Fuller’s attention or her participation in the
administrative leave decision as alone sufficient to support the
jury’s verdict finding Brown liable for Scott’s termination. Even if
we consider those events, however, the evidence negates any
inference that Fuller would not have taken any action against Scott
but for Brown’s retaliatory motivations. The journal surfaced in a
workplace investigation of possible employee misconduct, and
several DCJ employees became aware of its existence
contemporaneously with Brown. Brown was engaged in activities
typical and appropriate for her position when she became aware of
the journal. The journal itself was accidentally discovered during
PAGE 29 – OPINION AND ORDER
an investigation of another employee’s conduct, and Scott did not
allege that Brown targeted her for investigation or selectively
reported her misconduct. Brown was at most a part of a process
that included several other employees who were focused on
disciplining violations of workplace rules and policies. Given the
numerous potential rules violations revealed in the journal and the
actions taken by the human resources department, it is
unreasonable to conclude that Fuller—who had already initiated
the inquiry into another employee’s misuse of emails—would not
have been informed of or reacted to the journal but for Brown’s
animus against Scott.
Given the evidence that Fuller made an independent, principled
decision for her own reasons to investigate and eventually
terminate Scott, there was by definition no “constitutional injury.”
Id. at 805 (footnotes omitted). The Ninth Circuit held that “the neutrality of the decisionmaking
process eliminated any ‘causal’ link to Brown’s bias,” id. at 806, and that “the record of Fuller’s
independent actions and judgments compels the conclusion that she was not influenced by any
retaliatory motive on Brown’s part.” Id. at 807.
Hanken’s reliance on Lakeside-Scott is not persuasive because the facts in that case are
significantly distinguishable from the facts in the present case. Otterman testified that he made
the decision to terminate Greisen under the “no cause” provision in Greisen’s contract only after
Otterman “reviewed the three reports that had been done—the report regarding the pursuit, the
financial report, and the hostile work environment report—and after I reviewed those reports, I
felt that it was the best for the City if he [Greisen] was to leave.” Trial Transcript 291. Otterman,
however, did not testify that he had made an independent decision that Greisen had engaged in
misconduct sufficient to justify termination. This distinguishes the present case from LakesideScott, where Fuller made an independent decision, not influenced by Brown’s allegedly
retaliatory motive, that Scott had engaged in substantial wrongful conduct that warranted
termination of her employment, including misusing County property, conducting personal
PAGE 30 – OPINION AND ORDER
business on County time, inappropriately accessing emails and other documents of other
employees, and engaging in prohibited workplace harassment
Otterman made no such finding about Greisen. As Otterman testified at trial, “There were
several articles about [Greisen] and about what was going on in the City. The city manager had
been fired. The police chief was on administrative leave. And that causes commotion or turmoil
in the organization and needs to be resolved as soon as possible.” Trial Transcript 303-304. Thus,
Otterman terminated Greisen’s contract based on the “commotion or turmoil” that Hanken,
acting with retaliatory motive, had set in motion.
In Lakeside-Scott, Fuller, who had no retaliatory motive, came across information that
resulted in Fuller’s independent decision to fire Scott for reasons that had nothing to do with
anything done by Brown, who arguably did have a retaliatory motive. In contrast, Otterman, who
had no retaliatory motive, based his decision to terminate Greisen’s employment solely on the
existence of a controversy created by Hanken. Thus, Lakeside-Scott is factually distinguishable,
and there is no intervening and independent cause that breaks the chain of causation.
Moreover, any other conclusion would be inconsistent with the direction from the Ninth
Circuit in Austin and McCollum that a claim of First Amendment retaliation may include
recovery for damages that are “the natural and proximate result of” actions taken by a defendant
with a retaliatory motive who intended to cause those damages. A reasonable jury could
conclude from the evidence presented at trial that Otterman’s termination of Greisen’s
employment based on the “commotion or turmoil” that Hanken had set in motion was the natural
and proximate result of Hanken’s actions. See also Gini v. Las Vegas Metro. Police Dep’t., 40
F.3d 1041 (9th Cir. 1994) (“There is no question here that neither the LVMPD nor Mahony was
Gini's employer. Neither terminated her. However, we have recognized that ‘[t]he requisite
PAGE 31 – OPINION AND ORDER
causal connection can be established not only by some kind of direct personal participation in the
deprivation but also by setting in motion a series of acts by others which the actor knows or
reasonably should know would cause others to inflict the constitutional injury.’”) (citations
In addition, Hanken raises an entirely new argument in his reply brief, which he
presented neither at trial nor in his opening post-trial memorandum. Hanken asserts that
“[s]peech in response to speech is not an adverse employment action.” ECF 135 at 28 (internal
page 21). Hanken makes a similar point in his post-reply supplemental memorandum, which the
Court allowed Hanken to file after allowing Greisen to file a supplemental memorandum. In
Hanken’s supplemental memorandum, he cites Mulligan v. Nichols, 835 F.3d 983, 990 (9th Cir.
2016), for the proposition, according to Hanken, that “speech in response to speech cannot
support a First Amendment retaliation claim.” ECF 140 at 7-8 n.4. In Mulligan, however, the
Ninth Circuit simply observed that “plaintiffs alleging government retaliation that takes the form
of speech [must] meet a high threshold.” 835 F.3d at 990. In the present case, the challenged
adverse employment actions taken by Hanken involve more than just speech, although Hanken’s
knowingly false and misleading statements to the news media about Greisen contributed to
Hanken’s economic and non-economic harm. The adverse employment actions taken by Hanken
challenged by Greisen include initiating three meritless investigations against Greisen. This is
more than just speech. For all of the reasons stated above, Greisen has presented sufficient
evidence of causation to sustain the jury’s verdict.
4. Qualified immunity
“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.” Pearson v.
PAGE 32 – OPINION AND ORDER
Callahan, 555 U.S. 223, 231 (2009). The doctrine protects 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.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). “The privilege is an immunity from suit rather than a mere defense to liability; . . . it
is effectively lost if a case is erroneously permitted to go to trial.” Saucier v. Katz, 533 U.S. 194,
200-01 (2001) (quotation marks omitted) (emphasis in original). For this reason, the Supreme
Court has “stressed the importance of resolving immunity questions at the earliest possible stage
in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). This Court has done so.
On December 29, 2015, the Court denied Hanken’s motion for summary judgment based
on qualified immunity. ECF 42 at 12-14. As previously discussed by the Court at summary
judgment, the Supreme Court in Saucier outlined a two-step analysis for determining the
applicability of the qualified immunity doctrine. 533 U.S. at 200. The first step is to determine
“whether a constitutional right would have been violated on the facts alleged.” Id. The second
step is to determine “whether the right was clearly established.” Id. When considering whether
qualified immunity applies, the court must resolve all factual disputes in favor of the party
asserting the injury. Ellins, 710 F.3d at 1064.
a. Step one
At trial, Greisen presented substantial evidence that would permit a reasonable jury to
conclude that he spoke as a private citizen on “a matter of public concern” and that his
“protected speech was a substantial or motivating factor in the adverse employment action.”
Ellins. 710 F.3d at 1056 (quotation marks omitted). These points have already been discussed in
connection with Hanken’s first and second arguments in support of his renewed motion for
judgment as a matter of law. Thus, Greisen has satisfied step one of the qualified immunity
PAGE 33 – OPINION AND ORDER
b. Step two
Regarding step two, “‘[a] Government official’s conduct violates clearly established law
when, at the time of the challenged conduct, the contours of a right are sufficiently clear that
every reasonable official would have understood that what he is doing violates that right.’” Hunt
v. Cty. of Orange, 672 F.3d 606, 615 (9th Cir. 2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011)). “The ‘clearly established’ requirement ‘operates to ensure that before they are
subject to suit, [government officials] are on notice their conduct is unlawful.’” Eng, 552 F.3d
at 1075 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)) (quotation marks omitted).
The First Amendment right of public employees to be free from retaliation for
commenting on matters of public concern outside of their official duties was well established
by 2012. See Ellins, 710 F.3d at 1065 (stating that the right was established in 1968 with the
Supreme Court’s opinion in Pickering v. Board of Education).
Greisen’s First Amendment right to be free from retaliation for constitutionally protected
speech was clearly established at the time of the alleged violation. Taking the facts in the light
most favorable to the Plaintiff, a reasonable jury could have concluded that Hanken violated
Greisen’s clearly established constitutional right by taking action against Greisen in retaliation
for Greisen’s constitutionally protected speech. Accordingly, the Court denies Hanken’s renewed
motion for judgment as a matter of law.
B. Motion for New Trial or Remittitur
Hanken also raises four arguments in support of his motion for new trial or remittitur.
First, Hanken argues that the jury’s award of both economic and non-economic damages was
excessive. Second, Hanken argues that the weight of the evidence establishes that Greisen did
not engage in protected speech. Third, Hanken argues that three of the Court’s evidentiary
PAGE 34 – OPINION AND ORDER
rulings were erroneous and substantially prejudiced him. Finally, Hanken argues that the Court’s
Jury Instruction No. 17 was erroneous.
a. Economic damages
After the City of Scappoose terminated his employment in May 2014, Greisen
unsuccessfully applied for more than 200 positions related to law enforcement across the
country. Trial Transcript 108; Trial Exhibit 61. Greisen was approximately 50 years old at the
trial his employment as Police Chief was terminated, and he testified that he “wasn’t ready to
leave Scappoose at that time. I wasn’t ready to retire or anything,” and that he was “going to
work another 15 years easily.” Trial Transcript 112-13. At trial, Greisen called the City Manager
for the City of Sutherlin, Oregon, Garold Gillham. He also was a former City Manager for the
City of Scappoose and is a member of the Oregon City/County Managers Association. Gillham
testified that before a city manager would consider hiring someone to be a chief of police or a
deputy chief, a background search would be conducted. According to Gillham, based on a
Google search of Greisen’s name, he is “unhirable.” Gillham added, “everybody watches the
chief of police, even more so than the city manager, and I -- I could not move to bring him on
board.” Id. at 232-33, 240-41.
Based on this foundation, Greisen called an expert witness on economic damages, Ronald
Greisen. Although this expert witness was Plaintiff’s brother, this witness was a certified public
accountant, possessed a financial forensic certification from the American Institute of CPAs, and
previously assisted clients regarding damages in both court cases and arbitrations. Id. at 254.
Plaintiff’s expert witness calculated Plaintiff’s economic damages both up through trial and
continuing into the future for seven years. He reduced Plaintiff’s current economic damages by
the amount that Plaintiff had earned working at other jobs since May 2014, and he discounted
PAGE 35 – OPINION AND ORDER
Plaintiff’s estimated future lost income to present value. Id. at 255-59. Although Hanken crossexamined Greisen’s expert witness, Hanken did not offer his own expert witness or present any
alternative calculations of economic damages. The jury’s conclusion regarding Greisen’s
economic damages is not contrary to the clear weight of the evidence, grossly excessive or
monstrous, or based only on speculation or guesswork. It is affirmed.
Hanken also challenges the jury’s award of $3,000,000 in non-economic damages. At
trial, Greisen presented ample evidence, both through his own testimony and with testimony
from his wife, concerning the emotional damage that Greisen suffered as a result of Hanken’s
actions. Hanken’s actions included instigating the three meritless investigations, giving an
explicit order to Greisen (three times) that he not speak with anyone other than his family and his
legal counsel about the underlying facts, and making the admittedly inappropriate and contraryto-City-policy communications the news media, including providing a copy of the photographic
cash spread relating to the third investigation. Moreover, Hanken offered no alternative damage
figure for the jury to consider if it were to reach the question of damages.
Hanken also argues that “Plaintiff presented no evidence from a psychologist, psychiatrist
or other mental health professional regarding his condition.” ECF 120 at 29 (internal page 22).
That is true, but Hanken provides no legal authority that any such testimony is required before a
jury may award non-economic damages for emotional distress—and the Court is aware of no
Hanken also offers other cases for comparison purposes in which juries awarded much
smaller amounts for emotional distress damages. In response, Greisen cites Harper v. City of Los
Angeles, 533 F.3d 1010 (9th Cir. 2008), in which the Ninth Circuit affirmed non-economic
PAGE 36 – OPINION AND ORDER
compensatory damage awards of $5,000,001 to each of the three former police officer plaintiffs
for their § 1983 claims against the City. As the Ninth Circuit observed in that case,
Compensable injuries under § 1983 include “impairment of
reputation, personal humiliation, and mental anguish and
suffering.” Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,
307 (1986); see also Johnson v. Hale, 13 F.3d 1351, 1353 (9th Cir.
1994) (discussing compensatory damages under 42 U.S.C. § 1982).
The testimony of the plaintiff alone can substantiate a jury’s award
of emotional distress damages. See Zhang [v. Am. Gen. Seafoods,
Inc.], 339 F.3d [1020,] at 1040 (9th Cir. 2003); see also Passantino
v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 513
(9th Cir. 2000).
Harper, 533 F.3d at 1029. The facts of the cases cited by Hanken as well as the facts in Harper
cited by Greisen are sufficiently distinct from the facts in the present case to offer relatively little
guidance to the Court. Nevertheless, based on the principles stated by the Ninth Circuit in
Harper and other cases, the Court concludes that the evidence presented at trial is sufficient to
sustain the jury’s non-economic damage award of $3,000,000.
Finally, Hanken argues:
Additionally, plaintiff’s counsel inappropriately urged the jury to
“send a message” in rebuttal resulting in what amounted to an
award of punitive damages against defendant disguised as an
award for emotional distress. (Tr. Plt. Closing 567:17-568:9)
Punitive damages were not recoverable against the individual
defendant in this case. Dkt. 42 at 14 (“Greisen…conceded that his
claim for punitive damages should be stricken.”)
ECF 120 at 28 (internal page 21). Hanken is correct. The Court previously struck punitive
damages, and it was improper for Greisen’s counsel to argue to the jury that it should “send a
message” in this case.
Hanken, however, fails to note two points. First, Hanken’s counsel did not object to the
statement of Greisen’s counsel at closing argument. More significantly, the Court sua sponte
issued a curative instruction. Plaintiff’s counsel made his inappropriate “send a message”
PAGE 37 – OPINION AND ORDER
comment in the closing seconds of rebuttal argument. Immediately thereafter, the Court told the
THE COURT: All right. Thank you, Mr. Ostrander. Although, I do
want to clarify something for the jury. There’s some talk about
sending a message. I want to make sure you understand, as I say in
the instructions, because that can mean different things to different
people. In this civil case you may—if you decide that there’s
liability and if you decide to award damages, you may only award
damages to compensate for injuries or for damages or for loss
consistent with the instructions that I’ve given you. I just want to
make sure that’s clear.
Trial Transcript 568. Hanken’s counsel did not ask for any further curative instruction. The
jury’s conclusion regarding Greisen’s non-economic damages is not contrary to the clear weight
of the evidence, grossly excessive or monstrous, or based only on speculation or guesswork. It is
2. Weight of the evidence regarding protected speech
Hanken argues that the weight of the evidence establishes that Greisen did not engage in
protected speech. ECF 120 at 37-38 (internal pages 30-31). The Court has already sufficiently
discussed this evidence at Section A(1), supra. The Court concludes that the weight of the
evidence does not warrant a new trial.
3. Evidentiary rulings
Defendant challenges three of the Court’s evidentiary rulings at trial. They are discussed
a. Police department budget
Both Greisen and Hanken agree that Greisen’s discussions with City Councilors and
employees regarding the Police Department budget, including discussions concerning the
delayed payments made by the City on vendor invoices for purchases for the Police Department,
were not protected under the First Amendment. Greisen made those comments as part of his
PAGE 38 – OPINION AND ORDER
official duties. Nevertheless, the Court allowed Greisen to testify about those discussions and the
Court received exhibits concerning those issues, over Hanken’s timely objection, to provide the
jury with background and context to understand the issues and how Greisen came to learn about
the City’s widespread practice in other departments of delaying payment on vendor invoices.
Determining what is and what is not protected speech is
complicated. The court’s decision to admit speech which it had
already ruled could not form the basis of the plaintiff’s claim
substantially prejudiced Hanken because it distracted the jury from
a key, threshold issue in this case.
ECF 120 at 39 (internal page 32).
Hanken’s argument is without merit. Before trial began, the Court denied Hanken’s
eighth motion in limine (ECF 60 at 10-11) to exclude testimony relating to the Police
Department’s budget. The Court stated:
The Court previously has ruled that Plaintiff’s statements made
concerning the Police Department budget were made in his role as
Police Chief and are not constitutionally protected. The jury will
be so instructed. The evidence relating to the Police Department
budget, however, including Plaintiff’s statements about that
budget, provide relevant background showing how Plaintiff came
to learn about other budgetary issues involving Defendant that
went beyond merely the Police Department budget.
ECF 92 at 7. Hanken did not request a limiting instruction at the time the evidence was received.
Instead, this instruction was given at the close of the case.
Immediately before closing arguments, the Court instructed the jury both orally and in
writing as follows:
When the Plaintiff, who was the Chief of Police, spoke about his
concerns over the Police Department’s budget and finance issues,
he was not speaking as a citizen; instead, those communications
were made pursuant to his official duties. Those communications
are not constitutionally protected free speech and may not serve as
the basis for finding any liability by the Defendant. Those
PAGE 39 – OPINION AND ORDER
statements were received in evidence only for the limited purpose
of providing background, and only to the extent that you may find
them to be helpful.
ECF 105 at 14-15 (Jury Instruction No. 16); Trial Transcript 524-25. Jurors are presumed follow
the Court’s instructions. Richardson v. Marsh, 481 U.S. 200, 206 (1987).
Further, Plaintiff’s counsel, in closing argument, reinforced this point, telling the jury:
Now, be clear, Exhibit—or Instruction 16 states that, you know,
questions about police budget, that portion of the budget, police
budget, are not protected, and we are not claiming that they are.
We showed you the evidence about the late payments for the over
four months payments for ammunition and the late—the problems
with batteries and the vendor material flow just so you would have
background and understand how this issue came up.
But, in contrast, questions to other departments about are you
not—are you—you know, about late payments to other
departments—the water, the sewer—that’s not the police budget.
Questions about other departments is not part of his job as police
chief. And, to that point, the evidence before you is that Doug
Greisen also talked to actual other department heads. It was Steve
Wabschall in Sewer and Terry Andrews in Public Works about
The overall budget, not within his job duties—airport, parks, pools.
Questions about audits are not within his job duties. Questions
about other department’s late payments are not in his job duties.
Questions about—more general questions about, you know, “What
is Hanken’s sudden increased protectiveness and what’s going
on?” That’s not—
Trial Transcript 531-33. There was no error and no substantial prejudice to Hanken in receiving
b. Mr. Bickmore
Hanken’s ninth motion in limine sought to exclude evidence relating to Mr. Bickmore,
including his mugshots. ECF 60 at 11-12. Mr. Bickmore was the suspect in the hit-and-run
PAGE 40 – OPINION AND ORDER
accident that was the subject of the PIT maneuver at issue in the first internal investigation of
Greisen initiated by Hanken. The Court denied the motion in limine, explaining “This evidence
provides relevant background concerning the PIT maneuver incident.” ECF 92 at 7. The
evidence was received, including mug shots taken of Bickmore. Hanken argues that “allowing
the plaintiff to introduce this irrelevant, inflammatory evidence substantially prejudiced Hanken,
a City Manager with absolutely no expertise in PIT maneuvers, because it distracted the jury
from relevant issues and implied that they should find the investigation was retaliatory and that
plaintiff was justified in violating police department policy because he was protecting the public
from a person who looks ‘scary’ in a still photograph.” ECF 120 at 40 (internal page 33).
The photographs of Mr. Bickmore were received in evidence as Trial Exhibits 27-30,
after sufficient foundation testimony was provided that “they represent the person that [Greisen]
stopped on February 4, 2013.” Trial Transcript 83. Greisen explains the relevance of this
evidence as follows:
Plaintiff presented evidence that Defendant’s investigation of the
Bickmore arrest, and the subsequent investigation, was retaliatory.
Part of that evidence consisted of the facts demonstrating that
neither Defendant, nor the investigator he hired (Mr. Stoelk),
considered the circumstances of the arrest, including Bickmore’s
“deranged” demeanor. Tr. 472:10-13 (Hanken); Tr. 334:15-17,
336:5-22 (Stoelk). Plaintiff and Officers Miltich and Oxenrider all
observed Bickmore in person. They all concluded that he was
dangerous to the community and that a PIT maneuver was
necessary and appropriate to stop him. Tr. 206:3-9, 207:1-11
(Miltich); Tr. 80:17-81:4 (Plaintiff); Tr. 503:14-20, 504:16-505:11
(Oxenrider). Each of these witnesses considered Bickmore’s
deranged demeanor in making their decision that the arrest of
Bickmore required the use of potentially deadly force. It was
established that the Bickmore photographs, Exhibits 27 through 30,
accurately represented the person Plaintiff stopped on the night of
February 4, 2013. Tr. 83:3-5. Defendant ignored the circumstances
of this arrest and pretextually punished Plaintiff for the PIT
maneuver he authorized that night. The Jury was entitled to
understand the threat that Defendant willfully ignored.
PAGE 41 – OPINION AND ORDER
ECF 128 at 53 (internal page 48). The Court agrees with Greisen. There was no error and no
substantial prejudice to Hanken in receiving this evidence.
c. News media reports
Hanken argues that it was prejudicial error for the Court to receive news media reports
discussing Greisen, including the newspaper article the contained the photograph of the “cash
spread” (Trial Exhibit 51) and the KOIN 6 television news report (Trial Exhibit 50). ECF 120
at 40-42 (internal pages 33-35). Hanken also makes a new argument, not raised at trial. Hanken
correctly observes that the Court previously dismissed Greisen’s defamation and false light
claims. ECF 42 at 14-20. Hanken then adds: “By allowing plaintiff to impose liability on Hanken
for exercising his own rights under the First Amendment, the court allowed plaintiff to use the
Court to retaliate against Hanken. See generally New York Times Co. v. Sullivan, 376 U.S. 254
(1964) (involving defamation claim by a public figure); Time, Inc. v. Pape, 401 U.S. 279 (1971)
(involving defamation claim by a police chief). This substantially prejudiced defendant.”
ECF 120 at 40-41 (internal pages 33-34) (emphasis in original). Among other responses, Greisen
argues that Hanken’s official duties as City Manager included communicating with news media
regarding the City and thus would not constitute speech protected under the First Amendment for
§ 1983 retaliation purposes.
In addition, the items of evidence about which Hanken complains are relevant to
Greisen’s damages and were received with limiting instructions. As the Ninth Circuit observed in
Harper, “[c]ompensable injuries under § 1983 include ‘impairment of reputation, personal
humiliation, and mental anguish and suffering.’” Harper, 533 F.3d at 1029 (quoting Stachura,
477 U.S. at 307).
PAGE 42 – OPINION AND ORDER
When the Court received Trial Exhibit 51, the Court instructed the jury that it was
receiving that evidence for the limited purpose of providing context for Greisen’s testimony
about how it made him feel. The Court instructed the jury:
THE COURT: Well, this is a copy of a newspaper article. You'll
see it in a few moments. We all know times the newspaper stories
don’t get all their facts right. So I’m not letting this in evidence for
the truth of anything that’s asserted. You may not conclude, from
anything that you read in here, ah, that’s evidence of that thing
However, there’s not any – there’s evidence that this article was
published in the paper. We have now heard evidence that
Mr. Greisen read it and saw it and to the extent that it had an effect
on him and what that effect was and how it made him feel when he
read about this. That is a legitimate purpose, and so I’m receiving
this evidence for that purpose.
Trial Transcript 98. Greisen then told the jury how reading this and seeing the photographic
money spread made him feel. Id. at 99.
During the direct examination of Plaintiff’s wife, Mrs. Greisen, the Court allowed the
jury to see the television news story contained in Trial Exhibit 50, which related primarily to the
second investigation initiated by Hanken. Trial Transcript 177. Plaintiff’s wife described the
reaction of her husband when they watched this story together on television. Id. at 177-78.
Hanken did not request a limiting instruction regarding this evidence. Plaintiff’s wife also
described Plaintiff’s reaction when the newspaper story (Trial Exhibit 51) came out. Trial
Finally, regarding the “cash spread” depicted in the photograph contained in Trial
Exhibit 51, Hanken argues that “the photograph of the money—was true.” ECF 120 at 28
(internal page 21); ECF 120 at 41 (internal page 34). Hanken cites to the following testimony
from the cross examination of Greisen:
PAGE 43 – OPINION AND ORDER
So to the extent there's a photo of cash from a desk, that is
an accurate photo, right, that there was cash in your desk?
Trial Transcript 152. This argument, however, glosses over the fact that the way in which the
money was spread on the desk and then photographed makes it appear in Trial Exhibit 51 as if it
came from a “drug bust,” which was confirmed both by Lt. Miller and by Hanken. Trial
Transcript 392 (Miller); Trial Transcript 492 (Hanken). As Hanken admitted on cross
examination, what he did was contrary to City policy and “wasn’t appropriate.” Trial
Transcript 467, 474-76. There was no error and no substantial prejudice to Hanken in receiving
4. Jury Instruction No. 17
Hanken argues that Jury Instruction No. 17 was an incorrect statement of the law.
ECF 120 at 42-43 (internal pages 35-36). That instruction reads in full as follows:
Instruction No. 17: Plaintiff’s Claim for Damages
It is the duty of the Court to instruct you about the measure of
damages. By instructing you on damages, the Court does not mean
to suggest for which party your verdict should be rendered.
If you find for the Plaintiff, you must determine the Plaintiff’s
damages. The Plaintiff has the burden of proving damages by a
preponderance of the evidence. Damages means the amount of
money that will reasonably and fairly compensate the Plaintiff for
any injury you find was caused by the Defendant.
You can award money only for those damages that arise naturally
and necessarily from the violation of law that the Plaintiff has
It is for you to determine what damages, if any, have been proved.
Your award must be based upon evidence and not upon
speculation, guesswork, or conjecture.
The basic purpose of § 1983 damages is to compensate persons for
injuries that are caused by the deprivation of constitutional rights.
Compensatory damages may include not only out-of-pocket loss
PAGE 44 – OPINION AND ORDER
and other monetary harms (which are generally referred to as
“economic” loss or damages), but also such injuries as impairment
of reputation, personal humiliation, and mental anguish and
suffering (which are generally referred to as “non economic” loss
In determining the measure of damages, you should consider:
The loss of enjoyment of life experienced and which with
reasonable probability will be experienced in the future and the
mental or emotional pain and suffering experienced and that with
reasonable probability will be experienced in the future (non
economic loss, present and future);
The reasonable value of wages, earnings, employment, and
employment opportunities lost up to the present time (present
economic loss); and
The reasonable value of wages, earnings, employment, and
employment opportunities that with reasonable probability will be
lost in the future (future economic loss).
If you find that the Defendant wrongfully retaliated against the
Plaintiff in violation of the Plaintiff’s constitutional rights, and if
you also find that it was reasonably foreseeable that such wrongful
retaliatory conduct, if any, by the Defendant would render the
Plaintiff unable to maintain either his position or his salary (either
at the City of Scappoose or at another employer), then you may
award the Plaintiff any non-speculative, foreseeable economic
damages caused by the Defendant’s wrongful retaliatory conduct.
Let me say a little more about the concept of “causation” or
“cause” in the context of damages. The Plaintiff must prove that
the claimed unlawful conduct “caused” his damages. The Plaintiff
bears the burden to show that “but for” Defendant’s wrongfully
motivated retaliatory conduct, the damages he claims would not
have occurred. You may not award damages to the Plaintiff that
are not caused by Defendant’s wrongfully motivated retaliatory
conduct, if any.
ECF 105 at 15-17.
Hanken’s first objection to this jury instruction is based on the Ninth Circuit’s decision in
Lakeside-Scott. ECF 120 at 42 (internal page 35). For the reasons previously discussed,
PAGE 45 – OPINION AND ORDER
Lakeside-Scott is factually distinguishable, and the Court’s instruction is consistent with the
Ninth Circuit cases of Austin and McCollum. See discussion at Section A(3), supra.
Hanken’s second objection is that the Court’s instruction “does not accurately capture the
state of the law with respect to damages arising in employment claims alleging retaliation in
violation of the First Amendment” and “does not properly recite the law with respect to assessing
damages for various other types of section 1983 claims, which, like First Amendment retaliation
claims derive from tort principles.” ECF 120 at 43 (internal page 36). Hanken does not develop
this argument in his memorandum and does not address it at all in his reply brief. Nevertheless,
the Court has reviewed its Jury Instruction No. 17 and finds it consistent with the law of this
circuit. See Harper, Austin, and McCollum, discussed supra. In addition, in this instruction the
Court directed the jury that it may only award damages caused by Hanken that were reasonably
Defendant Hanken’s Renewed Motion for Judgment as a Matter of Law and Alternative
Motions for New Trial and Remittitur (ECF 120) are denied.
IT IS SO ORDERED.
DATED this 12th day of May, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 46 – OPINION AND ORDER
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