Banks et al v. Berge et al

Filing 69

OPINION AND ORDER: Officer Berge's Motion for Summary Judgment 46 is GRANTED with respect to plaintiffs' claims 42 U.S.C. § 2000d (Title VI) and 42 U.S.C. § 3789d (renumbered as 34 U.S.C. § 10228) claims and DENIE D with respect to plaintiffs' Fourth Amendment, Equal Protection Clause, and 42 U.S.C. § 1981 claims. The City's Motion for Summary Judgment 48 is GRANTED with respect to plaintiffs' Fourth Amendment and racial discrimination claims and DENIED with respect to plaintiffs' state law claims. Signed on 3/18/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

CLAUDIUS and DAYNELLE BANKS,

Case No. 3:16-cv-02129-M
OPINION AND ORDER

Plaintiffs,

v.
OFFICER CHRISTIAN BERGE and THE
CITY OF PORTLAND,
Defendants.

AIKEN, Judge:
Plaintiffs Claudius Banks and Daynelle Banks filed this action against
defendants Officer Christian Berge ("Officer Berge") and the City of Portland ("the
City"), asserting that defendants violated their constitutional rights and state law in
connection with a traffic stop. On April 17, 2017, I denied defendants' motion to
dismiss, but granted their motion to order plaintiffs to make the allegations related
to their federal law claims more definite and certain. Banhs u. Berge, 2017 WL
1428709 (D. Or. Apr. 17, 2017). On August 15, 2017, plaintiffs filed their Third
Amended Complaint (doc. 28) alleging Fourth Amendment and racial discrimination

Page 1 - OPINION AND ORDER

claims against all defendants and state law claims against the City. Officer Berge
and the City have separately moved for summary judgment on all of the claims. (docs.
46, 48). For the reasons set forth below, Officer Berge's motion is GRANTED in part
and DENIED in part and the City's motion is GRANTED in part and DENIED in
part.

BACI(GROUND
At approximately 2:00 am on March 21, 2015, plaintiffs, who are African
American, were driving down NE Ainsworth Street in Portland, Oregon, on their way
to Popeye's when Officer Berge drove up behind them and activated his overhead
lights to initiate a traffic stop. Plaintiffs pulled into a nearby Popeye's parking lot.
Officer Berge then approached the car and asked them to exit it, and plaintiffs
complied. At some point during the stop, while plaintiffs were outside the car, Officer
Berge broke the key off in the ignition, leaving the car inoperable. Officer Berge then
left the scene, without issuing any citations. The stop lasted no longer than ten
minutes. Because they could not drive the car, plaintiffs took a taxi home and had
the car towed the next day.
The parties dispute what occurred immediately before the stop and exactly
what happened during the stop itself.
According to Officer Berge, he was driving behind plaintiffs on March 21, 2015,
when he observed their El Camino "twice drift entirely into the oncoming westbound
lane of traffic and then back into the eastbound lane." Berge Deel. "if 6 (doc. 47). Those
observations led him to believe that the driver was impaired and had violated two

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traffic laws: (1) failure to drive within lane and (2) unlawful or unsignaled change of
lane. Id. at

,r 7.

At that time, he could see that the car had two occupants, but could

not make out their race or gender. Id. at

,r

8. When Officer Berge approached the

driver's side window, both plaintiffs appeared visibly intoxicated with "bloodshot and
watery eyes" and "slurred" speech, and he could smell alcohol. Id. at ,r 9. Because he
believed that neither plaintiff could drive lawfully, Officer Berge asked them to exit
their car. Id. at

ii 10. Plaintiffs complied and gave Officer Berge the keys, and he

entered the car to roll up the windows and secure the car. Id. While securing the
car, Officer Berge accidentally broke the car key. Id. Officer Berge asserts that he
did not search the car. Id.
Plaintiffs dispute many of the key details of Officer Berge's account. According
to plaintiffs, Claudius Banks had returned from a long day of work when he and
Daynelle Banks headed out on the drive. Claudius Banks Decl.,r 4 (doc. 63). While
driving, Claudius Banks did not drift into oncoming traffic. Id. at ,r 6; Daynelle Banks
Deel. ,r 5, Jul. 23, 2018 (doc. 62). Neither plaintiff was intoxicated when Officer Berge
stopped them and they did not smell of alcohol. Claudius Banks Deel.
Banks Deel.

,r

ii 5; Daynelle

4, Jul. 23, 2018. In fact, plaintiffs both stated that they had not

consumed alcohol "in the twelve hours prior to the incident." Claudius Banks Deel.
7; Daynelle Banks Deel.

,r

,r

6, Jul. 23, 2018. Officer Berge did not ask if Claudius

Banks had been drinking or otherwise accuse him of intoxication or violating traffic
laws. Claudius Banks Deel.

,r

12. Instead, Officer Berge exited his vehicle and

commanded, "Get your black ass out of the car." Id. at ii 8; Daynelle Banks Deel.

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,r 7,

Jul. 23, 2018.

After plaintiffs complied, Officer Berge searched the vehicle

"thoroughly, including the inside of the glove box." Claudius Banks Deel.

,r 9. Officer

Berge then "jerked and twisted the key at least three times until it broke off in the
ignition" and exited the car. Id. at

ii 10. Officer Berge left the scene without

conducting field sobriety or breathalyzer tests on plaintiffs. Id. at

ii 12.

Plaintiffs filed a complaint against Officer Berge with the Independent Police
Review ("IPR") division of the City Auditor's office the following month. Daynelle
Banks Deel. Ex. A at 6, Feb. 21, 2017 (doc. 16). In that complaint, plaintiffs alleged
that Officer Berge engaged in racial profiling when he initiated the traffic stop, that
the stop was unjustified, that Officer Berge's entry and search of the car was
unlawful, and that Officer Berge's communication with plaintiffs was inadequate and
rude. Id. After an investigation, the IPR decided to refer the complaint to the
Portland Police Bureau's Internal Affairs ("IA") unit, which completed its
investigation in November 2015. Id.; Daynelle Banks Deel. Ex. C, Feb. 21, 2017.
Daynelle Banks also filed a "General Liability Claim Against the City of Portland"
with the City's Risk lVIanagement division on May 22, 2015 to recover the cost of the
taxi ride and towing from the City. Daynelle Banks Deel. Ex. A, Feb. 21, 2017.

LEGAL STANDARD
Summary judgment is appropriate if "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter oflaw." Feel. R. Civ.
P. 56(a). The materiality of a fact is determined by the substantive law on the
relevant issue, while the authenticity of a dispute is determined by inquiring whether

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a reasonable jury could return a verdict for the nonmoving party in light of the
evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T. W.

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The moving party has the burden of establishing the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party shows the absence of a genuine issue of material fact, the nonmoving party
must go beyond the pleadings and identify facts which show a genuine issue for trial.

Celotex, 477 U.S. at 324; Fed. R. Civ. P. 56(e). "Summary judgment is inappropriate
if reasonable jurors, drawing all inferences in favor of the nonmoving party, could
return a verdict in the nomnoving party's favor." Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1207 (9th Cir. 2008). Any doubt about the existence of a genuine issue
of material fact should be resolved against the moving party. Celotex, 477 U.S. at
339.

DISCUSSION
In their Third Amendment Complaint, plaintiffs assert Fourth Amendment
and racial discrimination claims under federal law against all defendants and false
arrest and trespass to chattels claims under Oregon law against the City. Both
Officer Berge and the City move for summary judgment on all of the claims against
them. I will address each of their motions in turn.

I.

Scope of Summary Judgement Record
The scope of the summary judgment record in this case is limited. To support

his motion, Officer Berge submitted a declaration asserting his version of events. And

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plaintiffs responded in kind, submitting declarations asserting their version of
events. To support their Monell claims against the City, plaintiffs submitted two
depositions. Kiel Deel. Ex. B & C (doc. 61). Plaintiffs also relied on the arguments
that they made in their response to defendants' earlier motion to dismiss. As a result,
the record also includes the evidence relevant to those arguments, which are found
in the exhibits attached to Daynelle Banks' February 21, 2017 declaration. Daynelle
Banks Deel. Ex. A-C, Feb. 21, 2017. Finally, plaintiffs offered evidence of Officer
Berge's 2017 judgment of conviction for Official Misconduct in the First Degree. Kiel
Deel. Ex. A. The parties dispute whether the Court should consider this conviction
as part of the summary judgment record.
Plaintiffs assert that the Court should consider Officer Berge's prior
misdemeanor conviction as evidence that bears on his credibility. In 2017, Officer
Berge was found guilty of Official Misconduct in the First Degree, which is a Class A
misdemeanor. ORS § 162.415(2). Although Officer Berge does not formally move to
strike the evidence, he opposes plaintiffs' request and argues that credibility
determinations are not appropriate for summary judgment.
At the summary judgment stage "the judge does not weigh conflicting evidence
with respect to a disputed material fact .... Nor does the judge make credibility
determinations with respect to statements made in affidavits, answers to
interrogatories, admissions, or depositions .... These determinations are within the
province of the factfinder at trial."

T. W. Elec. Serv., 809 F.2d at 630 (citations

omitted). When direct evidence produced by the moving party conflicts with direct

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evidence produced by the nonmoving party, "the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that fact." Id. at 631. And,
if that fact is material to an issue, then summary judgment must be denied on that
issue. Id.
Plaintiffs acknowledge that, ordinarily, credibility determinations are not
made at the summary judgment stage. But plaintiffs argue that, in this case, the
Court should consider the existence of evidence that bears negatively on Officer
Berge's credibility because Officer Berge's motion relies entirely on his declaration.
When the parties present two different version of events, it is not appropriate
for the Court to engage in credibility determinations at the summary judgement
stage-credibility is an issue for the fact-finder. vVhen versions of events differ on
points of material fact, the summary judgment standard dictates the denial of the
motion. Moreover, plaintiffs do not provide any authority to support their proposed
exception to the general standard of review. Therefore, I decline to consider evidence
related to Officer Berge's credibility at this stage.

II.

Officer Be1·ge's Motion
Plaintiffs allege two § 1983 claims against Officer Berge: (1) that Officer Berge

stopped, detained, and searched their car in violation of the Fourth Amendment and
(2) that he engaged in racial discrimination in violation of 42 U.S.C. § 1981, 42 U.S.C.
§ 2000d, 42 U.S.C. § 3789d, and the Equal Protection Clause of the Fourteenth

Amendment. Officer Berge moves for summary judgment on both claims, arguing

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that there is no genuine issue of material fact and that he is entitled to qualified
immunity.

A.

Plaintiffs' Fourth Amendment Claim

Plaintiffs allege that Officer Berge violated the Fourth Amendment when he
stopped, detained, and searched their vehicle without justification.
A police officer may conduct an investigatory traffic stop if the officer has
"reasonable suspicion" that a particular person "has committed, is committing, or is
about to commit" a traffic violation. United States v. Lopez-Soto, 205 F.3d 1101, 1104
(9th Cir. 2000). Reasonable suspicion requires that officers have "specific, articulable
facts which, together with objective and reasonable inferences, form the basis for
suspecting that the particular person detained is engaged in criminal activity." Id.
at 1105. An investigative stop is not subject to strict time limitations as long as the
officer is pursuing the investigation in a "diligent and reasonable manner." United

States v. Sharpe, 470 U.S. 675, 686-87 (1985).

An officer's conduct during the

detention must be reasonably related in scope to the circumstances which justified
the initial stop. Terry, 392 U.S. at 20. Officers may search cars involved in traffic
stops if the officer has adequate justification for the search. For example, an officer
may search inside of a car if the officer has reasonable suspicion that any passenger
may be armed and dangerous. Arizona v. Gant, 556 U.S. 332, 346-47 (2009). Or, if
there is probable cause to believe that a car contains evidence of a crime, an officer
may search any area in the car where evidence might be found. United States v. Ross,

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456 U.S. 798, 820-21 (1982). An officer may also search a vehicle pursuant to valid
consent. Schnechloth v. Bnstamonte, 412 U.S. 218, 219 (1973).
Officer Berge states in his sworn declaration that he had reasonable suspicion
that plaintiffs had committed three traffic violations: (1) failure to drive within a lane,
in violation of ORS§ 811.370; (2) unlawful lane change, in violation of ORS§ 811.375;
and (3) driving while under the influence of intoxicants, in violation of ORS§ 813.010.
Officer Berge also asserts that the length of and his conduct during the stop were
reasonable, given his belief that plaintiffs were intoxicated. Finally, Officer Berge
asserts that he did not search the car and argues that the length of the stop
undermines plaintiffs' claim that he "thoroughly" searched the car.
Plaintiffs submitted their own sworn declarations challenging Officer Berge's
version of events.

Drawing all reasonable inferences in plaintiffs' favor, their

declarations create genuine issues of material fact concerning the justifications for
the stop and whether Officer Berge searched the car. Officer Berge argues that the
declarations are not sufficient to establish a "genuine" dispute of facts because they
"merely reiterate the facts alleged in their complaint." Berge Reply at 4 (doc. 65).
But plaintiffs did not merely rely on the allegations in their complaint. Instead,
plaintiffs responded to the evidence that Officer Berge submitted to support his
motion by submitting their own declarations. And those declarations provide more
than just conclusory statements that Officer Berge violated plaintiffs' Fourth
Amendment rights by providing specific facts within plaintiffs' personal knowledge
that contradicted Officer Berge's declaration.

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In sum, genuine disputes of material fact remain that preclude the Court from
concluding that no Fourth Amendment violation occurred during the stop.

B.

Plaintiffs' Racial Discrimination Claims

Plaintiffs allege that Officer Berge's stop and his conduct during the stop were
motivated wholly or in part by racial animus, and that his actions violated (1)
plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment,
(2) 42 U.S.C. § 1981, (3) 42 U.S.C. § 2000d (Title VI of the Civil Rights Act of 1964),
and (4) 42 U.S.C. § 3789d (renumbered as 34 U.S.C. § 10228 by the Omnibus Control
of Crime and Safe Streets Act). Officer Berge argues that plaintiffs cannot establish
that he intentionally discriminated against them and that the statutes cannot sustain
plaintiffs' § 1983 action.
1.

Equal Protection Clause Violation

To prove a § 1983 claim for a violation of the Equal Protection Clause, a
plaintiff must establish that the defendant acted in a discriminatory manner and that
the discrimination was intentional. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d
736, 740 (9th Cir. 2000). To avoid summary judgment, plaintiffs "must produce
evidence sufficient to permit a reasonable trier of fact to find by a preponderance of
the evidence that the decision ... was racially motivated." Keyser v. Sacramento

Unified Sch. Dist., 265 F.3d 741, 754 (9th Cir. 2001) (quotations omitted and
alterations normalized).
Plaintiffs offered direct evidence of such discriminatory motive: Officer Berge's
order to Claudius Banks to "Get your black ass out of the car." That kind of race-

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related remark can create an inference of discriminatory motive. See Szmdaram u.

Cnty. of Santa Barbara, 39 F. App'x 533, 536 (9th Cir. 2002) (plaintiffs testimony
that he was harassed in racial terms creates an inference that a police search was
motivated by a discriminatory purpose); Cordoua u. State Farm Ins. Cos., 124 F.3d
1145, 1149 (9th Cir. 1997) (supervisor's derogatory comments about people with the
same national origin as plaintiff create inference of discriminatory motive).
Officer Berge argues that plaintiffs cannot establish that he intentionally
discriminated against them because he could not see plaintiffs well enough to observe
their race. He also denies that he said "Get your black ass out of the car" to plaintiffs.
Both are factual questions for the jury to resolve at trial.
Officer Berge also argues that derogatory comments can only support an
inference of discriminatory intent when combined with evidence of disparate
treatment. That is incorrect. Officer Berge relies on Cordoua, but that case does not
support his proposition. Instead, in Cordoua, the Ninth Circuit explained that a
plaintiff in a Title VII case can create an interference of discriminatory motive either
(1) through the McDonell Douglas framework by presenting evidence of disparate
treatment or (2) by providing more direct evidence of discriminatory intent, such as
derogatory racial comments. Cordoua, 124 F.3d at 1148-49. In that case, the plaintiff
did both, but that does not mean that plaintiffs were required to do so in this case.
Finally, after a plaintiff presents a prima facie case of discrimination, the
burden shifts to the defendant to show that the conduct either did not have a
discriminatory effect or was justified by some compelling purpose. Szmdaram, 39 F.

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App'x at 536; Village of Arlington Heights v. Metro. Haus. Dev. Corp., 429 U.S. 252,
270 n.21 (1977) (proof of discriminatory purpose shifts the burden to the defendant
who must establish "that the same decision would have resulted even had the
impermissible purpose not been considered"). Officer Berge argues that his conduct
did not have a discriminatory purpose because it was justified by his reasonable
suspicion that plaintiffs committed a driving violation and that they were intoxicated.
But, as explained in Section (II)(A) above, the constitutionality of Officer Berge's
actions under the Fourth Amendment depends on disputed facts.
In sum, the Court cannot conclude as a matter oflaw that no Equal protection
violation occurred.
2.

Section 1981 Violation

Section 1981 provides:
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a). A defendant violates § 1981 if: (1) plaintiff is a member of a
racial minority; (2) defendant intentionally discriminated against plaintiff because of
his or her race; and (3) the discrimination involved one or more of the activities
enumerated in the statute. Keller v. City of Portland, Case No. CV-98-263-ST, 1998
WL 1060222, * 12 (D. Or. Nov. 13, 1998)
First, Officer Berge argues that plaintiffs' § 1981 claim must fail because they
cannot establish the second element - that he intentionally discriminated against

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plaintiffs because of their race. I rejected that argument with respect to plaintiffs'
Equal Protection Clause claim and reject this argument for the same reasons.
Second, Officer Berge argues that plaintiffs cannot establish the third element.
He asserts that § 1981 is not a general anti-discrimination statute, but rather,
prohibits discrimination only as it relates to the making and enforcement of contracts.
Because plaintiffs' claims have no nexus to a contract, Officer Berge argues that
§ 1981 does not protect plaintiffs from the racial discrimination that they allege.

Plaintiffs respond that lower courts have applied § 1981 to claims of
discrimination unrelated to the making or enforcement of contracts. Plaintiff relies
on Keller v. City of Portland. In Keller, the plaintiff brought a § 1981 claim against
the City of Portland, the Portland Police Bureau, and individual police officers for the
shooting death of his son. The court recognized that "[c]laims brought under § 1981
usually involve the right to make and enforce employment contracts[,]" but ultimately
found that "§ 1981 applies to situations of racially-motivated physical abuse and
misuse of governmental power." Id. at *12, *14. The Keller court explained that
"[l]imiting § 1981 to contractual matters, as urged by the defendants, fails to consider
the 'equal benefits' and 'like punishment' clauses" of the statute. Id. at *14; see also
42 U.S.C. § 1981(a) ("All persons within the jurisdiction of the United States shall
have the same right ... to the full and equal benefit of all laws ... , and shall be
subject to like punishment[.]").
In reaching that conclusion, the Keller court relied, in part, on the Third
Circuit's decision in Mahone v. Waddle. Id. at *12-13. In Mahone, the plaintiffs

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alleged that police officers verbally and physically abused them, falsely arrested
them, and gave false testimony against them because they are black. 564 F.2d 1018,
1028 (3rd Cir. 1977). The court looked to the plain meaning of section in light of the
"expansive view of that section suggested by [its] legislative history" to conclude that
the plaintiffs stated a claim under the equal benefit and like punishment clauses of
section 1981. Id.
With respect to the statutory text, the Mahone court reasoned:
The section takes the form of an enumeration of diverse rights: the right
to make and enforce contracts, the right to sue, the right to be a party,
the right to give evidence, and the right "to the full and equal benefit of
all laws and proceedings for the security of persons and property." All
persons are guaranteed these rights to the same degree as they are
enjoyed by white persons. The statute then provides that all persons
shall be subject to the same punishment as white persons are subject, to
the same "pains" as white persons, to the same "penalties" as white
persons, and to the same "taxes, licenses and exactions of every kind" as
white persons, and that no person shall be subject to any punishment,
pain, penalty, tax, license or exaction other than that to which white
persons are subject. The statute can be read in no other way. To read
the language of the statute as applying only to the right to contract
ignores the clear and vital words of the majority of its provisions.

Id. at 1027-28. The court concluded: "[d]espite the sparsity of precedent, a natural
and commonsense reading of the statute compels the conclusion that section 1981 has
broad applicability beyond the mere right to contract." Id. at 1028.
The court then explained how "evidence of the contemporary understanding of
the Civil Rights Act of 1866, the Act from which section 1918 derives[,]" supported its
conclusion that the section should be liberally construed. Id. The purpose of the Act
was "to abolish all the remaining badges and vestiges of the slavery system." Id. at
1030. Reviewing the legislative history of that Act, the explained that Congress

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viewed the Act as "a complete statutory analog to the thirteenth amendment. The
Act was not intended to have merely limited effect; rather, it was to eradicate all
discrimination against blacks and to secure for them full freedom and equality in civil
rights." Id. at 1028. The court described how the bill's opponents also recognized
"the broad sweep and power of the Act." Id. And the court concluded that "[t]he
Congressional debates thus support our conclusion that the Act's successor, section
1981, applies on its face to" racially-motivated physical abuse and misuse of
government power. Id.
Although, neither the Ninth Circuit nor the Supreme Court has considered the
meaning of the "equal benefit" and "like punishment" clauses of§ 1981, other courts
of appeal that considered the question have held that "misuse of governmental power
motivated by racial animus comes squarely within the 'equal benefit' and 'like
punishment' clauses" of§ 1981. Alexis v. McDonald's Rests. Of Mass., Inc., 67 F.3d
341, 348 (1st Cir. 1995) (recognizing that "all courts of appeals which have considered
the question have held" consistently with Mahone). Many courts in other districts
also embrace this broad interpretation of§ 1981. See Singh v. Bunch, No. l:15-cv00646-DAD-BAM, 2017 WL 117857, *6 (E.D. Cal. Jan. 11, 2017) (concluding that the
plaintiffs' allegations of defendants' racial discrimination in their law enforcement
activities fall within § 198l's equal benefit and like punishment clauses and listing
cases from other districts that have recognized the same right).
The court finds the reasoning in those cases, and in Keller, persuasive and,
therefore, also finds that the "equal benefit" and "like punishment" clauses of§ 1981

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protect plaintiffs against racial discrimination by police officers. Accordingly, Officer
Berge's Motion for Summary judgment on this ground is denied.
3.

Title VI Violation

42 U.S.C. §2000d, Title VI of the Civil Rights Act of 1964, provides
No person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied benefits of,
or be subjected to discrimination under any program or activity
receiving Federal financial assistance.
Officer Berge argues that individuals cannot be held liable under Title VI. He relies
on the Ninth Circuit's statement of the elements of a Title VI in Fobbs v. Holy Cross

Health System Corp.: "(1) the entity involved is engaging in racial discrimination,
and (2) the entity involved is receiving federal financial assistance." Fobbs, 29 F.3d
1439, 1447 (9th Cir. 1994), overruled in part on other grounds by Daviton v.

Columbia/HCA Healthcare Corp., 241 F. 3d 1131 (9th Cir. 2001). Other courts have
held that, because Title VI forbids discrimination in a "program," individuals cannot
be held liable under Title VI. See Whitfield v. Notre Dame Middle Sch., 412 F. App'x
517, 521 (3d Cir. 2011) ("Individual liability may not be asserted under Title VI.");

Shotz v. City of Plantation, 344 F.3d 1161, 1171 (11th Cir.2003) ("It is beyond
question ... that individuals are not liable under Title VI."). Plaintiffs have pointed
the court to no cases, and the Court has found none on its own, holding that an
individual may be sued under Title VI.
Plaintiffs' only response is that they allege a claim under § 1983 for a violation
of Title VI, not a direct claim under Title VI. But the fact that plaintiffs chose to use
§ 1983 to vindicate their Title VI rights does not relieve them of their burden to

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establish a Title VI violation. Accordingly, Officer Berge is entitled to summary
judgment on this ground.
4.

Safe Streets Act Violation

Finally, 34 U.S.C. § 10228 (formerly 42 U.S.C. § 3789d) is a provision of the
Omnibus Crime Control and Safe Streets Act ("the Safe Streets Act") that prohibits
discrimination by any program or activity funded by the Act. A person bringing a
civil action under the Act must first exhaust their administrative remedies by filing
a complaint with the Office of Justice Program or "any other administrative
enforcement agency." 34 U.S.C. § 10228(c)(4)(A). Officer Berge argues that plaintiffs
failed to establish a violation of the Safe Streets Act because (1) they have not
identified any program funded by the Act that is connected to the discrimination
alleged in the First Amended Complaint and (2) they failed to allege, and cannot
present, evidence that they exhausted their administrative remedies. Plaintiffs
respond that they brought their claim under § 1983 not directly under the Safe
Streets Act. But even if § 1983 relieved plaintiffs of the exhaustion requirement,
there is no evidence that the alleged discrimination was related to a program or
activity funded by the Safe Streets Act. Officer Berge is also entitled to summary
judgment on this ground.

C.

Qualified Immunity

Officer Berge also asserts that he is entitled to summary judgment on both
claims on the basis of qualified immunity.

The doctrine of qualified immunity

protects government officials from liability unless (1) they violated a federal statutory

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or constitutional right, and (2) the right was "clearly established" at the time of the
challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A right is "clearly
established" when, at the time of the challenged conduct, "existing precedent ...
placed the statutory or constitutional question beyond debate." Id. at 741.

An

officer's conduct is evaluated in light of the particular circumstances before the
officer. A "clearly established" rule's contours must be so well defined that it is "clear
to a reasonable officer that his conduct was unlawful in the situation he confronted."

Saucier u. Katz, 533 U.S. 194, 202 (2001). Both prongs of the qualified immunity
inquiry involve questions of law that courts may answer in either order. Pearson u.

Callahan, 555 U.S. 223, 236 (2009).
Here, genuine disputes of material fact preclude the application of qualified
immunity at this stage of the proceedings.
First, as discussed above, viewing the evidence in the light most favorable to
plaintiffs, questions of material fact remain regarding whether the alleged
constitutional violations occurred. Accordingly, I cannot conclude that Officer Berge
is entitled to qualified immunity as a matter of law on the first prong of the qualified
immunity inquiry.
Second, I cannot determine whether a reasonable officer in Officer Berge's
position would not have understood that his conduct violated plaintiffs' rights under
the Fourth Amendment and Equal Protection Clause. Nearly all decent officers know
that the Fourth Amendment does not permit racially motivated searches and seizures
and that such conduct would violate the Fourteenth Amendment's equal protection

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principles. Although it is true that Officer Berge's conduct would not violate a clearly
established right ifhe acted precisely as he represents in his sworn declaration, there
is no question that he would be violating a clearly established right if the facts are as
plaintiffs represent. Questions of fact remain regarding both the circumstances that
Officer Berge faced and the conduct that Officer Berge engaged in during the stop.
Those factual disputes preclude the Court from defining, with specificity, the "right"
that Officer Berge allegedly violated and from determining, as a matter of law,
whether that right was clearly established. See, e.g., Act Up! I Portland v. Bagley, 988
F.2d 868, 873 (9th Cir. 1993) (qualified immunity may be precluded at the summary
judgment stage if there are genuine disputes over (1) the facts and circumstances
within an officer's knowledge and (2) what conduct underlies the alleged violation).
Viewing the evidence in the light most favorable to plaintiffs, a reasonable officer
certainly would have known that it was unlawful to stop a car, detain its occupants,
and search it without any evidence to justify those actions and based, instead, on the
race of the occupants.

See, e.g., Delaware v. Pronse, 440 U.S. 648, 663 (1977)

(requiring "at least articulable and reasonable suspicion that a motorist is unlicensed
or that an automobile is not registered, or that either the vehicle or an occupant is
otherwise subject to seizure for violation of law" in order to stop an automobile and
detain the driver). Therefore, qualified immunity cannot be granted at this stage.

III.

The City's Motion
Plaintiffs allege four claims against the City, all of which are based on Officer

Berge's conduct: (1) a § 1983 claim alleging municipal liability for violations of

Page 19 - OPINION AND ORDER

plaintiffs' Fourth Amendment rights; (2) a § 1983 claim alleging municipal liability
for statutory and Equal Protection violations based on racial discrimination; (3) a
false arrest claim under Oregon common law; and (4) a trespass to chattels claim
under Oregon common law.
The City moves for summary judgment on all four claims. The City argues
that plaintiffs' federal claims should fail because plaintiffs cannot establish that a
municipal custom or policy caused Officer Berge's alleged constitutional violations
and because Officer Berge did not violate plaintiffs' rights. Next, the City argues that
plaintiffs' false arrest claim should fail because plaintiffs did not provide the City
adequate notice under the Oregon Tort Claims Act. Finally, the City argues that
plaintiffs cannot establish a genuine dispute of material fact for either state law
claim.

A.

Monell Liability

A "municipality can be found liable under § 1983 only where the municipality

itself causes the constitutional violation at issue." City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989) (emphasis in original). "(vV]hen execution of a government's
policy or custom ... inflicts the injury ... the government as an entity is responsible
under § 1983." Monell v. Dep't of Soc. Servs. of the City of N. Y., 436 U.S. 658, 694
(1979). Absent a formal government policy, a plaintiff must show a "longstanding
practice or custom which constitutes the standard operating procedure of the local
government entity." Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (internal
quotation marks omitted). The custom must be so "persistent and widespread" and

Page 20 - OPINION AND ORDER

so "permanent and well settled" as to practically have the force of law. Monell, 436
U.S. at 691. "Liability for improper custom may not be predicated on isolated or
sporadic incidents; it must be founded upon practices of sufficient duration, frequency
and consistency that the conduct has become a traditional method of carrying out
policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), modified by Navarro v.
Bloch, 250 F.3d 729 (9th Cir. 2001).

Plaintiffs allege that Officer Berge's actions were part of the Portland Police
Bureau's pattern and practice of racial profiling in conducting unjustified stops,
detentions, and searches disproportionately directed at African-Americans. In its
motion for summary judgment, the City asserts that plaintiffs cannot establish that
such a custom exists. In response, plaintiffs submitted the depositions of two officers
in the Portland Police Bureau's Gang Enforcement Unit, which were conducted on
September 21, 2016, as part of discovery in a case involving a "similar claim." Pl.
Resp. to City's Mot. for Summary J. at 2 (doc. 60).
The depositions fail to identify specific facts demonstrating a genuine issue for
trial. They do not contain any evidence from which a jury could find that Portland
police officers regularly conduct unjustified traffic stops. Similarly, the depositions
fail to show that racial bias has so infected the Portland Police Bureau that a jury
could find that there is a municipal policy or custom of permitting racially motivated
traffic stops and vehicle searches.
In the first deposition, Officer Andrew Polas briefly discussed the role that
traffic stops play in carrying out the mission of the Gang Enforcement Unit. Officer

Page 21 - OPINION AND ORDER

Polas explained that, unlike patrol officers, gang enforcement officers respond only
"to gang-related crimes[,)" and that he regularly stops cars for traffic violations and
asks to search the vehicle because part of his job is to "do self-initiated activity, to try
to take guns off the street [to] prevent gang members from killing one another." Kiel
Deel. Ex. C at 2.

Because stops serve a narrow purpose in the gang enforcement

context, Officer Polas acknowledged that he was selective about who he stopped for
traffic violations. Id. Officer Polas explained that "we always have a traffic violation
on the car" before stopping it, but "our goal is to try and stop gang members." Id. He
stated that because "95 percent of the gang-related activity [in Portland] is AfricanAmerican men shooting at other African-American men[,]" a "large percentage of the
people we stop are African-American[.)" Id.
In the second deposition, Officer Charles Asheim explained the differences
between his work on patrol and his work in gang enforcement. As a patrol officer,
Officer Asheim was assigned to a district and was responsible for responding to calls,
assisting other officers, and doing his own proactive work all within that geographical
area. Kiel Deel. Ex. B at 2. In gang enforcement, the mission is "to prevent and
investigate gang violence in the city of Portland." Id. at 3. To prevent gang violence,
gang enforcement officers work to build relationships and rapport with people
involved in gangs and their family members "by interacting with people over and over
again." Id. Officer Asheim acknowledged that he sometimes used traffic stops to do
that. Id. at 3-4. Although he did not want to "give ... the impression that I've never
looked the other way on a traffic violation" when patrolling, Officer Asheim explained

Page 22 - OPINION AND ORDER

that he routinely stops people for traffic violations to try to contact people that may
be involved in gang-related crime. Id. at 4. Finally, when asked ifhe had heard that
young black men in Portland complain about being stopped for no cause, Officer
Asheim testified: "I believe it is possible it happens. It's definitely not my practice or
the practice of the Gang Enforcement Team or people I work with, but I believe it's
possible." Id. at 5.
Although I find Officer Polas' testimony about the demographics of ganginvolved people in Portland and, by extrapolation, people stopped by gang unit
officers to be troubling, at most it suggests that race is one of the many criteria officers
in the Gang Enforcement Unit use to decide whether to stop a car for traffic violations.
That unit consists of 15 officers and has a unique mission compared to other units in
the Police Bureau.

And Officer Asheim's testimony specifically emphasized the

differences between the Gang Enforcement Unit and Officer Berge's unit, the Patrol
Unit. Finally, both officers testified that they only stop cars after observing a traffic
violation or when they had other legal grounds for the stop.
In sum, the record contains no evidence to support plaintiffs' assertion that
Portland Police Bureau had a "persistent and widespread" custom or a "permanent
and well settled" policy of either conducting suspicion-less traffic stops, detentions,
and searches or permitting racially motivated traffic stops, detentions, and searches.
Accordingly, summary judgment is appropriate for plaintiffs' Monell claims regarding Fourth Amendment violations and racial discrimination - against the City
of Portland.

Page 23 - OPINION AND ORDER

B,

Supplemental Jurisdiction over Pendent State Law Claims

Because the City is entitled to summary judgment on all federal claims, before
proceeding to the City's arguments regarding plaintiffs remaining state law claims,
I must first consider whether to exercise supplemental jurisdiction over the claims.
Neither party raised the issue of supplemental jurisdiction, so such an analysis is not
required. Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en bane).
But the Ninth Circuit has stated that when it comes to supplemental jurisdiction over
state claims, "the proper administration of justice is far better served by a deliberate
decision than by default." Id. at 1001. I therefore address the question sua sponte.
28 U.S.C. § 1367(a) provides the basis for supplemental jurisdiction:
Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district
courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution.
The court has discretion to "decline to exercise" supplemental jurisdiction in various
circumstances, including when "the district court has dismissed all claims over which
it had original jurisdiction[.]" 28 U.S.C. § 1367(c)(3).
The Supreme Court has explained that in the "usual case in which all federallaw claims are eliminated before trial, the balance of factors ... will point toward
declining to exercise jurisdiction over the remaining state-law claims." Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). But there is no "mandatory rule
to be applied inflexibly in all cases." Id. Ultimately, whether to retain jurisdiction

Page 24 - OPINION AND ORDER

when § 1367(c) is triggered remams a discretionary decision, informed by
considerations of "economy, convenience, fairness, and comity." Acri, 114 F.3d at
1001.
Under the circumstances presented here, I find that the values enumerated
above weigh in favor of retaining jurisdiction over the state law claims. Discovery is
complete and the summary judgment motions have been fully briefed and argued. It
would be a waste of judicial resources to require the parties to start over in state court
on the false arrest and trespass to chattels claims. Finally, the plaintiffs' claims
present no novel or difficult questions of state law. I will therefore continue to
exercise supplemental jurisdiction over plaintiffs' state law claims.

C.

Plaintiffs' False Arrest Claim

Plaintiffs alleged that Officer Berge's unlawful stop and detention constituted
a false arrest under Oregon common law. The City argues that plaintiffs' claim
should fail because they did not provide the City with adequate notice of their false
arrest claim and because plaintiffs cannot establish that they were "arrested" under
Oregon law or that Officer Berge's actions were unlawful.

I.

Adequate Notice under the OTCA

The Oregon Tort Claims Act ("OTCA"), ORS §§ 30.260 to 30.300, provides an
exclusive remedy for plaintiffs seeking to pursue a tort claim against a public body in
Oregon. The OTCA requires a plaintiff to provide proper notice of a claim, and a
plaintiffs failure to do so deprives the plaintiff of the right to make a claim against a
public body. ORS§ 30.275(1); Tyree v. Tyree, 840 P.2d 1378, 1380 (Or. Ct. App. 1992).

Page 25 - OPINION AND ORDER

A plaintiff may satisfy the notice requirement by providing "formal notice," "actual
notice," or by commencing an action within 180 days after the alleged loss or injury.
ORS§ 30.275(2)(b), (3). "The purpose of the notice requirement of ORS§ 30.275 is to
allow the public body an opportunity to investigate a matter promptly and to settle
all meritorious claims without litigation." Flug u. Univ. of Oregon, 13 P.3d 544, 551
(Or.Ct.App.2000); accord Urban Renewal Agency of City of Coos Bay u. Lachey, 549
P.2d 657, 660 (Or. 1976).
The City argues that the General Liability Claim Form that Daynelle Banks
submitted to the City's Risk Management Division was insufficient to provide formal
notice of plaintiffs' false arrest claim because the form references only the expenses
related to the broken key and towing the vehicle. The City also argues that the form
failed to provide actual notice because it did not convey plaintiffs' intent to pursue a
false arrest claim.
Both "formal notice" and "actual notice" require plaintiffs to provide a
communication that conveys both "a description of the time, place and circumstances
giving rise to the claim" and their intent to assert "a claim" against the public body.

Campa.re ORS § 30.275(4) (the requirements for formal notice) with ORS§ 30.275(6)
(requirements for actual notice). Those requirements are the only ones that the City
argues are lacking in this case. And, having reviewed the record in this case, I find
that, by submitting the form to the City's Risk Management Division on May 22,
2015, plaintiffs satisfied the other requirements for formal and actual notice.

Page 26 - OPINION AND ORDER

In the context of actual notice, the Oregon Supreme Court has held that the
communication must provide "the time, place, and circumstances 'giving rise to' the
ultimate claim," but it need not set forth the "specific nature or theory of the claim."

Flug v. Univ. of Oregon, 73 P.3d 917, 924 (Or. 2003). In Flug, the court reasoned that,
"[a]lthough the notice also must warn of the plaintiffs intent to bring 'a claim,' the
use of that term demonstrates that the warning need not specify precisely what
claim." Id. (emphases in original).
Plaintiffs' form indicates that the incident took place at 2:00am on March 21,
2015 at the Popeye's on the "corner of MLK and NE Ainsworth." Daynelle Banks
Deel. Ex. A at 2, Feb. 21, 2017. In the section of the form asking for a description of
the incident, plaintiffs began by referring to documents related to the Independent
Police Review and Internal Affairs investigations that were conducted after plaintiffs
filed a complaint with the Independent Police Review Bureau. Id. The documents
were also attached to the form. Two of those documents summarized the allegations
of an unlawful stop and search, among others, that plaintiffs made in their
Independent Police Review complaint. Id. at 6; Daynelle Banks Deel. Ex. Cat 3, Feb.
21, 2017. Plaintiffs' form also summarizes the incident: "Officer Christian Berge
broke they key of our car causing it to be towed. We had to pay to get car out of
impound and taxi to get home. . .. The officer conducted an unlawful search and
broke the car key." Daynelle Banks Deel. Ex. A at 2, Feb. 21, 2017. The contents of
plaintiffs' form and the allegations summarized in the attached documents particularly allegations that Officer Berge conducted an unlawful traffic stop and

Page 27 - OPINION AND ORDER

search - sufficiently described the circumstances giving rise to plaintiffs' false arrest
claim.
The form also adequately conveys plaintiffs' intent to litigate. The form itself
1s a City of Portland form titled "General Liability Claim Against the City of
Portland." Id. Under the title it states ""for damages to persons or property*" and
references the statutory period for timely notice and highlights the proper party to
whom notice must be given: "A claim must be filed with City of Portland Risk

Management within 180 days after the occitrrence of the incident or event." Id.
(emphasis and boldface in original). The title and instructions on the form indicate
that the City intended the form to serve as formal notice under the OTCA and that
the City would understand that, by submitting the form, a person intends to pursue
"a claim" against the City based on the incident described on the form.
Because plaintiffs' form described the circumstances giving rise to plaintiffs'
false arrest claim and conveyed their intent to pursue a claim against the City,
plaintiffs satisfied the OTCA's notice requirement.

The City is not entitled to

summary judgment on this basis.
2,

Merits of Plaintiffs' False Arrest Claim

The City argues that plaintiffs' false arrest claim fails because plaintiffs were
"stopped" not "arrested" under Oregon law and the Fourth Amendment. But, as
plaintiffs point out, the tort of false arrest does not require an arrest in the criminal
sense. Instead, a plaintiff must establish an "imposition of unlawful restraint on
another's freedom of movement." Luhas v. J.C. Penny Co., 378 P.2d 717, 720 (Or.

Page 28 - OPINION AND ORDER

1963).

"The confinement required to establish a cause of action for false

imprisonment may be accomplished by actual or apparent physical barriers,
compulsive physical force, a threat to apply physical force or assertion of legal
authority[.)" Wal/wr u. City of Portland, 693 P.2d 1349, 1352 (Or. Ct. App. 1985)
(internal citations omitted). In this case, the undisputed facts establish most of the
elements of the tort. Plaintiffs were restrained during the stop and that restraint
was accomplished by Officer Berge's assertion of legal authority. The only question
is whether the restraint was lawful.
The City also argues that Officer Berge lawfully stopped plaintiffs under
ORS§ 131.615 and the Fourth Amendment. The purpose of ORS § 131.615 is to
protect "interests of the kinds which are protected by the Fourth Amendment to the
United States Constitution and Article I, section 9, of the Oregon Constitution." State

u. Valdez, 561 P.2d 1006, 1011 (Or. 1977). The statute authorizes officers to stop a
person and make a "reasonable inquiry" when the officer "reasonably suspects that a
person committed or is about to commit a crime." ORS § 131.615(1). As explained in
Section (II)(A), whether Officer Berge had reasonable suspicion to stop plaintiffs' car
and whether the subsequent detention and inquiry was reasonable depends on facts
that are in dispute. Accordingly, viewing the evidence in the light most favorable to
plaintiffs, I cannot conclude that plaintiffs' false arrest claim fails as a matter oflaw.
D.

Plaintiffs' Trespass to Chattels Claim

Plaintiffs allege that Officer Berge's "deliberate disabling" of plaintiffs' car
constitutes trespass to chattels. In Oregon, the elements of a trespass to chattels

Page 29 - OPINION AND ORDER

claim are essentially the same as a claim for conversion, which is "an intentional
exercise of dominion or control over a chattel which so seriously interferes with the
right of another to control it that the actor may justly be required to pay the other
the full value of the chattel." Musto/a u. Toddy, 456 P.2d 1004, 1007 (Or. 1969)
(quoting Restatement (Second) of Torts§ 222A (1965)). The only arguable differences
between the two torts are the extent of the interference and remedy. Scott u. Jachson

Cty., 260 P.3d 744, 752 (Or. Ct. App. 2011).
First, the City argues that plaintiffs' claim cannot succeed because Officer
Berge did not intentionally break the car key. But, to establish a trespass to chattels
claim, plaintiffs do not need to prove that Officer Berge intended to break the key,
but rather that Officer Berge took some intentional act - that is, acted purposefully
- in a way that resulted in the exercise of dominion or control over the key and car.

Francis u. Farnham, 648 P.2d 1349, 1351 (Or. Ct. App. 1982) ("It is not necessary for
the tort of conversion that harm done to the chattel be done intentionally. In fact,
purely accidental harm to a chattel may constitute conversion if the actor has
intentionally exercised dominion or control over that chattel."). Under either version
of events, Officer Berge intentionally exercised control over the key when he grabbed
and turned it.
Second, the City argues that breaking the key did not interfere with plaintiffs'
possession of the vehicle or the physical condition of the vehicle. The City asserts
that the evidence indicates that plaintiffs went home after the stop ended and
plaintiffs had a second key to the car. The City's arguments address the severity of

Page 30 - OPINION AND ORDER

Officer Berge's interference, and thus the amount of damages plaintiffs could be
entitled to, not whether Officer Berge committed trespass to chattels. Therefore, the
City is not entitled to summary judgment on this claim.

CONCLUSION
Officer Berge's Motion for Summary Judgment (doc. 46) is GRANTED with
respect to plaintiffs' claims 42 U.S.C. § 2000d (Title VI) and 42 U.S.C. § 3789d
(renumbered as 34 U.S.C. § 10228) claims and DENIED with respect to plaintiffs'
Fourth Amendment, Equal Protection Clause, and 42 U.S.C. § 1981 claims. The
City's Motion for Summary Judgment (doc. 48) is GRANTED with respect to
plaintiffs' Fourth Amendment and racial discrimination claims and DENIED with
respect to plaintiffs' state law claims.
IT IS SO ORDERED.

UP/ft\

DATED THIS Rday of March 2019.

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( A,,Ll,)A., cl( i.

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Ann Aiken
United States District Judge

Page 31 - OPINION AND ORDER

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