Barror v. City of Saint Helens et al

Filing 73

OPINION AND ORDER: Accordingly, defendant Raethke's Motion for Summary Judgment on Qualified Immunity, ECF 69 , is DENIED. IT IS SO ORDERED. Signed on 3/18/2024 by Judge Adrienne Nelson. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT BARROR,
v.

Case No.: 3:20-cv-00731-AN

Plaintiff,
OPINION AND ORDER

CITY OF SAINT HELENS and ADAM
RAETHKE, in his individual capacity,
Defendants.

Plaintiff Robert Barror filed this case against the City of St. Helens (the "City") and St.
Helens police officer Adam Raethke ("Raethke") in his individual capacity alleging Fourth Amendment
violations for excessive force and failure to train under 42 U.S.C. § 1983. On June 12, 2023, U.S.
Magistrate Judge Stacie Beckerman issued a Findings and Recommendation ("F&R"), ECF [54], on
defendants' motion for summary judgment.

Upon review, this Court adopted Judge Beckerman's

recommendations in full, granted summary judgment on plaintiff's Monell claim against the City, and
denied summary judgment on plaintiff's Fourth Amendment claim against Raethke. Order of Aug. 18, 2023
("Order on F&R"), ECF [56], at 3.
On January 3, 2024, the Court granted Raethke leave to file a motion for summary
judgment on the limited issue of whether there was clearly established law, at the time of the conduct at
issue, establishing that Raethke's alleged use of force was unconstitutional. Order of Jan. 3, 2024, ECF
[68], at 6. Raethke timely filed the motion on January 10, 2024. For the following reasons, that motion is
DENIED.

LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The
moving party bears the burden of showing that there is no genuine issue of material fact. Rivera v. Philip
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Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). Material facts are those which might affect the outcome
of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Materiality is determined using
substantive law. Id. A dispute is genuine "if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. The court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in its favor. Sluimer v. Verity, Inc., 606 F.3d 584, 587
(9th Cir. 2010).

BACKGROUND 1
On August 6, 2019, at 12:31 p.m., Columbia County 911 dispatch was alerted to a traffic
complaint about a grey Chevy Silverado near St. Helens, Oregon, reportedly traveling 100 miles per hour
and passing other vehicles in the center lane of the highway. F&R 2. Oregon State Troopers Travis Killens
("Killens") and Christopher Cowen ("Cowen") (collectively, the "Troopers") heard the dispatch report and
responded to the call in their patrol vehicle. Id. When the troopers caught up to the vehicle, Cowen
observed it make a very sharp turn and cut across all lanes of traffic. Id. Killens activated the patrol car's
lights and sirens, and the Troopers pursued the vehicle, which was then traveling at approximately eighty
miles per hour. Id. With the Troopers in pursuit, the vehicle ran two stop signs before finally stopping. Id.
The Troopers parked behind the vehicle, and Cowen approached to place a spike strip in
front of the vehicle's rear passenger tire while Killens provided cover. Id. at 3. The Troopers then called
for cover to assist with the high-risk traffic stop. Id. While stopped, the Troopers gave multiple commands
to the vehicle's driver—later identified as plaintiff—to exit the vehicle with his hands up. Id. Plaintiff did
not comply with those commands. Id.
Nearby, on a related call, Raethke heard the general broadcast about the speeding vehicle
and that its driver had possibly aimed a firearm at another driver. Id. Raethke responded and arrived on
the scene approximately two minutes after plaintiff had stopped. Id. Upon arrival, Raethke observed the
Troopers with their guns drawn aimed at plaintiff's car. Id. At this time, the Troopers were unsure if

1

The following facts are taken from the F&R, which this Court adopted as its own opinion.

2

plaintiff had a gun, in part because, prior to Raethke's arrival, they heard plaintiff "say something about the
other vehicle that was following him . . . had a gun[.]" Decl. of Justin Steffen ("Steffen Decl."), ECF [42],
Ex. 2, at 13:8-11; see F&R 11. It is unclear whether the Troopers shared this information with Raethke;
Killens testified that he did not believe the information was communicated to Raethke, but Cowen testified
that he "made sure that when Saint Helens officers arrived [he] kind of informed them of that information
or at least what was being alleged because my back was to the other driver." F&R 12; Steffen Decl., Ex.
2, at 13:11-14. Cowen testified that they did not confirm that plaintiff was unarmed until he was properly
searched after his arrest. F&R 5.
Approximately thirty seconds after Raethke parked, Raethke and the Troopers filed into a
column and approached the driver's side of the vehicle with their guns drawn. Id. at 3. As he approached,
Raethke observed plaintiff leaning away, towards the passenger's side of the vehicle, and Raethke grew
increasingly concerned with whether plaintiff was reaching for something. Id.
Raethke and the Troopers issued commands to plaintiff to exit the vehicle with his hands
up as they approached. Id. Plaintiff remained in the vehicle and repeatedly shouted that he could not hold
his hands up. Id. Raethke testified that he did not hear plaintiff's shouts. Id. Plaintiff can be heard on the
dash camera video of the incident, recorded by the Troopers' patrol car, repeatedly yelling, "I cannot keep
my hands up" and "I can't hold them up." Id. at 13. Cowen also stated that he heard plaintiff "say something
to the effect of 'I can't keep my hands up'" as the officers approached the vehicle. Id. Once plaintiff's car
door was open, Raethke and the Troopers noticed that he still had his seatbelt on. Id. at 4.
Killens described plaintiff as exhibiting frantic behavior. Id. Plaintiff began tensing his
body and pulled away. Id. When asked whether it was "fair to say" that "[plaintiff] was resisting attempts
to remove him from the vehicle," Killens responded "no" and described plaintiff's behavior as "static
resistance, meaning that he is not doing anything to resist, but he's also not being helpful to get himself out
of the vehicle." Id. at 13. Similarly, Cowen testified that plaintiff "wasn't actively fighting us but he wasn't
doing anything to help the situation by getting out of the vehicle willingly." Id.

3

Once Raethke and the Troopers were able to remove plaintiff from the vehicle and he was
face down on the ground, Raethke observed that plaintiff's hands were near his midsection or beltline. Id.
At that time, Raethke testified that he still had not determined if plaintiff was in possession of a firearm
and, if so, where the firearm was located. Id. Although plaintiff was on the ground, Raethke and the
Troopers could not get plaintiff's arms behind his back to handcuff him. Id. Killens began using a nonlethal,
open-hand custody technique, which he described as on "the lower end of our use of force spectrum." Id.
Killens testified that he used a lower level of force because "from my policy and training, that's all I felt I
needed to do" and "with that incident specifically, I did not feel more force was necessary to effect that
arrest." Id. at 11.
When Killens noticed that Raethke was using a knee strike on plaintiff, Killens put his arm
in front of Raethke and said something along the lines of, "[h]e's good. He's good. We don't need that." Id.
Raethke still could not get plaintiff's arms behind him, so Raethke delivered a second knee strike. Id.
Cowen indicated that Raethke delivered a third knee strike. Id. at 4 n.2. Killens then told Raethke "he's
good"—referring to plaintiff—several times. Id. at 4. Raethke and the Troopers were then able to get
plaintiff's arms behind his back, and Raethke stopped delivering knee strikes. Id. at 5.
After plaintiff was handcuffed, the Troopers determined that plaintiff did not have a
firearm. Id. Killens issued plaintiff multiple citations, including reckless driving, reckless endangering,
failure to obey a traffic control device, failure to drive in lane, and failure to yield to an emergency vehicle.
Id. After viewing their patrol car's dash camera footage, both Killens and Cowen reported Raethke's use of
force to their superior officer, even though doing so was not "standard procedure." Id. at 11.
In adopting Judge Beckerman's F&R, this Court determined that the following issues
should be determined by a jury: (1) whether the circumstances surrounding plaintiff's arrest supported a
strong governmental interest in Raethke's use of force to effect plaintiff's arrest; (2) the reasonableness of
Raethke's belief that plaintiff had a gun; (3) the level of threat that plaintiff posed; and (4) whether plaintiff
resisted arrest. Id. at 9-15; Order on F&R 1. However, Raethke did not raise the issue of qualified immunity

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in the original motion for summary judgment; 2 thus, neither the F&R nor this Court's order considered the
merits of that defense. Accordingly, the Court now considers Raethke's qualified immunity defense as
asserted in his limited motion for summary judgment.

DISCUSSION
Qualified immunity shields an official from damages in a civil suit so long as their conduct
"does not violate clearly established statutory or constitutional rights of which a reasonable person would
have known." Mullenix v. Luna, 577 U.S. 7, 11 (2015) (internal quotation marks omitted). If applicable,
qualified immunity provides immunity against liability, as well as immunity from suit and other litigation
burdens. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, qualified immunity is designed to
dismiss "insubstantial claims" against government officials before the discovery phase. Anderson v.
Creighton, 483 U.S. 635, 640 n.2 (1987). Qualified immunity questions should, therefore, be resolved at
the earliest possible stage of litigation. Hunter v. Bryant, 502 U.S. 224, 227 (1991).
In the context of excessive force claims, a qualified immunity analysis can be distilled into
three elements: (1) whether the alleged conduct would violate a constitutional or statutory right; (2) whether
the law clearly established, at the time of the conduct at issue, that the alleged conduct violated a
constitutional or statutory right. Gordon v. Cnty. of Orange, 6 F.4th 961, 967-68 (9th Cir. 2021). The Court
has already adopted Judge Beckerman's conclusion that a reasonable jury could conclude that Raethke's
conduct was not objectively reasonable, satisfying the first inquiry. However, whether the law governing
Raethke's conduct was clearly established at the time the challenged conduct occurred, and whether, under
that clearly established law, a reasonable officer could have believed that the conduct was lawful, remain
unresolved.
The plaintiff bears the burden of establishing that the right allegedly violated was clearly
established at the time of the alleged misconduct. Romero v. Kitsap Cnty., 931 F.2d 624, 627 (9th Cir.
1991). A clearly established right is "sufficiently clear that every reasonable official would have understood

2

Defendants' answer asserts qualified immunity as an affirmative defense, negating any potential issue of waiver.

5

that what he is doing violates that right." Mullenix, 577 U.S. at 11 (internal quotation marks omitted).
Thus, "existing precedent must have placed the statutory or constitutional question beyond debate." Id. at
12 (internal quotation marks omitted). However, the question of "whether the violative nature of particular
conduct is clearly established," Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011), "must be undertaken in light
of the specific context of the case, not as a broad general proposition," Brosseau v. Haugen, 543 U.S. 194,
198 (2004) (per curiam) (internal quotation marks omitted).
In the excessive force context, the Supreme Court has cautioned that "specificity is
especially important" because "[i]t is sometimes difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix, 577 U.S.
at 12 (internal quotation marks omitted).

Put another way, "the clearly established law must be

'particularized' to the facts of the case," such as "a case where an officer acting under similar circumstances
as [the defendant] was held to have violated the Fourth Amendment." White v. Pauly, 580 U.S. 73, 79
(2017). Although controlling precedent need not always address the precise conduct at issue, it must, at the
least, consider "closely analogous" conduct. Sharp v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017).
However, when controlling precedent is not directly on point, "'the salient question . . . is whether the state
of the law [at the time of the alleged wrong] gave [the defendants] fair warning that their alleged treatment
of [the plaintiff] was unconstitutional.'" Davis v. City of Las Vegas, 478 F.3d 1048, 1056 (9th Cir. 2007)
(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)) (alterations in original).
Both parties agree that, for the purposes of qualified immunity and viewing the facts in the
light most favorable to plaintiff, Raethke's alleged conduct was delivering knee strikes to plaintiff's torso
during an arrest while plaintiff was passively resisting. Plaintiff points to a series of cases as evidence that
the unconstitutionality of using knee strikes on a passively resisting arrestee, under the circumstances
presented in this case, is clearly established. Pl.'s Resp. to Def.'s Mot. ("Pl.'s Resp."), ECF [70], at 3-4.
Plaintiff relies on City of Escondido v. Emmons, 586 U.S. __, 139 S. Ct. 500 (2019), for
the proposition that the right to be free from the application of non-trivial force when engaged in passive
resistance was clearly established at the time of plaintiff's arrest. Pl.'s Resp. 3. In that case, the Supreme
6

Court reviewed the Ninth Circuit's decision to reverse a district court's grant of qualified immunity for
officers who allegedly used excessive force to arrest the plaintiff. Emmons, 139 S. Ct. at 502. The Emmons
Court criticized the Ninth Circuit for relying on Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir.
2013), to define the clearly established right too generally as a "right to be free from excessive force."
Emmons, 139 S. Ct. at 503. The Ninth Circuit had also identified a right to be "free from the application of
non-trivial force or engaging in mere passive resistance." Id. (quoting Gravelet-Blondin, 728 F.3d at 1093).
However, the Emmons Court noted that Gravelet-Blondin "involved police force against individuals
engaged in passive resistance," and the Ninth Circuit had not explained how Gravelet-Blondin prohibited
the officer's actions in Emmons. Id. at 503-04. Standing alone, Emmons does not clearly establish that
Raethke's alleged conduct was unconstitutional. First, it is a case denying qualified immunity, and second,
it makes no determination as to whether the arrestee in Emmons was passively resisting.
Emmons does, however, point the Court's attention to Gravelet-Blondin, where the Ninth
Circuit denied a defendant-officer's qualified immunity defense. 728 F.3d at 1093. In that case, the officer
allegedly used excessive force when he tased a bystander in "dart" mode for not complying with police
directives to "get back," even though the bystander "made no threatening gestures" and "appeared frozen
with fear." Id. at 1089-90. In determining that the officer was not entitled to qualified immunity, the Ninth
Circuit emphasized that the "right to be free from the application of non-trivial force for engaging in passive
resistance was clearly established prior to 2008." Id. at 1094. Although the court acknowledged that it was
not clear what specific level of force using a taser constituted until 2010, it was well known as of 2008 that
the use of a taser in dart mode was "non-trivial" force. Id. at 1096. Indeed, the court cited Nelson v. City
of Davis, 685 F.3d 867, 811 (9th Cir. 2012), for the proposition that "cases dating back to 2001 have
established that '[a] failure to fully or immediately comply with an officer's orders neither rises to the level
of active resistance nor justifies the application of a non-trivial amount of force.'" Gravelet-Blondin, 728
F.3d at 1094.
Though the factual circumstances of Gravelet-Blondin differ from those presented here, it
sets forth the general rule that, since 2001, the law has clearly established the right to be free from non7

trivial force for engaging in passive resistance. For Raethke's conduct to fall under this rule, (1) plaintiff
must have been passively resisting, and (2) Raethke must have used non-trivial force. Raethke does not
dispute that, for purposes of this motion, plaintiff was passively resisting the officers. Thus, the question
is whether Raethke's use of force was non-trivial.
The Ninth Circuit has stated that blows "capable of inflicting significant pain and causing
serious injury . . . are regarded as 'intermediate force' that, while less severe than deadly force, nonetheless
present a significant intrusion upon an individual's liberty interests." Young v. Cnty. of L.A., 655 F.3d 1156,
1161 (9th Cir. 2011); see Coles v. Eagle, 704 F.3d 624, 628 (9th Cir. 2012). In adopting Judge Beckerman's
F&R, this Court incorporated her finding that "[t]he use of knee strikes on an arrestee while they are prone
constitutes at least an 'intermediate' use of force." F&R 8. Raethke "does not dispute the Court's
determination that the use of knee strikes constitutes an intermediate level of force" but still argues in a
footnote that there is a "lack of clearly established authority on law enforcement officials' use of knee
strikes." Def.'s Mot. for Summ. J. ("Def.'s Mot."), ECF [69], at 10 n.1. Given this inconsistency, the Court
will provide a more comprehensive analysis of whether knee strikes are an intermediate use of force.
One of the cases cited in the F&R regarding a knee strike's level of force, Centeno v. City
of Carlsbad, No. 3:19-cv-2098-L-DEB, 2021 WL 6064383 (S.D. Cal. Dec. 22, 2021), involves a similar
fact pattern. 3 In that case, the plaintiff sued a defendant-officer, alleging Fourth Amendment violations
after the officer used knee strikes during the plaintiff's arrest. Id. at *10. The incident underlying the
plaintiff's claims arose when two officers responded to a call about someone breaking into a car and found
the plaintiff at the vehicle with a "metal tool" and flashlight. Id. at *1. One officer grabbed the metal tool
from the plaintiff's hand and threw it approximately ten feet away. Id. When the plaintiff began to walk
toward the tool, the officer ordered him "to remain there," but the plaintiff stepped backward. Id. The

Centeno was decided after the incident giving rise to the present litigation occurred, so it cannot, by itself, be a source
of clearly established law. However, because the incident in Centeno occurred prior to the date of the incident here,
its clearly established law analysis remains relevant to the Court's own inquiry.
3

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officers then stated that they were detaining the plaintiff and began to attempt to arrest him. Id. The plaintiff
was ordered to drop the flashlight, but it was unclear when he dropped the flashlight. Id.
While attempting to arrest the plaintiff, the officers brought him to the ground. Id. The
officer contended that the plaintiff resisted arrest by keeping his arms rigid and pinning one arm under his
torso despite orders to put his hands behind his back. Id. The officer did not warn the plaintiff that he
would perform knee strikes before he "struck [the plaintiff's] back with his knee at least two times." Id. In
denying the officer's qualified immunity defense, the court found that "[t]he knee strikes, under the
circumstances, involved at least intermediate force," that the plaintiff "did not resist [the officers']
commands," and that the plaintiff was "in a position that would make it difficult to comply with orders."
Id. at *10. Based on these facts, the court held that "it would have been clear to any reasonable officer that
performing knee strikes was objectively unreasonable." Id.
Additionally, there is a general consensus from district courts in the Ninth Circuit that knee
strikes are, at a minimum, an intermediate level of force: in addition to the cases cited in the F&R, see
Harris v. Perez, No. 21-cv-01335-BHS-TLF, 2023 WL 7169552, at *13 (W.D. Wash. Sept. 27, 2023)
("[P]unches and knee strikes[ ] . . . may fall in the categories of intermediate to significant."); Stickney v.
City of Phoenix, No. CV 20-01401-PHX-SMB (DCB), 2023 WL 2976943, at *17 (D. Ariz. Mar. 17, 2023),
appeal filed, Stickney v. Arnold, No. 23-15555 (9th Cir. Apr. 17, 2023) ("Impact blows by punching or
kicking are generally considered intermediate force."); McCrae v. Larned, No. 6:20-cv-2180-MK,
2022 WL 4451844, at *7 (D. Or. July 14, 2022) (citing another court's finding that "punches and knee
strikes are a significant use of force"); Harper v. Cnty. of Merced, No. 1:18-cv-00562-LJO-SKO, 2018 WL
5880786, at *14 (E.D. Cal. Nov. 8, 2018) (finding "dart taser knee kicks to the Plaintiff's head and chest"
to be "significant"); Jones v. Cnty. of San Bernardino, No. EDCV 15-00080-DTB, 2016 WL 4425711, at
*11 (C.D. Cal. Aug. 17, 2016) ("[T]he law clearly established that knee strikes, which constitute
intermediate force, against a noncompliant arrestee can be excessive."); Lopez v. City of Imperial, No. 13cv-00597-BAS(WVG), 2015 WL 4077635, at *7 (S.D. Cal. July 2, 2015) ("Fist and knee strikes may also

9

be considered a significant use of force."). Thus, despite Raethke's assertions, the law seems sufficiently
clear that knee strikes constitute more than a "non-trivial" use of force.
In the present case, construing the facts in the light most favorable to plaintiff, the Court
finds that Raethke's conduct falls under Gravelet-Blondin's prohibition on the use of non-trivial force
against passive resistance. However, this alone does not end the qualified immunity analysis because "the
clearly established law must be 'particularized' to the facts of the case," such as "a case where an officer
acting under similar circumstances as [the defendant] was held to have violated the Fourth Amendment."
White, 580 U.S. at 79. Gravelet-Blondin presents a significantly different factual scenario than that which
Raethke faced—the Gravelet-Blondin plaintiff was a bystander who did not "engage[ ] in [ ] behavior that
could have been perceived by [the officer] as threatening or resisting." 728 F.3d at 1094.
However, plaintiff also draws the Court's attention to Blankenhorn v. City of Orange. 485
F.3d 463 (9th Cir. 2007). In that case, the plaintiff brought a Fourth Amendment violation claim against
officers, alleging that they used excessive force by punching him several times during his arrest. Id. at 467,
469-70. The incident occurred when officers approached the plaintiff, who they believed to be trespassing
at a shopping mall, to "determine his identity and confirm with security whether he was allowed at the
location." Id. at 468. The officers were aware that the plaintiff had a prior robbery conviction and was a
known gang member. Id. at 469. The parties characterized the initial encounter somewhat differently, with
the officers describing the plaintiff as "rude, uncooperative, and verbally abusive," and the plaintiff
admitting only that he was "angry," "loud," used profanity, and threw his driver's license on the ground. Id.
There were also factual disputes regarding whether the plaintiff was acting in a "threatening manner." Id.
at 469.
Eventually, three of the officers attempted to arrest the plaintiff, "struggling for several
seconds before . . . finally tak[ing] him to the ground." Id. At least two officers had arrived to a call for
back-up, and one of the officers involved in the arrest arrived only seconds before the takedown. Id. at 469
n.2. The plaintiff alleged that the officers "jumped on him," but the officers asserted that one officer first
reached for his wrist. Id. The officers alleged that the plaintiff was resisting arrest "by maneuvering his
10

hands and arms under his body," and one officer punched the plaintiff at least four times during the arrest.
Id. at 470. After he was handcuffed, the officers secured his wrists and ankles with hobble restraints. Id.
at 469.
The plaintiff's excessive force claims were based on the three officers "jumping on him,"
the use of hobble restraints, and the punches. Id. at 478-80. Despite the factual disputes, the Ninth Circuit
denied the officers qualified immunity, relying on the holding set forth in Graham v. Connor, 490 U.S. 386,
396 (1989), that "force is only justified when there is a need for force." Blankenhorn, 485 F.3d at 481. The
court held that the officers were "on notice that gang-tackling without first attempting a less violent means
of arresting a relatively calm trespass suspect . . . was a violation of that person's Fourth Amendment
Rights[,]" and that they were "on notice that punching [an arrestee] to free his arms when, in fact, he was
not manipulating his arms in an attempt to avoid being handcuffed was a Fourth Amendment violation."
Id.
The factual similarities between Blankenhorn and the present case are noteworthy. Both
cases: (1) involve plaintiffs who were struck by officers for pinning their arms under their torso; (2) involve
plaintiffs who were passively resisting; (3) involve an arrest performed by three officers, including one
officer who was responding to a back-up request; (4) involve officers who could have believed that the
plaintiff was armed; and (4) involve plaintiffs who were perceived by officers as "uncooperative."
Yet, Raethke argues that the facts are "materially distinguishable," making Blankenhorn
an insufficient basis for clearly established law. Def.'s Mot. 10. There are indeed factual differences
between the present case and Blankenhorn; however, those differences only emphasize that Raethke was
on notice that his alleged conduct would violate plaintiff's rights. For example, Raethke knew that plaintiff
had allegedly been driving recklessly, whereas the Blankenhorn officers suspected that the plaintiff was
trespassing. However, the Blankenhorn officers also knew significantly more about the plaintiff, including
that he was a known gang member and had a prior robbery conviction. Further, the Blankenhorn plaintiff
gave officers no explanation for his lack of cooperation, whereas the plaintiff in this case repeatedly stated
that he could not comply with the officers' orders. Indeed, the Blankenhorn plaintiff admitted that he was
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"angry," "loud," and used profanity, but the plaintiff in this case was only ever described as "frantic."
Finally, the Ninth Circuit highlighted that the Blankenhorn officers did not "first attempt[ ] a less violent
means of arresting" the plaintiff when finding that the officers' use of force was not justified. Blankenhorn,
485 F.3d at 481. In the present case, Killens had already resorted to a lower use-of-force method,
substantiating the implication that Raethke's use of force was not justified under clearly established law.
Raethke also argues that Blankenhorn is inapplicable because it does not involve the use
of knee strikes. Notably, Raethke does not argue that punching would constitute a different level of force
or is otherwise distinguishable from using a knee strike. Regardless, precedent need only address "closely
analogous conduct," and punching an arrestee is not substantively different from a knee strike. See, e.g.,
Harris, 2023 WL 7169552, at *13 ("[P]unches and knee strikes[ ] . . . may fall in the categories of
intermediate to significant."); Stickney, 2023 WL 2976943, at *17 ("Impact blows by punching or kicking
are generally considered intermediate force."); McCrae, 2022 WL 4451844, at *7 (citing another court's
finding that "punches and knee strikes are a significant use of force"). Further, "'[a]n officer is not entitled
to qualified immunity on the grounds that the law is not clearly established every time a novel method is
used to inflict injury.'" Doerle v. Rutherford, 272 F.3d 1272, 1286 (quoting Mendoza v. Block, 27 F.3d
1357, 1362 (9th Cir. 1994)).
Raethke also points to several cases from this district where officers were granted qualified
immunity in excessive force cases, including Carmona-Perez v. City of Salem, No. 6:20-cv-00186-IM, 2023
WL 6216167 (D. Or. Sept. 25, 2023), Gilliland v. Eason, No. 6:22-cv-00496-MO, 2023 WL 6850237 (D.
Or. Oct. 16, 2023), Elifritz v. Fender, 460 F. Supp. 3d 1088 (D. Or. 2020), and Williams v. Baskett. No. 6:19CV-00069-MO, 2021 WL 4494189 (D. Or. Sept. 30, 2021). Def.'s Mot. 7. Carmona-Perez actually
undermines Raethke's qualified immunity arguments because Judge Immergut expressly found that
Blankenhorn governed the defendant-officer's use of palm strikes against the plaintiff and denied the officer
qualified immunity on that claim. 2023 WL 6216167, at *12. Gilliland has little relevance to the present
case considering it involved excessive force claims brought under the Eighth Amendment. 2023 WL
6850237, at *2. Elifritz presents materially different facts given that the plaintiff "carjacked a vehicle,
12

engaged in aggressive road-rage style driving, crashed the vehicle he stole, . . . tried to stab people inside
the shelter," was "wielding a knife," and "tried to grab a bystander." 460 F. Supp. 3d at 1115.
The only arguably similar case is Williams. Yet even this case is readily distinguishable.
In Williams, unlike here, the court first held that the officer's conduct was "objectively reasonable."
Compare 2021 WL 4494189, at *5 with F&R 14.

In its qualified immunity analysis, the court

acknowledged that the officer "used intermediate force to apprehend a nonviolent criminal suspect who he
believed could be in possession of a firearm but who had only engaged in passive resistance." Williams,
2021 WL 4494189, at *5. However, the court noted that in Brown v. Diaz, No. 2:17-cv-01157-KJM-AC,
2020 WL 4755357 (E.D. Cal. Aug. 17, 2020), the case that the plaintiff relied on, the suspect "did not
'pose[e] an apparent threat to officer safety.'" Williams, 2021 WL 4494189, at *5 (quoting Diaz, 2020 WL
4755357, at *10-12). The court emphasized that, the Williams officer knew that the plaintiff "was
commonly in possession of a handgun, that he was likely to flee arrest, and that he had previously been
arrested on related charges." Id. Thus, the court held that Davis did not govern because the Williams officer
"could have reasonably concluded that [the plaintiff] did pose a threat to his safety." Id.
Here, Raethke had no such information about plaintiff. Plaintiff's identity was unknown
until after his arrest, making any inferences that Raethke could have drawn about his criminal history
speculatory, and a spike strip was in front of plaintiff's tire, diminishing any fear that he could flee. Further,
there is a factual dispute regarding whether Raethke, once on the scene, had reason to believe that plaintiff
was armed. Compare F&R 3 ("Raethke heard the 'general broadcast' about the speeding vehicle and that
its driver 'possibly aimed a firearm' at another driver.") with Steffen Decl., Ex. 2, at 13:11-14 ("Before Saint
Helens arrive[d] I could hear [plaintiff] say something about the other vehicle that was following him . . .
had a gun, so I made sure that when Saint Helens officers arrived I . . . informed them of that information.").
Ultimately, reasonableness "'must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.'" Wilkinson v. Torres, 610 F.3d 546, 550 (9th
Cir. 2010) (quoting Graham, 490 U.S. at 396). Putting aside what knowledge Raethke did or did not have
at the time of the arrest, unlike in Williams, Raethke performed this arrest with the Troopers. They were
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primarily responsible for the scene, making them better positioned to assess the scenario and plaintiff's
behavior, and they gave Raethke numerous verbal and behavioral indications that they did not perceive
plaintiff as a safety threat during the arrest. See, e.g., F&R 4 ("Killens 'switched over' to nonlethal force,
and used 'the open-hand custody technique . . . when Killens noticed 'a knee strike coming from Raethke,
Killens put his arm in front of Raethke and said, 'He's good. He's good. We don't need that.'"). The facts in
Williams that warranted granting qualified immunity are simply not present in this case.
In sum, the law is clearly established that (1) an arrestee has a right to be free from the use
of non-trivial force when engaged in passive resistance, and (2) knee strikes constitute a non-trivial amount
of force. Raethke allegedly used knee strikes on plaintiff while he was passively resisting. The factual
circumstances and officer conduct discussed in Blankenhorn are sufficiently analogous to Raethke's alleged
conduct to put him on notice that using knee strikes on plaintiff while he was passively resisting was a
constitutional violation. Further, given the Troopers' conduct, the circumstances that Raethke faced, and
the relevant factual disputes, the Court finds that a reasonable officer in Raethke's position would not have
believed that his conduct was lawful. Therefore, Raethke is not entitled to qualified immunity.

CONCLUSION
Accordingly, defendant Raethke's Motion for Summary Judgment on Qualified Immunity,
ECF [69], is DENIED.

IT IS SO ORDERED.
DATED this 18th day of March, 2024.
______________________
Adrienne Nelson
United States District Judge

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