1

 1 IN THE UNITED STATES DISTRICT COURT

 2 FOR THE DISTRICT OF OREGON

 3 PORTLAND DIVISION

 4

MATS JARLSTROM,an individual, )

 5 )

 Plaintiff, )Case No. 3:14-cv-00783-AC

 6 )

 v. )

 7 )

CITY OF BEAVERTON, an Oregon ) August 25, 2014

 8 municipal corporation, )

 )

 9 Defendant. ) Portland, Oregon

________________________________)

10

11

12

13 MOTION HEARING

14 TRANSCRIPT OF PROCEEDINGS

15 BEFORE THE HONORABLE JOHN V. ACOSTA

16 UNITED STATES DISTRICT COURT MAGISTRATE JUDGE

17

18

19

20

21

22

23

24

25
 2

 1 APPEARANCES

 2 FOR THE PLAINTIFF: MICHAEL E. HAGLUND

Haglund Kelley LLP

 3 200 SW Market Street

Suite 1777

 4 Portland, OR 97201

 5

 6 FOR THE PLAINTIFF: SHENOA L. PAYNE

Haglund Kelley LLP

 7 200 SW Market Street

Suite 1777

 8 Portland, OR 97201

 9

10 FOR THE DEFENDANT: GERALD L. WARREN

Law Office of Gerald Warren

11 901 Capitol Street NE

Salem, OR 97301

12

13 COURT REPORTER: Jill L. Erwin, CSR, RMR, RDR, CRR

 Certified Shorthand Reporter

14 Registered Merit Reporter

 Registered Diplomate Reporter

15 Certified Realtime Reporter

16 United States District Courthouse

 1000 SW Third Avenue, Room 301

17 Portland, OR 97204

 (503)326-8191

18

19 * * *

20

21

22

23

24

25
 3

 1 TRANSCRIPT OF PROCEEDINGS

 2 DEPUTY COURTROOM CLERK: All rise.

 3 THE COURT: Good morning.

 4 MR. HAGLUND: Good morning, Your Honor.

 5 MS. PAYNE: Good morning.

 6 THE COURT: All right. We're here on the record

 7 on defendant's motion to dismiss and plaintiff's motion to

 8 amend. Defendant's motion is docket number 11. Plaintiff's

 9 motion is docket number 16.

10 Mr. Haglund, it seems to me, looking at the briefs and

11 the cases, there has to be an immediate threat of harm.

12 Now, in a -- in isolation, that phrase is subject to

13 interpretation, certainly; but as the cases have defined its

14 borders, the definition seems to exclude the harm that the

15 plaintiff describes these intersections present.

16 So why don't you address that first.

17 MR. HAGLUND: Certainly, Your Honor. In fact, the

18 courts have been pretty clear that when you look at

19 immediate threat of imminent harm, that those words are

20 really a far cry from the actual standard applied. And I'd

21 call your -- I'll point out, first, that the defendants in

22 their reply, make the point -- and I quote from their reply

23 brief -- standing -- it's along the lines of what you said,

24 too, Your Honor -- standing does not depend on a credible

25 threat, but on injury, in fact, that is actual or imminent,
 4

 1 and Jarlstrom's allegations show that there is no real

 2 threat. However, the -- if you look at the Ninth Circuit

 3 case in the environmental -- in NRDC v. EPA, which came down

 4 late last year --

 5 THE COURT: Right.

 6 MR. HAGLUND: -- and it's consistent with a great

 7 body of environmental cases. It's a case where, Your Honor,

 8 the EPA was proposing to register two pesticides.

 9 THE COURT: Right.

10 MR. HAGLUND: And the -- ultimately, you have a

11 very similar situation. There was only what the court

12 characterized as a probabilistic harm that the children of

13 the members of NRDC would be exposed to textiles that were

14 treated with these two pesticides, and the Court made it

15 really clear that standing based upon -- in this instance it

16 was a potential exposure to certain pesticides in clothing.

17 Here, Mr. Jarlstrom has made some pretty detailed

18 allegations, at least in our amended complaint, about the

19 potential exposure to the risk of injury or death transiting

20 Beaverton intersections with yellow light intervals that are

21 too short.

22 And in the NRDC case the Ninth Circuit held that where

23 there's a credible threat of a probabilistic harm,

24 Your Honor, the actual or imminent injury test is met. And

25 I'd like to just quote their precise language. In NRDC they
 5

 1 say, quote, We have consistently held that an injury is

 2 actual or imminent, quoting that phrase, where there is a

 3 credible threat that a probabilistic harm will materialize.

 4 And I think that the NRDC case -- and then there's a

 5 whole host of environmental cases where environmentalists

 6 will allege in their complaints that their members visit a

 7 national forest, and if the thinning is too aggressive, it's

 8 going to have an impact on the nature of their experience.

 9 It's -- here we have, I think, a case that's very much

10 controlled by NRDC v. EPA, because here we have the same

11 kind of probabilistic, and you can argue, somewhat remote

12 harm that these parents were -- of -- these NRDC parents

13 were complaining their children would be exposed to, because

14 they wouldn't be able to, with much precision, figure out

15 whether some of the clothing they bought happened to have

16 these pesticides.

17 THE COURT: Is there a difference, though, between

18 NRDC, the facts, and the facts of this case, in this sense:

19 In NRDC, the source of the harm at issue were pesticides,

20 which have been or were proven to be toxic? Now, we can

21 debate whether and to what extent the exposure to the

22 pesticide is needed -- I mean, how long, how much, over what

23 period of time -- but there seemed to be no dispute in that

24 case that the source of the harm at issue, in fact, was

25 proven to be harmful.
 6

 1 In your case, you have an intersection which has not

 2 proven to be harmful. What we have are the plaintiff's own

 3 calculations based on data acquired over an approximate

 4 nine-month period about the intervals of the yellow-to-red

 5 light sequence. But there's nothing in his complaint and

 6 nothing in any of the materials that's been filed that

 7 indicates that these intersections he's studied have a

 8 higher incidence of accidents either vehicle-to-vehicle or

 9 vehicle-to-pedestrian or vehicle-to-cyclist. It is only

10 theory. There's no actual data that the source of the harm

11 has actually been proved to cause harm.

12 MR. HAGLUND: Well, Your Honor, I would make two

13 points. First, I don't believe that at the motion to

14 dismiss stage one has to have proof, and I don't think that

15 was the situation in the NRDC case where they --

16 THE COURT: This is different, though. Sorry to

17 interrupt, Mr. Haglund.

18 MR. HAGLUND: Sure.

19 THE COURT: But if we're going to talk about it, I

20 think we need to talk about it -- well, I was going to say

21 correctly, but let me say this: We're not talking about

22 whether factual plausibility, under Twombly and Iqbal, is

23 satisfied as -- is the typical motion to dismiss analysis.

24 You have a standing issue here. That sort of shifts the

25 focus from whether you've got enough facts to state a
 7

 1 plausible claim, to whether you have standing.

 2 And now what you -- now what has happened is the

 3 parties have submitted material in support or in opposition

 4 to this motion. I have to look at the facts, and there

 5 aren't any facts, either alleged in the complaint or

 6 provided with any of the materials the plaintiff has filed,

 7 to show that the intersections studied actually have

 8 experienced a higher incidence of accidents that then has

 9 been causally connected to the shortened interval that the

10 plaintiff claims is improper, incorrect, dangerous,

11 whatever. Much unlike pesticides, which, in the NRDC case,

12 I think there was no dispute. Pesticides are bad if exposed

13 over a period of time or whatever. But there was no issue

14 about the source of that being a possible harm.

15 MR. HAGLUND: Well, I have a little trouble with

16 the distinction. I agree with pesticides there's no

17 question there's harm, but I think it is also true that

18 there's no question that if one is struck by an automobile,

19 either as a pedestrian or a passenger or as a driver, that

20 there's serious risk of injury or harm.

21 And I point out that in the proposed amended complaint

22 we actually allege in paragraph 18, in our proposed amended

23 complaint, that the short duration of the yellow light

24 intervals is the direct cause of a significant number of

25 accidents at signal light intersections within the city of
 8

 1 Beaverton.

 2 THE COURT: But that's a conclusory allegation.

 3 There's no allegation, for example, that says during the

 4 period studied the number of accidents at this intersection

 5 exceeded by 50 percent or 20 percent or were a certain

 6 number compared to the average of comparable intersections.

 7 There's nothing like that. And I am required to take --

 8 well, actually not. In a typical motion to dismiss case,

 9 under Twombly and Iqbal, well pleaded allegations are taken

10 as true, unless they're conclusory. But here you don't get

11 that benefit. And there's nothing in any of the material

12 submitted to -- here's -- here's the ultimate point:

13 Nothing to move the facts alleged into the realm under even

14 the NRDC case where that credible threat can be either

15 properly alleged or reasonably inferred based on the

16 allegations. It's simply numbers on a page, theoretical,

17 that have not been proved through any actual incidents. And

18 that's my concern.

19 MR. HAGLUND: Well, Your Honor, I beg to differ

20 with you in one respect.

21 THE COURT: Okay.

22 MR. HAGLUND: You're indicating that for purposes

23 of the inquiry into standing here that you -- the Court is

24 not required to take as true all of the allegations in our

25 complaint and to give those allegations all the inferences
 9

 1 that could be given in favor of the plaintiff. And I would

 2 refer Your Honor to the Ninth Circuit case of Maya v. Centex

 3 Corporation, 2011, which cites to the Supreme Court case of

 4 Warth v. Seldin, and I'm quoting it: For purposes of ruling

 5 on a motion to dismiss for want of standing, both the trial

 6 and reviewing courts must accept as true all material

 7 allegations of the complaint and must construe the complaint

 8 in favor of the complaining party.

 9 So the fact that Mr. Jarlstrom, who's a very capable

10 engineer, as reflected in the exhibit that he personally

11 prepared, that's attached to the complaint, and if you look

12 at the more detailed allegations in the amended complaint,

13 which I believe is appropriate, given the stage of -- early

14 stage of this case --

15 THE COURT: Right.

16 MR. HAGLUND: -- I think we meet the test where

17 you have to take those allegations as true.

18 I don't think that it's a proper distinction to -- to

19 look at NRDC and say the pesticides' potential exposure,

20 which is, you know, arguably hypothetical, remote,

21 conjectural, but, you know, definitely could happen and met

22 the probabilistic test that is -- I think the bar is really

23 quite low for standing in the United States and in the Ninth

24 Circuit, and I don't think that -- that you can really

25 differentiate -- where we have allegations that these light
 10

 1 intervals are too short and they expose the plaintiff to the

 2 risk -- imminent risk of injury or death and that there are

 3 more accidents, as noted in paragraph 19. I think we meet

 4 the test, Your Honor. Especially where everything has to be

 5 taken as true at this stage, plus reasonable inferences.

 6 THE COURT: Is it your position that the

 7 allegation of more accidents at these intersections is not a

 8 conclusory allegation?

 9 MR. HAGLUND: No. I do -- we do take that

10 position, Your Honor, because we -- unfortunately, discovery

11 has been stayed. We're confident that once we get access to

12 the accident data that the City has, we'll be able to

13 provide substantial proof of our position.

14 THE COURT: If that were the standard, Twombly and

15 Iqbal would be irrelevant, because you could file a lawsuit,

16 make allegations, very generally, of "the defendant was

17 negligent; the product is defective; the doctor committed

18 malpractice," and then immediately move to discovery to try

19 to prove up those.

20 Twombly and Iqbal requires, precisely, to avoid, in

21 part, unnecessary expense in discovery. It requires

22 pleading plausible claims. And that's why I ask, if -- if

23 you're going to rely on the motion to dismiss standard, I

24 can't ignore Twombly and Iqbal. And those cases are clear

25 that conclusory allegations need not be accepted as true.
 11

 1 They have to be well pleaded.

 2 If you're going to disagree that on a standing

 3 challenge the standard is no different than the whole

 4 standard has to be taken into account and there's certainly

 5 no allegations in the complaint that the plaintiff actually

 6 did experience an accident, did receive a ticket, did have a

 7 remiss experience. There's nothing there. It's simply a

 8 conclusory allegation there were more accidents here, but no

 9 specific allegations to demonstrate two things: That there

10 were more allegation -- sorry, there were more accidents,

11 and those accidents were causally connected to the shorter

12 lights.

13 MR. HAGLUND: Well, Your Honor, I'm sure we can

14 make even more specific allegations along those lines, but

15 we do not -- I would concede that paragraph 19 does not go

16 into that level of detail. I wouldn't characterize it as a

17 completely conclusory paragraph, but I would acknowledge

18 here that it does not have that level of specificity.

19 THE COURT: All right. Thank you.

20 MR. HAGLUND: If we're allowed to amend, we can

21 address that.

22 THE COURT: Okay. Thank you.

23 So, Mr. Warren, how does one distinguish NRDC from the

24 facts here?

25 MR. WARREN: Your Honor, I believe that NRDC is
 12

 1 part of the cases that talk about the capable of repetition

 2 doctrine. I think that -- because, as the Court said, the

 3 pesticides have been proven to cause harm. And they -- they

 4 cite in their materials that all they have to do is show a

 5 threat -- a credible threat of future injury. And that's

 6 part of that coin of "capable repetition" for the standing

 7 doctrine where there'd been a past injury or facts that

 8 would show something that would cause an injury, perhaps,

 9 that -- that -- then the standing may have a relaxed show of

10 credible threat of future injury -- injury standard.

11 A case that came out two weeks ago in the Ninth Circuit

12 was Coons v. Lew, and I just have the Westlaw cite for it,

13 Your Honor. It's 2014 WL3866475. It was filed on

14 August 7th. There was two orthopedic surgeons challenging

15 the Affordable Care Act, and they alleged substantive due

16 process grounds and all that, but the Court said -- with

17 regard to standing, said "We've repeatedly reiterated that

18 threatened injury must be certainly impending to constitute

19 injury in fact and that allegations of possible future

20 injury are not sufficient."

21 And that, we believe, is the standard that the Court

22 needs to apply for the standing in this case; that the NRDC

23 cases and the City of Los Angeles v. Lyons case that they

24 relied upon is a situation where there's been a prior

25 injury -- the chokeholds in the LA case -- and then you have
 13

 1 to show there's a credible threat of future injury.

 2 In this case we agree with the way the Court seems to

 3 be headed; that the, you know, facts here, at best, show a

 4 generalized threat of harm, and that case of -- the Supreme

 5 Court case of Warth -- I think this is in my brief -- Warth,

 6 W-A-R-T-H, v. Seldin, S-E-L-D-I-N, 422 U.S. 409. It's a

 7 1975 case. But it was a zoning and land ordinance case

 8 where low income and moderate income people might have been

 9 affected, and the Court had a generalized grievance of --

10 that might apply to a large class of citizens doesn't result

11 in standing.

12 And that's, at best, what they have is -- there's been

13 no particularized injury alleged to Mr. Jarlstrom, even in

14 the future materials they don't, so we think they fall back

15 to it's not a "capable of repetition" type standing issue.

16 It's an injury in fact. And it's not a certainly impending

17 injury sufficient to constitute standing.

18 THE COURT: Well, let's talk about the capable of

19 repetition.

20 One thing the complaint does seem adequately to allege

21 is these yellow lights consistently cycle to red on a

22 shortened interval. It's not that they occasionally happen,

23 but all of a sudden you're going to an intersection you've

24 gone through for the last three or six months, used to a

25 particular light cycle, and all of a sudden the light cycles
 14

 1 from yellow to red in half the time that it normally does.

 2 What the complaint alleges, I think, with -- at least

 3 on this piece, sufficient specificity, is it's always doing

 4 this and the interval is too short and apparently too short

 5 under the plaintiff's reading of vehicle code or whatever

 6 other regulations apply.

 7 Why doesn't that meet the "capable of repetition"

 8 requirement?

 9 MR. WARREN: Well, there's been no injury. In all

10 the "capable of repetition" cases, the LA chokeholds, the

11 gentleman had been choked upon the traffic stop. In the

12 Ibrahim case the person was on the no-fly list and had been

13 prevented from coming back to the United States. There had

14 been an actual injury in those cases.

15 In this case, Mr. Jarlstrom doesn't allege any injury

16 at all.

17 THE COURT: So two things: First, there has to

18 actually have been an injury?

19 MR. WARREN: Yes, Your Honor.

20 THE COURT: Is that how you read the cases?

21 MR. WARREN: Yes, sir.

22 THE COURT: How do we square that with NRDC?

23 MR. WARREN: As the Court --

24 THE COURT: Because there were -- now, I might

25 misrecollect the facts, but I don't recall there being any
 15

 1 actual past injury to any of the plaintiffs or their

 2 members -- to the plaintiff or any of its members in that

 3 case.

 4 MR. WARREN: And I can't recall exactly the facts

 5 either, Your Honor, but my recollection is that that -- it's

 6 what the Court said: Pesticides are a known -- known to

 7 cause injury and have caused injury. And I guess maybe

 8 that's how it would fit in the "capable of repetition."

 9 It's a known carcinogen or whatever. And therefore the

10 standing may have been -- still not relaxed to the point

11 that they have -- we don't believe have made it, but the bar

12 might be a little lower in those cases where you've got the

13 carcinogen, or whatever, the pesticide activity.

14 But in the cases that are real clear about the "capable

15 of repetition" doctrine, you know, the incredible threat of

16 future injury does require that there have been an injury.

17 And Mr. Jarlstrom doesn't have any injury.

18 And, like I cited in the Coons v. Lew, it has to be

19 certainly impending to constitute an injury in fact, and

20 merely alleging -- we don't believe that others have had

21 accidents at the intersection makes it impending to

22 Mr. Jarlstrom, who's the plaintiff.

23 THE COURT: Well, let's go back to NRDC. If our

24 assumption is correct that past injury to others was the

25 basis for finding pesticides harmful and therefore capable
 16

 1 of repetition going forward, wouldn't that suggest that

 2 Mr. Jarlstrom himself doesn't actually have to have been

 3 involved in an intersection collision there as long as

 4 others were?

 5 MR. WARREN: Well, Your Honor, I would like to

 6 submit a subsequent brief if it were -- a supplemental brief

 7 that would help the Court, because I don't have that case in

 8 front of me, and I would like to review the facts and the

 9 distinction for standing purposes and analyzing whether they

10 had standing in this case or not. And certainly in the

11 constitutional claim they allege is a state-created danger.

12 I don't know how you even get that with the facts that they

13 have that they somehow have been put in danger. That's --

14 that should be on standing. But I prefer to submit a

15 supplemental memorandum, if the Court wants me to

16 distinguish that case.

17 THE COURT: All right. Thank you.

18 Mr. Haglund, anything else on standing?

19 MR. HAGLUND: Well, I just would point out that I

20 do have the NRDC case, and I reviewed it carefully before

21 this argument. There's nothing in it to suggest that you

22 have to have an actual injury to the plaintiff. The key is

23 a very low bar and injury is actual or imminent where

24 there's a credible threat that a probabilistic harm will

25 materialize. And that's the quote from the case.
 17

 1 And there was absolutely no -- I know the facts of

 2 NRDC. There was nothing in the record there indicating that

 3 any one of the children of the NRDC parents -- the NRDC

 4 members who were the plaintiffs -- that there had been any

 5 contact yet with any textile that conveyed this

 6 conditionally registered pesticide.

 7 THE COURT: All right. So let's talk about --

 8 let's move from standing to federal question.

 9 We have a stoplight at a city intersection that the

10 plaintiff alleges cycles too quickly from yellow to red.

11 What's the federal right implicated by that, Mr. Haglund?

12 MR. HAGLUND: We made it very clear in our papers,

13 Your Honor, that the federal right is that if the City of

14 Beaverton, which has had the opportunity to consider whether

15 or not to correct this problem, it's made the considered

16 choice not to address this problem and, as a result, has put

17 the plaintiff in risk of potential injury or death

18 transiting these intersections.

19 And we cite the case law that makes it very clear that

20 in that sort of situation you meet one of the exceptions

21 that allows you to assert this as a Section 1983 claim and a

22 violation of substantive due process.

23 The LA chokehold case is an example of -- well, in that

24 case, actually, standing was not found, because there it was

25 just too -- the probabilistic harm standard was not met.
 18

 1 But there are multiple cases that we cited in our papers,

 2 where, if -- if the City makes a particular decision, then

 3 it is -- that puts the plaintiff at -- in imminent danger,

 4 then the Section 1983 claim will lie.

 5 One case that is a recent case, that -- we didn't cite

 6 it for this proposition, but it helps address your point,

 7 Your Honor, and that is the case in this district that came

 8 down last year. It's the Hammel v. Tri-Met case that we

 9 cited in our opposition for other reasons, but it gets to

10 your point. That's the case -- the very unfortunate

11 situation where the Tri-Met bus driver hit five people

12 making that --

13 THE COURT: Right.

14 MR. HAGLUND: -- I think it was a left-hand turn.

15 THE COURT: Yes.

16 MR. HAGLUND: And the Court found there that the

17 deliberate -- actual deliberation test was met, and the

18 statement by Judge Mosman there -- and I quote -- is in such

19 cases the Court will find a substantive due process

20 violation if the state actor consciously disregards a

21 substantial risk of serious harm. And we -- you don't have

22 to have a federal actor.

23 It's -- there are -- I've handled a number of Section

24 1983 cases that don't involve federal actors.

25 THE COURT: They don't have to involve federal
 19

 1 actors. They can involve state actors, but there still has

 2 to be a federal right that's infringed.

 3 MR. HAGLUND: Right. As we point out in our

 4 papers, I think, very clearly, if a state government -- in

 5 this case, the City of Beaverton makes the considered choice

 6 that it did here, to not change these light intervals after

 7 Mr. Jarlstrom has made -- we -- our proposed amended

 8 complaint goes into more detail on this -- the number of

 9 times he's been before the counsel, the data that he's

10 provided to them.

11 THE COURT: I saw all that.

12 MR. HAGLUND: You saw all that?

13 THE COURT: Yes.

14 MR. HAGLUND: Where they make that considered

15 choice, they fall. And then the only other item we have to

16 demonstrate is that it does give -- that we have -- we meet

17 the standing test that there's this imminent risk of -- that

18 there's a credible threat of serious harm to our client.

19 THE COURT: All right. Thank you.

20 Mr. Warren?

21 MR. WARREN: Your Honor, I guess they have to meet

22 the test that it shocks the conscious of this Court in order

23 to get the substantive due process, and I don't see how the

24 facts in this case would rise to that level. The fact is

25 the City's looked at the state law and looked at the
 20

 1 analysis that Mr. Jarlstrom has provided, and they disagree.

 2 So there's a disagreement that might be resolved at the

 3 state legislature, but the local political body is not

 4 convinced that Mr. Jarlstrom's data is correct.

 5 So is that the type of conduct that shocks this Court's

 6 conscious? We don't think it is. And as they acknowledge

 7 in one of their footnotes, nobody has found a case along

 8 these lines that would suggest that a state-created danger,

 9 which apparently is the 14th Amendment, substantive due

10 process provision they relied upon, that they could be

11 expanded this far. And we don't believe that it should be a

12 federal claim.

13 THE COURT: Not expanded this far because it's not

14 the type of danger or for some other reason?

15 MR. WARREN: Well, typically, in the substantive

16 due process you have some -- some actor, state acting color

17 of law, who's placed a person in greater danger than what

18 they otherwise have found themselves in.

19 And the danger, then, results in some actual injury,

20 and, I mean, I'm very familiar with all the substantive due

21 process cases, because it comes up quite a bit in all the

22 police cases that I defend, and you have the cases of the --

23 where 911 is called and they -- the gentleman, instead of

24 police allowing the medics to come in, they put him inside

25 the house, they lock it up and call off the ambulance, and
 21

 1 he dies during the night. There was a danger created by the

 2 conduct of what they did.

 3 In this case the City believes they're following state

 4 law. They believe the timing is accurate, and they haven't

 5 created any danger greater to him than they believe they

 6 have anybody else. They put traffic lights in and they

 7 control them in the manner they do for safety reasons. And

 8 so how that can then be turned to creating some danger just

 9 doesn't seem to fit in any federal question or any

10 substantive due process case that I've seen.

11 THE COURT: That seems more -- because, as you

12 point out, the parties have a dispute. But that seems more

13 to the merits of the underlying disagreement between the

14 sides.

15 What I'm looking at is -- I'll use the phrase that

16 you've used, and I know the plaintiff has disagreed with the

17 applicability of this, but let's use "shocks the conscious."

18 When I look at that, because this is a motion to dismiss --

19 a motion to dismiss, isn't -- isn't my assessment to be

20 based on what's well pleaded in the complaint? And what's

21 pleaded in the complaint is you have a yellow light that

22 cycles faster to red than state law or regulations permit.

23 And if that happens, the chances of vehicles colliding in

24 that intersection logically increase, and the City knows

25 that, and they're not doing anything to change it. So I'm
 22

 1 not opining on the merits. I'm just looking at the

 2 allegations, because that's where we are at this stage.

 3 How does the City's knowledge of the possibility of

 4 increased accidents at this intersection and not changing

 5 the light intervals, how does that not meet the "shocks the

 6 conscious" tests at this stage?

 7 MR. WARREN: Well, then I think anything can meet

 8 the "shocks the conscious" test, because they haven't

 9 established that the City of Beaverton was presented with

10 all these statistics showing accidents happening as a direct

11 result of the timing that they allege is incorrect, which,

12 again, we dispute. That does get to the merits. I agree.

13 They talked a little bit about the merits. I'm just

14 presenting that to the Court.

15 I understand it's not relevant to your analysis, but

16 the "shocks of conscious" standard when they haven't alleged

17 that the City of Beaverton was presented with all this data

18 and accidents at this intersection and, yet, they've

19 deliberately ignored that. And, therefore, he has an injury

20 or he has a credible threat of future harm if that's what

21 the Court thinks the test is. Then maybe that is enough to

22 shock the conscious.

23 But there's a disconnect between his conclusory

24 language and anything that's been presented to the City to

25 show they've been deliberately indifferent. He even alleges
 23

 1 he went there and presented testimony and they disagreed.

 2 All he's shown is that there's a disagreement in the timing

 3 that should govern that light and what the motor vehicle

 4 code says.

 5 If we get to the merits, ultimately, you know, we'll

 6 get to those other things I brought up. But the fact is at

 7 this stage there's some step missing before it ought to

 8 shock this Court's conscious. And that is what the City of

 9 Beaverton actually was told about actual accidents. Not

10 just because they allege it's -- there's a chance, or

11 whatever the language they use in paragraph 18, significant

12 accidents. He didn't turn around and say "we presented all

13 that data and they've done nothing to it with that, so

14 therefore they're deliberately indifferent to the harm that

15 I'm facing."

16 So it seems they're missing a step before it ought to

17 shock conscious of the federal court.

18 THE COURT: All right. Thank you.

19 Mr. Haglund, anything else on that?

20 MR. HAGLUND: Your Honor, I would just add that

21 the key case law we cite for purposes of this being a

22 legitimate Section 1983 claim is the -- it's on pages 10 and

23 11 of our opposition, where we note that the Fourteenth

24 Amendment, in a number of cases holds that citizens are

25 protected against unjustified intrusions on personal safety.
 24

 1 And although a state actor does not have a constitutional

 2 duty to protect parties from harm from third parties, there

 3 are two exceptions to that general rule. The special

 4 relationship exception, which is not applicable here, and

 5 the danger creation exception, which is what we contend does

 6 apply here. And the only other point I'd make is the

 7 "shocks the conscious" standard has been determined to be

 8 equivalent to the deliberate indifference test, which in

 9 multiple cases you see the courts concluding that if the

10 state actor has had the chance to reconsider or step back

11 from a decision previously made and then refuses to do so,

12 that that is a deliberate decision by them and can qualify

13 for the deliberate indifference, provided you also have the

14 danger creation exception met, which we think we do here.

15 THE COURT: The danger that exists, exists, in

16 part, because of the presence of vehicles on the road;

17 correct?

18 MR. HAGLUND: Yes.

19 THE COURT: All right. I know this is a little

20 bit silly, but, you know, humor me. If nobody drove through

21 that intersection, it wouldn't matter how quickly the light

22 cycles went from yellow to red. People just don't drive

23 through it; right? I know that's extreme, but, I mean --

24 MR. HAGLUND: I do not disagree with that.

25 THE COURT: You have to have the cars --
 25

 1 MR. HAGLUND: Right.

 2 THE COURT: -- to create the danger.

 3 It's not just the light and it's not just the cars.

 4 It's both. Would you agree?

 5 MR. HAGLUND: Yes.

 6 THE COURT: The fact that third parties, members

 7 of the public driving vehicles through the intersection,

 8 contribute to the danger, does that make a difference or

 9 does that not make a difference with respect to the creation

10 of the danger exception.

11 MR. HAGLUND: I don't think it makes a difference.

12 What we have here is a situation where -- the City of

13 Beaverton, like every municipality in the state of Oregon,

14 has to make its own decisions about how to time its yellow

15 light intervals. If they're done in a way that's

16 fundamentally done outside the zone of what the best and

17 safest practices will be, which will prove, ultimately, then

18 when they take on the duty to control intersections as part

19 of their police power, for the benefits of their citizens

20 and keeping those intersections as safe as reasonably

21 possible, when they don't meet the test of the best

22 practice, they are exposing their citizens to an increased

23 risk of danger of injury or death. We think that squarely

24 falls within this danger creation exception.

25 They are -- the fact that they are acting to control
 26

 1 third-party behavior, namely folks driving through or

 2 walking across intersections, is -- is appropriate; but

 3 it -- if they deliberately make a decision that they won't

 4 step back from doing it wrong and it does create danger, as

 5 alleged in our complaint, we're entitled to proceed further.

 6 And if we prove up our case down the road, we'll be entitled

 7 to injunctive relief.

 8 THE COURT: All right. Thank you.

 9 All right. Those are the questions I had. I will let

10 each of you add whatever in addition you have to say that

11 you haven't had a chance to say in response to my questions.

12 Mr. Warren, it's your motion, at least on the motion to

13 dismiss, so go ahead.

14 MR. WARREN: Did you say add anything that I want

15 to say at this point?

16 THE COURT: Anything you haven't had a chance to

17 say yet. Keep in mind I've read everything.

18 MR. WARREN: Yeah. No, Your Honor. The only

19 thing. I don't know if it -- is the Court just addressing

20 the first motion now? The motion to dismiss?

21 THE COURT: Yeah. Giving you a chance to add

22 anything else you want to add on the motion to dismiss?

23 MR. WARREN: No, Your Honor.

24 THE COURT: Okay. On the motion to dismiss,

25 Mr. Haglund?
 27

 1 MR. HAGLUND: Your Honor, we've made all our

 2 points.

 3 THE COURT: All right. What about on the motion

 4 to amend? Anything else?

 5 MR. HAGLUND: No. I think the standard is clear

 6 that at this stage of the case leave should be freely given

 7 to amend a complaint. In this district, my experience is

 8 that at this stage that motion should absolutely be granted.

 9 So we'll rest on our papers.

10 THE COURT: All right. Mr. Warren, anything on

11 the motion to amend?

12 MR. WARREN: Well, Your Honor, I think we made the

13 point, but there is another case on it. The legal basis for

14 the cause of action is tenuous, as we ask the Court to find,

15 the futility would support denying the motion to amend.

16 Futility alone, you wouldn't have to add -- look at all the

17 other factors. And that's Morongo Band of Mission Indians

18 v. Rose, Ninth Circuit, 1990 case, 893 F2d 1074. We did

19 cite a similar case in our materials, but that one actually

20 says that principle where the legal basis for the cause of

21 action is tenuous, futility supports refusal to grant leave

22 to amend.

23 THE COURT: Thank you. All right. Thank you very

24 much. The arguments were helpful. I'll take it under

25 advisement.
 28

 1 MR. HAGLUND: Thank you, Your Honor.

 2 MR. WARREN: Thank you.

 3 (Hearing concluded.)

 4

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
 29

 1 C E R T I F I C A T E

 2

 3 MATS JARLSTROM,an individual, )

 )

 4 Plaintiff, )Case No. 3:14-cv-00783-AC

 )

 5 v. )

 )

 6 CITY OF BEAVERTON, an Oregon )

municipal corporation, )

 7 )

 Defendant. )

 8 ________________________________)

 9

10

11 MOTION HEARING

12 August 25, 2014

13

14 I certify, by signing below, that the foregoing is

15 a true and correct transcript of the record of proceedings

16 in the above-entitled cause. A transcript without an

17 original signature, conformed signature, or digitally signed

18 signature is not certified.

19

20 /s/Jill L. Erwin, CSR, RMR, RDR, CRR

____________________________________

21

Official Court Reporter Date: September 5, 2014

22

23

24

25