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Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

ELLEN F. ROSENBLUM

Attorney General

HEATHER J. VAN METER #983625

ANDREW D. CAMPBELL #022647

Senior Assistant Attorneys General

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

Telephone: (503) 947-4700

Fax: (503) 947-4791

Email: Heather.J.VanMeter@doj.state.or.us

Andrew.D.Campbell@doj.state.or.us

Attorneys for Defendants Robert Wayne Edwards and State of Oregon

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JUSTIN MICHAEL WILKENS,

Plaintiff,

v.

ROBERT WAYNE EDWARDS, in his

individual capacity; THE STATE OF

OREGON,

Defendants.

Case No. 6:14-cv-00907-MC

REPLY IN SUPPORT OF DEFENDANTS'

MOTION FOR SUMMARY JUDGMENT

REPLY ON STATEMENT OF FACTS

1. Plaintiff does not appear to dispute defendants’ statement of facts, ¶1. Plaintiff adds

additional facts that are not material to defendants’ motion.

2. Plaintiff does not appear to dispute defendants’ statement of facts, ¶2. Plaintiff separately

claims he could not see the multiple lights flashing on Captain Edwards’ police vehicle or hear

the police vehicle siren, however plaintiff admitted at his deposition that he had an obligation to

be able to see if emergency or police vehicles are behind them. Van Meter Dec., Exh. A

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(plaintiff’s depo.), 137:12-25. Whether plaintiff could see and hear Captain Edwards’ police

vehicle is not relevant to defendants’ summary judgment motion, including qualified immunity.

3. Plaintiff does not appear to dispute defendants’ statement of facts, ¶3.

4. Plaintiff appears to admit he passed a truck in a double yellow “no passing” zone.

Plaintiff does not dispute that he also passed a sedan in a double yellow “no passing” zone, but

argues the sedan driver waved him past thus making the illegal pass less illegal. Plaintiff

disputes the fact he was driving 80 mph however, as defendants noted in their motion, plaintiff

testified repeatedly at his deposition that he did not know his rate of speed and therefore plaintiff

has no ability to dispute Captain Edwards’ testimony or the video evidence regarding his rate of

speed. Van Meter Dec., Exh. A, 135:11-18 (“I never looked at my speedometer”); 137:2-8,

141:14-143:6. Unwillingness to admit or not knowing something is not the same as a disputed

material fact supported by admissible evidence.

5. Plaintiff does not appear to dispute defendants’ statement of facts, ¶5, except again

disputing Captain Edwards’ testimony on plaintiff’s rate of speed (see ¶4 above).

6. Plaintiff does not dispute that the contact between Captain Edwards’ police vehicle and

plaintiff’s motorcycle was a low-speed three- to five-mile per hour contact. Van Meter Dec.,

Exh. A, 166:2-4. Plaintiff does not dispute that Captain Edwards ordered plaintiff to the ground

multiple times without gaining plaintiff’s full compliance. Plaintiff disputes that Captain

Edwards did not expect plaintiff to come to a complete stop at the intersection, although plaintiff

has no basis to testify regarding Captain Edwards’ expectations. Plaintiff similarly disputes that

Captain Edwards unintentionally made low-speed contact with plaintiff’s motorcycle, although

again plaintiff has no basis to testify regarding Captain Edwards’ intent or state of mind. There

can be no dispute that Captain Edwards braked hard to avoid contact with plaintiff’s motorcycle,

as is visible in the video.1Plaintiff admitted in his deposition that Captain Edwards’ losing

1

Plaintiff correctly points out that Captain Edwards was unaware the police vehicle he was using

had a video system, providing further evidence that Captain Edwards’ contact with plaintiff was

unintentional. If Captain Edwards intended to collide with plaintiff, thinking no video was

available, he would not bother braking at all.

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control of his vehicle was unintentional, an accident, and Captain Edwards “couldn’t get his

vehicle to stop.” Van Meter Dec., Exh. A, 130:23-132:18 (plaintiff also stating, somewhat

confusingly, it was “intentional” because Captain Edwards did not have his sirens on for the

entire high-speed chase). Plaintiff also, again, attempts to dispute plaintiff’s rate of speed or that

the incident was a “high speed pursuit,” without any basis to do so (see ¶¶4, 5 above). Plaintiff

separately appears to take issue with Captain Edwards not “warning” plaintiff before using a

push-kick, which is undisputed, but plaintiff fails to explain how a “warning” before a kick is

material. Plaintiff does not appear to dispute the remainder of ¶6.

7. Plaintiff does not appear to dispute that Captain Edwards ordered plaintiff to the ground

multiple times with drawn firearm without gaining plaintiff’s full compliance. Plaintiff does not

dispute that, rather than getting down, he “held his hands out at his hips and said ‘[w]hat’s going

on?’” (Motion, ¶7; Complaint, ¶19). Separately, plaintiff appears to argue he could not hear the

requests because he had a motorcycle helmet on, which is not material to defendants’ summary

judgment motion. Plaintiff does not appear to dispute the remainder of ¶7.

8. It is unclear whether plaintiff disputes that Captain Edwards’ flat-foot push-kick landed

in plaintiff’s chest (Complaint, ¶21, 41) and possibly glancing the bottom of plaintiff’s helmet

(Motion, ¶8), because plaintiff refers at various times to the chest, left shoulder, chest and neck,

and collarbone. See Plaintiff’s Response; Van Meter Dec., Exh. A, 71:2-25. Regardless, the

video shows the kick, and where the kick landed is not material to defendants’ motion. Plaintiff

does not appear to dispute the remainder of ¶8, except by stating “plaintiff disputes the accuracy

of the allegations contained in paragraph 8,” without providing any admissible evidence to

actually contradict the facts contained in paragraph 8. Disputes of material fact must be

supported by admissible evidence not argument or simple denial. Fed R. Civ. P. 56.

9. Plaintiff does not appear to dispute defendants’ statement of facts, ¶9. Specifically, does

not dispute that Captain Edwards did not know of any pain or injuries and when asked if plaintiff

needed a medic plaintiff said no. Indeed, in response to ¶10, in his own declaration (¶7), and in

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his deposition (Van Meter Dec., Exh. A, 172:4-10), plaintiff admits he first told Captain Edwards

of pain after he was lifted to his feet. Plaintiff separately states Captain Edwards “jabbed his

knee” into plaintiff’s back and “handcuffed him in an extremely aggressive manner,” but does

not contradict that Captain Edwards handcuffed plaintiff consistent with his training, then lifted

plaintiff’s face shield at plaintiff’s request, read plaintiff his Miranda rights, heard plaintiff say “I

didn’t know you were a cop,” helped plaintiff to his feet, and lifted plaintiff’s motorcycle.

Plaintiff also separately states Captain Edwards “yanked” plaintiff to his feet with his injured left

arm, which is contradicted by the video.

10. Plaintiff does not dispute in response to ¶9 that, when Captain Edwards asked plaintiff if

he needed a medic when plaintiff was on the ground, plaintiff said no. Plaintiff responds to ¶10

by stating plaintiff “cried out in pain” apparently while being handcuffed, although if this

occurred it would have been with full helmet and closed face shield on, and plaintiff does not

claim Captain Edwards heard the alleged “cry.” Plaintiff admits he did not report and Captain

Edwards did not know of any pain or injuries until after plaintiff was lifted to his feet. It is

immaterial whether Captain Edwards learned plaintiff was in pain soon after plaintiff was lifted

to his feet or after Lane County Sheriff deputies arrived, because Captain Edwards had no further

physical contact with plaintiff after he was lifted to his feet.

11. Plaintiff “disputes” that Captain Edwards’ actions were reasonable because plaintiff does

not think police officers should “assume the worst,” however plaintiff presents no admissible

evidence contradicting ¶11, as required by Fed. R. Civ. P. 56.

12. See defendants’ Motion to Strike, incorporated by reference as if fully set forth herein.

13. Plaintiff does not appear to dispute defendants’ statement of facts, ¶13. Plaintiff

separately claims existence of a conspiracy, without any evidentiary support, that Lane County

Sheriff deputies issued multiple citations to plaintiff “in an attempt to insulate [Captain Edwards]

from civil liability.” Plaintiff’s argument ignores the fact that plaintiff admits to committing two

of the events for which he was cited, driving uninsured and illegally passing a vehicle. The

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outcome of the citations is not admissible or material to defendants’ motion, especially given the

Lane County District Attorney’s severe budget issues.

14. Plaintiff incorrectly claims Captain Edwards was “reprimanded” for his conduct,

however more complete records (all previously produced to plaintiff’s counsel) reflect that

Oregon State Police reviewed the entire incident, and concluded the accident was unavoidable

but Captain Edwards forgot to tell his supervisor of use of force when he initially called his

supervisor to report the accident, instead discussing it with his supervisor approximately three

hours later. The Lane County District Attorney’s Office also reviewed the incident and cleared

Captain Edwards of any wrong-doing. Van Meter Dec., Exh. B (Use of Force documents,

attorney eyes only, filed under seal). The information is not material to defendants’ motion.

15. Plaintiff correctly states Captain Edwards’ self-reported actions in a 2014 Use of Force

incident were upheld as appropriate, including terminating the high-speed chase due to danger

just as he attempted to do with plaintiff in August 2012, and that Captain Edwards properly selfreported that he should have turned his siren on one road earlier.

REPLY POINTS AND AUTHORITIES

A. MOTION 1: THERE IS NO FOURTH AMENDMENT VIOLATION WITHOUT A

SEIZURE, OR FOR AN UNINTENTIONAL COLLISION

Defendants’ first summary judgment motion is only against the first of five bases for

plaintiff’s first claim for relief based on alleged excessive use of force by Captain Edwards in

allegedly “ramming his police vehicle into Plaintiff’s motorcycle causing him to fall to the

ground with the bike.” Complaint, ¶41. Defendants’ motion against this part of plaintiff’s first

claim for relief is based on the undisputed legal point that violations of the Fourth Amendment

require intentional acts; unintentional or accidental actions are legally insufficient.

In this case, Captain Edwards accidentally contacted plaintiff’s motorcycle. There can be

no dispute that Captain Edwards attempted to stop his vehicle to avoid contacting plaintiff’s

motorcycle -- the nose of Captain Edwards’ vehicle can easily be seen diving down due to his

braking just before the contact occurred. Van Meter Dec., Exh. D. There is no dispute that the

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contact was low-speed, at three- to five-mile per hour. Based on the evidence, Captain Edwards’

contact with plaintiff’s motorcycle was not an intentional “ramming” as plaintiff’s complaint

alleges but merely an unintentional act, and does not constitute the type of intentional conduct

required to support a Fourth Amendment excessive force unlawful seizure claim.

Plaintiff does not appear to respond to this motion, specifically plaintiff does not appear

to contest that Captain Edwards was braking hard to avoid colliding with plaintiff’s motorcycle

and the contact was unintentional. Rather, plaintiff’s response appears to argue that Captain

Edwards should not have thought plaintiff was evading him in the first place. Based on the

evidence and argument presented on this issue, Captain Edwards is entitled to summary

judgment on the first of the five listed bases for plaintiff’s first claim for relief.

Furthermore, based on the undisputed expert medical testimony, plaintiff’s broken

clavicle (collarbone) and/or rib injuries occurred as a result of plaintiff’s fall from his motorcycle

after contact from Captain Edwards’ vehicle.2For this reason, plaintiff’s physical injury cannot

form the basis for economic damages on plaintiff’s Fourth Amendment claim.

B. MOTION 2: DEFENDANT CAPTAIN EDWARDS DID NOT VIOLATE

PLAINTIFF’S FOURTH AMENDMENT RIGHTS AND, EVEN IF A VIOLATION

EXISTED, HE IS ENTITLED TO QUALIFIED IMMUNITY ON PLAINTIFF’S

ENTIRE §1983 CLAIM

The remaining bases for plaintiff’s Fourth Amendment claim are (2) Captain Edwards’

drawing his firearm, (3) Captain Edwards using a push-kick to plaintiff’s chest to gain plaintiff’s

compliance, (4) placing a knee on plaintiff’s back to get him fully on the ground so Captain

Edwards could holster his firearm and handcuff plaintiff, and (5) handcuffing plaintiff with no

knowledge of any existing injury.

There is no dispute that, during these four events, plaintiff was not free to leave and was

therefore “seized” for Fourth Amendment purposes. There is no dispute that Captain Edwards’

actions of drawing his firearm, using a push-kick, using a knee on plaintiff’s back and

2 Defendants agree that, to the extent plaintiff claims his wrists were bruised from handcuffs, this

is not addressed in defendants’ Motion 1.

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handcuffing him were intentional acts. But none of these acts were unreasonable from the

viewpoint of a reasonable officer at the scene at the time, and therefore none of these acts

constitute Fourth Amendment violations.

Not every seizure by police is unreasonable. The Fourth Amendment does not prohibit a

police officer’s use of reasonable force during an arrest, and this right “to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical coercion or

threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citing Terry v. Ohio,

392 U.S. 1, 22-27 (1968)). When analyzing excessive force claims, the inquiry is whether the

officer’s actions were “objectively reasonable” in light of the facts and circumstances

confronting him “from the perspective of a reasonable officer on the scene.” Id. at 396-97;

Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (emphasis added).

Even if a constitutional violation occurred, the officer shall prevail on a defense of

qualified immunity if either (a) the right asserted by the plaintiff was not clearly established; or

(b) the official could have reasonably believed that his particular conduct was lawful. Romero v.

Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991); see also Burns v. Reed, 500 U.S. 478 (1991).

The Ninth Circuit has held the question of qualified immunity is ordinarily one for the court and

not for the jury. Act Up/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). Plaintiff bears

the burden of proof to show that the constitutional right claimed to be violated was clearly

established at the time of the challenged actions, and should have been evident from the

particular facts of the case. Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1388-89 (9th Cir.

1997); Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995).

1. Drawing Firearm Was Not “Use of Deadly Force” and Was Reasonable

There is no dispute that Captain Edwards had probable cause to arrest plaintiff for felony

eluding and other crimes. There also is no real dispute that plaintiff violated Oregon’s laws

multiple times during the high-speed chase. The circumstances known to Captain Edwards and

to any reasonable officer at the time were that he was involved in a high-speed chase by a fleeing

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person who has thus far, to the officer’s knowledge, ignored police lights and siren and instead

sped faster away from the police, swerving around cars in no-passing zones. It was entirely

reasonable for Captain Edwards to believe and assume plaintiff saw the lights and heard the siren

because plaintiff admits it is his duty as a driver to do so.

It was perfectly reasonable and consistent with OSP policy for Captain Edwards to draw

his firearm in this situation. The U.S. Supreme Court in Graham v. Connor cautioned that “the

calculus of reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly

evolving – about the amount of force that is necessary in a particular situation. 490 U.S. 386,

396-97 (1989). The reasonable officer on the scene standard must take this into account.

Plaintiff essentially argues that Captain Edwards should not have thought plaintiff was eluding

because plaintiff now says he did not see the lights or hear the siren, a classic 20/20 hindsight

argument that fails to take into account the “reasonable officer on the scene” standard.

Plaintiff incorrectly characterizes Captain Edwards’ drawing his firearm as a “use of

deadly force.” However, Captain Edwards never fired his gun or even threatened to fire his gun.

Captain Edwards also never used pepper spray, asp or tazer. This case involves no intentional

injuries at all. There was never any use of deadly force or anything that could be remotely

considered deadly force in this incident, there was at best a show of possible force. Plaintiff’s

cited case law involving use of deadly force is inapplicable for these reasons.

Plaintiff also likens this case to Robinson v. Solano County,

3

a case involving police

officers drawing firearms while simply investigating a possible misdemeanor, with no probable

cause at the time of drawing the firearms, a “suspect” who had an unbuttoned shirt and jeans on

with no weapon present, no apparent intoxication or impairment of the “suspect,” and multiple

officers with one “suspect.” 278 F.3d 1007, 1014-16 (9th Cir. 2002). The Robinson facts are

3

Plaintiff also cites the dissenting-concurring opinion in Chew v. Gates, a case involving use of

police dogs to seize and bite concealed suspects, which has no application to this case.

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very different than this case. But even in Robinson, the Ninth Circuit held a Fourth Amendment

violation may exist with the “pointing a gun to the head of an apparently unarmed suspect during

an investigation,” but agreed the officers were entitled to qualified immunity because the law

was not clearly established.

Plaintiff discusses at length the Anderson case, which defendants also discussed at length

and which entirely supports defendants’ summary judgment motion. See Defendants’ Motion,

pp. 20-21.

In this case, Captain Edwards drawing his firearm in a felony situation, with probable

cause, with 1:1 suspect to police ratio, and unknown whether plaintiff is armed or impaired, is

not a Fourth Amendment violation. Reading Anderson as well as Scott and Plumhoff, his actions

appear entirely lawful. Even if it could be characterized as a Fourth Amendment violation,

plaintiff bears the burden but presents no case that could lead Captain Edwards or other

reasonable officers to know drawing a firearm under the circumstances was unlawful. For these

reasons, there is no Fourth Amendment violation for Captain Edwards’ drawing his firearm, and

he is entitled to qualified immunity.

2. Captain Edwards’ Use of Flat Foot Push-Kick Was Objectively Reasonable

Plaintiff bears the burden but presents no case clearly indicating a push-kick in the

circumstances of this case violates the Fourth Amendment. To the contrary, the Ninth Circuit in

Saman v. Robbins found a single kick to subdue a suspect in a tense and uncertain situation was

objectively reasonable and not a Fourth Amendment violation, vacating a jury verdict against the

police officer for the kick. 173 F.3d 1150, 1156-57 (9th Cir. 1999).

In this case, there is no dispute that probable cause existed for plaintiff’s committing

several crimes and infractions. Plaintiff admits he did not immediately get down on the ground

but instead held his hands out and said “what’s going on,” in response to Captain Edwards’

drawing his firearm and requests plaintiff get down on the ground. It is undisputed that Captain

Edwards could not know if plaintiff was armed or impaired. It is undisputed that pepper spray or

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other methods on the use of force continuum would not work given plaintiff’s full leathers,

helmet and face shield. Under the circumstances, it was objectively reasonable for Captain

Edwards to decide to use a push-kick when plaintiff did not immediately respond to Captain

Edwards’ commands. For these reasons, there is no Fourth Amendment violation, and Captain

Edwards is entitled to qualified immunity.

3. Captain Edwards’ Putting Knee on Plaintiff’s Back Was Reasonable

“[N]ot every push or shove... violates the Fourth Amendment.” Saucier v. Katz, 533

U.S. 194, 209 (2001) (internal citations omitted). Plaintiff again bears the burden but presents no

case law indicating Captain Edwards’ use of his knee was a Fourth Amendment violation or the

law clearly so established. The Ninth Circuit in Drummond v. City of Anaheim held an officer’s

continued pressing weight on a detainee’s neck and torso even after handcuffing and while

detainee was on the ground begging for air could constitute excessive force, but those facts are a

far cry from the facts here. 343 F.3d 1052, 1057 (9th Cir. 2003); see also Davis v. City of Las

Vegas, 478 F.3d 1048 (9th Cir. 2007) (case involving Fourth Amendment violation when a

handcuffed arrestee was punched in the face and slammed head-first into a wall, resulting in a

broken neck).

In this case, Captain Edwards faced a suspect who was on his knees but not fully on the

ground, and he needed to get the suspect fully on the ground in order to safely holster his firearm

in order to then get his handcuffs out to handcuff the suspect. Captain Edwards certainly could

not lay his firearm on the ground or ask plaintiff to hold it for him while he got handcuffs out. It

is not only objectively reasonable but standard practice to have a suspect fully on the ground

face-down with knee on the suspect’s back in order to holster a firearm and handcuff the suspect.

As the video shows, as soon as Captain Edwards had plaintiff secured with handcuffs, which

took some time since plaintiff Velcro-ed gloves on his hands, Captain Edwards got up. Plaintiff

does not allege any injuries from Captain Edwards’ knee on his back. Under the circumstances,

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it was objectively reasonable for Captain Edwards to put his knee on plaintiff’s back in order to

handcuff plaintiff, and Captain Edwards also is entitled to qualified immunity.

4. Captain Edwards Handcuffing Plaintiff Was Reasonable

Plaintiff again bears the burden but presents no case law indicating Captain Edwards’

handcuffing plaintiff with no knowledge of any injury, when plaintiff refused an offer of medical

assistance, was a Fourth Amendment violation or the law clearly was so established. In

Luchtel v. Hagemann, the Ninth Circuit affirmed summary judgment based on a finding that no

excessive force existed when officers handcuffed plaintiff and left her on the ground for ten

minutes with a broken arm and dislocated shoulder, and even if excessive force existed the

officers were entitled to qualified immunity. 623 F.3d 975, 982 (9th Cir. 2010); see also Wall v.

County of Orange, 364 F.3d 1107 (9th Cir. 2004) (finding Fourth Amendment violation could

exist based on alleged facts that dentist was arrested without any apparent crime, placed in tight

handcuffs that officers refused to loosen for well over 20 minutes causing nerve damage ending

dentist’s career, and officers threw the dentist against a wall and head first into a police vehicle);

C.B. v. City of Sonora, 769 F.3d 1005 (9th Cir. 2014) (use of handcuffs on calm, compliant but

nonresponsive 11-year old, 80-pound child with ADHD surrounded by adults and leaving child

in handcuffs in a locked car for a half an hour commute was unreasonable and officers were not

entitled to qualified immunity).

Plaintiff appears to claim “rough” handcuffing while plaintiff was injured and remaining

tightly handcuffed for too long. There is no dispute that it is standard practice and procedure to

place suspects in handcuffs behind the back; anyone with a television knows this procedure.

Plaintiff admits he did not tell Captain Edwards of any injury until after Captain Edwards

handcuffed plaintiff and helped him to his feet, at which point Captain Edwards had no further

physical contact with him. Plaintiff’s own complaint admits that, after Lane County Sheriff

deputies arrived, plaintiff reported shoulder pain to those deputies at which point the handcuffs

were replaced and then removed by the deputies and medical personnel called, all within six and

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a half minutes. Complaint, ¶28. It was objectively reasonable to have plaintiff in handcuffs

when Captain Edwards had no idea plaintiff was injured and plaintiff refused Captain Edwards’

offer of medical treatment. Thereafter, Lane County Sheriff deputies took over. For these

reasons, there was no Fourth Amendment violation and Captain Edwards is entitled to qualified

immunity.

C. MOTION 3: PLAINTIFF IS BARRED FROM SEEKING NON-ECONOMIC

DAMAGES ON ANY STATE LAW CLAIMS PURSUANT TO ORS 31.715

Plaintiff does not dispute that ORS 31.715 prohibits recovery of non-economic damages

in an action for injury arising out of the operation of a motor vehicle if the plaintiff was driving

uninsured. Plaintiff admits he was operating his motorcycle on a public highway on August 3,

2012 and that he did not have insurance when doing so as required by law, violating ORS

806.010. Plaintiff does not dispute that his non-economic damages are generally barred in this

action for injury arising out of operating his motorcycle while uninsured. Plaintiff argues,

without evidence, that plaintiff “has suffered substantial emotional distress, fear, anxiety and

depression as a consequence of defendants’ actions,” although plaintiff stated in his deposition

that he has not been diagnosed with depression.4

Plaintiff’s only response to defendants’ motion is that ORS 31.715 does not apply to

intentional torts. This is true, however, the admissible evidence in this case is that Captain

Edwards did not intend to contact plaintiff’s motorcycle, and the vehicle contact caused

plaintiff’s collarbone/rib injury.5For this reason, there is no intentional tort that caused

plaintiff’s injury, and ORS 31.715 applies to bar non-economic damages. There is no dispute

that ORS 31.715 bars plaintiff from recovering non-economic damages on his negligence claim.

4 Van Meter (Second) Dec., Exh. A, 62:2-3. Depression is a medical condition requiring expert

medical testimony.

5

In fact, plaintiff appears to concede that Captain Edwards did not intentionally contact

plaintiff’s motorcycle. Response, p. 41; see Part E below.

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D. MOTION 4: PLAINTIFF CANNOT RECOVER HIS CRIMINAL DEFENSE

ATTORNEY’S RETAINER AS DAMAGES IN THIS CASE, AND CANNOT

RECOVER ATTORNEY FEES ON HIS STATE LAW CLAIMS

1. There Is No Claim Allowing Recovery of Criminal Defense Attorney Fees

Plaintiff appears to seek a $4,000 criminal defense attorney retainer as damages, even

though there is no dispute that plaintiff violated several laws in the incident at issue. Plaintiff

does not dispute that there are no claims that would allow plaintiff to recover as damages his

criminal defense attorney retainer. Indeed, plaintiff does not appear to respond to this motion at

all. For this reason, defendants are entitled to summary judgment on plaintiff’s claim for

criminal defense attorney fees as damages.

2. Plaintiff Cannot Recover Attorney Fees on His State Law Claims

For each state law claim, plaintiff alleges he is entitled to an award of his attorneys fees.

However, plaintiff has not pleaded any statute or contract that would entitle him to an award of

attorney fees on his state law claims, even if he were successful. Plaintiff does not dispute that

no statute, contract, or case law entitles him to attorney fees for these claims. Again, plaintiff

does not appear to respond to this motion at all. Therefore, defendants are entitled to summary

judgment in their favor on these elements of damages.

E. MOTION 5: PLAINTIFF HAS NO VIABLE ASSAULT OR BATTERY CLAIMS,

CAPTAIN EDWARDS’ ACTIONS WERE JUSTIFIED AND EXPRESSLY

AUTHORIZED BY LAW

Plaintiff appears to concede that Captain Edwards did not intentionally contact plaintiff’s

motorcycle or commit a “battery” against plaintiff when he contacted plaintiff’s motorcycle

because plaintiff only argues, at page 41, that an assault and battery occurred when Captain

Edwards used a push-kick, placed his knee on plaintiff’s back and handcuffed him. For this

reason, defendants are entitled to summary judgment to the extent plaintiff’s battery claim is

based on the motorcycle contact.

With respect to the push-kick, knee and handcuffing, defendants established in their

Motion that certain officials are expressly authorized by law to have physical contact with others

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Page 14 - REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

HJV/6768284-v1

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

in a way that may be offensive and, at times, even harmful. ORS 133.310, ORS 133.235(4).

The Oregon Supreme Court has stated:

[A] police officer is justified under Oregon law in using physical force when he or

she believes it is reasonably necessary to make an arrest, see Gigler v. Klamath

Falls, 21 Or. App. 753, 763, 537 P.2d 121 (1975), and a police officer is

presumed to be acting in good faith in determining the amount of force necessary

to make the arrest. Rich v. Cooper, 234 Or. 300, 309, 380 P.2d 613 (1963)

(emphasis added).

Ballard v. City of Albany, 221 Or. App. 630, 641, 191 P.3d 679 (2008).

Plaintiff does not dispute that police officers’ contact with others, including harmful or

offensive contact, is expressly authorized by statute. Plaintiff does not dispute that, under

Oregon law, police officers are justified in using physical force and are presumed to be acting in

good faith in determining the amount of force needed to make an arrest. In fact, plaintiff does

not appear to respond to defendants’ cited statutes or case law at all. Plaintiff simply argues, in

conclusory style, that plaintiff “has presented evidence that Edwards intended to cause physical

harm... when he used unreasonable and callous excessive force.” Response, p. 42. For these

reasons, defendants are entitled to summary judgment in their favor on plaintiff’s assault and

battery claims.

F. MOTION 6: PLAINTIFF HAS NO VIABLE NEGLIGENCE CLAIM BECAUSE

CAPTAIN EDWARDS’ ACTIONS WERE AUTHORIZED BY LAW

As defendants stated in their Motion, under Oregon law, if the conduct that allegedly

creates a foreseeable risk of harm is one expressly authorized by law, a negligence claim will not

stand. Lowrimore v. Dimmitt, 310 Or. 291, 797 P.2d 1027 (1990). As noted in defendants’

Motion, Captain Edwards had express statutory authority to pursue plaintiff for his violations of

law, pursuant to ORS 810.410 and ORS 133.310. Captain Edwards also had express statutory

authority to take actions to arrest plaintiff, pursuant to ORS 133.310 and ORS 161.235. Plaintiff

does not appear to dispute or respond to these points. Plaintiff simply responds by stating the

contact between plaintiff’s motorcycle and Captain Edwards’ vehicle was negligent, or is for the

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HJV/6768284-v1

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

jury to decide. Response, pp. 42-43. But plaintiff does not address the central point of

defendants’ Motion, that Captain Edwards’ actions were authorized by law, therefore a

negligence claim cannot stand. For these reasons, defendants are entitled to summary judgment

in their favor on plaintiff’s negligence claim.

CONCLUSION

The undisputed facts of this case show Captain Edwards followed plaintiff for several

minutes while plaintiff created an unreasonably dangerous situation by driving at speeds from 80

to 100+ MPH, passing cars in double-yellow no passing zones, and not pulling over for several

miles despite Captain Edwards’ lights and siren. At the busy intersection, Captain Edwards

decided to end the pursuit by no longer following plaintiff and attempted to get close enough to

see plaintiff’s license plate to find him later, at which point plaintiff unexpectedly stopped and

Captain Edwards made unintentional contact with plaintiff’s motorcycle. Plaintiff went down to

the ground then quickly got back up, Captain Edwards got out of his car, drew his firearm and

required plaintiff get on the ground, plaintiff did not immediately comply, Captain Edwards used

a “push-kick” to plaintiff’s chest area and plaintiff finally got on the ground, at which point

Captain Edwards put his knee on plaintiff’s back in order to put his gun away and handcuff

plaintiff, read plaintiff his Miranda rights, and helped him to his feet. Some time after getting to

his feet, plaintiff began complaining of pain, then Lane County Sheriff deputies adjusted then

removed his handcuffs. The entire time between the collision and Lane County Sheriff deputies

arriving and taking over was six and a half minutes, according to plaintiff’s own Complaint ¶28.

Case 6:14-cv-00907-MC Document 53 Filed 09/14/15 Page 15 of 16
Page 16 - REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

HJV/6768284-v1

Department of Justice

1162 Court Street NE

Salem, OR 97301-4096

(503) 947-4700 / Fax: (503) 947-4791

Based on the undisputed facts and applicable law, defendants are entitled to summary

judgment in their favor on all of plaintiff’s claims.

DATED September 14 , 2015.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General

s/ Heather J. Van Meter

HEATHER J. VAN METER #983625

ANDREW D. CAMPBELL #022647

Senior Assistant Attorney General

Trial Attorney

Tel (503) 947-4700

Fax (503) 947-4791

Heather.J.VanMeter@doj.state.or.us

Andrew.D.Campbell@doj.state.or.us

Of Attorneys for Defendants State of Oregon

and Robert Wayne Edwards

Case 6:14-cv-00907-MC Document 53 Filed 09/14/15 Page 16 of 16