Christopher A. Gilmore, OSB No. 980570

Sr. Assistant County Counsel

chris_gilmore@co.washington.or.us

OFFICE OF WASHINGTON COUNTY COUNSEL

161 NW Adams Avenue, Suite 305, MS #24

Hillsboro, OR 97124

Phone (503) 846-8747

Fax (503) 846-8636

Attorney for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

MELISSA VAN PATTEN, Personal 

Representative for the Estate of Melinda Van 

Patten,

 Plaintiff,

 v. 

WASHINGTON COUNTY, by and through 

the Washington County Sheriff's Office,

 Defendant.

No. 3:15-cv-00891-AC

DEFENDANT’S TRIAL BRIEF

Case 3:15-cv-00891-AC Document 71 Filed 06/05/17 Page 1 of 12
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TABLE OF CONTENTS

I. CONCISE SUMMARY OF FACTS ............................................................................... 1

II. LEGAL ISSUES .............................................................................................................. 4

A. Bifurcation ........................................................................................................... 5

B. Probable Cause..................................................................................................... 5

C. Comparative Fault................................................................................................ 8

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TABLE OF AUTHORITIES

Baccelleri v. Hyster Co.,

287 Or. 3 (1979)........................................................................................................................... 8

Miller v. Pacific Trawlers, Inc.,

204 Or. App 585 (2006)............................................................................................................... 9

Nearing v. Weaver,

295 Or. 702, 709 (1983)............................................................................................................... 8

Sandford v. Chevrolet Division of General Motors,

292 Or. 590 (1982)....................................................................................................................... 8

State v. Bonilla,

358 Or. 475, n. 10 (2015)............................................................................................................. 7

State v. Medinger,

235 Or. App. 88, 92 n. 1, 230 P.3d 76 (2010).............................................................................. 5

State v. Miller,

345 Or. 176 (2008)....................................................................................................................... 6

State v. Owens,

302 Or. 196, 204, 729 P.2d 524 (1986) ....................................................................................... 5

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Defendant submits the following Trial Brief consistent with Section V(A) of the Jury 

Trial Management Order:

I. CONCISE SUMMARY OF FACTS

This case presents a single issue of whether Defendant had probable cause to arrest 

Kenneth Van Patten on May 26, 2013 and whether failure to do so caused the death of Melinda 

Van Patten. Defendant will offer testimony and evidence at trial that the deputies in this case 

acted consistent with their training, that their subjective belief that there was no probable cause 

was reasonable, and that the objective evidence is consistent with their decision not to arrest

Kenneth Van Patten.

Defendant will offer testimony that the deputies in this case received training for 

purposes of making a determination of whether to arrest Kenneth Van Patten under ORS 

133.055. Corporal Kip Branch provided the training during the time that Deputy Leanne 

Stoneberg and Deputy Dylan Leach were working for the Washington County Sheriff’s Office

and he is familiar with the standard and training provided to deputies that are used in determining 

probable cause. He was responsible for training new deputies on probable cause, the restraints 

on an arrest provided for under the Fourth Amendment, the mandatory arrest statutes, and the 

elements of the crimes that are the subject of a mandatory arrest. He will testify about the 

principles of probable cause, how they are defined, and how they are taught to deputies. He will 

testify that probable cause has two components, a subjective and an objective component. He 

will testify that the meaning of probable cause is that more likely than not a crime has occurred. 

Corporal Branch will testify that training includes a discussion of case law and factual scenarios 

to teach the deputies how to apply the probable cause standard to real life scenarios. He will 

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testify that deputies are taught that there is a broad spectrum of factual scenarios ranging from no 

evidence of a crime to actually seeing a crime committed under which the probable cause 

standard must be considered. He will testify that the deputies are trained that determining 

probable cause requires the exercise of discretion under the circumstances and that the standard 

is not clear and objective. He will also offer testimony on the training provided to deputies as it 

relates to the crimes of assault and menacing including factual scenarios that are used to illustrate 

those crimes.

Defendant will also call each deputy to the stand. Each officer will testify that they have 

reviewed the text of the statute and were familiar with the requirements for a mandatory arrest. 

They will testify that an arrest is mandatory only if they have a belief that more likely than not 

the crime of assault, menacing or strangulation is revealed during an investigation. They will 

testify that they understand the elements of the crimes of assault, menacing and strangulation and 

the type of evidence you are looking for when investigating those types of crimes. All three 

deputies will testify about their observations and information they learned during the 

investigation on May 26, 2013.

Deputy Leanne Stoneberg will testify that she was informed of a domestic violence 

incident through dispatch, that dispatch indicated a neighbor was talking to Melinda Van Patten 

over the phone when she heard her say stop hitting me and the line went dead. Deputy Leanne 

Stoneberg will testify that she responded to the call and that her immediate priority was to get on 

the scene to make sure everyone is safe. She will testify that once people are safe and secure on 

the scene the investigation is to determine whether the information provided by dispatch is 

correct. Deputy Leanne Stoneberg will testify that she was riding with Reserve Deputy Melinda 

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Purvis. She will testify that a reserve deputy is under the supervision of a deputy at all times and 

that she was the primary deputy responding to the call.

Deputy Leanne Stoneberg will testify that she arrived that morning at approximately 9:51 

am and met with Deputy Dylan Leach who was already on the scene. All domestic violence 

calls require two deputies to respond for officer safety. The deputies then proceeded up the 

gravel driveway to the residence at 5355 SW River Road. The first contact during the 

investigation was with Melinda Van Patten who was in the driveway and was shaking and 

visibly upset. The deputies will testify that they did not observe any injuries on Melinda Van 

Patten at that time so there was no need to request a medical response on the scene. After 

securing Melinda Van Patten in the driveway the officers then proceeded to contact Kenneth Van 

Patten in the house.

The deputies met Kenneth Van Patten at the door and entered the home to question him 

separately from Melinda Van Patten. In the kitchen the deputies questioned Mr. Van Patten. 

Deputy Stoneberg will testify that Kenneth Van Patten stated that he had been arguing with his 

wife and that be believed she was having an affair with their roommate, Glen Hamilton. He 

stated that in the morning he had gone out for some errands and when he returned his wife was in 

the driveway. He said he told her to move out of the way or he would hit her. He then stated 

that he did not actually attempt to hit her and that he did not hit or shove his wife in anyway. 

Deputy Stoneberg will testify that during the discussion she did not notice any physical injuries 

on Mr. Van Patten and no evidence in the home to indicate that a physical struggle occurred.

Deputy Stoneberg will testify that she went back outside and contacted Melinda Van 

Patten. Melinda Van Patten was interviewed separately. She stated that Mr. Van Patten did not 

hit or shove her in any way and that he did not hit her with his car. At this point Deputy 

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Stoneberg explained to Melinda Van Patten that the deputies did not have a basis for arresting 

her husband. In frustration Melinda Van Patten said: “The next time you see this face I’ll be 

dead.” The officers then responded by encouraging the parties to separate by providing Melinda 

Van Patten the keys to the car. Both Deputy Stoneberg and Reserve Deputy Melinda Purvis 

concluded there was no probable cause for an arrest notwithstanding this statement of general 

fear. Deputy Stoneberg will explain that this statement alone was not sufficient basis for 

concluding there was a specific, imminent threat of serious physical injury.

The deputies will testify that there was insufficient evidence of an assault. That the 

information provided by dispatch was refused by both Kenneth and Melinda Van Patten. That 

neither one admitted that any type of pushing, shoving or hitting occurred. These statements 

together with the lack of any evidence of a physical injury causing substantial pain or any 

limitations on Melinda Van Patten’s physical condition precluded any arrest for the crime of 

assault. The deputies will testify that there was insufficient evidence for the crime of menacing. 

Deputy Stoneberg will testify that the general statement “the next time you see this face I’ll be 

dead” did not give her any indication of a specific threat or when it would occur. The deputies 

will testify that there was insufficient evidence to warrant a mandatory arrest under ORS 

133.055.

II. LEGAL ISSUES

There are several novel legal issues in this case. Both parties have diligently conferred 

and have been unable to resolve the issues. Those issues concern: (1) bifurcation of liability 

from damages, (2) the applicable standard for “probable cause”, and (3) whether the comparative 

fault statute applies in this case.

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A. Bifurcation

Defendant filed separately to bifurcate liability from damages in this case. The 

arguments will not be repeated except to say that separate phases of the trial will substantially 

reduce the time involved in this case to the extent that liability is decided in favor of Washington 

County.

The liability phase concerns only the conduct of the deputies on May 26, 2013 and 

whether they had probable cause to arrest. That involves the testimony of five (5) witnesses who 

were present on the scene, the three (3) deputies, Glen Hamilton, and Nancy Amrein. Some of 

those witnesses will overlap with each party’s case-in-chief. It is anticipated that after 

empaneling a jury and delivering opening arguments this case could be tried and decided by the 

jury in two days. There are significant benefits of efficiency as well as the clear prejudice that 

would result if the case is tried together.

B. Probable Cause

The parties have been working diligently to reach an understanding on an instruction for

probable cause. The entire case turns on the framing of this instruction. Plaintiff’s belief that the 

standard provided in Oregon should be modified in this case to focus solely on the objective 

component of probable cause is misplaced. The state law is clear that there are two components:

"[a]n officer must subjectively believe that a crime has been committed and 

thus that a person or thing is subject to seizure, and this belief must be 

objectively reasonable in the circumstances."

State v. Owens, 302 Or. 196, 204, 729 P.2d 524 (1986). The state standard for probable cause is 

more stringent than the federal constitutional standard. State v. Medinger, 235 Or App 88, 92 n 

1, 230 P3d 76 (2010). That means that it is more than just a test of reasonableness; the 

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subjective component must be given some weight. In fact, the case law indicates that the 

subjective component is an independent requirement. In State v. Miller, 345 Or. 176 (2008) the 

Oregon Supreme Court recognized the long-standing subjective component of probable cause as 

follows:

“However, those cases also demonstrate that, long before Owens, the court 

defined the mechanics of probable cause using the same components that

Owens would set out again some 50 years later; i.e., a subjective component 

coupled with an objective basis for concluding that there was probable cause

to arrest. Consequently, although Owens did not expressly draw on Lee and

Duffy in its discussion of probable cause, those prior decisions nevertheless 

make it difficult to view Owens—as the state would have us do now—as 

having announced a new paradigm for probable cause analysis. As we explain 

below, the court's use of the term “subjective belief” in Owens was not 

intended to establish a new, more rigorous probable cause standard for 

warrantless arrests but, instead, was intended to confirm that an officer's

subjective state of mind remains an important part of the Oregon 

constitutional analysis.”

Thus prior efforts to eliminate the subjective component of probable cause have been clearly 

rebuffed by Oregon’s highest court. The court then went on to state that “the probable cause

inquiry is satisfied if the officer believes that he or she has lawful authority to restrain the 

individual's liberty.” With that the court in Miller then reviewed the objective facts to determine 

whether there was sufficient evidence to support the subjective component of probable cause 

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despite the officer’s own statement that he lacked probable cause. Thus a proper reading of 

Miller is that the subjective belief must also be supported by objectively reasonable facts.

With that said the subjective component is not entirely subsumed by the inquiry into 

whether there are objective facts to support it. Thus, in a case where there are objective facts that 

can be interpreted as either supporting probable cause or not, the grey area cases if you will

where reasonable minds may differ, those cases must be decided in favor of the officer. Without 

it there is no meaning to the subjective component of the probable cause test and each case 

would turn simply on whether there are objective facts to support someone else’s determination 

of probable cause after-the-fact. The decision of the officers may not be looked at in hindsight 

but must instead be based on the information available at the time of the decision. State v.

Bonilla, 358 Or. 475, fn 10 (2015). It is not a substitution of opinion but rather a confirmation of 

the reasonableness, or unreasonableness, of the officer’s decision.

Clarity on this point is important in this case. Say for example a juror believes that the 

dispatch information conveyed to the officers regarding Mr. Van Patten hitting Melinda Van 

Patten is adequate to support probable cause even if that same juror recognizes that the officer’s 

decision was also reasonable and consistent with her experience and training. To find against the 

officers in that situation would be directly in contrast to the subjective component requirement of 

probable cause in Oregon and would allow a jury to later substitute their own point of view for 

that of the deputy. The jury should be clearly instructed on this issue to avoid this result. Each 

person’s assessment of probability may differ – the mandatory arrest statute does not change that 

– ultimately the question is whether the officer’s subjective belief was reasonable based on the 

objective evidence, not whether a juror can come up with a different point of view after-the-fact.

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C. Comparative Fault

The final question at issue in this case is whether comparative fault applies in the context 

of a claim for violation of a statutory duty of care. This is addressed in large part in the 

objections to the jury instructions but warrants further analysis.

The most instructive case on this question is Nearing v. Weaver, 295 Or. 702, 709 (1983). 

In that case the Oregon Supreme Court concluded that a civil remedy exists in those cases where 

an officer fails to enforce a restraining order in violation of ORS 133.310(3). This court in 

response to Washington County’s Motion for Summary Judgment extended that same remedy to 

cases involving a failure to arrest under ORS 133.055. Although it is not directly addressed in 

Nearing the concurring opinion by Judge Jones states that “[a]ll other relevant negligence law 

would be applicable, including comparative fault if warranted by the facts.” Based on this 

comparative fault is alive and well in the context of a case involving a statutory remedy.

There are several cases that permit application of comparative fault in cases involving 

strict liability. For example both Baccelleri v. Hyster Co., 287 Or. 3 (1979) and Sandford v. 

Chevrolet Division of General Motors, 292 Or. 590 (1982) permitted application of comparative 

fault in a products liability case. The Oregon Supreme Court in Baccelleri made clear that 

“comparative fault is applicable to strict liability in tort.” Baccelleri at 12 (1979). Subsequently 

in Sandford the Oregon Supreme Court further extended this holding and concluded that 

plaintiff’s negligence was an appropriate consideration for determining the comparative fault of 

the parties in a products liability case. It is worth noting that the statute itself uses the terms fault 

as well as negligence depending on the case suggesting that comparative fault is broader than 

just comparing conduct of each party in a negligence case. There is no dispute in this case that 

Defendant has pled both facts and law as an affirmative defense in support of a claim of 

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comparative fault in this case. Consequently it is appropriate, as it was in Sandford, for this 

court to submit that question to the jury.

This analysis is not limited to products liability cases. In Miller v. Pacific Trawlers, Inc.,

204 Or.App 585 (2006) the Oregon Supreme Court again found that the comparative fault 

defense applied to this case involving an employer’s violation of OSHA regulations. The court 

instructed the jury that violation of the OSHA regulations was negligence. Despite the 

regulatory violation the court nonetheless allowed the jury to consider comparative fault.

The same result is required in this case. The reasoning in Nearing and other cases is clear 

the Oregon courts will apply comparative fault in cases involving a statutory violation. 

DATED: June 5, 2017.

 s/Christopher A. Gilmore

Christopher A. Gilmore, OSB No. 980570

Sr. Assistant County Counsel

chris_gilmore@co.washington.or.us

Attorney for Defendant

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