Page 1 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

J. SCOTT MOEDE, Oregon State Bar ID Number 934816 

Chief Deputy City Attorney 

Email: scott.moede@portlandoregon.gov 

Office of City Attorney 

1221 SW 4th Avenue, Suite 430 

Portland, OR 97204 

Telephone: (503) 823-4047 

Facsimile: (503) 823-3089 

Attorney for Defendant City of Portland 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

ROBERT LEE WEST, 

 PLAINTIFF, 

 v. 

CITY OF PORTLAND, OREGON and 

CITY OF PORTLAND POLICE BUREAU,

 DEFENDANTS.

3:15-cv-00715-ST

DEFENDANTS CITY OF PORTLAND,

OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO

PLAINTIFF'S FIRST AMENDED

COMPLAINT

For their answer to plaintiff’s First Amended Complaint, defendants City of Portland,

Oregon and City of Portland Police Bureau (hereinafter “City defendants”) respond to 

plaintiff’s allegations in corresponding numbered paragraphs, using plaintiff’s paragraph 

headings, as follows: 

PARTIES

1. City defendants admit the first sentence of ¶ 1 of the First Amended Complaint. 

With respect to the second and third sentences, City defendants are without sufficient 

knowledge to admit or deny the allegations contained in those sentences and therefore, they 

are denied. 

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Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 1 of 12
Page 2 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

2. City defendants are without sufficient knowledge to admit or deny the 

allegations contained in ¶ 2 of plaintiff’s First Amended Complaint, and ·therefore, they are 

denied. 

3. City defendants admit that defendant City of Portland is an incorporated City in

the state of Oregon and deny any remaining allegations contained in ¶ 3 of plaintiff’s First

Amended Complaint. 

4. City defendants admit ¶ 4 of plaintiff’s First Amended Complaint. 

5. City defendants admit that the Portland Police Bureau is a bureau of the City of

Portland, Oregon and that members of the bureau provide public safety and policing services, 

and deny any remaining allegations contained in ¶ 5 of the First Amended Complaint. 

6. City defendants admit ¶ 6 of plaintiff’s First Amended Complaint. 

7. City defendants admit that the Portland Police Bureau is a bureau of the City of

Portland, Oregon and that members of the bureau provide public safety and policing services, 

and deny any remaining allegations contained in ¶ 7 of plaintiff’s First Amended Complaint. 

JURISDICTION AND VENUE 

8. City defendants admit ¶ 8 of plaintiff’s First Amended Complaint. 

9. City defendants admit ¶ 9 of plaintiff’s First Amended Complaint. 

10. City defendants admit that it received a document entitled tort claim notice 

regarding Mr. West on or about March 18, 2015, pursuant to ORS 30.275 and deny any 

remaining allegations contained in ¶ 10 of plaintiff’s First Amended Complaint.

11. City defendants deny with respect to ORS 30.020 and aver that tort actions

against public bodies are governed by ORS 30.260 et. seq. and deny any remaining allegations

contained in ¶ 11 of plaintiff’s First Amended Complaint. 

12. City defendants admit plaintiff seeks damages of $10,000 and deny any remaining 

allegations contained in ¶ 12 of plaintiff’s First Amended Complaint. 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 2 of 12
Page 3 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

FACTS RELATING TO PLAINTIFF'S CLAIM 

13-14. City defendants are without sufficient knowledge to admit or deny the 

allegations contained in ¶¶ 13-14 of plaintiff’s First Amended Complaint, and therefore, deny. 

15. City defendants submit that this is an inappropriate allegation contrary to the 

Federal Rules of Civil Procedure because the allegation calls for a legal conclusion, and 

therefore this allegation is denied. 

16-17. City defendants admit that police activities are frequently newsworthy and 

covered by the media. Remaining allegations call for speculation and City defendants are 

without sufficient knowledge to admit or deny the allegations contained in ¶¶ 16-17 of 

plaintiff’s First Amended Complaint, and therefore, deny. 

18. City defendants admit that some police activities are matters of public concern as 

alleged in ¶ 18, and deny remaining allegations contained in plaintiff’s First Amended Complaint. 

19. City defendants are without sufficient knowledge to admit or deny the 

allegations contained in ¶ 19 of plaintiff’s First Amended Complaint, and therefore, deny. 

20. City defendants admit ¶ 20 of plaintiff’s First Amended Complaint. 

21. City defendants are without sufficient knowledge to admit or deny the 

allegations contained in ¶ 21 of plaintiff’s First Amended Complaint, and therefore, deny. 

22. City defendants admit that there were Portland police officers on the streets of

downtown Portland to monitor the protest on or about November 29 and 30, 2014, and that 

the officers were acting within the course and scope of their employment. City defendants 

deny any remaining allegations contained in ¶ 22 of plaintiff’s First Amended Complaint. 

23. City defendants admit that plaintiff was using some kind of a device to

photograph/film various activities on November 29-30, 2014, and that this included police

activities, and deny any remaining allegations contained in ¶ 23 of plaintiff’s First Amended

Complaint. 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 3 of 12
Page 4 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

24. City defendants admit that at or near the intersection of 5th Ave. and Morrison

St., the police used an inert distraction device and that this was photographed/filmed by Mr.

West and deny any remaining allegations contained in ¶ 24 of plaintiff’s First Amended

Complaint. 

25-26. City defendants aver that the item used was an inert distraction device and deny

any remaining allegations contained in ¶¶ 25-26 of plaintiff’s First Amended Complaint. 

27. City defendants are without sufficient knowledge to admit or deny the allegations

contained in ¶ 27 of plaintiff’s First Amended Complaint, and therefore, deny. 

28. City defendants admit that at or near the intersection of SW 2nd Ave. and SW Main 

St. Mr. West was present and filmed both protester and police activities and deny any remaining 

allegations contained in ¶ 28 of plaintiff’s First Amended Complaint. 

29-30. City defendants deny the allegations contained in, ¶¶ 29-30 of plaintiff’s First 

Amended Complaint. 

31-35. City defendants admit that plaintiff was arrested in the street and that Portland

police gave various instructions to the protesters, including Mr. West, throughout the evening, and 

deny any remaining allegations contained in ¶¶ 31-35 of plaintiff’s First Amended Complaint. 

36. City defendants deny the allegations contained in ¶ 36 of plaintiff’s First 

Amended Complaint. 

37. City defendants admit that plaintiff was arrested and handcuffed, and all that 

entails, and deny any remaining allegations contained in ¶ 37 of plaintiff’s First Amended 

Complaint. 

38. City defendants deny the allegations contained in ¶ 38 of plaintiff’s First 

Amended Complaint. 

39. City defendants deny the allegations contained in ¶ 39 of plaintiff’s First 

Amended Complaint. 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 4 of 12
Page 5 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

40. City defendants deny the allegations contained in ¶ 40 of plaintiff’s First 

Amended Complaint. 

41. City defendants admit that plaintiff was given a citation and was also transported

from the precinct in an ambulance and was examined at Legacy Emanuel Hospital. City defendants 

deny any remaining allegations contained in ¶ 41 of plaintiff’s First Amended Complaint. 

42. City defendants admit that plaintiff was at the hospital and that an MRI was 

performed, and deny any remaining allegations contained in ¶ 42 of plaintiff’s First Amended 

Complaint. 

43. City defendants deny the allegations contained in ¶ 43 of plaintiff’s First 

Amended Complaint. 

44. City defendants deny the allegations contained in ¶ 44 of plaintiff’s First 

Amended Complaint. 

45. The actions of Multnomah county prosecutors written in the “Prosecution Decline 

Memo” speak for themselves and deny any remaining allegations contained in ¶ 45 of plaintiff’s 

First Amended Complaint. 

46. City defendants deny the allegations contained in ¶ 46 of plaintiff’s First 

Amended Complaint. 

CLAIMS FOR RELIEF 

CLAIM 1: 14 U.S.C. § 1963 

COUNT I (VIOLATION OF 1ST AMENDMENT FREEDOM OF PRESS) 

47. City defendants reallege the responses to ¶¶ 1-46, above, and the responses are 

fully incorporated by this reference. 

48. City defendants deny the allegations contained in ¶ 48 of plaintiff’s First 

Amended Complaint. 

///// 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 5 of 12
Page 6 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

49. City defendants deny the allegations contained in ¶ 49 of plaintiff’s First 

Amended Complaint. 

50. City defendants admit ¶ 50 of plaintiff’s First Amended Complaint. 

51. City defendants deny the allegations contained in ¶ 51 of plaintiff’s First 

Amended Complaint. 

52. City defendants deny the allegations contained in ¶ 52 of plaintiff’s First 

Amended Complaint. 

53. City defendants deny the allegations contained in ¶ 53 of plaintiff’s First 

Amended Complaint. 

54. City defendants deny the allegations contained in ¶ 54 of plaintiff’s First 

Amended Complaint. 

55. City defendants deny the allegations contained in ¶ 55 of plaintiff’s First 

Amended Complaint. 

56. City defendants deny the allegations contained in ¶ 56 of plaintiff’s First 

Amended Complaint. 

57. City defendants deny the allegations contained in ¶ 57 of plaintiff’s First 

Amended Complaint. 

CLAIM 1: 14 U.S.C. § 1963 

COUNT II (VIOLATION OF 1ST AMENDMENT FREEDOM OF ASSEMBLY) 

58. City defendants reallege the responses to ¶¶ 1-50, above, and the responses are 

fully incorporated by this reference. 

59. City defendants deny the allegations contained in ¶ 59 of plaintiff’s First 

Amended Complaint. 

60. The terms “violen[ce]” and in particular “destructive behavior” are amenable to 

many different interpretations and depend on perspective and accordingly, City defendants deny 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 6 of 12
Page 7 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

the allegations contained in ¶ 60 of plaintiff’s First Amended Complaint. 

61. City defendants deny the allegations contained in ¶ 61 of plaintiff’s First 

Amended Complaint. 

62. City defendants deny the allegations contained in ¶ 62 of plaintiff’s First 

Amended Complaint. 

63. City defendants deny the allegations contained in ¶ 63 of plaintiff’s First 

Amended Complaint. 

64. City defendants deny the allegations contained in ¶ 64 of plaintiff’s First 

Amended Complaint. 

65. City defendants deny the allegations contained in ¶ 65 of plaintiff’s First 

Amended Complaint. 

66. City defendants deny the allegations contained in ¶ 66 of plaintiff’s First 

Amended Complaint. 

CLAIM 2: ASSULT/BATTERY 

COUNT I (FLASH BANG) 

67. City defendants reallege the responses to ¶¶ 1-46, above, and the responses are 

fully incorporated by this reference. 

68. City defendants deny the allegations contained in ¶ 68 of plaintiff’s First 

Amended Complaint. Also, see responses to ¶¶ 24-27 above, incorporated herein. 

69. City defendants deny the allegations contained in ¶ 69 of plaintiff’s First 

Amended Complaint. Also, see responses to ¶¶ 24-27 and 68 above, incorporated herein. 

70. City defendants deny the allegations contained in ¶ 70 of plaintiff’s First 

Amended Complaint. Also, see responses to ¶¶ 24-27 and 68-69 above, incorporated herein. 

71. City defendants deny the allegations contained in ¶ 71 of plaintiff’s First 

Amended Complaint. Also, see responses to ¶¶ 24-27 and 68-70 above, incorporated herein. 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 7 of 12
Page 8 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

72. City defendants deny the allegations contained in ¶ 72 of plaintiff’s First 

Amended Complaint. 

CLAIM 2: ASSULT/BATTERY 

COUNT II (CONTACT INCIDENT TO ARREST) 

73. City defendants reallege the responses to ¶¶ 1-46, above, and the responses are 

fully incorporated by this reference. 

74. City defendants deny the allegations contained in ¶ 74 of plaintiff’s First 

Amended Complaint. Also, see responses to ¶¶ 29-37 above, incorporated herein. 

75. City defendants deny the allegations contained in ¶ 75 of plaintiff’s First 

Amended Complaint. Also, see responses to ¶¶ 29-37 above, incorporated herein. 

76. City defendants deny the allegations contained in ¶ 76 of plaintiff’s First 

Amended Complaint. 

CLAIM 3: NEGLIGENCE 

COUNT I (DEPRIVATION OF WATER AND CARE) 

77. City defendants reallege the responses to ¶¶ 1-46, above, and the responses are 

fully incorporated by this reference. 

78. City defendants deny the allegations contained in ¶ 78 of plaintiff’s First 

Amended Complaint. 

79. City defendants deny the allegations contained in ¶ 79 of plaintiff’s First 

Amended Complaint. 

80. City defendants deny the allegations contained in ¶ 80 of plaintiff’s First 

Amended Complaint. 

81. City defendants deny the allegations contained in ¶ 81 of plaintiff’s First 

Amended Complaint. 

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Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 8 of 12
Page 9 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

82. City defendants deny the allegations contained in ¶ 82 of plaintiff’s First 

Amended Complaint. 

83. City defendants deny the allegations contained in ¶ 83 of plaintiff’s First 

Amended Complaint. 

84. City defendants deny the allegations contained in ¶ 84 of plaintiff’s First 

Amended Complaint. 

85. City defendants deny the allegations contained in ¶ 85 of plaintiff’s First 

Amended Complaint. 

86. City defendants deny the allegations contained in ¶ 86 of plaintiff’s First 

Amended Complaint. 

CLAIM 3: NEGLIGENCE 

COUNT II (IMPROPER USE OF FLASH BANG) 

(ALTERNATIVE CLAIM TO CLAIM 2, COUNT I) 

87. City defendants reallege the responses to ¶¶ 1-46, above, and the responses are 

fully incorporated by this reference. 

88. City defendants deny the allegations contained in ¶ 88 of plaintiff’s First 

Amended Complaint. 

89. City defendants deny the allegations contained in ¶ 89 of plaintiff’s First 

Amended Complaint. 

90. City defendants deny the allegations contained in ¶ 90 of plaintiff’s First 

Amended Complaint. 

91. City defendants deny the allegations contained in ¶ 91 of plaintiff’s First 

Amended Complaint. 

92. City defendants deny the allegations contained in ¶ 92 of plaintiff’s First 

Amended Complaint. 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 9 of 12
Page 10 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

93. City defendants deny the allegations contained in ¶ 93 of plaintiff’s First 

Amended Complaint. 

CLAIM 4: FALSE ARREST 

(ALTERNATIVE CLAIM TO CLAIM 1) 

94. City defendants reallege the responses to ¶¶ 1-46, above, and the responses are 

fully incorporated by this reference. 

95. City defendants deny the allegations contained in ¶ 95 of plaintiff’s First 

Amended Complaint. 

96. City defendants deny the allegations contained in ¶ 96 of plaintiff’s First 

Amended Complaint. 

97. City defendants deny the allegations contained in ¶ 97 of plaintiff’s First 

Amended Complaint. 

98. City defendants deny the allegations contained in ¶ 98 of plaintiff’s First 

Amended Complaint. 

99. City defendants deny the allegations contained in ¶ 99 of plaintiff’s First 

Amended Complaint. 

100. City defendants deny the allegations contained in ¶ 100 of plaintiff’s First 

Amended Complaint. 

CITY DEFENDANTS’ AFFIRMATIVE DEFENSES 

FIRST AFFIRMATIVE DEFENSE 

(Failure to State a Claim) 

101. Plaintiff has failed to state a claim against the City defendants. 

///// 

///// 

///// 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 10 of 12
Page 11 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

SECOND AFFIRMATIVE DEFENSE 

(Improper Party) 

102. The “Portland Police Bureau” is an improper party, not a suable entity and should 

be dismissed with prejudice. 

THIRD AFFIRMATIVE DEFENSE 

(Justification and Privilege) 

103. The actions of City defendants were lawful, justified and privileged. 

FOURTH AFFIRMATIVE DEFENSE 

(No § 1983 Claim Against the City of Portland and Portland Police Bureau) 

104. Plaintiff’s First Amended Complaint fails to properly plead a policy, practice or 

custom claim under § 1983 against the City of Portland and, accordingly, plaintiff’s First 

Amended Complaint against the City of Portland should be dismissed. 

FIFTH AFFIRMATIVE DEFENSE 

(OTCA and Limitation on Damages) 

105. Plaintiff’s claims are subject to all the limitations, conditions, and immunities 

contained in the Oregon Tort Claims Act, ORS 30.260, et seq., including, but not limited to, the 

limitation on damages. 

SIXTH AFFIRMATIVE DEFENSE 

(Comparative Fault) 

106. Plaintiff’s arrest and damages, if any, were caused or contributed to by plaintiff’s 

own actions. 

SEVENTH AFFIRMATIVE DEFENSE 

(Consent) 

107. Plaintiff consented to any detention, arrest, inspection, interrogation, and/or 

seizure performed by City defendants. 

///// 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 11 of 12
Page 12 – DEFENDANTS CITY OF PORTLAND, OREGON AND CITY OF PORTLAND

POLICE BUREAU'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

EIGHTH AFFIRMATIVE DEFENSE 

(No Constitutional Violation) 

108. The actions by City defendants do not constitute constitutional violations. 

NINTH AFFIRMATIVE DEFENSE 

(ORS 20.080) 

109. Plaintiff failed to comply with the provisions of ORS 20.080 for an award of 

attorneys’ fees and costs and accordingly, any claim for fees and costs therein should be denied. 

TENTH AFFIRMATIVE DEFENSE 

(Attorney Fees – 42 U.S.C. § 1988) 

110. Plaintiff’s claims are unreasonable, frivolous, meritless and vexatious. City 

defendants are entitled to their attorney fees under 42 U.S.C. § 1988. 

ELEVENTH AFFIRMATIVE DEFENSE 

(Reservation of Right to Amend) 

111. City defendants reserve the right to amend this Answer to allege additional 

affirmative defenses and other relief after the completion of discovery, if any. 

WHEREFORE, having fully answered plaintiff’s First Amended Complaint, City 

defendants pray that plaintiff’s First Amended Complaint be dismissed and that judgment be 

entered in their favor and for their costs and disbursements incurred herein, in addition to such 

other relief as may be justified. 

Dated: October 2, 2015 

Respectfully submitted, 

/s/ J. Scott Moede 

J. SCOTT MOEDE, OSB # 934816 

Chief Deputy City Attorney 

Telephone: (503) 823-4047 

Attorney for Defendant City of Portland 

Case 3:15-cv-00715-ST Document 19 Filed 10/02/15 Page 12 of 12