Page 1 – MOTION FOR JUDGMENT AS A MATTER OF LAW

Christopher A. Gilmore, OSB No. 980570 

Senior Assistant County Counsel 

Kimberly ASY Stuart, OSB No. 054685 

Assistant County Counsel 

kimberly_stuart@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.

Case No. 3:15-cv-00891-AC

DEFENDANT’S MOTION FOR 

JUDGMENT AS A MATTER 

OF LAW

(Fed. R. Civ. Proc. 50(a))

I. MOTION

Defendant Washington County moves the court for judgment as a matter of law because a 

reasonable jury would not have a legally sufficient evidentiary basis to find for Plaintiff on the 

following issues:

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(1) Whether probable cause existed mandating the arrest of Ken Van Patten under 

ORS 133.055(2), specifically; 

(a) Whether Plaintiff has presented sufficient evidence of “physical injury” 

via “impairment” of physical condition or “substantial pain” of Melinda Van 

Patten under ORS 133.055(2)(b) to enable Plaintiff to submit a claim for statutory 

liability to the jury for any officer’s failure to arrest Ken Van Patten for assault. 

See State v. Nathan Ashley Long, 286 Or. App. 334, ###, ___ P.3d ___ (2017) 

(b) Whether Plaintiff has presented sufficient evidence of “fear” or 

“imminence” of Melinda Van Patten to trigger mandatory arrest under ORS 

133.055(2)(b) and enable Plaintiff to submit a claim for statutory liability to the 

jury for any officer’s failure to arrest Ken Van Patten for placing Melinda Van 

Patten in “fear of imminent serious physical injury”;

(2) Whether the action of the officers in not arresting Ken Van Patten caused the pain 

and suffering of Melinda Van Patten; and

(3) Whether the Officer’s failure to arrest Ken Van Patten caused the death of 

Melinda Van Patten.

Plaintiff’s failure to meet all elements of proof in their case on the above issues entitles 

Defendant to judgment in its favor. Fed. R. Civ. Proc. 50(a). Defendant also renews its prior 

motion for summary judgment, as well as prior arguments on: (1) disallowing defendant to raise 

the defense that an “officer would not be liable * * * for failing to make an unconstitutional 

arrest[,]” see Nearing v. Weaver, 295 Or. 702, 709, 670 P.2d 137 (1983); see ECF No. 120, p. 

26]; (2) that the language in ORS 133.055(2)(b) of placing someone in “fear of imminent serious 

physical injury” is actually the de facto application of “menacing” in ORS 163.190 (“A person 

commits the crime of menacing if by word or conduct the person intentionally attempts to place 

another person in fear of imminent serious physical injury.”), which includes relevant Oregon 

case law on “fear” to mean a specific imminent threat, not a generalized one.

Even if all elements of probable cause and causation were met, Defendant renews its 

motion that it is still entitled as a matter of law for judgment, because ORS 133.055 is not an 

independent statutory cause of action for the wrongful death of Melinda Van Patten. There is no 

remedy available to Plaintiff for a wrongful death solely on statutory liability under ORS 

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133.055. In addition, even if Plaintiff had the right to bring an independent cause of action on 

behalf of Melinda Van Patten under ORS 133.055, Plaintiff failed to prove that the officers’ 

conduct or omissions caused Melinda Van Patten’s death.

II. STANDARD OF REVIEW

 Federal Rules of Civil Procedure 50(a) provides: 

If a party has been fully heard on an issue during a jury trial and 

the court finds that a reasonable jury would not have a legally 

sufficient evidentiary basis to find for the party on that issue, the 

court may: 

(A) resolve the issue against the party; and 

(B) grant a motion for judgment as a matter of law against the 

party on a claim or defense that, under the controlling law, can be 

maintained or defeated only with a favorable finding on that issue. 

Such a motion may be made at any time before the case is submitted to the jury, as long as it 

specifies the judgment sought and the law and facts that entitle the movant to the judgment. Id. 

Therefore, at the close of the evidence of a Plaintiff’s case, the court is authorized to enter 

judgment as a matter of law at any time during the trial, as soon as it is apparent that either party 

is unable to carry a burden of proof that is essential to that party's case. See Fed. R. Civ. P. 50 

advisory committee's note to 1991 amendment. Once a party has completed their presentation on 

a fact essential to that party's case or defense and failed to present sufficient evidence, entry of 

judgment is appropriate, especially when “economy and expedition will be served.” Id. 

A. No Probable Cause to Arrest Ken Van Patten for Assault. 

Based on the Court’s ruling at the Pre-Trial Conference on July 5, 2017 (“PTC”) and the 

evidence in Plaintiff’s case-in-chief, Defendant moves for judgment as a matter of law in its 

favor on the issue of probable cause to arrest for assault under ORS 133.055(2). Plaintiff has 

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failed to present any evidence of assault, specifically any physical injury, by Ken Van Patten 

against Melinda Van Patten to trigger probable cause for his arrest. 

Various levels of assault are defined in ORS 163.160, et seq., with the lowest level of 

assault being an assault in the fourth degree (“Assault IV”), a class A misdemeanor. A crucial 

element to an Assault IV is physical injury to another. See ORS 163.160(1)(a); (b). “Physical 

injury” is defined as “impairment of physical condition or substantial pain.” ORS 161.015(7). 

To find probable cause under Article I, section 9 requires: 

“both a subjective and an objective component. An 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. 

The test is not simply what a reasonable officer could have believed when he 

conducted a warrantless search or seizure, but it is what this officer actually 

believed, based upon the underlying facts of which he was cognizant, together 

with his own training and experience.” State v. Owens, 302 Or. 196, 204 (1986). 

Thus to find probable cause to arrest for an Assault IV, the deputies must have believed that such 

an assault was committed by Ken Van Patten, and that belief must have been objectively 

reasonable under the circumstances. 

However, the record before the Court lacks any evidence to permit a finding by the jury 

that Melinda Van Patten suffered “substantial pain” or “impairment of a physical condition” or 

any physical injury sufficient to constitute an assault. In fact, the evidence presented shows that 

during the course of the Deputies’ investigation, neither Melinda Van Patten nor Ken Van Patten 

suffered any physical injury and there is no testimony on any “substantial pain” or “impairment” 

suffered by Melinda Van Patten. Thus, there is no evidence of assault to trigger mandatory arrest 

under ORS 133.055(2). 

At trial, all three deputies testified that on May 26, 2013, the Van Patten’s neighbor told 

911 dispatch that she heard Melinda Van Patten say “stop hitting me” repeatedly before being 

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disconnected, per the CAD report on May 26, 2013. [Ex. 4, p. 1]. Upon arrival, deputies 

questioned Ken and Melinda Van Patten, however, the deputies determined that Ken “had not hit 

or shoved his wife in any way.” [Ex. 5, p. 2]. When questioned by deputies as to whether her 

husband “had it or shoved her in any way,” Melinda Van Patten’s response was “No.” Id. When 

asked if Ken Van Patten had hit her with his car, Melinda Van Patten’s response again was “No.” 

Id. It is undisputed that there were no other eyewitnesses to any assaults between Ken and 

Melinda Van Patten on May 26, 2013. Deputies also further testified that there were “no injuries 

on either party.” [Ex. 6, p. 2]. There is no evidence in this record of any physical injuries.

Even if there was evidence of physical injury, mere injury alone does not automatically 

support an arrest for Assault IV. See State v. Long, 286 Or. App. 334, 340-1, ___ P.3d ___ 

(2017) (holding that “substantial pain” refers to the “degree and duration of pain subjectively 

experienced by a victim[,]” which must be “ample” or “considerable” and not “fleeting or 

inconsequential,” citing State v. Poole, 175 Or. App. 258, 261, 28 P.3d 643 (2001)); (reviewing 

cases constituting insufficient evidence of “substantial pain”). Although whether a victim has 

suffered “substantial pain” is generally a question for the fact finder, whether the evidence is 

sufficient to submit to the jury “depends on the nature of the evidence itself.” Id. at 341-2. 

When there is little to no direct evidence on pain, the trial court should determine, as a matter of 

law, “whether reasonable inferences may be derived from the evidence so as to permit 

submitting the issue to the factfinder.” Id. at 342, quoting State v. Bivins, 191 Or. App. 460, 467, 

83 P.3d 379 (2004). Here, even if some pain had occurred due to physical injury, there is 

insufficient evidence in the record to show or infer the degree, quality or duration of such pain. 

In this record, no such inferences can be reasonably drawn from the evidence – there was 

no testimony of physical injury rising to the level stated in Long, much less any circumstantial 

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evidence of injuries or demeanor corroborating any such claims. In fact, the only witnesses to 

the alleged assault, Ken and Melinda Van Patten, both denied any physical injury; this was also 

confirmed by the deputies. Because no reasonable juror could find, based on this evidence, that 

Ken Van Patten assaulted Melinda Van Patten, Plaintiff has failed to establish a causal 

connection between any failure to arrest Ken Van Patten for assault under ORS 133.055(2) and 

the death of Melinda Van Patten. Defendant is entitled to dismissal of this claim as a matter of 

law.

B. There is Insufficient Evidence to Show that Ken Van Patten Placed Melinda Van 

Patten in “Fear of Imminent Serious Physical Injury” to Trigger Mandatory Arrest under 

ORS 133.055(2). 

Based on the Courts’ prior ruling (ECF No. 120 (Order on Motions in Limine), p. 10; 

ECF No. 55, p. 1), Defendants move for judgment as a matter of law on whether sufficient 

evidence was presented that Melinda Van Patten was in “fear of imminent serious physical 

injury.” ORS 133.055(2)(a). 

As opined by this Court, the threat of "imminent serious physical injury" exists when an 

objectively reasonable person would have been put in fear of imminent physical injury based on 

the totality of the circumstances. Holbert and Noon, 245 Or. App. 328, 332-33, 260 P.3d 836

(2011) (applying prior construction of term "imminent" when determining whether a husband 

had placed his wife in "'in fear of imminent bodily injury"' for purposes of the Family Abuse 

Prevention Act (FAPA)."). An imminent threat means a threat of injury that is "near at hand, 

impending, or menacingly near." Id. at 335 (citations omitted). 

The single statement regarding fear of imminent serious physical injury is:

This morning Ken told us that he left for a while to get away and returned to 

Malinda [sic] yelling at him in the driveway. When Ken was parking the car, he 

said to Malinda [sic] "move out of the way or I will hit you". When asked if he 

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attempted to hit Malinda [sic], Ken told us he did not hit or attempt to hit Malinda 

[sic] with the car.” (Ex. 5, p. 2). 

Deputy Purvis also testified that she had asked Melinda if Ken had “hit or shoved her in any way 

or hit her with his car.” The simple answer was "No.” (Ex. 5, p. 2). There is no evidence to 

challenge that undisputed fact. 

Although Plaintiff attempts to conflate Melinda Van Patten’s statement that she is afraid 

of her husband with the incident involving the car earlier in the morning, such argument cannot 

support a reasonable inference that her later statement of “the next time you see this face, I’ll be 

dead”, given after the fact and a generalized statement of future harm, can support “fear” 

occurring contemporaneously or within the temporal zone of imminence at the time of the car 

incident. At no point did Melinda Van Patten express to the officers that she was afraid when 

Mr. Van Patten was parking his car or that he threatened her with the his vehicle. There is 

simply no basis considering the evidence presented to establish Melinda Van Patten was in fear 

of a serious physical injury when Ken Van Patten was parking the car. 

Equally as important is the absence of any other evidence that Ken Van Patten threatened 

her with the car. There were no witnesses to the incident. There was no statement by either 

party about where Mrs. Van Patten was at the time he was parking the vehicle or whether she 

was in a position to be struck by the car. Ultimately, the deputies were presented with no 

statement of fear from a specific threat from Melinda Van Patten; merely a single isolated 

statement by Ken Van Patten stating “move out of the way or I’ll hit you” which was followed 

by his own denial that he tried to threaten her, no witnesses to the event, and no physical 

evidence demonstrating that he threatened her with the his car. This is simply insufficient to 

establish probable cause that Ken Van Patten placed his wife in imminent threat of serious 

physical injury when parking his car. Plaintiff’s failed to meet their burden of demonstrating that 

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the decision by the officers was unreasonable and not supported by objective evidence. See

Kingsley v. Hendrickson, 576 U.S. ___, 135 S.Ct. 2466, 2472-3, 192 L.Ed.2d 416 (2015) (must 

show officer’s decision was unreasonable to prove excessive force claim); see also State v. 

Owens, 302 Or. 196 (1986) (Article I, Section 9 prohibits unreasonable seizures).

III. CONCLUSION

As a matter of law, Defendant requests relief it its favor on all claims and defenses, as 

stated above.

DATED: July 11, 2017. 

 s/Kimberly A. Stuart 

Kimberly A. Stuart, OSB No. 054685 

Assistant County Counsel 

kimberly_stuart@co.washington.or.us 

Attorney for Defendant

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