Page i – CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM 

OF LAW IN SUPPORT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

WILLIAM W. MANLOVE, Oregon State Bar ID Number 891607 

Senior Deputy City Attorney 

Email: william.manlove@portlandoregon.gov 

Office of City Attorney 

1221 SW 4th Avenue, Suite 430 

Portland, OR 97204 

Telephone: (503) 823-4047 

Facsimile: (503) 823-3089 

Of Attorney for Defendants City of Portland, 

Portland Police Bureau, Officer Craig Dobson, 

Officer Sarah Payton, Officer Engstrom, 

and Officer Newhard 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

MATTHEW T MGLEJ, 

 PLAINTIFF, 

 v. 

MULTNOMAH COUNTY, ET AL., 

 DEFENDANT.

3:15-cv-00096-MO

CITY DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT AND 

MEMORANDUM OF LAW IN SUPPORT

Oral Argument Requested 

Case 3:15-cv-00096-MO Document 46 Filed 10/08/15 Page 1 of 39
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PORTLAND, OREGON 97204 

(503) 823-4047

TABLE OF CONTENTS 

I. MOTION FOR SUMMARY JUDGMENT.........................................................................1

II. MEMORANDUM OF LAW IN SUPPORT .......................................................................1

A. BACKGROUND .....................................................................................................1

1. Mglej’s Arrival at the Federal Courthouse and his Silent Protest ...............1

a. The Clothing Arrangement ............................................................. 2

b. The Posters ...................................................................................... 3

c. The Violin Playing .......................................................................... 3

d. The Nudity ...................................................................................... 4

2. The Police Arrive, Inquire and Warn Mglej ................................................4

3. More Calls about Mglej’s Nudity and the Decision to Arrest .....................5

4. The Police Return and Arrest Mglej ............................................................6

5. The Police Drive Mglej to Jail .....................................................................7

B. PLEADINGS ...........................................................................................................8

C. SUMMARY JUDGMENT STANDARD..............................................................10

D. ARGUMENT .........................................................................................................10

1. Unlawful Arrest/Violation of the First Amendment ..................................10

a. First Amendment-Expressive Conduct ......................................... 11

i. Facial Challenge...................................................................... 14

ii. As-applied Challenge .............................................................. 15

b. Fourth Amendment – Unlawful Arrest ......................................... 18

2. Fourth Amendment – Excessive Force ......................................................20

3. Malicious Prosecution as a Federal Claim .................................................24

4. Fourth Amendment – “Cruel and Unusual Punishment” ...........................25

5. Qualified Immunity ....................................................................................26

a. First Amendment-Expressive Conduct/Fourth AmendmentUnlawful Arrest ............................................................................ 27

b. Fourth Amendment- Use of Force ................................................ 28

c. Malicious Prosecution as a Federal Claim .................................... 29

6. Oregon Constitution - No Private Right of Action for Money Damages ..29

7. Battery ........................................................................................................29

8. Assault........................................................................................................30

9. Negligence .................................................................................................31

III. CONCLUSION ..................................................................................................................31

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PORTLAND, OREGON 97204 

(503) 823-4047

TABLE OF AUTHORITIES 

Federal Cases

Addisu v. Fred Meyer, Inc., 198 F.3d 1130 (9th Cir. 2000) ......................................................... 10 

Anderson v. Creighton, 483 U.S. 635 (1987) ............................................................................... 26 

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ....................................................................... 27 

Arnsberg v. United States, 757 F.2d 971 (9th Cir. 1985) ............................................................. 26 

Ashcroft v. al-Kidd, __ U.S. __, 131 S.Ct. 2074 (2011) ............................................................... 26 

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ..................................................................... 22 

Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir. 2004) ................................................... 24, 25 

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .......................................................... 12, 13, 23 

Beasley v. City of Keizer, 525 Fed. Appx. 549 (2013).................................................................. 26 

Bretz v. Kelman, 773 F.2d 1026 (9th Cir. 1985) ........................................................................... 24 

Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) ................................................................... 22 

Bush v. City of San Diego, 2010 WL 2465034 (S.D. Cal.) ..................................................... 14, 17 

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) .................................................................... 13, 27 

Dallas v. Stanglin, 409 U.S 19 (1989) .......................................................................................... 11 

Evans v. Multnomah Cnty., 2009 WL 1011580 (D. Or.) .............................................................. 24 

Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009) ............................................................ 26 

Forrester v. City of San Diego, 25 F.3d 804 (9th Cir. 1993) ...................................... 21, 22, 23, 28 

Glenn v. Wash. Co., 673 F.3d 864 (9th Cir. 2011) ....................................................................... 21 

Graham v. Connor, 490 U.S. 386 (1989) ............................................................................... 20, 21 

Harper v. City of Los Angeles, 533 F.3d 1010 (9th Cir. 2008) ..................................................... 19 

Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) ............... 27 

Heien v. North Carolina, __U.S. __, 135 S.Ct 530 (2014) ..................................................... 18, 19 

Hope v. Pelzer, 536 U.S. 730 (2002) ...................................................................................... 28, 29 

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PORTLAND, OREGON 97204 

(503) 823-4047

Illinois v. Gates, 462 U.S. 213 (1983) .......................................................................................... 18 

Ingraham v. Wright, 430 U.S. 651 (1977) .................................................................................... 25 

Jimmie’s Limousine Service, Inc. v. City of Oakland, 2005 WL 2000947 (N.D. Cal.) ................ 10 

John v. City of El Monte, 515 F.3d 936 (9th Cir. 2008) ............................................................... 18 

Karboau v. Lawrence, 2007 WL 114022 (D.Or.) ......................................................................... 22 

Keenan v. Allen, 91 F.3d 1275 (9th Cir. 1996) ............................................................................. 10 

Kingsley v. Hendrickson, __ U.S. __, 135 S.Ct. 2466 (2015)....................................................... 25 

Kleinman v. Multnomah County, 2004 WL 2359959 (D.Or.) ........................................................ 1 

Lassister v. City of Bremerton, 556 F.3d 1049 (9th Cir. 2009) .................................................... 18 

Leisek v. Brightwood Corp., 278 F.3d 895 (9th Cir. 2002) .......................................................... 10 

Malley v. Briggs, 475 U.S. 335 (1986) ......................................................................................... 26 

Maryland v. Pringle, 540 U.S. 366 (2003) ............................................................................. 18, 20 

Nicholson v. Hyannis Air. Serv., Inc., 580 F.3d 1116 (9th Cir. 2009) .......................................... 10 

Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997) ........................................... 14 

Pearson v. Callahan, 555 U.S. 223 (2009) ................................................................................... 26 

S.D. Myers, Inc., City and County of San Francisco, 253 F.3d 461 (2001) ................................. 14 

Scott v. Harris, 550 U.S. 372 (2007) ............................................................................................ 23 

Standish v. Woods, 2004 WL 1379466 (D. Or.) ........................................................................... 29 

Stanton v. Sims, __U.S. __, 134 S.Ct. 3 (2013) ............................................................................ 26 

Tennessee v. Garner, 471 U.S. 1 (1985) ....................................................................................... 21 

Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................................. 20 

Texas v. Johnson, 491 U.S. 397 (1989) ................................................................................. passim 

Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011) ............................................................ 26 

U.S. v. Salerno, 481 U.S. 793 (1987) ............................................................................................ 14 

United States v. O’Brien, 391 U.S. 367 (1968) .......................................................... 11, 12, 17, 27 

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PORTLAND, OREGON 97204 

(503) 823-4047

Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002).............................................. 10 

Westwood v. City of Hermiston, 787 F. Supp. 2d 1174 (D. Or. 2011) ......................................... 24 

Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948) ...................................... 13 

State Cases

Bakker v. Baza’r, Inc., 275 Or. 245 (1976) ................................................................................... 29 

Ballard v. City of Albany, 221 Or. App. 630 (2008) ..................................................................... 30 

Blandino v. Fischel, 179 Or. App. 185 (2002) ........................................................................ 24, 25 

Bollaert v. Witter, 101 Or. App. 654 (1990) ................................................................................. 30 

City of Portland v. Gatewood, 76 Or. App. 74 (1985)................................................ 14, 19, 23, 29 

Cook v. Kinzua Pine Mills Co., 207 Or. 34 (1956) ................................................................. 29, 30 

Gigler v. City of Klamath Falls, 21 Or. App. 753 (1975) ............................................................. 30 

Hightower v. City and County of San Francisco, 2013 WL 36115 (N.D. Cal.) ..................... 13, 14 

Huffman and Wright Logging Co. v. Wade, 317 Or. 445 (1993) ................................................. 19 

Hunter v. City of Eugene, 309 Or. 298 (1990) .............................................................................. 29 

Ledford v. Gutoski, 319 Or. 397 (1994) ........................................................................................ 24 

Rich v. Cooper, 234 Or. 300 (1963).............................................................................................. 30 

State v. Plowman, 314 Or. 157 (1992) .......................................................................................... 19 

State v. Pollock, 337 Or. 618 (2004) ............................................................................................. 19 

State v. Soldahl, 331 Or. 420 (2000) ............................................................................................. 19 

Federal Statutes

42 USC Section 1983 ...................................................................................................... 1, 8, 26, 31 

State Statutes

ORS 131.005(11) .......................................................................................................................... 25 

ORS 161.205(5) .............................................................................................................................. 9 

ORS 161.205(5) ........................................................................................................................ 9, 30 

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(503) 823-4047

ORS 161.235(2) ........................................................................................................................ 9, 30 

Federal Rules

Fed. R. Civ. P. 56(a) .............................................................................................................. passim 

State Constitution

Article 1, section 8 of the Oregon Constitution ...................................................................... 19, 20 

Portland City Code

PCC 14A.10.010 (O)....................................................................................................................... 5 

PCC 14A.20.010 ........................................................................................................................... 18 

PCC 14A.20.060 ............................................................................................................................. 6 

PCC 14A.40.030 .................................................................................................................... passim 

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Page 1 – CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM 

OF LAW IN SUPPORT

PORTLAND CITY ATTORNEY’S OFFICE 

1221 SW 4TH AVENUE, RM 430 

PORTLAND, OREGON 97204 

(503) 823-4047

I. MOTION FOR SUMMARY JUDGMENT 

In accordance with Fed. R. Civ. P. 56(a) and LR 56-1, defendants City of Portland, 

Portland Police Bureau,1

 Officer Craig Dobson, Officer Sarah Payton, Officer Engstrom, and 

Officer Newhard, (“City defendants”) move for summary judgment. 

City defendants’ motion has several bases. First, plaintiff’s nude demonstration was not 

protected expressive conduct under the First Amendment. Secondly, City defendants’ arrest of 

plaintiff was lawful because it was supported by probable cause. Third, the video evidence 

submitted with this motion shows there is no genuine issue of material fact to support any claim 

for excessive force, assault, or battery. Also, the individual City defendants are entitled to 

qualified immunity for any claim brought under 42 USC Section 1983. Finally, plaintiff cannot 

bring any claim for damages under the Oregon Constitution, and has no claim for negligence. 

In accordance with LR 7.1-1(a)(1)(A), City defendants made a good faith effort to 

resolve this dispute, but were unable to do so. (See Declaration of William W. Manlove 

(“Manlove Decl.”), ¶ 2.) 

II. MEMORANDUM OF LAW IN SUPPORT 

A. BACKGROUND 

1. Mglej’s Arrival at the Federal Courthouse and his Silent Protest 

On May 23, 2014, plaintiff went to the public sidewalk in front of the federal courthouse 

at S.W. Third Avenue and S.W. Salmon Street in Portland to “demonstrate.” (See Docket 33, 

Amended Complaint (“Complaint”), ¶¶ 13-18.) Upon arriving at the courthouse, plaintiff placed 

a violin, some posters, and some other possessions on the sidewalk. (Manlove Decl., ¶ 3, Ex. 1, 

Deposition Excerpts of Matthew Mglej, July 28, 2015 (“Mglej Depo”) 21: 8-16.) Plaintiff then 

 

1

 The Portland Police Bureau (“the Bureau”) is not a distinct entity from the City of Portland 

itself. Therefore, the Bureau is not amenable to suit. The Court should dismiss the Bureau as a 

defendant. Kleinman v. Multnomah County, 2004 WL 2359959*9 (D.Or.) (citing other cases 

from district finding that the Bureau may not be sued separate and apart from the City.) 

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PORTLAND, OREGON 97204 

(503) 823-4047

took off all his clothing and arranged the clothing into the form of a human figure on the 

sidewalk. (Manlove Decl., Ex. 1, Mglej Depo, 22:18 - 23:4.) Plaintiff took off “every single bit” 

of his clothing, so that he was “fully nude” with his genitalia completely exposed in front of the 

federal courthouse. (Manlove Decl., Ex. 1, Mglej Depo, 20:10 - 21:7.) During his 

demonstration, plaintiff did not speak or make speeches on any topic. (Manlove Decl., Ex. 1, 

Mglej Depo, 26:11-23, 27:15-18, 67:22 – 68:1.) Rather, plaintiff’s demonstration was “a silent 

protest.” (Manlove Decl., Ex. 1, Mglej Depo, 68:4-8.) 

a. The Clothing Arrangement 

Plaintiff’s purpose in arranging his clothing on the sidewalk was “to create a symbolic 

strawman metaphor.” (Manlove Decl., Ex. 1, Mglej Depo, 23:19-23.) Plaintiff meant his 

clothing arrangement on the sidewalk to communicate this message: 

Q. Was that arrangement of clothing, did you mean it to 

convey some type of message? 

A. Yes. 

Q. What type of message did you mean for your clothing to 

convey? 

A. What type of message did I mean for my clothing to 

convey. The message was a multi-themed message, which was 

representing the architects of humanity. The suits and ties, the 

frivolous arrogance of forgetting our own humanity. The 

representation that we’re in a society that has reached farther than 

any known civilization, and we’re still driven by our animalistic 

needs for sex, power. 

And we disguise this with ties and suits. We hide behind our 

reality with suits and ties. We hide our humanity. The fact that we 

all have families, that we all have dreams, that we all require 

vacations, that we all seek something in life, and that this suit and 

tie has been designed to separate us from that. 

The metaphor of the suit and tie is our separation from that, and 

that we need to become aware of that; that no longer seek for 

money, no longer seek for greed, but seek for humanity and 

happiness, reorganize our-reorganize human thoughts to finally 

create a purpose which serves our intellect and not our greed. 

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PORTLAND, OREGON 97204 

(503) 823-4047

Q. Anything else? 

A. I can go on, but I think that sums up the base of the 

question. 

(Manlove Decl., Ex. 1, Mglej Depo, 24:11 - 25:16.) 

Plaintiff’s target audience for this message was “the human race.” (Manlove Decl., Ex. 

1, Mglej Depo, 25:17 - 26:2.) 

b. The Posters 

After plaintiff arranged his clothing on the sidewalk, he created three posters “during the 

protest” and leaned them against the wall of the courthouse and set them on the sidewalk. 

(Manlove Decl., Ex. 1, Mglej Depo, 34:25 - 35:12.) On one of the posters, plaintiff wrote: “For 

those who are willing to die for war, I’m willing to die for peace.” (Manlove Decl., Ex. 1, Mglej 

Depo, 35:25 - 36:9.) On the other two posters, plaintiff wrote quotations from the former 

president of the Islamic Republic of Iran, Mahmoud Ahmadinejad. (Manlove Decl., Ex. 1, Mglej 

Depo, 36: 10-17; see also Complaint, ¶ 18.) One quote from Mr. Ahmadinejad was something 

about “the tools of power and money should be used for strengthening human bond, connection, 

and spiritual growth, not for the use of control, domination and greed.” (Manlove Decl., Ex. 1, 

Mglej Depo, 36:18 - 37:1.) The other Ahmadinejad quote was something to the effect : “How 

can there be justice when the minister of justice and the adjudicator are on the same side?” 

(Manlove Decl., Ex. 1, Mglej Depo, 37:2-6.) Plaintiff identified Mr. Ahmadinejad on the posters 

as the source of the quotations. (Manlove Decl., Ex. 1, Mglej Depo, 37:7-16.) Like his clothing 

arrangement on the sidewalk, plaintiff’s target audience for the posters was “the human race.” 

(Manlove Decl., Ex. 1, Mglej Depo, 40:23- - 41:2.) 

c. The Violin Playing 

As part of his demonstration, plaintiff also played a violin. (Manlove Decl., Ex. 1, Mglej 

Depo, 66:19 - 67:5.) He did this because he believed the “[v]iolin is very symbolic in American 

culture” and felt “it was fitting” to be part of his demonstration. (Manlove Decl., Ex. 1, Mglej 

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(503) 823-4047

Depo, 67:6-13.) 

d. The Nudity 

Plaintiff took off his clothing as part of his demonstration because he believed the law 

allowed him to do so. 

Q. All right. So let’s get to the nudity. What -- Why did you 

–why did you take off your clothes? 

A. What do you mean? 

Q. Why—why did you take off your clothes as part of this 

demonstration? 

A. Why did I take off my clothes as part of this 

demonstration? Because I was advocating my constitutional rights. 

Q. What does that mean to you? 

A. It means that I have rights that are granted to me. And that 

I, for whatever reason – not reason, just I have a right to –to do that 

because it’s protected.” 

(Manlove Decl., Ex. 1, Mglej Depo, 51:20 - 52:7.) 

At deposition, plaintiff explained his nudity “was designed to be a symbolic metaphor of 

transparency.” (Manlove Decl., Ex. 1, Mglej Depo, 52:8-13.) 

2. The Police Arrive, Inquire and Warn Mglej 

At about 12:40 p.m., after the City had received calls about plaintiff’s nudity, Portland 

police officers arrived on scene, including Officer Sarah Payton. (Declaration of Sarah Payton 

(“Payton Decl.”), ¶¶ 5-6.) Payton asked plaintiff what he was protesting, but he gave no answer, 

or simply pointed to the posters. (Payton Decl., ¶ 7.) Later, Acting Lieutenant Craig Dobson 

arrived on scene. Dobson saw that plaintiff was nude, and saw that as plaintiff sat, stood, and 

walked around his possessions scattered about him on the sidewalk, that plaintiff’s genitalia was 

plainly visible to the public. (Declaration of Craig Dobson (“Dobson Decl.”), ¶ 8.) 

Lt. Dobson spoke with city attorney David Woboril and explained that plaintiff was nude 

in front of the federal courthouse and claimed to be engaged in protest. Dobson told Woboril he 

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was not clear what the protest was about, and told Woboril he believed he had probable cause to 

arrest plaintiff for violation the City’s indecent exposure law, Portland City Code (“PCC”) 

14A.40.030, which states: 

It is unlawful for any person to expose his or her genitalia while in 

a public place2 or place visible from a public place, if the public 

place is open or available to persons of the opposite sex. 

Dobson told Woboril he was not going to arrest plaintiff at that time, but would arrest 

him if the City received additional calls about plaintiff’s nudity. Attorney Woboril agreed with 

Dobson’s course of action, and told Dobson he had probable cause to arrest plaintiff for violating 

the City’s law. (Dobson Decl., ¶ 9.) 

Lt. Dobson approached plaintiff and explained to him he was violating the City’s law. 

Plaintiff told Dobson he was protesting. When Dobson asked what the protest was about, 

plaintiff refused to tell him. (Dobson Decl., ¶ 10, 17; see also, Declaration of Ryan Rees (“Rees 

Decl.”), ¶ 8, Ex. 1, Initial Contact_14-41928-mglej_edited video.wmv (“Initial Contact video”), 

at 34:36-34:39 minutes.) Dobson told plaintiff the police would arrest him if the police bureau 

received more complaints about plaintiff’s nudity. (Dobson Decl., ¶ 10; Rees Decl., Ex. 1, Initial 

Contact video.) 

3. More Calls about Mglej’s Nudity and the Decision to Arrest 

Over the next couple of hours, the police bureau received calls from citizens complaining 

of plaintiff’s nudity. The calls expressed concern and alarm about plaintiff’s nudity, and the 

complaints were from both pedestrians and motorists. (Dobson Decl., ¶ 12; Payton Decl., ¶ 9; 

Declaration of Ty Engstrom (“Engstrom Decl.”), ¶ 7.) At least two people who complained 

about plaintiff’s nudity had small children with them. (Payton Decl., ¶ 9.) 

In light of the calls received by the police bureau, at approximately 3:15 p.m., Lt. Dobson 

 

2

 PCC 14A.10.010 (O) defines “[p]ublic place” as “ a publicly or privately owned place to which 

the general public has access and may include but is not limited to public property and areas of 

private property open to the public...” 

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decided to arrest plaintiff for violating PCC 14A.40.030.3 Dobson communicated his decision to 

Portland Police Sergeant Ty Engstrom and directed officers to arrest plaintiff. (Dobson Decl., ¶ 12.) 

4. The Police Return and Arrest Mglej 

Officer Payton and Sgt. Engstrom returned to the front of the federal courthouse. (Payton 

Decl., ¶ 11; Engstrom Decl., ¶¶ 9, 10.) Payton positioned her patrol car to record the arrest on 

her car’s video camera. (Id.) Payton and Engstrom approached plaintiff, who was sitting on the 

sidewalk with his arms by his sides, eyes closed, legs crossed, and genitalia exposed to the 

public. (Id.) Payton and Engstrom each took one of plaintiff’s hands, and moved them behind 

his back. They then used Payton’s handcuffs to handcuff plaintiff. (Payton Decl., ¶ 11; 

Engstrom Decl., ¶ 10.) As Payton was handcuffing plaintiff, she explained to him that he was 

under arrest for indecent exposure. Payton double-locked her handcuffs and checked them for 

appropriate tightness to make sure the handcuffs would not tighten, and were put on properly. 

(Payton Decl., ¶¶11, 17; see also Rees Decl., Ex. 1, 14-41928-mglej_Arrest.wmv (“Arrest 

video”) at 1:01-1:11 minutes.) 

Officer Payton and Sgt. Engstrom asked plaintiff to stand up and walk to the patrol car 

about 20 to 25 feet away. Plaintiff refused to move. Payton and Engstrom were able to lift 

plaintiff to his knees. They again asked him to stand up and walk. Plaintiff again did not say 

anything and did not comply. Payton and Engstrom then each put an arm under plaintiff’s 

armpits and lifted and carried him to the patrol car. As they carried plaintiff, the tops of 

plaintiff’s feet dragged along the sidewalk. Plaintiff remained limp during the carry to the car, 

and did not say anything or otherwise express any pain or discomfort. (Payton Decl., ¶ 12; 

Engstrom Decl., ¶¶ 10, 11; See also Rees Decl., Ex. 1, Arrest video at 3:39-3:49 minutes.) 

 

3

 PCC 14A.20.060 makes the City’s Indecent Exposure ordinance an arrestable offense: “Unless 

a different penalty is specifically provided, any violation of any provision of this Title shall upon 

conviction be punished by a fine of not more than $500, or by imprisonment of not more than 6 

months, or by both. However, no greater penalty shall be imposed than allowed under Oregon 

law.” 

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PORTLAND, OREGON 97204 

(503) 823-4047

Officer Payton and Sgt. Engstrom stopped once they got plaintiff to the patrol car. They 

again asked plaintiff to stand up and get into the car. The officers explained to plaintiff there 

was a risk of getting hurt if they had to lift and carry him into the car. The officers also 

explained plaintiff’s dog could travel with him to jail if he got in and got seated into the car. 

Plaintiff did not say anything and refused to cooperate. (Payton Decl., ¶ 13; Engstrom Decl., ¶ 

12; see also Rees Decl., Ex. 1, Arrest video at 4:01-4:20 minutes.) 

Officer Payton and Sgt. Engstrom, along with other officers lifted plaintiff and carried 

him head first into the back of the patrol car, with plaintiff’s face facing up to the ceiling. 

Portland Police Officer Melissa Newhard went to the street side of the car and from there, gently 

guided plaintiff’s shoulders into the back seat while other officers lifted and pushed plaintiff’s 

legs and torso. As the officers were placing plaintiff into the patrol car, he remained limp, never 

said anything, and did not otherwise express pain or discomfort. Once in the back of the patrol 

car, the officers shut the door and never touched plaintiff again. (See Rees Decl., Ex. 1, Arrest 

video at 5:45-6:27 minutes.) Once inside the car, plaintiff then maneuvered his handcuffs from 

behind his body to the front of his body. (Payton Decl., ¶¶13, 17; Engstrom Decl., ¶¶ 12, 15; 

Declaration of Melissa Newhard (“Newhard Declaration”), ¶ 8, 9; see also Rees Decl., Ex. 1, 

Arrest video at 5:50-6:33 minutes.) 

5. The Police Drive Mglej to Jail 

Officer Payton and Lt. Dobson drove plaintiff to the Multnomah County Detention 

Center (“MCDC”). The drive took about two minutes. During the trip to MCDC, plaintiff never 

said anything or otherwise acted as if he was in pain or discomfort. (Payton Decl., ¶ 14.) 

At MCDC, deputies from the Multnomah County Sheriff’s Office took custody and 

control of plaintiff. Officer Payton took a single photograph of plaintiff’s feet, just as the jail 

deputies were placing plaintiff into an isolation cell. The photograph shows six small abrasions 

on plaintiff’s toes and top of his feet. (Payton Decl., ¶ 16, Ex. 1, photograph.) 

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Officer Newhard was directed to charge plaintiff with violating PCC 14A.40.030. 

Newhard charged plaintiff with that offense and no other offense. (Newhard Decl., ¶ 11, Ex. 1, 

Custody Report.) Newhard took control of plaintiff’s property, including his small dog, and 

processed the dog and property in accordance with the Bureau’s directives and standard 

operating procedures. (Newhard Decl., ¶ 12, Ex. 2, PPB Directive 0870.40; ¶ 13, Ex. 3, PPB 

Standard Operating procedure regarding impounded animals; ¶ 14, Ex. 4, PPB Impound Form; ¶ 

15, Ex. 5, PPB Property/Evidence Receipt.) 

Officer Payton & Sgt. Engstrom each documented their interactions with plaintiff in 

proper bureau report. (Payton Decl. ¶ 19, Ex. 2, PPB Case No. 14-041928 Investigation Report; 

Engstrom Decl. ¶ 17, Ex. 1, PPB Case No. 14-041928 Special Report.) 

Sometime later, the Multnomah County District Attorney’s Office dismissed the criminal 

charge against plaintiff. 

B. PLEADINGS 

On April 15, 2015, plaintiff filed his Amended Complaint (“Complaint”). 

He brings several “causes of action” under 42 U.S.C. § 1983 seeking damages from all 

defendants for violation of his rights protected by the First, Fourth and Fourteenth Amendments. 

(See Complaint, ¶¶ 95-155.) First, plaintiff claims his arrest for his public nudity was unlawful 

because his “actions are constitutional [sic] protected,” violating his rights protected by the 

Fourth Amendment. (Complaint, ¶¶100, 103.) Second, plaintiff also claims the manner of his 

arrest by defendants Payton, Engstrom and the other officers in carrying him to the patrol car and 

placing him inside the car, “exceeded the degree of force which reasonable and prudent law 

enforcement officer would have applied.” (Complaint, ¶¶ 109-112, 115.) As such, plaintiff 

claims the manner of his arrest violated his rights protected under the Fourth Amendment. 

(Complaint, ¶¶ 95-105.) Third, plaintiff claims the charging decision for violating PCC 

14A.40.030 was “initiated maliciously because there was no evidence to support Plaintiff’s 

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detention.” (Complaint, ¶ 124.) Plaintiff claims the criminal charge violated his federal rights 

protected by the Fourth and Fourteenth Amendment. (Complaint, ¶¶ 121-127.) Fourth, plaintiff 

claims his arrest for indecent exposure violated his First Amendment rights, and complains the 

City of Portland negligently “refuse[s] to modify or amend its Ordinance and continues to 

enforce it.” (Complaint, ¶¶ 130-131.) Finally, in a claim that appears to be more directed to his 

detention at jail, plaintiff asserts a “Fourth Amendment violation” for “Cruel and Unusual 

Punishment.” (Complaint, ¶¶ 135-147.) 

Plaintiff also brings several causes of action under various provisions of the Oregon 

Constitution, again seeking damages from all defendants. (Complaint, ¶¶ 148-212.) Similar to 

his federal claims, plaintiff asserts claims for money damages under Article 1, Sections 8, 9, 13 

and 16 for respectively, unlawful arrest, excessive force, malicious prosecution, and denial of 

free speech. (Id.) Plaintiff seeks money damages only for these alleged violations of the Oregon 

Constitution. (Complaint, ¶¶ 160, 162, 179, 180, 187, 210, 212.) 

Finally, plaintiff brings three causes of action under state tort law against all defendants 

for battery, assault, and negligence. (Complaint, ¶¶ 213-232.) 

Defendants Dobson, Payton, Engstrom, Newhard and the City of Portland (“City 

defendants”) have denied plaintiff’s claims. (See Docket 36, Defendants Craig Dobson, Sarah 

Payton, Officer Engstrom, Officer Newhard, and City of Portland’s Answer and Affirmative 

Defenses to Amended Complaint (“City defendants’ Answer”), pp. 1-14.) The City defendants 

assert various affirmative defenses including failure to state a claim, qualified immunity, 

probable cause, statutory authority to use control or force during an arrest under ORS 161.205(5) 

and 161.235, justification, good faith and the lack of a private right of action for damages under 

the Oregon Constitution. (See City defendants’ Answer, pp. 14-16.) 

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C. SUMMARY JUDGMENT STANDARD 

Fed. R. Civ. P. 56 (a) authorizes summary judgment if no genuine issue exists regarding 

any material fact and the moving party is entitled to summary judgment as a matter of law. The 

moving party must show the absence of an issue of material fact. Leisek v. Brightwood Corp., 278 

F.3d 895, 898 (9th Cir. 2002). Once the initial burden is satisfied, the burden shifts to the opponent 

to show through the production of probative evidence that there remains a fact dispute to be tried. 

The nonmoving party must go beyond the pleadings and show there is a genuine issue of material 

fact for trial. Leisek, supra, at 898. An issue of fact is genuine “if the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Villiarmo v. Aloha Island Air, 

Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). On a motion for summary judgment, the court “must 

view the evidence ...in the light most favorable to the non-moving party and draw all reasonable 

inferences in favor of that party.” Nicholson v. Hyannis Air. Serv., Inc., 580 F.3d 1116, 1122 n. 1 

(9th Cir. 2009) (internal quotation omitted.) However, it is not the task of the district court “to 

scour the record in search of a genuine issue of triable fact.” Jimmie’s Limousine Service, Inc. v. 

City of Oakland, 2005 WL 2000947 (N.D. Cal.) (quoting Keenan v. Allen, 91 F.3d 1275, 1279 (9th

Cir. 1996).) The substantive law governing a claim or defense determines whether a fact is 

material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 

D. ARGUMENT 

1. Unlawful Arrest/Violation of the First Amendment 

Plaintiff’s First and Fourth claims for relief are intertwined with the same legal question: 

whether the City’s police officers could lawfully arrest plaintiff for violating the City’s Indecent 

Exposure Ordinance, PCC 14A.40.030. Plaintiff claims his nude demonstration in front of the 

federal courthouse was constitutionally protected, and as a result, his arrest under the ordinance 

was unlawful. (See Complaint, ¶¶ 100, 103, 131.) Plaintiff contends the City’s enforcement of 

its ordinance where “nudity is used as a demonstration” violates the First Amendment. (See

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Complaint, ¶¶ 130-132.) Whether plaintiff makes a facial challenge to the City’s ordinance, or 

whether he makes an “as-applied” challenge to the ordinance, plaintiff is wrong. 

a. First Amendment-Expressive Conduct 

The First Amendment protects not simply the written or spoken word from government 

interference, but also certain forms of expressive conduct. Texas v. Johnson, 491 U.S. 397, 404 

(1989). Significantly though, a person’s mere subjective intent to express an idea through 

conduct, does not necessarily merit First Amendment protection. See United States v. O’Brien, 

391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of 

conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to 

express an idea.”); see also Dallas v. Stanglin, 409 U.S 19, 25 (1989) (“It is possible to find 

some kernel of expression in almost every activity a person undertakes ... but such a kernel is 

not sufficient to bring the activity within the protection of the First Amendment.”) 

Rather, whether certain conduct might possibly receive First Amendment protection, 

depends on two factors: 

Whether “[a]n intent to convey a particularized message was 

present, and [whether] the likelihood was great that the message 

would be understood by those who viewed it.” 

Texas v. Johnson, 491 U.S. at 404 (quoting United States v. O’Brien, 391 U.S. at 410-411 (1968).) 

In Texas v. Johnson, Mr. Johnson publicly burned an American flag as the culmination of 

a political demonstration that coincided with the convening of the Republican Party and the renomination of Ronald Reagan for President. Id. at 406. Johnson appealed his conviction for flag 

desecration under Texas law, arguing the First Amendment protected his expressive conduct. Id. 

at 400-02. The Supreme Court agreed, and in affirming the reversal of his conviction by the 

Texas Court of Criminal Appeals, noted the “expressive, overtly political nature of [Johnson’s] 

conduct was ... overwhelmingly apparent.” Id. at 406. 

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However, even assuming conduct is sufficiently particularized to create a great likelihood 

that it will be understood by those viewing it, - in other words “sufficiently imbued with 

elements of communication” to implicate the First Amendment (see Texas v. Johnson, 491 U.S. 

at 406), - the government may still proscribe that conduct. 

[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the 

same course of conduct, a sufficiently important governmental 

interest in regulating the nonspeech element can justify incidental 

limitations on First Amendment freedoms. 

**** 

[W]e think it clear that a government regulation is sufficiently 

justified if it is within the constitutional power of the Government; 

if it furthers an important or substantial governmental interest; if 

the governmental interest is unrelated to the suppression of free 

expression; and if the incidental restriction on alleged First 

Amendment freedoms is no greater than is essential to the 

furtherance of that interest. 

O’Brien, supra, 391 U.S. at 376-77. 

In O’Brien, Mr. O’Brien burned his Selective Service Certificate in violation of federal 

law on the steps of a courthouse in Boston. O’Brien, 391 U.S. at 369. He did this “in 

demonstration against the [Vietnam] war and against the draft.” Id. at 376. On appeal of his 

criminal conviction, O’Brien argued the federal law prohibiting the knowing destruction of the 

certificate violated his First Amendment rights. The Court rejected that argument in adopting the 

eponymous four-part O’Brien test: Legitimate governmental regulations that advance important 

interests are constitutional, if they are unrelated to the suppression of speech and only 

incidentally restrict First Amendment freedoms. Id. at 377. 

In this regard, regulating public nudity has long been within the constitutional power of 

government. In Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the Supreme Court noted 

“[W]e find Indiana’s public indecency statute is justified despite its 

incidental limitations on some expressive activity. The public 

indecency statute is clearly within the constitutional power of the 

State and furthers substantial governmental interests. ... [T]he 

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statute’s purpose of protecting societal order and morality is clear 

from its text and history. Public indecency statutes of his sort are 

of ancient origin and presently exist in at least 47 States. Public 

indecency, including nudity, was a criminal offense at common 

law, and this Court recognized the common-law roots of the 

offense of “gross and open indecency” in Winters v. New York, 333 

U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948). Public 

nudity was considered an act malum in se. Le Roy v. Sidley, 1 Sid. 

168, 82 Eng. Rep. 1036 (K.B. 1664). Public indecency statutes 

such as the one before us reflect moral disapproval of people 

appearing in the nude among strangers in public places. 

Barnes v. Glen Theatre, Inc., 501 U.S. at 567-68 (1991). 

In Barnes, owners and dancers of a nude dancing club sued to enjoin enforcement of an 

Indiana public indecency statute that, in part, criminalized appearing in public in a state of 

nudity. Barnes, 501 U.S. at 569, n. 2. The owners and dancers claimed the statute’s requirement 

for the dancers to appear partially clothed while performing violated the First Amendment’s 

guarantee of freedom of expression. Id. at 562-63. The Court explicitly rejected the notion that 

a person’s subjective intent to convey some message by appearing nude in public was a form of 

constitutionally protected conduct. Id. at 570. Rather, the Court affirmed that a statute’s clear 

focus on prohibiting public nudity was a governmental interest unrelated to the suppression of 

free expression, “whether or not [the nudity] is [also] combined with expressive activity.” Id. at 

571. 

The Barnes holding that public nudity laws are to be evaluated under the O’Brien test 

was explicitly reaffirmed in City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000). In City of 

Erie, the Court even made the obvious point that “[b]eing ‘in a state of nudity’ is not an 

inherently expressive condition” subject to First Amendment protection. Id. And while Barnes

and City of Erie involved nude entertainment inside private businesses, lower courts in the Ninth 

Circuit have applied the O’Brien tests to public displays of nudity as a form of protest. See 

Hightower v. City and County of San Francisco, 2013 WL 36115, *7 (N.D. Cal.) (facial 

challenge to ordinance) (“[P]ublic nudity in and of itself is not commonly associated with 

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expression of a particular message.”) Bush v. City of San Diego, 2010 WL 2465034 *1 (S.D. 

Cal.). “[N]udity, by itself, [does not] communicate an intelligible message such that there [is no] 

First Amendment right to be naked.” 

i. Facial Challenge 

“A facial challenge to a legislative [a]ct is, of course, the most difficult challenge to 

mount successfully, since the challenger must establish that no set of circumstances exists under 

which the [a]ct would be valid.” U.S. v. Salerno, 481 U.S. 793, 745 (1987); see also S.D. Myers, 

Inc., City and County of San Francisco, 253 F.3d 461, 467-68 (2001) (same). When making 

such a challenge under the First Amendment, “[a] facial challenge must fail unless, at a 

minimum, the challenged ordinance is directed narrowly and specifically at expression or 

conduct commonly associated with expression.” Nunez by Nunez v. City of San Diego, 114 F.3d 

935, 950 (9th Cir. 1997). 

In the present case, it is unclear if plaintiff is making a facial challenge. However, he 

does complain that the City has “[n]egligently refused to modify or amend its Ordinance and 

continues to enforce it” when “nudity is used as a demonstration.” (Complaint, ¶ 130.) 

Regardless, the ordinance is content-neutral, directed to a legitimate governmental 

interest, and is fundamentally no different than the section of the Indiana indecency statute 

upheld in Barnes, or for that matter, the San Francisco and San Diego ordinances upheld in 

Hightower and Bush, respectively, supra. In addition, the Oregon Court of Appeals has upheld 

the facially validity of the ordinance in City of Portland v. Gatewood, 76 Or. App. 74, 78 

(1985).4

 

Plaintiff can make no successful facial challenge to PCC 14A.40.030. 

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4

 The ordinance in Gatewood was numbered PCC 14.24.060, but the text is identical to PCC 

14.40.030. 

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ii. As-applied Challenge 

Similarly, plaintiff can make no successful as-applied challenge. Plaintiff’s nude 

demonstration fails to rise to a level of protected expression under the First Amendment. 

First of all, with respect to plaintiff’s symbolic strawman, the posters, his violin playing, 

and nudity, plaintiff’s message was not sufficiently particularized such that there was a great 

likelihood it would be understood by persons passing by. See Texas v. Johnson, 491 U.S. at 404. 

Recall, plaintiff concedes the message associated with undressing and arranging the clothing was 

“a multi-themed message.” (Manlove Decl., Ex. 1, Mglej Depo, 24:14-19.) His intent was that 

the clothing arrangement on the sidewalk “was representing the architects of humanity.” (Id.) 

Plaintiff explains the suit and tie on the sidewalk was connected to “the frivolous arrogance of 

forgetting our own humanity,” represented humanity’s drive for “animalistic needs for sex, 

power” and illustrated the separation of humanity from “families,” “dreams,” “require[d] 

vacations” and those “something[s]” “that we all seek... in life.” (Manlove Decl., Ex. 1, Mglej 

Depo, 24:19 - 25:6.) 

Not surprising, during his demonstration people walked by and asked plaintiff what he 

was doing. (Manlove Decl., Ex. 1, Mglej Depo, 27:22-23.) One person asked “[i]s this an antiwar thing? Is this for war?” (Manlove Decl., Ex. 1, Mglej Depo, 27:25 – 28:3.) A woman 

asked: “What are you protesting?” Plaintiff did not appear to respond. (Rees Decl., Ex. 1, Initial 

Contact video at 8:41 minutes.) At one point a man asked: “What’s your reason for doing this?” 

Plaintiff responded “Freedom.” (Id. at 20:18 minutes.) 

The police who responded to the complaints of plaintiff’s nudity were also unclear about 

the point of plaintiff’s demonstration. (Payton Decl., ¶ 7.) When one officer stated and asked 

plaintiff: “This is a protest?” “What are you protesting?” plaintiff replied: “Decide for yourself.” 

(Rees Decl., Ex. 1, Initial Contact video at 6:19-6:25 minutes.) Later, when Lt. Dobson asked 

what he was protesting, plaintiff refused to elaborate, stating, in effect, he did not have to explain 

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the point of his conduct, or how his nudity was somehow connected to his protest. (See Dobson 

Decl., ¶¶ 10, 17.) 

At his deposition, plaintiff conceded he has no facts showing or suggesting his “multithemed message” was received or understood by the public. (Manlove Decl., Ex. 1, Mglej Depo, 

45:7 - 47:9.) Plaintiff made the same concession with respect to the posters. (Manlove Decl., 

Ex. 1, Mglej Depo, 51:5-16.) Moreover, at deposition, plaintiff conceded the “symbolic 

metaphor of transparency” that he meant his nudity to convey to the public, could have in fact 

been interpreted in many other ways. 

Q. Was the nudity meant to be – to convey a particular 

message? 

A. Yes. 

Q. And—and what was that? Please explain. 

A. The nudity was designed to be a symbolic metaphor of 

transparency. 

Q. Anything else about the – the nudity? 

A. That’s ambiguous and confusing. 

Q. Well, was there—was there any other message that you 

were trying to convey by being completely nude, other than have 

your nudity be a symbolic metaphor of transparency? 

A. I’d say it could be interpreted in many ways, but that was 

one of the core messages. 

Q. What other ways do you think it could have been 

interpreted? 

A. By whichever way the consumer or viewer chose to 

interpret it. 

Q. Would one possibility be that the viewer attached no 

significance at all to your nudity, no communicative significance? 

A. I don’t know. There’s thousands of incident possibilities. 

Q. Is one possibility that a viewer could have thought, “Maybe 

this person has some sort of mental problem.” ? 

A. I don’t know. Objection, that’s speculation. 

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Q. Okay. But you –Again though, many possible 

interpretations, correct? 

A. There could be an interpretation that I was a divine angel 

and I was the rebirth of Christ. But I’m sure that somebody who 

thought that would be mentally ill. So yes, there are possibilities 

where somebody could see this as a person who was advocating 

their rights and defining the corporate structure and escaping this 

rabbit trap. 

And there’s another possibility that I was just some crazy person. 

And then there’s a possibility that maybe I was doing something 

right. I mean, I can go on, but there’s so many possibilities. So 

that’s kind of why questions like that are objected to and not really 

allowed in a court of law. Because they can just go on and on and 

on. 

(Manlove Decl., Ex. 1, Mglej Depo, 52:8 - 54:2.) (Emphasis added.) 

In short, plaintiff’s demonstration was an amalgam of incoherent messages and offensive 

conduct. No reasonable person would understand any connection between the political 

quotations from Mahmoud Ahmadinejad, and the public exposure of plaintiff’s genitalia. 

Plaintiff’s nudity advanced no message. At best, plaintiff’s nudity was simply base amplification 

of his “multi-themed message” that no one understood. Such amplification is not 

constitutionally protected. See Bush v. City of San Diego, 2010 WL 2465034 *1. As such, 

plaintiff’s “demonstration”, and in particular his nudity, fails as expressive conduct under Texas 

v. Johnson, supra. 

Moreover, even assuming plaintiff’s nude demonstration could reasonably have been 

perceived as some form of protected expressive conduct, plaintiff’s First Amendment challenge 

to his arrest cannot withstand the four-part test from O’Brien, supra. Portland City Code 

14A.40.030 is squarely within the police power of the City, was adopted by City Council to 

“prevent and prohibit conduct that unjustifiably inflicts or threatens harm to individual or public 

interests,” 5

 is not directed at the suppression of speech, and has the barest of impacts on 

 

5

 PCC 14A.20.010 General Purposes of Title, states: 

“The general purposes of the provisions set forth in Title 14 are to prevent and prohibit conduct 

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protected expression. On May 23, 2014, Lt. Dobson enforced the ordinance just as City Council 

envisioned. 

The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

First Amendment claim. Fed. R. Civ. P. 56(a). 

b. Fourth Amendment – Unlawful Arrest 

A warrantless arrest is reasonable under the Fourth Amendment when there is probable 

cause to believe that a criminal offense has been or is being committed, and the person to be 

arrested has committed the offense. See Maryland v. Pringle, 540 U.S. 366, 371 (2003). 

“Probable cause exists when the facts and circumstances within the officer’s knowledge are 

sufficient to cause a reasonably prudent person to believe that a crime has been committed.” 

Lassister v. City of Bremerton, 556 F.3d 1049, 1053 (9th Cir. 2009). Probable cause “deals with 

probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, supra. It is 

a “’practical, nontechnical conception’” that deals with “’the factual and practical considerations 

of everyday life on which reasonable and prudent men, not legal technicians, act.’” Id. at 370 

(quoting Illinois v. Gates, 462 U.S. 213,231 (1983)). At its core, probable cause is a “reasonable 

ground for belief of guilt” and the belief is particularized to the person to be arrested. Id. The 

standard is whether “a prudent person would have concluded there was a fair probability that the 

[criminal] defendant had committed a crime.” John v. City of El Monte, 515 F.3d 936, 940 (9th

Cir. 2008). Moreover, a police officer’s reasonable mistake concerning the validity or 

applicability of a law in a certain factual setting does not affect probable cause. See Heien v. 

North Carolina, __U.S. __, 135 S.Ct 530, 534 (2014) (holding reasonable mistake concerning 

interpretation of state motor vehicle statute did not affect reasonable suspicion to uphold stop 

 

that unjustifiably inflicts or threatens harm to individual or public interests, to safeguard conduct 

that is without culpability from condemnation as criminal, and to provide fair warning of the 

nature of the conduct declared to constitute an offense.” 

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under Fourth Amendment.) “[R]easonable suspicion can rest on a mistaken understanding of the 

scope of a legal prohibition.” Id. at 535. Finally, probable cause is determined by “the collective 

knowledge of all the officers involved in the criminal investigation.” Harper v. City of Los 

Angeles, 533 F.3d 1010, 1022 (9th Cir. 2008). 

Under Oregon law, probable cause requires an arresting officer to subjectively believe 

more likely than not that an offense has been committed, and this belief must be objectively 

reasonable under the totality of the circumstances. State v. Pollock, 337 Or. 618, 622-23 (2004). 

Like federal law, probable cause in Oregon is determined by the collective knowledge of all the 

involved officers. State v. Soldahl, 331 Or. 420, 426-28 (2000). 

In the present case, Lt. Dobson directed officers to arrest and charge plaintiff for violating 

PCC 14A.40.030, Portland’s Indecent Exposure ordinance. (Dobson Decl., ¶ 12.) Plaintiff 

admits he was “fully nude” in front of the federal courthouse. (Manlove Decl., Ex. 1, Mglej 

Depo, 20:10 - 21:7.) 

Plaintiff cannot challenge the lawfulness of his arrest under the First Amendment for the 

reasons discussed supra at pp. 10-18. 

Plaintiff also cannot challenge the lawfulness of his arrest under Article 1, section 8 of 

the Oregon Constitution. Recall, PCC 14A.40.030 has been held facially valid. City of Portland 

v. Gatewood, 76 Or. App. 74, 78 (1985). For purposes of the Oregon Constitution, PCC 

14A.40.030 is a law that focuses of forbidden effects, (i.e., public nudity), without any reference 

to expression, although in some circumstances, a person might argue the ordinance could not be 

constitutionally applied to the person’s particular conduct (e.g., nudity as a communicative act). 

See State v. Plowman, 314 Or. 157, 163-64 (1992) (En Banc) (discussing framework for 

evaluating whether a law violates Article I, section 8.). Certainly though, a person’s subjective 

belief does not transform punishable conduct into protected expression. See Huffman and Wright 

Logging Co. v. Wade, 317 Or. 445 451-52 (1993) (En Banc) (logging protestors’ acts of trespass 

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not protected expression under Article I, section 8, noting that “a person’s reason for engaging in 

punishable conduct does not transform conduct into expression”, and “speech accompanying 

punishable conduct does not transform conduct into expression under Article I, section 8.”) 

(Emphasis original.) 

But in the present case, the issue is not whether plaintiff’s arrest violated Article I, 

section 8, but rather if Lt. Dobson had probable cause to believe plaintiff’s conduct violated PCC 

14A.40.030. Recall, this issue of probable cause is not the realm of “legal technicians” but rather 

“reasonable and prudent men.” Maryland v. Pringle, 540 U.S at 370. The undisputed facts show 

that on May 23, 2014, plaintiff’s nudity had no communicative value- at least to a reasonable and 

prudent person. The police were unclear why plaintiff exposed his genitalia to the public. 

(Payton Decl., ¶ 7.) (Dobson Decl., ¶¶ 10, 18.) Plaintiff refused to tell the police what or why he 

was protesting. (Id.) Plaintiff was engaged in a “silent protest,” and by conceding his nudity 

was capable of countless interpretation, effectively admits his nudity had no communicative 

value. (See Manlove Decl., Ex. 1, Mglej Depo, 68:4-8, 52:8-54:2.) 

Without any doubt, plaintiff more likely than not violated the City’s ordinance. (See

Rees Decl., Ex. 1, Initial Contact video.) As a result, Dobson and the other police officers had 

probable cause to arrest plaintiff, and there is no Fourth Amendment violation. 

The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

unlawful arrest claim. Fed. R. Civ. P. 56(a). 

2. Fourth Amendment – Excessive Force 

The Fourth Amendment allows police officers to use reasonable force in carrying out law 

enforcement duties. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“the 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”) (citing Terry v. Ohio, 392 U.S. 1, 22–27 (1968)). A claim 

for excessive force under the Fourth Amendment involves “whether the officers’ actions [were] 

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‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham, 490 

U.S. at 397; see also Glenn v. Wash. Co., 673 F.3d 864, 871 (9th Cir. 2011). Significantly, police 

officers are not “required to use the least intrusive degree of force possible” as long as reasonable 

force was used. Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1993). Finally, the 

‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable 

officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. 

Fundamentally, reasonableness involves balancing “the nature and quality of the 

intrusion on the individual’s Fourth Amendment interests against the countervailing 

governmental interests at stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). 

In the Ninth Circuit, an excessive force claim is analyzed in three steps. Glenn, 673 F.3d at 871. 

First, the Court evaluates the gravity of the intrusion with reference to “the type and amount of 

force inflicted.” Id. Second, the Court identifies the government’s interests that were furthered 

by the use of force. Id. In the final step, the Court balances the individual’s interests against the 

interest of the government, acting through the community’s police officers. Id. 

In the present case, the intrusion was minimal. Officer Payton and Sgt. Engstrom calmly 

approached plaintiff, told him he was under arrest, and handcuffed him by double locking and 

checking the handcuffs for appropriate tightness. (Payton Decl., ¶ 11; Engstrom Decl., ¶ 10.) 

Handcuffing was appropriate because Payton was transporting plaintiff to jail in her patrol car. 

(Dobson Decl., ¶ 14.) Payton and Engstrom then asked plaintiff several times to stand and walk 

to the patrol car. When plaintiff refused, they then lifted him by placing an arm under each of 

plaintiff’s arms. They got plaintiff to his knees, and again asked him to stand and walk to the 

car. Only with his continuous refusal, Payton and Engstrom then carried and dragged him the 20 

to 25 to the patrol car. Plaintiff remained limp during the carry, did not say anything, or grimace 

or otherwise act as if he was in pain or discomfort. (Payton Decl., ¶ 12; Engstrom Decl., ¶ 11.) 

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The officers repeated their entreaties for cooperation at the patrol car. Sgt. Engstrom 

specifically advised plaintiff it would be easier and safer to simply stand up and get in the car. 

(Engstrom Decl., ¶ 12.) However, plaintiff remained silent and refused to cooperate. Payton and 

Engstrom then lifted plaintiff’s legs and torso and placed him into the backseat of the patrol car 

head first, with his face towards the ceiling. (Payton Decl., ¶ 13; Engstrom Decl., ¶ 12.) Officer 

Newhard assisted by guiding plaintiff’s shoulders from the street side of the car. (Newhard 

Decl., ¶ 8.) Sgt. Dobson is not certain he ever touched plaintiff, but he supervised plaintiff’s 

arrest. (Dobson Decl., ¶ 16.) 

Other than handcuffing plaintiff as a form of control, the officers used no force on 

plaintiff. (See Dobson Decl., ¶ 16.) Handcuffing is constitutionally permissible even if the 

underlying offense is minor. Atwater v. City of Lago Vista, 532 U.S. 318, 354-55 (2001) 

(handcuffing, placement in police car, and taken to jail “not so extraordinary to violate the 

Fourth Amendment.”). See also Karboau v. Lawrence, 2007 WL 114022 (D.Or.) (handcuffing 

alone is not unreasonable). Payton and Engstrom’s lifting and carrying of plaintiff was the 

minimal amount of physical contact necessary to overcome plaintiff’s passive resistance. (Id.) 

Even “purely passive resistance can support the use of some force.” Bryan v. MacPherson, 630 

F.3d 805, 830 (9th Cir. 2010). Also, neither officer used any sort of pain compliance technique 

when they lifted and carried plaintiff. (Payton Decl., ¶ 13; Engstrom Decl., ¶ 12.) Notably, pain 

compliance techniques - which are a more intrusive level of force - have been held a reasonable 

use of force in other arrests of persons engaged in passive resistance. Forrester v. City of San 

Diego, 25 F.3d at 807. Again, like the lift and carry to the curb, plaintiff remained limp, did not 

say anything, or grimace or otherwise act as if he was in pain or discomfort while being placed 

into the patrol car. (Payton Decl., ¶ 13; Engstrom Decl., ¶ 12; see Rees Decl., Ex. 1, Arrest 

Video at 5:45-6:27 minutes.) 

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The video taken from Officer Payton’s patrol car removes any disputed fact about the 

intrusiveness of plaintiff’s arrest. (See Rees Decl., Ex. 1, Arrest video.) See also Scott v. Harris,

550 U.S. 372, 378, 380 (2007) (“When opposing parties tell two different stories, one of which is 

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should 

not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”); 

Forrester v. City of San Diego, supra, 25 F.3d at 807 (noting that video of the arrests of the 

protestors showed “exactly what happened [and] removed much argument and interpretation of 

the facts themselves.”) Plaintiff concedes the video accurately depicts what happened during his 

arrest. (Manlove Decl., Ex. 1, Mglej Depo, 101:9 - 102:15.) Moreover, plaintiff admits it is not 

the officers’ force he finds objectionable, but rather the officers’ mere physical touching, due to 

what he – wrongly – believes to be an unlawful arrest. (Manlove Decl., Ex. 1, Mglej Depo, 

110:16 - 111:8.) Payton’s video and plaintiff’s admission establish any intrusion was minimal. 

With respect to the government’s interest in plaintiff’s arrest, Acting Lt. Dobson and the 

other City defendants were simply enforcing the City’s ordinance. Only after repeated 

complaints about his nudity, explanations, warnings, and the complete absence of any reasonable 

understanding of any communicative element to his nudity, did Dobson decide to arrest plaintiff. 

(Dobson Decl., ¶ 18.) Local government has a significant interest in upholding its laws that 

protect the public health, safety and welfare. See Barnes, supra, 501 U.S. at 569 (“The 

traditional police power of the States is defined as the authority to provide for the public health, 

safety, and morals[.]; see also City of Portland v. Gatewood, supra, 76 Or. App. at 79. (“The 

authority of a city to enact reasonable legislation to regulate conduct which is thought to be 

detrimental to the public’s health, safety, or morals is indisputable.”) The minimal use of force 

by Payton and Engstrom appropriately furthered this interest. 

Balancing the minimal amount of physical contact and control the City defendants used 

in arresting plaintiff, against the City’s legitimate exercise of its police power, shows the City 

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defendants’ use of force was objectively reasonable under the totality of the circumstances. 

The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

excessive force claim. Fed. R. Civ. P. 56(a). 

3. Malicious Prosecution as a Federal Claim 

A federal claim for malicious prosecution is generally not available if there is an adequate 

remedy at state law (e.g., the existence of a state tort for malicious prosecution). Bretz v. 

Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985). Section 1983 allows a claim for malicious 

prosecution when “a malicious prosecution is conducted with the intent to deprive a person of 

equal protection of the laws or is otherwise intended to subject a person to a denial of 

constitutional rights.” Bretz, 773 F.2d at 1031; see also Awabdy v. City of Adelanto, 368 F.3d 

1062, 1066 (9th Cir. 2004) (incorporating elements of state common law tort of malicious 

prosecution in analysis under Section 1983.); Westwood v. City of Hermiston, 787 F. Supp. 2d 

1174, 1205 (D. Or. 2011). In short, to establish a malicious prosecution claim under Section 

1983, a plaintiff must establish: “(1) the elements of the state tort; and (2) an intent to deprive the 

plaintiff of a constitutional right.” Evans v. Multnomah Cnty., 2009 WL 1011580, at *11 (D. 

Or.). 

In Oregon, the elements of a malicious prosecution claim are “(1) the institution or 

continuation of the original criminal proceedings; (2) by or at the insistence of the defendant; (3) 

termination of such proceedings in the plaintiff’s favor; (4) malice in instituting the proceedings; 

(5) lack of probable cause for the proceeding; and (6) injury or damage because of the 

prosecution.” Blandino v. Fischel, 179 Or. App. 185, 190-91 (2002). 

However, in the present case, plaintiff cannot meet two fundamental elements of the tort: 

malice and lack of probable cause. Malice is defined as “any primary purpose other than 

bringing a person to justice.” Ledford v. Gutoski, 319 Or. 397, 404 (1994). Defendant Dobson 

has explained that he decided to arrest plaintiff only because of the repeated complaints of his 

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public nudity. (Dobson Decl., ¶ 18.) “’[P]robable cause’ refers to the subjective and objectively 

reasonable belief that the defendant has committed a crime.” Blandino v. Fishel, 179 Or. App. at 

191. In Oregon, “[p]robable cause’ means that there is a substantial objective basis for believing 

that more likely than not an offense has been committed and a person to be arrested has 

committed it.” ORS 131.005(11). Defendant Dobson has explained he believed he had probable 

cause to arrest plaintiff for violating PCC 14A.40.030. (Dobson Decl., ¶¶ 8-9.) He confirmed 

that belief with his attorney. (Dobson Decl., ¶ 9.) The video from Officer Payton’s patrol car 

shows Dobson’s belief was objectively reasonable. (Rees Decl., Ex. 1, Initial Contact video.) 

Finally, plaintiff cannot show Dobson’s arrest and charging decision was done to deprive 

plaintiff of any federally protected rights, including any right plaintiff had under the First 

Amendment. (Dobson Decl., ¶¶12, 18.) (See pp. 10-23, supra.) 

As a result, plaintiff cannot make out any federal claim for malicious prosecution. 

Awabdy, 368 F.3d at 1066. 

The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

malicious prosecution claim. Fed. R. Civ. P. 56(a). 

4. Fourth Amendment – “Cruel and Unusual Punishment” 

Plaintiff’s Fifth Cause of Action ostensibly asserts a claim under the Fourth Amendment 

for “Cruel and Unusual Punishment.” (Complaint, p. 18 “Fifth Cause of Action”) However, the 

factual allegations of this claim appear to be directed at plaintiff’s treatment at MCDC. (See

Complaint, ¶¶ 137-145.) 

In any event, plaintiff has no claim for “cruel and unusual punishment.” Ingraham v. 

Wright, 430 U.S. 651, 667-68 (1977) (Eight Amendment’s “Cruel and Unusual Punishment 

Clause” applies to those convicted of a crime.) Also, his treatment as a pre-trial detainee is 

evaluated under the Fourteenth Amendment, using an objective reasonableness standard. 

Kingsley v. Hendrickson, __ U.S. __, 135 S.Ct. 2466, 2473-74 (2015). 

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The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

“cruel and unusual punishment” claim. Fed. R. Civ. P. 56(a). 

5. Qualified Immunity 

In the context of 42 U.S.C. § 1983 claims, “[t]he doctrine of qualified immunity protects 

government officials ‘from liability for civil damages insofar as their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable person would have 

known.’” Stanton v. Sims, __U.S. __, 134 S.Ct. 3, 4-5 (2013) (per curiam) (quoting Pearson v. 

Callahan, 555 U.S. 223, 231 (2009)). “Qualified immunity gives government officials breathing 

room to make reasonable but mistaken judgments,” and “protects all but the plainly incompetent or 

those who knowingly violate the law.” Ashcroft v. al-Kidd, __ U.S. __, 131 S.Ct. 2074, 2085 

(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986).) Qualified immunity balances two 

important interests-the need to hold public officials accountable when they exercise power 

irresponsibly and the need to shield officials from harassment, distraction, and liability when they 

perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The linchpin of 

qualified immunity is the reasonableness of the official’s conduct evaluated in the particularized 

circumstances with which the official is confronted. See Anderson v. Creighton, 483 U.S. 635, 

638-40 (1987). Accordingly, a police officer will be denied qualified immunity in a Section 1983 

action “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, 

show that the officer’s conduct violated a constitutional right, and (2) the right at issue was clearly 

established at the time of the incident such that a reasonable officer would have understood her 

conduct to be unlawful in that situation.” Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 

2011). Finally, police officers are allowed to rely on the advice of their attorneys. Ewing v. City of 

Stockton, 588 F.3d 1218, 1231 (9th Cir. 2009). While reliance on an attorney’s advice does not 

automatically insulate an officer from liability, “it goes far to establish qualified immunity.” Id., 

quoting Arnsberg v. United States, 757 F.2d 971, 981 (9th Cir. 1985); see also Beasley v. City of 

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Keizer, 525 Fed. Appx. 549, 552 (2013) (same). 

a. First Amendment-Expressive Conduct/Fourth AmendmentUnlawful Arrest 

In the present case, there is no clearly established law allowing an absolute right to use 

nudity as protected expressive conduct, whether for a “protest” or some other purpose. See City of 

Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000). And just like an adult bookstore that has become 

the site for prostitution and other public order offenses cannot invoke the protection of the First 

Amendment “by merely linking the words ‘sex’ and ‘books’” (see Arcara v. Cloud Books, Inc.,

478 U.S. 697, 705 (1986)), plaintiff cannot invoke the protection of the First Amendment by 

publicly exposing his genitalia, and then simply stating “I’m protesting.” The law requires more: a 

particularized message that is highly likely to be understood by the viewer. Texas v. Johnson, 491 

U.S. at 404. And even then, the law allows governmental regulation of that protected expression if 

the regulation furthers an important government interest and only incidentally impacts the 

expression. O’Brien, 391 U.S. at 376-77. This is not surprising given that “the First Amendment 

does not guarantee the right to [engage in protected expression] at all times and places and in any 

manner that may be desired.” Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 

U.S. 640, 647 (1981). 

On May 23, 2014, there appeared no rational connection between plaintiff’s brazen nudity 

and his protest. (See Payton Decl., ¶ 7.) Recall, plaintiff refused to explain the purpose of his 

protest. (Dobson Decl., ¶¶ 10, 17.) Dobson’s decision to arrest and charge plaintiff for violating 

PCC 14A.40.030 was based on an appropriate and reasonable evaluation of the relevant factual 

and legal considerations. (Dobson Decl., ¶ 18.) Moreover, Sgt. Dobson relied on the advice of his 

attorney, who agreed probable cause existed to arrest plaintiff. (Dobson Decl., ¶¶ 9, 18.) 

As a result, defendants Dobson, Payton, Engstrom and Newhard are entitled to qualified 

immunity for any claim alleging a First Amendment violation, or any claim alleging an unlawful 

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arrest under the Fourth Amendment. 

b. Fourth Amendment- Use of Force 

Similarly, the individual City defendants are entitled to qualified immunity for any 

Fourth Amendment excessive force. Significantly, the law does not require police officers use 

the least degree of force possible in making an arrest. Forrester, supra, 25 F.3d. at 807. Rather, 

the inquiry is “whether the force that was used to effect a particular seizure was reasonable, 

viewing the facts from the perspective of a reasonable officer on the scene. Id. at 807-808. 

In the present case, Officer Payton and Sgt. Engstrom handcuffed plaintiff, and then lifted 

and carried him to and into the police car. (Payton Decl., ¶¶ 11-13; Engstrom, ¶¶ 10-12.)6 

Officer Newhard minimally assisted by guiding plaintiff’s shoulders into the back seat of the car. 

(Newhard Decl., ¶ 8.) After failed entreaties and warnings, the officers’ lifting, carrying and 

guiding plaintiff’s limp body, was the minimal amount of physical contact necessary to 

overcome his passive resistance to his arrest. (See Dobson Decl., ¶ 16.) Also, plaintiff never 

complained of injury or acted in discomfort or distress at any time during his arrest or transport 

to jail. (Payton Decl., ¶¶ 12-14; Engstrom Decl., ¶¶ 11-12.) 

As a result, nothing occurred during plaintiff’s arrest that would have given a reasonable 

police officer “fair notice” that the individual City defendants were violating plaintiff’s Fourth 

Amendment rights to be free from excessive force. See Hope v. Pelzer, 536 U.S. 730, 739 

(2002) (qualified immunity ensures police officers are subject to fair notice their conduct is 

unlawful before being subject to a civil suit for damages.) 

Defendants Dobson, Payton, Engstrom and Newhard are entitled to qualified immunity 

for any claim alleging excessive force in violation of the Fourth Amendment. 

 

6

 Notably, Payton and Engstrom employed the very control techniques the protesters in Forrester

argued the police should have applied as a reasonable means of making the mass arrests in that 

case. See Forrester, supra at 807. 

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c. Malicious Prosecution as a Federal Claim 

As explained above at pp. 10-18, plaintiff had no clearly established right to publicly 

display his genitalia, and then immunize his conduct from criminal liability by simply stating 

“I’m protesting” and thereby seek the protection of the First Amendment. PCC 14A.40.030 has 

been held facially valid. Gatewood, supra, 76 Or. App. at 79. Officer Newhard charged plaintiff 

with violating only that code provision. (Newhard Decl., ¶ 11.) A reasonable police officer 

would not know that charging plaintiff for violating PCC 14A.40.030 deprived plaintiff of any 

federally protected right. See Hope v. Pelzer, supra.

Defendants Dobson, Payton, Engstrom and Newhard are entitled to qualified immunity 

for any claim alleging any federal claim for malicious prosecution. 

The Court should grant City defendants motion for summary judgment for qualified 

immunity. Fed. R. Civ. P. 56(a). 

6. Oregon Constitution - No Private Right of Action for Money Damages 

Plaintiff has made clear he seeks money damages only for the alleged violations of the 

Oregon Constitution. (See Complaint, ¶¶ 160, 162, 179, 180, 187, 210, 212.) However, plaintiff 

has no private right of action for damages under the Oregon Constitution. Hunter v. City of 

Eugene, 309 Or. 298, 304 (1990); Standish v. Woods, 2004 WL 1379466*2 (D. Or.) 

The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

claims for violations of the Oregon Constitution. Fed. R. Civ. P. 56(a). 

7. State Law - Battery 

Under Oregon law, a civil battery is a voluntary act that causes intentionally harmful or 

offensive contact with another. Cook v. Kinzua Pine Mills Co., 207 Or. 34, 48-49 (1956). It is 

not necessary that the offensive, unpermitted touching cause actual physical harm; “it is 

sufficient if the contact is offensive or insulting.” Bakker v. Baza’r, Inc., 275 Or. 245, 249 

(1976). However, police officers in Oregon are authorized by statute to use reasonable force in 

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making an arrest. ORS 161.205(5); ORS 161.235(2). Moreover, police officers in Oregon have 

a common law privilege, justification, to use the degree of force or control reasonably necessary 

to carry out their law enforcement activities. Gigler v. City of Klamath Falls, 21 Or. App. 753, 

763 (1975). Such justified force is not a battery. Ballard v. City of Albany, 221 Or. App. 630, 

640-41 (2008). Finally, police officers are presumed to be acting in good faith in determining 

the amount of force necessary to make an arrest. Rich v. Cooper, 234 Or. 300, 311 (1963). 

In the present case, Sgt. Dobson and the other police officers had probable cause to arrest 

plaintiff for violating PCC 14A.40.030. See discussion, supra at pp. 18-20. The City’s officers 

exercised only the degree of control necessary to overcome plaintiff’s passive resistance. 

(Payton Decl., ¶¶ 11-13, 17-18.) (Engstrom Decl., ¶¶ 10-12, 15-16.) (Dobson Decl., ¶¶ 14-15.) 

The video from Officer Payton’s patrol car shows there was no battery. (See Rees Decl., Ex. 1, 

Arrest video.) 

The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

battery claim. Fed. R. Civ. P. 56(a). 

8. Assault 

Common law civil assault is defined as “an intentional attempt to do violence to the 

person of another coupled with present ability to carry the intention into effect.” Cook v. Kinuza 

Pine Mills Co. et al., 207 Or. at 47-48. Mere words alone are not sufficient to constitute an 

assault, however. Bollaert v. Witter, 101 Or. App. 654, 658 (1990). Assault is the beginning of 

an act, which if consummated, constitutes battery. Put another way, assault is an attempted 

battery. 

In the present case, for the reasons discussed above, there was no battery. Therefore, 

there was no assault. 

The Court should grant City defendants’ motion for summary judgment on plaintiff’s 

assault claim. Fed. R. Civ. P. 56(a). 

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9. Negligence 

Plaintiff’s specifications comprising his negligence claim against City defendants allege 

the defendants failed to exercise reasonable care while he was in their custody and control, 

placed the handcuffs on “to [sic] tight and dropped [him] on his handcuffs,” and failed to train on 

the proper handling of service animals. (See Complaint, ¶¶ 227, 228, 230.) 

Plaintiff’s specifications are without merit. The defendants have explained the 

reasonableness of their actions in taking plaintiff into custody and applying the handcuffs. (See

Payton Decl., ¶¶ 11-14; Engstrom Decl., ¶¶ 10-12; Newhard Decl., ¶ 8; Dobson Decl., ¶¶ 14-16.) 

The video from Officer Payton’s patrol car shows without dispute the extraordinary courtesy and 

care the City defendants provided plaintiff during the course of his arrest. (Rees Decl., Ex. 1, 

Arrest video.) 

Similarly, Officer Newhard followed the City’s procedures for handling plaintiff’s 

service animal and other property. (See Newhard Decl., ¶¶ 7, 12-15, Exs. 1-5.) 

III. CONCLUSION 

On May 23, 2014, plaintiff misunderstood the nature of his legal rights when he publicly 

displayed his genitalia in front of the federal courthouse as part of his “protest.” The City 

defendants, on the other hand, in arresting plaintiff for violating PCC 14A.40.030, responded 

within the legal rights of the community not to suffer plaintiff’s coarse public display. 

City defendants violated no federal right of plaintiff. However if they did, that right was 

not clearly established to a reasonable police officer in the particularized factual context facing 

the City’s officers. As such, the individual City defendants are entitled to qualified immunity 

from any action under Section 1983. 

Similarly, even if plaintiff suffered a deprivation of his rights under the Oregon 

Constitution, he has no claim for money damages against the City. Plaintiff has no claim under 

state tort law. 

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The Court should grant City defendants’ motion for summary judgment and dismiss 

plaintiff’s action with prejudice. Fed. R. Civ. P. 56(a). 

Dated: October 8, 2015 

Respectfully submitted, 

/s/ William W. Manlove 

WILLIAM W. MANLOVE, OSB # 891607 

Senior Deputy City Attorney 

Telephone: (503) 823-4047 

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PORTLAND CITY ATTORNEY’S OFFICE 

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CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing CITY DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT on: 

Matthew T. Mglej 

604 SE 67th Ave 

Hillsboro, OR 97123 

Plaintiff-Pro Se 

on October 8, 2015, by causing a full, true and correct copy thereof, addressed to the last-known 

address (or fax number) of said attorney, to be sent by the following method(s): 

 by mail in a sealed envelope, with postage paid, and deposited with the U.S. Postal 

Service in Portland, Oregon. 

 by hand delivery. 

 by email pursuant to LR 5-2(b). 

 by facsimile transmission. 

 by email. (Per plaintiff’s written request we provide service electronically) 

/s/ William W. Manlove 

WILLIAM W. MANLOVE, OSB #891607 

Senior Deputy City Attorney 

Telephone: (503) 823-4047 

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