Green v. Frederickson

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DEREK GREEN, Case No. 6.15-cv-01238-AA

OPINION AND ORDER

Plaintiff,

vs.

TYLER FREDERICKSON, personally,

TIM TRABOSH, personally,

Defendants.

_______________________________________

Aiken, District Judge:

Plaintiff Derek Green brings this action against defendants Tyler Frederickson

and Tim Trabosh, both Marion County Sheriff’s Deputies. Plaintiff asserts two claims

against defendants: (1) a claim under 42 U.S.C. § 1983 for use of excessive force in

violation of the Fourth Amendment, and (2) a battery claim under Oregon common

law. Now before the Court are the parties’ Motions for Summary Judgment (Docs.

40, 49). For the reasons discussed below, defendants’ motion is GRANTED with

respect to plaintiff’s battery claim and the motions are DENIED in all other respects.

BACKGROUND

On July 3, 2013, plaintiff went to the St. Paul Rodeo (the “Rodeo”) with his

friend, Mr. Kiersey. Plaintiff admits that he drank heavily that night at Keirsey’s

house before the Rodeo, at the Rodeo, and at the Tack Room Salon (“the bar”), where

plaintiff and Kiersey spent about an hour after the Rodeo. The men left the bar after

Kiersey was cut off by the bartender and told to leave. Outside the bar, plaintiff, who

was 6’2” and almost 200 pounds at the time, got into an altercation with Deputies

Trabosh and Frederickson, who were providing additional security for the Rodeo.

During the incident, Deputy Trabosh physically restrained plaintiff, and plaintiff was

eventually arrested.

The parties offer conflicting accounts of what happened just before and during

that altercation.

According to plaintiff, two “security guards” “shoved” him and Kiersey out of

the bar. Green Dep. (Doc. 41, Ex. 1) 40:1–18; 43:17–21. Plaintiff cooperated with the

security guards, “tried to escort [Kiersey] out, and did so successfully.” Green Decl.

(Doc. 50) ¶ 3. Once he was outside the bar, plaintiff was grabbed from behind “out of

the blue,” id. at ¶ 4, and then “got put in the choke hold.”1 Green Dep. 44:8. While

in the chokehold, plaintiff “could not breathe and was struggling for [his] life and

breath.” Id. at ¶ 6. In his deposition, plaintiff explained: “I remember thinking that

it was somebody from the crowd because like there was a big crowd and they were

like trying to like jump me.” Id. at 43:2–5. According to plaintiff, Deputy “Trabosh

1 At times, plaintiff has also referred to this restraint as a “headlock.” See Compl. ¶ 9; Green

Dep. 42: 13–21.

said not a word” to him before restraining him, Green Decl. ¶ 7, and he “was given no

lawful orders and hence could not disobey them.” Id. at ¶ 5.

According to Deputies Trabosh and Frederickson, they “were flagged down by

security staff at the front of the bar” to help with plaintiff and Kiersey. Trabosh Dep.

(Doc. 54, Ex. 2) 42:5–14. Deputy Frederickson saw plaintiff “pushing and shoving,

yelling, with several security guards” and stated that it “looked like [plaintiff] was

fighting with the bouncers.” Frederickson Dep. (Doc. 54, Ex. 3) 19:15–16; 20:13.

Deputy Trabosh was “unsure if there was some type of assault that happened

inside, a disorderly conduct or a criminal trespass with [plaintiff] since he was being

physically taken out of the bar.” Trabosh Dep. 42:20–24. Plaintiff was not armed,

and Deputy Trabosh had “no indication at that point” that plaintiff was armed. Id.

at 41:14–17.

Deputy Trabosh identified himself and “attempted to talk with [plaintiff] and

see what the whole situation was.” Id. at 43:2–3. Although Deputy Trabosh did not

“perceive an immediate physical threat” from plaintiff, id. at 45:19–20, plaintiff failed

to “compl[y] with [his] simple questions to come outside the bar and speak with

[him],” tried to re-enter the bar, and was “extremely belligerent and loud.” Trabosh

Dep. 44:3–15. Deputy Frederickson explained that Deputy Trabosh “grabbed

[plaintiff] in what looked like an attempt to calm him down.” Frederickson Dep.

22:19–20. But because plaintiff was “actively resisting” by “flailing and [making]

outrageous body movements on constant jumping up and down,” Deputy Trabosh

used a different restraint. Trabosh Dep. 41:19–20, 45:8–15; Frederickson Dep. 28:1.

While Deputy Trabosh restrained plaintiff, Deputy Fredrickson handcuffed him for

“suspicion of potentially trespass, potentially disorderly conduct.” Frederickson Dep.

26:2–4; 28:9–14. Plaintiff was then “handed off to other officers” with whom he “had

a scuffle,” and who placed him under arrest. Id. at 29:16–18; Green Decl. ¶ 7.

Deputy Trabosh asserts that the second restraint was not a “chokehold”

because he was “not applying pressure to [plaintiff’s] neck at all.” Trabosh Dep.

46:23-24. Defendants also offer the deposition testimony of Nicholas Hunter, who

appears to be employed by Marion County and involved in training Sheriff’s deputies.

Hunter Dep. (Doc. 41 Ex. 4).2 Hunter explains that there are two types of chokeholds,

a “lateral vascular,” which it aimed at “stopping the blood flow to the brain[,]” and “a

chokehold in the traditional sense,” which involves “asphyxiation where you’re

shutting off the airway.” Id. at 15:23–16:9. Marion County deputies are not trained

to use either. Id. at 16:10–11.

Plaintiff also submitted a video of the incident. Green Video (by email) (Doc.

51 Ex. 1). The video starts at the moment of the alleged chokehold. The video shows

Deputy Trabosh standing behind plaintiff. Deputy Trabosh’s arm encircles plaintiff’s

neck. His upper arm passes over plaintiff’s right shoulder. And Deputy Trabosh’s

elbow is bent so that his forearm crosses under plaintiff’s chin, then passes over

plaintiff’s left shoulder. Deputy Trabosh holds a taser in his right hand. Plaintiff is

leaning backwards against Deputy Trabosh with both hands in the air and appears

2 Defendants do not explain who Hunter is or his title, and that information could not be

gleaned from the excerpt of his deposition.

to be off balance because of the backwards pull. Deputy Frederickson then moves

behind plaintiff, presumably to handcuff him.

In his deposition, Hunter viewed the video and still photos from the video. He

saw that Deputy Trabosh’s arm was under plaintiff’s chin but could not tell whether

it was touching plaintiff’s neck. Hunter Dep. 17:2–8. Hunter testified that “[t]his is

not a chokehold” and explained “[f]or a chokehold to take place, you have to restrict

airways or, like we talked about earlier with a lateral vascular neck restraint, you

have to restrict blood flow.” Id. at 17:12–16.

LEGAL STANDARDS

Summary judgment is appropriate when the “pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A party moving for summary judgment who does not have the ultimate burden

of persuasion at trial must produce evidence which either negates an essential

element of the non-moving party's claims or show that the non-moving party does not

have enough evidence of an essential element to carry its ultimate burden of

persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102

(9th Cir. 2000). A party who moves for summary judgment who does bear the burden

of proof at trial must produce evidence that would entitle him or her to a directed

verdict if the evidence went uncontroverted at trial. C.A.R. Transp. Brokerage Co.,

Inc. v. Darden, 213 F.3d 474, 480 (9th Cir. 2000).

When parties file cross-motions for summary judgment, the court “evaluate[s]

each motion separately, giving the non-moving party in each instance the benefit of

all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790–

91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. Pac.

Creditors Ass’n, 605 F.3d 665, 674 (9th Cir. 2010) (“Cross-motions for summary

judgment are evaluated separately under [the] same standard.”). In evaluating the

motions, “the court must consider each party’s evidence, regardless under which

motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532

(9th Cir. 2011).

DISCUSSION

Plaintiff moves for partial summary judgment on both claims. Defendants

move for summary judgment on the § 1983 claim on qualified immunity grounds and

on the state law battery claim based on Oregon’s officer justification defense, officer

safety concerns, and provisions of the Oregon Tort Claims Act.

I. § 1983 Excessive Force Claim

To prevail on a claim under § 1983, a plaintiff must demonstrate that: (1) the

conduct complained of deprived him or her of an existing federal constitutional or

statutory right; and (2) the conduct was committed by a state actor or a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Plaintiff moves for partial summary judgment on his § 1983 claim. He argues

that Deputy Trabosh violated his Fourth Amendment rights by applying a chokehold

when plaintiff was not actively resisting the deputies. Plaintiff also argues that

Deputy Frederickson had a duty to intercede to stop the constitutional violation but

failed to do so.

Defendants contend that they are entitled to summary judgment on this claim

because plaintiff cannot establish that Deputy Trabosh used excessive force in

violation of plaintiff’s Fourth Amendment rights or that Deputy Frederickson had a

duty to intercede. Defendants assert that Deputy Trabosh did not use a chokehold

and they contend that the level of restraint that he did apply was appropriate under

the circumstances.

Claims of excessive force in the context of an arrest or an investigatory stop

“invok[e] the protections of the Fourth Amendment, which guarantees citizens the

right to be secure in their persons against unreasonable seizures of the person.”

Graham v. Connor, 490 U.S. 386, 394 (1989) (internal quotation marks and ellipses

omitted). Further, “[a] law enforcement officer has an affirmative duty to intercede

on the behalf of a citizen whose constitutional rights are being violated in his presence

by other officers.” O’Neill v. Krzeminski, 839 F.2d 9, 11 (9th Cir. 1988).

In evaluating an excessive force § 1983 claim, a court asks “whether the

officers’ actions are objectively reasonable in light of the facts and circumstances

confronting them.” Graham, 490 U.S. at 397 (internal quotation marks omitted). A

court must carefully balance “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests’ against the countervailing governmental

interests at stake.” Id. at 396 (internal quotation marks omitted).

“[T]he excessive force inquiry nearly always requires a jury to sift through

disputed factual contentions, and to draw inferences therefrom[.]” Avina v. United

States, 681 F.3d 1127, 1130 (9th Cir. 2012). This case is no exception. Here, genuine

disputes of fact preclude summary judgment in either party’s favor on this issue.

Viewing the evidence in the light most favorable to plaintiff, Deputy Trabosh

approached plaintiff from behind while plaintiff was peacefully escorting his friend

out of the bar and, without warning, grabbed plaintiff and then placed him in a

chokehold. During the chokehold, plaintiff could not breathe and did not resist. The

Ninth Circuit has repeatedly found that the use of a chokehold on a non-resisting

person violates the Fourth Amendment’s prohibition on the use of excessive force.

Tuuamalelo v. Greene, 946 F.3d 471, 478 (9th Cir. 2019) (observing that “[t]here is

robust consensus among the circuits that the use of a chokehold on a non-resisting

person violates the Fourth Amendment” and collecting cases); Barnard v. Theobald,

721 F.3d 1069, 1076 (9th Cir. 2013); Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052, 1059 (9th Cir. 2003).

Although Deputy Trabosh claims that he did not use a chokehold because he

did not put any pressure on plaintiff’s neck during the maneuver, plaintiff claims that

his breathing was restricted. Hunter’s testimony, which defendants offered to

support their motion, acknowledges that one type of chokehold involves shutting off

the airway. Although Hunter also testified that the restraint was not a chokehold

because a chokehold involves restricted airways or blood flow, he did not explain how

he could tell that the restraint did not involve either. Thus, whether the restraint

maneuver was a chokehold or some other type of restraint turns on credibility

determinations and other means of weighing of evidence that are not appropriate for

summary judgment. For purposes of defendant’s summary judgment motion, a

reasonable jury could find that the maneuver was a chokehold.

Also, even accepting the deputies’ assertions that bar security had flagged the

deputies down for help with a possible assault and that plaintiff did not comply with

Deputy Trabosh’s orders, a reasonable jury could find that Deputy Trabosh’s use of a

chokehold was excessive under those circumstances. See Nelson v. City of Davis, 685

F.3d 867, 881 (9th Cir. 2012) (“A failure to fully or immediately comply with an

officer’s orders neither rises to the level of active resistance nor justifies the

application of a non-trivial amount of force.”). Thus, a reasonable jury could also find

that Deputy Frederickson had a duty to intervene to stop Deputy Trabosh’s violation

of plaintiff’s rights. Accordingly, defendants are not entitled to a ruling, as a matter

of law, that they did not violate plaintiff’s rights.

Plaintiff is likewise is not entitled to a ruling that his Fourth Amendment

rights were violated. Viewing the evidence in the light most favorable to defendants,

they were flagged down by bar security who were physically escorting plaintiff out of

the bar. They saw plaintiff resisting and yelling at security and believed that plaintiff

may have been involved in an assault, disorderly conduct, criminal trespass, or other

offense. Deputy Trabosh attempted to talk to plaintiff, asking plaintiff to come out of

the bar to speak with him. When plaintiff refused to comply with Deputy Trabosh’s

commands and attempted to re-enter the bar, Deputy Trabosh attempted to restrain

him. And when plaintiff, who was taller and heavier than Deputy Trabosh, actively

resisted that restraint, Deputy Trabosh used a second restraint, encircling plaintiff’s

neck with his arm without applying pressure to plaintiff’s neck or restricting

plaintiff’s breathing, which allowed Deputy Frederickson to handcuff plaintiff. Under

those circumstances, a reasonable jury could find that Deputy Trabosh used an

objectively reasonable level of force against plaintiff and that Deputy Frederickson

had no duty to stop Deputy Trabosh.

Defendants also argue that they are entitled to qualified immunity. Qualified

immunity protects government officials from liability for civil damages “unless the

official’s conduct violated a clearly established constitutional right.” Pearson v.

Callahan, 555 U.S. 223, 232 (2009). To be clearly established, “[t]he contours of the

right must be sufficiently clear” at the time of the incident, “that a reasonable official

would understand that what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 640 (1987). Thus, a defendant must have “fair and clear warning” that

the alleged conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Recently, in Tuuamalelalo v. Green, the Ninth Circuit observed that the circuit

has long recognized that the use of a chokehold on a non-resisting person is

unconstitutional. 946 F.3d at 477. The court observed:

Our decision in Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013),

squarely addressed the constitutionality of the use of a chokehold on a

non-resisting person. In that case, officers placed the non-resisting,

restrained plaintiff in a chokehold and then pepper sprayed him. Id. at

1072–73. We affirmed the jury’s finding that the officers’ use of force

violated the Fourth Amendment. Id. at 1076. Even earlier, in

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059

(9th Cir. 2003), we had held that “any reasonable person ... should have

known that squeezing the breath from a compliant, prone, and

handcuffed individual despite his pleas for air involves a degree of force

that is greater than reasonable.” . . .

. . . Given the state of the law in our circuit, it was clearly established

that the use of a chokehold on a non-resisting, restrained person violates

the Fourth Amendment’s prohibition on the use of excessive force.

Id. Although the incident underlying the plaintiff’s claims in Tuuamalelalo occurred

in 2014 and Barnard was decided in July 2013, the court’s reliance on Drummond

demonstrates that the right of a non-resisting, restrained person to be free from the

use of a chokehold was clearly established since at least 2003. Further, “[t]he Fourth

Amendment right to be free from the application of non-trivial force for engaging in

mere passive resistance was clearly established prior to 2008.” Gravelet-Blondin v.

Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013). The Ninth Circuit has characterized as

non-trivial any force that is capable of causing death or serious injury. Deorle v.

Rutherford, 272 F.3d 1272, 1280 (9th Cir. 2001).

Based on plaintiff’s testimony that he could not breathe during the chokehold,

a jury could find that the amount of force Deputy Trabosh used against him was “non-

trivial.” And, viewing plaintiff’s version of the facts in the light most favorable to

him, plaintiff was not resisting and was restrained at the time of the chokehold,

plaintiff was not resisting Deputy Trabosh. Accordingly, defendants’ qualified

immunity argument fails.

II. State Law Battery Claim

Plaintiff alleges that defendants committed a battery against him “when they

put [plaintiff] in a headlock and took him to the ground outside the bar.” Compl. ¶ 19.

Both parties argue that they are entitled to summary judgment on this claim.

Because the Court agrees with defendants that the Oregon Tort Claims Act (“OTCA”),

ORS 30.260 to 30.300, bars the claim, the Court concludes that defendants are

entitled to summary judgment on that basis alone and will not address the parties’

other arguments.

The OTCA provides

[t]he sole cause of action for a tort committed by officers, employees, or

agents of a public body acting within the scope of their employment or

duties . . . is an action under [the OTCA]. The remedy provided by [the

OTCA] is exclusive of any other action against such officer, employee or

agent of a public body . . . . No other form of civil action is permitted.

ORS 30.265(2). Plaintiff does not allege battery through the OTCA, but he asserts

that defendants’ conduct was arguably outside the scope of their employment or

duties because it violated Marion County policy in several ways.

Under Oregon law, three requirements must be met for an official to have acted

within the scope of their employment or duties: “‘(1) the act must occur substantially

within the time and space limits authorized by the employment; (2) the employee

must be motivated, at least in part, by a purpose to serve the employer, and (3) the

act must be of a kind which the employee was hired to perform.’” See Johnson v.

Oregon State Bd. of Higher Educ., 272 Or. App. 710, 717 (2015) (quoting Chesterman

v. Barmon, 305 Or. 439, 442 (1988)).

Plaintiff acknowledges that defendants’ conduct took place within the time and

space limits of their employment, but argues that their actions were “not in

furtherance of their official duties” because the use of force was “out of policy” and

“not reported per policy.” Pl. Resp. (doc. 48) at 3. In his deposition, Deputy Trabosh

testified that he did not file a use of force report after the incident. Trabosh Dep. 18:

23–24, 19:2–5. And Deputy Frederickson testified, in his deposition, that after the

incident, he was disciplined for failing to file a use of force report. Id. at 61:6–11.

When considering scope of employment for claims involving intentional torts,

like battery, however, Oregon courts focus, not on the allegedly tortious conduct, but

on the actions that led up to it. Specifically, courts analyze whether non-tortious

conduct that “resulted in the acts that caused injury” satisfies the second and third

requirements. Fearing v. Bucher, 328 Or. 367, 374–75 (1999). “[T]he performance of

the employee’s duties must be a necessary precursor to the misconduct and . . . the

misconduct must be a direct outgrowth of, and have been engendered by, conduct that

was within the scope of the employee’s employment.” Barrington ex rel. Barrington

v. Sandberg, 164 Or. App. 292, 295 (1999).

Here, the evidence shows that defendants were on duty at the time of the

incident, assisting with Rodeo security. Defendants became involved with plaintiff

at the bar security staff’s request. There is no question that defendants’ response to

that request motivated, at least in part, by a desire to serve the Sheriff’s Office and

was of the kind they were hired to perform. And because the alleged battery occurred

during defendants’ attempt to help bar security deal with plaintiff, there is no

question that the alleged battery was a “direct outgrowth” of conduct within the scope

of defendants’ employment and duties. The Court, therefore, concludes that there is

no evidence from which a jury could find that defendants were not acting within the

scope of their employment and duties. Accordingly, plaintiff’s only remedy for the

alleged battery is through the OTCA and his common law battery claim must be

dismissed.

CONCLUSION

For the reasons set forth above, plaintiff’s Motion for Partial Summary

Judgment (doc. 49) is DENIED and defendants’ Motion for Summary Judgment (doc.

40) is DENIED in part and GRANTED in part.

IT IS SO ORDERED.

Dated this __8_th__ day of May 2020.

__________/_s_/A__n_n_ _A_i_k_e_n_________

Ann Aiken

United States District Judge