Kahl v. Multnomah County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

IBRAHIM KAHL, Case No. 3:19-cv-1480-SI

Plaintiff, OPINION AND ORDER

v.

MULTNOMAH COUNTY, DAVID MAIN,

and BRYAN SMITH,1

Defendants.

Christian Eickelberg, CHRISTIAN EICKELBERG, ATTORNEY AT LAW, LLC, 333 SW Taylor Street,

Suite 300, Portland, OR 97204; and Drake Aehegma, DRAKE AEHEGMA, ATTORNEY AT LAW,

LLC, 308 SW First Avenue, Suite 325, Portland, OR 97204. Of Attorneys for Plaintiff.

Lindsay A. Byrne and B. Andrew Jones, MULTNOMAH COUNTY ATTORNEY’S OFFICE, 501 SE

Hawthorne Boulevard, Suite 500, Portland, OR 97214. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

On both July 18 and August 9, 2018, Multnomah County Probation Officer David Main

(Main) arrested and caused to be jailed Plaintiff Ibrahim Kahl (Kahl) for alleged probation

violations. Main, however, mistakenly believed that Kahl remained on probation when Kahl’s

probation had in fact ended on July 11, 2018. In this lawsuit, Kahl asserts that Defendants Main

1 Kahl concedes that his claims against Bryan Smith should be dismissed.

and Multnomah County (the County) violated Kahl’s civil rights under the Fourth, Fifth, and

Fourteenth Amendments, made actionable under 42 U.S.C. § 1983. Kahl also alleges that

Defendants are liable for common law negligence. Defendants have moved for summary

judgment against all claims. For the reasons stated below, the Court grants Defendants’ Motion

for Summary Judgment.

STANDARDS

A party is entitled to summary judgment if the “movant shows that 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). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

BACKGROUND

In 2016, Kahl pleaded guilty in Multnomah County Circuit Court in criminal case

number 16CR14947 (the 2016 Case) to one count of attempted delivery of cocaine in violation

of Oregon Revised Statutes (ORS) § 161.405(2)(c). On July 12, 2016, Multnomah County

Circuit Court Judge Bronson D. James sentenced Kahl to two-years’ probation. Kahl’s probation

was scheduled to end on July 11, 2018. During the relevant portions of Kahl’s probation, Main

served as Kahl’s probation officer.

On November 30, 2017, Kahl was arrested by Portland Police on a then-pending

contempt warrant. In Kahl’s vehicle, Portland Police found a firearm and a white substance they

believed to be cocaine. The State, in what became case number 17CR79493 (the 2017 Case),

filed criminal charges against Kahl for unlawful possession of cocaine in violation of ORS

§ 475.884, possession of a firearm as a felon in violation of ORS § 166.270, and possession of a

loaded firearm in public in violation of a City of Portland ordinance. Main reported Kahl for

probation violations in the 2016 Case arising from both Kahl’s November 30th arrest and Kahl’s

failure to pay fines and fees associated with probation. During hearing on a December 13, 2017,

the State declined to proceed on the 2016 Case probation violation. Multnomah County Circuit

Court Judge Eric Bloch then entered an order stating:

State is not proceeding on P[robation] V[iolation] allegations

today. Release [Kahl] on [the 2016 Case] immediately. Track [the

2016 Case] with [the 2017 Case] for Presiding Call on 1/22/2018

at 9AM in [Room] 208.

Behre Decl., Ex. 4 (ECF 53) at 1.

In April 2018, Kahl was again arrested. The State, in what became case number

18CR28010 (the 2018 Case), charged Kahl with possession of cocaine. Main reported Kahl for

probation violations in the 2016 Case arising from Kahl’s April 2018 arrest. During a May 8,

2018 hearing on Kahl’s probation violation in the 2016 Case, Multnomah County Circuit Judge

Christopher Ramras ordered that Khal’s probation continue and that Kahl spend ten days in jail.

The parties agree that at no point did any court extend Kahl’s probation in the 2016 Case. In the

2018 Case, meanwhile, the Multnomah County Circuit Court released Kahl pending trial but

ordered him to wear a GPS device so that Main could monitor Kahl’s location.

On July 10, 2018, the day before Kahl’s probation in the 2016 Case was scheduled to

end, Kahl and Main spoke both by telephone and in person at Kahl’s home. Main asked Kahl to

meet him at Main’s office on July 17, 2018. Main states in a declaration that, during neither the

July 10, 2018 telephone call nor the home visit, did Kahl “mention to [Main] that [Kahl] was no

longer on supervision the following week.” Main Decl. (ECF 47) at 8, ¶ 23. Kahl, however,

alleges in his Third Amended Complaint (TAC) and his memorandum in opposition to

Defendants’ motion for summary judgment that he did tell Main that his supervision would

conclude on July 11, 2018.

Kahl and Main next met on July 17. During that meeting, Kahl admitted to using several

illegal drugs. Believing that Kahl’s probation was still in effect and that Kahl’s use of illegal

drugs violated the terms of Kahl’s probation, Main arrested Kahl. Kahl agreed not to contest the

violation and received an administrative sanction of three-days’ jail time and 30-days’ GPS

monitoring. Main sent a sanction report to both Multnomah County Circuit Court Judge Stephen

K. Bushong and the Multnomah County District Attorney’s Office. Main did not send the

sanction report to Judge Ramras, the judge who presided over the 2016 Case. Neither Judge

Bushong nor the district attorney replied to Main.

On August 9, 2018, a police officer recognized Kahl at a bowling alley in the presence of

a known gang member. Kahl left the bowling alley after seeing the police officer. The police

officer contacted Main, who followed Kahl by GPS and relayed Kahl’s location to the officer.

The officer pulled over Kahl’s vehicle and arrested Kahl’s for a probation violation. Kahl

admitted to the violation, and Main imposed an administrative sanction of five-days’ jail time

and 30 days of GPS monitoring. Main sent a sanction report both to Judge James and the district

attorney’s office. Main did not send the sanction report to Judge Ramras.

Later that month, Kahl spoke with a different probation officer about having Kahl’s GPS

monitor removed following the dismissal of his 2018 Case. When the probation officer told Kahl

that he was still subject to GPS monitoring for probation violations, Kahl replied that he was no

longer on probation. The probation officer noted Kahl’s remarks in the probation office’s

“shared” recordkeeping system.

Kahl reported to Main again on August 28. Main ordered Kahl to take a drug test. The

drug test showed that Kahl had recently used cocaine, which Kahl denied. In his memorandum in

opposition to Defendants’ motion for summary judgment, Kahl asserts that he again told Main

on August 28th that Kahl was no longer on probation.

On September 12, 2018, Kahl’s defense attorney, Christopher Behre, sent an email to

Main, asserting that Kahl’s probation had ended on July 11, 2018. Main promptly asked his

supervisor Bryan Smith and the district attorney’s office about Kahl’s probation status. Both

Smith and the district attorney’s office replied that they believed that Kahl remained on

probation because of Judge Bloch’s statement that the 2016 Case probation violations “should

track” the 2017 Case.

On September 15, a Portland police officer detained Kahl at a nightclub for a suspected

probation violation. The officer released Kahl, however, after he found no record showing that

Kahl currently was on probation. The police officer and Main spoke soon after. On

September 19, Main ordered Kahl to report to Main to discuss the nightclub incident, but Kahl

refused, asserting again that his probation had ended. Two days later, Behre emailed the district

attorney’s office and Judge Ramras’s staff seeking either confirmation that Kahl’s probation had

terminated or a hearing on Kahl’s probation status. The district attorney’s office responded that

their position was that Kahl remained on probation because of Judge Bloch’s statement that the

2016 Case probation violations should track the 2017 Case.

On October 3, 2018, Main applied to Judge Ramras for an arrest warrant for Kahl based

on Kahl’s refusal to report to Main the prior month as directed. Judge Ramras did not issue the

warrant. On October 15, Judge Ramras held a hearing on Kahl’s probation status. On

November 7, Judge Ramras ruled that Kahl’s probation had expired on July 11, 2018, but Judge

Ramras stated that whether Judge Bloch’s order had extended Kahl’s probation was “kind of

complicated” and “not a simple thing.” Jones Decl., Ex. 6 (ECF 46) at 4. Main closed the 2016

Case promptly after Judge Ramras’s ruling.

DISCUSSION

A. Federal Law Claims

1. Claims Against Main

Kahl alleges that Main violated Kahl’s Fourth Amendment right to be free from

unreasonable seizure and Fourteenth Amendment right to be free from deprivation of his liberty

absent due process on July 18, 2018 and August 9, 2018 when Main had Kahl arrested and jailed

as a sanction for probation violations. Kahl also alleges that Main violated Kahl’s Fourteenth

Amendment right to be free from deprivation of his liberty absent due process by continuing to

supervise Kahl after his probation had elapsed. Main does not argue that he did not violate

Kahl’s constitutional rights but asserts that he is entitled to immunity—both qualified and

absolute immunity—for his unconstitutional conduct. Because the Court finds that Main is

entitled to qualified immunity, the Court declines to address Main’s argument regarding absolute

immunity. Main argues that he is entitled to qualified immunity because his belief that Kahl

remained on probation after July 11, 2018 was reasonable, even if factually mistaken.

“The doctrine of qualified immunity protects government officials from liability for civil

damages.” Wood v. Moss, 134 S. Ct. 2056, 2066-67 (2014); Krainski v. Nevada ex rel. Bd. of

Regents, 616 F.3d 963, 968 (9th Cir. 2010). “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). “Whether qualified

immunity can be invoked turns on the ‘objective legal reasonableness’ of the official’s acts. And

reasonableness of official action, in turn, must be ‘assessed in light of the legal rules that were

clearly established at the time [the action] was taken.’” Ziglar v. Abbasi, 137 S.Ct. 1843, 1866

(2017) (citation omitted) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

819 (1982) and Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “The privilege is an immunity

from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously

permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quotation marks omitted)

(emphasis in original). For this reason, the Court has “stressed the importance of resolving

immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,

227 (1991) (per curiam).

In Saucier, the Supreme Court outlined a two-step process for determining the

applicability of the qualified immunity doctrine. 533 U.S. at 200. The first step is to determine

“whether a constitutional right would have been violated on the facts alleged.” Id. The second

step is to determine “whether the right was clearly established.” Id. The constitutional issue,

however, need not be addressed first in every case. Pearson, 555 U.S. at 227.

Qualified immunity shields officials for mistakes of fact as well as of law. Pearson, 555

U.S. at 231 (“The protection of qualified immunity applies regardless of whether the government

official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed question of

law and fact.’”) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J. dissenting)).

Thus, even when a right is clearly established, an official may be entitled to qualified immunity

because the full contours of the right in the circumstances faced by the official were unclear.

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). To determine whether a

government official’s conduct violates clearly established law, “a court must ask whether it

would have been clear to a reasonable officer that the alleged conduct was unlawful in the

situation he confronted.” Ziglar, 137 S. Ct. at 1867. Put another way, “[t]he qualified immunity

standard gives ample room for mistaken judgments by protecting all but the plainly incompetent

or those who knowingly violate the law.” Rodis v. City of San Francisco, 558 F.3d 964, 970-71

(9th Cir. 2009), cert. denied, 558 U.S. 1110 (2010).

A plaintiff bears the burden of making a showing that the right was clearly established at

the time of the alleged violation. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). When

considering whether qualified immunity applies, the court must resolve all factual disputes in

favor of the party asserting the injury. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th

Cir. 2013).

The Ninth Circuit has held that an officer who deprives an individual of the individual’s

liberty after the individual’s lawful sentence has ended violates the individual’s Fourteenth

Amendment Due Process rights when the officer has notice that the individual’s lawful sentence

had expired and fails to investigate the circumstances of the individual’s detention further.

Haygood v. Younger, 769 F.2d 1350, 1355 (9th Cir. 1990). Because there is no evidence that

Main had notice that Kahl’s lawful sentence expired before August 17, 2018,2 Main can only be

liable for his conduct before August 17, 2018 if he acted incompetently. After August 17, 2018,

Main is liable only if he failed to further investigate the circumstances of Kahl’s detention.

a. Main’s Conduct before August 17, 2018

Main acted mistakenly but not incompetently in continuing to supervise Kahl after

July 11, 2018. Consider what Main knew between July 11 and August 17, 2018: Judge Bloch

ordered Kahl’s probation violations in the 2016 Case to “track” Kahl’s 2017 Case; the 2017 Case

was still pending; Kahl’s 2016 Case remained active in the state court’s electronic “E-court”

system; Kahl agreed to report to Main on July 17; and Kahl did not mention that he was no

longer on probation.3 Based on this information, it was not unreasonable for Main to conclude

that Kahl remained on probation past July 11th. The case to which Kahl’s probation was tracked

remained pending, and Kahl himself did not appear to believe that his probation had ended.

Later events likely strengthened Main’s mistaken belief that Kahl remained on probation.

Kahl not only appeared at the July 17th meeting but also admitted to using drugs and declined to

contest the probation violation sanctions that Main imposed on Kahl. Kahl again agreed to report

to Main after an arrest on August 9th, and Kahl again admitted to violating the terms of his

probation and again declined to contest the sanctions that Main imposed. Main sent both sanction

2 Kahl alleges in his TAC and asserts in his legal memorandum filed in opposition to

Defendants’ motion for summary judgment that he did tell Main that his probation had ended on

July 11, 2018 during their July 10, 2018 meeting. Kahl, however, did not identify any evidence

of this alleged statement. See Celotex, 477 U.S. at 324 (holding that a party seeking to defeat

summary judgment must “go beyond the pleadings . . . [to] designated ‘specific facts showing

that there is a genuine issue for trial’”) (quoting Fed. R. Civ. P. 56(e)); see also Fed. R. Civ.

P. 56(c) (listing sources of support for a party’s assertion of fact). Moreover, even after this issue

was discussed during oral argument, Main never moved to supplement the record with a

declaration to this effect.

3 See n.2 supra.

reports to the district attorney’s office and to two Circuit Judges (although, not the Circuit Judge

who had presided over Kahl’s probation violation), and Main heard nothing back.

On the other hand, the E-court system showed that Kahl’s probation had ended on

July 11, 2018. That same system, however, listed Kahl’s 2016 Case as “active.” Moreover,

several other officials shared Main’s mistaken belief that Judge Bloch’s order had extended

Kahl’s probation. After Kahl challenged his probation status, Main shared with his supervisor

and at least one assistant district attorney that the E-court system reported that Kahl’s probation

had ended on July 11, 2018. Both the supervisor and assistant district attorney, nevertheless, told

Main that they believed that Kahl remained on probation based on Judge Bloch’s order.

Although Judge Ramras later concluded that Kahl’s probation had ended on July 11, 2018, Judge

Ramras stated that whether Judge Bloch’s order had in fact extended Kahl’s probation was “kind

of complicated” and “not a simple thing.” Jones Decl., Ex. 6 (ECF 46) at 4. That several other

officials shared Main’s mistaken belief, or at least found the mistaken belief understandable,

further supports the Court’s finding here that Main’s belief was not unreasonable.4

In opposing Defendants’ motion for summary judgment, Kahl argues that Main’s belief

that Judge Bloch’s order that Kahl’s alleged probation violations in the 2016 Case “track” the

2017 Case extended Kahl’s probation is unreasonable under Oregon law. Kahl begins with

Oregon statutes, noting that the term “track” appears nowhere in the Oregon legislation. That is

true, but Oregon statutes do permit judges to “impose and execute a sentence of probation on [a]

4 Kahl argues that what Judge Ramras, Main’s supervisor, or the district attorney believed

is not relevant to whether Main’s belief that Kahl remained on probation was reasonable. Kahl

also argues, however, that a police officer’s decision not to arrest Kahl for a probation violation

after the officer reviewed the E-court system and saw that Kahl’s probation had terminated on

July 11, 2018 shows that Main’s belief was unreasonable. It is unclear why Kahl believes that

one person’s belief about Kahl’s probation is relevant to whether Main’s belief was reasonable,

but others’ beliefs are not.

defendant for a definite or indefinite period of not more than five years.” ORS § 137.010(4). And

probation may “be continued or extended” at “the discretion of the court.” ORS § 137.545(1)(a).

Main believed that Judge Bloch’s tracking order was an exercise of Judge Bloch’s discretion to

extend Kahl’s probation, and the Court concludes that such a belief is reasonable.

Kahl also argues that the Oregon Court of Appeals’ decision in State v. Vanlieu, 251 Or.

App. 361 (2012), reveals that Main’s actions were unreasonable. In Vanlieu, the Oregon Court of

Appeals held that a trial court’s “show cause” order did not extend the defendant’s probation and

therefore the trial court could not sanction the defendant for conduct that occurred after the

defendant’s original probation date had passed, despite the show-cause order. Id. at 368. Vanlieu

explained that, if a defendant’s term of probation could be extended by “the mere filing of a

show-cause order”—essentially, an invitation to reply to the State’s allegations of probation

violations—then the state could extend the term of a defendant’s probation by filing “meritless”

probation violation allegations. Id. at 370. “The legislature,” the Oregon Court of Appeals

explained, “contemplated” that a defendant’s probation would be extended only by a deliberate

act of a trial court. Id.

Vanlieu, however, does not show that Main’s belief that Judge Bloch’s tracking order

extended Kahl’s probation was unreasonable. Vanlieu merely requires a deliberate judicial act to

extend a defendant’s probation. It is not obvious why it would be unreasonable for Main to

believe Judge Bloch’s “tracking” order was such a deliberate judicial act. The Oregon Court of

Appeals did not list acceptable deliberate judicial acts; it simply states that a show-cause order

was not one.5 Moreover, the reasons given by the Oregon Court of Appeals for concluding that a

5 Indeed, Vanlieu was careful to limit its holding to the “particular circumstances” of that

case. Id. at 368.

show-cause order was not a deliberate judicial act do not directly apply to a tracking order.

Because a show-cause order is merely an invitation to respond to the state’s allegations of

probation violations, those orders are prosecution-driven; they are not the product of judicial

deliberation and decision. Judge Bloch’s tracking order, however, was an express order made by

Judge Bloch after his deliberate consideration of the information before him. Thus, even if Main

were aware of Vanlieu, that decision would not have made it obvious to Main that tracking

orders could not extend a term of probation.

Main’s mistaken belief that Judge Bloch’s tracking order extended Kahl’s probation was

reasonable, even if ultimately mistaken. Because Main’s mistake of fact was reasonable, Main is

entitled to qualified immunity for his conduct supervising and detaining Main between July 11,

2018 and August 17, 2018.

b. Main’s Conduct after August 17, 2018

On August 17, 2018, Kahl spoke with a different probation officer about having his GPS

monitor removed following the dismissal of his 2018 Case. During this meeting, Kahl told the

probation officer that his probation had ended on July 10, 2018. The probation officer noted

Kahl’s remark in a “shared” recordkeeping system for the probation office. This entry represents

the first instance potentially notifying Main that Kahl’s probation had ended.6 An officer who

deprives an individual of the individual’s liberty after the individual’s lawful sentence has ended

violates the individual’s Fourteenth Amendment Due Process rights when the officer has notice

that the individual’s lawful sentence has expired and fails reasonably to investigate further the

6 Because the Court must draw all reasonable inferences in favor of the nonmoving party,

the Court will assume that Main saw the entry in the probation office’s recordkeeping system

noting that Kahl believed that his probation terminated on July 11, 2018. Main, however, had no

reason to question whether Kahl remained on probation on August 28, 2018, when Kahl reported

to Main for a supervision meeting and told Main that Kahl believed that his probation had ended.

circumstances of the individual’s detention. See Haygood, 769 F.2d at 1355; see also Alexander

v. Perrill, 916 F.2d 1392, 1395 (9th Cir. 1990) (denying qualified immunity to prison officials

who “did nothing to inquire into or investigate [the plaintiff’s] complaints” that his good time

credits were being improperly calculated).

Main is entitled to qualified immunity for his conduct after August 17, 2018 because he

made a reasonable investigation after receiving notice that Kahl’s lawful sentence may have

expired. Promptly after Kahl’s public defender sent an email to Main about Kahl’s probation on

September 12, 2018, Main: (1) checked Kahl’s E-court file again and saw that Kahl’s 2016 Case

remained active; (2) spoke to Main’s supervisor about Kahl’s probation and learned that the

supervisor shared Main’s understanding of the effect of Judge Bloch’s tracking order; and

(3) contacted the district attorney’s office, who also shared Main’s understanding of the effect of

Judge Bloch’s tracking order. Contra Alexander, 916 F.2d at 1395 (“[I]f you just sit around and

don’t do anything [to investigate a prisoner’s claim that he has been detained beyond the length

of his lawful sentence], you do run a chance of being responsible.”) Main did not arrest or enter

any sanctions against Kahl after August 17, 2018. Because Main reasonably investigated the

status of Kahl’s probation after he had reason to doubt the lawfulness of Kahl’s continued

supervision, Main is entitled to qualified immunity.

2. Claims Against Multnomah County

Defendants argue that Kahl has not established Monell liability because he has not shown

that Multnomah County has a custom or policy of detaining individuals who are not on probation

for violating probation, that Multnomah County offered constitutionally deficient training to

probation officers, or that a policymaker for Multnomah County ratified Main’s actions.

A municipality “may not be sued under § 1983 for an injury inflicted solely by its

employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Instead, “[a]

municipality is subject to suit under § 1983 only ‘if it is alleged to have caused a constitutional

tort through a policy statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.’” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096-97 (9th

Cir. 2013) (quoting City of St. Louis v. Parprotnik, 485 U.S. 112, 121 (1988)). Municipal

liability may exist without any formal policy permitting the challenged conduct where the

municipality has a “longstanding practice or custom which constitutes the standard operating

procedure of the local government entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

In narrow circumstances, a municipality’s failure to train its employees may be

considered a policy or custom. City of Canton v. Harris, 489 U.S. 378, 389 (1989) (“Only where

a municipality’s failure to train its employees in a relevant respect evidences a deliberate

indifference to the rights of its inhabitants can such a shortcoming be properly thought of as a

city policy or custom under § 1983.”). Indeed, “a pattern of similar constitutional violations by

untrained employees is ordinarily necessary to demonstrate deliberate indifference.” Connick v.

Thompson, 563 U.S. 51, 62 (2011) (simplified). In still rarer instances, however, the duties of a

specific employee make the need for certain training obvious. City of Canton, 489 U.S. at 390.

The classic example being that the duties of police officers to chase fleeing felons makes the

need for training on constitutional use of force by officers obvious. Id. at 390 n.10.

Finally, a municipality may be liable for an employee’s unconstitutional conduct when

the municipality ratifies the employee’s conduct. See Gillette v. Delmore, 979 F.3d 1342, 1348

(9th Cir. 1992). To prevail on a ratification theory, Kahl must show both that Main’s decision

was “cast in the form of a policy statement” and that a supervisor with policy making authority

expressly approved of the decision. Id.

Kahl fails to establish the County’s liability. Kahl does not point to any “policy

statement, ordinance, regulation, or decision officially adopted and promulgated by” the County.

See Gravelet-Blondin, 728 F.3d at 1096-97 (quoting Parprotnik, 485 U.S. at 121). Nor is there

any evidence that the County has a custom, see Trevino, 99 F.3d at 918, of relying on “tracking”

orders to continue to supervise individuals on probation even after the individual’s probation has

terminated. The County trains probation officers that, when a probation violation hearing tracks a

criminal proceeding, the probation violation will be resolved at the same time as the criminal

proceeding. That training, however, describes a “tracking” order’s effect on scheduling.

Nor can Kahl establish a failure to train. Kahl must point to a “pattern of similar

constitutional violations,” Connick, 131 S. Ct. 1350, 1360 (2011), yet undisputed evidence in the

record reveals that there is no example of anything like this happening before in Multnomah

County. Finally, Kahl’s ratification theory fails because undisputed evidence in the record shows

that Smith, the County employee who Kahl argues ratified Main’s decision to continue

supervising Kahl, lacks policymaking authority himself. See Gillette, 979 F.3d at 1348; see

Smith Decl. (ECF 48) at 2 (“Policies for [Multnomah County Department of Community Justice]

are set at a level above mine . . . .”).

B. State Law Claims

Defendants argue that they are entitled to summary judgment on Kahl’s state law claims

both because Kahl failed to provide timely notice of his claim to the County and because they are

entitled to apparent authority immunity under Oregon law. Public bodies and their employees are

immune from liability for “[a]ny claim arising out of an act done or omitted under apparent

authority of a law, resolution, rule or regulation that is unconstitutional, invalid or inapplicable

except to the extent that they would have been liable had the law, resolution, rule or regulation

been constitutional, valid and applicable, unless such act was done or mitted in bad faith or with

malice.” ORS § 30.265(6)(f).

As explained above, Main’s belief that Judge Bloch’s tracking order extended Kahl’s

probation was mistaken but reasonable. There is no evidence that Main acted with bad faith or

malice. Thus, Main and the County are entitled to apparent authority immunity for Kahl’s state

law claims. Because Defendants are entitled to apparent authority immunity for Kahl’s state law

claims, the Court need not address whether Kahl provided timely notice of his claim

CONCLUSION

The Court GRANTS Defendants’ Motion for Summary Judgment (ECF 45).

IT IS SO ORDERED.

DATED this 10th day of August, 2021.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge