Pettibone v. Biden, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MARK PETTIBONE, et al., Case No. 3:20-cv-1464-YY

Plaintiffs, OPINION AND ORDER

v.

JOSEPH R. BIDEN, JR., et al.,

Defendants.

Per A. Ramfjord, Jeremy D. Sacks, Christopher Rifer, Jacob C. Goldberg, Rachel S.D. Gale,

Rachel C. Lee, Ryan Tamm, Todd A. Hanchett, Alex Van Ryssellberghe, Dominik Mackinnon,

and Kaitlyn K. Lindaman, STOEL RIVES LLP, 760 SW Ninth Avenue, Suite 3000, Portland, OR

97205; Matthew Segal, STOEL RIVES LLP, 500 Capitol Mall, Suite 1600, Sacramento, CA

95814; Kelly K. Simon, ACLU OF OREGON, P.O. Box 40585, Portland, OR 97240. Of Attorneys

for Plaintiffs.

Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Alexander K.

Haas, Director, Federal Programs Branch, Brigham J. Bowen, Assistant Director, Federal

Programs Branch, and Michael P. Clendenen, Trial Attorney, UNITED STATES DEPARTMENT OF

JUSTICE, CIVIL DIVISION, FEDERAL PROGRAMS BRANCH, 1100 L Street, NW, Washington, D.C.

20530. Of Attorneys for Joseph R. Biden, Jr., Alejandro Mayorkas, Gabriel Russell, United

States Department of Homeland Security, United States Marshals Service.

Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, James G.

Touhey, Jr., Director, Torts Branch, and Lawrence Eiser, Grant Treaster, Sarah Du, Catherine J.

Malycke, and Sarah Klein, Trial Attorneys, UNITED STATES DEPARTMENT OF JUSTICE CIVIL

DIVISION, TORTS BRANCH, 175 N Street, N.E., Washington, D.C. 20002. Of Attorneys for the

United States of America.

Neil J. Evans, NEIL EVANS LAW, P.O. Box 366, Manzanita, OR 97130. Of Attorneys for

Individual Defendants, Defendants 1-19.1

1 These defendants are not named to preserve their anonymity.

Michael H. Simon, District Judge.

Plaintiffs are eight individuals who were injured during the 2020 protests in Portland,

Oregon and two associations of individual Oregonians who participated in the protests.2 They

bring claims against Defendants United States President Joseph R. Biden, Secretary of the

Department of Homeland Security Alejandro Mayorkas, Federal Protective Services Regional

Director for Region 10 Gabriel Russell, all in their official capacities, the Department of

Homeland Security, the United States Marshals Service (collectively, the “Official Defendants”),

and the United States.3

The Official Defendants filed a motion to dismiss, seeking to dismiss Plaintiffs’ Second

through Sixth claims. The United States filed a separate motion to dismiss, seeking to dismiss

Plaintiffs’ Ninth through Eleventh and Thirteenth claims. United States Magistrate Judge Youlee

Yim You issued a Findings and Recommendation on January 16, 2024 (F&R1), addressing the

2 The Court references allegations from the Fourth Amended Complaint, even though it

was filed after the Findings and Recommendations reviewed in this Opinion and Order, per the

agreement of the parties and the order of the U.S. Magistrate Judge in granting leave to amend

the complaint, that the underlying motions and the Findings and Recommendations would apply

to the Fourth Amended Complaint.

3 To preserve appellate rights, Plaintiffs also continue to name 19 individual defendants

and the Agency heads in their individual capacity, against whom the Court has dismissed claims

with prejudice. Plaintiffs also continue to include the Bivens claim (Claim 1) that the Court has

dismissed with prejudice. The Court notes that the better practice is to no longer reallege

defendants and claims in an amended complaint that have been dismissed with prejudice. The

Ninth Circuit abolished its previous rule requiring repleading to preserve appellate rights in such

circumstances, recognizing that doing so requires district courts to parse old claims and reiterate

prior rulings, among other problems. Lacey v. Maricopa County, 693 F.3d 896, 925-28 (9th

Cir. 2012) (en banc) (“We therefore join our sister circuits and overrule in part the rule found in

Forsyth and other cases . . . . For claims dismissed with prejudice and without leave to amend,

we will not require that they be repled in a subsequent amended complaint to preserve them for

appeal.”). Thus, if Plaintiffs file another amended complaint, the Court directs that they do not

include any defendants or claims that have been dismissed without leave to amend.

Official Defendants’ motion. Judge You recommended that the Court grant the Official

Defendants’ partial motion to dismiss. Judge You also issued a Findings and Recommendation

on February 26, 2024 (F&R2), addressing the United States’ motion. Judge You recommended

that the Court grant the United States’ motion to dismiss with respect to Plaintiffs’ Tenth and

Thirteenth claims, which were conceded by Plaintiffs, and deny the motion with respect to

Plaintiffs’ Ninth and Eleventh claims.

For F&R1, Plaintiffs timely objected, to which the Official Defendants responded.

Plaintiffs partially object to F&R1, challenging only the portions addressing claims Three

through Six asserted by Plaintiff Mark Pettibone and his standing to seek expungement of

records maintained by the Official Defendants.

For F&R2, the United States timely objected, to which Plaintiffs responded. The United

States objects to the portion recommending that the Court deny the motion with respect to

Plaintiffs’ Ninth and Eleventh claims. The United States argues that the F&R misapplied the law

and contends that the Court should grant the United States’ partial motion to dismiss in full.

For the reasons that follow, the Court adopts in part both F&R1 and F&R2. The Court

adopts F&R1 with respect to the portions to which no party objected, finding no clear error. This

includes everything but the Third through Sixth claims asserted by Pettibone, which are

discussed below. For this portion, the Court declines to adopt F&R1. The Court finds that

Pettibone has Article III standing to seek declaratory and injunctive relief.

The Court adopts F&R2 with respect to the portions to which no party objected, claims

Ten and Thirteen, finding no clear error. The Court also adopts F&R2 with respect to Plaintiffs’

Ninth and Eleventh claims, except the Court declines to adopt F&R2 for the NIED claims

brought by Plaintiffs Christopher David, Dustin Obermeyer, and Pettibone. For those claims, the

Court grants the United States’ motion to dismiss.

STANDARDS

A. Review of Findings and Recommendation

Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.

§ 636(b)(1). If a party objects to a magistrate judge’s findings and recommendations, “the court

shall make a de novo determination of those portions of the report or specified proposed findings

or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3). For those

portions of a magistrate judge’s findings and recommendations to which neither party has

objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140,

152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a

district judge to review a magistrate’s report to which no objections are filed.”); United States v.

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review

de novo magistrate judge’s findings and recommendations if objection is made, “but not

otherwise”). Although in the absence of objections no review is required, the Act “does not

preclude further review by the district judge[] sua sponte . . . under a de novo or any other

standard.” Thomas, 474 U.S. at 154.

B. Motion to Dismiss for Lack of Standing – Rule 12(b)(1)

The U.S. Constitution confers limited authority on the federal courts to hear only active

cases or controversies brought by persons who demonstrate standing. See Spokeo, Inc. v.

Robins, 578 U.S. 330, 337-38 (2016); Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91 (2013).

Standing “limits the category of litigants empowered to maintain a lawsuit in federal court to

seek redress for a legal wrong.” Spokeo, 578 U.S. at 338. A plaintiff’s standing under Article III

of the U.S. Constitution is a component of subject matter jurisdiction properly challenged under

Rule 12(b)(1) of the Federal Rules of Civil Procedure. Chandler v. State Farm Mut. Auto. Ins.,

598 F.3d 1115, 1121 (9th Cir. 2010). On a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1), it is the burden of the party asserting jurisdiction to establish the

existence of subject matter jurisdiction. Id. at 1122; see also Kingman Reef Atoll Invs., LLC v.

United States, 541 F.3d 1189, 1197 (9th Cir. 2008).

A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction may be

either “facial” or “factual.” See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

Cir. 2004). A facial attack on subject matter jurisdiction is based on the assertion that the

allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. “A

jurisdictional challenge is factual where ‘the challenger disputes the truth of the allegations that,

by themselves, would otherwise invoke federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130,

1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039). When a defendant

factually challenges the plaintiff’s assertion of jurisdiction, a court does not presume the

truthfulness of the plaintiff’s allegations and may consider evidence extrinsic to the complaint.

See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Safe Air for

Everyone, 373 F.3d at 1039. A factual challenge “can attack the substance of a complaint’s

jurisdictional allegations despite their formal sufficiency.” Dreier v. United States, 106 F.3d 844,

847 (9th Cir. 1996) (quotation marks omitted).

C. Standing to Seek Declaratory Relief

To have standing, a plaintiff must have a “personal interest . . . at the commencement of

the litigation.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189

(2000). The required personal interest must satisfy three elements throughout the litigation:

(1) an injury in fact, i.e., an invasion of a legally protected interest that is concrete and

particularized, as well as actual or imminent; (2) a causal connection between the injury-in-fact

and the defendant’s challenged behavior; and (3) likelihood that the injury-in-fact will be

redressed by a favorable ruling. Id. at 180-81; see also Spokeo, 578 U.S. at 338 (reiterating that

the “irreducible constitutional minimum” of standing consists of “an injury in fact . . . fairly

traceable to the challenged conduct of the defendant, and . . . likely to be redressed by a

favorable judicial decision”).

A plaintiff “must show standing with respect to each form of relief sought.” Ellis v.

Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011). “[E]xpungement is a form of

prospective relief.” Phillips v. United States, 2021 WL 2587961, at *8 (C.D. Cal. June 22, 2021).

Expungement would require a defendant take future action to destroy records. Id.; see also Flint

v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007). When a plaintiff seeks prospective relief, a threat

of repeated future injury may suffice to provide standing. See Nordstrom v. Ryan, 762 F.3d 903,

911 (9th Cir. 2014). As explained by the Ninth Circuit:

A plaintiff seeking prospective declaratory relief must demonstrate

that he is realistically threatened by a repetition of the violation. A

threat of repetition can be shown at least two ways. First, a plaintiff

may show that the defendant had, at the time of the injury, a

written policy, and that the injury stems from that policy. Second,

the plaintiff may demonstrate that the harm is part of a pattern of

officially sanctioned behavior, violative of the plaintiffs’ federal

rights.

Id. (emphasis in original) (cleaned up). The threat of repeated future injury, however, may not be

“conjectural or hypothetical.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (quotation marks

omitted).

DISCUSSION

A. Motion by the Official Defendants (F&R1)

The parties’ dispute centers on Pettibone’s standing to seek expungement for records

related to his allegedly unlawful arrest. The Official Defendants rely on Phillips v. U.S. Customs

and Border Protection, 74 F.4th 986 (9th Cir. 2023), to argue that Pettibone does not have

standing to request expungement because the Official Defendants’ retention of records does not

give rise to a concrete injury. The Official Defendants’ reliance on Phillips is misplaced because

that case is factually distinguishable and because the alleged circumstances of Pettibone’s arrest

and the Official Defendants’ subsequent retention of documents fall within the categories of

concrete harm described in Phillips as giving rise to Article III standing.

In Phillips, the Ninth Circuit provided guidance on the type of harm that constitutes a

concrete injury sufficient to seek expungement. See 74 F.4th at 992-93. The plaintiffs in Phillips

alleged that the government “collected and maintain[ed]” records in violation of the plaintiffs’

constitutional rights. Id. at 990. These records included “names, birthdays, social security

numbers, occupations, addresses, social media profiles, and political views and associations,”

gathered as part of a government surveillance program. Id. at 995-96. The Ninth Circuit

described that it was “undisputed” that the records were “gathered . . . . us[ing] both open source

information available to the public, such as media reports and social media pages, as well as

preexisting law enforcement databases, which were not publicly available.” Id. at 989; see also

id. at 996 (Schroeder, J., concurring) (explaining that “the information came from publicly

available sources or existing law enforcement databases”). Thus, although the plaintiffs in

Phillips sought “to expunge all records unlawfully collected and maintained about plaintiffs, and

any information derived from that unlawfully obtained information,” id. at 990 (cleaned up), the

Ninth Circuit characterized that the information was not illegally obtained, id. at 989; see also id.

at 996 (Schroeder, J., concurring) (explaining that the plaintiffs “do not challenge any

governmental conduct in obtaining the underlying information” and could not do so because the

information came from public sources or existing law enforcement databases).4

The Ninth Circuit in Phillips, however, generally discussed standing in the context of

“illegally obtained records” and explained:

Where we have held that the retention of illegally obtained records

resulted in a concrete injury, we have always identified something

beyond retention alone that resulted in an injury of the sort

recognized by the Supreme Court, such as a material risk of future

tangible harm, a violation of the common law right to privacy, or a

cognizable constitutional violation.

Phillips, 74 F.4th at 993; see also id. at 992 (identifying harm that “bears a close relationship to

harms traditionally recognized as providing a basis for lawsuits in American courts” as

supporting standing, including “reputational harms” and “intrusion upon seclusion” (quotation

marks omitted)).

Here, Pettibone argues that the information was obtained in violation of his Fourth

Amendment rights because it was obtained during an unconstitutional detention, search, and

seizure. This distinguishes Phillips. Pettibone has alleged a “cognizable constitutional violation.”

Id. at 993. “It is well settled that the federal courts have inherent equitable power to order the

expungement of . . . arrest records as an appropriate remedy in the wake of police action in

4 The plaintiffs in Phillips claimed “at least one record” at issue “was created using

information collected during” an “allegedly unlawful detention” at the U.S.-Mexico border,

“which plaintiffs assert violated the Fourth Amendment.” 74 F.4th at 992. These plaintiffs,

however, did not argue that the underlying constitutional violation should affect the Ninth

Circuit’s standing analysis. Id. at 991 n.4. (“Because plaintiffs claim they have standing due to

the government’s retention of records alone, they do not argue that the nature of the alleged

underlying constitutional violation affects our analysis.”). In contrast, Pettibone argues that his

allegedly unconstitutional detention, search, and seizure gives rise to a tangible harm for the

purposes of standing.

violation of constitutional rights.” Maurer v. Individually & as Members of L.A. Cnty. Sheriff's

Dep’t, 691 F.2d 434, 437 (9th Cir. 1982) (quotation marks omitted).

The information retained by the Official Defendants is connected to and associated with

Pettibone’s allegedly unlawful arrest. Pettibone’s last name, date of birth, address, driver’s

license number, race, height, weight, hair color, and eye color are noted on a record labeled

“Arrest #1.” ECF 106-8. This record also indicates a charge under “18 U.S.C. § 111” and says

“released/no charges.” Id. Another record shows a photograph of Pettibone next to his full name

and states the following information related to his arrest: his “initial offense” was a violation of

“18 U.S.C. § 111,” he was released without charges, the “AUSA declined prosecution,” his

“offense type” was a “misdemeanor,” and the “arresting agency” was the Federal Protective

Service. ECF 272-1. A photograph of Pettibone was taken by an employee of the U.S. Marshal’s

Service on a personal cell phone. ECF 78 at 2. The contents of Pettibone’s backpack were

cataloged. ECF 26-1 ¶ 15; 4th Am. Compl. (ECF 309) ¶¶ 295-96.

The Ninth Circuit also has consistently found retention of criminal documents obtained in

an unlawful or unconstitutional manner may violate a plaintiff’s fundamental rights, including

rights to privacy, and support expungement. See Maurer, 691 F.2d at 437; United States v.

Smith, 940 F.2d 395, 396 (9th Cir. 1991); Mayfield v. United States, 599 F.3d 964, 970-71 (9th

Cir. 2010); Fazaga v. FBI, 965 F.3d 1015, 1053-55 (9th Cir. 2020), rev’d and remanded on other

grounds, 595 U.S. 344 (2022)); see also Wilson v. Webster, 467 F.2d 1282, 1283-84 (9th

Cir. 1972) (finding that the “continued existence” of arrest records of individuals whose criminal

charges had been dismissed “may seriously and unjustifiably serve to impair fundamental rights

of the persons to whom they relate”); Shipp v. Todd, 568 F.2d 133, 134 (9th Cir. 1978) (“It is

established that the federal courts have inherent power to expunge criminal records when

necessary to preserve basic legal rights.”).

When the government has unlawfully arrested someone or “engaged in any sort of

misconduct,” extraordinary circumstances exist that permit a court to order expungement to

vindicate substantial rights. See United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991). For

example, in Mayfield, in considering standing, the Ninth Circuit concluded that the retention of

documents that were unlawfully seized from the plaintiff’s home as part of his unlawful arrest

was an ongoing injury because it “constitute[d] an ongoing violation of [the plaintiff’s]

constitutional right to privacy.” 599 F.3d at 970. In Maurer, the Ninth Circuit, in evaluating

mootness, reviewed state “police action in violation of constitutional rights,” 691 F.2d at 437

(quotation marks omitted), and reversed the district court’s dismissal of the claim seeking

expungement of the state records involving an arrest “made without either an arrest warrant or

probable cause,” id. at 435.

In Fazaga, the Ninth Circuit concluded that a court may vindicate a plaintiff’s

constitutional rights by ordering expungement of records gathered as part of an illegal

surveillance operation. Fazaga, 965 F.3d at 1054-55 (“This court has been clear that a

determination that records were obtained and retained in violation of the Constitution supports a

claim for expungement relief of existing records so obtained.”). In Wilson, the Ninth Circuit

reversed the district court’s dismissal of the plaintiffs’ request for expungement of state court

arrest and other criminal records, remanding for further proceedings. 467 F.7 at 1283. The

plaintiffs had alleged that the state law enforcement defendants had arrested the plaintiffs

“unlawfully and without any justification.” Id. The Ninth Circuit concluded that the facts alleged

were sufficient to show ongoing injury and require a “full inquiry.” Id. at 1283-84. Pettibone

alleges similar claims and harms as the plaintiffs in Mayfield, Maurer, Fazaga, and Wilson.

Defendants argue that the records related to Pettibone’s arrest are “not searchable,”5

therefore Pettibone cannot show a material risk of future tangible harm. Those records, however,

have already been used in ways that harm Pettibone. They provided the basis for communication

with a state law enforcement agency to obtain a photo of Pettibone. ECF 71 at 2. Photographs of

Pettibone and his driver’s license were also found on a Defendant’s employee’s cell phone

(ECF 78 at 2), and they could be disseminated in the future.

Additionally, records of an arrest are unlike the simple identifying records at issue in

Phillips. An arrest has an inherent negative connotation. See Wilson, 467 F.2d at 1283-84

(explaining that the “continued existence” of unlawful arrest records “may seriously and

unjustifiably serve to impair fundamental rights of the persons to whom they relate”). The Ninth

Circuit has recognized that negative information, even the less prejudicial information of school

disciplinary records, is sufficiently harmful to support expungement. See Flint, 488 F.3d at 824

(“When a student’s record contains negative information derived from allegedly unconstitutional

school regulations . . . that information may jeopardize the student’s future employment or

college career.”).

Pettibone describes that he now must report on job applications and similar documents

that he has been arrested, even though it was an allegedly unlawful and unconstitutional arrest. If

5 Official Defendants assert that a search in federal arrest record databases does not

currently display an arrest record for Pettibone. See ECF 128-1 at 2-6 (explaining searches in the

nation-wide arrest record databases maintained by the Official Defendants do not return results

on Pettibone). Even if there is no formal arrest record in the Official Defendants’ searchable

databases, Pettibone faces a risk of tangible harm, including reputational harm, for the reasons

discussed in this Opinion and Order.

his allegedly false arrest is expunged, he will no longer have to report that he was arrested. Cf.

United States v. Crowell, 374 F.3d 790, 792 (9th Cir. 2004) (explaining that expungement is the

“judicial editing of history” and erases the fact of the conviction or arrest sought to be expunged

(quotation marks omitted)); 18 U.S.C. § 3607(c) (establishing that for a particular type of crime

for which Congress provided the remedy of expungement, “[a] person concerning whom such an

order has been entered shall not be held thereafter under any provision of law to be guilty of

perjury, false swearing, or making a false statement by reason of his failure to recite or

acknowledge such arrests or institution of criminal proceedings, or the results thereof, in

response to an inquiry made of him for any purpose”). This alleged harm is not tied to the

searchability of the documents retained by the Official Defendants and further supports

Pettibone’s standing.

Pettibone was arrested, searched, and detained by federal law enforcement officers

allegedly acting without a warrant or probable cause. The records relating to this incident include

documentation of Pettibone’s arrest, including sensitive identifying information, the charges that

were considered, photographs of Pettibone, and an inventory of the contents of his backpack.

Pettibone has shown that his records have been used by the federal government and that it is

sufficiently likely that he will suffer tangible harm, including reputational harm, if the records

are not expunged.

B. Motion by the United States (F&R2)

The United States objects to the portion of F&R2 in which Judge You recommends that

the Court deny the United States’ partial motion to dismiss claims Nine and Eleven. The United

States makes four arguments in support of its objections, contending that Plaintiffs’ claims for

battery, assault, intentional infliction of emotional distress (“IIED”), and negligent infliction of

emotional distress (“NIED”) should be dismissed.

First, the United States objects that Plaintiffs James McNulty, Andre Miller, and Maureen

Healy’s claims for battery and assault fail because Plaintiffs do not allege sufficient facts to

plausibly show that the federal agents acted intentionally to cause harmful contact or an

apprehension of harmful contact against these three Plaintiffs. The Court disagrees.

Plaintiffs allege that federal officers shot McNulty four times in the back with rubber

bullets and a pepper ball when he was peacefully walking in front of them while moving away

from the protests and not on federal property. 4th Am. Compl. ¶¶ 206-07. It is a reasonable

inference at this stage of the litigation that the officers intended to cause him harm or the

apprehension of harm in shooting him multiple times with less lethal munitions versus generally

shooting broadly into a crowd for crowd control and incidentally hitting McNulty.

Plaintiffs allege that federal officers shot Miller in the head with a tear gas canister while

he was in a peaceful group of protesters, not on federal property, without warning or giving any

instructions or dispersal order. Id. ¶¶ 154-55. The officers allegedly shot into the “crowd.” Id.

¶ 154. Similarly, Plaintiffs allege that Healy was in a group of peaceful protesters, not on federal

property, when federal officers filed flash bangs, impact munitions, and tear gas canisters into

the crowd, without warning or giving any instructions or dispersal order. Id. ¶¶ 171-72. Healy

was hit in the head. Id. ¶ 172. At the pleading stage, Plaintiffs’ allegations that federal officers

fired munitions into a crowd without warning or having given any instructions or dispersal

orders, particularly at the level of hitting a person’s head, is sufficient to support a reasonable

inference that the federal officers intended to cause harmful contact or apprehension of harmful

contact.

Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012), is instructive. Although the Ninth

Circuit was evaluating qualified immunity, the court discussed the reasonableness of force used

in the context of responding to a crowd of protesters, particularly given the training of police

officers. The Ninth Circuit emphasized that it repeatedly has held that officers may not use force,

even the use of pepper spray and bean bag projectiles, when persons simply passively resist

(such as refusing to disperse after a dispersal order), without threatening the officers or placing

them at risk.6 Id. at 881-82 (gathering cases). The Nelson court also explained that police officers

were trained not to use pepperballs on persons who were not posing a safety risk and not to

create a contamination area that was occupied. Id. at 882. The court further noted the importance

of the officers giving a warning before engaging in the alleged force. Id. Although the Nelson

court was describing the actions and knowledge of a reasonable officer for purposes of qualified

immunity, if a reasonable officer would know that firing these munitions into the crowd was an

illegal use of force for purposes of a Fourth Amendment violation and qualified immunity, at this

stage of the litigation it is a reasonable inference that they would engage in such knowingly

excessive force with the intention to cause harm or the apprehension of harm.

Second, the United States objects that Plaintiffs cannot bring separate IIED and NIED

claims because they must instead rely only on their battery and assault claims. The United States

relies on the Restatement (Third) of Torts to argue that emotional harm from a physical injury is

recoverable from either an intentional tort or negligence, but not IIED or NIED. The United

States also argues that Plaintiffs cannot plead these theories in the alternative because the

intentional torts alleged by Plaintiffs preclude any possibility of negligence.

Oregon law permits recovery for emotional harm under several different circumstances.

See Philibert v. Kluser, 360 Or. 698 (2016). These include: (1) when there is physical injury;

6 Here, Plaintiffs do not even allege passive resistance, because they allege that the

federal officers engaged in the unlawful force without any warning or dispersal order, while

Plaintiffs were engaged in peaceful conduct.

(2) when the tortfeasor acted intentionally; (3) “when a defendant negligently causes foreseeable,

serious emotional distress and also infringes some other legally protected interest”; and (4) when

a bystander perceives serious bodily injury to a close family member. Id. at 702, 711-12. Acting

intentionally and physical injury are separate categories recognized in Oregon that support

emotional distress damages. Oregon specifically recognizes that NIED claims not only can

involve physical injury, but generally must involve physical injury or the apprehension of

physical injury. See Lockett v. Hill, 182 Or. App. 377, 380 (2002) (“Generally, a person cannot

recover for negligent infliction of emotional distress if the person is not also physically injured,

threatened with physical injury, or physically impacted by the tortious conduct.”). Oregon law

also permits plaintiffs to plead IIED as an alternative theory to battery and assault. See McLean v

Pine Eagle Sch. Dist., 194 F. Supp. 3d 1102, 1128 (D. Or. 2016) (permitting plaintiff to seek

damages based on IIED and civil assault arising from the same underlying conduct); A.G. v.

Guitron, 351 Or. 465, 467 n.1 (2011) (noting that plaintiff brought battery, IIED, and negligence

claims related to the same conduct). The Court thus rejects this objection by the United States.

Third, the United States objects that Plaintiffs cannot assert NIED claims where their

emotional harm was a byproduct of their physical injury because this would erase the distinction

between an NIED claim and a claim for negligence. The Court rejects this argument. Plaintiffs

may bring a claim for NIED asserting emotional harm caused by the federal officers’ negligent

conduct that Plaintiffs assert caused them physical harm. See Lockett, 182 Or. App. at 380.

Finally, the United States objects that Plaintiff’s NIED claims rely on intentional conduct,

which cannot support a claim for NIED.7 The Court partially agrees with the United States.

7 The United States’ first objection was that Plaintiffs Miller, Healy, and McNulty failed

sufficiently to allege intentional conduct by federal officers, which is inapposite to the United

As discussed above, Plaintiffs allege that federal officers shot Miller, Healy, and

McNulty with less lethal munitions while they were peacefully protesting. Although Plaintiffs’

allegations are sufficient at this stage of the litigation to support assault and battery claims, it is

not unreasonable for Plaintiffs to plead in the alternative that the officers’ conduct was merely

negligent. Similarly, Plaintiffs allege that federal officers shot pepperballs and shot or threw a

tear gas canister at Plaintiff Nicole Denison when she was peacefully protesting with the “Wall

of Moms,” without warning or a dispersal order. Fourth Am. Compl. ¶¶ 160-64. Plaintiffs allege

that federal officers shot Mac Smiff in the face with a hardcap paintball while he was off to the

side of the protesters, marked as “press” and peacefully covering the protests. Id. ¶¶ 144-45.

Firing projectiles and shooting or hurling tear gas canisters could be done with intent to cause

harmful contact or apprehension, or they could be done for general crowd-control purposes, with

the striking of and injuries to these plaintiffs the result of negligence. Thus, at this stage, it is

reasonable for Plaintiffs to plead these claims in the alternative and the Court overrules the

United States’ objection with respect to the NIED claims of Plaintiffs Miller, Healy, McNulty,

Denison, and Smiff.

Plaintiffs, however, allege that federal officers attacked David after he asked a few

officers why they were not honoring their oath to support the U.S. Constitution. Id. ¶¶ 180-83.

Plaintiffs allege that federal officers “plowed into” David to knock him down, struck him

repeatedly with batons, and sprayed him “directly into Mr. David’s face” with a chemical

irritant. Id. ¶¶ 181-83. Plaintiffs allege that federal officers similarly attacked Obermeyer. They

allege that while he was standing with his hands up and simply asked if the officers understood

States’ argument in this objection that Plaintiffs’ alleged intentional conduct by federal officers

necessarily precludes Plaintiffs’ NIED claim.

what an illegal order was, multiple officers hit him with a baton, one struck him, and one sprayed

him in the face with a chemical irritant. Id. ¶¶ 197-98. Striking someone with a baton is

intentional conduct and cannot give rise to a claim for negligence. See Aranda v. City of

McMinnville, 942 F. Supp. 2d 1096, 1110 (D. Or. 2013) (finding that striking someone with “fist

and knees” is intentional conduct not negligence).

Plaintiffs allege that while Pettibone was walking home, federal agents in unmarked

camouflage chased and grabbed Pettibone, refused to explain their actions, forced him into an

unmarked van, physically restrained him, drove him to a new location (which he later learned

was the federal courthouse), searched him, cuffed him, placed him in a holding cell, read him his

Miranda rights, and photographed him and his belongings. Fourth Am. Compl. ¶¶ 129-32. Under

Oregon law, “arresting and handcuffing a person [is] intentional conduct that could not support a

negligence claim.” Wagoner v. City of Portland, 2017 WL 2369399 at *11 (D. Or. May 31,

2017) (citing Woods v. Gutierrez, 2012 WL 6203170 at *12 (D. Or. Dec. 12, 2012); Kasnick v.

Cooke, 116 Or. App. 580, 583 (1992)). Allegations of conduct that can only be intentional cannot

give rise to a negligence claim. Id.; Rodrigues v. Jackson County, 2015 WL 404577, at *4 (D.

Or. Jan. 29, 2015). Therefore, the United States’ objections with respect to the NIED claims of

David, Obermeyer, and Pettibone are well taken.

CONCLUSION

The Court ADOPTS IN PART Judge You’s Findings and Recommendation dated

January 16, 2024 (ECF 283). The Court adopts the F&R except with respect to Pettibone’s Third

through Sixth claims seeking expungement. The Court thus GRANTS IN PART and DENIES IN

PART the Official Defendants’ Motion to Dismiss (ECF 26). The Court GRANTS the motion

with respect to all remaining claims and DENIES the motion with respect to Pettibone’s Third

through Sixth claims. The Court ADOPTS IN PART Judge You’s Findings and

Recommendation dated February 26, 2024 (ECF 287). The Court adopts the F&R, supplemented

herein, except with respect to the NIED claims of Plaintiffs David, Obermeyer, and Pettibone.

The Court thus GRANTS IN PART and DENIES IN PART the United States’ Partial Motion to

Dismiss (ECF 256). The Court GRANTS the motion with respect to Plaintiffs David,

Obermeyer, and Pettibone’s claims for NIED, without leave to amend at this time, and DENIES

the motion in all other respects.

IT IS SO ORDERED.

DATED this 7th day of October, 2024.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge