Urbani v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ELLEN URBANI, NATHANIEL WEST, and Case No.: 3:23-cv-01920-AN

ROWAN MAHER, each individually and on behalf

of all similarly situated individuals,

Plaintiffs, OPINION AND ORDER

v.

UNITED STATES OF AMERICA,

Defendant.

Plaintiffs Ellen Urbani ("Urbani"), Nathaniel West ("West"), and Rowan Maher ("Maher"),

individually and on behalf of all similarly situated individuals, bring this putative class action against

defendant United States of America pursuant to the Federal Torts Claim Act ("FTCA"), 28 U.S.C. § 2671

et seq. Plaintiffs bring claims of negligence and battery based on allegations that defendant's agents harmed

them and putative class members by using teargas, munitions, and other crowd-control methods during the

July 2020 protests in Portland, Oregon.

Defendant moves to dismiss the case for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). After reviewing the parties' filings, the Court finds this matter appropriate for decision without

oral argument. Local R. 7-1(d). For the following reasons, defendant's motion is GRANTED in part and

DENIED in part.

LEGAL STANDARDS

A. Subject Matter Jurisdiction

Federal courts have limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013).

"Absent a waiver, sovereign immunity shields the [f]ederal [g]overnment and its agencies from suit" and

deprives the court of jurisdiction. Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1995). The

government and its agents may therefore challenge a federal court's subject matter jurisdiction under Rule

12(b)(1) on the basis of sovereign immunity. See Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015)

(collecting cases) ("Rule 12(b)(1) is . . . a proper vehicle for invoking sovereign immunity from suit."). A

court must presume "that a cause lies outside this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994) (citations omitted).

A challenge to subject matter jurisdiction "may be facial or factual." Safe Air for Everyone

v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial challenge, "the challenger asserts that the

allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. "In

resolving a 'facial' attack, the court limits its inquiry to the face of the complaint, accepting the plaintiff's

allegations as true." Reedy v. Cloos, No. 6:15-cv-01613-AC, 2016 WL 3360667, at *1 (D. Or. Apr. 18,

2016) (citing Safe Air for Everyone, 373 F.3d at 1039), report and recommendation adopted, No. 6:15-CV-

01613-AC, 2016 WL 3267212 (D. Or. June 8, 2016). In a factual challenge, "the court may review evidence

beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Id.

(citing Green v. United States, 630 F.3d 1245, 1248 n.1 (9th Cir. 2011); Safe Air for Everyone, 373 F.3d at

1039). "Jurisdictional finding of genuinely disputed facts is inappropriate when 'the jurisdictional issue and

substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of

factual issues going to the merits' of an action." Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d

138, 139 (9th Cir. 1983) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)).

B. Failure to State a Claim

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, "a complaint must

contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));

see Fed R. Civ. P. 12(b)(6). A claim is facially plausible "when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Iqbal, 556 U.S. at 678. The court "must accept as true all factual allegations in the complaint and draw all

reasonable inferences in favor of the nonmoving party." Retail Prop. Tr. v. United Bhd. of Carpenters &

Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). "[B]are assertions" that "amount to nothing more than

a 'formulaic recitation of the elements' of a . . . claim . . . are conclusory and not entitled to be assumed

true." Iqbal, 556 U.S. at 681 (quoting Twombly, 550 U.S. at 555).

"In ruling on a [Rule] 12(b)(6) motion, a court may generally consider only allegations

contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial

notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam). A court may also "consider

a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the

document and its authenticity is unquestioned." Id.

BACKGROUND

A. General Allegations

Plaintiffs allege that they participated, alongside putative class members, in protesting

against police violence outside the Hatfield Courthouse in Portland, Oregon in July 2020. Compl., ECF

[1], ¶ 13. On July 1, 2020, federal law enforcement officers and agents were deployed in Portland, where

they allegedly "engaged in crowd-dispersal operations, deploying tear gas and impact munitions well

beyond the immediate surroundings of federal property and with the apparent purpose of quelling lawful

protests in support of Black lives rather than protecting federal property," under direction of then-Acting

Department of Homeland Security ("DHS") Secretary Chad Wolf ("Wolf") and then-Senior Official

Performing the Duties of the DHS Deputy Secretary Kenneth Cuccinelli ("Cuccinelli"). Id. ¶¶ 7, 22. Then-

United States Attorney Billy Williams indicated that the "purpose of the deployment was to protect federal

property and personnel." Id. ¶ 6.

Plaintiffs allege that "[f]ederal agents repeatedly failed to employ de-escalation strategies

or tactics to mitigate violence" and instead "escalated violence on a nightly basis by . . . pursuing protesters,

observers, and journalists through the streets blocks beyond federal property while simultaneously firing

pepper-spray balls, rubber bullets, and other munitions" and "concealing the pathways for protestors to

safely disperse" with tear gas and flashbang devices. Id. ¶ 24. More specifically, they allege that federal

agents "discharged tear gas, less-lethal munitions, and sonic grenades directed at" plaintiffs and other

protestors, who "were exposed to teargas[,]" "shot with sonic grenades and impact munitions," and "beaten

and arrested." Id. ¶¶ 14-15. Plaintiffs also allege that defendant and its agents obtained surveillance

information on plaintiffs and other protesters near the courthouse "from fixed and mobile cameras, cell

phone data, drone footage, and other digital media." Id. ¶ 45.

On July 22, 2020, "federal agents built a chain-link fence around the Hatfield Courthouse

and reinforced it with plywood and concrete blocks[,]" which plaintiffs allege escalated the situation by

permitting agents to fire munitions from the fenced-in portion of the courthouse steps. Id. ¶ 25.

On July 23, 2020, District Judge Michael H. Simon issued a temporary restraining order in

Index Newspapers, LLC v. City of Portland, 474 F. Supp. 3d 1113, 1126 (D. Or. 2020). The temporary

restraining order "exempt[ed] journalists and legal observers from orders to disperse and restrain[ed] the

U.S. Department of Homeland Security and the U.S. Marshals Service from arresting, threatening to arrest,

or using physical force directed against any person who they know or reasonably should know is a journalist

or legal observer." Compl. ¶ 26. Plaintiffs allege that this implies that federal agents should issue crowd

dispersal orders before using crowd-control devices, but that federal agents did not change their behavior

and instead used "excessive force" on plaintiffs and class members. Id. ¶¶ 26, 28.

Plaintiffs allege that throughout the month of July, between approximately 11:30 p.m. and

1:00 a.m. each night, federal agents "emerged from Hatfield Courthouse and fired tear gas and tossed and

launched flashbang grenades into SW Third Street, Lownsdale Park, and SW Fourth Street, sometimes

without any prior warning and regardless of whether there were triggering acts of protestor violence,

property damage, or threats . . . toward federal agents." Id. ¶ 29. The agents, located behind the protective

barriers, would then "fire[] pepper balls through and over the fencing at protestors" and then enter the street,

"shooting protestors with rubber bullets, pepper-spray balls, and other impact munitions regardless of

whether the protesters were engaged in acts of violence, peacefully dispersing or leaving the area, were in

retreat, or were moving away from federal property or standing blocks away[.]" Id. ¶ 30.

On July 29, 2020, Governor Kate Brown ("Brown") announced that she had reached an

agreement with defendant to withdraw all federal agents from the Portland protests by August 4, 2020. Id.

¶ 37. The next day, President Donald Trump announced on Twitter that if Brown couldn't "clear out, and

in some cases arrest the Anarchists & Agitators in Portland . . . the Federal Government will do it for her.

We will not be leaving until there is safety!" Id. ¶ 38. Plaintiffs allege that after this Twitter announcement,

the federal agents increased their use of force. Id. ¶ 39.

B. Individual Allegations

All three named plaintiffs allege that they experienced use of force without any warning or

announcement that they were unlawfully assembled, and without any order to disperse. Id. ¶ 50.

Urbani. Urbani attended the protests on July 24, 2020. Id. ¶ 47. She alleges that she was

exposed to tear gas which caused "pain, discomfort, mental distress, respiratory distress, temporary

blindness, and temporary loss of mobility." Id. She was also "struck in the left foot by impact munitions"

while standing in the protest zone, which broke her big toe. Id. She was additionally "struck by pepper-

spray balls in the head and face causing pain and discomfort." Id. She alleges that at all times she engaged

in lawful and peaceful protest. Id.

West. West attended the protests on July 21, 22, 24, and 25, 2020. Id. ¶ 48. He was

exposed to tear gas which, like Urbani, caused "pain, discomfort, mental distress, respiratory distress,

temporary blindness, and temporary loss of mobility." Id. On July 25, 2020, one or more of defendant's

agents allegedly "fired stun grenades close to [West], which detonated close to him, causing hearing loss,

pain, and disorientation." Id. He alleges that at all times he engaged in lawful and peaceful protest. Id.

Maher. Maher attended the protests on July 21 through 26 and 29 through 30, 2020. Id.

¶ 49. She was exposed to tear gas which too caused her to suffer "pain, discomfort, mental distress,

respiratory distress, temporary blindness, and temporary loss of mobility." Id. She alleges that on July 22,

2020, around approximately 12:30 to 1:00 a.m., she was beaten with a baton by "a federal agent wearing

military camouflage fatigues" while walking away from Lownsdale Square. Id. That same night, between

2:00 and 3:00 a.m., she was allegedly struck in the head by a pepper-spray ball munition while standing on

SW Main Street between 5th and 6th Avenue. Id. She alleges that the munition hit her bike helmet and

remains lodged therein. Id.

C. Procedural History and Class Claims

Plaintiffs filed the complaint on December 19, 2023, alleging claims for negligence and

battery on behalf of themselves as individuals and on behalf of a putative class. Plaintiffs define the putative

class as consisting of:

"[P]eople who, between July 1 and July 30, 2020, lawfully gathered in an area bounded by

SW Taylor St. on the north, SW 2nd Ave. on the east, SW Madison St. on the south, and

SW 4th Ave. on the west (also referred to herein as 'the protest zone') to protest police

violence, who were exposed to teargas or other impact munitions, and who, within two

years of the date of injury filed a Form 95 with the United States."

Id. ¶ 13. Plaintiffs believe that "the class includes at least 162 people." Id. They exclude from the class

the following: "[d]efendant, class counsel and their employees; any judge who sits on this case and their

judicial staff; and any person who has filed a separate claim against the United States for injuries arising

from the protests that occurred in the protest zone during the dates alleged in this action." Id.

Plaintiffs assert the following nine bases for their negligence claim (the "Negligence

Bases"):

"(a) In using tear gas without lawful justification, for the sole purpose of crowd

dispersal, or as a pain compliance tool;

(b) In shooting pepper-spray balls indiscriminately or directly at lawful protestors,

including when those protesters were displaying no violence or resistance, or when

their back was turned while attempting to retreat or obey an order to disperse;

(c) In unreasonably spraying pepper spray for the purpose of inhibiting protestors'

ability to see;

(d) The unreasonably beating of their person with batons, fists, or other weapons;

(e) In arresting protestors and class members without probable cause to do so;

(f) In exploding or detonating grenades in close proximity to lawfully protesting

individuals absent any justification to rebut force, effect a custodial arrest, or

preserve life and safety;

(g) In using and applying a quantum of force that was grossly disproportionate to

[p]laintiffs' mere presence among protesters, journalists, medics, and bystanders in

the vicinity of the Hatfield Courthouse;

(h) In failing to warn of [d]efendant's agents' and employees' intention to use force,

even though it was reasonably feasible for them to do so; and

(i) In failing to train its officers, and in fostering a culture of violence against police

accountability, peaceful protesters like [p]laintiffs and members of the class, even

though it was reasonably foreseeable that [d]efendant's employees and agents

would engage in unreasonable force against protestors, including [p]laintiffs and

members of the class."

Id. ¶ 52. As to the battery claim, plaintiffs allege that "[d]efendant's agents and employees intended to

cause harmful or offensive contact with [p]laintiffs and members of the class, and did in fact cause harmful

or offensive contact." Id. ¶ 55.

On April 25, 2024, defendant filed the instant motion to dismiss, seeking to dismiss

plaintiffs' complaint in its entirety. Def. Mot. to Dismiss ("Def. Mot."), ECF [10].

DISCUSSION

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Defendant seeks partial dismissal under Rule 12(b)(1) for lack of subject matter

jurisdiction. Specifically, defendant argues that (1) the negligent training claim, pled under Negligence

Basis (i), is barred by sovereign immunity; (2) the negligent arrest and pepper spray claims, pled under

Negligence Bases (c) and (e), fail for lack of standing; and (3) the battery claim is barred in its entirety by

sovereign immunity.

1. Negligent Training Claim

Sovereign immunity compels dismissal of plaintiff's' negligent training claim. Defendant,

as well as its agencies and officials, are immune from suit unless defendant waives sovereign immunity.

United States v. Mitchell, 445 U.S. 535, 538 (1980). Pursuant to the Federal Tort Claims Act ("FTCA"),

defendant has waived this immunity for certain claims "for money damages 'for injury or loss of property,

or personal injury or death caused by the negligent or wrongful act or omission'" by a federal employee

acting within the scope of their employment where a claim would otherwise exist under state law. Schurg

v. United States, 63 F.4th 826, 831 (9th Cir. 2023) (quoting 28 U.S.C. § 1346(b)(1)). However, this waiver

is subject to certain exceptions, including the "discretionary function" exception. 28 U.S.C. § 2680(a).

"This exception 'restores the government's immunity in situations where its employees are carrying out

governmental or 'regulatory' duties.'" Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996)

(quoting Faber v. United States, 56 F.3d 1122, 1124 (9th Cir. 1995)).

Courts apply a two-part test to determine whether the discretionary function exception bars

a claim. Schurg, 63 F.4th at 831. First, the court considers whether the government's act or omission on

which the claim is based is discretionary, i.e., whether "it involves an element of judgment or choice."

Berkovitz v. United States, 486 U.S. 531, 536 (1988). This step "is not met where 'a federal statute,

regulation, or policy specifically prescribes a course of action for an employee to follow.'" Terbush v.

United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting Berkovitz, 486 U.S. at 536). If the act or

omission did not involve an element of judgment or choice, there was no discretion, and the discretionary

function exception does not apply. Id. If the act or omission did involve an element of judgment or choice,

the court then asks "'whether th[e] judgment is of the kind that the discretionary function exception was

designed to shield[.]'" Id. (quoting Berkovitz, 486 U.S. at 536-37). Congress created the discretionary

function exception to shield judgments "grounded in social, economic, and political policy." United States

v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 814 (1984). This analysis should not focus

on the "subjective intent in exercising discretion," but rather, "on the nature of the actions taken and on

whether they are susceptible to policy analysis." United States v. Gaubert, 499 U.S. 315, 325 (1991). If

the act or omission was discretionary, "a strong presumption" arises that it was grounded in policy

considerations. Id. at 324. "[A] safety or engineering standard operates to remove discretion under the

FTCA when it is embodied in a specific and mandatory regulation or statute which creates clear duties

incumbent upon the governmental actors." Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1026 (9th

Cir. 1989) (emphases in original). A "general statutory duty to promote safety" is "not sufficient" to remove

discretion. Id.

Defendant argues that the negligent training claim must be dismissed for lack of subject

matter jurisdiction because it is covered by the discretionary function exception. Def. Mot. 12 (all

references to pagination of memorandum in support). Defendant asserts that under the first prong of the

test, plaintiffs "have not met their burden to facially plead a 'negligent training' theory of liability falling

outside the discretionary function exception" because they have not identified any "statute, regulation, or

directive circumscribing how federal officials were required to supervise and train [the] federal

employees . . . in Portland in July 2020." Id. at 14.

Plaintiffs assert that the complaint alleges that "relevant Attorney General guidelines"

required that officers complete certain training "prior to exercising authorities under 40 U.S.C. § 1315," the

statute that authorized defendant to designate and deploy DHS law enforcement agents. Pls. Resp. Opp'n

Def. Mot. ("Pls. Resp."), ECF [17], at 19 (citing Compl. ¶ 24) (all references to pagination of response).

However, the complaint does not contain the language plaintiffs quote, and it appears that plaintiffs seek to

infer that the complaint sets forth such allegation merely by its citation to a report by the Office of the

Inspector General ("OIG") (the "OIG Report"). See id. (citing Compl. ¶ 241). Instead, on this point the

complaint alleges only that, on "information and belief, all or most of the federal agents deployed to

Portland were not adequately trained in the First Amendment rights to assemble and protest, mass

demonstrations, crowd control, or riot control." Compl. ¶ 23. Without allegations describing a statute,

regulation, or policy that prescribes a specific course of action that was not subject to discretion and that

defendant did not take, plaintiffs have not stated a claim over which the Court has subject matter

jurisdiction. Accordingly, the claim for negligent training under Negligence Basis (i) is dismissed, with

leave to amend to correct the deficiencies.

2. Negligent Arrest and Pepper Spray Claims

At this stage, plaintiffs have sufficiently demonstrated standing to bring their negligent

arrest and pepper spray claims under Negligence Bases (c) and (e). To demonstrate standing, "a plaintiff

must show (1) [that they have] suffered an '"injury in fact'" that is "(a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged

action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S.

167, 180-81 (2000) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)).

Defendant argues the negligent arrest and pepper spray claims should be dismissed because

plaintiffs do not allege that they themselves suffered any injuries resulting from the use of pepper spray or

that they were arrested at all, and thus, they lack standing to bring those claims. Def. Mot. 18-20. Plaintiffs

1 For clarity, the Court notes that the complaint cites the OIG Report in a footnote located in paragraph twenty-three,

not twenty-four, of the complaint.

counter that the issue defendant raises is, in actuality, a question of whether plaintiffs are adequate

representatives of the putative class members, and that this question is more appropriately raised at the class

certification stage. Pls. Resp. 31-32 & n.13.

Questions of standing and class certification can blur and overlap. Melendres v. Arpaio,

784 F.3d 1254, 1261 (9th Cir. 2015) (explaining that the distinction between standing and class certification

is not "always easy to discern"). To resolve this tension, the Ninth Circuit has adopted the "class

certification approach." Id. at 1262. Under this approach, if there is a "disjuncture between the injuries

suffered by named and unnamed plaintiffs," the court first addresses whether the named plaintiffs have

standing to bring a claim, and then later, at the class certification stage, addresses whether they are adequate

representatives. Id. at 1261-62 (citation omitted). "Stated differently, '[r]epresentative parties who have a

direct and substantial interest have standing; the question whether they may be allowed to present claims

on behalf of others who have similar, but not identical, interests depends not on standing, but on an

assessment of typicality and adequacy of representation.'" Id. at 1262 (quoting 7AA Charles Alan Wright

et al., Federal Practice & Procedure § 1785.1 (3d ed.)).

Here, plaintiffs allege that the putative class suffered the same kind of injury as those

suffered by plaintiffs, i.e., injuries caused by the negligent use of crowd-control devices and force, but with

slightly different factual bases. There is no distinct cause of action brought on behalf of putative class

members that is not also brought on behalf of the named plaintiffs. Plaintiffs do have standing, individually,

to bring negligence claims against defendant based on the conduct of its agents during the July 2020

protests. Because the unnamed putative class members have similar, but not identical, interests, this matter

is premature and is appropriately raised at the class certification stage.

3. Battery Claim

The battery claim is not barred by sovereign immunity. While the FTCA typically

preserves immunity for intentional torts, Congress has carved out an exception for certain "claims that arise

out of the wrongful conduct of law enforcement officers." Millbrook v. United States, 569 U.S. 50, 52

(2013). This exception, called the "law enforcement proviso," allows suits for, in relevant part, claims

"'arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, [or] abuse of

process'" by "investigative or law enforcement officers." Id. (quoting 28 U.S.C. § 1346(h)). An

"'investigative or law enforcement officer'" is "'any officer of the United States who is empowered by law

to execute searches, to seize evidence, or to make arrests for violations of Federal law.'" Id. (quoting 28

U.S.C. § 1346(h)).

Defendant argues that plaintiffs have not pleaded facts that support the allegation "that their

battery claims arise out of the acts or omissions of investigative or law enforcement officers of the United

States." Def. Mot. 22. Defendant notes that plaintiffs allege that they were struck by munitions and exposed

to tear gas but do not allege who fired the munitions and tear gas. Id. at 22-23.

Plaintiffs allege that federal agents were employed pursuant to an executive order and

enabling statute, under the direction of Wolf and Cuccinelli, with the stated goal of protecting federal

property and personnel. Compl. ¶ 7. Plaintiffs allege that the agents were deployed to the protests that

plaintiffs attended and that the agents used crowd-control methods such as tear gas, less-lethal munitions,

pepper-spray balls, and batons on protestors. Id. ¶ 22. From these allegations, it is plausible to infer that

the persons firing munitions, tear gas, and grenades at plaintiffs were the DHS law enforcement officers

who plaintiffs allege fired munitions, tear gas, and grenades at the protests they attended. Plaintiffs' battery

claim is therefore cognizable under the FTCA because it is covered by the law enforcement proviso.

B. Motion to Dismiss for Failure to State a Claim

Defendant moves to dismiss this action in its entirety for failure to state a claim under Rule

12(b)(6). Specifically, defendant argues that (1) the negligent claim must be dismissed in its entirety

because it is premised on intentional conduct; (2) the negligence claim based on failure to warn, Negligence

Basis (h), fails to meet the pleading standard; and (3) the battery claim must be dismissed for lack of intent.

1. Negligence Claim as Based on Intentional Conduct

To the extent that plaintiffs' negligence claim is based on intentional conduct, it must be

dismissed. Under Oregon law, a plaintiff alleging negligence must show "that the defendant's conduct

created a foreseeable and unreasonable risk of legally cognizable harm to the plaintiff and that the conduct

in fact caused that kind of harm to the plaintiff." Sloan v. Providence Health Sys.-Or., 364 Or. 635, 643,

437 P.3d 1097 (2019); see Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987) (en

banc) ("In short, unless the parties invoke a status, a relationship, or a particular standard of conduct that

creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from [the]

defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a

protected interest of the kind of harm that befell the plaintiff.").

Generally, "intentional conduct . . . cannot support a claim for negligence" under Oregon

law. Wagoner v. City of Portland, No. 3:14-cv-2063-AC, 2017 WL 2369399, at *11 (D. Or. May 31, 2017)

(citing Kasnick v. Cooke, 116 Or. App. 580, 583, 842 P.2d 440 (1992)); see also Kasnick, 116 Or. App. at

583 ("[P]laintiff may not allege facts that necessarily would constitute an intentional tort but then assert

that he can prevail by proving only negligence.").

Defendant argues that plaintiffs fail to state a claim for negligence as to all the remaining

Negligence Bases because the allegations relating to those bases involve intentional use of force and Oregon

law does not recognize a tort for intentional negligence. Def. Mot. 6. Defendant asserts that these claims

are thus more appropriately brought as battery claims. Id. at 7.

Striking someone with a baton, fist, or other weapon is intentional conduct that does not

give rise to a negligence claim. See Pettibone v. Biden, No. 3:20-cv-1464-YY, 2024 WL 4433038, at *8

(D. Or. Oct. 7, 2024) (citation omitted); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1110 (D.

Or. 2013). Similarly, arresting and handcuffing a person is intentional conduct that "cannot support a claim

for negligence." Wagoner, 2017 WL 2369399, at *11. Accordingly, plaintiffs' negligence claim is

dismissed to the extent it is premised on beatings under Negligence Basis (d) and arrests under Negligence

Basis (e).

The allegations of negligence regarding the use of tear gas, pepper-spray balls, pepper

spray, grenades, and generally using force during the protests, however, survive defendant's motion to

dismiss. Plaintiffs are permitted to plead in the alternative and may allege claims for both negligence and

battery. It is plausible that the listed items were used for crowd control purposes, and not with the intent to

cause harmful or offensive contact, and it is also plausible that they were used with the intent to cause

harmful contact. See Pettibone, 2024 WL 4433038, at *8 ("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."). Accordingly, defendant's motion is denied as to the portions of plaintiffs' negligence claim

premised on the use of tear gas under Negligence Bases (a) and (c), shooting pepper-spray balls under

Negligence Basis (b), detonating grenades under Negligence Basis (f), using quantum force under

Negligence Basis (g), and failing to warn under Negligence Basis (h).

2. Negligence Claim Based on Failure to Warn

Plaintiffs have adequately pleaded a negligence claim based on failure to warn. Defendant

argues that plaintiffs have not alleged "any actionable duty to warn under Oregon law by pleading a special

status between the parties or pleading facts showing that a failure to warn unreasonably created a

foreseeable risk of legally cognizable harm[,]" nor that a failure to warn did in fact cause any harm. Def.

Mot. 15. Even if there had been a duty to warn and a harm suffered, defendant asserts that plaintiffs have

not adequately pleaded that defendant failed to issue warnings before the alleged uses of force;

foreseeability; or causation, because there is no allegation that the alleged failure to warn was a but-for

cause of plaintiffs' injuries. Id. at 17-18.

Plaintiffs clarify that they do not allege any special relationship. Pl. Resp. 22. Taking into

consideration the totality of the complaint, and drawing all inferences in favor of plaintiffs, plaintiffs have

stated a plausible claim for negligence under a failure to warn theory. Plaintiffs do allege that the federal

agents should have issued crowd-dispersal orders but failed to do so. Compl. ¶¶ 26, 28. It is foreseeable

that firing munitions, tear gas, or other crowd-control devices into a peaceful protest that has not been

directed to disperse or warned about the potential use of such tools could lead to the kinds of injuries alleged

by plaintiffs. Finally, it is reasonable to infer that the alleged failure to warn about the imminent use of

crowd-control measures and the failure to direct the protestors to disperse caused the protestors to stay in

their location, where they were then struck by munitions, teargas, and other crowd-control devices.

Accordingly, defendant's motion is denied as to the failure to warn basis of plaintiff's negligence claim,

under Negligence Basis (h).

3. Battery

Plaintiffs have also sufficiently pleaded their battery claim. A "battery is a voluntary act

that is intended to cause the resulting harmful or offensive contact." Harris v. Pameco Corp., 170 Or. App.

164, 169, 12 P.3d 524 (2000) (citation modified).

Defendant argues that, except for the allegation that a federal agent struck Maher with a

baton, plaintiffs fail to allege facts to support the assertion that the federal agents intended to injure them.

Def. Mot. 24-26. Defendant asserts that at most, plaintiffs allege an intention to do an act, such as fire

munitions into a crowd, but that they do not allege an intention to make offensive contact with plaintiffs

specifically, such as by firing munitions with the intention of striking plaintiffs. Id. at 25.

As stated above, plaintiffs are permitted to plead in the alternative. Here, drawing all

inferences in favor of plaintiffs, it is plausible that the federal agents intentionally fired munitions, tear gas,

and pepper-spray balls at plaintiffs with the intent to cause harmful or offensive contact. This is supported

by the allegations that the federal agents used tear gas and munitions outside of the immediate surroundings

of the federal property they were deployed to protect and that the agents had the option to use de-escalation

strategies but instead escalated violence. Accordingly, the Court declines to dismiss the battery claim.

CONCLUSION

For the reasons stated herein, defendant's Motion to Dismiss, ECF [10], is GRANTED in

part and DENIED in part. Any amended complaint must be filed within thirty (30) days of this Opinion

and Order.

IT IS SO ORDERED.

DATED this 24th day of September, 2025.

Lhe teemme 4 $SOM

Adrienne Nelson

United States District Judge

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