Johnson v. HANADA

622 F. Supp. 2d 1013, 2008 U.S. Dist. LEXIS 109714, 2008 WL 2329222

• Court: District Court, D. Oregon
• Decided: June 2, 2008
• Docket: 06-CV-1206-HU
• Status: Published

Opinion

OPINION AND ORDER

BROWN, District Judge.

Magistrate Judge Dennis James Hubei issued Findings and Recommendation (# 67) on February 21, 2008, 2008 WL 2329224, in which he recommended this Court grant in part and deny in part Defendants’ Motion for Summary Judgment (#21) and deny Plaintiffs Motion for Summary Judgment (# 36). Plaintiff and Defendants filed timely Objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b).

When any party objects to any portion of the Magistrate Judge’s Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1). See also United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir.1988); McDonnell Douglas Corp. v. Commodore Business Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

I. Factual Background

The Court adopts and summarizes the facts as found by the Magistrate Judge:

On September 22, 2004, at 9:59 p.m., a woman reported her husband had been shot. The location of the shooting was 11370 S.W. Ridgecrest Drive. Defendants Michael Hanada, a City of Beaverton police recruit, and Pam Broeckel, a Beaver-ton police officer assigned as Officer Hanada’s field training officer, went in their marked patrol vehicle to Cresmoor and Hall Boulevard, a location approximately ten blocks from the scene of the crime, and remained there with the engine running. The officers were in uniform.

Plaintiff Robert S. Johnson was taking a walk after celebrating his 57th birthday by having dinner and drinks with his wife earlier in the evening. At approximately 10:00 p.m. after walking for nearly an hour, he approached Hall Boulevard eastbound toward the area where the crime occurred. Plaintiff crossed Hall from west to east, turned northbound, and walked along the sidewalk on the east side in the direction of the patrol car at Cresmoor and away from the crime scene.

From this point in the chronology, the parties’ versions of the events preceding and during the police contact that ensued differ in several material respects.

A. Plaintiffs version of the ensuing events

Plaintiff testified he did not notice the patrol car as he crossed Cresmoor because its lights were off. Although Officer Hanada yelled “Hey” or “Hey, sir” three times in quick succession, Plaintiff did not think the voice was directed at him, so Plaintiff kept walking. Officer Hanada first called out when Plaintiff was about 200 feet past the corner of Cresmoor and called out to Plaintiff again after he had walked another 70-100 feet. It is undisputed that Plaintiff did not respond to Officer Hanada’s calls, that he walked away from Officer Hanada, and that Officer Hanada followed Plaintiff.

After Plaintiff heard the voice yell “Hey!” for the third time, he looked over his shoulder and saw someone with a flashlight approaching him quickly. Plaintiff was startled to see someone coming in his direction in the dark, so he started to walk away as fast as he could. When he realized he could not move as fast as his pursuer, Plaintiff “turned around and prepared to defendant [sic] myself.” The flashlight beam was shining directly into his eyes, and he put his left arm out in front of his face “in an attempt to block the light.” At deposition, Plaintiff testified he raised his right elbow because “I was going to hit him” by putting his elbow in his pursuer’s face. His right hand was in a fist.

Just before Officer Hanada overtook him and the light was about ten feet away, Plaintiff dodged out of the flashlight beam. Officer Hanada stopped about two feet from Plaintiff after Plaintiff “jumped out of the light” and that was when Plaintiff saw Officer Hanada’s insignia and realized he was a police officer.

Plaintiff states he would have been “totally relieved” to know Officer Hanada was a police officer before that point and that he did not have any reason to be concerned about or afraid of the police.

When Officer Hanada announced he was a police officer and told Plaintiff to put his hands up and get on the ground, Plaintiff did not see the gun in Officer Hanada’s hand. When he realized Officer Hanada was a police officer, Plaintiff asked, ‘What the hell are you doing and what do you want?” but Officer Hanada never responded.

At the time Plaintiff got down on the sidewalk, Officer Broeckel was “not anywhere in sight.” Plaintiff did not become aware that Officer Broeckel was present until after Plaintiff got down on the sidewalk and was being handcuffed.

Plaintiff saw Officer Hanada’s light coming toward him after he got down on the sidewalk, and then Officer Hanada immediately “struck, kicked or hit me in the back of my head/neek” causing everything to go black.

Plaintiff was not asked or allowed to get up from the ground on his own. Instead Officers Hanada and Broeckel grabbed his arm 1 and pulled him to his feet, injuring his shoulder.

Eventually Plaintiff was uncuffed. Plaintiff estimated the time between his being stopped by Officer Hanada to the time he was uncuffed was six to eight minutes. Sergeant Shumway had arrived on the scene by the time Plaintiff was being uncuffed and told Plaintiff that he would be arrested and taken to jail if he did not leave immediately.

Plaintiff walked a short distance and then called an employee who lived nearby to come and get him because his legs were weak and he was not sure he could walk home.

B. Defendants’ version of the ensuing events

As Officers Hanada and Broeckel sat in their patrol car, Officer Hanada saw Plaintiff cross Hall Boulevard passing behind the marked patrol car and walking in a northeasterly direction away from the crime scene. The patrol car lights were on.

When he saw Plaintiff walk past, Officer Hanada got out of his car. Officer Broeckel remained in the front passenger seat and radioed in a description of Plaintiff. She then shut off the engine, got out of the car, and locked it. By this time, Officer Broeckel could no longer see Plaintiff and Officer Hanada.

Officer Hanada says he called out, “Hey sir I need to talk to you.” There was no response, so Officer Hanada called out two more times. Plaintiff looked over his shoulder at Officer Hanada and then quickened his pace. Officer Hanada followed Plaintiff on foot, calling out “Beaver-ton Police” or “Beaverton Police Department” and repeating “I need to talk to you about something. Sir, stop.” Officer Hanada also yelled “Person in the gray shirt, stop. Beaverton police. I need to talk to you.” Plaintiff looked at Officer Hanada over his shoulder a second time and walked even faster.

When Officer Hanada stepped out of the car, he intended to stop Plaintiff as a potential witness or suspect in the shooting. Officer Hanada stated he formed a “reasonable suspicion” that Plaintiff was a suspect in the shooting after Plaintiff “quieken[ed] his pace” and again “the moment when he turned around.”

Before Officer Hanada left the car, Officers Hanada and Broeckel learned from dispatch that the homicide suspect was the victim’s son and had left the premises. Sergeant James Shumway testified at his deposition that Officers Hanada and Broeckel did not have any information about the suspect’s age, height or weight, but he could not recall whether they had been given information about the suspect’s gender before they came into contact with Plaintiff.

After Officers Hanada and Broeckel detained Plaintiff and Officer Broeckel radioed in Plaintiffs name, dispatch advised Officers Hanada and Broeckel that the shooting suspect was 19 years old and 5'11" tall. Plaintiff is about 6'2" tall and at that time of the encounter weighed approximately 250 pounds. As noted, Plaintiff was then 57 years old.

Officer Hanada has provided inconsistent versions of what he saw Plaintiff do at the time Plaintiff turned around.

Officer Hanada denies his flashlight was on and stated he was able to discern Plaintiffs actions from street-light illumination. In his Declaration, Officer Hanada states he saw Plaintiffs arm go up from his hip at belt level and Plaintiff pointed his index finger at Officer Hanada with his thumb raised and the three other fingers clenched into a fist. Officer Hanada feared Plaintiff had a gun and interpreted Plaintiffs arm movements as a threat. As a result, he drew his own weapon. Officer Hanada testified at his deposition, however, that Plaintiff threw his hands up in two fists, one about eye level and one at about chin level, “like he could punch you.” Officer Hanada also testified he did not see a weapon in Plaintiffs hands. In his Second Declaration, Officer Hanada states Plaintiff made a “sudden turn to confront me with threatening arm and hand movements coupled with what appeared to be the muzzle of a gun pointed at me.”

Officer Hanada drew his gun, announced he was a police officer, and told Plaintiff to put his hands up and get on the ground. Officer Hanada then ordered Plaintiff several times to raise his hands and get on the ground. Plaintiff initially failed to do so. Officer Broeckel states in her Declaration that she observed Officer Hanada in the process of drawing his weapon and heard him announce, “Beaverton Police. Put your hands up.” Officer Broeckel states she too ordered Plaintiff to put his hands up, which he did and placed himself in a prone position on the sidewalk. Officers Hanada and Broeckel both state Plaintiff was “verbal, but was not physically resisting.” Officer Broeckel also states she did not see Officer Hanada strike or kick Plaintiff in the back of the neck.

. The two officers had begun to handcuff Plaintiff when Plaintiff told them that he had previously injured his left arm or shoulder. Because of the warning about the injury, the officers used two sets of handcuffs. They did a quick pat-down for a weapon, and Officer Broeckel removed a cell phone and a pocket knife from Plaintiffs pockets.

The officers then told Plaintiff to roll over on his side and get up, giving Plaintiff a “steadying hand.”

The officers ran a check on Plaintiffs identification and did not find any outstanding warrants. The officers were given information that indicated Plaintiff was not a match for the suspect. Defendants do not dispute Plaintiff had no prior criminal record and no reason to fear an encounter with the police.

Plaintiff was uncuffed, the items removed from his person were given back to him, and he was told he could leave. In her Declaration, Officer Broeckel stated only ten minutes elapsed from the time Plaintiff was stopped on the sidewalk to the time he was uncuffed and told he was free to leave.

C. Events following the detention

The day after these events, Plaintiff and his wife went to the Beaverton Police Department and- complained to Sergeant Shumway. According to Plaintiff, Sergeant Shumway told them that the City of Beaverton owed Plaintiff a sincere apology for what happened the night before, explained Officer Hanada was in training and “really green,” and promised to look into the officers’ conduct. At the time, Officer Broeckel was qualified to supervise a recruit and Officer Hanada was a certified reserve officer with training on investigatory stops, probable cause, arrest, and reasonable force. Officer Hanada, however, was a recruit in phase one of his training, had not yet attended the Police Academy, and was not a certified police officer.

Plaintiff states he has since had two surgeries as a result of the exacerbation of preexisting shoulder injuries to his neck and shoulder by Officers Hanada and Broeckel.

II. Procedural Background

On August 24, 2006, Plaintiff filed a Complaint in this Court against Officer Hanada, Officer Broeckel, and the City of Beaverton in which he alleges eight claims. Plaintiff brings four claims pursuant to 42 U.S.C. § 1983: 2 (1) Officer Hanada and the City violated his rights under the Fourth Amendment to the United States Constitution to be free from excessive force, (2) Officer Hanada and the City violated his rights under the Fourth Amendment to the United States Constitution to be free from unreasonable seizure, (3) the City of Beaverton failed to properly train its officers, and (4) Officer Broeckel is hable for Officer Hanada’s actions because she was Officer Hanada’s supervisor. Plaintiff brings his remaining claims pursuant to Oregon state law: (5) battery against Officer Hanada and the City, (6) negligence against Officer Broeckel, (7) negligence against Officer Hanada and the City, and (8) false arrest.

III. Officer Hanada’s Individual Liability under § 1983

Defendants contend Officer Hanada is entitled to summary judgment as to Plaintiffs First and Second Claims for unreasonable seizure and excessive force pursuant to § 1983 because Plaintiff failed to allege those claims were against Officer Hanada in his individual or personal capacity. According to Defendants, when a complaint is silent about the capacity of the defendant being sued under § 1983, the court must interpret the plaintiffs claims as against the defendant in his official capacity.

Plaintiff, however, argues the Ninth Circuit interprets complaints that are silent as to the capacity in which officials are being sued under § 1983 to be actions against the defendants in their individual capacities. Plaintiff further contends paragraph three of his Complaint (which provides “[a]t all times material hereto, Defendants Michael Hanada and Pam Broeckel were and are individuals employed by the City of Beaverton in the capacity of Beaverton Police Officers, and at all times herein were operating under color of law”) put Officer Hanada on notice that Plaintiff was bringing his § 1983 claims against Officer Hanada in his individual capacity.

In the Findings and Recommendation, the Magistrate Judge adopted Plaintiffs analysis and recommended denying Defendants’ Motion for Summary Judgment on this basis.

A. Plaintiffs First Claim

As noted, Plaintiff contends the statement in paragraph three of his Complaint is sufficient to provide notice that Plaintiff brought his First Claim against Officer Hanada in his individual capacity. Paragraph three, however, only identifies the parties to the action, and the language Plaintiff relies on is not explicit as to whether Plaintiff is bringing his First Claim against Officer Hanada in his individual capacity and/or official capacity. The Court, therefore, finds Plaintiffs First Claim is ambiguous as to the capacity in which Plaintiff sued Officer Hanada.

The Magistrate Judge agreed with Plaintiff that the Ninth Circuit requires a court to interpret a complaint that is silent as to the capacity in which a defendant is being sued for his conduct as brought against the defendant in his individual capacity. The Magistrate Judge cited to Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir.1999), and Shoshone-Bannock Tribes v. Fish & Game Commission, 42 F.3d 1278, 1284 (9th Cir.1994).

In their Objections to the Findings and Recommendation, Defendants note Romano and Shoshone-Bannock Tribes involve § 1983 actions brought against state actors and/or agencies. The same is true in Price v. Akaka, 928 F.2d 824 (9th Cir. 1991). In Price the plaintiffs brought a § 1983 action against a number of state officials, but the plaintiffs did not specify whether they were bringing the action against the state officials in their individual capacities. 928 F.2d at 828. The Ninth Circuit noted “the basis of the claims asserted and the nature of relief sought imply” the plaintiffs intended to bring the action against the state officials in their individual capacities. Id. (quotation omitted). In all three cases, however, the Eleventh Amendment prohibited the plaintiffs from bringing their claims against the state actors in their official capacities. Under those circumstances, the Ninth Circuit presumed the plaintiffs intended to bring the action against the state officials in their individual capacities because “[a]ny other construction would be illogical where the complaint is silent as to capacity, since a claim for damages against state officials in their official capacities is plainly barred.” Shoshone-Bannock Tribes, 42 F.3d at 1285. Nonetheless, the Ninth Circuit also noted in both Shoshone-Bannock Tribes and Price that the plaintiffs sought damages, and “[djamage actions brought under 42 U.S.C. § 1983 are generally viewed as suits against the individual.” Id. (quotation omitted).

Defendants emphasize Plaintiffs action is against city employees who are not entitled to Eleventh Amendment immunity from actions for damages. See Hyland v. Wonder, 117 F.3d 405, 413-14 (9th Cir. 1997). Thus, even though Plaintiff seeks damages like the plaintiffs in Shoshone-Bannock Tribes and Price, Defendants argue that fact is not determinative here because the individual Defendants are not entitled to immunity from actions for damages under the Eleventh Amendment and, according to Defendants’ reasoning, the Ninth Circuit’s presumption in Romano, Shoshone-Bannock Tribes, and Price should not apply to this case.

Thus, the Ninth Circuit cases relied on by Plaintiff are not necessarily on point because Defendants are city employees who do not enjoy Eleventh Amendment immunity, and the Ninth Circuit did not indicate whether the presumption should apply to claims ambiguously pled against such defendants. Moreover, the cases relied on by Defendants also involve actions against state officials rather than city or municipal employees and, in any event, are not from the Ninth Circuit.

After reviewing the record in its entirety, the Court concludes here, as in Price, “the basis of the claims asserted and the nature of relief sought [by Plaintiff] imply” Plaintiff intended to bring his First Claim against Officer Hanada in his individual capacity. This conclusion is underscored by the fact that Defendants asserted a defense of qualified immunity, which applies only to municipal employees acting in their individual capacities. See, e.g., Kennedy v. City of Ridgefield, 439 F.3d 1055, 1060-61 (9th Cir.2006). Moreover, it is clear Defendants had every incentive and actually developed a record for dispositive motions consistent with potential exposure for a claim brought against Defendant Hanada in his individual capacity. See Jack son v. Hayakawa, 682 F.2d 1344, 1348-1349 (9th Cir.1982). The Court also notes Plaintiff brought a separate claim pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), against the City of Beaverton, seeking to establish the City’s alleged independent liability for acts of Officer Hanada. Because Monell claims most typically are filed in conjunction with and as a means to hold a city liable for the same damages assessed against an employee in his individual capacity, it follows that Plaintiff is attempting to establish that foundational, individual liability against Defendant. In these circumstances, it would be illogical to construe the First Claim as brought against Defendant Hanada only in his official capacity.

In summary and under all of these circumstances, including the absence of any prejudice to Defendants, the Court concludes justice requires the Court to construe Plaintiffs First Claim for excessive force as a claim against Officer Hanada in his individual capacity. Finally, to the extent an amendment of Plaintiffs Complaint under Federal Rule of Civil Procedure 15 may be necessary to formalize this construction of Plaintiffs First Claim, the Court would exercise its discretion to permit such an amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir.2003)(Absent prejudice or a “strong showing” of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, [or] ... futility of the amendment there exists a presumption under Rule 15(a) in favor of granting leave to amend.”).

Accordingly, the Court adopts the recommendation of the Magistrate Judge and denies Defendants’ Motion for Summary Judgment as to Plaintiffs First Claim against Officer Hanada.

B. Plaintiffs Second Claim

In his Second Claim for unreasonable seizure in violation of his rights under the Fourth Amendment, Plaintiff inexplicably alleges “Defendant Hanada, acting under color of law and in his official capacity ... intentionally and unlawfully seized and arrested Plaintiff without a warrant and without probable cause.” Compl. ¶ 11 (emphasis added). Obviously, these specific allegations are at odds with the logical expectation that Plaintiff would also bring his Second Claim against Defendant Hanada in his individual capacity. Nevertheless, for the reasons previously enumerated, including the absence of prejudice to Defendants, the Court concludes justice requires Plaintiffs Second Claim for unreasonable seizure to be construed as a claim against Officer Hanada in his individual capacity.

Accordingly, but for the reasons stated, the Court adopts the recommendation of the Magistrate Judge and denies Defendants’ Motion for Summary Judgment as to Plaintiffs Second Claim against Officer Hanada.

IV. Plaintiffs First Claim: Excessive force in violation of Plaintiffs rights under the Fourth Amendment

In his First Claim, Plaintiff alleges Officer Hanada used unreasonable and excessive force in his encounter with Plaintiff in violation of Plaintiffs rights under the Fourth Amendment of the United States Constitution. The Magistrate Judge recommended denying both parties’ Motions for Summary Judgment as to this claim because there are genuine issues of material fact that preclude summary judgment. This Court agrees.

In their Objections, Defendants concede a genuine issue of material fact exists with respect to Plaintiffs allegation that Officer Hanada kicked or struck Plaintiff in the neck. Nevertheless, Defendants assert they are entitled to partial summary judgment on that part of Plaintiffs excessive-force claim based on the allegation that Officer Hanada displayed his weapon and handcuffed Plaintiff.

All claims of excessive force ... are analyzed under the objective reasonableness standard of the Fourth Amendment as enunciated in Graham and [Tennessee v .] Gamer [471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ]. “Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests . at stake.” Graham [v. Connor ], 490 U.S. [386] at 396, 109 S.Ct. 1865 [104 L.Ed.2d 443 (1989) ] (internal quotation marks omitted). This balancing test entails consideration of the totality of the facts and circumstances in the particular case, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.

Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005).

. [3] As noted, the Court must consider the totality of the circumstances surrounding the detention when deciding the issue of excessive force. The Court, therefore, declines to parse the issue of excessive force as requested by Defendants.

Accordingly, the Court adopts the Magistrate Judge’s recommendation and denies both parties’ Motions for Summary Judgment as to Plaintiffs claim of excessive force.

V. Plaintiffs Second Claim: Unreasonable seizure in violation of Plaintiffs rights under the Fourth Amendment

In his Second Claim, Plaintiff contends Defendant Hanada intentionally and unlawfully seized Plaintiff without probable cause or a warrant in violation of Plaintiffs rights under the Fourth Amendment.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

U.S. Const, amend. IV, § 1.

The Magistrate Judge concluded (1) Officer Hanada’s interaction with Plaintiff did not constitute a Terry stop, (2) Officer Hanada arrested Plaintiff, and (3) a genuine issue of material fact exists as to whether Officer Hanada had probable cause to arrest Plaintiff. Defendants object to each of these conclusions.

A. Defendants had reasonable suspicion to detain Plaintiff

In Morgan v. Woessner, the Ninth Circuit explained:

Stops under the Fourth Amendment fall into three categories. First, police may stop a citizen for questioning at any time, so long as that citizen recognizes that he or she is free to leave. Such brief, “consensual” exchanges need not be supported by any suspicion that the citizen is engaged in wrongdoing, and such stops are not considered seizures. Second, the police may “seize” citizens for brief, investigatory stops. This class of stops is not consensual, and such stops must be supported by “reasonable suspicion.” Finally, police stops may be full-scale arrests. These stops, of course, are seizures, and must be supported by probable cause.

997 F.2d 1244, 1252 (9th Cir.1993) (citations omitted).

In his Findings and Recommendation, the Magistrate Judge concluded there was not any brief, investigatory stop often referred to as a Terry stop because:

[Plaintiff] did not stop until Hanada drew his weapon and ordered [Plaintiff] to the ground — at which point [Plaintiff] had been seized, in the constitutional sense. There is no indication on this factual record that Hanada stopped Johnson and interrogated him briefly. In the absence of a stop, the issue of whether Hanada had a reasonable suspicion to justify such a stop is irrelevant.

1. Officer Hanada’s initial remarks to Plaintiff did not implicate the Fourth Amendment

With respect to police stops for questioning, the Ninth Circuit has explained:

In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). Beginning with Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further.

Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops.

Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 185-86, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (citations omitted).

Here at the outset of the encounter, it appears Officer Hanada sought to ask Plaintiff whether he had any information concerning the shooting that had occurred ten minutes earlier. The evidence does not suggest Officer Hanada suspected at the time that Plaintiff had any involvement in the shooting.

Accordingly, the Court concludes that portion of the interaction in which Officer Hanada called out to Plaintiff saying “Hey” or “Hey Sir” or “I need to talk to you about something. Sir Stop.” does not implicate the Fourth Amendment. See Cal. v. Hodari D., 499 U.S. 621, 625-26, n. 3, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)(Court concluded a “show of authority” such as “yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee ... is no seizure” and rejected the dissent’s contention that Terry “broadened the range of encounters encompassed within the term seizure” to include such an interaction).

2. The encounter became a Terry stop

“The Fourth Amendment ... protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Willis, 431 F.3d 709, 714 (9th Cir.2005) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). Nevertheless, “[s]uch investigatory stops are justified by reasonable suspicion that criminal activity may be afoot.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). “Reasonable suspicion is formed by ‘specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.’ ” United States v. Dorais, 241 F.3d 1124, 1130 (9th Cir.2001) (quoting United States v. Michael R., 90 F.3d 340, 346 (9th Cir.1996)). It requires only “a minimal level of objective justification.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). A court must consider the totality of the circumstances when determining whether reasonable suspicion existed. United States v. Osborn, 203 F.3d 1176, 1181 (9th Cir.2000).

Defendants contend the encounter became an investigatory stop pursuant to Terry “sometime after plaintiff stopped and turned quickly.” The Court agrees. Plaintiff was stopped within the meaning of Terry when Officer Hanada drew his gun, announced he was a police officer, and directed Plaintiff to put his hands up to get on the ground and Plaintiff complied with Officer Hanada’s directions. See, e.g., Hodari D, 499 U.S. at 625-26, 111 S.Ct. 1547 (Court noted “no seizure occurs if a suspect does not yield in response to a show of authority; [rather] seizure ... occurs when either the suspect is physically subdued or submits to the assertion of authority.”).

3. Officer Hanada performed a lawful Terry stop that was justified by reasonable suspicion

“The Fourth Amendment permits limited investigatory stops where there is some reasonable, articulable, and objective manifestation that the person seized is, or is about to be, engaged in criminal activities.” United States v. Smith, 217 F.3d 746, 749 (9th Cir.2000). To determine whether reasonable suspicion existed to justify a brief investigatory stop as described in Terry, “the court must consider the facts available to the officer at the moment of seizure.” Id. (citing Terry, 392 U.S. at 21-22, 88 S.Ct. 1868).

Defendants assert Officer Hanada had reasonable suspicion to detain Plaintiff when Plaintiff turned and made gestures that Officer Hanada interpreted to be threatening. According to Defendants, Officer Hanada had an objectively reasonable basis to believe Plaintiff at that point was committing or attempting to commit a number of crimes under Oregon law such as menacing a police officer, assaulting a public-safety officer, and assault. In their Objections to the Findings and Recommendation, Defendants also assert Officer Hanada had reasonable suspicion at that point to stop Plaintiff in relation to the shooting.

a. Terry stop in relation to the shooting

The record reflects at the time Officer Hanada detained Plaintiff, drew his weapon, and ordered Plaintiff to put his hands up and get on the ground, Officer Hanada had little information as to the description of the shooting suspect and no information as to the suspect’s location. Nonetheless, the shooting occurred only ten minutes before Officer Hanada encountered Plaintiff, and Plaintiff was only ten blocks away from the location of the shooting. As noted, it is undisputed that Plaintiff did not stop in response to shouts from Officer Hanada, who was in uniform and had emerged from a marked patrol vehicle.

The fact that Plaintiff quickened his pace away from the summoning officer and ultimately turned to confront him in a stance suggesting a willingness to fight would, under the totality of these circumstances, lead an objectively reasonable police officer to believe “criminal activity was afoot” and would justify a Terry stop of any such person for the purpose of dispelling such reasonable suspicion. See United States v. Washington, 387 F.3d 1060, 1067 (9th Cir.2004) (“Since the Supreme Court decided Terry, it has expanded the scope of a permissible Terry-stop from simply conducting a weapons pat-down to ‘ask[ing] the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.’ ”)(quoting Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

In Smith the defendant “did not immediately submit to Officer Estes’s show of authority. Instead, he attempted to take evasive action and turn around.” 217 F.3d at 750. The Ninth Circuit found “[e]vasive actions contribute to the totality of circumstances suggesting reasonable suspicion.” Id. (citing Illinois v. Wardlow, 528 U.S. 119, 120, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). In addition, the defendant in Smith “failed to turn around, ... then took a threatening posture.... This was an aberrant response to a facially legal command by a police officer and [also] contributes to a reasonable suspicion criminal activity may be afoot.” 217 F.3d at 750.

As noted, Plaintiff here did not initially submit to Officer Hanada’s requests to stop. In addition, Plaintiff testified he turned towards Officer Hanada and was prepared to defend himself when he did stop. Plaintiff further testified he raised his right elbow because he “was going to hit [his pursuer],” and his right hand was in a fist. In Smith, the Ninth Circuit concluded the defendant’s evasive action and “threatening posture,” together with the fact that the defendant “had been observed looking at a stripped vehicle matching the description of a stolen car and had then left the scene in an ‘expeditious’ manner,” were sufficient reasonable suspicion to justify the investigatory stop. 217 F.3d at 750.

On this record, the Court concludes these facts justified Officer Hanada’s Terry stop of Plaintiff for the purpose of dispelling his reasonable suspicion that criminal activity was afoot.

b. Terry stop for possible violations of Oregon law

Even absent reasonable suspicion related to the shooting incident, Officer Hanada had reasonable suspicion to detain Plaintiff for various crimes under Oregon law (such as menacing or attempted assault) at the time Officer Hanada ordered Plaintiff to put his hands up and to get on the ground and Plaintiff complied.

Under Oregon law, an individual commits the crime of menacing if “by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” Or.Rev. Stat. § 163.190. An individual commits the crime of assault in the fourth degree under Oregon law if he “[intentionally, knowingly or recklessly causes physical injury to another.” Or.Rev.Stat. § 163.160. An individual commits the crime of attempted menacing or attempted assault in the fourth degree if he “intentionally engages in conduct which constitutes a substantial step toward” menacing or assault. Or.Rev. Stat. § 161.405.

Plaintiffs actions as described by Plaintiff himself were sufficient to give rise to “specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion” that Plaintiff was menacing or attempting to menace or to assault Officer Hanada. See United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000). The Court, therefore, concludes Officer Hanada had reasonable suspicion that criminal activity was afoot (i.e., that Plaintiff was at least attempting the crimes of menacing and/or assault in the fourth degree), and his reasonable suspicion justified a Terry stop.

Accordingly,.the Court declines to adopt the Magistrate Judge’s finding that the stop in this case was not a Terry stop and concludes Defendants had reasonable suspicion to stop Plaintiff for brief investigatory purposes pursuant to Terry with respect to Plaintiffs possible menacing or attempted menacing or assault.

B. A genuine issue of material fact exists as to whether the Terry stop was converted to an arrest

Even if justified by reasonable suspicion, Plaintiff contends Defendants’ actions transformed the Terry stop into an arrest without probable cause. In particular, Plaintiff contends Officer Hanada was unreasonable when he drew and pointed his weapon at Plaintiff, made Plaintiff lie down on the sidewalk, handcuffed Plaintiff, and allegedly either struck or kicked Plaintiff in the neck. As noted, Defendants deny Officer Hanada struck or kicked Plaintiff in the neck.

The Ninth Circuit has observed “[t]here is no bright-line rule to determine when an investigatory stop becomes an arrest.” Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.1996).

Rather, in determining whether stops have turned into arrests, courts consider the “totality of the circumstances.” As might be expected, the ultimate decision in such cases is fact-specific.

In looking at the totality of the circumstances, we consider both the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the plaintiffs liberty was restricted and the justification for the use of such tactics, i.e., whether the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the action taken. In short, we decide whether the police action constitutes a Terry stop or an arrest by evaluating not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances. As a result, we have held that while certain police actions constitute an arrest in certain circumstances, e.g., where the “suspects” are cooperative, those same actions may not constitute an arrest where the suspect is uncooperative or the police have specific reasons to believe that a serious threat to the safety of the officers exists. “The relevant inquiry is always one of reasonableness under the circumstances.”

Id. (citations omitted; emphasis in original). See also Halvorsen v. Baird, 146 F.3d 680, 684 (9th Cir.1998).

To determine whether a detention constituted an arrest or merely an investigatory stop, the court may consider whether a reasonable innocent person would have felt free to leave after brief questioning. Allen v. City of Portland, 73 F.3d 232, 235 (9th Cir.1995). Certain circumstances may justify restraint or lengthy detention of a person for whom there is not any probable cause to arrest. Halvorsen, 146 F.3d at 683-84. Such action may be appropriate when the police diligently pursue an investigation that is likely to confirm or to dispel their suspicions of the individual quickly. Halvorsen, 146 F.3d at 684. Police officers also may use intrusive means to effect a stop when the suspect is uncooperative, the stop closely follows a violent crime, or the officers have information that the suspect is armed. Washington, 98 F.3d at 1189. Consequently, a stop is not automatically converted into an arrest when officers point their weapons at a suspect, use handcuffs, and place the suspect in a police car for questioning. Allen, 66 F.3d at 1056. The relevant inquiry is one of reasonableness under the circumstances. Id. at 1057.

Even though a stop is not automatically converted into an arrest by the use of weapons or handcuffs, at some point the degree of force, proximity, and duration of these events can convert a stop into an arrest considering the totality of the circumstances. Compare Gallegos v. City of Los Angeles, 308 F.3d 987, 992 (9th Cir. 2002) (Terry stop not converted into an arrest despite the fact that the officers ordered the plaintiff from the car at gunpoint; handcuffed, frisked, and placed the plaintiff in a patrol car for 45 minutes while officers investigated; and, at the same time, the plaintiff was fully compliant and the officers were not convinced a particularized danger existed) to Washington v. Lambert, 98 F.3d 1181, 1187 (9th Cir. 1996) (Terry stop converted to arrest when police ordered the plaintiffs from their car at gunpoint; frisked, handcuffed, and placed the plaintiffs in patrol cars while officers investigated allegations; and, at the same time, plaintiffs were compliant and the officers had merely a generalized concern that plaintiffs might be armed). See also United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.l990)(there was a “lack of investigatory justification for” handcuffing and making the plaintiff lie on the ground even though he was suspected of drug trafficking because the plaintiff complied with officers and there was not any other evidence to suggest that the plaintiff was “particularly dangerous.”).

Moreover, “[p]olice officers ... ‘need not avail themselves of the least intrusive means of responding to an exigent situation.’ ” Allen v. City of Los Angeles, 66 F.3d 1052, 1057 (9th Cir.l995)(quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994)). “The Fourth Amendment does not mandate one and only one way for police to confirm the identity of a suspect. It requires only that the government and its agents act reasonably.” Gallegos, 308 F.3d at 992 (emphasis in original).

In addition, “[p]olice officers are entitled to employ reasonable methods to protect themselves and others in potentially dangerous situations.” Allen, 66 F.3d at 1056. Police officers can and should take reasonable steps to limit the danger associated with police actions. These steps may include pointing their weapons, use of handcuffs, and moving suspects to patrol cars. Haynie v. County of Los Angeles, 339 F.3d 1071, 1076-77 (9th Cir.2003). See also Gallegos 308 F.3d at 991.

Here Defendants note Plaintiff was stopped for only 6-10 minutes and the police officer had a right to protect himself in this potentially dangerous situation. In fact, neither handcuffing nor the use of guns is de facto unreasonable during a Terry stop. United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982). See also United States v. Alvarez, 899 F.2d 833, 838-39 (9th Cir.1990) {Terry stop not converted into an arrest when officers approached vehicle with guns drawn and ordered defendant to step out of the car). Plaintiff, however, alleges Officer Hanada did more than merely point his weapon at or handcuff Plaintiff: He contends Officer Hanada “struck, kicked or hit [him] in the back of [his] head/neck.” Although all rough handling is not unreasonable, Jackson v. City of Bremerton, 268 F.3d 646, 651-53 (9th Cir.2001), at some point the proximity and duration of pointing a gun, the continued use of handcuffs, and rough treatment can become unreasonable. Robinson v. Solano County, 278 F.3d 1007 (9th Cir.2002)(pointing a gun at suspect’s head constituted unreasonable force when no exigent circumstances existed and defendant was obviously not armed).

On this record, the Court concludes there are disputed issues of material fact regarding the degree of force used by Officer Hanada. The Court, therefore, cannot determine whether the conduct of Officer Hanada in this case converted the Terry stop into an arrest, which would require a showing of probable cause based on the totality of these circumstances.

C. A genuine issue of material fact exists as to whether there was probable cause to arrest Plaintiff

As noted, the Court is unable to determine on this record whether the stop constituted an arrest or a mere detention incident to a stop under the Fourth Amendment. If there was an arrest, Plaintiff has the burden to prove the absence of probable cause. For the reasons already stated, the Court adopts the Magistrate Judge’s finding that genuine issues of material fact exist that preclude summary judgment for either party with respect to the issue of probable cause to arrest.

VI. The Court denies Defendants’ Motion for Summary Judgment as to Officer Hanada’s right to qualified immunity

In their Objections, Defendants assert Officer Hanada is entitled to qualified immunity to the extent that he is being sued in his individual capacity under § 1983 for unreasonable seizure and excessive force with respect to the display of his weapon and handcuffing of Plaintiff.

A. The Law

“Generally officers performing discretionary duties have qualified immunity, which shields them ‘from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.’ ” Haynie, 339 F.3d at 1077(quoting Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “Qualified immunity shields an officer from suit when [he] makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances [he] confronted.” Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004)(citing Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

When analyzing a defense of qualified immunity, a court must first determine whether the facts, taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a constitutional right. Brosseau, 125 S.Ct. at 598 (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). If the court concludes the conduct violated a constitutional right, the court then must determine whether, under the law existing at the time of the conduct, a reasonable officer could have believed his conduct was lawful. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993). See also Brosseau, 125 S.Ct. at 599.

With respect to step one of the analysis, “ ‘[t]he contours of the [constitutional] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Brosseau, 125 S.Ct. at 599 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151). “Because the focus is on whether the officer had fair notice that [his] conduct was unlawful, ... [i]f the law at [the time of the conduct] did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability.” Brosseau, 125 S.Ct. at 599.

B. Analysis

With respect to step one of the qualified immunity analysis, “ ‘[t]he contours of the [constitutional] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Brosseau, 125 S.Ct. at 599 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151). “Because the focus is on whether the officer had fair notice that [his] conduct was unlawful, ... [i] f the law at [the time of the conduct] did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability.” Id.

The Court already has concluded as a matter of law that Officer Hanada had reasonable suspicion to stop Plaintiff. There is, therefore, no further need to evaluate qualified immunity as to the investigatory Terry stop.

As to whether Officer Hanada’s conduct converted this Terry stop into an arrest, taking the facts in the light most favorable to the Plaintiff as directed by Brossecm, the amount of force used by Officer Hanada as alleged by Plaintiff would be beyond the scope of that necessary to effectuate a Terry stop. For example, the Ninth Circuit in United States v. Del Vizo held a Terry stop was converted into an arrest when officers ordered a suspected drug trafficker out of his vehicle, had him lie on the ground, and handcuffed him. 918 F.2d 821, 825 (9th Cir.1990). The court concluded the stop was converted into an arrest based on the fact that the defendant complied fully with all orders and there was “no other evidence suggesting that Del Vizo was particularly dangerous.” Id.

Similarly, the Ninth Circuit in Washington held a Terry stop was converted into an arrest when police ordered the plaintiffs from their car at gunpoint and frisked, handcuffed, and placed the plaintiffs in patrol ears while officers investigated. 98 F.3d at 1192. The court again based its conclusion that the stop was converted into an arrest on the fact that plaintiffs were compliant and the officers had a merely generalized concern that the plaintiffs might be armed. Id. at 1190-91.

Considering these cases as a whole as well as Plaintiffs allegations concerning the degree of force used by Officer Hanada (i.e., that he struck or kicked Plaintiff in the neck), this record does not support a finding that a reasonable officer could have believed such alleged conduct was lawful. Officer Hanada, therefore, is not entitled to qualified immunity on this basis.

Accordingly, the Court adopts the Magistrate Judge’s recommendation that the Court deny Defendants’ Motion for Summary Judgment on the basis of qualified immunity.

VII. Plaintiffs Third Claim: Failure to train in violation of § 1983

In his Third Claim, Plaintiff alleges the City of Beaverton has a policy, custom, or practice of allowing uncertified recruit officers to go on patrol duty before they are properly trained in the law regarding stops, seizures, arrest, reasonable suspicion, and probable cause.

The Magistrate Judge recommended the Court grant Defendants’ Motion for Summary Judgment and deny Plaintiffs Motion for Summary Judgment as to Plaintiffs Third Claim because Plaintiff has not established the existence of a formal municipal policy or longstanding custom or practice that is causally linked to the alleged deprivation of Plaintiffs constitutional rights. The Magistrate Judge also found Plaintiff had not established “Broeckel, Shumway, or [Chief Training Officer Chris] Lamberger are officials with final policy making authority.”

In any event, the record does not support Plaintiffs factual assertion that the City of Beaverton has a policy, custom, or practice of allowing uncertified recruit officers to go on patrol duty before they are properly trained in the law regarding stops, seizures, arrest, reasonable suspicion, and probable cause. In fact, Defendants produced evidence that Officer Hanada received training in stops, reasonable suspicion, arrests, and probable cause. Plaintiff, therefore, has not established a material issue of fact exists as to the City of Beaverton’s municipal liability.

Accordingly, the Court adopts the Magistrate Judge’s recommendation, grants Defendants’ Motion for Summary Judgment on Plaintiffs Third Claim for failure to train, and denies Plaintiffs Motion for Summary Judgment on this claim.

VIII. Plaintiffs Fifth Claim: Battery

In his Fifth Claim, Plaintiff alleges Officer Hanada battered him in violation of Oregon state lav?.

The Magistrate Judge recommended the Court deny Defendants’ Motion for Summary Judgment as to Plaintiffs battery claim because genuine issues of material fact exist as to whether the force Officer Hanada used against Plaintiff was necessary to carry out his duties.

In their Objections, Defendants concede a genuine issue of material fact exists as to whether Officer Hanada kicked or struck Plaintiff in the neck, but Defendants assert they are entitled to summary judgment as to the amount of force used in handcuffing Plaintiff.

The Court declines to parse the issue of battery as requested by Defendants. Plaintiffs battery claim involves all of the elements of the physical interaction between Plaintiff and Officer Hanada. The Court, therefore, must consider the totality of the circumstances.

Accordingly, the Court adopts the Magistrate Judge’s recommendation and denies Defendants’ Motion for Summary Judgment as to Plaintiffs Fifth Claim for battery.

IX. Plaintiffs Eighth Claim: Wrongful detention/false arrest in violation of Oregon law

In his Eighth Claim, Plaintiff alleges Officer Hanada falsely arrested and/or wrongfully detained him in violation of Oregon law.

The Magistrate Judge recommended the Court deny both parties’ Motions for Summary Judgment as to Plaintiffs state-law claim for false arrest. Defendants object to the Magistrate Judge’s recommendation on the ground that probable cause is a complete defense to a claim of false arrest, and Officer Hanada had probable cause to arrest Plaintiff.

To prevail on a claim of wrongful detention/false arrest under Oregon law, a plaintiff must show: (1) deféndant confined the plaintiff; (2) defendant intended the act that causes confinement; (3) plaintiff was aware of the confinement; and (4) the confinement was unlawful. Hiber v. Cred. Collection Serv., 154 Or.App. 408, 413, 961 P.2d 898 (1998) (citation omitted).

The Oregon Supreme Court has made clear that Article I, § 9, of the Oregon Constitution, which prohibits unreasonable search and seizure, is to be interpreted independently of the Fourth Amendment to the United States Constitution. State v. Caraher, 293 Or. 741, 757, 653 P.2d 942 (1982). See also State v. Kennedy, 295 Or. 260, 267, 666 P.2d 1316 (1983) (“Lest there be any doubt about it, when this court cites federal opinions in interpreting a provision of Oregon law, it does so because it finds the views there expressed persuasive, not because it considers itself bound to do so by its understanding of federal doctrines.”). Accordingly, this Court must make a determination separate and distinct from the Fourth Amendment of the United States Constitution as to whether the detention in this case was lawful based on the interpretation by the Oregon courts of the protections under Article I, § 9, of the Oregon Constitution.

Or.Rev.Stat. § 133.005(1) provides an “arrest” is “to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. A ‘stop’ as authorized under ORS 131.605 to 131.625 3 is not an arrest.” “[E]ven when a stop is authorized, a restraint that goes beyond the scope of a stop will result in an illegal arrest, if it is not based on probable cause.” State v. Morgan, 106 Or.App. 138, 141, 806 P.2d 713 (1991) (citation omitted).

This Court has concluded Officer Hanada had reasonable suspicion to stop Plaintiff for brief investigatory purposes, which is allowed under Oregon Revised Statute § 131.605. Nevertheless, a genuine issue of material fact exists with respect to whether Officer Hanada kicked or struck Plaintiff in the neck that precludes summary judgment for either party with respect to whether Officer Hanada’s actions exceeded the scope of the stop. Finally, the fact issues that precluded summary judgment regarding probable cause as to Plaintiffs § 1983 claims require the same result here.

Accordingly, the Court adopts the Magistrate Judge’s Recommendation and denies the parties’ Motions for Summary Judgment as to Plaintiffs Eighth Claim for wrongful detention/false arrest under Oregon law.

X. Those portions of the Findings and Recommendation to which the parties do not object

As to those portions of the Findings and Recommendation to which the parties do not object, including the Magistrate Judge’s Recommendations regarding Plaintiffs failure to allege facts sufficient to establish Officer Broeckel’s supervisory liability under § 1983 and to dismiss Plaintiffs claims against Officers Hanada and Broeckel and the City for negligence, this Court is relieved of its obligation to review the record de novo. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). See also Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8th Cir. 1983). Having reviewed the legal principles de novo, the Court does not find any error in those portions of the Findings and Recommendation to which the parties do not object.

XI. Summary of Rulings:

1. Plaintiffs First and Second Claims will proceed against Officer Hanada in his individual capacity rather than his official capacity. The Court, therefore, denies Defendants’ Motion for Summary Judgment as to these claims.

2. Genuine issues of material fact exist as to Plaintiffs claim of excessive force. The Court, therefore, denies both parties’ Motions for Summary Judgment as to Plaintiffs claim of excessive force.

3. Genuine issues of material fact exist as to Plaintiffs claim of unreasonable seizure. The Court, therefore, denies both parties’ Motions for Summary Judgment as to Plaintiffs claim of unreasonable seizure.

4. Officer Hanada is not entitled to qualified immunity.

5. Plaintiff has not established a genuine issue of material fact exists as to the City of Beaverton’s municipal liability. The Court, therefore, grants Defendants’ Motion for Summary Judgment and denies Plaintiffs Motion for Summary Judgment on Plaintiffs Third Claim for failure to train.

6. Genuine issues of material fact exist as to the issue of battery. The Court, therefore, denies Defendants’ Motion for Summary Judgment as to Plaintiffs Fifth Claim for battery.

7. Genuine issues of material fact exist as to Plaintiffs claim of wrongful detention/false arrest under Oregon law. The Court, therefore, denies the parties’ Motions for Summary Judgment as to Plaintiffs Eighth Claim for wrongful detention/false arrest.

8. The Court does not find any error in those portions of the Findings and Recommendation to which the parties do not object including the Magistrate Judge’s Findings and Recommendation regarding Plaintiffs failure to allege facts sufficient to establish Officer Broeckel’s supervisory liability under § 1983 and to dismiss Plaintiffs claims.

CONCLUSION

For these reasons, the Court ADOPTS as modified Magistrate Judge Hubei’s Findings and Recommendation (# 67). Accordingly, as herein specified, the Court GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment (# 21) and GRANTS in part and DENIES in part Plaintiffs Motion for Summary Judgment (# 36).

IT IS SO ORDERED.

1 . In his Declaration at ¶ 17, Plaintiff refers to his "arm.” In Plaintiffs Response to Defen dants’ Concise Statement of Fact at ¶ , Plaintiff refers to his "arms” even though he cites to his Declaration at ¶ 17.

2 . Plaintiffs only direct allegations of § 1983 liability against the City appear in his Third Claim pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because the City cannot be liable on the basis of respondeat superior for any constitutional violation by Officer Hanada based on Claims One and Two, the Court concludes these two claims are only against Officer Hanada. Monell, 436 U.S. at 691-94, 98 S.Ct. 2018 (1978). See also Rise v. State of Oregon, 59 F.3d 1556, 1563 (9th Cir.1995).

3 . The Court notes Or.Rev.Stat. §§ 131.605-131.625 describe stops based on reasonable suspicion rather than arrests.