Wendy Daley v. Brenden McKoy ( 2019 )

FILED
NOT FOR PUBLICATION
JUL 10 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY DALEY, No. 18-35540
Plaintiff-Appellant, D.C. No. 3:17-cv-00718-BR
v.
MEMORANDUM*
BRENDEN MCKOY et al., and
ORDER
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted July 8, 2019**
Portland, Oregon
Before: FERNANDEZ, GRABER, and OWENS, Circuit Judges.
Plaintiff Wendy Daley appeals the summary judgment entered against her on
her claims of an unconstitutional arrest, false arrest, and negligence. On de novo
review, and viewing the evidence in the light most favorable to Plaintiff, King v.
County of Los Angeles, 885 F.3d 548, 556 (9th Cir. 2018), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
1. The Defendant Officers had probable cause to arrest Plaintiff because
they had "reasonably trustworthy information sufficient to lead a person of
reasonable caution to believe" that Plaintiff had violated Oregon Revised Statute
section 811.700 by backing into someone else’s vehicle and leaving the scene
without providing her name and insurance information. John v. City of El Monte,
515 F.3d 936, 940 (9th Cir. 2008) (internal quotation marks omitted). We consider
all the circumstances known to the officers at the time of the arrest. Velazquez v.
City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015).1 Plaintiff’s license plate
matched the number reported to the 911 dispatcher, she resembled the person seen
in security footage who reportedly had backed into someone else’s car, and her car
had damage on its rear bumper consistent with having backed into another vehicle.
Certainty is not required to establish probable cause. United States v. Lopez, 482
F.3d 1067, 1078 (9th Cir. 2007). Accordingly, a reasonable jury could not find
that the Defendant Officers lacked probable cause, and summary judgment on
Plaintiff’s 42 U.S.C. § 1983 claim of an unconstitutional arrest was proper.
1
We therefore decline to consider enhanced security footage to which the
Defendant Officers lacked access at the time of the arrest. See John, 515 F.3d at
940 (explaining that the court may not consider facts that became known only after
the arrest).
2
2. Summary judgment also was proper with respect to Plaintiff’s state-law
claims.
(a) Under Oregon law, probable cause to arrest requires that an officer
subjectively believe that the arrested person has committed a crime justifying her
seizure and that the officer’s belief be objectively reasonable in the circumstances.
State v. Miller, 191 P.3d 651, 657 (Or. 2008). The Defendant Officers had
probable cause under state law to arrest Plaintiff for having violated section
811.700. Probable cause to arrest bars a claim for false arrest under Oregon law.
Miller v. Columbia County, 385 P.3d 1214, 1223 (Or. Ct. App. 2016).
(b) We assume, without deciding, that a plaintiff may pursue a state-law
claim of negligence premised on the same facts that underlie a Fourth Amendment
claim of arrest without probable cause.2 Nonetheless Plaintiff’s negligence claim
fails, because the Defendant Officers behaved reasonably by arresting Plaintiff
with probable cause. Not every mistake is actionable. Oregon law did not require
the officers to "eliminate all possible lawful explanations for conduct" that
appeared to violate the law. Id. at 1222 (internal quotation marks omitted).
AFFIRMED.
2
We therefore DENY Defendants’ motion to certify a question to the
Oregon Supreme Court.
3