Unpublished Disposition, 857 F.2d 1477 (9th Cir. 1984)

MEMORANDUM^* 

Plaintiff Harry Davison appeals a summary judgment in an action brought under 42 U.S.C. § 1983 (1982), against several Portland police officers and the City of Portland. We affirm in part, and reverse in part.

On September 3, 1984, Officer Rikki Venemon stopped Davison for making a right hand turn without activating a turn signal. When Officer Venemon approached the vehicle, Davison volunteered that his turn signal was not working and that he used the appropriate hand signal instead. Venemon informed him that hand signals were not allowed after dark.

During the course of the conversation, Officer Venemon asserts that she smelled alcohol on Davison's breath. She asked how much he had had to drink. Davison admitted to having had two or three drinks. She asked him to get out of the vehicle. Davison complied, but tried to explain the use of his hand signal.

Venemon asked Davison to perform several field sobriety tests. Instead of completing the tests, Davison continued to try to explain that he was not drunk. Officer Venemon then advised Davison that she was placing him under arrest for "driving while intoxicated." Davison protested that he was sober. The officer told Davison to put his hands behind his back so that she could handcuff him. Instead, he tried to reason with her. Venemon responded, "you'll do it my way or you'll find your face in the concrete."

Davison continued to try to reason with Venemon, but did not threaten her. She radioed for assistance. Davison states that suddenly, without warning, he was grabbed by the throat. Someone also grabbed his arm and twisted it behind him. He was thrown to the sidewalk, his hair was pulled and his face was pushed into the sidewalk. Someone kicked his side. He was handcuffed, and shoved into the patrol car.

At the police station, Davison was twice administered a breathalyzer test by another officer. Both registered 0.00--no alcohol in the blood stream. Davison was held for an hour, and cited for resisting arrest and for making an improper right hand turn. After being taken by taxi back to his car, he drove to a hospital where he was examined for injury to his neck, wrist, and pain in the back of his head.

He was subsequently found guilty of making an improper right turn, but was not convicted of resisting arrest.

This court reviews de novo a grant of summary judgment. Summary judgment is appropriate only if the pleadings and supporting material, read in the light most favorable to the nonmoving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Kaiser Cement Corp. v. Fischbach and Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.), cert. denied, 107 S. Ct. 435 (1986).

For the purposes of this appeal we assume that Davison is prepared to prove his version of facts regarding the lawfulness of the stop, probable cause to arrest and the use of excessive force.

Davison contends that the initial stop of his vehicle was unlawful, and thus, that the stop deprived him of his right to be free from unlawful detention. This contention is wrong.

Traffic infractions constitute criminal conduct which is sufficient to support a brief investigatory stop. United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985), citing Delaware v. Prouse, 440 U.S. 648, 661 (1979). Officer Venemon claims that she pulled Davison over for failing to use signal lights before making a right hand turn and for an improper lane change after the turn was made.

Under Oregon law, hand signals cannot be used to substitute for signal lights " [d]uring limited visibility conditions." Or.Rev.Stat. Sec. 811.405(1) (a). Oregon defines " [a]ny time from sunset to sunrise" as a " [l]imited visibility condition." Or.Rev.Stat. Sec. 801.325(1). Davison admits, in his affidavit, that when he left the bar, " [t]he sun was down and it was dark."

There is no material dispute on the failure to signal. Since this alone would support the stop, summary judgment on this issue was appropriate.

Arrests without probable cause give rise to a cause of action for damages under Sec. 1983. McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984); see Or.Rev.Stat. 133.310(1) (e) (peace officer may arrest a person if the officer has probable cause to believe that that person has committed the offense of Driving Under the Influence of Intoxicants). Probable cause does not require conclusive evidence of guilt, but only "some objective evidence which would allow a reasonable officer to deduce that a particular individual has committed or is in the process of committing a criminal offense." McKenzie, 738 F.2d at 1008. Venemon claims that she smelled alcohol on Davison's breath when she approached him to discuss the traffic infraction.¹  Davison admitted that he had had two or three drinks. Venemon asked Davison to perform sobriety tests which Davison admits that he failed.

Davison argues that he demonstrated quick responses inconsistent with being under the influence (e.g., use of a hand signal, and pulling over almost immediately after Venemon turned on her lights). Further, he attempts to discount his failure of the sobriety tests by asserting that his failure was due to his attempt to reason with the officer rather than to perform the tests successfully. (He ignores, however, the impact of his attitude toward the officer as evidence of possible inebriation.) He offers the breathalyzer, tests which showed no alcohol in the bloodstream, as evidence that his failure to perform the field tests were not due to intoxication.

However, Davison's alternative explanation of the circumstances, which in retrospect may be true, does not vitiate the existence of probable cause to arrest Davison under the facts known to Venemon at the time she acted. See Baker v. McCollan, 443 U.S. 137, 145-46 (1979) ("The Constitution does not guarantee that only the guilty will be arrested. If it did, Sec. 1983 would provide a cause of action for every defendant acquitted--indeed, for every suspect released."). Even taking the evidence in the light most favorable to Davison, a rational trier of fact could not find that Officer Venemon lacked objective evidence sufficient to reasonably conclude that Davison was driving while intoxicated. See McKenzie, 738 F.2d at 1008. Thus, summary judgment was also appropriate on this issue.

Finally, Davison claims that the officers used excessive force when they arrested him. In determining whether the use of force violated Davison's constitutional rights, the question is whether the facts as alleged would permit a jury to find that the defendants' "conduct 'shocks the conscience' or constitutes force that is 'brutal' and offends 'even hardened sensibilities.' " Rutherford v. City of Berkeley, 780 F.2d 1444, 1446 (9th Cir. 1986), quoting Rochin v. California, 342 U.S. 165, 172-73 (1952).

[A] court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id., quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973).

Taking the evidence in the light most favorable to Davison, these factors weigh in Davison's favor and against summary judgment. Although Davison has admitted to forensic resistance of arrest, he states he did so only to the extent that he continued to attempt to reason with the officer and to convince her that there was no need to arrest him. He claims that he did not advance towards Venemon, nor move away from her, and that he made no physical gestures towards her. These assertions tend to show that he could have been subdued without the use of the force described in his complaint.

Davison claims that he was grabbed by the throat, that his arm was twisted behind him and that he was thrown to the sidewalk. He further asserts that his hair was pulled and his face pushed into the concrete sidewalk, and that he was kicked in the side. Even assuming that some force was needed to restrain Davison, although the record does not so indicate, thus justifying the grab of his throat, the arm twisting and hair pulling, and perhaps even taking Davison to the ground, there seems to have been no reason to further assault him. A jury could find that the kicking and pushing his face into the sidewalk were gratuitous.

The extent of the injury appears slight. Davison states only that he complained to the doctors at the hospital about "a sore neck and arm," sore wrists, "and pain in the back of my head." Nonetheless, this court has not found in similar cases that the fact that a plaintiff suffered only slight injury alone entitles a defendant to summary judgment. See Rutherford, 780 F.2d at 1446 (finding that the plaintiff had met his burden on a motion for directed verdict against him by showing that several police officers threw him to the ground and punched and kicked him, without commenting on the extent of the injury). See also Gregory v. Thompson, 500 F.2d 59, 61-62 (9th Cir. 1974) (holding sufficient a complaint alleging that in response to plaintiff's statement that defendant justice of the peace would have to throw plaintiff out of the courtroom to make him leave, defendant threw plaintiff to the floor, jumped on him and beat him).

The final factor is whether the defendants used force in good faith in an effort to maintain order, or did so maliciously or sadistically. In Allison v. Wilson, 434 F.2d 646 (9th Cir. 1970), cert. denied, 404 U.S. 863 (1971), this court held that a prisoner's allegation that a guard, "after saying 'I will show you some new rules' slammed a steel door shut, hitting Allison on the back, is a sufficient allegation of intentional misconduct." Id. at 647-48. In this case, Officer Venemon stated, "you'll do it my way or you'll find your face in the concrete." Under Allison, this statement is sufficient to show that the defendants' subsequent actions, including throwing him to the ground, pushing his face into the concrete and kicking him were an intentional attempt to inflict injury, rather than a good faith attempt to restrain him.

Weighing all the factors, we find that Davison alleged sufficient facts in his affidavit to allow a rational trier of fact to conclude that the defendants used excessive force on him. Thus, summary judgment was inappropriate.

The order granting summary judgment on the issues relating to the stop, and probable cause to arrest are AFFIRMED. The order granting summary judgment on the excessive force count is REVERSED, and that count is REMANDED for trial.