Birkes et al v. Tillamook County et al, No. 3:2009cv01084 - Document 47 (D. Or. 2011)
Court Description: OPINION and ORDER - Defendants' Motion for Partial Summary Judgment 26 on Preston's claims for unlawful seizure and conversion of Chopper is GRANTED. Based on Plaintiffs' concession that they are unable to assert claims under the Four teenth Amendment and that only the County can be held liable on the common law claims, Defendants' motion for summary judgment on these claims are GRANTED as well and Plaintiffs are ordered to file an amended complaint removing these claims. Dated this 10th day of May, 2011, by U.S. Magistrate Judge John V. Acosta. (peg)
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UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION Case No.: 09-CV-I084-AC TYLER BIRKES and SCOTT PRESTON, OPINION AND ORDER Plaintiffs, v. TILLAMOOK COUNTY, by and through the Tillamook County Sheriff s Office, a municipal corporation of the State of Oregon, a political subdivision of the State of Oregon, and JAMES HILL, in his individual and official capacity, Defendants. ACOSTA, Magistrate Judge: Opinion This lawsuit is the outcome of an interaction between plaintiffs Tyler Birkes ("Birkes") and Scott Preston ("Preston")(collectively "Plaintiffs"), and defendant James Hill ("Hill"), who was Page 1- OPINION AND ORDER {SIB} acting in his capacity as a Deputy of the Tillamook County Sheriffs Office, in a campground in Tillamook County (the "County"). During the interaction, Hill shot and killed Preston's pit bull Chopper ("Chopper"), and allegedly shot at Birkes as well. Plaintiff filed this action against Hill and the County (collectively "Defendants") asserting constitutional claims for unlawful arrest and seizure of Birkes and Chopper and umeasonable use of force against Birkes, and common law claims for the assault of Birkes and conversion of Chopper. Defendants move for partial summmy judgment asseliing that: I) the killing of Chopper was lawful or, in the alternative, protected by qualified immunity; 2) Plaintiffs are unable to state claims for constitutional violations under the FOUlieenth Amendment; 3) only the County is liable on common law claims if Hill was acting in the course and scope of his employment; and 4) Preston is unable to suppOli his common law claim for conversion of Chopper. Plaintiffs concede that they are unable to assert claims under the Fourteenth Amendment and that only the County can be held liable on the common law claims. Accordingly, Plaintiffs are ordered to file an amended complaint without these claims. In light of Plaintiffs' concessions, the only matters remaining before the court are Preston's claims based on the shooting and death of Chopper. The couli finds that Hill reasonably believed he was in imminent danger of physical injury at the time he shot Chopper and that Defendants are entitled to summmy judgment on Preston's unlawful seizure and conversion claims. Preliminwy Procedurallv!alfers The evidence presented in suppOli of or in opposition to a motion for summmy judgment must be based on personal knowledge, properly authenticated and admissible under the Federal Rules of Evidence. FED. R. Cry. P. 56(c)(4). "The requirement of authentication * * * as a condition Page 2- OPINION AND ORDER {SIB} precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." FED. R. EVlD. 90l(a). Evidence that is not properly authenticated will not be considered by the court when reviewing a motion for summary judgment. Orr v. Bank ofAmerica, 285 F.3d 764, 773 (9th Cir. 2002). Plaintiffs offered excerpts ofthe depositions of Birkes, Preston, and Hill. Birkes and Preston identified the excerpts of their respective depositions in their declarations and Plaintiffs' counsel identified the excerpts of Hill's deposition in her declaration. The Birkes excerpts identify Birkes as the deponent on the top of the page but do not identify the action or include a signed reporter's celiification. The Preston excerpts identify the case and Preston as the deponent on the top of the page but do not include a repOlier's certification. The Hill excerpts contain no identification of the patiy being deposed 01' the action for which the deposition is being taken and do not include a repOlier's certification. The Ninth Circuit stated in Orr that: A deposition or an extract therefrom is authenticated in a motion for summary judgment when it identifies the names of the deponent and the action and includes the repOlier's certification that the deposition is a true record of the testimony of the deponent. See Fed. R. Evid. 90l(b); Fed. R. Civ. P. 56(e)1 & 30(f)(l). Ordinarily, this would be accomplished by attaching the cover page of the deposition and the repolier's certification to every deposition extract submitted. It is insufficient for a patiy to submit, without more, an affidavit from her counsel identifying the names of the deponent, the repolier, and the action and stating that the deposition is a "true and correct copy." Such an affidavit lacks foundation even if the affiant-counsel were present at the deposition. Orr, 285 FJd at 774 (footnote and case citations omitted). Clearly, Plaintiffs' deposition excerpts are not properly authenticated under the requirements set forth in Orr. IThe Ninth Circuit referenced the version of Rule 56(c)(4) in effect at that time. Page 3- OPINION AND ORDER {SIB} Defendants, however, have offered and properly authenticated excerpts from the depositions of Birkes and Hill, thereby providing the basis for their admissibility. In 01'1', the Ninth Circuit held that: when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity. Orr, 285 FJd at 776. The deposition excerpts offered by Plaintiffs from the Birkes deposition are consistent, both in content and appearance, with the properly authenticated excerpts offered by Hill. While the deposition excerpts from the Hill deposition do not contain any identifying features, it is clear from comparing the excerpts offered by both parties that the excerpts are from the same deposition. Accordingly, Plaintiffs' excerpts from the Birkes and Hill depositions are properly authenticated tln'Ough Defendants' submissions. Defendants did not offer any excelJlts of the Preston deposition. Therefore, the excelJlts submitted by Plaintiffs from the deposition of Preston are not properly authenticated or admissible. Consistent with its practice in prior cases in which a P31ty has failed to properly authenticate deposition exCelJlts, including Chao v. Westside Drywall, 709 F. Supp. 2d 1037 (D. Or. 2010), and Kesey v. Francis, No. CV. 06-540-AC, 2009 WL 909530 (D. Or. April 3, 2009), this court strikes the Preston deposition excerpts and will not consider them in this Opinion. In their reply brief, Defendants assert relevance objections to a large portion of the evidence offered by Plaintiffs. At the summ31Y judgment stage, the court must look at the evidence presented to it by the p31ties and, initially, determine if there is a genuine issue of material fact. While engaging in this task, the COUlt must necessarily apply the underlying summ31Y judgment standard when it encounters evidence that is irrelevant, speculative, ambiguous, argumentative, or constitutes Page 4- OPINION AND ORDER {SIB} a legal conclusion exclusively within the purview of the court's consideration. See Burch v. Regents ofUniv. ofCalifornia, 433 F. Supp. 2d 1110, 1119 (E.D. CaI2006)(noting that various evidentiary objections, such as relevance, were redundant at the summmy judgment stage where the court can award summary judgment only in the absence of a genuine issue of material fact based on evidence the contents of which must be admissible). It is a waste of the couli's time to analyze Defendants' objections to the evidence on any of these grounds independently of its consideration of the merits ofthe underlying summmy judgment motion. Accordingly, these issues will not be independently addressed but will be considered in conjunction with the summmy judgment determination. Background In late June, 2008, Plaintiffs, along with several friends and Chopper, were camping in a County forest. (Birkes Dec!. ~ 2.) On June 22, 2008, Hill, who was then on duty, received a complaint from another camper that several campers staying at an adjacent campsite were driving ATVs through her campsite at all hours the previous night. (Hill Dep. 10:8-18, 19:23-20:1.) While talking with the camper, Hill heard, and then saw, three ATVs traveling on the highway. (Hill Dep. 10: 19-21.) Hill drove to where ATVs were parked, parked his truck, and stmied walking to a point where he could see down into Plaintiffs' campsite. (Hill Dep. 20:7-11, 27:19-28:5, 33:18-23.) The pmiies' versions of what happened next differ dramatically. Hill testified that as he approached the campsite, he saw one male walking down into the campsite and several more people gathered around a car. (Hill Dep. 35:25-36:9). At this point, Hill saw Chopper, who was unleashed, walk around to the front of the car and stop between two males. (Hill Dep. 36:15-17, 37:7-9.) Hill identified himself as a deputy and instructed the group to control the dog. (Hill Dep. 37:9-10.) One male tried to grab Chopper as he stmied moving up the hill Page 5- OPINION AND ORDER {SIB} toward Hill, who was backing away from Chopper. (Hill Dep. 38:2-4, 14-18.) Hill ordered the group once or twice more to control Chopper (Hill Dep. 38:22-39:4) Hill stated that Chopper was approaching him fast, at a dead lUn, growling, with the hair on his back standing up and his teeth showing. (Hill Dep. 41 :21-42:14.) He drew his weapon when Chopper was ten to fifteen feet away from him (Hill Dep. 42: 18-20.) Then, as Chopper came within one to two feet of his left thigh, Hill used his left hand to push Chopper away from him, felt Chopper's lips on the back of his hand, pulled his right hand around, and shot twice2 down at Chopper in into the ground. (Hill Dep. 46:814,47:13-16.) Hill explained that he fired because he considered Chopper to be capable of serious physical injUly and was in fear that Chopper was going to bite him. (Hill Dep. 53:14-20.) Birkes testified that he was near a fallen log and was cleaning up after lunch, and that he stalted walking up the hill toward Hill when he saw him approaching and asked if there was a problem. (Birkes Dep. 76:4-7; 91: 1-24.) At this point, Birkes was between Hill and the car. (Birkes Dep. 90:23-92:8; 94: 1-25; Edenhofer Dec!. Ex. 4.) Birkes stated in his declaration that Chopper was walking toward Hill and was not exhibiting any threatening behavior but testified in his deposition that Chopper was both walking and running toward Hill. (Birkes Dec!. ~ 5; Birkes Dep. 76: 13-15; 107:8-12.) Hill drew his firearm on Birkes as Chopper reached Birkes and brushed his leg. (Birkes Dep. 76:7-15.) Birkes noticed Hill was looking at Chopper, who was having a "negative reaction" to the sound of Birkes' voice and the drawn weapon, and asked Hill to not shoot Chopper but to let him get Chopper. (Birkes Dep. 76:15-17; 107:8-12.) Hill ordered Birkes once or twice to get Chopper and as Birkes was bending down to get Chopper, Chopper bolted and started rmming to the right. (Birkes Dep. 76: 19-22; 102: 17-24.) Birkes dove in attempt to grab Chopper but missed and 2 A necropsy revealed that only one bullet hit Chopper. (Bimows Dec!. Ex. 3.) Page 6- OPINION AND ORDER {SIB} when he looked up, he was staring down Hill's gun. (Birkes Dep. 76:22-25.) Birkes "covered up" and heard Hill fire his gun. (Birkes Dep. 77:1-2.) Birkes stated the bullet barely missed him and he thought Hill was trying to kill him. (Birkes Dec!. ~ 5; Birkes Dep. 94:7-10.) Birkes saw Chopper come at Hill after the first shot, Hill push and knock over Chopper, and Hill fire his gun at Chopper. (Birkes 84:9-25; 10:21-23; 104:2-7,22-23.) Chopper was on his feet facing Hill about six or seven feet away from Hill when he was shot. (Birkes 84:9-11, 23-25; 106:2-3.) Hill then backed up to his truck, got inside, and waited for backup. (Birkes Dec!. ~ 7.) Birkes, Preston, and others got Chopper into a car and attempted to leave to get help for Chopper but were stopped by officers seeking information from evelyone at the scene. (Birkes Dec!. ~ 7.) After providing their names, the officer allowed them to leave but Chopper died in the car shortly thereafter. (Birkes Dec!. ~ 7.) Birkes testified in his deposition that Chopper hated guns and likely ran at Hill because he was "freaked out" by the first gun shot. (Birkes Dep. 104:2-6; 108:17-109:4.) He also stated he thought Choppel' jumped at Hill after the first shot, which caused Hill to backhand and then shoot Chopper. (Birkes Dep. 84:23-85:9.) However, Birkes stated in his declaration that Chopper merely circled behind Hill and never growled, snarled, or demonstrated any aggression toward Hill. (Birkes Dec!. ~ 6.) Other individual present at the campsite stated that Hill did not identifY himself as a police officer and that while Chopper ran toward Hill, he was not being aggressive in any way. (Preston Dec!. ~ 5; Gutierrez Dec!. ~ 3; Hmienberger Dec!. ~~ 2-3.) Legal Standard Summmy judgment is appropriate where the" movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIY. P. 56(a) (2010). Summmy judgment is not proper if material factual issues exist for tria!. Warren v. Page 7- OPINION AND ORDER {SIB} City a/Carlsbad, 58 F.3d 439,441 (9th Cir. 1995). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Ifthe moving party shows the absence of a genuine issue of material fact, the nomnoving party must go beyond the pleadings and identifY facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture 01' conclusOlystatements. Hernandezv. Spacelabs lvfedical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against "a patty who fails to make a showing sufficient to establish the existence of an element essential to that patiy's case, and on which that patiy will bear the burden of proof at trial." Celotex, 477 U.S. at 322. The court must view the evidence in the light most favorable to the nomnoving party. Bell v. Cameron }vfeadoJlls Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving patiy. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn, summaty judgment is inappropriate. Sankovich v. Life Ins. Co. a/North America, 638 F.2d 136, 140 (9th Cir. 1981). However, deference to the nomnoving patiy has limits. A party asserting that a fact cannot be true or is genuinely disputed must support the assertion with admissible evidence. FED. R. CIY. P. 56(c) (2010). The "mere existence of a scintilla of evidence in support of the [patiy' s1position [is1insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier offact to find for the nonmoving party, there is no genuine issue fOl'trial." lvfatsushita Elec. Indus. Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, Page 8- OPINION AND ORDER {SIB} 587 (1986) (internal quotations marks omitted). Disclission Preston alleges that Hill violated his Fourth Amendment right to be free from unlawful seizure of his property. In support of this claim, Preston alleges that Hill's actions umeasonably ."precipitated" the shooting and death of Chopper. (Compl.'; 36.) Preston also asselis a claim for common law conversion based on Hill's exercise of dominion and control over Chopper and the resulting interference with Preston's right to control and enjoy his propeliy. (Compl.'; 48.) Defendants move for summmy judgment on both claims arguing that the facts presented do not support either claim. In the alternative, Defendants assert that Hill is entitled to qualified immunity on Preston's FOUlih Amendment claim. I. Unlawful Seizure The Fourth Amendment protects the "right ofthe people to be secure in their persons, houses, papers, and effects, against umeasonable searches and seizures." A "seizure"of propeliy occurs whenever "there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook COllnty, Ill., 506 U.S. 56, 61 (1992). The destmction of propeliy, including the killing of a dog, is considered "meaningful interference" and qualifies as a seizure under the FOUlih Amendment. Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other grounds, Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002). To succeed on a FOUlih Amendment claim for unlawful seizure, a plaintiff must not only show that a seizure occurred, but also that the seizure was umeasonable. Brower v. County ofInyo, 489U.S. 593,599 (1989). A cOUli must consider the totality ofthe circumstances and balance "the nature of the quality and quantity of the intmsion on the individual's FOUlih Amendment interests Page 9- OPINION AND ORDER {SIB} against the countervailing governmental interests at stake" to determine whether the force used to effect a particular seizure was reasonably necessaty. Graham v. Connor, 490 U.S. 386, 396 (1989)(internal quotations and citation omitted). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncel1ain, and rapidly evolving - about the amount of force that is necessary in a particular situation." ld. at 396-97. Fourth amendment claims are reviewed for objective reasonableness because the subjective intent of the defendant is irrelevant. Brower, 489 U.S. at 599. The primaty governmental interest to be considered in a Fourth Amendment claim based on the shooting of a dog is the safety of the officer. San Jose Charter of the Hells Angels j\;fotorcycle Club v. City of San Jose, 402 F.3d 962, 977 (9th Cir. 2005)(governmental interest of safety may provide "sound justification" for officer's conduct in shooting dog). Where danger is unexpected and imminent, or dogs are allowed to run free, unleashed, uncontrolled, and unsupervised, the balance tips in favor of the governmental interest. Id. (had officers been surprised by presence of dogs, safety may justify shooting); Hatch v. Grosinger, No. Civ.01-1906(RHKfAJB), 2003 WL 1610778, at *5 (D. Minn. March 3, 2003)("The balance of these interests depend on whether an objectively reasonable officer in the position of Deputy Grosinger could conclude that the Hatches' dog posed an imminent tm·eat."); Altman v. City of High Point, 330 F.3d 194, 205 (4th Cir. 2003)("When a dog leaves the control of its owner and runs at lat'ge in a public space, the governnlent interest in controlling the atlimal and preventing the evils mentioned above waxes dramatically, while the private interest correspondingly wanes."). On the other hand, "the private Fourth Amendment possessOly interests are obviously stronger when, although the dog is unleashed, Page 10- OPINION AND ORDER {SIB} the owner is nearby and attempting to assert control over the dog." Id. at 207. The facts viewed in the light most favorable to Preston are that Hill approached the campsite and first became aware of Chopper, an unrestrained pit bull, when the dog walked from behind a car and stopped between two males. Birkes approached Hill and started a conversation. At this point, Chopper, having a negative reaction to the unholstered gun and the tone of Birkes' voice, moved toward Hill. Hill directed the group to "get" Chopper two or three times but, despite attempts to grab him, Chopper eluded capture and continued to move quickly toward Hill. Chopper became agitated when Hill fired the first shot and "came at" Hill causing Hill to push him to the ground with his left hand. When Chopper, who was six or seven feet from and facing Hill, regained his footing, Hill shot him and Chopper later died. These facts are substantially similar to those presented in Warboys v. Proulx, 303 F. Supp. 2d III (D. Conn. 2004), in which the court found the killing of the dog to be reasonable. In Warboys, three officers and a trained police canine were in a parking lot allowing the police canine to identify a scent that might have been that of the fleeing car theft suspect they were tracking. Id. at 113. The officers saw a young male leaving an adjacent residence and advised him to return to the residence for safety reasons. Id. at 114. Blitz, the family pit bull, who weighed about ninety-five pounds, escaped through the open door and moved toward one officer and the police canine. The young male attempt to grab Blitz as he went by but missed and then yelled to the officers that Blitz wouldn't hurt them. As Blitz approached the officer, he unholstered his gun, shot and killed the dog. Blitz was five to ten feet from the officer at the time he was shot. The whole event occurred in about five seconds. Id. On summmy jUdgment, the court accepted the following additional facts offered by the Page 11- OPINION AND ORDER {SIB} plaintiff as true. Blitz was not barking or growling but rather emerged from the house in a friendly manner wagging his tail and was a gentle, loving pet that had never attacked an animal or human. Id. The court then held: Based on the undisputed facts recited above, when taken in the light most favorable to Warboys, Proulx acted reasonably in shooting Blitz. An officer who encounters a 90- to 100- pound pit bull dog - a dog which is demonstrably not able to be restrained by its owner or guardian and which is approaching the officer at a rate of 6 feet per second and is at a distance of no more than ten feet - does not act unreasonably in shooting the dog in order to protect himself and his canine companion. The court acknowledges that Blitz may indeed have approached the officer and his police canine merely to greet and sniff them or to receive a friendly pat o.n the head.. At the same time, however, the court notes that had Proulx refrained from shooting the pit bull when he did and had Blitz's behavior turned out to have been hostile, it would have been too late for Proulx to use his firearm safely in order to defend himself and his police dog. Had Proulx refrained from shooting and instead had to defend himself from Blitz by other means in close range attack, the risk or serious injUly or death to him and his canine would have been considerable. Based on these facts, this court concludes that the law did not require Proulx to wait until the approaching animal was within biting distance or was leaping at him before taking protective action. The fact that the approaching dog was a pit bull is another factor that SUPPOltS the COUlt'S conclusion that it was objectively reasonable for Proulx to have responded to the situation as he did. The law simply does not require a reasonable officer in Proulx's circumstances to have used less force to protect himself, his police dog, and the officers standing nearby. Id. at 117-19 (citations and footnotes omitted). The comtrelied, at least in part, on the fact that Blitz was a pit bull, that pit bulls are a dangerous breed, and that their aggressiveness may be undetectable. Id. at 118 n.13. Two years later, the same court found an officer acted reasonably in shooting a sixty-pound dog who, while running in circles, was advancing toward the officer at a rate of three feet per second over a five second period, when the dog was fifteen feet away from the officer. Dziekan v. Gaynor, Page 12- OPINION AND ORDER {SIB} 376 F. Supp. 2d 267, 271-272 (D. Conn. 2005). The court concluded that "[i]n light ofthe important interest in the defendant's self-protection, and the split-second decision-making required, the seizure was not an umeasonable intrusion on plaintiffs Fourth Amendment rights." Id. at 272. The district court in these cases relied on language from San Jose Charter and Fuller, both opinions from the Ninth Circuit, in which the court held the officer actions were not reasonable tmder the circumstances. The Ninth Circuit cases are easily distinguishable from the Connecticut cases and the case at hand. In San Jose Charter, the dogs were killed during the execution of search warrants that had been issued at least a week prior to the operation. San Jose CharIer, 402 F.3d at 968-69. The Ninth Circuit held that because the officer knew ofthe dogs and had an opportunity to devise a plan to immobilize the dogs, the killing of the dogs was umeasonable. Id. at 977. No such preplanning was possible in either the Connecticut cases or the case at hand. The evidence presented by the plaintiff in Fuller established that at the time ofthe shooting, the plaintiffs were in their front yard with their dog and that the dog merely stood as officers approached. Fuller, 36 F.3d at 66. The court held that this evidence was sufficient to foreclose summary judgment on the Fourth Amendment claim. Id. at 68. The dogs at issue in this and the Connecticut cases were approaching the officers at a brisk pace, not standing in their own yard with their owners close by. Here, Hill was faced with a pit bull moving toward him in a rapid manner which the dog's guardian could not restrain. Under Warboys and Dziekan, these facts are enough to establish that Hill acted reasonably. However, the evidence also establishes Chopper was agitated, that he "came at" Hill, and that he was quickly back on his feet and five feet away from Hill when Hill shot him. Based on this scenario, the court finds Hill reasonably believed he was in imminent danger of physical il\iUlY from Chopper at the time he fired his weapon at the dog. Accordingly, Hill's actions Page 13- OPINION AND ORDER (SIB) did not violation Preston's F oUlih Amendment rights. Hill's motion for summary judgment on this claim is granted. 3 Preston argues that Hill provoked Chopper when he pointed his gun and shot at Birkes and, therefore, created the need to use deadly force on Chopper. The Ninth Circuit has held that if "an officer intentionally orrecklessly provokes a violent response, and the provocation is an independent constitutional violation, that provocation may render the officer's otherwise reasonable defensive use offorce unreasonable as a matter oflaw." Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002). In Billington, an officer was engaged in hand-to-hand combat with a suspect resisting arrest and attempting to gain possession and control of the officer's gun when he shot and killed the suspect. Id. at 1180-1181. The personal representative of the decedent filed an action asserting an excessive force claim against the officer. The plaintiff argued that while the officer may have acted reasonably in shooting the decedent, the officer's tactical errors, such as initiating a stop while in plainclothes with his family in an unmarked car, approaching the suspect with a flashlight and his gun occupying both hands, attempting to asceliain the extent of injuries to the suspect who had run his car off the road before backup arrived, and not wearing his duty belt with spray, handcuffs, holster and baton, created the need to use deadly force and made such force unreasonable. Id. at 1186. The court rejected the argument, holding that the evidence did not establish that the officer provoked the attack by the suspect and that none of the officer's tactical errors "could be deemed intentional or reckless, much less unconstitutional, provocations .... " Id. at 1191. In the second case relied on by Preston, police officers, who were assisting in the execution 3As the court has detemuned there was no constitutional violation, it need not, and will not, address whether Hill is entitled to qualified immunity. See Pearson v. Callahan, 555 U.S. 223 (2009) Page 14- OPINION AND ORDER {SIB} of a forcible enlly wal1'ant issued to the public health department to inspect the property for code violations, stormed the property and shot and killed the resident. Alexander v. City and County of San Francisco, 29 FJd 1355, 1358 (9th Cir. 1994). The resident, a mentally ill, elderly, half-blind recluse who had previously threatened to shoot anyone who entered the property, fired his gun when seven officers, five with guns drawn, broke down his door and entered his residence. Id. at 1358, 1366. The officers retumed fire and killed the resident. Id. at 1358. The executor of the decedent's estate asserted an excessive force claim against the officers arguing that the officers violated the decedent's fourth amendment rights when they entered the house to atTest him without an arrest warrant and that the such action created the situation that caused the decedent to react aggressively. Id. at 1360, 1366. The court denied the officers' motion for summary judgment on this claim finding that a genuine issue of material fact existed with regard to the officers' purpose in storming the house and whether the force used was reasonable to effect that purpose. Id. at 1366. These cases are distinguishable from that currently before the COllli. Here, Plaintiffs allege that Hill violated Birkes' Fourth Amendment rights when he drew his weapon on and allegedly fired at Birkes, and assert that by doing so, Hill intentionally provoked Chopper's response. In Billington and Alexander, the officer was accused of provoking an aggressive response from the individual eventually shot and killed by violating the constitutional rights of that individual. Here, Hill is accused of provoking a response not from Birkes, the individual whose constitutional rights were initially violated, but from Chopper, an independent party to the initial alleged constitutional violation. Additionally, in the cases relied on by Plaintiffs, the officer shot a person protected by the Constitution, not an animal not entitled to such protection. Finally, nothing in the cases cited by Plaintiffs suggests that the analysis applied in those cases mayor should be applied to detelmining Page 15- OPINION AND ORDER {SIB} an unlawful seizure allegation based on the shooting of a dog, and none of the cases cited by the pmties involving that specific situation cite as a factor whether the officer provoked the dog into the actions which resulted in the officer's decision to shoot the dog. Accordingly, the court finds that Billington and Alexander are not relevant to this action and do not change the conclusion that Hill is entitled to summary judgment on this claim. II. Conversion Preston also alleges a common law claim for conversion based on Hill' s shooting of Chopper. Apparently conceding that Hill's actions constitute a conversion under Oregon law, Defendants argue only that Hill was justified in shooting Chopper and, therefore, is not liable for conversion. Defendants do not provide any case law supporting this argument. A federal district court in California recently granted summmy judgment on a conversion claim against a police officer for the killing of a dog, relying on the privilege of self-defense described in Section 261 of the RESTATEMENT (SECOND) OF TORTS. Perez v. City a/Placerville, No. CIV S-07-927 FCD GGH, 2008 WL 4279386, at *8 (Sept. 9, 2008)(conduct of officer who killed dog in self defense of partner is privileged under state law and does not give rise to claim of conversion of chattels). Section 261 ofthe RESTATEMENT (SECOND) OF TORTS (1965) provides that: One is privileged to commit an act which would otherwise be a trespass to or a conversion of a chattel in the possession of another, for the purpose of defending himself or a third person against the other, under the same conditions which would· afford a privilege to inflict a harmful or offensive contact upon the other for the same purpose. The Oregon courts have not specifically adopted Section 261 but as recently as last month, an Oregon court relied on the definition of conversion found in section 222A(I) of the Page 16- OPINION AND ORDER {SIB} RESTATEMENT (SECOND) OF TORTS (1965). Briggs v. Lamvik, No. 080709806; A141436, 2011 WL 1410064, at *5 (Or. App. April 13, 2011). Additionally, Oregon courts recognize the defense of selfdefense in intentional tort cases. See Bray v. American Prop. Mgmt. Corp., 156 Or. App. 356, 361 n.3 (1998)(court instructed jury on self-defense in wrongful death case); Royer v. Wendland, 261 Or. 1 (1971)(court found jUly was properly instructed on self-defense in action at law for assault and battery). Based on their reliance on the RESTATEMENT for the definition of conversion and their recognition of the defense of self-defense against claims for intentional torts, the court is confident that the Oregon courts would allow the application of the self-defense privilege with regard to conversion found as set f011h in Section 261 of the RESTATEMENT. Applying the self-defense privilege to Preston's conversion claim and the facts at hand, the court finds that Hill's actions were privileged. Defendants are entitled to summmy judgment on Preston's claim for conversion. Conclusion Defendants' motion (#26) for summmy judgment on Preston's claims for unlawful seizure and conversion of Chopper is GRANTED. Based on Plaintiffs' concession that they are unable to assert claims under the Fourteenth Amendment and that only the County can be held liable on the common law claims, Defendants' motion for summmy judgment on these claims are GRANTED as well and Plaintiffs are ordered to file an amended complaint removing these claims. DATED this 10th day of May, 2011. JOHNV. ACOSTA United States Magistrate Judge j Page 17- OPINION AND ORDER {SIB}
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