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Porter v. Osborn

December 17, 2009


The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION [Re: Motions at Dockets 113, 114 115, 140, and 144]


At docket 113, defendant Arthur J. Osborn ("Osborn"), a retired Alaska State Trooper, moves to preclude plaintiffs Arthur and Christie Porter (the "Porters" or "plaintiffs") from introducing evidence of Osborn's character relating to (1) prior use of force or acts of violence, and (2) bias against disabled persons. The Porters oppose the motion at docket 125. Osborn replies at docket 135.

At docket 114, Osborn moves for summary judgment. At docket 126, the Porters oppose the motion and request relief pursuant to Federal Rule of Civil Procedure 56(f). Osborn replies at docket 130.

At docket 115, Osborn moves to establish Osborn's community care-taker function and to preclude the Porters from recovering damages based on alleged Fourth Amendment violations. At docket 124, the Porters oppose the motion. Osborn replies at docket 131.

At docket 140, the Porters move to preclude Osborn from introducing evidence of Casey Porter's ("Casey") drug abuse by means of post-mortem toxicology reports. Osborn opposes the motion at docket 143. The Porters reply at docket 146.

At docket 144, counsel for the Porters move unopposed for a trial setting conference "in late April or thereafter" to permit him to recover from illness. As noted, Osborn does not oppose this motion.

Oral argument was not requested on any of the motions, and would not assist the court.


The background of this matter has been recited in this court's order at docket 63 and in the court of appeals' opinion at docket 85.*fn1 Generally, this matter arises out of the death of Casey, the Porters' adult son, during a confrontation by Osborn. Of the myriad claims brought by the Porters, the only remaining claim seeks damages based on their fundamental liberty interest in Casey's society under the Fourteenth Amendment. The court of appeals reversed this court's denial of Osborn's earlier summary judgment motion on the issue of qualified immunity, and held that the "purpose to harm" standard, not the "deliberate indifference" standard, "governs the applicable level of culpability needed to shock the conscience here, because Osborn faced a fast paced, evolving situation presenting competing obligations with insufficient time for the kind of actual deliberation required for deliberate indifference."*fn2 In his renewed motion for summary judgment, Osborn cites to the version of events described by the court of appeals, which were described by that court as "contested and ambiguous."*fn3 Osborn also attaches some excerpted testimony, incident transcriptions, and an expert report to his motion. Osborn argues that he could not have had a "purpose to harm" Casey because (1) it is undisputed that he did not know Casey and, therefore, could not have borne any ill will toward him; (2) it is undisputed that Osborn shot Casey for the purpose of protecting Trooper Joseph Whittom; and (3) expert testimony indicates that Osborn perceived an immediate deadly threat to Whittom.*fn4

Osborn claims that the Porters' claim relies on "speculation, name-calling, character evidence, and Fourth Amendment arguments that are not before the court and that they lack standing to raise."*fn5

In opposition, the Porters note that the court of appeals specifically instructed this court to consider on remand: whether under the totality of the circumstances a jury could infer that Osborn was acting for purposes other than legitimate law enforcement.

First is the nature of the suspicious car and driver Osborn found in the pull-out near the Sterling Highway. The lone car was stationary and posed no overt threat to officer safety at the outset. Once Casey started moving the car, he created at least a minimal threat to safety, although hardly on the level of a car chase. Trooper Whittom reported that he did not feel threatened by Casey's car, but he and Osborn nevertheless drew their guns. Second is the nature of the back and forth between Casey and the troopers. In response to Casey's rolling his window down and refusing to exit the vehicle, Osborn precipitously sprayed him with pepper spray, an action that could be viewed as punishing or harassing when it is unclear whether Casey even knew he was dealing with law enforcement.

Whittom's testimony suggests Casey's attempt to drive away may have been a normal effort to escape further spraying, making Osborn an active participant in triggering Casey's flight. Third and most important is Osborn's severe and sudden escalation of the situation: where Casey's only violation was non-compliance, ...

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