Mouktabis v. Oregon City Police Dept.

The party who bears the burden of producing evidence on an element of a claim or defense has the burden of producing evidence on that issue on summary judgment. O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Or App 456, 460-61, 157 P3d 1272 (2007).

During a divorce, a restraining order prevented Husband from contacting Wife. After Wife received texts, Husband was arrested and sued the police and department for wrongful arrest and false imprisonment, asserting the arrest lacked probable cause. Defendants succeeded in summary judgment, arguing Plaintiff failed to demonstrate bad faith and malice necessary to invalidate immunity under ORS 133.315 because the evidence presented only spoke to probable cause. On appeal, the assignment of error alleged summary judgment finding of no issue of material fact in favor of Defendant was erroneous and improperly shifted the burden to Plaintiff. The Court held that this was an improper shifting of the burden because the plaintiff failing to demonstrate bad faith and malice is not enough for the Court to resolve the issue of material fact as to whether the police acted in good faith and without malice as required by statute. The statutory immunity is a defense and must be proven by the defendant. Reversed and remanded.