Judges will decide whether police are immune from damages after wrongful arrest in Hillsboro.

PAMPLIN MEDIA GROUP FILE PHOTO - The 9th Circuit Court of Appeals will take up a Hillsboro case involving the wrongful arrest of a man.Three judges with the U.S. Court of Appeals for the 9th Circuit are set to hear arguments in Portland on Monday about whether three Hillsboro Police Department officers who wrongfully arrested a man in 2014 are immune from damages.

Two federal judges in Oregon ruled previously that the police officers violated the constitutional rights of Adam Horstman, the man officers arrested and jailed for six days. The lower courts also ruled the police officers are not immune from liability. Now the police department is appealing the rulings.

The case raises questions about the probable cause necessary for officers to make an arrest and whether they can be liable for arresting the wrong person without it.

Wrongful Arrest

On July 4, 2014, Hillsboro police wrongfully arrested Horstman in connection with a string of robberies over the course of several weeks at four area pharmacies. The robber stole "significant amounts" of opiate medication, according to court documents.

Late in the evening of June 30, 2014, Horstman went to a Rite Aid Pharmacy in Hillsboro to fill a prescription for pain medication after being treated at the emergency room, court documents state.

"Unbeknownst to him, the Rite Aid Pharmacy had been robbed six weeks earlier on May 18, 2014," according to court documents.

Horstman filled his prescription and walked out.

"Several minutes after Plaintiff left the store, the assistant store manager called police to report that a person who was just there 'looked a lot like' the person who had robbed the pharmacy on May 18," according to court documents.

Hillsboro police detectives David Bonn and Brian Wilber, as well as Sgt. Ted Schrader, investigated the robberies.

Officers reviewed surveillance video and showed DMV photos to witnesses of previous robberies. The witnesses weren't able to conclusively identify Horstman, though one "noted Plaintiff's [Horstman's] photo looked like the robber," according to court documents.

Schrader was among the officers who went to Horstman's home without a warrant, court documents note, and arrested him. Horstman allowed officers to search his home, which didn't yield any evidence. Though he was interrogated for several hours, Horstman maintained his innocence, according to court documents.

"However, during the interrogation at the police station, [Detective] Wilber handed Horstman a photo from surveillance video of the Rite Aid robbery and the following exchange ensued:

"'Wilber: OK. Does that look like the same person to you?

"'Horstman: Yes, sir.

"'Wilber: Is that you?

"'Horstman: Yes, sir.'

"Horstman immediately realized his mistake and spent the remainder of the interrogation insisting that he was not the person in the photograph," according to court documents.

After police interrogated Horstman, Hillsboro Police Detective Bonn wrote a probable cause affidavit and presented it to the Washington County District Attorney's office.

"Plaintiff was formally charged and booked into the Washington County Jail where he remained until July 9, 2014," court documents state. "On that date, the state dismissed the charges against Plaintiff after police identified and arrested the actual perpetrator based on the fingerprint from the robbery demand note."

In February 2015, Horstman sued the city of Hillsboro as well as detectives Bonn, Wilber and Sgt. Schrader.

In August 2016, U.S. Magistrate Judge Paul Papak issued an opinion that found the police officers violated Horstman's Fourth Amendment rights against unreasonable searches and seizures.

"I conclude that Defendants [Hillsboro police] lacked probable cause to arrest Horstman on July 4, 2014," Papak wrote. "The facts relied on by Defendants in their probable cause determination would not lead a reasonable person to believe that Horstman had committed robbery or theft."

The officers argued that even had they arrested Horstman without establishing probable cause, they were immune.

Citing a 2015 U.S. Supreme Court Ruling, the officers argued:

"Public officials are immune from suit … unless they have 'violated a statutory or constitutional right that was clearly established at the time of the challenged conduct."'

But Papak ruled the officers were not immune.

"In sum, a reasonable officer would not have arrested Horstman based on the facts known to the officer defendants when they arrested Horstman," Papak wrote. "I conclude that under these facts, the Fourth Amendment right to be arrested based on probable cause was clearly established, and that a reasonable officer would not have believed there was probable cause to arrest Horstman. Consequently, the officer defendants are not entitled to qualified immunity."

In Nov. 2016, the ruling was reviewed and adopted by U.S. District Court Judge Anna Brown.

City, Police Officers Appeal

The city of Hillsboro and the three police officers have appealed the ruling to the 9th Circuit Court of Appeals.

Janet Schroer, attorney for the city and officers, argues the district court judges got it wrong.

"Detectives Bonn and Wilber and Sergeant Schrader did not violate plaintiff's clearly established constitutional rights of which a reasonable officer would have known by arresting him in connection with the pharmacy robberies," Schroer wrote in her appeal to the 9th Circuit. "There was at least arguable probable cause to arrest plaintiff [Horstman] based on eyewitness identifications and other facts known to the officers at the time of arrest."

In their reply, Jesse Merrithew and Rhett Fraser, the attorneys for Horstman, wrote that the appeals court judges should uphold the district court's ruling.

"Stripped to its bare essentials, when defendants arrested Mr. Horstman they possessed little more than general similarities between the criminal robbery suspect and Mr. Horstman," the attorneys wrote. "Arguing that probable cause exists because a person may look a bit like a suspect is insufficient."

The oral arguments are scheduled to last 10 minutes before a three-judge panel. They're set to begin Monday, March 5 at 9 a.m. at the Pioneer Courthouse in downtown Portland.

Conrad Wilson and Oregon Public Broadcasting are news partners of Pamplin Media Group.

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