The Lawsuit

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JOSEPH KELLER, individually and as
Personal Representative of the
Estate of Deontae Keller, Deceased,

Plaintiff,

      v.

CITY OF PORTLAND, a municipal
corporation, THE PORTLAND POLICE,
OFFICER TERRY KRUGER, an individual,
and OFFICER GARY BECK, an individual,

Defendants

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CV 98-263-ST

COMPLAINT:

Violations of 42 U.S.C. 1983
Supplemental State Claims

 

DEMAND FOR JURY TRIAL

PRELIMINARY STATEMENT

    1. This action arises under 42 U.S.C. ~ 1983 and 1981

    2. This is an action for damages, including compensatory and punitive damages for the Defendants' failure to comply with state and federal laws and regulations and violations of decedent's constitutional rights and protections, as a result of which events Deontae Keller was deprived of his life.

JURISDICTION

    3. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331, federal question jurisdiction; and 28 U.S.C. 1343 which authorizes causes of action for violations of 42 U.S.C. 1983 and 1981

PARTIES

    4. Joseph D Keller, (hereinafter "Keller") was appointed personal representative of the Estate of Deontae Keller, (hereinafter "Plaintiff"), on March 26, 1996 in Multnomah County, Oregon, Case No. 9603-90567. Keller brings this action on behalf of Plaintiff and for the benefit of all individuals who under the law of intestate succession of the State of Oregon would be entitled to inherit from Plaintiff

    5. Plaintiff was a twenty year old black male who had lived in Portland, Oregon for the majority of his life

    6. Plaintiff is a member of a protected class by virtue of his race

    7. Defendant City' of Portland is a municipality of the State of Oregon.

    8. At all material times, Defendant, Terry Kruger (hereinafter "Kruger") was a police officer with the Portland Police Bureau (hereinafter "PPB"), wl1ich is an entity under the direction and control of the City of Portland (hereinafter "City"). At all material times Kruger was acting within the course and scope of his employment with the Portland Police Bureau.

    9. At all material times, Defendant, Gary Beck (hereinafter "Beck") was a police officer with the Portland Police Bureau (hereinafter "PPB''), which is an entity under the direction and control of the City of Portland (hereinafter `'City") At all material times Beck was acting within the course and scope of his employment with the Portland Police Bureau.

STATEMENT OF FACTS

    10. On February 28, 1996, at approximately 1:3 5 am, Plaintiff was driving a white Chevrolet Monte Carlo. There were four (4) passengers riding in the car with Plaintiff.

    11. Earlier that evening a Monte Carlo was reported to PPB for suspected involvement in a drive-by shooting incident.

    12. At approximately 1:35 am, a report was made over the police radio by fire fighter paramedics that they had observed a vehicle in the parking lot of a convenience store located at the intersection of North Going and North Interstate Avenue in Portland, Oregon, matching the description of the Monte Carlo.

    13. Officer Yee ("Yee") of the PPB was the first to arrive at the Plaid Pantry parking lot and observed the Monte Carlo driven by Plaintiff pulling out of the Plaid Pantry parking lot onto North Going heading eastbound before turning south onto Interstate.

    14. Yee followed the Monte Carlo out of the plaid pantry parking lot, but did not initiate his lights and siren. At a controlled intersection, Officer Yee yielded for the light and spotted PPB Officers Lee ("Lee") and Kruger.

    15. Yee allowed Lee and Kruger to take up the pursuit of the Monte Carlo as the lead car. Again Lee and Kruger did not initiate siren or lights.

    16. PPB Officer Reyna ("Reyna") was traveling northbound on Interstate when she observed the Monte Carlo driven by Plaintiff turn southbound onto Interstate. After allowing Kruger and Lee and Yee to pass, Reyna made a U-turn and took up position as the third police car in the low speed pursuit At this point the officers initiated lights and sirens.

    17. The Monte Carlo driven by Plaintiff proceeded southbound on Interstate approximately one half mile further and made a right hand turn onto North Shaver Street and came to a stop.

    18. Kruger and Lee in the lead vehicle pulled in behind the Monte Carlo driven by Plaintiff, Yee pulled in behind Wager and Lee and Reyna pulled along the left hand side of Kruger and Lee's vehicle.

    19. Plaintiff exited the driver side door of the vehicle, ran around the open door and was shot in the back by Kruger as Plaintiff was heading south and west away from the scene.

    20. Kruger and Yee claim to have seen Plaintiff carrying a gun away from the scene as he fled.

    21. Reyna claims to have seen Plaintiff carrying a gun as he fled the scene.

    22. Yee does not claim to have seen a gun.

    23. Plaintiff stumbled and went down to one knee when he was hit in the back by the first round fired by Kruger. Plaintiff regained his feet and continued south and west and turned the corner at the next block onto North Massachusetts.

    24. None of the officers pursued plaintiff even though he showed indications that he had been hit.

    25. K-9 unit and Beck arrived at the scene at 1:48 am and began an area search. Upon approaching the backyard of the fourth yard searched Beck observed plaintiff in the backyard. Plaintiff was laying face up and breathing heavily The dog was ordered to approach plaintiff and to shake plaintiff's arm. Plaintiff showed no response to the dog.

    26. Although plaintiff was still breathing, no of ricer called for medical assistance or attempted to approach Plaintiff and give aid. When the of ricers did finally approach Plaintiff at approximately 3:00 am, Plaintiff was already dead.

    27. The autopsy of Plaintiff estimates the time of death to be approximately 2:45 a.m. The cause of Plaintiff's death was loss of blood due to the gunshot wound.

    28. Defendants allowed Plaintiff to bleed to death.

    29. Kruger is a certified Enforcement Response Team ("SERT") trained member of the PPB.

    30. As such Kruger receives special training in weapons, gang activity, hostage negotiations and other emergency response scenarios.

    31. On February 28, 1996, while in pursuit of Plaintiff as previously described, defendants foiled to comply with the policies and procedures of the Portland Police Bureau in one or more of the following particulars:
    (a) Use of deadly force to apprehend Plaintiff as he fled the vehicle when Plaintiff did not pose an imminent threat of death or grave injury to those in the community; and
    (b) Failure to seek or provide emergency medical care to Plaintiff

    32. Defendants' actions were such a substantial departure from the accepted professional judgment, practices or standards of the Portland Police Bureau as to demonstrate a failure on the part of defendants to base their conduct on professional judgment

    33. Defendants Kruger and Beck, as law enforcement officers, were held out as experts in their field and were clothed with the indicia of state authority in the discharge of their duties.

    34. Defendants, as law enforcement officers, had a duty to protect Plaintiff against unreasonable deprivation of life and liberty without due process of law. The rights of Plaintiff are guaranteed under the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States.

    35. On or about March of 1996, Plaintiff's Personal Representative provided defendants with a Notice of Tort Claims as required by ORS 30.275, for damages arising out of Plaintiff''s death.

    36. On or about April 3, 1996, defendants acknowledged receipt of Plaintiffs Tort Claims Notice.

 

FOR A FIRST CAUSE OF ACTION
(Violation of 42 U.S.C. 1983)
(Against all Defendants)

    37. Plaintiff alleges and incorporates paragraphs 1 through 35 as set forth herein.

    3 8. Defendants, while acting under color of state law, have recklessly or with gross negligence deprived Plaintiff of life and liberty without due process of law as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States which guarantee Plaintiff life, freedom of movement and personal safety.

    39. As a result of Defendants acts and omissions, Plaintiff has been injured and his injuries have caused his death. Plaintiff has suffered compensatory damages in the amount of $500,000.00.

    40. Defendants unrestrained abuse of the use of non,-deadly and deadly force of other black and minority suspects combined with the failure to render medical aid reveals a conscious disregard of, or reckless or callous indifference to, the federally protected rights of plaintiff and other minorities in general so as to justify an award of punitive damages in the amount of $20,000,000.00.

    41 Pursuant to 42 U S.C. 1988, Plaintiff is entitled to reasonable attorney fees and costs.

 

FOR A SECOND CAUSE OF ACTION
(violation of 42 U.S.C. 1983)
(Against all Defendants)

    42. Plaintiff realleges and incorporates paragraphs 1 through 35 as set forth herein

    43. Defendants, while acting under color of state law, have deliberately, maliciously, or intentionally deprived Plaintiff of freedom of movement and personal safety without due process of law as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States.

    44. As a result of Defendants acts and omissions, Plaintiff has been injured and his injuries have caused his death. Plaintiff is entitled to recover damages and attorneys fees from defendants as set out in paragraphs 38 through 40 above.

 

FOR A THIRD CAUSE OF ACTION
(Violations of 42 U.S.C. 1981)
(Against All Defendants)

    45. Plaintiff realleges and incorporates paragraphs 1 through 35 as set forth herein.

    46. Defendants deprived Plaintiff of his right to life and liberty on the basis of his race. Defendant's conduct was intentional and purposeful. The above-described pattern and practice of discriminatory conduct violates the Thirteenth Amendment to the Constitution as protected by U.S.C. 1981.

    47. As a direct and proximate result of defendants conduct, plaintiff suffered loss of income, and incurred expenses including but not limited to funeral and burial expenses.

    48. As a result of Defendants conduct, plaintiff suffered during the time after he was sl1ot until he died.

    49. As a result of Defendants acts and omissions, Plaintiff has been injured and his injuries have caused his death. Plaintiff is entitled to recover damages and attorneys fees from defendants as set out in paragraphs 38 through 40 above

 

FOR A FOURTH CAUSE OF ACTION
(Wrongful Death)
(Against all Defendants)

    50. Plaintiff realleges and incorporates paragraphs 1 through 35 as set forth herein

    51. PPB officers are only authorized to use deadly force when a suspect poses an imminent threat of death or grave injury to either themselves or others

    52. Plaintiff did not threaten imminent death or grave injury to Kruger or others because Plaintiff had turned and was running away when Kruger shot him in the back.

    53. Kruger intentionally chose to employ deadly force against Plaintiff by shooting him center mass in the back with knowledge that such a shot would likely cause the death of plaintiff.

    54. By his actions Kruger intentionally and willfully caused the death of plaintiff.

    55. As a direct and proximate cause of Kruger's actions Plaintiff's estate has incurred expenses including but not limited to the loss of present and future income and burial and memorial expenses. Plaintiff is entitled to recover these amounts pursuant to ORS 30.270(1)(b).

    56. Plaintiff's estate is further entitled to recover general damages, representing his pain and suffering during the time between the moment he was shot and when he died; loss of plaintiffs society and companionship, and inconvenience and interference with normal and usual activities apart from gainful employment, on behalf of plaintiff's rightful heirs and family pursuant to ORS 30.270(1 )(b).

    57. Plaintiffs estate should be entitled to special damages in the amount of $ 100,000.00.

    58. Plaintiffs estate is entitled to an award of $400,000.00 in general damages.

    59. Defendants unrestrained of the use of non-deadly and deadly force towards other black and minority suspects and failure to render lifesaving medical care reveals a conscious disregard of, or reckless or callous indifference to, the rights of plaintiff and other minorities in general so as to justify an award of punitive damages in the amount of $20,000,000.00.

 

FIRST ALTERNATIVE CAUSE OF ACTION
(Wrongful Death)
(Against Defendant Kruger)

    60. Plaintiff realleges and incorporates paragraphs l through 58 as set forth herein.

    61. PPB officers are only authorized to use deadly force when a suspect poses an imminent threat of death or grave injury to either themselves or others.

    62. Plaintiff did not threaten imminent death or grave injury to Kruger or others because Plaintiff had turned and was running away when Kruger shot him in the back.

    63. Kruger intentionally chose to employ deadly force against Plaintiff by shooting him center mass in the back with knowledge that such a Shot would likely cause the death of plaintiff.

    64. By his actions Kruger intentionally and willfully caused the death of plaintiff)

    65. By his actions Kruger acted outside the course and scope of his employment

    66. As a direct and proximate cause of Kruger's actions Plaintiff's estate has incurred expenses including but not limited to the loss of present and future income and burial and memorial expenses. Plaintiff is entitled to recover these amounts pursuant to ORS 30.270(1)(b)

    67. Plaintiff's estate is further entitled to recover general damages' representing his pain and suffering during the time between flee moment he was shot and Allen he died; loss of plaintiffs society and companionship, and inconvenience and interference with normal and usual activities apart from gainful employment, on behalf of plaintiff's rightful heirs and family pursuant to ORS 30.270(] )(b).

    68. Plaintiff's estate should be entitled to special damages in the amount of $100,000.00.

    69. Plaintiff's estate is entitled to an award of $400,000.00 in general damages.

    70. Defendants unrestrained abuse of the use of non-deadly and deadly force of other black and minority suspects reveals a conscious disregard of, or reckless or callous indifference to, the rights of plaintiff and other minorities in general so as to justify an award of punitive damages in the amount of $20,000,000.00.

 

SECOND ALTERNATIVE CLAIM FOR RELIEF
(Wrongful Death)
(Against Defendant Beck)

    71. Plaintiff realleges and incorporates paragraphs 1 through 69 as set forth herein

    72. PPB officers are only authorized to use deadly force when a suspect poses an imminent threat of death or grave injury to either themselves or others.

    73. Plaintiff did not threaten imminent death or grave injury to Beck or others because Plaintiff was dying and unable to respond to any commands issued to him.

    74. Beck's first contact with plaintiff indicated that plaintiff was alive and breathing,

    75. By his actions Beck intentionally and willfully caused the death of plaintiff:

    76. By intentionally and willfully failing to render lifesaving Pleasures, Beck was acting outside the course and scope of his employment.

    77. Had life saving measures been taken, plaintiff may have lived.

    78. As a direct arid proximate cause of Beck's actions Plaintiff s estate has incurred expenses including but not limited to the loss of present and future income and burial and memorial expenses. Plaintiff is entitled to recover these amounts pursuant to ORS 30.270(1)(b).

    79. Plaintiff 's estate is further entitled to recover general damages, representing his pain and suffering during the terns between the moment he was shot and when he died; loss of plaintiff's society and companionship, and inconvenience and interference with normal and usual activities apart from gainful employment, on behalf of plaintiff s rightful heirs and family pursuant to ORS 30.270(1)(b).

    80. Plaintiff's estate should be entitled to special damages in the amount of $100,000.00..

    81. Plaintiffs estate is entitled to an award of $400,000.00 in general damages.

    82. Defendants unrestrained abuse in his failure to render lifesaving medical care of black: and minority suspects reveals a conscious disregard of, or reckless or callous indifference to, the rights of plaintiff and other minorities in general so as to justify an award of punitive damages in the amount of $20,000,000 00.

    WHEREFORE, plaintiff prays for judgment against the defendants and each of them on plaintiff s first, second and third claims and alternatively on his first and second alternative claims for relief as follows:

1. In the amount of $500,000.00 for compensatory damages;

2. In tile amount of $20,000,000.00 for punitive damages;

3. Attorney fees, and litigation costs, including expert fees pursuant to 42 U.S.C.