Joseph A. Grube, OSB #962976 joe@go-trial.com
GRUBE OREHOSKI, PLLC
1200 Fifth Avenue, Ste 1711 Seattle, WA 98101
Ph. 206.624.5975/Fax. 206.770.7607
Karen Koehler, (Adm. Pro Hac Vice)
Mohammad “Mo” Ali Hamoudi, (Adm. Pro Hac Vice) karenk@stritmatter.com mo@stritmatter.com
Stritmatter Kessler Koehler Moore
3600 15th Avenue W., #300 Seattle, WA 98119
Telephone: 206.448.1777
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON, PORTLAND DIVISION
SARAH MILES, as Personal Representative of the Estate of Derrick Dewayne Clark, Jr.; and on behalf of the minor child R.L.C.; minor sibling D.M.M.; and mother SARAH MILES in her individual capacity,
Plaintiffs, vs.
CLACKAMAS COUNTY, a municipal corporation; DEPUTY DANIEL FERGUSON, NICHOLAS ADLER, JASON BENTO, MATTHEW BROWN, HECTOR CAMPOS, SHAWN CHOE, AARON CLARK, JORDAN FERGUSON, SIERRA HANCOCK, DAVID HEIMBUCK, NATHAN HULSEY, ANDY KIESEL, KYLE MALIZIA, DONALD McCAFFERTY, BETH MAYER, JERED REYNOLDS, RYAN ROGERS, PETER ROBINSON, HAYDEN SANDERS, KYLE SCOTT, SAMUEL TOOZE, ADAM TAYLOR, MICHAEL ZACHER, GRANT ZAITZ
No. 3:23-cv-01805-SB
PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR DAMAGES AND JURY DEMAND 1
1 The Amended Complaint is filed as a courtesy and at the request of Defendants Clackamas County and Mawson who contended that the original complaint was vague and not sufficient in some respects.
8.2.97 – 6.18.22
I. Preliminary Statement
1. On June 18, 2022, a day before Juneteenth, two officers joined forces to chase down and kill Derrick Dwayne Clark, Jr., a 24-year-old Black father. Other officers arrived, failed to render aid and posthumously mutilated Mr. Clark.
2. The precipitous event: Mr. Clark’s alleged wobble lane change in a properly licensed maroon Pontiac travelling at the posted speed limit down the roadway.
3. It is true that Mr. Clark does not pull over when the first officer turns on his lights. Nor does he comply when a second officer begins pursuit. Nor does he remain in his vehicle after it has been intentionally rammed by the police – not once but twice. As soon as the Pontiac lands in the ditch, Mr. Clark exits and begins to run as fast as he possibly can. Away from the police. And yes, with a gun.
4. As he sprints across a field, Mr. Clark never turns around. He does not menace nor threaten his pursuers. He does not point his gun at them. Instead he throws it away. Does not slow down. He just runs. Like so many other Black men have tried to run away from the police in this country throughout history.
5. But Mr. Clark cannot run fast enough. The police run after him. Guns drawn. Take turns shooting - eight times before they watching him fall to the ground. His life could have been saved even then. But saving Mr. Clark was never on the agenda.
6. For the next two hours what follows can best be described as tribal behavior. Officers gloat: a macabre series of actions. As other law enforcement is summoned and converge upon the scene, Mr. Clark lies unmoving. Moaning. Completely unarmed. No aid will ever be rendered.
7. Officers use a heat sensor drone to double check that he has indeed fallen, though he lies feet away. It confirms what they already know: Mr. Clark is lying motionless on the ground. Like a “dead deer” or “humanoid” they say. Then why, over the course of the next two hours do officers throw a stinger ball explosive device at Mr. Clark. Why when his body lies as still as it was before, do they throw more explosives at him. Why do they laugh and chew
tobacco and talk about the “boy” being dead. Then command a canine to get him – to bite and maul him.
8. Sarah Miles, Mr. Clark’s mother, on behalf of the Estate, his child, his sibling, and individually brings these actions against the government and their law enforcement officers for their conduct in the killing of Mr. Clark.
II. Jurisdiction and Venue
9. This Court has original jurisdiction over the plaintiffs’ civil rights claims under 42 U.S.C. § 1983, under 28 U.S.C. § 1331 (federal question) and under 28 U.S.C. § 1343. This Court has supplemental jurisdiction over the plaintiffs’ related state claims under 28 U.S.C. § 1367(a).
10. Venue is proper in this jurisdiction under 28 U.S.C. § 1391(b) because all the events supporting the plaintiffs’ allegations occurred in this judicial district and because the defendants reside here.
III. Parties
11. Plaintiff Sarah Miles, in her representative capacity, is the duly appointed Personal Representative of the Estate of Derrick Dewayne Clark, Jr., filed under the laws of the State of Oregon, Clackamas County Circuit Court Cause No. 23-PB00262.
12. Plaintiff Sarah Miles, in her individual capacity, is the mother of Derrick Dewayne Clark, Jr. (deceased), is a citizen of the United States, and a resident of the State of Oregon.
13. R.L.C., is Mr. Clark’s minor daughter and his statutory beneficiary. D.M.M., is Mr. Clark’s minor sibling and his statutory beneficiary.
14. Defendant Clackamas County is a municipality in the State of Oregon. It owns, operates, manages, directs, and controls the Clackamas County Sheriff’s Office, which employs Defendants Daniel Ferguson, Nicholas Adler, Jason Bento, Matthew Brown, Hector Campos, Ryan Castro, Shawn Choe, Aaron Clark, Jordan Ferguson, Sierra Hancock, David Heimbuck, Nathan Hulsey, Andy Kiesel, Kyle Malizia, Donald McCafferty, Beth Mayer, Jered Reynolds, Ryan Rogers, Peter Robinson, Hayden Sanders, Kyle Scott, Samuel Tooze, Adam Taylor, Michael Zacher, Grant Zaitz. 2 These individuals are United States Citizens residing in the State of Oregon. At all material times, Clackamas County employed these individual officers who were acting within the scope of their employment. Per ORS 30.285(1), Clackamas County must indemnify its officers for their tortious acts and is therefore liable for the purposes of this action by plaintiffs.
15. Plaintiff does not know the names of the Officers Does I-X, and so is suing them under fictitious names. Officers Does I-X (the “Officer Doe defendants”) are officers employed
2 The officer’s presence on the scene is based on reports disclosed by the Clackamas County Sheriff’s Office: Case # 22-013776 Supplement - 27 Report (Adler); Supplement - 4 Report (Bento); Supplement14 Report (Brown); Swat Incident Report (Castro); Supplement - 2 Report (Choe); Supplement - 37 Report (Clark); Supplement - 5 Report (Ferguson); Supplement – 1 Report (Hancock); Supplement – 16 Report (Heimbuck); Supplement – 32 Report (Hulsley); Supplement – 30 Report (Kiesel); Supplement –32 Report (Malizia); Use of Force – 1 Report (McCafferty); Supplement – 15 Report (Mayer); Supplement – 41 Report (Reynolds); Supplement – 9 Report (Rogers); Supplement – 7 Report (Robinson); Supplement – 34 Report (Sanders); Axon_Body_3_Video_2022-06-18_0059_X60A1468Y (edited).mp4 (Scott); Supplement – 11 Report (Tooze); Supplement – 13 Report (Taylor); Supplement –36 Report (Zacher); Supplement -19 Report (Zaitz). In citing these reports, plaintiff only seeks to establish that these officers were present. By no means does plaintiff agree that the reports accurately reflect what occurred in this case.
On June 22, 2022, Lieutenant Nate Hulsey of the Clackamas County Sheriff’s Office sent an e-mail to what appears to be all officers who work for the office ordering: “If you responded to the [Officer Involved Shooting] OIS, please document your actions in a supplemental report.” See Hulsey, Nate e-mail dated June 22, 2022, at 4:50 p.m.
It appears that some officers did not follow the Lieutenant’s orders. The officers who did prepare supplemental reports neglected to include the fact that officers failed to render aid to Mr. Clark, made jokes at his expense, and called him names.
by the Clackamas County Sherriff’s Office, are employees of Clackamas County, or employees of other counties acting within the course and scope of their employment.
16. All acts committed by the Officer Doe defendants were done under color of the laws of the State of Oregon and under the authority of their positions as police officers with the Clackamas County Sheriff’s Office or other counties. The Officer Doe defendants, or some of them, were the commanding officers in charge of the scene and directly supervised all of the responding law enforcement officers, including by issuing directives and radioing each of the officers who responded throughout the incident.
IV. Trooper Zachary Cole
17. Defendant Zachary Cole is a United States Citizen residing in the State of Oregon. At relevant times Defendant Cole was a trooper with the Oregon State Patrol, an employee of the State of Oregon, and was acting within the course and scope of his employment. All acts committed by Defendant Cole were done under color of the laws of the State of Oregon and under the authority of his position as a police officer with the Oregon State Patrol.
V. Officer Alexander Mawson
18. Defendant Alexander Mawson is a United States Citizen residing in the State of Oregon. At relevant times Defendant Mawson was a police officer acting on behalf of the Oregon City Police Department, an employee of Oregon City, and was acting within the course and scope of his employment. All acts committed by Defendant Mawson were done under color of the laws of the State of Oregon and under the authority of his position as a police officer with the Oregon City Police Department’s Office. On information and belief, Defendant Mawson was present at the scene in this case under the Clackamas County Sheriff’s office command chain.
VI. Factual Allegations
A. Background of the Defendants
19. Carmichell Bell, the first Black person hired to work for the Clackamas County Sheriff’s Office on or about 1998 was awarded substantial damages by a jury after bringing claims for discrimination and retaliation when comments were made to him about “SS tattoos,” the “Klan,” and “Aryan Nation.” 3
20. It is estimated that the population of Clackamas County is 423,177 and Black persons represent 1.4% of that population. 4
21. In 2018, the Clackamas County Sheriff’s Office reported in its Use of Force Annual Report that 10.2% of the people who had force used against them by the sheriff’s office during patrol were Black. 5 It also reported that 11.7% of the people who had force used against them by the sheriff’s office in jail were Black. 6
22. In 2019, the Clackamas County Sheriff’s Office reported in its Use of Force Annual Report that 10.3% of the people who had force used against them by the sheriff’s office during patrol were Black. 7 It also reported that 11.8% of the people who had force used against them by the sheriff’s office in jail were Black. 8 On or about August 2019, a lawsuit was filed against the Clackamas County Sheriff’s deputies alleging that a deputy placed his knee on the neck of a then 12-year-old Black child, making it difficult for him to breathe. 9
3 Bell v. Clackamas Cnty., 341 F.3d 858, 862-63 (9th Cir.2003).
4 https://www.census.gov/quickfacts/fact/table/clackamascountyoregon/PST045223 (last checked March 4, 2024).
5 Clackamas County Sheriff's Office, Use of Force Annual Report, 2018. (last checked March 4, 2024).
6 Id.
7 Clackamas County Sheriff's Office, Use of Force Annual Report, 2019. (last checked March 4, 2024).
8 Id.
23. The Oregon Department of Justice reports "Bias reports in Clackamas County are up 366 percent since 2020." 10 In 2020, among the 51 law enforcement agencies, the Clackamas County Sheriff's Office was singled out by the state of Oregon for racial disparities in stops performed on Black and LatinX individuals 11 In 2020, the Clackamas County Sheriff’s Office reported in its Use of Force Annual Report that 10.5% of the people who had force used against them by the sheriff’s office during patrol were Black. 12 It also reported that 8.6% of the people who had force used against them by the sheriff’s office in jail were Black. 13
24. In 2021, a Clackamas County commissioner faced calls to resign over biased statements he made. 14 In 2021, the Clackamas County Sheriff’s Office reported in its Use of Force Annual Report that 12.4% of the people who had force used against them by the sheriff’s office during patrol were Black. 15 It also reported that 11.1% of the people who had force used against them by the sheriff’s office in jail were Black. 16
25. In 2021, a lawsuit was filed by a person who worked in Clackamas County against the Clackamas County Sheriff’s Office alleging in part that the office had: (1) a custom or policy of inaction, apparently taking no steps to determine whether officers continue to meet
9 Wilson, Conrad, Clackamas County Deputies Face Lawsuit After Allegations of Pressing Knee Into Black 12-YearOld’s Neck, OPB, June 18, 2020 available at https://www.opb.org/news/article/clackamas-lawsuit-knee-neck-blackchild-kamar-benbo/ (last checked March 4, 2024).
10 Bias in Clackamas County, a Snapshot, Oregon Department of Justice, Civil Rights Unit available at https://www.doj.state.or.us/wp-content/uploads/2022/01/Bias-in-Clackamas-County-A-Snapshot.pdf (last checked March 4, 2024).
11 Levinson, Jonathan, Clackamas County Sheriff’s Office singled out for racial disparities in stop data, OPB, December 1, 2020 available at https://www.opb.org/article/2020/12/01/clackamas-county-sheriffs-office-racialdisparity-report
12 Clackamas County Sheriff's Office, Use of Force Annual Report, 2020.
13 Id.
14 Ramakrishnan, Jayati, Clackamas County commissioner faces calls to resign over Islamophobic posts, the Oregonian, January 12, 2021 available at https://www.oregonlive.com/clackamascounty/2021/01/clackamas-countycommissioner-faces-calls-to-resign-over-islamophobic-posts.html
15 Clackamas County Sheriff's Office, Use of Force Annual Report, 2021.
16 Id.
the standards of fitness for duty that they were required to meet upon hire; (2) alleging that Clackamas County Sheriff’s office’s leadership has been predominantly male and has created a culture within the department that could fairly be described as protecting those men; (3) alleging that officers at the Clackamas County Sheriff’s office apparently followed the ‘blue wall of silence,’ and apparently did their best to cover-up a fellow officer’s misconduct. 17
26. More recently, Clackamas County leadership eliminated its equity and inclusion office because it was an “unnecessary expense” that “only foments friction," and created a "victim mentality." 18 In 2022, the Clackamas County Sheriff’s Office reported in its Use of Force Annual Report that 13.0% of the people who had force used against them by the sheriff’s office during patrol were Black. 19 It also reported that 14.5% of the people who had force used against them by the sheriff’s office in jail were Black. 20
27. In October 2018, Clackamas County Sheriff deputies were trained with this slide:
17 Sherman v. Clackamas County Sheriff’s Office, Case 3:21-cv-01005-HL, Complaint (D. Or., July 8, 2021).
18 Gaitan, Catalina, Clackamas County eliminates equity office, The Oregonian, January 18, 2024 available at https://www.oregonlive.com/clackamascounty/2024/01/clackamas-county-eliminates-equity-office.html
19 Clackamas County Sheriff's Office, Use of Force Annual Report, 2022.
20 Id.
28. The “Black People Song,” song and lyrics are available on the internet. 21
29. Another series of training materials used images to dehumanize marginalized persons confronted by police:
21 https://genius.com/Z-flo-the-black-people-song-lyrics (last checked March 4, 2024)
30. Sheriff Angela Brandenburg is the Clackamas County Sheriff and the chief executive officer of the peace of Clackamas County under state law. 22 She was elected to office in 2020 and has been a deputy there since 1992, six years before Carmichell Bell, the first Black officer was hired She has statewide leadership roles serving on the Commission on Statewide Law Enforcement Standards of Conduct and Discipline; the Department of Public Safety Standards and Training Police Policy Committee; and Northwest Accreditation Alliance Board Member. 23 Her leadership team includes three undersheriffs, a division commander, and four captains, individuals who keep her apprised of incidents including Officer Involved Shootings (OIS) incidents and Officer Involved Critical Incidents (OICI) in Clackamas County. 24 She along with her leadership team are responsible for the customs, training, culture, discipline, and policies that govern the day-to-day activities of Clackamas County deputies.
22 https://www.clackamas.us/sheriff/leadership.html (last checked March 8, 2024); ORS 206.010 23 https://www.clackamas.us/sheriff/leadership.html (last checked March 8, 2024).
24 State of Oregon, 5th Judicial District, Officer Involved Critical Incident Agreement and Protocol.
31. Sheriff Brandenburg is a signatory to the OICI agreement and protocol along with every chief of police of every city in Clackamas County. 25
32. As part of that agreement she specifically agreed that every precaution must be taken that an officer’s actions are performed at the highest level and in conformance with their training and the laws of this state. 26 She further agreed to provide her community which includes Derrick Clark’s family with the integrity, professionalism, and quality investigation that a OICI such as Mr. Clark’s case warrant.
33. What follows in Sections B, C, and D of this First Amended Complaint are allegations that deputies from the Clackamas County Sheriff’s office repeatedly violated their training, the Clackamas County Sheriff’s Office policies, and principles, violated state and federal law. Most of the facts supporting the allegations in Sections B, C, and D, are from Body Worn Cameras (BWC). Sheriff Brandenburg along with her leadership is required by policy to review BWC for training and disciplinary purposes. 27 No one has been publicly disciplined for violating training, policies, principles, or state and federal law.
34. The allegations in the First Amended complaint plausibly suggest that the Clackamas County Sheriff’s office has an unwritten culture or custom that disregards the civil rights of non-whites, an unwritten culture or custom that allowed officers to chase and kill Mr. Clark in violation of policy, an unwritten culture or custom that allowed Derrick Clark to suffer intense physical pain as a separate objective apart from any other purpose, 28 and/or unwritten
culture or custom which allowed officers to mutilate his corpse, treat Mr. Clark with total indignity, without concern because it was all captured on video/audio. 29
B. Defendants Ferguson and Cole engage in unauthorized road pursuit, ram Mr. Clark’s vehicle into a ditch then shoot eight rounds at his back as he runs away mortally wounding him.
35. On June 18, 2022, at 12:51:20 a.m. in the morning, Mr. Clark, operating a maroon Pontiac Grand Am (Pontiac) exits the north commercial parking lot of establishments located on 10601 Southeast 82nd in Happy Valley, Oregon.
36. The Pontiac is headed towards Southeast 82nd Avenue, both front and rear lights are illuminated, and a valid Oregon permit number A1836388 is properly attached to the rear window.
37. Mr. Clark proceeds to Southeast OR-213 in the right-hand lane (Lane B). The posted limit is 35 miles per hour.
29 ORS § 166.087
38. At 12:51:30 a.m., Clackamas County Sheriff’s Office (CCSO) Deputy D. Ferguson (Ferguson) and Oregon State Trooper Z. Cole (Cole) in separate cars, drive past the commercial parking lot.
39. The Pontiac was driving at or near the speed limit with the flow of traffic.
40. At 12:51:56 a.m., the Pontiac’s left signal light is illuminated. The vehicle then changes lanes from Lane B to the left-hand lane (Lane A), then stays within Lane A maintaining a driving speed at or near the speed limit.
41. At 12:52:19 a.m., Defendant Cole, who is behind the Pontiac in Lane A, activates his red and blue overhead lights, activates his dash cam and his body worn camera (BWC).
42. At 12:52:30 a.m., the right turn signal light is activated on the Pontiac which changes lanes from Lane A to Lane B then drives off.
43. Defendant Cole does not pursue the Pontiac and deactivates his red and blue overhead lights.
44. Defendant Cole does not pursue because it would be against his training and department policy.
45. At 12:52:54, Defendant Ferguson drives past Defendant Cole in Lane B to pursue the Pontiac. Defendant Ferguson violates policy when he pursues Mr. Clark after Defendant Cole terminated. 30
46. When Defendant Ferguson dispatches his reason for the pursuit, Defendant Ferguson says that the Pontiac failed to maintain his lane of travel and sped away from Defendant Cole.
47. Defendant Ferguson activates his dash cam but never activates his bodycam in violation of policy and/or training. 31
48. At 12:53:02, Defendant Ferguson moves into Lane A in front of Defendant Cole then turns right off Southeast 82nd towards Southeast Harmony Road with Defendant Cole following him. Defendant Ferguson still does not have his red and blue overhead lights activated in violation of training. 32
30 Two of the factors Defendant Ferguson was required to consider were: (1) whether Mr. Clark had committed a serious offense, and (2) whether Mr. Clark posed an immediate threat to the public. CSSO Pursuit Policy 3(b)(1). Neither was the case. When he dispatched his reason for the pursuit, he did not say that Mr. Clark was a suspected DUI or driving erratically, only that he had failed to maintain his lane of travel and had sped away from Cole. He was also required to consider weather conditions. It was raining at the time of the pursuit. Finally, the CSSO pursuit policy states that a deputy MUST terminate a pursuit when any law enforcement officer of any agency involved in the pursuit, or any jurisdiction in which the pursuit is occurring, exerts authority to terminate the pursuit CSSO Pursuit Policy 8(a)(1)(a). Defendant Cole did in fact do that when, as the officer initiating the pursuit, decided to terminate it almost immediately. Defendant Ferguson should never have initiated his own pursuit after that.
31 The Clackamas County Sheriff’s Office had in place a policy regarding the use of Body-Worn Cameras during this incident. CCSO Policy # 41 BWC. The policy requires deputies, “will wear the BWC in a manner determined by the Sheriff’s Office.” CCSO Policy #41(4). When a deputy wears a body-worn camera, Oregon law requires the deputy to activate the device beginning when the deputy develops reasonable suspicion or probable cause that a crime or violation has occurred, is occurring, or will occur and the deputy begins to contact the person suspected of committing the offense. ORS 133.741. The body-worn camera must remain on and continuously record at least until termination of the deputy’s participation in the contact. Id.
32 The Clackamas County Sheriff’s Office trained its officers for pursuit purposes to: “Immediately activate and continuously use the emergency lights and siren.” Clackamas County Sheriff’s Office, 2016 Emergency Vehicle Operations Training.
49. At 12:53:07, Defendant Ferguson activates his red and blue overhead lights as he drives down Southeast Harmony Road.
50. Defendant Cole reactivates his red and blue overhead lights and follows Defendant Ferguson as both engage in a highspeed pursuit down Harmony Road which then ends and changes to Southeast Railroad Avenue.
51. Defendant Detective David Heimbuck orders Defendant Ferguson to stop pursuing the Pontiac given the time of day, weather, and lack of updates from Defendant Ferguson.
52. Despite being instructed by his supervisor to end the pursuit, Defendant Ferguson continues to pursue the Pontiac. This is a violation of policy. 33
53. At 12:54:30, the Pontiac slows and attempts to pull over near a ditch.
54. The Pontiac stops then backs up to avoid the ditch. Then Mr. Clark takes his foot off the brakes.
33 CCSO Policy #2, Principle 4-Integrity, Compliance With Lawful Orders.
55. At 12:54:33, Defendant Ferguson intentionally rear-ends the Pontiac back toward the ditch.
This image represents Defendant Ferguson’s dash cam and shows him rear-ending Mr. Clark’s vehicle.
56. At 12:54:38, Defendant Ferguson intentionally rear-ends the Pontiac, a second time, into the ditch, and Defendant Cole arrives at the scene. The rear-ending of the Pontiac is in violation of training. 34
57. At 12:54:40, the Pontiac rests in the ditch with Defendant Ferguson positioned behind the Pontiac and Defendant Cole positioned to the rear left side of the Pontiac.
58. Both Defendants Cole and Ferguson, who are white, exit their vehicles and point their firearms at the Pontiac driver’s door.
59. They both say: “show me your hands.”
60. At 12:54:41, Mr. Clark opens the driver’s side of the Pontiac and exits the vehicle.
61. Mr. Clark has a gun in his right hand but does not point it at the officers at any time.
62. Mr. Clark takes off at a run across Railroad avenue away from the officers.
63. His back is to both the officers as he runs away.
64. Defendant Cole, without any warning, shoots a first round and then yells “gun, gun, gun.” This shot misses Mr. Clark. This is a violation of policy. 35
65. Defendant Ferguson shoots a second round at Mr. Clark’s retreating back. This is a violation of policy. 36
66. Defendant Cole and Defendant Ferguson then run after Mr. Clark.
67. At all times Mr. Clark is in Defendants Cole and Ferguson’s line of sight.
68. Shortly after the Defendant officers begin running after him, Mr. Clark (without aiming or firing) throws away the gun.
69. Both Defendant officers see Mr. Clark throw away the gun and know that he is now unarmed.
70. Defendants Cole and Ferguson come to a stop where Ferguson shoots the third and fourth rounds at Mr. Clark’s retreating back. This is a violation of policy. 37
37 CCSO Policy no. 39 (13-14).
72. Then it is Defendant Ferguson’s turn, and he shoots the sixth round at Mr. Clark’s retreating back. This is a violation of policy.
73. Then it is Defendant Cole’s turn, and he shoots the seventh round at Mr. Clark’s retreating back. This is a violation of policy.
74. Undeterred, Ferguson takes aim and shoots an eighth round at Mr. Clark’s retreating back. This shot meets its target. This is a violation of policy. 41
75. At 12:55:00, Mr. Clark falls to the ground near a fence on the opposite side of a railroad track, on Railroad Avenue. He does not move again.
76. Defendant Ferguson calls in: “4-0, shots fired. Our direction of fire is going to be to the southwest. We've got one subject that was running left now. Had a gun. Wearing a blackand-white hoodie. And it looks like he might be hunkered down in between the station just south of the railroad tracks.”
77. The scene diagram below illustrates location of evidence post incident:
1- Casing Speer 9mm Luger +P (Ferguson)
2- Casing Speer 9mm Luger +P (Ferguson)
3- Casing Speer 9mm Luger +P (Ferguson)
4- Casing Speer 9mm Luger +P (Ferguson)
5- Casing Win 9mm Luger (Cole)
6- Casing Speer 9mm Luger +P (Ferguson)
7- Casing Win 9mm Luger (Cole) 42
8- P80 Firearm
9- Rear Sight of firearm (from P80)
C. Defendants Ferguson, Cole, Clackamas County and its deputies, and Defendant Mawson fail to render aid
78. At 12:55:28, Defendant Cole points his flashlight towards Mr. Clark then radios dispatch that he is on the other side of the railroad laying down against the fence.
79. At 12:56:05, Defendant Cole says “state police, show me your hands, hands up,” but Mr. Clark does not move.
80. At 12:56:14, Defendant Cole sends out a request to have emergency medical personnel come to Harmony Road and Railroad Avenue, Ferguson moves closer to Mr. Clark.
81. At 12:56:33, Defendant Cole tells Defendant Ferguson, that he sees Mr. Clark who is laying down by the bushes.
82. At 12:57:30, Defendant Cole requests that an on-call supervisor report to the scene.
83. At 12:57:49, Defendant Ferguson reloads his firearm and numerous other officers have arrived at the scene and are standing near Mr. Clark.
84. Defendant Ferguson then walks closer towards Mr. Clark.
85. Defendant Cole also conducts a tactical reload on the scene. This is against policy or training.
86. At 01:00:27, Defendant Cole is asked if Mr. Clark shot at Defendant Cole or Defendant Ferguson. Defendant Cole evades the question and says: “I fired at him and county fired the shots as well.”
42 One of the casings discharged from Defendant Cole’s firearm was never recovered.
87. At 01:01:34, Defendant Ferguson states that he did not see Mr. Clark carrying a gun.
88. Neither Cole or Ferguson render aid to Mr. Clark in violation of training or policy. 43
89. Shortly after 1:02 a.m., more law enforcement officers arrive:
a. Clackamas County Sheriff’s officers: Nicholas Adler, Jason Bento, Matthew Brown, Hector Campos, Ryan Castro, Shawn Choe, Aaron Clark, Jordan Ferguson, Sierra Hancock, David Heimbuck, Nathan Hulsey, Andy Kiesel, Kyle Malizia, Donald McCafferty, Beth Mayer, Jered Reynolds, Ryan Rogers, Peter Robinson, Hayden Sanders, Kyle Scott, Samuel Tooze, Adam Taylor, Michael Zacher, Grant Zaitz;
b. Oregon City Police officer Alexander Mawson;
c. Defendants Does I through X.
90. Responding officers do not promptly render any medical aid to Mr. Clark. This is against policy or training. 44
91. At 01:02:01, against policy or training Defendant Ferguson and Defendant Cole discuss their stories of what happened and laugh. 45
92 At 01:10:40, Mr. Clark’s moans are ignored. Defendant Beth Meyer, who is with Defendant Cole on the railroad tracks, hears the sound and says “is someone yelling help?” Defendant Cole tells Defendant Meyer it sounded like “shut up” to him. 46
93. At 01:11:17, Defendant Ferguson is asked by Defendant Heimbuck if he wants to go back to the police station. Defendant Ferguson says he too does not know what to do because “[Defendant Ferguson] has never done this before.”
94. Defendant Heimbuck replies, “Me either, man. I’m butchering this fucking thing right now; I don’t give a shit.” Defendant Ferguson asks if he can remain on duty. Defendant
Heimbuck agrees and informs another responding officer that Defendant Ferguson will remain on duty. This is a violation of policy or training. 47
95. At 01:12:54, an officer states over the radio that there is a heat signature coming from where Mr. Clark is lying down. No one renders aid in violation of training or policy. 48
96. At approximately 01:13, Defendant Zaitz is paged to initiate a Special Weapons and Tactics (SWAT) response to the scene when no force was threatened or used by Mr. Clark.
97. At 01:26:40, Defendant Hector Campos (who is chewing tobacco) and Defendant Kyle Scott, are laughing as they secure the perimeter near where Mr. Clark is lying down. This is against policy. 49
98. At 01:33:30, Defendant Cole starts to speak about the incident with Defendant Sgt. Kyle Malizia (Malizia), saying that Mr. Clark was running “pretty good,” but then mutes his body worn camera. This is against policy and/or Oregon law. 50
99. Defendant Malizia does not utilize his body worn camera to capture Defendant Cole’s statements. This is against policy and/or Oregon law. 51
100. At 01:32:30, Defendant Aaron Clark and Defendant Samuel Tooze, who are operating the drone note that Mr. Clark is not moving at all; that he is lying on the ground along with sanguine fluid meaning he is laying there in his own blood. None of them render aid in violation of policy. 52
101. The background image on Defendant A. Clark’s CCSO issued computer device is a meme featuring Portland local Fred Armisen, which states, “Clackamas County? Straight To Jail.” 53 This meme is based on a 2020 meme issued in the aftermath of George Floyd’s murder.
53 CCSO employees are cautioned that speech on or off duty, made pursuant to their official duties - that is, that owes its existence to the employee’s professional duties and responsibilities - is not protected speech under the First Amendment and may form the basis for discipline if deemed detrimental to the CCSO. All employees should assume that their speech and related activity on social media sites will reflect upon their employment and the Sheriff’s Office. CCSO, Policy #17, 3(b).
This is the original meme obtained from the internet
102. Defendant A. Clark's display of the meme on the screen under the authority of Defendant County and presumably with its consent, suggests an inherent bias by Defendants in the context of the Black Lives Matter (BLM) movement and specifically Mr. Clark a BLM victim.
103 At 01:33:48, drone operator Defendant Tooze tells Defendant A. Clark “there is no reason to rush this,” or move the drone closer to “force him [Mr. Clark] to move.”
104. Moments later Defendant Tooze confirms over radio that Mr. Clark has not moved “since [A. Clark & Tooze] have laid eyes on him.” But says he won’t “hedge a bet” as to whether Mr. Clark is alive or not.
105. 19 minutes later at 1:52:30, the drone operators confirm there is still no movement.
106. At 2:15:30, CCSO SWAT 54 Defendants Castro, Hawkins, Hulsey, Robinson, Sanders, Mawson, et al. (SWAT Defendants) gather at a nearby commercial parking lot with a Mine Resistance Ambush Vehicle (MRAP).
107 A CCSO perimeter deputy tells a SWAT Defendants a “deputy saw [Mr. Clark] move once but he has just been laying prone,” facing the fence. No one has seen Mr. Clark move since about 80 minutes ago when he fell to the ground after being shot the eighth time at 12:55:00.
108. At 2:16:59, the SWAT Defendants joke that they will “eventually” have probable cause.
109 At 02:17:26, a SWAT Defendant sings a song to “bring the action.”
110 At 2:19:33, the SWAT Defendants discuss movies, their nighttime dreams, South Park, joke around, and continue to exchange laughter.
111. At 2:20:37, the SWAT Defendants laughingly discuss the prospect of Mr. Clark “flanking” them (coming at them from the sides).
112. At 2:21:27, the SWAT Defendants discuss deploying gas towards Mr. Clark using a turret.
113 At 2:23:15, the SWAT Defendants notice the gun thrown over the fence on the ground back in the parking lot of the commercial parking lot.
114. At 2:26:59, Defendant SWAT Crisis Negotiation responder and SWAT Defendants make two announcements over the speaker to the Mr. Clark to come out, unarmed, with his hands up. There is no response from Mr. Clark who is either dying or dead.
54 The officers cannot all be identified by name on the video but will be identified during discovery.
115. At 2:27:44, the SWAT Defendants make a third announcement: if Mr. Clark does not cooperate, force will be used against him. This is followed by repetitions of this announcement. There is no response from Mr. Clark who is either dying or dead.
116 At 02:31:18, Defendant Sanders throws an explosive device at Mr. Clark and the device explodes. This is a violation of policy. 55 Defendants observe that Mr. Clark does not move at all. There is “zero movement.”
117. The SWAT Defendants know if an explosive strikes at or near a person and there is no movement, the person is either incapacitated or dead. Defendants know at this point that Mr. Clark is either incapacitated, dying or dead.
118 At 2:33:56, a SWAT Defendant tells another SWAT Defendant to “maybe remind him of force, although [Clackamas County Sheriff’s Office] is already using force.”
119. At 2:34:05, Defendant Sanders throws a second explosive device at Mr. Clark who does not move at all. This is a violation of policy. 56 The SWAT Defendants exchange laughter. A SWAT Defendant says, “no screamin’.” Defendants know at this point that Mr. Clark is either incapacitated, dying or dead.
120. At 2:35:10, the SWAT Defendants instruct Mr. Clark to “waive your arms if you can hear us.” They say: “He dead.” … “Aren’t you recording?” … “I don’t care.”
121. At 2:35:24, the SWAT Defendants are laughing and say: “He’s flying supine!” … “That’s a big fucking person compared to what we are” … “look at [Mr. Clark’s] legs.”
122. At 2:35:30, a SWAT Defendant laughs: “he dead” … “a warm dead deer”
123. At 2:36:07, a SWAT Defendant tells another to tell Mr. Clark: you can come out if you are injured and “we can give you aid and shit.” This is the first time in almost two hours that Defendants talk about rendering aid to Mr. Clark.
124 At 2:36:22, a SWAT Defendant instructs Mr. Clark to waive his arms if he can hear them.
125. At 2:36:56, SWAT Defendants discuss the likelihood of Mr. Clark bleeding out.
126. At 2:37:55, SWAT Defendants estimate Mr. Clark is “less than six feet” from them; likely within “three to four” feet.
127. At 2:38:32, Defendant Sanders throws a third explosive device at Mr. Clark who again does not move. 57
128 At 2:39:18, a SWAT Defendant says he does not see any reason to wait any longer.
129. At 2:39:46, a SWAT Defendant again says, “He dead” and belches.
130. At 2:39:55, a SWAT Defendant says, “I think they think they hit him.”
131. At 2:40:22 a SWAT Defendant tells Mr. Clark they are not going anywhere.
132 At 2:40:50, SWAT Defendants agree the heat signature from the drone is “too unique” to be an animal, adding, “if it were an animal, we would have scared the fuck out of it.”
133. At 2:40:56, a SWAT Defendant describes the heat signature on the drone to be “humanoid.”
57 CCSO Policy no. 39 (13-14).
These images illustrate heat signatures emanating from Mr. Clark
134. At 2:41:33, a SWAT Defendant guesses that Mr. Clark swallowed fentanyl.
135. At 2:42:38, SWAT Defendants laugh, say they are done here, with Defendant Mawson pronouncing: “This ole boy is dead.”
136 At 2:44:41, a SWAT Defendant says they are “just going to do some janky shit and get it done.”
137. At 2:44:28, one Defendant SWAT responder tells another that Mr. Clark is laying on his back with his head turned towards the tracks.
138. At 2:44:52, a SWAT Defendant instructs Mr. Clark to come out with his hands up or a dog will be sent to bite him.
139 At 2:44:56, a SWAT Defendant says, “let’s just bite him already.”
140 At 2:45:15, on SWAT Defendant says, “This ole boy is no longer with us.” Another replies, “And he’s going to have a dog bite.”
141. At 2:46:04, a SWAT Defendant says if Mr. Clark comes up the tracks, they’ll “40” him (which means to shoot him.) Another guesses Mr. Clark ingested pills to explain why he hasn’t moved. Another says they suspect Mr. Clark is dead but it is “not confirmed.”
144. At 2:47:40, a SWAT Defendant asks if the SWAT team if they want a description of the “man in the bushes” and laughs.
145 At 2:48:20, SWAT Defendants instruct Mr. Clark to acknowledge them by waving his arms. He’s told to “get up” and walk towards the railroad tracks with his arms up.
146 At 2:49:00, a SWAT Defendant says to Mr. Clark to come out with his hands up, or a dog will be sent towards him, that the dog will bite him, and that they will use a fortymillimeter munition.
147. At 2:50:29, SWAT Defendants tell Mr. Clark that if he wants aid he needs to surrender and that they will provide him with aid.
148 At 2:51:25, SWAT Defendants discuss how easy “this drone shit” makes their lives. A SWAT Defendant says, “Can you imagine, we would have had to do some old school fucking search for him?” A SWAT Defendant responds, “He would have been dead, and some Union Pacific guy would be like, ‘Oh there’s a guy dead on the tracks.’”
149. At 2:51:35, SWAT Defendants say they have done everything to deescalate. They laugh as they discuss de-escalation and “not getting suckered into that.”
150 At 2:51:46, a SWAT Defendant begins to whistle a showtune prior to telling Mr. Clark to surrender again otherwise force will be used.
151. At 2:52:13, a SWAT Defendant looks at a drone image and says, “I don’t think he is hiding,” he is unconscious or dead.
152 At 2:52:26, the SWAT Defendants talk about who shot Mr. Clark and conclude it was the Oregon State Patrol.
153 At 2:52:32, Defendant McCafferty approaches Mr. Clark, releases a dog, and the dog bites Mr. Clark’s body. This is a violation of policy. 58 While watching the live drone feed, a SWAT Defendant, describes the dog being on Mr. Clark’s face. The dog bites Mr. Clark on the torso. A SWAT Defendant again says, “He dead.”
58 CCSO Policy no. 39 (13-14).
156. Approximately 120 minutes (two hours) elapsed from the moment where the eighth shot hit Mr. Clark to the time when he was bitten by the police dog, approached, and pronounced dead.
157 During that span of time, over 50 law enforcement officers at the scene either neglected, refused, or otherwise failed to render aid to Mr. Clark. This is a violation of the policy of Defendant officers’ respective departmental policies. Had appropriate aid been provided, Mr. Clark could have survived.
D. The conduct of the Clackamas County deputies violated law, policy, procedures and training
158. The conduct of the Clackamas County Sheriff’s deputies identified in the above paragraphs (35-157 of this complaint) violated the Clackamas County Sheriff’s Office policy, tactics, training, discipline, and actions. 59 The guiding principles of the office are designed to instill confidence in institutions like a police department not only as to process but also as to outcomes, but were violated as follows:
a. Failed to protect and serve Mr. Clark, failed to respect his life and the dignity of his person in violation of the Principle of Respect; 60
b. Failed to save Mr. Clark’s life and aid him after Deputy Ferguson unlawfully shot him in violation of the Principle of Balance and associated value of Public Service; 61
c. Failed to treat Mr. Clark equitably, fairly, and justly in the manner in which they treated him and spoke about him regardless of his race in violation of the Principle of Fairness; 62
d. Discredited the sheriff’s office and the profession by their conduct; 63
59 CCSO Policy #2, Principles of the CCSO.
60 CCSO Policy #2, Principles of the CCSO, Respect.
61 CCSO Policy #2, Principles of the CCSO, Balance.
62 CCSO Policy #3, Principles of the CCSO, Fairness.
63 CCSO Policy #4, Principles of the CCSO, Integrity.
e. Failed to meet the higher standard of conduct and expectation of setting an example for other officers in the manner in which they treated Mr. Clark in violation of the Principle of Ethical Performance; 64
f. Failed to treat Mr. Clark with fundamental fairness and equity in violation of the Principle of the Reverence for the Law. 65
159 In addition to the Principles articulated in Paragraph 158 of the Amended Complaint, the following Clackamas County deputies violated the County’s individual policies and training:
a. In addition to failing to render aid, Defendant Ferguson violated the County’s pursuit policy, body worn camera policy, pursuit training, and excessive force policy as alleged in Paragraphs 45, 47, 48, 52, 55, 56, 65, 70, 72, 74 of the Amended Complaint;
b. Defendant Meyer failed to render aid to Mr. Clark despite hearing his moans in violation of policy and training as alleged in Paragraphs 91-92 of the Amended Complaint;
c. Defendant Campos failed to render aid to Mr. Clark and instead chewed tobacco in violation of training and policy as alleged in Paragraph 97 of the Amended Complaint;
d. Defendants A. Clark and Tooze failed to render aid to Mr. Clark and watched him bleed out on drone footage in violation of training and policy as alleged Paragraphs 100 to 106 of the Amended Complaint;
e. The SWAT Defendants failed to render aid to Mr. Clark and instead joked around, mocked, and insulted Mr. Clark using racial tropes, dehumanizing language, and biased words as alleged in Paragraphs 107-154 of the Amended Complaint;
f. Defendant Sanders used excessive force in violation of policy on three separate occasions when he threw explosives at Mr. Clark’s incapacitated, dying or dead body as alleged in Paragraphs 116, 119, and 127 of the Amended Complaint;
64 CCSO Policy #5, Principles of the CCSO, Ethical Performance.
65 CCSO Policy #5, Principles of the CCSO, Reverence for the Law.
g. Defendant McCafferty used excessive force in violation of policy when he had his dog bite Mr. Clark’s dying or dead body as alleged in Paragraph 153 of the Amended Complaint.
160 The number of violations of Principles, policies, and trainings described in the Amended Complaint and the number of deputies involves in those violations plausibly suggests that there is a permanent and well settled unconstitutional custom or culture that is unwritten at the Clackamas County Sheriff’s Office, an unconstitutional custom or culture that is unwritten and informal, where the civil rights of non-whites are disregarded.
161. The number of violations of Principles, policies, and trainings described in the Amended Complaint and the number of deputies involves in those violations plausibly suggests that there is a persistent and widespread practice where the civil rights of non-whites are disregarded, a practice that is protected by a blue wall of silence because no officer reported the misconduct in reports they were ordered to prepare at the direction of Sergeant Hulsey.
162. Sheriff Brandenburg and her leadership’s failure to publicly discipline any of the involved deputies for violations alleged in the Amended Complaint plausibly suggests they ratified all their actions either through action or inaction.
VII. Causes of Action CLAIMS AGAINST DEFENDANT CLACKAMAS COUNTY
Count 1
Excessive Force
(42 U.S.C. § 1983: Fourth and Fourteenth Amendments)
163. The plaintiffs repeat and re-allege paragraphs 1 through 163 of this complaint as if fully set forth herein.
164. Defendant Clackamas County has an unwritten custom and culture where the civil rights of non-whites are disregarded given its history, its disproportionate use of force on Blacks given the overall population of Blacks in the county, its training, the repeated use of excessive force used against Mr. Clark who was Black, and the pattern of conduct exhibited by numerous officers in this case in failing to provide Mr. Clark aid while they engaged in racially derogatory and demeaning tribal behavior, and other acts.
165. The Defendant Clackamas County Sheriff knew or reasonably should have known that the unwritten custom and culture would cause deputies to violate Mr. Clark’s constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution.
166. The unwritten custom and culture resulted in the violation of Mr. Clark's constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution.
167. These violations directly and proximately caused harm to Mr. Clark, his Estate, his mother, his daughter, and his brother.
Count 2
Failure to Provide Medical Care
(42 U.S.C. § 1983: Fourteenth Amendment)
168. The plaintiffs repeat and re-allege paragraphs 1 through of 167 of the complaint as if fully set forth herein.
169 Defendant Clackamas County has an unwritten custom and culture where the civil rights of non-whites are disregarded given its history, its disproportionate use of force on Blacks given the overall population of Blacks in the county, its training, the repeated use of excessive force used against Mr. Clark, and the pattern of conduct exhibited by numerous officers in this case in failing to provide Mr. Clark aid with deliberate indifference to his medical needs, while mocking and mutilating his incapacitated, dead or dying body.
170. The Clackamas County Sheriff knew or reasonably should have known that the unwritten custom and culture would cause deputies to violate Mr. Clark’s constitutional rights under the Fourteenth Amendment to the United States Constitution.
171. The unwritten custom and culture resulted in the violation of Mr. Clark's constitutional rights under the Fourteenth Amendment to the United States Constitution.
172. These violations directly and proximately caused harm to Mr. Clark, his Estate, his mother, his daughter, and his brother.
Count 3
Loss of Society and Companionship
(42 U.S.C. § 1983: Fourteenth Amendment)
173. The plaintiffs repeat and re-allege paragraphs 1 through 172 of this complaint as if fully set forth herein.
174. As a result of the allegations contained in this Complaint, Defendant Clackamas County is liable to Plaintiff Sarah Miles, R.L.C., and D.M.M. for violating their Fourteenth Amendment right to society and companionship with Derrick Clark by
engaging in conduct that shocks the conscience, conduct that unlawfully caused Mr. Clark’s suffering, death and posthumous mutilation.
175 Mr. Clark’s death under the circumstances directly flows from an unwritten custom and culture where the civil rights of non-whites are disregarded given its history, its disproportionate use of force on Blacks given the overall population of Blacks in the county, its training, the repeated use of excessive force used against Mr. Clark, and the pattern of conduct exhibited by numerous officers in this case in failing to provide Mr. Clark aid and other actions as alleged.
Count 4
Assault/Battery
176. The plaintiffs repeat and re-allege paragraphs 1 through 175 of this complaint as if fully set forth herein.
177. As a result of the allegations contained herein, Clackamas County is vicariously liable to the Estate of Derrick Dewayne Clark, Jr. for assault and battery.
178 Defendant Ferguson struck Mr. Clark’s vehicle with his vehicle twice, unlawfully shot at Mr. Clark numerous times, wounded him, deputies who work for Clackamas County threw explosives at him and had a dog bite him.
179. As a result of these acts Clackamas County is vicariously liable to the Estate of Derrick Dewayne Clark, Jr. for assault and battery.
180 These violations directly and proximately caused harm to Mr. Clark, his Estate, his mother, his daughter, and his brother.
Count 5
Negligence
181. The plaintiffs repeat and re-allege paragraphs 1 through 180 this complaint as if fully set forth herein.
182. To the extent the actions of Defendants were not intentional, the Defendants were negligent.
183. Defendant Ferguson struck Mr. Clark’s vehicle with his vehicle twice, unlawfully shot at Mr. Clark numerous times, wounded him.
184. Defendant deputies who work for Clackamas County threw explosives at and order a dog to bite Mr. Clark.
185. Defendants failed to provide Mr. Clark with aid.
186. In the alternative and to the extent it is established at trial that Mr. Clark was deceased when explosives were used against him and a dog was sent to bite him, Defendant is negligent per se for abusing a corpse in violation of Section 166.087 of Oregon law.
187. As a result of these failures, Defendant Clackamas County is vicariously liable to the Estate of Derrick Dewayne Clark, Jr. for negligence.
188. The Defendants’ negligence directly and proximately caused damages.
189. These violations directly and proximately caused harm to Mr. Clark, his Estate, his mother, his daughter, and his brother.
190. The plaintiffs repeat and re-allege paragraphs 1 through of 189 complaint as if fully set forth herein.
191. As a result of the allegations contained herein, Defendant Ferguson and Defendant Cole are liable to the Estate of Derrick Dewayne Clark, Jr. for violating Mr. Clark’s Fourth and Fourteenth Amendment rights by subjecting him to excessive, unreasonable, and deadly force, for causing his death and failing to render medical aid on June 18, 2022.
Count 7
Failure to Provide Medical Care
(42 U.S.C. § 1983: Fourteenth Amendment)
192. The plaintiffs repeat and re-allege paragraphs 1 through 191 of this complaint as if fully set forth herein.
193. As a result of the allegations contained herein, each of the individual defendantofficers and the Officer Doe defendants are liable to the Estate of Derrick Dewayne Clark, Jr. for violating Mr. Clark’s Fourteenth Amendment rights by failing to provide necessary medical care to him and in their deliberate indifference to his medical needs.
Count 8
Loss of Society and Companionship
(42 U.S.C. § 1983: Fourteenth Amendment)
194. The plaintiffs repeat and re-allege paragraphs 1 through 193 of this complaint as if fully set forth herein.
195. As a result of the allegations contained in this Complaint, all individually named officers and Doe Defendants are liable to Plaintiff Sarah Miles, R.L.C., and D.M.M. for violating
their Fourteenth Amendment right to society and companionship with Derrick Clark by engaging in conduct that shocks the conscience, conduct that unlawfully caused Mr. Clark’s suffering and death.
Count 9
Intentional Discrimination
(42 U.S.C. § 1983: Fourteenth Amendment)
196. The plaintiffs repeat and re-allege paragraphs 1 through 195 of this complaint as if fully set forth herein.
197. As a result of the allegations contained herein, each of the individual defendants is liable to the Estate of Derrick Dewayne Clark, Jr. for intentional discriminatory treatment based on his race and national origin in violation of the Fourteenth Amendment of the U.S. Constitution and of 42 U.S.C. §§ 1981 and 1983.
198. As a proximate result of the defendants’ intentional discrimination, the Estate of Derrick Dewayne Clark, Jr. has suffered damages in an amount to be determined at trial.
Count 10
Conspiracy to interfere with civil rights
(42 U.S.C. § 1985(3): Conspiracy)
199. The plaintiffs repeat and re-allege paragraphs 1 through 197 of this complaint as if fully set forth herein.
200. As a result of the allegations contained here, each of the individual defendants is liable to the Estate of Estate of Derrick Dewayne Clark, Jr. for conspiracy.
201. The purpose of the conspiracy was to deprive Mr. Clark his rights under the Fourth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Due
Process clause of the Fourteenth Amendment in the manner in which two officers chased him down, shot at him, numerous officers left him to die without rendering aid while making racist and biased comments, and continuing to use force against him as he laid motionless throwing explosives at him and having a dog bite him.
202. The acts described in Paragraph 201 were taken in furtherance of the conspiracy.
203. The conspiracy injured Mr. Clark in that he was wounded, suffered pain, and ultimately died from his injuries.
204. The conspiracy had some racial animus based on the actions of the officers described in Paragraph 201 but also the manner in which they spoke about Mr. Clark throughout the incident.
205. These violations directly and proximately caused harm to Mr. Clark, his Estate, his mother, his daughter, and his brother.
VIII. JURY DEMAND
Plaintiffs demand a trial by jury.
IX. PRAYER FOR RELIEF
WHEREFORE, the plaintiffs pray that the Court award:
A. Compensatory and consequential damages to the Estate of Derrick Dewayne Clark, Jr., in an amount to be proven at trial;
B. Compensatory damages to Plaintiffs, individually, for the loss of the society and companionship of her son, in an amount to be proven at trial;
C. Punitive damages, in an amount to be proven at trial;
D. Reasonable attorneys’ fees, costs, and prejudgment interest incurred in pursuing this action as provided for in 42 U.S.C. § 1988; and
E. Any such other relief that this Court deems just and equitable under the circumstances of this case.
DATED this 21st day of March, 2024.
GRUBE OREHOSKI, PLLC
/s/ Joseph A. Grube
Joseph A. Grube, OSB 96976 joe@go-trial.com
1200 Fifth Avenue, Ste 1711 Seattle, WA 98101 Ph. 206.624.5975
STRITMATTER KESSLER KOEHLER MOORE
/s/ Karen K. Koehler
Karen K. Koehler, WSBA 15325 (Adm. Pro Hac Vice)
/s/ Mohammad “Mo” Ali Hamoudi
Mohammad “Mo” Ali Hamoudi, WSBA 48512 (Adm. Pro Hac Vice)
karenk@stritmatter.com mo@stritmatter.com
3600 15th Avenue W., #300 Seattle, WA 98119
Phone: 206.448.1777
Counsel for Plaintiffs
STRITMATTER
CERTIFICATE OF SERVICE
I hereby certify that on the date below, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system, which in turn automatically generated a Notice of Electronic Filing to all parties in the case who are registered users of the CM/ECF system and which specifically identifies recipients of electronic notice. The same being sent via email to the following:
Ellen F. Rosenblum
Attorney General
James S. Smith, OSB#840932
Senior Assistant Attorney General Department of Justice
100 SW Market Street
Portland, OR 97201
Ph. 971-673-1880
Fx. 971-673-5000
James.s.smith@doj.state.or.us
matthew.sullivan@doj.state.or.us
Jason.Lohman@doj.state.or.us
Counsel for Defendants Cole
Scott Ciecko, OSB#045587
Clackamas Co Legal Counsel 2051 Kaen Road
Oregon City, OR 97045
Ph. 503-742-5391
sciecko@clackamas.co
Counsel for Defendants Clackamas Co. and Ferguson
Andrew D. Campbell, OSB#022647
Helzel Williams, PC 117 Commercial Street NE, Ste 400 PO Box 1048
Salem, OR 97308
Ph. 50-585-4422 x 314
andrew@helzel.com
Counsel for Defendant Mawson
DATED this 21st day of March, 2024.
/s/ Kristin Michaud
Kristin Michaud
Paralegal to Karen Koehler