Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 1 of 37

Beth Creighton, OSB #972440
E-mail: beth@civilrightspdx.com
Michael E. Rose, OSB #753221
E-mail: mrose@civilrightspdx.com
Laura Koistinen, OSB#175123
E-mail: laura@civilrightspdx.com
CREIGHTON & ROSE, PC
300 Powers Building
65 S.W. Yamhill Street
Portland, Oregon 97204
Phone: (503) 221-1792
Fax:
(503) 223-1516
Of Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CORY ELIA and LESLEY MCLAM,
Plaintiffs,
vs.
MAYOR TED WHEELER, JAMI RESCH,
CHARLES LOVELL III, ERICA HURLEY,
WILLIAM KEMMER, JOHN BARTLETT,
MICHELLE PETTY, OFFICERS JANE
DOES and JOHN DOES 1-31, CITY OF
PORTLAND, STATE OF OREGON,
OREGON STATE TROOPERS JANE
DOES AND JOHN DOES, MULTNOMAH
COUNTY, JONELLE OLSZEWSKI,
MULTNOMAH COUNTY SHERIFFS
JANE DOES AND JOHN DOES 1-14, all in
their individual capacities and official
capacities,

Case No. 3:20-cv-1106
COMPLAINT
(Civil Rights - 42 USC § 1983 - First
Amendment, Fourth Amendment,
Fourteenth Amendment, 42 USC § 1981,
42 USC § 1985, Battery, Assault,
Negligence, False Arrest, and 28 USC §
2201, et seq., Declaratory Relief)

JURY TRIAL REQUESTED

Defendants.

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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Filed 07/08/20

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I.
INTRODUCTION
1.

Pursuant to 42 USC § 1983, Plaintiffs allege the deprivation of rights guaranteed

to them by the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution,
and the right to protest non-white citizens’ not having equal benefits of all laws enjoyed by
whites pursuant to 42 USC §§1981 and 1985. Plaintiffs also bring pendant state law claims for
battery, assault, negligence, and false arrest. They seek declaratory relief, equitable relief,
damages, attorneys’ fees and litigation expenses/costs, including expert witness fees and
expenses.
II.
JURISDICTION
2.

This court has jurisdiction by virtue of 28 USC § 1331, 28 USC § 1343 and 28

USC § 1367. Venue is proper in this district pursuant to 28 USC §§ 1391 (b) and 1391 (e). Most
of Defendants are located in Multnomah County, Oregon, and the events underlying this
Complaint took place therein, making venue proper in the District of Oregon, Portland Division.
III.
PARTIES
3.

At all times material herein, Plaintiff Cory Elia (hereafter “ELIA”) is a freelance

journalist, videographer, photographer and managing editor for Village Portland who has
reported on matters of public interest for KBOO Community Radio, for the student-run Portland
State University newspaper, the Vanguard, and is documenting the Black Lives Matter

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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movement in Portland, Oregon.
4.

At all times material herein, Plaintiff Lesley McLam (hereafter “MCLAM”) is an

independent journalist who has reported on matters of public interest for Village Portland, The
Bridge and KBOO Community Radio, and is currently reporting on the Black Lives Matter
movement in Portland, Oregon.
5.

The City of Portland (herein “Portland”) is a municipality which was and is a

public body in the State of Oregon and is responsible under state law for the acts and omissions
of its law enforcement officers, agents, and other employees, including those whose conduct is at
issue herein. The City of Portland purports to “operate without regard to race, color, national
origin, religion, sex, sexual orientation, gender identity, marital status, age or disability in
accordance with the Civil Rights Act of 1964, the Civil Rights Restoration Act of 1987....ORS
chapter 659A, and Portland City Code Chapter 23. Title VI of the Civil Rights Act requires that
no person in the United States shall be excluded from participation in, be denied the benefits of
or otherwise be subjected to discrimination under any City program or activity, on the grounds of
race, color, or national origin.”1
6.

Defendant Ted Wheeler (herein “Defendant Wheeler”) is the Mayor of the City of

Portland, oversees the Portland Police Bureau (herein “PPB”) and is responsible for legislative
policy. He took an oath of office that states “I , Ted Wheeler, do solemnly (affirm or swear) that I
will support the Constitutions of the United States and of the State of Oregon and the Charter of
the City of Portland and its laws; I will faithfully, honestly and ethically perform my duties as
Mayor...” At all times relevant herein, he was acting under color of state law and in the scope of
1

https://www.portlandoregon.gov/OEHR/article/513751.
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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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his employment with the City of Portland.
7.

The purported mission of the Portland Police Bureau (herein “PPB”) is “to work

with the community to create and maintain safe neighborhoods. We reduce crime and the fear of
crime by working with all citizens to preserve life, maintain human rights, protect property and
promote individual responsibility and community commitment.” Each of PPB’s officers takes an
oath of office: “I, (name), do solemnly (affirm or swear) that I will support the Constitutions of
the United States and of the State of Oregon and the Charter of the City of Portland and its laws;
and I will faithfully, honestly and ethically perform my duties as (officer).”
8.

Defendant Jami Resch (herein “Defendant Resch”) was the Chief of the Portland

Police Bureau from December 31, 2019, through June 8, 2020. Defendant Charles Lovell III
(herein Defendant Lovell”) was the Chief of the Portland Police Bureau from June 8, 2020,
through the present. During the time they were Chief, they were each responsible for managing
and directing the Portland Police Bureau and coordinating emergency response. Resch and Lovell
were the chief policy-makers for the Portland Police Bureau during their respective times as
Chief. At all times relevant herein, they were acting under color of state law and in the scope of
their employment with the City of Portland.
9.

Defendant Erica Hurley (herein “Defendant Hurley”) is a Captain with the

Portland Police Bureau and serves as a deputy incident commander for the City of Portland’s
police response to the protesters. At all times relevant herein, she was acting under color of state
law and in the scope of her employment with the City of Portland.
10.

Defendant William Kemmer (herein “Defendant Kemmer”) is an employee with

the Portland Police Bureau who has been responding to protests on behalf of the City of Portland.

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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At all times relevant herein, he was acting under color of state law and in the scope of his
employment with the City of Portland.
11.

Defendant John Bartlett (herein “Defendant Bartlett”) is an employee with the

Portland Police Bureau who has been responding to protests on behalf of the City of Portland. At
all times relevant herein, he was acting under color of state law and in the scope of his
employment with the City of Portland.
12.

Defendant Michelle Petty (herein “Defendant Petty”) is an employee with the

Portland Police Bureau who has been responding to protests on behalf of the City of Portland. At
all times relevant herein, she was acting under color of state law and in the scope of her
employment with the City of Portland.
13.

Defendant Officer John and Jane Does 1-31 are employees with or agents of the

Portland Police Bureau who have been responding to protests on behalf of the City of Portland
and include incident commanders. The precise number and true identity of these defendants are
presently unknown to Plaintiffs. At all times relevant herein, these defendants were acting under
color of state law and in the scope of their employment with the City of Portland.
14.

On or about June 15, 2020, Portland City Commissioner Jo Ann Hardesty stated,

“As our city enters its third week of protests, I remain concerned over the excessive force
continually shown by Portland police against protesters and members of the media. This conduct
is simply not acceptable. People protesting systemic change should not be assaulted; Members of
the media documenting the protests should not be assaulted. While no one deserves to be met
with the over-the-top response we’ve seen these past few weeks, it is particularly troubling to see
this violence being carried out towards members of the media. The press acts as an accountability

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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measure during times like these and without them we would not know the extent to which people
are being harmed because they’re standing up for Black lives.” She further declared, “ Freedom
of the press is a constitutional right that I do not take lightly, especially during this moment. My
office continues to work in response to the call for a munitions ban and I will be meeting with
Chief Lovell to discuss these concerns.”
15.

Portland City Commissioner Chloe Eudaly “condemn[ed] the use of force against

members of the media in Portland and around the country. Not only does this interfere with
media doing their job and performing their essential watchdog role during this extraordinary time
in our nation's history, I believe it's a violation of their constitutional rights and international
human rights laws.”
16.

On June 17, 2020, Defendant Mayor Wheeler and current Police Chief Chuck

Lowell issued the following statement: “We were deeply disturbed to learn of incidents involving
journalists during the demonstrations.” Wheeler and Lovell further stated, "Members of the
media, not just in Portland but around the country, should not be targeted, hurt or arrested while
reporting on the demonstrations."
17.

At all times material herein, the Oregon State Police (herein “OSP”) was and is a

multi-disciplined organization charged with protecting the people, wildlife, and natural resources
in Oregon, and an agency of the State of Oregon established pursuant to ORS 181A.015. OSP
was responding to a mutual aid request in assisting the City of Portland with crowd control from
May 29, 2020, through the present.
18.

Defendant Trooper John Doe 1 and Does 2-5 are employees with or agents of the

State of Oregon who have been aiding and assisting the City of Portland. The precise number and

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

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true identity of these Defendants are presently unknown to Plaintiffs. At all times relevant herein,
these defendants were acting under color of state law and in the scope of their employment with
the State of Oregon.
19.

Oregon Speaker of the House, Tina Kotek, decried the actions of the Portland

Police (and law enforcement agencies assisting Portland) and declared, “A free press that holds
government accountable is the cornerstone of democratic societies. The physical intimidation of
journalists by Portland police officers is a threat to the First Amendment and a free press. It is
appalling and must stop.”
20.

Defendant Multnomah County (herein “Multnomah County”) is a public body that

employs law enforcement officers and controls the Multnomah County Detention Center.
Multnomah County was responding to a mutual aid request in assisting the City of Portland with
crowd control from May 29, 2020, through the present.
21.

Defendant Jonelle Olszewski (herein “Defendant Olszewski”) is an employee with

Multnomah County Sheriff’s Department who worked in the Multnomah County Detention
Center on the night of June 30, 2020, through the morning of July 1, 2020. At all times relevant
herein, she was acting under color of state law and in the scope of her employment with
Multnomah County.
22.

Defendant Sheriff John and Jane Does 1-8 are employees with or agents of

Multnomah County who have been aiding and assisting the City of Portland and/or worked in the
Multnomah County Detention Center on the night of June 30, 2020, through the morning of July
1, 2020. The precise number and true identity of these defendants is presently unknown to
Plaintiffs. At all times relevant herein, they were acting under color of state law and in the scope

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

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of their employment with Multnomah County.
IV. FACTUAL ALLEGATIONS
23.

Black American George Floyd was murdered on the streets of Minneapolis by a

police officer. For 8 minutes and 46 seconds the officer knelt on George Floyd’s neck while he
cried out for help, protested that he could not breathe and in his last moments cried out for his
“Mama” before becoming non-responsive. Onlookers filmed and begged the officer to get off
George Floyd’s neck. Three other officers stood by, without giving George Floyd assistance, as
their colleague slowly pressed the life out of Floyd with his knee to his neck. This incident
sparked a public reckoning with demonstrations worldwide denouncing police brutality and the
treatment of the Black communities by police.
24.

In Portland, Oregon there was a memorial for George Floyd on May 29, 2020.

Lawful assemblies against police brutality, the militarization of the police and the continued
murder of Black Americans at the hands of law enforcement officers have continued nightly
since then.
25.

The City of Portland requested law enforcement officers from the following

agencies to assist in the response in the Municipal Defendants’ response to the demonstrations,
including, but not limited to the Oregon State Police, the Oregon National Guard, Port of
Portland Police, Gresham Police, Milwaukie Police, Washington County Sheriff’s Office,
Clackamas County Sheriff’s Office, Columbia County Sheriff’s Office, Clark County Sheriff’s
Office, City of Vancouver Police and City of Washougal Police (herein collectively referred to as
“outside law enforcement agencies”). The outside law enforcement officers who answered
Portland’s call for assistance became agents of the City of Portland and were operating under

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

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Filed 07/08/20

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Portland’s direction, control and command.
26.

Members of law enforcement agencies from outside the state who participated in

Portland's incident response did so pursuant to interagency agreements subject to the provisions
of ORS 190.472 -.476. Members of outside law enforcement agencies from within the state who
participated in Portland's incident response did so pursuant to interagency agreements authorized
by ORS 190.010 -.030. At all times, the outside agency law enforcement officers were acting
under the direction, control and command of the Portland Police Bureau.
27.

On May 31, 2020, Defendant Wheeler imposed a curfew of 8:00 PM throughout

the City. Wheeler’s curfew specifically exempted “members of the news media.” On June 1,
2020, Wheeler renewed the order.
Https://www.portland.gov/sites/default/files/2020-06/signed-emergency-order-curfew-june-1-2.p
df
MUNICIPAL ALLEGATIONS
28.

Defendant Resch, Defendant Lovell, Defendant Hurley and the Municipal

Defendants authorized and directed John/Jane Doe officers to cover their name tags with tape
and substitute their personnel number while working on the street during protests. This policy
permitted Defendants John and Jane Does to actively conceal their identities from persons
including Plaintiffs, while infringing upon the First Amendment rights of Plaintiffs and peaceful
protesters for the purposes of avoiding legal accountability and depriving Plaintiffs of the
opportunity for redress of grievances through access to the courts.
29.

The Municipal Defendants created a custom or policy to permit the officers on the

scene to actively conceal their identities and authorized or permitted them to refuse to reveal their

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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Filed 07/08/20

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identities when they were asked and permitted the officers to wear one number on their person
and another on their helmet.
30.

The Municipal Defendants condoned a custom of permitting officers to violate

PPB Identification Policy 0312.50 which requires them to display their name tags on their
outermost garment and identify themselves upon request to a member of the public and to
document in a report refusals to provide identification.
31.

Defendant Resch, Defendant Lovell, Defendant Hurley and the Municipal

Defendants created a policy to kettle (also known as containment or corralling) protesters in an
area leaving them no viable exit while ordering protesters to leave the area, then use tear gas,
smoke bombs, pepper grenades, flash grenades, rubber bullets, foam-tipped munitions and batons
when the demonstrators cannot leave. These tactics make it more difficult for law-abiding
protesters and journalists to comply with police officers’ dispersal orders.
32.

Defendant Resch, Defendant Lovell, Defendant Hurley and the Municipal

Defendants created a policy or practice to provide unclear and confusing dispersal messages
which do not reduce the concentration of persons in the area, but instead move the intact crowd
into a mobile riot or panic that engulfs non-participating members of the community.
33.

Defendant Resch, Defendant Lovell, Defendant Hurley and the Municipal

Defendants created a policy or practice that uses a random, uncontrolled and dangerous
application of non-lethal technology that causes panic and incites counter-violence in the crowd.
The Municipal Defendants have also failed to adequately train their employees to respond to civil
disturbances and use the military equipment they possess.
34.

Defendant Resch and Defendant Hurley created a policy to ignore Defendant

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

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Filed 07/08/20

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Wheeler’s order exempting the press from the City-wide curfew on May 30, 2020, through June
1, 2020. Defendant Resch and Defendant Hurley communicated this order to rank-and-file
Portland Police Officers.
35.

The Municipal Defendants each have a custom or policy of violating the

constitutional rights of members of the press by arresting them, ignoring their credentials,
inhibiting and deterring (including, but not limited to shining flashlights into their cameras) the
lawful reporting of police brutality used against lawful protesters.
36.

The Municipal Defendants each have a custom or policy of using crowd control

munitions and indiscriminate force without probable cause against journalists while they are
engaged in lawful conduct.
37.

Defendants each have a custom or policy of failing to provide warnings before

using chemical agents and injurious force against protesters and journalists.
38.

The Municipal Defendants each have a custom or policy of using invasive cell

phone surveillance devices called “Stingray” technology, also known as DRT Boxes or “cell site
simulators” or “IMSI catchers,” that mimic cell phone towers and send out signals to trick cell
phones in the area into transmitting their locations and identifying information without a warrant.
This technology is being used to gather information about protesters’ and journalists’ cell phones
and gathers information about the phones of countless bystanders who happen to be nearby.
39.

The Municipal Defendants each have a custom or policy of using technology to

scramble or jam cell phone signals in the area in or around the protests, which has the effect of
preventing live streaming of their misconduct and reporting on their misdeeds.
40.

The Municipal Defendants each has a custom and/or policy of escalation of use of

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

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Filed 07/08/20

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force after the mainstream television and print news media leave the protests.
41.

On or about June 14, 2020, PPB announced that its dispersal orders apply to

everyone, including reporters and legal observers. The Municipal Defendants each have a custom
or policy of requiring the press to disperse, preventing the press from reporting on Defendants’
unlawful conduct during the dispersal.
42.

The Municipal Defendants have a custom and/or policy of arresting independent

journalists who are documenting their crowd control activities.
43.

The Municipal Defendants have a custom and/or policy of escalating and causing

exigent circumstances which they use to justify their unreasonable use of force.
44.

The customs and/or policies listed were the proximate cause of harm to Plaintiffs.
CORY ELIA

45.

On May 29, 2020, ELIA attended the memorial for George Floyd held in

downtown Portland, Oregon in order to document the emotional impact of the death of George
Floyd and weight of the Black Lives Matter Movement on the lives of the participants in the
memorial. The Portland Police showed up to the memorial to remember George Floyd, a victim
of police brutality, in full-on military riot gear with full plating and vests, kevlar, batons, tasers,
and assault rifles as if they were going to war.2 Based upon the conflict between the police and
the attendees and the level of aggression and brutality the Portland Police demonstrated against
the attendees, ELIA returned nightly to stand witness and provide eyes and ears for the world to
behold the Portland Police Bureau’s mistreatment of the demonstrators.
2

The Portland Police policies recognize the potential or perceived negative impact that
appearing in “protective gear” may have on the crowd. See PPB Crowd Management/Crowd
Control policy 0635.10 - 5.2.2.6.
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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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May 31, 2020
46.

On May 31, 2020, ELIA was providing press coverage of the demonstrations

against police brutality, the militarization of the police, and in support of the Black Lives Matters
movement. ELIA was documenting the actions of both the police and the demonstration
participants.
47.

As ELIA and a houseless reporter from Street Roots tried to leave downtown,

they saw a demonstrator run by them. Immediately thereafter, a Defendant John/Jane Doe 1
threw a flash bang device3 that exploded within feet of where ELIA and his colleague were.
Temporarily blinded and disoriented, they were swarmed by Portland Police Officers Defendants
John/Jane Does 2-6, who threatened to arrest them if they did not move “NOW!” They held out
their press passes and yelled “PRESS! PRESS!” and reminded the police officers that press were
exempt from the curfew order.
48.

Defendants Jane/John Does 7-9 made physical contact with ELIA’s torso and

pushed ELIA and his colleague backward, causing ELIA to stumble into his bike, hurting his
ankle in the process.
49.

As a direct and proximate result of this incident, in addition to his ankle injury,

ELIA experienced upset, distress, outrage, betrayal, offense and apprehension about returning to
document the Portland Police’s misconduct at future protests.
/////

3

A flash-bang is a non-lethal explosive device that is often used by police to stun and
disorient people. The devices make a loud noise and emit a bright flash of light when they
explode, temporarily blinding and deafening people nearby.
https://www.opb.org/radio/programs/thinkoutloud/segment/what-is-a-flash-bang/
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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

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June 2, 2020
50.

On the night of June 2, 2020, to the early morning hours of June 3, 2020, ELIA

was again reporting on the demonstrations against police brutality, the militarization of the police
and the support of the Black Lives Matter movement, documenting the actions of the police and
the demonstration participants. He was filming on SW 4th Avenue and SW Taylor St. near the
Justice Center.
51.

Participants in the demonstration marched up to the fence that PPB had erected

around the Justice Center and started shaking the fence. Defendant John Doe 10, without any
warning he would do so, deployed tear gas behind those supporters, trapping them between two
buildings and the fence, forcing people to run through tear gas to escape. ELIA was 10-15 feet
behind where the tear gas was deployed. For approximately 45 seconds, ELIA filmed the scene
unfolding as the police indiscriminately directed tear gas over the crowd, possible smoke bombs,
flash bangs, rubber bullets and foam-tipped projectiles into the crowd. This was contrary to the
PPB’s Crowd Management/Crowd Control Directive 0635.10.10.2 which mandates, “Member
shall not deploy specialty impact munitions or aerosol restraints indiscriminately into a crowd.”
52.

ELIA retreated back a half block to post his video on his Twitter account, and he

ducked into the alcove of a parking structure. Someone came up next to him. Thinking it was a
police officer, ELIA pulled out his press pass and raised it to display it clearly. “I’m a journalist”
he said.
53.

The person who approached him was just another demonstration participant, so

ELIA went back to his phone to post his video. As the person passed, ELIA clearly saw two
officers. Upon seeing the officers, ELIA displayed his press pass again and stated “I’m a

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

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Filed 07/08/20

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journalist, I am a journalist. I’m just trying to do my job. I’m getting out of your way. I’m sorry.”
54.

Immediately after hearing ELIA state he was a member of the press and viewing

his press pass, Defendant Jane Doe 10, raised her baton to a horizontal position, made contact
with ELIA’s upper left arm and chest and shoved him into wall, causing him pain.
55.

As the effects of the tear gas were taking hold ELIA’s eyes became clouded and

his lungs filled with tear gas. He started yelling, “I can’t see, I can’t breathe, I am a journalist.
Defendant Jane Doe 10 responded, “I don’t care, you need to move now.”
56.

Defendant John Doe 11 approached immediately after Defendant Jane Doe 10 and

stated, “I don’t give a shit if you are a journalist, you need to move NOW!” using his baton to
shove ELIA from behind, throwing him head first into the cement wall. The force of Defendant
John Doe 11’s shove caused the top of ELIA’s head to strike the wall. ELIA became disoriented,
fell onto his bike, striking his ribs on his handlebars, and falling to the ground. When he was on
the ground incapacitated, Defendant John Doe 11 began kicking him, telling him to get away
from the police line.
57.

Another independent journalist helped him escape further injury at the hands of

the police and took him to safety at SW Third Avenue and SW Yamhill Street. It took ELIA, who
has asthma, a few minutes to be able to breathe again. He vomited several times from the effects
of the tear gas, his eyes tearing and snot running out of his nose.
58.

As ELIA was sitting on the sidewalk on SW 3rd Avenue and SW Yamhill Street

recovering from the effects of the tear gas and trying to collect himself, a Portland Police Patrol
car drove by. There were no other people around. Officer John Doe 12 dropped another tear gas
canister right next to ELIA as he sat in a puddle of vomit. Again, ELIA experienced physical

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ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

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pain, burning, discomfort and exacerbation of his asthma from the effects of the tear gas.
59.

On June 3, 2020, ELIA went to the hospital and was diagnosed with a contusion

of the lumbar and spine, a wound to his right chest, and a closed head injury.
60.

On or about the night of June 6th, 2020, into the early morning of June 7, 2020,

ELIA was attending another event mobilized by the Black Lives Matters movement near the
Justice Center. A few rogue members of the crowd began cutting into the chain link fence that
Portland had erected in front of the Justice Center. In response, Defendants Jane/John Doe 13-17
deployed a pepper-spray bomb and started shooting rubber bullets and foam projectiles
indiscriminately into the crowd.
61.

ELIA attempted to escape the police’s attack upon his person by going up SW

Main Street toward SW 4th Avenue. After being blocked from exiting there by a line of police
officers, two female PPB officers directed ELIA to Lownsdale Square.
62.

When ELIA arrived at Lownsdale Square, he witnessed protestors bottlenecked

there and police officers beating them with batons. ELIA believed it was his civic duty as a
citizen and a journalist to document this event and pulled out his phone to video-record what was
happening. He simultaneously had his press pass in his other hand.
63.

Defendant John Doe 18 stood between ELIA and the officers who were beating

the protesters, looked at ELIA and his press pass, turned to look at what ELIA was filming (the
officers beating the protesters), then turned back to ELIA and deliberately and maliciously
deployed pepper spray directly in his face and eyes, coating his phone with the chemical agent.
64.

ELIA instantly fell to the ground, completely blinded, writhing in pain, the

pepper spray burning his nose, mouth, scalp, back of hands, causing his eyes and nose to water,

CRE IG H T O N
& RO S E , P C

PAGE 16 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 17 of 37

and exacerbating his pre-existing asthma. ELIA was screaming, “THEY JUST SPRAYED ME!
I’M DOWN. I CAN’T SEE. I WAS HOLDING MY PRESS PASS OUT. AHHHH.”
65.

Someone, believed to be a Portland Police Officer (Defendant John Doe 19)

walked up to ELIA, put his hands on ELIA’s shoulder and stopped the phone from live
streaming. Defendant John Doe 19 provided some water for ELIA’s eyes, but then abandoned
ELIA, making the conscious choice to leave the incapacitated ELIA on the scene to find his own
way out of the area.
66.

Still blinded by the pepper spray and yelling, “Can somebody help me? I’m

blind,” ELIA opened his right eye briefly and made his way to SW 3rd Avenue and SW Salmon
Street. In stumbling blindly, attempting to leave the area and get help, he smacked into a bench,
fell over the bench and head first into the pavement.
67.

ELIA went to the hospital the following day and was diagnosed with another

closed head injury.
June 30, 2020 - July 1, 2020
68.

On June 30, 2020, ELIA went to another demonstration in North Portland to

document the police activity and the events as they unfolded.4 He used his cell phone to live
stream the events to his twitter account (@theRealCoryElia) that night. He arrived shortly after
the police deployed tear gas into the crowd.5

4

The previous day his attorney sent a document preservation letter to the City Attorney
instructing the City to preserve all documents concerning the protests from May 29, 2020, to the
present.
5

Four days earlier, the City entered into Stipulated Additional Temporary Restraining
Order in Don’t Shoot Portland v. City of Portland, et al., 3:20-cv-00917-HZ, where the City was
ordered to restrict their use of tear gas to use as outlined in PPB’s Use of Force Directive 101. A
CRE IG H T O N
& RO S E , P C

PAGE 17 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

69.

Document 1

Filed 07/08/20

Page 18 of 37

While filming the officers who were standing in the police line, ELIA recognized

one of the PPB Officers as Defendant John Bartlett. ELIA said, “Are you Bartlett? I think I
recognize you from the other night....It’s Officer Bartlett, oh my goodness.”
70.

Looking surprised, Defendant Bartlett turned to his fellow officer and said

something. Within a minute, Defendant Barlett, Defendant Michelle Petty, Defendant John/Jane
Doe 20 and Defendant Trooper John Doe descended upon ELIA, grabbing his arm and forcing
him to the ground, dog-piling on top of him. ELIA had not committed any crime. ELIA did not
resist.
71.

As ELIA laid on his back with his knees up protecting his stomach and his arms in

front of his face, a PPB Officer, believed to be Defendant Officer Petty, knelt on his shins. As she
was positioning herself to restrain ELIA, ELIA was kicked in the scrotum, causing him pain and
discomfort. Based on information and belief the officer who kicked ELIA was Defendant Petty.
As he reacted to the pain of being kicked, ELIA’s legs jerked forward to protect himself.
72.

After being handcuffed and led to a police vehicle, ELIA requested that his friend

and coworker Leslie McLam be permitted to take his phone and press pass from him. Defendants
refused, then transported him to the Multnomah County Detention Center (herein “MCDC”).
73.

Once in MCDC, no officers were wearing masks. ELIA’s mask was taken from

him and he was not permitted to wear it. ELIA asked several times why the Sheriffs were not
wearing masks. Defendant Sheriff Doe 1 told ELIA to “Shut the fuck up.”
74.

Defendant John Doe put ELIA into an isolation cell for approximately an hour.

75.

When ELIA was returned to the holding cell at MCDC, he complained about the

motion for contempt is pending as a result of the PPB’s deployment of tear gas on June 30, 2020.
CRE IG H T O N
& RO S E , P C

PAGE 18 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 19 of 37

treatment of the other inmates, the lack of toilet paper in the holding cell, the Sheriffs’ ignoring
inmates calls for medical attention and the fact that the Sheriffs were denying Lesley McLam a
menstrual pad.
76.

After one or more of these complaints, Defendant Sheriff Jonelle Olszewski put

ELIA in the isolation cell again. ELIA began suffering a panic attack, experiencing severe
claustrophobia, heart racing, vomiting and mental anguish. It took over 30 minutes for a medic to
attend to him.
77.

ELIA was released at approximately 11:30 AM on July 1, 2020, on his own

recognizance, after spending over 10 hours in jail.
78.

ELIA was charged with Interfering with a Peace/Parole and Probation Officer,

Resisting Arrest, Disorderly Conduct in the First Degree and Assaulting a Public Safety Officer.
His court date was set for September 3, 2020.
LESLEY MCLAM
79.

On or about June 4, 2020, at SW 3rd Avenue in front of the Justice Center,

Plaintiff MCLAM was documenting the community’s protesting the treatment of George Floyd
and other Black Americans at the hands of the police and the police response to the community’s
demonstrating.
80.

MCLAM was wearing a black baseball cap with white lettering that identified her

as “PRESS,” a backpack that had “MEDIA” on it and prominently displayed her press pass on
her person. She was filming the events as they unfolded with her cell phone on a selfie stick.
81.

MCLAM saw a dumpster set on fire about a half a block away. The dumpster was

in a construction area behind barriers and some of the community members took down the

CRE IG H T O N
& RO S E , P C

PAGE 19 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 20 of 37

barrier. MCLAM went over to the area and started filming, narrating the events as they unfolded.
82.

While MCLAM was filming, police showed up in riot gear on the other side of the

barriers. The police announced the street was closed. As officers began to clear the street, they
yelled, “MOVE. MOVE!”
83.

MCLAM backed up and moved to the sidewalk next to a building to allow the

officers to pass and to not block people exiting from the street.
84.

As she was filming the events, Defendant Kemmer approached her. MCLAM

announced she was press and displayed her press badge. Without warning, Defendant Kemmer
violently grabbed her throat and shoved her backward. MCLAM was terrified, her heart
pounding and her breath taken away. She yelled “Don’t touch me!” several times and continued
saying “Press” with her badge displayed.
85.

Defendant Bartlett, along with Defendants John Doe 21 and 22, continued to

forcefully push MCLAM backwards as she continued to identify herself as press. Defendant
Bartlett yelled he did not care that she was press and pushed MCLAM again.
86.

Defendant Bartlett, along with Defendants John Doe 21 and 22, continued to force

MCLAM back into the street onto SW 3rd Avenue where a car sped by, narrowly missing her.
June 30, 2020 - July 1, 2020
87.

On June 30, 2020, MCLAM went to a demonstration in North Portland to

document the police activity and the events as they unfolded.6 She used her cell phone to record
the events and streamed to her twitter account (@human42LM) and to her Periscope account
6

The previous day her attorney sent a document preservation letter to the City Attorney
instructing the City to preserve all documents concerning the protests from May 29, 2020, to the
present.
CRE IG H T O N
& RO S E , P C

PAGE 20 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 21 of 37

(@Human42LesleyM) that night.
88.

MCLAM saw ELIA being arrested as he was walked to a police vehicle. She

started yelling that ELIA was a member of the press and that the police were arresting him
unlawfully and violating his First and Fourth Amendment rights. She asked permission to take
ELIA’s phone and press pass. Defendant Officers John and Jane Does 23-25 denied her request.
89.

As MCLAM attempted to film all of the identifying markings on the officers who

were present at the scene. She stood in the crosswalk in order to get to the sidewalk.
90.

MCLAM saw approximately 6 officers, Defendant Officers John Does 26-31,

rush toward her and they tackled her to the ground. MCLAM’s glasses flew off as she was
tackled and Defendant Officer 31 attempted to wrestle her phone from her grip. One or more of
Defendants Officers Does 26-31 hit and/or punched MCLAM in the legs and knees, causing
contusions and muscle pain and spraining her ankle. One or more of Defendant Officers Does
26-31 handcuffed MCLAM causing swelling, bruising and tenderness that lasted for several
hours.
91.

As she was on the ground, MCLAM yelled that she was a member of the press,

doing her job and that they could not arrest her for doing her job.
92.

During her arrest, MCLAM experienced stress and anxiety causing vomiting and

urinary incontinence.
93.

One or more of Defendant Officers Does 26-31 put MCLAM in a police van,

where she sat for over an hour. She overheard an officer saying they could not take the van to
MCDC yet because “it was not full enough.”
94.

MCLAM arrived at MCDC at approximately 2:09 AM on July 1, 2020. She was

CRE IG H T O N
& RO S E , P C

PAGE 21 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 22 of 37

concerned about her personal safety and refused to answer questions about her address while she
was booked. MCLAM did answer all other booking questions.
95.

A MCDC bookings employee who would not identify herself in any manner other

than “Mary,” became angry when MCLAM did not understand her instructions. Several
Defendant Sheriffs John Does 2-7 came over and put MCLAM in an isolation cell covered in
what appeared to be dried, sticky vomit and smeared feces. MCLAM was still in her pants, which
were soaked with urine.
96.

While in the isolation cell, MCLAM began cramping and thought the stress of the

situation caused her menstrual cycle to start early. There was no toilet paper or running water in
her cell. MCLAM rang the bell several times to get the sheriff’s attention, to no avail. She began
calling out “Can someone get me a pad?!?” One or more Defendant Sheriffs Does 8-9 ignored
her calls for assistance for over 30 minutes before she was brought a pad.
97.

MCLAM stayed in the isolation cell almost the entire time she was at MCDC.

Some time after 11:30 AM, MCLAM heard Defendant Sheriff Doe 10 say, “Do you think she
will learn her lesson?” Defendant Sheriff Doe 11 openly mocked her, laughing at her and stating
she was “not a journalist.” Defendant Sheriff Doe 12 accused MCLAM of making her own press
pass, saying “anyone can make a badge, so that does not mean that they are press.” Defendant
Sheriff Doe 13 misrepresented to her that she would not be released.
98.

At 1:16 PM on July 1, 2020, the charges against MCLAM were “no complainted,”

yet MCDC continued to hold her until 6:30 PM, when she was finally released.
99.

When MCLAM was released, Defendant Sheriff Doe 14 represented that he gave

her a debit card with $825 on the card that represented the $75 of cash in her pocket and the $750

CRE IG H T O N
& RO S E , P C

PAGE 22 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 23 of 37

in bail that had been posted for her. However, when she looked at what she thought was the card
wrapped in the receipt, there was no card there.
100.

As of the filing of this complaint, her money has not been returned to her and

there are no charges pending against her.
V. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983
First Amendment Violation
Against Defendants Wheeler, Resch, Hurley, Olszewski, Petty, Officer Does, Trooper Does,
Sheriff Does
in Their Individual Capacities
101.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

102.

Plaintiffs were lawfully engaged in the exercise of their First Amendment rights to

free press, speech and the right to peacefully assemble. They were standing witness and reporting
on matters of public concern, including the demonstrations and the responses by the police, and
engaged in an effort to hold the police publically accountable for their use of force and other riotcontrol conduct.
103.

Plaintiffs repeatedly informed Defendants of their press membership and

displayed press credentials prominently to differentiate themselves from the other participants of
the movement.
104.

Defendants used false arrest, excessive force, intimidation, the shining of lights

into their cameras and other tactics to prevent their reporting on matters of public concern and
their efforts to hold the police publically accountable for their use of force and other crowd
control management conduct.

CRE IG H T O N
& RO S E , P C

PAGE 23 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

105.

Document 1

Filed 07/08/20

Page 24 of 37

Defendants’ repeated use of excessive force targeting Plaintiffs as members of the

press and arrest of Plaintiffs violated their right to engage in activities protected by the First
Amendment of the United States Constitution.
106.

Defendants retaliated against Plaintiffs for engaging in constitutionally protected

activity. Defendants’ retaliation is part of a pattern or practice of unconstitutional conduct that is
certain to continue absent any relief.
107.

Plaintiffs reasonably feared arrest, the continued deployment of chemical agents

without warning, unlawful seizure, and excessive force through the firing of flash-bang grenades,
less-lethal projectiles, riot batons and other means if they continue to engage in constitutionally
protected activity.
108.

Defendants’ actions as described above would chill a reasonable person from

continuing to engage in constitutionally protected activity. These acts did, in fact, chill Plaintiffs
from continuing to observe and record some events of public interest, including constitutionally
protected demonstrations and the conduct of law enforcement officers on duty in a public place.
109.

Plaintiff ELIA’s First Amendment rights were violated when he was

deliberately targeted and struck with a baton and shoved into a wall during the course of his
reporting activities.
110.

Plaintiff ELIA’s First Amendment rights were violated when Defendant John Doe

18 pepper sprayed him during the course of his reporting activities.
111.

Plaintiff ELIA’s First Amendment rights were violated when Defendant Bartlett,

Defendant Petty, Defendants Officers John Does and Defendant Trooper John Doe subjected him
to arrest and detainment.

CRE IG H T O N
& RO S E , P C

PAGE 24 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

112.

Document 1

Filed 07/08/20

Page 25 of 37

Plaintiff ELIA’s First Amendment rights were violated by Defendant Sheriffs

John/Jane Does when he was put in an isolation cell in retaliation for voicing his concerns about
jail conditions and the Sheriffs’ willful violation of the Governor’s COVID-19 mask mandate.
113.

Plaintiff MCLAM’s First Amendment rights were violated when Defendant

Kemmer grabbed MCLAM by the throat and shoved her backward, and Defendant Bartlett and
John Does 20 and 21 pushed and shoved her backward several times during the course of her
reporting activities.
114.

Plaintiff MCLAM’s First Amendment rights were violated when Defendant

Officers John Does and Defendant Troopers John Does retaliated against her for her exercise of
those rights by subjecting her to arrest and detainment and their treatment of her in that process.
115.

Plaintiff MCLAM’s First Amendment rights were violated when Defendant

Sheriffs John/Jane Does subjected her to the conditions of detention described above and
retaliated against her for her First Amendment speech.
116.

As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determined by the jury at trial.
117.

Plaintiff ELIA seeks equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44, intensive training by experts in the First
Amendment, Civil Disobedience, the importance and history of press, and in the 4th
Amendment, crowd de-escalation techniques, and other training that may be identified during the
course of litigation.
118.

Plaintiffs are entitled to reimbursement of their reasonable attorneys’ fees and

CRE IG H T O N
& RO S E , P C

PAGE 25 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 26 of 37

costs pursuant to 42 USC § 1988 and 28 USC §1927, if appropriate.
119.

Plaintiffs are entitled to an award of punitive damages from Defendants to punish

and deter them and others from similar conduct in the future.
SECOND CLAIM FOR RELIEF
42 USC §1983
Fourth Amendment Violation—Unlawful Seizure and Excessive Force
Against Defendants Wheeler, Resch, Hurley, Olszewski, Petty, Officer Kemmer, Officer
Bartlett
Officer Does, Trooper Does
in Their Individual Capacities
120.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

121.

Plaintiffs were seized by Defendants when Defendants intentionally, through the

use of physical force, chemical agents, and flash-bang grenades, prevented Plaintiffs’ freedom of
movement and arrested them.
122.

Defendants committed these acts without warning and, as a result, Defendants’

acts were objectively unreasonable and constituted unlawful seizure and excessive force.
123.

Plaintiffs posed no threat to any of Defendants, their officers, agents or any other

124.

Plaintiff ELIA’s Fourth Amendment rights were violated when he was

person.

deliberately targeted and struck with a baton and shoved into a wall during the course of his
reporting activities.
125.

Plaintiff ELIA’s Fourth Amendment rights were violated when Defendants pepper

sprayed him during the course of his reporting activities.
126.

Plaintiff MCLAM’s Fourth Amendment rights were violated when Defendant

CRE IG H T O N
& RO S E , P C

PAGE 26 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 27 of 37

Kemmer grabbed MCLAM by the throat and threw her, and Defendant Bartlett and John Does 21
and 22 pushed and shoved her several times during the course of her reporting activities.
127.

Plaintiff MCLAM’s Fourth Amendment rights were violated when Defendants

arrested her and refused to return her property to her.
128.

Plaintiffs reasonably fear further retaliation in the future if they continue to

observe, record, or participate in constitutionally protected activity.
129.

As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determined by the jury at trial.
130.

Plaintiff ELIA seeks equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44, intensive training by experts in the First
Amendment, Civil Disobedience, the importance and history of press, and in the 4th
Amendment, crowd de-escalation techniques, and other training that may be identified during the
course of litigation.
131.

Plaintiffs are entitled to reimbursement of their reasonable attorneys’ fees and

costs pursuant to 42 USC § 1988 and 28 USC §1927, if appropriate.
132.

Plaintiffs are entitled to an award of punitive damages from Defendants to punish

and deter them and others from similar conduct in the future.
THIRD CLAIM FOR RELIEF
42 U.S.C. § 1983
Fourteenth Amendment—Substantive Due Process
Against Defendant John Doe 18
133.

Plaintiff ELIA restates and realleges all previous paragraphs of this Complaint.

CRE IG H T O N
& RO S E , P C

PAGE 27 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

134.

Document 1

Filed 07/08/20

Page 28 of 37

Plaintiff ELIA had a liberty interest in his physical security as protected by the

Fourteenth Amendment to the United States Constitution.
135.

Defendant John Doe 18, at all times relevant herein, was acting under color of

state law.
136.

Defendant John Doe 18, by intentionally and maliciously spraying ELIA in the

face with pepper spray, affirmatively created and/or enhanced a danger to ELIA that he would not
otherwise have faced. Neither Defendant John Doe 18 nor Defendant John Doe 19 assisted ELIA
in reaching safety or provide him with medical attention so he could get to safety himself.
139.

As a direct and proximate result of Defendant Doe 18’s actions, ELIA was

blinded and stumbled from the area, smacked into a bench, fell over the bench and head first into
the pavement, suffering physical injury, pain, outrage, betrayal, offense, indignity, injury and
insult in amounts to be determined by the jury at trial.
140.

Plaintiff ELIA seeks equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44, intensive training by experts in the First
Amendment, Civil Disobedience, the importance and history of press, and the 4th Amendment,
crowd de-escalation techniques, and other training that may be identified during the course of
litigation.
.

141.

Plaintiff ELIA is entitled to reimbursement of his reasonable attorneys’ fees and

costs pursuant to 42 USC § 1988 and 28 USC §1927, if appropriate.
142.

Plaintiff ELIA is entitled to an award of punitive damages from Defendants to

punish and deter them and others from similar conduct in the future.
////

CRE IG H T O N
& RO S E , P C

PAGE 28 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 29 of 37

FOURTH CLAIM FOR RELIEF
42 U.S.C. § 1983
Monell Claims
Against City of Portland
143.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

144.

Defendant City of Portland created or maintained policies, customs or practices as

described in paragraphs 28 through 44 above. These policies, customs or practices as described
in paragraphs 28 through 44 above were created by officials with final decision-making and/or
policy-making authority.
145.

The individual agents of the City of Portland followed one or more of the

customs or practices as described in paragraphs 28 through 44 above.
146.

The policies, customs or practices as described in paragraphs 28 through 44 above

were unconstitutional or caused the violation of Plaintiffs’ First, Fourth and Fourteenth
Amendment rights of the United States Constitution.
147.

Defendant City of Portland failed to create adequate policies which would have

prevented the infringement of Plaintiffs’ rights under the First, Fourth and Fourteenth
Amendment of the United States Constitution during social justice demonstrations when the need
to do so was obvious.
148.

The City of Portland also failed to adequately train their employees and agents

with respect to the legal requirements of the First, Fourth and Fourteenth Amendments as they
pertain to social justice demonstrations when the need to do so was obvious.
149.

The pattern of similar constitutional violations against Plaintiffs that occurred

during the community mobilization against police brutality demonstrates the deliberate

CRE IG H T O N
& RO S E , P C

PAGE 29 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 30 of 37

indifference of the City of Portland to the rights of Plaintiffs.
150.

As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determined by the jury at trial.
151.

Plaintiff ELIA seeks equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44, intensive training by experts in the First
Amendment, Civil Disobedience, the importance and history of press, and the 4th Amendment
and crowd de-escalation techniques.
152.

Plaintiffs are entitled to reimbursement of their reasonable attorneys’ fees and

costs pursuant to 42 USC § 1988 and 28 USC §1927, if appropriate.
153.

Plaintiffs are entitled to an award of punitive damages from Defendants to punish

and deter them and others from similar conduct in the future.
FIFTH CLAIM FOR RELIEF
42 U.S.C. § 1981
Against Defendants Wheeler, Resch, Hurley, Olszewski, Petty, Officer Does, Trooper Does,
Sheriff Does
in Their Individual Capacities
154.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

155.

Through their presence at the community-based movement and/or protests and

documentation thereof, Plaintiffs were asserting the rights of non-white citizens to the full and
equal benefit of all laws and proceedings for the security of persons and property as are enjoyed
by white citizens.
156.

As described herein, Defendants retaliated against Plaintiffs for asserting the

CRE IG H T O N
& RO S E , P C

PAGE 30 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 31 of 37

rights of non-white citizens to the full and equal benefit of all laws and proceedings for the
security of persons and property as are enjoyed by white citizens.
157.

As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determine by the jury at trial.
158.

Plaintiffs seek equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44.
159.

Plaintiffs are entitled to reimbursement of their reasonable attorneys’ fees and

costs pursuant to 42 USC § 1988 and 28 USC §1927, if appropriate.
160.

Plaintiffs are entitled to an award of punitive damages from Defendants to punish

and deter them and others from similar conduct in the future.
SIXTH CLAIM FOR RELIEF
42 U.S.C. § 1985
Against Defendants Wheeler, Resch, Hurley, Olszewski, Petty, Officer Does, Trooper Does,
Sheriff Does
in Their Individual Capacities
161.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

162.

Defendants engaged in a conspiracy to deprive Plaintiffs of their right to equal

protection under the law and equal privileges and immunities under the laws based on their
opposition to race discrimination in police services.
163.

Defendants’ acts in targeting the free press with unprovoked arrests, detention and

use of force without probable cause were acts in furtherance of the conspiracy to deprive
Plaintiffs of their equal protection rights.

CRE IG H T O N
& RO S E , P C

PAGE 31 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

164.

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As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determined by the jury at trial.
165.

Plaintiffs seek equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44.
166.

Plaintiffs are entitled to reimbursement of their reasonable attorneys’ fees and

costs pursuant to 42 USC § 1988 and 28 USC §1927, if appropriate.
167.

Plaintiffs are entitled to an award of punitive damages from Defendants to punish

and deter them and others from similar conduct in the future.
SEVENTH CLAIM FOR RELIEF
Battery
Against City of Portland, State of Oregon, Defendant Petty
168.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

169.

Defendant City of Portland, through its agents, intentionally engaged in harmful

or offensive contact with Plaintiffs, and were acting in the course and scope of their employment.
170.

Defendant City of Portland is responsible for the tortious conduct of their agents

and employees, which caused the injuries to Plaintiffs.
171.

Defendant State of Oregon, through its agents acting in the course and scope of

their employment, intentionally engaged in harmful or offensive contact with Plaintiff ELIA.
172.

Defendant State of Oregon is responsible for the tortious conduct of their agents

and employees, which caused the injuries to Plaintiff ELIA.
173.

As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

CRE IG H T O N
& RO S E , P C

PAGE 32 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 33 of 37

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determined by the jury at trial.
174.

Plaintiffs seek equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44.
EIGHTH CLAIM FOR RELIEF
Assault
Against City of Portland, State of Oregon, Defendant Petty
175.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

176.

Defendant City of Portland’s and use of excessive, unprovoked and unreasonable

force to prevent Plaintiffs from exercising their constitutional rights was intended to cause
imminent harmful and offensive contact.
177.

Defendant City of Portland is responsible for the tortious conduct of their agents

and employees, which caused the injuries to Plaintiffs.
178.

Defendant State of Oregon’s use of excessive, unprovoked and unreasonable force

to prevent Plaintiffs from exercising their constitutional rights was intended to cause imminent
harmful and offensive contact.
179.

Defendant State of Oregon is responsible for the tortious conduct of their agents

and employees, which caused the injuries to Plaintiffs.
180.

Plaintiffs had reasonable apprehension and fear that the battery would occur.

181.

As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determined by the jury at trial.

CRE IG H T O N
& RO S E , P C

PAGE 33 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

182.

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Plaintiffs seek equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44.
NINTH CLAIM FOR RELIEF
False Arrest
Against City of Portland, State of Oregon, Defendant Petty
183.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

184.

Defendant City of Portland and Defendant State of Oregon are responsible for the

tortious conduct of their respective agents and employees, which caused the injuries to Plaintiffs.
185.

Defendant City of Portland and Defendant State of Oregon intended to confine

and confined Plaintiffs.
186.

Plaintiffs were aware of their confinement.

187.

Defendant City of Portland and Defendant State of Oregon’s confinements of

Plaintiffs were unlawful.
188.

As a direct and proximate result of Defendants’ unlawful acts, Plaintiffs have

suffered physical injury, outrage, betrayal, offense, indignity, and insult in amounts to be
determined by the jury at trial.
189.

Plaintiffs seek equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44.
TENTH CLAIM FOR RELIEF
Negligence
Against City of Portland
190.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

191.

Defendants’ actions as alleged above violated the standard of care required of law

CRE IG H T O N
& RO S E , P C

PAGE 34 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 35 of 37

enforcement officers under the circumstances.
192.

Defendants’ actions created an unreasonable and foreseeable risk of injury to

Plaintiffs.
193.

Defendant City of Portland is responsible for the tortious conduct of their agents

and employees, which caused the injuries to Plaintiffs.
194.

As a direct and proximate result of Defendant City of Portland’s unlawful acts,

Plaintiffs have suffered physical injury, outrage, betrayal, offense, indignity, and insult in
amounts to be determined by the jury at trial.
195.

Plaintiffs seek equitable relief in the form of abolition of the policies and/or

practices described in paragraphs 28 through 44.
ELEVENTH CLAIM FOR RELIEF
Declaratory Judgment 28 USC § 2201, et seq.
Against Defendants City of Portland, Wheeler, Resch, Hurley, Does
in Their Individual Capacities
196.

Plaintiffs restate and reallege all previous paragraphs of this Complaint.

197.

As described herein, Plaintiffs have established a violation of their First, Fourth

and Fourteenth Amendment rights and request a declaration thereof.
198.

Plaintiffs hereby request that the City of Portland and its respective employees and

officials take immediate steps to adhere to the requirements of the First, Fourth, and Fourteenth
Amendments to the United States Constitution by effectuating the following:
a) The Municipal Defendants and their officials shall change and/or supplement any
written policy, official practice, or training they give to their employees, to ensure that those
engaging in political speech are treated fairly and with respect and are not discriminated against

CRE IG H T O N
& RO S E , P C

PAGE 35 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 36 of 37

or retaliated against because of their protected speech;
b) abolition of the policies and/or practices described in paragraphs 28 through 44; and
c) intensive training by experts in the First Amendment, Civil Disobedience, the
importance and history of press, and in the 4th amendment.
199.

As a direct and proximate result of Defendant City of Portland’s unlawful acts,

Plaintiffs have suffered physical injury, outrage, betrayal, offense, indignity, and insult in
amounts to be determined by the jury at trial.
200.

Plaintiffs are entitled to reimbursement of their reasonable attorneys’ fees and

costs pursuant to 42 USC § 1988 and 28 USC §1927, if appropriate.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs herein, pray for relief as follows:
A.

A restraining order barring Defendants from engaging in unconstitutional conduct

targeting journalists;
B.

A declaration that Defendants’ conduct violated the First, Fourth, and Fourteenth

Amendments of the U.S. Constitution;
C.

Damages compensating Plaintiffs for their injuries, including but not limited to

economic and non-economic damages;
D.

Where applicable, an award of punitive damages consistent with the claims above

against Defendants in amounts to be determined at trial;
E.

An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988;

F.

Defendants and their officials shall change and/or supplement any written policy,

official practice, or training they give to their employees, to ensure that those engaging in

CRE IG H T O N
& RO S E , P C

PAGE 36 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com

 Case 3:20-cv-01106-AC

Document 1

Filed 07/08/20

Page 37 of 37

political speech are treated fairly and with respect and are not discriminated against or retaliated
against because of their protected speech;
G.

Abolition of the policies and/or practices described in paragraphs 28 through 44;

H.

Intensive training by experts in the First Amendment, Civil Disobedience, the

and

importance and history of press, the 4th Amendment, crowd de-escalation techniques and any
and all training that may be identified during the course of this litigation.
I.

An award of such other and further relief as the Court deems equitable and just.

PLAINTIFF HEREBY DEMANDS A JURY TRIAL.
DATED this 8th day of July, 2020

CREIGHTON & ROSE,

PC.

s/ Beth Creighton
Beth Creighton, OSB #972440
E-mail: beth@civilrightspdx.com
Michael E. Rose, OSB #753221
E-mail: mrose@civilrightspdx.com
Laura Koistinen, OSB #175123
E-mail: laura@civilrightspdx.com
Attorneys for Plaintiffs

CRE IG H T O N
& RO S E , P C

PAGE 37 – COMPLAINT

ATTORNEYS
AT LAW

65 SW Yamhill Street #300
Portland, OR 97204
T. (503) 221-1792
F. (503) 223-1516
beth@civilrightspdx.com