portland police brutality collins complaint response

8/12/2019 Portland Police Brutality Collins Complaint Response

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JAMES G. RICE, Oregon State Bar ID Number 824884Deputy City AttorneyEmail: Jim.Rice(portlandoregon.govOffce of City Attorney1221 SW 4th Avenue, Rm 430Portland, OR 97204Telephone: (503) 823-4047Facsimile: (503) 823-3089Attorney for DefendantsUNITED STATES DISTRICT COURT

DISTRICT OF OREGONPORTLAND DIVISION

DANIEL COLLINS,PLAINTIFF, Civil Case No. 3:12-cv-01120v. DEFENDANTS ANSWER TOPLAINTIFF S AMENDED COMPLAINTCITY OF PORTLAND, a municipalcorporation, DARRLL SHAW, anindividual, MATTHEW DELENIKOS, anindividual, GREGORY BURN, anindividual, DAVID ABRAHAMSON, anindividual,

DEMAND FOR JURY TRIAL

DEFENDANTS.

For its Answer to plaintiffs Amended Complaint defendants City of Portland, DarellShaw, Matthew Delenikos, Gregory Bum and David Abrahamson allege as follows:

1. Defendants admit that the action herein purports to bring claims pursuant to42 USC 1983 and various state tort law claims.

2. Defendants admit that claims involving 42 USC 1331 and 1343 conferjurisdiction to the United States District Cour.

3. Defendants admit that the claims referred to in the Amended Complaint occured

in Multnomah County, Oregon and therefore venue is proper.Page 1 - DEFENDANTS ANSWER TO PLAINTIFF S AMENDED COMPLAINT.

PORTLAND CITY ATIORNEY S OFFICE1221 SW 4TH AVENUE, RM. 430PORTLAND, OREGON 97204TELEPHONE: (503) 823-047FAX: (503) 823-3089

Case 3:12-cv-01120-KI Document 8 Filed 10/29/12 Page 1 of 9


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4. Defendants lack suffcient knowledge or belief as to whether or not at all timesrelevant the plaintiff Daniel Collns resided in Multnomah County, Oregon and therefore at thistime that allegation is denied. Defendants admit that the events surounding the fighting at theBaracuda Bar and Gril at approximately 1 :00 a.m. on 24 December 2010, occured inMultnomah County, Oregon.

5 Defendants admit paragraph 5 of the Amended Complaint.6 Defendant City and defendant Darell Shaw admit paragraph 6 of the Amended

Complaint.7 Defendant City and defendant Matthew Delenikos admit paragraph 7 of the

Amended Complaint.8 Defendant City and defendant Greg Bum admit paragraph 8 of the Amended

Complaint.9 Defendant City and defendant David Abrahamson admit paragraph 9 of the

Amended Complaint.10. Defendants admit paragraph 10 of the Amended Complaint.11 Defendants admit that on 24 December 2010 at approximately 1 a m members of

the Portland Police Bureau were called to the Baracuda Bar Grill at 9 NW Bumside, Portland,Oregon, in response to a large violent fight involving individuals inside the packed nightclub thatinvolved approximately 20 male individuals who were assaulting each other and employees ofthe Barracuda Bar GrilL. Some of the individuals were transported, via ambulance, to thetrauma hospital at Oregon Health Sciences University. Defendants admit that Portland PoliceBureau Officers Darell Shaw, Gregory Bum, Matthew Delenikos and David Abrahamsonresponded to the fight and did so in their official capacity as police officers. All other allegationscontained in paragraph 11 of the Amended Complaint are denied.

12 Defendants deny paragraph 12 of the Amended Complaint.Page 2 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT




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13. Defendants admit that at approximately 1:00 a.m. on 24 December 2010 plaintiff

Daniel Collns was in the Barracuda Bar Grill at the time defendants were aresting TremaineChanel a person that had ilegally assaulted an employee of the night club. Plaintiff interferedwith the police and engaged in threatening behavior as officers were in the process of takingTremaine Chanel into custody to reduce the violent fight and restore order to end fuherinjuries. During the incident, plaintiff was taken to the ground and given legal orders to show hishands. Defendants fuher admit that after plaintiff was restrained it was leared that plaintiff didnot possess a weapon on his person. All other allegations contained in paragraph 13 of theAmended Complaint are denied.

14. Defendant City admits that a struggle ensued with plaintiff who resisted officersand struggled to prevent them from placing him in handcuffs. All other allegations in paragraph14 of the Amended Complaint are denied.

15. Defendant City and defendant Offcer Bum admit that there was a struggle withplaintiff who refused to show his hands by hiding them under his body. Plaintiff then engaged inthreatening behavior and resisted arest. Defendant Bum used his knee to give strikes toplaintiff s buttocks and lower back area in an effort to control him as he was kicking at theOffcers. All other allegations contained in paragraph 15 of the Amended Complaint are denied.

16. Defendant City and defendant Offcer Delenikos admit that when plaintiff Collns

was fighting with police offcers, hiding his hand(s) and otherwise resisting arest, OffcerDelenikos used his taser in touch mode on plaintiff which can cause pain. All other allegationscontained in paragraph 16 of the Amended Complaint are denied.

17. Defendants deny paragraph 17 of the Amended Complaint.

18. Defendants admit that after fighting with the police plaintiff Collns wastransported to Oregon Health Sciences HospitaL. At this time defendants are unaware of whatif any, care or treatment plaintiff received and therefore lack knowledge or information suffcientPage 3 - DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT




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to form a belief about the truth and therefore deny the same. All other allegations contained inparagraph 18 are denied.

19. Defendants City Delenikos and Shaw admit that they contacted plaintiff at OHSUand issued him an Oregon Uniform Citation and Complaint charging him with Interfering with aPeace Officer ORS 162.247 and Resisting Arest ORS 162.315. Defendants deny all otherallegations contained in paragraph 19 of the Amended Complaint.

Defendants admit paragraph 20 of the Amended Complaint.Defendants incorporate the foregoing paragraphs 1-20 as though fully rewritten

2021.

herein.22.23.

Complaint.24.25.26.27.

herein.28.

Defendants deny paragraph 22 of the Amended Complaint.Defendants deny paragraphs 23A 23B 23C 23D. and 23E of the Amended

Defendants deny paragraph 24 of the Amended Complaint.Defendants deny paragraph 25 of the Amended Complaint.Defendants deny paragraph 26 of the Amended Complaint.Defendants incorporate the foregoing paragraphs 1-26 as though fully rewritten

Defendants admit that plaintiff Collns acted under color of state law to seize andarest plaintiff Collns. Defendants deny that they acted without probable cause as plaintiff had

committed crimes.29. Defendants deny paragraph 29 of the Amended Complaint.30. Defendants deny paragraphs 30A 30B and 30C.

31. Defendants deny paragraph 31 of the Amended Complaint.32. Defendants deny paragraph 32 of the Amended Complaint.33. Defendants deny paragraph 33 of the Amended Complaint.

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herein.34. Defendants incorporate the foregoing paragraphs 1-33 as though fully rewritten

35. Defendants admit that while dealing with plaintiff, the individual officers wereacting within the course and scope of their employment with the City of Portland. All otherallegations contained in paragraphs 35 35A 35B 35C 35D and 35E of the Amended Complaintare denied.

herein.36. Defendants incorporate the foregoing paragraphs 1-35 as though fully rewritten

37. Defendants admit that while the police officers were dealing with the plaintiffduring the fight at the Barracuda Bar Grill they were acting within the course and scope oftheir employment with the City of Portland. Defendants fuher admit that due to plaintiffCollns' threatening, angry and ilegal conduct he was taken to the ground, struck in the buttocksand low back with a knee and tasered. All other allegations contained in paragraph 37 of theAmended Complaint are denied.

Defendants incorporate the foregoing paragraphs 1-37 as though fully rewritten8.herein.

39.40.41.

herein.42.

Defendants deny paragraph 39 of the Amended Complaint.Defendants deny paragraph 40 of the Amended Complaint.Defendants incorporate the foregoing paragraphs 1-40 as though fully rewritten

Defendants admit that they have a general duty of care to all citizens. All otherallegations contained in paragraph 42 of the Amended Complaint are denied.\ \\ \ \

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43. Defendants admit that peace offces have a general duty to intervene if theyobserve an ilegal use of force. In the instance involving plaintiff, Collns' conduct andinvolvement in the fight at the Baracuda Bar Grill, there was no ilegal use of force and henceno duty to intervene. Defendants deny all other allegations in paragraph 43 of the AmendedComplaint.

44. Defendants deny paragraph 44 of the Amended Complaint.FIRST AFFIRMATIVE DEFENSE

(Failure to State a Claim)45. Plaintiffs Amended Complaint fails to state a claim upon which relief can be

granted.SECOND AFFIRMATIVE DEFENSE

(Qualified Immunty)46.. The individually named Police Offcer defendants who had contact with plaintiff

are entitled to qualified immunity. It was objectively reasonable for the offcers to stop, detainand arest the plaintiff and to use reasonable force.

THIRD AFFIRMTIVE DEFENSE(Justification/rivilege)

47. The Portland police officers were justified/privileged to use reasonable physicalforce to detain plaintiff.

FOURTH AFFIRMATIVE DEFENSE(No Constitutional Violation)

48. The actions of defendant officers and their use of force do not constitute aconstitutional violation.\\ \\ \

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FIFTH AFFIRMTIVE DEFENSEReasonable Suspicion/robable Cause)

49. Defendants had reasonable suspicion to initiate contact with the plaintiff and bothreasonable suspicion and probable cause to place plaintiff in handcuffs and detain him.

SIXTH AFFIRMATIVE DEFENSE(Tort Claim Liability Limit)

50. Plaintiffs state law claims are subject to the conditions, limitations and

immunties contained in Oregon s Tort Claim Act, ORS 30.265, et. seq.SEVENTH AFFIRMTIVE DEFENSE

(Legitimate Safety Requirement)51. Any ,actions taken by defendant officers were based upon genuine safetyrequirements that are necessary for the safe operation of law enforcement and to act otherwsewould create an undue burden on law enforcement operations.

EIGHTH CLAIM FOR RELIEF(Bar to Recovery)

52. The negligence of plaintiff constitutes a degree of fault that he is bared fromrecovery from any defendant.

NINTH CLAIM FOR RELIEF(Comparative Fault)

53. Mr. Collns injuries are attributable to his own conduct in:a. Failing to obey a lawfl order of a police officer;b. Resisting arest;c. Hiding his hand from police offcers;d. Kicking at police offcers; and

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e. Violently resisting the efforts of the police to take him into custody andsecure him.

TENTH AFFIRMATIVE DEFENSE(Statutory Limitation of Damages)

54. Plaintiff Collns state law claim(s) are subject to the conditions, limitations andimmunities contained in The Oregon Tort Claims Act ORS 30.265 et seq.

ELEVENTH AFFIRMATIVE DEFENSE(Good Faith)

55. All the actions taken by City of Portland employees were done in good faith.TWELFTH AFFIRMATIVE DEFENSE

(Discretionary Immunity)56. The plaintiffs claims for relief are based upon the defendants alleged

performance of/or failure to exercise or perform discretionary fuctions or duties. Defendantsare immune from liabilty from plaintiffs claims pursuant to ORS 30.265(3)(c).

THIRTEENTH AFFIRMATIVE DEFENSE(Misjoinder of Paries on State Law Claims)

57. The plaintiff improperly, and contrary to law, named individual offcers in thestate law claims contrar to ORS 30.265(2).

FOURTEENTH AFFIRMATIVE DEFENSE(Equity)

58. The clean hands rules of equity bar the individual plaintiff from recovery in thiscase.

59. Defendants reserve the right to add additional affrmative defenses as discovery. reveals additional information.60. Pursuant to FRCP 38, defendants demand atrial by jur.





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WHEREFORE, having fully answered plaintiffs Amended Complaint, defendants praythat plaintiff s Complaint be dismissed and that judgment be entered in their favor and for theircosts and disbursements incured herein, in addition to such other relief as may be justified.

DATED: October 29,2012Respectfully submitted,~ames G. Rice, OSB No. 824884Deputy City AttorneyTelephone: 503)823-4047Email: J ames.Rice iportlandoregon. gov




portland police brutality collins complaint response

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