Case 3:16-cv KI Document 1 Filed 11/14/16 Page 1 of 8

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1 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 1 of 8 R. Brendan Dummigan, OSB brendan@pickettdummigan.com J. Randolph Pickett, OSB randy@pickettdummigan.com PICKETT DUMMIGAN LLP 621 S.W. Morrison Street, Suite 900 Portland, OR Telephone: ( Facsimile: ( UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION ROSALINDA BERMUDEZ-ARENAS, Personal Representative of the Estate of JUVENTINO BERMUDEZ-ARENAS, deceased, v. Plaintiff, CITY OF MCMINNVILLE, a municipal corporation; OFFICER BRIAN MCMULLEN; OFFICER JUSTIN JAMES; and SERGEANT RHONDA SANDOVAL, Defendants. No. COMPLAINT Wrongful Death Negligence Deprivation of Civil Rights (Demand for Jury Trial I. NATURE AND PURPOSE OF THE ACTION Plaintiff s Decedent, Juventino Bermudez-Arenas, was killed on or about November 16, He was shot by defendants Officer Brian McMullen ( MCMULLEN, Officer Justin James ( JAMES, and Sergeant Rhonda Sandoval ( SANDOVAL, employees of defendant City of McMinnville s ( CITY police department. Plaintiff alleges that defendants Officers McMullen and James and Sergeant Sandoval acted with excessive force in violation of the decedent s civil rights. Plaintiff also alleges that defendant City failed to train its officers in proper use of force and, as a result, are liable under 42 U.S.C for foreseeable subsequent constitutional violations by its officers. Page 1 Complaint

2 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 2 of 8 II. JURISDICTION AND VENUE This court has original jurisdiction over the defendants in this action, pursuant to 28 U.S.C (federal question and 1343 (civil rights, because plaintiff is suing for relief under 42 U.S.C The state law claims for relief against the defendants are within the supplemental jurisdiction of the court, pursuant to 28 U.S.C Venue is proper in the District of Oregon pursuant to 28 U.S.C. 1391(b(2. Because the events giving rise to these claims took place in Yamhill County, venue is proper in this Division pursuant to LR 3-2(a(1. III. PARTIES Plaintiff s decedent, Juventino Bermudez-Arenas, was killed on November 16, 2014, in the city of McMinnville, county of Yamhill, state of Oregon. Plaintiff Rosalinda Bermudez-Arenas is the duly appointed and acting Personal Representative for the Estate of Juventino Bermudez-Arenas, deceased, pursuant to a Limited Judgment signed on November 9, 2016, in the Circuit Court of the State of Oregon for the County of Yamhill, Probate Department Case No. 16PB Plaintiff s decedent was survived by Rosalinda Bermudez-Arenas. Defendants Officers McMullen and James and Sergeant Sandoval were employees of defendant City, acting within the course and scope of their employment, and were responsible for carrying out the policies, procedures, practices, and customs implemented by defendant City, as well as for their own acts and omissions, as challenged by this suit. Officers McMullen and James and Sergeant Sandoval were also responsible for ensuring that their acts, as police officers, acting on behalf of defendant City, were in compliance with federal and state law, department or agency policies, rules, and regulations, and related standards of care. Defendant City, through its police department, is responsible for deployment of officers, training of officers, the use of force and provision and use of implements of force including firearms, and other policies, procedures, practices, and customs, and is responsible for its acts and omissions Page 2 Complaint

3 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 3 of 8 challenged by this suit as well as those acts and omissions by defendants Officers McMullen and James and Sergeant Sandoval. IV. STATE ACTION Defendants City, Officers McMullen and James, and Sergeant Sandoval were at all times and in all matters herein material acting under color of state law when they subjected Juventino Bermudez-Arenas to the wrongs hereinafter set forth. V. BACKGROUND FACTS On November 16, 2014, Juventino Bermudez-Arenas was a customer at a 7-Eleven convenience store on Southwest Baker Street and Southwest Fellows Street in McMinnville, Oregon. For unknown reasons, he stabbed another customer of the store, Mr. Moore, then fled on foot. Defendants Officer McMullen and Sergeant Sandoval, along with another officer, arrived at the 7-Eleven and began to render aid to Mr. Moore. Officer James arrived at some later point. A witness, Scott Skurdahl, provided a description of plaintiff s decedent to the officers. Plaintiff s decedent returned to his home. He communicated to his family members in Spanish, as he did not speak English words to the effect that he had a problem and was going to turn himself in. He left his home again and walked back toward the 7-Eleven to speak with the officers. VI. FACTS PARTICULAR TO PLAINTIFF S CLAIM Officers McMullen and James were standing on the sidewalk outside the store talking with the store clerk. Plaintiff s decedent came around the corner and stood several yards away from the officers for approximately one minute. Scott Skurdahl came and joined the officers and clerk. Officer McMullen reentered the store, presumably intending to ask Sergeant Sandoval about the operational plan. As the group disbanded, one of the witnesses spotted plaintiff s decedent and identified him as the suspect. Officer James immediately drew his firearm and pointed it at plaintiff s decedent and began giving him verbal commands in English. Plaintiff s decedent raised his hands. Officer McMullen came back out of the store and drew his firearm, pointing it at plaintiff s decedent. Sergeant Sandoval then came out of the store, also drawing her Page 3 Complaint

4 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 4 of 8 firearm. Plaintiff s decedent kept his hands up. The three officers continued to make verbal commands in English, and plaintiff s decedent stayed where he was. With plaintiff s decedent s hands still up, the officers fired, rapidly. Officer James fired between ten and eleven rounds. Sergeant Sandoval fired between one and two rounds. Officer McMullen fired one round. Plaintiff s decedent fell to the ground. Officer McMullen approached plaintiff s decedent and began to handcuff him. One of the officers directed him to stop doing so, and another officer on the scene removed the handcuffs. Plaintiff s decedent survived for a short time and was transported to Willamette Valley Medical Center, where he died of multiple gunshot wounds to his flank, thighs, groin, arms, and back. Pursuant to ORS , tort claim notice was sent to the governmental defendants on May 11, 2015, within one year from the date of the death of plaintiff s decedent. VII. CAUSES OF ACTION Plaintiff realleges paragraphs V and VI, inclusive, with regard to all causes of action. FIRST CLAIM FOR RELIEF 42 U.S.C WRONGFUL DEATH (AGAINST ALL DEFENDANTS Defendants, acting under color of state law, deprived plaintiff s decedent of rights and privileges secured to him by the Fourth and Fourteenth Amendments of the United States Constitution by subjecting him to excessive force. Defendants, and each of them, acted with deliberate and callous indifference in one or more of the following particulars: a. Discharging their weapons without justification; b. Continuing to discharge their weapons after plaintiff s decedent had fallen to the ground; c. Continuing to discharge their weapons after plaintiff s decedent was immobile; d. Discharging their weapons fifteen times within a period of seconds. The foregoing wrongful acts of the defendants killed Juventino Bermudez-Arenas. Page 4 Complaint

5 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 5 of 8 Page 5 Complaint SECOND CLAIM FOR RELIEF 42 U.S.C FAILURE TO TRAIN (DEFENDANT CITY OF MCMINNVILLE In addition to depriving plaintiff s decedent of his constitutional rights as set forth above, defendant City failed to train its deputies on: deputies. (a proper firearm use; (b less lethal uses of force; and (c conversation-level Spanish. Training in these areas was directly related to the type of work and duties performed by Officers were in recurrent situations where decisions about firearm use were regular and expected. Firearms are inherently dangerous. Defendant City knew or should have known that using a firearm can result in serious injury and death. Defendant City knew or should have known that use of a firearm is appropriate only in defense of an officer s life in response to an aggressive suspect. Despite this, on information and belief defendant City did not properly train its officers in firearm use. Defendant City exhibited deliberate indifference to the risk of injury or death that would arise from such failure to train. A significant minority of residents of McMinnville speak Spanish. According to the 2010 census, 20.6% of the population is Hispanic or Latino. The census further estimated that 13% of the population speaks Spanish, and approximately 56% of that population speaks English less than very well. In all, over 2,000 residents (out of 24,619 residents 5 years of age and older would, in an encounter with the police, not be able to understand commands in English. Defendant City knew or should have known that speaking Spanish is an important component of an officer s job in order to communicate with the public. Despite this, on information and belief defendant City did not properly train its officers in conversational Spanish. Defendant City

6 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 6 of 8 exhibited deliberate indifference to the risk of injury or death that would arise from not being able to communicate with a Spanish-speaking subject. It was foreseeable and known that lack of or improper training could lead to constitutional violations, such as alleged in plaintiff s First Claim for Relief. By failing to adequately train its deputies on proper firearm use and conversational Spanish, defendant City deliberately and recklessly endangered the Fourth and Fourteenth amendment rights of plaintiff s decedent, his family, and the community. THIRD CLAIM FOR RELIEF ORS NEGLIGENCE -WRONGFUL DEATH (DEFENDANTS MCMULLEN, JAMES, AND SANDOVAL Plaintiff realleges all allegations set forth in the First and Second Claims for Relief, as if set forth in full herein. Defendants, and each of them, owed plaintiff s decedent a duty of due care, and that duty was breached when Officers McMullen and James and Sergeant Sandoval discharged their firearms at plaintiff s decedent in the manner described in the First and Second Claim for Relief. The negligence of defendants foreseeably caused the untimely and wrongful death of Juventino Bermudez-Arenas. FOURTH CLAIM FOR RELIEF ORS NEGLIGENCE WRONGFUL DEATH (DEFENDANT CITY OF MCMINNVILLE Plaintiff realleges all allegations set forth in the First, Second, and Third Claims for Relief, as if set forth in full herein. Defendant city, through its agents Officers McMullen and James and Sergeant Sandoval, breached its duty to plaintiff s decedent in the manner described in the Third Claim for Relief. In addition, the City owed a duty to plaintiff, and others similarly situated, to exercise reasonable care in connection with the hiring, training, evaluation, supervision and retention of persons acting as police officers and empowered to use force on suspects and other individuals with whom they would come in contact with. The City breached its duty of care to the plaintiff by Page 6 Complaint

7 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 7 of 8 failing to exercise reasonable care in the carrying out of these actions in its hiring, training, evaluation, supervision and retention of the individually named officers. VIII. INJURIES TO AND DEATH OF PLAINTIFF S DECEDENT As a result of the wrongdoing of defendants, and each of them, as alleged above, Juventino Bermudez-Arenas was deprived of his Fourth and Fourteenth Amendment rights, and was subjected to pain, suffering, and death. In addition to decedent s injuries, defendants, and each of them, have deprived the beneficiaries of the wrongful death claim of the estate Rosalinda Bermudez-Arenas, of her Fourteenth Amendment interests by killing her family member, Juventino Bermudez-Arenas, without due process. As a proximate result of the acts of all defendants, and each of them, as alleged above, the estate has suffered from loss of society, comfort, attention, services, and support of the decedent. Furthermore, the estate has incurred funeral and burial expenses in an amount to proven at trial. IX. RELIEF REQUESTED BY PLAINTIFF Plaintiff realleges paragraphs V through VIII, inclusive, with regard to all requests for relief. The estate is entitled to recover and hereby requests the award of the following damages within the jurisdictional limits of this court for the death of plaintiff s decedent: a. physical and mental pain and suffering; b. loss of society and companionship; and c. reasonable funeral expenses. Page 7 Complaint

8 Case 3:16-cv KI Document 1 Filed 11/14/16 Page 8 of 8 Pursuant to 42 U.S.C and other applicable laws, plaintiff should be awarded costs, expert fees, and reasonable attorney's fees against defendants City, Officers McMullen and James, and Sergeant Sandoval, for the preparation and trial of this cause of action, and for its appeal, if required. X. JURY DEMAND Plaintiff respectfully demands a trial by jury. PRAYER WHEREFORE, plaintiff requests the following relief: 1. Compensatory damages jointly and severally against all defendants in amounts to be determined at trial in accordance with the allegations and claims set forth above; 2. An award of costs, expert fees, and reasonable attorney s fees against defendants City, Officers McMullen and James, and Sergeant Sandoval, as provided by law; and 3. For such other and further relief as the court deems just and equitable. Respectfully submitted this 14th day of November, s/ R. Brendan Dummigan R. Brendan Dummigan, OSB J. Randolph Pickett, OSB PICKETT DUMMIGAN LLP of Attorneys for Plaintiff Page 8 Complaint