Case 3:14-cv-00788-PK Document 1 Filed 05/13/14 Page 1 of 10 Page ID#: 1 1 Michael Vergamini, OSB #04520 2 3 4 399 East 10th Ave., Suite 109 Eugene, OR 97401 Telephone (541) 302-1800 Fax (541) 302-1801 info@vergarQinilaw.com Attorney for Plaintiff 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF OREGON 9 10 11 12 13 ROBERT BERNARD KELLER, personally and as guardian for B.R.K., a minor, ) ) ) Plaintiffs, ) ) ) BEAVERTON POLICE DEPARTMENT and ) BEAVERTON SCHOOL DISTRICT, a political subdivision of Hie State of Oregon, > Case No: COMPLAINT (42U.S.C. § 1983: 14th Amendment Interference with Familial Association; th * Amendment Unreasonable Seizure, tijunctive Relief; Intentional Infliction of Emotional Distress; False Imprisonment). 14 Defendants. \5 16 17 18 JURISDICTIONAL ALLEGATIONS 19 1. 20 This claim arises under 42 U.S.C. § 1983, the Fourth and Fourteenth Amendment of the 21 United States Constitution. This Court has jurisdiction of Plaintiffs federal law claims pursuant 22 to 28 U.S.C. § 1331, 42 U.S.C. § 1988, 28 U.S.C. § 2201. 2. 23 24 25 Costs and attorney fees may be awarded pursuant to the Civil Rights Act as amended, 42 U.S.C. § 1988. COMPLAINT ; Case 3:14-cv-00788-PK Document 1 Filed 05/13/14 1 ALLEGATIONS OF STATUS 2 3.' 3 4 Page 2 of 10 Page ID#: 2 At all times material herein, Plaintiff ROBERT BERNARD KELLER is the legal father of B.R.K. All are citizens United States residing in the City of Beaverton located in Washington County, Oregon. ROBERT BERNARD KELLER brings this action on behalf of himself and on behalf of the minor child B .R.K. 4. At all times material herein, the Beaverton Police Department is a municipal division of 10 the Beaverton and is a local government entity located in the State of Oregon. 5. 11 12 At all times material herein, the Beaverton School District is a local government entity 13 organized pursuant to the State of Oregon with offices at 16550 SW Merlo Road, Beaverton, 14 Oregon, and in control of Raleigh Hills K-8. 15 16 FACTUAL ALLEGATIONS 6. 18 On or about May 2, 2013, Plaintiff, B.R.K.., a 13 year-old minor child, was 19 interviewed at his school, Raleigh Hills K-8, by officers of the Beaverton Police Department 20 regarding an alleged threat of harm based on a doodle that was drawn during class. B.R.K. was 21 removed from Ms classroom and placed in the principal's office of Raleigh Hills K-8 to be 22 questioned about offenses that he was alleged to have committed. At no time did the officers or 23 school obtain a warrant, contact the minor child's parents to obtain parental consent, provide a 24 counselor or attorney to the minor child or advise B.R.K. of his right against self-incrimination 25 or provide an advocate who could explain. COMPLAINT Case 3:14-cv-00788-PK 1 2 Document 1 Filed 05/13/14 Page 3 of 10 Page ID#: 3 7. B.R.K.:s Mother informed Raleigh Hills School prior to May 2, 2013 that B.R.K. was not 3 to be interviewed by law enforcement or the school staff on matters involving a risk assessment 4 and/or grounds for suspension without parental notification. Raleigh Hills nevertheless 5 permitted the police to interview the minor in the absence of a warrant or parental consent. 6 Further, the school did not protect B.R.K. from police interrogation by providing an advocate for 7 the child or timely notifying his parent of the interview. 9 10 8. On April 30, 2013, B.R.K. was interviewed by the Principal of Raleigh Hills and 11 suspended for making a pencil drawing in class that day of a person being hanged by a noose. 12 Later that same day, B.R.K.:s parents met with school staff for an IEP meeting involving B.R.K. 13 and were told that B.R.K. was doing fine. It was only at the end of the meeting that the parents 14 were informed of the suspension, effective immediately, pending a risk assessment. On May 2 , 15 after B.R.K. had been suspended for a day, B.R.K.? s parents met with school staff for the risk 16 assessment. Plaintiff informed Raleigh Hills that B.R.K. was not to be interviewed alone without 17 a parent present. The risk assessment was undertaken by the school psychologist with the 18 parents present on May 2nd and it was decided that B.R.K. did not pose a risk and could return to 19 school that morning, which he did. After the parents left, Raleigh Hills called in officers of the 20 Beaverton Police Department to interview B.R.K. without notifying the parents. At no time 21 before or during the interview were the parents notified by Raleigh Hills or the Beaverton Police. 22 Only after the fact did the parents learn of the police interrogation. No criminal charge was filed 23 nor was a petition filed with the department of human services. As a direct and foreseeable result 24 of the events that transpired during this incident, B.R.K. has suffered emotional damages. 25 COMPLAINT Case 3:14-cv-00788-PK 1 Page 4 of 10 Page ID#: 4 Defendants' actions have deprived Plaintiffs of a fundamental liberty interest in _ j 1/tth substantive due process rights under the 4th and 14 Amendment of the Federal Constitution. 4 10. 5 6 Filed 05/13/14 9. 2 3 Document 1 It is a regular practice of Beaverton Police Department to remove and place children without a warrant or a petition filed with the court alleging imminent danger as grounds for 7 removal, or in the absence of exigent circumstances of imminent danger of serious bodily injury, in violation of a parents' familial and due process rights under the Fourteenth Amendment, of the 9 Federal Constitution, which must afford a parent with an evidentiary hearing in a reasonable 11 time. 12 FIRST CLAIM FOR RELIEF 13 (42 U.S.C. § 1983; Violation of the 4th Amendment: Unreasonable 14 Seizure by Officers of the Beaverton Police Department) 15 11. 16 17 18 19 Plaintiff re-alleges and reincorporates paragraphs 1 through 10 above. 12. Defendants seized Plaintiff B.R.K. on May 1, 2013. Officers of the Beaverton Police Department made an unreasonable seizure of Plaintiff when they removed him from his 20 classroom and knew or reasonably should have known that the child's parents did not consent to 21 22 removing the child from the classroom for a non-school related activity. The Defendants' actions were a direct and proximate cause of the damages suffered by Plaintiff B.R.K. as alleged above. 24 13. 25 The action of Defendants showed a callous or reckless disregard for the rights of Plaintiffs. 14. COMPLAINT Case 3:14-cv-00788-PK 1 Document 1 Filed 05/13/14 Page 5 of 10 Page ID#: 5 Plaintiffs are entitled to all remedies provided by 42 U.S.C. § 1983. 2 3 4 5 SECOND CLAIM FOR RELIEF (42 U.S.C. § 1983; Violation of the 4th and 14th Amendment: Unreasonable Seizure by the Beaverton School District; Unreasonable interference with Familial Association by 6 Beaverton School District's Custom and Policy) 7 15. 9 10 11 12 The Beaverton School District has a custom and policy of seizing children from classrooms and subjecting them to custodial police interrogations without a warrant, parental consent, or probable cause and exigent circumstances. The Beaverton School District has adopted this policy with callous disregard of Plaintiff 13 B.R.K.5s rights under the 4tl and 14 l Amendment to remain free from unreasonable seizures and 14 in violation of the 14th Amendment substantive due process right of parents to direct the care of their children and to protect their children. U.JLOJLI UJ 16 17 The Custom and Policies of the Beaverton School District caused the unreasonable seizure of B.R.K. and is a direct and proximate cause of the damages suffered as alleged above. 18 16. 19 The action of Defendants showed a callous or reckless disregard for the rights of Plaintiffs. 20 21 17. Plaintiffs are entitled to all remedies provided by 42 U.S.C. § 1983. 23 24 25 COMPLAINT Case 3:14-cv-00788-PK Document 1 Filed 05/13/14 Page 6 of 10 Page ID#: 6 1 THIRD CLAIM FOR RELIEF 2 (42 U.S.C. § 1983; Violation of the 4th and 14th Amendment: Unreasonable Seizure by the 3 Beaverton Police Department; Unreasonable interference with Familial Association by 4 Beaverton Police Department's Custom and Policy) 18. The Beaverton Police Department has a custom and policy of seizing children from classrooms and subjecting them to custodial police interrogations without a warrant, parental consent, or probable cause and exigent circumstances. 10 The Beaverton Police Department has adopted this policy with callous disregard of 11 Plaintiff B.R.K,'s rights under the 4th and 14th Amendment to remain free from unreasonable 12 seizures and in violation of the 14ta Amendment substantive due process right of parents to direct 13 the care of their children and to protect their children. 14 The Custom and Policies of the Beaverton Police Department caused the unreasonable seizure of B.R.K. and is a direct and proximate cause of the damages suffered as alleged above. dCJLZ.Ua. C VJJL JD.JX.JLV. OJLJLU. Id d UJUL^Ol OJLJLU. JJlUAllliaLC 16 17 19. The action of Defendants showed a callous or reckless disregard for the rights of Plaintiffs. 18 20. 19 Plaintiffs are entitled to all remedies provided by 42 U.S.C. § 1983. 20 21 22 23 24 25 COMPLAINT Case 3:14-cv-00788-PK Document 1 Filed 05/13/14 Page 7 of 10 1 FOURTH CLAIM FOR RELIEF 2 (Injunctive Relief) 3 21. 4 Page ID#: 7 Plaintiffs ROBERT BERNARD KELLER and B.R.K. ask the Court to issue an injunction against the Beaverton School District, preventing the Beaverton School District from 6 seizing children from classrooms for non-school related activities without a warrant., parental 7 consent or probable cause and exigent circumstances. There is not a complete remedy at law, and 9 an award of damages will not assure there will be no future violation. FIFTH CLAIM FOR RELIEF 11 (Monell Claim: Failure to Train and Supervise: Beaverton Police Department) 12 22. 13 14 15 Plaintiff re-alleges and reincorporates paragraphs 1 through 14 above. 23. At all relevant times herein, the Beaverton Police Department had a continued power, right and duty to control and supervise and train and supervise the manner in which employees carried out the objectives of their employment, and to see that all orders, rules, instructions and 18 regulations promulgated by the Beaverton Police Department, and the actions of its employees, 19 are consistent with the Federal Constitution and Federal laws. 20 21 24. The Beaverton Police Department's failure to train and supervise its officers and 23 employees in whether and how the removal of children from a classroom absent a warrant or 24 probable cause and exigent circumstances was consistent with federal laws and the federal 25 constitution, while acting under color of state law to remove Plaintiff Keller's child is an COMPLAINT Case 3:14-cv-00788-PK Document 1 Filed 05/13/14 Page 8 of 10 Page ID#: 8 1 arbitrary deprivation of Plaintiffs5 fundamental liberties and substantive due process rights under 2 the Fourteenth Amendment. 3 4 5 25. At all relevant times herein, the Beaverton Police Department had the power, right and duty to train the manner in which employees carried out the objectives of their employment in a 6 manner consistent with State and Federal Constitutions and Federal and State Statutes and laws. 7 Defendant Beaverton Police Department's failure to investigate or train its employees in this 9 10 11 manner was so reckless or grossly negligent that future misconduct is almost inevitable. 26. Defendants3 wrongful actions described herein violated Plaintiffs' right to be free from 12 unlawful interference with familial association guaranteed by the Fourteenth Amendment to the 13 United States Constitution. Plaintiff is informed and believes and thereon alleges that the right 14 of familial association guaranteed under the Fourteenth Amendment is "clearly established" such 15 that a reasonable social worker or officer acting under color of state law would know it is 16 17 unlawful to remove a child from the care, custody and control of its parents in the absence of exigent circumstances with first obtaining a warrant to do so. 18 27. 19 The action of Defendants showed a callous or reckless disregard for the rights of Plaintiffs. 20 21 28. Plaintiffs are entitled to all remedies provided by 42 U.S.C. § 1983. 23 24 25 COMPLAINT Case 3:14-cv-00788-PK Document 1 Filed 05/13/14 1 FIFTH CLAIM FOR RELIEF 2 (Attorney Fees) 3 29. 4 Page 9 of 10 Page ID#: 9 Plaintiffs request attorney fees pursuant to 42 U.S.C. § 1998. 5 6 SIXTH CLAIM FOR RELIEF 7 (State Claim: False Imprisonment) 9 10 30. Defendants intended to confine Plaintiff B.R.K. to a small room for purposes of 11 conducting an interrogation. Plaintiff B.R.K. was aware that he was confined and was not free to 12 leave. The confinement of Plaintiff B.R.K. was unlawful and Defendants3 actions were the 13 direct and proximate cause of the Plaintiffs injuries as set forth above. 14 15 SEVENTH CLAIM FOR RELIEF (State Claim: Intentional Infliction of Emotional Distress) 17 35. 18 Defendants knew or should have known with certainty that there conduct was likely to 19 cause emotional distress to Plaintiff B.R.K. Defendant's conduct in compelling a custodial 20 21 investigation, false imprisonment, and unreasonable search and seizure was outrageous and an extraordinary transgression of socially tolerable behavior. Defendant's conduct caused Plaintiff 23 B.R.K. to suffer anxiety and emotional distress. Defendants' actions were the direct and 24 proximate cause of Plaintiff s injuries as set forth herein. 25 COMPLAINT Case 3:14-cv-00788-PK Document 1 Filed 05/13/14 Page 10 of 10 Page ID#: 10 WHEREFORE, Plaintiff prays for judgment against Defendants, as to all causes of action, as follows: 1. Compensatory damages of not less than $ 100,000.00; and 5 2. Special Damages according to proof; 6 3. Punitive Damages in an amount to be determined at the time of trial or otherwise allowed by law; 7 9 10 4. Reasonable costs and attorney fees incurred herein; 5. All remedies provided by section 1983; and 6. Such other equitable relief as the Court deems just and proper. 11 12 DATED this /3^ day of May 2014. 13 14 15 Respectfully Submitted, 16 17 18 19 J_ fchael Vergamini/OSB 04520 399 East 10th Ave^Ue, Ste 109 Eugene, Oregon 97401 (541)302-1800 Michael@vergaminilaw.com Attorney for Plaintiffs 20 21 22 23 24 25 COMPLAINT