John Lee Malaer is suing Jackson County and Deputy Brian Kolkemo for alleged violations of his constitutional rights and his rights under the ADA and Rehabilitation Act, as well as battery and negligence.
Malaer, who is paraplegic, said the County failed to provide him with a wheelchair or wheelchair accessible facilities during his 2019 detainment at the Jackson County Jail. He said he was therefore unable to use the toilet or access safe drinking water from the sink.
He also alleges the County is guilty of battery and negligence for allowing deputies to use what he says was excessive force during his detainment.
The case presents “significant disputes of fact,” therefore entitling both parties to a jury, according to a July 19 court order issued by Magistrate Judge Mark D. Clarke.
Medford Police officers arrested Malaer on July 11, 2019 for disorderly conduct and menacing after throwing a pebble at the window of Lumpy’s bar in Medford. He said he was trying to get someone’s attention after the batteries in his electric wheelchair died.
Once Malaer was transported to the Jackson County Jail later that evening, deputies “dragged Plaintiff out of the police vehicle by his arms without supporting his legs or spine,” Clarke wrote in the court order.
They then performed a pat-down where the deputies began engaging in “pain compliance techniques” on Malaer to get him to cooperate, according to the court order. It describes another deputy holding Malaer’s head down, forcing him to be bent in half for almost two minutes while Kolkemo pinched and twisted Malaer’s arm.
He was then transported into a clothing exchange room, where Kolkemo slapped him. Once they had removed all of his clothes, they transported him to a cell, where Kolkemo slapped him across the face again.
The second slap can be seen in security camera footage and “made a loud clapping sound in the audio recording,” according to Clarke’s order.
The County claims Kolkemo hitting Malaer was a “diversionary strike,” which is a tactic officers are trained to use, according to testimony from Kolkemo’s attorney Rhonda Fendrich.
Malaer argues that the strike was unnecessary, since he was seated in his wheelchair and his arms were being held back by other deputies.
“Under federal case law, police can only use the amount of force that’s necessary for the circumstance,” said Malaer’s lawyer, Alicia LeDuc Montgomery. “So that means if no force is necessary, no force can be used.”
Jackson County Counsel Joel Benton declined to comment, citing County policy that prevents him from discussing pending litigation.
Part of Malaer’s allegations include a Monell claim, which stipulates that a policy, custom or practice that was in place led to what happened to him, according to LeDuc Montgomery.
“If there is alleging that there was a policy or custom, or they usually do things a certain way, then there can be room to argue that’s what led to it happening on this particular occasion, instead of it just being a one-off,” LeDuc Montgomery said.
Since the County did not consent to Clarke overseeing the case, it has an opportunity to dispute the judge’s order to send the case to a jury. LeDuc Montgomery said that once it is determined if the County disputes the judge's ruling, the court will decide on a trial date.
Correction: This article has been updated to include that Malaer is suing Jackson County and Deputy Brian Kolkemo personally.
