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Paraplegic sues sheriff’s office, Medford police

Video shows Jackson County sheriff’s deputy slapping disabled homeless activist in wheelchair

A Southern Oregon sheriff’s deputy was caught on video slapping a paraplegic man across his face as three other deputies pushed him into a jail cell in a wheelchair.

The deputies then left John Lee Malaer partially naked on the floor of the cell, with a jail smock that barely covered his body and no access to a catheter that he needed to relieve himself, according to jail video.

FILE PHOTO: Jackson County Jail. John Lee Malaer, a paraplegic man and disabled homeless activist, has filed a lawsuit against Jackson County Sheriff’s deputies and the Medford police alleging false and malicious arrest, use of excessive force, retaliation, discrimination and violation of his rights under the Americans with Disabilities Act.

He had landed in jail after his wheelchair got stuck in a sidewalk rut as he tried to catch a bus in Medford and he threw stones at a store to try to get someone’s attention for help.

Malaer, an advocate for homeless people with disabilities, spent about 20 hours in custody on allegations of disorderly conduct and harassment before he was released. His criminal charges were later dismissed.

During his time there, a sheriff’s deputy slapped him twice, according to court records. One of the slaps was caught on video, and the deputy admitted to the other slap during an investigation by state police.

Malaer was forced to urinate on the jail cell floor multiple times and soiled a mattress because he didn’t have his catheter, said his lawyer, Alicia LeDuc Montgomery.

He had access to water only via the cell’s toilet because he couldn’t reach the sink for at least five hours, she said.

“The use of force was unnecessary because Plaintiff was already restrained with handcuffs, paralyzed and being held down in the wheelchair by other deputies,” LeDuc Montgomery wrote in a federal civil rights lawsuit.

Malaer, who was 60 at the time of the 2019 arrest and is now 63, is suing the deputy who slapped him, the Jackson County Sheriff’s Office, other deputies and Medford police, alleging false and malicious arrest, use of excessive force, retaliation, discrimination and violation of his rights under the Americans with Disabilities Act.

He also alleges other deputies forced his head between his legs as he was handcuffed in a wheelchair in the jail during processing, although he wasn’t physically resisting.

He’s seeking unspecified economic, noneconomic and punitive damages.

Malaer’s lawyer played the jail videos Wednesday afternoon for a state commission working to adopt standards for law enforcement discipline.

“The culture of impunity for police violence must end,” LeDuc Montgomery told board members via an online public hearing in Medford. She urged them to set stringent discipline standards for deputies and sheriffs to deter such behavior as that captured on the videos she played for them.

Demeaning comments about disability

The charges against Malaer stemmed from his July 11, 2019, encounter with Medford police that began when his motorized wheelchair “ran out of juice” from a dead battery, leaving him stranded outside Lumpy’s deli and lottery store, according to the suit and Malaer’s deposition.

He said he was throwing pebbles — others say rocks — at the store to try to get someone’s attention to help push his chair out of the rut and allow him to board a bus that was pulling up. The store clerk called the police instead.

Police arrived a short time later at 7:30 p.m.

Police found nothing had been damaged at the store, and no one was injured, according to Medford police reports.

Malaer said others helped him get his wheelchair free, and he tried to roll in it to the bus stop and ask the driver to help push the wheelchair onto the loading platform when police arrived.

Medford Officer Omar Esqueda came up to Malaer from behind and told him: “Just get on the bus!” after asking if he had a bus pass, according to the suit.

Malaer yelled at the officer, and Esqueda responded: “Because you’re being an asshole. Go away.”

The bus took off before Malaer could get on, and Esqueda taunted Malaer, saying, “You think just because you’re in a wheelchair you can’t go to jail,” the suit alleges.

Malaer yelled for the officer to leave him alone. Esqueda put on gloves and made snide comments to bystanders about Malaer having “pissed in his wheelchair,” according to the suit.

A shouting match occurred, with officers “antagonizing, demanding, insulting and inciting” Malaer before they arrested him, his lawyer wrote in the suit.

The Medford officers wrote in their reports that Malaer was intoxicated, threatened to harm them, yelled profanities and made several threats regarding putting a bullet in the officers’ heads, according to their reports. They also noted Malaer wasn’t armed.

According to body camera audio cited in the suit, Officer Michael Wulff told Malaer: You’re talking a lot of trash for being in a wheelchair, then added: “Your mouth’s writing checks your body can’t cash,” drawing laughs from Esqueda.

The police handcuffed Malaer and took him and his wheelchair to jail.

One of the officers went to Malaer’s apartment at his request to retrieve a charger for his wheelchair. His backpack on the wheelchair contained his medical catheter, but police took it to their property room and stored it there.

Alleged abuse for ‘being mouthy’

Malaer had been an outspoken advocate for people with disabilities experiencing homelessness, having joined the Jackson County Continuum of Care Board in 2017. The federally required community effort strives to provide stable housing for people who don’t have homes or are at risk of losing their homes.

But he left the board after his arrest and jailing, and his suit contends that Medford officers repeatedly targeted him in retaliation for his public criticisms of law enforcement.

Malaer had suffered permanent loss of the use of his legs from an earlier spinal injury. He was living in an apartment in Medford at the time of his arrest but has been homeless on and off before and since.

He said he was subjected to “cruel and unusual punishment because the sheriff’s deputies didn’t like the words that were coming out of my mouth.”

He said the videos from the jail don’t show him being resistant.

“What they show me is being mouthy … and that’s why I was abused and neglected, he said in a deposition taken by a Jackson County lawyer before he obtained his own lawyer.

Jackson County Sheriff Nathan Sickler, who oversees the jail, has urged a judge to dismiss the case, denying that deputies violated Malaer’s civil rights.

Even if the court found violations, the sheriff said he and the deputies aren’t liable and are protected by qualified immunity, which shields government officials from being sued by people claiming violation of their rights, except when the official violated a “clearly established” natural, legal or constitutional right.

According to the sheriff, Malaer was drunk, cursing and “making threats” toward officers and deputies when he arrived at the jail.

A jail nurse’s notes said he refused to answer any medical questions, said he didn’t have any medical issues and was “uncooperative during pat down and refused to remove clothing or answer questions,” Johan Pietila, the sheriff’s lawyer, wrote in a response

But Pietila and the sheriff also acknowledged that Malaer asked to be taken to the hospital, which deputies didn’t do.

A jail intake form for Malaer that night, which is filed in court, also shows the word “cooperative” circled and had “NO” written next to a question asking if he was suicidal at the time.

The jail form included other handwritten remarks that Malaer was paralyzed from the waist down and suffered a full disability. The notes also noted catheter, misspelled as “cathider.”

According to the sheriff, a mattress, sink, toilet and two concrete slabs for beds were in the jail cell, and Malaer was asleep on a mattress on the floor for his first two hours and nine minutes in the cell.

After about five-and-a-half hours, Malaer was given a jail wheelchair, a cup for water and another safety smock, the sheriff’s lawyer wrote. Video shows he slipped out of the wheelchair, according to the lawyer.

The sheriff acknowledged Malaer urinated on the floor five or six times and in the toilet about twice.

“The facts show he was provided adequate care, and there was no reckless disregard of his basic needs,” Pietila wrote.

Deputy calls slap a ‘distraction strike’

Malaer’s lawyer said her client had been in the jail at least twice before, and the jail staff knew of his medical needs.

Malaer filed a complaint with Medford police after his release and Oregon State Police investigated.

Jackson County Deputy Brian Kolkemo admitted to state police that he first slapped Malaer’s face when deputies had trouble getting jail pants on Malaer and instead put him in a jail suicide smock or gown, according to the investigative report. That slap wasn’t caught on video.

Kolkemo slapped him a second time in the face as deputies wheeled Malaer into a holding cell.

Kolkemo described the slap to investigators as a “distraction strike” and not a “forcible blow” and said he didn’t intend any harm to Malaer.

Kolkemo is required to document any use of force, but he never wrote in any report that he slapped Malaer twice or alerted a supervisor about what he did, according to the state police report.

Kolkemo told state police that Malaer was waving his arms and grabbing at deputies as they tried to put jail scrubs on him and at one point tried to pull away from deputies and continued to be “grabby” with his hands.

Kolkemo said he slapped Malaer again in the holding cell, to get his attention to stop that behavior, according to the state police inquiry.

He said he chose to slap Malaer instead of dumping him out of the wheelchair, which he considered a more forceful takedown to the ground, investigators wrote.

Deputy Chad Miller told state police he was at Malaer’s feet and heard the slap in the holding cell, but said he was hoping it was a clap.

Miller, who also is a defensive tactics instructor, described Malaer as a very low threat.

He also told state police that during a later shift change he heard another jail deputy say something like, “That was the funniest thing I have seen – what happened to that guy or slapping that guy.”

One deputy interviewed told state police that he had seen other sheriff’s deputies slap prisoners before, while another deputy questioned said it’s not a normal practice.

State police referred their investigation to the Jackson County District Attorney’s Office for consideration of fourth-degree assault and harassment charges against Kolkemo, but prosecutors declined to pursue the case, according to the state police records.

It’s unclear if Kolkemo faced any discipline by the sheriff’s office. Malaer’s lawyer said she has been unable to obtain any records from the sheriff’s office on whether Kolkemo faced discipline.

Prosecutors dropped the criminal charges against Malaer last year after the person who called police to complain about Malaer died.

Malaer, who receives $12,000 a year in Social Security disability income and is now living in Curry County, first filed the lawsuit on his own and took a few depositions on his own before he got a lawyer.

He said if he’s awarded any damages, he intends to use them to obtain stable housing and medical care.