Case 6:21-cv-01715-MK Document 1 Filed 11/29/21 Page 1 of 25

Michelle R Burrows OSB 861606

LAW OFFICE MICHELLE R. BURROWS P.C.
16869 SW 65th Ave # 367
Lake Oswego, OR 97035
503-241-1955
Michelle.r.burrows@gmail.com
www.oregoncivilrights.com

Anthony Rosta OSB 810970

ROSTA & CONNELLY, P.C.
795 W 7th Ave
Eugene, OR 97402
541-343-8111
tony@rosta-connelly.com

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Eugene Division

OFELIA HERNANDEZ SANTIAGO, No: 6:21-cv-01715

Personal Representative of the Estate of
Eliborio Rodrigues Jr.,

Plaintiff, COMPLAINT
v. 4th Amendment Excessive Force;
Wrongful Death

SAMUEL TYKOL, JOHN DOE 42 U.S. C. 1983

SUPERVISORS 1-3, CITY OF EUGENE, a
municipal subdivision of the State of
Oregon,
Defendants. DEMAND FOR JURY TRIAL

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, by and through her lawyer, Michelle R. Burrows, brings her complaint herein

alleging as follows:

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INTRODUCTORY STATEMENT

1.

This action is filed by Plaintiff under 42 U.S.C. § 1983 and ORS 30.265, for events

occurring on or about November 30, 2019, alleging unreasonable use of deadly force, in

violation of the Fourth Amendment to the United States Constitution, along with state torts of

negligence and wrongful death, arising from the wrongful, unreasonable and unnecessary

shooting of Eliborio Rodrigues Jr, causing his death.

2.

This court has jurisdiction over Plaintiff’s claims of violations of federal Constitutional

Rights under 42 U.S.C. 1983, 28 U.S.C. §§ 1331 and 1343.

3.

Venue is proper under 28 U.S.C. § 1391(b), in that one or more of the defendants reside

in the District of Oregon and Plaintiff’s claims for relief arose in this district.

4.

The court has supplemental jurisdiction over Plaintiff’s pendent state law claims under 28

U.S.C. § 1367.

5.

Plaintiff is entitled to a reasonable attorney fee pursuant to 42 U.S.C. 1988.

PARTIES

6.

Plaintiff Ofelia Hernandez Santiago is the Personal Representative of the Estate of

Eliborio Rodrigues Jr. Ms. Santiago was appointed by the Lane County Circuit Court on April 2,

2020. The state case number is 20PB01960.

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7.

Mr. Rodrigues is survived by four minor children.

8.

Defendant Samuel Tykol is a police officer with the City of Eugene Police Department

and was acting under color of law at the time of the events alleged herein. He is sued in his

individual capacity.

9.

Defendants John Doe Supervisors 1-3 are police officers with the City of Eugene Police

Department and were acting under color of law at the time of the events alleged herein. They are

sued in their individual capacity. It is alleged the Supervisor Defendants were responsible for

supervising and monitoring and/or training Officer Tykol.

10.

Defendant City of Eugene (“City”) was at all times a municipal subdivision of the State

of Oregon. The City is a “person” pursuant to 42 U.S.C. 1983.

GENERAL FACTS

11.

Eliborio (Eli) Rodrigues Jr. lived in Eugene, Oregon. He was 40 years old when he was

shot three times by Defendant Tykol. Mr. Rodrigues left four minor children.

12.

Mr. Rodrigues often collected cans and bottles at night to provide extra funds to feed his

family and to make ends meet. He did this with Ms. Shoua Yang, the mother of his children and

his partner of 20 years. They often took their bikes or walked in the evening. At the time Mr.

Rodrigues was shot and killed, he had been doing this for over a year.

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13.

Mr. Rodrigues lived with his entire family and had a number of friends in the community.

He was raised in California but came to Oregon to raise his family and find peace. He was

described as a “great human being” with “a BIG teddy bear heart for anyone who took the time

to know [him]” who “taught [his] kids what it means to be family and to be loved.” He was

known in the community as a hard-working family man who wanted a good life for his kids so

he worked as much as possible to make that happen.

14.

On October 27, 2018, Mr. Rodrigues was collecting cans near the University of Oregon

when he was arrested by a U of O police officer. That officer committed perjury, hid video

evidence from the prosecutor, and was eventually fired from his position. Mr. Rodrigues became

nervous and afraid of officers after the incident in 2018.

15.

Five days after the University of Oregon fired the arresting officer in the October 2018

incident, Mr. Rodrigues was shot and kill by Eugene Police officer Samuel Tykol. At the time of

the shooting, Officer Tykol had only been a certified police officer since 2016. He has since

acquired both the Basic and Intermediate Certifications. Officer Tykol does not appear to have

worked at any other law enforcement agency before the City of Eugene. He has a master’s

degree.

FACTS OF SHOOTING

16.

On November 30, 2019, Mr. Rodrigues was walking along the 1400 block of Acacia

Avenue about 12:30 in the morning. He was walking in the street and looking for recyclable

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bottles and cans that people might have put out in their open-topped blue bins for collection. He

was carrying a white bag which held the bottles and cans he retrieved when Officer Tykol pulled

up in his patrol car. The Eugene Police Department has refused to provide any police reports or

the Use of Deadly Force review but much of that information has been provided to other public

sources. There is no dash cam video of events but there is a body cam of the initial contact

between Mr. Rodrigues and Officer Tykol.

17.

Officer Tykol allegedly stopped to question Mr. Rodrigues because he was walking in the

street, failed to use the sidewalk and was wearing a dark hoodie and mask while carrying a white

plastic bag. It was a cold evening. The Body cam footage stopped when Officer Tykol wrestled

Mr. Rodrigues to the ground claiming the camera came off his uniform, managed to land on the

off button, or break. No one has examined the camera to determine whether it was manually

stopped or was broken.

18.

In the video Officer Tykol is fairly aggressive from the moment he approaches Mr.

Rodrigues. Officer Tykol tells Mr. Rodrigues he was stopped because he was walking on the

road and had ignored the sidewalk. Mr. Rodrigues is putting a plastic bottle in his bag when the

officer approaches. At best this is a minor infraction which does not permit extended stops or

arrests. The officer asks Mr. Rodrigues for his identification. Mr. Rodrigues had not been driving

and there is no legal basis for the officer to ask for identification at that point. Mr. Rodrigues

refused to provide his identification which is his Constitutional right.

19.

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Mr. Rodrigues explains what he is doing to the officer who indicates that Mr. Rodrigues

should have gotten back on the sidewalk. Mr. Rodrigues asks whether or not the officer needs a

reason to stop him. Officer Tykol says casually, “No, I can stop you whenever I want.” Mr.

Rodrigues had the right to walk away or refuse to answer questions.

20.

Officer Tykol became more aggressive, asking Mr. Rodrigues numerous times if he had

an ID on him. Mr. Rodrigues does not answer but continues to put the bottles in his bag. The

officer gets angrier telling Mr. Rodrigues: “Put this down” (indicating the bag); “You’re not free

to leave”; and “Sit on the curb.” At that point, Officer Tykol has effectively arrested Mr.

Rodrigues for the infraction of “walking on the street.” It is worth noting that Acadia Avenue

only has sidewalks along a portion of the northern side of the street, and no sidewalks along the

southern side. There is no discussion from Officer Tykol about what crime “walking on the

street” actually constitutes and why it justifies detention and arrest. Officer Tykol reportedly

called for non-emergency backup though no explanation is given for the need for additional

officers. At the same moment Officer Tykol tells Mr. Rodrigues “You’re not free to leave”, the

officer physically grabs Mr. Rodrigues who in turn asks to speak with a sergeant.

21.

Mr. Rodrigues begins to immediately ask for a sergeant or a “real police” officer. Officer

Tykol tells him no and orders him to sit on the curb again. Mr. Rodrigues asks why the officer is

touching him. Throughout the recorded encounter Mr. Rodrigues sounds worried and afraid.

Rodrigues repeatedly calls the officer “sir” and asks for the sergeant. Officer Tykol does not let

go of Mr. Rodrigues and orders him to sit down. Mr. Rodrigues is moving in a slow cumbersome

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manner and appears to want to just walk away. Mr. Rodrigues is unarmed and makes no

threatening statements or gestures to the officer.

22.

Mr. Rodrigues becomes visibly afraid and yells to anyone who can hear. “Somebody call

a real officer” facing away from Officer Tykol but he does not pull away or try to run. Tykol

becomes very upset and angry grabbing Rodrigues and pulling him down to the ground hard.

There is still no indication of any crime.

23.

Tykol begins grabbing Mr. Rodrigues’s hand and when Mr. Rodrigues asks: “Am I under

arrest?”, Tykol says yes. Mr. Rodrigues is not resisting, has complied with the command to get

down, and is passively resisting the officer’s questions which is his Constitutional right. Passive

resistance cannot serve as the basis for charging someone for interfering with a police officer or

resisting arrest. By this point, Mr. Rodrigues is alone on a dark street with an officer who has no

basis for putting his hands on Rodrigues or even arresting him, and Mr. Rodrigues is extremely

frightened.

24.

Mr. Rodrigues asks Officer Tykol why he’s being arrested. Tykol responds, “For

interfering with a police officer.” Mr. Rodrigues is on his knees on the sidewalk with Tykol

pushing on his back. Mr. Rodrigues is not fighting, touching or in any way engaging the officer

who continues to push Mr. Rodrigues face down into the ground. Within two minutes of the

encounter the officer has completely lost all control and tells Mr. Rodrigues “You’re going to get

pepper sprayed.” He pulls out his canister of CS gas while holding Mr. Rodrigues by the

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shoulder and arm forcing Rodrigues to the ground. Mr. Rodrigues begins to yell “officer” and

screaming for help.

25.

While Mr. Rodrigues is in a nearly prone position on the ground, he begins to ask to

speak to Tykol’s sergeant. Tykol is somewhat desperate because he has chosen a course of action

and is unwilling to back away. He orders Mr. Rodrigues to put his hands behind his back. Mr.

Rodrigues does not comply but is being fully restrained face down on the ground. Mr. Rodrigues

is not actively resisting the officer, has not touched the officer or made any threatening

statements or gestures. The officer has escalated the encounter without cause or reason.

26.

At that point the body cam magically stops recording. There are no images of the camera

flying away or landing. The official version by the Eugene Police Department is that the camera

flew off the uniform and landed on the off button. The video of the event does not support this

theory. The only person who can contradict the police version after the camera is disabled is now

dead.

27.

According to statements by the Civilian Review Board, the officer’s statements include

that a “physical dispute” ensued, causing Tykol to spray Mr. Rodrigues in the face at close range

with the CS spray. The Eugene Police Department has refused to release any forensic reports or

other objective investigative material to support any of these allegations and has refused to

provide the Estate with any police reports or the official Deadly Force Review report, despite

giving it to reporters.

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28.

Officer Tykol radioed as some point he was “fighting with one.” Tykol reports Mr.

Rodrigues “got away and was running.” At that point Tykol’s radio microphone magically flew

off as well so no recording of the chase or exchange between the officer and Mr. Rodrigues

could be heard. There is no information available to Plaintiff from crime scene reports where the

microphone or body camera was located.

29.

Officer Tykol reportedly caught up to Mr. Rodrigues and there was “a fight” which

according to some reports was “supported by physical evidence.” It is unknown what “physical

evidence’ could support Mr. Rodrigues being anything but the victim of assault.

30.

The facts become confusing at that point and are exclusively from Officer Tykol’s

statements. Tykol says Mr. Rodrigues was able to gain a physical advantage and “get on top” of

the officer. Tykol says he was able to get to his taser and deploy it. It is unknown whether it was

a contact tase or Tykol tried to deploy the cartridge. There is no Taser read out about how many

times Tykol deployed his taser and there is no physical evidence that the taser prongs or the front

of the taser made actual contact with Mr. Rodrigues. Officer Tykol testified that Mr. Rodrigues

used the taser against the officer by tasing the officer’s groin and legs. There is a certain

recycling period when the Taser cannot be used and it is unknown whether Tykol was able to use

that pause in the action or whether he accidently tased himself.

31.

Tykol claims the two continued to fight and the officer was eventually able to grab his

sidearm and fire three times into Rodrigues until he “stopped fighting”. Officer Tykol claims he

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was able to grab his radio and call shots fired. It is unknown why Tykol tried to arrest Mr.

Rodrigues, chased him on foot in the middle of the night, likely tackled him and began to wrestle

with him. There are no other witnesses to the events after the Body Cam became disabled.

32.

The IDFIT team was called and responded to the shooting scene. The Police Auditor also

responded. The District Attorney issued findings on December 13, 2019 that Tykol’s use of

deadly force was lawful. The Use of Force Board convened on March 5, 2020 and ultimately

found that Tykol’s actions up to the use of deadly force and the use of deadly force were within

department policy. The police auditor disagreed finding that Tykol’s actions violated four

department policies including 402 (Police Stops), 820 (de-escalation), 800 (use of force) and 458

(foot pursuit). The police auditor issued his own report which was not released to the public and

has been denied to the Estate.

Eugene Police Policies

33.

The Eugene Police Department has an exhaustive list of formal policies and procedures

applicable to a variety of law enforcement scenarios. The pertinent policies to this discussion

include, without limitation:

A. Policy 300: Arrests. EPD officers are sworn to enforce municipal, state and federal

criminal laws and should take enforcement action where appropriate and consistent with

department policy. Oregon law requires an officer to have probable cause to believe the

person to be arrested or detained has committed a misdemeanor or any felony. Policy 300

allows an officer to arrest when the officer has probable cause to believe he or she has

committed a crime, or when officers become aware of a warrant for his/her arrest. The

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officer may release the person, cite in lieu of arrest, book into jail, retain the person for

another agency to retrieve or allow the person to post bail. Miranda warning are required.

An EPD officer is encouraged to use sound discretion in the enforcement of the law.

B. Policy 402: Police S.T.O.P.’s: This is an attempt to document all stops to avoid racial or

other bias.

C. Policy 800: Use of Force. It is the policy of EPD that an officer will use only that force

that reasonably appears necessary, given the totality of the circumstances perceived by

the officer at the time of the event, to effectively gain control of the incident. Officers

should endeavor to de-escalate confrontations through tactical communication, warning

and other common sense methods preventing the need to use force whenever reasonably

possible. Force is to be consistent with state and federal law, consistent with department

policies and consistent with department training. Force is to be judged by an objectively

reasonable standard including all the factors in Graham v. Connors.

D. Policy 803: Oleoresin Capsicum Aerosol. OC Spray is available to EPD officers has an

additional use of force option for defending themselves or gaining compliance of resistant

or aggressive individuals. The use of OC Spray is to be in compliance with Policy 800

Use of Force. Once a suspect is incapacitated or restrained and no longer a threat the use

of OC is no longer justified.

E. Policy 809.1 Taser Use. EPD has decided Tasers are a “less lethal device” designed to

temporarily incapacitate and permit control of a violent or potentially violent individual,

or an individual demonstrating the intent to harm himself. The use of the Taser must

comply with other relevant department policies including those involving use of force.

The use of the Taser is justified when the “totality of the circumstances known to the

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officer indicate that the application of the Taser is reasonable to subdue or control

persons who have created an immediate credible threat of physical injury, someone who

is assaulting another or someone who is suspected of a felony or a misdemeanor

involving injury or threat to another, a sex crime or a violation of a restraining order.” A

Taser is not permitted to be used against persons engaged only in passive or static

resistance to an arrest. The rule warns that multiple discharges of the Taser beyond the

standard five second duration may increase the risk of injury or death and should be

avoided.

F. Policy 820.1 De-escalation. De-escalation is designed to reduce the need to use force,

recognize the sanctity of life, protect officers from harm, reduce injuries to subjects and

build community trust. Officers should make every reasonable effort to de-escalate

confrontations to prevent the need to use force. The various techniques suggested by the

rule include active listening, calling for an officer with greater rapport and empathy,

slowing down the encounter, evaluation of the physical/mental state of the subject,

maintaining distance from the subject, tactical positioning, repositioning and pause,

remaining calm and professional.

G. Policy 458.1 Foot Pursuit. The policy recognizes that foot pursuit is inherently dangerous

and should be approached with caution and subject to numerous guidelines. The officer

should never engage in foot pursuit when alone. Generally, foot pursuit is discouraged

without greater need to protect the public.

34.

The official Eugene Police Department finding was that Officer Tykol did not violate any

department policies either in the events leading to the shooting or the shooting itself. On the

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other hand, the Police Department Auditor issued a separate report finding the officer violated

Policy 402, 820 (de-escalation), 800 (Use of Force) and 458 (foot pursuit). The auditor found the

shooting was within policy based solely on Officer’s Tykol’s interview statements.

Citizen Review Board

35.

Eugene has a Citizens Review Board (CRB) which reviews various police actions. It

conducted a review of the shooting of Mr. Rodrigues. The ERB had access to the Use of Force

Findings, the Police Auditor Findings, the videotape, the investigation from the Interagency

Deadly Force Investigative Team (IDFIT), the report from the Internal Affairs investigation and

statements from the various witnesses in interviews conducted by the City of Eugene Police

Department.

36.

The CRB found some aspects of the investigation troubling including the fact that no one

verified the account that the body cam video was in fact incomplete or that it had “accidentally”

terminated recording. They were concerned the interviews of the officer were coached or

supplemented by the officer’s attorney who often answered questions or corrected the officer’s

answers. In the discussion from the CRB board meeting on June 8, 2021 it appeared many board

members were concerned that officers, including Field Training Officers, were trying to provide

information which was not supported by the facts or designed to influence the findings without

support.

37.

The CRB were hesitant to trust the IDFIT investigation of the shooting especially since

they found officer’s statements and testimony “unreliable” but there was no other witness alive

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to provide information. CRB felt the IDFIT and Use of Force findings were “attempting” to

control the narrative and put unfair and unsupportable motives on the victim. The CRB felt the

Use of Force Board report was not thorough and was filled with bias, as opposed to the Police

Auditor.

38.

Some CRB board members felt the investigators with the IDFIT had written out

questions and was “on the side” of the officer rather than trying to objectively find the truth.

They were also deeply concerned that the victim was called a “suspect” and that his character

was being maligned as part of the justification for the shooting. There is no evidence Officer

Tykol even knew anything about the man he killed prior to the encounter.

39.

Some ERB members were critical of the quality of the Use of Force Board investigation

which ignored the fact that Tykol immediately put hands on Mr. Rodrigues, never specifically

outlined what crime he alleged committed or how that “crime” was one for which arrest was

warranted, the fact Tykol immediately and continuously escalated a situation which was at best a

jaywalking incident. The CRB accused the Use of Force Board of a significantly lack of

transparency and studiously avoided any details about the actual uses of force.

40.

Police Auditor Gissiner told the CRB he had never seen “such a poor investigation

concerning an officer-involved shooting.” He said the IDFIT meeting was not recorded. Gissiner

told the CRB the incident happened because of the poor training of Tykol by EPD.

FIRST CLAIM FOR RELIEF: Unreasonable Stop/arrest

Officer Tykol
42 U.S. C. 1983: 4th Amendment

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41.

Plaintiff incorporates all previously alleged matters herein.

42.

Eli Rodrigues Jr. was entitled to walk the streets freely without showing his identification

or being subject to being shot. He had the Fourth Amendment protection to be free from the

unlawful seizure of his person pursuant to the parameters of the 4th Amendment to the United

States Constitution.

43.

The protections of the 4th Amendment inure to the citizen, not the officer. The officer

must recognize and guard against any deprivation of the protected rights in all citizens. The

officer can stop and momentarily detain a citizen and may then with adequate probable cause

further detain the citizen but at some point there is no objectively supportable information to

justify an arrest the officer must release the citizen. During such an encounter, the citizen is free

to refuse to answer questions, refuse to provide his name and any documentation of

identification. An officer may not arrest nor charge a citizen with a crime for exercising his

protected Constitutional Rights including the right to be left alone.

44.

In this incident, Officer Tykol reportedly approached Mr. Rodrigues because Mr.

Rodrigues was “walking in the street” which is not illegal and if any municipal restriction is

imposed on a free and open use of public roadways it is per se unconstitutional. But the officer

had not seen Mr. Rodrigues commit any crimes, brandish any weapons, trespass on private

property or generally commit any felony or serious misdemeanor. Almost immediately the

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officer told Mr. Rodrigues he was not free to leave. At that point, the officer had unlawfully

arrested Mr. Rodrigues with no probable cause or justification.

45.

Shortly after approaching Mr. Rodrigues, the officer grabbed Mr. Rodrigues without

justification. Mr. Rodrigues was not even facing the officer, had no weapon, was not moving

away from the officer but was refusing to answer questions and asking the officer to call a

sergeant. That should have been a signal to the officer to de-escalate the situation and call

another officer who could develop better rapport with Mr. Rodrigues. The officer seriously and

quickly escalated the situation by placing Mr. Rodrigues under arrest for not answering questions

and by spraying him with pepper spray to get him to comply with questioning. When Mr.

Rodrigues was sprayed with the OC spray, he was on his knees facing away from the officer. In

fact, Mr. Rodrigues never once responded to the officer’s physical escalation of the assault.

46.

The officer lacked probable cause to arrest or seriously detain Mr. Rodrigues though he

had the authority to approach Mr. Rodrigues for “mere conversation”. However, Officer Tykol

became upset, angry and agitated escalating the situation into a premature arrest and eventually

serious physical confrontation.

47.

Mr. Rodrigues repeatedly asked for a sergeant or a “real officer”, with his voice tinged

with fear and concern. There was something in Officer Tykol which made Mr. Rodrigues very

afraid. As a result of this unlawful arrest, Mr. Rodrigues suffered the emotional distress, fear, and

pain associated with the knowledge that the officer was going to do something very bad to him.

This unlawful arrest resulted in Mr. Rodrigues being sprayed with OC gas which caused serious

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pulmonary restrictions, burning in his eyes and burns to his face increasing his fear and sense of

doom. The illegal arrest ended with Mr. Rodrigues being shot three times by Officer Tykol.

48.

As a result of the above-described events, Mr. Rodrigues and his Estate suffered damages

to be determined at trial.

SECOND CLAIM FOR RELIEF: Unreasonable Use of Deadly Force

Officer Tykol
42 US.C. 1983: Fourth Amendment

49.

Plaintiff realleges all previous paragraphs as if more fully set forth.

50.

Mr. Rodrigues was entitled to be free from unlawful seizure of his person pursuant to the

parameters of the 4th Amendment to the United States Constitution. Mr. Rodrigues was also

entitled to be safe and secure from undue and unreasonable force including deadly force.

51.

The acts and omissions of Defendant Tykol in shooting Mr. Rodrigues without a

reasonable belief that Mr. Rodrigues presented an imminent and serious danger to the officer or

others is a violation of the 4th Amendment restriction on deadly force. Mr. Rodrigues was turned

away from or running away from the officer during the majority of his contact with him. The

officer escalated the situation at numerous times using force against a man who was simply

passively resistant to giving his name or identification and who was asking for a sergeant. The

officer used pepper spray against Mr. Rodrigues when he was on his knees facing away from

Tykol. The Officer used a taser on Mr. Rodrigues who was running away from the officer after

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simply jaywalking. Mr. Rodrigues was only suspected of walking on the street which is likely

not even a crime and certainly not a crime for which deadly force is justified.

52.

The officer failed to ascertain all reasonable and objective facts and used inaccurate

information to justify shooting Mr. Rodrigues. Officer Tykol failed to de-escalate, and he failed

to follow proper procedures that complied with department policy including: calling for

alternative officers or calling for supervisors; engaging in a foot chase against a jaywalker while

alone; assaulting a man who was not physically resistant; and providing an “unreliable” story

about the events. There were numerous points in the encounter when the officer could have made

different choices and avoided most of the violence he visited on Mr. Rodrigues but he chose to

escalate and then contrived his own exigency. It is believed that the officer did everything wrong

in approaching this situation creating his own exigency when none existed. This officer panicked

and simply started shooting.

53.

Defendant’s conduct was well-defined by law and he knew or should have known that his

conduct was not only well below the standard prescribed by law, but illegal per se.

54.

As a result of these Constitutional violations, Mr. Rodrigues died. He suffered and

endured conscious pain, and was denied the right to continue living and enjoying his life, all to

his damage to be more fully determined at trial. Mr. Rodrigues’s estate is entitled to recover said

damages flowing from the deprivation of his constitutional rights as set forth above.

THIRD CLAIM FOR RELIEF: Supervisor Liability

John Doe Supervisors 1-3
42 U.S.C. 1983 Fourth Amendment

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55.

Plaintiff realleges all previous paragraphs as if more fully set forth herein.

56.
Mr. Rodrigues had the right under the Fourth Amendment of the United States

Constitution to be free from arrest not based on a probable cause belief that the particular person

has committed, is committing, or is about to commit a crime.

57.

Defendant Tykol violated Mr. Rodrigues rights when he arrested him lacking probable

cause to believe he had committed a crime. Tykol also violated Rodrigues protected and

guaranteed Fourth Amendment right to be free from unreasonable use of force.

58.

Defendants in a supervisory capacity are held liable for constitutional violations due to

their own culpable action or inaction either through (a) their own direct participation in the

violations; (b) failure to train, supervise or control subordinates; (c) their own acquiescence in

the constitutional deprivations; (d) failure to remedy a wrong after learning of the violation; (e)

creating a custom, practice or policy that leads subordinate staff to commit constitutional

violations or allowing such custom, practice or policy to continue; or (f) other conduct which

shows a reckless or callous indifference to the constitutional rights of others.

59.

Upon information and belief, Defendant John Does authorized and/or acquiesced to the

conduct alleged herein which caused Mr. Rodrigues injuries, arrest and mistreatment by Tykol.

They are also responsible for failing to properly train and supervise Defendant Tykol.

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60.

At all times material, the law was clearly established that Defendants’ seizure of Mr.

Rodrigues in the manner and under the circumstances was unreasonable and any objectively

reasonable law enforcement Defendant would have known that the seizure of Mr. Rodrigues

violated his clearly established Fourth Amendment rights. Defendants’ conduct was well-defined

by law and each Defendant knew or should have known that their conduct was not only well

below the standard prescribed by law, but illegal per se.

61.

Defendants’ conduct was malicious, oppressive, and/or in reckless disregard of Mr.

Rodrigues Fourth Amendment rights.

62.

As a direct and proximate result of Defendants’ unconstitutional acts, Mr. Rodrigues

suffered physical injury and mental harms, outrage, betrayal, offense, indignity and insult,

physical distress, and death causing damage in amounts to be determined at trial.

63.

Mr. Rodrigues is entitled to an award of punitive damages against Defendants to punish

and deter them and others from similar deprivations of constitutional rights in the future.

FOURTH CLAIM FOR RELIEF: Monell

Unconstitutional/Illegal Custom, Policy or Procedure

64.

Plaintiff realleges all previous matters as if more fully set forth.

65.

The City of Eugene has a policy, custom or procedure which allows officers to shoot

suspects when there is no threat of deadly force, open fire without warning and without an

20 COMPLAINT
 Case 6:21-cv-01715-MK Document 1 Filed 11/29/21 Page 21 of 25

awareness of the totality of circumstances which would not justify such use of force. The City of

Eugene also trains officers to fail to be aware of proper legal standards including probable cause,

arrest of individuals suspected of minor infractions or non-arrestable offenses, escalation of

minor incident, passive resistance, foot pursuit, failure to call for support, failure to use common

sense.

66.

Despite a national trend toward doing so, The City of Eugene fails to have an adequate

policy on training officers in several particulars relating to a response to a crisis situation, to wit:

A. Failing to properly train tactics on how to de-escalate when the circumstances warrant it;

B. Failing to properly train officers to address the specific needs of the situation including

modification of tactical response when dealing with mentally or emotionally impaired

individuals, and failing to train to obtain all critical information before use of extreme

force;

C. Failing to properly train officers in the tactics to be used when a suspect fails to obey

verbal instructions;

D. Failing to train officers in the proper and legal use of deadly force;

E. Failing to train in the proper use of OC spray against passively resistant suspects; and

F. Failing to properly train officers on the rights of citizens to exercise their protected

Constitutional rights, including the rights to refuse to answer questions or show

identification.

66.

As a result of the unofficial policies, customs or procedures described above, Mr.

Rodrigues was subjected to unreasonable seizure, excessive force, and battery. Mr. Rodrigues

21 COMPLAINT
 Case 6:21-cv-01715-MK Document 1 Filed 11/29/21 Page 22 of 25

died because of these policies, customs or procedures, all to his general damages to be more

specifically determined at trial.

SUPPLEMENTAL STATE CLAIMS

FIFTH CLAIM FOR RELIEF: Wrongful Death

All Defendants

67.

Mr. Rodrigues realleges all previous paragraphs as if more fully set forth herein.

68.

The actions taken by defendants and the City in shooting and killing Mr. Rodrigues were

unjustified and are not supported by the law. The use of force was not in the furtherance of

official duties and there was no crime to justify the actions by the officers.

69.

Each of the actions described herein were performed by Defendant while he was on duty,

carrying a badge and weapon, and working as a law enforcement officer. The act of shooting Mr.

Rodrigues was reasonably foreseeable to cause his death and was not justified by the facts and

circumstances then present.

70.

The death of Mr. Rodrigues was wrongful and caused the Estate damages in lost income

potential, funeral expenses, and lost support for his children all to be fully explored at trial.

SIXTH CLAIM FOR RELIEF: Negligence

All Defendants

71.

Plaintiff realleges all matters previously raised as if more fully set forth.

22 COMPLAINT
 Case 6:21-cv-01715-MK Document 1 Filed 11/29/21 Page 23 of 25

72.

Defendant Tykol is a City of Eugene police officer acting within the course and scope of

his employment with the City when he falsely arrested, tased and gassed Mr. Rodrigues without

justification or probable cause.

73.

Mr. Rodrigues’s death was caused by the negligence of Defendant Tykol and Supervisor

Defendants in one or more of the following particulars:

A. In failing to allow the use of methods of non-lethal force to de-escalate the situation;

B. In failing to conduct a reasonable and appropriate investigation of the stop including

asking questions, forcing Mr. Rodrigues into a confrontation and using outmoded

force response techniques against a passively resistant suspect;

C. In failing to assess the danger properly and only use the amount and level of force to

stop the perceived threat including using OC gas against a suspect on his knees facing

away and not resisting;

D. In failing to use proper tactics to maintain the safety and welfare of himself and

others; and

E. In using deadly force to shoot Mr. Rodrigues who was only suspected of jaywalking.

74.

Mr. Rodrigues’s death was caused by the negligence of defendant City of Eugene in one or

more of the following particulars:

A. In having a policy and/or custom and/or practice of ratifying and approving

unreasonable shooting deaths of citizens by City police officers without implementing

methods and training necessary to prevent future deaths;

23 COMPLAINT
 Case 6:21-cv-01715-MK Document 1 Filed 11/29/21 Page 24 of 25

B. In failing to properly train officers in the proper and legal use of deadly force and

tasers;

C. In failing to properly train officers to respect the exercise of protected Constitutional

rights by citizens;

D. In failing to properly train in the use of force against passively resistant suspects;

E. In failing to properly train how to de-escalate a situation; and

F. In failing to properly train in the use of force against a compliant suspect.

75.

As a result of the negligence alleged herein, Mr. Rodrigues was assaulted, gassed, tased,

shot and killed. He suffered and endured conscious fear, pain and suffering, all to his general

damage in the sum to be more fully proven at trial.

76.

Plaintiff has complied with the Oregon Tort Claims Act by filing in a timely manner and

in providing proper notice pursuant to statute.

WHEREFORE Plaintiff requests that this Court grant judgment as follows:

1. Judgment against Defendants for economic damages in an amount to be proven at

trial;

2. Judgment against Defendants for non-economic damages in an amount to be

proven at trial;

3. Judgment against Defendants for punitive damages in a fair and reasonable

amount to be proven at trial;

4. Judgment against Defendants for deterrence damages in a fair and reasonable

amount to be proven at trial; and

24 COMPLAINT
 Case 6:21-cv-01715-MK Document 1 Filed 11/29/21 Page 25 of 25

5. Judgment for costs, interest, attorney fees and such other and further relief as the

Court deems just and equitable.

DATED this 29th day of November 2021.

Respectfully submitted,

/s/Michelle R. Burrows__________
Michelle R. Burrows OSB861606
Of Attorneys for Plaintiff

25 COMPLAINT
 Case 6:21-cv-01715-MK Document 1-1 Filed 11/29/21 Page 1 of 2
JS 44 (Rev. 08/18) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

OFELIA HERNANDEZ SANTIAGO, Personal Representative of the SAMUEL TYKOL, JOHN DOE SUPERVISORS 1-3, CITY OF
Estate of Eliborio Rodrigues Jr EUGENE, a municipal subdivision of the State of Oregon
(b) County of Residence of First Listed Plaintiff Lane County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Michelle Burrows, Michelle Burrows PC, 16869 SW 65th Ave, Lake
Oswego, OR 97035, 503-241-1955

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State

u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - of Property 21 USC 881 u 423 Withdrawal u 376 Qui Tam (31 USC
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 3729(a))
u 140 Negotiable Instrument Liability u 367 Health Care/ u 400 State Reapportionment
u 150 Recovery of Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 410 Antitrust
& Enforcement of Judgment Slander Personal Injury u 820 Copyrights u 430 Banks and Banking
u 151 Medicare Act u 330 Federal Employers’ Product Liability u 830 Patent u 450 Commerce
u 152 Recovery of Defaulted Liability u 368 Asbestos Personal u 835 Patent - Abbreviated u 460 Deportation
Student Loans u 340 Marine Injury Product New Drug Application u 470 Racketeer Influenced and
(Excludes Veterans) u 345 Marine Product Liability u 840 Trademark Corrupt Organizations
u 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY u 480 Consumer Credit
of Veteran’s Benefits u 350 Motor Vehicle u 370 Other Fraud u 710 Fair Labor Standards u 861 HIA (1395ff) u 485 Telephone Consumer
u 160 Stockholders’ Suits u 355 Motor Vehicle u 371 Truth in Lending Act u 862 Black Lung (923) Protection Act
u 190 Other Contract Product Liability u 380 Other Personal u 720 Labor/Management u 863 DIWC/DIWW (405(g)) u 490 Cable/Sat TV
u 195 Contract Product Liability u 360 Other Personal Property Damage Relations u 864 SSID Title XVI u 850 Securities/Commodities/
u 196 Franchise Injury u 385 Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) Exchange
u 362 Personal Injury - Product Liability u 751 Family and Medical u 890 Other Statutory Actions
Medical Malpractice Leave Act u 891 Agricultural Acts
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 790 Other Labor Litigation FEDERAL TAX SUITS u 893 Environmental Matters
u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: u 791 Employee Retirement u 870 Taxes (U.S. Plaintiff u 895 Freedom of Information
u 220 Foreclosure u 441 Voting u 463 Alien Detainee Income Security Act or Defendant) Act
u 230 Rent Lease & Ejectment u 442 Employment u 510 Motions to Vacate u 871 IRS—Third Party u 896 Arbitration
u 240 Torts to Land u 443 Housing/ Sentence 26 USC 7609 u 899 Administrative Procedure
u 245 Tort Product Liability Accommodations u 530 General Act/Review or Appeal of
u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty IMMIGRATION Agency Decision
Employment Other: u 462 Naturalization Application u 950 Constitutionality of
u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration State Statutes
Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
u 1 Original u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 Transferred from u 6 Multidistrict u 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 USC 1983
VI. CAUSE OF ACTION Brief description of cause:
4th Amendment Excessive Force; Wrongful Death
VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
11/29/2021 /s/Michelle Burrows
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 08/18) Case 6:21-cv-01715-MK Document 1-1 Filed 11/29/21 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.
 Case 6:21-cv-01715-MK Document 1-2 Filed 11/29/21 Page 1 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the
District
__________ of Oregon
District of __________

OFELIA HERNANDEZ SANTIAGO, Personal )

Representative of the Estate of Eliborio Rodrigues Jr. )
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
SAMUEL TYKOL, JOHN DOE SUPERVISORS 1-3, )
CITY OF EUGENE, a municipal subdivision of the )
State of Oregon )
)
Defendant(s) )

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) Samuel Tykol

Eugene Police Department
300 Country Club Rd
Eugene, OR 97401

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Michelle R Burrows
Law Office of Michelle R Burrows
16869 SW 65th Ave # 367
Lake Oswego, OR 97035

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk
 Case 6:21-cv-01715-MK Document 1-2 Filed 11/29/21 Page 2 of 2

AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the
District
__________ of Oregon
District of __________

OFELIA HERNANDEZ SANTIAGO, Personal )

Representative of the Estate of Eliborio Rodrigues Jr. )
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
SAMUEL TYKOL, JOHN DOE SUPERVISORS 1-3, )
CITY OF EUGENE, a municipal subdivision of the )
State of Oregon )
)
Defendant(s) )

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address) City of Eugene

City Manager's Office
101 West 10th Ave. Ste. 203
Eugene, OR 97401

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Michelle R Burrows
Law Office of Michelle R Burrows
16869 SW 65th Ave # 367
Lake Oswego, OR 97035

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT

Date:
Signature of Clerk or Deputy Clerk