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HomeMy WebLinkAbout2023-cv-1797 - San Roman v. Nace, et al. - 001 - Complaint IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: ANGEL SAN ROMAN; and CARLOS LOPEZ, Plaintiffs, v. MINDY NACE, individually; KYLE BENDZSA, individually; KEVIN PARK, individually; and CITY OF FORT COLLINS, a municipality, Defendants. ______________________________________________________________________________ COMPLAINT AND JURY DEMAND ______________________________________________________________________________ Plaintiffs, Angel San Roman and Carlos Lopez, by and through counsel, Darold W. Killmer and Michael P. Fairhurst of KILLMER, LANE & NEWMAN, LLP, respectfully allege for their Complaint and Jury Demand as follows: I. INTRODUCTION 1. During the early morning hours of July 17, 2021, Plaintiffs Angel San Roman and Carlos Lopez were peacefully walking back to their SUV that was legally parked on the side of the road in Fort Collins, CO. 2. Suddenly, several Fort Collins Police Services (“FCPS”) officers aggressively ambushed them with blinding flashlights and deadly weapons pointed right at them. 3. Officers identified themselves as the Fort Collins Police but unreasonably failed to explain why they were seeking to arrest Mr. San Roman and Mr. Lopez while threatening them with deadly force. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 1 of 24 2 4. Terrified and bewildered, Mr. San Roman and Lopez continued walking peacefully down the road, in a reasonable effort to avoid an unexplained deadly threat. They then both complied with officers’ commands to stop walking and show their hands. Neither Plaintiff threatened any officer or was armed. 5. Mr. San Roman clearly complied with the order to stop walking, repeatedly assured the officers that he was unarmed, and held his hands in the air to demonstrate compliance and that he was not dangerous. 6. Shortly thereafter, however, Defendant Corporal Mindy Nace arbitrarily tasered Mr. San Roman, as Defendant Sgt. Kyle Bendzsa had plainly illegally instructed her to do. 7. Foreseeably, Mr. San Roman plummeted backwards to the concrete sidewalk, unable to brace himself against the jarring impact because his muscles were incapacitated by the powerful electrical discharge from the taser. Mr. San Roman struck the back of his head so forcefully on the sidewalk that he was knocked unconscious and lost a pulse. Mr. San Roman was later revived by CPR. 8. For his part, Mr. Lopez peacefully sought to film his interaction with the police on his cell phone camera to try to ensure that there was a truthful record of their encounter. 9. Defendant Park retaliatorily deployed pepper spray straight into Mr. Lopez’s eyes despite his obvious lack of resistance, however, in substantial part because of Mr. Lopez’s lawful effort to film the police. Mr. Lopez’s effort to film the police engaged in their public duties addressed a matter of substantial public concern and it was clearly established at that time that such videoing of the police was protected by the First Amendment to the United States Constitution. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 2 of 24 3 10. The Defendants’ use of force against Mr. San Roman and Mr. Lopez was grossly excessive in violation of the Fourth Amendment to the United States Constitution, and resulted from the deliberately indifferent customs, practices, training, supervision and/or discipline of the City of Fort Collins. 11. Mr. San Roman and Mr. Lopez bring this action pursuant to 42 U.S.C. § 1983 against Defendants Nace, Bendzsa, Park, and the City of Fort Collins for violating the rights guaranteed to them by the First, Fourth, and Fourteenth Amendments to the Constitution of the United States. II. JURISDICTION AND VENUE 12. Jurisdiction over Plaintiff’s claims is conferred upon this Court pursuant to 28 U.S.C. § 1331 and § 1343(a)(3), and this case is brought pursuant to 42 U.S.C. § 1983. Jurisdiction supporting Plaintiff’s claim for attorney fees is conferred by and brought pursuant to 42 U.S.C. § 1988. 13. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All of the events described herein occurred within the State of Colorado, and all of the parties were residents of the State of Colorado at all relevant times stated herein. III. PARTIES 14. At all times relevant to this Complaint, Plaintiff Angel San Roman was a citizen of the United States of America and a resident of the State of Colorado. 15. At all times relevant to this Complaint, Plaintiff Carlos Lopez was a citizen of the United States of America and a resident of the State of Colorado. 16. At all times relevant to this Complaint, Defendant Mindy Nace was a citizen of the United States and a resident of the State of Colorado and was acting under color of state law Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 3 of 24 4 in her capacity as a law enforcement officer employed by Fort Collins Police Services. Defendant Nace is sued in her individual capacity. 17. At all times relevant to this Complaint, Defendant Kyle Bendzsa was a citizen of the United States and a resident of the State of Colorado and was acting under color of state law in his capacity as a law enforcement officer with the rank of Sergeant, employed by Fort Collins Police Services. Defendant Bendzsa is sued in his individual capacity. 18. At all times relevant to this Complaint, Defendant Kevin Park was a citizen of the United States and a resident of the State of Colorado and was acting under color of state law in his capacity as a law enforcement officer employed by Fort Collins Police Services. Defendant Park is sued in his individual capacity. 19. Defendant City of Fort Collins (“Fort Collins”) is a Colorado municipal corporation and is the legal entity responsible for itself and for FCPS. IV. FACTUAL ALLEGATIONS Fort Collins Police aggressively ambush Mr. San Roman and Mr. Lopez while they are peacefully walking alongside the road. 20. During the early morning hours of July 17, 2021, Plaintiffs Angel San Roman and Carlos Lopez were walking back to their SUV that was legally parked on the side of the road near Old Town in Fort Collins. 21. Mr. San Roman and Mr. Lopez are cousins and they had spent the evening dining at a nearby restaurant together. 22. They were looking forward to returning home and retiring for the evening. 23. Unbeknownst to Mr. San Roman and Mr. Lopez, several Fort Collins Police Services (FCPS) officers were on the precipice of aggressively ambushing them with deadly Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 4 of 24 5 weapons drawn – and then subjecting them to a barrage of arbitrary and grossly excessive physical force. 24. Earlier that night, the FCPS had apparently received a report that five firearms had been stolen from a black BMW that was parked in Fort Collins. 25. The reporting party allegedly claimed that other miscellaneous items had been stolen as well. 26. Officer Josh Treutler, who was in an FCPS patrol vehicle near Mr. Lopez and Mr. San Roman when he received the information from dispatch, activated his emergency lights. 27. Startled and frightened, Mr. San Roman and Mr. Lopez walked away from their vehicle in a nonthreatening manner, going northbound on the sidewalk alongside Remington St. 28. Many additional FCPS officers swooped onto scene in the moments that followed, including but not limited to Defendant Sergeant Kyle Bendzsa, Defendant Corporal Mindy Nace, Defendant Officer Kevin Park, Officer Corey Donovan, Corporal Jason Bogosian, Officer Sean Gavin, Officer Kevin Alexander, Sergeant Michael Avrech, and Sergeant Mark Martinez. 29. This overwhelming police response was emblematic of the FCPS’s overzealous, SWAT-style reaction to the situation that was wildly out of proportion to the reported crime. 30. FCPS officers immediately pointed their rifles right at Mr. San Roman and Mr. Lopez despite their continued peaceful conduct. 31. At a minimum, Cpl. Bogosian initially pointed his patrol rifle at Mr. Lopez and Ofc. Treutler initially pointed his patrol rifle at Mr. San Roman. 32. Officers identified themselves as the Fort Collins Police but failed to explain why they were seeking to arrest Mr. San Roman and Mr. Lopez while threatening them with deadly force. Multiple officers also nearly blinded them by shining bright flashlights in their faces. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 5 of 24 6 33. Not only surprised, but now also confused and terrified for their lives, Mr. San Roman and Mr. Lopez continued walking in a non-threatening manner, in an instinctual effort to get away from a deadly threat. 34. They feared the police might shoot and kill them for no reason at all. Defendants Nace and Bendzsa unreasonably incapacitate Mr. San Roman with a taser strike, causing him to flatline. 35. Shortly thereafter, Mr. San Roman complied with officers’ commands to stop walking and he stopped and turned towards officers. 36. Mr. Lopez, meanwhile, kept walking away from officers in fear for a little while longer before also complying with their commands to stop. 37. Mr. San Roman repeatedly told the officers that he was unarmed. He even pulled his shorts down around his ankles to demonstrate that he was unarmed, and raised his arms in the air to demonstrate that he was not dangerous. 38. Mr. San Roman’s hands were clearly empty right as soon as he turned around to face the police. He quickly raised his hands in the air and there was nothing in them. 39. Officers barked at Mr. San Roman to get on the ground. 40. He responded that he was a law-abiding citizen. 41. Officers began shining flashlights into Mr. San Roman’s parked SUV (in addition to his face). He said: “don’t touch my vehicle!” Mr. San Roman had a legal right to deny the police permission to enter his private vehicle. 42. Mr. San Roman also correctly stated, repeatedly, that he had no weapons on his person. 43. Mr. San Roman asked the police what law he had broken. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 6 of 24 7 44. No officer explained what legal basis they had to stop Mr. San Roman at gunpoint. 45. Because the police continued to point weapons at Mr. San Roman, including a patrol rifle, he proceeded to further demonstrate that he was unarmed by removing his shirt and undershirt. 46. Mr. San Roman then pulled down his pants to his ankles, leaving only his boxer shorts around his waist, to desperately try to salve any remotely conceivable lingering question as to whether he was carrying a weapon. 47. Immediately before Defendant Cpl Nace deployed her taser into Mr. San Roman, he had his arms outstretched in the air, had removed his shirt and pulled his shorts down around his ankles to demonstrate that he was unarmed, was compliant and was not a danger to anyone. It looked to the officers like this: 48. Despite having no reason to believe that Mr. San Roman possessed any weapons on him or that he presented any danger to any of the officers or anyone else, Cpl. Nace deployed her taser into Mr. San Roman and discharged thousands of volts of electricity coursing through his body. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 7 of 24 8 49. Mr. San Roman immediately lost consciousness and stopped breathing. He remained unconscious, not even breathing, for over three and a half minutes. 50. Defendant Bendzsa noticed that Mr. San Roman was unconscious and had become unresponsive. 51. Defendant Sgt. Bendzsa delivered a sternum rub to Mr. San Roman’s chest and he did not respond as a conscious person should. 52. Sgt. Avrech finally began Cardiopulmonary Resuscitation (CPR). 53. Sgt. Bendzsa had plainly illegally instructed Cpl. Nace to prepare to fire the taser at Mr. San Roman. Defendant Nace then fired the taser into Mr. San Roman though nothing had changed to warrant such escalated use of force. 54. It was objectively unreasonable under the circumstances for any Defendant to believe that a lesser amount of force – or another verbal command – could not procure Mr. San Roman’s compliance. 55. He was not threatening anyone, was not actively resisting arrest, and was not attempting to flee from the scene when Defendants Bendzsa and Nace, acting in concert, caused Mr. San Roman to be incapacitated by a taser and to foreseeably fall violently backward, slamming his head on the concrete sidewalk knocking him unconscious for three and a half minutes. 56. Moreover, d=Defendants prematurely abandoned any serious efforts to deescalate the situation or use a less significant level of force on Mr. San Roman before they tasered him. 57. None of the police could have reasonably or objectively believed that they or any third person was endangered by Mr. San Roman. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 8 of 24 9 58. The taser probes and wires Cpl. Nace unreasonably deployed into Mr. San Roman lodged in his abdomen area (below the heart) and the thigh. 59. The powerful electrical discharge from the taser had immediately incapacitated Mr. San Roman’s muscle functioning, causing his collapse and backward fall, and preventing him from freefalling in a safe manner protecting against his head forcefully striking the cement sidewalk upon which his was standing. This effect is known as Neuromuscular Incapacitation (NMI), the intended and foreseeable effect of a taser. 60. Foreseeably, Mr. San Roman’s body locked up and he plummeted backwards like a rag doll, unable to brace himself, violently smashing the back of his skull onto the sidewalk. 61. Mr. San Roman was knocked unconscious because of the head-crushing impact from his backwards freefall. 62. None of the defendants present on the scene took any precautions to protect Mr. San Roman from an uncontrolled freefall to the cement after being tazed, though all of them knew that such a freefall was an obvious and foreseeable result of the tasering on the sidewalk. 63. The first thing the police did after Mr. San Roman fell violently onto the sidewalk onto his head was to handcuff Mr. San Roman on the ground, even though he was unconscious and not even breathing. Specifically, Defendant Sgt. Bendzsa and Sgt. Avrech moved in, rolled Mr. San Roman onto his stomach, and handcuffed him. 64. Defendant Sgt. Bendzsa called for an ambulance on the radio and told Dispatch that Mr. San Roman had been tasered and had hit his head on the ground. 65. Substantial time elapsed between when the Mr. San Roman struck his head on the concrete and was plainly knocked unconscious, and when the police so much as checked to see if he had a pulse, much less began administering CPR to him. There was no medical or law Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 9 of 24 10 enforcement justification for this delay in assessment and care, and it underscores the unwarranted scorn of the police towards Mr. San Roman. 66. Upon regaining consciousness Mr. San Roman remained very woozy and confused as he interacted with the police and paramedics. He also had a splitting headache and severe neck pain. Paramedics transported Mr. San Roman to Poudre Valley Hospital. 67. The hospital discharged Mr. San Roman later that day, and the FCPS transported him to the Larimer County Jail, where he remained until posting bond on about July 20, 2021. 68. Mr. San Roman suffered serious and lasting injuries as a result of the foreseeable effects of unjustifiably incapacitating him with a taser, including striking his head violently on concrete. Those injuries include but are not limited to a likely long-lasting traumatic brain injury, the severe pain caused by the taser, severe and ongoing head and neck pain and mobility impairment, and adverse neurological effects. Defendant Park arbitrarily pepper sprays Mr. Lopez in his eyes, despite his lack of resistance. 69. For his part, Mr. Carlos Lopez stopped walking at about 217 E. Oak St. in compliance with the FCPS’s commands that he stop. 70. As mentioned, Mr. Lopez did not stop sooner because he was scared for his life, as the police were acting aggressively and irrationally and unreasonably training a rifle on him without having so much as given a reason why. 71. Defendant Ofc. Park took the lead in interacting with Mr. Lopez once he stopped. 72. It was immediately clear that Mr. Lopez did not have a weapon in either hand, but he was carrying his cell phone. 73. Defendant Park told Mr. Lopez to put his phone down. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 10 of 24 11 74. Mr. Lopez did not immediately put down his phone but instead correctly stated that he has a right to record the police. 75. Before Mr. Lopez even completed his sentence on the subject, however, Defendant Park deliberately deployed pepper spray in Mr. Lopez’s face, including his eyes. 76. This deployment of pepper spray was intended to, and in fact did, inflict excruciating pain to Mr. Lopez. At least Ofc. Treutler also had his rifle pointed at Mr. Lopez around this time. 77. There was no conceivable legitimate justification for Defendant Ofc. Park to use such a significant level of force on Mr. Lopez, who was not saying or doing anything threatening, was not attempting to leave the scene at the time and was not resisting arrest. 78. To the contrary, Mr. Lopez was notably calm and polite, especially considering the unnecessarily provocative and downright terrifying manner in which the police were behaving. 79. Defendant Park deployed the pepper spray in substantial part because of Mr. Lopez’s First Amendment-protected attempt to record his interaction with the police. 80. Mr. Lopez reflexively grabbed his face in response to the excruciating pain Park had needlessly inflicted upon him. 81. Defendant Park snatched Mr. Lopez’s phone from his hand and pushed Mr. Lopez face-first to the ground while restraining his hands behind his back. 82. Officers then handcuffed Mr. Lopez’s hands behind his back without incident. 83. After that, paramedics transported Mr. Lopez to Poudre Valley Hospital. 84. Once he was released, the FCPS took Mr. Lopez to the Larimer County Jail, where he posted bond on about July 20, 2021. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 11 of 24 12 85. Mr. Lopez suffered significant injuries because of Defendant Park’s excessive use of force. In addition to the severe pain and terror he experienced on July 17, 2021, he continues to experience severe emotional distress when reflecting upon the FCPS’s excessive and retaliatory use of force against him. All criminal charges against Mr. San Roman and Mr. Lopez are dropped. 86. When he arrested Mr. Lopez, Defendant Ofc. Park took the keys to the parked Ford Explorer from him without his permission. The FCPS then entered and searched Mr. Lopez’s and Mr. San Roman’s SUV without a search warrant or their consent, and despite lacking an exigent circumstance that may have justified their warrantless search. 87. The FCPS then towed the SUV to the Fort Collins Police Services impound lot, even though Mr. Lopez and Mr. San Roman had the permission of the vehicle’s owner (Mr. San Roman’s girlfriend at the time) to use it. 88. The FCPS retaliatorily charged Mr. Lopez and Mr. San Roman with a slew of criminal offenses related to their interaction with the police and alleged possession of stolen property. 89. But ultimately, neither Mr. Lopez nor Mr. San Roman were convicted of even a single criminal offense related to their described interaction with the FCPS in July 2017. 90. All charges against both of them were completely dropped. Fort Collins Police’s custom, policy, and practice of excessive force 91. Unfortunately, the FCPS’s violations of Mr. San Roman’s and Mr. Lopez’s clearly established constitutional rights are part and parcel with Fort Collins police’s custom and practice of excessive force. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 12 of 24 13 92. Surat v. Klamser, et al. is one such case. On the night of April 6, 2017, Plaintiff Michaella Surat was with her boyfriend, Mitchell Waltz, at the Bondi Beach Bar in Old Town Fort Collins celebrating her twenty-second birthday. 93. After police officers were called regarding an altercation inside Bondi’s involving Waltz, he was asked to leave. 94. FCPS Officers Randall Klamser and Garrett Pastor arrived at the bar and spoke with a bouncer outside about what happened. 95. Ms. Surat walked past Defendant Officer Klamser toward Waltz, only to be stopped by Officer Klamser who was seeking to question Waltz, and who told Ms. Surat to “back off.” 96. Officer Klamser then grabbed Ms. Surat by her wrist and placed her in a rear wristlock hold. 97. Still holding Ms. Surat by the wrist, Officer Klamser violently threw Ms. Surat face-first to the ground. Ms. Surat’s chin slammed into the sidewalk, causing cervical strain, a concussion, and a large and painful contusion on her chin that later turned purple and black. She also sustained painful bruising on her arms, wrists, knees, and legs. 98. Fort Collins found that Defendant Klamser’s use of force in response to Ms. Surat’s initial resistance was in accordance with Defendant Fort Collins’ custom, policy, and practice. Specifically, Fort Collins, in a review conducted by Officer Al Brown, who is FCPS’ Senior Lead Defensive Tactics Instructor, found that Officer Klamser responded to Ms. Surat’s resistance with an agency approved technique. Officer Klamser was not disciplined for his excessive use of force. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 13 of 24 14 99. Cropp v. Klamser, et al. is another such case. There, Stan Cropp, a 61-year old retired pharmacist, was peacefully going for a walk on a public sidewalk in a residential neighborhood near his home in Fort Collins, Colorado on December 26, 2013. 100. Mr. Cropp has Alzheimer’s Disease and dementia and was trying to ease his disease-induced anxiety before going to bed by taking a walk in the fresh air, as he frequently did. 101. At the same time, FCPS Officer Jason Lang was patrolling Mr. Cropp’s neighborhood in a patrol vehicle. 102. Officer Lang observed Mr. Cropp strolling near the sidewalk while wearing his hooded sweatshirt. 103. Apparently unnerved by the fact that Mr. Cropp had a “hoodie” over his head to stay warm during the wintertime, Officer Lang exited his vehicle and aggressively ordered Mr. Cropp to stop and identify himself. Officer Lang had no reasonable basis to detain Mr. Cropp even temporarily. There was no legal basis for this police encounter, and Mr. Cropp was legally entitled to ignore the commands. 104. Startled and confused by the random command of an unidentified individual for him to stop, Mr. Cropp kept walking. Officer Lang again ordered Mr. Cropp to stop and shined a bright flashlight in his face. 105. Mr. Cropp shielded his eyes, identified himself, and asked Mr. Lang who he was, clearly very confused by the situation. 106. Officer Lang unhelpfully responded by commanding Mr. Cropp to stop resisting, turn around, and place his hands on the back of head. Lang’s orders made no sense to Mr. Cropp, and scared him, because he had done nothing wrong. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 14 of 24 15 107. Additionally, the stress of the situation visibly exacerbated the effects of Mr. Cropp’s Alzheimer’s Disease, further compromising his ability to mentally process what was happening. Scared and unmistakably struggling to comprehend the situation, Mr. Cropp shuffled away from Officer Lang. Around this time, Officer Randall Klamser (the same defendant in Surat) arrived on scene. It was, by now, readily apparent that Mr. Cropp suffered from a mental disability, given his marked difficulty interpreting the officers’ (meritless) commands. 108. Although no probable cause, arguable probable cause, or even reasonable suspicion existed to briefly stop (much less arrest) Mr. Cropp and, despite being on notice that Mr. Cropp was mentally disabled, Officers Lang and Klamser arbitrarily tackled Mr. Cropp from behind as he was walking away, threw him face-first to the gravel, violently wrenched his right arm from underneath his torso, and deliberately handcuffed his wrists painfully tightly together behind his back. 109. The officers subsequently transported Mr. Cropp to the Larimer County Jail in a patrol car without loosening his handcuffs which they knew were painfully tight, or otherwise attempting to ameliorate Mr. Cropp’s obvious physical discomfort or his Alzheimer’s Disease- exacerbated mental distress. 110. The case settled prior to the filing of a lawsuit for $113,000 and yet Fort Collins failed to discipline either involved officer. Foreseeably, this emboldened the officers to keep behaving in a similar unconstitutional manner – and that is exactly what Officer Klamser did to Michaela Surat just a few years later. 111. In July of 2016, an FCPS officer responded to Enan Joe Heneghan’s house for a mere noise complaint. Mr. Heneghan complied and turned down the music. The officer Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 15 of 24 16 proceeded to search Mr. Heneghan’s home without a warrant and without his consent. The FCPS officer asked Mr. Heneghan to give his identification. 112. When Mr. Heneghan refused, the officer told him that he was resisting arrest and responded to that alleged resistance by pepper spraying him twice in the face. The force the officer used to end Mr. Heneghan’s alleged resistance was excessive. Despite this, the officer was not disciplined for his use of excessive force or otherwise reprimanded. The case settled for $150,000. 113. On October 6, 2017, Kimberly Chancellor was driving when she noticed that a man on a motorcycle was following her. That man was an FCPS officer. 114. He continued following her as she pulled into the parking lot of her apartment complex. She hurried toward the building to get away from him. 115. When the man yelled that he was an FCPS officer and she was going to be arrested, she hesitated and stopped even though he still had not proven that he was an officer. 116. After Ms. Chancellor handed the officer her identification, he put his hand on her and she pulled away. In response to this gesture, the FCPS officer violently slammed Ms. Chancellor to the ground, put his knee in her back, and held her head to the ground. The force the officer was excessive. The case settled for $125,000. 117. FCPS officers also used excessive force against Natasha Patnode, a woman who shoplifted at a Target store on March 29, 2018. 118. Ms. Patnode was held to the ground by a number of FCPS officers but had her arm under her body. The FCPS officers repeatedly yelled at Ms. Patnode to stop resisting and give them her arm. She did not. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 16 of 24 17 119. In response to this perceived resistance, an FCPS officer repeatedly punched and beat Ms. Patnode with a baton. Another FCPS officer tasered Ms. Patnode multiple times. 120. The force the officer used to end Ms. Chancellor’s perceived resistance was excessive. Despite this, the officer was not disciplined for his use of excessive force or otherwise reprimanded. The case settled for $325,000. 121. On December 3, 2016, Sean Slatton was attending his girlfriend’s sorority formal when he was ejected from the event. An FCPS officer ordered Mr. Slatton to leave, and Mr. Slatton calmly and immediately complied. 122. Mr. Slatton stood outside the building and ordered a ride service to take him back to his hotel. Two FCPS officers followed Mr. Slatton outside and demanded he leave the premises. Mr. Slatton explained that he was leaving, and waiting for his ride. 123. After again demanding Mr. Slatton leave the property, an FCPS officer demanded to see Mr. Slatton’s identification. Mr. Slatton objected and walked away, to leave as ordered. 124. In response to this perceived resistance, the FCPS officer told Mr. Slatton he was under arrest, and immediately struck Mr. Slatton in the leg with a baton and pepper sprayed him in the face. The force the officer used was excessive. 125. Despite this, the officer was not disciplined for his use of excessive force or otherwise reprimanded. The case settled for $150,000. 126. On October 20, 2016, an FCPS officer used excessive force against Dakota McGrath. Mr. McGrath was suspected of third-degree assault and approached by a Fort Collins police officer while he was in his vehicle. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 17 of 24 18 127. The officer directed Mr. McGrath to stop what he was doing and to come speak with the officer. However, Mr. McGrath walked away from the officer down an alley and indicated to the officer that he would not comply. 128. The officer then struck Mr. McGrath with his baton, knocking Mr. McGrath to the ground. 129. The officer gave Mr. McGrath a number of further commands, which Mr. McGrath did not comply with, though he did not behave in a violent manner either. 130. To end Mr. McGrath’s passive noncompliance, the officer struck Mr. McGrath in the leg multiple times with his baton, fracturing his leg in several places. 131. The force the officer used to end Mr. McGrath’s resistance was excessive. Despite this, the officer was not disciplined for his use of excessive force or otherwise reprimanded. 132. The case settled for an undisclosed amount. 133. A trend that clearly emerges from these cases and others is that FCPS officers have a pattern of responding to relatively minor acts of perceived noncompliance with violent force that vastly exceeds any legitimate law enforcement need presented. 134. Fort Collins tolerates and condones this unconstitutional conduct, sending a message to police officers in the department that such force is permissible and within standard operating procedure. This costs taxpayers and the insurance carriers a fortune. 135. Consequently, FCPS officers foreseeably keep doing the same kinds of unconstitutional things again and again, such as illegally brutalizing Mr. San Roman and Mr. Lopez with impunity. 136. Defendant Fort Collins failed to properly hire, train, supervise, and/or discipline any of its subordinate employees and agents who participated in the aforementioned events of Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 18 of 24 19 July 17, 2021, despite the obvious need for scrutiny in hiring and specialized training, supervision and discipline regarding such decisions, and the fact that its current custom, policies, or practices with respect to hiring, training, supervision, and/or discipline are clearly likely to result in a violation of constitutional rights. 137. These deficiencies existed at all relevant times – including well before July 17, 2021 – and are exemplified by the following: the failure to implement proper standards relating to the hiring of FCPS employees, the failure to utilize appropriate training methodology with respect to FCPS employees (such as sufficiently regular stress inoculation training), the failure to require FCPS employees to timely, accurately, or truthfully report their on-the-job conduct, the failure to properly investigate allegations of misconduct against FCPS employees, the failure to require FCPS employees to preserve evidence relating to allegations of FCPS misconduct, and the failure to suitably discipline and/or retrain FCPS employees who engaged in misconduct, including but not limited to uses of excessive force against individuals. 138. Thus, Defendant Fort Collins had actual or constructive notice before July 17, 2021 that its deficient customs, practices, and actual policies were substantially certain to result in constitutional violations of a similar nature to those Plaintiffs suffered, and consciously and deliberately chose to disregard the risk of harm. 139. All the Defendants who actively participated in the July 17 incidents engaged in conduct towards Plaintiffs that was entirely consistent with the training they received from Fort Collins. 140. All the Defendants who actively participated in the July 17 incidents engaged in conduct towards the Plaintiffs that was entirely consistent with, and pursuant to, the customs, policies, and practices of FCPS. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 19 of 24 20 141. All the Defendants who actively participated in the July 17 incidents were not disciplined for their actions taken on July 17, 2021 with respect to Plaintiffs, as is customary in Fort Collins for FCPS officers who subject citizens to excessive force. V. STATEMENT OF CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983 – Fourth Amendment Violation – Unlawful Seizure and Excessive Force – Plaintiffs San Roman and Lopez (Against All Defendants) 142. Plaintiffs hereby incorporate all other paragraphs of this Amended Complaint as if fully set forth herein. 143. Defendants were acting under color of state law in their actions and inactions which occurred at all times relevant to this action. 144. Plaintiffs San Roman and Lopez had a protected Fourth Amendment interest against suffering excessive force at the hands of law enforcement personnel. 145. Defendants Nace and Bendzsa unlawfully seized Mr. San Roman by means of excessive physical force. 146. Defendant Park unlawfully seized Mr. Lopez by means of excessive physical force. 147. Defendants’ actions were objectively unreasonable in light of the circumstances confronting them. 148. Neither Plaintiff was actively resisting, threatening anyone, or attempting to flee when Defendants subjected them to excessive force. 149. Defendant Nace subjected Mr. San Roman to excessive force by at least tasering him despite the obvious lack of justification. Defendant Nace had a constitutional obligation to independently assess the legality of her actions before tasering Mr. San Roman. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 20 of 24 21 150. Defendant Bendzsa subjected Mr. San Roman to excessive force by at least requesting that a subordinate employee taser Mr. San Roman without justification. Defendant Bendzsa was Defendant Nace’s supervisor and/or had supervisory authority over Defendant Nace at all relevant times. 151. Defendant Park subjected Mr. Lopez to excessive force by at least deploying pepper spray into his face without justification. 152. Defendants engaged in these actions intentionally, willfully, and wantonly, demonstrating deliberate indifference to the constitutionally- protected rights of all three Plaintiffs, and demonstrating a reckless disregard for the federally protected constitutional rights of Plaintiffs herein. 153. The foregoing conduct by the individual Defendants violated the clearly established rights of Plaintiffs San Roman and Lopez which were or should have been known to law enforcement officers in individual defendants’ positions. 154. Defendant Fort Collins failed to properly hire, train, supervise, and/or discipline its FCPS employees regarding the proper use of physical restraint and force, resulting in FCPS’s excessive use of force against Mr. San Roman and Mr. Lopez. 155. This inadequate hiring, training, supervision, and/or discipline resulted from a conscious or deliberate choice to follow a course of action from among various alternatives available to Defendant Fort Collins. 156. In light of the duties and responsibilities of Defendant Fort Collins personnel – who must make decisions regarding when forcible restraint and use of physical force is appropriate – the need for scrutiny in hiring and specialized training, supervision and discipline regarding such decisions is so obvious, and the inadequacy of appropriate hiring, training and/or Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 21 of 24 22 supervision is so likely to result in a violation of constitutional rights, such as those described herein, that Defendant Fort Collins is liable for its failure to properly hire, train, supervise, and/or discipline its subordinate employees and agents. 157. Such failure to properly hire, train, supervise, and/or discipline was the moving force behind and proximate cause of Defendants’ excessive use of force against Mr. San Roman and Mr. Lopez, and constitutes an unconstitutional policy, procedure, custom, and/or practice of Defendant Fort Collins. 158. Mr. San Roman and Mr. Lopez have been and continue to be damaged by Defendants’ unreasonable seizures of them. They have endured and continue to endure severe mental and emotional distress, and were significantly physically injured by Defendants’ unlawful seizures. 159. The acts or omissions of each Defendant described herein, including the unconstitutional policy, procedure, custom and/or practice described herein, were the legal and proximate cause of Mr. San Roman’s and Mr. Lopez’s damages. SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983 – First Amendment Violation – Retaliation – Plaintiff Lopez (Against Defendant Park) 160. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. 161. At all times relevant to this Complaint, Defendant Park was acting under the color of law. 162. Plaintiff Lopez was engaged in protected speech. 163. Plaintiff’s speech was on a matter of public concern and did not violate any law. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 22 of 24 23 164. Defendant Park’s conduct would chill a person of ordinary firmness from exercising his or her free speech rights. 165. Defendant Park’s conduct was a content-and/or viewpoint-based restriction on Plaintiff Lopez’s speech. 166. Plaintiff Lopez’s speech occurred at a traditional public forum. 167. Defendant Park responded to Plaintiff Lopez’s protected speech activity with retaliation. 168. Defendant Park’s retaliatory actions were substantially motivated by Plaintiff Lopez’s exercise of his free speech rights. 169. Defendant Park sought to punish Plaintiff Lopez for exercising his free speech rights, to silence his future speech, to stop him from continuing to speak, and to restrict his freedom of expression, along with the future speech and expression of others. 170. Defendant Park’s retaliatory actions would chill a person of ordinary firmness from engaging in protected free speech activity. 171. Defendant Park’s conduct violated clearly established rights belonging to Plaintiff of which reasonable persons in Defendant Park’s position knew or should have known. 172. Defendant Park’s conduct was motivated by evil motive or intent and/or involved reckless or callous indifference to the federally protected rights of Plaintiff Lopez. 173. Defendant Park’s actions and/or omissions caused, directly and proximately, Plaintiff Lopez to suffer damages. The acts and inactions of Defendant Park caused Plaintiff damages. Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 23 of 24 24 WHEREFORE, Plaintiffs respectfully requests that this Court enter judgment in their favor and against Defendants, and award them all relief as allowed by law and equity, including, but not limited to the following: a. Declaratory relief and injunctive relief, as appropriate; b. Actual economic damages as established at trial; c. Compensatory damages, including, but not limited to those for past and future pecuniary and non-pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, medical bills, and other non-pecuniary losses; d. Punitive damages for all claims as allowed by law in an amount to be determined at trial; e. Pre-judgment and post-judgment interest at the highest lawful rate; f. Attorney’s fees and costs; and g. Such further relief as justice requires. PLAINTIFFS DEMAND A JURY TRIAL ON ALL ISSUES SO TRIABLE. DATED this 14th day of July 2023. KILLMER, LANE & NEWMAN, LLP /s/ Darold W. Killmer ___________________________ Darold W. Killmer Michael P. Fairhurst 1543 Champa St., Ste. 400 Denver, CO 80202 Phone: (303) 571-1000 Facsimile: (303) 571-1001 dkillmer@kln-law.com mfairhurst@kln-law.com ATTORNEYS FOR PLAINTIFFS Case No. 1:23-cv-01797-REB Document 1 filed 07/14/23 USDC Colorado pg 24 of 24