UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION Brandon Allen Foxx PLAINTIFF FOXX v. JURY OF TWELVE DEMANDED KNOXVILLE POLICE DEPARTMENT A goverinnental entity DAVID RAUSCH, Chief of Police for Knoxville Police Department THOMAS TURNER, Of?cer, Knoxville Police Department RICHARD D. WHITE, Of?cer, Knoxville Police Department JOHN PICKENS, Of?cer, Knoxville Police Department JOHN A. MARTIN, Of?cer, Knoxville Police Department JORDAN G. HENDERSON, Of?cer, Knoxville Police Department COMPLAINT FOR DAMAGES COMES Brandon A. Foxx (?Plaintiff?), by and through Counsel, and brings this Complaint against Defendants, Knoxville Police Department David Rausch (?Rausch?), Thomas Turner (?Turner RiCh'a'r'd D. WhiteC?White?), JOhn John A. Martin (?Martin? and Jordan G. Henderson (?Henderson?). 1 Case Document 1 Filed 04/04/16 Page 1 of 16 PageID 1 TABLE OF CONTENTS I. NATURE OF ACTION .. 3 II. JURISDICTION AND VENUE .. 7 PARTIES .. 7 a. Plaintiff .. 7 b. Defendants .. 8 IV. CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10 V. JURY DEMAND .. 15 VI. PRAYER FOR RELIEF .. 15 2 Case Document 1 Filed 04/04/16 Page 2 of 16 PageID 2 I. NATURE OF ACTION 1. Plaintiff, a long term resident of Knoxville, Tennessee has, on multiple occasions, been targeted and harassed by KPD and the Of?cers that make up that force. KPD through the direct and tacit guidance of Chief Rausch maintains and perpetuates a shadow assault on the minority community of Knoxville. This assault is perpetuated through false allegations and embellishments consisting of but not limited to: window tint; noise ordinances; tail lights; wrong turns; harsh language; furtive actions and consent to any number of Constitutional violations. These pretextual violations of the law are supported throughout the hierarchy of KPD from patrol all the way to the Chief himself; with each officer supporting the assertions of the other, no matter how blatantly false they may be. This institutional attack pits a lone defendant against multiple of?cers and the greater KPD force. Mr. Foxx is only one of many young black males stoped, and shaken down by KPD in the East side of Knoxville. 2. The individual Defendants, acting under color of state law, deprived Plaintiff of rights secured by the Constitution or laws of the United States. This action, brought under 42 U.S.C. 1983, arises as a result of: a. Officers violated Mr. Foxx?s Fourth Amendment right to be free from unreasonable seizure when they arrested him without a warrant and without probable cause. b. Of?cers violated Mr. Foxx?s Eighth and Fourteenth Amendment rights against. cruel and unusual punishment when they used excessive force on him and had the K-9 attack him when he was not using any violence toward them. c. Of?cers and their supervisors conspired to deprive Mr. Foxx of his violation 61?42 "1985'By'at'teinpting'to cover up and suppress evidence of their use of excessive force. d. Unconstitutional behavior by Officers is part of a culture and policy within the Knoxville Police Department that fails to properly train, supervise, and discipline its officers. 3 Case Document 1 Filed 04/04/16 Page 3 of 16 PageID 3 3. On March 18, 2014 at 4:37 pm, Of?cer Richard White pulled over Brandon Foxx for speeding which revealed an outstanding warrant for unpaid speeding tickets. Mr. Foxx was placed into custody and later released. Of?cer Turner testi?ed, he was present at this stop. 4. The following day, on March 19, 2014 at approximately 3:00 pm, Of?cer Thomas Turner and Of?cer John Pickens conducted a ?knock and talk? at the apartment where Mr. Foxx, his girlfriend, Brittany Quince, and his parents live. Of?cers alleged they could smell marijuana from the parking lot three stories away. Of?cers initially knocked on the door of his parent?s home where Brandon also resided and asked where Brandon was. Brandon?s father directed them to his girlfriend?s apartment where Of?cers proceeded to knock and speak with Brittany. The officers informed Ms. Quince that they were receiving a search warrant and wanted to come in and begin the search. Ms. Quince initially declined but allowed them in after they continued to badger her. Once inside, Of?cers discovered 477.3 grams of marijuana. Mr. Foxx arrived on the scene and told the of?cers it was all his in an effort to protect his girlfriend. Mr. Foxx was charged with Drug Free School Zone, Possession of a Firearm during the Commission of a Felony, and Possession of Drug Paraphernalia and taken into custody. Mr. Foxx did not have any drugs or weapons on person. 5. Two months later, on May 30, 2014 at approximately 12:30 Of?cer Turner was .. driving. in. the Opposite direction of Mr.- Fox}: on South Street Of?ser Tum immediately executed a U-turn and stopped Mr. Foxx for violating the noise ordinance with his car stereo. Mr. Foxx pulled over in a lot within half a mile of the initial activation of lights by Of?cer Turner. Foxx stepped out of his vehicle with his 4 Case Document 1 Filed 04/04/16 Page 4 of 16 PageID 4 hands placed in the air. At which point, Officer Turner alleged he could smell marijuana and the K-9 unit was called. The K-9 unit gave a false alert and no drugs or weapons were found on Mr. Foxx?s person or his vehicle. Mr. Foxx was taken into custody without any issue. He was charged with Speeding, Felony Evading Arrest, and Failure to Obey Stop Signs. 6. During the pendency of both of these cases, on September 19, 2014, Officer Turner executed a stop of Mr. Foxx at MLK Jr. Avenue and Beaman Street for window tint violation. An Initial Incident Report was created, in which Of?cer Turner alleges ?Foxx has a history of weapon and (hug charges?, using that as justification for a call for a K-9 unit, which was unavailable, and the request to search Mr. Foxx. Of?cer Turner again alleged that he was able to smell marijuana for the stop; however, no marijuana was found and no citations were issued. 7. On October 8, 2014, Mr. Foxx entered into a plea agreement to Simple Possession, case no. @1072891 for the March 19, 2014 incident and Misdemeanor Evading Arrest, case no. @1079977 for the May 30, 2014 incident. Of?cer Turner was present for this plea agreement. 8. On April 3, 2015 at approximately 5:20 pm, Of?cer Thomas Turner pulled behind Brandon Foxx, who was driving a Black 2004 Chevrolet Impala, at MLK Jr Avenue and Olive Street. Of?cer Turner, along with Of?cer Jordan G. Henderson, followed Foxx for miles and pulled him over-at- Harrison-Street under the. allegation there I I was a strong odor of marijuana coming from the vehicle. Of?cer Turner testi?ed while driving through the streets of Knoxville, he could smell the odor of marijuana originating from Mr. Foxx?s vehicle. Upon stopping, Officer Turner- approaches the 5 Case Document 1 Filed 04/04/16 Page 5 of 16 PageID 5 vehicle on the driver?s side and Of?cer Henderson approached on the passenger side. Of?cer Turner asked Foxx for his driver?s license and proof of insurance, to which Foxx complied. Of?cers Turner and Henderson returned to Of?cer Turner?s vehicle to write the citation for violation of window tint, where they stayed, until Of?cer John A. Martin arrived with the K-9 unit. Officer Turner steps out of his vehicle, leaves the citation on the top of his vehicle, and again approaches the vehicle on the driver?s side, at which point, he immediately puts his hands on Mr. Foxx and forcibly removes him from his vehicle. Of?cer Henderson approached the passenger side. When Of?cer Turner pulls Mr. Foxx out of the vehicle, Of?cer Turner immediately places his hands upon Mr. Foxx. At this point, there appears to be a struggle between Of?cer Turner and Mr. Foxx, which cannot clearly be seen since Of?cer Turner?s in?cruiser camera was turned off. According to Mr. Foxx, Of?cer Turner pulled his hair and pushed him down on the trunk of his vehicle. Of?cer Turner never took his hands off of Foxx until Foxx, fearing for his safety, pulled away. Of?cers Turner, Martin, Henderson and the K-9 begin to chase and assault Mr. Foxx. Of?cer Henderson?s in?cruiser video shows Mr. Foxx being punched by Of?cers 8-9 times in the face while yelling ?I?m not hitting y?all.? Mr. Foxx fell and when he tried to stand back up, was clipped in the leg by one of the of?cers and fell again, at tth~9 began. to attackhitn?.biting.him in his legs and Shoulder: You can .. . . hear one of the of?cers telling the dog to ?get his ass, boy.? Additionally, you can see the other Of?cers striking Mr. Foxx about the head and face with closed ?sts. 6 Case Document 1 Filed 04/04/16 Page 6 of 16 PageID 6 Mr. Foxx was restrained by Officer Turner in handcuffs, searched and placed in the back of Of?cer Turner?s cruiser. Mr. Foxx began to inspect the bite on his leg where he could see the tissue and fat coming out of an open wound. Mr. Foxx was transported to UT Medical Center, where his leg was quickly wrapped in a bandage and then was transported to the Knox County Detention Facility At KCDF, the wound was so bad intake refused to accept him and he had to be taken back to UT Medical Center. Again, the dog bite was bandaged and Mr. Foxx was taken back to KCDF. Mr. oxx was placed in custody where he remained for approximately 12-16 hours. When his mother bonded him out, he went back to UT Medical Center for the bite, where he was rushed into emergency surgery to deal with the infection that set in due to the lack of care. Mr. Foxx was charged with Drug Free School Zone, Possession of Drug Paraphernalia, Assault and Resisting Stop, Frisk, Halt, Arrest or Search Prevent Service of Process, all of which were dismissed after Preliminary Hearing. Judge Charles Cerny opined in a written order that ?Turner ran afoul of the constitutional protection against unreasonable search and seizure when Turner continued to detain Foxx without probable cause to allow time for a K-9 of?cer to show up to search Foxx?s car in April 2014.? Judge Cerny also found Of?cer Turner?s testing regarding the open air smell of marijuana to be unbelievable. No marijuana was ever found. 9. The City of Knoxville, through its of?cials, has displayed open support for the conduct of its police of?cers. Knoxville PoliceDepartment has failed to properly train, supervise, and discipline them. Knoxville Police Department has shown deliberate indifference. The history of the Of?cers as it relates to Mr. Foxx and others is replete with inaction. When confronted with these actions and inactions, 7 Case Document 1 Filed 04/04/16 Page 7 of 16 PageID 7 Chief Rausch did not show anything but full support for these activities. Chief Rausch even went so far as to call Mr. Foxx a dealer and landed the actions of Officer Turner. It is this deliberate indifference that directly led to the actions of at least five Knoxville police of?cers who were directly and indirectly involved in the harassment and targeting of Mr. Foxx and the citizens of the area they patrol. II. JURISDICTION AND VENUE 10. This Court has original jurisdiction pursuant to U.S.C. 1331 and 1343 over Plaintiff?s claims arising under the Constitution of the United States and 42 U.S.C. 1983. 1 1. This Court has supplemental jurisdiction over any claims brought under Tennessee law pursuant to 28 U.S.C. 1367, as such claims are so related to claims in the action within the original jurisdiction of this Court that they form part of the same case or controversy under Article of the United States Constitution. 12. Venue lies in the United States District Court for the Eastern District of Tennessee because a substantial part of the events or omissions giving rise to Plaintist claims occurred in Knox County. 28 U.S.C. 1391(b)(2). PARTIES A. Plaintiff 13. Brandon Allen Foxx is a citizen of the United States and a resident of Tennessee, residing at. 8.6.5 HowardBaker Jr. Blvd, Apartment 865, Knoxville, B. Defendants 14. Knoxville Police Department is a governmental entity and political subdivision of the State of Tennessee, duly organized, and operates under a home rule 8 Case Document 1 Filed 04/04/16 Page 8 of 16 PageID 8 charter. It may be served through its chief executive of?cer, City Mayor Madeline Rogero, at 400 Main Street, Suite 691, Knoxville, Tennessee 37902. 15. The City of Knoxville was responsible for the creation of the KPD, which among other things must: a. Train and certify its law enforcement employees and b. Implement procedure and protocol to adhere to the Due Process Rights of citizens with whom its enforcement and employees interact 16. KPD is answerable for the protection and safekeeping of the citizens of the community in which they serve. KPD is responsible for the selection, supervision, promotion, training and discipline of uniformed staff. 17. At all times material hereto, Chief David Rausch (?Rausch?) was the duly appointed Chief, responsible for the operation of KPD. For the screening, hiring, ?ring, training and supervision of the patrol of?cers, deputies and other KPD personnel. 18. At all relevant times to this Complaint, Defendant Thomas Turner, was an Of?cer employed by the KPD. Turner is sued in his individual capacity and as principal on his official bond. Turner is, based upon information and belief, a citizen and resident of Knox County and may be served at 800 Howard Baker Jr. Ave, Knoxville, Tennessee 37915. 19. At all relevant times to this Complaint, Defendant Richard D. White, was an Officer employed by the KPD. White is sued in his individual capacity and as principal on his official bond. White is, based upon information and belief, a citizen and resident of Knox County and may be served at 800 Howard Baker Jr. Ave, Knoxville, Tennessee 37915. 9 Case Document 1 Filed 04/04/16 Page 9 of 16 PageID 9 20. At all relevant times to this Complaint, Defendant John Pickens, was an Officer employed by the KPD. Pickens is sued in his individual capacity and as principal on his official bond. Pickens is, based upon information and belief, a citizen and resident of Knox County and may be served at 800 Howard Baker Jr. Ave, Knoxville, Tennessee 37915. 21. At all relevant times to this Complaint, Defendant John A. Martin, was an Of?cer employed by the KPD. Martin is sued in his individual capacity and as principal on his of?cial bond. Martin is, based upon information and belief, a citizen and resident of Knox County and may be served at 800 Howard Baker Jr. Ave, Knoxville, Tennessee 37915. 22. At all relevant times to this Complaint, Defendant Jordan G. Henderson, was an Officer employed by the KPD. Henderson is sued in his individual capacity and as principal on his of?cial bond. Henderson is, based upon information and belief, a citizen and resident of Knox County and may be served at 800 Howard Baker Jr. Ave, Knoxville, Tennessee 37915. IV. CLAIMS FOR RELIEF COUNT ONE VIOLATION OF FEDERAL CIVIL RIGHTS 42 U.S.C. 1983 and 1988 Use of Unlawful and Excessive Force And. Cruel. and. Unusual (Against all Defendants) 23. Plaintiff incorporates by reference all the above allegations as if fully set herein. to Case Document 1 Filed 04/04/16 Page 10 of 16 PageID 10 24. Excessive Force under the fourteenth amendment is objectively unreasonable conduct that, given the facts and circumstances, would ?shock the conscience? and amount to an arbitrary exercise of governmental power. 25. Plaintiff has a Constitutional right to be free from the unlawful and excessive use of force pursuant to the Fourth Amendment to the United States Constitution. As a result of the acts describes herein, Plaintiff was subjected to unlawful and excessive force at the hands of the Defendants. 26. Plaintiff was subjected to cruel and unusual punishment in violation of his constitutional rights pursuant to the Eighth Amendment to the United States Constitution. The Eighth Amendment is violated when the force is maliciously and sadistically used against a person to cause harm, rather than in good faith effort to maintain and restore discipline. 27. On or about April 3, 2015, Defendants Turner, Pickens, Martin and Henderson under color of state and federal law, violated Plaintiff?s civil rights under the Fourth, Eighth and Fourteen Amendments of the United States Constitution. 28. The assaults were carried out maliciously and sadistically, and not part of a good faith effort to maintain or restore discipline. 29. Defendant?s disregard of Plaintiff?s civil rights was done by either actual malice or deliberate indifference to Plaintiff?s civil rights. 30. Defendant?s purported reason for the use of force was that he was attacking them. The audio from the video proves this to. befalse when FQXX is screaming not hitting Y?all?: This purported reason was false and did not justify the application of such force. At no point was Mr. Foxx ever resisting any KPD of?cers, but rather was trying to ?ee while being assaulted. 11 Case Document 1 Filed 04/04/16 Page 11 of 16 PageID 11 31. Defendants proximately caused injuries to Plaintiff. On or about April 3, 2015, Defendants violated Plaintiff?s civil rights by using a degree of physical force not objectively reasonable under the circumstances. 32. Defendants are individually liable for the violation of Plaintiff?s civil rights. 33. As a result, Plaintiff suffered substantial physical and serious injury to his body and mind, pain and suffering, and medical expenses. 34. Plaintiff is entitled to an award of attorney?s fees, costs and expenses under 42 U.S.C. 1988. COUNT TWO VIOLATION OF FEDERAL CIVIL RIGHTS 42 U.S.C. 1983 AND 1988 FAILURE TO PROTECT (Against all Defendants) 35. Plaintiff incorporates by reference all the above allegations as if fully set forth herein. 36. Defendants owed a duty of care to avoid harm to Plaintiff and to protect him. Therefore, a special relationship existed between Plaintiff and Defendants, which gave rise to their duty to protect Plaintiff. Defendants? breached that duty by wrongful acts described herein. The aforementioned breach of duties by Defendants constitutes violations of Plaintiff?s civil rights in contravention of 42 U.S.C. 1983. 37. Defendants had a duty to protect Plaintiff from violence at the hands of excessive force by persomiel. Defendants" deliberate indifference and reckless disregard- for Plaintiff safety subjected Plaintiff to cruel and unusual punishment. 12 Case Document 1 Filed 04/04/16 Page 12 of 16 PageID 12 38. 39. 40. 41. 42. 43. 44. Defendants failed to take reasonable measures to guarantee the reasonable safety of Plaintiff and failed to protect him from the violence at the hands of Patrol Of?cers and As a result, Plaintiff suffered substantial physical and seriouse injury to his body and mind, pain and suffering, and medical expenses. Plaintiff is entitled to and award of attorney?s fees, costs and expenses under 42 U.S.C. 1988 COUNT THREE ASSAULT AND BATTERY TENN. CODE ANN. 8?8-1301 Et. Seq. (Against All Defendants) Plaintiff incorporates by reference all the above allegations as if fully set forth herein. The above-described physical engagements by Defendants, acting under color of law and in the course and scope of their employment, constitute assault and battery against Plaintiff. Defendants, through the actions described above, did intentionally attempt to do and did serious bodily harm to Plaintiff and caused him trauma. Defendants also possessed a contemporaneous and/or appearance of the present ability to cause such harm and trauma, Accordingly, Defendants commited an assault against Plaintiff and'made? Contact with Plaintiff aha-ma and offensive my, committing battery against Plaintiff. Plaintiff suffered physical and injuries as a proximate result of Defendant?s assault and battery. 13 Case Document 1 Filed 04/04/16 Page 13 of 16 PageID 13 COUNT FOUR OUTRAGEOUS INFLICTION OF DISTRESS (Against All Defedants) 45. Plaintiff incorporates and renalleges each allegation set forth in the preceding paragraphs of the Complaint. The allegations outlined herein against the individually named Defendants, including but not limited to, the beating and severe physical abuse on April 3, 2015, while Defendants were acting under the color of law, were outrageous and utterly intolerable in a civilized society. 46. The conduct of Defendants, as alleged above, was outrageous. Defendants, and each of them, knew that their conduct would result in bodily injuries to Plaintiff, and there conduct was perpetrated with the intent to inflict, or with reckless disregard of the probability of inflicting, mental anguish, and severe emotional distress upon the Plaintiff. 47. The aforementioned acts of the Defendants were done knowingly, intentionally, and maliciously, for the purpose of harassment, oppression and in?icting injury upon the Plaintiff, and in reckless, wanton and callous disregard of his safety, security and civil rights. By reason thereof, Plaintiff claims punitive damages in an amount to be proven at Trial. 48. As a result of the conduct of Defendants, and each of them towards Plaintiff, Plaintiff has sustained and suffered and continue to suffer personal injuries elsewhere alleged. I 49. KPD is liable to Plaintiff under Tenn. Code Ann. 8?8-301, et. Seq. COUNT FIVE TENNESSEE GOVERNMENTAL TORT LIABILITY 14 Case Document 1 Filed 04/04/16 Page 14 of 16 PageID 14 Tenn. Code Ann. 29?20-101 (Against All Defendants) 50. Plaintiff hereby incorporates the preceding paragraphs of this Complaint as if fully set forth herein. 51. KPD was responsible for the operation and the operation and the supervision of individual Defendants. 52. Pursuant to the Tennessee Governmental Tort Liability Act, the Defendants owe Plaintiff a duty of care to be free ??om excessive force and cruel and unusual punishment. 53. Defendants breached the duty of care as set forth herein and are therefore liable to Plaintiff, 54. Plaintiff seeks money damages in the maximum amount allowed under Tennessee Law. V. JURY DEMAND 55. Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of all of the claims asserted in this Complaint so triable. VI. PRAYER FOR RELIEF A. That the summons be issued and that Defendants be duly served with a copy of this Complaint and required to answer same; B. That the Court find that Defendants have engaged in the conduct and statutory and common laur'yiolat'i011's alleged herein; C. That Plaintiff be awarded such damages as will fully compensate him for all injuries and medical expenses caused by the Defendant?s actions and that a judgment in favor of Plaintiff be entered; 15 Case Document 1 Filed 04/04/16 Page 15 of 16 PageID 15 D. That Plaintiff be awarded compensatory damages in an amount. to be determined by the trier of fact, not to exceed $2,500,000.00; E. That Plaintiff be awarded punitive damages in an amount to be determined by trier of fact, not to exceed $2,500,000.00; F. That the Plaintiff be compensated for lost wages caused by his injuries. G. That Plaintiff recover his costs for this suit, including reasonable attorney?s fees and discretionary costs, as provided by law; H. That Plaintiff be awarded pie-judgment and post?judgment interest as permitted by common law or applicable statute and such other or further relief as may be just and proper. Respectfully submitted this the 4thl day of April, 2016 s/A. Philip Lomonaco A. Philip Lomonaco 011579 800 S. Gay Street, Suite 1950 Knoxville, TN 37929 (865) 521-7422 CERTIFICATE OF SERVICE I do hereby certify that on April 4, 2016, a copy of the foregoing document was filed electronically. Notice of this filing will be sent by operation of the Court?s electronic ?ling system to all parties indicated on the electronic ?ling receipt and that a true and exact copy has been served via US. Postal Service upon Michael Porter, Assistant US. Attorney sent to 1 110 Market Street, Shite '5 1' 5 Chattanooga, Tennessee 37402. All Other parties will be I served by US mail. Parties may access this ?ling through the Court?s electronic ?ling system. s/ A. Philip Lomonaco 16 Case Document 1 Filed 04/04/16 Page 16 of 16 PageID 16