Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 1 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 16-cv-2519 ESTATE OF JACK J. JACQUEZ; MARIAH TALMICH, as Personal Representative of the Estate of Jack J. Jacquez,1 on behalf of J.T-J, child of Jack J. Jacquez, and on her own behalf; PAMELA PAYTON, on behalf of D.P., child of Jack J. Jacquez; MARYAH PEREZ, on behalf of A.A., child of Jack J. Jacquez; and VIOLA B. JACQUEZ, on her own behalf; Plaintiffs. v. THE CITY OF ROCKY FORD, a municipality; JAMES ASHBY, in his individual capacity; and CHIEF FRANK GALLEGOS, in his individual capacity; Defendants. COMPLAINT AND JURY DEMAND ______________________________________________________________________ Plaintiffs, by that through their attorneys Qusair Mohamedbhai, Matthew J. Cron, and Max D. Hellman of RATHOD ৷ MOHAMEDBHAI, Joseph A. Koncilja, Steve Cornetta, and Tim O’Shea of Koncilja & Koncilja, P.C., and John G. Lee, III and Amanda Francis of Fuicelli & Lee, P.C., allege as follows: 1 There is currently a motion pending in probate court to substitute Christopher Marchase of Pikes Peak Probate Services for Ms. Talmich as the personal representative of Mr. Jacquez’s estate. If the motion is granted, Plaintiffs will file a motion to substitute party. Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 2 of 37 I. INTRODUCTION This is a case about a police department that hires “second-chance cops”2 without any vetting. It is about a police department that gave a badge to one such officer, yet failed to provide him with any training regarding excessive force, including deadly force. And it is a case about an officer who regularly resorted to excessive force but did not receive discipline for his actions. The consequence of these customs, policies and practices: the senseless shooting death of Jack J. Jacquez, a 27-year-old father of three, by Officer James Ashby of the Rocky Ford Police Department (“RFPD”). When the City of Rocky Ford (“Rocky Ford”) hired Officer Ashby to patrol its streets, it knew that Officer Ashby had been the subject of multiple internal affairs investigations and was ineligible for rehire from his previous law enforcement employer. Ignoring these obvious red flags, the RFPD hired Officer Ashby without any meaningful investigation into his background. And, despite Officer Ashby’s blemished record, the RFPD failed to provide him with any basic training. Officer Ashby was instead permitted to police by his own rules. For Officer Ashby, this meant employing overwhelming force against any civilians who dared challenge his authority. The residents of Rocky Ford quickly felt Officer Ashby’s brutal concept of policing. On August 2, 2014, Officer Ashby responded to a 911 call from Russell Price, who had been shot in the face. When he arrived at the scene, Officer Ashby held Mr. Price at gunpoint, placed his service weapon on Mr. Price’s skull, nudged him to the The term “second chance cops” has been defined as “law enforcement personnel who cycle from department to department despite serious blemishes on their records.” See Denver Post, Second-Chance Cops Become Issue in Rocky Ford after Fatal Shooting, available at http://www.denverpost.com/2015/08/15/second-chance-cops-become-issue-in-rocky-ford-afterfatal-shooting/ (Apr. 22, 2016). 2 2 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 3 of 37 curb, and threatened to put another bullet in his head. All because Mr. Price had dared to ask why he was being treated like a criminal. Only eight days before killing Mr. Jacquez, Officer Ashby arrested Jeremiah Ramsey without probable cause and severely beat him while in a jail holding cell. Officer Ashby slammed Mr. Ramsey’s head into the concrete floor, stomped on his foot, choked him, and forced him to lie handcuffed on the floor in a pool of someone else’s vomit. All because Mr. Ramsey had the gall to ask Officer Ashby why he needed to remove his shoes. Mr. Jacquez was not as fortunate as Officer Ashby’s other victims. In the early morning of October 12, 2014, Mr. Jacquez was skateboarding home from a friend’s house when Officer Ashby first contacted him. Mr. Jacquez told Officer Ashby that he was going home, and then walked away from Officer Ashby. Angered by this perceived show of disrespect, Officer Ashby followed Mr. Jacquez onto his property and attempted to arrest him without probable cause. When Mr. Jacquez’s mother opened the back door and he escaped Officer Ashby’s grasp, Officer Ashby followed Mr. Jacquez into the kitchen and fatally shot him in the back. On June 23, 2016, a jury convicted Officer Ashby of second-degree murder for killing Mr. Jacquez. But although the jury considered only Officer Ashby’s conduct, the verdict is just as much an indictment of Rocky Ford, its police department, and their woefully deficient policies, customs, and practices that led to Mr. Jacquez’s death. II. JURISDICTION AND VENUE 1. This action arises under the Constitution and laws of the United States and is brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court 3 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 4 of 37 pursuant to 28 U.S.C. § 1331. Jurisdiction supporting Plaintiffs’ claim for attorneys’ fees and costs is conferred by 42 U.S.C. § 1988. 2. Venue is proper in the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1391(b). All of the events and omissions alleged herein occurred within the State of Colorado. At the time of the events and omissions giving rise to this litigation, all of the Defendants resided in Colorado. III. PARTIES 3. The decedent, Jack J. Jacquez, was a citizen of the United States of America and a resident of the State of Colorado. 4. Plaintiff Mariah Talmich, personal representative of the estate of Jack J. Jacquez, was engaged to Jack J. Jacquez, and is a citizen of the United States and a resident of the State of Colorado. She represents the interests of J.T-J, her minor child with Jack J. Jacquez, and her own interests. 5. Plaintiff Pamela Payton represents the interests of D.P., her minor child with Jack J. Jacquez, and she is a citizen of the United States and a resident of the State of New Mexico. 6. Plaintiff Maryah Perez represents the interests of A.A., her minor child with Jack J. Jacquez, and she is a citizen of the United States and a resident of the State of Colorado. 7. Plaintiff Viola Jacquez is a citizen of the United States and resident of the State of Colorado. Ms. Jacquez is also the mother of Jack J. Jacquez. 8. Defendant City of Rocky Ford is a Colorado municipality. Defendant Rocky Ford is responsible for the oversight, supervision, and training of the RFPD and 4 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 5 of 37 its officers. The RFPD is the vehicle through which the Defendant Rocky Ford fulfills its policing functions. Defendant Rocky Ford was at all relevant times the employer of Defendant Officer Ashby, and is a proper entity to be sued under 42 U.S.C. § 1983. 9. At all times relevant to the subject matter of this lawsuit, Defendant Officer James Ashby was a citizen of the United States, 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 Defendant Rocky Ford. 10. At all relevant times, Defendant Chief Frank Gallegos was the Chief of Police for the RFPD and was responsible for hiring, training, supervising, and disciplining Officer Ashby. Defendant Chief Gallegos is sued in his individual capacity. At all times relevant to the subject matter of this lawsuit, Defendant Chief Gallegos was a citizen of the United States, 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 Defendant Rocky Ford. 11. Defendants Rocky Ford, Officer Ashby, and Chief Gallegos will be referred to collectively as “Defendants.” IV. FACTUAL ALLEGATIONS Jack Jacquez’s Life and the Loss to his Family 12. Mr. Jacquez was born on December 23, 1986 in La Junta, Colorado to parents Viola Jacquez and Jack Jacquez. 13. Mr. Jacquez grew up with three sisters, Kelly, Jackie, and Jennifer and maintained close relationships with his siblings. 5 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 6 of 37 14. Mr. Jacquez is survived by three minor children, J.T-J, D.P., and A.A, who will now grow up without a father. Mr. Jacquez also fathered a fourth child, who died in her infancy. 15. Throughout his life, Mr. Jacquez was known in Rocky Ford for his happy- go-lucky spirit. His family and friends describe him as a gregarious, engaging individual who liked to show his personality through a colorful fashion sense. 16. Mr. Jacquez was a child at heart, and loved music, comic books, astrology, nature, video games, and fixing up old cars. Although bound to Rocky Ford by economic and familial considerations, Mr. Jacquez also loved traveling and immersing himself in new experiences and adventures, which included a stint living in New Mexico. 17. At the age of nineteen, Mr. Jacquez received his GED certificate. He enrolled at Otero Junior College where he took classes in automotive mechanics. 18. Mr. Jacquez put his life on hold when his uncle, Daniel Duran, was stricken with cancer. Mr. Jacquez moved to Pueblo, Colorado to live with his uncle and take care of him. For approximately seven months, he fed, dressed, bathed and performed other chores for his uncle as his health declined. 19. After his uncle’s death, Mr. Jacquez found an apartment and took a job in Pueblo working at a call center. When the call center went out of business, Mr. Jacquez moved back to Rocky Ford. 20. In July of 2013, he began dating Ms. Talmich, an attendant at a nursing home who he had known since Junior High School. The couple fell in love quickly and 6 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 7 of 37 she moved in with him into Ms. Jacquez’s house in December of 2013. Soon after, they became engaged. 21. In June of 2014, the recently engaged couple discovered to their great joy that they were pregnant. When Mr. Jacquez was shot and killed, Ms. Talmich was eighteen weeks pregnant. Their daughter, J.T-J, was born on March 8, 2015. 22. Mr. Jacquez was 27 years old when he was killed. His death has left an enormous void in the life of his family and friends that will never be filled. His room has not been touched, as if the family hopes his murder is all just a nightmare. 23. Mr. Jacquez was fundamentally a kind person who provided light and warmth to those around him, and he deserved the opportunity to grow with grace. Officer Ashby Attempts to Unlawfully Arrest Mr. Jacquez 24. On the night of October 11, 2014, Ms. Jacquez dropped Mr. Jacquez off at his friend’s house where he and his friend played video games and babysat his friend’s niece and nephew. 25. Around 2:00 a.m. on October 12, 2014, Mr. Jacquez left his friend’s house. As his mother had dropped him off, Mr. Jacquez did not have a car and he began skateboarding home. 26. Meanwhile, Officer Ashby was on routine patrol traveling westbound on Swink Avenue, the main westbound thoroughfare in Rocky Ford. Officer Ashby was accompanied by Kyle Moore, a civilian ride-along passenger who was the brother of RFPD officer Timothy Moore. 7 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 8 of 37 27. Mr. Jacquez was only a couple of blocks from his home when Officer Ashby pulled up alongside Mr. Jacquez and shouted “hey bro” through the window of his patrol car. 28. Officer Ashby told investigators that Mr. Jacquez responded, “fuck you.” However, ride-along Mr. Moore admitted that Mr. Jacquez simply said words to the effect of “I’m going home.” 29. Mr. Jacquez got off his skateboard, and began walking on the sidewalk towards the home that he shared with his mother and fiancée, Ms. Jacquez and Ms. Talmich respectively. 30. For no apparent or justifiable reason, Officer Ashby followed Mr. Jacquez in his patrol car. Officer Ashby observed Mr. Jacquez walk to the back porch of his home, which functioned as the main entrance. A bright light on the back porch illuminated the scene, as did a nearby streetlight. 31. Officer Ashby parked his vehicle and decided to follow Mr. Jacquez to the back porch, even though he lacked any reasonable suspicion that Mr. Jacquez was committing a crime.3 32. Holding his skateboard in one hand, Mr. Jacquez fumbled in his backpack for keys with the other. Officer Ashby came up the path to the porch and, without identifying himself as a police officer, shouted at Mr. Jacquez to show his hands. 33. Mr. Jacquez, frightened from being approached by this unknown person in the middle of the night, told Officer Ashby to leave him alone. 3 Officer Ashby later claimed that he believed Mr. Jacquez was a burglar. There was absolutely no objective reason for Officer Ashby to have this belief. 8 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 9 of 37 34. After Mr. Jacquez made this request, Officer Ashby dramatically escalated the situation by drawing his service weapon, aiming it at Mr. Jacquez, and screaming at Mr. Jacquez to show his “fucking hands.” 35. Officer Ashby could see that Mr. Jacquez was unarmed when on the 36. Fearing for his safety, Mr. Jacquez began frantically knocking on the door, porch. awakening both Ms. Talmich and Ms. Jacquez. Without any legal justification, Officer Ashby grabbed Mr. Jacquez’s left wrist and tried to tackle him to the ground. 37. As the two men struggled on the porch, Ms. Jacquez opened the door, and Mr. Jacquez managed to enter the home, despite Officer Ashby’s attempt to wrestle him to the ground. 38. At some point during the altercation on the porch, Officer Ashby used his O.C. pepper spray on Mr. Jacquez. Officer Ashby Uses Objectively Unreasonable Deadly Force Against Mr. Jacquez 39. Upon entering his home, Mr. Jacquez walked through the kitchen towards the living room and his bedroom. The kitchen was not independently lit but the bright back porch light illuminated the scene. 40. Officer Ashby followed Mr. Jacquez through the back porch door, which opened into the home’s kitchen. Ms. Jacquez was also in the kitchen. 41. When Officer Ashby entered the home, Ms. Jacquez asked him a question to the effect of “why are you here?” or “what are you doing?” Officer Ashby did not respond or otherwise identify himself as a police officer. 9 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 10 of 37 42. Mr. Jacquez almost made it through the kitchen to the living room when Officer Ashby again drew his service weapon. This time he fired two shots. One of the bullets struck Mr. Jacquez in the back, severing his spinal cord and crushing his T10 vertebra, instantly paralyzing him. The bullet traveled slightly right to left, perforating the vertebra, spinal cord, aorta, pericardium, posterior left ventricle, left lower lung, and anterior left fifth rib. 43. After being shot, Mr. Jacquez’s momentum carried him a step or two towards the living room (away from Officer Ashby). 44. As the bullet instantly paralyzed him, Mr. Jacquez could only have moved away from Officer Ashby if he was already moving in that direction. 45. Mr. Jacquez did not have any gunpowder residue on his jacket. Colorado Bureau of Investigations (“CBI”) concluded from this fact that Officer Ashby was between four and six feet from Mr. Jacquez when he fired the fatal shot. 46. When questioned by investigators as to why he shot Mr. Jacquez, Officer Ashby claimed that Mr. Jacquez was holding a baseball bat and he was afraid that Mr. Jacquez was going to use the bat as a weapon. 47. Ms. Jacquez, who was only a few feet away, denied that Mr. Jacquez was holding a bat when he was shot. Rather, there was a bat in the living room. In a frenzy after her only son was shot, Ms. Jacquez threw several objects that she tripped over onto her bed, including the bat and Mr. Jacquez’s backpack. 48. Even if Mr. Jacquez picked up a bat, he was still facing away and moving away from Officer Ashby when he was shot. Hence, Officer Ashby could not reasonably 10 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 11 of 37 have been in fear of serious physical injury. Further, it would have been reasonable for Mr. Jacquez to defend himself from an unknown person threatening him with a gun. 49. Mr. Jacquez’s intent during the entire incident was to escape from Officer Ashby who, before killing Mr. Jacquez, had already threatened him with a gun, grabbed his arm, attempted to take him to the ground, and pepper sprayed him. 50. At no point during the entire interaction did Mr. Jacquez ever harm or attempt to harm Officer Ashby. Officer Ashby sustained no injuries from his interaction with Mr. Jacquez. 51. At no point did Officer Ashby fear (reasonably or unreasonably) that Mr. Jacquez posed any danger to him. 52. At no point did Officer Ashby fear (reasonably or unreasonably) that Mr. Jacquez posed a danger to anyone. 53. When Officer Ashby used deadly force, Mr. Jacquez presented no threat to Officer Ashby or others. 54. Any danger that Officer Ashby felt was created by his own reckless conduct in trespassing onto his property, attempting to seize Mr. Jacquez without any legal justification, and following Mr. Jacquez into his residence. 55. Officer Ashby never radioed his position or requested backup until after he killed Mr. Jacquez. The Aftermath of the Shooting 56. Ms. Talmich, awakened by the commotion, emerged from the bedroom almost immediately after shots were fired. Officer Ashby’s second bullet nearly hit her. 11 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 12 of 37 57. Ms. Talmich ran towards Mr. Jacquez. Officer Ashby screamed at her not to go near Mr. Jacquez, who lay dying on the floor. 58. After he fired shots, Officer Ashby announced “shots fired” on the radio. 59. Corporal Randall James Garrett of the RFPD was the first responder after the “shots fired” announcement. When he arrived at the scene, Officer Ashby had not yet requested medical attention. 60. Cpl. Garrett did not provide medical assistance to Mr. Jacquez. 61. At that point, medical transport was finally requested. 62. Officer Timothy Moore then entered the residence and saw Ms. Talmich and Ms. Jacquez in the living room. Officer Moore then handcuffed both Ms. Jacquez and Ms. Talmich while Mr. Jacquez lay motionless on the floor. 63. Officer Moore then escorted Ms. Jacquez and Ms. Talmich out of the house in handcuffs. Outside, law enforcement denied Ms. Talmich’s request for a blanket, although medical responders later provided both women with blankets. 64. Medical responders transported Mr. Jacquez to Arkansas Valley Regional Hospital. Mr. Jacquez did not have any vital signs when he arrived at 2:25 a.m. Dr. James Brady attempted emergency life-saving efforts, but pronounced Mr. Jacquez dead at 2:38 a.m. 65. On November 14, 2014, an agent with the Colorado Bureau of Investigation submitted an arrest affidavit, contending there was probable cause to believe that Officer Ashby committed the offense of Second Degree Murder, as defined in C.R.S. § 18-3-103. 66. An Otero County District Court Judge signed the arrest warrant. 12 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 13 of 37 67. On June 23, 2013, after a more than week-long trial, an Otero County jury convicted Officer Ashby of second degree murder. 68. Officer Ashby is the first Colorado law enforcement officer convicted of murder in at least forty years. 69. He is currently awaiting sentencing. Officer Ashby’s Employment at the Walsenburg Police Department Was Marred by Numerous Civilian Complaints Ranging from Discourtesy to Excessive Force 70. Officer Ashby began his law enforcement career with the Walsenburg Police Department (“WPD”) in January 2009 and was employed there until 2013 when he resigned during the investigation of an excessive force complaint. 71. Prior to joining the WPD, Officer Ashby was fired from a security guard position at a Pueblo K-Mart after a complaint by a co-worker. 72. Officer Ashby’s personnel file from his time at the WPD contains numerous citizen complaints and internal affairs investigations, including several incidents of excessive force, unlawful entry, and unlawful arrest which bear marked similarity to his taking of Mr. Jacquez’s life. 73. Based on his record at the WPD, Officer Ashby was not eligible for rehire. 74. In September of 2009, Officer Ashby made several “very vulgar remarks” to a female officer in clear violation of WPD’s sexual harassment policy. 75. Also in September of 2009, Officer Ashby parked his vehicle outside the Anchor Motel in Walsenburg. The owner of the motel, Bruce Eccher, asked Officer Ashby to move his vehicle. In response to this reasonable request, Officer Ashby grew loud, aggressive, and belligerent and threatened to arrest Mr. Eccher. Mr. Eccher filed a complaint against Officer Ashby. 13 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 14 of 37 76. Later that year, Amaya Rousseau filed a complaint against Officer Ashby, also complaining of unprofessional and vulgar treatment. Ms. Rousseau had called the police after she received an anonymous telephone call that was sexually graphic and threatened rape. 77. Officer Ashby responded to Ms. Rousseau’s call. After Ms. Rousseau told him the general content of the call, Officer Ashby required her to repeat verbatim the exact words the caller had used. Ms. Rousseau’s husband, who was present during the encounter, observed that Officer Ashby appeared bent on humiliating Ms. Rousseau. 78. When Ms. Rousseau expressed her discomfort, Officer Ashby grew agitated and combative, and told her that he was an elected governmental official who did not have to help her. 79. On July 14, 2012, Officer Ashby was dispatched to the Silver Dollar bar in Walsenburg on reports of a fight between two men, one of whom was Cameron Martinez. 80. Officer Ashby claimed that when he tried to break up the fight, Mr. Martinez punched him in the “shoulder/face.” However, bystanders denied that Officer Ashby was punched. 81. In his own words, Officer Ashby reacted to the alleged punch by “execut[ing] multiple straight punches to [Mr.] Martinez’s head (approximately 2-3) while ordering Martinez to quit resisting.” As Mr. Martinez tried to escape, Officer Ashby “reached for the back of Martinez’s neck with both hands and executed one knee strike to Martinez’s head.” 14 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 15 of 37 82. Felicia King, Mr. Martinez’s girlfriend, tried to come to Mr. Martinez’s rescue. Officer Ashby responded by “execut[ing] one straight punch to the person pulling on me.” 83. At that point, a gathering crowd of onlookers started shouting “dirty cops” and making comments about Officer Ashby punching a female. Officer Ashby then began to “[throw] straight punches and push anyone that was touching me.” Officer Ashby then used a pepper spray grenade fogger to disperse the crowd. 84. After Mr. Martinez was handcuffed, Officer Ashby resumed his abuse. A witness observed, “while being handcuffed, instead of placing [Mr. Martinez] in the police car Officer Ashby grabbed [Mr. Martinez] by his arm and neck and slammed him to the cement, forcing his face into the cement and hitting him.” 85. Another witnessed described how Officer Ashby “handcuffed [Mr.] Martinez, pushed him against the car and said ‘you don’t hit a cop motherfucker,’ and continued to hit, punch [and] knee him in the face.” 86. Officer Ashby wrote that the “struggle between me and Martinez was violent enough that during it we ended up against my patrol vehicle breaking my driver side mirror.” 87. Officer Ashby also deployed a second pepper spray grenade directly at Mr. Martinez while he sat handcuffed on the curb. 88. After Officer Ashby was finished with Mr. Martinez, Mr. Martinez was taken to the Parkview Hospital emergency room where he was treated for a concussion and post-concussion syndrome. 15 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 16 of 37 89. At least five witnesses provided statements to investigators about the brutality of Officer Ashby’s actions. 90. On February 1, 2013, Officer Ashby responded to a call at Christine Vigil’s residence, but refused to go inside. Officer Ashby, similar to some of the prior incidents alleged above, got into a verbal altercation with Ms. Vigil and her aunt and uncle, David and Lucy Folger, who later filed a complaint. 91. An investigation found that Officer Ashby violated WPD policy 2-2.7, Courtesy, by becoming insolent with the resident and her relatives. Similar to his escalation of the situation with Mr. Jacquez, an investigation found that Officer Ashby verbally escalated the situation and that he “should be able to diffuse the situation instead of contributing to its continued aggravation.” Officer Ashby received a written warning. 92. In August of 2013, in the incident that led to his resignation from the WPD, Officer Ashby responded to the Vallejo residence for unknown reasons but likely for a noise complaint. 93. When he arrived at the house, Demi Vallejos informed Officer Ashby that her brother had been drunk and loud earlier in the night, but that he had quieted down and law enforcement was not needed. 94. Just as he unlawfully entered the Jacquez residence one year later, Officer Ashby entered the Vallejos house over objections and without any exigent circumstances. After entering the residence, he went down to the basement and placed Ms. Vallejos’ brother, Alvin, in handcuffs. 16 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 17 of 37 95. When Ms. Vallejos complained that Officer Ashby was arresting her brother for no reason, Officer Ashby grabbed her, body slammed her to the pavement, cuffed her, and threw her in the back of his patrol car. 96. Ms. Vallejos was not arrested or charged with any crime. 97. When internal affairs initiated an investigation into Officer Ashby’s conduct at the Vallejos family house, Officer Ashby resigned. Rocky Ford Failed to Adequately Screen Officer Ashby 98. After resigning from the WPD, Officer Ashby sought employment at numerous other Colorado law enforcement departments. Officer Ashby’s applications were roundly rejected. Rocky Ford, however, with its documented history of hiring “second chance officers,” actually recruited Officer Ashby to join the department. 99. On June 23, 2014, Rocky Ford hired Officer Ashby. 100. Before hiring Officer Ashby, then Chief of Police Gallegos contacted the WPD Chief of Police Tommie McLallan. 101. The conversation lasted for only two to three minutes. Chief Gallegos asked Chief McLallan how long Officer Ashby had worked there, whether Officer Ashby had any problems, and whether Officer Ashby was eligible for rehire. 102. Chief McLallan told Chief Gallegos that Officer Ashby had been the subject of several internal affairs investigations and that he was not eligible for rehire with the WPD. 103. Remarkably, Chief Gallegos did not ask any follow-up questions about the nature of the internal affairs investigations or why Officer Ashby was ineligible for rehire. 17 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 18 of 37 104. Officer Ashby was not asked to provide an employment records release as part of his application to the RFPD. 105. Nor did Chief Gallegos seek a release for Officer Ashby’s employment file, in which the numerous incidents alleged above were documented. 106. Had Chief Gallegos undertaken even the most cursory background check, he would have discovered the numerous citizen complaints against Officer Ashby, his pattern of escalating interactions with civilians into aggressive, often violent conflict, his unlawful entry into the Vallejos home, and his use of excessive force, including the incident with Mr. Martinez where Officer Ashby nearly incited a riot. 107. Chief Gallegos’ decision to hire Officer Ashby without even minimal vetting is consistent with the RFPD’s policy of hiring police officers who had been fired or forced to resign from other law enforcement departments, or had criminal histories making them unfit for duty. 108. Mickey Bethel, the current RFPD Chief (and a captain at the time of Mr. Jacquez’s death), was fired from the Pueblo Police Department after a former boss described him as a “cancer” on the department. Chief Bethel had been prosecuted on a criminal charge of official misconduct (he was acquitted) and accused of witness tampering. 109. Chief Bethel’s son, Justin, was also hired by the RFPD. Prior to his employment at the RFPD, Mr. Bethel had received criminal convictions for prohibited use of a gun while drunk, careless driving, possession of drug paraphernalia, and driving while impaired. 18 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 19 of 37 110. Officer Darin Poole was hired despite being fired from the Adams County Sheriff’s Department after he had been charged with assaulting an inmate. He also had resigned from the Sedgwick County Sheriff’s Office amid controversy over his beating of a 63-year-old disabled man after a traffic stop, a beating described in court testimony as a pit bull attacking a dead chicken. 111. Since the shooting of Mr. Jacquez, Rocky Ford has put in place new hiring protocols. Rocky Ford City Manager Ian Kaiser explained the new protocols to the Denver Post, as “[w]e’re vetting people now.” Rocky Ford Police Department Failed to Train Officer Ashby After Hiring Him and Other Deficient Customs, Policies, and Procedures 112. The RFPD provided Officer Ashby with virtually no training upon hiring him as a police officer. 113. Officer Ashby did not receive any training by the RFPD on the use of excessive force. He did not receive any training on constitutional rights. He did not receive any training on how to apply for a warrant. 114. The RFPD never took him to the firing range or had him fire a qualification 115. The only training Officer Ashby received related to the geographical round. jurisdiction of the RFPD. 116. The RFPD did not require any continuing certifications or training, nor pay for any continuing officer education classes. 117. Officer Ashby was never given a paper copy of RFPD policies. 118. There were multiple versions of the RFPD policies on CDs and Officer Ashby was never informed which version was the governing policy. 19 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 20 of 37 119. In addition to not providing Officer Ashby with any training, the RFPD made no effort to ensure that Officer Ashby had read and understood the various versions of RFPD policies. 120. Essentially, upon being hired by Rocky Ford, Officer Ashby was simply given a badge and told to “go police.” 121. Officer Ashby quickly learned that excessive force was condoned by his supervisors at the RFPD. Soon after starting at the RFPD, Officer Ashby observed Officer Poole beating a civilian for no apparent reason. Officer Ashby informed his supervisors about the incident but was told not to worry about it. 122. Civilian complaints about RFPD officers were not taken seriously. The RFPD habitually performed lax investigations and rarely imposed discipline. 123. Mr. Jacquez’s death was a direct result of Rocky Ford’s custom and policy of tolerating excessive force. 124. Patrol officers at the RFPD were often left on an island without backup options, especially late at night. Often, officers would not respond to calls or there would be no dispatch. 125. RFPD officers were never sanctioned or disciplined for failing to respond to calls. 126. RFPD officers, including Officer Ashby, resorted to using overwhelming force because they knew they would not have sufficient backup. Officer Ashby Continues his Pattern of Excessive Force at the Rocky Ford Police Department and Brandishes his Service Weapon as a Threat 127. Given his history of using excessive force at the WPD, and the absence of any training by the RFPD, it should come as no surprise that Officer Ashby continued to 20 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 21 of 37 use excessive force during his brief tenure at the RFPD. 128. By the time Officer Ashby shot and killed Mr. Jacquez, he was already the recipient of several civilian complaints, including at least two excessive force complaints, despite having been employed by Rocky Ford for less than four months. An investigation that opened just two days before the fatal shooting recommended that criminal charges be brought against Officer Ashby for false arrest, kidnapping, criminal harassment, and excessive force. Russell Price Incident 129. On August 2, 2014, Dave Hernandez shot Russell Price in the face in Rocky Ford, Colorado. 130. Mr. Price ran to a neighbor’s house and called the police. 131. When Officer Ashby responded to the call, Mr. Price ran towards him, covering his gunshot wound with his left hand and trying to flag down the police vehicle with his right hand. 132. Officer Ashby exited his police car, drew his service weapon, and pointed it at Mr. Price from approximately forty feet away. 133. Officer Ashby approached Mr. Price, while keeping the gun aimed at him, patted him down, and then put the gun to Mr. Price’s head. Officer Ashby pushed Mr. Price’s head with his gun, guiding him down to the curb. 134. When Mr. Price asked Officer Ashby why he was treating him like a dangerous suspect, Officer Ashby told Mr. Price to “shut the fuck up or I will put another bullet in your head.” 21 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 22 of 37 135. When the ambulance arrived for Mr. Price, Officer Ashby told the paramedics to “just leave him here.” 136. Mr. Price later filed a written complaint about Officer Ashby’s conduct, and his threat to use deadly force in response to a verbal complaint. 137. Mr. Price was later told that Officer Ashby’s conduct was “accepted practice” because Officer Ashby could not determine whether Mr. Price was the victim or the suspect. 138. However, prior to putting his gun to Mr. Price’s head and threatening to put a bullet in it, Officer Ashby had already observed Mr. Price’s gunshot wound, been told by Mr. Price that he had been shot, and patted down Mr. Price for weapons. 139. There was no lawful reason for Officer Ashby to put his gun on Mr. Price’s head and threaten to put a bullet in it. 140. This failure of Rocky Ford and Chief Gallegos to properly discipline Officer Ashby directly violated RFPD policy, which stated that “[n]o employee shall display or brandish any weapon as a threat unless its actual use is proper in the situation.” 141. Officer Ashby was never interviewed by anyone from the RFPD about this incident, nor was he disciplined. Victor Lopez Incident 142. On September 26, 2014, Officer Ashby pulled over Victor Lopez for failing to yield to oncoming traffic. 143. Although this was a routine stop, Officer Ashby unnecessarily escalated the situation and used profane language, despite the presence of Mr. Lopez’s juvenile son. 22 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 23 of 37 144. When Mr. Lopez stated that he would complain about Officer Ashby’s behavior, Officer Ashby responded that he did not “give a shit” and that he would not play “small town bullshit games.” 145. After Mr. Lopez complained about the incident, Officer Ashby was given a written warning for violating the RFPD code of conduct. Specifically, Officer Ashby was found to have violated the policy prohibiting officers from using “profane or insolent language to any citizen.” Jeremiah Ramsey and William Starks Incident 146. On October 4, 2014, eight days before he fatally shot Mr. Jacquez, Officer Ashby responded to a call concerning a disturbance at Smith’s Pub in Rocky Ford. 147. Officer Ashby learned that a male suspect had left Smith’s Pub but was apparently on his way to the food truck at the intersection of 10th and Elm Avenue. 148. Officer Ashby headed over to the food truck. On his way, he advised dispatch: “I’m gonna be out at the Taco Truck with that party fighting somebody.” 149. At the food truck, Officer Ashby made contact with Mr. Ramsey and Mr. Starks. Although he had no probable cause to arrest either man, Officer Ashby placed Mr. Starks in handcuffs. 150. After Mr. Starks was in handcuffs, Officer Ashby pepper sprayed Mr. Starks in the face for no apparent reason, similar to his use of pepper spray in the Walsenburg incident involving Mr. Martinez and portending his use of pepper spray against Mr. Jacquez two days later. 151. After being pepper sprayed, Mr. Starks attempted to run away. 23 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 24 of 37 152. As Mr. Starks was running away, Officer Timothy Moore arrived on scene to assist Officer Ashby. 153. Recognizing the futility of his actions, Mr. Starks surrendered by lying down in the street. Officer Ashby went over to Mr. Starks, held him down on the ground, and kneed him in the back, cracking one of his ribs. 154. Officer Moore placed Mr. Starks in his police vehicle and drove him to the police station. 155. Meanwhile, with respect to Mr. Ramsey, Officer Ashby arrested him for driving under the influence (“DUI”), even though there was no evidence that Mr. Ramsey had been driving. Officer Ashby drove Mr. Ramsey to the police station, and put him in a holding cell next to Mr. Starks’ cell. 156. Officer Ashby called Mr. Ramsey a “worthless chromo who didn’t deserve to breath his air,” and that he did not serve in the military for individuals like Mr. Ramsey. Officer Ashby also told Mr. Ramsey that he should exercise his “right to shut the fuck up.” 157. In the holding cell, Officer Ashby ordered that Mr. Ramsey remove his shoes. When Mr. Ramsey questioned the necessity of removing his shoes, Officer Ashby reacted to this question with a show of extreme force. Officer Ashby tackled Mr. Ramsey over the bench and slammed Mr. Ramsey’s head into the concrete floor. Officer Ashby then painfully yanked Mr. Ramsey up by the handcuffs and shackled him to the bench. 158. Officer Ashby left Mr. Ramsey handcuffed to the bench for almost three hours. 24 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 25 of 37 159. Officer Ashby rejected Mr. Ramsey’s request for medical attention. 160. Mr. Ramsey then requested to call the chief of police. Officer Ashby re- entered the cell, tackled him a second time, stomped on his foot, and choked him. 161. Officer Ashby then forced Mr. Ramsey to lie handcuffed on the floor in a pool of someone else’s vomit. 162. As a result of Officer Ashby’s abuse, Mr. Ramsey suffered the following injuries: a welt on his head, a broken toe, contusions, and sore wrists. 163. On October 6, 2014, Mr. Ramsey filed an excessive force complaint against Officer Ashby. 164. On October 10, 2016, the Bent County Sheriff’s Department initiated an investigation into the allegations by Mr. Ramsey. 165. The Bent County Sheriff’s Department is within Colorado’s 16th Judicial District. 166. RFPD policy provides that “[w]hen an Officer, while in the line of duty, kills or seriously wounds a person such an incident shall be investigated by or under the direction of the District Attorney of the 16th Judicial District. The Officer will be suspended immediately, with pay, pending disposition of the District Attorney’s investigation and the findings of the Chief of Police.” 167. Officer Ashby was not suspended or put on administrative leave after the investigation into his abuse of Mr. Ramsey and Mr. Starks commenced. 168. Similarly, Officer Ashby was not suspended or put on administrative leave after shooting Mr. Jacquez. Rather, he was terminated only after the arrest affidavit was issued. 25 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 26 of 37 169. The Bent County Sheriff’s Department investigator concluded that Officer Ashby had arrested Mr. Ramsey and Mr. Starks without probable cause and clearly violated their constitutional right to be free from unreasonable seizures. 170. The investigation noted that “neither officer Ashby or Moore [had] seen Jeremiah Ramsey drive a motor vehicle nor did they have probable cause to affect an arrest of Jeremiah Ramsey.” 171. Officer Ashby’s unlawful arrest of Mr. Starks through the use of force closely resembles his attempt to seize Mr. Jacquez for no lawful reason. 172. The investigation also concluded that Officer Ashby made derogatory statements to Mr. Ramsey. 173. When asked about the verbal altercation between Mr. Ramsey and Officer Ashby, Officer Moore stated he knew it was a policy violation for Officer Ashby to tell Mr. Ramsey to sit down and shut the fuck up, but that Officer Moore and Ashby’s “supervisors cuss at people too.” 174. The written investigative report concluded that: For the foregoing reasons, I deem both Rocky Ford Officers’ Moore and Ashby acted recklessly and unprofessional. There are multiple Colorado State and federal violations on the part of both officers. I will be referring the case to the 16th judicial district for possible criminal charges. 175. The investigation further concluded the following: Based on the information obtained through interviews with all witnesses and the complainant Jeremiah Ramsey, I find that . . . James Ashby is in violation of Unbecoming of an Officer, criminal violation of false arrest and or kidnapping and harassment. No probable cause was established to affect an arrest however circumstances reveal that there was probable cause to investigate what may have been a dispute between two individuals, however no probable cause was established to affect an arrest on either subject, Billy Starks and Jeremiah Ramsey. Both were arrested on frivolous charges. Billy Starks was charged with obstructing. Neither, 26 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 27 of 37 Officer Ashby or Moore wrote a report supporting any elements of obstructing to charge Starks. Jeremiah Ramsey was arrested and charged with DUI and other traffic offenses. No information supported the arrest of Ramsey. No witness statements were obtained regarding the incident at the bar nor statements indicating he was driving. Officers Ashby and Moore did not see Jeremiah Ramsey drive a motor vehicle and cannot place him in a vehicle. 176. Based on Officer Ashby’s multiple instances of excessive force during his short time as a police officer at the RFPD, Rocky Ford and its final delegated decision maker(s), including Chief Gallegos, possessed actual knowledge of the obvious and urgent need for additional training, supervision, and discipline of Officer Ashby. 177. The acts and omissions described herein by Chief Gallegos and Rocky Ford in failing to supervise, monitor, discipline and/or train Officer Ashby, in light of the obvious likelihood of injuries to persons of the public, constitute a reckless and deliberate indifference to the constitutional rights of the citizens of Rocky Ford and to Mr. Jacquez. V.STATEMENT OF CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983 – Fourth Amendment Though Fourteenth Amendment Deadly Force (Against Defendant Ashby) 178. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. 179. At all times relevant to this claim, Defendant Ashby was acting under the color of state law in his capacity as a Rocky Ford law enforcement officer. 180. The decedent Mr. Jacquez had a clearly established constitutional right under the Fourth Amendment to the United States to be secure in his person against unreasonable seizures through excessive force, including excessive deadly force. 27 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 28 of 37 181. At all times relevant to this claim, it was clearly established that law enforcement officers cannot use deadly force against a suspect where a reasonable officer on the scene would not have found probable cause to believe there was a threat of serious physical harm to him or others. 182. Any reasonable law enforcement officer knew or should have known of these clearly established rights at the time of Mr. Jacquez’s death. 183. Mr. Jacquez did not pose an actual or imminent threat of serious physical harm to Defendant Ashby or others when Defendant Ashby fired his fatal shot. Mr. Jacquez was shot in the back from a distance of at least four feet, he was unarmed, and he was moving away from Defendant Ashby. 184. It was not objectively reasonable to shoot Mr. Jacquez. Defendant Ashby had no objectively reasonable belief that Mr. Jacquez posed an actual and imminent threat to himself or others when Defendant Ashby shot him. 185. Defendant Ashby knew that the bullet he fired into Mr. Jacquez’s back was certain to cause Mr. Jacquez’s death. 186. To the extent that Defendant Ashby reasonably felt any danger of serious physical harm, he created that danger and thus the need for deadly force through his own reckless and deliberate conduct that immediately preceded his use of excessive deadly force. 187. By trailing Mr. Jacquez without reasonable suspicion or probable cause, attempting to seize him without probable cause, and following him into the Jacquez family home, Defendant Ashby was solely responsible for any danger the situation presented. 28 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 29 of 37 188. Defendant Ashby’s actions, as described herein, were undertaken intentionally, maliciously, willfully, wantonly, and/or in reckless disregard of Mr. Jacquez’s federally protected rights. 189. Officer Ashby engaged in the acts and omissions described herein pursuant to the customs, policies, procedures, and practices of Rocky Ford, which encouraged, tolerated, and ratified the use of deadly excessive force and deprivation of constitutionally protected interests by law enforcement officers. 190. The acts or omissions of Defendant Ashby were a legal and proximate cause of Mr. Jacquez’s death and Plaintiffs’ damages. 191. Defendant Ashby’s actions caused Mr. Jacquez damages in that he suffered extreme physical and mental pain as a result of being shot in the back. 192. As a result of Defendant Ashby’s unlawful actions as described above, Mr. Jacquez’s Estate and heirs have suffered actual physical, emotional, and economic injuries in amounts to be determined at trial. 193. These damages include lost future earnings, earnings capacity, and related economic loss from Mr. Jacquez’s life being cut short at the age of 27. Plaintiffs have been and continue to be damaged by Defendant Ashby’s use of deadly force. SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983 – Fourth Amendment Through Fourteenth Amendment Excessive Force (Against Defendant Ashby) 194. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. 195. At all times relevant to this claim, Officer Ashby was acting under color of state law in his capacity as a Rocky Ford law enforcement officer. 29 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 30 of 37 196. Mr. Jacquez had a clearly established constitutional right under the Fourth Amendment to the United States Constitution to be secure in his person against unreasonable seizures through excessive force. 197. Any reasonable law enforcement officer knew or should have known of this clearly established right. 198. Prior to using deadly force as alleged in the First Claim for Relief, Officer Ashby used force that was objectively unreasonable in light of the facts and circumstances confronting him by deploying his pepper spray at Mr. Jacquez and attempting to wrestle Mr. Jacquez to the ground, violating Mr. Jacquez’s Fourth Amendment right to be free from excessive force. 199. Officer Ashby’s actions, as described herein, were undertaken intentionally, maliciously, willfully, wantonly, and/or in reckless disregard of Mr. Jacquez’s federally protected rights. 200. Officer Ashby engaged in the acts and omissions described herein pursuant to the customs, policies, procedures, and practices of Rocky Ford, which encouraged, tolerated, and ratified the use of non-deadly excessive force and deprivation of constitutionally protected interests by law enforcement officers. 201. The acts or omissions of Defendant Ashby were a legal and proximate cause of Mr. Jacquez Estate’s damages. 202. As a direct result of Officer Ashby’s unlawful use of non-deadly excessive force, Mr. Jacquez’s Estate suffered damages in an amount to be proven at trial. 30 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 31 of 37 THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983 – Fourth Amendment Through Fourteenth Amendment Deliberately Indifferent Hiring (Against Defendant Gallegos and Defendant Rocky Ford) 203. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. 204. At all times relevant to this claim, Defendant RFPD Chief Frank Gallegos was acting under the color of state law in his capacity as a law enforcement officer. 205. Defendant Chief Gallegos was the final decisionmaker for Defendant Rocky Ford with regard to hiring RFPD law enforcement officers, including Officer Ashby. 206. Defendant Chief Gallegos’s decision to hire Officer Ashby was made without adequate scrutiny of his background. 207. Defendant Chief Gallegos’s failure to make reasonable inquiries when apprised by WPD Chief McLallan that Officer Ashby had been the subject of several internal affairs investigations and was ineligible for rehire. 208. Defendant Chief Gallegos had actual or constructive notice of the need for additional background investigation into Officer Ashby, yet failed to undertake such investigation. 209. Rocky Ford City Manager Kaiser has stated that Defendant Rocky Ford did not vet new hires on its police force prior to Mr. Jacquez’s death. 210. Adequate scrutiny of Officer Ashby’s background would have led a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire him would be the deprivation of a third party’s federally protected rights. 31 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 32 of 37 211. By hiring Officer Ashby without adequate scrutiny, Defendant Chief Gallegos set in motion a series of acts by which they should have known or reasonably should have known would result in constitutional injury. 212. The acts and omissions of Defendant Chief Gallegos, including the failure to adequately screen Officer Ashby before hiring him, were a legal and proximate cause of Mr. Jacquez’s injuries (including death), and Plaintiffs’ damages. 213. As a direct result of Defendant Chief Gallegos’s unlawful actions as described above, Plaintiffs have suffered actual physical, emotional, and economic injuries in an amount to be proven at trial. FOURTH CLAIM FOR RELIEF 42 U.S.C. § 1983 – Fourth Amendment Through Fourteenth Amendment Deliberately Indifferent Policies, Practices, Customs, Training, Supervision, and Ratification (Against Defendant Rocky Ford) 214. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully stated herein. 215. At all times relevant to this claim, Defendant Rocky Ford failed to properly train, supervise, monitor and discipline employees regarding use of excessive force (including deadly force), and unlawful entry. 216. At all times relevant to this claim, Defendant Rocky Ford maintained policies, customs, and practices of failing to properly train, supervise and discipline its officers in a manner amounting to deliberate indifference with respect to excessive force (including deadly force) and unlawful entry, including with respect to obviously recurring situations faced by police such as police-citizen encounters and determining whether there exists probable cause to effectuate a seizure or enter a residence. 32 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 33 of 37 217. Defendant Rocky Ford’s policies, customs, and practices, and failure to properly train, supervise and/or discipline its officers included the failure to train officers on avoiding the reckless and deliberate creation of the need to use force. 218. Defendant Ashby’s use of force arose under circumstances that constitute a usual and recurring situation with which police officers must deal, particularly interacting with the public while on patrol. 219. The constitutional violations against and harming of decedent Jack J. Jacquez were a foreseeable consequence of Defendant Rocky Ford’s actions and inactions. 220. Defendant Rocky Ford was deliberately indifferent to the constitutional rights of its citizens, knowing that Officer Ashby presented a danger to them, by failing to properly train, supervise, and discipline Officer Ashby with respect to the use of excessive force. Defendant Rocky Ford could have and should have pursued reasonable methods of training, monitoring, supervising, and disciplining its employees, including Officer Ashby. Instead, Defendant Rocky Ford failed to provide Officer Ashby with any training and did not discipline him for using excessive force. 221. Defendant Rocky Ford’s policies, customs, and/or practices and failure to properly train and supervise its employees, including Officer Ashby, were the moving force and proximate cause of the violation of decedent Jack J. Jacquez’s constitutional rights. 222. Defendant Rocky Ford’s acts or omissions caused Plaintiffs’ damages. 33 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 34 of 37 223. Defendant Rocky Ford’s acts or omissions as described herein deprived Plaintiffs of the rights, privileges, liberties, and immunities secured by the Constitution of the United States of America, and caused them other damages. FIFTH CLAIM FOR RELIEF 42 U.S.C. § 1983 – Unlawful entry Fourth and Fourteenth Amendments (Viola Jacquez and Maria Talmich Against All Defendants) 224. Plaintiffs hereby incorporate all other paragraphs of this complaint as if fully stated herein. 225. Plaintiffs Viola Jacquez and Maria Talmich had a constitutionally protected right to be secure in their persons against unreasonable intrusions into and searches of their residence (the “Jacquez residence”). 226. Defendant Ashby entered the Jacquez residence without permission or consent. 227. Defendant Ashby had no warrant authorizing a search or entry of the Jacquez residence. 228. No legally recognizable exigent circumstances existed which would have permitted Defendant Ashby’s warrantless entry of the Jacquez residence. 229. No person consented to permit Defendant Ashby to enter the Jacquez residence. 230. Defendant Ashby’s conduct violated clearly established rights belonging to Ms. Jacquez and Ms. Talmich of which reasonable law enforcement officers knew or should have known. 34 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 35 of 37 231. Defendant Rocky Ford and Defendant Chief Gallegos failed to properly hire, train, supervise and/or discipline members of its law enforcement regarding issues of constitutionally permissible entry into a residence. 232. 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 the Defendant Rocky Ford and Defendant Chief Gallegos. 233. Such failure to properly hire, train, supervise, and/or discipline was the moving force behind and proximate cause of Defendant Ashby’s unlawful entry into the Jacquez residence, and constitutes an unconstitutional policy, procedure, custom and/or practice. 234. As a direct and proximate cause of Defendants’ violation of Ms. Jacquez and Ms. Talmich’s rights under the Fourth and Fourteenth Amendments, Ms. Jacquez and Ms. Talmich suffered injuries in an amount to be proven at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and against each of the Defendants, and award them all relief allowed by law, including but not limited to the following: A. All appropriate relief at law and equity; B. Declaratory relief and other appropriate equitable relief; C. Economic losses on all claims as allowed by law; D. Compensatory and consequential damages, including damages for emotional distress, humiliation, loss of enjoyment of life, and other pain and 35 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 36 of 37 suffering on all claims allowed by law in an amount to be determined at trial; E. Punitive damages on all claims allowed by law and in an amount to be determined at trial; F. Attorneys’ fees and the costs associated with this action under 42 U.S.C. § 1988, including expert witness fees, on all claims allowed by law; G. Pre-and post-judgment interest at the lawful rate; and H. Any other appropriate relief at law and equity that this court deems just and proper. PLAINTIFFS HEREBY DEMAND A JURY TRIAL ON ALL ISSUES SO TRIABLE RATHOD ৷ MOHAMEDBHAI LLC s/ Qusair Mohamedbhai Qusair Mohamedbhai Matthew J. Cron Max D. Hellman 2701 Lawrence Street, Suite 100 Denver, CO 80205 (303) 578-4400 (phone) (303) 578-4401 (facsimile) qm@rmlawyers.com mc@rmlawyers.com mh@rmlawywers.com Attorneys for Plaintiffs FUICELLI & LEE, P.C. s/_John G. Lee John G Lee, III Amanda Cari Francis 1731 Gilpin St Denver, CO 80218 (303) 355-7202 (phone) (303) 355-7208 (facsimile) john@fuicellilee.com Attorneys for Plaintiffs 36 Case 1:16-cv-02519 Document 1 Filed 10/11/16 USDC Colorado Page 37 of 37 Koncilja & Koncilja, P.C s/_Joseph A. Koncilja Joseph A. Koncilja Tim O’Shea Steve Cornetta 125 W. B St. Pueblo, CO 81003 719-543-9591 (Phone) 719-543-0247 (Fax) criminal@konciljaandkoncilja.com Attorneys for Plaintiffs 37