Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 1 of 13 Daniel R. Ortega, Jr., SBN: 005015 ORTEGA LAW FIRM, P.C. 2 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 3 Phone (602)386-4455/Fax (602)386-4480 1 danny@ortegalaw.com 4 Attorney for Plaintiffs 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA 7 8 9 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 ORTEGA LAW FIRM, P.C. 10 11 12 13 14 Sandra Gonzalez and Juan Antonio Arce, surviving parents of decedent Antonio Arce; No. COMPLAINT Plaintiffs, v. City of Tempe, a public entity; Joseph Jaen, individually and in his official capacity as a City of Tempe Police Officer; (Demand for Jury Trial) Defendants. 15 16 17 Plaintiffs, for their complaint against defendants, allege as follows: 18 INTRODUCTION 19 1. This is an action brought pursuant to 42 U.S.C. §§ 1983 and 1988, 20 the Fourteenth Amendment to the United States Constitution; and under the 21 law of the State of Arizona, against: City of Tempe, Arizona and Officer 22 Joseph Jaen, individually and in his official capacity as a police officer with 23 the City of Tempe Police Department. 24 2. On the afternoon of January 15, 2019, Officer Joseph Jaen 25 (hereinafter “defendant Jaen”), was involved in the shooting of fourteen-year- 26 old decedent Antonio Arce (hereinafter “Antonio”), in an alley near 48th Street 27 and Baseline Road. Defendant Jaen shot Antonio in the back, killing him. 1 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 2 of 13 JURISDICTION AND VENUE 1 2 particularly the Fourteenth Amendment, and under the laws of the United 4 States, particularly the Civil Rights Act, 42 U.S.C. § 1983 and 1988, and 5 under Arizona state law. 7 8 9 10 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 This action arises under the Constitution of the United States, 3 6 ORTEGA LAW FIRM, P.C. 3. 4. This court has jurisdiction over plaintiffs’ federal civil rights claim pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 28 U.S.C. § 144. 5. This court has supplemental jurisdiction of plaintiffs’ state law causes of action pursuant to 28 U.S.C. § 1367(c). 6. The acts complained of occurred within the City of Tempe, 11 Maricopa County, State of Arizona. All defendants reside in Arizona. Thus, 12 venue is proper in the District Court of Arizona pursuant to 28 U.S.C. § 13 1391(b). 14 7. As to plaintiffs’ claims under state law, plaintiffs served 15 defendants with a Notice of Claim pursuant to A.R.S. § 12-821.01, which 16 complied in all ways with the statute, it was timely served and which is 17 deemed denied by operation of statute. 18 PARTIES 19 20 8. Statutory plaintiffs Sandra Gonzalez and Juan Antonio Arce 21 (hereinafter “plaintiffs”) are the natural parents of Antonio, who died on 22 January 15, 2019, in Tempe, Arizona. 23 24 25 9. Plaintiffs were at all times relevant herein residents of Maricopa County, State of Arizona. 10. Defendant City of Tempe, including all of its departments, 26 subdivisions, agencies, agents, and employees (collectively referenced 27 hereafter as “the City”) is a public municipal corporation formed and 2 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 3 of 13 1 designated as such pursuant to Title 9 of the Arizona Revised Statutes. As 2 such, the City is subject to civil suit and may be held liable both independently 3 and vicariously, as permitted by federal and state law, for the wrongful 4 conduct of its officers, employees, agents, districts, and divisions/sub- 5 divisions, including (without limitation) members of the City of Tempe Police 6 Department (hereinafter “TPD”). 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 ORTEGA LAW FIRM, P.C. 7 11. Defendant Jaen was an agent and employee of the City of Tempe 8 who, at the time of the events complained of herein, was acting within the 9 course and scope of his employment and under color of law. Defendant Jaen 10 is sued both in his official capacity, for purposes of plaintiffs’ state law claims, 11 and in his individual capacity, for purposes of plaintiffs’ claims under 42 12 U.S.C. § 1983. 13 FACTUAL BACKGROUND 14 15 12. The TPD received a call about a suspicious vehicle parked in an 16 alley behind the residence at 4502 South Fair Lane, Tempe, at approximately 17 2:38 p.m. 18 13. In response to the call, defendant Jaen was dispatched and 19 arrived on the scene at approximately 2:52 p.m. He was traveling southbound 20 in the alley behind the residential properties along the west side of South Fair 21 Lane. Defendant Jaen spotted a gray pickup truck parked facing north 22 approximately two hundred feet in front of him. 23 24 25 14. Defendant Jaen’s body cam video shows that when he arrived Antonio was in the gray pickup truck. 15. According the Tempe General Offense Report (hereinafter 26 “report”), defendant Jaen “said that he was not 100% certain as to why he 27 continued to approach the vehicle, stating that he thought that if he 3 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 4 of 13 1 approached the vehicle maybe the occupant would come out and move the 2 vehicle.” Defendant Jaen then parked his patrol vehicle. 3 of the truck. Defendant Jaen approaches with gun drawn and steps behind a 5 large trash can and yelled “Hey!” as Antonio exits the truck. 17. The report’s description of Antonio’s reaction states, “Arce 7 immediately fled on foot southbound down the alley away from the rear of the 8 truck.” 9 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 Defendant Jaen’s body cam video then shows Antonio in the cab 4 6 ORTEGA LAW FIRM, P.C. 16. 18. In the aforementioned video, defendant Jaen reaches the truck 10 and shouts, “Let me see your hands” as Antonio was running away, with his 11 back facing the officer and never turning around. 12 19. According to the report, defendant Jaen stated that he said “Stop 13 Police or Tempe Police” to Antonio at that time. His body cam video clearly 14 shows that at no time does defendant Jaen announce himself as Tempe Police. 15 20. According to the report, defendant Jaen claimed that he believed 16 Antonio had an actual handgun (which turned out to be a toy Airsoft gun with 17 an orange tip) in his right hand but that he did not see Antonio attempt to 18 manipulate it. 19 21. 20 21 Defendant Jaen also stated that he estimated that he was approximately fifteen to twenty feet behind decedent Antonio when he fired. 22. According to the report, Officer Gregory Duarte, an officer 22 investigating the scene, estimated that defendant Jaen was actually 114.5 23 feet away from Antonio when he fired the first shot. 24 23. Even though Antonio had never turned toward defendant Jaen, 25 was running in the opposite direction, made no attempt to manipulate the 26 purported gun, and was over 100 feet away, defendant Jaen nevertheless 27 made the decision to shoot Antonio. 4 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 5 of 13 1 again a second later. One bullet struck Antonio in the back near the right 3 shoulder blade, while the other bullet struck a wall. 25. According to the report, in an interview following the incident, 5 attorney K. Baillie of the Tempe Officers Association, asked defendant Jaen 6 “to clarify the moment when he yelled out ‘stop police’, or something to that 7 effect to the subject as he was running south from the truck.” Specifically, and 8 with a leading question, “Baillie asked defendant Jaen if the subject turned 9 towards him with the weapon in his hand when he called out to him.” 10 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 According to the video, defendant Jaen stops and fires. He fires 2 4 ORTEGA LAW FIRM, P.C. 24. 26. According to the report, “Ofc Jaen responded by saying, ‘He 11 turned at that point, he did when I yelled it, that’s when he did do that motion 12 and he had to of turned. He had to of (sic) because I saw the gun and I saw 13 the movement. Baillie, again in a leading manner, then asked, ‘And you fired 14 at that point because he is turning and then he ran?’ and Ofc Jaen said, ‘yes.’” 15 27. Defendant Jaen made these statements despite previously telling 16 Officer Jones that he did not see Antonio attempt to manipulate the Airsoft 17 gun, and despite the body cam video clearly showing that defendant Jaen 18 never announced himself as Tempe Police and that Antonio never turned or 19 made any sort of “movement” toward him. 20 28. In defendant Jaen’s body cam video at T21:54:40, defendant Jaen 21 begins running after Antonio and calls “998, 998, shots fired” on the radio 22 three seconds later. It takes defendant Jaen approximately 15-16 seconds to 23 reach where Antonio had been when the first shot was fired. At T21:54:58, 24 defendant Jaen slows down and again calls on the radio that shots were fired. 25 29. In the video from defendant Jaen’s body cam, he stops at the end 26 of the alley with his gun still drawn and Antonio is lying face down at the end 27 of the alley. Antonio’s head bobs up at least once. 5 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 6 of 13 1 2 3 Jaen remains behind a cement wall as cover. 31. At T21:55:56, defendant Jaen reports that Antonio is down and has been shot at least once. Defendant Jaen reports that there is another 5 subject in the alley near the truck. 7 8 9 10 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 Defendant Jaen encounters Antonio at T21:55:33, and defendant 4 6 ORTEGA LAW FIRM, P.C. 30. 11 12 13 14 32. According to the report, there was never a second subject in or around the truck. 33. At T21:57:09, defendant Jaen reports that it looks like Antonio is not breathing anymore. 34. At T21:57:33, defendant Jaen instructs the no-longer-breathing Antonio to show his hands before they can get him aid. 35. At T21:58:51, standing a few feet from Antonio’s body, defendant Jaen reports Arce is a “Hispanic male in his mid-40s.” 36. While defendant Jaen called for backup and paramedics, he never 15 attempted to render aid. Rather, he watched as Antonio stopped breathing as 16 he waited the four minutes for Phoenix Fire Department to arrive. 17 37. A second police car arrived approximately six minutes after 18 defendant Jaen arrived, at T21:59:52. The body cam video of Officer Cano 19 appears to show Officer David Lewis handcuff Antonio’s lifeless body before 20 turning it over. 21 38. 22 23 24 25 26 27 At T22:01:10, a female officer says, “He’s dead, dude. He’s dead. Pull him over. We still got to try. Hold him, hold on him. Hold on him.” 39. Officer David Lewis begins CPR at T22:01:49, over seven minutes after defendant Jaen fired the second shot. 40. On video, as Officer Lewis turns over Antonio’s body, an Airsoft gun with an orange tip appears. 41. Another officer takes over CPR approximately two minutes later. 6 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 7 of 13 42. 1 2 Antonio's body was placed on a stretcher, placed into an ambulance and taken 3 to a hospital where he was declared dead. 4 43. Defendant Jaen resigned from TPD in May 2019. 5 44. In 2012, defendant Jaen, who is a wartime veteran, filed for 6 disability benefits, due to his military service related post-traumatic stress 7 disorder (hereinafter “PTSD”), but later for unknown reasons, withdrew his 8 application. 45. 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 9 ORTEGA LAW FIRM, P.C. Phoenix Fire Department arrived at approximately T22:04:00. On January 1, 2020, the City of Tempe Public Safety Personnel 10 Retirement System Board awarded early accidental disability retirement 11 benefits to defendant Jaen. 12 13 14 15 COUNT ONE (Defendant Jaen Violated Plaintiffs’ Rights Under the Fourteenth Amendment and 42 U.S.C. § 1983 to be Free From Interference with Their Rights to Familial Society and Companionship of Antonio) 16 17 46. reference. 18 19 20 21 22 23 24 25 Plaintiffs hereby incorporate all preceding paragraphs by 47. Defendant Jaen did not announce himself as Tempe Police at any 48. Antonio had not hurt or injured anyone, made no threat to time. defendant Jaen, nor posed any threat to defendant Jaen or the community and had no firearm. 49. Antonio was fleeing, facing away from defendant Jaen the entire time, and was approximately 116 feet away at time the first shot was fired. 26 27 7 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 8 of 13 1 and constituted an unreasonable seizure of Antonio and unreasonable and 3 excessive use of force. 5 6 51. Despite the absence of any threat, imminent or otherwise, defendant Jaen fired two shots at Antonio, hitting him once in the back. 52. The reckless, intentional and/or deliberate acts and omissions of 7 defendant Jaen were the direct and legal cause of the deprivation plaintiffs’ 8 constitutionally protected rights under the Fourteenth Amendment to the 9 care, companionship and familial society of Antonio, their son. 10 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 Defendant Jaen’s shooting of Antonio was entirely unjustified 2 4 ORTEGA LAW FIRM, P.C. 50. 53. The acts and omissions of defendant Jaen were taken knowingly, 11 intentionally, and/or maliciously and for the purpose of harassment, 12 oppression, and infliction of injury upon plaintiffs in reckless, wanton, and 13 14 callous disregard of their civil rights; and by reason thereof, plaintiffs each seek exemplary and punitive damages from defendant Jaen. 15 COUNT TWO 16 17 18 (The City of Tempe Violated 42 U.S.C. § 1983 for Its Unconstitutional Policies, Customs, and Failure to Properly Screen, Hire, Train, Retrain, and Supervise its Officers) 19 20 21 22 54. Plaintiffs hereby incorporate all preceding paragraphs by reference. 55. The City, through its agents and official policymakers, 23 establishes policy for the City’s Police Department, oversees the operations of 24 the City’s Police Department and the services provided by its officers, and 25 evaluates, certifies, and maintains the Police Department’s compliance with 26 applicable standards. Such actions, directly or via ratification, constitute 27 official municipal policy, customs, and practices. 8 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 9 of 13 1 2 3 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 The City has oversight and supervisory responsibility over its officers, employees, and agents with respect to police matters. 57. Despite its knowledge and notice, the City was deliberately and 4 callously indifferent to the constitutional rights of those that they serve in 5 training (and/or failing to adequately train) its police personnel in (among 6 other things) the appropriate, lawful and constitutional policies, procedures, 7 practices, protocols, and customs for the use of force in recurring 8 circumstances police face, as alleged herein. 9 ORTEGA LAW FIRM, P.C. 56. 58. Despite its knowledge and notice, the City was deliberately and 10 callously indifferent to the constitutional rights of those that they serve in the 11 screening, hiring, retention and/or supervision of police personnel, employees, 12 and agents. 13 14 15 16 17 18 19 20 59. Defendant Jaen filed and application with the City of Tempe for disability benefits in 2012. 60. Upon information and belief, defendant Jaen basis for filing the aforementioned application was due to his PTSD. 61. While defendant Jaen later withdrew his application, the City of Tempe was on notice about his condition. 62. The City of Tempe’s deliberate, reckless, and callous actions, as 21 described above, substantially contributed to and/or was the moving force 22 behind defendant Jaen’s use of excessive force upon Antonio. 23 63. The wrongful conduct of the City of Tempe, as described herein, 24 constitutes violations of 42 U.S.C. § 1983, in that with deliberate and callous 25 indifference, the City deprived Antonio the right to be free from law 26 enforcement’s excessive use of force and plaintiffs’ rights secured to them by 27 the Constitution and laws of the United States, including (among others and 9 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 10 of 13 1 without limitation) their right to the continued familial and societal 2 relationship with their son, as guaranteed by the Fourteenth Amendment. 3 4 5 64. plaintiffs have suffered damages. 65. rights of plaintiffs and punitive damages in an amount to be determined by a 7 jury should be awarded to deter and prevent others from acting in a similar 8 manner in the future. COUNT THREE 10 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 The wrongful conduct of the City was in reckless disregard of the 6 9 ORTEGA LAW FIRM, P.C. As a direct and proximate result of defendants’ wrongful conduct, 11 12 13 14 (The City of Tempe and Defendant Jaen Were Negligent and Caused the Wrongful Death of Antonio) 66. Plaintiffs hereby incorporate all preceding paragraphs by reference. 67. Defendants have a statutory and common law duty to assure the 15 safety and well-being of persons in their care and custody—a duty that 16 includes (without limitation) using only necessary and reasonable force. 17 68. Defendant Jaen breached his duties, as identified by the 18 allegations set forth in the paragraphs above, by (among others and without 19 limitation): subjecting Antonio to excessive force; fatally shooting Antonio; 20 failure to render aid; and, failing to properly follow the applicable protocols, 21 practices, policies, training, and standards of law enforcement. 22 69. The City is legally responsible for the screening, hiring, training, 23 retaining, and supervision of all employees and agents. This responsibility 24 includes (among other things and without limitation) making certain that 25 such employees and agents satisfy all federal, state, and applicable 26 standards. It also includes (among others and without limitation) making 27 10 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 11 of 13 1 certain that police policies, procedures, practices, protocols, customs, and 2 training satisfy all federal, state, and applicable standards. And, it also 3 includes (among others and without limitation) reasonably responding to 4 known problems and/or improper customs, policies, practices, procedures, 5 training, and/or conditions. The City was negligent in the performance of 6 those duties and responsibilities. 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 ORTEGA LAW FIRM, P.C. 7 70. The City breached its duties, as identified by the allegations set 8 forth in the paragraphs above, by (among others and without limitation): 9 failing to properly screen, hire, retain, and supervise its employees; ratifying 10 improper conditions, customs, policies, procedures, and/or practices by 11 inaction; implementing, utilizing, and/or permitting to exist unreasonably 12 dangerous policies, practices, protocols, customs, and training (or lack 13 thereof) with respect to (among others and without limitation) the use of force; 14 approaching, arresting, and/or responding to citizens; failing to appropriately 15 hire, retain and supervise its employees. 16 71. Defendant Jaen was, at all times material hereto, acting within 17 the course and scope of his employment and the City is vicariously liable for 18 their actions. 19 20 21 72. Defendants breached their duties owed to Antonio, as identified by the claims, facts, and allegations set forth in the paragraphs above. 73. As the result of defendants’ negligence, plaintiffs have been 22 deprived of the continued companionship and society of their son and have 23 suffered and will continue to suffer in the future a loss of love, affection, 24 companionship, care, protection, guidance, as well as pain, grief, sorrow, 25 anguish, stress, shock, and mental suffering, and economic and non-economic 26 damages in an amount to be proven at trial. 27 COUNT FOUR 11 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 12 of 13 1 2 3 4 Plaintiffs incorporate the allegations in the paragraphs above as if set forth fully herein. 75. Defendants acted and/or failed to act, despite knowing or having reason to know that Antonio was or would be inappropriately subjected to an 6 unreasonable risk of serious harm and injury as a result of their actions 7 and/or inactions. 9 10 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 74. 5 8 ORTEGA LAW FIRM, P.C. (The City of Tempe and Defendant Jaen Were Grossly Negligent and Caused the Wrongful Death of Antonio) 76. Defendants subjected Antonio to reckless and excessive force, and/or failed to intervene to prevent the use of such force, as alleged above. 77. A reasonable person under the same circumstances would have 11 known that Antonio was inappropriately subject to the use of unreasonable 12 and unjustified force. 13 78. At all times material hereto, defendants were acting within the 14 course and scope of their employment, and the City is vicariously liable for 15 their acts. 16 17 18 79. Defendant Jaen was reckless and/or grossly negligent in the handling, treatment, and care of Antonio. 80. The City of Tempe, directly and through its employees and 19 agents, was reckless and/or grossly negligent in the screening, hiring, 20 retention, training and supervision of defendant Jaen, and potentially others, 21 as identified by the claims, facts, and allegations set forth in the paragraphs 22 above. 23 24 25 81. Defendants’ breaches of their duties, as outlined above, constitute gross negligence, which was the proximate cause of Antonio’s death. 82. As the result of defendants’ gross negligence, plaintiffs, as 26 Antonio’s survivors, have been deprived of the continued companionship and 27 society of their son, and have suffered and will continue to suffer in the future 12 Case 2:20-cv-00092-MTL Document 1 Filed 01/14/20 Page 13 of 13 1 a loss of love, affection, companionship, care, protection, guidance, as well as 2 pain, grief, sorrow, anguish, stress, shock, and mental suffering, and have 3 suffered both economic and non-economic damages in an amount to be proven 4 at trial. 5 6 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Phone: (602) 386-4455 ORTEGA LAW FIRM, P.C. 7 WHEREFORE, plaintiffs pray for judgment against defendants and each and every one of them as follows: 8 1. For an award of special damages to be proven at trial; 9 2. For an award of compensatory damages in an amount to be proven at 10 trial for the pain, suffering and emotional distress sustained by 11 plaintiff; 12 13 14 15 16 3. For an award of punitive damages in an amount to be proven at trial for all Counts; 4. For attorney's fees and costs, as allowed by law, incurred and expended herein; and 5. For such other relief as the court deems just and proper. 17 JURY DEMAND 18 19 20 21 Plaintiffs respectfully request a trial by jury on all issues in this matter triable to a jury. DATED this 13th day of January, 2020. 22 ORTEGA LAW FIRM, P.C. 23 24 25 26 By:s/Daniel R. Ortega Jr. Daniel R. Ortega, Jr. 361 East Coronado Road, Suite 101 Phoenix, Arizona 85004-1525 Attorney for Plaintiffs 27 13