DENVER DISTRICT COURT
1437 Bannock Street
Denver, CO 80202

▲COURT USE ONLY▲

Plaintiff: AGAZI ABAY, GABRIEL THORN, AMY
SCHNEIDER, and MICHALE McDANIEL On behalf
of themselves and other similarly situated individuals,

Case No.
Division:

v.
Defendant: CITY OF DENVER.
Attorney for Plaintiff
Edward Milo Schwab, #47897
Ascend Counsel, LLC
3000 Lawrence Street
Denver, CO 80205
(303) 888-4407
milo@ascendcounsel.co

CLASS ACTION COMPLAINT AND DEMAND FOR A JURY TRIAL

For their Complaint, Plaintiffs state and allege as follows:
INTRODUCTION
The Denver Police cannot be trusted with the use of non-lethal weapons against
protesters. For seven days, they have shown, across hundreds of incidents and just as many
officers, that the use of these “less than lethal” ordinances is being done without regard to the
constitutional rights of protesters and bystanders. The officers have, time and again, targeted
journalists and ordinary citizens documenting their conduct, targeted medics seeking to give aide
to those harmed by the use of these ordinances, failed to follow training or have not been trained
on the use of these ordinances, and most upsettingly, these officers have simply used these
weapons to assert and show their dominance over protesters and the citizens of Denver and
Colorado. These actions have not been isolated events - rather, they are part of a force-wide use
1

 of excessive and unconstitutional force to restrict the constitutional rights of protesters
challenging racism and police brutality in our society. This pattern and practice of conduct by
Denver police tramples on the Constitution.
Plaintiffs bring this action to ask the Court to restrain the City of Denver from further
violence and unconstitutional conduct.
THE PARTIES
1. Plaintiff Agazi Abay is a Colorado resident who lives in the city and county of Denver.
2. Plaintiff Gabriel Thorn is a Colorado resident who lives in the city and county of Denver.
3. Plaintiff Amy Schenider is a Colorado resident who lives in the city and county of
Denver.
4. Plaintiff Michael McDaniel is a Colorado resident who lives in the city and county of
Denver.
5. Defendant City of Denver is a municipality incorporated in the State of Colorado.
JURISDICTION AND VENUE
6. This Court has jurisdiction over the subject matter of this action pursuant to C.R.S. Const.
art. VI,§ 9(1), and over the parties pursuant to C.R.S. § 13-1-124(1)(b) because this
action arises from the commission of tortious acts within the State of Colorado, by
residents of the State of Colorado.
7. Pursuant to C.R.C.P. 98(c), venue is proper in the District Court in and for the City and
County of Denver because the conduct complained of occurred within the City and
County of Denver.
BACKGROUND

2

 8. On Monday, May 25, 2020, George Floyd was murdered by an officer of the Minneapolis
Police Department (“MPD”). The events of Mr. Floyd’s arrest and murder were captured
on video by multiple bystanders as well as individual officers’ body cameras. The videos
depicted Mr. Floyd pinned on the street, face down and increasingly unresponsive, while
MPD Officer Derek Chauvin knelt on Mr. Floyd’s upper back and neck, two officers held
him down, and another stood by. All four officers were soon fired by the MPD.
9. Nationwide protests have erupted in response to this police brutality.
10. Denver’s first protest occurred on Thursday, May 28, 2020.
11. Every night since and including May 28, 2020, peaceful protesters have assembled in
downtown Denver, often on the steps of the Colorado State Capitol building. Although
some protestors engaged in destructive activity (e.g., burning property and looting), these
incidences have been remote when compared to the thousands of otherwise peaceful
protesters.
12. Nonetheless, the Denver Police Department (“Denver Police” or “DPD”), and other
police departments at their invitation, have engaged in injurious riot control tactics
without issuing clear warnings and orders to disperse.
13. The Denver Police immediately turned to riot gear and riot tactics from the first day of
protest.
14. One officer posted a picture on instagram of himself and two fellow officers stating:
“Let’s start a riot.”

3

 15. This officer was subsequently terminated. The Denver Police have taken no action
against the other two officers.
16. But this officer was alone only in saying the quiet part out loud.

4

 17. As Exhibit A shows, another DPD officer, when asked what was going to happen at 8:00
(the city enforced curfew), the officer responded: “What’s going to happen is we’re going
to start beating the fuck out of you.”
See video of Denver Police officer threatening protester: www.ascendcounsel.co/exhibita
18. The Police were there to counter the police brutality protests, and indeed were dressed
and armed to use violence.
19. This mentality that the DPD was not there to serve a public safety role, but instead to
dominate the protesters, is evident through talks with protesters, bystanders, press, and
indeed, as captured on video.
20. In Exhibit B, we see a protester confronting a police officer. At some point, the police
officer decides he has had enough of the protester’s talking back and pepper sprays him
to show who is in control.
See video of Denver Police wantonly pepper spraying a protester:
www.ascendcounsel.co/exhibitb
21. As the Exhibits below will show, such an incident was not isolated.
See second video of Denver Police wantonly pepper spraying a protester:
www.ascendcounsel.co/exhibitc
See third video of police officers tearing up sign of peaceful protester and spraying without
justification: www.ascendcounsel.co/exhibitd
See fourth video of line of officer spraying people without provocation:
www.ascendcounsel.co/exhibite

5

 22. What becomes clear in viewing these videos is that the Denver Police are not using
pepper spray in a limited manner, but instead as a tool to suppress expression they don’t
appreciate.
23. Not only is the Denver Police using pepper spray to suppress expression, they are using it
to deter documentation of their activity. In Exhibit F, we see a peaceful protester
documenting a team of police in riot gear in broad daylight. When one of the officers
notices the filmmaker, he takes action by targeting the filmmaker and shooting him with a
pepper bullet.
See video of Denver police officer punishing the mere act of documenting him in his riot
gear. www.ascendcounsel.co/exhibitf

6

 See second video of Denver police shooting at photographers:
www.ascendcounsel.co/exhibitg
24. The Denver Police’s attacks on those documenting the protests and the actions of the
Denver Police was not limited to protesters. The Denver Police also targeted accredited
journalists whose credentials were clearly visible.
See photo of Denver Post reporter who was shot with pepper ball or rubber bullet

7

 25. The Denver Post reported on May 29, 2020 that photojournalist Hyoung Chang was
struck twice Thursday night with pepper balls that cut his arm and shattered the press
credential hanging around his neck. Chang said a Denver Police officer fired two pepper
balls directly at him.
See camera lens broken by police:

8

 26. Denver Post reporter Elise Schmelzer, who was wearing a reflective vest with the word
“Press” on it, said Denver Police officers on Thursday fired at least one pepper ball at her
feet.
27. On Friday May 29, 2020, a Denver7 reporter wrote on Twitter that a station
photographer was hit four times by “paint balls” fired by Denver Police.

9

 28. On Saturday May 31, 2020, a 9NEWS reporter wrote on Twitter that state Capitol
security officers fired “something” that hit his backpack “just after I went live with a
large camera and light.” The reporter was wearing a 9NEWS hat. He found a yellow-andblack projectile at the spot where he was hit.
29. On Saturday May 31, 2020, a reporter for Denverite wrote on Twitter: “Cops shoved me
after I showed them my press credentials and forced me to inhale choking gas.”
30. On Saturday May 31, 2020, a journalist wrote on Twitter that, while standing with
photographers, an officer kicked a rolling chemical cannister “sideways right into us.
Took it full in the face …”
31. On Sunday, another Denver Post reporter wrote on Twitter that he and a Denverite
reporter, who was wearing a neon press vest, were ordered by an officer to move “toward
an epic amount of tear gas … Cop points weapon right at us. We were forced back into
the chaos and we both took a ton of gas to the face.” A New York Times reporter posted a
photo of a contusion the Post reporter suffered after being hit with a projectile: “He
screamed “Press” shortly before being hit as officers fired on protesters.”
32. The Denver Police also specifically targeted medics wearing red crosses attempting to
provide care and treatment to those injured by the Police’s wanton use of force.
See video of protester being hit in the head and knocked out by a rubber bullet, and medics
being shot at as they try to rescue him: www.ascendcounsel.co/exhibith
33. Protester after protester have spoken out about seeing police target medics, especially
medics while they attempt to administer care to people prone on the ground. As shown
below in the Megan Matthews news report, medics were also attacked while attempting
to render aide.

10

 34. Not only were the Denver Police targeting protesters, press, and medics, they were and
continue to aim their ordinances at the heads and groins of individuals, in a clear tactic to
inflict maximum damage, pain, and distress to their target.
See also news report of Megan Matthews who was hit in the eye with a rubber bullet:
https://kdvr.com/news/local/police-projectile-fractures-denver-protesters-face-she-says-itwas-unprovoked/?
fbclid=IwAR1PDmRuiWVLGjXjkXlzaYODofgSH4dxMqPZIIg95uWn0-RjvqCZBZq_bBs

See also news report of second person hit in the eye with a rubber bullet:
https://kdvr.com/news/local/local-man-needs-his-eye-removed-after-projectile-hits-his-faceduring-afternoon-protest-in-denver/?fbclid=IwAR2Q9RdYRmi3dp5GnuyOf6Tm6ENoquhzKTvHSknBTmUKLuZ-17UIc4YJkA
See also video of third person hit in the eye with a rubber bullet:
www.ascendcounsel.co/exhibiti

11

 See also video of fourth person hit in the eye with a rubber bullet:
www.ascendcounsel.co/exhibitj
35. The targeting of heads is a common feature of the Police’s response to protesters, and
Plaintiffs will attest to the fact that they saw and/or were targeted with rubber bullets.
36. This is not only excessive and malicious, it is also contrary to guidance on how rubber
bullets are to be used. Proper use of 40 millimeter rubber bullets requires that they be
aimed at the ground, not at the mass of a person’s body. However, the City of Denver has
failed to train the DPD on proper use of these ordinances before unleashing them on the
City’s civilians.
37. In addition to the improper use of these ordinances, general excessive force against
protesters, press, and medics, the real story is that the DPD is not maintaining peace and
public safety, but rather, is using force against peaceful protesters.
See video of peaceful protesters chanting hands up don’t shoot before being tear gassed and
shot with pepper balls in broad daylight: www.ascendcounsel.co/exhibitk
See second video of police throwing teargas unprompted into a peaceful crowd:
www.ascendcounsel.co/exhibitl
See video of Denver Police casually throwing flashbangs into peaceful crowds:
www.ascendcounsel.co/exhibitm
38. The Denver Police is and continues to use these weapons to send the message that they
are to be feared, that they are there to dominate, and that they will use their weapons to
silence any person they feel is not respecting their authority.
See video of more than a dozen Denver officers shooting into a car in traffic with a
pregnant woman inside: www.ascendcounsel.co/exhibitn

12

 See video of Denver officers spraying pepper balls at a woman instead of asking her to
move: www.ascendcounsel.co/exhibito
39. Unequivocally, the Denver Police cannot be trusted with these weapons. They use them
without legitimate public safety goals, they use these weapons to prove a point, they use
these weapons to silence criticism of the very practices that are being protested, they use
these weapons with an intent to inflict maximum injury, and they use these weapons to
dominate protesters, medics, and press. The Denver Police have proven, night after night,
that they cannot be trusted to use these weapons.
PLAINTIFF ALLEGATIONS
40. Plaintiff Agazi Abay is a resident of Denver and is a student and former social worker.
41. Mr. Abay attended protest rallies on Thursday, Friday, and Saturday.
42. On Thursday, Mr. Abay was tear gassed while marching. Later that evening, Mr. Abay
was again tear gassed and shot at.
43. On Friday, Mr. Abay again joined the protest rally where he again observed peaceful
protests. Over the course of the evening, more and more police arrived, lobbing tear gas
and shooting at protesters. Mr. Abay observed people being tear gassed and shot at.
44. Mr. Abay attempted to help several people who had been severely tear gassed. While
attempting to provide, Mr. Abay was targeted by police and further tear gassed. Mr. Abay,
at no time, made and move or threat towards police. Their actions were provoked by his
efforts to assist injured protesters.
45. During Mr. Abay’s tear gassing on Friday evening, he began coughing. The tear gas was
so thick and strong that he could not open his eyes. Mr. Abay struggled with these severe

13

 burning sensations and coughing for at least 15 minutes, and could not escape the
continual bombardment of tear gas from the police.
46. Mr. Abay once more attended the protest rally on Saturday. He worked to stay away from
the commotion to give himself a chance to heal from the previous two nights’ attacks. But
feeling guilty about the violence being done to other protesters, he ultimately decided to
go back in to protest and assist those being injured.
47. That evening, one things Mr. Abay observed was the police in riot gearing, hanging off of
vans, driving around shooting protesters. It was almost as if the police were playing a
game of hide and seek, only when they found someone, the shot at them. Mr. Abay never
observed the police give any oral commands.
48. Plaintiff Gabriel Thorn is a resident of Denver and is a public employee.
49. Mr. Thorn attended protest rallies on Friday and Sunday. While at the protests, Mr. Thorn
served at times as a medic. Mr. Thorn is a verteran who served in the Armed Forces.
50. On Friday, Mr. Thorn observed a largely peaceful protest. He witnessed officers from the
Denver Police Department utilize rubber bullets, tear gas, flashbang grenades, and pepper
balls. The protesters were attacked indiscriminately with these ordinances and without
regard for safety.
51. Mr. Thorn also observed police officers aiming at bodies and heads when firing rubber
bullets. Having served in the military and been trained to use rubber bullets, Mr. Thorn
was struck that these officers had not been trained to use them correctly. His training in
the military made clear that these bullets were to be aimed at the ground and never
directly at people, even in war zones.

14

 52. On Friday, Mr. Thorn was himself the victim of police violence. Mr. Thorn was struck
with pepper balls, rubber bullets, and was tear gassed multiple times. When Mr. Thorn
was struck with rubber bullets, as with many others, he was struck in the head.
Fortunately, he was wearing a helmet at that time.
53. Mr. Thorn also wore a red cross on his helmet and backpack to indicate that he was a
medic there to treat those injured. Several times while treating injured people, police
officers targeted him and shot pepper balls.
54. Mr. Thorn also observed unprovoked drivebys around 6:00 pm whereby police officers
would drive by in cruisers shooting protesters with pepper balls from the car windows.
55. Plaintiff Amy Schneider is a resident of Denver and works as a union organizer.
56. Ms. Schneider attended protest rallies on the evening of Saturday, Sunday, and Monday.
57. On Saturday afternoon, Ms. Schneider, while peacefully protesting, was struck with tear
gas, leaving her with burning eyes and throat. She could not breathe for several minutes
and believed she was dying.
58. On Sunday evening, Ms. Schneider was again peacefully protesting when Denver police
officers aimed and shot flashbang grenades at Ms. Schneider’s head.
59. On Monday evening, Ms. Schneider was once again peacefully protesting when Denver
police officers surrounded her and fellow protesters. Many protesters were teargassed, but
Ms. Schneider was thankfully not at this point and attempted to provide aide to those in
pain.
60. Ms. Schneider heard that medics were being targeted by the Denver police.

15

 61. Ms. Schneider quickly again found herself surrounded by Denver police, and which point
they began shooting her with pepper bullets. The Police never made any demand and
continued to shoot protesters who kept their hands up in the air.
62. The protesters begged the cops to be allowed to go home, but the police continued to
shoot.
63. Soon thereafter, Ms. Schneider was tackled by a police officer, without resisting.
64. She was then arrested and placed in a windowless van with other protesters. When one of
the protesters who had been gassed began having an asthma attacked, the protesters
begged the police officers to call for medical attention. Instead the police officers laughed
and said: “if you wanted to breathe, you should have stayed home tonight.”
65. Plaintiff Michael McDaniel is a resident of Denver.
66. Mr. McDaniel attended the protest rally on Saturday afternoon to serve as a medic to
attend to those injured by the police.
67. At one point, the Police excessive tear gassed a parking lot on the corner of Colfax and
Lincoln. The tear gas was so thick, that it was a cloud that could not be seen through.
68. Mr. McDaniel saw a protester crawling out on his hands and knees. The protester was
choking and could not breathe.
69. Mr. McDaniel, with his back to the police, kneeled down to treat the protester, who was
still on all fours.
70. The police then proceeded to target and shoot Mr. McDaniel and the protester with
pepper bullets.

16

 71. Thankfully, Mr. McDaniel was wearing a helmet, so when the police aimed at his head,
they did not cause any injury, other than the intense burning pain that Mr. McDaniel
experienced as a result of the pepper balls.
MUNICIPAL ALLEGATIONS
72. The City of Denver has policies and customs of violating the freedom of expression of
protesters and of using excessive force against such protesters.
73. The City of Denver has a custom or policy of deploying chemical agents and injurious,
less-lethal ballistics against protesters without provocation. Denver has a custom or
practice of targeting press, of targeting medics, and of using force for no reason other
than to show its dominance.
74. The City of Denver has failed to train its police officers on the use of chemical agents and
less-lethal ballistics. This is shown in part by the fact that officers are aiming rubber
bullets at peoples’ heads and groins when proper training would instruct that this should
never be done. Rubber bullets are to be aimed at the ground. Nonetheless, the police
continue to target heads, leading to many head and eye injuries.
75. The City of Denver has a custom or practice of targeting press and those recording police
actions. The City of Denver entered into a settlement after arresting a reporter in 2018 for
simply documenting police conduct.1 The police have either not been trained under this
settlement, or have a custom of disregarding their duties under it. Journalists continue to
be targeted2 and protesters are attacked for recording police abuse.

1

https://www.coloradoindependent.com/2019/09/10/denver-police-agree-to-first-amendment-training-insettlement-with-indy-editor-they-wrongfully-detained/
2
https://www.coloradoindependent.com/2020/06/01/denver-floyd-protests-law-enforcement-targeting-reportersphotographers/

17

 76. The City of Denver has a custom or practice of failing to provide warning and/or
dispersal orders before using chemical agents and injurious, less-lethal ballistics against
protesters, medics, and members of the media.
77. The City of Denver has a custom or practice of infringing on peoples’ right to assemble,
to protest, to express their political and other beliefs, and on the basis of their viewpoint.
CLASS ALLEGATIONS
78. Under Rules 23(a) and 23(b)(1) and (2) of the Colorado Rules of Civil Procedure,
Plaintiffs bring this action for prospective relief on behalf of themselves and other
similarly situated people who, as protesters, medics, journalists, and citizens of the State
of Colorado, will in the future observe, record, and participate in protest activity and in
public places within the city Denver in traditional or designated public fora (the “Plaintiff
Class”). The Plaintiff Class is defined as:
All protesters, who intend to engage in protest activities, to render aide to
those who have been injured, and to record the actions of police officer on duty in
public places within the city and county of Denver.
79. The Plaintiff Class is so numerous that joinder of all the members would be
impracticable. Denver protest events over the past week often number in excess of 10,000
participants.
80. As a result of the Denver’s customs and policies of targeting journalist, medics, and
protesters with less-lethal projectiles and chemical irritants without constitutionally
adequate justification or warning, with excessive force, denying them freedom of
movement to observe, record, and participate in public demonstrations, intimidation by
threats of violence, and ad infringement on their right to assemble and speak, the Plaintiff

18

 Class have been and will continue to be deprived of their constitutional rights under the
First, Fourth, and Fourteenth Amendments.
81. Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class
because Protests are ongoing and Plaintiffs and the Plaintiff Class members have a
reasonable fear that Defendants will continue to carry out their unconstitutional customs
or policies of deploying less-lethal projectiles and chemical irritants without
constitutionally adequate warning, with excessive force, denying them freedom of
movement to observe, participate, and record public demonstrations, intimidation by
threats of violence, and infringement on their right to assemble and speak.
82. Plaintiffs will fairly and adequately protect the interests the interests of the Plaintiff
Class. Plaintiffs has no conflicts involving other class members or Defendant. Plaintiffs
understand their role as a class representative and their duties to the class in this
litigation. Plaintiffs are represented by competent and skilled counsel whose interests are
fully aligned with the interests of the class.
83. Questions of law or fact are common to the class. These legal and factual questions
include but are not limited to:
a. Does the use of less-lethal weapons, as deployed by the Denver Police, infringe
on protester’s constitutional right to be free of excessive force under the Fourth
Amendment?
b. Does the use of less-lethal weapons, as deployed by the Denver Police, infringe
on protester’s constitutional right to peaceable assemble and their right to freedom
of expression and from view-point discrimination under the First Amendment?

19

 c. Has the City of Denver manifested a failure to adequately train and supervise its
officers to utilize these weapons?
d. Has the City of Denver exhibited deliberate indifference to the unconstitutional
conduct complained herein?
84. Maintaining individual actions would create a risk of “inconsistent or varying
adjudications with respect to individual class members that would establish incompatible
standards of conduct for the party opposing the class.” C.R.C.P. 23(b)(1)(A). Multiple
courts issuing multiple injunctions governing the engagement and use-of-force standards
for law enforcement would be entirely untenable. Doing so would only contribute to a
state of uncertainty and confusion that allows the constitutional violations described in
the complaint to continue.
85. This case involves “adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members not parties to
the individual adjudications.” C.R.C.P. 23(b)(1)(A). A ruling with respect to a single
Plaintiffs in this case would arguably be strong stare decisis—if not necessarily res
judicata—with respect to other putative class members and members of the law
enforcement community. There is no benefit to allowing the overwhelmingly common
issues in this case to be litigated individually. The interests of both class members and
defendants requires classwide treatment.
86. Finally, “the party opposing the class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole[.]” C.R.C.P. 23(b)(1)(A). There is no
allegation that Plaintiffs have been targeted because of anything unique to them as

20

 individuals. Rather, they have been repeatedly targeted and assaulted because of their
membership in a class protesters and medics. Plaintiffs’ targeting exists only by virtue of
a broader pattern and practice of unconstitutional conduct directed at journalists, medics,
and protesters as a class. Logically, injunctive relief for the “class as a whole” is the only
mechanism available to afford relief in light of conduct directed specifically to the class.
CAUSES OF ACTION
COUNT I:
Fourth Amendment - Excessive Force, 42 U.S.C. 1983
87. Plaintiffs and the Plaintiff Class restate and reallege all previous paragraphs of this
Complaint.
88. Plaintiff and the Plaintiff Class were seized by Defendant when its officers intentionally,
through the use of force and threat of arrest, chemical agents, and nonlethal projectiles,
terminated their freedom of movement.
89. Defendant committed these acts without forewarning and, as a result, Defendant’s acts
were objectively unreasonable and constituted unlawful seizure and excessive force.
90. Plaintiffs and the Plaintiff Class did not commit a crime.
91. Plaintiffs and the Plaintiff class did not pose a threat to any of Defendant’s officers or
agents or any other person.
92. It was Denver’s custom and policy, as well as their failure to train and supervise their
officers, and issue corrective instructions after violations were brought to light, that
caused the unlawful seizures and excessive use of force.
93. Denver’s failure to supervise and train their employees and agents with respect to the
Fourth Amendment rights of Plaintiffs and the Plaintiff Class, including a failure to

21

 investigate and discipline officers for Fourth Amendment violations, amounts to
deliberate indifference to the rights of Plaintiffs and the Plaintiff Class.
94. The pattern of similar constitutional violations against Plaintiffs and the Plaintiff Class
that occurred during the protests demonstrates the deliberate indifference of Denver to the
rights of Plaintiffs and the Plaintiff Class.
95. Further, given the pattern and practice of constitutional violations documented above, the
need for more supervision or training was so obvious, and the inadequacy of the training
and supervision so likely to result in the violation of constitutional rights, that Denver
demonstrated their deliberate indifference to the need for such training and supervision.
96. Plaintiffs’ Fourth Amendment rights were violated when they were deliberately targeted
and shot with rubber bullets, tear gas, pepper balls, flashbang grenades, and pepper spray
during the course of their lawful protests.
97. Plaintiffs and the Plaintiff Class reasonably fear further retaliation in the future in
violation of the Fourth Amendment if they continue to observe, record, or participate in
constitutionally protected activity.
COUNT II:
First Amendment - 42 U.S.C. 1983
98. Plaintiffs and the Plaintiff Class restate and reallege all previous paragraphs of this
Complaint.
99. Plaintiffs and the Plaintiff Class engaged in constitutionally protected acts of observing,
recording, and participating in events of public interest, including public demonstrations
and in expressing their political views. Plaintiffs and the Plaintiff Class will continue to
do so in the future.

22

 100.

Defendant retaliated against Plaintiffs and the Plaintiff Class for engaging in

constitutionally protected activity and for the content and viewpoint of the expressions.
Defendant’s retaliation is part of a pattern or practice of unconstitutional conduct that is
certain to continue absent any relief.
101.

Plaintiffs and the Plaintiff Class reasonably fear the continued deployment of

chemical agents without warning, unlawful seizure, and excessive force through the
firing of flash bang grenades, less-lethal projectiles, riot batons, and other means if they
continue to engage in constitutionally protected activity.
102.

These acts would chill a reasonable person from continuing to engage in a

constitutionally protected activity. These acts did, in fact, chill Plaintiffs and the Plaintiff
Class from continuing to observe and record some events of public interest and to
participate in peaceful protests.
103.

It was Defendant’s custom and policy, as well as their failure to train and

supervise their officers, and issue corrective instructions after violations were brought to
light, that caused the First Amendment retaliation.
104.

Defendant’s failure to supervise and train their employees and agents with respect

to the First Amendment rights of Plaintiff and the Plaintiff Class, amounts to deliberate
indifference to the rights of Plaintiff and the Plaintiff Class.
105.

The pattern of similar constitutional violations against Plaintiffs and the Plaintiff

Class that occurred during the protests demonstrates the deliberate indifference of the
Defendant to the rights of Plaintiffs and the Plaintiff Class.
106.

Further, given the multiple constitutional violations documented above, the need

for more supervision or training was so obvious, and the inadequacy of the training and

23

 supervision so likely to result in the violation of constitutional rights, that Defendant
demonstrated their deliberate indifference to the need for such training and supervision.
107.

Plaintiffs’ First Amendment rights were violated when they was deliberately

targeted and shot with rubber bullets, tear gas, pepper spray, pepper balls, and flashbang
grenades during the course of their protest activities.
108.

Plaintiffs and the Plaintiff Class reasonably fear further retaliation in the future if

they continue to observe, record, or participate in constitutionally protected activity.

WHEREFORE, Plaintiffs, individually and as representatives of the class defined here,
pray for relief as follows:
1. A temporary restraining order barring the City of Denver from the use of tear gas,
rubber bullets, pepper balls, pepper spray, and flashbangs.
2. A preliminary injunction barring Defendants from engaging in unconstitutional
conduct
3. A determination that this action may proceed as a class action under Rule 23(b)(1) or
23(b)(2) of the Colorado Rules of Civil Procedure;
4. Designation of Plaintiffs as Class Representatives and designation of Plaintiffs’
counsel as class counsel;
5. A declaration that Defendant’s conduct violated the First and Fourth Amendments of
the United States Constitution.
6. A permanent injunction barring Defendants from engaging in unconstitutional
7. Damages compensating Plaintiffs for their injuries, including but not limited to
compensatory, pecuniary, and medical expense damages;

24

 8. An award of prejudgment interest;
9. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
10. An award of such other and further relief as the Court deems equitable and just.
JURY DEMAND
Plaintiffs demand a trial by jury of all issues triable.

Respectfully submitted this 4th day of June, 2020.

s/ Edward Milo Schwab
Edward Milo Schwab, #47897
Ascend Counsel, LLC
3000 Lawrence Street
Denver, CO 80205
(303) 888-4408
milo@ascendcounsel.co
ATTORNEY FOR PLAINTIFFS

25