Levi Frasier v. City and County of Denver, Et. Al.
Levi Frasier v. City and County of Denver, Et. Al.
Levi Frasier v. City and County of Denver, Et. Al.
Now comes Plaintiff, Levi Frasier, by and through his attorneys, LOEVY &
LOEVY, and hereby complains of Defendants Christopher L. Evans, Charles C.
Jones, John H. Bauer, Russell Bothwell, As-yet Unidentified Denver Police Officers,
and City and County of Denver, Colorado, and states as follows:
Introduction
1.
officer Charles Jones punch an unarmed civilian numerous times in the head and
trip a heavily pregnant woman, causing her to fall to the ground. At the time of
Officer Joness punches, the civilian was already on the ground and restrained by
Officer Christopher Evans, Detective John Bauer, and Sergeant Russell Bothwell.
2.
the unarmed civilian and pregnant woman, Mr. Frasier video-recorded the officers
with his Samsung tablet.
3.
them. After the officers placed the unarmed civilian under arrest, they surrounded
Mr. Frasier, threatened him with arrest, and demanded his video.
4.
Having done nothing wrong, Mr. Frasier refused to hand over his
tablet or video.
5.
under the United States Constitution to record the police performing their official
duties in public. The First Amendment protects the right to gather, receive, record,
and disseminate information on matters of public importance relating to civil
liberties and civil rights, including the official actions of police officers in public.
7.
The officers actions also violated Mr. Frasiers right to be free from
illegal searches and seizures under the Fourth Amendment to the United States
Constitution.
8.
1983 to redress the deprivation under color of law of Plaintiffs rights as secured by
the United States Constitution, as well as to pursue certain state law claims.
Jurisdiction
9.
and 1367.
10.
judicial district, and the events giving rise to the claims asserted herein occurred in
this judicial district.
The Parties
11.
Colorado.
12.
resident of Colorado, and was and is an officer in the Denver Police Department. At
all relevant times, Defendant Evans was employed by the Denver Police
Department and was acting within the scope of his employment and under the color
of law.
13.
of Colorado, and was an officer in the Denver Police Department. Defendant Jones
is currently a sergeant in the Denver Police Department. At all relevant times,
Defendant Jones was employed by the Denver Police Department and was acting
within the scope of his employment and under the color of law.
14.
Colorado, and was and is a detective in the Denver Police Department. At all
relevant times, Defendant Bauer was employed by the Denver Police Department
and was acting within the scope of his employment and under the color of law.
15.
of Colorado, and was and is a sergeant in the Denver Police Department. At all
relevant times, Defendant Bothwell was employed by the Denver Police Department
and was acting within the scope of his employment and under the color of law.
16.
the United States, residents of Colorado, and were officers employed by the Denver
Police Department at all relevant times. These Officers were acting within the scope
of their employment and under the color of law.
17.
On the morning of August 14, 2014, Plaintiff Levi Frasier drove near
the area of West Fifth Avenue and Federal Boulevard in Denver, Colorado.
19.
Mr. Frasier saw two men forcefully pulling a Latino man out of a car in
a parking lot, and he decided to video-record it. These two men were Defendants
Bothwell and Bauer.
4
20.
Mr. Frasier parked his truck, got out, and began video-recording the
Defendants Bothwell and Bauer had the Latino man, named David
Two other Denver police officers, Defendants Evans and Jones, joined
Mr. Floress mouth. The Defendant Officers attempted to get the sock out of Mr.
Floress mouth.
24.
Bothwell, and Bauer, Defendant Jones punched Mr. Flores numerous times in the
head in an apparent attempt to force the sock out of Mr. Floress mouth. Defendant
Jones punched Mr. Flores in the head with such force that his head struck the
pavement numerous times, causing serious injury requiring him to be taken away
in an ambulance. Mr. Flores was unarmed and restrained at the time of these
actions by Defendant Jones.
25.
Guerrero, causing her to fall to the ground, even though she was heavily pregnant
and posed no threat.
27.
the Defendants and openly recorded their actions using his tablet. Mr. Frasier
posed no threat to the officers, did not interfere or attempt to interfere with the
officers actions, and did not speak to them.
28.
Mr. Frasier recorded events that were a matter of public concern, given
that they involved police officers performing their official duties in public.
29.
The Defendant Officers knew that Mr. Frasier was either recording or
photographing their use of force on Mr. Flores and Ms. Lazos-Guerrero. At one
point, Defendant Evans yelled, Camera!, while Defendant Jones was punching
Mr. Flores in the head.
30.
recording, walked over to his truck, and put his tablet safely in his truck.
Defendant Officers Threaten Plaintiff with Arrest,
Illegally Detain Him, and Illegally Seize and Search His Tablet
31.
Defendant Officers asked Mr. Frasier for the video that he had just recorded and
asked to see Mr. Frasiers identification.
32.
Mr. Frasier showed this Defendant his identification but not the video.
He was afraid that the officer wanted to erase his video, and so he told the officer
that he did not have any video. This Defendant told Mr. Frasier something to the
effect of, if you dont have the video, then you cant leave until you give a witness
statement. This Defendant opened the back door of his squad car and gestured to
the back seat, telling Mr. Frasier something to the effect of, we can do this the easy
way or the hard way.
33.
Given the excessive force that Mr. Frasier had just witnessed
Defendant Officers use on Mr. Flores and Ms. Lazos-Guerrero, he was afraid of the
Defendant Officers. He did not feel free to leave and believed he had to give a
witness statement or else he would be arrested.
34.
Frasier to answer.
35.
had not seen the Defendant Officers do anything inappropriate, even though this
was not true. He was afraid to tell the Defendant Officers that he believed they had
used excessive force. In his statement, Mr. Frasier also stated that he had only
taken a Snapchat (a photo that deletes itself after 10 seconds) of the Defendant
Officers actions and that he did not still possess any video or photo, because he did
not want the Defendant Officers to take his tablet or video.
36.
something to the effect of if its a picture, its ok; we only need the video footage.
Defendant Bauer or Rothwell then asked to see the witness statement so that he
could determine whether Mr. Frasier was free to leave.
37.
The Defendant Officers then conferred with each other. After they
conferred, they concluded that Mr. Frasier had taken video, not a photo, of their
illegal and excessive use of force on Mr. Flores and Ms. Lazos-Guerrero. The
Defendant Officers agreed with each other to detain Mr. Frasier and threaten him
until he produced the video.
38.
Unidentified Denver Police Officers surrounded Mr. Frasier in the parking lot,
interrogated him regarding the video, and threatened him with arrest if he did not
produce the video. One or more of them told him something to the effect of we know
you have that video and if you dont have it, then well just take you down to
holding. The Defendant Officers would not allow Mr. Frasier to leave.
39.
Mr. Frasier did not want the Defendant Officers to take his tablet or
erase the video, so he showed the Defendant Officers his cell phone instead.
Defendant Bauer or one of the other Defendant Officers laughed and said something
to the effect of, thats not it. This Defendant knew that Mr. Frasier had been
recording them with a device that was bigger than a cell phone.
40.
Due to the Defendant Officers threats, Mr. Frasier felt that he did not
have any choice but to retrieve his tablet from his truck.
41.
42.
tablet.
took the tablet from him without permission and searched it without permission.
Defendant Evans had no warrant or other lawful justification for seizing or
searching Mr. Frasiers tablet.
43.
Mr. Frasier could not find the video on his tablet when Defendant
Fortunately, Mr. Frasier was later able to retrieve the video on his
45.
tablet.
Frasier that they deemed satisfactory to them and unlawfully seized and searched
the tablet, they let him go.
Plaintiff Shares the Video with the Press
46.
Mr. Frasier knew that the misconduct that he witnessed on August 14,
2014 was a matter of public concern and importance. He did not, at the time, even
know the names of Mr. Flores and Ms. Lazos-Guerrero. Thus, Mr. Frasier
eventually provided a copy of his video recording to Fox31 Denver. Fox31 Denver
did an investigative report, aired the video on the news, and posted it on its website.
47.
information about the misconduct of its officers, the Denver Police Department
released a statement defending the officers behavior and unfairly attacking Mr.
Frasiers character.
48.
Upon information and belief, the Defendant City and County of Denver
(the City) has failed to discipline any of the Defendant Officers in any way for
their unreasonable and unlawful actions. In fact, the City promoted Defendant
Jones to sergeant shortly after Mr. Frasiers video was made public.
49.
testified that what I saw, again, was this potential systemic problem where officers
were permitted to use inappropriate force on the street, were not held accountable,
would lie to Internal Affairs about it and, again, were not held accountable.
50.
Mr. Rosenthal has stated that Internal Affairs was particularly weak
on force cases, too willing to accept any statement from an officer and not willing
to follow up to try to ensure whether it was truthful. He also stated that the
Denver Police Department has not established itself to be able to adequately
discipline or terminate officers who should not be police officers.
Importance of Citizen Recordings of the Police
51.
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54.
Federal, state, and local law enforcement agencies have deployed tens
fully herein.
57.
color of law and within the scope of their employment, violated Plaintiffs rights as
secured by the First Amendment of the U.S. Constitution. Plaintiffs act of recording
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the Defendant Officers constituted protected speech and expression under the First
Amendment.
58.
grounded in the Free Speech Clause of the First Amendment. This right is further
grounded in:
a.
disseminate information includes the right to audio and video record police officers
performing their duties in public.
60.
reasonable expectation that their conduct is private and will not be recorded,
published, and disseminated.
61.
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62.
policy and practice of the Defendant City in that Denver police officers regularly
intimidate, harass, and threaten witnesses who they believe are recording or
attempting to record them performing their official duties in public. This is a
widespread pattern, practice, and custom of Denver police officers.
64.
constitute de facto policy in the Denver Police Department, and it is allowed to exist
because municipal policymakers with authority over the same exhibited deliberate
indifference to the problem, thereby effectively ratifying it.
66.
the City has declined to implement sufficient training and/or any legitimate
mechanism for oversight or punishment, thereby leading officers to believe that
they could violate citizens constitutional rights with impunity.
13
67.
The policy and practice of the City are the moving force behind the
fully herein.
70.
color of law and within the scope of their employment, violated Plaintiffs rights
against unreasonable searches and seizures to his person and property as secured
by the Fourth Amendment of the U.S. Constitution.
71.
without his consent, without a warrant, without probable cause, and without any
legal justification whatsoever.
72.
or any other legally valid basis, for seizing or searching Plaintiffs tablet.
14
74.
Plaintiffs tablet.
75.
or any other legally valid basis, to believe that Plaintiff had committed or was
committing any violation of the law prior seizing and continuing to restrain his
person.
77.
of Plaintiffs person.
79.
fully herein.
15
81.
violations described herein, one or more of the Defendant Officers stood by without
intervening to prevent the violation of Plaintiffs constitutional rights, even though
they had the opportunity to do so.
82.
The Defendant Officers were acting under color of law and within the
fully herein.
85.
acting in concert with each other and other co-conspirators, known and unknown,
reached an agreement among themselves to unlawfully search and seize Plaintiffs
tablet, unlawfully seize Plaintiffs person, and retaliate against him for his
protected expressive activity under the First Amendment, thereby depriving him of
his constitutional rights.
86.
themselves and took concerted action to protect one another from liability by
depriving Plaintiff of these rights.
87.
committed overt acts and were otherwise willful participants in joint activity.
88.
The Defendant Officers were acting under color of law and within the
fully herein.
91.
wanton conduct, Plaintiffs rights under state law were violated and he suffered
damages, entitling him to compensatory damages.
17
93.
Defendant Evans was acting within the scope of his employment when
he intentionally committed such willful and wanton acts and omissions that created
an unreasonable risk of proximately causing Plaintiff damage.
94.
Timely notice of claims under the C.G.I.A. has been given by Plaintiff
with respect to the willful and wanton conduct alleged in this Complaint, which also
violates state law under C.R.S. 24-10-118 and Colorado common law.
Count VI: Colorado State Law Intentional Infliction of Emotional Distress
96.
fully herein.
97.
wanton conduct, Plaintiffs rights under state law were violated and he suffered
damages, entitling him to compensatory damages.
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99.
when they intentionally committed such willful and wanton acts and omissions that
created an unreasonable risk of proximately causing Plaintiff damage.
100.
Timely notice of claims under the C.G.I.A. has been given by Plaintiff
with respect to the willful and wanton conduct alleged in this Complaint, which also
violates state law under C.R.S. 24-10-118 and Colorado common law.
Count VII: Colorado State Law Respondeat Superior
102.
fully herein.
103.
Defendant Officers were employees and agents of the Defendant City and County of
Denver, acting at all relevant times within the scope of their employment.
104.
behavior of the Defendant Officers was calculated to facilitate and/or promote the
business for which they were employed by their employer, Defendant City and
County of Denver.
105.
Defendant City and County of Denver is liable as principal for all state
fully herein.
107.
Colorado law provides that the Defendant City and County of Denver
is directed to pay any judgment for compensatory damages for which its employees
are liable within the scope of their employment activities.
108.
County of Denver and acted within the scope of their employment at all times
relevant in committing the actions and omissions described herein.
WHEREFORE, Plaintiff, Levi Frasier, respectfully requests that this court
enter judgment in his favor and against Defendants Christopher L. Evans, Charles
C. Jones, John H. Bauer, Russell Bothwell, As-yet Unidentified Denver Police
Officers, and City and County of Denver, awarding: compensatory damages against
all Defendants; punitive damages on his federal claims against Defendant Officers;
attorneys fees and costs on all federal and state law claims as allowed by law; preand post-judgment interest at the lawful rate; and any further relief as this court
deems just and appropriate.
JURY DEMAND
Plaintiff, Levi Frasier, hereby demands a trial by jury pursuant to Federal
Rule of Civil Procedure 38(c) on all issues so triable.
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Respectfully submitted,
LEVI FRASIER
By:
Daniel M. Twetten
Elizabeth Wang
LOEVY & LOEVY
2060 Broadway, Ste. 460
Boulder, CO 80302
720.328.5642 (O)
elizabethw@loevy.com
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s/ Elizabeth Wang
One of Plaintiffs Attorneys