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DATE FILED: April 10, 2018 6:33 PM

FILING ID: B87B6DA2A0675


DISTRICT COURT CASE NUMBER: 2018CV31274
CITY AND COUNTY OF DENVER, COLORADO
Denver City & County Building
1437 Bannock Street, Room 256
Denver, CO 80202
Court telephone: (720) 865-7800
PLAINTIFFS:

ESTATE OF DION DAMON;


DAWN AGUIRRE, individually and as personal
representative of the Estate of Dion Damon;
JERRELL GERMAIN; ▲ COURT USE ONLY▲
DION AVILA;
DEION AVILA;
TERESA AVILA; and
A.A.;

v.

DEFENDANTS:

CITY AND COUNTY OF DENVER, a municipality; and


JEFFREY MOTZ, individually.

Plaintiff’s Counsel:
John R. Holland #5246 Case Number:
Anna Holland Edwards, #35811
Dan Weiss #49571 Courtroom:
Erica Grossman #39342
HOLLAND, HOLLAND EDWARDS & GROSSMAN, PC
1437 High Street
Denver, Colorado 80218
(303) 860-1331
(303) 832-6506 (Fax)
john@hheglaw.com
anna@hheglaw.com
dan@hheglaw.com
erica@hheglaw.com

Darold W. Killmer, # 16056


Mari Newman, # 30192
Andy McNulty, #50546
KILLMER, LANE & NEWMAN, LLP

1
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
(303) 571-1001 (Fax)
dkillmer@kln-law.com
mnewman@kln-law.com
amcnulty@kln-law.com

DISTRICT COURT CIVIL (CV) CASE COVER SHEET FOR INITIAL PLEADING
OF COMPLAINT, COUNTERCLAIM, CROSS-CLAIM OR THIRD PARTY
COMPLAINT

1. This cover sheet shall be filed with each pleading containing an initial claim for relief in every district
court civil (CV) case, and shall be served on all parties along with the pleading. It shall not be filed in
Domestic Relations (DR), Probate (PR), Water (CW), Juvenile (JA, JR, JD, JV), or Mental Health (MH) cases.
Failure to file this cover sheet is not a jurisdictional defect in the pleading but may result in a clerk’s show cause
order requiring its filing.

2. Check one of the following:

!This case is governed by C.R.C.P. 16.1 because:


- The case is not a class action, domestic relations case, juvenile case, mental health case, probate
case, water law case, forcible entry and detainer, C.R.C.P. 106, C.R.C.P. 120, or other similar
expedited proceeding; AND

- A monetary judgment over $100,000 is not sought by any party against any other single party.
This amount includes attorney fees, penalties, and punitive damages; it excludes interest and costs,
as well as the value of any equitable relief sought.

⌧This case is not governed by C.R.C.P. 16.1 because (check ALL boxes that apply):
!The case is a class action, domestic relations case, juvenile case, mental health case, probate
case, water law case, forcible entry and detainer, C.R.C.P. 106, C.R.C.P. 120, or other similar
expedited proceeding.

⌧A monetary judgment over $100,000 is sought by any party against any other single party.
This amount includes attorney fees, penalties, and punitive damages; it excludes interest and costs,
as well as the value of any equitable relief sought.

!Another party has previously indicated in a Case Cover Sheet that the simplified procedure
under C.R.C.P. 16.1 does not apply to the case.

NOTE: In any case to which C.R.C.P. 16.1 does not apply, the parties may elect to use the simplified procedure
by separately filing a Stipulation to be governed by the rule within 49 days of the at-issue date. See C.R.C.P.

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16.1(e). In any case to which C.R.C.P. 16.1 applies, the parties may opt out of the rule by separately filing a
Notice to Elect Exclusion (JDF 602) within 35 days of the at-issue date. See C.R.C.P. 16.1(d).
⌧A Stipulation or Notice with respect to C.R.C.P. 16.1 has been separately filed with the Court, indicating:
!C.R.C.P. 16.1 applies to this case.
⌧C.R.C.P. 16.1 does not apply to this case.
3. ⌧This party makes a Jury Demand at this time and pays the requisite fee. See C.R.C.P. 38. (Checking this
box is optional.)

Date: April 10, 2018 /s/ John Holland


Signature of Party or Attorney for Party

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DATE FILED: April 10, 2018 6:33 PM
DISTRICT COURT FILING ID: B87B6DA2A0675
CITY AND COUNTY OF DENVER, COLORADO CASE NUMBER: 2018CV31274
Denver City & County Building
1437 Bannock Street, Room 256
Denver, CO 80202
Court telephone: (720) 865-7800 ▲ COURT USE ONLY ▲

PLAINTIFFS:

ESTATE OF DION DAMON; Case Number:


DAWN AGUIRRE, individually and as personal
representative of the Estate of Dion Damon;
JERRELL GERMAIN;
DION AVILA;
DEION AVILA; Division:
TERESA AVILA; and
A.A.;
v.

DEFENDANTS:

CITY AND COUNTY OF DENVER, a municipality; and


JEFFREY MOTZ, individually.
______________________________________________
Attorneys for Plaintiffs:

John R. Holland, #5246


Anna Holland Edwards, #35811
Erica Grossman, #39342
Dan Weiss, #49571
HOLLAND, HOLLAND EDWARDS & GROSSMAN, PC
1437 High Street
Denver, CO 80218
303-860-1331
john@hheglaw.com
anna@hheglaw.com
erica@hheglaw.com
dan@hheglaw.com

Darold W. Killmer, #16056


Mari Newman, #30192
Andy McNulty, #50546
KILLMER, LANE & NEWMAN, LLP

1
1543 Champa Street, Suite 400
Denver, CO 80202
Phone: (303) 571-1000
Fax No.: (303) 571-1001
dkillmer@kln-law.com
mnewman@kln-law.com
amcnulty@kln-law.com

CIVIL RIGHTS COMPLAINT WITH REQUEST FOR TRIAL BY JURY

Plaintiffs, by and through their respective attorneys, HOLLAND, HOLLAND EDWARDS &

GROSSMAN, P.C., and KILLMER, LANE & NEWMAN, LLP complain against Defendants and

request trial by jury as follows:

I. INTRODUCTION

1. On April 12, 2016, though unarmed and parked in his vehicle doing nothing

wrong, Dion Damon was shot by Denver Police Technician Jeffrey Motz at least seven times,

killing him.

2. The use of deadly force against Mr. Dion, under the totality of the circumstances,

was grossly excessive in violation of the Fourth Amendment to the United States Constitution,

and resulted from the deliberately indifferent training, policies and customs of the City and

County of Denver (“Denver”).

3. To this day, Defendant Motz has refused to acknowledge that Mr. Damon had no

gun or any other weapon, and that he therefore killed an unarmed man.

II. JURISDICTION, VENUE, AND NOTICE

4. This action arises under the Constitution and laws of the United States, including

Article III, Section 1 of the United States Constitution, and Colorado state law and is brought

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pursuant to 42 U.S.C. § 1983 and § 1988, and Colorado law. The Jurisdiction of this Court is

invoked pursuant to C.R.S. § 13-1-124. This Court has general jurisdiction including concurrent

jurisdiction with Federal Courts over claims arising under 42 U.S.C. § 1983 and § 1988. Venue

is proper in this Court pursuant to Colo. R. Civ. P. 98(c), in that all of the events alleged herein

occurred within the City and County of Denver.

5. Timely Notice of Claims under the Colorado Governmental Immunity Act has

been given by all Plaintiffs to redress the willful and wanton wrongful death conduct alleged in

this lawsuit, which also violates state law.

III. PARTIES

6. At all times relevant hereto, the decedent, Dion Damon was a resident of the State

of Colorado and a citizen of the United States of America.

7. At all times relevant hereto, Plaintiff Dawn Aguirre was the wife of Dion Damon.

She sues individually and as the duly appointed personal representative of the Plaintiff Estate of

Dion Damon. Ms. Aguirre is a resident of the State of Colorado and a citizen of the United States

of America.

8. At all times relevant hereto, Jerrell Germain was the son of Dion Damon and is a

resident of the State of Colorado and a citizen of the United States of America.

9. At all times relevant hereto, Dion Avila was the son of Dion Damon and is a

resident of the State of Colorado and a citizen of the United States of America.

10. At all times relevant hereto, Deion Avila was the son of Dion Damon and is a

resident of the State of Colorado and a citizen of the United States of America.

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11. At all times relevant hereto, A.A. was a child of Dion Damon and is a resident of

the State of Colorado and a citizen of the United States of America. A.A. is a minor and is

therefore named only by initials.

12. At all times relevant hereto, Defendant Jeffrey Motz was a citizen of the United

States and 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 the Denver Police Department (“DPD”) as a

“Technician.” Defendant Motz is sued individually.

13. Defendant City and County of Denver, hereinafter “Denver,” is a Colorado

municipal corporation and is the legal entity responsible for itself and for the DPD.

IV. STATEMENT OF FACTS

14. On April 12, 2016, Dion Damon was shot and killed by Defendant Motz.

15. At the time of his shooting, Mr. Damon was unarmed.

16. Just before he was killed, Mr. Damon was driving in his car with his wife and

child, doing nothing threatening or criminal.

17. Denver police and other law enforcement officers suspected that Mr. Damon had

been involved in a bank robbery several weeks earlier, and were following him in his car with a

plan to arrest him.

18. At no time while officers were following Mr. Damon was there any report of him

having a gun or other weapon, or otherwise acting in any dangerous or inappropriate manner.

19. Mr. Damon’s wife, Plaintiff Dawn Aguirre, was planning to go into the City and

County Building to pay a vehicle related ticket.

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20. Mr. Damon parallel-parked his car near the Denver City and County Building on

Bannock, between 13th and 14th Avenue on the East side of Bannock. Upon parking, his wife and

son exited the vehicle.

21. The officers following Mr. Damon were members of the “Rocky Mountain Safe

Streets Taskforce,” a hyper-militarized collection of law enforcement officials from multiple law

enforcement agencies, including Denver, Jefferson County, Aurora, Arapahoe County, Adams

County, and the Federal Bureau of Investigations.

22. During the earlier tailing of Mr. Damon, Technician Jesse Rembert noted that he

could see into Mr. Damon’s car.

23. During this tailing period, which involved following Mr. Damon’s car for several

miles, multiple officers, including Defendant Motz, Technician Rick Eberharter, Lieutenant Tom

Pine, Deputy Luke Ingersoll, and Sergeant Dino Gavito, expressly discussed that they were

waiting for Ms. Aguirre and her son to get out of the car before confronting Mr. Damon.

24. Defendant Motz, Technician Eberharter, Lieutenant Pine, Deputy Ingersoll, and

Sergeant Gavito were all members of or working in conjunction with the Rocky Mountain Safe

Streets Taskforce.

25. Sergeant Gavito contacted Lieutenant Pine and advised him that they would not

make the arrest until Ms. Aguirre and her son were out of the car.

26. Deputy Ingersoll aired that Ms. Aguirre and the child had gotten out of the car.

Subsequently, a call was aired stating that it was an appropriate time to apprehend Mr. Damon,

and Defendant Motz immediately took action.

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27. Upon receiving the instruction to apprehend Mr. Damon, Defendant Motz sped

his large, unmarked Sport Utility Vehicle down Bannock Street toward Mr. Damon’s Dodge

sedan. Upon arrival at Mr. Damon’s location, Defendant Motz proceeded to ram the front of Mr.

Damon’s vehicle, violently wedging him into his parking spot and making it impossible for Mr.

Damon to escape if he were inclined to do so. Immediately after Defendant Motz rammed the

front end of Mr. Damon’s vehicle, another officer parked his SUV near the front driver’s side

door of Mr. Damon’s vehicle, further ensuring that Mr. Damon had no means of escape.

28. Mr. Damon could not, and did not try to, escape.

29. After bludgeoning Mr. Damon’s vehicle, and thereby ensuring that Mr. Damon

was pinned into the parking space and had no means of escape, Defendant Motz exited his truck

and stood, protected by his police car door on the driver’s side, pointing a gun directly at Mr.

Damon from approximately 10 feet away. Defendant Motz had a clear view of Mr. Damon

through Mr. Damon’s front windshield.

30. Nearly simultaneously to Defendant Motz’s exit of his vehicle, multiple other

officers exited their vehicles and pointed their guns at Mr. Damon. One of these officers was

Technician Eberharter, who had been riding in Defendant Motz’s vehicle as he rammed Mr.

Damon’s vehicle.

31. Technician Eberharter was initially side-by-side with Defendant Motz and had a

similar direct view of Mr. Damon. Technician Eberharter did not report seeing (1) a gun, (2)

anything resembling a gun, (3) Mr. Damon moving his hands below the dash, or (4) Mr. Damon

making any threatening movements or gestures.

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32. Seeing that Mr. Damon was boxed in with no escape and posed no threat,

Technician Eberharter left Defendant Motz’s side, turned his back to Mr. Damon, and went to

retrieve a less-than-lethal weapon to aid in Mr. Damon’s apprehension.

33. Other technicians, including Fred Jones and Jesse Rembert, stayed with or near

Defendant Motz during the entire encounter from the side and front of the car, and together were

all continuously aiming guns at Mr. Damon through both the driver side window and front

windshield. None of these other officers observed anything during this entire encounter with Mr.

Damon that would have warranted the use of deadly force against him and did not shoot.

34. Officers on-scene had been following Mr. Damon’s car and presumably chose

tactical positions that would allow them to provide meaningful cover during this high noon broad

daylight encounter, see and handle any potential threat posed by Mr. Damon.

35. Multiple officers, in addition to Technician Eberharter, also went to retrieve less-

than-lethal weapons, demonstrating that they were not concerned under the circumstances about

any immediate risk to life that Mr. Damon may have posed to the officers or the public.

36. Obtaining less-than-lethal weapons and tools shows that officers were so

unconcerned by Mr. Damon’s behavior that a reasonable officer would not fear for his safety at

that moment.

37. After Ms. Aguirre and her child had gotten out of the car and were walking to the

City and County Building to pay the ticket, she saw the multiple vehicles surround and ram Mr.

Damon’s car, and the immediate and dynamic arrival of multiple law enforcement personnel, so

she immediately returned to the vicinity of the car.

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38. During the entirety of the encounter between Defendant Motz and Mr. Damon,

Ms. Aguirre was standing nearby. She continuously yelled loudly and repeatedly that her

husband was unarmed, and that if they let her talk with him, he would readily get out of the

vehicle.

39. Ms. Aguirre stated in an interview immediately following the shooting that she

repeatedly told the officers, including Defendant Motz, that her husband “wasn’t armed.” She

told officers that she “said, please let me talk to him. He’ll get out of the car.” She also stated in

that same interview that she repeatedly told the officers, “[j]ust let me talk to him [and d]on’t

shoot he will come out.”

40. Technician Rembert, who was approximately as close to Ms. Aguirre as

Defendant Motz was, later reported that that he heard Ms. Aguirre yelling during the encounter

and that he could clearly hear what she was saying.

41. Defendant Motz admits hearing Ms. Aguirre shouting and also that he heard

somebody telling her to get back.

42. Another officer on-scene, Technician Mark Garcia, prevented Ms. Aguirre from

assisting the police in negotiating an end to this encounter without bloodshed.

43. Fletcher Berryman, a close bystander eyewitness, also reported to the police that

he heard some of these statements by Ms. Aguirre.

44. Mr. Berryman reported hearing Ms. Aguirre clearly say: “He’s unarmed, he’s

unarmed, please talk to him, don’t shoot, please talk to him, he’s unarmed.”

45. Mr. Berryman, who was farther from Mr. Damon than Defendant Motz was, also

heard Mr. Damon tell the officers on scene: “I’m unarmed.”

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46. Defendant Motz reportedly gave commands for Mr. Damon to show him his

hands. When Mr. Damon raised his hands as ordered, Defendant Motz shot Mr. Damon six or

seven times, killing him.

47. Ms. Aguirre watched her husband’s death from approximately twenty feet away.

48. No other officer shot his gun at Mr. Damon, only Defendant Motz.

49. Defendant Motz shot and killed Mr. Damon, who was cornered and defenseless.

Defendant Motz did this after pointing his gun at Mr. Damon, and no doubt terrorizing him, for

almost a minute.

50. Mr. Damon was neither armed nor threatening at any time during the encounter.

51. At the time he was shot and killed, Mr. Damon, to Defendant Motz’s conscious

awareness under Graham, was also not a flight risk. Mr. Damon was completely wedged in to

his parking spot by Defendant Motz (and the other officers’ SUVs), had no ability to flee, was

not then in any way attempting to flee, was not resisting arrest or threatening Defendant Motz or

anyone else, and was complying with Defendant Motz’s instruction to show his unarmed hands.

52. Defendant Motz admits knowing that Mr. Damon had no avenue of escape at the

time he killed him (with not one, but two hails of bullets from close range).

53. More particularly, Defendant Motz has admitted that because the red vehicle

parked behind Mr. Damon “was there blocking him” and Defendant Motz had used his vehicle to

“ride him back” towards the red vehicle, “there was nowhere for him [Mr. Damon] to go”.

54. On this exact point about his conscious awareness of the complete inability of Mr.

Damon to flee, Defendant Motz stated definitively that Dion Damon “realized there was nowhere

to go.”

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55. At the time he was shot, Mr. Damon’s vehicle was in park as was clearly shown

by a police photo taken immediately after Mr. Damon’s death with him still in the car.

56. A search of Mr. Damon’s car confirmed that he did not have a gun or point a gun

at Defendant Motz or anyone else. He had no weapons at all.

57. Evidencing that Defendant Motz did not have a basis to believe that Mr. Damon

had a gun, Defendant Motz did not ever yell out that Mr. Damon had a gun to protect other

officers or the public as he is trained to do and as is standard operating protocol within the DPD.

58. Further evidencing the fact that Defendant Motz then knew Mr. Damon was

unarmed, Defendant Motz also did not warn other officers about any gun after the shooting,

when other officers were entering Mr. Damon’s vehicle. Officer Motz failed to warn any other

officer that Mr. Damon purportedly had a gun even though he was uncertain whether Mr. Damon

was still alive or posed any threat.

59. It is standard and widely accepted police practice to yell “gun!” when it is first

seen and also to warn other officers that a suspect may have a gun before they approach his

vehicle.

60. In one of Defendant Motz’s prior shootings, discussed in greater detail below,

Defendant Motz followed this very practice himself in telling officers in the area during the

shooting of Shaun Gilman that he suspected a gun, stating in an interview after the shooting that:

“I related that it looked like a gun. I didn’t get on the air and say it, I just said it to the officers

near me.” Mr. Gilman, who was shot and killed by several officers (including Defendant Motz)

did not have a gun in that case, either.

61. Had Defendant Motz seen a gun, he obviously should have informed the officers

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approaching the vehicle.

62. But, instead, Defendant Motz didn’t make any mention of Mr. Damon having a

gun, and none of the other officers recalled hearing Defendant Motz state that Mr. Damon was

armed, at any time, in their post-incident reports and interviews.

63. Indeed, until Defendant Motz was interviewed several hours later (after an

opportunity for deliberation and after multiple meetings with a lawyer), at approximately 5:05

p.m., no one made any statements indicating that they were aware of a firearm at the scene. At

that interview, Defendant Motz asserted that Mr. Damon pointed a gun at him, which was false.

64. During this entire encounter multiple officers were very close to the car but,

despite being in various positions to see the events unfold from multiple perspectives, none of

these other officers on the scene reported seeing a gun or warned others of a gun.

65. Even Technician Eberharter who, for a significant period of time, enjoyed the

same vantage point of Mr. Damon as Defendant Motz, at no point reported seeing Mr. Damon

with a gun or anything resembling a gun.

66. Officers approached Mr. Damon’s car after the shooting and were also able to see

in through the passenger window before they opened the door. No officer reported seeing a gun,

or anything resembling a gun.

67. Directly after the shooting, the following officers, who were either on the scene at

the time of the shooting or covered or investigated the scene with weapons drawn or pointed at

Dion Damon, submitted written statements that include no reference to seeing a gun, or hearing

or learning of a warning of a gun on the scene by Defendant Motz:

a) Tech. David Albi;


b) Tech. Andrew Axford;

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c) Det. David Belue;
d) Ofc. David Briggs;
e) Det. Jeff Britegam;
f) Ofc. Michael L. Daniels;
g) Ofc. Mandy C. Davis;
h) Det. Mark Donovan;
i) Ofc. Bradley French;
j) Ofc. Susan L. Gann;
k) Tech. Mark Garcia;
l) Sgt. Dino Gavito;
m) Tech. Ryan Grothe;
n) Ofc. Chris Gruenther;
o) Ofc. J. Guagliardo;
p) Ofc. Kimberly P. Hamel;
q) Tech. Vince Matthews;
r) Tech. Chris Parton;
s) Ofc. Jean Sharla;
t) Sgt. Perry Speelman;
u) Ofc. Gavin Whitman;
v) Ofc. Barry Wood;
w) Ofc. Randy Yoder.

68. Additionally, the following involved officers were video interviewed by

investigators after Defendant Motz shot and killed Mr. Damon and likewise made no mention in

their video interviews (or in summaries provided about their interviews) of seeing or learning

about a gun on scene, that Defendant Motz had reported the presence of a gun at any time, and

some lied about not being able to see Mr. Damon at the moment of shooting:

a) Tech. Joshua Bollwahn;


b) Tech. Rick Eberharter;
c) Special Agent Russell Humphrey;
d) Tech. Luke Ingersol;
e) Tech. Fred Jones;
f) Tech. Craig Moen;
g) Lt. Tom Pine;
h) Tech. Jesse Rembert.

69. Had Defendant Motz actually seen a gun, his failure to report it would have

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placed the lives of every one of the above-named officers in jeopardy.

70. Of course, Defendant Motz did not actually see a gun, since there was no gun in

the car.

71. Importantly, prior to Defendant Motz’s interview, which occurred approximately

five (5) hours after the shooting, there is no evidence that Defendant Motz told anyone that Mr.

Damon had a gun or that Mr. Damon had pointed a gun at Defendant Motz before Defendant

Motz shot Mr. Damon.

72. Nevertheless, Defendant Motz falsely stated during the investigatory interview

that he “[saw] a black and silver colored semi auto in his right hand. And it’s starting to come

toward me.”

73. Defendant Motz did not mistakenly believe he saw a gun. That assertion was

fabricated after the shooting, in an attempt to make it appear that the use of deadly force was

justified, when it was not.

74. Within seconds after the shooting, the on-scene officers searched Mr. Damon’s

vehicle and no gun was found.

75. Defendant Motz was present during this initial search of Mr. Damon’s vehicle and

knew that no gun or other weapon was recovered.

76. Notably, Defendant Motz remained on the scene for a significant period of time,

at least 10 minutes and possibly longer, after the shooting and learned that others now knew what

he already knew, i.e., that Mr. Damon was unarmed.

77. During this time, Defendant Motz says he remained on-scene and “covered” the

now-dead Mr. Damon. Mr. Damon’s vehicle was searched another time prior to Motz’s

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investigatory interview, by Detective Lopez, at approximately 3:00 p.m., at the request of

Assistant Chief District Attorney (“DA”) Doug Jackson.

78. Detective Lopez searched the immediate area inside Mr. Damon’s vehicle

pursuant to this request.

79. Detective Lopez reported to Assistant Chief DA Doug Jackson that he “did not

find any weapons” during his search of the vehicle at that time.

80. Additional subsequent searches also found no gun.

81. Despite actual express knowledge that no gun was in the vehicle where Mr. Dion

was killed, in a sworn affidavit for a search warrant, Detective Kari Johnson falsely swore at

6:29 p.m. on April 12, 2016 to a Denver County Court judge that a black and silver semi-

automatic handgun had been pointed by Mr. Damon at Defendant Motz just before he killed him.

82. This was worded in relevant part as follows in this affidavit:

83. Within this same affidavit, Detective Johnson swore to the Court that this

affidavit had been specifically reviewed and approved by Senior Chief Deputy DA Jackson. In

expressly reviewing and approving this affidavit, Senior Chief Deputy DA Jackson knew that

Mr. Damon was unarmed and had known that Mr. Damon was unarmed for hours. Neither

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Detective Johnson nor Senior Chief DA Jackson informed the judge that there was, in fact, no

gun pointed at Defendant Motz, even though they both knew it.

The Cover-Up

84. Defendant Motz’s fabricated post-hoc justification for shooting an unarmed man

was jointly endorsed and amplified in a concerted cover-up effort by the involved officers, the

DPD, DPD investigators (including Internal Affairs), counsel for the Denver Police Protective

Association (DPPA), and two of the highest officials in the Denver DA’s office.

85. All of these willful participants in this joint activity went immediately into

overdrive concocting, fabricating, and manufacturing evidence and explanations expressly

designed to exonerate Defendant Motz and DPD, cover up, and even blame the unarmed Mr.

Damon for causing his own death.

86. This joint activity included many overt acts in furtherance of the conspiracy to

cover up the facts of the killing of Mr. Damon, including creating and/or manufacturing

preposterous and knowingly fictitious evidentiary reconstructions and baseless witness

statements, as shown hereafter.

87. Knowing that he had just shot at Mr. Damon seven times, Mr. Damon was

unarmed, and no weapon was found anywhere in Mr. Damon’s vehicle, Defendant Motz met

repeatedly with DPPA counsel, Sean Olson, prior to his investigatory interview.

88. Mr. Olson met not only with Defendant Motz, but also met and questioned

multiple other material police witnesses, as their counsel.

89. The following list details when Mr. Olson met with the Technicians on April 12,

2016 prior to Defendant Motz’s interview, and also when the Technicians began their interviews

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with police investigators:

13:23-13:47 – Mr. Olson met with Defendant Motz for 24 minutes;

13:50-14:05 – Mr. Olson met with Technician Eberharter for 15 minutes;

14:30-14:32 – Mr. Olson again met with Defendant Motz for 2 minutes;

14:32-14:34 – Mr. Olson met with Technician Moen for 2 minutes;

14:40-14:50 – Mr. Olson met with Technician Jones for 10 minutes;

14:45-15:15 – Mr. Olson met with Technician Rembert for 30 minutes;

15:00-15:10 – Mr. Olson met with Lieutenant Pine for 10 minutes;

15:02 – Technician Eberharter’s official interview began;

15:11 – Technician Moen’s official interview began;

15:23 – Technician Rembert’s official interview began;

16:00-16:05 – Mr. Olson again met with Defendant Motz for 5 minutes;

16:30 – Technician Jones’ official interview began;

16:30 – Lieutenant Pine’s official interview began;

17:05-18:05 – Defendant Motz’s official interview began, with Mr. Olson present.

90. These multiple meetings with various witnesses to the events, and then the

multiple meetings with Defendant Motz himself, gave Mr. Olsen the opportunity to update and

advise Defendant Motz about the other officers’ statements in their multiple meetings, and an

opportunity for Defendant Motz to devise a narrative that might appear to justify the killing of an

unarmed and non-threatening man.

91. These meetings, and the time they spent earlier at the scene before they were

directed to return to the station, also provided ample occasion for the other Technicians (and

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Lieutenant), supervising investigators like Detective Troy Bisgard and the DA to understand

what Defendant Motz intended to say in his interview so that no contradictory statements would

be made or obtained.

92. Thus, some officers who were very close to this entire interaction claim in their

interviews or statements to have stopped watching the scene at the critical moments where

Defendant Motz claims to have seen a gun. Even the officers who were pointing guns at Mr.

Damon through his driver side window for a substantial period of time up to the shooting claim

that they were not watching Mr. Damon’s movements.

93. Among the officers present, based upon records provided pursuant to a Colorado

Criminal Justice Records request, Mr. Olson only met with the Rocky Mountain Safe Streets

Taskforce Technicians who were in close physical proximity to Mr. Damon’s vehicle at the time

of shooting—those who might have been able to confirm or dispute Defendant Motz’s fabricated

statement that Mr. Damon threatened him with a gun—and with Defendant Motz’s superior

officer.

94. When he was finally interviewed, Defendant Motz falsely stated to police

investigators, as part of the organized cover-up that occurred here, not that he mistakenly thought

Mr. Damon had a gun, but that: (1) he saw an actual gun, (2) recognized the type of semi-

automatic gun it was, and (3) saw Mr. Damon thrust that black and silver gun forward at him

while in his right hand.

95. In his own words, Defendant Motz stated the following lie:

And I see a black and silver colored semi-auto in his right hand. And it is starting
to come toward me.

96. However, within this very same interview, Defendant Motz blatantly contradicts

17
his statement that the gun was coming toward him in Mr. Damon’s right hand only. Defendant

Motz does this by repeatedly demonstrating that Mr. Damon was holding the fabricated gun in

both hands.

97. Thus, the following screen shot taken from Defendant Motz’s video interview

shows him demonstrating and claiming that the fictitious gun was not pointed at him while solely

in the thrust out right hand of Mr. Damon as he stated, but rather was pointed at him while Mr.

Damon was simultaneously holding it in both hands:

98. Defendant Motz was not even questioned about this blatant contradiction by his

co-conspirators who were endeavoring to help him cover up his unjustifiable shooting of an

unarmed man.

99. Likewise, Defendant Motz was not even asked by his interviewers, or by

Assistant DA Jackson or DA Morrissey, to discuss what was already known by all of them: that

there was no gun in the car at the time of the killing.

18
100. In other words, confronted with indisputable evidence that Motz’s narrative and

his entire justification for shooting and killing Mr. Damon (i.e., that Mr. Damon pointed a gun at

him) was in fact false, nobody interrogated or challenged Defendant Motz as to how he might

explain the story which was now known to be false.

101. Having shot and killed Mr. Damon, causing him to slump over, Defendant Motz

claimed he thought Mr. Damon was “ducking underneath the dashboard to be able to shoot

through the windshield right at me. So, I continued firing and fired several more shots. He

stopped moving altogether and I stopped shooting.”

102. Of course, if Defendant Motz actually thought Mr. Damon was purposefully

ducking down so as to stay alive and shoot officers, it would have been even more imperative to

yell out that he saw a gun as other officers approached the vehicle, but he did not do so.

103. Despite police practices, which would dictate that at least some officers remain in

position to see the movements of a suspect like Mr. Damon and provide cover, the on-scene

officers claim in their statements (which were made after meeting with Mr. Olson) to have not

been in a position to see what Mr. Damon did or had, even those who pointed guns at Mr.

Damon right up to the shooting.

104. Further statements made by other officers who were all in a position to see Mr.

Damon, and in the immediate area, report that they were not focused on Mr. Damon at the time

of the shooting because they were busy getting less-than-lethal weapons to aid in detaining Mr.

Damon.

105. The fact that the most directly involved officers went to get less-than-lethal

weapons at the time that Defendant Motz shot and killed Mr. Damon evidences that the other on-

19
scene officers lacked any concern that Mr. Damon posed an imminent danger. These self-

reported actions provide additional powerful evidence of the on-scene officers’ (including

Defendant Motz’s) conscious awareness that Mr. Damon was then unarmed and not a threat to

shoot anyone.

106. Further, it would violate basic police procedures for no one to stay in a position of

cover to protect Defendant Motz, and it strains credulity that none of them report they could see

Mr. Damon besides Defendant Motz.

107. In their zeal to obtain statements supportive of Defendant Motz, involved

investigators lost or destroyed the recorded interview of Ms. Aguirre, who had one of the best

views of many of the events surrounding the shooting.

108. Defendants’ (and their co-conspirators’) elaborate cover-up also included bogus

accident reconstructions, and fictitious and deliberately manufactured comparison “evidence”

designed to support a conclusion that Defendant Motz’s false assertion that he “saw a gun”

should be believed.

109. Mr. Damon’s phone was not black and silver like the semi-automatic gun

Defendant Motz invented in his investigatory interview, but rather white.

110. In a concerted effort to find an object in Mr. Damon’s vehicle that could plausibly

be compared to a firearm, and thus exonerate Defendant Motz, the co-conspirators not named as

defendants herein, led by DPD Detective and lead investigator Troy Bisgard, fabricated a bizarre

and unscientific (and inaccurate) visual comparison of Mr. Damon’s white cell phone to a black

and silver handgun, in an effort to make the cell phone look like the described handgun.

20
111. As with the rest of the police investigation of Defendant Motz’s killing of Mr.

Damon, this comparison was not designed to assist investigators in determining the truth, but

instead was designed to produce the factual conclusion that they wanted (that the white phone

looked like a black and silver gun), exonerating Defendant Motz and DPD from any

accountability for killing an unarmed man who presented no threat to anyone’s safety under the

circumstances of the event.

112. It also appears that Defendant Motz may have originated this theory himself when

he changed his account of what happened, from initially swearing Mr. Damon thrust his right

hand out with a gun pointed at him to later demonstrating in the video interview as a two-handed

thrust. He likely did this to get rid of much of the white phone that would have been highly

visible to him from 10 feet if it was only being pointed at him with the right hand and showing

the camera lens.

113. The result of this cover-up is the implausible “comparison” between the gun Mr.

Damon did not have in his hand and his cell phone, which was found under Mr. Damon’s seat.

The DPD investigative files reveals the following “evidence” fabricated by DPD to try to support

the conclusion that the phone looks like a gun:

21
114. In order to accomplish the supposed matching of the camera on Mr. Damon’s cell

phone to the shape and size of a 9mm handgun, police investigators radically distorted the shape

and scale of the camera on the telephone, and likely distorted the features of the picture of the

gun in order to conform to the look of the distorted picture of the phone.

115. As any layman could see with the naked eye, the above DPD comparison uses an

image of the phone that is far larger in proportion to the image of the gun than an actual phone

would appear in proportion to an actual gun barrel.

116. Had the police investigators distorted and resized a picture of the entire phone in

the same proportion as they used to resize the image of the camera lens alone, the resulting

image of the entire phone would be approximately 6.8 times as long as the above gun image is

tall and 4.9 times as wide as the gun image.

22
117. The DPD comparison neglects to provide a scale or any information about the

model of Sig Sauer pistol used in the comparison, rendering it wholly unscientific and useless as

an investigative mechanism for determining whether or not Defendant Motz could have mistaken

the phone for a gun.

118. Nonetheless, both the police investigators and the District Attorney’s office

significantly relied upon the fabricated comparison in their decision not to charge Defendant

Motz with any crime (or to otherwise discipline or hold him accountable) for his killing of an

unarmed man. Ultimately, DA Mitch Morrissey relied on this obviously distorted white-phone-

to-black-gun comparison to conclude: “Damon was the cause of the lethal outcome because he

made the sudden threatening gesture pretending to point a gun at Motz.”

119. The police investigators manufacturing this evidence did not so much as mention

that they had radically altered the relative sizes of the of the phone and the gun in this

comparison.

120. Beyond the absurd resizing of the phone camera, the DPD investigators’

comparison deprived both the gun muzzle and the phone of the relevant context of the objects of

which they are constituent parts—the rest of the gun and the rest of the white phone.

121. Had Defendant Motz actually seen the phone camera lens pointed towards him in

Mr. Damon’s right hand where he swore it was, he would have necessarily seen the back of Dion

Damon’s phone, a white rectangle that bears not even the most passing similarity to a semi-

automatic pistol.

122. Additionally, the DPD comparison uses an image of Mr. Damon’s phone that is

covered in his blood, masking the bright white color that would make the phone easily and

23
obviously distinguishable from a black handgun. Since the police investigators had Mr. Damon’s

phone, they could easily have determined the phone model and used a picture of a clean phone

instead, but purposefully elected not to do so because their true objective was to generate

evidence supportive of Defendant Motz’s false narrative that Mr. Damon pointed a gun at him.

123. The pointed phone story was thus jointly manufactured and relentlessly pursued

by Defendant Motz and his co-conspirators immediately upon learning that Mr. Damon was

unarmed, but had been shot at seven times.

124. Additional overt acts in furtherance of the conspiracy to use anything to support a

defense of Defendant Motz, DA Morrissey concluded that “there is physical evidence that

supports Motz’s description and demonstration of Damon’s gesture” and that the wound paths

and glass abrasions found on autopsy “strongly support[] Motz’s credibility and the accuracy of

his description of Damon’s gesture.”

125. Of course, DA Morrissey utterly fails to discuss the fact that Defendant Motz’s

description of Mr. Damon’s gesture changed significantly during his interview, from saying

initially that Mr. Damon used his right hand to thrust something towards him to then saying that

Mr. Damon used both hands to point something like a gun. DA Morrissey omitted any discussion

of Defendant Motz’s contradictory descriptions of Mr. Damon’s gesture in his conclusion that

Defendant Motz was credible.

126. The bullet wounds and glass abrasions found in the autopsy do not “strongly”

support Mr. Motz’s various versions. These circumstances support a variety of different

conclusions, some of which inculpate Defendant Motz as having used excessive force.

24
127. In fact, the autopsy’s findings support that Mr. Damon was surrendering as

ordered. The autopsy’s findings are entirely consistent with Mr. Damon showing Defendant

Motz his hands as ordered, placing his hands on the wheel or preparing to exit the car, raising his

arms in front of his face after Defendant Motz’s gunfire commenced, being hit in his arm as he

was collapsing from prior bullets, or other entirely benign explanations for why the bullets struck

Mr. Damon the way that they did. Although each of those conclusions is as likely or more likely

than the supposition that Mr. Damon was “pretending” to point a gun at Motz although he had

only a phone, DPD investigators and DA Morrissey pre-decided to accept the most implausible

theory that best supported Defendant Motz’s innocence.

128. Similarly, DA Morrissey relies upon “blood patterns on the cell phone” to place

the phone in Mr. Damon’s hand at the time of the shooting. Though DA Morrissey states that

these blood patterns “suggest” that Mr. Damon may have been holding a phone, he immediately

acknowledges “this is not known conclusively.” DA Morrissey’s assertion as to what the

evidence “suggests” was another effort to give credence to Defendant Motz’s implausible

narrative that Mr. Damon was “pretending” to shoot Defendant Motz when he was unarmed.

129. In fact, the blood patterns on Mr. Damon’s hand do not “suggest” any conclusion

related to the cell phone at all.

130. Detective Lopez, who attended the autopsy, claims to have observed a “a large

area of void where no blood was present” in the palm of Mr. Damon’s right hand, along with

blood patterns that included “linear lines.” Based on this information, Detective Lopez claims to

have determined that the cell phone was “consistent” with having caused the blood pattern.

25
131. No indication exists within the DPD investigative files as to what (if any)

expertise or experience Detective Lopez has regarding blood pattern analyses as applicable to

firearm possession and handprint or fingerprint analysis.

132. However, Detective Lopez’s assertion of the phone’s condition being “consistent”

with this pattern in no way implies that the phone actually was present in Mr. Damon’s hand; any

number of items might have been “consistent” with the pattern, and Detective Lopez did not

report that the phone was the only object that could be consistent with the pattern. The actual

information provided by Detective Lopez amounted to a report only that he could not disprove

the phone’s presence in Mr. Damon’s hand, not that there was a phone in Mr. Damon’s hand.

Nonetheless, DA Morrissey saw fit to rely upon this admittedly unreliable and incomplete

information in his exoneration of Defendant Motz.

133. Defendant Motz and the other willful participants in this joint activity have

manufactured a baseless “suicide-by-cop” theory to cover up this homicide.

134. In his interview, Technician Moen was asked why the Rocky Mountain Safe

Streets Taskforce used Metro SWAT to arrest people and responded: “Some of these guys claim

they won’t go back to prison, or won’t go to prison, and it’s safer to use us.”

135. Indeed, DPD and DA Morrissey pursued this concoction and jointly developed a

witness who they suggest knew Mr. Damon would do this.

136. To create superficial support for the manifestly implausible theory that Mr.

Damon was pretending to point a gun at Defendant Motz and that Mr. Damon thereby

purposefully caused his own death, DA Morrisey strained to contort this manufactured “suicide

by cop” evidence and expressly included it in his decision letter, speculating:

26
Perhaps Damon was acting on a wish for “suicide by cop”. This theory was by a
witness who said he knew Damon and who said Damon had previously stated that
“he would rather die than go back to prison,” and that if the police swarmed his
house he would “off himself” or have a shootout. He suggested that if Damon was
unarmed, he would point his cell phone like it was a gun.

137. The resulting story, that Mr. Damon pretended his phone was a gun and pointed it

at an officer, so he could get himself killed and commit suicide while his wife and child were

going to pay a vehicle related ticket, is absurd and implausible, but was accepted uncritically by

the DPD and the District Attorney to exonerate Defendant Motz from culpability.

138. DA Morrisey, whose actual responsibility was to seek justice, and to evaluate

whether charges should be brought or could be proven beyond a reasonable doubt against

Defendant Motz, strained as a willful participant in this joint cover-up activity to make

intentionally biased findings of fact that Mr. Damon caused his own death by pretending to have

a gun which he thrust toward Defendant Motz.

139. DA Morrissey wrote this in his decision letter:

Damon was the cause of the lethal outcome because he made the sudden
threatening gesture pretending to point a gun at Motz. Why he did this cannot be
known. But considering the tense circumstances facing Motz, it is clearly
understandable and reasonable that he believed Damon was making a move to
shoot him and was armed with a gun.

(emphasis added)

140. There is absolutely no credible evidence that Mr. Damon pretended his phone was

a gun so he could induce the police to shoot him.

141. Not a single police or lay witness corroborates seeing such a gun or the pointing

of anything at Defendant Motz. In contrast, multiple witnesses heard Ms. Aguirre screaming that

Mr. Damon was unarmed and she could get him to come out of the car if given the opportunity.

27
142. All of this activity was part of a carefully orchestrated intentional cover up

designed to absolve Defendant Motz and the DPD and the Safe Streets Task Force of any blame

for killing an unarmed man who did not pose a threat to flee or to harm anyone.

143. Despite many officers, including Defendant Motz, all being consciously aware

from just seconds after the shooting that Mr. Damon did not have a gun, the DPD, through a

spokesperson, purposefully withheld from their initial report to the public, as reported by the

Denver Post, that Mr. Damon was unarmed.

Defendant Motz’s History of Shooting and Killing People

144. Defendant Motz has a history of shooting and killing people while working for

the DPD.

145. In at least one other of these shootings, the killing of Mr. Shaun Gilman,

Defendant Motz also claimed there was a gun when there was no gun.

146. In the case of Mr. Gilman, as here, Defendant Motz conjured a gun in his

justification for shooting Mr. Gilman with his 12-gauge shotgun, because he thought that would

be the best way to defend his decision to shoot and kill Mr. Gilman.

147. Defendant Motz claimed in the subsequent investigation that he shot and killed

Shaun Gilman with his shotgun because he “heard shots from” Gilman’s car that were “directed

towards the officers.”

148. This was, of course, impossible; he did not hear such shots from Gilman’s car,

because no shots were fired from Gilman’s car, because Mr. Gilman, like Mr. Damon, had no

gun.

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149. Even though the express justification used by Defendant Motz for shooting

Gilman was known to be false (i.e., the investigation confirmed that no shots came from

Gilman’s car, and that he did not have a gun), both DPD and the District Attorney accepted

Defendant Motz’s explanation for his conduct.

150. More particularly, Denver’s investigation expressly documented the following

about Defendant Motz:

Officer Motz stated that he could see that the suspect had turned around inside the
vehicle in such a manner as he was facing toward officers. He then heard shots
from the vehicle that were directed towards the officers. At that point, Officer
Motz then fired at the suspect.

151. Defendant Motz also reported that he saw Mr. Gilman’s gun. Again, Mr. Gilman

was unarmed.

152. Defendant Motz also shot and killed Johnny Montoya in January 2013. In that

incident, one of Defendant Motz’s co-officers shot in the back another man, Michael Valdez, an

unarmed and innocent man who was lying on the ground. The District Attorney failed to bring

charges against any of the officers involved, and disciplinary action was not taken against any of

the law enforcement personnel. Indeed, the officer that shot Mr. Valdez in the back (Robert

Motyka) was rewarded with special commendations. That event is the subject of pending

litigation in this Court, Michael Valdex v. Derrick, et al., 15-CV-00109-RPM (D. Colo.).

153. Denver has still not disciplined or even further trained Defendant Motz, despite

the known fact that his being able to know when a person is armed with a gun and threatening to

shoot or shooting is a central skill set for police who are routinely deployed as part of SWAT

teams to address recurring situations of potential violence or to perform sniper services for

Denver, something Defendant Motz reportedly now does.

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154. Instead of being disciplined or retrained, Defendant Motz was given an award for

his part in the shooting of Mr. Gilman.

155. Mr. Damon is at least the third person Defendant Motz has killed while in his role

as a Denver policeman and at least the second person he has killed who he claimed had a gun but

was unarmed.

The DA’s decision not to prosecute anyone for killing Mr. Damon is evidence of Denver’s
systematic failure to hold law enforcement officers accountable for violating the law.

156. Former Denver DA Mitchell R. Morrissey formally chose not to criminally

prosecute anyone for the killing of Mr. Damon. The DA’s analysis supporting this decision was

demonstratively biased in favor of the involved law enforcement officers. The decision is

emblematic of Denver’s longstanding refusal to effectively, fairly, and objectively police its own

law enforcement officers.

157. DA Morrissey’s August 11, 2016 decision statement opens with a description of a

previous crime for which Mr. Damon was never tried or convicted that occurred weeks before

Defendant Motz shot and killed Mr. Damon. The investigation in that case, a bank robbery,

remains open to this very day according to Denver records custodian Mary Dulacki, who has

refused to provide Denver’s records based on this criminal investigation reportedly still being

open over two years after the crime.

158. Nonetheless, Morrissey begins his analysis with this a description of Mr. Damon

as a bank robber apparently in an effort to paint Mr. Damon as deserving of death at the hands of

Defendant Motz.

159. In a blatant effort to misdirect the public and paint Mr. Damon as a criminal

deserving of the ultimate penalty under the law, DA Morrissey also states that Mr. Damon was a

30
“known GKI gang member in Denver.” This statement is entirely irrelevant to the calculus of

whether or not Defendant Motz should have been charged and is unsubstantiated by any

evidence in the record before DA Morrissey.

160. It is an especially irrelevant detail, given that Defendant Motz was not aware of

any alleged connection between Mr. Damon and GKI, and it therefore could not have contributed

to his decision to shoot Mr. Damon.

161. Defendant Motz makes no mention of GKI or any gang in his interview given

several hours after the shooting, and actually could not provide almost any information about Mr.

Damon.

162. Rather, he states that he had seen a wanted poster with a mug shot, but could not

recall Mr. Damon’s name.

163. In the end, Morrissey’s statement regarding Mr. Damon’s alleged gang affiliation

was inserted purely for the purpose of painting Mr. Damon as a criminal in the public eye, and

had no relevance to whether or not Defendant Motz was legally justified in killing Mr. Damon.

164. DA Morrissey more or less simply reports Defendant Motz’s testimony as fact,

even though Defendant Motz’s central factual assertion – that Mr. Damon “pointed a gun” at him

– is indisputably false.

165. DA Morrissey then also knew that Defendant Motz’s partner, Rick Eberharter,

was supposedly the only other officer who could see Mr. Damon, and that Eberharter was also

looking into the vehicle at the time that Defendant Motz claimed Mr. Damon was reaching for a

gun, but Eberharter did not claim to have seen a gun.

31
166. In the “Physical Evidence” section, DA Morrissey acknowledges that no gun was

found with a single brief sentence: “No gun was found inside the vehicle or in the possession of

Damon.” However, DA Morrissey declines to follow up on this obviously crucial and extremely

damning evidence with any inquiry into Defendant Motz’s false statement that he had seen “a

black and silver colored semi-auto in his right hand. And, it’s starting to come toward me.”

Morrissey had cited this very statement a mere page earlier but here, instead, DA Morrissey

attempts to place the cell phone in Mr. Damon’s hands.

167. Indeed, it appears that no one from the District Attorney’s office nor the DPD

have ever interrogated or followed up with Defendant Motz about what is now indisputable: that

his assertion that he saw Mr. Damon point a gun at him, and that is why he shot and killed Mr.

Damon, is false.

168. DA Morrissey states that Damon’s blood was positive for heroin. This is

completely irrelevant to the question of whether or not Defendant Motz was justified in shooting;

it’s simply another effort by the DA to build public support for this extra-judicial killing.

169. Finally, DA Morrissey writes in his decision letter that there “were no punctate

abrasions on the palms of Damon’s hands.” In so concluding, DA Morrissey strained to ignore

and deny the existence of a clear open punctuate wound on the palm of Mr. Damon’s right hand,

which supports the conclusion that Mr. Damon was, in fact, surrendering and contradicts

Defendant Motz’s fabrication that Mr. Damon had pointed anything at the officers on-scene.

170. The DA thus goes to substantial lengths to twist the physical and other evidence

into support of Defendant Motz, demonstrating a lack of objective independence in the

investigation and analysis of the salient facts.

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171. None of the evidence cited by DA Morrissey actually “supports” Defendant

Motz’s description of Mr. Damon’s gesture.

172. All that DA Morrissey’s analysis amounts to is the assertion that Mr. Damon’s

hands were above the dashboard when Defendant Motz killed him. To say, as DA Morrissey

does, that “[t]his evidence strongly supports Motz’s credibility,” is deliberately inaccurate, and

was published with the express purpose of exonerating Defendant Motz and shielding him from

liability (civil or criminal) for his unlawful killing of Mr. Damon.

173. DA Morrissey states at one point that Mr. Damon “escalated the risk of a lethal

outcome” by failing to comply with orders to show his hands.

174. However, the opposite is true. Defendant Motz, and Eberharter for that matter, did

not shoot Mr. Damon when they reportedly saw him shaking his head “no,” and his now alleged

supposed moving of his hands and shoulders as if reaching for something below the dashboard

was not observed or reported by Technician Eberharter, or anyone else besides Defendant Motz.

175. In fact, when Mr. Damon compliantly raised his hands above the dashboard as

commanded, Defendant Motz shot him dead.

176. DA Morrissey’s implausible conclusion that Damon “pretended” to point a gun so

that Motz would kill him is belied by the evidence. The only evidence that Mr. Damon made

such a gesture is Defendant Motz’s word, which is questionable given his indisputably false

assertion that he actually saw a gun (he didn’t) and his shifting descriptions of Mr. Damon’s

movements. And it defies logic that Mr. Damon would point his phone at an armed police officer

and pretend that it is a weapon. The only evidence to support such an inference was

manufactured by the police and the DA’s office, using an unreliable and bought-and-paid-for

33
informant and the above-described bogus-phone-gun-comparison and other physical evidence

manipulations after Mr. Damon’s death.

177. Thus, the Denver DA utterly failed to thoroughly and impartially evaluate much

of the relevant evidence before reaching the following predictable conclusion: the deputies’ use

of force against Mr. Damon was “reasonable and appropriate.”

178. To the contrary, it is clear that the Denver DA’s so-called investigation was,

above all a complete sham, conducted with an eye not towards pursuing justice, but instead

towards exonerating Defendant Motz.

179. The DA’s and the DPD’s customary rubber-stamping of the use of excessive force

is well-known by Defendant Motz and other members of the DPD, such that members of the

DPD are encouraged to use maximum force without concern of discipline or punishment even if

such force is excessive under the circumstances.

180. Defendant Motz has never been disciplined or counseled for excessive force, but

did receive previous disciplinary action, for sustained administrative charges of “Failure to

Shoot.” Since the date of the events underlying that “failure to shoot” counseling (2002),

Defendant Motz has shot at least three people, killing them all.

181. The Denver DA’s decision in this case is consistent with the custom, policy, and

practice of Denver of utilizing the Denver DA’s investigation and the DPD’s own investigation

to inoculate Denver, and its officers, from liability (criminal and civil) for the unlawful killing of

its citizens and the awareness of officers that they face no consequences for executing citizens,

ever, is a moving force proximate cause of this killing of yet another unarmed person.

34
182. Thus, in the ten years prior to Mr. Damon’s killing by Defendant Motz, the

Denver DA investigated seventy-one instances where Denver police officers shot and killed

citizens.

183. In each and every one of these instances, the Denver DA found the shooting to be

justified, conducted an investigation with the express outcome of exonerating the officer

involved, and refused to pursue criminal charges against the officer.

184. Because of Denver’s custom, policy, and practice, and the Denver DA’s actions in

this case that were in accordance with this custom, policy, and practice of tolerance to excessive

force, and of failure to enforce the constitutional rights of those who have been subjected to

excessive force by law enforcement officers, and the customary practice of failing to train,

supervise and discipline officers in furtherance of preventing excessive force, Mr. Damon’s

family has been left with no choice but to seek justice elsewhere and file this lawsuit to obtain

accountability for this execution.

Denver has a longstanding custom, policy, and practice of condoning, and promoting, a
culture among its officers of using excessive force against Denver citizens.

185. Mr. Damon’s death at the hands of Defendant Motz is a tragic example of the

overwhelmingly common use of excessive force by law enforcement officers throughout Denver,

proximately caused by the moving force of Denver’s ingrained practices as described herein.

186. The City of Denver has created, fostered, tolerated, and perpetuated an

environment and culture of law enforcement brutality and deliberate indifference to the

constitutional and statutory rights of citizens and residents. It was foreseeable and virtually

inevitable that a tragic incident like the one involving Mr. Damon would happen under the

circumstances.

35
187. The Denver Department of Safety oversees both the DPD and the Denver

Sheriff’s Department (“DSD”). The Department of Safety, though its Director and its

investigatory apparatus, condones, tolerates, and encourages the use of excessive force by its law

enforcement officers in both the DPD and the DSD.

188. Thus, the conduct of both the DPD and the DSD is illustrative of Defendant

Denver’s customs, patterns, and practices, since accountability (or lack thereof) for the use of

excessive force resides ultimately with the Executive Director of Safety’s Office. Denver law

enforcement officers in both branches have engaged in a persistent practice of misconduct, and

the officials responsible for assuring that such misconduct does not occur have consistently

failed to properly train, supervise, and discipline individual officers who have engaged in such

misconduct.

189. This culture and environment of brutality and discrimination, and the lack of

training, supervision, and discipline of law enforcement officers is evidenced by, among other

things, the sheer volume of instances of excessive force perpetrated by Denver law enforcement,

evidenced in part by judicially-confirmed instances of 4th Amendment violations (e.g., jury

verdicts), lawsuits filed against and/or legal settlements with Denver law enforcement alleging

excessive force, the involvement of dozens of different law enforcement officials in those

lawsuits, and the repeated involvement of the same officers in multiple lawsuits.

190. For example, Denver City Attorney David Fine reported to the Denver City

Council in September of 2010 that the city of Denver had spent (at that time) nearly $6.2 million

since 2004 to settle lawsuits involving police officers, and nearly all of the payouts were for

allegations of excessive force. Council members had asked Fine to research litigation patterns

36
after controversy erupted the previous month over a video that showed an officer beating a 23-

year-old man who was talking on a cell phone. These statistics do not even include lawsuits

against the City and County of Denver arising out of Sheriff’s Department conduct and have

gone much higher since 2010.

191. Since the date of that analysis, Defendant Denver has paid out more than $17

million more as a result of either jury verdicts or settlements based upon violations of the Fourth

Amendment to the United States Constitution.1

Denver’s custom, policy, and practice of encouraging a


“shoot first, ask questions later” mentality amongst its officers.

192. Denver has cultivated a culture where officers are trained and encouraged to

engage in activity indicative of an unjustifiable “shoot first” (ask questions later) deadly force

practice, in which officers issue no reasonable commands and no reasonable warnings, and

provide no reasonable opportunity for people to respond or surrender themselves before officers

use deadly force during the course of arrests and seizures, as here.

193. Denver has contributed to the “shoot first” deadly force practices of the

department by failing to adequately supervise its officers.

194. Historically, when DPD officers have been involved in excessive force incidents,

the department has routinely condoned the behavior of its officers by failing to recognize

excessive force to the public and failing to adequately discipline and/or retrain those who engage

in such misconduct, whether the force at issue was deadly or not.

195. Not only has the City regularly attempted to cover up and conceal evidence that

force in many circumstances was excessive (as identified in the above-noted examples and in this

1
This estimate is far from exhaustive, but includes the Fourth Amendment cases of Marvin

37
case), but the City has routinely cleared officers of any wrongdoing despite being forced to pay

huge settlements and/or judgments to victims of such misconduct. The following cases are

illustrative of Denver’s persistent custom, policy, and practice of fostering a shoot-first mentality

among its officers.

196. On the morning of January 26, 2015, teenager Jessica Hernandez was shot and

killed three times by two Denver police officers. At the time Ms. Hernandez was shot, she was in

a vehicle that had been reported stolen with four other teens. None of the teens had weapons. In

all, the officers fired eight shots, including four that went through the driver’s side windows. As

part of a subsequent cover-up of the police officers’ actions, former District Attorney Mitch

Morrissey determined the officers’ actions were legally justified and declined to file charges. In

January, the police department determined that officers did not violate any policies and they

would not be disciplined. In April 2017, Denver paid $1,000,000, along with other nonmonetary

consideration, to settle Ms. Hernandez’s family’s claims that the Denver police officers used

excessive force.

197. On July 2, 2014, Joseph Valverde was shot and killed by Denver police officer

Justin Dodge during a planned drug sting operation. During the operation, multiple officers

surrounded Mr. Valverde and told him to disarm himself and put his hands in the air. Mr.

Valverde complied with these orders, discarding a gun in his waistband and raising his arms. As

he raised his arms into the air, Officer Dodge shot and killed Mr. Valverde. Immediately

following the shooting, and pursuant to Denver’s custom, policy, and practice of immediately

initiating a cover-up of unlawful, willful, wanton, and unconstitutional police shootings, the DPD

issued a statement that Officer Dodge’s killing of Mr. Valverde was justified. Officer Dodge then

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made numerous false statements about Mr. Valverde and the circumstances of his death,

including stating that Mr. Valverde pointed a gun at the officers on scene. This statement was

clearly contradicted by video of the incident. Instead of disciplining Officer Dodge for his

unconstitutional use of force, Denver’s Internal Affairs Bureau (“IAB”) declined to discipline

Officer Dodge and, in fact, gave him an award. The Denver DA’s office also instituted a sham

investigation aimed at exonerating Officer Dodge and declined to press charges against Officer

Dodge despite significant evidence that he had unlawfully shot and killed Mr. Valverde.

198. In July 2015, Denver Police Officer Michael Traudt shot and killed Paul

Castaway while Mr. Castaway was holding a knife to his own throat and standing at a significant

distance from the officer. The officer made little attempt to talk Mr. Castaway down or arrest

him using less lethal means prior to shooting and killing him. As is customary, the Denver DA

refused to prosecute the officer involved and instead issued a decision letter with the purpose of

inoculating the officer from liability and slandering the shooting victim. In his decision letter, the

DA stated, “In this investigation, we are, once again, presented with a situation in which police

officers are called to deal with someone who is violent, apparently suicidal, and who has an

astounding combination of alcohol and controlled substances in his system. As is all too often the

case, the actions and decisions of the subject place an officer who is attempting to take the

subject into custody or ‘talk him down’ in an untenable situation: a situation where the officer

will, in many instances, be driven by the subject’s actions to use some degree of physical force

or deadly physical force.” The officer involved was not subject to any discipline by Denver after

the conclusion of the IAB investigation and Denver ratified his actions.

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199. On January 9, 2015, Denver Police Officer Jeffrey DiManna shot Sharod Kindell

during a routine traffic stop. Mr. Kindell was unarmed. During the traffic stop Mr. Kindell

refused to get out of his car and multiple police officers forced him out. As they did so, the car,

which was still in gear, moved in reverse. Mr. Kindell ran from the police officers and was shot

again, while fleeing and unarmed. The Denver DA found the shooting to be justified and no

officer was disciplined for their role in the shooting of Mr. Kindell.

200. On November 20, 2014, a Denver Police Officer shot Joel and Carlos Jurado

through the passenger-side window after a vehicle pursuit. The Denver police officers, Ernest

Sandoval and Jeff DiManna (who went on to shoot Kindell), shot at the Jurados as they drove

away. The Jurados were unarmed. Upon information and belief, no officer was disciplined for

their involvement with the shooting of the Jurados.

201. On May 15, 2009, Altagracia Medina Valencia filed a lawsuit on behalf of her

deceased husband against the City and County of Denver, Denver Police Chief Gerry Whitman,

and eight unknown John Doe Denver Police Officers. Ms. Valencia alleged that, while her

husband, Odiceo Valencia-Lopez, was attending his daughter’s communion, he suffered a self-

inflicted knife wound to the wrist. When his family called for an ambulance, the call was routed

to Denver Police. Mr. Valencia-Lopez was standing by his vehicle with the knife in his hand

when he was surrounded by six to eight officers with their weapons drawn. The officers ordered

Mr. Valencia-Lopez to drop the knife, but due to his lack of understanding of English, blood

loss, and intoxication, he did not understand their commands. An officer then tased Mr.

Valencia-Lopez, causing him to drop the knife. After Mr. Valencia-Lopez was tased and dropped

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the knife, the other officers began shooting him. He was shot approximately seven times, in front

of his entire family. He died at the scene. The case was settled for an unknown amount.

202. On December 29, 2009, Vicki Lynn Trujillo filed a lawsuit on behalf of the Estate

of Jason Gomez against the City and County of Denver, Denver Police Chief Gerald Whitman,

and Denver Police Officer Timothy Campbell. Ms. Trujillo alleged that Officer Campbell began

pursuing Mr. Gomez without reasonable suspicion or probable cause. When Officer Campbell

confronted Mr. Gomez, he ordered Mr. Gomez to kneel on the ground and pointed his gun at

him. Officer Campbell repeatedly shouted that he was going to kill Mr. Gomez. When Mr.

Gomez, who was unarmed, stood up and began running from Officer Campbell, Officer

Campbell shot him in the back. The bullet perforated Mr. Gomez’s spinal column. Officer

Campbell then fired a second round of shots, hitting Mr. Gomez twice in the chest, once in the

abdomen, once in the right thigh, and once in the left knee. Mr. Gomez died from multiple

gunshot wounds. The case was settled in December of 2012 for $190,000.

203. On January 6, 2006, Francisco Juan Lobato, Anthony Lobato, Barbara Lobato,

and Ramona Lobato filed a lawsuit on behalf of the estate of Frank Lobato against the City and

County of Denver, Denver Police Chief Gerald Whitman, and Denver Police Officers Ranjan

Ford, Jr., Joshua Herrick, Gene Sharla, Robert Shiller, Charles Kyle, Steven Addison, and

unidentified John and Jane Doe Officers. The Lobatos alleged that the Defendant Officers

entered the Lobato home without a warrant looking for a suspect. Frank Lobato was sleeping in

his bed at the time the officers entered the home and was unarmed. When the officers were

unable to locate the suspect, they entered Mr. Lobato’s bedroom and shot and killed him. Denver

paid $900,000 in 2007 to settle the lawsuit.

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204. In 2004, Denver paid the family of Paul Child $1.32 million to settle a lawsuit

brought after Mr. Childs, a developmentally disabled 15 year-old boy, was fatally shot by

Denver Police Officer James Turney. Officer Turney responded to a 911 call from Mr. Childs’

sister, and when he arrived at the house, Mr. Childs was holding a knife. When Mr. Childs

refused to drop the knife, Officer Turney shot and killed him. Two other officers were in the

house with non-lethal tasers, which were not used. Mr. Childs’ mother informed officers that he

was a “special needs” child, but they nonetheless shot him from the front door while he was

standing in the hallway.

205. On February 25, 2004, Regina Keith filed a lawsuit on behalf of the estate of

Gregory Lee Smith, Jr. against the City and County of Denver, Denver Police Chief Gerald

Whitman, Denver Police Officers Robert Silvas and Jim Turney, and unknown John Doe

Officers. Ms. Keith, Mr. Smith’s mother, alleged that the officers arrived at her home after she

called 911 for assistance with a domestic dispute. When they arrived, Mr. Smith was in his

bedroom. Mr. Smith then exited his bedroom with a three-inch utility knife. The officers ordered

him to drop the knife, and when he didn’t, they fatally shot him. The individual officers settled

the case for an unknown amount.

206. A common thread among many of these cases is not only that DPD officers failed

to provide reasonable commands, warnings, or opportunities for their targets to avoid being shot

and killed regardless of whether they are armed, but also that the officers appear to have had

unreasonable difficulty discerning when a threat is truly “imminent” before using deadly force.

This results from Denver’s poor police training, policies and supervision governing the use of

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deadly and other excessive force and Denver’s consistent failure to discipline and retrain when

officers have used excessive force.

207. For example, DPD’s deadly force, firearms discharge policy (Operations Manual

105.05), at the time of the incident, defined such important terms as “reasonable belief,” deadly

physical force,” and “serious bodily injury,” but, surprisingly, did not define “imminent” or

“imminent threat” for officers. Furthermore, while one section of the policy notes that warnings

should be given before officers engage in the use of deadly force, it qualifies the need for such

warnings to those occasions “when feasible” (in quotes), which language inherently connotes

that the warnings are not imperative. Finally, the policy provides no guidance to its officers

about the necessity of providing suspects a reasonable opportunity to surrender themselves or

comply with requests before using deadly force.

208. Because Denver’s firearms discharge policy is deficient in the above-noted ways,

and because of Denver’s history of unjustified police shootings, it is reasonable to conclude that

its training (which depends on such policies) is similarly deficient in these frequently occurring

and foreseeable situations. Training failures regarding key issues such as the imminence of harm,

whether people are even armed, and the common-sense need to provide suspects with reasonable

commands, warnings, and opportunities to surrender and/or comply are illustrated by the string

of similar incidents identified above, and others. But better training is necessary for officers to

predictably conform to the reasonableness standards set out by the Fourth Amendment to the

Constitution; conversely the failure to adequately train in these recurring areas is likely to cause

officers to continue to fail in their constitutional responsibilities, as evidenced by the above-cited

pattern and practices of officers.

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209. Finally, the training provided to Denver’s police officers predictably disposes

those officers to itchy trigger fingers by over-emphasizing the dangers an officer may face in the

line of duty, and de-emphasizing the rights and safety of suspects and the public, and by always

clearing the officers of any responsibility or discipline for use of excessive force. The time

Denver spends in academy, role-call, seminars, and other training efforts to alert officers about

potential threats to them far eclipses the amount of training time officers receive regarding how

their conduct could harm those with whom the officers come into contact. This practice creates

an aggressive, us vs. them mentality which leads to increased frequency of excessive force, and

promotes the commonly held belief among officers that prematurely shooting someone to defeat

a possible threat that lacks imminence or even weapons may be reasonable. This has led to the

Denver police shooting at least seventy-one citizens in the ten years prior to Mr. Damon’s killing

by Defendant Motz.

Denver has a custom, policy, and practice of covering-up the unlawful conduct of its
officers and encouraging a culture of cover-up among its officers.

210. Denver’s custom, policy, and practice of covering up civil rights violations and

engaging in sham “investigations” for the primary purpose of exonerating its police officers is

long and well-documented.

211. In Ortega, et al. v. City and County of Denver, et al., 944 F. Supp. 2d 1033 (D.

Colo. 2013), the U.S. District Court for the District of Colorado found that the four plaintiffs had

presented sufficient evidence to demonstrate that Denver had caused the excessive force they had

suffered, based on each of three separate theories: (1) Denver’s inadequate training of DPD

officers on use of force, (2) Denver’s failure to adequately investigate complaints of DPD

officers’ excessive force and discipline officers who used excessive force, and (3) Denver’s

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custom of tolerating DPD officers’ “code of silence” with respect to uses of force. The plentiful

evidence presented in that case included the following: (1) Testimony by Denver’s former

Manager of Safety, Charlie Garcia, that he believed DPD Officers had used “heavy-handed

tactics” since 1993 and that these tactics were a result of the DPD’s training policy; (1) testimony

by Denver’s former Independent Monitor, Richard Rosenthal, that Denver had a “systemic

problem” of officers not being held accountable for their uses of force; (3) evidence of numerous

specific instances in which DPD’s IAB failed to adequately investigate citizen complaints of

excessive force and Denver did not discipline the implicated officers; and (4) testimony by

former Manager of Safety Garcia that he had observed a pattern of DPD officers’ failure to

report uses of force.

212. In January 2009, Denver paid $100,000 to Trudy Trout to settle a lawsuit that

arose out of Denver Police Officer Nicholas Rocco-McKee’s use of excessive force. Officer

Rocco-McKee shoved Ms. Trout to the ground, causing her to break her wrist. Despite the fact

that the encounter was caught on video, Officer Rocco-McKee lied on his report, stating that Ms.

Trout tripped over her own high heeled shoes, which she was not wearing. Officer Rocco-McKee

was not disciplined for the use of force or for lying on his report.

213. On June 3, 2016, Gregory Heard, an unarmed African American homeless man,

was subjected to unreasonable and excessive force by Denver Police Officer Greg Dulayev, who

tased him and shoved his face into the dirt while he was unarmed and obviously complying with

officer commands to surrender. After tasing and shoving Mr. Heard to the ground, Officer

Dulayey, another Denver police officer present at the scene, and the Denver Investigating

Supervisor, knowingly prepared false police reports in an overt effort to cover up Officer

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Dulayey’s grossly excessive force. They thus falsely asserted that Mr. Heard was disobeying

police commands, aggressively advancing towards and threatening the officers, when in fact he

was doing nothing at the time besides complying with Officer Dulayey’s instructions to come out

from behind the bushes. After a sham investigation, the DPD and IAB determined that Officer

Dulayev’s conduct was consistent with policy and his training as a Denver Police Officer, and

that Officer Dulayey had not violated the rights of Mr. Heard.

214. On May 22, 2012, Plaintiff Philip White, a blind 77-year-old man, was assaulted

by Denver Police Officer Kyllion Chafin at the Greyhound bus station in downtown Denver.

Because Mr. White failed to leave the Greyhound station while waiting for his bus back to Vail,

Officer Chafin slammed Mr. White’s head into a ticket counter, causing a bloody gash on his

head, and applied overly tight handcuffs to his wrists. Denver IAB found that Officer Chafin had

neither violated department policy nor used excessive force in his interaction with Mr. White

despite significant evidence that Officer Chafin had used excessive force on a small, elderly

blind man who had committed no crime. In October 2015, a federal jury returned a verdict

against Officer Kyllion Chafin on Mr. White’s excessive force claim, and awarded Mr. White

$100,000 in compensatory damages and an additional $300,000 in punitive damages, for a total

verdict of $400,000. The City paid that verdict plus several hundred thousand dollars in attorney

fees, foregoing their right to appeal the jury verdict.

215. On March 31, 2002, Mary Milham was at a Denver bar called Sing Sing, located

in the LoDo section of downtown Denver. As Ms. Milham was leaving she made a remark about

a particularly obnoxious bouncer to her brother. While talking to her brother, she was confronted

with off-duty Denver Police Officers in police uniforms, including defendant Danny Perez. Ms.

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Milham was not being violent or threatening in any way when one of the officers grabbed Ms.

Milham’s wrist and applied a “low profile twist lock” on her and snapped her humerus like a

twig while propelling her into a brick wall. This brutal assault caused extensive injuries to Ms.

Milham as well as significant physical and psychological trauma. Knowing that she had

committed no offense ,these officers then proceeded to file false charges against her in an effort

to cover-up their wrongdoing. All charges against Ms. Milham were dismissed in Denver County

Court on August 14, 2002. A jury in federal court found Perez to be liable to Milham for

violating her constitutional rights and using excessive force, and damages were awarded. Despite

this finding, Denver took no disciplinary action against Perez.

216. On January 11, 2011, Alexander Landau filed a lawsuit against the City and

County of Denver, Denver Police Chief Gerald Whitman, and Denver Police Officers Randy

Murr, Ricky Nixon, and Tiffany Middleton. Mr. Landau alleged that he was assaulted during a

traffic stop. Mr. Landau was driving with Addison Hunold when he was pulled over. Mr. Landau

did not have his wallet, so he could not provide any identifying information to the officers. He

exited the car as instructed. Mr. Hunold informed the officers that he had a small amount of

marijuana and he was placed in handcuffs. The officers began searching Mr. Landau’s car. When

they tried to open the trunk, Mr. Landau asked if they had a warrant authorizing a search of the

trunk. Two of the officers then grabbed each of Mr. Landau’s arms, and a third officer punched

him in the face with no provocation. One of the officers then yelled that Mr. Landau was going

for a gun (which was false, but which demonstrates that police officers in Denver are trained to

yell “gun!” when they see one, something that Defendant Motz did not do in this case). The

officers continued to beat him in the face and head with their fists, a radio, and a flashlight.

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Denver police spewed racist epithets at Mr. Landau, who is African American. More officers

arrived on the scene and joined the assault. Officer Murr pointed his gun at Mr. Landau’s head

and threatened to shoot him. Paramedics arriving on the scene documented that Mr. Landau was

found lying prone on the curbside, handcuffed behind his back, bleeding from the head, with

lacerations and in acute distress. Mr. Landau was transported by ambulance to the hospital,

where he was treated for a broken nose, lacerations, and serious closed head injuries, including a

large hematoma, a concussion, and a hemorrhage in his right eye. Immediately after assaulting

Mr. Landau Denver police officers began the cover-up. They pressured an on-scene witness to

sign a false statement and filed false reports about the incident. The IAB investigation into the

assault was conducted for the purpose of exonerating the officers involved. Ultimately, no officer

was disciplined, either for lying or assaulting Mr. Landau. The case settled with Denver agreeing

to pay Mr. Landau $795,000.

217. In July 2014, Denver paid Jamal Hunter a $3.25 million settlement to resolve a

case involving multiple instances of wrongdoing by Denver and DSD deputies. On July 18,

2011, Mr. Hunter was the victim of a fellow inmate’s violent attack that was enabled by the

complicity of Deputy Gaynel Rumer, who initially received a mere 40-day suspension. Part of

Deputy Rumer’s misconduct included failure to conduct proper rounds. Then, on July 31, 2011,

Mr. Hunter was attacked and choked by Deputy Edward Keller. This incident was not reviewed

despite Mr. Hunter’s grievance until after the initiation of his lawsuit. In connection with the

Hunter litigation, Judge Kane asked federal authorities in June 2014 to investigate the “patterns

and practices” of the Denver police and sheriff’s offices and suggested they were intimidating a

key witness, saying that a Denver police investigation “smacks of a sham.” Denver’s illegal

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customs and practices illustrated by the Hunter case also existed during the killing of Mr.

Damon, were the result of a conscious and deliberate policy choice on the part of Denver, and

were the moving force behind the injuries Mr. Damon suffered.

218. Denver’s killing of Marvin Booker in the Denver jail provides a poignant example

of Denver’s custom policy and practice of tolerating, condoning, encouraging and engaging in

excessive force. In July 2010, five Denver Sheriff Department deputies killed Marvin Booker, a

homeless, African American street preacher, in the booking area of the Van Cise-Simonet

detention Center. Mr. Booker’s family filed a civil rights lawsuit against the involved deputies in

the United States District Court for the District of Colorado, captioned Walton v. Gomez (In re

Estate of Booker), Case no. 1:14-cv-02574-RBJ. After the deputies killed Mr. Booker, they and

others within the Department of Safety took numerous steps to cover up their crime. These steps

included meeting together prior to speaking with investigators to coordinate their stories about

Mr. Booker’s death and hiding the taser used during the killing of Mr. Booker. After a three-

week trial, a federal jury returned a verdict in October 2014 finding that all the deputy-

defendants, their sergeant, and the City and County of Denver violated Mr. Booker’s civil rights

by subjecting him to excessive and ultimately fatal force. The jury determined that the Denver

Deputies and their Sergeant killed Marvin Booker in a manner that was willful, intentional, and

malicious. The largest part of the $4.65 million verdict ($4.5 million) was for punitive damages

against the Denver Deputies and their Sergeant, calculated to punish these Denver defendants

and to deter others from similar conduct in the future. Following the entry of a final judgment,

and without appealing the jury verdict, Denver settled the case for $6,000,000.00. Even after the

case settled, Denver continued to ratify the wrongdoing of all the defendants by insisting that

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everything done in the Jail with respect to Marvin Booker was standard operating procedure that

fully complied with the law. Unsurprisingly, Denver never disciplined any of the Booker

defendants. Importantly, Denver stipulated that the individual defendants’ conduct in each of

their interactions with Mr. Booker on July 9, 2010 were engaged in pursuant to the customs,

policies, and practices of the City and County of Denver – and stipulated that a finding of

liability on any of the plaintiffs’ Section 1983 claims against any one (or more) of the individual

defendants constituted a finding of liability against Denver as well.

219. Tragically, just one year after Denver settled the Booker case, multiple Denver

Sheriff’s deputies killed Michael Marshall at the Denver Downtown Detention Center in an

eerily similar use of unreasonable force. On November 11, 2015, while Mr. Marshall was pacing

around in a mental health emergency, multiple sheriff’s deputies tackled and piled on top of Mr.

Marshall, causing him to vomit, and sending him into cardiac arrest. During this use of excessive

force, the deputies shoved Mr. Marshall’s face into a puddle of his own vomit, causing him to

asphyxiate, and then placed a spit mask over his mouth. An autopsy showed that Mr. Marshall

died from complications from positional asphyxia and suffered multiple blunt force injuries to

his face, chest, back, and extremities. Ultimately, Denver paid $4,650,000 to settle Mr.

Marshall’s family’s claims, along with agreeing to make some changes to the grossly deficient

policies and practices at the Denver Downtown Detention Center. However, the deputies

involved in Mr. Marshall’s death received little to no punishment for their violation of Mr.

Marshall’s constitutional rights. Denver’s efforts to cover up of officers’ misconduct in this case

is discussed below.

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220. In 2008, the City of Denver and Denver Health paid a combined $7 million to the

family of Emily Rae Rice, who died while in custody of the DSD. Ms. Rice’s lawsuit asserted

that the City’s and Denver Health’s treatment of her violated her constitutional rights, leading

directly to her death. This included claims against the defendants for deliberate indifference to

Ms. Rice’s serious medical needs. The City also destroyed or otherwise tampered with video and

other evidence, and engaged in a cover-up of the wrongdoing. After initially denying any

liability on any of the claims, the Defendants paid $7 million and agreed to many policy changes.

Denver has a longstanding pattern and practice of


using, and condoning the use of excessive force.

221. Over the past fifteen years, there has been a well-established culture among

Denver law enforcement that the use of excessive force was acceptable, customary, and would

not result in discipline.

222. A report issued in December 2014 by the North Denver News found that Denver

“has the second highest rate of death via ‘legal intervention’ in the nation.” The news outlet’s

“research culled every major urban county in the United States, using the CDC’s categorization

of deaths where law enforcement was involved, during the years 1999 through 2012, the latest

years the data are complete for. Denver’s 48 deaths over the thirteen year period put it second

only to Baltimore’s 59. The deaths would include those at the Denver jail as well as on the city’s

streets.”

223. In 2004, Denver paid Terrill Johnson $75,000 to settle a lawsuit against the City,

Denver Police Chief Gerald Whitman, and Denver Police Officers Troy Ortega, Louis A.

Estrada, Perry Speelman, Richard Eberharter, Randy Yoder, and Danny Perez. Mr. Johnson

alleged that as he was driving home from his job at Denver International Airport, he noticed he

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was being followed closely by a Denver Police patrol car. The officers in the car followed him to

his residence. He went into his home, and when he went back outside to take out the garbage, the

officers, still in their patrol car, were shining a spotlight into his car, which he had parked in

front of the house. As the officers reversed the patrol car, they slammed into Mr. Johnson’s

wife’s car. Mr. Johnson approached his wife’s car to inspect the damage, and the officers exited

the patrol car with their weapons drawn. They instructed Mr. Johnson, who was not armed, to

throw down his weapon. Additional officers arrived at the scene, continuing to instruct Mr.

Johnson to drop his weapon. He removed his shirt and raised his hands into the air to show the

officers that he was not armed. The officers then rushed toward Mr. Johnson, slammed him onto

a patrol car, punched him, forcibly subdued him while handcuffing him, and threw him into the

patrol car, using racial slurs the entire time. Mr. Johnson was charged with two minor traffic

offenses and interference; all charges against him were dropped.

224. On December 6, 2004, Richard Rra-Shada filed a lawsuit against the City and

County of Denver, Denver Police Officers Dennis Bedenbender and Shanna Michael, and Robert

A. Kaser. Mr. Rra-Shada alleged that Officer Bedenbender struck him with his police vehicle.

When Mr. Rra-Shada responded with a profanity, Officer Bedenbender got out of his police

vehicle, approached Mr. Rra-Shada, and clipped his legs from underneath him, causing him to

fall head-first onto the pavement. Officer Michael then hit Mr. Rra-Shada with her nightstick and

kicked him repeatedly in his torso. At the same time, Officer Bedenbender was punching Mr.

Rra-Shada in the head with closed fists. Mr. Rra-Shada’s injuries included head and brain

trauma, as well as injuries to his shoulder, wrist, back, ribcage, and abdomen. He also began

suffering seizures after the incident. The case was settled for an unknown amount.

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225. On July 1, 2005, Jeffrey R. Mayton filed a lawsuit against the City and County of

Denver and Denver Police Officers Josh E. Valerio, Gerard Alarcon, and Robert J. Wycoff. Mr.

Mayton alleged that he was wrongfully arrested, and that during his arrest, the officers ignored

his complaints that he was ill. When Mr. Mayton began to struggle due to physical discomfort

from his illness, the officers used excessive force against him, causing a dislocated shoulder,

abrasions, and bruising. Because the officers ignored Mr. Mayton’s complaints about his illness,

he defecated in his clothing and was forced to remain sitting and lying on the ground in pain until

transport arrived. The case was settled for an unknown amount.

226. On August 5, 2005, Quincy Michael Shannon filed a lawsuit against the City and

County of Denver, Denver Mayor John Hickenlooper, and Denver Police Officers Thomas

McKibben and Chan Thanong. Mr. Shannon alleged that, while he and three friends were

waiting in their car in a parking lot, they were approached by an officer who told them they

could wait five more minutes for their friends to come out of a nightclub, and then they would

have to move their car. Another officer then approached the car and told them to move. The

driver attempted to move the car, but the parking lot was full of cars. A third officer then

approached the car and sprayed mace or pepper spray into the driver’s face. The driver tried

again to move the car but was unable to. Another officer then approached and sprayed the other

occupants of the car with mace or pepper spray. All of the passengers then exited the car, which

was filling up with fumes from the spray. Mr. Shannon asked Officer McKibben how they were

supposed to move the vehicle when the parking lot was full, and in response Officer McKibben

sprayed him in the face again. Mr. Shannon then walked away and dialed 911 to report the

incident. Officer McKibben overheard Mr. Shannon describing him on the phone and sprayed

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him again. When Mr. Shannon turned away, Officer McKibben grabbed Mr. Shannon’s arm and

bent it behind him. Officer McKibben then kicked Mr. Shannon’s feet out from under him and

shoved his face into the pavement. Officer McKibben then grabbed both of Mr. Shannon’s arms

and one leg, handcuffing his hands behind his back over his ankle. Officers McKibben and

Officer Thanong then picked Mr. Shannon up and sprayed him in the face again. Mr. Shannon

suffered cuts and scrapes to his face, resulting in a permanent scar. The case was settled for an

unknown amount.

227. On November 21, 2005, David Nettles filed a lawsuit against the City and County

of Denver, Denver Police Chief Gerald Whitman, and Denver Police Officers Carlette Havard,

Michael Nuanes, Jr., Damian Naranjo, and Zachary Phillips. Mr. Nettles alleged that the officers,

while responding to a domestic violence call across the street from Mr. Nettles’s house, decided

to apprehend Mr. Nettles. In effectuating the unlawful arrest of Mr. Nettles, one of the officers

began punching him in the ribs, while another used nunchucks on Mr. Nettles’ ankle, causing

him to fall to the ground. While Mr. Nettles was on the ground, another officer kicked him in the

head at least three times. One or more officers jumped onto Mr. Nettles’ back, yelling, “when we

give you an order, you obey it!” Another officer began punching Mr. Nettles in the back of the

head, yelling, “you did it to your own damn self!” While the officers were attempting to handcuff

Mr. Nettles’ hands behind his back, he heard his shoulder snap. After he was handcuffed, the

officers continued hitting him in the head and kicking him in the back. Mr. Nettles’ injuries

included a severe shoulder injury and bruising to his ribs, arms, left elbow, and knees. The case

was settled for an unknown amount.

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228. On April 3, 2006, Hirut Berhanmeskel filed a lawsuit against the City and County

of Denver and Denver Police Officer Gilberto Romero. Ms. Berhanmeskel alleged that, while

she was attempting to resolve a parking ticket dispute at the Denver Parking Ticket Referee’s

office, she was approached by Officer Romero. Officer Romero, apparently upset that Ms.

Berhanmeskel was crying about her inability to resolve her parking ticket issue, grabbed Ms.

Berhanmeskel’s arm violently and roughly twisted it behind her back. He slammed her against

the wall and handcuffed her without even warning her that he was placing her under arrest. Ms.

Berhanmeskel suffered a broken wrist as a result of the excessive force used by Officer Romero.

The case was settled for an unknown amount.

229. On August 11, 2006, Chandler Lyles filed a lawsuit against the City and County

of Denver and Denver Police Officer Ryan Burke. Mr. Lyles alleged that Officer Burke came to

his home to investigate a claim that Mr. Lyles’s mother was suicidal. Officer Burke ordered Mr.

Lyles to sit on a sofa in the living room, and Mr. Lyles complied. Then, without provocation or

warning, Officer Burke tackled Mr. Lyles, forcing him to the ground and handcuffing him. As a

result of the excessive force used by Officer Burke, Mr. Lyles suffered injuries that included a

broken right clavicle. The case was settled for an unknown amount.

230. On June 12, 2007, Ross Edward Smith filed a lawsuit against the City and County

of Denver and Denver Police Officers Jarrod Tinnin and Mark Sutton. Mr. Smith alleged that

while he was walking down the 16th Street Mall as part of a protest against the Iraq war, he was

approached by Officer Tinnin. Officer Tinnin had dismounted his motorcycle and walked up to

Mr. Smith and punched him in the face with a closed fist, throwing him to the pavement. Officer

Sutton then joined Officer Tinnin in tackling and beating Mr. Smith. Officer Tinnin pushed Mr.

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Smith’s face into the pavement while Officer Sutton kneeled on Mr. Smith. Mr. Smith was

charged with interference, but all charges against him were dropped. As a result of the excessive

force used against him, Mr. Smith suffered injuries and abrasions to his face, arms, hands, neck,

and back, and aggravation of his Parkinson’s Disease, causing severe and uncontrollable tremors.

The case was settled for an unknown amount.

231. On June 27, 2007, Grace Arlene Mosley filed a lawsuit against the City and

County of Denver and Denver Police Officers Martin Martinez, Jose Hurtado, and unknown

John Doe Officers. Ms. Mosley was unlawfully arrested and forcefully pulled out of her home by

the officers. As a result of the excessive force against her, she suffered physical pain and

emotional trauma. The case was settled for an unknown amount.

232. In 2008, Denver paid $885,000 to settle a lawsuit brought in response to an

incident in which Denver Police Officers Charles Porter, Luis Rivera, and Cameron Moerman

used excessive force against Juan Vasquez, a 16 year-old boy. Mr. Vasquez was severely injured

with a lacerated liver and broken ribs after one of the officers used a fence as leverage to jump

up and down on the boy’s back while he lay prone on the pavement.

233. On April 30, 2009, John Stephen Heaney filed a lawsuit against the City and

County of Denver and Denver Police Officers James Costigan, Michael Cordova, Noel Ikeda,

Luke Palmitere, and Daniel Steele. Mr. Heaney alleged that, while he was riding his bicycle near

Coors Field on opening day of the baseball season, he was attacked by undercover police

officers, who did not identify themselves as law enforcement agents. He was placed into a

chokehold and forcibly brought to the ground, where he was punched in the head repeatedly.

One of the officers grabbed him by the hair and slammed his face into the pavement, breaking

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two of his teeth. As a result of the excessive force used against him, Mr. Heaney also suffered

severe bruising on his hands, knees, arms, and legs, as well as other injuries requiring surgery.

The case was resolved by the two parties.

234. On May 4, 2009, Jason Anthony Graber filed a lawsuit against the City and

County of Denver and Denver Police Officers Miller, Davis, and two other unknown John Doe

Officers. Mr. Graber alleged that, as he was crossing the 16th Street Mall at Market Street, a

police officer in a marked car yelled out his window, “dumbass!” The police car then pulled up

next to Mr. Graber, his brother, and his wife, and asked if they needed assistance. Mr. Graber

responded that they did not need assistance, but that he did not appreciate being called a

dumbass. The officers then exited their vehicle and one of them tackled Mr. Graber from behind.

He was grabbed by the neck, and his legs were kicked out from under him. He fell down,

slamming his knee and elbow onto the concrete. Mr. Graber was arrested for public intoxication,

but a breathalyzer test showed a blood alcohol content of 0.036, well below the legal limit, and

he was released. X-rays to Mr. Graber’s leg showed lipohemarthrosis and a possible hairline

fracture. Mr. Graber remained in a leg brace for many months after the incident. Judge Kane

determined that Denver had improperly impeded appropriate discovery in this case by refusing to

produce documents regarding previous uses of force by Denver law enforcement personnel. The

case was settled for $225,000 in 2011. See Graber v. City and County of Denver, No. 09-cv-

01029-JLK-MJW, 2011 U.S. Dist. LEXIS 82226 (July 27, 2011); Graber v. City and County of

Denver, No. 09-cv-01029-JLK-MJW, 2011 U.S. Dist. LEXIS 99594 (Sept. 6, 2011).

235. On October 16, 2009, Wayne C. Rose filed a lawsuit against the City and County

of Denver, Denver Police Chief Gerald R. Whitman, Detective Mark S. Woodward, and

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unidentified John Doe Police Officers. Mr. Rose alleged that, while fleeing police unarmed, he

was knocked to the ground by an officer on foot and then run over by an officer on a police

motorcycle. The impact of the motorcycle knocked Mr. Rose unconscious, and Detective

Woodward then handcuffed Mr. Rose’s hands behind his back. Detective Woodward then picked

Mr. Rose up by his arms and dropped him onto the pavement two or three times, causing his face

and body to strike the pavement several times. Officer Woodward and the unidentified John Doe

Officers then beat and kicked Mr. Rose repeatedly. Mr. Rose’s injuries resulting from the

officers’ use of excessive force included a broken arm that required multiple surgeries. The case

was settled for an unknown amount.

236. On June 30, 2009, James R. Watkins filed a lawsuit against the City and County

of Denver and Denver Police Officers John Ruddy and Randy Penn. Mr. Watkins alleged that,

when he noticed he was being followed by the officers, he reached for his cell phone while

asking them if they were going to beat him up. The officers responded by lunging toward Mr.

Watkins and hitting him in the face with their closed fists and elbows. They continued beating

him after he was on the ground and under police control. Mr. Watkins had to be taken by

ambulance to Denver Health Medical Center because he was bleeding profusely as a result of the

officers’ use of excessive force. He was initially charged with Assault in the Second Degree, but

all charges against him were dropped. Denver paid Mr. Watkins $20,000 to settle the lawsuit.

237. On June 30, 2009, Michael DeHerrera filed a lawsuit against the City and County

of Denver and Denver Police Officers Devin Sparks, A. Jaramillo, and R. Murr. Mr. DeHerrera

alleged that, while he was using his cell phone to inform his father, a Pueblo police officer, that

the Denver Police Officers were assaulting his friend, the officers assaulted him. Officer Sparks

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used an arm bar takedown to force Mr. DeHerrera face first onto the sidewalk. Once Mr.

DeHerrera was on the ground, Officer Sparks used a sap impact weapon repeatedly on Mr.

DeHerrera’s body, and other officers struck him in the face multiple times. Mr. DeHerrera had to

be taken to the hospital by ambulance, and his injuries included head trauma and facial

contusions. This incident was captured on video. Despite the aggravated circumstances, the

officers were only very lightly disciplined. Since the case received considerable publicity and

public protest, the DPD reopened an internal affairs investigation into the incident, which

resulted in a $17,500 settlement. Although Officers Sparks and Murr were briefly terminated by

the then Manager of Safety based upon their excessive force and falsification of official reports,

Denver decided to reinstate both of them to employment.

238. On June 30, 2009, Shawn Kyeone Johnson filed a lawsuit against the City and

County of Denver and Denver Police Officers Devin Sparks, A. Jaramillo, and R. Murr. Mr.

Johnson was involved in the altercation with Denver Police that resulted in Mr. DeHerrera’s

lawsuit. Mr. Johnson alleged that, as he was being assaulted by a club bouncer, three Denver

Police Officers joined in the assault, striking him in the face with elbows and closed fists even

after he was under police control. Mr. Johnson suffered severe injuries, including head trauma

and facial contusions, and was taken by ambulance to the hospital. In August 2010, Denver

settled the case for $15,500.

239. On July 19, 2009, multiple Denver police officers assaulted four women outside

of the Denver Diner. None of the women had committed, or were accused of committing, any

crime and, in fact, the officers had been called because one of the women they ended up brutally

assaulting was the victim of an assault in the diner’s bathroom. Police maced all of the women,

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and further brutalized two of the women while they were handcuffed. After the incident, Denver

initiated a cover-up of the brutality and excessive force by prosecuting the women. Upon

information and belief, neither officer was disciplined. Certainly, neither officer was fired or

criminally prosecuted. The City of Denver paid $360,000 to settle the claims.

240. On August 7, 2009, James B. Bouchard filed a lawsuit against the City and

County of Denver and Denver Police Officers M. Whetstone and K. Jiminez. Mr. Bouchard

alleged that the officers arrived at his house in response to a call by Mr. Bouchard’s former

girlfriend, who wanted to retrieve her personal belongings from his house. When Mr. Bouchard

refused to allow the officers to enter his home without a warrant, the officers forced their way in

and used a nightstick to restrain Mr. Bouchard in his own home. He was then shoved into a wall

and handcuffed. Mr. Bouchard’s resulting injuries included a torn rotator cuff and bruises,

contusions, and other injuries to his upper torso, face, and head. The case settled before trial.

241. On August 10, 2009, Danvis Smith filed a lawsuit against the City and County of

Denver, Denver Police Chief Gerald Whitman, Denver Manager of Safety Alvin LaCabe, and

Denver Police Officer Joseph P. Flynn. Mr. Smith alleged that he was involved in an altercation

with Officer Flynn, who was working on foot in the Denver International Airport parking garage.

Officer Flynn reached through the driver’s side window and struck Mr. Smith in the mouth with

his elbow. Officer Flynn then pulled Mr. Smith out of the car by his right arm and handcuffed

Mr. Smith in an awkward position, with his arms lifted high in the air beyond the normal range

of motion. Mr. Smith was charged with assault, but all charges against him were subsequently

dropped. Mr. Smith’s injuries included a torn rotator cuff, a torn biceps tendon, and chronic back

pain. The case was settled for an unknown amount.

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242. In September 2009, Denver settled a wrongful death lawsuit for $225,000 to the

family of Alberto Romero, who died after being repeatedly tased and beaten with impact

weapons by police when he was arrested wearing only boxer shorts. Before he died, Mr. Romero

suffered eight broken ribs and had his tongue split open from the use of excessive force.

243. On March 16, 2010, Mark Ashford was walking his dogs when he witnessed

Denver Police Officers pull over a driver for allegedly going through a stop sign. When Mr.

Ashford informed the driver that he would be willing to testify that he saw the driver come to a

complete stop, the officers focused on Mr. Ashford. When he began taking pictures of the scene,

the officers attempted to wrestle the camera from Mr. Ashford, pushing, grabbing, and

attempting to punch him to get him to the ground. Mr. Ashford was charged with interference

and resistance, but the charges were later dismissed. Mr. Ashford was transported from the scene

by ambulance. He subsequently filed an excessive force complaint with the DPD. In June 2011,

Denver settled the case for $35,000.

244. On March 19, 2010, James D. Moore filed a lawsuit against the City and County

of Denver and Denver Police Officers Shawn Miller and John Robledo. Mr. Moore alleged that

Officers Miller and Robledo arrived at his apartment complex in response to a 9-1-1 call from his

neighbor reporting a noise coming from Mr. Moore’s apartment. When the officers arrived, Mr.

Moore and his girlfriend were standing outside of his apartment. After instructing Mr. Moore,

whose hands were not in his pockets, to remove his hands from his pockets, the officers tackled

Mr. Moore from behind and struck him on the head without provocation or warning. While he

was on the ground, Mr. Moore was beaten so brutally that he lost consciousness and his heart

stopped. CPR had to be administered to save his life. The beating continued even after Mr.

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Moore was restrained, despite his repeated insistence that the officers had “the wrong guy.” Mr.

Moore suffered debilitating injuries as a result of his assault. He had to undergo back surgery and

months of physical rehabilitation, and he now walks with a cane and cannot stand up for more

than ten minutes without having to sit or lie down due to pain. Denver paid Mr. Moore $860,000

to settle the case in May 2015.

245. In May 2010, Denver settled a lawsuit filed by Eric Winfield for $40,000. Mr.

Winfield alleged that he was severely beaten by Denver Police Officers Antonio Milow, Thomas

Johnston, and Glen Martin while he was making his way through LoDo crowds after a 2007

World Series game. Mr. Winfield’s injuries included chipped teeth, permanent scars, and nerve

damage in his hands.

246. In June 2010, John Crespin filed a lawsuit against the City and County of Denver

and Denver Police Officers Steven Castro, Todd Allum, Eric Sellers, and Joey Gasca. According

to the lawsuit and media accounts, the officers followed 17-year-old Crespin home after he

witnessed them using excessive force on a group of kids. Witnesses saw the officers kick

Crespin’s legs out from under him, use a chokehold on him, cuff him, and beat him with police

batons for 15-20 minutes. This case was settled in 2012 for an undisclosed amount of money.

247. In June 2010, Tyler Mustard filed a lawsuit against the City and County of

Denver and Denver Police Officers Michael Morelock and Kimberly Thompson. Mr. Mustard

alleged that Officer Morelock chased him on foot, tackled him to the ground, and beat him in the

head, neck, and body. The Officers alleged that Mr. Mustard was spray painting a van and

assaulted an officer; the criminal case against Mr. Mustard was dismissed. Denver City Council

agreed to settle the case for $117,000.

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248. On July 1, 2010, Robert Duran filed a lawsuit against the City and County of

Denver and Denver Sheriff’s Deputy Steven Koehler. Mr. Duran alleged that, while he was

waiting unescorted next to an elevator in the Denver County Jail as directed, Deputy Koehler

approached him. Without warning or provocation, Deputy Koehler slammed Mr. Duran into the

elevator wall. Deputy Koehler then dragged Mr. Duran approximately 10 feet down the hallway.

While Mr. Duran was handcuffed, Deputy Koehler kicked him all over his body and face. Mr.

Duran was taken to the hospital by ambulance. Mr. Duran’s injuries included scalp lacerations,

bruised ribs, chest contusions, and a closed head injury. Mr. Duran prevailed in a jury trial and

was awarded $40,000 in compensatory damages for physical and mental injury plus prejudgment

interest, and over $217,000 in attorney fees.

249. In August 2010, Denver paid Chad Forte $22,500 to settle a lawsuit resulting

from Denver Police Officer Kenneth Johnson’s use of excessive force. After Mr. Forte allegedly

jaywalked, Officer Johnson followed him into his apartment building and jumped him from

behind, leaving him with facial injuries.

250. On September 20, 2010, Rohit Mukherjee filed a lawsuit against Denver Police

Officer Abbegayle Dorn and two unknown John Doe Denver Police Officers. Mr. Mukherjee

alleged that Denver Police Officers knocked on his door while he was hosting a party in his

apartment. One of the officers asked Mr. Mukherjee to step outside. When he refused, one of the

officers pushed his way into the apartment and Officer Dorn pinned Mr. Mukherjee against the

door and choked him. When Mr. Mukherjee informed the officers that he could not breathe, one

of them threw him to the ground, face first. One of the officers stood on Mr. Mukherjee’s ankle

and rocked back and forth. Once Mr. Mukherjee was restrained, the officers pushed him face

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first on the carpeted floor, causing contusions to his face. Mr. Mukherjee’s guests then began

recording the use of excessive force with their cell phones, at which point Officer Dorn took the

cell phones without permission and placed them in a bowl of water in the kitchen in order to

destroy the photographic and video evidence of the police misconduct. While Mr. Mukherjee

was still restrained, the other officers stepped on and kneed Mr. Mukherjee’s face and bent his

fingers backwards as far as they could without breaking them. While escorting Mr. Mukherjee

out of his apartment, the officers slammed his head into the hallways walls and the elevator wall.

Mr. Mukherjee’s injuries included jaw injuries, bruises, hand and knee pain, lacerations, knee

contusion, hand sprain, and nerve damage. The case was settled in 2011 for an undisclosed

amount of money.

251. On November 23, 2010, Jared Lunn filed a lawsuit against the City and County of

Denver, Denver Police Officer Eric Sellers, and unknown Denver Police Officer John Doe. Mr.

Lunn alleged that after he attempted to report an assault to Officer Sellers, which Officer Sellers

ignored, Officer Sellers assaulted him. Mr. Lunn was attempting to get into his friend’s vehicle

when he muttered, “way to protect and serve,” in response to Officer Sellers’ refusal to take his

assault report seriously. Officer Sellers then wrapped his arm around Mr. Lunn’s neck to pull

him out of the car. Officer Sellers placed Mr. Lunn in a carotid compression hold. After Mr.

Lunn went limp, Officer Sellers kicked his legs out from under him and threw him to the ground.

After handcuffing Mr. Lunn, Officer Sellers got within inches of Mr. Lunn’s face and yelled

homophobic epithets at him. Officers Sellers then released Mr. Lunn without citing him for

violation of any law and allowed him to go home. In June 2011, Denver settled the case for

$45,000.

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252. On January 12, 2011, Daniel Martinez, Jr., Nathan Martinez, Daniel Martinez III,

and Jonathan Martinez (collectively, “the Martinez Family”) filed a lawsuit against the City and

County of Denver, Denver Police Chief Gerald Whitman, and Denver Police Officers Jason

Valdez, Robert Martinez, Robert Motyka, and Bryce Jackson. The Martinez Family alleged that

the officers began pounding on their door shortly after 11:00 pm, demanding that they open the

door. When Daniel Martinez, Jr. opened the door slightly, the officers rushed into the house

without consent or a warrant. Officer Valdez slammed Jonathan Martinez’s head through a

window and then pulled him outside of the house and slammed him onto the concrete to apply

handcuffs. Officer Martinez pushed Daniel Martinez into the living room, pinned him against the

sofa, and applied handcuffs. Officer Motyka punched Nathan Martinez in the face without any

provocation. Officer Jackson forcefully dragged Daniel Martinez III from the house and

slammed him into the concrete before applying handcuffs. All of the Martinez Family members

were criminally charged. A jury acquitted Nathan Martinez and Daniel Martinez III on all

charges. All of the charges against Daniel Martinez, Jr. and Jonathan Martinez were dropped.

The Martinez family was awarded $1,800,000 by a federal jury in September of 2014.

253. In September 2014, Denver Sheriff’s Deputy Thomas Ford punched inmate Kyle

Askin in the face multiple times while he was handcuffed. Denver fired the deputy, but he was

reinstated by the civil service commission. Denver settled Mr. Askin’s claims for $65,000.

254. In July 2014, Denver Police Officer Choice Johnson violently assaulted Brandon

Schreiber at a bar in Denver. Officer Johnson tore both of Schreiber’s rotator cuffs. Officer

Johnson had a long history of using excessive force, including at least nine excessive force

complaints filed against him. Denver settled Mr. Schreiber’s claims for $185,000.

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255. These cases provide only representative examples of the rampant use of excessive

force by Denver law enforcement officers, and the lack of any training or supervision on the part

of the City and County of Denver to prevent these dangerous and unlawful patterns of conduct.

256. The lawsuits and other incidents involving unconstitutional policing, excessive

force, and cover ups identified above are illustrative of the culture and customs, policies, and

practices that existed during the shooting of Mr. Damon, were the result of Denver’s conscious

and deliberate policy choices, and were the moving force behind the injuries inflicted on Mr.

Damon.

Denver’s custom, policy, and practice of condoning,


and encouraging, the cover-up of official misconduct.

257. Denver, acting at the behest of and in close conjunction with the Denver Police

Protective Association (“DPPA”), has developed and maintained policies and customs exhibiting

deliberate indifference to the constitutional rights of its citizens, which caused the violations of

Plaintiffs’ rights.

258. It is the policy and/or custom of Denver to investigate inadequately and

improperly civilian complaints of police (and sheriff’s deputy) misconduct and to punish

inadequately those complaints which were or should have been substantiated. Instead, acts of

brutality have been tolerated by Denver. The Internal Affairs Bureau (IAB) has substantially

failed in its responsibilities to thoroughly and impartially investigate misconduct and discipline

transgressors.

259. The entire law enforcement investigatory apparatus within the Department of

Safety is biased in favor of law enforcement officers and operates within an inherent conflict of

interest. The police are expected to investigate the police, and the District Attorney is expected to

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review the police investigation of the police. The District Attorney relies on the police to

investigate and testify in all of the DA’s prosecutions, revealing another conflict of interest in the

police accountability structure.

260. IAB investigations of brutality rarely lead to administrative trials and, in the rare

instances that charges are sustained administratively, the punishment is minimal, lacking any

deterrent effect. Even the most brazen acts of brutality, including murder, are resolved with a

slap on the wrist (or less). In the rare event that any discipline is imposed after IAB review, the

discipline is most frequently reversed by the Career Services Board, absolving the law

enforcement officer of any accountability for the infraction.

261. Just one example of the flawed IAB process, which is employed customarily by

Denver in cases where its officers utilize excessive force, is the IAB investigation into the death

of Michael Marshall, who died at the hands of Denver deputies in the Denver Detention Center.

During that investigation, IAB officials failed to even interview the deputies who killed Mr.

Marshall. Ultimately, IAB decided imposed only slight discipline on 3 officers, but those were

then reversed on internal review. Thus, none of the deputies or other officers involved in Mr.

Marshall’s death were disciplined. In a follow-up report, the Denver Office of Independent

Monitor found not only the IAB’s failure to interview those deputies that killed Mr. Marshall

concerning, but also found the IAB’s conclusion that none of the deputies involved should be

disciplined concerning. In the report, the OIM stated that the IAB had “substantial evidence of

potential misconduct that clearly necessitated a review for potential discipline by the Conduct

Review Office. IAB was aware of the medical examiner’s conclusion that Mr. Marshall had died

of, among other things, complications from positional asphyxia due to physical restraint in a

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prone position. IAB had the video showing Deputy Garegnani applying pressure to Mr.

Marshall’s body for an extended period of time after he had already gone limp and vomited

while being restrained in handcuffs, leg irons, and by body weight. IAB also knew about Nurse

Ajao’s statement that she asked Deputy Garegnani to relieve some of the pressure and that he

refused, as well as evidence that Captain Johnson and other supervisors failed to intervene to

prevent the use of inappropriate force. IAB attempted to decline the case despite this obviously

concerning evidence.” Ultimately, it is clear that the IAB process actually exists to only gather

evidence that exonerates officers and deputies. And, because of this obvious skewed purpose of

the IAB, the OIM recommended that “the DSD make changes to the culture of its Internal

Affairs Bureau to ensure that serious cases are investigated thoroughly and impartially, as DSD

policy requires. This may include but not be limited to placing the management of IAB under

civilian control.”2

262. Further, Denver has failed to discipline Defendant Motz for his conduct in killing

Mr. Damon and lying during the investigation, despite being fully aware of his willful and

wanton violations of state and federal law.

263. Additionally, Denver has failed to change the way it trains or supervises its law

enforcement officers in response to the killing of Mr. Damon despite the clear and significant

2
The Office of Independent Monitor recently issued a searing indictment of the Denver IAB
disciplinary process, broadly and as applied in the Michael Marshall case. CITY AND COUNTY OF
DENVER OFFICE OF THE INDEPENDENT MONITOR, The Death of Michael Marshall, an
Independent Review, pp. 44-45, n.434 (2018), available at:
https://www.denvergov.org/content/dam/denvergov/Portals/374/documents/OIM%20Marshall%
20Report.pdf.
 

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deficiencies in its training regimen underscored by Mr. Damon’s unlawful and wholly

preventable killing.

264. Denver’s longstanding training deficiencies are exemplified by the following

subject areas, among others: the failure to utilize regular stress inoculation training (which

foreseeably leads to officers becoming over-adrenalized during stressful situations and grossly

overreacting to any actual or perceived resistance/noncompliance); the failure to teach

appropriate de-escalation tactics (such as the use of words in lieu of force to defuse potentially

volatile situations); the failure to train and require officers to timely, accurately, or truthfully

report their on-the-job conduct (which foreseeably causes officers to lie about their conduct and

the conduct of their fellow officers without being held accountable); the minimization of the

seriousness and danger of excessive force, and the actual encouragement of such use;3 the failure

to require its officers to preserve evidence relating to allegations of misconduct (which

foreseeably enables officers to evade accountability for their wrongdoing); and the failure to

appropriately discipline officers who engage in misconduct (which foreseeably emboldens

officers to violate citizens’ rights and the law). Many of these deficiencies were highlighted in

the previously mentioned report of the Independent Monitor entitled “The Death of Michael

Marshall, an Independent Review.”

3
The Office of Independent Monitor details how one of the law enforcement officials
responsible for training in the use of force actually wanted to use the video of the excessively
forceful killing of Mr. Marshall “just for training” because he believed “that it was well done.”
CITY AND COUNTY OF DENVER OFFICE OF THE INDEPENDENT MONITOR, The Death of Michael
Marshall, an Independent Review, pp. 44-45, n.434 (2018), available at:
https://www.denvergov.org/content/dam/denvergov/Portals/374/documents/OIM%20Marshall%
20Report.pdf. The Independent Monitor, after exhaustively reviewing the evidence, concluded
that the facts showed “how faulty [the] former trainer’s conclusion [was] that the force was
‘done the way we want it to be done.’”

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265. Shortly before and even after the tragic death of Mr. Damon, Defendant Denver

went out of its way to reduce the resources available for needed police training, including the

City’s diversion of approximately $1.3 million of taxpayer funds (much of which was

specifically earmarked for training and equipment) to media relations from 2013-15, as part of a

grossly misguided effort to improve the public image of Denver law enforcement at the expense

of necessary training and public safety.

266. These deficiencies in training, supervision, and discipline were the result of

Defendant Denver’s conscious and deliberate choices, and were the moving force behind the

injuries inflicted on Mr. Damon by Denver law enforcement. They caused Mr. Damon’s injuries.

267. Denver has been on notice for more than a generation that brutality is widespread

and that particular reforms need to be implemented.

268. As a matter of practice, habit and custom, Denver allows DPPA attorneys to

ensure, as here, that officers on-scene during police brutality have an opportunity to coordinate

their stories of what happened.

269. These policies and practices operate to criminally and civilly insulate police

officers who engage in criminal misconduct, other serious official misconduct, and excessive

force from detection, prosecution, and punishment, and are maintained with deliberate

indifference to that obvious and widely known effect.

270. In this case, counsel for the DPPA, Sean Olsen, met with many of the on-scene

officers, along with Defendant Motz, enabling them the opportunity to ensure that the officers

had their stories straight. The standard investigative technique of sequestering witnesses from

one another, to eliminate the possibility that they could conform their stories with one another, is

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rendered irrelevant when a single person (whether a lawyer or otherwise) is allowed to

substantively consult with multiple witnesses prior to their investigative interviews. This

happened immediately after the killing of Mr. Damon, prior to the interviews of Defendant Motz

and others.

271. Police officers, and deputies, of Denver have for years engaged in a pattern and

practice of actively and passively covering up the misconduct of fellow officers by failing to

come forward or failing to accurately give evidence as to misconduct of which they are aware,

thereby establishing and perpetuating a “code of silence.”

272. This “code of silence” is a custom so deeply ingrained in the DPD so as to

constitute the policy and/or practice of Denver.

273. Denver has been deliberately indifferent to the need for more or different training,

rules and regulations relating to police officers who witness or have information regarding

misconduct by fellow officers. Denver has failed to properly sanction or discipline officers who

are aware of and subsequently conceal and/or aid and abet violations of constitutional rights of

citizens by other Denver police officers, thereby causing and encouraging Denver police officers,

including the individual defendant officers in this case, to violate the rights of citizens such as

Plaintiffs.

274. Denver has maintained no system or an inadequate system of review of officers

who withhold knowledge or give false information regarding misconduct by fellow officers. This

failure to identify and track such officers, including the defendant officers, or to discipline, more

closely supervise, or retrain such officers who engage in the “code of silence,” causes Denver

police officers to believe that they can engage in misconduct, secure in the knowledge that their

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fellow officer will never provide evidence against them. These systemic deficiencies include, but

are not limited to:

a. Preparation of investigative reports designed to vindicate the conduct of officers

who gave false information about the misconduct of other officers, or who falsely denied

knowledge about misconduct which they were in a position to observe;

b. Preparation of investigative reports which uncritically rely solely on the word of

police officers and which systematically fail to credit testimony of non-police witnesses.

c. Preparation of investigative reports which omit or ignore factual information and

physical evidence which contradict the accounts of police officers;

d. Issuance of public statements exonerating officers involved in such incidents prior

to the completion of investigation;

e. Failure to have meaningful review of investigative reports by responsible superior

officers for accuracy or completeness, including consideration of the conduct of officers who

were not actively engaged in the misconduct which was the subject of the investigation, and

acceptance of conclusions which are not supported by the evidence or which contradict such

evidence; and

f. Failure to identify potential “code-of silence” violations, or instances of

“departing from the truth” (a euphemism for lying in an investigation), and to maintain accurate

records of allegations or investigations of such misconduct.

275. Denver, prior to and at the time of this incident, was aware of the need for more

or different training, rules, regulations, investigation and discipline relating to police officers

who practice the “code of silence,” and has been deliberately indifferent to that need.

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276. Defendant Denver has a custom, policy, and practice of failing to discipline

officers and/or deputies who unconstitutionally and inappropriately use deadly force. For

example, Defendant Motz has been involved in multiple complaints of using excessive force.

None of these complaints have been sustained. However, at one point previously in Defendant

Motz’s career (in about 2002), a fellow officer filed a complaint against him for his “failure to

shoot” at a suspect. Not only was this complaint sustained, but Defendant Motz was suspended

for his failure to shoot. Since this incident, Defendant Motz has had numerous complaints lodged

against him for using excessive force, but has never again had a “failure to shoot” complaint

lodged against him. That is because Defendant Motz learned his lesson from Defendant Denver;

Defendant Denver’s custom, policy, and practice rewards officers who use deadly force and

punishes officers who refuse to use deadly force. Defendant Motz’s compliance with this

custom, policy, and practice caused him to shoot Mr. Damon, as Defendant Motz had been

trained and conditioned to shoot even in circumstances where resorting to deadly force is

excessive. Defendant Motz was in possession of no facts that would lead him to believe that

shooting Mr. Damon was justifiable under the Constitution and laws of Colorado, yet did so

anyway, partially out of fear of being disciplined for a “failure to shoot” and partially with the

knowledge that he would not be disciplined should he shoot.

277. Denver failed to thoroughly and evenhandedly investigate any of the previous

excessive force complaints against Defendant Motz but instead conducted the investigations in a

manner that was biased in favor of the accused deputies, and with an eye towards rubber-

stamping the deputies’ conduct. This was consistent with and pursuant to Denver’s custom,

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policy and practice of tolerating and ratifying the actions of its law enforcement whether right or

wrong, lawful or unlawful.

278. The foregoing acts, omissions, systemic deficiencies and deliberate indifference

to the danger of harm to citizens such as Plaintiffs and the need for more or different training and

discipline are policies, practices and customs of Denver and have caused police officers,

including the officer defendants in this case, to believe that they can violate the rights of citizens

with impunity, and that their fellow officers would conceal such conduct, including swearing

falsely and committing perjury, all with the foreseeable result that officers will violate the

constitutional rights of citizens.

279. The City of Denver and its law enforcement officers actively work and conspire

with the DPPA and its agents to cover up their misconduct with the purpose of insulating both

the officers and the City from civil and criminal liability.

280. The culture of silence and dishonesty concerning police misconduct exists with

the assistance of, rather than despite, the efforts of the DPPA.

281. The DPPA made significant public statements against revisions to Denver’s Use

of Force policy, revisions that aimed to bring it in compliance with constitutional standards

regarding use of force. The DPPA’s statements condoning the continued use of an outmoded and

constitutionally suspect Use of Force policy that has repeatedly led to the use of inappropriate

and excessive force contributed to the custom, policy, and practice of its members of using force

in violation of the Fourth Amendment to the United States Constitution.

282. The role the DPPA and its agents played in this case was not an aberration.

Rather, it has been standard operating procedure to abet and orchestrate the obstruction of justice

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– along with co-conspirators Denver and its law enforcement officers – in even the most

notorious instances of police misconduct.

283. The City of Denver and its law enforcement officers actively conspire with DPPA

agents who make improper use of the opportunity to communicate with witnesses who are

supposed to be sequestered from one another during the investigative process, including resort to

the attorney-client privilege and the spurious “delegate-member privilege” to facilitate cover-ups

among co-conspirators and to identify and dissuade police witnesses who would otherwise give

honest testimony.

284. It is the custom and practice of the DPPA to treat those officers who want to come

forward - and not those who violently abuse citizens - as wrongdoers. Such pressure discourages

law enforcement officers of breaking the “code of silence” or providing information suggesting

culpability or liability of law enforcement officers in excessive force investigations. Defendants

Denver and its law enforcement agents perpetuate and rely upon this pressure.

285. As a direct and proximate result of Denver’s and the DPPA’s policies and their

deliberate indifference, defendants violated Plaintiffs’ constitutional rights for which they

suffered substantial damages.

286. Acting jointly over a period of many years, Denver and the DPPA together

established policies and customs which allow even the most brazenly brutal officers to believe

that they can use excessive force with impunity.

287. In furtherance of their custom, policy, and practice of covering up police brutality,

the DPD always issues a statement to the media within a day or so of an officer-involved

shooting stating that the killing or other brutality was justified. A representative of the DPD

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issues such a statement no matter the circumstances of the police shooting and with no regard as

to whether the shooting was “justified” or not. Further, DPD representatives customarily issue

statements to the media that the individual who was killed by the law enforcement officer had a

criminal history (whether or not the criminal history has any relation to the shooting) and/or that

the individual killed by the law enforcement officer was dangerous and/or violent (whether or

not the individual was actually violent).

288. In this case, a representative of the DPD, within hours of the shooting, made

statements to the media that Mr. Damon’s shooting was “justified.” Additionally, a

representative of the DPD stated to the media that Mr. Damon had a “fairly long record.”

289. These statements by the DPD were released with the intention of covering-up the

unconstitutional shooting by Defendant Motz. They were aimed at painting Mr. Damon as a

violent criminal who deserved what he got. The cover-up of Mr. Damon’s killing started

immediately. The statement that his shooting was “justified” within hours of the shooting, when

there was little information about what had occurred during the shooting and the investigation

into the shooting (by internal affairs and the district attorney’s office) was barely underway, was

made with the purpose of justifying Defendant Motz’s actions. It was also based upon the false

premise that Mr. Damon pointed a gun at Defendant Motz, which the Denver public relations

officials knew was not true when they communicated it to the media.

290. Defendant Denver has a custom, policy, and practice of releasing to the media in

the immediate aftermath of an officer shooting statements that classify the yet-to-be-investigated

shooting as “justified” and smearing the victim of the officer shooting as a criminal or otherwise

unsympathetic person.

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291. As a direct and proximate result and cause of the wrongful conduct of the

Defendants, Mr. Damon suffered loss of life and substantial suffering, and other losses, entitling

the Estate to compensatory and special damages, in amounts to be determined at trial. These

injuries include, but are not limited to, loss of constitutional and federal rights, death, and

emotional distress including great pain and economic damages.

292. As a direct and proximate result and cause of the wrongful conduct of the

Defendants, living Plaintiffs to this suit have suffered substantial emotional injuries, and other

losses, entitling them to compensatory, economic and special damages, in amounts to be

determined at trial. These injuries as set forth with particularity in the claims below variously

include, but are not limited to, felonious killing uncapped wrongful death damages, including

economic loss damages, emotional distress including great pain, and ongoing special damages

for any medically/psychologically related treatment, including liens and funeral expenses caused

by the challenged conduct of these Defendants.

FIRST CLAIM FOR RELIEF


42 U.S.C. § 1983 – 4th Amendment Violation – Excessive Force
(The Estate of Dion Damon Against Both Defendants)

293. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if set forth

herein.

294. Defendant Motz at all relevant times hereto, was acting under the color of state

law in his capacity as a law enforcement officer for Defendant Denver.

295. At the time of Mr. Damon’s death, Mr. Damon had a clearly established

constitutional right under the Fourth Amendment to the United States Constitution to be secure

in his person from unreasonable seizure through excessive force. It is clearly established that a

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law enforcement officer may not use deadly force to kill an unarmed suspect who is not

attempting to flee, is not physically resisting arrest, and who poses no danger to the officers or

others at the time of the use of force.

296. Any reasonable law enforcement officer knew or should have known of this

clearly established right at the time of Mr. Damon’s death.

297. Defendant Motz engaged in the use of force that was objectively unreasonable in

light of the facts and circumstances confronting him, violating Mr. Damon’s clearly established

Fourth Amendment rights.

298. Defendant Motz unreasonably and excessively used deadly and other force

against Mr. Damon, resulting in his death.

299. At the time Defendant Motz shot and killed Mr. Damon, Mr. Damon did not pose

an immediate threat to the safety of Defendant Motz, other police officers, and/or other civilians.

Mr. Damon did not have in his possession any weapon, let alone a deadly weapon, at the time

Defendant Motz shot and killed Mr. Damon. Mr. Damon did not make any hostile motions

toward Defendant Motz.

300. At the time Defendant Motz shot and killed Mr. Damon, Mr. Damon was not

actively resisting arrest or attempting to evade arrest by flight.

301. Defendant Motz’s conduct toward Mr. Damon was reckless and deliberately and

unreasonably created the situation wherein Defendant Motz used excessive force against Mr.

Damon.

302. The acts or omissions of Defendant Motz were the moving force behind and

proximate cause of Mr. Damon’s injuries and death.

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Defendant Denver is municipally liable for the violation of
Mr. Damon’s Fourth Amendment rights.

303. The acts and omissions of Defendant Motz were engaged in pursuant to the

custom, policy, and practice of Denver, which encourages, condones, tolerates, covers up and

ratifies the use of excessive force by law enforcement officers in Denver including joint actions

to manufacture, concoct and fabricate evidence.

304. Defendant Denver failed to properly train and supervise its employees to avoid

the use of excessive force.

305. Defendant Denver knew, or should have known, that its employees would use

excessive force, violating Mr. Damon’s rights under the circumstances present in this matter.

306. Defendant Denver was deliberately indifferent to the constitutional and statutory

rights of members of the community, knowing that dangerous and potentially fatal consequences

could be suffered by such individuals (including Mr. Damon) by failing to properly train and

supervise its employees. Defendant Denver could have and should have pursued reasonable

methods for the training and supervising of such employees, but chose not to do so.

307. Defendant Denver’s policies, customs, or practices in failing to properly train and

supervise its employees were the moving force and proximate cause of the violation to Mr.

Damon’s rights.

308. The firmly and long-entrenched custom, policy, and practice of Denver of

encouraging, condoning, tolerating, and ratifying the use of excessive force by law enforcement

officers, as described herein, was the moving force behind and proximate cause of the violation

to Mr. Damon’s constitutional rights.

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309. The acts or omissions of Denver caused Mr. Damon damages in that he suffered

extreme physical and mental pain during the shooting that resulted in his death.

310. The actions of Denver as described herein deprived Mr. Damon of the rights,

privileges, liberties, and immunities secured by the Constitution and laws of the United States of

America, and caused him other damages.

311. The acts or omissions of Defendant Motz and of Denver caused Mr. Damon

damages in that he suffered extreme physical and mental pain during the assault that resulted in

his death.

312. As a proximate result of Defendant’s unlawful conduct, Plaintiff Estate has

suffered injuries and losses, including the death of Mr. Damon entitling it to recover his

compensatory and special damages, including for loss of constitutional rights, loss of enjoyment

of life, and his herein described horrific and terrifying pain and suffering during and leading up

this fatal event, permanent lost earnings and earnings capacity for the expected productive

working lifetime of Mr. Damon under the mortality tables and other special damages including

funeral expenses, all in amounts to be proven at trial.

313. The Plaintiff Estate is also entitled to attorneys’ fees and costs pursuant to 42

U.S.C. §1988, pre-judgment interest and costs as allowable by federal law.

314. In addition to compensatory, economic, consequential and special damages,

Plaintiffs are entitled to punitive damages Defendant Motz, in that the actions were taken

maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of

Plaintiff.

SECOND CLAIM FOR RELIEF


42 U.S.C. § 1983 – First and Fourteenth Amendment – Right of Access to the Courts

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(Plaintiffs Against Defendants)

315. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if set forth

herein.

316. Defendant Motz, at all relevant times hereto, was acting under the color of state

law in his capacity as a law enforcement officer for Defendant Denver

317. During the investigation into the cause of Mr. Damon’s death, Plaintiffs had a

clearly established constitutional right under the First and Fourteenth Amendments to the United

States Constitution to have access to the courts.

318. Any reasonable law enforcement officer knew or should have known of this

clearly established right at the time of the investigation into Mr. Damon’s death.

319. Defendant Motz and Defendant Denver, individually and in concert with one

another and others, took action(s) to conceal evidence that Defendant Motz violated Mr.

Damon’s Fourth Amendment rights and unlawfully killed Mr. Damon. See, e.g., Germany v.

Vance, 868 F.2d 9, 16 (1st Cir. 1989); Estate of Smith v. Marasco, 318 F.3d 497, 511-12 (3d Cir.

2003); Pollard v. Pollard, 325 F. App’x 270, 272 (4th Cir. 2009); Chrissy F. by Medley v.

Mississippi Dep’t of Pub. Welfare, 925 F.2d 844, 851 (5th Cir. 1991); Ryland v. Shapiro, 708

F.2d 967, 974-75 (5th Cir. 1983); Flagg v. City of Detroit, 715 F.3d 165, 173-75 (6th Cir.

2013); Swekel v. City of River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997); DeLew v.

Adamson (DeLew II), 293 F. App’x 504, 506 (9th Cir. 2008); DeLew v. Wagner (DeLew I), 143

F.3d 1219, 1222-1223 (9th Cir. 1998). Stump v. Gates, 777 F. Supp. 808, 813-814 (D.Colo.

1991) affirmed Stump, 986 F.2d. 1429 at *2; Raguindin v. Yates, 2016 WL 1253625. Defendant

Denver, members of the Denver Internal Affairs Unit (including Detectives Bisgard, Lopez, and

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Denison), members of the District Attorney’s Office (including Chief Deputy District Attorney

Jackson, Senior Deputy Crittenden, and DA Mitchell Morrissey), and Sean Olsen (the attorney

for the Denver Police Protective Association), and others, as willful participants in a joint

activity, aided Defendant Motz, through its sham investigation, in concealing or manipulating

evidence that he violated Mr. Damon’s Fourth Amendment rights.

320. Defendant Motz intentionally, or at least with deliberate indifference, failed to

develop evidence that he violated Mr. Damon’s Fourth Amendment rights and unlawfully killed

Mr. Damon. Id. Defendant Denver through its sham investigation, failed to recognize,

acknowledge or develop readily available evidence that Defendant Motz violated Mr. Damon’s

Fourth Amendment rights.

321. Defendant Motz and Defendant Denver, through its sham investigation(s), took

actions to cover up the violation of Mr. Damon’s constitutional rights and this cover-up and

manufacturing and fabrication of evidence was designed to hinder any pursuit of a federal or a

state wrongful death claim against Defendant Motz or Denver by the Estate of Mr. Damon or the

other Plaintiffs.

322. The cover-up of Defendant Motz’s use of excessive force against Mr. Damon

prejudiced and burdened Plaintiffs’ ability to seek redress of, and access the courts to vindicate,

Defendants’ violation of Mr. Damon’s constitutional rights and rights to be free from aggravated

wrongful death under Colorado law.

323. Defendant Denver has a custom, policy, and practice of covering up (and

encouraging its officers and deputies to engage in the cover-up of) official misconduct.

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324. Defendant Denver’s custom, policy, and practice of covering up (and encouraging

its officers and deputies to engage in the cover-up of) official misconduct caused Defendant

Motz, members of the Denver Internal Affairs Unit (including Detectives Bisgard, Lopez, and

Denison), members of the District Attorney’s Office (including Chief Deputy District Attorney

Jackson, Senior Deputy Crittenden, and Mitchell Morrissey), and Sean Olsen (the attorney for

the Denver Police Protective Association), and others, to engage in a cover-up aimed at

obstructing or burdening Mr. Damon’s meaningful access to the courts for redress of the

violation of his constitutional rights through his estate and his wife and children’s rights to

proceed to redress aggravated wrongful death individually.

325. Defendant Motz, members of the Denver Internal Affairs Unit (including

Detectives Bisgard, Lopez, and Denison), members of the District Attorney’s Office (including

Chief Deputy District Attorney Jackson, Senior Deputy Crittenden, and Mitchell Morrissey), and

Sean Olsen (the attorney for the Denver Police Protective Association), and others, conspired as

willful joint participants for the purposes of covering up Defendant Motz’s violation of Mr.

Damon’s constitutional rights through his estate, specifically the right to be free from excessive

force as well as of the individual plaintiffs to seek wrongful death redress.

326. In furtherance of this conspiracy, members of the Denver Internal Affairs Unit

(including Detectives Bisgard, Lopez, and Denison) and members of the District Attorney’s

Office (including Chief Deputy District Attorney Jackson, Senior Deputy Crittenden, and

Mitchell Morrissey), and others, instituted a sham investigation, the sole purpose of which was to

exonerate Defendant Motz and harm any legal claims the family and Estate of Mr. Damon might

have against Defendant Motz and Denver.

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327. Plaintiffs suffered a deprivation of their rights under the First, Fourth, and

Fourteenth Amendments as a consequence of the conspiracy between Defendant Motz, members

of the Denver Internal Affairs Unit (including Detectives Bisgard, Lopez, and Denison),

members of the District Attorney’s Office (including Chief Deputy District Attorney Jackson,

Senior Deputy Crittenden, and Mitchell Morrissey), and Sean Olsen (the attorney for the Denver

Police Protective Association) and others.

328. As a direct and proximate cause of the unlawful actions of Defendant Motz,

members of the Denver Internal Affairs Unit (including Detectives Bisgard, Lopez, and

Denison), members of the District Attorney’s Office (including Chief Deputy District Attorney

Jackson, Senior Deputy Crittenden, and Mitchell Morrissey), Sean Olsen (the attorney for the

Denver Police Protective Association), and others, Plaintiffs suffered damages.

329. Defendant Denver has a custom, policy, and practice of participating in and

encouraging conspiracies among its police officers and deputies aimed at covering-up official

misconduct and obstructing justice for those brutalized by Denver deputies and police officers

through practices that include fabrication and manufacturing of false evidence.

330. Defendant Denver’s custom, policy, and practice of participating in and

encouraging conspiracies aimed at covering-up official misconduct and obstructing justice for

those brutalized by Denver deputies and police officers caused the conspiracy engaged in by

Defendant Motz, members of the Denver Internal Affairs Unit (including Detectives Bisgard,

Lopez, and Denison), members of the District Attorney’s Office (including Chief Deputy District

Attorney Jackson, Senior Deputy Crittenden, and Mitchell Morrissey), and Sean Olsen (the

attorney for the Denver Police Protective Association), and others, which was aimed at violating

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(and violated) the constitutional rights of Mr. Damon, those of his estate and the individual rights

of the individual plaintiffs herein to seek wrongful death redress under Colorado law for this

felonious killing.

331. This conspiracy between Defendant Motz, members of the Denver Internal

Affairs Unit (including Detectives Bisgard, Lopez, and Denison), members of the District

Attorney’s Office (including Chief Deputy District Attorney Jackson, Senior Deputy Crittenden,

and Mitchell Morrissey), and Sean Olsen (the attorney for the Denver Police Protective

Association), and others, was ultimately responsible for, and the proximate and direct cause of

the violation of Plaintiffs’ rights and the injuries that ensued.

332. Defendant Denver’s custom, policy, and practice is ultimately responsible for, and

the proximate and direct cause of the violation of Plaintiffs’ rights and the injuries that ensued.

333. As a proximate result of Defendant’s unlawful conduct, Plaintiff Estate and the

individual Plaintiffs have suffered injuries and losses, including the death of Mr. Damon,

entitling it and them to recover their compensatory and special damages, including for loss of

constitutional rights, loss of enjoyment of life, and Mr. Damon’s herein described horrific and

terrifying pain and suffering during and leading up this fatal event, permanent lost earnings and

earnings capacity for the expected productive working lifetime of Mr. Damon under the

mortality tables and other special damages, all in amounts to be proven at trial.

334. Plaintiffs are entitled to attorneys’ fees and costs pursuant to 42 U.S.C.§1988, pre-

judgment interest and costs as allowable by federal law.

335. In addition to compensatory, economic, consequential and special damages,

Plaintiffs are entitled to punitive damages against individual Defendants, in that the actions were

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taken maliciously, willfully or with a reckless or wanton disregard of the constitutional rights of

Plaintiff.

THIRD CLAIM FOR RELIEF


State Law Claim for Wrongful Death under C.R.S. § 13-21-202
(Plaintiffs Dawn Aguirre, Jerrell Germain, Dion Avila, Deion Avila, and A.A.
Against Defendant Motz)

336. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

337. Plaintiffs, as the wife and children of Mr. Damon, suffered and continue to suffer

economic and non-economic damages due to Defendant Motz’s conduct toward their husband

and father, including but not limited to economic damages for funeral expenses and financial

losses due to the financial benefits they may have reasonably expected to receive from their

husband and father had he lived, and non-economic damages for grief, loss of their husband and

father’s companionship, impairment in the quality of their life, inconvenience, pain and

suffering, and extreme emotional stress.

338. Defendant Motz’s conduct was attended by circumstances of malice, or willful

and wanton conduct, which Defendants must have realized was dangerous, or that was done

heedlessly and recklessly, without regard to the consequences to Mr. Damon or his family, his

safety and life and their lives.

339. Defendant Motz consciously disregarded a substantial and unjustifiable risk that

he knew or should have known would cause the death of another.

340. Defendant Motz’s conduct also constituted a felonious killing under C.R.S. §§ 13-

21-203 and 15-11-803, in that his conduct caused the death of Mr. Damon and that Defendant

Motz (1) consciously disregarded (2) a substantial and (3) unjustifiable risk that he would (4)

86
cause the death of another, namely, Mr. Damon and such that there shall be no statutory

limitation on damages available herein to Plaintiffs.

341. Defendant Motz’s actions were willful and wanton and, therefore, his conduct is

not subject to immunity under the Colorado Governmental Immunity Act. Colo. Rev. Stat. § 24-

10-118(2)(a) and the resultant damages requested in this claim are uncapped on this ground as

well.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their

favor and against Defendants, and grant:

(a) All appropriate relief at law and equity;

(b) Declaratory relief and other appropriate equitable relief;

(c) Economic losses on all claims allowed by law;

(d) Compensatory and consequential damages, including damages for emotional distress,

humiliation, loss of life, loss of enjoyment of life, and other pain and suffering on all

claims allowed by law in an amount to be determined at trial;

(e) Punitive damages on all federal claims as allowed by law and in an amount to be

determined at trial;4

(f) Attorneys’ fees and costs associated with this action, including expert witness fees, on

all claims allowed by law;

(g) Pre- and post-judgment interest at the highest lawful rate; and

4
Plaintiffs do not currently seek punitive damages against any public employees for willful and
wanton wrongful death on their state law theory, but will do so when appropriate under Colorado
State law.
   

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(h) Any further relief that this Court deems just and proper; and any other relief as

allowed by law.

PLAINTIFFS HEREBY DEMAND A JURY TRIAL ON ALL ISSUES SO TRIABLE

Dated this 10th day of April, 2018.

HOLLAND, HOLLAND EDWARDS & GROSSMAN, PC KILLMER, LANE & NEWMAN, LLP

/s/ John Holland /s/ Darold Killmer


John Holland Darold Killmer
Anna Holland Edwards Mari Newman
Erica Grossman Andrew McNulty
Dan Weiss KILLMER, LANE & NEWMAN, LLP
HOLLAND, HOLLAND EDWARDS & GROSSMAN, PC 1543 Champa Street, Suite 400
1437 High Street Denver, CO 80202
Denver, CO 80218 303-571-1000
303-860-1331 dkillmer@kln-law.com
john@hheglaw.com mnewman@kln-law.com
anna@hheglaw.com amcnulty@kln-law.com
erica@hheglaw.com
dan@hheglaw.com ATTORNEYS FOR THE ESTATE OF DION
DAMON AND PLAINTIFFS JERRELL GERMAIN,
ATTORNEYS FOR THE ESTATE OF DION DAMON AND DION AVILA, DEION AVILA, TERESA AVILA,
FOR PLAINTIFF AGUIRRE A.A.

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