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Case 1:08-cv-02808-WDM -BNB Document 32 Filed 09/30/09 USDC Colorado Page 1 of 11

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO

Civil Action No. 08-cv-02808-WDM-BNB

DAVID KRAUS,

Plaintiff,

v.

VICKIE FERRARI, in her individual and official capacity,


THE CITY AND COUNTY OF DENVER, a municipality,

Defendants.

AMENDED COMPLAINT

Plaintiff David Kraus (“Plaintiff” or “Kraus”), by and through his attorneys, David

A. Lane and Qusair Mohamedbhai of KILLMER, LANE & NEWMAN, LLP respectfully

alleges for his Amended Complaint as follows:

FACTS

1. This is an action for damages against Defendants for violating Kraus’

rights under the First, Fourth and Fifth Amendments of the Constitution of the United

States. Plaintiff alleges that Defendant Ferrari violated his Fourth Amendment rights

when, intentionally, knowingly, recklessly, and with deliberate indifference to his

constitutional rights, subjected him to an intrusive, unjustified, and illegal search and

seizure without any basis for believing he was engaged in criminal activity. Plaintiff

alleges that Defendant Denver failed to train and supervise Defendant Ferrari

concerning excessive force during arrests, use of handcuffs, and unlawful use of private

property. Plaintiff alleges that Defendant Ferrari retaliated against him when he
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engaged in constitutionally protected conduct and speech by seeking the exclusion of

Defendant Ferrari from private property. Defendant Ferrari arrested Kraus for allegedly

violating Denver Municipal Ordinance § 38-31 – Interference, and C.R.S. § 18-12-

204(2) – failure to show a concealed weapons permit.

2. On June 27, 2007, Plaintiff was the manager at a Grease Monkey store

located at 15077 East 43rd Avenue, in Denver, Colorado.

3. Defendant was monitoring traffic at that location and had pulled her police

cruiser into the entry way to the Grease Monkey shop, blocking traffic from easy ingress

and egress from that location.

4. Plaintiff politely asked the Defendant twice if she would move her cruiser

off private property that he controlled so that his customers could get in and out of the

shop more easily.

5. Defendant responded that she would not move her car so Plaintiff then

requested a business card from her.

6. Defendant refused to give him a business card and began arguing with

Plaintiff.

7. Defendant in a fit of anger arrested Plaintiff.

8. Defendant handcuffed Plaintiff and knowingly and intentionally, willfully

and wantonly cranked down the cuffs knowing this would cause severe pain to Plaintiff

and could possibly result in nerve damage, thereby causing permanent nerve damage

to Plaintiff’s hand despite Plaintiff’s statements to her that the cuffs were on too tightly.

9. Plaintiff is an honorably discharged Marine Corp veteran who served in

Vietnam. He is a Boy Scout leader and a minister of his church. He is a solid, law-

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abiding citizen and gave the Defendant no reason to believe he had committed any

offense.

10. Ferrari arrested Kraus in violation of his First, Fifth, and Fourth

Amendment rights without probable cause.

11. Ferrari, by intentionally putting the hand cuffs on too tightly, violated

Kraus’s right to procedural and substantive due process of law and seized him in an

unreasonable manner.

12. Plaintiff spent several hours in jail as a result of the unconstitutional

actions of the Defendant.

13. All criminal charges were dismissed against Plaintiff.

JURISDICTION & VENUE

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

including Article III, Section 1 of the United States Constitution and 42 U.S.C. § 1983.

Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331, 1343 and 2201.

Jurisdiction supporting Plaintiffs’ claims for attorney fees is conferred by 42 U.S.C. §

1988.

15. Venue is proper in the District of Colorado pursuant to 28 U.S.C. §

1391(b). All of the events alleged herein occurred within the state of Colorado, and all

of the parties are residents of the state. At all pertinent times mentioned herein, Defen-

dant was employed by the City and County of Denver, State of Colorado, and was

acting under color of state law.

PARTIES

16. At all pertinent times mentioned herein, Plaintiff was a citizen of the United

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States of America, and a resident of Colorado.

17. At all pertinent times mentioned herein, Defendant Ferrari was a police

officer employed by the City and County of Denver. Defendant Denver is a municipal

entity for purposes of § 1983. Defendant Denver has final policy making authority over

the person and acts of Defendant Ferrari.

18. At all times, Defendant Ferrari was acting within the scope of her duties

and employment, under color and authority of state law, and in her individual and official

capacities as a law enforcement officer.

FIRST CLAIM FOR RELIEF


(§ 1983 Fourth Amendment Violation – Unlawful Seizure)

19. Plaintiff incorporates all other paragraphs of this Amended Complaint for

purposes of this claim.

20. The actions of Defendants as described herein, while acting under color of

state law, intentionally deprived Plaintiff of the securities, rights, privileges, liberties, and

immunities secured by the Constitution of the United States of America, including his

right to freedom from unlawful seizures as guaranteed by the Fourth Amendment to the

Constitution of the United States of America and 42 U.S.C. §1983, in that the Defendant

Ferrari had no probable cause or reasonable suspicion to believe that Plaintiff had

committed any violation of the law prior to seizing his person pursuant to the unlawful

arrest.

21. Defendant Ferrari improperly arrested Plaintiff and intentionally, knowingly,

and recklessly subjected him to an illegal, demeaning, and invasive seizure without any

reasonable justification. Defendant Denver has developed and maintained law

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enforcement related policies, procedures, customs, and/or practices exhibiting or

resulting in a deliberate indifference to the constitutional rights of citizens of Denver.

22. Defendants’ conduct proximately caused damages and economic losses

to Plaintiff.

SECOND CLAIM FOR RELIEF


(§ 1983 Violation –Excessive Force)

23. Plaintiff incorporates all other paragraphs of this Amended Complaint for

purposes of this claim.

24. Plaintiff had a constitutionally protected right to be secure in his person

against unreasonable seizures of the person.

25. Defendant Ferrari unlawfully seized the Plaintiff by means of excessive

physical force by handcuffing him too tightly and thereby unreasonably restrained him of

his freedom.

26. Defendant Ferrari’s actions, as described above, were objectively

unreasonable in light of the facts and circumstances confronting him. Defendant

Denver has developed and maintained law enforcement related policies, procedures,

customs, and/or practices exhibiting or resulting in a deliberate indifference to the

constitutional rights of citizens of Denver.

27. Defendant Ferrari’s actions, as described above, were motivated by intent

to harm Plaintiff.

28. As a direct result of Defendant Ferrari’s unlawful action as described

above the Plaintiff suffered actual physical and emotional injuries in an amount to be

proven at trial.

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THIRD CLAIM FOR RELIEF


(Retaliation in Violation of First Amendment)

29. Plaintiff incorporates all other paragraphs of this Amended Complaint for

purposes of this claim.

30. Plaintiff was engaging in constitutionally protected activity, including but

not limited to seeking exclusion of a government official from private property and his

protest of Defendant Ferrari for her objectionable conduct.

31. Plaintiff’s speech was related to objectionable police conduct, a matter of

important public concern.

32. Defendant Ferrari’s unlawful seizure of Plaintiff by means of excessive

physical force was substantially motivated as a response to Plaintiff’s exercise of

constitutionally protected conduct.

33. Defendant Ferrari’s adverse actions in retaliation for Plaintiff’s expressed

intention of exercising his First Amendment rights seeking exclusion of the government

from private property and complaining about objectionable police conduct caused

Plaintiff to suffer economic, physical and emotional injuries. Defendant Denver has

developed and maintained law enforcement related policies, procedures, customs,

and/or practices exhibiting or resulting in a deliberate indifference to the constitutional

rights of citizens of Denver.

34. Defendant Ferrari’s conduct violated clearly established rights belonging to

Plaintiff of which reasonable law enforcement knew or should have known.

35. Plaintiff’s right to speak out on issues of public concern outweighed any of

Defendant’s rights.

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36. Defendant Ferrari engaged in the conduct described by this Amended

Complaint willfully and maliciously and in reckless disregard of Plaintiff’s federally

protected constitutional rights.

37. Defendant Ferrari’s conduct proximately caused significant injuries,

damages and losses to Plaintiff.

FOURTH CLAIM FOR RELIEF


(Retaliation in Violation of Fifth Amendment)

38. Plaintiff incorporates all other paragraphs of this Amended Complaint for

purposes of this claim.

39. Defendant Ferrari was unlawfully on private property over which Plaintiff

had control.

40. Defendant Ferrari’s unlawful presence interfered with the use, enjoyment,

and commerce of private property over which Plaintiff had control.

41. Plaintiff twice requested that Defendant Ferrari leave the private property.

42. Defendant Ferrari twice refused Plaintiff’s request to leave the private

property.

43. Plaintiff was engaging in constitutionally protected activity pursuant to the

Fifth Amendment of the United States Constitution which guarantees the right to

exclude the government from one's private property.

44. Defendant Ferrari’s unlawful seizure of Plaintiff by means of excessive

physical force was substantially motivated as a response to Plaintiff’s exercise of

constitutionally protected conduct.

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45. Defendant Ferrari’s conduct interfered with the use, enjoyment, and

commerce of the private property which Plaintiff had control.

46. Plaintiff’s right to exclude Defendant Ferrari from the private property

outweighed any of Defendants’ rights.

47. Defendant Ferrari’s conduct violated clearly established rights belonging to

Plaintiff of which reasonable law enforcement knew or should have known.

48. Defendants’ conduct proximately caused significant injuries, damages and

losses to Plaintiff.

FIFTH CLAIM FOR RELIEF


(42 U.S.C. § 1983 - Constitutional Failure to Train and/or Supervise)
(Against Defendant City and County of Denver)

49. Plaintiff incorporates all other paragraphs of this Amended Complaint for

purposes of this claim.

50. Defendant Denver developed and maintained law enforcement related

policies, procedures, customs, and/or practices exhibiting or resulting in a deliberate

indifference to the constitutional rights of persons in the City and County of Denver,

which proximately caused the violation of Plaintiff’s constitutional rights.

51. Defendant Denver maintains policies, procedures, customs, and/or

practices that tacitly or explicitly authorize unlawful seizures by officers of the Denver

Police Department, including, but not limited to, the use of unnecessary and excessive

force through the use handcuffs, and the failure to train police on at least the following:

(1) the potential of serious injury associated with handcuffs; and (2) unlawful use of, and

trespass upon, private property.

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52. In light of the duties and responsibilities of those police officers that

participate in use of handcuffs and use of private property, arrests and/or traffic stops,

the need for specialized training and supervision is so obvious, and the inadequacy of

training and/or supervision is so likely to result in the violation of constitutional rights

such as those described herein.

53. Defendant City and County of Denver is liable for their failure to train and

to appropriately supervise officers of the Denver Police Department.

54. The inadequate training and supervision provided by Defendant City and

County of Denver resulted from a conscious or deliberate choice to follow a course of

action from among various alternatives available to Defendant Denver.

55. If any training was given to the Defendant Ferrari concerning civil rights of

members of the public to be free from constitutional violations, specifically First, Fourth

and Fifth Amendment violations and violations involving the use of excessive force,

Defendant Denver knew or should have known that such training was reckless or

grossly negligent and that misconduct in that area was almost inevitable.

56. Defendant Denver had a duty to protect the constitutional rights of the

members of the public from violations of those rights by members of the Denver Police

Department.

57. As a direct and proximate cause and consequence of Defendant Denver’s

failure to train and supervise, Plaintiff suffered injuries, damages and losses as set forth

above.

WHEREFORE, plaintiff respectfully request that this Court enter judgment in his

favor and against the Defendants, and grant:

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(a) Appropriate declaratory and other injunctive and/or equitable relief;

(b) Compensatory and consequential damages, including damages for

emotional distress, loss of reputation, humiliation, loss of enjoyment of life, and other

pain and suffering on all claims allowed by law in an amount to be determined at trial;

(c) All economic losses on all claims allowed by law;

(d) Punitive damages on all claims allowed by law and in an amount to be

determined at trial;

(e) Attorneys fees and the costs associated with this action, including those

associated with having to defend against the false criminal charge as well as expert

witness fees, on all claims allowed by law;

(f) Pre- and post-judgment interest at the lawful rate; and

(g) Any further relief that this court deems just and proper, and any other relief

as allowed by law.

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PLAINTIFF REQUESTS A TRIAL TO A JURY ON ALL ISSUES SO TRIABLE.

Dated this 24 day of September, 2009.

KILLMER, LANE & NEWMAN, LLP

s/ David A. Lane
___________________________________
David A. Lane
Qusair Mohamedbhai
1543 Champa Street, Suite 400
Denver, Colorado 80202
(303) 571-1000
Attorneys for Plaintiff

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