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Case 3:15-cv-02309-L Document 1 Filed 07/13/15

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IN THE UNITED STATES DISTRICT COURT


FOR NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TODD HATCHETT, as Next
Friend of K.H., A MINOR CHILD
Plaintiff,
v.
JACK KERMES
Defendant

CIVIL ACTION NO. 3:15-CV-2309

PLAINTIFFS ORIGINAL COMPLAINT


TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
NOW COMES, TODD HATCHETT, as Plaintiff and Next Friend of K.H., A Minor
Child, and in complaining against JACK KERMES, states as follows:
I.
1.

PARTIES

Plaintiff TODD HATCHETT, as Next Friend of K.H., A Minor Child, is a

resident of the City of Richardson in Dallas County, Texas.


2.

On April 8, 2013, and at all relevant times, Defendant Jack Kermes was a

City of Richardson police officer who was acting under the color of law and in the course
of his employment as a Richardson police officer when engaging in the complained of
conduct. Defendant Kermes is an individual residing in the City of Richardson in Dallas
County, Texas and can be served at his place of employment at the Richardson Police
Department, located at 140 N Greenville Ave, Richardson, TX 75081.
3.

At all relevant times, City of Richardson, a municipal corporation,

maintained, as a division of said municipal corporation, a certain police department,


commonly referred to as the City of Richardson Police Department.

Plaintiffs Original Complaint and Jury Demand


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II.
4.

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JURISDICTION AND VENUE

The Court has original jurisdiction over this action pursuant to 28 U.S.C.

1331 and 1343 since Plaintiff is suing for relief under 42 U.S.C. 1983. Any state law
claims are brought pursuant to 28 U.S.C. 1367 and are subject to this courts
supplemental jurisdiction because they arise out of the same case and controversy as
Plaintiffs federal claims. Venue is proper in the Northern District of Texas pursuant to
28 U.S.C. 1391 because the Defendants are domiciled and/or reside in the Northern
District of Texas, and all or a substantial part of the cause of action accrued in the
Northern District of Texas.
III.
5.

NATURE OF THE ACTION

This is a civil rights and wrongful death action for damages arising under

the Constitution of the United States, particularly the Fourth and Fourteenth
Amendments, and arising under the laws of the United States, particularly the Civil
Rights Act, 42 U.S.C. 1983, 1985, 1986, and 1988. This cause of action results from
the actions of City of Richardson Police Officer Jack Kermes during a low speed law
enforcement pursuit of Emily Krumrei, on April 8, 2013, in Richardson, Texas. This
incident resulted in the death of Emily Krumrei, who was shot by Defendant Jack
Kermes at the intersection of the 500 block of Dumont and Southbound Central
Expressway service road in Dallas County, Texas. Plaintiff Todd Hatchett is the natural
father and the next friend of Emily Krumreis minor child, K.H., and brings this action
to recover for the unlawful police activity, which caused Emily Krumreis death.

Plaintiffs Original Complaint and Jury Demand


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IV.
6.

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FACTS

On April 8, 2013 at approximately 8:25 a.m., Richardson Police Officer J.

Neitsch #923 was conducting stationary speed enforcement in the area of West Beltline
Road and Lindale Lane in Richardson, Texas.
7.

On the aforesaid date and time, Officer Neitsch attempted to stop a grey

Lexus ES 350 (hereinafter the Lexus) with dealer tags for speeding. Officer Neitsch
stepped into the roadway and put up his hand, indicating the traditional stop command
while issuing verbal commands to stop.
8.

The Lexus slowed down but did not stop. The Lexus then drove around

Officer Neitsch and continued westbound on Beltline. The Lexus turned left onto Floyd
Road and traveled southbound out of sight.
9.

Upon information and belief, Officer Neitsch broadcasted a description of

the Lexus to other officers in the area. Richardon Police Officer Billy Mannix spotted
the Lexus southbound on Nottingham. Mannix followed the Lexus for a short distance
as it turned left onto Dumas Drive.
10.

At approximately 8:30 a.m., on the aforesaid date, Defendant Kermes,

badge #612, who was a City of Richardson Police Officer, heard the description of the
Lexus on his portable radio as he was working a traffic accident near the intersection of
Dumont Drive and the 600 block of the Southwest Frontage Road of South Central
Expressway. As the Lexus proceeded east on Dumont Drive, Defendant Kermes
attempted to stop the Lexus, which was later determined to be driven by Emily
Josephine Krumrei.

Plaintiffs Original Complaint and Jury Demand


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11.

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Upon information and belief, when Kermes heard the broadcast radio call

there was no mention of the vehicles driver or anyone in the vehicle being armed
and/or dangerous, having used her vehicle in a manner that threatened the life of any
police officer or was a danger to the motoring public, and/or that the vehicle drivers or
anyone in the vehicle committed a crime involving the infliction or threatened infliction
of serious physical harm.
12.

According to eyewitnesses, as the Lexus approached the center of Dumont,

Defendant Kermes had his hand out and service weapon drawn. The Lexus then came to
a brief stop.
13.

Moments later, the Lexus slowly moved to the right in effort to go around

Kermes. As the Lexus began to pass Kermes over the south curb, Kermes was on the
drivers side of the Lexus, and in no danger of being hit by the alow moving Lexus.
14.

Kermes was more than an arms length distance from the drivers side

window of the Lexus when the Lexus began to go around Kermes.

At that time,

Defendant Kermes fired a shot through the drivers side window into Krumreis chest.
15.

At the time that Defendant Kermes shouted at Krumrei, the Lexuss

passenger and drivers windows were rolled up and were fully closed.
16.

At the time that Defendant Kermes shot Krumrei, Krumrei had allegedly

committed, at worst, the offenses of speeding and fleeing from an officer.


17.

At the time that Defendant Kermes shot Krumrei, Defendant Kermes had

no reason to believe that Krumrei was a dangerous person or posed a threat of harm to
any police officer or civilian.
18.

At the time that Defendant Kermes shot Krumrei, Defendant Kermes had

no reason to believe that Krumrei was armed with a weapon. At the time that Defendant
Plaintiffs Original Complaint and Jury Demand
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Kermes shot Krumrei, Krumrei had not physically injured anyone or threatened to
physically injure anyone.
19.

After Defendant Kermes shot Krumrei, the Lexus that Krumrei was driving

briefly drove towards the frontage road of Central Expressway before colliding with a
guardrail. Emily Krumrei died as a result of the gunshot.
20.

At the time of the shooting, the City of Richardsons use of force policy

required that deadly force will only be utilized in response to the immediate threat of
death or serious bodily injury to any person(s).
21.

At the time Defendant Kermes utilized and deployed his firearm, it was

unreasonable for Defendant Kermes to employ or use deadly force to stop the slow
moving Lexus.
22.

Furthermore, at the time Kermes shot and killed Krumrei, Defendant

Kermes was not in imminent danger or any danger at all. Upon information and belief,
Kermes declined any medical attention at the scene. Defendant Kermes displayed no
signs of any visible injuries or bruising to his body that would indicate that he was at any
time in immediate danger of death or serious bodily injury, or any danger whatsoever.
Count I
Excessive Force
42 U.S.C. 1983
23.

Plaintiff here repeats and re-allege the allegations contained in paragraphs

1 through 22 as though fully set forth herein.


24.

At all times relevant, Defendant Jack Kermes was an authorized officer,

agent, and/or employee of the City of Richardson Police Department, and was acting in
the course of his employment and under color of state law.

Plaintiffs Original Complaint and Jury Demand


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25.

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At all times relevant, it was the duty of Defendant Kermes, individually

and as an officer, agent and/or employee of the City of Richardson Police Department,
to refrain from using unreasonable excessive and/or deadly force against others,
including Plaintiff and decedent.
26.

Defendant Jack Kermes, acting under color of law, deprived Decedent and

Plaintiff of certain constitutionally protected rights wherein Defendant:


a.

Made an unlawful and unreasonable seizure of the Decedents person;

b.

Used excessive and unreasonable force to accomplish this unlawful


seizure, in that the Defendant Jack Kermes fired at least one round from
his service weapon into the torso of Decedent Emily Krumrei which action
was unwarranted, unreasonable, and excessive according to the
circumstances in which the Defendant Kermes found himself.

27.

At all times relevant, the aforementioned conduct of Defendant Kermes

constituted unreasonable excessive and deadly force in violation of the United States
Constitution.
28.

The actions of Defendant Kermes were objectively unreasonable and were

undertaken intentionally with willful indifference to decedents constitutional rights.


29.

The actions of Defendant Kermes would not be considered reasonable by a

reasonably competent police officer in the circumstances presented at the time that
Defendant Kermes used such force.
30.

The actions of Defendant Kermes were undertaken intentionally, willfully,

with malice, and with reckless indifference to Emily Krumreis constitutional rights.
31.

As a proximate cause of Defendants unreasonable and excessive use of

force, Emily Krumrei experienced injuries, including physical and psychological pain
and suffering and eventually death.

Plaintiffs Original Complaint and Jury Demand


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V.
32.

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QUALIFIED IMMUNITY

It is anticipated that the Defendant Kermes will raise, or attempt to raise, a

defense of qualified immunity. In this regard, Plaintiff pleads that it was wellestablished law, well before April 8, 2013, that every citizen of the United States has a
clearly defined constitutional right to be free from an unlawful seizure by law
enforcement officials in accordance with the Fourth Amendment to the United States
Constitution, as applied to the several States through the Fourteenth Amendment, and
to be free from unlawful excessive force. No reasonable law enforcement official would
have acted as Defendant did under these circumstances, by shooting and killing a
motorist who failed to stop for a traffic violation. The use of force was grossly excessive
and unwarranted. The Defendant is not, therefore, entitled to the protection of qualified
immunity for his actions.
VI.
33.

EXEMPLARY DAMAGES

Plaintiff repeats and realleges the allegations contained in paragraphs 1

through 22 as though fully set forth herein.


34.

When viewed objectively from the standpoint of Defendant Jack Kermes,

at the time of the occurrence, said Defendants conduct involved an extreme degree of
risk, considering the probability and magnitude of the potential harm to others.
VII.
35.

PLAINTIFFS DAMAGES

Plaintiff here repeats and re-alleges the allegations contained in

paragraphs 1 through 22 as though fully set forth herein by reference.


36.

As the direct and proximate result of the Defendants unlawful conduct,

Emily Krumrei suffered death. Plaintiff is therefore entitled to bring, and hereby does
bring, this action under Chapter 71 of the TEX. CIV. PRAC. REM. CODE, the Wrongful
Plaintiffs Original Complaint and Jury Demand
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Death Act of the State of Texas.


37.

As a result of this claim under the Wrongful Death Act, Plaintiff is entitled

to recover damages arising from the death of Emily Krumrei within the jurisdictional
limits of this court, for the following:
a.

Pecuniary loss in the past;

b.

Loss of companionship and society in the past;

c.

Loss of companionship and society that, in reasonable probability,


will sustain in the future;

d.

Mental anguish sustained in the past;

e.

Mental anguish that, in reasonable probability, will sustain in


the future;
XIII. ATTORNEY FEES

38.

It was necessary for Plaintiff to hire the undersigned attorneys to file this

lawsuit. Upon judgment, Plaintiff is entitled to an award of attorney fees and costs
under 42 U.S.C. 1988(b).
IX.
39.

DEMAND FOR A JURY TRIAL

Plaintiff hereby requests a jury trial.


PRAYER FOR RELIEF

40.

For the reasons stated above, Plaintiff asks for judgment against

Defendant for the following:


a.

Actual damages in an amount to be proved at trial;

b.

Punitive damages in an amount deemed appropriate to punish


Defendant Kermes for his outrageous conduct in killing Emily
Krumrei;

c.

Prejudgment and post-judgment interest;

d.

Costs of suit, including attorney fees; and


Plaintiffs Original Complaint and Jury Demand
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e.

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All other, further and different relief as this Court deems just and
proper.
Respectfully submitted,
/s/ Scott H. Palmer
SCOTT H. PALMER
State Bar No. 00797196
J.R. FLETCHER
State Bar No. 24038304
SCOTT H. PALMER, P.C.
15455 Dallas Parkway
Suite 540, LB 36
Addison, Texas 75001
(214) 987-4100
(214) 922-9900 Fax
scott@scottpalmerlaw.com
Antonio M. Romanucci
Angela P. Kurtz
Martin D. Gould
ROMANUCCI & BLANDIN, LLC
321 North Clark Street, Suite 900
Chicago, Illinois 60654
Tel: (312) 458-1000
ATTORNEYS FOR PLAINTIFF

Plaintiffs Original Complaint and Jury Demand


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