Case 1:11-cv-00102-MSK Document 1 Filed 01/13/11 USDC Colorado Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.

DANIEL MARTINEZ JR.;

NATHAN MARTINEZ;
DANIEL MARTINEZ III;
JONATHAN MARTINEZ;

Plaintiffs,

v.

CITY AND COUNTY OF DENVER, a municipality;

GERALD WHITMAN, in his official capacity;
JASON VALDEZ, in his individual and official capacity;
ROBERT MARTINEZ, in his individual and official capacity;
ROBERT MOTYKA, in his individual and official capacity;
BRYCE JACKSON, in his individual and official capacity;

Defendants.

COMPLAINT AND JURY DEMAND

Plaintiffs by and through their attorneys, David A. Lane and Qusair Mohamedbhai of

KILLMER, LANE & NEWMAN, LLP respectfully allege for their Complaint as follows:

INTRODUCTION

1. This is an action for damages against Defendant City and County of Denver, and

Defendants Jason Valdez, Robert Martinez, Robert Motyka, and Bryce Jackson (individual law

enforcement defendants collectively referred to as (“Defendant Officers”)), all members of the

Denver Police Department.

2. Defendants intentionally, knowingly, recklessly, and with deliberate indifference

to Plaintiffs’ constitutional rights, unlawfully entered their residence and subjected them to an

intrusive and unjustified seizure and illegal use of excessive force. Defendants violated
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Plaintiffs’ Fourth and Fourteenth Amendment rights when they recklessly, knowingly,

intentionally, willfully, and wantonly sought Plaintiffs’ arrests and instituted legal process

against them by acting with knowledge that Plaintiffs had committed no violation of law.

3. Defendants’ conduct was performed under color of state law and directly or

proximately caused the deprivation of Plaintiffs’ federally protected rights. Defendants Denver

and Whitman have a continuing, persistent and widespread practice of unconstitutional

misconduct by its police officers engaging in unlawful entry, false arrest, excessive force, and

malicious prosecution. Defendants Denver and Whitman exhibit deliberate indifference to or

tacit approval of its police officers’ misconduct, which is Denver’s official custom, policy, or

practice. That custom, policy, or practice was the moving force behind Defendants’

unconstitutional acts.

4. Defendants Denver and Whitman failed to train and supervise Defendant Officers

concerning the Fourth Amendment and use of excessive force during arrests. Defendants Denver

and Whitman tacitly approved of these officers’ conduct by retaining their employment,

disregarding citizen complaints of excessive force against them, and/or completely failing to

discipline them.

JURISDICTION AND VENUE

5. Jurisdiction over these claims is conferred upon this Court pursuant to 28 U.S.C. §

1331 and § 1343(a)(3), and this case is brought pursuant to 42 U.S.C. § 1983. Jurisdiction

supporting Plaintiffs’ claims for attorney fees is conferred by and brought pursuant to 42 U.S.C.

§ 1988.

6. 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 were

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residents of the State of Colorado at all relevant times stated herein.

PARTIES

7. At all times relevant to this Complaint, Plaintiffs were citizens of the United

States of America and residents of the State of Colorado. Plaintiff Daniel Martinez Jr. is the

father of the Martinez household. Nathan (19 years old), Daniel III (21 years old), and Jonathan

(16 years old) are all biological sons of Mr. Martinez Jr.

8. Defendant City and County of Denver is a political subdivision of the State of

Colorado.

9. At all times relevant hereto, Defendant Gerald Whitman was a citizen of the

United States and a resident of the State of Colorado. Defendant Gerald Whitman is sued in his

official capacity as the Chief of the Denver Police Department, employed by the Defendant City

and/or the Denver Police Department, and was acting under color of state law.

10. At all times relevant to this Complaint, Officer Jason Valdez, Badge No. 06123;

Officer Robert Martinez, Badge No. 05040; Sergeant Robert Motyka, Badge No. 96049; and

Officer Bryce Jackson, Badge No. 04035 were employed by the City and County of Denver as

members of the Denver Police Department, and acting under color of state law.

11. At all times relevant to this Complaint, the City and Denver and all of its agents

and employees were acting within the scope of their official duties and employment, under color

of state law.

FACTS

12. On or about January 9, 2009, the Martinez family moved into 1263 N. Stuart

Street, Denver, Colorado 80204.

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13. Approximately four weeks prior to the Martinez family’s move into the residence,

Defendant Denver’s law enforcement had received information alleging drugs and prostitution

activity occurring at the residence. However, the former tenants had been evicted from the

residence a month prior to the incident described herein.

14. On January 27, 2009, at 11:10 p.m., under cover of darkness, Defendant Officers

arrived at the Martinez family’s front door. Defendant Jackson and one other officer were in the

backyard.

15. Plaintiffs and other members of their family were inside the residence. No

member of the Martinez family was engaging in any criminal behavior whatsoever.

16. Denver Police made no attempt to obtain a warrant prior to the planned operation.

17. Defendant Valdez approached the Martinez family’s front door and pounded on

the door. Defendant Martinez was immediately behind Defendant Valdez. Defendant Motyka

was approximately ten feet behind Defendant Martinez.

18. While pounding on the front door, Defendant Valdez yelled to the occupants

inside the residence to “open the damn door right now.”

19. Plaintiff Daniel Martinez Jr. rushed to the front door in response to pounding and

yelling by members of Defendant Denver’s law enforcement. His son, Plaintiff Daniel Martinez

III, was immediately behind him.

20. At no time did any member of law enforcement advise Plaintiff Daniel Martinez

Jr. that he did not have to open the door and/or consent to the entry of law enforcement into the

residence.

21. Plaintiff Daniel Martinez Jr. slightly opened the front door. No member of the

Martinez family gave consent to any member of law enforcement to enter to residence.

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22. As soon as the door was slightly opened, after removing a bungee cord which

bound the front door to the outside glass screen door, Defendant Officers rushed into the home.

23. Defendant Valdez was the first member of law enforcement to unlawfully enter

the residence. He ran past Plaintiffs Daniel Martinez Jr. and Daniel Martinez III and physically

engaged Plaintiff Jonathan Martinez at the threshold of the Martinez family residence.

24. Defendant Valdez never made it more than two to three feet into the Martinez

residence while he was engaged with Plaintiff Jonathan Martinez.

25. Defendant Valdez slammed Plaintiff Jonathan Martinez’s head through a window

next to the front door. Defendant Valdez then roughly pulled Plaintiff Jonathan Martinez

outside the residence, body slammed him into the cold concrete, and forcibly placed handcuffs

on him.

26. At no time did Plaintiff Jonathan Martinez act aggressively towards Defendant

Valdez, assault any officer, resist arrest, or engage in any conduct which would have justified

Defendant Valdez’s use of force against him or his arrest.

27. Defendant Martinez next entered the residence and approached Plaintiff Daniel

Martinez Jr. Defendant Martinez pushed Plaintiff Martinez Jr. into the living room, and pinned

him against the sofa. Thereafter, Defendant Martinez placed Plaintiff Martinez Jr. into

handcuffs.

28. At no time did Plaintiff Martinez Jr. act aggressively towards Defendant Martinez

or any other member of law enforcement, or engage in any conduct which would have justified

his arrest by Defendant Martinez.

29. Defendant Motyka next entered the residence and proceeded into living room. He

approached Plaintiff Nathan Martinez and violently punched him the face. The force of the

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impact launched Plaintiff Martinez off his feet. Plaintiff Nathan Martinez staggered back

approximately five feet and he fell backwards onto a sofa. Thereafter, Defendant Motyka

handcuffed Nathan Martinez and placed him into custody.

30. At no time did Plaintiff Nathan Martinez act aggressively towards Defendant

Motyka, assault any officer, resist arrest, or engage in any conduct which would have justified

Defendant Motyka’s use of force against him or his arrest.

31. Defendant Jackson entered the home and confronted Plaintiff Daniel Martinez III.

Defendant Jackson dragged Plaintiff Daniel Martinez from the residence, violently body

slammed him into the snow covered concrete, and placed him into handcuffs.

32. At no time did Plaintiff Martinez III act aggressively towards Defendant Jackson

or any other member of law enforcement.

33. After all Plaintiffs were arrested and in handcuffs, they were taken into the

residence, and placed on the living room sofa.

34. All Plaintiffs were required to show their social security cards in order to prove

that they were not illegal immigrants.

35. No Plaintiff or anyone else inside the Martinez residence was engaged in any

unlawful activity.

36. Plaintiffs were taken to the Denver City Jail. Plaintiffs Nathan Martinez, Daniel

Martinez III, and Jonathan Martinez were each charged with Third Degree Assault on a Peace

Officer. Plaintiff Daniel Martinez Jr. was charged with Interference with a Police Officer.

37. On January 4-6, 2010, the jury trial for the co-defendants Plaintiff Nathan

Martinez and Plaintiff Daniel Martinez III was conducted. Plaintiffs Nathan Martinez and

Daniel Martinez III were found not guilty on all charges.

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38. Subsequent to this jury trial, all charges against Plaintiff Daniel Martinez Jr. were

dismissed on motion by the Denver City Attorney’s Office.

39. Plaintiff Jonathan Martinez had all charges dismissed against him.

40. With deliberate indifference to the rights of citizens to be free from excessive

force by police, the Defendants Denver and Whitman have encouraged, tolerated, ratified, and

acquiesced to a dangerous environment of police brutality by failing to conduct sufficient

training or supervision with respect to the constitutional limitations on the use of force; by failing

to adequately punish unconstitutional uses of force; by tolerating the use of unconstitutional

force; by failing to properly or neutrally investigate citizen complaints of excessive force; and,

by tolerating, encouraging, and permitting collusive statements by involved officers in such

situations.

FIRST CLAIM FOR RELIEF

(§ 1983 Fourth Amendment Violation – Excessive Force)

41. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

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

law, intentionally deprived Plaintiffs of the securities, rights, privileges, liberties, and immunities

secured by the Constitution of the United States of America, including their rights 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 Defendants had no probable cause or

reasonable suspicion to believe that Plaintiffs had committed any violation of the law prior to

seizing their person by means of excessive force.

43. Defendants unlawfully seized Plaintiffs by means of excessive physical force and

thereby unreasonably restrained their freedom.

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44. Defendants’ actions, as described above, were objectively unreasonable in light of

the facts and circumstances confronting them.

45. Defendants’ actions, as described above, were motivated by intent to harm

Plaintiffs.

46. Defendants’ actions, as described herein, were undertaken intentionally, willfully,

and wantonly.

47. Defendants’ conduct violated clearly established rights belonging to Plaintiffs of

which reasonable law enforcement officers knew or should have known.

48. Defendants Denver and Whitman failed to properly hire, train, supervise and/or

discipline members of its police department regarding the proper use of physical force during

arrest.

49. This inadequate hiring, training and/or supervision results from a conscious or

deliberate choice to follow a course of action from among various alternatives available to the

Defendants Denver and Whitman.

50. Such failure to properly hire, train and supervise was the moving force behind and

proximate cause of Defendants’ use of excessive force against Plaintiffs, and constitutes an

unconstitutional policy, procedure, custom, and/or practice.

51. Plaintiffs have been and continue to be damaged by Defendants’ use of excessive

force against them.

52. The acts or omissions of each Defendant, including the unconstitutional policy,

procedure, custom and/or practice described herein, were the legal and proximate cause of

Plaintiffs’ damages.

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53. As a direct result of Defendants’ unlawful action as described above, Plaintiffs

suffered actual physical, emotional, and economic injuries in an amount to be proven at trial.

SECOND CLAIM FOR RELIEF

(42 U.S.C. § 1983 Fourth Amendment Violation – False Arrest / Unlawful Seizure)

54. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

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

law, intentionally deprived Plaintiffs of the securities, rights, privileges, liberties, and immunities

secured by the Constitution of the United States of America, including their rights to freedom

from unlawful seizure as guaranteed by the Fourth Amendment to the Constitution of the United

States of America and 42 U.S.C. §1983, in that Plaintiffs were unlawfully physically seized by

the Defendants without probable cause to believe they had committed any offense.

56. Defendants intentionally, knowingly, recklessly, and excessively subdued,

restrained, detained and falsely arrested Plaintiffs without any reasonable justification or

probable cause.

57. Defendants’ conduct violated clearly established rights belonging to Plaintiffs of

which reasonable law enforcement officers knew or should have known.

58. Defendants Denver and Whitman failed to properly hire, train, supervise, and/or

discipline members of its law enforcement regarding issues of probable cause during arrest.

59. This inadequate hiring, training and/or supervision results from a conscious or

deliberate choice to follow a course of action from among various alternatives available to

Defendants Denver and Whitman.

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60. Such failure to properly hire, train, and supervise was the moving force behind

and proximate cause of Defendants’ false arrest without probable cause of Plaintiffs, and

constitutes an unconstitutional policy, procedure, custom, and/or practice.

61. The acts or omissions of each Defendant, including the unconstitutional policy,

procedure, custom and/or practice described herein, were the legal and proximate cause of

Plaintiffs’ damages.

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

economic losses to Plaintiffs.

THIRD CLAIM FOR RELIEF

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

63. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

64. Defendants Denver and Whitman developed and maintained law enforcement

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

indifference to the Fourth and Fourteenth Amendment protected constitutional rights of persons

in the City and County of Denver, which proximately caused the violation of Plaintiffs’

constitutional rights.

65. Defendants Denver and Whitman maintains policies, procedures, customs, and/or

practices that tacitly or explicitly authorize unlawful seizures by means of excessive force, and

failures to intervene, by officers of the Denver Police Department, including, but not limited to,

the failure to train on at least the following: respecting the Fourth and Fourteenth Amendment

rights of arrestees.

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66. In light of the duties and responsibilities of those law enforcement officers that

participate in providing safety and security for arrestees, 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.

67. Defendants Denver and Whitman is liable for their failure to train and to

appropriately supervise officers of the Denver Police Department.

68. The inadequate training and supervision provided by Defendants Denver and

Whitman resulted from a conscious or deliberate choice to follow a course of action from among

various alternatives available to Denver.

69. If any training was given to each Defendant Officer concerning civil rights of

arrestees to be free from constitutional violations, specifically Fourth and Fourteenth

Amendment violations, Defendants Denver and Whitman knew or should have known that such

training was reckless or grossly negligent and that misconduct in that area was almost inevitable.

70. Defendants Denver and Whitman has a duty to protect the constitutional rights of

the members of the public from violations of those rights by members of its Police Department.

71. As a direct and proximate cause and consequence of Defendants Denver and

Whitman’s failure to train and supervise, Plaintiffs suffered injuries, damages, and losses as set

forth above.

FOURTH CLAIM FOR RELIEF

(42 U.S.C. § 1983 – Fourth & Fourteenth Amendment Violation – Unlawful Entry)

72. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

73. Plaintiffs had a constitutionally protected right to be secure in their person against

unreasonable intrusions into and searches of their residence.

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74. Defendants entered Plaintiffs’ residence without their permission or consent.

75. Defendants had no warrant authorizing a search or entry of Plaintiffs’ residence.

76. No legally recognizable exigent circumstances existed which would have

permitted Defendants’ warrantless entry of Plaintiffs’ residence.

77. Plaintiffs nor anyone in control of Plaintiffs’ residence consented to permit

Defendants to enter the Martinez residence.

78. Defendants’ conduct violated clearly established rights belonging to Plaintiffs of

which reasonable law enforcement officers knew or should have known.

79. Defendants Denver and Whitman failed to properly hire, train, supervise, and/or

discipline members of its law enforcement regarding issues of constitutionally permissible entry

into a residence.

80. This inadequate hiring, training, and/or supervision results from a conscious or

deliberate choice to follow a course of action from among various alternatives available to the

Defendants Denver and Whitman.

81. Such failure to properly hire, train and supervise was the moving force behind and

proximate cause of Defendants’ unlawful entry into Plaintiffs’ residence, and constitutes an

unconstitutional policy, procedure, custom and/or practice.

82. As a direct and proximate cause and consequence of Defendants’ violation of

Plaintiffs’ rights under the Fourth Amendment and Fourteenth Amendment, Plaintiffs suffered

injuries in an amount to be proven at trial.

FIFTH CLAIM FOR RELIEF

42 U.S.C. § 1983 –– Malicious Prosecution
(4th Amendment and 14th Amendment Procedural Due Process Violations)

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83. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

84. Defendants, acting without probable cause, procured groundless charges against

Plaintiffs through fabrication of inculpatory evidence and false, distorted, perjurious testimony

presented to prosecutors in order to maliciously bring about Plaintiffs’ criminal prosecution.

85. Defendant Officers, acting knowingly, maliciously, willfully and wantonly, and

evincing a complete and utter disregard for the truth, participated in the institution of legal

proceedings against Plaintiffs, including promoting the continued criminal prosecution of

Plaintiffs with knowledge that there were no reasonable grounds to believe that Plaintiffs had

committed any crime whatsoever and without sharing that knowledge with the prosecutor.

86. Defendant Officers acted knowingly, maliciously, willfully and wantonly by

accusing Plaintiffs of unlawful behavior prior to, and during their unlawful arrest, by means of

excessive force in an effort to cover their own unlawful behavior during the course of their

arrests.

87. Without any legal basis to do so, Defendant Officers participated in the malicious

prosecution of Plaintiffs with respect to their alleged behavior during the unlawful arrests by

giving the prosecutor false information regarding the behavior of Plaintiffs during their arrests by

excessive means.

88. Defendant Officers were motivated by an improper purpose to punish Plaintiffs

in an effort to divert attention from their own misconduct and to insulate themselves from civil

liability.

89. Defendant Officers’ conduct violated clearly established rights belonging to

Plaintiffs of which a reasonable person in their positions knew or should have known.

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90. As a direct result of Defendant Officers’ unlawful action as described above,

Plaintiffs suffered actual physical, emotional, and economic injuries in an amount to be proven at

trial.

SIXTH CLAIM FOR RELIEF

42 U.S.C. § 1983 –– Vindictive Prosecution
(4th Amendment and 14th Amendment Procedural Due Process Violations)

91. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

forth herein.

92. As a direct result of Defendant Officers’ unlawful actions as described above,

Plaintiffs suffered actual physical, emotional, and economic injuries in an amount to be proven at

trial.

93. The decision to participate in the criminal prosecution of Plaintiffs had the

purpose and effect of harassing them for the personal motive of obtaining convictions against

them in the hope of insulating themselves from scrutiny and potential civil liability for having

violated Plaintiffs’ constitutional rights as described herein.

94. Defendant Officers made or caused to be made the decision to target Plaintiffs for

criminal charges and/or prosecution.

95. The vindictive prosecution of Plaintiffs was without legal justification.

96. Defendant Officers engaged in the conduct described by this Complaint willfully

and maliciously and in reckless disregard of Plaintiffs’ constitutional rights.

97. Defendant Officers’ conduct proximately caused significant injuries, damages,

and losses to Plaintiffs.

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their

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.

PLAINTIFFS REQUEST A TRIAL TO A JURY ON ALL ISSUES SO TRIABLE.

Dated this 13th day of January 2010.

KILLMER, LANE & NEWMAN, LLP

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

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