Case 1:11-cv-02766-RPM Document 20 Filed 06/05/12 USDC Colorado Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 11-cv-02766-RPM RICKEY BURRELL, Plaintiff, v. CITY OF AURORA, COLORADO, BRANDON RINNAN, DARREN CHAMBERLAND, and DARRYL HUNTSMAN, Defendants. ______________________________________________________________________________ SECOND AMENDED COMPLAINT AND JURY DEMAND ______________________________________________________________________________ Plaintiff, Rickey Burrell, by and through his attorneys Mari Newman, Darold Killmer and Tiffany Drahota of KILLMER, LANE & NEWMAN, LLP, respectfully alleges for his Second Amended Complaint and Jury Demand as follows: I. 1. INTRODUCTION

On December 18, 2010, Aurora Police Officers brutally assaulted Rickey Burrell,

an innocent, unconscious man whose family had called 911 for emergency medical help after he suffered a seizure. Aurora Police Department (APD) officers Defendants Brandon Rinnan, Darren P. Chamberland, and Darryl D. Huntsman were the first to enter his home in response to the 911 call. Defendants found Mr. Burrell unconscious, lying face first on the bed. Instead of providing help during Mr. Rickey Burrells time of need, Defendant Aurora Officers jumped on him, wrenched his arm behind his back, and handcuffed him. Defendants then roughly brought Mr. Burrell downstairs, and although he was wearing nothing but soiled underwear, dragged him

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outside. Defendants conduct caused Mr. Burrell to suffer an ulnar styloid fracture of the right wrist, exacerbation of preexisting injuries to his back and his right shoulder, and significant humiliation and other emotional damage. 2. Defendants unconstitutional actions herein were the result of woefully

inadequate training, and were pursuant to an APD custom, policy, and/or practice of unconstitutional detention and use of excessive force in responding to medical emergencies. Mr. Burrell brings an action arising under the United States Constitution against Defendants seeking appropriate injunctive, declaratory and equitable relief and for compensatory and punitive damages, attorney fees, and costs. I. JURISDICTION AND VENUE 2. This action arises under the Constitution and laws of the United States, and is

brought pursuant to Title 42 U.S.C. 1983. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. 1331. Jurisdiction supporting Plaintiffs claim for attorney fees and costs is conferred by 42 U.S.C. 1988. 3. 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 and domiciled in the State or Colorado at the time of the events giving rise to this litigation. III. 4. PARTIES

At all times relevant to this complaint, Mr. Burrell was a citizen of the United

States of America and a resident of the State of Colorado. 5. Defendant City of Aurora, Colorado, hereinafter Aurora is a Colorado

municipal corporation and is the legal entity responsible for itself and for the Aurora Police

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Department. This Defendant is also the employer of the individual Defendants and is a proper entity to be sued under 42 U.S.C. 1983. 6. Defendant Aurora is properly sued directly under 42 U.S.C. 1983 for its

unconstitutional decisions, policies, practice, habits, customs, usages, training and derelict supervision, ratification, tolerance, acquiescence and intentional failures which were moving forces in the complained of constitutional and statutory violations and resulting injuries. 7. At all times relevant to this complaint, Defendant Brandon Rinnan was a citizen

of the United States and a resident of the State of Colorado. At all times relevant to the claims against him, Defendant Rinnan was acting within the scope of his official duties and employment and under color of state law in his capacity as an APD Officer. 8. At all times relevant to this complaint, Defendant Darren P. Chamberland was a

citizen of the United States and a resident of the State of Colorado. At all times relevant to the claims against him, Defendant Chamberland was acting within the scope of his official duties and employment and under color of state law in his capacity as an APD officer. 9. At all times relevant to this complaint, Defendant Darryl D. Huntsman was a

citizen of the United States and a resident of the State of Colorado. At all times relevant to the claims against him, Defendant Huntsman was acting within the scope of his official duties and employment and under color of state law in his capacity as an APD officer. FACTUAL BACKGROUND Defendants Abuse of Mr. Burrell 10. On December 18, 2010, Mr. Burrell went to Bible study and choir rehearsal, as he

does most Saturday mornings. Upon returning home from church, Mr. Burrell began feeling unwell and went to his bedroom to take a nap.

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11.

Sometime later, Evelyn King, Mr. Burrell's partner of many years, entered the

bedroom and found Mr. Burrell to be incoherent and suffering from a seizure. 12. Upon finding Mr. Burrell, Ms. King called downstairs for her niece, Madelyn

Robinson, to dial 911 for medical help. 13. Ms. Robinson called 911 and asked the operator to send an ambulance. She gave

the phone to Ms. King, who told the 911 operator that she believed Mr. Burrell had suffered a seizure, and that he had previously had seizures. Ms. King told the 911 operator that Mr. Burrell was alternating between walking around the room incoherently and lying on his stomach on the bed. 14. Defendant Huntsman and Defendant Chamberland were the first to arrive on the

scene, followed by Defendant Rinnan. The Aurora Fire Department also responded to the scene, but waited nearby while the APD Defendants entered Mr. Burrells home. 15. As Defendants Huntsman, Chamberland and Rinnan entered the house, Ms. King,

still on the phone with 911, informed the 911 operator that Mr. Burrell was on the bed unconscious and lying face down. 16. Upon entering the house, Defendants went to Mr. Burrell's bedroom where they

found him as Ms. King had described, lying face down on a bed, apparently unconscious. 17. Mr. Burrell was wearing nothing but his underwear, which were soiled with urine

from the seizure he had just suffered. 18. Inexplicably, and without any provocation whatsoever or probable cause to

believe Mr. Burrell had engaged or was engaging in any wrongdoing, one of the Defendants jumped on Mr. Burrell, who had not moved and was still lying face down on the bed.

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19.

This Defendant proceeded to forcibly drive his knee into the center of Mr.

Burrell's back then jerked Mr. Burrell's arm, bringing it behind him and to the center of his back. 20. A second Defendant forcibly grabbed Mr. Burrell's other arm and wrenched it

behind his back. 21. Despite the fact that Mr. Burrell was still laying face down and motionless on the

bed, the two Defendants used excessive physical force to handcuff him. 22. Mr. Burrell, in great pain, wearing nothing but soiled underwear and in shock at

the events that were occurring, regained consciousness and cried out in pain. Mr. Burrell was terrified and implored for the officers to stop hurting him, as he had done nothing wrong. 23. Ms. King, stunned by this entirely unjustified use of brutal force on a man in need

of medical attention, screamed for the Defendants to stop, but their brutal assault on Mr. Burrell continued. 24. As Mr. Burrell begged Defendants to stop hurting him, telling them he had done

nothing wrong, Defendants proceeded to hoist Mr. Burrell to a standing position. 25. Still wearing only his soiled underwear, Mr. Burrell was dragged downstairs in

front of his daughter, niece and grandchild causing him further pain and great humiliation. 26. Once downstairs, Defendants took Mr. Burrell outside, in the middle of winter,

where he was displayed almost completely naked and in handcuffs for the whole neighborhood to see. 27. Defendants then un-handcuffed Mr. Burrell and placed him on a medical gurney

where he was transported to the Medical Center of Aurora South Emergency Department.

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28.

Due to the conduct of Defendants, Mr. Burrell suffered an ulnar styloid fracture of

the right wrist, exacerbation of preexisting injuries to his back and his right shoulder, and significant embarrassment, humiliation and other emotional damage. 29. Since the date of this assault Mr. Burrell has had his right hand, wrist, and

forearm splinted; was required to wear a shoulder sling for many months; suffers with considerable pain to the back of the hand, wrist and shoulder; has limited mobility of the hand, wrist and shoulder; suffers tingling and numbness in his fingers; and suffers increased back pain. 30. No Aurora Police Officer ever wrote an incident report documenting the Aurora

Police Departments interaction with Mr. Burrell, including their use of handcuffs on him, the fact that he had a seizure, or the fact that he suffered a wrist injury as a result of the officers use of force on him. 31. Mr. Burrell was charged with no crime and has been provided with no explanation

for the brutal assault he received at the hands of Defendants. 32. Mr. Burrell. Auroras Treatment of Mr. Burrell Was Pursuant to Its Custom, Policy and Practice of Deliberate Indifference to the Constitutional Rights of Individuals Suffering Medical Emergencies 33. Defendant Aurora did not provide adequate training to Defendant Officers None of the Defendant Officers was disciplined or counseled for his treatment of

regarding seizures, or the response to or treatment of individuals in a postictal state. 34. Defendant Aurora did not provide adequate supervision regarding seizures, or the

response to or treatment of individuals in a post-ictal state. 35. The conduct of Defendants described herein was consistent with the training,

customs, polices and/or practices of the Aurora Police Department.

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36.

Mr. Burrells injuries at the hands of Aurora police officers is just one example of

the overwhelmingly common use of excessive force by Aurora law enforcement officers in responding to medical emergencies involving seizures. 37. The City of Aurora has created, fostered, and tolerated an environment and

culture of law enforcement brutality and deliberate indifference to the constitutional rights of citizens and residents, including its response to medical emergencies involving seizures. 38. Aurora law enforcement officers have engaged in a persistent practice of law

enforcement misconduct, and the officials responsible for assuring that such misconduct does not occur have consistently ratified or authorized such conduct and failed to properly train, supervise, and discipline individual officers who have engaged in such misconduct. 39. The custom, policy, and/or practice of excessive force and deliberate indifference

to the constitutional rights of citizens, and the lack of training, supervision, and discipline of law enforcement officers are evidenced in part by other incidents of excessive force by Aurora law enforcement in responding to medical emergencies involving seizures. 40. The probability that an Aurora Police Officer will encounter an Aurora citizen

with a seizure-related medical condition is so significant that it is reasonably foreseeable that training should be provided. 41. Since 2005, the City of Aurora has received more than 200 Computer Aided

Dispatch (CAD) calls annually from Aurora citizens requesting seizure-related assistance. 42. Each year since 2005, the number of emergency calls involving a seizure to which

the Aurora Police Department was summoned ranges from 230 to over 350 per year. 43. From January 1, 2005 to March 15, 2012, there were 2,198 instances in which a

seizure was noted in Aurora Police Department reports.

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44.

Of those 2,198 instances, 1,135 occurred during incidents in which a citizen

called 911, and the Aurora Police Department was summoned to assist the Aurora Fire Department. 1 45. The City of Aurora knew or should have known that its training related to

responses to medical emergencies, and in particular those involving seizures, was inadequate based on the frequency with which its officers interact with citizens who are or were suffering from a seizure or other medical emergency and its abject failure to train for such incidents. 46. The obviousness of the Aurora Police Departments need for training regarding

how officers should respond when confronted with a citizen having a seizure is evidenced by, among other things, the pattern of unconstitutional violations by untrained employees in such situations since at least 2003. 2 47. On January 22, 2012, V.W. 3 suffered multiple seizures, requiring his wife to call

911 for emergency medical assistance. While on a medical stretcher, V.W. began having another seizure causing him to fall off the stretcher and hit his head. Two of the responding Aurora police officers watched as V.W. fell off the stretcher, and instead of assisting V.W. they tased him, causing a taser wound so deep that it had to be dug out of V.W.s flesh at the hospital. 48. Similarly, S., an Aurora citizen, suffered a seizure while driving home one

evening, causing him to hit a tree. The responding officer pulled him out of his car, forced him to the ground, and handcuffed him, causing serious injuries to his face. Only after S. blew a 0.0
1

The Aurora Police Department refers to incidents in which its officers respond to provide assistance to the Aurora Fire Department after a 911 call as Fire Assists. The following examples of Aurora Police use of excessive force and deliberate indifference to the constitutional rights of individuals suffering seizures are by no means exhaustive. Plaintiff continues to uncover evidence regarding additional such constitutional violations as discovery in this case progresses. In order to protect the identity and privacy of Aurora citizens, counsel for Plaintiff has abbreviated all names herein, other than those individuals listed as parties to the lawsuit.

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on the breathalyzer and after inflicting the aforementioned injuries -- did the responding officers believe that he was not intoxicated and consider that he may be suffering from a serious medical condition. 49. On December 8, 2010, B.H. suffered a seizure. B.H.s wife called 911 for

emergency medical assistance. When the APD officers arrived at the scene, they physically restrained B.H. causing him to suffer a fractured spine. Approximately six months later, B.H. suffered a gran mal seizure, requiring his wife to call 911 again. When the responding APD officers arrived at the scene, they asked B.Hs wife to leave the room. B.H.s wife could hear her husband screaming, No! and Help me! Once they arrived at the hospital, B.H. was diagnosed with broken ribs and bruising. 50. In approximately 2008, I.G. suffered a seizure while driving near Tower Road and

Quebec Street, causing him to crash his vehicle into a fence. APD officers were the first to respond to the scene. At the time of their arrival, I.G. was in a post-ictal state, staring straight ahead and unresponsive. I.G. was subsequently wrestled out of his vehicle and tased by the responding Aurora officers, causing him to sustain significant bruising and taser burns. When his wife, F.G., arrived on the scene, I.G. was sitting in the ambulance with double-locked handcuffs. 51. On August 5, 2003, D.W.s father called 911 for assistance because D.W. was

experiencing mental health and asthma problems. While making the telephone call, D.W.s father informed the dispatcher of D.W.s precarious mental health condition. When the responding APD officers arrived on the scene, they were met by a friend, who again tried to explain D.W.s mental and physical health condition to the responding officers. Ignoring the friend, the responding officers held D.W.s friend and father at gunpoint and instructed them not

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to move. Thereafter, the responding APD officers entered D.W.s home and fired their weapons five times. Three of the bullets entered D.W.s body, fatally wounding her. 52. The City of Auroras adherence to its inadequate or non-existent training

regarding responding to citizens having seizures or other medical emergencies, despite the fact that it knew or should have known that its inadequate training in that respect failed to prevent tortious conduct by its employees constitutes deliberate indifference to the constitutional rights of Aurora citizens. 53. The Epilepsy Foundation of Colorado has made multiple offers to the Aurora

Police Department to provide free training on identifying seizures and responding to people who are having seizures or are in a post-ictal state. Aurora has repeatedly rejected these offers for free training. 54. At present, there are only two known seizure-related trainings that may have been

offered by the Aurora Police Department to its personnel: One training is listed in the 2004 Academy 1L training schedule entitled Recognizing Epilepsy (though it is unclear if it was actually taught or if any credit hours were offered); and a second training that lasted approximately one-hour, which was apparently offered in 2010 to approximately twenty-five cadets. 55. Auroras custom, policy and/or practice of excessive force and the lack of

training, supervision, and discipline of law enforcement officers are evidenced in part by, among other things, the sheer volume of complaints and lawsuits filed against and/or legal settlements with Aurora law enforcement wherein Aurora citizens allege that APD officer use excessive force against them. 4
4

As alleged in Plaintiffs Complaint and Jury Demand [Doc. 1], 37 50, and First Amended Complaint and Jury Demand [Doc. 13-1], 39 52, Defendant City of Aurora, Colorado has a custom, policy and practice of engaging

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V.

STATEMENT OF CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF (42 U.S.C. 1983 4th Amendment Violation Excessive Force) (All Defendants) 56. herein. 57. Plaintiff had a constitutionally protected and clearly established right to be secure Plaintiff hereby incorporates all other paragraphs of this Complaint as if set forth

in his person against unreasonable seizures of his person. 58. Defendants unlawfully seized Plaintiff by means of excessive physical force and

thereby unreasonably restrained his freedom. 59. Defendants actions, as described above, were objectively unreasonable in light of

the facts and circumstances confronting them. 60. Plaintiff. 61. Defendants actions, as described herein, were undertaken intentionally, Defendants actions, as described above, were motivated by intent to harm

maliciously, willfully, wantonly and/or in reckless disregard of Plaintiffs federally protected rights.

in police brutality, and exercising deliberate indifference to the constitutional rights of its citizens, resulting in an overwhelmingly common use of excessive force. These instances of excessive force, as pleaded in [Doc. 1] and [Doc 13-1] include: The eight shootings resulting in the death of six Aurora citizens within the first nine months of 2011; the tasing and shooting of an unarmed, black man, Jamaal Bonner, in the back in 2005; the breaking of Bernardo Castenadas shoulder while handcuffing him in 2007, despite the fact that Mr. Castenada is a mentally and physically impaired Aurora citizen; the 2009 tasing and beating of Duane Williams causing a compound fracture to his leg; the 2009 beating and arrest of Stephen Carr causing him to suffer broken ribs, a broken clavicle and a punctured lung; the 2010 three-time tasing of Mark Stripka,; the 2010 home invasion (without a warrant) and beating of Carla Meza causing her a fractured eye socket, torn knee tendon and bruises; and the 2011 tasing of David Walker where the responding Aurora Police Officers tased Mr. Walker more than eight times.

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62.

Defendants are not entitled to qualified immunity for the complained of conduct.

Defendants conduct violated clearly established rights belonging to Plaintiff of which reasonable law enforcement knew or should have known. 63. Plaintiff has been and continues to be damaged by Defendants use of excessive

force against him. 64. 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. 65. Aurora has a culture of causing and tolerating excessive force by its law

enforcement in responding to medical emergencies. Upon information and belief, Aurora has not disciplined Defendants concerning the Fourth Amendment and use of excessive force while responding to medical emergencies. 66. Aurora has tacitly approved rampant and widespread violence against Colorados

citizenry by its police force in responding to medical emergencies, and the physical abuses of Plaintiff are a foreseeable consequence of Auroras actions and inactions. 67. Aurora has demonstrated a deliberate indifference to or tacit approval of its law

enforcements misconduct, which is performed through official custom, policy, or practice and that custom, policy, or practice, was the moving force behind Defendants unconstitutional acts. 68. Aurora failed to properly hire, train, supervise and/or discipline members of its

law enforcement regarding the proper use of physical force in responding to medical emergencies, especially those involving seizures. 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 Aurora. Such failure to properly hire, train and supervise

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was the moving force behind and proximate cause of Defendants use of excessive force against Plaintiff, and constitutes an unconstitutional policy, procedure, custom and/or practice. 69. As a direct result of Defendants unlawful action as described above, Plaintiff

suffered actual physical, emotional, and economic injuries in an amount to be proven at trial. 70. All individual Defendants to this claim, at all relevant times hereto, were acting

under the color of state law in their capacities as Aurora law enforcement officers. SECOND CLAIM FOR RELIEF (42 U.S.C. 1983 Fourth Amendment Violation False Arrest / Unlawful Seizure) (All Defendants) 71. forth herein. 72. The actions of Defendants as described herein, while acting under color of state Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set

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 seizure as guaranteed by the Fourth Amendment to the Constitution of the United States of America and 42 U.S.C. 1983 in that Plaintiff was unlawfully physically seized by the Defendants without probable cause to believe he had committed any offense. 73. Defendants intentionally, knowingly, recklessly, and excessively subdued,

restrained, and detained Plaintiff without any reasonable justification or probable cause. 74. During the period of detention of Plaintiff, Plaintiff was not free to leave the

custody of Defendants. 75. Defendants failed to reasonably interview witnesses readily available at the scene,

investigate basic evidence, or otherwise inquire if a crime had been committed at all before invoking the power of warrantless detention of Plaintiff.

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76.

Defendants had no facts and circumstances within their knowledge to warrant

them to believe that Plaintiff had committed an offense. 77. Defendants are not entitled to qualified immunity for the complained of conduct.

Defendants conduct violated clearly established rights belonging to Plaintiff of which reasonable law enforcement knew or should have known. 78. 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. 79. As a direct result of Defendants unlawful action as described above, Plaintiff

suffered actual physical, emotional, and economic injuries in an amount to be proven at trial. 80. Auroras failure to train, discipline and/or supervise, as described herein, was a

legal and proximate cause of Plaintiffs injuries. 81. All individual Defendants to this claim, at all relevant times hereto, were acting

under the color of state law in their capacities as Aurora law enforcement officers. THIRD CLAIM FOR RELIEF (42 U.S.C. 1983 Failure to Train or Supervise) (Against Defendant City of Aurora) 82. forth herein. 83. Defendant City of Aurora failed to properly train and supervise its employees Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set

with regard to (1) response to a medical emergency, specifically a medical emergency involving a seizure; and (2) the response to, or treatment of, individuals in a post-ictal state. 84. Defendant City of Aurora knew, or should have known, that dangerous

consequences could be suffered by Aurora citizens (including Mr. Burrell) by failing to properly

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train and supervise its employees to evaluate medical emergencies, and specifically medical emergencies involving a seizure; the response to, or treatment of, individuals in a post-ictal state; and the use of excessive force against an individual suffering from a medical emergency. Defendant City of Aurora could have and should have pursued reasonable methods for the training and supervising of such employees, but failed to do so. 85. The inadequate training and supervision provided by Defendant City of Aurora

resulted from a conscious or deliberate choice to follow a course of action from among various alternatives available to it. One such alternative course to provide appropriate training has been consciously rejected by the Defendant City of Aurora. 86. In light of the duties and responsibilities of Defendants Rinnan, Chamberland and

Huntsman, the need for specialized training and supervision is so obvious, and the inadequacy of the training and/or supervision is so likely to result in the violation of constitutional rights such as those described herein, that Defendant City of Aurora is liable for its failure to so train and to appropriately supervise its employees. 87. Defendant City of Auroras adherence to its inadequate or non-existent training

regarding responding to citizens having seizures, despite the fact that it knew or should have known that its inadequate training in that respect failed to prevent tortious conduct by its employees constitutes deliberate indifference to the constitutional rights of Aurora citizens. 88. Defendant City of Auroras 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. Burrells constitutional rights.

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89.

The actions of Defendant City of Aurora, Colorado as described herein deprived

Mr. Burrell of the rights, privileges, liberties, and immunities secured by the Constitution of the United States of America, and caused him other damages. VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in his favor and against the Defendants, and grant: (a) (b) All appropriate declaratory and other injunctive and/or equitable relief; 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) (d) All economic losses on all claims allowed by law; Punitive damages on all claims allowed by law and in an amount to be

determined at trial; (e) law; (f) (g) Pre and post-judgment interest at the lawful rate; and Any further relief that this court deems just and proper, and any other relief as Attorneys fees and the costs associated with this action on all claims allowed by

allowed by law. PLAINTIFF REQUESTS A TRIAL TO A JURY ON ALL ISSUES SO TRIABLE. Respectfully submitted this 5th day of June 2012. KILLMER, LANE & NEWMAN, LLP s/ Mari Newman _________________________ Mari Newman Darold W. Killmer

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Tiffany J. Drahota 1543 Champa Street, Suite 400 Denver, Colorado 80202 Phone: (303) 571-1000 Facsimile: (303) 571-1001 mnewman@kln-law.com dkillmer@kln-law.com tdrahota@kln-law.com ATTORNEYS FOR PLAINTIFF

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