Professional Documents
Culture Documents
DANIELLE CLEVELAND
and DOMINIQUE WICKER,
As Co-Administratrices of the
Estate of Darnell Wicker
PLAINTIFFS,
v.
LOUISVILLE METRO GOVERNMENT
d/b/a LOUISVILLE METRO POLICE
DEPARTMENT
Serve: Mayor Greg Fischer
City Hall
601 W. Jefferson Street
Louisville, KY 40202
and
TAYLOR BANKS
Serve: Officer Taylor Banks
633 W. Jefferson Street
Louisville, KY 40202
and
BEAU GADEGAARD
Serve: Officer Beau Gadegaard
633 W. Jefferson Street
Louisville, KY 40202
and
BRIAN SMITH
Serve: Officer Brian Smith
633 W. Jefferson Street
Louisville, KY 40202
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and
MALCOLM MILLER
Serve: Officer Malcolm Miller
633 W. Jefferson Street
Louisville, KY 40202
and
STEVE CONRAD
Serve: Chief Steve Conrad
633 W. Jefferson Street
Louisville, KY 40202
and
UNKNOWN OFFICERS OF LOUISVILLE
METRO POLICE DEPARTMENT
Serve: Chief Steve Conrad
633 W. Jefferson Street
Louisville, KY 40202
DEFENDANTS
Come the Plaintiffs, Danielle Cleveland and Dominique Wicker, both individually as
daughters of Darnell Wicker and also in their capacity as Co-Administratrices of the Estate of
Darnell Wicker, by and through Counsel, and assert the following Complaint, claims and
averments against the Defendants:
PRELIMINARY STATEMENT
1.
On August 8, 2016, officers Beau Gadegaard and Taylor Banks of the Louisville
Metro Police Department cut off their blue lights and pulled into the Broadleaf Arms apartment
complex (the scene). They rushed out of their police cruiser, charged towards the residence of
Darnell Wicker and past the already present LMPD Officer Brian Smith. They observed Wicker
slowly walk out his front door without a firearm or knife. The officers did not announce
themselves as law enforcement, did not attempt any de-escalation. Instead, within two seconds
of Wicker becoming visible, and while Wicker was still within two feet of his own front door
and was surrounded by the three officers, Gadegaard opened fire on Wicker with the intent to kill
him. Banks joined Gadegaard in firing, with the two of them firing no fewer than eight shots at
Wicker. Smith, who was the only officer familiar with the scene and the series of events leading
up to the arrival of Gadegaard and Banks, did not fire. The three officers then proceeded to
handcuff Wicker, walk away from Wicker and allow Wicker to bleed to death on the ground
without the officers ever attempting to render any aid to Wicker whatsoever.
2.
The action herein is for the unjustifiable, intentional, unlawful, and malicious
shooting of Wicker and the unreasonable and excessive use of deadly force against Wicker by
the Shooting Officers, both of whom were acting under the color of state law and in violation of
Wickers substantial rights under the Fourth, Eighth and Fourteenth Amendments of the U.S.
Constitution and Sections 2 and 10 of the Kentucky Constitution. This action herein is also for
the reckless, malicious and grossly negligent conduct of the Defendants, including but not
limited to their collective failure to properly render aid to Wicker, thus minimizing his likelihood
of survival following the Shooting; the Defendants intentional and calculated cover-up of
circumstances and evidence surrounding the Shooting; the Defendants deliberate acts of
depriving Wicker of his rights guaranteed by the United States Constitution under the Fourth
Amendment, Eighth Amendment and Fourteenth Amendment, Kentucky statutes and
regulations, the Kentucky Constitution, and all other applicable state and federal laws
implemented to protect Darnell Wicker, including but not limited to those within 42 U.S.C.
1983.
JURISDICTION AND VENUE
3.
This action is brought under 42 U.S.C. 1983, 1985, 1986 and 1988, KY. Const.
2 and KY. Const. 10, KRS 411.130, KRS 411.133, KRS 446.070, KRS 411.184, KRS
411.186 and all other applicable governing authority and common laws.
4.
This Court has jurisdiction of this action pursuant to 42 U.S.C. 1983 and the
applicable provisions of Kentucky law. This Court has jurisdiction over Plaintiffs state law
claims pursuant to 28 U.S.C. 1367.
5.
This Court is vested with the authority to adjudicate the claims herein pursuant to
42 U.S.C. 1983, as they are for unconscionable and gross violations of the rights and privileges
which are guaranteed to all citizens and which were guaranteed to Wicker by the Fourth, Eighth
and Fourteenth Amendments to the Constitution of the United States, as well as for associated
state laws and tortious conduct as set forth herein. This Court also has jurisdiction over this case
and these claims pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343 and 28 U.S.C. 1441.
6.
Venue is proper pursuant as the Defendants are located in this District and the
events and omissions giving rise to the claims which are the subject of this action occurred
within this District.
PARTIES
7.
were appointed as Co-Administratrices of the Estate of Darnell Wicker, on or about August 29,
2016, by the Jefferson District Court, Probate Division, Commonwealth of Kentucky in Case No.
16-P-003742. Danielle and Dominique reside in Jefferson County, Kentucky.
8.
(LMPD), LMPD officers Beau Gadegaard and Taylor Banks (Banks and Gadegaard are
referred to herein as The Shooting Officers) in both their individual and official capacities,
officer Brian Smith in his individual and official capacity (Smith), officer Malcolm Miller
(Miller) in his individual and official capacities, and chief Steve Conrad both individually and
in his official capacities (Conrad).
9.
All individual Defendants herein were, at all relevant times herein, officers with
the LMPD and will be served at LMPDs address of 633 West Jefferson Street, Louisville KY
40202.
10.
Louisville Metro Police Department (LMPD), is the employer of the individual Defendants, is
a governmental entity subject to the requirements of 28 U.S.C. 1983 and which was and is
responsible for assuring that the actions, policies and procedures guiding their officers are
constitutional and do not deprive citizens of fundamental guaranteed rights.
FACTS
11.
Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein
The Shootings which are the subject of this action occurred on August 8, 2016, at
That on August 8, 2016 Officer Smith responded to a 911 call at the Broadleaf
b.
c.
That the caller and her mother were at the apartment and had not been
physically threatened or injured.
d.
e.
That the callers mother entered the apartment and remained in it with
Wicker without being harmed.
f.
That the caller did not believe Wicker had consumed any alcohol or drugs.
g.
That the caller did not believe her mother and Wicker had ever been
involved in any sort of domestic violence situations.
15.
That Wicker, at the time of the 911 call, resided at the apartment to which the
That Smith, upon information and belief, failed to wait for the Shooting Officers
despite being aware of their intentions to respond to the residence with him.
17.
That Smith, between the time of his arrival and the time of the Shooting Officers
arrival, communicated with the 911 caller and her mother. There were no allegations made to
Smith throughout this time that Wicker possessed a firearm or that he had engaged in any
physical violence. Furthermore, Smith was advised in this time that there was no suspicion of
Wicker being under the influence of alcohol or drugs.
18.
That the Shooting Officers, upon information and belief, initiated a Code 3
response to the residence without following protocol and policy for the same.
19.
That the Shooting Officers unreasonably and unjustifiably cut off their blue lights
That Smiths blue lights were not activated at any time between his arrival to the
21.
That neither Smith nor the Shooting Officers ever announced themselves to
That Wicker had less than 2 seconds prior to being shot to determine that he was
being confronted by law enforcement, as the officers never announced themselves and did not
have their lights activated on their cruisers at the scene of the shooting.
23.
That Wicker had a right while at his own residence to protect himself.
24.
That Wicker was under no obligation to drop his tree saw until he had time to
perceive and react to his surroundings and gather an understanding as to why he was being
charged by three men with guns drawn, none of which had announced themselves as law
enforcement officials.
25.
That, upon information and belief, at no time between the time Wicker emerged
from the residence and the time Wicker was shot was Wicker holding a knife.
26.
That upon information and belief, at the time Wicker was shot, he was holding a
That Wicker, at the time he was shot, was neither charging nor lunging at any of
the officers.
28.
That at the time the Shooting Officers arrived at the shooting scene, both were
That at the time the Shooting Officers arrived at the shooting scene, both were
That, at the time the Shooting Officers arrived at the shooting scene, both were
At no time while Smith and the Shooting Officers were at the residence did
That the Shooting Officers used more force upon Wicker than that which would
have been reasonable to gain control of Wicker to the extent that gaining control of Wicker was
even necessary or justified under the circumstances.
33.
That the Shooting Officers charged at Wicker and used deadly force upon Wicker
That, to the extent Wicker even presented a threat, a taser would have been more
That per LMPD policy, officers should not even escalate their use of force to the
That the Shooting Officers shot Wicker to death on the property of Wickers own
residence.
37.
That, upon information and belief, none of the Defendants attempted to verify
Wickers home address prior to The Shooting. Had they done so, they would have verified that
Wicker lived in the apartment to which Smith responded.
38.
That a substantial portion of the Shooting Officers response to the scene was in
That the officers are bound by LMPD regulations which require strict compliance
That the Shooting Officers did not comply with several of the Code 3 response
regulations when they responded Code 3 to the scene, including but not limited to justifying the
need for the response, communicating with a commanding officer regarding the response and
preserving the audio associated with the response.
41.
That there has been no explanation given by the Defendants as to why, prior to
turning into the Broadleaf Arms Apartments, the Shooting Officers cut the previously engaged
blue lights off from their cruiser.
42.
That the cruiser in which the Shooting Officers responded to the shooting scene
was activated with a Mobile Video System (MVS) which included an Arbitrator Digital Camera,
microphone and associated audio recording device.
43.
That pursuant to LMPD SOPs, Gadegaard and Banks were to be trained in the
operation of the MVS before engaging in the use of the equipment. The equipment was the
responsibility of the officer to whom the cruiser was assigned and the officer was responsible,
prior to coming on duty for doing a check and confirming the following:
a.
That the microphone functioned properly and synced with the MVS.
b.
c.
d.
That the Agency, Unit, Shift, and Area were all accurate on the Arbitrator.
e.
That if the MVS was not functioning properly, that the on-duty supervisor
was notified.
44.
That the Defendants have refused to produce any audio recorded by the MVS, the
Arbitrator, or any other recording device which was in the cruisers used by Banks, Smith and/or
Gadegaard on August 8, 2016 prior to the shooting.
45.
That upon information and belief, officer Miller was Smith, Banks, and
46.
That Miller, less than 20 minutes after the shooting and while at the scene of the
shooting, advised The Shooting Officers to keep their mouths shut regarding the circumstances
surrounding the shooting.
47.
At the time he was shot, Wicker was not holding a deadly weapon, was not under
arrest, was not suspected of having committed a violent crime, was not attempting to flee and
was not actively resisting arrest.
48.
That the officers did not use any of the non-lethal available options to them,
including but limited to a stun gun, rubber bullets, oral commands, chemical agents or otherwise,
any and all of which were capable of resolving the situation in a non-lethal manner.
49.
That following the shooting, Gadegaard tampered with the crime scene by kicking
the tree saw and by unloading his handgun clip next to the tree saw.
50.
The
ministerial acts revolve around their individual and collective actions, including but not limited
to the following actions: the use of objectively unreasonable deadly force; the acts of repeatedly
shooting Wicker with an intent to kill when the acts were objectively unreasonable; the actions
of Smith and the Shooting Officers in unreasonably and unjustifiably concealing their presence
as law enforcement by disengaging blue lights prior to scene arrival and not announcing
themselves as law enforcement to Wicker; the unreasonable and unjustifiable immediate
escalation of the response by the Shooting Officers to a deadly force situation; the unreasonable
and unjustifiable charging at Wicker before making any efforts to assess the condition and
intentions of Wicker, who was not armed with a firearm or other deadly weapon and who posed
no threat of inflicting deadly harm upon anyone at the scene; the targeting and sought after
revenge of Wicker by the LMPD due to Wickers alleged officer-involved scuffles from the year
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2003; the failure of LMPD to properly assess the minimum level of threat posed by Wicker as
presented in the 911 call prompting the response; the unjustifiable and unreasonable failures of
Smith and the Shooting Officers to follow or even attempt de-escalation protocols; the
unjustifiable, unreasonable and unconscionable acts of firing repeatedly at Wicker more than
seven times within two seconds of Wicker exiting his residence; the unjustifiable and
unreasonable act of shooting Wicker while he was still on his own property and within two feet
of his own front door; the unreasonable and unjustified use of deadly force without utilizing
other forms of appropriate force, to the extent that any use of force whatsoever was necessary;
the unjustified and unreasonable tampering of evidence and the crime scene following the
Shooting; the unjustified and unreasonable failure to render aid; the unjustified and unreasonable
failures of Smith and the Shooting Officers to not announce themselves to Wicker as law
enforcement; the unjustified and unreasonable failure of Gadegaard to not activate his wearable
video (bodycam) during his Code 3 response, arrival at the scene and during the events leading
up to and after the Shooting; the deliberate action by Smith in pointing his bodycam recorded
area to the ground so that he could assure that the actions in front of him were not being
documented by his camera; the unjustified and unreasonable failures of Banks to maintain the
position of his bodycam in a manner which would record the actions in front of him in a
reasonably prudent manner and increase the likelihood that the actions associated with critical
incidents would be captured on video; the unjustified and unreasonable failure of the Shooting
Officers to activate audio and video upon going to a Code 3 status in responding to the scene; the
unjustified and unreasonable act of Smith responding to the scene without the Shooting Officers,
rather than simply waiting for them to meet Smith at the planned off-site area; the unjustified and
unreasonable failure of the Shooting Officers to gather information concerning the ongoing
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actions at the scene and remain reasonably updated from Smith while responding to the scene;
the failure of all Defendants to communicate regarding Smiths observations and preliminary
observations at the scene prior to the arrival at the scene by the Shooting Officers; the unjustified
and unreasonable use of deadly force upon an individual who neither had a gun nor a knife on his
person and who did not present a threat of death or serious injuries to anyone at the scene of the
shooting at the time of the shooting; the unjustified and unreasonable use of an LMPD vehicle by
Smith and the Shooting Officers which lacked functioning and properly working audio
recording; the deceptive, unreasonable and unjustifiable actions of the LMPD in releasing partial
information to the public as part of a pledge to transparency without informing the public that
the information was an incomplete and inaccurate representation of the actual evidence; the
unreasonable and unjustifiable failure of the Defendants to even determine where Wicker resided
and whether Wicker in fact resided at the residence to which the response was made; the
unreasonable and unjustifiable actions of the LMPD in suggesting to the responding officers that
immediate escalation to high levels of force were necessary and authorized; the acts of seizing
Wicker within the meaning of the Fourth Amendment and in violation of his constitutional
rights; the acts of Miller in advising the Shooting Officers to not cooperate with the investigation
and to keep their mouths shut; and the Shooting Officers unreasonable and unjustifiable
action of repeatedly shooting Wicker with an intent to kill him while Wicker was lawfully on the
premises of his own residence.
VIOLATION OF 42 U.S.C. 1983:
DEPRIVATION OF CONSTITUTIONAL RIGHTS
51.
Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein
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52.
That the conduct of the Defendants was subject to 42 U.S.C. 1983, 1985, 1986,
and 1988.
53.
The Defendants, acting under color of law, deprived Wicker of his substantial
rights secured by the United States Constitution and other laws, along with his constitutional
right to equal protection of the laws.
54.
Constitution, in that the Defendants used excessive force in violation of the Fourth Amendment,
were deliberately indifferent to Wickers medical needs in violation the Eighth and Fourteenth
Amendments, and deprived him of life and liberty without due process of law in violation of the
Due Process Clause of the Fourteenth Amendment.
55.
The actions of the Defendants herein were of a nature which shocks the
conscience and violated the fundamental protected due process rights of Wicker.
56.
that Wicker presented a risk of causing death or serious injury at the time when they repeatedly
shot at Wicker with deadly force and with an intent to kill him. Defendants, acting under color of
state law, deprived Darnell Wicker of his constitutional rights and are thus subject to liability
under 42 U.S.C. 1983.
58.
The use of deadly force by the Shooting Officers against Wicker was objectively
unreasonable.
59.
From a perspective of any reasonable officer on the scene, the actions and
excessive and deadly force of the Defendant officers herein were objectively unreasonable in
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light of the facts and circumstances confronting them, regardless of the underlying intentions and
motivations.
60.
At no time while Smith and the Shooting Officers were at the residence did
At no time prior to the shooting while Smith and the Shooting Officers were at the
residence did they suspect or have a reasonable basis to suspect that Wicker had earlier that
morning or in the prior evening committed a crime involving the infliction of serious bodily
harm upon anyone.
63.
The Shooting Officers, rather than making a good faith effort to maintain or
restore discipline, instead applied deadly force upon Wicker to maliciously and sadistically cause
harm.
64.
That the actions of the Defendants against Wicker were arbitrary and wrongful
government actions.
65.
That the Defendants unjustifiably deprived Wicker of life and his liberties without
The conduct of the Defendants were intentional, were in gross violation of known
lawful standards for using force, and their unlawful actions in this regard rendered it inevitable
that Wicker would be shot numerous times and end up dead or disabled.
67.
malicious and deliberate indifference to the rights of Wicker and contributed to Wickers
wrongful death.
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68.
Chief Steve Conrad had knowledge or, had they diligently exercised their duties to instruct,
supervise, control, and discipline on a continuing basis, should have had knowledge that the
wrongs conspired to be done, as heretofore alleged, were about to be committed. Defendants had
power to prevent or aid in preventing the commission of said wrongs, could have done so by
reasonable diligence, and knowingly, recklessly, or with gross negligence failed or refused to do
so.
69.
Defendants LMPD, Miller and Conrad, either directly or indirectly, under color of
law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of the
Defendant police officers heretofore described.
70.
reckless, deliberate, wanton and/or malicious, and was indicative of their total, deliberate and
reckless disregard of and indifference toward the life of Wicker, his constitutional rights, and the
risk of harm to him engendered by the conduct of the Defendants.
71.
Despite knowing that Wicker was bleeding to death after being shot repeatedly by
the officers, and was in need of serious medical need, defendants knew of and disregarded a
substantial risk of serious harm to Wickers health and safety by failing to render any aid to him
whatsoever. In doing so, the Defendants possessed sufficiently culpable state of mind in denying
medical care.
72.
The officers had or should have had the ability to assess the rapidly deteriorating
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condition of Wicker and the approximate time it would take for EMS to arrive; the officers knew
or should have known that their aid and intervention was necessary to increase the likelihood of
Wickers survival and despite this, neglected to attempt rendering any aid whatsoever.
74.
That Millers orders to the officers to keep their mouths shut was blatant
tampering with the investigation and a violation of LMPDs policy and pledge to assure
transparency and honesty in investigations.
75.
That the officers failed to provide a reasonable opportunity or time for de-
escalation efforts. There is no lawful explanation for opening fire on Wicker with an intent to
kill in such a quick manner.
76.
That Banks and Gadegaard failed to investigate the situation prior to rushing at
That the decision of Smith to not engage in the use of deadly force further
substantiates the unreasonableness of Gadegaards failure to confer with Smith upon arrival and
instead simply choosing to shoot at Wicker with an intent to kill.
78.
That Banks and Gadegaards acts of continuous fire by way of more than seven
shots constituted unreasonable and unconstitutional excessive deadly force against Wicker.
79.
That Banks and Gadegaard used excessive, unwarranted and unjustifiable deadly
force against Wicker even after shooting him repeatedly, as they grabbed Wickers hands and
aggressively handcuffed Wicker while Wicker was gasping for air and bleeding out.
80.
That the officers violated policy by not using any of the non-lethal available
options to them, including but limited to a stun gun, rubber bullets, oral commands, chemical
agents or otherwise.
81.
Smiths willful failures to control the situation and to instead permit Gadegaard to
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charge at Wicker with a drawn firearm were unreasonable and unjustifiable violations of policy
and a reckless and malicious deviation from reasonable officer standards, all of which amounted
to a deprivation of Wickers constitutionally protected rights.
NEGLIGENCE, GROSS NEGLIGENCE AND NEGLIGENCE PER SE
82.
Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein
their respective duties of care to or in favor of Mr. Wicker and were negligent and/or grossly
negligent.
84.
That each of the defendant officers, on August 8, 2016, knew or should have
known of their obligations to comply with the requirements of LMPD Standard Operating
Procedures that were in place at the time of The Shooting, including Section 9.1, Use of Force.
85.
that officers should attempt to control a situation through the use of de-escalation tactics and
reasonable physical force, including deadly force, may not be resorted to unless other reasonable
alternatives have been exhausted.
86.
charging at Wicker and giving him no adequate time to perceive, process and react to what was
happening prior to using unreasonable deadly force and shooting Wicker repeatedly.
87.
That the Shooting Officers violated LMPD Standard Operating Procedures 9.1.2
which specifically provides that it is the policy of LMPD that all members recognize the
importance of human life, respect basic human rights, and should utilize only the force
reasonable under the circumstances in an attempt to minimize the possibility of injury to
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The actions of shooting Wicker repeatedly with an intent to kill disregarded the
importance of human life, disrespected human rights and was an unreasonable attempt to
minimize the possibility of injury.
89.
which specifically requires officers to exercise control of a situation when reasonable by utilizing
de-escalation tactics, such as gathering information about the incident, attempting to slow
momentum in order to communicate and coordinate a response.
90.
That upon arriving at the scene, the Shooting Officers failed to gather any
information, let alone sufficient information regarding the state of events. The Shooting Officers
instead escalated the situation by aggressively charging at Wicker and drawing their firearms
without announcing themselves as officers.
91.
That the officers violated LMPD Standard Operating Procedures 9.1.4 which
specifically sets forth a continuum for the progression of force which should have been relied
upon by the Shooting Officers, given the lack of an immediate threat of severe injury or death.
The officers failed to even start with the policy of identifying officer presence (the least amount
of force needed), failed to determine the reasonable force to gain control, failed to use good
judgment and disregarded the progression of force scale, advancing with their weapons already
drawn and then further escalating the force from less than two seconds of verbal direction to
deadly force.
92.
which sets forth that the first officer to arrive at a major crime scene will perform and/or request
any assistance needed to perform a number of functions, including aiding the injured, until
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That Smith, Gadegaard, and Banks failed to provide aid to Wicker at any point in
94.
The Defendants and their conduct, jointly and severally, were negligent, grossly
time.
negligent, malicious, willful and wanton through a course of action which showed an utter and
flagrant indifference and conscious disregard for the safety of others, including Darnell Wicker
in one or more of the following respects:
a.
b.
c.
d.
Escalating to deadly force when the use of deadly force was unjustified
and unreasonable;
e.
f.
g.
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h.
95.
That, pursuant to KRS 446.070, [a] person injured by the violation of any
statute may recover from the offender such damages as [s]he sustained by the reason of the
violation although a penalty or forfeiture is imposed for such violation.
96.
That pursuant to KRS 446.070, Plaintiffs suffered damages which were a direct
That, to the extent that there is no audio associated with the MVS and Arbitrator
video of Bankss and Gadegaards response to the shooting scene, then the Defendants willfully
violated section 4.1.5 of their Standard Operating Procedures (SOPs).
98.
That the failure of the Defendants to record or preserve in car audio on the date of
the shooting violates the purpose of the SOP 4.1.1, which states that LMPD has adopted the
use of in-car audio/video recording systems for the purpose of documenting official actions taken
by officers of the department and that in-car recording equipment enhances officer safety, assists
in the documentation of events made during motor vehicle stops and other critical incidents and
enhances the prosecution of law violations.
99.
That had Officer Smith activated his lights upon arrival to the shooting scene, his
MVS would have activated and potentially recorded the shooting and other critical evidence.
The failure of Smith to activate his lights was a failure to follow critical LMPD policy, a failure
to alert Wicker to the presence of on-site police officers, and a failure to assure recording of a
critical incident.
100.
emergency vehicular operations without recording the audio in their cruiser throughout the
20
That the Shooting Officers violated LMPD policy by occupying a cruiser with an
MVS and Arbitrator without at least one of the officers wearing a microphone to record audio
and by not recording audio in their cruiser throughout the duration of the Code 3 response.
102.
That the Shooting Officers violated LMPD policy by using the MVS without an
activated wireless microphone at all times and without an activated Wearable Video System
(WVS). As confirmed by LMPD policy, the failure to activate the microphone results in a
failure of the officers to provide narration with the video recording.
103.
Officer Gadegaard violated LMPD policy by failing to activate his WVS both
Officers Banks and Smith violated LMPD policy by failing to position their
WVSs in a manner which would assure that a proper visual field would be captured.
105.
The
ministerial acts revolve around their individual and collective actions, including but not limited
to the following actions: the used of objectively unreasonable deadly force; the acts of repeatedly
shooting Wicker with an intent to kill when the acts were objectively unreasonable; the actions
of Smith and the Shooting Officers in unreasonably and unjustifiably concealing their presence
as law enforcement by disengaging blue lights prior to scene arrival and not announcing
themselves as law enforcement to Wicker; the unreasonable and unjustifiable immediate
escalation of the response by the Shooting Officers to a deadly force situation; the unreasonable
and unjustifiable charging at Wicker before making any efforts to assess the condition and
intentions of Wicker, who was not armed with a firearm or other deadly weapon and who posed
no threat of inflicting deadly harm upon anyone at the scene; the targeting and sought after
21
revenge of Wicker by the LMPD due to Wickers alleged officer-involved scuffles from the year
2003; the failure of LMPD to properly assess the minimum level of threat posed by Wicker as
presented in the 911 call prompting the response; the unjustifiable and unreasonable failures of
Smith and the Shooting Officers to follow or even attempt de-escalation protocols; the
unjustifiable, unreasonable and unconscionable acts of firing repeatedly at Wicker more than
seven times within two seconds of Wicker exiting his residence; the unjustifiable and
unreasonable act of shooting Wicker while he was still on his own property and within two feet
of his own front door; the unreasonable and unjustified use of deadly force without utilizing
other forms of appropriate force, to the extent that any use of force whatsoever was necessary;
the unjustified and unreasonable tampering of evidence and the crime scene following the
Shooting; the unjustified and unreasonable failure to render aid; the unjustified and unreasonable
failures of Smith and the Shooting Officers to not announce themselves to Wicker as law
enforcement; the unjustified and unreasonable failure of Gadegaard to not activate his wearable
video (bodycam) during his Code 3 response, arrival at the scene and during the events leading
up to and after the Shooting; the deliberate action by Smith in pointing his bodycam recorded
area to the ground so that he could assure that the actions in front of him were not being
documented by his camera; the unjustified and unreasonable failures of Banks to maintain the
position of his bodycam in a manner which would record the actions in front of him in a
reasonably prudent manner and increase the likelihood that the actions associated with critical
incidents would be captured on video; the unjustified and unreasonable failure of the Shooting
Officers to activate audio and video upon going to a Code 3 status in responding to the scene; the
unjustified and unreasonable act of Smith responding to the scene without the Shooting Officers,
rather than simply waiting for them to meet Smith at the planned off-site area; the unjustified and
22
unreasonable failure of the Shooting Officers to gather information concerning the ongoing
actions at the scene and remain reasonably updated from Smith while responding to the scene;
the failure of all Defendants to communicate regarding Smiths observations and preliminary
observations at the scene prior to the arrival at the scene by the Shooting Officers; the unjustified
and unreasonable use of deadly force upon an individual who neither had a gun nor a knife on his
person and who did not present a threat of death or serious injuries to anyone at the scene of the
shooting at the time of the shooting; the unjustified and unreasonable use of an LMPD vehicle by
Smith and the Shooting Officers which lacked functioning and properly working audio
recording; the deceptive, unreasonable and unjustifiable actions of the LMPD in releasing partial
information to the public as part of a pledge to transparency without informing the public that
the information was an incomplete and inaccurate representation of the actual evidence; the
unreasonable and unjustifiable failure of the Defendants to even determine where Wicker resided
and whether Wicker in fact resided at the residence to which the response was made; the
unreasonable and unjustifiable actions of the LMPD in suggesting to the responding officers that
immediate escalation to high levels of force were necessary and authorized; the acts of seizing
Wicker within the meaning of the Fourth Amendment and in violation of his constitutional
rights; the acts of the Miller in advising the Shooting Officers to not cooperate with the
investigation and to keep their mouths shut, and the Shooting Officers unreasonable and
unjustifiable action of repeatedly shooting Wicker with an intent to kill him while Wicker was
lawfully on the premises of his own residence.
NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION
106.
Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein
23
107.
That LMPD, Conrad, and Miller failed to properly screen, employ, train and
supervise the Shooting Officers so as to assure that these officers observed and followed
applicable constitutional and LMPD standards relating to the conduct of their duties, with said
failures amounting to a deliberate indifference to the rights of Wicker and other citizens.
108.
LMPD and Conrad knew or, in the exercise of reasonable diligence should have
known, that LMPD facilitates the very type of misconduct at issue here by failing to adequately
train, supervise, investigate, punish and discipline instances of similar misconduct by its officers,
thereby leading LMPD officers to believe their actions will never be properly scrutinized and, in
that way, directly encouraging future abuses such as those affecting Plaintiffs.
109.
That the training of LMPD and Conrad to the Shooting Officers on the rendering
of aid to victims such as Wicker was grossly inadequate, malicious, reckless, intentional,
unjustified, unreasonable and/or grossly negligent.
110.
The deficiencies in LMPD and Conrads hiring, training and retention programs
That the failure to train the Shooting Officers as to the constitutional limitations
on the use of deadly force amounted to a malicious deliberate indifference to the value of human
life.
112.
That LMPD, Conrad and Miller, as supervisors of the Shooting Officers and
Smith, by way of their actions and failures to act, served to encourage the conduct of the
Shooting Officers and Smith. Specifically, by way of failing to manage the Code 3 response of
the Shooting Officers, failing to properly train on use of force, failing to train on de-escalation,
failing to recognize the obvious red flags in Gadegaards background which put him at a high
risk of using excessive and unjustifiable force, and failing to assess the facts available to them
24
without exerting a bias towards Wicker, said Defendants willfully created an unreasonable and
unjustifiable risk of death or bodily harm to Wicker.
113.
That upon information and belief, LMPD hired and retained Gadegaard, despite
That Gadegaard was a certified Krav Maga instructor, thus teaching and
promoting this Israeli system of self-defense which promotes attacking
pre-emptively, finishing a fight as quickly as possible, attacking the most
vulnerable parts of the body and using lethal force to finish a fight quickly.
b.
c.
d.
That Gadegaard, prior to starting with LMPD, had falsified prior law
enforcement applications by neglecting to disclose his disability.
e.
f.
25
That Gadegaard, upon information and belief, has had to resort to cage
fighting over the past several years as one outlet to release anger.
h.
That Gadegaard has repeatedly been observed after LMPD shifts with
signs of injury to his hands and knuckles and has made statements that a
day without physical confrontations in his LMPD shift is a boring day
while a day which involves physical confrontations with suspects is what
gives him excitement on the job.
i.
114.
Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein
That the actions of the Shooting Officers constituted offensive physical conduct
That the actions of the Shooting Officers were undertaken intentionally, willfully
and wantonly.
117.
26
With utter indifference and conscious disregard, the Shooting Officers used
deadly force against Wicker under circumstances where Wicker posed no reasonable threat of
serious injury or death to the Officers.
119.
That Conrad and LMPD were negligent in hiring, training, retaining, and
Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein
That the cruiser in which the Shooting Officers responded to the shooting scene
was activated with a Mobile Video System (MVS) which included an Arbitrator Digital Camera.
123.
That the Defendants have destroyed or willfully refused to produce the recorded
by the MVS, the Arbitrator, and from any other recording device which was in the cruisers used
by Banks, Smith and/or Gadegaard on August 8, 2016 prior to the shooting.
124.
That the Defendants have destroyed or willfully refused to produce the recording
from LMPD radio and service channels for the four hours surrounding the shooting, other than
an edited eight minute snippet.
125.
That the denial and failure of the Defendants to secure and produce the critical
audio and video evidence is both a violation of LMPD policy and also a willful and malicious
spoliation of critical evidence, thereby entitling the Plaintiffs to remedies for the same at trial.
27
This includes but is not limited to an adverse jury instruction against the Defendants.
126.
By failing to produce and/or destroying the in-car audio of Banks, Smith, Miller,
and Gadegaard, the Defendants have violated internal policies and engaged in a conspired effort
to withhold critical evidence and have willfully engaged in the spoliation of evidence.
DAMAGES
127.
Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein
Plaintiffs are entitled to recover from Defendants all damages that they are
entitled to recover under KRS 411.130, including, but not limited to, damages for the medical,
funeral, and burial expenses incurred; for the great pain and suffering endured by Darnell Wicker
prior to his death; for the loss of earnings and replacement services secondary to Wickers
untimely death; for the loss of enjoyment of life of Darnell Wicker; for the loss of
companionship and society of Darnell Wicker; for punitive damages secondary to the grossly
negligent and malicious conduct of the Defendants, and for all other damages to which Plaintiffs
may be entitled secondary to Wickers wrongful death.
129.
Pursuant to KRS 411.133, claims are made herein for Wickers personal
injuries. Damages sought herein include those for Wickers wrongful death, his mental and
physical pain, suffering and emotional duress, his pre-death fright, his destruction of power to
labor and earn, punitive damages secondary to the individual and joint conduct of the
Defendants, attorney fees and all expenses associated with prosecuting this action, prejudgment
and post-judgment interest, and all other damages to which the Plaintiffs herein are entitled.
130.
The damages sought herein were directly and proximately caused by the
Defendants.
28
131.
132.
133.
A trial by jury;
2.
3.
That the Plaintiffs obtain judgment against the Defendants in an amount the jury
believes to be just, fair and equitable, given the facts and after hearing the issues
in this case;
4.
For all such further and general relief which this Court deems just and proper;
5.
6.
That attorney fees, the costs of pursuing this action, pre-judgment and postjudgment interest be awarded to Plaintiffs;
7.
For this Court to promptly order preservation and production of critical evidence;
8.
9.
That the Plaintiffs receive all relief to which they are entitled, including but not
limited to the right to amend this action, for all remedies to which Plaintiffs are
entitled due to Defendants spoliation of evidence.
29
Respectfully submitted,
SAM AGUIAR INJURY LAWYERS, PLLC
30
JS 44 (Rev. 0/16)
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
JEFFERSON
JEFFERSON
Sam Aguiar and Jonathan B. Hollan, Sam Aguiar Injury Lawyers, PLLC
1201 Story Avenue, Suite 301, Louisville, KY 40206
Tel: (502) 888-888
U.S. Government
Plaintiff
u 3
Federal Question
(U.S. Government Not a Party)
u 2
U.S. Government
Defendant
u 4
Diversity
(Indicate Citizenship of Parties in Item III)
DEF
u 1
u 2
u 5
u 5
Citizen or Subject of a
Foreign Country
u 3
Foreign Nation
u 6
u 6
u
u
u
u
u
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
u
u
u
u
u
u
u
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
u 365 Personal Injury Product Liability
u 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
u 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
u 370 Other Fraud
u 371 Truth in Lending
u 380 Other Personal
Property Damage
u 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
u 463 Alien Detainee
u 510 Motions to Vacate
Sentence
u 530 General
u 535 Death Penalty
Other:
u 540 Mandamus & Other
u 550 Civil Rights
u 555 Prison Condition
u 560 Civil Detainee Conditions of
Confinement
BANKRUPTCY
u 422 Appeal 28 USC 158
u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
u 820 Copyrights
u 830 Patent
u 840 Trademark
LABOR
u 710 Fair Labor Standards
Act
u 720 Labor/Management
Relations
u 740 Railway Labor Act
u 751 Family and Medical
Leave Act
u 790 Other Labor Litigation
u 791 Employee Retirement
Income Security Act
u
u
u
u
u
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
IMMIGRATION
u 462 Naturalization Application
u 465 Other Immigration
Actions
OTHER STATUTES
u 375 False Claims Act
u 376 Qui Tam (31 USC
3729(a))
u 400 State Reapportionment
u 410 Antitrust
u 430 Banks and Banking
u 450 Commerce
u 460 Deportation
u 470 Racketeer Influenced and
Corrupt Organizations
u 480 Consumer Credit
u 490 Cable/Sat TV
u 850 Securities/Commodities/
Exchange
u 890 Other Statutory Actions
u 891 Agricultural Acts
u 893 Environmental Matters
u 895 Freedom of Information
Act
u 896 Arbitration
u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
u 950 Constitutionality of
State Statutes
u 2 Removed from
State Court
u 3
u 6 Multidistrict
Litigation Transfer
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Remanded from
Appellate Court
u 4 Reinstated or
Reopened
u 5 Transferred from
Another District
u 8 Multidistrict
Litigation Direct File
42 U.S.C. 1983
DEMAND $
u CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
An amount in excess of $75,000
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
DOCKET NUMBER
09/12/2016
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
APPLYING IFP
JUDGE
MAG. JUDGE