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1 Todd T. Cardiff, Esq., State Bar No. 221851 2 LAW OFFICE OF TODD T. CARDIFF 1901 First Avenue, Ste. 219 3 San Diego, CA 92101 4 Tel: (619) 546-5123 Fax: (619) 546-5133 5 [email protected] 6 7 BRYAN W. PEASE, Esq., State Bar No. 239139 LAW OFFICE OF BRYAN W. PEASE 8 3170 Fourth Ave., Ste. 250 9 San Diego, CA 92103 Tel: (619) 723-0369 10 Fax: (619) 923-1001 11 Email: [email protected]
12 ANDREA M. CARTER, Esq., State Bar No. 290286 13 LAW OFFICE OF ANDREA M. CARTER 14 101 W. Broadway, Ste. 1770 San Diego, CA 92101 15 Tel: (619) 887-4529 16 Fax: (619) 236-0677 Email: [email protected] 17
18 Attorneys for Plaintiffs 19 UNITED STATES DISTRICT COURT 20
21 SOUTHERN DISTRICT OF CALIFORNIA 22 SAN DIEGO BRANCH OF ) Case No. 3:16-cv-02575-JLS-BGS 23 NATIONAL ASSOCIATION FOR ) 24 THE ADVANCEMENT OF ) FIRST AMENDED COMPLAINT COLORED PEOPLE; ERIC ) FOR VIOLATIONS OF CIVIL 25 BIDWELL, an individual; CARL BOX, ) RIGHTS (42 U.S.C. § 1983) 26 an individual; ERIC BURNEY, an ) 27 individual; LEVANDIS CARTER, an ) [DEMAND FOR JURY TRIAL] individual; TEGAN DANIELS, an ) 28 individual; MICHAEL FEINSTEIN, an ) individual; ANTHONY JIMENEZ, an )
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1 individual; ANDREW A. PASTER, an ) 2 individual; JEFF PROVENZANO, an ) individual; IAN WHITEHOUSE, an ) 3 individual; JAMIE WILSON, an ) 4 individual and on behalf of her three ) minor children J.J.R, J.T.A.R. and ) 5 J.A.R., ) 6 ) 7 Plaintiffs, ) ) 8 v. ) 9 ) COUNTY OF SAN DIEGO, a ) 10 Subdivision of the State; WILLIAM D. ) 11 GORE, Sheriff of the COUNTY OF ) SAN DIEGO; CITY OF EL CAJON, a ) 12 Charter City; JEFF DAVIS, the Police ) 13 Chief of the CITY OF EL CAJON; and ) 14 DOES 1-25, inclusive, ) ) 15 Defendants. ) 16 )
17 INTRODUCTION 18 1. This case is being filed to recover damages and prevent unlawful 19 dispersal orders and unlawful arrests by the San Diego County Sheriff’s 20 Department , the El Cajon Police Department and its officers and deputies. 21 2. On Saturday, October 1, 2016, community members held a vigil on 22 private land with permission of Los Panchos, at what is commonly known as 23 24 Broadway Village Shopping Center, located at 777 Broadway in the City of El 25 Cajon. Alfred Olango, an unarmed African American man, was shot and killed on 26 September 27, 2016, by police at the shopping center parking lot behind Los 27 Panchos. 28 3. On October 1, 2016, approximately 80 members of the community, including mothers and children, peacefully assembled to pray, remember, pay their
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1 respects and demand justice for Alfred Olango. The community created a 2 shrine/memorial with tables, candles, photographs, signs and a canopy. A 3 barbeque was held offering free food to the community and donations were 4 collected to help the family of Alfred Olango. The vigil was quiet and peaceful at 5 all times. 6 4. At approximately midnight on October 1, 2016, the members of the 7 vigil were informed from a helicopter flying overhead that the police had declared 8 the vigil an unlawful assembly. Many members of the community dispersed at that 9 time despite their lawful right to continue exercising their First Amendment rights 10 and attend the vigil. 11 5. Shortly thereafter, two lines of Sheriff’s deputies blocked both exits of 12 13 the Broadway Village Shopping Center. The Sheriff’s deputies were wearing 14 helmets, bullet-proof vests, and carrying batons. Some deputies had attack dogs on 15 leashes. Community members, include some of the Plaintiffs met multiple times 16 with Sheriff’s deputies and convince them of their lawful right to continue the 17 vigil. The Sheriff’s deputies refused to allow the vigil to continue unless only a 18 handful of people remained. 19 6. At approximately 12:30 a.m., the line of Sheriff’s deputies advanced 20 on the vigil, dispersing the remaining members of the community, including 21 plaintiffs. Approximately 12 members of the community refused to leave and were 22 arrested for failure to disperse from an unlawful assembly. 23 7. Sheriff’s deputies tore down signs and posters at the vigil site, despite 24 lacking any legal authority or permission, and despite the fact that the memorial 25 was located entirely on private property. It is alleged on information and belief 26 that Sheriff’s deputies removed the posters because they disagreed and were 27 offended by messages critical of the police and demanding justice for Alfred 28 Olango.
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1 8. At no time was there any threat of violence at the vigil, and none of 2 the behavior could be called violent, boisterous, or tumultuous conduct within the 3 meaning of California Penal Code section 407. The Sheriff’s deputies could easily 4 see and ascertain the peaceful nature of the vigil. 5 9. On or about midnight on October 15-16, the Defendants again 6 declared an unlawful assembly at the vigil site. None of the behavior could be 7 called violent, boisterous, or tumultuous conduct within the meaning of California 8 Penal Code section 407. In addition, Defendants, for the first time, claimed that 9 protestors were trespassing. 10 10. On October 16, 2016, Plaintiffs were told to remove all vigil items 11 from the vigil site. Plaintiffs complied with such request. 12 13 11. On October 16, 2016, and continuing until present, the City of El 14 Cajon and its Police Chief, through its police officers, have threatened to arrest any 15 community members/protestors who go to the shopping center to visit the vigil 16 site, despite the property being open to the public. It is alleged on information and 17 belief that the El Cajon Police are threatening to arrest anyone who does not go 18 into a store located at the shopping center and obtain a receipt. Even then, if 19 community members, including plaintiffs visit the vigil site after purchasing items, 20 they are threatened with arrest for trespassing. 21 12. On October 17, 2016, the El Cajon Police began arresting people for 22 trespassing at the Broadway Village Shopping Center if the person did not 23 immediately leave at the demand of the El Cajon Police Officers. Plaintiffs Carl 24 Box, Levandis Carter and Jean Vilsaint were arrested for going to the vigil site. It 25 is alleged on information and belief that Defendants arrested 7 community 26 members on October 17, 2016 for trespassing and/or unlawful assembly in 27 violation of the Constitution. 28
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1 13. All plaintiffs would visit the vigil site to exercise their Constitutional 2 Rights but for the threat of arrest by the Defendants in violation of the 3 Constitution. 4 14. It is alleged on information and belief, that defendants Police Chief 5 JEFF DAVIS and Sheriff WILLIAM GORE imposed an illegal and unwritten 6 curfew on free speech activities, intentionally chilling the free speech rights of 7 plaintiffs and the community. In the alternative, it is alleged on information and 8 belief that the Defendants, and each of them, declared an unlawful assembly 9 because Defendants were simply impatient with the ongoing vigil. 10 15. Defendants’ illegal declaration of an unlawful assembly violated 11 Plaintiffs and other community members’ right to freedom of expression and 12 13 assembly guaranteed under the First Amendment of the Constitution. Defendant’s 14 actions in arresting citizens at the vigil violated Plaintiffs’ freedom from unlawful 15 seizure and arrest without probable cause guaranteed by the Fourth and Fourteenth 16 Amendments to the United States Constitution. 17 16. Defendants threat of arrest and actual arrest of Plaintiffs and 18 community members for trespassing constitutes an illegal policy of CITY OF EL 19 CAJON and Police Chief JEFF DAVIS intended to chill Plaintiff’s exercise of 20 their First Amendment rights, and is in violation of their right to be free from 21 search and seizure without probable causes. 22 17. All plaintiffs seek injunctive relief prohibiting Defendants, and each 23 of them, from declaring an unlawful assembly and dispersing free speech activities 24 based on convenience, time of day or night or for any other irrelevant justification 25 unless there is a clear and imminent threat of violence or unlawful activity. 26 18. All plaintiffs seek injunctive relief prohibiting the CITY OF EL 27 CAJON and Police Chief JEFF DAVIS and Does 1-25 from arresting plaintiffs and 28
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1 community members for trespassing at the shopping center unless they are 2 intentionally interfering with a business establishment open to the public. 3 19. The individual plaintiffs seek direct and indirect damages against 4 Defendants for the violation of their Constitutional rights in an amount to make 5 them whole. In addition, the individual plaintiffs also request the imposition of 6 punitive damages in an amount sufficient to make an example of Defendants and 7 discourage Defendants from repeating such unlawful use of police force in clear 8 violation of the United States Constitution. The law enforcement officers for the 9 CITY OF EL CAJON and COUNTY OF SAN DIEGO must be held accountable 10 for disrupting lawful community action simply because its officers were tired of 11 standing around. 12 13 PARTIES 14 20. Plaintiff SAN DIEGO BRANCH OF THE NAACP (San Diego 15 NAACP), a 501(c)(4) non-profit organization, was chartered in 1919. It is a unit of 16 the National NAACP, the nation’s largest, oldest, and most widely recognized 17 grassroots based civil rights organization. This action is brought on behalf of the 18 San Diego NAACP and its members who wish to visit, pay homage and demand 19 justice for the loss of life in the parking lot behind Los Panchos in El Cajon. The 20 NAACP and its member seek to protest the killing of Alfred Olango and change 21 the way police interact with communities of color. The NAACP and its members 22 are entitled to exercise their First Amendment rights without fear of harassment or 23 threat of unlawful arrests from Defendants. The interest that the San Diego 24 NAACP seeks to protect herein is central to its mission, the interest of its members 25 and the communities that it seeks to protect. 26 21. Plaintiff ERIC BIDWELL is an individual who has been attending the 27 rallies and vigils for Alfred Olango in the parking lot behind Los Panchos. On 28 October 1-2, he was unlawfully ordered to disperse despite not being part of a
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1 violent, boisterous, or tumultuous assembly. He was arrested for not dispersing, 2 despite exercising his right to assemble, pray and demand justice for Alfred Olango 3 at the vigil site in a peaceful manner. His constitutional rights to free speech and 4 assembly were violated by Defendants and each of them, and he seeks to exercise 5 his constitutional rights in the future without fear of harassment or threat of 6 unlawful arrest from Defendants. 7 22. Plaintiff CARL BOX is an individual who has been attending the 8 rallies and the vigils for Alfred Olango in the parking lot behind Los Panchos. On 9 October 1-2 and again on October 15-16, 2016 he was unlawfully ordered to 10 disperse despite not being part of a violent, boisterous, or tumultuous assembly. 11 He was also unlawfully stopped and frisked, despite have left the vigil site and 12 13 being on public property, because he sought to film the actions of the Sheriff’s 14 deputies. On October 17, 2016, CARL BOX was unlawfully arrested for 15 trespassing for visiting the vigil site. His constitutional rights to free speech and 16 assembly were violated by Defendants and each of them, and he seeks to 17 peacefully exercise his constitutional rights in the future without fear of harassment 18 or threat of unlawful arrest from Defendants. 19 23. Plaintiff ERIC BURNEY is an individual who has been attending the 20 rallies and the vigils for Alfred Olango in the parking lot behind Los Panchos. On 21 October 1-2, he was unlawfully ordered to disperse despite not being part of a 22 violent, boisterous, or tumultuous assembly. He was unlawfully stopped and 23 arrested despite not acting in a manner that was violent, boisterous, or tumultuous 24 manner. His constitutional rights to free speech and assembly were violated by 25 Defendants and each of them, and he seeks to exercise his constitutional right in 26 the future without fear of harassment or threat of unlawful arrest from Defendants. 27 24. Plaintiff LEVANDIS CARTER is an individual who has been 28 attending the rallies and the vigils for Alfred Olango in the parking lot behind Los
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1 Panchos. On October 1-2 and again on October 15-16, 2016 he was unlawfully 2 ordered to disperse despite not being part of a violent, boisterous, or tumultuous 3 assembly. He was arrested for not dispersing, despite exercising his right to 4 assemble, pray and demand justice for Alfred Olango at the vigil site in a peaceful 5 manner. He was also arrested on October 17, 2016 for visiting the vigil site. His 6 constitutional rights to free speech and assembly were violated by Defendants and 7 each of them, and he seeks to exercise his constitutional rights in the future without 8 fear of harassment or threat of unlawful arrest from Defendants. 9 25. Plaintiff TEGAN DANIELS is an individual who has been attending 10 the rallies and the vigils for Alfred Olango in the parking lot behind Los Panchos. 11 On October 1-2, she was unlawfully ordered to disperse despite not being part of a 12 13 violent, boisterous, or tumultuous assembly. Her constitutional rights to free 14 speech and assembly were violated by Defendants and each of them, and she seeks 15 to exercise her constitutional rights in a peaceful manner without fear of 16 harassment or threat of unlawful arrest from Defendants. 17 26. Plaintiff MICHAEL FEINSTEIN is an individual who has been 18 attending the rallies and the vigils for Alfred Olango in the parking lot behind Los 19 Panchos. On October 1-2, he was unlawfully ordered to disperse despite not being 20 part of a violent, boisterous, or tumultuous assembly. He was arrested for not 21 dispersing, despite exercising his right to peacefully pray at the vigil site. His 22 arrest was particularly traumatic due to his medical condition, and his inability to 23 timely take his anti-seizure mediation. His constitutional rights to free speech and 24 assembly were violated by Defendants and each of them, and he seeks to exercise 25 his constitutional rights in the future without fear of harassment or threat of 26 unlawful arrest from Defendants. 27 27. Plaintiff ANTHONY JIMENEZ is an individual who has been 28 attending the rallies and the vigils for Alfred Olango in the parking lot behind Los
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1 Panchos. On October 1-2 and again on October 15-16, 2016 he was unlawfully 2 ordered to disperse despite not being part of a violent, boisterous, or tumultuous 3 assembly. His constitutional rights to free speech and assembly were violated by 4 Defendants and each of them, and he seeks to peacefully exercise his constitutional 5 rights in the future without fear of harassment or threat of unlawful arrest from 6 Defendants. 7 28. Plaintiff ANDREW A. PASTER is an individual who has been 8 attending the rallies and the vigils for Alfred Olango in the parking lot behind Los 9 Panchos. On October 1-2, he was unlawfully ordered to disperse despite not being 10 part of a violent, boisterous, or tumultuous assembly. Plaintiff PASTER lives on 11 N. Mollison Boulevard, very close to the shooting, marches and vigil. The events 12 13 of the past two weeks, including the use of firearm-delivered “pepper balls” have 14 traumatized both him and his young daughter, who now expresses a deep fear of 15 law enforcement officers. His constitutional rights to free speech and assembly 16 were violated by Defendants and each of them, and he seeks to peacefully exercise 17 his constitutional rights in the future without fear of harassment or threat of 18 unlawful arrest from Defendants. 19 29. Plaintiff JEFF PROVENZANO is an individual who has been 20 attending the rallies and the vigils for Alfred Olango in the parking lot behind Los 21 Panchos. On October 1-2 and again on October 15-16, 2016, he was unlawfully 22 ordered to disperse despite not being part of a violent, boisterous, or tumultuous 23 assembly. In addition, he was exercising his right to peacefully record and film 24 the police and police actions. Despite leaving the vigil site as ordered and standing 25 on public property outside of the parking lot, he was arrested, cuffed, taken down 26 to the police station, booked under California Penal Code section 409. It is further 27 alleged on information and belief that he was arrested specifically because he was 28 filming the police. His constitutional rights to free speech and assembly were
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1 violated by Defendants and each of them, and he seeks to peacefully exercise his 2 constitutional rights in the future without fear of harassment or threat of unlawful 3 arrest from Defendants. 4 30. Plaintiff JEAN VILSAINT is an individual who has been attending 5 the rallies and the vigils for Alfred Olango in the parking lot behind Los Panchos. 6 On October 1-2, and again on October 15-16, 2016, he was unlawfully ordered to 7 disperse despite not being part of a violent, boisterous, or tumultuous assembly. 8 He was arrested for not dispersing, despite exercising his right to assemble, pray 9 and demand justice for Alfred Olango at the vigil site in a peaceful manner. On 10 October 17, 2016, JEAN VILSAINT was unlawfully arrested for trespassing for 11 visiting the vigil site. His constitutional rights to free speech and assembly were 12 13 violated by Defendants and each of them, and he seeks to exercise his 14 constitutional rights in the future without fear of harassment or threat of unlawful 15 arrest from Defendants. 16 31. Plaintiff IAN WHITEHOUSE is an individual who has been attending 17 the rallies and the vigils for Alfred Olango in the parking lot behind Los Panchos. 18 On October 1-2, he was unlawfully ordered to disperse despite not being part of a 19 violent, boisterous, or tumultuous assembly. He was arrested for not dispersing, 20 despite exercising his right to assemble, pay his respects and demand justice for 21 Alfred Olango at the vigil site in a peaceful manner. His constitutional rights to 22 free speech and assembly were violated by Defendants and each of them, and he 23 seeks to exercise his constitutional rights in the future without fear of harassment 24 or threat of unlawful arrest from Defendants. 25 32. JAMIE WILSON is an individual and mother of three children who 26 were present at the time of the incident. On October 1-2, she was unlawfully 27 ordered to disperse despite not being part of a violent, boisterous, or tumultuous 28 assembly. She was unlawfully arrested and placed in zip-tie handcuffs, but
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1 released at the scene when other members of the assembly informed the police that 2 her children were crying and screaming. Her children have now expressed deep 3 fear of law enforcement officers and have resisted returning to the vigil/memorial 4 site for Alfred Olango. Her constitutional rights to free speech and assembly were 5 violated by Defendants and each of them, and she seeks to peacefully exercise her 6 constitutional rights in the future without fear of harassment or threat of unlawful 7 arrest from Defendants. 8 33. J.J.R., J.T.A.R. and J.A.R. are minor children who are parties to this 9 lawsuit through their mother and guardian JAMIE WILSON. (Cal. Fam. Code § 10 6601.) On October 1-2, these minors plaintiffs were unlawfully ordered to 11 disperse despite not being part of a violent, boisterous, or tumultuous assembly. 12 13 They suffered significant mental anguish and fear as they were separated by the 14 SHERIFF DEPARTMENT from their mother JAMIE WILSON and watched her 15 cuffed with zip-ties. They now have a deep fear of law enforcement officers and 16 fear of going to the site of the vigil. J.J. R., J.T.A. R. and J.A. R.’s constitutional 17 rights to free speech and assembly were violated by Defendants and each of them, 18 and they seek to peacefully exercise their constitutional rights in the future without 19 fear of harassment or threat of unlawful arrest of their family members from 20 Defendants. 21 34. Defendant COUNTY OF SAN DIEGO is a public agency and in sole 22 control of the SAN DIEGO SHERIFF’S DEPARTMENT. It is alleged on 23 information and belief that the law enforcement officers involved in declaring the 24 vigil an unlawful assembly were sheriff deputies under the employment and 25 control of the COUNTY OF SAN DIEGO. 26 35. Defendant Sheriff WILLIAM GORE is the sheriff for the County of 27 San Diego. It is alleged on information and belief that either Sheriff WILLIAM 28 GORE or officers directly subordinate to Sheriff Gore ordered the vigil to be
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1 dispersed despite its peaceful nature and in direct violation of the First Amendment 2 rights of Plaintiffs and other members of the community. Defendant WILLIAM 3 GORE is directly and indirectly responsible for ensuring that the actions of the law 4 enforcement officers employed by the San Diego County Sheriff’s Department are 5 consistent with the laws and Constitution of the State of California and Federal 6 Constitution. It is alleged that defendant WILLIAM GORE either directly ordered 7 or acquiesced to the decision to declare the vigil an unlawful assembly or failed to 8 properly train and supervise the deputies under his charge resulting in the violation 9 of the Constitutional rights of the plaintiffs. 10 36. Defendant CITY OF EL CAJON is a charter city. The parking lot 11 where the vigil was being held is within the city limits of the City of El Cajon and 12 13 under the jurisdiction of the El Cajon Police Department. The CITY OF EL 14 CAJON is directly responsible for the acts of its police department. It is alleged on 15 information and belief that the Sheriff’s Department was acting at the request of 16 the El Cajon Police Department when it surrounded the vigil and declared the vigil 17 an unlawful assembly. It is alleged on information and belief that the CITY OF EL 18 CAJON has an illegal policy of threatening arrest and arresting protestors at the 19 site of the vigil, despite the property being open to the public. The CITY OF EL 20 CAJON is directly and indirectly responsible for the violations of the 21 Constitutional rights of plaintiffs. 22 37. Defendant JEFF DAVIS is the Chief of Police for the City of El 23 Cajon. Defendant JEFF DAVIS is directly and indirectly responsible for ensuring 24 that the actions of the law enforcement officers employed by the City of El Cajon 25 are consistent with the laws and Constitution of the State of California and Federal 26 Constitution. It is alleged on information and belief that the Sheriff’s Department 27 was acting at the behest of Chief JEFF DAVIS when the Sheriff’s Department 28 surrounded the assembly, and ultimately declared the vigil an “unlawful assembly”
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1 in violation of the First Amendment. In the alternative, it is alleged that defendant 2 DAVIS acquiesced to the decision to declare the vigil an unlawful assembly or 3 failed to properly train and supervise the officers under his charge resulting in the 4 violation of the Constitutional rights of the plaintiffs. It is alleged on information 5 and belief that the police chief JEFF DAVIS has implemented an illegal policy of 6 threatening arrest and arresting protestors at the site of the vigil, despite the 7 property being open to the public. 8 38. The names and capacities of DOES 1-25 are currently unknown to 9 Plaintiffs, and therefore Plaintiff sues such parties in their fictitious capacity. It is 10 alleged on information and belief that DOES 1-25 are either law enforcement 11 officers, public officials or private parties that were responsible in some part for 12 13 denying Plaintiff’s constitutional right of assembly and free speech. DOES 1-25 14 include the arresting officers which are currently unknown to Plaintiffs. Plaintiff 15 will substitute such parties as their names, capacities of the arresting officers and 16 other officers as they become known to Plaintiff. 17 18 VENUE AND JURISDICTION 19 39. Jurisdiction is proper in Federal Court because the question of 20 whether the actions of Defendants, and each of them, violated Plaintiff’s rights 21 arises under the Federal Constitution. 22 40. Venue is proper in the Southern District of California, because the 23 incident, witnesses, plaintiffs and defendants reside within the County of San 24 Diego. 25 /././ 26 /././ 27 /././ 28
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1 FIRST CAUSE OF ACTION 2 DECLARATORY RELIEF 3 ALL PLAINTIFFS V. ALL DEFENDANTS 4 41. Plaintiffs reallege and incorporate all previous all paragraphs as if 5 fully set forth herein. 6 42. California Penal Code § 407, states: 7 Whenever two or more persons assemble together to do an 8 unlawful act, or do a lawful act in a violent, boisterous, or tumultuous 9 manner, such assembly is an unlawful assembly.
10 43. California Penal Code § 408 states: 11 Every person who participates in any rout or unlawful assembly 12 is guilty of a misdemeanor. 13 14 44. California Penal Code § 409 states: 15 Every person remaining present at the place of any riot, rout, or 16 unlawful assembly, after the same has been lawfully warned to disperse, except public officers and persons assisting them in 17 attempting to disperse the same, is guilty of a misdemeanor. 18 19 45. Plaintiffs allege that for Defendants to declare an assembly unlawful 20 there must be a clear and present danger of imminent violence. 21 46. Plaintiffs and each of them were present at a vigil, on private 22 property, on October 1 – 2, 2016. 23 47. At all times, the vigil remained peaceful and generally consisted of a 24 barbeque, prayer circles, candles, quiet speeches and other activities designed to 25 pay homage to Alfred Olango, an unarmed African American man who was shot 26 and killed by police at that location. 27 28
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1 48. On or about midnight on October 1-2, the Sheriff’s department, 2 despite no credible evidence of an imminent threat of violence, declared the 3 assembly to be unlawful. 4 49. On or about midnight on October 16, 2016, the Sheriff’s department, 5 despite no credible evidence of an imminent threat of violence, declared the 6 assembly to be unlawful. 7 50. It is alleged on information and belief that Defendants, and each of 8 them, declared it to be an unlawful assembly because they felt inconvenienced by 9 the late night vigil. 10 51. It is alleged on information and belief that the Defendants and each of 11 them, have a pattern and practice of declaring an assembly unlawful, despite its 12 13 peaceful nature, as a matter of convenience, instead of to protect the general 14 welfare and safety of the community. 15 52. Plaintiffs contend that Defendants could clearly see the peaceful 16 nature of the assembly and knew or should have known that the declaration of 17 unlawful assembly was not consistent with the Constitution. 18 53. Plaintiffs allege that Defendants’ declaration of an unlawful assembly 19 was in violation of the State and Federal Constitution and inconsistent with Penal 20 Code §§ 407, 408 and 409. 21 54. It is alleged on information and belief that Defendants, and each of 22 them, dispute that the declaration of unlawful assembly at the vigil site on October 23 1-2 was in violation of the State and Federal Constitution and inconsistent with 24 Penal Code §§ 407, 408 and 409. 25 55. Plaintiffs allege that the Sheriff’s deputies lacked any legal authority 26 to damage the memorial, tear down signs and posters, and acted in a manner 27 intending to chill free speech activities. 28
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1 56. It is alleged on information and belief that Defendants, and each of 2 them dispute that they lacked legal authority to remove or take down handwritten 3 signs at the memorial site. 4 57. There is a current case and controversy between the Plaintiffs and 5 Defendants. 6 58. Plaintiffs seek a judicial declaration that the action taken by police by 7 declaring the vigil an unlawful assembly was illegal and unconstitutional. 8 59. Plaintiffs seek a judicial declaration that the destruction of the 9 memorial was unlawful and unconstitutional. 10 60. Plaintiffs desire a judicial declaration that the community is entitled to 11 maintain its vigil at the location of the shooting of Alfred Olango without 12 13 harassment or interference by police, unless there is a clear and imminent threat of 14 violence. 15 SECOND CAUSE OF ACTION 16 42 USC § 1983 - VIOLATION OF FIRST AMENDMENT 17 ALL PLAINTIFFS V. ALL DEFENDANTS 18 61. Plaintiffs re-allege and incorporate by reference all prior paragraphs 19 of this Complaint as though each were set forth herein in full. 20 62. Title 42 U.S.C. § 1983 states in pertinent part: “Every person who, 21 under color of [law] subjects, or causes to be subjected, any person of the United 22 States . . . to the deprivation of any rights, privileges or immunities secured by the 23 Constitution and laws shall be liable to the party injured in an action at law [or 24 equity].” 25 63. At all times relevant to this Complaint, plaintiffs were exercising 26 their First Amendment rights to peacefully assemble and seek redress of their 27 grievances. 28 64. When Defendants issued the order to disperse, there was no valid
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1 legal basis for declaring the assembly to be unlawful. The dispersal order was 2 solely due to the inconvenience to police officers of monitoring a peaceful vigil at 3 midnight. 4 65. By declaring the assembly unlawful and ordering everyone to 5 disperse, Defendants intentionally and knowingly violated Plaintiffs’ First 6 Amendment Rights and sought to chill Plaintiffs’ and the community’s further 7 exercise of such rights in the future. 8 66. While declaring the assembly unlawful and dispersing and/or 9 arresting all participants, Sheriff Deputies tore down signs the demonstrators had 10 placed on the property with the permission of the tenants. 11 67. The individual Plaintiffs were damaged in that they felt fear, 12 frustration, anger and outrage that their rights were being violated and they could 13 14 no longer express themselves or peacefully assemble to seek redress for their 15 grievances. 16 68. Ever since the declaration of unlawful assembly and arrests, the 17 ability for members of the community to generate large crowds has been greatly 18 diminished due to fear of arrest and retaliation for exercising First Amendment 19 rights. 20 69. Defendants violated 42 USC Section 1983 by depriving Plaintiffs, 21 and each of them, of their rights guaranteed to them by the First Amendment to 22 the United States Constitution. 23 70. Plaintiffs are entitled to injunctive relief and damages according to 24 proof. 25 71. Plaintiffs are entitled to compensatory damages, punitive damages, 26 attorney fees under 42 U.S.C. § 1988, and all applicable law, and any other such 27 relief as the Court deems just and appropriate. 28
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1 THIRD CAUSE OF ACTION 2 42 U.S.C. § 1983 - Unlawful Seizure, Arrest, Detention and Imprisonment 3 ERIC BIDWELL, ERIC BURNEY, LEVANDIS CARTER, MICHAEL 4 FEINSTEIN, JEFF PROVENZANO, JEAN VILSAINT 5 and IAN WHITEHOUSE against 6 ALL DEFENDANTS 7 72. Plaintiffs re-allege and incorporate by reference all prior paragraphs 8 of this Complaint as though each were set forth herein in full. 9 73. At the time of their arrest, Plaintiffs ERIC BIDWELL, ERIC 10 BURNEY, LEVANDIS CARTER, MICHAEL FEINSTEIN, JEFF 11 PROVENZANO, JEAN VILSAINT and IAN WHITEHOUSE had a clearly 12 established right to be free from unlawful seizure and arrest without probable 13 14 cause. 15 74. At the time of the arrest, ERIC BIDWELL was standing next to the 16 memorial site participating with other community members in a prayer circle. He 17 was not acting in a threatening or violent manner at any time before or during his 18 arrest. 19 75. At the time of the arrest, ERIC BURNEY had vacated the vigil site 20 and parking lot as instructed by the Sheriff’s Department and was standing on 21 public property. He was unlawfully stopped and frisked despite the lack of any 22 probable cause that he was breaking any laws. He was arrested, despite the fact 23 that he was not acting in a threatening or boisterous manner at any time before or 24 during his arrest. 25 76. At the time of the arrest, LEVANDIS CARTER was standing next to 26 the memorial site participating with other community members in a prayer circle. 27 He was not acting in a threatening or violent manner at any time before or during 28 his arrest.
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1 77. At the time of the arrest, MICHAEL FEINSTEIN was sitting next to 2 the memorial site participating with other community members in a prayer circle. 3 He was not acting in a threatening or violent manner at any time before or during 4 his arrest. 5 78. At the time of the arrest, JEFF PROVENZANO had vacated the vigil 6 site and parking lot as instructed by the Sheriff’s Department and was standing on 7 public property filming Sheriff Deputies arrest and disperse members of the public 8 at the vigil site. It is alleged on information and belief that he was arrested 9 specifically because he sought to document the illegal actions of law enforcement. 10 He was not acting in a threatening or boisterous manner at any time before or 11 during his arrest. 12 79. At the time of the arrest, JEAN VILSAINT was standing next to the 13 14 memorial site participating with other community members in a prayer circle. He 15 was not acting in a threatening or violent manner at any time before or during his 16 arrest. 17 80. At the time of the arrest, IAN WHITEHOUSE was standing next to 18 the memorial site participating with other community members in a prayer circle. 19 He was not acting in a threatening or violent manner at any time before or during 20 his arrest. 21 81. Defendants, including the unknown DOE Defendants, performed the 22 arrests without probable cause and deprived Plaintiffs of their constitutional rights 23 guaranteed to them by the Fourth and Fourteenth Amendments of the United 24 States Constitution. 25 82. The DOE Defendant officers present at Plaintiffs’ arrest who did not 26 personally touch Plaintiffs, or order that Plaintiffs be touched, did not in any way 27 attempt to stop their fellow officers from violating Plaintiffs’ constitutional rights, 28 despite the fact that said DOE Defendants knew (or, in the exercise of reasonable
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1 care, should have known) that arresting and detaining Plaintiffs was 2 unconstitutional and unlawful. 3 83. In committing these acts and omissions, Defendants acted in the 4 course and scope of their employment and under the color of law. 5 84. At no time did Plaintiffs give valid consent to Defendants’ unlawful 6 actions. Plaintiffs did not threaten or resist Defendants, nor did Plaintiffs ever fail 7 to comply with a lawful order issued by Defendants. 8 85. In committing the acts and omissions alleged herein, Defendants 9 acted with malice, oppression and fraud and with the intent to cause harm and/or 10 offense to Plaintiffs. 11 86. Plaintiffs suffered both direct and indirect damages, including, but 12 not limited to, deprivation of their constitutional rights, anger, fear and anxiety. 13 14 87. Plaintiffs are entitled to compensatory damages, punitive damages, 15 exemplary (punitive) damages, and attorney fees under 42 U.S.C. §1988, and all 16 applicable law, and any other such relief as the Court deems just and appropriate. 17 18 FOURTH CAUSE OF ACTION 19 42 U.S.C. §1983 - Unlawful Seizure, Arrest, Detention and Imprisonment in 20 Violation of Free Speech and Assembly 21 JAMIE WILSON as an individual and on behalf of J.J.R., J.T.A.R and 22 J.A.R. against ALL DEFENDANTS 23 88. Plaintiff WILSON re-alleges and incorporates by reference all prior 24 paragraphs of this Complaint as though each were set forth herein in full. 25 89. Plaintiff WILSON is the mother of two boys and one girl. 26 90. Plaintiff WILSON brought her children, J.J. R., J.T.A. R., and J.A. R. 27 to the vigil to pray, pay respects to Alfred Olango and allow her children to 28 participate in a peaceful assembly protected by the First Amendment. Plaintiff
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1 would not have allowed her children to stay at the vigil site if there had been any 2 threat of violence at the assembly. 3 91. Plaintiff WILSON was unlawfully seized in front of her children, 4 placed in zip-tie handcuffs and taken away. Only after other citizens informed the 5 deputies that it was her children screaming did the law enforcement officers 6 release WILSON, and only after they coerced her into agreeing to immediately 7 leave the peaceful vigil and take her children home. The deputies also threatened 8 to place her children with child protective services. 9 92. At the time of her arrest, Plaintiff WILSON had a clearly established 10 right to be free from unlawful seizure and arrest without probable cause. 11 93. Defendants seized Plaintiff WILSON’s person without probable 12 cause and deprived Plaintiff of her constitutional rights guaranteed to her by the 13 14 Fourth and Fourteenth Amendments to the United States Constitution. 15 94. The DOE Defendant officers present at Plaintiffs’ arrest who did not 16 personally touch Plaintiff, or order that Plaintiff be touched, did not in any way 17 attempt to stop their fellow officers from violating Plaintiff’s constitutional rights, 18 despite the fact that said DOE Defendants knew (or, in the exercise of reasonable 19 care, should have known) that arresting and detaining Plaintiff was 20 unconstitutional and unlawful. 21 95. In committing these acts and omissions, Defendants acted in the 22 course and scope of their employment and under the color of law. 23 96. At no time did Plaintiff give valid consent to Defendants’ unlawful 24 actions. Plaintiff did not threaten or resist Defendants, nor did Plaintiff ever fail to 25 comply with a lawful order issued by Defendants. 26 97. In committing the acts and omissions alleged herein, Defendants 27 acted with malice, oppression and fraud and with the intent to cause harm and/or 28 offense to Plaintiff.
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1 98. Plaintiff WILSON’s damages include the outrage and emotional 2 distress caused by the fear of being taken away from her children at a peaceful 3 vigil protected by the First Amendment. 4 99. Plaintiffs J.J. R., J.T.A. R. and J.A.R. damages include the emotional 5 distress, fear and anxiety caused by watching a line of sheriff’s deputies wearing 6 riot gear and wielding batons descend on the peaceful vigil and forcefully taking 7 their mother and unlawfully placing her under arrest. 8 100. Plaintiffs JAMIE WILSON, J.J. R., J.T.A. R. and J.A.R. are entitled 9 to compensatory damages, punitive damages, attorney fees under 42 U.S.C. § 10 1988, and all applicable law, and any other such relief as the Court deems just and 11 appropriate. 12 FIFTH CAUSE OF ACTION 13 14 42 U.S.C. § 1983 - Unlawful Seizure, Arrest, Detention and Imprisonment 15 CARL BOX, LEVANDIS CARTER, JEAN VILSAINT 16 against 17 ALL DEFENDANTS 18 101. Plaintiffs re-allege and incorporate by reference all prior paragraphs 19 of this Complaint as though each were set forth herein in full. 20 102. On October 16, 2016, and continue until today, the City of El Cajon 21 because threatening people for arrest for criminal trespass for going to the site of 22 the vigil. 23 103. On October 17, 2016, Police Officers for the City of El Cajon, with 24 the assistance of the Sheriff’s depart of the County of San Diego, began arresting 25 community members who sought to exercise their freedom of expression at the 26 vigil site. 27 104. On October 17, 2016, Police Officers for the City of El Cajon 28 arrested Plaintiffs CARL BOX, LEVANDIS CARTER and JEAN VILSAINT for
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1 trespassing for visiting the vigil site in the parking lot of the Broadway Village 2 Shopping Center 3 105. Defendants and each of them lacked probable cause for arresting 4 Plaintiffs, as such Plaintiffs were not intentionally obstructing or intimidating 5 customers of the Boardway Village Shopping Center. 6 106. The purpose of such threats and arrests are to discourage Plaintiffs 7 and the community from exercising their free speech rights at the vigil site in 8 violation of the First Amendment and California Constitution. 9 107. The DOE Defendant officers present at Plaintiffs’ arrest who did not 10 personally touch Plaintiffs, or order that Plaintiffs be touched, did not in any way 11 attempt to stop their fellow officers from violating Plaintiffs’ constitutional rights, 12 despite the fact that said DOE Defendants knew (or, in the exercise of reasonable 13 14 care, should have known) that arresting and detaining Plaintiffs was 15 unconstitutional and unlawful. 16 108. In committing these acts and omissions, Defendants acted in the 17 course and scope of their employment and under the color of law. 18 109. At no time did Plaintiffs give valid consent to Defendants’ unlawful 19 actions. Plaintiffs did not threaten or resist Defendants, nor did Plaintiffs ever fail 20 to comply with a lawful order issued by Defendants. 21 110. In committing the acts and omissions alleged herein, Defendants 22 acted with malice, oppression and fraud and with the intent to cause harm and/or 23 offense to Plaintiffs. 24 111. Plaintiffs suffered both direct and indirect damages, including, but 25 not limited to, deprivation of their constitutional rights, anger, fear and anxiety. 26 112. Plaintiffs are entitled to compensatory damages, punitive damages, 27 exemplary (punitive) damages, and attorney fees under 42 U.S.C. §1988, and all 28 applicable law, and any other such relief as the Court deems just and appropriate.
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1 2 SIXTH CAUSE OF ACTION 3 Monell Claim – 42 U.S.C. § 1983 4 ALL PLAINTIFFS v. ALL DEFENDANTS 5 113. Plaintiffs re-allege and incorporate by reference all prior paragraphs 6 of this Complaint as though each were set forth herein in full. 7 114. Monell v. Department of Social Services of the City of New York 8 (1978) 436 U.S. 658, holds that a municipal entity may be held liable for 9 violations of Constitutional rights committed by its law enforcement officers if the 10 violation was based on either (1) a widespread practice that, although not 11 authorized by written law or express municipal policy, is so permanent and well 12 settled as to constitute a custom or usage with the force of law, or (2) the decision 13 14 of a person with “final policymaking authority.” 15 115. Defendants violated several of Plaintiffs’ clearly established 16 constitutional rights by improperly declaring an “unlawful assembly.” 17 116. Defendants violated all Plaintiffs clearly established rights 18 constitutional rights by improperly threatening members the community and 19 Plaintiffs with arrest for criminal trespass, both directly and indirectly, if they 20 came onto the property commonly known as the Broadway Village Shopping 21 Center, to visit the vigil site and exercise their freedom of expression. 22 117. The actions of Defendants were part of a wider pattern and practice 23 of illegal conduct toward individuals whom Defendants want to silence. 24 118. This pattern and practice of illegal conduct, which included the 25 excessive use of force by officers and the wrongful arrests of protestors, was 26 approved and encouraged by policy makers such as Sheriff WILLIAM GORE and 27 El Cajon Chief of Police JEFF DAVIS. 28
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1 119. The Sheriff’s Department has a pattern and practice of declaring 2 peaceful assemblies unlawful based on their own convenience. 3 120. There was clearly no imminent threat of violence from the assembly, 4 and the Sheriff’s Department simply decided it no longer wanted to supervise the 5 protesters. 6 121. Despite lacking probably cause and statutory authority, Defendants 7 CITY OF EL CAJON and Chief of Police JEFF DAVIS, implemented an 8 unconstitutional policy of arresting or threatening Plaintiffs and others with arrest 9 for trespassing if they sought to visit the vigil site. 10 122. Plaintiffs are entitled to injunctive relief and damages according to 11 proof. 12 123. Plaintiffs are entitled to compensatory damages, punitive damages, 13 14 attorney fees under 42 U.S.C. § 1988, and all applicable law, and any other such 15 relief as the Court deems just and appropriate. 16
17 PRAYER FOR RELIEF 18 WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 19 (1) For preliminary and permanent injunctive relief against Defendants 20 prohibiting them from declaring free speech activities an unlawful 21 assembly unless there is a clear and ongoing threat of imminent 22 violence or unlawful purpose; 23 (2) For preliminary and permanent injunctive relief against Defendants 24 prohibiting them from arresting plaintiffs and citizens for trespassing 25 at 777 Broadway, El Cajon, CA, unless the person is intentionally 26 27 obstructing or intimidating customers. 28 (3) For general and special compensatory damages (including direct, indirect, and emotional damages), presumed damages, and nominal
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1 damages, in amounts to be determined by the trier of fact, against all 2 Defendants; 3 (4) For past and future medical expenses, if any, in amounts to be 4 determined by the trier of fact, against all Defendants; 5 (5) For punitive damages of $1,000,000 or in an amount sufficient to 6 make an example of Defendants, and each of them, and deter future 7 violations of the Constitution in similar circumstances; 8 (6) For reasonable attorney’s fees and costs and expenses of litigation, 9 pursuant to 42 United States Code §§ 1983-1988, and any other 10 relevant statutory or case law, against all Defendants, and; 11 (7) For any and all other relief, including interest, to which Plaintiffs may 12 be entitled under the law. 13 14 15 DEMAND FOR JURY TRIAL 16 Plaintiffs demand a trial by jury as to each and every cause of action against 17 each and every defendant. 18 19 DATE: 11/21/2016 /S/______20 Todd T. Cardiff, Esq. Bryan W. Pease, Esq. 21 Andrea M. Carter, Esq. 22 Attorneys for Plaintiffs
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1 CERTIFICATE OF SERVICE 2 I, Todd T. Cardiff, certify under penalty of perjury that I am over the age of 3 18 years and not a party to this action. My business address is 1901 First Avenue, 4 Ste. 219, San Diego, CA 92101. On November 21, 2016, I caused the foregoing 5 . FIRST AMENDED COMPLAINT FOR VIOLATIONS OF 6 CIVIL RIGHTS (42 U.S.C. § 1983) 7 to be served on all parties who have appeared in the action, by electronic filing. 8 9 I certify under penalty of perjury that the foregoing is true and correct. 10 Executed on November 21, 2016, in the City of San Diego. 11 12 By: /s/ Todd T. Cardiff 13 Todd T. Cardiff 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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