Case 1:16-cv Document 1 Filed 08/30/16 Page 1 of 11 CIVIL ACTION NO. 1:16-CV-1020

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1 Case 1:16-cv Document 1 Filed 08/30/16 Page 1 of 11 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION BREAION KING, Plaintiff v. THE CITY OF AUSTIN, TEXAS, AND OFFICER BRYAN RICHTER, Defendants CIVIL ACTION NO. 1:16-CV-1020 JURY DEMANDED PLAINTIFF S ORIGINAL COMPLAINT TO THE HONORABLE COURT: Plaintiff Breaion King brings this action against Defendant City of Austin (the City ) and Defendant Officer Bryan Richter ( Richter, and collectively with the City, Defendants ), for injuries and damages resulting to Plaintiff, pursuant to 42 U.S.C. 1981, 1983 and 1988, and the Fourth and Fourteenth Amendments to the United States Constitution. Plaintiff complies with the pleading requirements of Fed. R. Civ. P. 8(a)(2) and the requirements of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), that [a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. I. PARTIES 1.1 Plaintiff Breaion King is a citizen of the United States and a resident of Travis County, Texas. 1.2 Defendant City of Austin is a municipal corporation located within the boundaries of the Austin Division of the Western District of Texas. Defendant City of Austin can be served through the City Manager, Marc A. Ott, at 301 West 2nd Street, 3rd Floor, Austin, Texas

2 Case 1:16-cv Document 1 Filed 08/30/16 Page 2 of Defendant Officer Bryan Richter is and was at all times relevant to this cause of action a duly appointed and acting officer of the Austin Police Department. Defendant Officer Bryan Richter can be served at his place of business, Austin Police Department Headquarters, 715 East 8th Street, Austin, Texas II. JURISDICTION AND VENUE 2.1 Plaintiff brings these claims pursuant to 42 U.S.C 1981, 1983, and 1988, and these statutes provide jurisdiction over Plaintiff s constitutional claims for redress, which are conferred on this Court by 28 U.S.C. 1343(a)(3). 2.2 Federal question jurisdiction is conferred on this Court by 28 U.S.C. 1331, because this action arises under the Constitution and laws of the United States. 2.3 This Court has supplemental jurisdiction over all other claims asserted under the laws of the State of Texas, pursuant to 28 U.S.C. 1367(a). 2.4 This Court has personal jurisdiction over Defendant Officer Bryan Richter, as he resides in and works in the Western District of Texas. 2.5 This Court has personal jurisdiction over Defendant City of Austin, as it is a political subdivision of the State of Texas, located within the boundaries of the Austin Division of the United States District Court for the Western District of Texas. 2.6 Venue is proper in the Western District of Texas, Austin Division, as this is the district where the claim arose in accordance with 28 U.S.C. 1391(b). III. DUTY AND LAW APPLICABLE 3.1 Plaintiff Breaion King was subjected to excessive force and racial discrimination in violation of the rights guaranteed to her by the Fourth and Fourteenth Amendments of the United States Constitution and by 42 U.S.C

3 Case 1:16-cv Document 1 Filed 08/30/16 Page 3 of Plaintiff pursues this action pursuant to 42 U.S.C. 1983, which provides in relevant part for redress for every person within the jurisdiction of the United States for the deprivation, under color of state law, of any rights, privileges, or immunities secured by the Constitution and laws o the United States. 3.3 Defendant Richter was acting under color of law and is liable under 42 U.S.C Defendant Richter is liable to Plaintiff because he: 1.] Used excessive force against Plaintiff, in violation of her rights under the Fourth and Fourteenth Amendment. 2.] Discriminated against Plaintiff on the basis of her race, in violation of her rights under the Fourteenth Amendment and 42 U.S.C Defendant City is liable to Plaintiff because it: 1.] Had an inadequate policy for preventing use of force violations by its police officers; 2.] Had an inadequate training program for training its officers in the proper use of force; 3.] Had an inadequate hiring policy in that it failed to screen out potential officers who presented a plainly obvious risk of committing use of force violations; 4.] Had an inadequate disciplinary policy in that it failed to adequately punish, re-train, or sanction officers who committed excessive force violations; 5.] Was deliberately indifferent by the established unwritten custom, practice, or policy of racial targeting and racist motivations in its officers uses of excessive force; 6.] Had an inadequate training program for training its officers with respect to the rights of citizens to be free from racism in law enforcement and excessive force in making arrests; 7.] Had an inadequate hiring policy in that it failed to screen out potential officers who presented a plainly obvious risk of taking law enforcement actions based on the race of the individuals who were the subjects of those actions; and 8.] Had an inadequate disciplinary policy in that it failed to adequately punish officers who violated the rights of citizens to be free from racially-motivated law enforcement actions.

4 Case 1:16-cv Document 1 Filed 08/30/16 Page 4 of These deficient policies, customs, and practices of the City constitute a deliberate indifference its officers deprivation of the constitutional rights to be free from the use of excessive force and to be free from racial discrimination in police actions, and acted as the moving force behind the violation of Plaintiff s constitutional rights in this case and of other persons constitutional rights in similar prior cases. IV. FACTS 4.1 On June 15, 2015 between 12:30 and 1:00 PM, Plaintiff was returning home on I-35 North in Austin, Texas after attending her classes for Master s degree in Education at Texas State University. As she was driving home, traveling slightly over the speed limit, she was passed by a red truck which sped past her. Plaintiff observed Officer Richer in his patrol car flashing his overhead lights on approach in her rearview mirror, but assumed he was pursuing the vehicle which had just sped past her. 4.2 Plaintiff pulled into the Wendy s parking lot located on 2224 E. Riverside Drive, Austin, Texas After pulling into the parking lot, Plaintiff opened the door of her vehicle and began to walk toward the Wendy s when Officer Richter s patrol car pulled into the Wendy s and Officer Richter asked her to return to her vehicle. Plaintiff complied and returned to her vehicle, sitting in the driver s seat. 4.3 After Plaintiff returned to her vehicle, Officer Richter approached the vehicle to speak with Plaintiff. Plaintiff s driver s side door was open and her legs were outside the vehicle. Officer Richter approached her, leaning his left arm on the driver s side door and his right arm on the roof of the vehicle in a relaxed pose.

5 Case 1:16-cv Document 1 Filed 08/30/16 Page 5 of Plaintiff asked Officer Richter whether he could pull her over when she had already parked her car and stepped out, and Officer Richter informed her that she had been speeding and requested her driver s license. 4.5 Plaintiff complied with Officer Richter s request and reached for her driver s license, which was under her seat. Officer Richter asked Plaintiff to place her legs inside the vehicle. Without giving her time to comply, Officer Richter again asked Plaintiff to place her legs inside the vehicle. Plaintiff did not refuse to place her legs inside the vehicle, and was not given any time to comply with Officer Richter s commands. Officer Richter then demanded that Plaintiff step out of the vehicle and immediately grabbed her to pull her out of her car. Less than ten seconds elapsed between Officer Richter s first request for Plaintiff to put her legs in the car and his decision to rip her out of the vehicle forcefully. Less than one minute elapsed between Officer Richter s first words to Plaintiff and his decision to use force. 4.6 As Officer Richter attempted to rip Plaintiff out of her vehicle, he slammed Plaintiff against her steering wheel, causing the horn to honk in short bursts and a long, sustained burst, despite Plaintiff s pleas for Officer Richter to stop touching her and to allow her to get out of the car herself. Officer Richter ignored Plaintiff s pleas and literally tore her out of her vehicle with such force that she was lifted off her feet and slammed against a nearby truck and then he threw her to the paved surface. Officer Richter then positioned himself on top of Plaintiff and placed his elbow into Plaintiff s neck as he began to take her arms to handcuff her. Plaintiff requested that she be allowed to place her hands behind her back without them being forcefully yanked, but Officer Richter continued to yell at her to put her hands behind her back and threatened to use his taser as Plaintiff screamed Oh my god, why are you doing this to me?.

6 Case 1:16-cv Document 1 Filed 08/30/16 Page 6 of Plaintiff was brought back to her feet, and Officer Richter then attempted to take her to the ground again by placing her in a chokehold and repeatedly kicking her legs out from under her. Officer Richter then handcuffed Plaintiff. 4.8 After Plaintiff was handcuffed and compliant on the ground, Officer Richter yanked her upward off the ground by the chain of her handcuffs, and yanked her handcuffed arms extremely high upward despite Plaintiff being restrained and despite having another officer available to assist him. 4.9 Other officers arrived and asked Officer Richter for his account of the interaction. Officer Richter falsely informed them that Plaintiff had attempted to throw a punch at him and that she had verbally said no twice when he asked her to put her legs in the car. Officer Richter then said If she was a guy, man, I would have just hit her and been done with it to the other officers. Officer Richter then asked for her to be charged with resisting arrest, and said If they ask what she s resisting just put arrest. If they ask specifically what she was resisting say arrest. They won t care about that After other officers arrived, Plaintiff requested to be taken to the Travis County Jail by any officer other than Officer Richter, due to her fear and apprehension resulting from his extreme and outrageous conduct during a simple traffic stop. Plaintiff was fully compliant and polite to the other officers. Plaintiff was placed in a police car with Officer Spradlin During the ride with Officer Spradlin, the following conversation between Plaintiff and Officer Spradlin took place on recorded video: Ofc. Spradlin: Plaintiff: Well let me ask you this. Why are so many people afraid of black people? That s what I wanna figure out! Because I m not a bad black person.

7 Case 1:16-cv Document 1 Filed 08/30/16 Page 7 of 11 Ofc. Spradlin: Plaintiff: Ofc. Spradlin: I can give you a really good... a really good idea of why it might be that way. Why? Violent tendencies. And I want you to... I want you to think about that. I m not saying anything... I m not saying it s true. I m not saying I can prove it or nothing. But 99% of the time when you hear about stuff like that, it s the black community that s being violent. That s why a lot of the white people are afraid, and I don t blame them. There are some guys I look at... I, yeah... I know it s my job to deal with them and I know it s probably going to go ugly... But that s the way it goes. But yeah, some of them, because of their appearance or whatnot, some of them are very intimidating Plaintiff was charged with resisting arrest, but those charges were ultimately dismissed in the interest of justice On May 23, 2016, attorney for Plaintiff notified the Chief of Police, Officer Richter, and the City Attorney of this claim. They were informed that [i]f no effort is made by you to resolve this matter within ten days from receipt of this letter, suit will be filed. The City Attorney sent a letter on June 7, 2016, acknowledging receipt of the notice letter from Plaintiff s attorney and indicating that [w]e will review the incident, but neither Plaintiff nor her attorney have received any response from the City since then On July 25, 2016, Plaintiff, through a letter from her counsel, reached out to Mayor Steve Adler in an attempt to open a dialogue regarding not only her claim, but also seeking to discuss ways to repair the relationship between the police department and the citizens they serve, through policy changes or other means. At the time of the filing of this Complaint, neither Plaintiff nor her attorneys have received a response from Mayor Adler or any representative of the City.

8 Case 1:16-cv Document 1 Filed 08/30/16 Page 8 of Plaintiff suffered and suffers from physical injuries, extreme psychological injuries, mental anguish, and the unique indignity of being subjected to racial discrimination by law enforcement officers as a result of the use of force by Officer Richter and the City s inadequate policies, practices and customs without any reasonable justification. V CLAIMS 5.1 The acts and omissions of Defendants on the occasion in question were unreasonable, unconscionable, deliberately indifferent, and were the proximate and producing cause of the injuries, aggravation of injuries, damages, and aggravation of damages sustained by Plaintiff. Defendants are liable to Plaintiff under 42 U.S.C for violating Plaintiff s constitutional rights under the Fourth and Fourteenth Amendments and her federal rights under Officer Richter s excessive, inappropriate, and improper use of force by ripping Plaintiff out of her vehicle, throwing her against another vehicle and to the ground, pushing Plaintiff s head into the ground by using his elbow on her neck, placing her in a chokehold and kicking her legs, lifting her off the ground by her handcuff chain, and jerking the handcuffs forcefully upward was a proximate cause of Plaintiff s injuries and damages. Officer Richter s excessive use of force caused Plaintiff to suffer physical and psychological injuries as well as the pain and suffering resulting from those injuries. Plaintiff s injuries resulted directly from the use of force, and the excessiveness of that use of force was unreasonable. 5.3 The City is liable to Plaintiff under 42 U.S.C because its inadequate policies, inadequate training, inadequate hiring practices, and its established customs and/or practices constituted a deliberate indifference to the deprivation of constitutional rights in this case and in similar prior cases and acted as the moving force for Officer Richter s use of excessive force against Plaintiff. These inadequate policies, customs, and/or practices include:

9 Case 1:16-cv Document 1 Filed 08/30/16 Page 9 of 11 1.] An inadequate policy for preventing use of force violations by its police officers; 2.] An inadequate training program for training its officers in the proper use of force; 3.] An inadequate hiring policy in that it failed to screen out potential officers who presented a plainly obvious risk of committing use of force violations; 4.] An inadequate disciplinary policy in that it failed to adequately punish officers who committed excessive force violations; 5.] A deliberately indifference to the established unwritten custom, practice, or policy of racial targeting and racist motivations in its officers uses of excessive force; 6.] An inadequate training program for training its officers with respect to the rights of citizens to be free from racism in law enforcement; 7.] An inadequate hiring policy in that it failed to screen out potential officers who presented a plainly obvious risk of taking law enforcement actions based on the race of the individuals who were the subjects of those actions; and 8.] An inadequate disciplinary policy in that it failed to adequately punish officers who violated the rights of citizens to be free from racially-motivated law enforcement actions. 5.4 Chief of Police Art Acevedo is the official policymaker for the Austin Police Department with regard to all policies relevant to the deprivation of Plaintiff s constitutional and federal rights. 5.5 The acts and omissions of the City were a proximate cause of Plaintiff s injuries and damages. VI. DAMAGES 6.1 Defendants acts and omissions, as set out above, were proximate causes of Plaintiff s injuries and damages. These damages are far in excess of the minimum jurisdictional amount for this Court and are most probably in excess of a million dollars. Medical care and treatment, past and future, as well as the other elements of damages provided by the law such as mental anguish,

10 Case 1:16-cv Document 1 Filed 08/30/16 Page 10 of 11 loss of enjoyment of life and the other elements of damages recognized by our law are recoverable by Plaintiff. VII. EXEMPLARY DAMAGES 7.1 The conduct of Officer Bryan Richter justifies an award of punitive and exemplary damages against Officer Richter individually due to his extreme, outrageous, and unjustifiable conduct. Officer Richter s acted with malice and acted intentionally, recklessly, or callously indifferently to the deprivation of Plaintiff s constitutionally protected rights. VIII. ATTORNEY S FEES 8.1 Plaintiff has had to retain the services of attorney to represent her in this complex and proceeding and cause of action. Plaintiff has retained the undersigned attorneys to represent her, and pursuant to 42 U.S.C. 1988(b) of the Federal Civil Rights Act, she is entitled to recover their reasonable and necessary fees, as well as the reasonable and necessary expenses in pursuit of this claim at the trial level, the Court of Appeals level if this case is appealed to that court, and in the Supreme Court of the United States, if necessary. IX. PRESERVATION OF EVIDENCE 9.1 Plaintiff requests and demand that all Defendants in this case retain, preserve, and protect from loss, damage, discard, or destruction all physical, written or electronic items that are, or may be, evidence of the incident above described, which may form the basis of this Complaint including, but not limited to video, recorded statements, photographs, s, text messages, and personal or official notes made by any of the Officers or the City. X. JURY DEMAND 10.1 Plaintiff respectfully demands a trial by jury.

11 Case 1:16-cv Document 1 Filed 08/30/16 Page 11 of 11 PRAYER Plaintiff asks for judgment against Defendants and prays for: (a) trial by jury on all issues triable to a jury; (b) judgment against Defendants, jointly and severally, on behalf of the Plaintiff for actual damages pursuant to 42 U.S.C. 1983; (c) statutory and reasonable attorney fees pursuant of 42 U.S.C. 1988(b) of Federal Civil Rights Act, pre-judgment interest, post-judgment interest, and all of their costs herein expended; (d) judgment against Defendants in favor of the Plaintiff for actual damages; (e) judgment against Officer Richter in favor of Plaintiff for exemplary damages; and (f) any such other and further relief to which the Plaintiff may show herself to be justly entitled. Filed this 30 th day of August, Respectfully submitted, By: Broadus A. Spivey Broadus A. Spivey Erica L. Grigg LAW OFFICES OF BROADUS A. SPIVEY 3303 Northland Drive, Suite 205 Austin, TX o: f: bas@spivey-law.com erica@spivey-law.com Spivey SBOT # Grigg SBOT # ATTORNEYS FOR PLAINTIFF