UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No.

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 Peter L. Carr, IV (SBN #0) pcarr@siascarr.com SIAS CARR LLP 0 Wilshire Blvd., 0th Fl. # Beverly Hills, CA 0 Telephone: (0) 00-0 Facsimile: () 00- Justin A. Palmer (SBN #0) justin@filerpalmer.com FILER PALMER, LLP 0 Wilshire Blvd., 0th Fl. Beverly Hills, CA 0 Telephone: (0) 0- Facsimile: (0) -00 Co-counsel for Plaintiffs, ERNEST FOSTER; RAYMOND FOSTER, individually; ALONZO FOSTER and MONIQUE FOSTER, minors, by and through their guardian ad litem, RAYMOND FOSTER, individually, and as successors in interest to ERNEST FOSTER, JR., deceased. ERNEST FOSTER, JR., by and through his personal representative, ERNEST FOSTER SR.; RAYMOND FOSTER, individually; ALONZO FOSTER and MONIQUE FOSTER, minors, by and through their guardian ad litem, RAYMOND FOSTER, individually, and as successors in interest to ERNEST FOSTER, JR., deceased vs. CITY OF INDIO; INDIO POLICE DEPARTMENT; CHIEF POLICE RICHARD P. TWISS, individually and in his capacity as Indio Police Chief ; OFFICER JEREMY HELLAWELL, individually and in his capacity as an officer of the Indio Police Department ; and DOES through 0 inclusive, Defendants. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Case No. FOR CIVIL RIGHTS VIOLATIONS UNDER COLOR OF STATE LAW:. UNLAWFUL SEIZURE AND EXCESSIVE FORCE ( U.S.C. ). UNLAWFUL SEIZURE AND EXCESSIVE FORCE ( U.S.C ). DEPRIVATION OF SUBSTANTIVE DUE PROCESS RIGHTS ( U.S.C. ). UNCONSTITUTIONAL MUNICIPAL CUSTOMS ( U.S.C. ) DEMAND FOR JURY TRIAL Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 INTRODUCTION. This is a civil rights and survival action arising from Defendant OFFFICER JEREMY HELLAWELL unjustifiably shooting and killing Mr. Ernest Foster Jr., ( FOSTER or decedent ), on about July, in Indio, California, in violation of MR. FOSTER s constitutionally guaranteed right to life. VENUE AND JURISDICTION. Jurisdiction is conferred upon this Court by U.S.C. and, and arises under U.S.C. and. Venue is proper in this Court because the unlawful acts and practices alleged herein occurred in the City of Indio, California, which is within this judicial district pursuant to U.S.C.. PARTIES. At all times in this Complaint, MR. FOSTER was a resident of the State of California, County of Riverside. MR. FOSTER was a thirty-seven year old, African American male who sustained fatal gunshot wounds to his body on July,.. Plaintiff, ERNEST FOSTER, SR., is the personal representative of ERNEST FOSTER, JR, and one of the members of FOSTER s family eligible to advance this suit.. Plaintiffs RAYMOND FOSTER; ALONZO FOSTER and MONIQUE FOSTER are the natural and biological children of MR. FOSTER, and members of FOSTER s family eligible to advance this suit. All plaintiffs sue in their individual capacities as well as in a representative capacity as personal representative and successors in interest to MR. FOSTER.. At all times herein mentioned defendant CITY OF INDIO was a municipal corporation duly organized and existing under the laws of the State of California.. At all relevant times defendant RICHARD P. TWISS was and is the Chief of Police of the Indio Police Department, a department of the City of Indio. Chief TWISS is sued herein in his official capacity on all claims, unless expressly stated otherwise.. At all times herein mentioned, defendant Officer JEREMY HELLAWELL was a police officer and detective employed with the Indio Police Department. Defendant Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 HELLAWELL is sued individually and in his capacity as police officer.. At all times herein mentioned, defendant INDIO POLICE DEPARTMENT ( CIPD ) is an official division of the CITY OF INDIO. The CITY OF INDIO possessed the power and authority to adopt policies and prescribe rules, regulations and practices affecting the operation of the CIPD, its tactics, methods, practices, customs and usages. 0. At all times herein mentioned, defendant TWISS was responsible for and had express and implied authority to make policies for defendant CITY OF INDIO.. At all times herein mentioned, defendant TWISS also had the authority to hire, train, supervise, discipline, and effect the retention determination(s) in regard to defendant CITY OF INDIO s law enforcement officers.. At all relevant times herein, defendant CITY OF INDIO employed Defendants HELLAWELL, TWISS and Does through 0, inclusive.. At all relevant times defendants Does through 0, inclusive were individuals who were employees and/or agents of the City of Indio and/or its Police Department, who were acting under color of the law, statutes, ordinances, policies, practices, customs, and/or usages of the City of Indio, and/or otherwise within the course and scope of their respective duties as employees, and with the complete authority and ratification, of defendant CITY OF INDIO. Said defendants are each in some manner responsible for the injuries and damages complained of herein. The true names of defendants Does through 0, inclusive are presently unknown to PLAINTIFFS, who therefore sue each of these defendants by such fictitious name. Upon ascertaining the true identity of a defendant Doe, PLAINTIFFS will amend this complaint, or seek leave to do so, by inserting the true name in lieu of the fictitious name.. Each defendant promoted, ratified, and approved the wrongful conduct alleged herein of each of the other defendants, and acted in concert with and conspired with each of the other defendants, in doing the wrongful acts complained of herein, as more fully alleged below. Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 FACTS COMMON TO ALL COUNTS. On July,, MR. FOSTER was in the vicinity of the 00 block of Highway, near the Monroe Street intersection, visiting the owner of the Cig Zone cigarette and tobacco shop.. The weather in the area was clear, sunny, and dry.. Plaintiffs are informed and believed, and on that basis allege that defendant HELLAWELL was patrolling the area as a single-man car on July, at approximately :0 p.m. Plaintiffs are further informed and believe, and on that basis allege that defendant HELLAWELL received a call from radio dispatch instructing him to respond to the 00 block of Highway, near the Monroe Street intersection. The alleged dispatch concerned a citizen brandishing a weapon.. Plaintiffs are informed and believed, and on that basis allege that defendant HELLAWELL was the first respondent to the location and confronted MR. FOSTER without backup or assistance from any other CIPD officer.. Plaintiffs are informed and believe, and on that basis allege that defendant HELLAWELL arrived at the location, without backup or assistance from any other CIPD officer and ordered MR. FOSTER to stop without providing any lawful reason or explanation for attempting to detain him. MR. FOSTER, then fearing a wrongful detention and possible unlawful use of force by defendant HELLAWELL, attempted to peacefully leave the vicinity by running in the opposite direction. Eyewitnesses confirm that defendant HELLAWELL did not offer any lawful reason or explanation for attempting to stop or detain MR. FOSTER.. Plaintiffs are informed and believe, and on that basis allege that a foot pursuit began after MR. FOSTER attempted to peacefully leave the vicinity by running. During the foot pursuit, defendant HELLAWELL, unjustifiably and unreasonably, fired an electroshock weapon (e.g. stun gun ) on MR. FOSTER, without backup or assistance from any other CIPD officer; without warning or probable cause that MR. FOSTER had committed a crime and without requesting any information from MR. FOSTER prior to Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 drawing his Taser weapon. Eyewitnesses confirm that MR. FOSTER attempted to peacefully leave the vicinity prior to defendant HELLAWELL firing his weapon.. Defendant HELLAWELL s unjustified and unreasonable attempt to apprehend MR. FOSTER via stun gun was unsuccessful, in that the metal probe dart prongs did not make contact with Mr. FOSTER s skin. MR. FOSTER, then fearing for his safety, continued to run away from defendant HELLAWELL who acted without backup or assistance from CIPD officers and continued to give chase without requesting information from, or provide information to, MR. FOSTER.. Plaintiffs are informed and believe, and on that basis allege that during the foot pursuit, defendant HELLAWELL again, without backup or assistance from any other CIP officer; without warning or probable cause that MR. FOSTER had committed a crime; without requesting any information from MR. FOSTER and without provocation -- unjustifiably and unreasonably drew his standard issue duty weapon.. MR. FOSTER continued to peacefully run for many yards, continuing into the clearly visible and unabated alleyway of the 00 location. At this point, defendant HELLAWELL fired two unlawful and unjustified rounds into MR. FOSTER s back as he continued to run away from him. Defendant HELLAWELL never ordered MR. FOSTER to stop or freeze. In fact, defendant HELLAWELL never issued any verbal commands during the pursuit.. While showing no threat by a deadly weapon, defendant HELLAWELL fired two shots at MR. FOSTER that struck him in his back and body.. Defendant HELLAWELL shot at least two times throughout the incident in violation of MR. FOSTER s constitutionally guaranteed rights to: (i) be free from the use of excessive force; (ii) the right to life; (iii) due process under the law; and (iv) equal protection under the law.. The shots fired by defendant HELLAWELL actually and proximately caused MR. FOSTER s death. Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0. Several eyewitnesses confirm that MR. FOSTER did not pose any threat to defendant HELLAWELL, or any other person in the vicinity.. Prior to his death, MR. FOSTER endured a substantial amount of conscious pain and suffering from the moment he was first shot by defendant HELLAWELL until his body ultimately succumbed to death by at least two gunshot wounds to the back.. MR. FOSTER was treated at the scene of the shooting by emergency personnel from Riverside County/CAL FIRE, who then transported him to John F. Kennedy Hospital in Indio, California. Despite the efforts of hospital personnel to resuscitate Mr. FOSTER, he was pronounced dead of cardiac arrest at approximately :00 p.m. on July,. 0. MR. FOSTER s lifeless body remained on the ground in an undignified manner as blood streamed from his back onto the asphalt while several eyewitnesses from the community watched in despair and disbelief.. Defendant HELLAWELL s supervisor arrived at the scene shortly after MR. FOSTER was shot and killed.. Plaintiffs are informed and believe, and on that basis allege that as of the date of the incident, CIPD had been involved with at least officer-involved shootings since January,. FIRST CLAIM FOR RELIEF UNDER U.S.C. FOR UNLAWFUL SEIZURE AND EXCESSIVE FORCE (By plaintiffs as personal representative and successors in interest against all defendants except defendant City of Indio). Plaintiffs repeat and re-allege and incorporate by reference each and every allegation in paragraphs through, inclusive, of this complaint as if fully set forth herein.. Plaintiffs bring this claim for relief in their capacity as the personal representative and successors in interest of MR. FOSTER, for whom there is no estate opened, under California Code of Civil Procedure.. The foregoing claim for relief Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 arose in MR. FOSTER s favor, and MR. FOSTER would have been the plaintiff with respect to this claim for relief had he survived the fatal wound to his back.. The use of the force against MR. FOSTER was excessive and unreasonable, and deprived MR. FOSTER of his right to be secure in his person against unreasonable seizures guaranteed him by the Fourth Amendment to the US. Constitution, as applied to the states by the Fourteenth Amendment, in violation of Title U.S.C... Plaintiffs are informed and believe, and on that basis allege that Chief TWISS set in motion a series of acts by his subordinates Does -0 that he knew or reasonably should have known would cause said subordinates to deprive the MR. FOSTER of these rights, knew, or reasonably should have known, that said subordinates were engaging in these acts and that their conduct would deprive MR. FOSTER of these rights, failed to act to prevent said subordinates from engaging in such conduct, acquiesced in said constitutional deprivations, due to his action or inaction in the training, supervision, or control of said subordinates, and/or otherwise engaged in conduct that showed a reckless or callous indifference to the rights of MR. FOSTER.. As a direct result thereof the aforesaid acts and omissions of defendants, MR. FOSTER suffered great physical and mental injury, fear and emotional distress, trauma, pain, shock to his nervous system, injury to his health, strength and activity, and ultimately death, and loss of the enjoyment of life and the love, care, society, companionship, support and affection of his family members, in an amount according to proof.. As a further direct result of the acts of defendants, plaintiffs have incurred expenses, including funeral and burial expenses, in an amount according to proof.. The conduct of defendants, and each of them, alleged above was willful, wanton, malicious, and done with reckless disregard for the rights and safety of MR. FOSTER and therefore warrants the imposition of exemplary damages in an amount according to proof sufficient to punish and make an example. Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 SECOND CLAIM OF RELIEF FOR UNDER U.S.C. FOR UNLAWFUL SEIZURE AND EXCESSIVE FORCE (By plaintiffs individually against all defendants except defendant City of Indio) 0. Plaintiffs repeat and re-allege and hereby incorporate by reference each and every allegation contained in paragraphs through of this Complaint as if set forth herein in full.. The use of the aforesaid force against MR. FOSTER was excessive and unreasonable, and deprived MR. FOSTER of his right to be secure in his person against unreasonable seizures guaranteed him by the Fourth Amendment to the US. Constitution, as applied to the states by the Fourteenth Amendment, in violation of Title U.S.C... Plaintiffs are the proper parties with standing pursuant to California Code of Civil Procedure.0 to pursue this wrongful death claim pursuant to Title U.S.C... As a direct result of the acts of defendants alleged above, plaintiffs have been damaged, suffering pecuniary loss and other compensable injuries resulting from loss of love, society, comfort, attention, services, and support of MR. FOSTER, in an amount in accordance with proof.. As a further direct result of the acts of defendants, plaintiffs have incurred expenses, including funeral and burial expenses, in an amount according to proof. Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 THIRD CLAIM OF RELIEF FOR UNDER U.S.C. FOR DEPRIVATION OF THE SUBSTANTIVE DUE PROCESS RIGHTS OF PLAINTIFFS FAMILIAL RELATIONSHIPS WITH MR. FOSTER (By plaintiffs individually against all defendants except defendant City of Indio). Plaintiffs repeat and re-allege and hereby incorporate by reference each and every allegation contained in paragraphs through of this Complaint if set forth herein in full.. Plaintiffs had a cognizable interest under the Due Process Clause of the Fourteenth Amendment of the United States Constitution in being free from state actions that deprive them of life, liberty, or property in such a manner as to shock the conscience, including but not limited to, unwarranted state interference in their to a parental and familial relationship with their father, MR. FOSTER.. The use of force against MR. FOSTER by defendants, acting under color of law, shocks the conscience, was unrelated to any legitimate law enforcement objective, done with the intent to harm MR. FOSTER, and done in reckless disregard of the rights of plaintiffs herein.. The use of said force deprived plaintiffs of their substantive due process rights not to have their familial association infringed upon or interfered with in an unwarranted manner, or to be deprived by the loss of life of their father, thereby depriving them of rights, privileges, and immunities under the US. Constitution, in violation of Title U.S.C... As a direct result of the aforesaid acts of said defendants, plaintiffs have suffered and will suffer great physical and mental injury, trauma, pain, shock to their nervous system, anguish, anxiety, humiliation, fear and emotional distress, and the loss of the love, care, society, companionship, support, and affection of their loved one, all to their damage in an amount according to proof. 0. By reason of the aforesaid acts of defendants, plaintiffs have required or will in the future be required to receive hospital, medical, doctor, and nursing care and Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page 0 of Page ID #:0 0 treatment, and by reason thereof, will incur expenses related thereto in an amount to be proven at trial.. As a further direct result of defendants acts, plaintiffs incurred funeral and burial expenses, in an amount according to proof.. The conduct of defendants alleged above was willful, wanton, malicious, and done with reckless disregard for the rights and safety of MR. FOSTER and plaintiffs and therefore warrants the imposition of exemplary damages in an amount according to proof sufficient to punish and make an example. FOURTH CLAIM OF RELIEF UNDER U.S.C. FOR UNCONSTITUTIONAL MUNICIPAL CUSTOMS, PRACTICES AND POLICIES (Against defendants City of Indio and Richard P. Twiss, in his official capacity). Plaintiffs hereby repeat and re-allege and each and every allegation contained in paragraphs through of this Complaint as if set forth herein in full.. Plaintiffs sue under this claim in both their individual capacities and as survivors in interest of MR. FOSTER.. Chief TWISS is sued under this claim in his official capacity as Chief of Police of the City of Indio (not in his individual capacity).. The unconstitutional actions of the individual defendants and as well as other officers/agents employed by or acting on behalf of defendants, as alleged above, which directly caused MR. FOSTER S death, were the result of the following unconstitutional customs, policies and/or practices of defendants, which were ordered, directed, tolerated, encouraged, approved, allowed, acquiesced in and/or ratified by defendants: a. the use or tolerance of excessive and deadly force against unarmed, fleeing individuals, thereby creating situations which become escalated so that the unreasonably and unnecessarily aggressive tactics that officers/ agents use are more likely to involve substantial physical, excessive and/or deadly force against those very same fleeing individuals; Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx 0

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 b. the deprivation of access to the courts by engaging in a cover-up of violations of constitutional rights, to wit: allowing, tolerating, and/or encouraging officers/agents to file false reports, make false statements, obstruct and/or interfere with investigations of unconstitutional or unlawful conduct, by withholding and/or concealing material information, and evidence, and ignoring and/or failing to adequately investigate and discipline unconstitutional or unlawful activity.. Alternatively, defendants were deliberately indifferent to the rights and safety of individuals by their failure to institute, maintain and enforce appropriate policies regarding proper tactics and practices for dealing with individuals, including the use of deadly force on those individuals.. Defendants further failed to properly train, instruct, monitor, supervise, and discipline the individual defendants herein, and other officers and agents of defendants, in the proper use of deadly force, including that with respect to the handling fleeing suspects.. The need to train and supervise officers and agents in the constitutional limitations in the use of deadly force is so obvious that the defendants failure to do so amounts to deliberate indifference to constitutional rights and/or gross negligence. 0. Defendants had the obligation and duty to control the officers and agents under their command. The actions of defendants as outlined constitutes conscious and callous deliberate indifference to the constitutional rights of MR. FOSTER and the plaintiffs.. These unconstitutional actions and/or omissions by the defendants sued under this claim and of the individual defendants, and other officers/agents, as described above, were ordered, directed, encouraged, approved, tolerated, allowed, acquiesced in, and/or ratified by the highest acting officers/agents of defendant CITY OF INDIO.. The aforementioned policies, practices and customs of defendants, as well as their failure to properly and adequately train, instruct, monitor, supervise, and discipline, were a moving force and direct cause of the deprivations of MR. FOSTER s and Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document Filed 0// Page of Page ID #: 0 plaintiffs clearly established and well-settled constitutional rights, in Violation of U.S.C... As a direct result of defendants actions alleged herein, plaintiffs were damaged as alleged in paragraphs through of this complaint. PRAYER WHEREFORE, Plaintiffs pray judgment against Defendants and each of them, as to all Claims for Relief:. For compensatory, general, special and incidental damages, in amounts according to proof;. For costs of suit necessarily incurred;. For reasonable attorneys fees and expenses of litigation; and. For such other and further relief as this Court deems just and proper. As to the Second and Fourth Claims for Relief:. For punitive and exemplary damages against defendants in an amount sufficient to punish defendants and make an example. Dated: June, Respectfully Submitted SIAS CARR LLP FILER PALMER, LLP By: Justin A. Palmer Peter Carr, IV Attorneys for Plaintiffs ERNEST FOSTER, SR.; RAYMOND FOSTER, individually; ALONZO FOSTER and MONIQUE FOSTER, minors, by and through their guardian ad litem, RAYMOND FOSTER, individually, and as successors in interest to ERNEST FOSTER, JR., deceased Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx

Case :-cv-00 Document - Filed 0// Page of Page ID #: 0 REQUEST FOR JURY TRIAL Plaintiffs request a trial by jury on all claims. Dated: June, Respectfully Submitted, SIAS CARR LLP FILER PALMER, LLP By: Justin A. Palmer Peter Carr, IV Attorneys for Plaintiffs ERNEST FOSTER, SR.; RAYMOND FOSTER, individually; ALONZO FOSTER and MONIQUE FOSTER, minors, by and through their guardian ad litem, RAYMOND FOSTER, individually, and as successors in interest to ERNEST FOSTER, JR., deceased Macintosh HD:Users:justinpalmer:Dropbox:Filer-Palmer:Open Cases:Civil:Ernest Foster, Jr.:Pleadings:Foster Federal Complaint (final).docx