Case 1:11-cv-02394-WJM-CBS Document 62 Filed 07/16/12 USDC Colorado Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 11-cv-02394-WJM-CBS (Consolidated with Civil Action Nos. 11-cv-2395, 11-cv-2396, 11-cv-2397) ANA ALICIA ORTEGA, KELLY BOREN, KRISTAL CARRILLO, and SHARELLE C. THOMAS, Plaintiffs, v. THE CITY AND COUNTY OF DENVER, a municipality; OFFICER RICKY NIXON, in his individual and official capacity; OFFICER KEVIN DEVINE, in his individual and official capacity; OFFICER JOHN DOE ONE, Denver Police Department Internal Affairs Bureau Officer, in his/her individual and official capacity, and OFFICER JOHN DOE TWO, Denver Police Department Internal Affairs Bureau Officer, in his/her individual and official capacity, Defendants.

PLAINTIFFS RESPONSE TO DEFENDANT CITY AND COUNTY OF DENVERS MOTION FOR SUMMARY JUDGMENT Plaintiffs Ana Alicia Ortega 1, Kelly Boren, Kristal Carrillo, and Sharelle C. Thomas, by and through their attorneys, Siddhartha H. Rathod and Qusair Mohamedbhai of RATHOD MOHAMEDBHAI, LLC, pursuant to Fed.R.Civ.P. 56, D.C.Colo.LCivR 56.1, and this Courts Civil Practice Standards, hereby respond to Defendant City and County of Denvers (Denvers) Motion for Summary Judgment [Doc. 59] as follows: I. INTRODUCTION

This high profile litigation (referred to by the litigants and media as the Denver Diner incident) has a convergence of facts and circumstances that will allow the jury to
1

Ana Ortega was formerly known as Ana Perez. Ortega and Perez are used interchangeably in the record.

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thoroughly evaluate the root causes of why there is a long standing and systemic failure by the Denver Police Department (DPD) to discipline and otherwise police its own. As stated by Denvers former Independent Monitor (IM) Richard Rosenthal: I do not believe that the department has established an ability to adequately discipline officers, based, in part, on everything from the quality of the investigations to the quality of findings made by command staff to rules imposed by the Civil Service Commission on the departmentsIn the entire period of my service, in the three months since, that the department has not established itself to be able to adequately discipline or terminate officers who should not be police officers. Ex. 1, Rosenthal Dep., 49:12-17; 50:4-8. For nearly a decade, the customs and practices of Denver have made it virtually impossible to effectively discipline violent and dishonest officers. The actions and inactions of Denver have fostered and propagated a subculture of officers who are bullies and liars like Defendants Ricky Nixon and Kevin Devine. See Plaintiffs Statement of Additional Disputed Facts (SADF) 1. The facts of this case, supported by expert opinion, will demonstrate the numerous deficiencies and failures within the DPDs Internal Affairs Bureau (IAB) and Denvers Civil Service Commission (CSC). Many similarly situated members of the community whose constitutional rights have been violated by DPD officers will testify as to IABs whitewashing of their complaints in favor of law enforcement. Finally, Denvers grossly deficient governmental customs and practices directly impacted the decision making of Nixon and Devine during the Denver Diner incident. There is compelling evidence that Nixon and Devine violated Plaintiffs constitutional rights and should never be afforded the privilege of serving the citizens of Colorado as law enforcement officers. Yet nearly three years to the day of the Denver Diner incident, both officers remain gainfully employed with the DPD, with fully restored back pay and benefits from their brief periods of termination.

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This lawsuit is not a detracting pronouncement against every Denver police officer. The majority of DPD officers are of high esteem, character and integrity even heroes. Many DPD officers do not require the deterrent of an effective disciplinary system to stop them from brutalizing the community. Why Constitution respecting officers engage in a code of silence and permit a system that allows Nixon and Devine to sully their reputations while proliferating the cycle of violence that much too often plagues our community is unknown. In another high profile matter involving police brutality and dishonesty, in January 2009, six-months prior to the Denver Diner incident, Nixon and Officer Randy Murr almost killed Alexander Landau through extraordinary violence, which included striking a restrained and semi-conscious Mr. Landau repeatedly in the face with fists and a flashlight. Despite immediately noticeable and glaring inconsistencies in the officers versions of the events and clear indications that Nixons accounts were fabricated, the DPD rejected Mr. Landaus IAB complaint for investigation. Had Denvers customs, policies, and practices been effective, Nixon would have been immediately stripped of all patrol duties after the Landau incident, thereby avoiding the Denver Diner incident. United States Magistrate Judge Craig Shaffer, after conducting lengthy discovery dispute hearings on March 5, 2012 [Doc. 42], April 10, 2012 [Doc. 45] and May 30, 2012 [Doc. 58] advised the parties ...my honest assessment is, is that I wouldn't tell anybody to file a dispositive motion because I don't see any way this case is going away on summary judgment. I think you are just going to have to accept the reality you're going to try this case. I wouldn't waste any time. 2 Ex. 2, May 30, 2012 Hearing Transcript, 47:24-48:4.

In contrast, United States Magistrate Judge Shaffer recommended to this Court the complete dismissal of a civil rights lawsuit against Denver and a member of its law enforcement. See Marotta v. Cooper, 10-cv01687-WJM-CBS, 2011 U.S. Dist. LEXIS 79130 (D. Colo. July 13, 2011).

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II. 1. 2. 3.

RESPONSE TO MOVANTS MATERIAL FACTS

Denvers SMF 1: Admit. Denvers SMF 2: Admit. Denvers SMF 3: Deny. Former Denver Chief of Police Gerald Whitman

had no recollection of considering the removal of Nixon from the street during the pendency of the Landau investigation. Ex. 3, Whitman Dep., 137:18-23, 138:8-17. The Landau matter was reviewed at intake by the Commander of IAB and the IM who declined the case, so the Chief of Police would not have heard about it. Id. at 143:14-22. Chief Whitman did not know of the existence of the original Landau IAB complaint because IAB intake decisions are performed within the chain of command and without the Chief of Polices day-to-day involvement. Id. at 144:24-145:19. Plaintiffs expert concerning Denvers liability found that Nixon should have been immediately removed from his patrol duties after the Landau incident. Ex. 4, Montgomery Dep., 213:10-214:12; Ex. 5, Montgomery Expert Report, pp. 28-32. 4. 5. 6. Denvers SMF 4: Admit. Denvers SMF 5: Admit. Denvers SMF 6: Admit. HALO video of the Denver Diner incident

attached as Exhibit 6 (submitted conventionally). 7. Denvers SMF 7: Admit 3 that the HALO video does not have sound, but

deny remainder. Ortega complied with Nixons request that she leave the area. Ex. 7, Ortega Dep., 188:2-24. When Ortega returned to the area, she was at all times protesting Devines use of excessive force and police brutality. Id. at 297:7-299:3.

The issue of Ortegas, Carrillos and Borens deferred judgment plea to one Denver Municipal Ordinance violation each is covered extensively in Plaintiffs Response to Nixons and Devines Motion for Partial Summary Judgment.

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8.

Denvers SMF 8. Admit the HALO video does not show Nixons arrest of

Boren, but deny remainder. After the Denver Diner incident was over, Boren approached Nixon to tell him what he had done was wrong. Ex. 8, Boren Dep., 256:7-257:1. Nixon was rude and cursing at Boren, stating, If you dont shut the f[uck] up, Ill arrest you. Ex. 9, Macias Dep., 78:13-79:7. Prior to her deferred judgment plea, Borens criminal defense attorney was not provided any information from Denver regarding the existence of the HALO video which captured the events of the Denver Diner incident, discovery regarding the multiple exculpatory interviews conducted by Denver, or any information that Nixon was under investigation due to the Landau matter. Ex. 10, Dave Aff., 6; Ex. 8, Boren Dep., 251:3-253:5. 9. Denvers SMF 9. Deny. Borens criminal defense attorney reviewed the

discovery in Ms. Borens case. The only discovery provided by the Denver City Attorneys Office was a one page ticket. Ex. 10, Dave Aff., 6. 10. Denvers SMF 10. Deny. IAB is part of the DPD and as an IAB

investigator Sergeant Clark is a member of the DPD. Ex. 11, Clark Dep., 49:10-15. Sergeant Clark was in possession of the HALO video three days after the Denver Diner incident and prior to her interviews of Ortega and Carrillo. Id. at 41:8-14, 52:5-16. Pursuant to her training as an IAB officer, Sergeant Clark was not required to inform Carrillo or Ortega of the existence of exculpatory evidence. Id. at 52:17-53:14. Sergeant Clark was aware that Ortega was planning on accepting a plea to a criminal charge without seeing the HALO video and did nothing to inform her of the exculpatory evidence in her possession. Id. at 49:16-19. 11. 12. Denvers SMF 11. Admit. Denvers SMF 12. Admit.

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13. 14.

Denvers SMF 13. Admit. Denvers SMF 14. Admit that DPD chain of command makes

recommendations, but deny remainder. Manager of Safety decision making is subject to CSC review. See Resp. to Denvers SMF 18. IAB may independently decline to investigate a case, thereby eliminating any further review. SADF 29. 15. 16. 17. 18. Denvers SMF 15. Admit. Denvers SMF 16. Admit. Denvers SMF 17. Admit. Denvers SMF 18. Admit that CSC reviews the Manager of Safetys

decision, but deny remainder. The CSC conducts a de novo hearing when reviewing DPD officer discipline and evaluates the Manager of Safetys recommendation in part, based on the Manager of Safetys years of experience and knowledge. Ex. 12, CSC Decision Regarding Nixon and Devine, p. 9. See also SADF 41. 19. 20. Denvers SMF 19. Admit. Denvers SMF 20. Deny. Denver has not disclosed or provided the

underlying data in order to determine its accuracy. Since 2009, only one termination of a Denver Police Officer has been sustained by the CSC. Ex. 13, Denver (30)(b)(6) Dep., 163:7-10. Denver Safety Manager Garcias (Manager Garcias) decisions to terminate DPD officers have been overturned by the CSC on a regular basis. Ex. 1, Rosenthal Dep., 49:6-11. From 2007 to present the CSC has reduced the Manager of Safetys recommended discipline 78% of the time for officers who engaged in excessive force, departed from the truth or acted deceptively. Ex. 14, CSC Disciplinary Reduction Cases. From 2007 to present the CSC has overturned the Manager of Safetys dismissal of

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officers who engaged in excessive force or departed from the truth 75% of the time. Ex. 15, CSC Dismissal Overturned Cases. 21. Denvers SMF 21. Deny. Civil Service hearing decisions have had a

horrible negative impact on the ability of the Denver Police Department or the Manager of Safety to police the Denver Police Department. Ex. 1, Rosenthal Dep., 62:11-63:15. I do not believe that the department has established an ability to adequately discipline officers, based, in part, on everything from the quality of the investigation to the quality of findings made by command staff to rules imposed by the Civil Service Commission on the departments. Id. at 49:12-17. The Mathew Graves decision by the CSC in 1996 guided disciplinary decision making for ten to twelve years later and created an atmosphere and culture where the discipline was less than effective because when I read some of these cases, some of these people should have been terminated, but sitting out there was this case that says you can't terminate them. Ex. 16, LaCabe Dep., 45:20-46:25. The Graves decision created a pattern of failing to terminate DPD officers. Id. The DPDs disciplinary process does not lend itself to terminating bad police officers because of the CSC. Ex. 17, Garcia Dep., 28:17-29:17. It is a known fact and has been known for a very long time that if you fire a police officer, the chances are very, very, very good that they will be reinstated by the Civil Service Commission. Id. at 28:23-29:2. Until you fix what's going on with the CSC, you're going to always have bad police officers that should not be on the force. Id. at 29:6-9. The CSC undoes discipline of DPD officers. Id. at 63:19-64:2. The CSC has a tolerance for officers who engage in dishonesty. Id. at 71:5-73:15. Based on Manager Garcias extensive communications with DPD officers, the conduct of the CSC left the impression that there were no consequences for officer misconduct. Id. at 46:23-47:10.

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Monitoring of the CSC would have been ineffective because the rules needed to be definitively changed. Ex. 1, Rosenthal Dep., 143:15-20. 22. Denvers SMF 22. Admit that DPD provides training, but deny that the

training is proper. See Resp. to Denvers SMF 24-25. 23. Denvers SMF 23. Admit that DPD provides training, but deny that the

training is proper. Devine stated search and seizure law falls under the Second or Fifth Amendment and he could not name any case law on search and seizure or excessive force. Ex. 18, Devine Dep., 33:25-34:16. 24. Denvers SMF 24. Deny. Devine and his supervisors stated that Devines

use of the baton as observed on the Denver Diner HALO video was appropriate and pursuant to his DPD trainings. Ex. 18, Devine Dep., 20:5-12, 21:20-22:9, 22:10-12, 25:1118, 35:21-25, 36:6-13, 144:9-145:12, 147:24-148:3; Ex. 19, Dilley Dep., 11:22-24, 50:1-9, 52:14-18. Devine has seen other officers use batons in a similar manner that he used his baton in the Denver Diner incident. Devine Dep., 109:22-110:3. 25. Denvers SMF 25. Deny. Nixon, his supervisors, and the Disciplinary

Review Board (DRB) found that Nixons conduct as observed on the Denver Diner HALO video was appropriate and consistent with his DPD training and continuing training. Ex. 20, Nixon Dep., 33:11-17, 289:21-290:3. Commander Dilley described the terminations of Nixon and Devine as a travesty of the highest level. Ex. 19, Dilley Dep., 31:21-32:4. Denver did not evaluate Nixons shoving of Ortega into Thomas. Ex. 20, Nixon Dep., 282:2-24. 26. 27. Denvers SMF 26. Deny. See Resp. to Denvers SMF 25. Denvers SMF 27. Deny. See Resp. to Denvers SMF 25. Division Chief

Quinones did not sustain inappropriate use of force against Nixon for the manner in which

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he picked Ortega off the ground by her handcuffs. Ex. 21, Quinones Dep., 140:1-13. The CSC found no inappropriate use of force against Nixon for the manner in which he picked Ortega off the ground by her handcuffs. Ex. 12, CSC Decision Regarding Nixon and Devine, p. 17. Denver did not evaluate Nixons lifting of Ortega by the handcuffs. Ex. 20, Nixon Dep., 282:2-24. 28. 29. Denvers SMF 28. Admit. Denvers SMF 29. Deny. IAB intake department inappropriately turns

complainants away, does not document these complaints, and merely states to the complainant that there had been no policy violation. Ex. 1, Rosenthal Dep., 101:7-102:10. Mr. Landaus IAB complaint was inappropriately declined by IAB due to disbelief in his complaint, accusing him of playing the race card, and failing to investigate the matter. Ex. 22, Landau Aff., 4-9. Based on the glaring and immediately noticeable discrepancies of the officers reports in the Landau matter and his grave injuries, Nixon and the other officers involved should have been immediately removed from their patrol duties. Ex. 5, Montgomery Expert Report, p. 32. Mr. Landau was repeatedly struck in the face by Nixons fists and other extraordinary uses of force were used against him by Officers Murr and Middleton. Ex. 20, Nixon Dep., 44:8-13, 51:13-15, 295:12-15; Ex. 23, Landau Dep., 63:4-64:15, 71:11-72:10, 73:3-6. Mr. Landau hoped he would not be shot and eventually went unconscious, waking up to officers laughing at him. Ex. 23, Landau Dep., 89:13-25. There was conflicting and opposing testimony by Nixon and other officers as to whether Landaus bloody hand print was ever on Middletons firearm. Ex. 20, Nixon Dep., 293:9-19, 293:20-22, 294:4-8; Ex. 24, Middleton Dep., 108:9-13, 108:17-23,

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109:1-9, 110:12-15. Soon after the Landau incident, Officer Murr violently attacked and beat Michael DeHerrera. Ex. 22, Landau Aff., 11. 30. Denvers SMF 30. Admit that the Landau matter was reopened, but deny

remainder. IAB investigation was reopened only after Mr. Landau filed his federal lawsuit against the City and County of Denver. Ex. 22, Landau Aff., 12. 31. 32. 33. Denvers SMF 31. Admit. Denvers SMF 32. Admit. Denvers SMF 33. Admit the disciplinary process is slow, but deny

remainder. The length of time a disciplinary case took to reach the Manager of Safetys desk was insanity and not understandable. Ex. 17, Garcia Dep., 33:11-15. Having a slow disciplinary process is ineffective when disciplining law enforcement because discipline should be immediate to be effective and officers would use the passage of time as an excuse that they did not remember the events. See Id. at 33:22-35:5. During his entire tenure, the IM was critical of the length of time it took, from complaint to final disposition, to discipline officers. Ex. 1, Rosenthal Dep., 113:24-114:4. There were numerous reasons why Denvers disciplinary process was slow, including problems with work ethic of IAB investigators, IAB command staff not pushing as hard as they could, and untimely Chief of Police hearings. Id. at 115:12-119:11. Every part of it was untimely. Id. at 118:24. Denvers untimely disciplinary process ratifies inappropriate conduct and creates a venue for continued misconduct by officers within the DPD. Ex. 5, Montgomery Expert Report, pp. 28-32. The IM was embarrassed by the length of the Denver Diner incidents internal investigation and he apologized to Plaintiffs on behalf of Denver because the DPD did not. Ex. 1, Rosenthal Dep., 221:15-22. The Landau investigation has been pending for three and half years without resolution. Ex. 22, Landau Aff., 11.

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34. 35. 36. 37. 38.

Denvers SMF 34. Admit in part. See Resp. to Denvers SMF 33. Denvers SMF 35. Admit in part. See Resp. to Denvers SMF 33. Denvers SMF 36. Admit in part. See Resp. to Denvers SMF 33. Denvers SMF 37. Admit in part. See Resp. to Denvers SMF 33. Denvers SMF 38. Deny. Under Commander Burbach, IAB increased its

resistance to the recommendations of the IM. Ex. 1, Rosenthal Dep., 35:12-36:13. Commander Burbach headed IAB from April 2008 through April 2012. Ex. 13, Denver 30(b)(6) Dep., 172:7-9. Under Commander Burbach resistance to oversight increased. Ex. 1, Rosenthal Dep., 36:11-35. As such IAB would ask more biased and leading questions, because they knew that the IM could not stop them. Id. IAB investigators needed more investigative and interrogation training and the quality of the investigations decreased over time. Id. at 183:25-184:9; Ex. 17, Garcia Dep., 101:12-17, 103:20-104:7; Ex. 11, Clark Dep., 19:18-20:6, 20:10-14; Ex. 5, Montgomery Expert Report, pp. 25, 27. After reviewing Sergeant Clarks letter and the complete investigation, Division Chief Quinones determined it was unreliable and requested additional information to make his disciplinary decision. Ex. 21, Quinones Dep., 39:1-7, 45:23-47:4. It took one year and nine months for Plaintiffs IAB complaint to proceed to the Chiefs hearing. Ex. 3, Whitman Dep., 16:25-17:18. There was no discipline of IAB officers for their biased and poor investigations. Ex. 1, Rosenthal Dep., 186:21-24. 39. 40. Denvers SMF 39. Deny. See Resp. to Denvers SMF 38. Denvers SMF 40. Admit that CSCs conduct provided challenges to

effective discipline, but deny remainder. See Resp. to Denvers SMF 21, 29, 33, 38, 45. 41. Denvers SMF 41. Admit.

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42.

Denvers SMF 42. Admit that Denver created a disciplinary matrix, but

deny remainder. Denver has failed to create a system that ensures appropriate and consistent discipline. See Resp. to Denvers SMF 21; see also SADF 5, 14, 15, 23, 24. For example Nixon and Devine were reinstated to the DPD in this case; Officer Sparks and Murr remain part of the DPD after the Michael DeHerrera case; neither Officer Murr nor Nixon have been disciplined as part of the Landau case; etc. Ex. 22, Landau Aff., 11. 43. 44. Denvers SMF 43. Admit in part. See Resp. to Denvers SMF 42. Denvers SMF 44. Admit that there was a decrease in the quality of IAB

investigations, but deny remainder. The Office of the Independent Monitor (OIM) and the Citizen Oversight Board (COB) have noted that there was a decrease in the quality of formal IAB investigations at the DPD between July 2005 and March 2012. See Resp. to Denvers SMF 38; Ex. 1, Rosenthal Dep., 49:12-17; 50:4-8. 45. Denvers SMF 45. Admit that Denver has a code of silence and that

similar problems may exist outside the DPD, but deny remainder. Denvers written use of force policy resulted in DPD officers underreporting use of force incidents. Ex. 1, Rosenthal Dep., 355:10-15, 78:6-16; Ex. 11, Clark Dep., 112:12-24. Many other officers witnessed Nixons excessive uses of force against Plaintiffs, yet none reported Nixons conduct until their IAB interviews. Ex. 21, Quinones Dep., 135:14-136:12; Ex. 11, Clark Dep., 110:24-111:15; Ex. 17, Garcia Dep., 108:9-23. There was no investigation into the half dozen witnessing officers failure to report Nixons use of excessive force. Ex. 17, Garcia Dep., 108:16-109:8. When reviewing excessive force cases, Manager Garcia observed a pattern of officers failing to report fellow officers uses of force. Ex. 17, Garcia Dep., 38:9-14. One of the factors that allow a subculture of excessive force and

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dishonesty to flourish is the failure to discipline officers who do not report other officers use of improper force. Ex. 5, Montgomery Expert Report, p. 34. 46. 47. 48. Denvers SMF 46. Admit. Denvers SMF 47. Admit. Denvers SMF 48. Deny. Plaintiffs challenge the quality and

frequency of DPD officers reporting of use of force. See Resp. to Denvers SMF 45; see also SADF 29, 33-38, 40. 49. Denvers SMF 49. Admit. III. 1. STATEMENT OF ADDITIONAL DISPUTED FACTS (SADF)

The video of this incident alone shows that Petitioners are bullies and liars

who will not hesitate to punch a restrained female in the face (a violation affirmed by the Hearing Officer Panel); shove innocent female bystanders to the ground; indiscriminately push through a group of bystanders with a baton, mouth too occupied with a large cigar to give verbal orders; directly apply pepper spray to the face of a restrained female; pepper spray a group of retreating bystanders, unjustifiably place an injured and innocent bystander under arrest, and forcibly shove handcuffed females to the ground, yet report only a fraction of those actions. Ex. 25, February 13, 2012 - Denver CSC Filing, 9. 2. Former IM Rosenthal took office in July 2005, due to significant concerns of

uses of deadly force by DPD officers, the need for robust civilian oversight, and lack of public confidence in the DPD. Ex. 1, Rosenthal Dep., 10:20-12:2. One of the duties of the IM was to be the eyes and ears of the manager. Id. at 29:24-30:4. 3. The OIM was integral to ensuring DPD officers were held accountable,

identifying policy issues, improving policies, and the implementation of policies. Ex. 1, Rosenthal Dep., 30:5-10. IM Rosenthal would have constant and daily discussions with

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Denver officials, including the Chief of Police and the Manager of Safety, regarding his recommendations and suggestions. Id. at 72:2-22. IM Rosenthal would give Denver officials the opportunity to review his reports prior to their release to get the officials concerns or objections. Id. at 72:23-73:20. 4. IM Rosenthal resigned from his position in December 2011, in part due to

lack of support from the current administration, conflicts with the police unions, push back regarding disciplinary reforms, and Denvers desire to weaken the Monitors office through review of establishing ordinances. Ex. 1, Rosenthal Dep., 19:17-21:23. 5. Denver has failed to establish[ ] an ability to adequately discipline officers,

based, in part, on everything from the quality of the investigation to the quality of findings made by command staff to rules imposed by the Civil Service Commission on the department. Ex. 1, Rosenthal Dep., 49:12-17, 50:4-8. From the time IM Rosenthal took office to the present, Denver has not established itself to be able to adequately discipline or terminate officers who should not be police officers. Id. 6. The OIM was extensively involved in monitoring the Denver Diner Cases.

Ex. 1, Rosenthal Dep., 133:3-134:1. The Denver Diner case was amongst the most highly monitored by OIM because of the extensive uses of force and conflicting officer reports. Id. at 134:2-7. 7. The Civil Service Commission has [ ] basically ignored . . . the manager of

safety, instead giv[ing] deference to recommendations made by the police officers, thereby taking away a huge component of civilian oversight of law enforcement in Denver, which is supposed to be through the Manager of Safety. Ex. 1, Rosenthal Dep., 63:23-64:4. 8. Civil Service hearing decisions have had a horrible negative impact on the

ability of the Denver Police Department or the manager of safety to police the Denver

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Police Department. Ex. 1, Rosenthal Dep., 62:19-63:15. The CSC decisions have allowed officers to escape termination if lies are determined to be immaterial. Id. at 63:215. 9. The CSC, when reviewing the Denver Diner incident, disregarded the

Manager of Safetys recommendation and law enforcements recommendation concerning the discipline of Nixon and Devine. Ex. 17, Garcia Dep., 62:18-63:16. 10. Nixon and Devine were reinstated, receiving full pay and benefits. See Ex.

20, Nixon Dep., 300:11-21; see also Ex. 18, Devine Dep., 231:3-232:7, 240:6-22. Nixon and Devine anticipate receiving approximately one full years back pay and have no intention to repay their unemployment benefits. Ex. 18, Devine Dep., 234:24-235:5; Ex. 20, Nixon Dep., 24:5-25:10. 11. IM Rosenthal was working internally to correct IABs use of leading and

suggestive questions, poor documentation of files, reluctance to investigate and bring allegations of force and lying, reflexive defense of officer's conduct, and assumptions that an officer's credibility was superior to that of citizen witnesses. Ex. 1, Rosenthal Dep., 273:25-274:24. Over time, particularly after the implementation of the matrix, IABs improper conduct continued to worsen. Id. at 276:20-25. Only limited training was provided to IAB officers to correct these problems, and this additional training that was provided did not, at least during [IM Rosenthals] tenure, have an impact, a positive impact on investigations. . . . Id. at 184:20-185:5. IM Rosenthal did not publically report on these issues because he had hoped to resolve these matters internally without having to use the public reporting bully pulpit. Id. at 277:1-17.

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12.

Even the understanding of what constitutes excessive force and how to

document uses of excessive force are misunderstood and misapplied throughout the DPD. Ex. 17, Garcia Dep., 59:7-60:23, 60:25-61:22. 13. Lying on the part of DPD officers (euphemistically called deceptive

practices or departing from the truth) during IAB investigations does not generally result in any discipline against the officers despite the fact that this practice severely negatively impacts the ability of IAB to conduct a proper investigation. Ex. 1, Rosenthal Dep., 39:740:10, 54:4-55:5, 63:16-64:4, 79:10-23, 86:3-12, 87:12-20; Ex. 17, Garcia Dep., 71:1373:24. There has been a tradition in Denver of Internal Affairs not identifying when officers lied . . . . Ex. 26, July 12-18, 2012, Westword, Back on the Beat, p. 16 (quoting IM Rosenthal). 14. The culture of IAB is very resistant to oversight and to holding officers

accountable for illegal actions or actions which violate policy. Ex. 1, Rosenthal Dep., 36:120, 38:21-25, 45:5-47:7, 99:11-25, 173:3-174:6, 182:8-6, 182:25-183:5, 184:20-185:5. Recent proposed changes to the OIM seek to further block oversight of IAB. Ex. 26, July 12-18, 2012, Westword, Back on the Beat, p. 7 (IM Rosenthal calls the proposal to prohibit the OIM from reviewing low level cases a way to avoid oversight and noting that small issues that are not resolved often become larger issues.). 15. Denver is unable to effectively discipline officers, up to and including

termination, for the use of excessive force and other types of misconduct. Ex. 17, Garcia Dep., 28:17-29:17, 62:2-12, 166:17-169:24. In 2009, it was difficult imposing appropriate discipline on DPD officers who were heavy-handed, in part, because at that point Denver was still under the comparable disciplinary system. Ex. 16, LaCabe Dep., 28:21-29:6.

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16.

During IAB investigations in which the evidence is essentially the word of a

citizen against the word of a police officer, it is always the case that the investigation results in an unsustained finding against the officer. Ex. 1, Rosenthal Dep., 195:5-196:3. 17. Prior to the DRB being eliminated by Manager Garcia, it was a practice of the

DRB to not sustain any discipline against law enforcement. Ex. 17, Garcia Dep., 20:5-17. 18. Competent, unbiased investigations by IAB are essential to maintaining the

integrity of policing and to sending a message to officers on the street of what is and what is not tolerated. Ex. 1, Rosenthal Dep., 47:3-7; Ex. 17, Garcia Dep., 45:17-46:1. 19. Lt. Ciempas recommendations related to the Denver Diner incident were

biased. Ex. 17, Garcia Dep., 91:9-18; Ex. 21, Quinones Dep., 48:15-18. 20. DPD officers that Manager Garcia disciplined exhibited the attitude that they

were the protectors of the citizens of Denver, they take care of problems, and mete out justice accordingly. Ex. 17, Garcia Dep., 92:21-93:20. 21. IAB was not sufficiently able to monitor and discipline DPD officers due to

issues of bias. Ex. 1, Rosenthal Dep., 32:25-39:6. Among other events, after the promotion of John Burbach (April 2008) to Commander of IAB and the videotaped beating of Michael DeHerrera (April 2009), IAB changed dramatically. Id. at 35:10-37:9. Under Commander Burbach resistance to oversight increased. Id. at 36:11-35. 22. Absent adequate and effective discipline and unbiased investigations, . . .

the potential of having a negative impact on . . . certain officers on the street who will feel as though . . . they can give out street justice and not be held accountable, and that their fellow officers will not report them for such bad conduct exists. Ex. 1, Rosenthal Dep., 51:13-22.

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23.

IM Rosenthal requested a Department of Justice investigation into the DPD

in part due to the use-of-force cases, the lack of integrity in the investigation of the use-offorce cases, and the refusal from IAB or the department to follow up online during the course of these cases. Ex. 1, Rosenthal Dep., 54:4-9. And what [he] saw, again, was this potential systemic problem where officers were permitted to use inappropriate force on the street, were not held accountable, would lie to Internal Affairs about it and, again, were not held accountable. Id. at 54:11-15. 24. IM Rosenthal believed that because of Denvers lack of political will to fix

obvious problems that were of great concern to the community . . . the only group that would have the ability to ensure these pattern and practices of potential abuse did not occur would be the Department of Justice Civil Rights Division. Ex. 1, Rosenthal Dep., 54:25-55:5. 25. From 2006 through 2009, Nixon received nine complaints of improper or

unnecessary force. Ex. 20, Nixon Dep., 56:25-57:16. During this period, on average one complaint of improper or unnecessary force was made every four months against Nixon. Id. at 59:2-16. 26. Nixon has observed other officers engage in conduct similar to his during the

Denver Diner incident, and none of those officers were disciplined. Ex. 20, Nixon Dep., 139:4-140:1, 146:1-12. 27. Officer Nixon appears to excuse his conduct in the Denver Diner cases

because he has observed other Denver Police Officers engage in similar force without discipline. Ex. 5, Montgomery Expert Report, p. 32, n.19. 28. Chief Whitman and Denvers attorney informed Nixon that he and Devine

were not untruthful and neither officer did anything wrong, rather it looked bad on video,

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Devine didnt do anything wrong, and Devine acted within the scope of [his] authority. Ex. 20, Nixon Dep., 149:13-150:1; Ex. 18, Devine Dep., 17:3-15. 29. IAB Commander Burbach made the decision to decline Landaus IAB

investigation. Ex. 13, Denver 30(b)(6) Dep., 184:22-185:19. Commander Burbach is a decision maker and policy maker for IAB and he was not required to inform or consult with his chain of command about his decisions to decline IAB investigations. Id. 30. The DPD trained Nixon that he may arrest an individual who approaches him

when there is no current disturbance and expresses their displeasure in his conduct. Ex. 20, Nixon Dep., 192:23-193:4. 31. The DPD trained Nixon that he can use a baton as a blunt poking object

against a crowd. Ex.20, Nixon Dep., 211:12-17; Ex. 18, Devine Dep., 109:22-110:3. 32. Nixon was trained by the DPD that he can use whatever force he subjectively

feels is necessary to make a person comply when taking down a handcuffed suspect. Ex. 20, Nixon Dep., 230:8-13; Ex. 18, Devine Dep., 201:13-18. 33. Nixon was trained that he did not have to report the use of force he used

against Ortega and Carrillo when he took them to the ground. Ex. 20, Nixon Dep., 232:13233:2, 237:4-12. 34. The amount of force Nixon used to take Carrillo to the ground was pursuant

to his DPD training. Ex. 20, Nixon Dep., 234:8-22; Ex. 18, Devine Dep., 201:13-18. 35. According to Nixon and Devine the force used against Ortega in time index

1:49:52 through 1:49:56 on the Denver Diner HALO video was appropriate and pursuant to Nixons training. Ex. 20, Nixon Dep., 250:22-25; Ex. 18, Devine Dep., 201:13-18, 218:218.

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36.

According to Nixon the manner that Ortega was picked up in time index

1:49:54 through 1:50:02 on the Denver Diner HALO video was appropriate and pursuant to his training. Ex. 20, Nixon Dep., 254:18-21. 37. According to Nixon and his DPD training, pushing someone to the ground is

not considered force and thus it need not be reported. Ex. 20, Nixon Dep., 277:11-20. 38. By policy, when a community member is pushed to the ground, a use of force

report is supposed to be completed. However, numerous DPD officers fail to complete use of force reports in these types of situations. Ex. 27, Nixon Unemployment hearing transcript, 92:24-93:7. 39. Nixon was not questioned about his use of force when he pushed Ortega into

Thomas or the method that he picked Ortega off the curb when she was in handcuffs. Ex. 20, Nixon Dep., 282:2-24. 40. Pursuant to his DPD training, Nixon was not required to report that Officer

Murr had put a gun to Mr. Landaus temple while stating Im going to shoot you if you dont stop moving. Ex. 20, Nixon Dep., 296:20-297:22. 41. The police union has 50% final input into the selection of CSC hearing

officers. Ex. 13, Denver 30(b)(6) Dep., 142:7-143:15. 42. Nixon believes he should not be disciplined for the Landau incident. Ex. 20,

Nixon Dep., 49:8-12. Nixon would not change any of his conduct during the arrest of Mr. Landau. Ex. 20, Nixon Dep., 21:1-9. DPD has not yet disciplined Nixon for his conduct during the Landau matter. Ex. 22, Landau Aff., 11. 43. There is an unwritten policy within the DPD that whenever a use of force

report is generated, it should be accompanied by some criminal charge. Ex. 17, Garcia Dep., 39:14-40:13.

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44.

Devine believes that the Denver Diner incident demonstrates that his

supervisors improperly train and have a do what I say not what I do mentality. Ex. 17, Devine Dep., 247:12-21. IV. STANDARD OF REVIEW

"Where different ultimate inferences may be drawn from the evidence presented by the parties, the case is not one for summary judgment." Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411 (10th Cir. 1984). The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment. . . . Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of even handed justice. Adickes v. S. H. Kress & Co., 398 U.S. 144, 176 (1970) (Black, J., concurring); see, also, Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir. 1980). V. A. ARGUMENT

Denvers Dispositive Motion Plainly Demonstrates that it is Impermissibly Using the Deliberative Process Privilege as a Sword and Shield The deliberative process privilege is designed to protect the decision-making

processes of a public agency. Dept. of Int. v. Klamath Water Users Protective Assn, 532 U.S. 1, 8 (2001); Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007); In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). However, privilege objections cannot be used as a sword and shield. Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006) (holding a litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion.") (citation omitted).

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In the discovery period of this case, Denver arbitrarily and rampantly invoked the deliberative process privilege to prevent testimonial and documentary discovery into its customs, policies, and practices. Ex. 28, See April 3, 2012 Correspondence; Ex. 29, Denvers Privilege Logs; see also: Deliberative Process Privilege Objections Related to the Landau Matter Ex. 1, Rosenthal Dep., 102:11-22, 103:4-9, 103:12-23, 104:5-105:2, 124:14-18, 213:7-17. Ex. 30, Klee Dep., 45:11-18. Ex. 21, Quinones Dep., 28:6-11. Deliberative Process Privilege Objections Related to the Denver Diner Incident Ex. 1, Rosenthal Dep., 105:8-15, 105:23-106:9, 106:17-107:7, 110:9-111:7, 121:22122:4, 124:19-125:2, 125:9-25, 134:8-14, 136:18-24, 137:12-18, 138:15-139:8, 141:6-9, 152:1-20, 153:18-155:2, 155:9-16, 155:21-156:12, 157:4-13, 185:8-17, 190:7-14, 191:8-10, 191:16-19, 192:6-10, 195:23-196-20, 196:21-197:2, 203:4-204:22, 204:23-205:16, 209:816, 210:3-11, 210:15-211:11, 226:9-13, 226:16-21, 227:5-12, 227:25-228:7, 324:6-325:19; Ex. 18, Devine Dep., 172:17-173:20; Ex. 20, Nixon Dep., 158:18-159:17. Deliberative Process Privilege Objections Related to the Customs, Policies, and Practices Ex. 1, Rosenthal Dep., 40:12-44:24, 55:6-59:11, 71:20-72:1, 81:1-8, 120:21121:5;126:6-14, 128:13-129:18, 168:2-21, 186:9-15; 200:5-12, 200:21-201:4, 214:21-24; Ex. 17, Garcia Dep., 51:10-52:9; Ex. 31, Burbach Dep., 189:8-23. On March 5, 2012, Plaintiffs conducted a discovery dispute hearing before the Honorable United States Magistrate Judge Craig Shaffer challenging Denvers widespread and abusive invocation of the deliberative process privilege. One specific issue raised at the hearing was Denvers use of the deliberative process privilege to prevent discovery into the Landau matter. At the hearing, among other things, Judge Shaffer made the following comments and rulings:

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You are going to argue as you have argued before me today that Officer Nixon was involved in an incident with Mr. Landau; that it was alleged as part of that incident Officer Nixon used a degree of force that Mr. Landau alleged was excessive. As a result of that incident Mr. Landau sustained significant injuries. You are then going to argue to the jury by virtue of that incident and by virtue of Mr. Landaus injuries, it was presumptively improper for the Denver Police Department to allow Officer Nixon to remain on the streets. Ex. 32, March 5, 2012 Hearing Transcript, 50:22-51:6. Thereafter, the Court warned Denver against using the deliberative process privilege as a sword and shield: THE COURT: What Im saying is at this juncture you may have a legitimate deliberative process assertion with respect to some of the Landau material. But at this point if I were Mr. Mohamedbhai and I was arguing this case in front of the jury tomorrow, I would certainly point out the unassailable facts, the date that Mr. Landau had his incident with Mr. Nixon, the injuries allegedly sustained by Mr. Landau, the complaint that Mr. Landau made to Internal Affairs and the fact that notwithstanding that complaint Officer Nixon was not constrained in any way in terms of his assignments or his responsibilities. Mr. Mohamedbhai - those are facts from which Mr. Mohamedbhai would be entitled to draw reasonable inferences during his closing argument. Now, you could present evidence at trial to suggest that Mr. Mohamedbhais inferences are not reasonable by virtue of all of the things that the Internal Affairs department considered in not taking Mr. Nixon off the streets. But if you try to do that, arguably you may end up waving the deliberative process and at that point I would expect Mr. Mohamedbhai to say, Judge, they cant have it both ways. They cannot use the privilege as both a sword and a shield. If they want to use the deliberative process to explain why they took no action in terms of Mr. Landaus incident, then Mr. Mohamedbhai I think is entitled to discovery to test the bona affiance of that deliberative process. MR. RICE: Fair enough (emphasis added). Ex. 32, March 5, 2012 Hearing Transcript, 54:24-55:23. Notwithstanding the Courts ruling, Denver continued to prolifically assert the deliberative process privilege throughout discovery. A cursory review of the privilege objections demonstrates that Plaintiffs were impermissibly prevented from exploring and challenging the very facts that Denver now represents to this Court as undisputed.

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1.

Paragraph 3 of Movants Statement of Material Facts

Denver has admitted in its dispositive motion that the Chief of Police, occasionally in consultation with the OIM, makes the decision as to the assignment of any restrictions placed upon the subject officer Denvers SMF 3. Despite its purported customs and practice of collaboration between the OIM and the DPDs Chief of Police, Denver prevented its IM from answering the question concerning his recommendations for Nixons duty restrictions after the Landau incident. Ex. 1, Rosenthal Dep., 124:14-18. Since Denver chose to prevent discovery into its decision making through deliberative process privilege objections, it cannot now argue on summary judgment that facts are undisputed and its decision makers did the right thing by allowing Nixon to remain on the street after the Landau incident. 2. Paragraph 29 of Movants Statement of Material Facts

Paragraph 29 of Movants Statement of Material Facts places at issue Denvers internal deliberations concerning its decision to initially decline the investigation of Mr. Landaus IAB complaint. Denvers SMF 29. Denver proffers an explanation for why it initially declined to review Mr. Landaus IAB complaint, which was allegedly performed in collaboration and support from the OIM. Id. Due to deliberative process privilege objections, Denver prevented Plaintiffs from exploring the IMs involvement in Denvers decision to initially decline review of Mr. Landaus IAB complaint. Ex. 1, Rosenthal Dep., 102:11-22, 103:12-23, 104:5-105:5 4, 124:14-24, 213:7-17. Additionally, Denver prevented Plaintiffs from exploring the current status of the Landau investigation with Division Chief David Quinones and IAB Commander Mary Beth Klee. Ex. 21, Quinones Dep., 28:6-11; Ex. 30, Klee Dep., 45:11-18.
4

IM Rosenthal wanted to answer questions concerning the Landau incident but was ordered not to answer by Denver.

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3.

Paragraphs 34-37 of Movants Statement of Material Facts

Denver puts its internal deliberations at issue with claims that the City desired to conduct thorough and complete investigations, Denvers SMF 34, the City has continually sought ways to speed the IA investigation and discipline process Denvers SMF 35, the DPD also cooperated with the OIM, Denvers SMF 36, and the City worked very hard to find ways to improve and speed the IA investigation and discipline process Denvers SMF 37. Due to deliberative process privilege objections, Plaintiffs were prevented from exploring internal communications between the OIM and the Chief of Police, the Manager of Safety, the Mayor and other Denver officials concerning Denvers untimely disciplinary practices. Ex. 1, Rosenthal Dep., 120:21-121:5, 128:13-129:18, 200:5-12. 4. Paragraph 45 of Movants Statement of Material Facts

Denver attempts to minimize the problem of DPD officers engaging in a code of silence by alleging that these codes exist in all police departments and throughout all levels of society. Denvers SMF 45. Denver was readily able to discuss the issue of the DPDs code of silence with IM Rosenthal during his deposition. Ex. 1, Rosenthal Dep., 287:22-291:8. In direct contrast, when Plaintiffs attempted to explore the issue of the DPDs code of silence as it existed in 2009 with IM Rosenthal in his deposition, Denver invoked the deliberative process privilege and instructed the deponent not to answer the question. Ex. 1, Rosenthal Dep., 328:7-329:21. B. Denver is Liable for the Violations of Plaintiffs Constitutional Rights Denver is not challenging a predicate constitutional harm inflicted onto Plaintiffs by Nixon or Devine. See, Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004).

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Nonetheless, it argues that Plaintiffs have failed to establish that these constitutional violations resulted from any municipal custom, policy, or practice. A municipality or other local government unit is liable for constitutional torts if the alleged unconstitutional acts implicate a policy, ordinance, or custom of the local government. Monell v. Department of Social Services, 436 U.S. 658, 690, 694 (1978); Garcia v. Salt Lake County, 768 F.2d 303, 308 n.4 (10th Cir. 1985). A municipality is responsible under section 1983 when the execution of a government policy or custom actually causes an injury of constitutional dimensions. Monell, 436 U.S. at 694; D.T. v. Independent School District, 894 F.2d 1176, 1187 (10th Cir. 1990). Governmental liability under section 1983 can be established by demonstrating that Denver has (1) a continuing, widespread, and persistent pattern of misconduct by its employees; (2) deliberate indifference to or tacit authorization of the misconduct by policymaking officials after notice of the conduct; and (3) resulting injuries to the Plaintiffs by virtue of the unconstitutional acts pursuant to Denvers custom and that the custom was the moving force behind the unconstitutional acts. Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993). The recent decision of Lynch v. Barrett et al, 11-cv-1120-RBJ-MEH, 2012 U.S. Dist. LEXIS 72250 (D. Colo. May 24, 2012) (attached as Ex. 33) is highly instructive concerning the instant matter. In a case also against the City and County of Denver and its DPD officers, plaintiff Lynch brought a governmental failure to discipline claim, accusing the Denver Police Department of having had, in and before 2008, a practice or custom of accepting police officers' statements that they did not observe or do not recall an alleged incident of the use of excessive force without investigation of the truthfulness of those

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statements unless the evidence that excessive force was administered is clear and indisputable. Id. at *17. In resisting Denvers Motion for Summary Judgment, plaintiff Lynch submitted a December 2, 2011 Denver Post article, that indicated that there is a culture in the Denver Police Department that accepts officers' roughing up suspects within certain boundaries, and that so long as the injuries are not too severe, officers rarely report fellow officers. Id. at *18-19. The Denver Post article quoted former Manager Al LaCabes sworn testimony from a CSC hearing concerning the culture of DPD and its failure to discipline officers. Id. at *19. In applying Monell and Gates, the court found this singular statement by Manager LaCabe was profoundly inculpatory and outright denied the City and County of Denvers dispositive motion, ruling as follows: Accordingly, although the presentation of Mr. LaCabe's potential testimony via media accounts of previous testimony and statements rather than by an affidavit or through deposition testimony is unusual, the Court finds in the circumstances that the description of the substance or content of the evidence has sufficient reliability to be considered for summary judgment purposes. The Court further finds, based upon that evidence, that plaintiff has met his burden of showing that there is a genuine factual dispute regarding the existence of the custom or practice on which plaintiff pins his claim against the City and County of Denver. Id. at *20-21. Among others, Plaintiffs have deposed former Manager Al LaCabe, former Manager Charlie Garcia, former IM Richard Rosenthal, former DPD Chief Gerald Whitman, former IAB Commander John Burbach, current IAB Commander Mary Beth Klee and Denvers designated representatives. Compared to Lynch, Plaintiffs in this case provide tremendously greater quality and quantity of evidence supporting their claims against Denver.

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1.

Continuing, widespread, and persistent patterns of misconduct by its employees.

To establish the existence of a widespread practice, plaintiffs typically present evidence showing that a municipality has violated the constitutional rights of other people under similar circumstances. Carney v. City and County of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008); Watson v. Kansas City, 547 F.2d 690, 695 (10th Cir. 1988). In resisting summary judgment, Plaintiffs may rely upon affidavits of similarly situated third parties who allege the same type of misconduct by the municipality. Cannon v. Denver, 998 F.2d 867, 877-878 (10th Cir. 1993) (the submission of affidavits from only two individuals who alleged a pattern of post-incident similar police abuses by DPD officers was sufficient to meet the plaintiffs burden of establishing a widespread practice at the summary judgment stage); see also Stone v. City of Wheat Ridge, 07-cv-00004-WYD-KLM, 2009 U.S. Dist. LEXIS 26932, *31. a. Failure to investigate and discipline law enforcement officers that engage in constitutional violations.

Including Mr. Landaus affidavit (Ex. 22), Plaintiffs submit twenty-seven (27) affidavits of similarly situated community members who claim incidents of constitutional violations by DPD officers and IABs subsequent failures to investigate or discipline. Ex. 34, Affs. of Similarly Situated Community Members. These affidavits all involve individuals who were unlawfully seized or arrested by means of excessive force by DPD officers. Id. In all these incidents, there were witnesses and the DPD officers involved deserved discipline. Id. However, little or no discipline was imposed as IAB consistently conducted whitewashed and biased investigations. Id. The DPDs ability to discipline its officers is so utterly broken that IM Rosenthal asked the United States Department of Justice to investigate the DPD. SADF 23. The

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foundation of the IMs concerns can clearly be seen in IABs failure to appropriately investigate allegations of officer misconduct and DPDs inability to properly discipline its officers. SADF 5. IAB inappropriately turns complainants away. Resp. to Denvers SMF 29; see also Ex. 34, Affs. of Similarly Situated Community Members. Denvers astonishing decision to decline Mr. Landaus IAB complaint and place no immediate restrictions on Nixons patrol duties is the predictable manifestation of an utterly broken system. Denvers actions and inactions in the Landau matter are unforgiveable. IAB was outright hostile towards Mr. Landau when he filed his IAB complaint, immediately discrediting his versions of the events, yelling at him, and accusing him of playing the race card. Resp. to Denvers SMF 29. IAB informed Mr. Landau that his severe beating was within DPD policies. Id. Even when IAB does accept a case for filing, the Chief of Police is unable to immediately identify officers that should be immediately removed from the street. Resp. to Denvers SMF 3. As such, after the Landau assault, Nixon remained on the street to violate the rights of the Plaintiffs in this case and Officer Murr attacked and beat Michael DeHerrera. Resp. to Denvers SMF 29. Further compounding the problem, the length of time a disciplinary case takes to reach the Managers desk is insanity, contributing to an ineffective disciplinary system. Resp. to Denvers SMF 33. Since 2005, IM Rosenthal has been critical of the length of time of Denvers disciplinary process. Id. Despite Plaintiffs submitting their IAB complaints the day after the Denver Diner incident, Nixon and Devine remain employed as DPD officers. SADF 10. Further, the disciplinary decision by the Chief of Police concerning the Landau incident still has not occurred. Ex. 22, Landau Aff., 11.

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In addition to the lengthy time IAB investigations take, the investigations are biased, SADF 21, and IAB officers lack the appropriate training to conduct proper investigations. Resp. to Denvers SMF 38. This results in IAB investigations that favor DPD officers, improper investigations, and a failure to discipline. Finally, where a case is accepted by IAB and makes its way through the entire DPD disciplinary process and results in discipline, these decisions are routinely overturned by Denvers policymakers. Resp. to Denvers SMF 20. The DPD is unable to discipline its officers and there is a custom of the DPD rejecting and ignoring civilian oversight. Id. at 21; see also SADF 7, 9. b. Training of DPD Officers to engage in excessive force.

While Denver asserts in its Motion for Summary Judgment that much of Nixons and Devines use of force was inappropriate, Denvers SMF 12, 13, 15, 24-27, the evidence in this case establishes that Nixon and Devine were trained that their use of force against Plaintiffs was appropriate. Significantly, Denvers improper training of its officers goes beyond Nixon and Devine, as Manager Garcia expounded that the understanding of what constitutes excessive force and how to document uses of excessive force are misunderstood and misapplied throughout the DPD. SADF 12. Nixon and Devine were trained by the DPD to be bullies. Resp. to Denvers SMF 24,25. Their supervisors endorsed their conduct. Resp. to Denvers SMF 24, 25 (Commander Dilley described the terminations of Nixon and Devine as a travesty of the highest level.). Not only were Nixon and Devine trained to engage in the force used during the Denver Diner incident, but Nixon has observed other Denver Police Officers engage in similar force without discipline. SADF 27. Even Chief Whitman and Denvers

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attorneys informed Devine and Nixon that neither officer did anything wrong and acted pursuant to policy. Id. at 28. c. Training of DPD Officers to not turn over exculpatory evidence.

Colorado Municipal Court Rules and Procedure 216 and Colorado Rule of Criminal Procedure 16 require the disclosure of exculpatory material. Disclosure of evidence is required whether or not material to the case, whether or not requested by the defense, and whether or not it pertains to witnesses endorsed by the defense or who would be called by the prosecutions only for rebuttal purposes. United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 3380-3381, 87 L. Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); People v. Alberico, 817 P.2d 573 (Colo. App. 1991); Dill v. People, 927 P.2d 1315, 1323 (Colo. 1996). IAB officers are trained that they do not need to turn over exculpatory evidence to criminal defendants, thus Due Process violations are predictable. Resp. to Denvers SMF 10. Borens criminal defense attorney was not provided any information from Denver regarding the existence of the HALO video that captured the events of the Denver Diner incident, discovery regarding the multiple exculpatory interviews conducted by Denver, or any information that Nixon was under investigation due to the Landau matter. Id. at 8. Most alarming, Sergeant Clark was aware that Plaintiffs were planning on accepting a plea to a criminal charge without seeing the HALO video and did nothing to inform her of the exculpatory evidence in her possession. Id. at 10. d. Tolerance of the code of silence by authorizing officers to not report uses of force and not report other officers misconduct.

DPD officers who use force are required to complete reports, not necessarily other observing officers. Resp. to Denvers SMF 45. It is entirely discretionary on the part of observing officers as to whether they believe they witnessed excessive force. Id. One of 31

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the factors that allow a subculture of excessive force and lying to flourish is the failure to discipline officers who do not report other officers use of improper force. Resp. to Denvers SMF 45. Nixon was trained that he did not have to report the use of force he used against Ortega and Carrillo when he took them to the ground. SADF 33. No officer that witnessed the excessive force used in the Denver Diner incident filed reports. Resp. to Denvers SMF 45. Pursuant to his DPD training, Nixon was not required to report that Officer Murr put a gun to Mr. Landaus head and threatened to shoot him. SADF 10. In his review of excessive force cases, Manager Garcia observed a pattern of officers failing to report other officers uses of force. Resp. to Denvers SMF 45. 2. Deliberate indifference to or tacit authorization of the misconduct by policy-making officials after notice of the conduct.

"The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm." Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). Deliberate indifference may also be proven by showing that the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the City can reasonably be said to have been deliberately indifferent to the need. Brown, 227 F.3d at 1288 (citation omitted). Under this theory, a showing of specific incidents which establish a pattern of constitutional violations is not necessary to put the City on notice that its training program is inadequate. Rather, evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, is sufficient to trigger municipal liability. Allen, 119 F.3d at 842 (citation omitted); see also Connick v. Thompson, 131 S. Ct. 1350,

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1366 (2011). Denver has been on notice of its systemic disciplinary practice failures. Denvers policy makers, such as the Commander of IAB, the Chief of Police, and the Manager of Safety would have constant and daily communications with the IM. SADF 3, 11. Indeed, IM Rosenthals duties were to be the eyes and ears of the Manager of Safety. SADF 2. CSC has routinely turned a blind eye to DPD officers engaging in excessive force and dishonesty. Resp. to Denvers SMF 20,21. a. Failure to investigate and discipline law enforcement officers that engage in constitutional violations.

In Zuchel v. Denver, 997 F.2d 730 (10th Cir. 1993), the Tenth Circuit Court of Appeals examined the issue of deliberate indifference, notice and the general sufficiency of evidence within the record after a jury found liability against the City and County of Denvers for civil rights violations performed by DPD officers. As evidence of deliberative indifference, the court referenced a letter sent to Denver two and a half years before Mr. Zuchels death that expressed concerns with the DPDs shooting trainings. Id. at 737-738. Additionally, the Tenth Circuit noted that Mr. Zuchel had presented evidence through an expert in police tactics, use of force, administration, supervision, and training. Id. at 738. Similarly to Zuchel, prior to the July 2009 date of the Denver Diner incident, IM Rosenthal raised concerns with Denver regarding the inadequacies of IAB. SADF 11. Additionally, he constantly worked internally to address DPD training deficiencies. Id. However, IM Rosenthal began to experience resistance to his recommendations and civilian oversight. Resp. to Denvers SMF 38; SADF 14. Under Commander Burbach, IAB increased its resistance to civilian oversight. Resp. to Denvers SMF 38. IAB officers would reflexively defend officers conduct and there was an assumption that

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officers credibility was superior to that of citizen witnesses. SADF 11, 16. Lying during IAB investigations did not generally result in officer discipline. SADF 13. IM Rosenthals deposition testimony clearly demonstrates that Denver knew of the problems within IAB and failed to fix them. SADF 11, 13, 14. This will be reinforced by the testimony of numerous citizens who personally experienced the failures of IAB. Ex. 34, Affs. of Similarly Situated Community Members. Finally, like the plaintiff in Zuchel, Plaintiffs in the instant case have retained an expert in policing standards and administration to testify to the inadequacies of Denver. See Ex. 5, Montgomery Expert Report. A failure to investigate or reprimand might also cause a future violation by sending a message to officers that such behavior is tolerated. Cordova v. Aragon, 569 F.3d 1183, 1194 (10th Cir. 2009). Denver exhibited deliberative indifference in its decision to decline Mr. Landaus IAB complaint and place no immediate restrictions on Nixons patrol duties. Common sense mandates that the vastly differing accounts of the events by the officers, notably between Officer Middleton and Nixon, and the serious injuries to Mr. Landau, would necessitate at least an investigation into the incident. Resp. to Denvers SMF 29. IAB was hostile towards Mr. Landau when he filed his IAB complaint, immediately discrediting his versions of the events, yelling at him, and accusing him of playing the race card. Resp. to Denvers SMF 29. IAB informed Mr. Landau that his severe beating was within DPD policies. Id. Chief Whitman did not even consider removing Nixon from the street. Resp. to Denvers SMF 3. Further demonstrating Denvers deliberative indifference is IABs failure to timely investigate cases, further contributing to an ineffective disciplinary system. Resp. to Denvers SMF 33. Since 2005, IM Rosenthal has been critical of the length of time of

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Denvers disciplinary process. Id. Of significance to this case, the disciplinary decision by the Chief of Police concerning the Landau incident still has not occurred. Ex. 22, Landau Aff., 11. The CSC is final policy makers with regards to DPD officer discipline. David v. City & County of Denver, 101 F.3d 1344, 1358 (10th Cir. 1996). The police union has dramatic influence and veto power over the selection of CSCs hearing officers. SADF 41. Therefore, the CSCs long and unbroken history of tolerating DPDs unconstitutional behavior is predictable and expected. The evidence of the CSCs tolerance and ratification of unconstitutional behavior is compelling. Manager LaCabe is highly critical of the historical rulings of the CSC, such as the Graves decision and its adverse impact on the ability to discipline officers from 1996 to 2008. Resp. to Denvers SMF 21. Likewise, Manager Garcia is highly critical of the CSC and stated it has been known for a long time that if you fire a police officer, the chances are very, very, very good that they will be reinstated by the Civil Service Commission. Id. Manager Garcia and IM Rosenthal identify the CSC as one of the root problems of the DPDs inability to effectively discipline and terminate officers who engage in unconstitutional behavior. Id.; see also SADF 8. CSCs routine reduction of discipline for DPD officers has left the impression in DPD officers that there are no consequences for officer misconduct. Resp. to Denvers SMF 20, 21. In defending the conduct of the CSC, Denver cites the cases of Ravenell v. City of Albany, 96-CV-1696, 2000 U.S. Dist. LEXIS 15135 (N.D.N.Y. Oct. 17, 2000) and Kanae v. Hodson, 294 F. Supp. 2d 1179 (D. Haw. 2003), and argues that Plaintiffs cannot merely disagree with the decision of the CSC and its discipline of Nixon and Devine in order to establish municipal liability. Defs. Mot. Summ. J., p. 18-20 and 29. Denvers argument

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misses the mark. Critically, Ravenell relies upon Sarus v. Rotundo, 831 F.2d 397, 401-402 (2nd Cir. 1987), which holds a municipal policy may be inferred from the informal acts or omissions of supervisory municipal officials and that "municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct within the meaning of Monell (citation omitted). Indeed, as supported by Sarus, Plaintiffs claim that the persistent failure of the CSC to discipline DPD officers is Denvers custom and practice suggesting ratification and tacit approval of unconstitutional behavior. Similarly, the court in Kanae, teaches that a municipality may have 1983 liability for failing to reprimand an employee. 294 F. Supp. 2d at 1188. b. Training of DPD Officers to engage in excessive force.

In addition to CSCs approval of officers who engage in excessive force (Resp. to Denvers SMF 20, 21), Devine believes that the Denver Diner incident demonstrates that his supervisors improperly train and have a do what I say not what I do mentality. SADF 44. Sgt. ONeill, Lt. Ciempa, Division Chief Klee, and Commander Dilley found nothing inappropriate with either Devines or Nixons conduct in the Denver Diner incident. Resp. to Denvers SMF 24. Nixon has observed other Denver Police Officers engage in similar force without discipline. SADF 27. Even Chief Whitman and Denvers attorneys informed Devine and Nixon that neither officer did anything wrong, rather it looked bad on video, Devine didnt do anything wrong, and Devine acted within the scope of [his] authority. Id. at 28. As demonstrated by the numerous DPD command level staff that observed the Denver Diner HALO video and determined that Officer Nixon and Devine did nothing wrong, it is clear that the current DPD training on use of force is inadequate and Denver has been deliberately indifferent to its deficient training.

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c.

Training of DPD Officers to not turn over exculpatory evidence.

IAB officers are trained that they do not need to turn over exculpatory evidence to criminal defendants, thus Due Process violations are predictable. Resp. to Denvers SMF 10. As such, Denver deliberately chose to disregard the risk of harm this would cause Plaintiffs. d. Tolerance of the code of silence by authorizing officers to not report uses of force and not report other officers misconduct.

Denvers failure to discipline officers who do not report other officers use of improper force has encouraged a culture of dishonesty and silence. Resp. to Denvers SMF 45. No witnessing officer to the excessive force used in the Denver Diner case filed reports and none of these officers were investigated or disciplined. Further, it is clear Denver knew of this continuing, widespread, and persistent pattern of silence as Manager Garcia testified regarding an observed pattern of officers failing to report other officers uses of force. Id. 3. Plaintiffs have established that Denvers customs and practices was the moving force behind their injuries caused by Nixon and Devine.

Plaintiffs have established that Denvers customs and practices underlying Nixons and Devines unconstitutional misconduct was the moving force behind their injuries. Gates, 996 F.2d at 1041. In other words, the municipalitys custom must be the actual cause of the constitutional deprivation. Carr, 337 F.3d at 1231. Absent adequate and effective discipline and unbiased investigations, . . . the potential of having a negative impact on . . . certain officers on the street who will feel as though . . . they can give out street justice and not be held accountable, and that their fellow officers will not report them for such bad conduct exists. SADF 22.

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Significantly, Nixon stated that he has observed many other DPD officers engage in similar uses of force to his use of force in the Denver Diner incident without consequence or discipline. SADF 26. Nixon stated that he should not be disciplined for his conduct in the Landau matter and he would not change anything he did that night. SADF 42. Nixon exhibits the attitude that he takes care of problems without the need for courts and attorneys. SADF 20. Of telling importance, Devine believes that the Denver Diner incident demonstrates that his supervisors improperly train and have a do what I say not what I do mentality. SADF 44. This is precisely the type of testimony that is expected from officers who engage in excessive force and are employed by a department that systemically fails to timely and meaningfully discipline. Nixons attitude highlights why unbiased investigations by IAB are essential to sending a message to officers on the street of what is and what is not tolerated. SADF 10. Additionally, Denver has failed to adequately train Nixon and Devine. Nixon claimed his conduct during the Denver Diner incident was pursuant to his DPD training and ongoing training. Resp. to Denvers SMF 25, 27, 32, 34, 35, 36. Nixon has never been questioned or disciplined for pushing Ortega into Thomas or the method that he picked Ortega off the curb when she was in handcuffs. SADF 39; Resp. to Denvers SMF 27. Supervisors, the DRB, Denvers attorneys and the Chief of Police all stated that Nixons and Devines conduct was acceptable and pursuant to DPD policies and training. Resp. to Denvers SMF 25; SADF 28. Devines uses of force against Boren and Thomas were completely approved of by the CSC and he received no discipline. Ex. 12, CSC Decision Regarding Nixon and Devine, p. 12. Denver relies on Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010), for the argument that a policy violation is not a constitutional violation and therefore does not demonstrate

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governmental liability. Defs. Mot. Summ. J., pp. 13, 8, 24, 25. This argument misapprehends the law. In City of Canton v. Harris, 489 U.S. at 386-88, the Supreme Court expressly rejected the argument that a city is only liable when the municipal policy itself is unconstitutional. Rather, the Supreme Court held that "if a concededly valid policy is unconstitutionally applied by a municipal employee, the City is liable if the employee had not been adequately trained and the constitutional wrong has been caused by that failure to train." Id. at 387. In granting the governments dispositive motion concerning the failure to train claim, the court found the officer admitted that he knew he was acting in defiance of this policy when he used force. Porro, 624 F.3d at 1328-1329. In this case, Nixon and Devine were acting in conformance with their training when they used force. C. Post-Incident Evidence Can Demonstrate Governmental Liability Denver cites to Dejesus v. Village of Pelham Manor, 282 F. Supp. 2d 162 (S.D.N.Y. 2003), for the broad sweeping proposition that Plaintiffs cannot use post-incident matters to support their municipal liability claim. Defs. Mot. Summ. J., p. 13. However, Dejesus does not stand for this proposition as the court did not rule on this larger issue outside the specific facts of the case. See id. at 176. However, the Tenth Circuit case law holds that post-incident conduct may be relevant to establishing governmental liability. [A] plaintiff asserting municipal liability under Monell is entitled not only to factual information concerning an officers alleged past violations, but also to information concerning his superiors knowledge of those violations and what, if anything, they did about them. Everitt v. Brezzel, 750 F. Supp. 1063, 1069 (D. Colo. 1990); see also Cannon, 998 F.2d at 877-878, see also Lindquist v. Arapahoe County, 10-cv-02264-REB-MEH, 2011 U.S. Dist. LEXIS 81414, *6 (D. Colo. July 26, 2011); Estate of Rice ex rel. Garber v. City & Cnty. of Denver, No. 07-cv-01571-MSK-BNB,

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2008 U.S. Dist. LEXIS 42381, 2008 WL 2228702, at *6 (D. Colo. May 27, 2008). This Court may consider evidence after the Denver Diner incident supporting Plaintiffs claims. VI. CONCLUSION AND REQUEST FOR ORAL ARGUMENT

Based on the foregoing, which includes substantial disputed material facts as found in witness deposition testimony and exhibits, Plaintiffs respectfully requests that the Court deny Denvers dispositive motion. Plaintiffs respectfully request oral argument. Respectfully submitted this 16th day of July, 2012. RATHOD | MOHAMEDBHAI, LLC s/ Qusair Mohamedbhai Qusair Mohamedbhai Siddhartha H. Rathod 1518 Blake Street Denver, CO 80202 (303) 578-4400 (303) 578-4401 (fax) sr@rmlawyers.com qm@rmlawyers.com ATTORNEYS FOR PLAINTIFFS CERTIFICATE OF SERVICE I hereby certify that on July 16, 2012, I electronically filed the foregoing PLAINTIFFS RESPONSE TO DEFENDANT DENVERS MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system, which will send electronic notification to the following: Brian R. Reynolds, Esq. breynolds@bcjlpc.com

ATTORNEY FOR DEFENDANTS NIXON AND DEVINE Thomas S. Rice, Esq. Ashley M. Kelliher, Esq. trice@sgrllc.com akelliher@sgrllc.com

ATTORNEYS FOR DEFENDANT CITY AND COUNTY OF DENVER RATHOD | MOHAMEDBHAI, LLC s/ Qusair Mohamedbhai Qusair Mohamedbhai 40