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ROBERT B. SYKES (#3180) bob@sykesinjurylaw.com ALYSON E. CARTER (#9886) alyson@sykesinjurylaw.com RACHEL L. SYKES (#11778) rachel@sykesinjurylaw.com ROBERT B. SYKES & ASSOCIATES, P.C. 311 South State Street, Suite 240 Salt Lake City, Utah 84111 Telephone (801) 533-0222 Facsimile (801) 533-8081 Attorneys for Plaintiff UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

RONNY TODD MAY, Plaintiff, vs. BRANDON WHITEHEAD, a Utah Highway Patrol Trooper, in his individual and official capacities; JARED PATTERSON, a Utah Highway Patrol Trooper, in his individual and official capacities; JOSHUA PORTER, a Utah Highway Patrol Trooper, in his individual and official capacities; E. PRESCOTT, a Utah Highway Patrol Trooper, in his individual and official capacities; and JOHN and JANE DOES 1-5, Defendants.

COMPLAINT AND JURY DEMAND

Case No. 1:12-cv-180 DAK

Judge Dale A. Kimball

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Plaintiff R. Todd May (May) complains and alleges for causes of action against Defendants as follows: PRELIMINARY STATEMENT This is a civil rights action in which the Plaintiff, R. Todd May, seeks relief for the Defendants violations of his rights guaranteed by the United States Constitution, specifically the Fourth Amendment, which right is further secured by the Civil Rights Act of 1871, 42 U.S.C. 1983 and 1988, and by the laws and the Constitution of the State of Utah. May seeks damages, both compensatory and punitive damages;

affirmative relief; an award of attorneys fees, costs, and interest; and other and further relief as this Court deems just and equitable. This is further an action at law to redress a deprivation under color of statute, ordinance, regulation, custom, or usage of a right, privileges, and immunities secured to Plaintiff by the applicable provisions of the Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States, and under Article I 14 of the Constitution of the State of Utah. JURISDICTION AND VENUE 1. This action arises under the United States Constitution and federal

law, particularly under the provisions of the Fourth Amendment of the Constitution of the United States, and 42 U.S.C. 1983, 1985 and 1988. 2. This action seeks redress for violations of the civil rights laws of the

United States, and jurisdiction is therefore invoked pursuant to 28 U.S.C. 1343 and 42 U.S.C. 1983.
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3.

The claims made in this Complaint occurred and arose in the State

of Utah, in this District, and in the Central Division. Venue is therefore proper under 28 U.S.C. 1391. 4. This action also seeks redress for violations of Plaintiffs

constitutional rights secured by the Utah Constitution. Specifically, Article I, 14, which provides: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized. This provision of the Utah Constitution is self-executing and does not require notice under the Governmental Immunity Act. This Court further has pendent jurisdiction over any and all State claims. 5. May is seeking damages pursuant to the claims for relief specified

below in amounts to be proved at trial. PARTIES 6. Plaintiff R. Todd May is a resident of the United States of America

and is a resident of Ogden City, Weber County, State of Utah. 7. At all times relevant herein, Trooper Brandon Whitehead

(Whitehead) was a law enforcement officer employed by the Utah Highway Patrol in Weber County, State of Utah, and acting in the course and scope of that employment.

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8.

At all times relevant herein, Trooper Jared Patterson (Patterson)

was a law enforcement officer employed by the Utah Highway Patrol in Weber County, State of Utah, and acting in the course and scope of that employment. 9. At all times relevant herein, Trooper Joshua Porter (Porter) was

a law enforcement officer employed by the Utah Highway Patrol in Weber County, State of Utah, and acting in the course and scope of that employment. 10. At all times relevant herein, Trooper E. Prescott (Prescott) was a

law enforcement officer employed by the Utah Highway Patrol in Weber County, State of Utah, and acting in the course and scope of that employment. 11. At all times relevant herein, John and Jane Doe Troopers 1-5

(Doe Troopers) were law enforcement officer employed by the Utah Highway Patrol in Weber County, State of Utah, and acting in the course and scope of that employment. 12. This action is brought against Whitehead, Patterson, Porter, Prescott

and the Doe Troopers (collectively the Troopers), jointly and severally, both in their individual and official capacities. Their authority to act was derived from Utah State law and/or the commands and directives of his superiors. All of the Troopers acts, as set forth in the following paragraphs, were performed under color of the laws, statutes, ordinances, regulations, policies, customs, and usages of the State of Utah and the Utah Highway Patrol. 13. May may serve notice of his pendent state claims against the

Defendants pursuant to Utah law. Such claims may be amended into this Complaint at
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a later time. May denies that notice is required of any such claims in this Complaint since state law notice of such claims is not required. FACTUAL ALLEGATIONS 14. On or about the evening of July 9, 2012, May was driving towards

his office in Ogden City, following behind a friend, Tracy Smith1(Smith), because she was experiencing car trouble. 15. May was allegedly following Smith at an extremely unsafe distance,

which attracted the attention of Trooper Whitehead. Whitehead determined that he should pull the two over when they allegedly ran through a red light on Wall Avenue. 16. At the moment when Trooper Whitehead activated his lights,

Whitehead, May and Smith were all in the vicinity of the intersection of Washington Boulevard and 26th Street in Ogden.2 17. Upon noticing the lights, May slowed down and made two further

turns, ultimately into a parking area near his office. May continued off of 26th Street in order to keep all the parties involved out of the less-safe, high traffic flow present at the previous location.

Tracy Smith is a fictitious name, used to protect a non-party. Failure to utilize the pseudonym could jeopardize the individuals safety. See 19, infra. Upon information and belief, this particular intersection is a high-traffic intersection: Washington Boulevard is also State Highway 89, and the surrounding area is, in effect, downtown Ogden City. -52

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18.

Trooper Whitehead then made initial contact with May, including

asking for Mays driving license and car registration. May immediately produced his license but could not immediately locate his registration or insurance information. 19. At this point, Trooper Whitehead then approached Smith, and

eventually recognized her as having acted in the past as a confidential informant to the Weber Morgan Strike Force, as well as having provided Whitehead personally with information. 20. After some discussion with Smith, Trooper Whitehead asked her if

she knew May to be traveling in the possession of any illicit paraphernalia. Smith allegedly answered in the positive. 21. Trooper Whitehead then returned to Mays vehicle and asked May

to step out of the car. He asked May whether he was using or in possession of any drugs. May responded that he was on prescription methamphetamine. 22. Trooper Whitehead then instituted a probable cause search of May

culminating in Whiteheads request that May remove his shoes. May inquired whether he was under arrest, and Trooper Whitehead responded that May was not under arrest. 23. May proceeded to remove his right shoe first, followed by his left.

During the removal of his left shoe, May retrieved a small item that had been inside his shoe but outside of his sock, told Whitehead that it was his prescription methamphetamine, and placed the item in his mouth.

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24.

Whitehead noted that the item from Mays shoe was a small plastic

bag that allegedly contained a loose granular white substance. 25. Whitehead then advanced towards May, grabbed his face, and

ordered him to spit out whatever May had just placed into his mouth. See Exhibit 1, Whiteheads Dashcam Video (via attached compact disc) at 10:15:50. 26. Before May could respond, Whitehead moved around to the side of

May to position himself for a headlock or choke-hold around Mays neck. Exhibit 1, 10:15:51-54. May responded by moving to avoid being choked. Id. at 10:15:53-55. 27. The four Troopers then began to employ considerable, excessive and

unnecessary force to induce May to spit out the object in his mouth. Within moments, the four troopers dragged May to the ground and were on top of him. Id. at 10:15:5516:06. 28. Patterson, or possibly one of the troopers, then delivered a powerful

closed-fist punch to Mays face, striking May in the left eye socket. Id. at 10:16:06-7.3 This blow caused a significant injury to Mays eye and head, leaving him with a concussion and a very severe black eye. 29. While the Troopers were ordering May to spit it out, Trooper

Patterson, positioned himself on Mays back and delivered approximately 7 or 8 closedfist punches to Mays back and side. Id. at 10:16:06-14.

Trooper Patterson wrote in his report that his first blow landed on the back of the left shoulder, though the dash cam footage shows contact between Pattersons closed fist and Mays face. -7-

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30.

While two other troopers knelt on May and gripped his arm in an

awkward position, Patterson and possibly one other trooper next applied multiple drive stuns with a Taser to Mays back. Exhibit 1 at 10:16:18-25. May received possibly 2-4 five-second Taser bursts. 31. The Troopers continued to call for May to spit it out. After nearly

a minute of physical interaction with May and multiple Taserings, one of the Troopers order him to stop resisting, at a time when he was not resisting. Id. at 10:16:34. At the same time, Trooper Porter applied a drive stun with his Taser in Mays back, while all of the troopers adopt the order of stop resisting rather than spit it out, even though no change in circumstance had occurred. Id. at 10:16:34-48. 32. As a result of the Troopers assault, May suffered a concussion

serious bruising and lacerations to his face, and Taser burns. 33. The Troopers actions were willful, malicious, and/or reckless, and

justify the award of punitive damages. FIRST CAUSE OF ACTION Excessive Force in Violation of the Fourth Amendment Cognizable Under 42 U.S.C. 1983 34. 35. Plaintiff incorporates by reference the above allegations. The proper focus in determining the reasonableness of force used is

on the events immediately confronting an officer when he decides to use force. Force is only permitted when a suspect is fleeing, violent, or dangerous and/or resisting arrest.

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When force is justified, only that amount of force which is necessary to accomplish a legitimate police objective is permitted. No force is reasonable when a suspect is not resisting, is non-violent, and poses no threat. Furthermore, force is not permitted at all when there is no need to use force. 36. In the context of force as related to swallowing evidence or drugs,

courts apply a three-part test as to the reasonableness of the search. See Winston v. Lee, 470 U.S. 754 (1985). The three prongs of the Winston test are: (1) the extent to which the procedure may threaten the safety or health of the individual; (2) the extent of intrusion upon the individuals dignitary interest in fairly and accurately determining guilt or innocence; and (3) the communitys interest in fairly and accurately determining guilt or innocence, which embraces the need to preserve evidence. Id. at 761-62. 37. Threat to Health or Safety. From the outset of their physical

interaction with May, the Troopers unreasonably threatened Mays health and safety. Utah law holds that choke holds used to prevent suspects from swallowing evidence are unreasonable given the evident dangers of restricting the flow of air or blood.4 The Troopers next actions are equally unreasonable and dangerous. A dogpile of officers forcing May to the ground, choking him, and culminating in at least one closed-fist punch to Mays face, 7-8 punches directed to his body or one of Mays kidneys, and at least 2-4 drive stun applications of Tasers is dangerous and harmful to health. The
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See State v. Hodson, 907 P.2d 1155 (Utah 1995). -9-

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beating administered by the Troopers was severe, and resulted in May being sent to the hospital. 38. Degree of Intrusion Was Inappropriate. Utah law holds that

intrusion must be weighed against an individuals interest in human dignity.5 The Troopers inflicted severe discomfort and pain on May in an effort to stop May from swallowing alleged evidence. Because Trooper Whitehead was admittedly acting under the belief that May had swallowed a whole plastic baggie, it is reasonable that the evidence would have been recoverable without resorting to a dangerous beating that resulted in hospital treatment. 39. The Communitys Interest and the Need to Preserve Evidence.

Courts have balanced the two preceding factors against the public interest in fairly and accurately determining guilt or innocence.6 The Troopers actions went beyond

reasonable efforts to stop May from swallowing. Instead of using reasonable force to retrieve the potential evidence, the Troopers used excessive force by way of closed fist punches, choking, and repeated Taserings in an attempt to obtain evidence which May had placed in his mouth. This severe beating resulted in a trip to the hospital. 40. These actions caused May to be injured, as set forth above.

5 6

Winston, 470 U.S. at 762. Winston, 470 U.S. at 762. -10-

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41.

There were no exigent circumstances or any other need for

Whitehead or any of the other Troopers to tackle May and bring him to the ground, punch him in the face and side, and repeatedly drive stun May with a Taser. 42. The violation of Mays rights are actionable under 42 U.S.C. 1983,

and May is entitled to judgment against Defendants in an amount to be proved at trial, but not less than $250,000, plus costs and attorney fees pursuant to 42 U.S.C. 1988. 43. May is entitled to punitive damages against Defendant Troopers, as

allowed by law, since Defendants actions were intentional, wanton, malicious, and oppressive. SECOND CAUSE OF ACTION Excessive Force and Unreasonable Seizure Cognizable Under Article I, 14 of the Utah Constitution 44. 45. Plaintiffs incorporate by reference all above allegations. The Troopers used excessive force in effecting the arrest in that they

tackled, punched, tased, injured, and otherwise severely beat May, who was not armed, in response to Mays swallowing or attempted swallowing of alleged evidence, which was actually a prescription. This conduct by the Troopers violated Mays rights under Article I, 14 of the Utah Constitution. 46. May is entitled to punitive damages against the Troopers, as allowed

by law, since Defendants actions were intentional, wanton, malicious, and oppressive.

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JURY DEMAND Plaintiff requests a jury trial on all issues in this case. REQUEST FOR RELIEF WHEREFORE, Plaintiff demands judgment against Defendants as follows: 1. For general compensatory damages in an amount to be determined

at trial, but not less than $250,000; 2. 3. 4. For special damages, such as medical bills, as are shown at trial; For punitive damages against Defendants as may be allowed by law; For pre-judgment interest on the damages assessed by the verdict of

the jury, as allowed by law; 5. For Plaintiffs costs and reasonable attorney fees incurred herein,

pursuant to 42 U.S.C. 1988; and 6. For such other and further relief as the Court deems just and proper.

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DATED this 31st day of August, 2012. ROBERT B. SYKES & ASSOCIATES, P.C.

/s/ Robert B. Sykes ROBERT B. SYKES ALYSON E. CARTER RACHEL L. SYKES Attorneys for Plaintiff

Q:\CLIENT\2157 May\2. P\2.1 CASE\Complaint.final.083012.wpd

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