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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION

DANIELLE CLEVELAND
and DOMINIQUE WICKER,
As Co-Administratrices of the
Estate of Darnell Wicker
PLAINTIFFS,
v.
LOUISVILLE METRO GOVERNMENT
d/b/a LOUISVILLE METRO POLICE
DEPARTMENT
Serve: Mayor Greg Fischer
City Hall
601 W. Jefferson Street
Louisville, KY 40202
and
TAYLOR BANKS
Serve: Officer Taylor Banks
633 W. Jefferson Street
Louisville, KY 40202
and
BEAU GADEGAARD
Serve: Officer Beau Gadegaard
633 W. Jefferson Street
Louisville, KY 40202
and
BRIAN SMITH
Serve: Officer Brian Smith
633 W. Jefferson Street
Louisville, KY 40202

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COMPLAINT WITH DEMAND


FOR JURY TRIAL
CIVIL ACTION NO. 3:16-CV-588-CRS

ELECTRONICALLY FILED

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and
MALCOLM MILLER
Serve: Officer Malcolm Miller
633 W. Jefferson Street
Louisville, KY 40202
and
STEVE CONRAD
Serve: Chief Steve Conrad
633 W. Jefferson Street
Louisville, KY 40202
and
UNKNOWN OFFICERS OF LOUISVILLE
METRO POLICE DEPARTMENT
Serve: Chief Steve Conrad
633 W. Jefferson Street
Louisville, KY 40202
DEFENDANTS

Come the Plaintiffs, Danielle Cleveland and Dominique Wicker, both individually as
daughters of Darnell Wicker and also in their capacity as Co-Administratrices of the Estate of
Darnell Wicker, by and through Counsel, and assert the following Complaint, claims and
averments against the Defendants:
PRELIMINARY STATEMENT
1.

On August 8, 2016, officers Beau Gadegaard and Taylor Banks of the Louisville

Metro Police Department cut off their blue lights and pulled into the Broadleaf Arms apartment
complex (the scene). They rushed out of their police cruiser, charged towards the residence of

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Darnell Wicker and past the already present LMPD Officer Brian Smith. They observed Wicker
slowly walk out his front door without a firearm or knife. The officers did not announce
themselves as law enforcement, did not attempt any de-escalation. Instead, within two seconds
of Wicker becoming visible, and while Wicker was still within two feet of his own front door
and was surrounded by the three officers, Gadegaard opened fire on Wicker with the intent to kill
him. Banks joined Gadegaard in firing, with the two of them firing no fewer than eight shots at
Wicker. Smith, who was the only officer familiar with the scene and the series of events leading
up to the arrival of Gadegaard and Banks, did not fire. The three officers then proceeded to
handcuff Wicker, walk away from Wicker and allow Wicker to bleed to death on the ground
without the officers ever attempting to render any aid to Wicker whatsoever.
2.

The action herein is for the unjustifiable, intentional, unlawful, and malicious

shooting of Wicker and the unreasonable and excessive use of deadly force against Wicker by
the Shooting Officers, both of whom were acting under the color of state law and in violation of
Wickers substantial rights under the Fourth, Eighth and Fourteenth Amendments of the U.S.
Constitution and Sections 2 and 10 of the Kentucky Constitution. This action herein is also for
the reckless, malicious and grossly negligent conduct of the Defendants, including but not
limited to their collective failure to properly render aid to Wicker, thus minimizing his likelihood
of survival following the Shooting; the Defendants intentional and calculated cover-up of
circumstances and evidence surrounding the Shooting; the Defendants deliberate acts of
depriving Wicker of his rights guaranteed by the United States Constitution under the Fourth
Amendment, Eighth Amendment and Fourteenth Amendment, Kentucky statutes and
regulations, the Kentucky Constitution, and all other applicable state and federal laws
implemented to protect Darnell Wicker, including but not limited to those within 42 U.S.C.

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1983.
JURISDICTION AND VENUE
3.

This action is brought under 42 U.S.C. 1983, 1985, 1986 and 1988, KY. Const.

2 and KY. Const. 10, KRS 411.130, KRS 411.133, KRS 446.070, KRS 411.184, KRS
411.186 and all other applicable governing authority and common laws.
4.

This Court has jurisdiction of this action pursuant to 42 U.S.C. 1983 and the

applicable provisions of Kentucky law. This Court has jurisdiction over Plaintiffs state law
claims pursuant to 28 U.S.C. 1367.
5.

This Court is vested with the authority to adjudicate the claims herein pursuant to

42 U.S.C. 1983, as they are for unconscionable and gross violations of the rights and privileges
which are guaranteed to all citizens and which were guaranteed to Wicker by the Fourth, Eighth
and Fourteenth Amendments to the Constitution of the United States, as well as for associated
state laws and tortious conduct as set forth herein. This Court also has jurisdiction over this case
and these claims pursuant to 28 U.S.C. 1331, 28 U.S.C. 1343 and 28 U.S.C. 1441.
6.

Venue is proper pursuant as the Defendants are located in this District and the

events and omissions giving rise to the claims which are the subject of this action occurred
within this District.
PARTIES
7.

Danielle Cleveland and Dominique Wicker, Mr. Wickers surviving daughters,

were appointed as Co-Administratrices of the Estate of Darnell Wicker, on or about August 29,
2016, by the Jefferson District Court, Probate Division, Commonwealth of Kentucky in Case No.
16-P-003742. Danielle and Dominique reside in Jefferson County, Kentucky.
8.

This Complaint is made against the Louisville Metro Police Department

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(LMPD), LMPD officers Beau Gadegaard and Taylor Banks (Banks and Gadegaard are
referred to herein as The Shooting Officers) in both their individual and official capacities,
officer Brian Smith in his individual and official capacity (Smith), officer Malcolm Miller
(Miller) in his individual and official capacities, and chief Steve Conrad both individually and
in his official capacities (Conrad).
9.

All individual Defendants herein were, at all relevant times herein, officers with

the LMPD and will be served at LMPDs address of 633 West Jefferson Street, Louisville KY
40202.
10.

Upon information and belief, Defendant Louisville Metro Government, d/b/a

Louisville Metro Police Department (LMPD), is the employer of the individual Defendants, is
a governmental entity subject to the requirements of 28 U.S.C. 1983 and which was and is
responsible for assuring that the actions, policies and procedures guiding their officers are
constitutional and do not deprive citizens of fundamental guaranteed rights.
FACTS
11.

Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein

and incorporate the same by reference.


12.

The Shootings which are the subject of this action occurred on August 8, 2016, at

Wickers residence of 4509 Broadleaf Drive, Louisville, Kentucky 40216.


13.

That on August 8, 2016 Officer Smith responded to a 911 call at the Broadleaf

Arms Apartments (911 call) made by non-party Denita Jones.


14.

That the 911 call audio states the following:


a.

That Wicker was the boyfriend of the callers mother.

b.

That Wicker was getting his things to leave the apartment.

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c.

That the caller and her mother were at the apartment and had not been
physically threatened or injured.

d.

That Wicker was collecting his items.

e.

That the callers mother entered the apartment and remained in it with
Wicker without being harmed.

f.

That the caller did not believe Wicker had consumed any alcohol or drugs.

g.

That the caller did not believe her mother and Wicker had ever been
involved in any sort of domestic violence situations.

15.

That Wicker, at the time of the 911 call, resided at the apartment to which the

officers were responding.


16.

That Smith, upon information and belief, failed to wait for the Shooting Officers

despite being aware of their intentions to respond to the residence with him.
17.

That Smith, between the time of his arrival and the time of the Shooting Officers

arrival, communicated with the 911 caller and her mother. There were no allegations made to
Smith throughout this time that Wicker possessed a firearm or that he had engaged in any
physical violence. Furthermore, Smith was advised in this time that there was no suspicion of
Wicker being under the influence of alcohol or drugs.
18.

That the Shooting Officers, upon information and belief, initiated a Code 3

response to the residence without following protocol and policy for the same.
19.

That the Shooting Officers unreasonably and unjustifiably cut off their blue lights

prior to entering the parking lot of the apartment complex.


20.

That Smiths blue lights were not activated at any time between his arrival to the

residence and the shooting.

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21.

That neither Smith nor the Shooting Officers ever announced themselves to

Wicker as police officers prior to the Shooting.


22.

That Wicker had less than 2 seconds prior to being shot to determine that he was

being confronted by law enforcement, as the officers never announced themselves and did not
have their lights activated on their cruisers at the scene of the shooting.
23.

That Wicker had a right while at his own residence to protect himself.

24.

That Wicker was under no obligation to drop his tree saw until he had time to

perceive and react to his surroundings and gather an understanding as to why he was being
charged by three men with guns drawn, none of which had announced themselves as law
enforcement officials.
25.

That, upon information and belief, at no time between the time Wicker emerged

from the residence and the time Wicker was shot was Wicker holding a knife.
26.

That upon information and belief, at the time Wicker was shot, he was holding a

tree saw in his right hand.


27.

That Wicker, at the time he was shot, was neither charging nor lunging at any of

the officers.
28.

That at the time the Shooting Officers arrived at the shooting scene, both were

armed with a Conducted Electrical Weapon (referred to herein as taser).


29.

That at the time the Shooting Officers arrived at the shooting scene, both were

armed with an impact weapon.


30.

That, at the time the Shooting Officers arrived at the shooting scene, both were

armed with a chemical agent.


31.

At no time while Smith and the Shooting Officers were at the residence did

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Wicker actively resist arrest.


32.

That the Shooting Officers used more force upon Wicker than that which would

have been reasonable to gain control of Wicker to the extent that gaining control of Wicker was
even necessary or justified under the circumstances.
33.

That the Shooting Officers charged at Wicker and used deadly force upon Wicker

without even attempting to gather an understanding of the scene situation.


34.

That, to the extent Wicker even presented a threat, a taser would have been more

than sufficient to eliminate the threat.


35.

That per LMPD policy, officers should not even escalate their use of force to the

level of a taser if a subject is non-compliant without a manifestation of active aggression through


active physical means. As such, the Shooting Officers should not have even risen to the level of
taser use, let alone a firearm, due to Wickers lack of active physical aggression.
36.

That the Shooting Officers shot Wicker to death on the property of Wickers own

residence.
37.

That, upon information and belief, none of the Defendants attempted to verify

Wickers home address prior to The Shooting. Had they done so, they would have verified that
Wicker lived in the apartment to which Smith responded.
38.

That a substantial portion of the Shooting Officers response to the scene was in

Code 3 (lights and sirens).


39.

That the officers are bound by LMPD regulations which require strict compliance

relative to Code 3 responses.


40.

That the Shooting Officers did not comply with several of the Code 3 response

regulations when they responded Code 3 to the scene, including but not limited to justifying the

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need for the response, communicating with a commanding officer regarding the response and
preserving the audio associated with the response.
41.

That there has been no explanation given by the Defendants as to why, prior to

turning into the Broadleaf Arms Apartments, the Shooting Officers cut the previously engaged
blue lights off from their cruiser.
42.

That the cruiser in which the Shooting Officers responded to the shooting scene

was activated with a Mobile Video System (MVS) which included an Arbitrator Digital Camera,
microphone and associated audio recording device.
43.

That pursuant to LMPD SOPs, Gadegaard and Banks were to be trained in the

operation of the MVS before engaging in the use of the equipment. The equipment was the
responsibility of the officer to whom the cruiser was assigned and the officer was responsible,
prior to coming on duty for doing a check and confirming the following:
a.

That the microphone functioned properly and synced with the MVS.

b.

That the vehicle ID was accurate on the Arbitrator.

c.

That the member name was accurate on the Arbitrator.

d.

That the Agency, Unit, Shift, and Area were all accurate on the Arbitrator.

e.

That if the MVS was not functioning properly, that the on-duty supervisor
was notified.

44.

That the Defendants have refused to produce any audio recorded by the MVS, the

Arbitrator, or any other recording device which was in the cruisers used by Banks, Smith and/or
Gadegaard on August 8, 2016 prior to the shooting.
45.

That upon information and belief, officer Miller was Smith, Banks, and

Gadegaards Sergeant and commanding officer at the time of The Shooting.

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46.

That Miller, less than 20 minutes after the shooting and while at the scene of the

shooting, advised The Shooting Officers to keep their mouths shut regarding the circumstances
surrounding the shooting.
47.

At the time he was shot, Wicker was not holding a deadly weapon, was not under

arrest, was not suspected of having committed a violent crime, was not attempting to flee and
was not actively resisting arrest.
48.

That the officers did not use any of the non-lethal available options to them,

including but limited to a stun gun, rubber bullets, oral commands, chemical agents or otherwise,
any and all of which were capable of resolving the situation in a non-lethal manner.
49.

That following the shooting, Gadegaard tampered with the crime scene by kicking

the tree saw and by unloading his handgun clip next to the tree saw.
50.

The acts of the individual Defendants herein were ministerial acts.

The

ministerial acts revolve around their individual and collective actions, including but not limited
to the following actions: the use of objectively unreasonable deadly force; the acts of repeatedly
shooting Wicker with an intent to kill when the acts were objectively unreasonable; the actions
of Smith and the Shooting Officers in unreasonably and unjustifiably concealing their presence
as law enforcement by disengaging blue lights prior to scene arrival and not announcing
themselves as law enforcement to Wicker; the unreasonable and unjustifiable immediate
escalation of the response by the Shooting Officers to a deadly force situation; the unreasonable
and unjustifiable charging at Wicker before making any efforts to assess the condition and
intentions of Wicker, who was not armed with a firearm or other deadly weapon and who posed
no threat of inflicting deadly harm upon anyone at the scene; the targeting and sought after
revenge of Wicker by the LMPD due to Wickers alleged officer-involved scuffles from the year

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2003; the failure of LMPD to properly assess the minimum level of threat posed by Wicker as
presented in the 911 call prompting the response; the unjustifiable and unreasonable failures of
Smith and the Shooting Officers to follow or even attempt de-escalation protocols; the
unjustifiable, unreasonable and unconscionable acts of firing repeatedly at Wicker more than
seven times within two seconds of Wicker exiting his residence; the unjustifiable and
unreasonable act of shooting Wicker while he was still on his own property and within two feet
of his own front door; the unreasonable and unjustified use of deadly force without utilizing
other forms of appropriate force, to the extent that any use of force whatsoever was necessary;
the unjustified and unreasonable tampering of evidence and the crime scene following the
Shooting; the unjustified and unreasonable failure to render aid; the unjustified and unreasonable
failures of Smith and the Shooting Officers to not announce themselves to Wicker as law
enforcement; the unjustified and unreasonable failure of Gadegaard to not activate his wearable
video (bodycam) during his Code 3 response, arrival at the scene and during the events leading
up to and after the Shooting; the deliberate action by Smith in pointing his bodycam recorded
area to the ground so that he could assure that the actions in front of him were not being
documented by his camera; the unjustified and unreasonable failures of Banks to maintain the
position of his bodycam in a manner which would record the actions in front of him in a
reasonably prudent manner and increase the likelihood that the actions associated with critical
incidents would be captured on video; the unjustified and unreasonable failure of the Shooting
Officers to activate audio and video upon going to a Code 3 status in responding to the scene; the
unjustified and unreasonable act of Smith responding to the scene without the Shooting Officers,
rather than simply waiting for them to meet Smith at the planned off-site area; the unjustified and
unreasonable failure of the Shooting Officers to gather information concerning the ongoing

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actions at the scene and remain reasonably updated from Smith while responding to the scene;
the failure of all Defendants to communicate regarding Smiths observations and preliminary
observations at the scene prior to the arrival at the scene by the Shooting Officers; the unjustified
and unreasonable use of deadly force upon an individual who neither had a gun nor a knife on his
person and who did not present a threat of death or serious injuries to anyone at the scene of the
shooting at the time of the shooting; the unjustified and unreasonable use of an LMPD vehicle by
Smith and the Shooting Officers which lacked functioning and properly working audio
recording; the deceptive, unreasonable and unjustifiable actions of the LMPD in releasing partial
information to the public as part of a pledge to transparency without informing the public that
the information was an incomplete and inaccurate representation of the actual evidence; the
unreasonable and unjustifiable failure of the Defendants to even determine where Wicker resided
and whether Wicker in fact resided at the residence to which the response was made; the
unreasonable and unjustifiable actions of the LMPD in suggesting to the responding officers that
immediate escalation to high levels of force were necessary and authorized; the acts of seizing
Wicker within the meaning of the Fourth Amendment and in violation of his constitutional
rights; the acts of Miller in advising the Shooting Officers to not cooperate with the investigation
and to keep their mouths shut; and the Shooting Officers unreasonable and unjustifiable
action of repeatedly shooting Wicker with an intent to kill him while Wicker was lawfully on the
premises of his own residence.
VIOLATION OF 42 U.S.C. 1983:
DEPRIVATION OF CONSTITUTIONAL RIGHTS
51.

Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein

and incorporate the same by reference.

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52.

That the conduct of the Defendants was subject to 42 U.S.C. 1983, 1985, 1986,

and 1988.
53.

The Defendants, acting under color of law, deprived Wicker of his substantial

rights secured by the United States Constitution and other laws, along with his constitutional
right to equal protection of the laws.
54.

Defendants violated Wickers rights guaranteed to him by the United States

Constitution, in that the Defendants used excessive force in violation of the Fourth Amendment,
were deliberately indifferent to Wickers medical needs in violation the Eighth and Fourteenth
Amendments, and deprived him of life and liberty without due process of law in violation of the
Due Process Clause of the Fourteenth Amendment.
55.

The actions of the Defendants herein were of a nature which shocks the

conscience and violated the fundamental protected due process rights of Wicker.
56.

The conduct of the Defendants violated clearly established constitutional rights of

which a reasonable person would have known.


57.

Neither of the Shooting Officers had an objectively reasonable basis to believe

that Wicker presented a risk of causing death or serious injury at the time when they repeatedly
shot at Wicker with deadly force and with an intent to kill him. Defendants, acting under color of
state law, deprived Darnell Wicker of his constitutional rights and are thus subject to liability
under 42 U.S.C. 1983.
58.

The use of deadly force by the Shooting Officers against Wicker was objectively

unreasonable.
59.

From a perspective of any reasonable officer on the scene, the actions and

excessive and deadly force of the Defendant officers herein were objectively unreasonable in

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light of the facts and circumstances confronting them, regardless of the underlying intentions and
motivations.
60.

The actions of the Defendants, jointly and severally, constituted a governmental

termination of Wickers freedom of movement through means intentionally applied to Wicker.


61.

At no time while Smith and the Shooting Officers were at the residence did

Wicker try to escape the officers or convey an intent to escape.


62.

At no time prior to the shooting while Smith and the Shooting Officers were at the

residence did they suspect or have a reasonable basis to suspect that Wicker had earlier that
morning or in the prior evening committed a crime involving the infliction of serious bodily
harm upon anyone.
63.

The Shooting Officers, rather than making a good faith effort to maintain or

restore discipline, instead applied deadly force upon Wicker to maliciously and sadistically cause
harm.
64.

That the actions of the Defendants against Wicker were arbitrary and wrongful

government actions.
65.

That the Defendants unjustifiably deprived Wicker of life and his liberties without

due process of law.


66.

The conduct of the Defendants were intentional, were in gross violation of known

lawful standards for using force, and their unlawful actions in this regard rendered it inevitable
that Wicker would be shot numerous times and end up dead or disabled.
67.

The acts and omissions of Defendants, all as alleged herein, constituted a

malicious and deliberate indifference to the rights of Wicker and contributed to Wickers
wrongful death.

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68.

Defendants City of Louisville, Louisville Metropolitan Police Department, and

Chief Steve Conrad had knowledge or, had they diligently exercised their duties to instruct,
supervise, control, and discipline on a continuing basis, should have had knowledge that the
wrongs conspired to be done, as heretofore alleged, were about to be committed. Defendants had
power to prevent or aid in preventing the commission of said wrongs, could have done so by
reasonable diligence, and knowingly, recklessly, or with gross negligence failed or refused to do
so.
69.

Defendants LMPD, Miller and Conrad, either directly or indirectly, under color of

law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of the
Defendant police officers heretofore described.
70.

That the actions of the Defendants were objectively unreasonable, intentional,

reckless, deliberate, wanton and/or malicious, and was indicative of their total, deliberate and
reckless disregard of and indifference toward the life of Wicker, his constitutional rights, and the
risk of harm to him engendered by the conduct of the Defendants.
71.

Despite knowing that Wicker was bleeding to death after being shot repeatedly by

the officers, and was in need of serious medical need, defendants knew of and disregarded a
substantial risk of serious harm to Wickers health and safety by failing to render any aid to him
whatsoever. In doing so, the Defendants possessed sufficiently culpable state of mind in denying
medical care.
72.

When asked by a bystander to render aid to Wicker, the officers specifically

declined to do so despite an obligation to do so under their operating procedures and a


requirement that they were to have training to be capable of rendering aid.
73.

The officers had or should have had the ability to assess the rapidly deteriorating

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condition of Wicker and the approximate time it would take for EMS to arrive; the officers knew
or should have known that their aid and intervention was necessary to increase the likelihood of
Wickers survival and despite this, neglected to attempt rendering any aid whatsoever.
74.

That Millers orders to the officers to keep their mouths shut was blatant

tampering with the investigation and a violation of LMPDs policy and pledge to assure
transparency and honesty in investigations.
75.

That the officers failed to provide a reasonable opportunity or time for de-

escalation efforts. There is no lawful explanation for opening fire on Wicker with an intent to
kill in such a quick manner.
76.

That Banks and Gadegaard failed to investigate the situation prior to rushing at

Wicker with an intent to shoot and kill.


77.

That the decision of Smith to not engage in the use of deadly force further

substantiates the unreasonableness of Gadegaards failure to confer with Smith upon arrival and
instead simply choosing to shoot at Wicker with an intent to kill.
78.

That Banks and Gadegaards acts of continuous fire by way of more than seven

shots constituted unreasonable and unconstitutional excessive deadly force against Wicker.
79.

That Banks and Gadegaard used excessive, unwarranted and unjustifiable deadly

force against Wicker even after shooting him repeatedly, as they grabbed Wickers hands and
aggressively handcuffed Wicker while Wicker was gasping for air and bleeding out.
80.

That the officers violated policy by not using any of the non-lethal available

options to them, including but limited to a stun gun, rubber bullets, oral commands, chemical
agents or otherwise.
81.

Smiths willful failures to control the situation and to instead permit Gadegaard to

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charge at Wicker with a drawn firearm were unreasonable and unjustifiable violations of policy
and a reckless and malicious deviation from reasonable officer standards, all of which amounted
to a deprivation of Wickers constitutionally protected rights.
NEGLIGENCE, GROSS NEGLIGENCE AND NEGLIGENCE PER SE
82.

Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein

and incorporate the same by reference.


83.

That as a result of the aforementioned conduct, the defendant officers breached

their respective duties of care to or in favor of Mr. Wicker and were negligent and/or grossly
negligent.
84.

That each of the defendant officers, on August 8, 2016, knew or should have

known of their obligations to comply with the requirements of LMPD Standard Operating
Procedures that were in place at the time of The Shooting, including Section 9.1, Use of Force.
85.

That LMPD Standard Operating Procedures 9.1.2 which specifically provides

that officers should attempt to control a situation through the use of de-escalation tactics and
reasonable physical force, including deadly force, may not be resorted to unless other reasonable
alternatives have been exhausted.
86.

The Shooting Officers violated LMPD Standard Operating Procedures 9.1.2 by

charging at Wicker and giving him no adequate time to perceive, process and react to what was
happening prior to using unreasonable deadly force and shooting Wicker repeatedly.
87.

That the Shooting Officers violated LMPD Standard Operating Procedures 9.1.2

which specifically provides that it is the policy of LMPD that all members recognize the
importance of human life, respect basic human rights, and should utilize only the force
reasonable under the circumstances in an attempt to minimize the possibility of injury to

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themselves and to others.


88.

The actions of shooting Wicker repeatedly with an intent to kill disregarded the

importance of human life, disrespected human rights and was an unreasonable attempt to
minimize the possibility of injury.
89.

That the Defendants violated LMPD Standard Operating Procedures 9.1.3

which specifically requires officers to exercise control of a situation when reasonable by utilizing
de-escalation tactics, such as gathering information about the incident, attempting to slow
momentum in order to communicate and coordinate a response.
90.

That upon arriving at the scene, the Shooting Officers failed to gather any

information, let alone sufficient information regarding the state of events. The Shooting Officers
instead escalated the situation by aggressively charging at Wicker and drawing their firearms
without announcing themselves as officers.
91.

That the officers violated LMPD Standard Operating Procedures 9.1.4 which

specifically sets forth a continuum for the progression of force which should have been relied
upon by the Shooting Officers, given the lack of an immediate threat of severe injury or death.
The officers failed to even start with the policy of identifying officer presence (the least amount
of force needed), failed to determine the reasonable force to gain control, failed to use good
judgment and disregarded the progression of force scale, advancing with their weapons already
drawn and then further escalating the force from less than two seconds of verbal direction to
deadly force.
92.

That the Defendants violated LMPD Standard Operating Procedures 8.36.2

which sets forth that the first officer to arrive at a major crime scene will perform and/or request
any assistance needed to perform a number of functions, including aiding the injured, until

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relieved by another supervisor or lead investigator.


93.

That Smith, Gadegaard, and Banks failed to provide aid to Wicker at any point in

94.

The Defendants and their conduct, jointly and severally, were negligent, grossly

time.

negligent, malicious, willful and wanton through a course of action which showed an utter and
flagrant indifference and conscious disregard for the safety of others, including Darnell Wicker
in one or more of the following respects:
a.

Failing to reasonably assess the situation based on facts known to the


officers at the time they arrived on the scene;

b.

Recklessly firing their firearms at Wicker within two seconds of Wicker


exiting his home under circumstances where Wicker posed no threat of
danger either to the Officers or the public which could not have been
mitigated by much lesser degrees of force;

c.

Failing to communicate with the on-scene officer prior to rushing Wicker


and shooting him to death;

d.

Escalating to deadly force when the use of deadly force was unjustified
and unreasonable;

e.

Permitting Gadegaard to respond to situations in this manner despite


Gadegaard possessing a history which rendered him to be an unreasonable
risk of harm to the department and the public;

f.

Continuing to shoot Wicker under circumstances where Wicker was


subdued;

g.

Failing to adhere to LMPD Standard Operating Procedures; and,

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h.

Responding to a scene in Code 3 without following the protocol for the


same.

95.

That, pursuant to KRS 446.070, [a] person injured by the violation of any

statute may recover from the offender such damages as [s]he sustained by the reason of the
violation although a penalty or forfeiture is imposed for such violation.
96.

That pursuant to KRS 446.070, Plaintiffs suffered damages which were a direct

and proximate result of Defendants statutory violations.


97.

That, to the extent that there is no audio associated with the MVS and Arbitrator

video of Bankss and Gadegaards response to the shooting scene, then the Defendants willfully
violated section 4.1.5 of their Standard Operating Procedures (SOPs).
98.

That the failure of the Defendants to record or preserve in car audio on the date of

the shooting violates the purpose of the SOP 4.1.1, which states that LMPD has adopted the
use of in-car audio/video recording systems for the purpose of documenting official actions taken
by officers of the department and that in-car recording equipment enhances officer safety, assists
in the documentation of events made during motor vehicle stops and other critical incidents and
enhances the prosecution of law violations.
99.

That had Officer Smith activated his lights upon arrival to the shooting scene, his

MVS would have activated and potentially recorded the shooting and other critical evidence.
The failure of Smith to activate his lights was a failure to follow critical LMPD policy, a failure
to alert Wicker to the presence of on-site police officers, and a failure to assure recording of a
critical incident.
100.

That the Shooting Officers violated LMPD policy by engaging in Code 3

emergency vehicular operations without recording the audio in their cruiser throughout the

20

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duration of the Code 3 response.


101.

That the Shooting Officers violated LMPD policy by occupying a cruiser with an

MVS and Arbitrator without at least one of the officers wearing a microphone to record audio
and by not recording audio in their cruiser throughout the duration of the Code 3 response.
102.

That the Shooting Officers violated LMPD policy by using the MVS without an

activated wireless microphone at all times and without an activated Wearable Video System
(WVS). As confirmed by LMPD policy, the failure to activate the microphone results in a
failure of the officers to provide narration with the video recording.
103.

Officer Gadegaard violated LMPD policy by failing to activate his WVS both

prior to his Code 3 response and prior to shooting Darnell Wicker.


104.

Officers Banks and Smith violated LMPD policy by failing to position their

WVSs in a manner which would assure that a proper visual field would be captured.
105.

The acts of the individual Defendants herein were ministerial acts.

The

ministerial acts revolve around their individual and collective actions, including but not limited
to the following actions: the used of objectively unreasonable deadly force; the acts of repeatedly
shooting Wicker with an intent to kill when the acts were objectively unreasonable; the actions
of Smith and the Shooting Officers in unreasonably and unjustifiably concealing their presence
as law enforcement by disengaging blue lights prior to scene arrival and not announcing
themselves as law enforcement to Wicker; the unreasonable and unjustifiable immediate
escalation of the response by the Shooting Officers to a deadly force situation; the unreasonable
and unjustifiable charging at Wicker before making any efforts to assess the condition and
intentions of Wicker, who was not armed with a firearm or other deadly weapon and who posed
no threat of inflicting deadly harm upon anyone at the scene; the targeting and sought after

21

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revenge of Wicker by the LMPD due to Wickers alleged officer-involved scuffles from the year
2003; the failure of LMPD to properly assess the minimum level of threat posed by Wicker as
presented in the 911 call prompting the response; the unjustifiable and unreasonable failures of
Smith and the Shooting Officers to follow or even attempt de-escalation protocols; the
unjustifiable, unreasonable and unconscionable acts of firing repeatedly at Wicker more than
seven times within two seconds of Wicker exiting his residence; the unjustifiable and
unreasonable act of shooting Wicker while he was still on his own property and within two feet
of his own front door; the unreasonable and unjustified use of deadly force without utilizing
other forms of appropriate force, to the extent that any use of force whatsoever was necessary;
the unjustified and unreasonable tampering of evidence and the crime scene following the
Shooting; the unjustified and unreasonable failure to render aid; the unjustified and unreasonable
failures of Smith and the Shooting Officers to not announce themselves to Wicker as law
enforcement; the unjustified and unreasonable failure of Gadegaard to not activate his wearable
video (bodycam) during his Code 3 response, arrival at the scene and during the events leading
up to and after the Shooting; the deliberate action by Smith in pointing his bodycam recorded
area to the ground so that he could assure that the actions in front of him were not being
documented by his camera; the unjustified and unreasonable failures of Banks to maintain the
position of his bodycam in a manner which would record the actions in front of him in a
reasonably prudent manner and increase the likelihood that the actions associated with critical
incidents would be captured on video; the unjustified and unreasonable failure of the Shooting
Officers to activate audio and video upon going to a Code 3 status in responding to the scene; the
unjustified and unreasonable act of Smith responding to the scene without the Shooting Officers,
rather than simply waiting for them to meet Smith at the planned off-site area; the unjustified and

22

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unreasonable failure of the Shooting Officers to gather information concerning the ongoing
actions at the scene and remain reasonably updated from Smith while responding to the scene;
the failure of all Defendants to communicate regarding Smiths observations and preliminary
observations at the scene prior to the arrival at the scene by the Shooting Officers; the unjustified
and unreasonable use of deadly force upon an individual who neither had a gun nor a knife on his
person and who did not present a threat of death or serious injuries to anyone at the scene of the
shooting at the time of the shooting; the unjustified and unreasonable use of an LMPD vehicle by
Smith and the Shooting Officers which lacked functioning and properly working audio
recording; the deceptive, unreasonable and unjustifiable actions of the LMPD in releasing partial
information to the public as part of a pledge to transparency without informing the public that
the information was an incomplete and inaccurate representation of the actual evidence; the
unreasonable and unjustifiable failure of the Defendants to even determine where Wicker resided
and whether Wicker in fact resided at the residence to which the response was made; the
unreasonable and unjustifiable actions of the LMPD in suggesting to the responding officers that
immediate escalation to high levels of force were necessary and authorized; the acts of seizing
Wicker within the meaning of the Fourth Amendment and in violation of his constitutional
rights; the acts of the Miller in advising the Shooting Officers to not cooperate with the
investigation and to keep their mouths shut, and the Shooting Officers unreasonable and
unjustifiable action of repeatedly shooting Wicker with an intent to kill him while Wicker was
lawfully on the premises of his own residence.
NEGLIGENT HIRING, TRAINING, SUPERVISION AND RETENTION
106.

Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein

and incorporate the same by reference.

23

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107.

That LMPD, Conrad, and Miller failed to properly screen, employ, train and

supervise the Shooting Officers so as to assure that these officers observed and followed
applicable constitutional and LMPD standards relating to the conduct of their duties, with said
failures amounting to a deliberate indifference to the rights of Wicker and other citizens.
108.

LMPD and Conrad knew or, in the exercise of reasonable diligence should have

known, that LMPD facilitates the very type of misconduct at issue here by failing to adequately
train, supervise, investigate, punish and discipline instances of similar misconduct by its officers,
thereby leading LMPD officers to believe their actions will never be properly scrutinized and, in
that way, directly encouraging future abuses such as those affecting Plaintiffs.
109.

That the training of LMPD and Conrad to the Shooting Officers on the rendering

of aid to victims such as Wicker was grossly inadequate, malicious, reckless, intentional,
unjustified, unreasonable and/or grossly negligent.
110.

The deficiencies in LMPD and Conrads hiring, training and retention programs

were direct and proximate causes of Wickers injuries and damages.


111.

That the failure to train the Shooting Officers as to the constitutional limitations

on the use of deadly force amounted to a malicious deliberate indifference to the value of human
life.
112.

That LMPD, Conrad and Miller, as supervisors of the Shooting Officers and

Smith, by way of their actions and failures to act, served to encourage the conduct of the
Shooting Officers and Smith. Specifically, by way of failing to manage the Code 3 response of
the Shooting Officers, failing to properly train on use of force, failing to train on de-escalation,
failing to recognize the obvious red flags in Gadegaards background which put him at a high
risk of using excessive and unjustifiable force, and failing to assess the facts available to them

24

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without exerting a bias towards Wicker, said Defendants willfully created an unreasonable and
unjustifiable risk of death or bodily harm to Wicker.
113.

That upon information and belief, LMPD hired and retained Gadegaard, despite

either knowing or should have knowing the following:


a.

That Gadegaard was a certified Krav Maga instructor, thus teaching and
promoting this Israeli system of self-defense which promotes attacking
pre-emptively, finishing a fight as quickly as possible, attacking the most
vulnerable parts of the body and using lethal force to finish a fight quickly.

b.

That Gadegaard had an emergency protective order issued against him


while working as an LMPD officer.

c.

That Gadegaard, prior to starting with LMPD, was deemed physically


and/or mentally disabled by the Veterans Administration and has since
received benefits for the disability.

d.

That Gadegaard, prior to starting with LMPD, had falsified prior law
enforcement applications by neglecting to disclose his disability.

e.

That Gadegaard was a collector of firearms and specifically, that he


actively posted in public records regarding his efforts to purchase semiautomatic rifles for personal tactical and recreational use.

f.

That Gadegaard had a plethora of collateral stressors facing him


throughout his time with LMPD, any and all of which would potentially
impede upon his ability to retain the ability to make objectively reasonable
decisions in important law enforcement situations. These include, but are
not limited to, a recent diagnosis of adjustment disorder with anxiety,

25

Case 3:16-cv-00588-CRS Document 1 Filed 09/12/16 Page 26 of 30 PageID #: 26

counseling related to work-related stress and home-related stress, being


the subject of multiple investigations by Child Protective Services, and
involvement as a party in contentious child custody litigation with
allegations of physical violence and mental abuse;
g.

That Gadegaard, upon information and belief, has had to resort to cage
fighting over the past several years as one outlet to release anger.

h.

That Gadegaard has repeatedly been observed after LMPD shifts with
signs of injury to his hands and knuckles and has made statements that a
day without physical confrontations in his LMPD shift is a boring day
while a day which involves physical confrontations with suspects is what
gives him excitement on the job.

i.

That Gadegaards profession prior to law enforcement was a professional


machine gunner and, upon information and belief, he was taught rules of
engagement which differ greatly from those which are to be utilized
within domestic law enforcement.
ASSAULT AND BATTERY

114.

Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein

and incorporate the same by reference.


115.

That the actions of the Shooting Officers constituted offensive physical conduct

without the consent of Wicker.


116.

That the actions of the Shooting Officers were undertaken intentionally, willfully

and wantonly.
117.

That as a result of the aforementioned conduct of the Shooting Officers, Banks

26

Case 3:16-cv-00588-CRS Document 1 Filed 09/12/16 Page 27 of 30 PageID #: 27

and Gadegaard committed assault and battery upon Wicker.


118.

With utter indifference and conscious disregard, the Shooting Officers used

deadly force against Wicker under circumstances where Wicker posed no reasonable threat of
serious injury or death to the Officers.
119.

That as a result of the aforementioned conduct, the Defendants caused Wicker to

suffer substantial injury and death.


GROSSLY NEGLIGENT HIRING, TRAINING & RETENTION
120.

That Conrad and LMPD were negligent in hiring, training, retaining, and

supervising the Defendant Officers.


SPOLIATION AND MALICIOUS DESTRUCTION OF EVIDENCE
121.

Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein

and incorporate the same by reference.


122.

That the cruiser in which the Shooting Officers responded to the shooting scene

was activated with a Mobile Video System (MVS) which included an Arbitrator Digital Camera.
123.

That the Defendants have destroyed or willfully refused to produce the recorded

by the MVS, the Arbitrator, and from any other recording device which was in the cruisers used
by Banks, Smith and/or Gadegaard on August 8, 2016 prior to the shooting.
124.

That the Defendants have destroyed or willfully refused to produce the recording

from LMPD radio and service channels for the four hours surrounding the shooting, other than
an edited eight minute snippet.
125.

That the denial and failure of the Defendants to secure and produce the critical

audio and video evidence is both a violation of LMPD policy and also a willful and malicious
spoliation of critical evidence, thereby entitling the Plaintiffs to remedies for the same at trial.

27

Case 3:16-cv-00588-CRS Document 1 Filed 09/12/16 Page 28 of 30 PageID #: 28

This includes but is not limited to an adverse jury instruction against the Defendants.
126.

By failing to produce and/or destroying the in-car audio of Banks, Smith, Miller,

and Gadegaard, the Defendants have violated internal policies and engaged in a conspired effort
to withhold critical evidence and have willfully engaged in the spoliation of evidence.
DAMAGES
127.

Plaintiffs adopt and reiterate each and every allegation as if set forth fully herein

and incorporate the same by reference.


128.

Plaintiffs are entitled to recover from Defendants all damages that they are

entitled to recover under KRS 411.130, including, but not limited to, damages for the medical,
funeral, and burial expenses incurred; for the great pain and suffering endured by Darnell Wicker
prior to his death; for the loss of earnings and replacement services secondary to Wickers
untimely death; for the loss of enjoyment of life of Darnell Wicker; for the loss of
companionship and society of Darnell Wicker; for punitive damages secondary to the grossly
negligent and malicious conduct of the Defendants, and for all other damages to which Plaintiffs
may be entitled secondary to Wickers wrongful death.
129.

Pursuant to KRS 411.133, claims are made herein for Wickers personal

injuries. Damages sought herein include those for Wickers wrongful death, his mental and
physical pain, suffering and emotional duress, his pre-death fright, his destruction of power to
labor and earn, punitive damages secondary to the individual and joint conduct of the
Defendants, attorney fees and all expenses associated with prosecuting this action, prejudgment
and post-judgment interest, and all other damages to which the Plaintiffs herein are entitled.
130.

The damages sought herein were directly and proximately caused by the

Defendants.

28

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131.

The Plaintiffs seek prejudgment and post-judgment interest.

132.

The Plaintiffs seek punitive damages.

133.

The Plaintiffs seek attorney fees and case costs.

WHEREFORE, Plaintiffs, by counsel, demands as follows:


1.

A trial by jury;

2.

For Summons and Complaint to be issued against the Defendants;

3.

That the Plaintiffs obtain judgment against the Defendants in an amount the jury
believes to be just, fair and equitable, given the facts and after hearing the issues
in this case;

4.

For all such further and general relief which this Court deems just and proper;

5.

That a sum of money for punitive damages be awarded to Plaintiffs;

6.

That attorney fees, the costs of pursuing this action, pre-judgment and postjudgment interest be awarded to Plaintiffs;

7.

For this Court to promptly order preservation and production of critical evidence;

8.

For this Court to determine whether it is electing to exercise jurisdiction and


adjudicate the state law claims against the Defendant; and

9.

That the Plaintiffs receive all relief to which they are entitled, including but not
limited to the right to amend this action, for all remedies to which Plaintiffs are
entitled due to Defendants spoliation of evidence.

29

Case 3:16-cv-00588-CRS Document 1 Filed 09/12/16 Page 30 of 30 PageID #: 30

Respectfully submitted,
SAM AGUIAR INJURY LAWYERS, PLLC

/s/ Sam Aguiar


Sam Aguiar
Jonathan B. Hollan
1201 Story Avenue, Suite 301
Louisville, KY 40206
Telephone: (502) 400-6969
Facsimile: (502) 491-3946
sam@kylawoffice.com
jhollan@kylawoffice.com
Counsel for Plaintiffs

30

JS 44 (Rev. 0/16)

Case 3:16-cv-00588-CRS Document 1-1 Filed 09/12/16 Page 1 of 1 PageID #: 31


3:16-CV-588-CRS
CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

DANIELLE CLEVELAND and DOMINQUIE WICKER, as


Co-Administratrices of the Estate of Darnell Wicker

(b) County of Residence of First Listed Plaintiff

LOUISIVLLE METRO GOVERNMENT d/b/a LOUISVILLE METRO


POLICE DEPARTMENT, ET AL.

JEFFERSON

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)


NOTE:

(c) Attorneys (Firm Name, Address, and Telephone Number)

JEFFERSON

(IN U.S. PLAINTIFF CASES ONLY)


IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

Sam Aguiar and Jonathan B. Hollan, Sam Aguiar Injury Lawyers, PLLC
1201 Story Avenue, Suite 301, Louisville, KY 40206
Tel: (502) 888-888

II. BASIS OF JURISDICTION (Place an X in One Box Only)


u 1

U.S. Government
Plaintiff

u 3

Federal Question
(U.S. Government Not a Party)

u 2

U.S. Government
Defendant

u 4

Diversity
(Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff


(For Diversity Cases Only)
PTF
Citizen of This State
u 1

DEF
u 1

and One Box for Defendant)


PTF
DEF
Incorporated or Principal Place
u 4
u 4
of Business In This State

Citizen of Another State

u 2

Incorporated and Principal Place


of Business In Another State

u 5

u 5

Citizen or Subject of a
Foreign Country

u 3

Foreign Nation

u 6

u 6

IV. NATURE OF SUIT (Place an X in One Box Only)


CONTRACT
u
u
u
u
u
u
u

u
u
u
u
u

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

u
u
u
u
u
u
u
u
u
u

u
u
u
u
u
u

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

u
u
u
u
u
u
u

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

FORFEITURE/PENALTY

PERSONAL INJURY
u 365 Personal Injury Product Liability
u 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
u 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
u 370 Other Fraud
u 371 Truth in Lending
u 380 Other Personal
Property Damage
u 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
u 463 Alien Detainee
u 510 Motions to Vacate
Sentence
u 530 General
u 535 Death Penalty
Other:
u 540 Mandamus & Other
u 550 Civil Rights
u 555 Prison Condition
u 560 Civil Detainee Conditions of
Confinement

u 625 Drug Related Seizure


of Property 21 USC 881
u 690 Other

BANKRUPTCY
u 422 Appeal 28 USC 158
u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
u 820 Copyrights
u 830 Patent
u 840 Trademark

LABOR
u 710 Fair Labor Standards
Act
u 720 Labor/Management
Relations
u 740 Railway Labor Act
u 751 Family and Medical
Leave Act
u 790 Other Labor Litigation
u 791 Employee Retirement
Income Security Act

u
u
u
u
u

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

FEDERAL TAX SUITS


u 870 Taxes (U.S. Plaintiff
or Defendant)
u 871 IRSThird Party
26 USC 7609

IMMIGRATION
u 462 Naturalization Application
u 465 Other Immigration
Actions

OTHER STATUTES
u 375 False Claims Act
u 376 Qui Tam (31 USC
3729(a))
u 400 State Reapportionment
u 410 Antitrust
u 430 Banks and Banking
u 450 Commerce
u 460 Deportation
u 470 Racketeer Influenced and
Corrupt Organizations
u 480 Consumer Credit
u 490 Cable/Sat TV
u 850 Securities/Commodities/
Exchange
u 890 Other Statutory Actions
u 891 Agricultural Acts
u 893 Environmental Matters
u 895 Freedom of Information
Act
u 896 Arbitration
u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an X in One Box Only)


u 1 Original
Proceeding

u 2 Removed from
State Court

u 3

u 6 Multidistrict
Litigation Transfer
(specify)
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Remanded from
Appellate Court

u 4 Reinstated or
Reopened

u 5 Transferred from
Another District

u 8 Multidistrict
Litigation Direct File

42 U.S.C. 1983

VI. CAUSE OF ACTION Brief description of cause:

Unjustified police shooting

DEMAND $
u CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
An amount in excess of $75,000
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

CHECK YES only if demanded in complaint:


u Yes
u No
JURY DEMAND:

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ Sam Aguiar

09/12/2016
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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