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4:17-cv-03079-RGK-SMB Doc # 1 Filed: 06/26/17 Page 1 of 19 - Page ID # 1

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEBRASKA

TIMOTHY CRONIN AND JOSHUA NO.


FULLERTON,

Plaintiffs, COMPLAINT
AND JURY DEMAND
vs.

CITY OF LINCOLN, CHRIS PETERSON,


JAMES PESCHONG, BRIAN JACKSON,
TONYA PETERS, WILLIAM KOEPKE,
AND DAREN REYNOLDS

Defendants.

COME NOW Plaintiffs, Timothy Cronin and Joshua Fullerton, and for their causes

of action against the Defendants state as follows:

PARTIES, JURISDICTION, AND VENUE

1. This action is based on the provisions of 42 U.S.C. 1983. This Court has

supplemental jurisdiction over the Plaintiffs state law claims pursuant to 28 U.S.C.

1367.

2. Venue is appropriate pursuant to 28 U.S.C. 1391(b) because it is brought in a

judicial district where all of the defendants reside and in which a substantial part of

the events giving rise to the claims occurred.

3. Timothy Cronin (hereinafter Cronin) is, and was at all times material hereto a

citizen of the United States, a resident of Lancaster County, Nebraska, and over

twenty-one years of age.

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4. Cronin has been a Police Officer with the Lincoln Police Department since May 11,

2000.

5. Joshua Fullerton (hereinafter Fullerton) is, and was at all times material hereto a

citizen of the United States, a resident of Lancaster County, Nebraska, and over

twenty-one years of age.

6. Fullerton has been a Police Officer with the Lincoln Police Department since

February 4, 2010.

7. City of Lincoln (hereinafter Lincoln) is a municipal corporation in Lancaster

County, Nebraska, existing under the laws of Nebraska.

8. Chris Peterson (hereinafter Peterson) is, and was at all times material hereto a

citizen of the United States, a resident of Lancaster County, Nebraska, and over

twenty-one years of age.

9. At all times material hereto, Peterson has been a Captain with the Lincoln Police

Department.

10. James Peschong (hereinafter Peschong) is, and was at all times material hereto a

citizen of the United States, a resident of Lancaster County, Nebraska, and over

twenty-one years of age.

11. At all times material hereto Peschong was the Chief of the Lincoln Police

Department.

12. Brian Jackson (hereinafter Jackson) is, and was at all times material hereto a citizen

of the United States, a resident of Lancaster County, Nebraska, and over twenty-one

years of age.

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13. At all times material hereto Jackson was the Assistant Chief of the Lincoln Police

Department.

14. Tonya Peters (hereinafter Peters) is, and was at all times material hereto a citizen of

the United States, a resident of Lancaster County, Nebraska, and over twenty-one

years of age.

15. At all times material hereto Peters was an Assistant City Attorney for the City of

Lincoln and assigned to the Lincoln Police Department as the Police Legal Advisor.

16. William Koepke (hereinafter Koepke) is, and was at all times material hereto a

citizen of the United States, a resident of Lancaster County, Nebraska, and over

twenty-one years of age.

17. At all times material hereto Koepke was a Sergeant with the Lincoln Police

Department.

18. Daren Reynolds (hereinafter Reynolds) is, and was at all times material hereto a

citizen of the United States, a resident of Lancaster County, Nebraska, and over

twenty-one years of age.

19. At all times material hereto Reynolds was a Sergeant with the Lincoln Police

Department.

20. Cronin has previously filed a complaint with the Nebraska Equal Opportunity

Commission. His complaint was denied, his right to sue letter is attached as Exhibit

A, and this action is being timely filed following that denial.

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FACTUAL BACKGROUND

21. Cronin previously worked under the supervision of Peterson within the narcotics unit

of the Lincoln Police Department.

22. When Cronin transitioned to uniform patrol, he continued to perform narcotics

investigations, with the consent and encouragement of his supervisors,.

23. When Cronin began to have success with narcotics arrests and seizures, for unknown

reasons, Peterson began a pattern and practice of interference and harassment against

Cronin and his investigations.

24. Peterson contacted Cronins supervisors and attempted to stop his investigations and

block him from conducting narcotics investigations.

25. On or about July 17, 2014, Cronin applied for specialized training called Desert

Snow.

26. As part of the selection process the command staff met to discuss the applicants, as

only a limited number of applicants would be selected to attend.

27. During the command staff meeting, Cronin had support to attend, including a letter of

recommendation.

28. No command staff members spoke out against him attending in the meeting.

29. Following the command staff selection meeting, Cronins supervisors informed him

that he had been selected to attend.

30. Unbeknownst to other command staff members, following the meeting, Peterson,

continued his pattern and practice of harassment and discrimination against Cronin by

contacting Peschong and lobbying against Cronin attending.

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31. Upon information and belief, Peterson sought out Peschong in private, rather than at

the meeting, so that other command staff members would not have an opportunity to

support Cronin and correct the defamatory and false information Peterson would

allege in support of his ongoing pattern and practices of harassment and interference

against Cronin.

32. On or about August 27, 2014, Cronin filed a complaint against Peterson with the

Police Departments Personnel Sergeant which was forwarded to the Executive

Director of Lincolns Commission on Human Rights for investigation.

33. Defendant City of Lincoln did not thoroughly investigate the claim to learn if and

why Peterson was discriminating, harassing, and creating a hostile work environment

for Cronin.

34. Peterson continued his pattern and practice of harassment and interfering with

Cronins narcotics investigations, among other things.

35. In mid-September 2015, Cronin was contacted by Jackson regarding a complaint

alleging he had interfered with an investigation in Ohio.

36. Cronin had a friend from Powell, Ohio, who operated a nutrition and supplement

store called SupZilla.

37. Cronin had previously purchased legal nutritional supplements from his friends store

to use in conjunction with lifting weights, working out, and overall fitness.

38. Cronins friend in Ohio had been accused of selling illegal steroids and Cronin had

corresponded with him via text messages regarding the investigation and reminded

him of his rights in dealing with the police.

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39. As a result of these text messages a member of the Powell, Ohio police department

purportedly alleged to Jackson that Cronin had interfered with their investigation due

to the text messages.

40. On or about September 23, 2015, in willful ignorance of the ongoing pattern and

practice by Peterson, Peschong and/or Jackson decided to turn over the text messages

to Peterson.

41. There had never been any allegation by Jackson conveyed to Cronin that he was

suspected of using, possessing, or selling illegal steroids.

42. The text messages being turned over to Peterson provided him with an opportunity to

continue his pattern and practice of harassment and discrimination against Cronin and

retaliate for the prior complaint that had been filed with the Personnel Sergeant and

City of Lincoln.

43. Despite the text messages being vague and ambiguous about the products being

purchased, Peterson seized upon this opportunity to continue to harass and

discriminate against Cronin.

44. The actions taken by Peterson based on mere text messages were contrary to the past

practice and usual and ordinary actions taken by the Lincoln Police Department based

upon similar information.

45. Peterson did not request any assistance from the DEA or any other person who is well

versed in the use and nomenclature of illegal steroids to determine if the supplements

being purchased were legal.

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46. Peterson did not conduct thorough internet searches or investigation to determine if

the substances referenced could be legal.

47. Peterson enlisted the assistance of Peters, Koepke, and Reynolds to assist him with

the investigation of Cronin.

48. On or about, September 28, 2015, at approximately 1:30 p.m. Cronin was detained by

Koepke in a conference room at the Lincoln Police Departments Center Team

Station.

49. Cronin was advised that he was being criminally investigated but his interview was

not recorded by audio or video, contrary to Lincoln Police Department policy.

50. Cronin was advised he was not under arrest but he was not free to leave.

51. Cronin was not read his Miranda rights.

52. Cronin asked to have his legal counsel present.

53. Cronin was allowed to call his legal counsel but Koepke refused to leave the room so

he could consult in private with his legal counsel.

54. Cronins legal counsel later arrived at the location where Cronin was being held but

he was not allowed to meet with Cronin despite his request to do so.

55. Peterson, using statements gained from the interview conducted in violation of

Miranda, applied for search warrants for Cronins vehicle, home, blood, urine, and

cellular phone.

56. Peters knew or should have known that the information was obtained in violation of

Miranda, but still assisted with the preparation of search warrants to be presented to

the Court, with critical information omitted.

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57. Peterson intentionally or with a reckless disregard for Cronins rights omitted critical

information in applying for the search warrants, including but not limited to the fact

that Koepke was of the opinion that the items referenced in the text messages were

legal substances, that this was a misunderstanding, and that Cronin stated that he did

not have any substances at his house because they were taken to completion.

58. Upon information and belief, none of the officers involved in the searches were

provided with copies of the search warrants prior to conducting the searches.

59. The Defendants intentionally or with a reckless disregard for Cronins rights

conducted searches without having any knowledge of what was contained in

affidavits, the search warrants or without having full knowledge of the facts,

circumstances, or alleged illegal items or evidence to be seized.

60. Cronins house was searched by Reynolds and other officers with nothing illegal

located.

61. During Koepkes continued unlawful detention of Cronin, he transported Cronin to

Bryan West Hospital for a test of his blood and urine.

62. Under threat of having a catheter physically inserted into his penis to obtain urine,

Cronin was forced to provide a urine sample.

63. Blood was drawn under similar circumstances.

64. A search warrant was issued for Cronins 2015 Toyota 4 Runner based upon the

affidavit and information provided by Peterson.

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65. Instead of the vehicle in the search warrant being searched, Reynolds intentionally or

with a reckless disregard for Cronins rights searched an entirely different vehicle,

Cronins 2009 Ford Escape.

66. The Ford Escape was searched in violation of Cronins constitutional rights as it was

not contained within the warrant, there was no probable cause to search the vehicle,

and consent was not obtained for the search.

67. Nothing was located in Cronins illegally searched vehicle.

68. Officers also searched Cronins police vehicle and police locker.

69. No illegal substances were located in either.

70. Cronin was detained in excess of 6 hours.

71. On or about, September 28, 2015, Fullerton was contacted at his home and

voluntarily turned over the substances he had obtained through Cronin.

72. On or about, September 29, 2015, Peterson contacted Fullerton and requested an

interview.

73. Fullerton was not read Miranda or Garrity warnings.

74. Fullerton asked to consult with his legal counsel.

75. Peterson allowed him to call counsel.

76. Fullerton conveyed that his lawyer advised him not to talk to Peterson and also

conveyed his concern about not talking to Peterson as being perceived as some

indication of guilt.

77. Peterson utilized this fear and his position as a member of the command staff to

manipulate Fullerton into talking with him outside the presence of his legal counsel.

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78. Search warrants or subpoenas were also obtained for the cellular phone records of

Cronin and Fullerton.

79. Search warrants or subpoenas were also obtained for personnel records of Cronin.

80. Search warrants or subpoenas were also obtained for Cronins personal financial

information.

81. Cronins cellular phone was seized on or about September 28, 2015.

82. On or about, October 6, 2015, Cronins blood and urine tests came back as not

containing any illegal substances.

83. On or about, October 8, 2015, the substances seized from Fullerton were determined

to not contain any illegal substances.

84. Despite the fact that these substances were not illegal, they were still not released in a

reasonable time frame to Fullerton after testing.

85. After numerous attempts to access the phone and extensions to execute the search

warrant, on or about October 9, 2015, members of the Lincoln Police Department

destroyed Cronins phone in an alleged effort to extract any information card or chip

within the device.

86. The destruction of his phone destroyed numerous personal photos of his family,

including his newborn daughter, which cannot be replaced, and other sensitive

personal information.

87. This effort was undertaken after Officers had no evidence to support that the text

messages referenced anything illegal.

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88. The chip was sent to an outside source for potential extraction but no evidence was

able to be obtained or extracted.

89. Even though there was no evidence that anything illegal had been done by Cronin, for

several months that followed, Peterson continued his investigation into the

allegations.

90. On or about, December 13, 2015, Peterson continued to try and generate some

evidence against Cronin given their history so he traveled to Powell, Ohio, to conduct

follow up investigation.

91. After two days of investigation in Powell, Ohio, Peterson did not locate any

incriminating evidence against Cronin regarding use of illegal steroids.

92. Peterson continued his activities against Cronin, on or about, January 12, 2016,

Peterson had items seized by Powell, Ohio, police department sent to him.

93. On or about January 15, 2016, Peterson sent foil packaging to the State Lab to be

tested for the presence of illegal substances, even though these items were shipped

from Powell, Ohio, and there was no evidence they had any connection to Cronin.

94. For several more months, Peterson continued his ongoing efforts against Cronin and

attempted to get various prosecutors to bring charges against Cronin.

95. All prosecutors declined to pursue charges because of a lack of evidence Cronin

violated any laws or was ever involved in illegal steroids.

96. During this lengthy ongoing investigation Cronin suffered physical symptoms

because of the significant stress under which he was placed by Peterson and his

ongoing pattern and practice of harassment and discrimination.

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97. Defendant City of Lincoln, Peschong, and Jackson initiated an internal affairs

investigation of Cronin and Fullerton after Peterson could not find a prosecutor to

bring any criminal charges.

98. During a meeting with Jackson he told Cronin that Cronin should let this go and

offered to determine Cronin was exonerated in the internal affairs investigation if

Cronin agreed not pursue any legal remedy.

99. Jackson also admitted that the investigation could have been handled better.

100. Defendants City of Lincoln, Peschong, and Jackson knew or should have known that

the pattern and practice of conduct by Peterson was discriminatory and harassing but

failed to do anything to ensure Cronin was free from a hostile work environment and

retaliation from the prior complaint.

101. Defendants City of Lincoln, Peschong, and Jackson knew or should have known that

the officers lacked probable cause but instead stood by or actively assisted the

officers with the investigation and illegal activities engaged in by Peterson, Koepke,

and Reynolds in support of the pattern and practice of discrimination, harassment, and

retaliation spearheaded by Peterson.

102. As a result of Petersons conduct, Peschong and Jackson have not given Cronin

opportunities for career advancements and specialized positions.

103. Cronin has suffered damages as a result of the actions of Peterson, Peschong, and

Jackson.

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104. Defendants have made defamatory remarks to the other officers, friends, and

members of the public, claiming that Cronin and Fullerton are dirty or otherwise

impugning their reputation.

105. The individual Defendants have engaged in all the activities alleged herein

intentionally, recklessly, willfully, and wantonly in gross disregard for the Plaintiffs

rights.

106. The foregoing actions by each of the Defendants were done within the course and

scope of their respective positions as employees of the City of Lincoln and under

color of law.

COUNT I-VIOLATION OF PLAINTIFFS CONSTITUTIONAL RIGHTS

UNDER THE FOURTH AMENDMENT

107. Plaintiff restates paragraphs 1-106 as if fully set forth herein.

108. Plaintiffs rights under the Fourth Amendment of the U.S. Constitution were violated

by the Defendants including but not limited to the following actions:

a. Illegal and unlawful Arrest of Cronin;

b. Detention of Cronin for an unreasonable period of time under the

circumstances;

c. Unreasonable and illegal search/seizure of Cronins home;

d. Unreasonable and illegal search/seizure of Cronins vehicle;

e. Unreasonable and illegal search/seizure of Cronins person/bodily fluids;

f. Unreasonable detention of Fullerton;

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g. Unreasonable continued seizure of Fullertons property after it was

determined to contain no illegal substances;

h. Intentionally or recklessly failing to provide the Court with full and

complete information when applying for search warrants; and

i. Procuring search warrants without probable cause.

109. Plaintiffs have suffered damages as a direct result of the foregoing misconduct,

including but not limited to:

a. Past and future damages from loss of advancement opportunities and other

economic damages;

b. Past and future pain and suffering, mental suffering, emotional distress,

loss of enjoyment of life, and other non-pecuniary losses; and

c. Past medical expenses.

WHEREFORE, Plaintiffs pray that the Court enter judgment against Defendants

declaring the conduct engaged in by Defendants to be in violation of the Plaintiffs rights and

award attorney fees, damages as set forth herein, punitive damages as allowed by law, and

any other relief the Court deems appropriate.

COUNT II-VIOLATION OF PLAINTIFFS CONSTITUTIONAL RIGHTS

UNDER THE FIFTH AMENDMENT

110. Plaintiffs restate paragraphs 1-109 as if fully set forth herein.

111. Plaintiffs rights under the Fifth Amendment of the U.S. Constitution were violated

by the Defendants, including but not limited to the following actions:

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a. Failing to advise the Plaintiffs of their right to be free from self-

incrimination; and

b. Utilizing statements obtained in violation of the Fifth Amendment to

procure search warrants.

112. Plaintiffs have suffered damages as a direct result of the foregoing misconduct,

including but not limited to:

a. Past and future damages from loss of advancement opportunities and

other economic damages;

b. Past and future pain and suffering, mental suffering, emotional distress,

loss of enjoyment of life, and other non-pecuniary losses; and

c. Past medical expenses.

WHEREFORE, Plaintiffs pray that the Court enter judgment against Defendants

declaring the conduct engaged in by Defendants to be in violation of the Plaintiffs rights and

award attorney fees, damages as set forth herein, punitive damages as allowed by law, and

any other relief the Court deems appropriate.

COUNT III-VIOLATION OF PLAINTIFFS CONSTITUTIONAL RIGHTS

UNDER THE SIXTH AMENDMENT

113. Plaintiffs restate paragraphs 1-112 as if fully set forth herein.

114. Plaintiffs rights under the Sixth Amendment of the U.S. Constitution were violated

by the Defendants, including but not limited to the following actions:

a. Declining to allow the Plaintiffs to confer with legal counsel;

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b. Declining to allow a private conversation between Plaintiffs and legal

counsel;

c. Declining to allow legal counsel to be present during interrogation;

d. Declining to allow legal counsel to speak with Plaintiff when he arrived at

the Center Team Station;

e. Continuing to interrogate Plaintiffs after Counsel had been requested; and

f. Using manipulation and position of power to allow Counsel to not be

present for interrogation.

115. Plaintiffs have suffered damages as a direct result of the foregoing misconduct,

including but not limited to:

a. Past and future damages from loss of advancement opportunities and other

economic damages;

b. Past and future pain and suffering, mental suffering, emotional distress,

loss of enjoyment of life, and other non-pecuniary losses; and

c. Past medical expenses.

WHEREFORE, Plaintiffs pray that the Court enter judgment against Defendants

declaring the conduct engaged in by Defendants to be in violation of the Plaintiffs rights and

award attorney fees, damages as set forth herein, punitive damages as allowed by law, and

any other relief the Court deems appropriate.

COUNT IV- RETALIATION

116. Plaintiffs restate paragraphs 1-115 as if fully set forth herein.

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117. Cronin filed a complaint against Peterson on August 27, 2014, because of his ongoing

pattern and practice of harassment.

118. This complaint was ultimately forwarded to the City of Lincoln for investigation.

119. This complaint was protected speech under the First Amendment of the United States

Constitution.

120. Peterson, upon Peschong giving Peterson the opportunity to investigate Cronin,

enlisted the assistance of Peters, Koepke and Reynolds to engage in severe, extreme,

and unusual measures of investigation as retaliation for Cronins complaint against

Peterson.

121. Said retaliation was in violation of Federal, State, and Local Law which protect

parties who file complaints as such speech is protected by the First Amendment of the

United States Constitution.

122. Plaintiffs have suffered damages as a direct result of the foregoing misconduct,

including but not limited to:

a. Past and future damages from loss of advancement opportunities and other

economic damages;

b. Past and future pain and suffering, mental suffering, emotional distress,

loss of enjoyment of life, and other non-pecuniary losses; and

c. Past medical expenses.

WHEREFORE, Plaintiffs pray that the Court enter judgment against Defendants

declaring the conduct engaged in by Defendants to be in violation of the Plaintiffs rights and

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award attorney fees, damages as set forth herein, punitive damages as allowed by law, and

any other relief the Court deems appropriate.

JURY DEMAND

Plaintiffs demand a trial by jury of all issues.

Respectfully submitted,

______________________________
Douglas L. Phillips
KLASS LAW FIRM, L.L.P.
Mayfair Center, Upper Level
4280 Sergeant Road, Suite 290
Sioux City, IA 51106
phillips@klasslaw.com
WWW.KLASSLAW.COM
712/252-1866
712/252-5822 fax

ATTORNEYS FOR PLAINTIFFS

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/

s4fftc /
Alic ^-ndJi d
NEBRASKA EQUAL ORTUNITY COMMISSION

Timothy M. Cronin, )

Complainant, )
COMMISSION DETERMINATION
)
vs. )
NEB 1-15/16-6-48066-S
)
Lincoln, City of )
Respondent. )
)

A determination has been made in the above-referenced matter before the Nebraska
Equal Opportunity Commission. Pursuant to the Nebraska Fair Employment
Li Practice Act and the Rules and Regulations of the Nebraska Equal Opportunity
Commission, the Commission has officially dismissed this charge.

Wd The evidence fails to support the allegations of discrimination (see attached); and
there is no appeal process. This finding of no reasonable cause is the final
determination of the Commission and completes the handling of the charge. The
deadline for filing an action directly in state district court is 90 days after the receipt

I
of this notice.

Due to the complexity of the law, and other avenues of redress that may exist, you
may wish to consult with an attorney.

The Commission wishes to thank you for your cooperation in the processing of this
MAIN OFFICE: charge.
301 Centennial Mao, South 0
PD Boo 94934
moc'c.,NE6BDO9A$31 R 30 2011..
0a0: 402-471-4059 For the Commission Date
800-642-6112
wwo.NEOO. nebraska .gov

BRANCH OFFICES:
1313 Faroarn SI. Suite 318 0
Onoaho, NE 68102 1836
Phone. 132-595-2028
Fax 402-595-1200
800-382-7820

5050 Broadway Suite 600 0


ScotIshiLlif, NE 69361-3515
Ph,cxe: 308-632-1340
Fax 308-632-1341
800-830-8633

EXHIBIT
A

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