Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 1 of 12.

PageID #: 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRENDAN HESTER, CASE NO.:

c/o Friedman & Gilbert
55 Public Square, Suite 1055 JUDGE:
Cleveland, Ohio 44113,

Plaintiff,
COMPLAINT
-vs-
JURY TRIAL DEMANDED
CITY OF ASHTABULA, OHIO
c/o Ashtabula City Solicitor’s Office
110 West 44th Street
Ashtabula, OH 44004,

and

DANIEL GILLESPIE,
c/o Ashtabula City Solicitor’s Office
110 West 44th Street
Ashtabula, OH 44004,

and

SPENCER GALE,
c/o Ashtabula City Solicitor’s Office
110 West 44th Street
Ashtabula, OH 44004,

Defendants.

Plaintiff Brendan Hester for his complaint against Defendants City of Ashtabula, Daniel

Gillespie, and Spencer Gale alleges as follows:

INTRODUCTION

1. This is a civil rights action. On June 2, 2017, Brendan Hester, a 23-year-old Black

man, awoke to find that an intruder had entered the home where he lived with his brother, brother’s
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 2 of 12. PageID #: 2

girlfriend, and their two-year-old daughter. Brendan joined his brother in defending his family and

home from the intruder, who was armed. 911 was called and police assistance was requested. After

disarming and subduing the intruder, Brendan held the intruder at gunpoint while awaiting police

arrival and assistance.

2. Two white Ashtabula City police officers arrived at the home and burst into the

doorway. Before giving Brendan an opportunity to tell them what was going on or drop his

weapon, Defendant Daniel Gillespie opened fire upon him.

3. Brendan did not point his weapon at police or threaten them in any way and did not

present a threat to them or anyone else. This shooting was without any lawful justification and in

violation of Brendan Hester’s fundamental rights under the U.S. Constitution and Ohio law.

4. The City of Ashtabula is likewise at fault for the shooting of Brendan Hester

through the written and unwritten policies, practices and/or customs of civil rights violations and

unconstitutional practices of the City of Ashtabula and its Police Department.

5. As a result of this shooting, Brendan suffers paralysis and permanent disability, and

continuing psychological trauma. He and his family are devastated by these irreparable and

lifechanging injuries. This civil rights action seeks accountability for violations of Brendan’s

constitutional rights.

JURISDICTION AND VENUE

6. The Jurisdiction of the court is invoked pursuant to the Civil Rights Act, 42 U.S.C

§1983 et seq; the Judicial Code, §§1331 and 1343(a); and the Constitution of the United States.

7. Supplemental jurisdiction over the related state law claims is invoked pursuant to

28 U.S.C. §1367.

2
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 3 of 12. PageID #: 3

8. Venue is proper in this District under 28 U.S.C. § 1391(b). The parties reside, or,

at the time the events took place, resided in this judicial district, and the events giving rise to

plaintiff’s claim also occurred in this judicial district.

PARTIES

9. Plaintiff Brendan Hester, at all times relevant to the allegations made in the

complaint, resided in the city of Ashtabula, Ohio, in Ashtabula County.

10. Defendant Officer Daniel Gillespie was, at all times relevant to the allegations made

in this complaint, a duly appointed police officer employed by the City of Ashtabula, acting within

the scope of his employment and under the color of state law. He is sued in his individual capacity.

11. Defendant Officer Spencer Gale was, at all times relevant to the allegations made

in this complaint, a duly appointed police officer employed by the City of Ashtabula, acting within

the scope of his employment and under the color of state law. He is sued in his individual capacity.

12. Defendant City of Ashtabula was and is a political subdivision and unit of local

government duly organized under the laws of the State of Ohio residing in the Northern District

of Ohio acting under the color of law. Defendant City of Ashtabula is a “person” under 42 U.S.C.

§ 1983. Defendant City of Ashtabula is the employer and principal of Defendants Gillespie and

Gale, and is responsible for the policies, practices, and customs of its Police Department.

FACTS

13. Brendan Hester was only 23 years old at the time of the events giving rise to this

complaint.

14. At that time, he lived at 420 West 38th Street in Ashtabula, Ohio, with his brother,

Chuck Morgan, Chuck’s girlfriend, Destinee Medina, and Chuck’s and Destinee’s two-year-old

daughter.

3
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 4 of 12. PageID #: 4

15. On June 2, 2017, just after 5 a.m., Brendan, Chuck, Destinee, and their daughter

were all asleep on the second floor of the house.

16. Destinee awoke to find a male intruder with a gun pointed at her, standing at the

door to her bedroom. He told her to wake up Chuck. She followed his instruction.

17. Chuck, upon waking up and seeing the intruder with the gun, immediately jumped

out of bed and began attempting to subdue the intruder.

18. Destinee went to wake up Brendan, who was sleeping in a room at the end of the

second-floor hallway. Brendan woke up to Destinee telling him that Chuck needed his help.

Brendan got up and ran into the hallway toward the stairs.

19. In the hallway, Brendan saw Chuck and another man – the intruder – wrestling on

the stairs.

20. Chuck saw Brendan and told to him to get his gun. Brendan ran back to his room

and retrieved his gun.

21. Brendan then ran back to the stairs to help Chuck, who was still wrestling with the

man on the stairs. Brendan saw that the intruder was armed with a gun. Brendan tried to help Chuck

get the gun away from the intruder.

22. During this struggle, Destinee called the police and reported the intruder.

23. The struggle continued on the stairs, moving toward the ground floor. Chuck and

Brendan were eventually able to get the gun away from the intruder.

24. Chuck went back upstairs check on Destinee and his daughter.

25. Brendan stood downstairs, right on the ground floor with the intruder, who was

sitting on the floor. Brendan had his gun in his hand, waiting for the police to arrive.

26. Brendan was still in his bedclothes, wearing only shorts at the time.

4
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 5 of 12. PageID #: 5

27. Unbeknownst to Brendan, Defendants Ashtabula Police Officers Gillespie and Gale

had arrived at the front door.

28. The next thing he knew, Defendant Officer Gillespie – using an AR-15 SWAT rifle

– shot Brendan in the back.

29. Brendan did not even realize they were in the house until he was shot.

30. Brendan never pointed or attempted to point his gun at Defendants before Gillespie

shot him.

31. Brendan did not threaten Defendants or anyone else before Gillespie shot him.

32. Brendan did not pose a threat to Defendant Officers or anyone else at the time he

was shot.

33. Defendants did not give Brendan an opportunity to put his gun down before

Gillespie shot him.

34. Defendants never gave Brendan an opportunity to explain what was going on before

Gillespie shot him.

35. Defendants never inquired about what was going on before shots were fired, and

they ignored obvious clues – such as Brendan wearing only shorts – that Brendan was not the

intruder, and instead was a resident of the home.

36. After he was shot, Brendan thought he died. As he was drifting in and out of

consciousness, he felt terrified. He thought, “Why me?”

37. Brendan had been protecting his home and his family and was holding the intruder

waiting for police assistance. He had done what he thought was the right thing. He did nothing to

provoke Defendants’ reaction. And yet, Gillespie shot him.

5
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 6 of 12. PageID #: 6

38. Brendan lost consciousness and was life-flighted to the hospital. He was shot in the

back and the chest with ammunition from a SWAT rifle, which did serious damage to his body.

39. Brendan remained unconscious and medically sedated for the rest of June 2017.

40. Brendan was then bedridden and completely immobile for the entire month of July.

In all, Brendan was in the trauma intensive care unit for sixty-eight days, with 24-hour care.

41. Brendan was continuously hospitalized after leaving ICU and remained in a

hospital setting and/or in a spinal rehabilitation center until late November 2017. He was then

completely bedridden for another month following his release from hospitalization.

42. After extensive physical therapy, Brendan still cannot use his legs. He is only

minimally able to use his arms and hands. He is wheelchair-bound and dependent upon others to

assist him with basic needs.

43. The psychological trauma from these events causes Brendan to think about this

shooting every day.

44. Defendant Officer Daniel Gillespie, without cause or provocation, fired multiple

bullets at Brendan Hester, causing these injuries.

45. This shooting was unjustified, objectively unreasonable, and constituted excessive

force, in violation of Brendan Hester’s constitutional rights.

46. Defendant Officer Spencer Gale had the duty and opportunity to intervene to prevent

the use of excessive force against Brendan Hester and did nothing to assist him, protect him, or

prevent the shooting.

47. Brendan did not present a threat to the safety to any of the Defendant Officers or to

any other person.

6
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 7 of 12. PageID #: 7

48. At the time Defendant Officers Gillespie and Gale shot Brendan or failed to

intervene to prevent the use of excessive force against him, Brendan was not engaged in unlawful

behavior.

49. Defendant Officers jointly agreed and/or conspired with one another to prepare

false, misleading, and incomplete official reports and to give false, incomplete, and misleading

versions of the events to their superiors and to the public.

50. To cover up their misconduct, Defendant Officers falsely claimed that Brendan

Hester posed a threat sufficient to justify the use of deadly force.

51. The actions of the Defendants were taken jointly, in concert, and with shared intent.

COUNT 1
42 U.S.C. § 1983 Claim for Unconstitutional Seizure
against Defendants Gillespie and Gale

52. All of the foregoing paragraphs are incorporated as though fully set forth here.

53. The actions of Defendant Officers Daniel Gillespie and Spencer Gale, as alleged in

the preceding paragraphs, violated Brendan Hester’s rights under the Fourth Amendment to the

United States Constitution to be secure in his person against unreasonable seizure, and his right to

due process under the Fourteenth Amendment to the United States Constitution, and caused the

injuries alleged in this complaint.

54. Brendan Hester was subjected to the use of excessive force in violation of his Fourth

Amendment rights.

55. Defendant Officers had the duty and opportunity to intervene to protect Brendan

Hester and to prevent the use of excessive force against him and did nothing to assist him or prevent

the shooting.

7
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 8 of 12. PageID #: 8

56. The actions of the Defendant Officers as alleged in this count of the complaint were

the direct and proximate cause of the constitutional violations set forth above and of Brendan

Hester’s injuries.

57. Defendants are jointly and severally liable for this conduct.

COUNT 2
42 U.S.C. § 1983 Monell Claim
against Defendant City of Ashtabula

58. All of the foregoing paragraphs are incorporated as though fully set forth here.

59. The actions of Defendants Gillespie and Gale, as alleged above, were taken

pursuant to one or more interrelated de facto policies (even if not official written edicts), practices

and/or customs of civil rights violations and unconstitutional practices of the City of Ashtabula

and its Police Department.

60. The City of Ashtabula, at all times relevant herein, approved, authorized, and

acquiesced in the unlawful and unconstitutional conduct of its respective employees and/or agents

and consequently is directly liable for the acts of those agents, pursuant to 42 U.S.C. § 1983.

61. Despite the facts and circumstances surrounding the shooting of Brendan Hester

that clearly demonstrate that the actions of the Defendants Gillespie and Gale were unreasonable

and unlawful, upon information and belief, the City of Ashtabula has failed to effectively

investigate or impose any discipline on Defendant police officers for their illegal behavior.

62. At all times relevant, the Defendant City of Ashtabula and its Police Department

had interrelated de facto policies, practices, and customs which included, inter alia:

a. the failure to properly hire, train, supervise, discipline, transfer, monitor,

counsel and/or otherwise control City of Ashtabula police officers who
engage in unjustified use of excessive and unreasonable force;

b. the police code of silence;

8
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 9 of 12. PageID #: 9

c. the failure to properly investigate the use of excessive and unreasonable

force against civilians, particularly African-Americans, by City of
Ashtabula police officers;

d. the failure to properly discipline, supervise, monitor, counsel and otherwise

control City of Ashtabula police officers who engage in unjustified use of
excessive and unreasonable force; and/or

e. the failure to properly train and supervise City of Ashtabula police officers
with regard to discharging weapons at civilians, particularly at African-
Americans.

63. The aforementioned de facto policies, practices, and customs of the Ashtabula

Police Department include a pattern of acts of excessive use of force and other willful, wanton,

and/or reckless behavior leading to harmful consequences to citizens.

64. The Ashtabula Police Department has engaged in little or no meaningful

disciplinary action in response to this pattern of misconduct, thereby creating a culture or climate

where members of the police department can escape their acts of misconduct accountability with

impunity.

65. This pattern is the moving force behind the conduct of the Defendant Officers in

shooting Brendan Hester – with a SWAT-style AR-15 rifle in his own home as he waited for police

assistance – is not an isolated incident of unconstitutional policing within the City of Ashtabula by

its officers.

66. The policy, practice, and custom of a police code of silence results in police officers

refusing to report instances of police misconduct of which they are aware, including unlawful

searches, seizures, and prosecutions, despite their obligation under police regulations to do so,

and also includes police officers either remaining silent or giving false and misleading information

during official investigations in order to protect themselves or fellow officers from internal

9
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 10 of 12. PageID #: 10

discipline, civil liability or criminal charges, in cases where they and their fellow officers have

engaged in misconduct.

67. The de facto policies, practices and customs of failing to hire, train, supervise,

monitor, discipline, transfer, counsel and/or control police misconduct and the code of silence are

interrelated and exacerbate the effects of each other, to institutionalize police lying and immunize

police officers from discipline.

68. That the unconstitutional actions of the Defendants as alleged in this complaint

were part and parcel of a widespread municipal policy, practice and custom is further established

by the involvement in, and ratification of, these acts by municipal supervisors and policy makers,

as well as by a wide range of other police officials, officers, and divisions of the Department.

69. The policies, practices and/or customs alleged in this complaint, separately and

together, are the proximate cause of the injury to Brendan Hester because Defendants had good

reason to believe that their misconduct would not be revealed or reported by fellow officers or

their supervisors, and that they were immune from disciplinary action, thereby protecting them

from the consequences of their unconstitutional conduct.

70. But for the belief that they would be protected – both by fellow officers and by the

City of Ashtabula Police Department – from serious consequences, Defendants Gillespie and Gale

would not have engaged in the conduct that resulted in the injuries to Brendan Hester.

71. The interrelated policies, practices and customs, as alleged in this complaint,

individually and together, were maintained and implemented with deliberate indifference, and

encouraged the Defendant Officers to commit the acts alleged in this complaint against Brendan

Hester.

10
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 11 of 12. PageID #: 11

72. The City of Ashtabula therefore acted as the moving force behind and the direct

and proximate causes of the violations of Brendan Hester’s constitutional rights and all injuries

and damages suffered by Brendan Hester.

COUNT 3
State Law Claim for Willful, Wanton and Reckless Conduct
against Defendants Gillespie and Gale

73. All of the foregoing paragraphs are incorporated as though fully set forth here.

74. Defendant Officers Daniel Gillespie and Spencer Gale failed to exercise due care

and acted in a willful, wanton and reckless manner while engaged in police functions and activities

that culminated in the above-described damages and injuries to Brendan Hester.

75. Defendants’ reckless, wanton, and/or willful conduct proximately caused the

physical and psychological damages to Brendan Hester.

76. As a direct and proximate result of the misconduct of the Defendant Officers,

Brendan Hester suffered and continues to suffer injuries and damages.

77. Defendants are jointly and severally liable for this conduct.

COUNT 4
State Law Claim for Assault and Battery
against Defendants Gillespie and Gale

78. All of the foregoing paragraphs are incorporated as though fully set forth here.

79. The actions of Defendant Officers Daniel Gillespie and Spencer Gale towards

Brendan Hester created in him the apprehension of an imminent, harmful, and offensive touching

and constituted a harmful and offensive touching, knowingly and without legal justification.

80. Defendants are jointly and severally liable for this conduct.

11
 Case: 1:18-cv-01159 Doc #: 1 Filed: 05/21/18 12 of 12. PageID #: 12

PRAYER FOR RELIEF

Plaintiff demands that judgment be entered in his favor on all counts and prays the court to

award the following relief:

a. An award of actual and/or compensatory damages against all Defendants in

an amount to be determined at trial that will fully and fairly compensate
Plaintiff Brendan Hester for the injuries and damages he suffered;

b. An award of punitive damages against Defendant Officers Daniel Gillespie

and Spencer Gale in an amount to be determined at trial that will serve to
adequately punish and deter the acts and omissions alleged in this
complaint;

c. An award of attorneys’ fees and the costs of this action pursuant to 42

U.S.C. Section 1988; and

d. All such other relief to which Plaintiff is entitled and/or this Court deems
equitable.

TRIAL BY JURY ON ALL CLAIMS FOR RELIEF HEREBY DEMANDED.

Dated: May 21, 2018 /s/ Jacqueline Greene

Jacqueline Greene (0092733)
Sarah Gelsomino (0084340)
Terry Gilbert (0021948)
FRIEDMAN & GILBERT
55 Public Square, Suite 1055
Cleveland, Ohio 44113
P (216) 241-1430
F (216) 621-0427
jgreene@f-glaw.com
sgelsomino@f-glaw.com
tgilbert@f-glaw.com

Counsel for Plaintiff Brendan Hester

12