2019 05 20 Complaint Ford (E Filed)

Case 3:19-cv-02741 Document 1 Filed 05/20/19 Page 1 of 12
1 John Houston Scott, SBN 72578

Lizabeth N. de Vries, SBN 227215
2 SCOTT LAW FIRM
1388 Sutter Street, Suite 715
3 San Francisco, CA 94109
Tel: (415) 561-9601
4 Fax: (415) 561-9609
john@scottlawfirm.net
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6 Izaak D. Schwaiger, SBN 267888

SCHWAIGER LAW FIRM
7 130 Petaluma Avenue, Suite 1A
Sebastopol, CA 95472
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Tel: (707) 595-4414
9 Fax: (707) 581-1983
izaak@izaakschwaiger.com
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Attorneys for Plaintiff, ANDY FORD
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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16 ANDY FORD Case No:
17 Plaintiff, COMPLAINT FOR DAMAGES AND

v. INJUNCTIVE RELIEF
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CITY OF SANTA ROSA, CITY OF 1. ADA/RA - 42 U.S.C. § 1213(1)(B); 29
19 PETALUMA, JOHN WHITTEN, JOHN U.S.C. § 794(b) – Wrongful Arrest
2. 42 U.S.C. § 1983 – Fourth Amendment
SILVA, JUSTIN FARRINGTON, THOMAS Wrongful/False Arrest
20 WALSH, DAVID LAMB, BRENDA 3. 42 U.S.C. § 1983 – Fourth Amendment
HARRINGTON, STEVEN PEHLKE, Malicious Prosecution
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MATTHEW ROONEY, DAVID
22 LINSCOMB, SUMMER BLACK, ROBERT
MOORE, DAVID MARCONI, RONALD JURY TRIAL DEMANDED
23 NELSON and DOES 1-25, inclusive.
24 Defendants.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

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PLAINTIFF ANDY FORD complains of Defendants and alleges as follows:
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JURISDICTION AND VENUE
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1. This action is brought pursuant to federal laws 42 U.S.C. §§ 1213(1)(B), 1983, and
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1988; and, 29 U.S.C. § 794(b). It is also brought for federal-question issues under the Fourth
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Amendment, the Americans With Disabilities Act, and the Rehabilitation Act. Jurisdiction rests
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upon 28 U.S.C. §§ 1331 and 1343(a)(3) and (4).
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2. The conduct alleged herein occurred in Sonoma County, State of California.
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Venue of this action lies in the United States District Court for the Northern District of California.
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PARTIES
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3. Plaintiff Andy Ford resides in Santa Rosa, California.
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4. Defendants City of Santa Rosa and City of Petaluma are public entities situated in
1388 S UTTER S TREET , S UITE 715
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S AN F RANCISCO , CA 94109
the County of Sonoma, State of California and organized under the laws of the State of
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California.
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5. Defendants John Whitten, Justin Farrington, Thomas Walsh, David Lamb, Brenda
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Harrington, Steven Pehlke, Matthew Rooney, David Linscomb, Summer Black, Robert Moore,
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David Marconi, and Ronald Nelson were police officers employed by the City of Santa Rosa.
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They acted in the course and scope of their employment, and under color of state law, at all times
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mentioned herein.
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6. Defendant John Silva was a police officer employed by the City of Petaluma. He
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acted in the course and scope of their employment, and under color of state law, at all times
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mentioned herein.
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7. Plaintiff also does not presently know the true names and capacities of defendants
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DOES 1 through 25, inclusive, and therefore sues them by these fictitious names. Plaintiffs are
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informed and believe that DOES 1 through 25, and each of them, were responsible in some
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manner for the acts or omissions alleged herein. Plaintiff will seek leave to amend this Complaint
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to add their true names and capacities when they have been ascertained.
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8. In doing the acts and/or omissions alleged herein, defendants and each of them
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acted under color of authority and/or under color of state law, and, in concert with each other.
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STATEMENT OF FACTS
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9. Andy Ford was nineteen years old when he deployed to Afghanistan as a U.S.
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Army infantryman in 2010. His unit was assigned to Kunar Province, which was then described
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as the most dangerous terrain for U.S. forces anywhere in the world. American soldiers had
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dubbed it Afghanistan’s “Heart of Darkness” where insurgents launched an average of three
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attacks per day against allied forces in the rugged mountain terrain.
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10. Shortly after his arrival in Kunar, Andy was attached to Combat Outpost Monti
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where his unit was assigned to patrol the dangerous mountain roads outside of Asmar Village, a
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known sanctuary for al-Qaeda and allied terror groups. On one such patrol just before
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Thanksgiving, Andy’s unit was ambushed while on a narrow mountain road above the village.
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Enemy fighters had buried a bomb in the roadway, and detonated it before Andy’s platoon
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arrived, taking out the roadway in a dangerous chokepoint. The lead vehicle rounded a turn in the
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road and was forced to a halt as it came upon the site of the explosion, thus immobilizing the
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remainder of the platoon and leaving it exposed on the edge of a cliff unable to turn around.
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11. Several soldiers dismounted from the vehicles and proceeded on foot to the
19 overlook above the road to conduct a reconnaissance for a possible ambush, where they
20 encountered two al-Qaeda fighters with machine guns. The foot patrol engaged the enemy
21 soldiers quickly and eliminated them.
22 12. Andy dismounted from his vehicle and readied a radio to report the contact to
23 headquarters, but before he could make contact, his unit came under massive machine gun and
24 rocket attack from the cliffs above and across the valley. Holding the radio, Andy was the first
25 target. A rocket propelled grenade impacted directly in front of him. The blast hurled the young
26 soldier into the air and smashed his body into a boulder. Andy was severely burned and his leg
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injured from the shrapnel from the exploding warhead. But his most serious injury, the damage to
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his brain, remained unknown for some time.
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13. Andy picked himself up and began to return fire. His platoon engaged the enemy
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with heavy weapons as Andy applied a tourniquet to his leg, and began to move back down the
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cliff to the vehicles under the cover of his unit’s fire. The patrol broke contact with the enemy and
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retreated back to the outpost where medics were unable to remove the shrapnel from his leg. Two
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days later, Andy’s Battalion Commander arrived at the outpost to serve the injured men
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Thanksgiving dinner. Andy was awarded the Purple Heart, and despite his injuries returned to his
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unit the very next day. He completed his tour of duty and returned home to Santa Rosa in 2012.
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The shrapnel remains in Andy’s leg to this day.
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14. In February of 2013, Andy began suffering uncontrollable seizures and was
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diagnosed with refractory epilepsy as a result of the traumatic brain injury he sustained in the war.
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At first the seizures occurred months apart, but as time passed and Andy did his best to live a
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normal life, his seizures increased in frequency and severity until the point where he would
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sometimes experience more than one seizure in a day. His condition is untreatable.
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15. Following a grand mal seizure, those who suffer from epilepsy experience a
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“postictal” period of recovery that can last from a few minutes to a few hours where the brain
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attempts to recover from the trauma of the seizure. During the postictal portion of the seizure the
19 epileptic is unconscious of their actions, easily panicked, combative, upset, and unable to
20 communicate. All California police officers receive training in the police academy regarding this
21 illness.
22 16. Because of Andy’s condition, he cannot drive. On February 12, 2018, Andy was
23 walking to the transit center to catch a bus to the V.A. hospital for a neurology appointment. On
24 the way he saw a homeless woman struggling to carry her belongings across Brookwood Avenue
25 in Santa Rosa. Andy stopped and helped the woman with her belongings, and as he turned to
26 leave he was stricken with a seizure and fell to the ground. Frightened, the homeless woman
27 flagged down a passing patrol car to help.
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17. Officer John Whitten saw the woman waving to him and stopped his car to
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investigate. Officer Whitten saw Andy lying in a grassy area on the side of the road. Andy was
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unresponsive. The officer walked over to him and said, “You just drunk, man? Are you just really
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fucked up?”
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18. At about that time, Andy began to get up. He was unsteady on his feet and unable
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to speak. The Officer called on his radio for medical assistance for “extreme intoxication.”
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Whitten then attempted to grab ahold of Andy, but Andy responded by pushing away the officer’s
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hands. The officer then grabbed Andy by his shoulders and kicked his legs out from under him,
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taking him to the ground. Officer Whitten pinned Andy’s body to the ground, as the young man
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started shouting incoherently and struggling against the officer. As Andy rolled over on his
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stomach, Officer Whitten placed his arm around Andy’s neck in a carotid restraint and held him
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to the ground.
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19. About that time, Detective John Silva, an on-duty Petaluma police officer was
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driving by the scene and observed Officer Whitten on top of Andy. Believing that the officer was
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engaged in a struggle, Silva parked his vehicle and ran towards Andy and Officer Whitten.
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Detective Silva grabbed Andy’s right arm and forced it above his head, ultimately placing Andy
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in a figure-four wristlock. Andy continued to struggle and cry out in pain, so Detective Silva
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pushed down on his face with his right forearm, pressing Andy’s face into the ground and
19 applying pressure to his trans-mandibular joint in an effort to effect pain compliance.
20 20. Officer Thomas Walsh responded to the scene and observed the officers atop
21 Andy. Officer Walsh grabbed Andy by the arm and pinned his wrist to the ground. Several other
22 officers began arriving.
23 21. The homeless woman whom Andy had been helping before his seizure began
24 running towards the officers, yelling at them to stop. Sergeant Justin Farrington observed the
25 woman running toward to the scene, and became convinced that she was attempting to attack the
26 officers, so he ran upon the woman and tackled her to the ground. Despite explaining to the
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sergeant what was happening, the woman was handcuffed, arrested for resisting a peace officer,
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and taken to jail.
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22. Sergeant Farrington and Sergeant David Linscomb then joined in the efforts to
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subdue Andy, who was writhing under the officers’ weight and screaming incoherently.
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Linscomb perceived Andy to be attempting to bite Detective Whitten, and in response stood on
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the side of Andy’s head, applying downward pressure with his booted foot.
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23. The officers rolled Andy into a prone position, and then Sergeant Farrington held
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Andy down by kneeling on Andy’s back, pinning him under the officer’s weight. Officer David
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Lamb piled on top of Andy as well, maintaining his bodyweight atop him. Detective Whitten
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kneeled on Andy’s shoulder blade, and forced Andy’s left arm behind his back. Officer Walsh
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and Sergeant David Marconi manipulated Andy’s right arm into an arm-bar pain compliance hold
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as Officer Steven Pehlke applied handcuffs. Walsh pressed his left hand against the back of
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Andy’s head, holding his head to the ground. Sergeant Linscomb placed Andy in a figure-four leg
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hold, applying pressure to Andy’s injured leg. Even though Andy had been handcuffed,
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Lieutenant Ronald Nelson applied a wristlock in order to induce pain. Andy, beginning to form
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sentences again, cried out that Nelson was going to break his wrist. Nelson responded that that
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was a possibility if Andy didn’t stop resisting.
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24. Officer Matthew Rooney arrived on scene with “max leg restraints” and assisted
19 Officer Walsh and Sergeant Marconi in the device’s application, hogtieing Andy’s ankles to his
20 waist.
21 25. At about this time, paramedics arrived and advised the officers that they knew
22 Andy, that he was a war veteran who had been injured in an explosion, and that he has seizures as
23 a result of that injury. They administered a sedative to Andy and his symptoms began to abate.
24 The officers transferred Andy onto a backboard, where he was released from the max restraints
25 and shackled to the board. During this endeavor, Officer Robert Moore perceived that Andy was
26 attempting to free his injured leg, so the officer applied pressure to his leg to effect compliance.
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26. Andy was taken in police custody to the hospital, where he stayed for
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approximately two hours while his condition was monitored, and where the officers were again
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informed of his condition. Andy woke up and found himself handcuffed to a hospital bed with a
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black bag over his head. Unable to see and in pain, Andy cried out for help. The officers returned
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and placed Andy under arrest and transported him to the Sonoma County Main Adult Detention
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Facility where he was booked on felony charges of resisting arrest, and assault on a peace officer.
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27. All peace officers in the State of California receive training at the police academy
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that when an officer encounters someone experiencing a seizure, the officer should request
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medical assistance and take appropriate first aid measures. They are specifically taught not to
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restrain an individual. They are also specifically taught that after a seizure has ended, individuals
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may experience a period of post-seizure confusion, and that convulsions, confusion, and episodes
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of agitated behavior during an episode should not be perceived as deliberate hostility or resistance
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to the officer.
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that epilepsy is a disability, and that individuals suffering from epileptic seizures have the right to
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be free from harm, including unnecessary physical restraint.
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that individuals who unconsciously commit an act or omission because of a seizure are deemed to
19 lack the intent necessary for the act to be considered a crime.
20 30. Fourteen police officers submitted reports to the Sonoma County District Attorney
21 in support of their request that Andy be prosecuted. Not a single report made mention of Andy’s
22 medical condition, or the fact that he was in the throes of a seizure when these events occurred.
23 These omissions were as intentional as they were material. The officers, realizing that they had
24 used unwarranted force upon an innocent person having a seizure, conspired to have a disabled
25 Purple Heart veteran arrested and prosecuted for a crime they knew that he did not commit in
26 order to cover for their use of force and to protect themselves from civil liability.
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31. Without this critical information, the prosecutor’s office filed a felony complaint
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against Andy on March 19, 2018. On April 23, 2018, after the prosecutor had reviewed the body-
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worn camera footage from the arresting officers, the case against Andy was dismissed.
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32. The sadness and hopelessness that resulted from this wrongful arrest and
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prosecution led Andy to a deep depression where he had nearly given up on life. Feeling betrayed
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and forgotten by his country, Andy remains unable to leave his home without fear of what might
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happen if he has a seizure in public. He has instructed his family and friends never to call 911. As
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a result of these defendants’ actions, Andy cannot walk freely in his own hometown without fear
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that he will be beaten, jailed or worse because of an injury sustained in selfless service to his
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country.
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STATEMENT OF DAMAGES
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33. As a result of defendants’ conduct, plaintiff sustained economic damages and

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consequential damages.
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34. As a result of defendants’ conduct, plaintiff sustained and will continue to sustain
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damages to his reputation, future and prospective earning capacity and wages, and prospective
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economic opportunities and advantages in an amount determined according to proof.
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35. As a further result of defendants’ conduct, plaintiff suffered and will continue to
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suffer general damages including fear, anxiety, humiliation, and emotional distress in an amount
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to be determined according to proof.
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36. The actions of Defendants John Whitten, John Silva, Justin Farrington, Thomas
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Walsh, David Lamb, Brenda Harrington, Steven Pehlke, Matthew Rooney, David Linscomb,
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Summer Black, Robert Moore, David Marconi, Ronald Nelson, and Does 1-25 were willful,
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wanton, reckless, malicious, oppressive and/or done with a conscious or reckless disregard for the
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rights of the plaintiff, who seeks punitive and exemplary damages according to proof.
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37. Plaintiff has retained private counsel to represent him in this matter and is entitled
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to an award of attorneys’ fees.
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1
CAUSES OF ACTION
2
FIRST CAUSE OF ACTION
3 [42 U.S.C. § 1213(1)(B); 29 U.S.C. § 794() – Title II of the Americans with Disabilities Act
4 (ADA) and Rehabilitation Act (“RA”) -- Wrongful Arrest]
38. All allegations set forth in this Complaint are hereby incorporated by reference.
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39. Title II of the Americans with Disabilities Act and the Rehabilitation Act were
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intended to protect individuals like the plaintiff who have a disability from discrimination on the
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basis of their disability by the government.
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40. Defendants John Whitten, John Silva, Justin Farrington, Thomas Walsh, David
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Lamb, Steven Pehlke, Matthew Rooney, David Linscomb, Robert Moore, David Marconi, and
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Ronald Nelson intentionally deprived the plaintiff of his freedom of movement by the use of
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physical force; defendants wrongfully arrested the plaintiff without a warrant or probable
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cause. No reasonable officer would reasonably believe that plaintiff had committed a crime.
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41. Public entities such as the City of Santa Rosa and the City of Petaluma are
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vicariously liable for the acts of their employees under both the Americans with Disabilities Act
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and the Rehabilitation Act.
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42. Plaintiff was a war veteran who had been permanently disabled in combat, and
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who suffered from seizures as a result of his injuries. Defendants knew plaintiff had these
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disabilities.
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43. An arrest is wrongful under the ADA and RA if the police arrest someone because
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they misperceive the effects of a disability as being criminal activity.
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44. Defendants arrested plaintiff for resisting arrest while he was having a seizure and
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lacked the mental capacity to commit a crime. Having a seizure is not an illegal act.
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45. Defendants wrongfully arrested plaintiff because of his legal conduct directly
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related to his disability.
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46. The acts and omission of defendants caused the plaintiff’s harm, injuries and
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damages as alleged herein.
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WHEREFORE, plaintiff prays for relief as hereinafter set forth.
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1 SECOND CAUSE OF ACTION

[42 U.S.C. §1983—FALSE ARREST/FALSE IMPRISONMENT]
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47. All allegations set forth in this Complaint are hereby incorporated by reference.
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48. Defendants John Whitten, John Silva, Justin Farrington, Thomas Walsh, David
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Lamb, Steven Pehlke, Matthew Rooney, David Linscomb, Robert Moore, David Marconi, and
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Ronald Nelson intentionally deprived the plaintiff of his freedom of movement by the use of
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physical force; defendants wrongfully arrested the plaintiff without a warrant or probable
7
cause. No reasonable officer would reasonably believe that plaintiff had committed a crime.
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49. Defendants acted in concert and as integral participants in unlawfully keeping
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plaintiff in custody and causing him to be falsely imprisoned. As a foreseeable result of being
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falsely arrested and falsely imprisoned the plaintiff suffered further injuries and damages.
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50. The acts and omission of defendants caused the plaintiff’s harm, injuries and
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damages as alleged herein.

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THIRD CAUSE OF ACTION
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[42 U.S.C. §1983—MALICIOUS PROSECUTION]
16 51. All allegations set forth in this Complaint are hereby incorporated by reference.
17 52. Defendants John Whitten, John Silva, Justin Farrington, Thomas Walsh, David
18 Lamb, Brenda Harrington, Steven Pehlke, Matthew Rooney, David Linscomb, Summer Black,
19 Robert Moore, David Marconi, and Ronald Nelson caused plaintiff to be arrested and
20 intentionally provided the prosecutor with false, misleading and incomplete information as to the
21 events in question. In addition, the defendants concealed exculpatory evidence and otherwise
22 engaged in wrongful conduct that caused the malicious prosecution.
23 53. Plaintiff alleges on information and belief that defendants were acting under color
24 of state law and in the course and scope of their employment.
25 54. The defendants’ acts and omissions caused the Sonoma County District Attorney’s
26 Office to pursue a criminal prosecution against the plaintiff. The defendants knew that there was
27 no reasonable basis for bringing said charges.
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55. Plaintiff was charged and prosecuted based solely on the information supplied by
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the defendants. Charges were dismissed once the prosecutor reviewed video evidence which
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provided the missing information defendants withheld about plaintiff’s disability.
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56. The defendants subjected the plaintiff to criminal prosecution with malice and a
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reckless and conscious disregard for his rights.
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PRAYER FOR RELIEF
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Plaintiff prays for relief as follows:
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10 1. For compensatory and economic damages according to proof;
11 2. For general damages according to proof;

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3. For an award of exemplary or punitive damages against the individual defendants;

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4. For an award of attorney’s fees and costs as permitted by law;
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5. For injunctive relief designed to remedy the unlawful practices alleged herein,
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including but not limited to: the adoption and implementation of department policies designed to
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17 enforce the provisions of the ADA in relation to police officers’ contacts with persons with
18 disabilities; the retraining of all officers regarding the lawful treatment of persons with
19 disabilities;
20 6. For an order prohibiting the City of Santa Rosa and their agents and employees from
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arresting plaintiff while he is having a seizure; and
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7. For such other and further relief as the Court may deem necessary and appropriate.
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24 JURY TRIAL DEMAND

25 Plaintiff hereby requests a jury trial on all issues so triable.
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3 Dated: May 20, 2019

/s/ John Houston Scott
4 John Houston Scott
5 Attorney for Plaintiff
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Case 3:19-cv-02741 Document 1 Filed 05/20/19 Page 1 of 12

1 John Houston Scott, SBN 72578

6 Izaak D. Schwaiger, SBN 267888

16 ANDY FORD Case No:

17 Plaintiff, COMPLAINT FOR DAMAGES AND

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

33. As a result of defendants’ conduct, plaintiff sustained economic damages and

1 SECOND CAUSE OF ACTION

damages as alleged herein.

10 1. For compensatory and economic damages according to proof;

11 2. For general damages according to proof;

3. For an award of exemplary or punitive damages against the individual defendants;

24 JURY TRIAL DEMAND

3 Dated: May 20, 2019

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