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Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No.: 21-cv-2729 SARAH NARANJO, an individual, and MARIE ADORNO, parent of Robert Anthony Avila and Personal Representative of the Estate of Robert Anthony Avila, deceased Plaintiffs; v. BRANDON VICTOR, an individual, and CITY OF PUEBLO, a governmental entity, Defendants. COMPLAINT AND JURY DEMAND COMES NOW, Plaintiff, by and through their counsel, BAUMGARTNER LAW, L.L.C., and respectfully submits this Complaint against the above-named Defendants and allege and aver as follows: JURISDICTION AND VENUE 1. This action is brought pursuant to 42 U.S.C. § 1983, § 1988, and the Fourth Amendment to the United States Constitution. Jurisdiction is founded upon § 1331 (federal question), § 1343(a)(3) and (4) (civil rights), and the aforementioned statutory and constitutional provisions. 2. Venue is proper in the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1391(b) because the defendants are citizens and residents of Colorado and the events, acts and/or omissions giving rise to this action occurred in Colorado. Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 2 of 24 PARTIES 3. Plaintiff Sarah Naranjo is and was at all times relevant a citizen of the State of Colorado, residing in Pueblo, Colorado. 4. Plaintiff Marie Adorno is and was at all times relevant a citizen of the State of Colorado, residing in Pueblo, Colorado. Marie Adorno is the mother of Robert Anthony Avila (herein after “Robert Avila”), deceased, and the duly appointed personal representative of his estate, Case Number 20PR30402 in Pueblo County, Colorado. 5. Defendant Brandon Victor (herein after “Defendant Victor”) is employed as law enforcement officer by the City of Pueblo and was acting within the course and scope of his employment and under the color of State law at all times relevant to this action. 6. Defendant City of Pueblo was at all times relevant a government entity, corporation and municipality in the state of Colorado with final policy-making authority over its law enforcement officers including specifically the individual Defendant named herein. GENERAL ALLEGATIONS 7. Plaintiff incorporates by reference herein all preceding allegations set forth in this Complaint. 8. On May 15, 2020, Robert Avila was shot and killed, and Sarah Naranjo was shot several times and severely wounded by Defendant Victor. 9. On May 15, 2020, at approximately 2:00 a.m. Defendant Victor was on routine patrol in Pueblo, Colorado when he came across a green Honda stopped in the northbound lane of Reading Street with the engine running and the rear taillights illuminated. 10. Defendant Victor was not able to observe any occupants inside the vehicle. 11. Defendant Victor learned from dispatch that the green Honda was reported stolen out of Pueblo. 12. Defendant Victor aired to dispatch that he would be making contact with the green Honda on Reading Street. Dispatch then aired for additional officers to respond. 13. Defendant Victor knows from his training that he is not supposed to approach a possible stolen car alone and must wait for additional officers to respond. Defendant Victor chose 2 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 3 of 24 to disregard his training and common sense when he approached the vehicle alone, without waiting for cover to arrive. 14. Defendant Victor pulled his patrol car alongside and in front of the green Honda at an angle. 15. After positioning his vehicle, Defendant Victor was still unable to observe any occupants inside the vehicle. 16. Without waiting for back-up to arrive, which is a major breach of department policy, Defendant Victor exited his patrol car with his weapon drawn and approached the vehicle. 17. As Defendant Victor approached the driver’s side of the Honda, he observed that the driver’s side window was three-quarters of the way down and that there was a male driver, later identified as Robert Avila, and a female passenger, later identified as Sarah Naranjo, inside the vehicle. 18. Both the driver and passenger were fast asleep in the vehicle and unthreatening. 19. Despite the two individuals being asleep in the front seat and unthreatening Defendant Victor had his gun drawn and was ready to shoot to kill. 20. There was not any probable cause to believe either unidentified party possessed a firearm or had been involved in a crime where serious bodily injury or death was possible or even threatened because alleged stolen cars are property crimes and rarely actually involve violence. 21. Defendant Victor knows that alleged stolen car crimes are inherently non-violent in their commission and rarely lead to a violent or deadly encounter when trying to take an individual suspected of stealing a car into custody. 22. Instead of waiting for back-up, Defendant Victor reached for the door handle on the driver’s door. At that time, Robert Avila woke up and made eye contact with Defendant Victor. 23. Mr. Avila, thinking he was about to be robbed, assaulted, or worse, put the vehicle in drive. Mr. Avila did not know Defendant Victor was a member of law enforcement. 24. Defendant Victor reached inside the open window on the driver’s side for the door handle in an attempt to grab Mr. Avila. 3 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 4 of 24 25. As Defendant Victor reached into the vehicle, he claims that Mr. Avila placed his hands on the steering wheel at 10 and 2, which pinned Defendant Victor’s left hand and arm under the armpit of Mr. Avila so tightly that he was unable to free his arm. 26. This story about having his left hand pinned under Mr. Avila is a fabricated story made up by Defendant Victor to avoid criminal liability for the murder of Mr. Avila and wounding of Ms. Naranjo. 27. As the Honda slowly inched forward, it made contact with Defendant Victor’s patrol vehicle causing the vehicle and dash-camera to be slightly jostled. 28. Defendant Victor was standing next to the driver’s side window and with his firearm in his right hand, Defendant Victor aimed the weapon through the open driver’s side window and fired several rounds striking both the male driver, Robert Avila, and female passenger, Sarah Naranjo. 29. Ms. Naranjo reported that she was woken up by the sound of gunshots, and when she woke up, Mr. Avila’s head and brain fragments were splattered all over her and the interior of the car. 4 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 5 of 24 30. When questioned by investigators about where he was aiming when he shot, Defendant Victor stated that he fired in the general direction of the driver and “prayed”. 31. The shots immediately killed Mr. Avila and severely wounded Sarah Naranjo. 32. When Officer Logan O’Hayre of the Pueblo Police Department responded to the scene, he observed a green Honda that had gone over a curb and came to a rest against a chain-link fence. 33. Officer O’Hayre observed Defendant Victor standing next to the vehicle at a safe distance from the Honda. 34. Officer O’Hayre observed that Mr. Avila had a gunshot wound to the head and appeared deceased. Officer O’Hayre saw that Ms. Naranjo was in obvious pain with gunshot wounds to her stomach, leg and arm. 35. Defendant Victor told Officer O’Hayre that his left shoulder was dislocated and that he was dragged by the Honda driven by Mr. Avila. 36. Defendant Victor led other officers to believe that he was struck by a bullet in the incident. 37. Officer Christina Marroquin arrived on scene next. She approached Defendant Victor who stated, “I think I’m hit, I think I’m hit”, so she checked on him. Officer Marroquin helped Defendant Victor remove his clothes to check for injuries he may have sustained. Officer Marroquin stated that Defendant Victor was complaining of pain in his arm, but she did not observe any injuries. 38. Defendant Victor is clearly lying about these injuries because he knows the best way to justify murdering a citizen is to claim he was injured and thus believed to be at threat of serious bodily injury or death. Defendant Victor knows his fellow officers, the district attorney’s office and even the courts will simply take his false claims of being injured and in fear of serious bodily injury or death as fact and thus decline to bring criminal charges or seriously investigate the shooting. 39. Defendant Victor’s lies about his injuries are readily apparent because when he was examined by paramedics at the scene, and later at a hospital after the incident, the only injury observed or treated on Defendant Victor was a small red mark on the inside of 5 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 6 of 24 Defendant Victor’s upper left forearm. There were no other apparent injuries or marks to Defendant Victor. 40. The red mark on Defendant Victor’s upper arm does not appear to be fresh and thus unrelated to this incident. It is an old bruise with light brown coloring around it, which indicates that the bruise is one-to-two weeks old. 41. If Defendant Victor had been dragged by the Honda and dislocated his shoulder, he would have received emergency medical treatment and there would have been documentation of injuries when Defendant Victor was examined at the hospital. 42. There is absolutely no documentation of Defendant Victor receiving medical treatment on his shoulder. 43. Based upon information and belief, a sample of Defendant Victor’s blood was taken by hospital staff after the incident. 6 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 7 of 24 44. The blood test results indicated that at the time Defendant Victor came on his shift at 10:00 p.m. on the night of the shooting, his blood alcohol level (BAC) was extrapolated to be 0.05; an amount that would have been enough to charge someone with Driving While Ability Impaired (DWAI). 45. Without question, this is a major breach of Pueblo Police Department policy and a violation of the position of trust Defendant Victor served in as a commissioned police officer in the State of Colorado. Not to mention, Defendant Victor broke the law that he was sworn to uphold. 46. What is worse is that the highest levels of the Pueblo Police Department and the Tenth Judicial District Attorney, Jeff Chostner, knew that Defendant Victor was intoxicated at the time of the shooting, yet exonerated him of all criminal charges. 47. After the shooting, Defendant Victor called an ambulance for himself as well as Mr. Avila and Ms. Naranjo. 48. Ms. Naranjo was rushed to Parkview Medical Center for emergency surgery. It was observed that Ms. Naranjo had a gunshot wound to the upper right thigh, a gunshot wound to the left side of her back exiting the mid-front abdomen, and a “through and through” gunshot wound to her left forearm. 49. Ms. Naranjo underwent surgery on her left arm on May 15, 2020. She underwent an open reduction, internal fixation of the left ulna shaft fracture. Ms. Naranjo also underwent an exploratory laparotomy with splenectomy, repair of diaphragm injury, repair of adnominal skin laceration, left chest tube placement and debridement of right thigh wound. Ms. Naranjo also has a bullet lodged in her T-1 vertebrae. 50. Ms. Naranjo suffered from these injuries and continues to suffer from them to this day. She is permanently disfigured over multiple parts of her body due to the gunshot wounds and surgeries she has endured. 51. Mr. Avila was pronounced dead on May 15, 2020, at the age of thirty-one (31). 7 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 8 of 24 52. An autopsy was conducted the same day at St. Mary Corwin Medical Center by forensic pathologist Dr. Daniel Lingamfelter. 53. Dr. Lingamfelter stated that Mr. Avila died as the result of a homicide. There were two gunshot wounds: one to Mr. Avila’s head and one to Mr. Avila’s chest, which resulted in severe craniocerebral injuries, massive blood loss, and death. 54. The gunshot wound to Mr. Avila’s head entered at the upper left temple and did not show the presence of muzzle injury, soot or gunpowder stippling. 55. The trajectory of the bullet appeared to be left-to-right and slightly front-to-back. 56. The gunshot wound to Mr. Avila’s chest was observed to have entered his upper left chest and did not show the presence of muzzle injury, soot or gunpowder stippling. 57. Defendant Victor’s claim that he was pinned inside the Honda and that he was dragged by the Honda are false. 58. The laws of physics do not support Defendant Victor’s version of events. A person reaching in an open window with their left arm could not have their arm pinned by the mere placement of the driver’s hands on the steering wheel. Even if a person’s hand or arm could be pinned in such a way, it is not reasonable to believe that a police officer could not 8 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 9 of 24 remove their hand from that position without some further explanation of why it is physically impossible to extricate oneself. 59. Moreover, the physical evidence from the scene of the shooting does not support Defendant Victor’s story. The autopsy of Robert Avila did not show the presence of a muzzle injury, soot or gunpowder stippling to Mr. Avila’s head or chest, which indicates that he was not shot at close or intermediate range. Mr. Avila was shot at distant range rather than close or intermediate range because there is no muzzle injury, soot or gunpowder stippling apparent on the entry wounds. 60. If Defendant Victor’s arm was stuck inside the vehicle to the point that he was locked arm- in-arm with Mr. Avila, one would expect the gunshots to produce a muzzle injury, soot or gunpowder stippling on Mr. Avila’s head and chest because Defendant Victor would have been shooting from extremely close range. 61. If Defendant Victor was being dragged by the Honda, as he claims, he would not have been able to fire off four-to-five rounds into the vehicle precisely hitting both occupants. 62. Body-worn camera footage collected from Defendant Victor only captures events that occurred after the Honda came to a rest and shots had already been fired. There is no video footage of the shooting. 63. Defendant Victor claimed in post-incident interviews with detectives that he tapped the button on his body-worn camera to activate it before approaching the alleged stolen vehicle containing Mr. Avila and Ms. Naranjo but that he must have failed to press it hard enough. 64. After the shooting had already taken place, and when Defendant Victor believed he had already activated his body-worn camera, he claims to have checked to see whether the camera was in-fact turned on. Defendant Victor claims to have noticed that his body-worn camera was not activated prior to the shooting so he turned it on. 65. The claim by Defendant Victor about checking and turning his body camera on is fabricated. It is not at all reasonable to believe that police officer who thinks he has activated his body-worn camera would check to make sure that it is on especially when he is supposedly in severe pain from a dislocated shoulder and in a state of shock due to his statements indicating he thinks he might have been shot. 9 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 10 of 24 66. It is the policy of the Pueblo Police Department to turn body-worn cameras on before the officer gets out of the vehicle to make contact with a suspect. Defendant Victor violated this department policy when he failed to turn his body-worn camera on. 67. Dash camera footage was recovered from Defendant Victor’s patrol car. However, Defendant Victor’s vehicle was positioned in front of the Green Honda and facing away from it. Thus, the shooting was not captured on dash-cam video either. 68. The dash-cam video does show Defendant Victor exiting his vehicle and walking to the rear to contact the occupants of the Honda. Moments later, the patrol car appears to get “jostled” and then the Honda comes into view. 69. Defendant Victor appears to be voluntarily running alongside of the Honda. 70. Defendant Victor was never in the direct path of the Honda. 71. No other officers or people were located in the immediate area where the Honda was located. In fact, there was an empty industrial parking lot directly in front of the Honda with no officers or pedestrians in or nearby. 72. The Honda was not an immediate threat to Defendant Victor, or any other person’s safety when he began firing at the occupants inside the Honda. 73. Defendant Victor or any other person was not in any immediate danger of being killed or subjected to serious bodily injury from the Honda. 74. At least four shots were fired at the Honda as Defendant Victor moved alongside it and did not pose an any threat of injury to anybody when the shooting began. 75. Defendant Victor, nor anybody else, had reason to believe the unidentified driver or passenger of the Honda at the time of the shooting could or would cause, with any level of certainty, death or serious bodily harm to anybody. 76. Defendant Victor did not have probable cause, or any other basis, to believe the unidentified driver or passenger was in possession of a firearm, or any other weapon, or involved in any violent felonies. 77. Defendant Victor did not have probable cause, or any other basis, to believe the unidentified driver or passenger would use the Honda as a weapon to cause or create a 10 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 11 of 24 situation where there is a near certainty of imminent death or serious bodily injury to Defendant Victor or anybody else. 78. At no time did Mr. Avila use the vehicle as a deadly weapon in any way. 79. Sarah Naranjo did not use the vehicle as a deadly weapon as she was a passenger and unable to control the vehicle. 80. Defendant Victor knew that using deadly force is a legal seizure and that deadly force is never allowed if there is not an imminent threat of near certain death or serious bodily injury to an officer or civilian. 81. At no point in the unlawful killing of Mr. Avila or serious injury of Sarah Naranjo was there a threat of death or serious bodily injury to an officer or civilian. 82. Defendant Victor has an alarmingly violent history as a Pueblo police officer. He was involved in at least three (3) officer-involved shootings in less than 10 months, including Plaintiffs’ incident. a. On July 18, 2019, Defendant Victor shot and killed Patrick Martinez inside his home at 1704 E. 5th Street in Pueblo, Colorado. Officers were responding to a family disturbance at Mr. Martinez’s home. After Mr. Martinez lobbed a knife at officers, the handle of the knife hit one of Defendant Victor’s fellow officers. In response, Defendant Victor shot Mr. Martinez, striking him in the neck and killing him. b. On March 20, 2020, Defendant Victor shot and seriously injured Angel Avila near the intersection of 13th Street and Deane Lane in Pueblo, Colorado. In that case, Defendant Victor came upon a stolen car. Defendant Victor approached the driver’s side of the vehicle and attempted to open the door, but the door handle broke off. When the driver put the truck into gear and accelerated forward, Defendant Victor shot into the vehicle striking Mr. Avila several times. This case is remarkably similar to the shooting that led to the death of Robert Avila and serious injury of Sarah Naranjo. 83. Defendant Victor is not a well-respected member of the Pueblo police department. 84. Several officers who work with Defendant Victor were interviewed following the shooting and were asked to provide information about him. 11 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 12 of 24 85. Detectives from the Pueblo police department suggested that possible steroid use was a cause of Defendant Victor’s “erratic behavior” recently. Multiple officers who worked with Defendant Victor gave statements as to their knowledge of Defendant Victor using illegal steroids. 86. Defendant Victor admitted to taking steroids in the past while he was employed with the Pueblo Police Department. 87. While none of the officers provided any direct knowledge of Defendant Victor using steroids, most of them acknowledged hearing that Defendant Victor was, in fact, using illegal steroids at the time of the shooting incident. 88. Officer Jake Hill stated to investigators that he believed Defendant Victor had been “reckless” by not waiting for cover to arrive before he approached, and then shot, Mr. Avila and Ms. Naranjo. 89. Officer Jake Hill further stated that during a social visit with Defendant Victor at a fellow officer’s house, Defendant Victor was proudly showing videos of one of his previous killings to anybody who would watch. Officer Hill further stated that Defendant Victor wore his killings like a badge of honor and went around bragging about them to colleagues. 90. Officer Jake Hill also told investigators that he had a conversation with Defendant Victor once when Defendant Victor told him that he did not understand the police officers who did not want to get involved in stuff and who were not proactive. 91. Officer Sam Story was also interviewed by investigators following the incident and provided critical information about Defendant Victor’s state of mind, demeanor and conduct. Officer Story recollected an incident between he and Defendant Victor in which Defendant Victor approached Officer Story, shoved him and said, “I’ve already shot two people, I don’t have a problem making you my third.” 92. Officer Story further stated that he knew from his experience working with Defendant Victor that Defendant Victor often makes things up or exaggerates them to cushion his ego. Officer Story recounted an incident where Defendant Victor aired over the radio to fellow officers that he had been shot at. When officers arrived on the scene, they were not able to locate a suspect, bullet casings, or any evidence shots had actually been fired. 12 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 13 of 24 93. Officer Story told investigators that Defendant Victor’s lying had gotten to a point that other officer dreaded hearing Defendant Victor on the police radio. 94. Officer Story further told investigators that, specifically regarding the shooting of Mr. Avila and Ms. Naranjo on May 15, 2020, the general opinion was that Defendant Victor had not approached the situation safely and had created his own jeopardy that led to the deadly use of force. 95. Officer Story also stated that he had bumped into Defendant Victor earlier in the evening in the night before the shooting of Mr. Avila and Ms. Naranjo. Officer Story stated that he recalled Defendant Victor being angry and upset about having to handle a call that should have belonged to someone else. 96. Officer Christina Marroquin was also interviewed by investigators. Officer Marroquin told investigators about an incident she had involving Defendant Victor when she joined him on a call for service. Officer Marroquin recalled Defendant Victor put a juvenile in handcuffs and started yelling at him, so she told Defendant Victor to “chill out.” In response, Defendant Victor told Officer Marroquin to “[g]et the fuck off my scene.” Officer Marroquin stated Defendant is Victor is “just so aggressive.” 97. Officer Marroquin further told investigators that Defendant Victor constantly sought praise for his shootings from his colleagues. She told investigators how Defendant Victor asked, “when do I get my [award]?” in reference to the amount of fatal shootings Defendant Victor has been involved in. As Officer Marroquin stated to investigators, “that is not a stable mindset.” 98. Further, Officer Marroquin recounted that she was Defendant Victor’s gatekeeper after this shooting incident. As she was driving Defendant Victor to the hospital for his alleged injury, he stated “I wasn’t sure what I was shooting at for a second.” 99. Officer Marroquin told investigators that Defendant Victor’s primary concern following the shooting was the whereabouts of his patrol bag, which contained his car keys. This made her angry because, as she stated, “[y]ou got dead people in the car, and you’re worried about your fuckin’ patrol bag?”. 13 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 14 of 24 100. Officer Marroquin further stated that Defendant Victor did not appear injured while at the hospital. She stated he refused all medical attention, was casually speaking to his wife on the phone, and laughing with nurses and hospital staff. 101. Officer Brian Gowin was also interviewed by investigators. He told them that during the shooting of Mr. Avila and Ms. Naranjo, he was sitting in his patrol vehicle and heard Defendant Victor report over the radio that he was going to approach the green Honda. As he heard the radio traffic, Officer Gowin thought to himself that they were going to have “shots fired”. Thirty seconds after Defendant Victor aired that he was approaching the vehicle, Officer Gowin recalls hearing “shots fired” over the radio. 102. Officer Gowin was a “gatekeeper” to Defendant Victor after the shooting that occurred at 13th and Deane in Pueblo. Officer Gowin reported to investigators that Defendant Victor’s behavior following that shooting made him very uneasy. Officer Gowin stated that Defendant Victor was so nervous after the shooting that it made him question what actually happened. Officer Gowin stated that he had been around other officers after they had been involved in shootings and most were confident in their actions, but Defendant Victor was different according to Officer Gowin. 103. Detective John Guerrero was also interviewed by investigators following the shooting. He has experience working with Defendant Victor on patrol. Detective Guerrero told investigators that he had a disagreement with Defendant Victor over his conduct as a police officer. On Defendant Victor’s first night back on patrol after the shooting in March 2020, the first radio transmission that Detective Guerrero heard from Defendant Victor was that he was investigating a vehicle at the intersection of 13th and Deane. Detective Guerrero wondered why Defendant Victor was at that location since he was just involved in a shooting there. 104. Detective Guerrero also recounted a conversation he had with Defendant Victor about a week after the incident when Defendant Victor had returned to work and gone back to the location of his prior shooting. That night, Defendant Victor complained to Detective Guerrero of problems he was having with fellow officers on his team. Defendant Victor stated that his team members did not like him. Detective Guerrero advised Defendant 14 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 15 of 24 Victor to request to move to another team. When Defendant Victor moved to a different team, Detective Guerrero stated that “he came out like a ball of fire, stirring up shit.” 105. Detective Guerrero further stated that Defendant Victor seemed to be in pursuit of constant praise and that he constantly sought acceptance from other officers. Detective Guerrero believed Defendant Victor was “strung up to a point that he wanted to make a name for himself.” 106. After Defendant Victor’s shooting on May 15, 2021, Detective Guerrero met up with Monica Lemon to give her Defendant Victor’s duty belt. At this time, Ms. Lemon stated that she had been working with Defendant Victor during all of his shootings and “something about his attitude was not right.” Ms. Lemon also stated that this was Defendant Victor’s fourth shooting. Investigators were only aware of three shootings by Defendant Victor. 107. Officer Thomas DeCesaro was also interviewed by investigators following the incident and asked about Defendant Victor’s attitude and demeanor with respect to his recent use of force. Officer DeCesaro stated that Defendant Victor constantly seeks attention and acceptance from his colleagues. Officer DeCesaro further stated that he had a disagreement with Defendant Victor over his conduct after Defendant Victor returned from administrative leave after the second shooting in March 2020. Officer DeCesaro stated that he and other officers heard Defendant Victor state over the radio that he was contacting a vehicle at the exact same location where he had just been involved in a shooting a week prior. Officer DeCesaro said that “everybody kinda hears that over the radio and his first night back to work and they’re just like really like - like calm down dude.” 108. Defendant Victor’s history has been ignored and tolerated despite officer’s personal complaints and concerns because the Pueblo Police Department has fully embraced the “blue wall of silence.” The blue wall of silence is a cultural phenomenon that demands police officers violate public policy, the public trust and the Constitution they swore to uphold in order protect their own, no matter how dangerous they are or the threats they pose to citizens. 15 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 16 of 24 109. The Pueblo Police Department from the Chief of police to the lowest ranked line officer has fully embraced the blue wall of silence and adhere to its requirements to resist reporting disturbing and illegal behaviors of fellow officers which is why the behaviors of Defendant Victor have been so easily and readily ignored by the entire Pueblo police department. 110. There is good reason to believe that the murder of Mr. Avila was motivated by personal animosity from Defendant Victor. Specifically, Defendant Victor had actually threatened Mr. Avila by stating that he was going to shoot him someday. 111. Given all the lies told by Defendant Victor, his pride in killing citizens, and the threat to Mr. Avila personally it is reasonable for a jury to believe that the Defendant Victor has committed pre-meditated murder. 112. The use of deadly force by Defendant Victor against Mr. Avila, and the use of unreasonable and excessive force against Ms. Naranjo is objectively unreasonable in the totality of the circumstances described in the preceding paragraphs. 113. By discharging his weapon and using deadly and excessive force against people that did not pose an immediate threat of death or serious bodily injury, Defendant Victor demonstrated that he was reckless, grossly incompetent, and/or inadequately trained. Properly cautious and properly trained officers would not have used deadly force in the situation that caused the death of Robert Avila and the serious injury of Sarah Naranjo. 114. The City of Pueblo has a duty to train its officers in the rules and implementation of the use deadly force. Defendant Victor’s actions were grossly incompetent and/or the result of being untrained. Thus, the City of Pueblo failed to adequately train Defendant Victor in the constitutional limitations of the use of deadly force. 115. Defendant Victor has not been formally disciplined for unlawfully using deadly force. CLAIMS FOR RELIEF CLAIMS UNDER FEDERAL LAW 42. U.S.C. §1983 116. Plaintiff incorporates by reference herein all preceding allegations set forth in this Complaint. 16 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 17 of 24 117. The Fourth Amendment of the United States Constitution prohibits unreasonable or excessive of force in connection with searches and seizures. When restraining, detaining and /or arresting a person the Fourth Amendment only allows for police officers to use the amount of force that is reasonable and necessary under the circumstances. FIRST CLAIM FOR RELIEF Violation of the Fourth Amendment of the United States Constitution Excessive Force (Against Defendant Victor) 118. Plaintiff incorporates by reference herein all preceding allegations set forth in this Complaint. 119. Mr. Avila and Ms. Naranjo were seized for purposes of the 4th Amendment to the United States Constitution. A seizure occurred the moment Defendant Victor fired his weapon and bullets hit Mr. Avila and Ms. Naranjo. 120. Mr. Avila and Ms. Naranjo’s seizure were unreasonable and in violation of the Fourth Amendment. “The use of deadly force to prevent the escape of all felony suspects …is constitutionally unreasonable where there is no probable cause to believe the suspect poses an immediate threat to the officer or others, or the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm. Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). 121. The reasonableness of the use of force depends not only on whether the officer was in danger at the precise moment that he used force, but also on whether the officer’s own “reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir. 1995); Jiron v. City of Lakewood, 392 F.3d 410, 415 (10th Cir. 2004); Pauly v. White, 874 F.3d 1197, 1217 (10th Cir. 2017); Allen v. Muskogee, Okl., 119 F.3d 837, 840 (10th Cir. 1997). 122. The simple act of driving a stolen vehicle is not enough by itself to pose a great enough danger to the public to justify a shooting. Cordova v. Aragon, 569 F.3d 1183, 1193 (10th Cir.2009), citing: Smith v. Cupp, 430 F.3d 766, 773 (6th Cir.2005). Even if a fleeing 17 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 18 of 24 suspect is driving recklessly the use of deadly force must be based on something more than the general dangers posed by reckless driving. Cordova, 569 F.3d at 1190. 123. The case law is extensive, and the law is well settled and well-established: it is clearly established that it is unreasonable to shoot the driver of a slow-moving vehicle that is maneuvering in a non-aggressive manner and does not pose an immediate threat or create a situation where there is a near certainty of death or serious bodily injury to police officers or other third parties. Adams v. Speers, 473 F.3d 989 (9th Cir.2007); Eberhardinger v. City of New York, 341 F.Supp.3d 420 (District Court, M.D. Pennsylvania 2018); Kirby v. Duva, 530 F.3d 457 (6th Cir.2008); Lytle v. Bexar County Tex., 560 F.3d 404 (5th Cir.2009); Morton v. Kirkwood, 707 F.3d 1276 (11th Cir.2013); Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. 2020); Smith, 430 F.3d (2005). 124. Here, Defendant Victor did not have probable cause to believe either person in the Honda posed an immediate threat of death or serious bodily injury or was involved with the infliction or threatened infliction of serious physical harm to anybody because both parties were sleeping and unidentified until after the unconstitutional shooting occurred. 125. Moreover, Defendant Victor stated during the follow-up investigation that as he approached the Honda, he believed that the occupants may have even been deceased. Therefore, there was no reason to believe either unidentified occupant posed a threat of death or serious bodily injury to Defendant Victor or anybody else. 126. When Mr. Avila began to drive the Honda, he never engaged in any evasive maneuvering or drove in a reckless manner. The Honda never drove directly at Defendant Victor, and he was never in danger of being dragged, pinned or run over as the Honda passed his position. 127. Defendant Victor, the only officer on scene, did not have any information, when viewed in the totality of the circumstances, that could give a reasonable officer a good faith belief that he, or others, were in imminent danger of being killed or subjected to serious bodily injury from Robert Avila or Sarah Naranjo at the precise moment deadly force was used. 128. In addition, Defendant Victor’s own reckless conduct during the incident unreasonably created the need to use deadly force against Robert Avila and Sarah Naranjo. Defendant Victor approached the Honda alone, without waiting for cover to arrive, per police 18 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 19 of 24 department policy. Defendant Victor unreasonably reached inside the Honda in an attempt to grab Mr. Avila. In concert, Defendant Victor’s actions unreasonably precipitated the need to use deadly force. 129. The actions of Defendant Victor are the actual and proximate causes of Robert Avila’s death and Sarah Naranjo’s injuries, damages and losses. SECOND CLAIM FOR RELIEF Municipal Liability – Failure to Train (Against Defendant City of Pueblo) 130. Plaintiff incorporates by reference herein all preceding allegations set forth in this complaint. 131. The City of Pueblo has ultimate decision making and policy making power for the Pueblo Police Department, including the officer specifically named herein. 132. All law enforcement officers are trained in the implementation and constitutional limits of using deadly force, including the officer specifically named herein. 133. “[T]he inadequacy of police training may serve as a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). 134. The City of Pueblo and the Pueblo Police Department are not currently and have not trained their officers on the constitutional rules governing the use of deadly force against occupants of vehicles that are not driving recklessly and/or do not pose an actual risk or create a situation where there is a near certainty of death or serious bodily injury to an officer or civilian. 135. The City of Pueblo and the Pueblo Police Department are training officers that it is permissible to use deadly force against occupants of a vehicle so long as officers consider the vehicle a deadly weapon and it is used to flee apprehension, even if the vehicle itself is not being utilized in a manner so as to create a scenario where there is an actual threat, or reason to believe there is a near certainty of death or serious bodily injury to officers or civilians. 19 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 20 of 24 136. The City of Pueblo and the Pueblo Police Department know that the case law in Colorado is clearly established that it is unreasonable and unconstitutional to use deadly force on a citizen that is in a vehicle, not driving recklessly when there is a lack of probable cause to believe a suspect will be or was a deadly threat to anybody and does not pose a threat of or create a situation where there is a near certainty of death or serious bodily injury to an officer or civilian. 137. Pueblo police officers are improperly and inadequately trained in the use of deadly force in the context of a fleeing vehicle that is not maneuvering in a reckless manner and fails to pose an actual threat of or create a situation where there is a near certainty of death or serious bodily injury to officers or third parties. 138. Pueblo Police officers are trained to believe deadly force is appropriate so long as a vehicle is fleeing and officers determine the vehicle itself is a deadly weapon even if it is not being used in a manner so as to create a scenario where there is an actual threat, or reason to believe there is a near certainty of death or serious bodily injury to officers or civilians. 139. The training received by Defendant Victor is and was inadequate, improper and per-se unconstitutional. All of these failures evidence a deliberate indifference to the citizens of Colorado by the City of Pueblo and the Pueblo Police Department because it is axiomatic that poorly trained law enforcement officers will violate a citizen’s civil rights. 140. The City of Pueblo was deliberately indifferent to the constitutional rights of the citizens of Colorado because it had actual notice that its failure to adequately train its officers, specifically Defendant Victor, was substantially certain to result in a constitutional violation. The City of Pueblo knew that Defendant Victor was exhibiting “erratic behavior” before the shooting because Defendant Victor had been involved in at least two prior officer-involved shootings within the last ten months. 141. Fellow officers reported that they knew Defendant Victor was liable to get involved in another fatal shooting after his most recent one in March 2020. In fact, on the night of the shooting, one of Defendant Victor’s fellow officers predicted that Defendant Victor would shoot the occupants of the Honda before it even happened because he was so well aware of Defendant Victor’s pattern of unconstitutional and aggressive behavior. 20 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 21 of 24 142. The City of Pueblo and the Pueblo Police Department did not supervise or otherwise scrutinize Defendant Victor’s conduct after his two prior shootings, which happened in rapid succession. 143. The inadequate, improper and per-se unconstitutional training and supervision of Defendant Victor by the City of Pueblo and the Pueblo Police Department is the moving force and proximate cause of Robert Avila’s death and Sarah Naranjo’s injuries, damages and other losses. THIRD CLAIM FOR RELIEF Municipal Liability – Failure to Discipline (Against Defendant City of Pueblo) 144. Plaintiff incorporates by reference herein all preceding allegations set forth in this complaint. 145. The City of Pueblo has ultimate decision making and policy making power for the Pueblo Police Department, including the officer specifically named herein. 146. The City of Pueblo and the Pueblo Police Department have consistently failed to discipline Defendant Victor in response to his unlawful and unconstitutional uses of force. 147. Prior to the shooting that is the subject of this lawsuit, Defendant Victor was involved in two other officer-involved shootings in the span of eight months. Defendant Victor was not disciplined as a result of his involvement in either of the prior officer-involved shootings. 148. In each of the prior shootings, Defendant Victor exceeded the constitutional limitations on the use of deadly force. 149. In each prior instance, Defendant Victor encountered circumstances that constitute a usual and recurring situation with which law enforcement officers encounter. In the July 18, 2019, incident Defendant Victor was responding to a family disturbance. In the March 20, 2020, incident Defendant Victor was approaching a possible stolen vehicle – which is the same reason he contacted Mr. Avila and Ms. Naranjo in this case. Each of these encounters are usual and, indeed, recurring for Defendant Victor. 21 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 22 of 24 150. The failure to discipline Defendant Victor demonstrates a deliberate indifference on the part of the City of Pueblo toward persons the police come into contact with, specifically Defendant Victor. 151. The City of Pueblo was deliberately indifferent to the rights of persons police, specifically Defendant Victor, came into contact with because multiple members of the Pueblo Police Department knew that Defendant Victor was likely to use deadly force when it was not reasonably necessary and told investigators this information after the May 15, 2020, incident. 152. Detective Guerrero stated that Defendant Victor was “stirring up shit” prior to this shooting. 153. Officer DeCesaro stated that he and other officers had concerns about Defendant Victor contacting a vehicle at the exact same location where he had just been involved in a shooting a week prior. Officer DeCesaro said that multiple other Pueblo Police Department officers reacted in the following way: “like calm down dude.” 154. Monica Lemon, who was interviewed following the May 15, 2020, incident stated “something about [Defendant Victor’s] attitude was not right.” 155. Most tellingly, Officer Brian Gowin told investigators after the May 15, 2020, incident: “As he heard the radio traffic, Officer Gowin thought to himself that they were going to have “shots fired”. 156. Defendant Victor’s erratic, violent, unconstitutional conduct was on full display for the entire police department and public. Despite knowing that Defendant Victor was likely to deprive a person who he came into contact with of their constitutional rights, the City of Pueblo did not discipline Defendant Victor at any time for his actions. 157. There is a direct causal link between the failure to discipline Defendant Victor and the deprivation of constitutional rights experienced by Plaintiffs. 158. Defendant Victor would not have killed Robert Avila and inflicted injury to Sarah Naranjo if he was adequately disciplined following one of his prior unconstitutional uses of deadly force. 22 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 23 of 24 159. The inadequate, improper and per-se unconstitutional failure to discipline Defendant Victor by the City of Pueblo and the Pueblo Police Department is the moving force and proximate cause of Robert Avila’s death and Sarah Naranjo’s injuries, damages and other losses. PRAYER FOR RELIEF Wherefore, the Plaintiffs respectfully request that this court enter judgment in their favor on their respective claims against the Defendants jointly and/or severally as follows: a. Compensatory damages in an amount that will fully and fairly compensate the Plaintiff for her injuries, damages and losses pursuant to 42 U.S.C. § 1983; b. Punitive damages pursuant to federal law as punishment to deter against other commissions of future illegal conduct c. Pre and post judgment interest; d. Attorneys’ fees, expert witness fees and all other costs for this action pursuant to 42 U.S.C. § 1988 and any other applicable federal or state law e. Any other relief the court deems proper and just. PLAINTIFF DEMANDS TRIAL TO A JURY ON ALL ISSUES SO TRIABLE Dated this 8th day of October 2021. Respectfully submitted, BAUMGARTNER LAW, L.L.C. Original signature on file at Baumgartner Law, L.L.C. s/ Sean M. Simeson Sean M. Simeson, #47675 Baumgartner Law, LLC 300 E. Hampden Ave., Ste. 401 Englewood, CO 80113 Phone: (720) 626-9418 Fax: (720) 634-1018 [email protected] 23 Case 1:21-cv-02729-CMA-KMT Document 1 Filed 10/08/21 USDC Colorado Page 24 of 24 s/ S. Birk Baumgartner S. Birk Baumgartner Baumgartner Law, LLC 300 E. Hampden Ave., Ste. 401 Englewood, CO 80113 Phone: (720) 626-9418 Fax: (720) 634-1018 [email protected] Plaintiffs’ Address: c/o BAUMGARTNER LAW, L.L.C. 300 E. Hampden Ave., Ste. 401 Englewood, CO 80113 24