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U.S. District Court - District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:20-cv-01616-RBJ

Abay et al v. City of Denver Assigned to: Judge R. Brooke Jackson Case in other court: Denver County District Court,
2020CV31927 Cause: 42:1983 Civil Rights Act

Date Filed: 06/04/2020 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Agazi Abay on behalf of himself and other similarly situated individuals

represented by Edward Milo Schwab Ascend Counsel LLC 3000 Lawrence Street Denver, CO 80205 303-888-4407 Email: milo@ascendcounsel.co ATTORNEY TO BE NOTICED

John Michael Guevara John M. Guevara, Attorney at Law 2580 17th Street Suite 210 Denver, CO 80211 303-802-5390 Fax: 303-848-3003 Email: guevara.johnm@gmail.com TERMINATED: 06/11/2020

Ross I. Ziev Law Offices of Ross Ziev PC 6795 East Tennessee Avenue Suite 210 Denver, CO 80224 303-351-2567 Fax: 720-669-6992 Email: ross@helpincolorado.com ATTORNEY TO BE NOTICED

Plaintiff

Gabriel Thorn on behalf of himself and other similarly situated individuals
Plaintiff Amy Schneider on behalf of herself and other similarly situated individuals
Plaintiff Michael McDaniel on behalf of himself and other similarly situated individuals
V. Defendant

represented by Edward Milo Schwab (See above for address) ATTORNEY TO BE NOTICED
John Michael Guevara (See above for address) TERMINATED: 06/11/2020 ATTORNEY TO BE NOTICED
Ross I. Ziev (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Milo Schwab (See above for address) ATTORNEY TO BE NOTICED
John Michael Guevara (See above for address) TERMINATED: 06/11/2020 ATTORNEY TO BE NOTICED
Ross I. Ziev (See above for address) ATTORNEY TO BE NOTICED
represented by Edward Milo Schwab (See above for address) ATTORNEY TO BE NOTICED
John Michael Guevara (See above for address) TERMINATED: 06/11/2020 ATTORNEY TO BE NOTICED
Ross I. Ziev (See above for address) ATTORNEY TO BE NOTICED

City of Denver

represented by Conor Daniel Farley Denver City and County Attorney's Office 201 West Colfax Avenue Denver, CO 80202-5332 720-913-3315 Fax: 720-913-3182 Email: conor.farley@denvergov.org ATTORNEY TO BE NOTICED
Geoffrey Charles Klingsporn Denver City Attorney's Office-West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202-5332 720-913-8412 Fax: 720-913-3190 Email: geoffrey.klingsporn@denvergov.org ATTORNEY TO BE NOTICED
Melanie Bailey Lewis Denver City Attorney's Office-West Colfax Avenue 201 West Colfax Avenue Denver, CO 80202-5332 720-913-3240 Fax: 720-913-3190 Email: melanie.lewis@denvergov.org ATTORNEY TO BE NOTICED

Date Filed

#

06/04/2020 1

Docket Text
NOTICE OF REMOVAL by City of Denver from Denver District Court, Case Number 2020CV31927. (Filing fee $ 400, Receipt Number 1082-7326259), filed by City of Denver. (Attachments: # 1
Exhibit A - Complaint, # 2 Exhibit B - Civil Case Cover Sheet, # 3 Exhibit C - Summons, # 4 Exhibit D - Notice of InPerson Status ConferenceHearing, # 5 Exhibit E - Pre-trial Order, # 6 Exhibit F - Delay Reduction Order, # 7 Exhibit G - Register of Actions)(Lewis, Melanie) (Entered: 06/04/2020)

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06/04/2020 4
06/04/2020 5 06/05/2020 3 06/05/2020 6 06/05/2020 7
06/05/2020 8
06/05/2020 9 06/05/2020
10

NOTICE of Entry of Appearance by Edward Milo Schwab on behalf of All Plaintiffs Attorney Edward Milo Schwab added to party Agazi Abay(pty:pla), Attorney Edward Milo Schwab added to party Michael McDaniel(pty:pla), Attorney Edward Milo Schwab added to party Amy Schneider(pty:pla), Attorney Edward Milo Schwab added to party Gabriel Thorn(pty:pla) (Schwab, Edward) (Entered: 06/04/2020)
Class Action COMPLAINT and Demand for a Jury Trial against City of Denver, filed by Michael McDaniel, Agazi Abay, Amy Schneider, Gabriel Thorn.(cmadr, ) (Entered: 06/05/2020)
Case assigned to Judge R. Brooke Jackson and drawn to Magistrate Judge Scott T. Varholak. Text Only Entry (cmadr, ) (Entered: 06/05/2020)
NOTICE of Entry of Appearance by Conor Daniel Farley on behalf of City of DenverAttorney Conor Daniel Farley added to party City of Denver(pty:dft) (Farley, Conor) (Entered: 06/05/2020)
Magistrate Judge consent form issued pursuant to 28 U.S.C. 636(c). (cmadr, ) (Entered: 06/05/2020)
NOTICE of Entry of Appearance by Ross I. Ziev on behalf of All Plaintiffs Attorney Ross I. Ziev added to party Agazi Abay(pty:pla), Attorney Ross I. Ziev added to party Michael McDaniel(pty:pla), Attorney Ross I. Ziev added to party Amy Schneider(pty:pla), Attorney Ross I. Ziev added to party Gabriel Thorn(pty:pla) (Ziev, Ross) (Entered: 06/05/2020)
NOTICE of Entry of Appearance by Laura Beth Wolf on behalf of Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel ThornAttorney Laura Beth Wolf added to party Agazi Abay(pty:pla), Attorney Laura Beth Wolf added to party Michael McDaniel(pty:pla), Attorney Laura Beth Wolf added to party Amy Schneider(pty:pla), Attorney Laura Beth Wolf added to party Gabriel Thorn(pty:pla) (Wolf, Laura) (Entered: 06/05/2020)
Emergency MOTION for Hearing/Conference to Hear TRO TODAY by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Schwab, Edward) (Entered: 06/05/2020)
MOTION for Temporary Restraining Order by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Wolf, Laura) (Entered: 06/05/2020)

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06/05/2020 14 06/05/2020 15 06/05/2020
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NOTICE of Entry of Appearance by John Michael Guevara on behalf of All Plaintiffs Attorney John Michael Guevara added to party Agazi Abay(pty:pla), Attorney John Michael Guevara added to party Michael McDaniel(pty:pla), Attorney John Michael Guevara added to party Amy Schneider(pty:pla), Attorney John Michael Guevara added to party Gabriel Thorn(pty:pla) (Guevara, John) (Entered: 06/05/2020)
MINUTE ORDER re: 10 MOTION for Temporary Restraining Order filed by Amy Schneider, Agazi Abay, Michael McDaniel, Gabriel Thorn. The Court requests that the defendant submit a response brief immediately. The Court is considering when and how it can hold a hearing via video teleconference. By Judge R. Brooke Jackson on 6/5/2020. Text Only Entry (rbjsec. ) (Entered: 06/05/2020)
MINUTE ORDER re: 9 Emergency MOTION for Hearing/Conference to Hear TRO TODAY filed by Amy Schneider, Agazi Abay, Michael McDaniel, Gabriel Thorn and 10
MOTION for Temporary Restraining Order filed by Amy Schneider, Agazi Abay, Michael McDaniel, Gabriel Thorn. A Hearing is set for today, 6/5/2020 at 6:00 PM in Courtroom A 902 before Judge R. Brooke Jackson. The Hearing will be held by video teleconference. The Court's staff will provide the connection information to the parties by separate email. The general public or media may listen to the hearing by dialing Toll Free: 888-204-5984 using Access Code: 7557338#. By Judge R. Brooke Jackson on 6/5/2020. Text Only Entry (rbjsec. ) (Entered: 06/05/2020)
COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Judge R. Brooke Jackson: Motion Hearing held on 6/5/2020. Matter is TAKEN UNDER ADVISEMENT, written order to issue. Court Reporter: Sarah Mitchell. (jdyne, ) (Entered: 06/05/2020)
NOTICE re 10 MOTION for Temporary Restraining Order of Proposed Temporary Restraining Order by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn (Wolf, Laura) (Entered: 06/05/2020)
ORDER granting in part 10 Motion for TRO by Judge R. Brooke Jackson on 6/5/20.(jdyne, ) (Entered: 06/05/2020)

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06/06/2020 19 06/06/2020
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06/10/2020 22

Emergency MOTION to Amend/Correct/Modify 16 Order on Motion for TRO by Defendant City of Denver. (Attachments: # 1 Exhibit A - Body Camera Policy)(Lewis, Melanie) (Entered: 06/05/2020)
ORDER taking under advisement 17 Motion to Amend/Correct/Modify. You have not conferred with opposing counsel, and they have not responded. Ideally, you reach agreement. However, if you have continued to try to reach opposing counsel (and there seem to be at least four of them)but cannot, I will rule without their input on or before 6:00 p.m. tonight (Saturday).n by Judge R. Brooke Jackson on 6/6/20. Text Only Entry(rbj) (Entered: 06/06/2020)
NOTICE re 17 Emergency MOTION to
Amend/Correct/Modify 16 Order on Motion for TRO by Defendant City of Denver (Lewis, Melanie) (Entered: 06/06/2020)
RESPONSE to 17 Emergency MOTION to
Amend/Correct/Modify 16 Order on Motion for TRO filed by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Wolf, Laura) (Entered: 06/06/2020)
ORDER granting in part and denying in part 17 Motion to Amend/Correct/Modify. Having reviewed the motion and response, the Court grants the motion to the extent that it requests that officers who may authorize otherwise prohibited force to respond to violence or property destruction that they personally observe are those at the level of lieutenant and above. The Court denies the motion to the extent it requests modification of the body camera language. However, as a matter of common sense, the Court is not requiring that body cameras be activated and draining batteries when nothing is happening in the officer's vicinity. The cameras should be activated and filming any and all acts of confrontation between police officers and others, and if that means increasing the supply of batteries, so be it. by Judge R. Brooke Jackson on 6/6/20. Text Only Entry(rbj) (Entered: 06/06/2020)
NOTICE of Entry of Appearance by Geoffrey Charles Klingsporn on behalf of City of DenverAttorney Geoffrey Charles Klingsporn

06/11/2020 23 06/11/2020 24 06/16/2020 25 06/16/2020 26
06/16/2020 27 06/17/2020
28 06/17/2020 29

added to party City of Denver(pty:dft) (Klingsporn, Geoffrey) (Entered: 06/10/2020)
MOTION to Withdraw as Attorney by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Wolf, Laura) (Entered: 06/11/2020)
ORDER granting 23 Motion to Withdraw as Attorney. Attorney John Michael Guevara and Laura Beth Wolf are withdrawn. By Judge R. Brooke Jackson on 6/11/2020. Text Only Entry(rbjsec.) (Entered: 06/11/2020)
Emergency MOTION for Temporary Restraining Order Extension by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Schwab, Edward) (Entered: 06/16/2020)
MOTION to Amend/Correct/Modify 16 Order on Motion for TRO by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Schwab, Edward) (Entered: 06/16/2020)
MOTION for Preliminary Injunction by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Schwab, Edward) (Entered: 06/16/2020)
RESPONSE to 25 Emergency MOTION for Temporary Restraining Order Extension, 26 MOTION to Amend/Correct/Modify 16
Order on Motion for TRO filed by Defendant City of Denver. (Klingsporn, Geoffrey) (Entered: 06/17/2020)
ORDER denying 25 Emergency MOTION for Temporary Restraining Order Extension. The Court will not consider further relief until counsel certify that they have conferred, in person or by telephone, and that they have attempted in good faith to reach a stipulated order that reasonably assures that peaceful protesters in the future will be protected against inappropriate police response and that reasonably assures that police officers will be able to take reasonable actions to protect themselves, the public, and property. Further, the Court will not entertain any "emergency" motion that is based on speculation as opposed to hard evidence of misconduct. The parties, if they set aside the extremes on both sides, should be able to reach an agreement that accomplishes mutually desired goals. If the parties, despite their respective statements that they have similar goals, cannot reach an agreement, then they may

06/17/2020 30 06/17/2020 31 06/18/2020 32
06/19/2020 33
06/19/2020 34 06/19/2020
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06/23/2020 36

submit their respective proposed orders, and the Court will likely enter the order or a version of it that is the most reasonable. By Judge R. Brooke Jackson on 6/17/2020. Text Only Entry(rbjsec. ) (Entered: 06/17/2020)
ORDER denying 26 MOTION to Amend/Correct/Modify 16 Order on Motion for TRO. See the Court's order at ECF No. 29. By Judge R. Brooke Jackson on 6/17/2020.(rbjsec.) (Entered: 06/17/2020)
ORDER denying 27 Motion for Preliminary Injunction. See the Court's order at ECF No. 29. By Judge R. Brooke Jackson on 6/17/2020. Text Only Entry(rbjsec. ) (Entered: 06/17/2020)
NOTICE re 29 Order on Motion for TRO,,,, Updated Notice of Conferral Pursuant to ECF No 29 by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn (Attachments: # 1 Exhibit Emails regarding conferrals)(Ziev, Ross) (Entered: 06/18/2020)
NOTICE re 29 Order on Motion for TRO,,,, of Stipulated and Disputed Injunctive Relief by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Schwab, Edward) (Entered: 06/19/2020)
NOTICE re 29 Order on Motion for TRO,,,, Notice of Submission of Proposed Order by Defendant City of Denver (Attachments: # 1 Exhibit 1 - Proposed Order, # 2 Exhibit 2 - Phelan Declaration)(Lewis, Melanie) (Entered: 06/19/2020)
ORDER: the Court sua sponte extends its temporary restraining order for one week to June 26, 2020, with the proviso that, as to any part of the temporary restraining order that is inconsistent with the points on which the parties have agreed, the parties' agreement will prevail. by Judge R. Brooke Jackson on 6/19/20. (jdyne, ) (Entered: 06/19/2020)
MINUTE ORDER: A half-day Evidentiary Hearing Re: Preliminary Injunction is set for 6/25/2020 at 1:30 PM in Courtroom A 902 before Judge R. Brooke Jackson. Due to the COVID-19 pandemic, the hearing will be held by video teleconference. The Court's staff will provide connection instructions to the parties by email prior to the hearing. by Judge R. Brooke Jackson on 6/23/2020. Text Only Entry (rbjsec. ) (Entered: 06/23/2020)

06/24/2020 37 06/25/2020
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06/25/2020 39 06/26/2020 40 06/26/2020
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07/09/2020 42 07/25/2020 43

STIPULATION for Extension of Time to Answer or Respond to the Complaint by Defendant City of Denver. City of Denver answer due 6/25/2020. (Farley, Conor) (Entered: 06/24/2020)
RESPONSE to 27 MOTION for Preliminary Injunction filed by
Defendant City of Denver. (Attachments: # 1 Exhibit Exhibit 1
- Emergency-Curfew-Order_2020.05.30, # 2 Exhibit Exhibit 2
- Extended-Emergency-Curfew_2020.06.01, # 3 Exhibit
Exhibit 3 - Bruning Declaration, # 4 Exhibit Exhibit 6 - DPD
BWC Policy, # 5 Exhibit Exhibit 7 - Kushdilian Declaration)(Klingsporn, Geoffrey) (Entered: 06/25/2020)
COURTROOM MINUTES for Preliminary Injunction Hearing via Video Teleconference held before Judge R. Brooke Jackson on 6/25/2020. Parties are to submit a signed written stipulation via email to chambers by 10:00 a.m. on Friday, June 26, 2020. Court Reporter: Sarah Mitchell. (ebuch) (Entered: 06/25/2020)
STIPULATION by Defendant City of Denver. (Lewis, Melanie) (Entered: 06/26/2020)
ORDER APPROVING STIPULATION re: 39 Evidentiary Hearing and 40 Stipulation. The Court approves the parties' stipulation. In view of the Law Enforcement Integrity Act, to which the parties refer in the stipulation, and the other terms of the stipulation, the Court will not further extend the temporary restraining order or enter a preliminary injunction at this time. The Court retains jurisdiction to consider any future request by the plaintiffs or the defendant that might be viewed as necessary and appropriate. By Judge R. Brooke Jackson on 6/26/2020. (rbjsec, ) (Entered: 06/26/2020)
ANSWER to 4 Complaint by City of Denver.(Lewis, Melanie) (Entered: 07/09/2020)
Partial TRANSCRIPT of Preliminary Injunction - Testimony of Sgt. Havard held on June 25, 2020 before Judge Jackson. Pages: 113. NOTICE - REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to

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08/17/2020 45 08/24/2020 46 11/23/2020 47 12/15/2020
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12/17/2020 49

redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (smitc, ) (Entered: 07/25/2020)
MOTION for Order to Show Cause by Plaintiffs Agazi Abay, Michael McDaniel, Amy Schneider, Gabriel Thorn. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 13, # 11 Exhibit 14, # 12 Exhibit 15, # 13 Exhibit 16, # 14 Exhibit 18, # 15 Exhibit 19)(Schwab, Edward) (Entered: 07/27/2020)
RESPONSE to 44 MOTION for Order to Show Cause filed by Defendant City of Denver. (Klingsporn, Geoffrey) (Entered: 08/17/2020)
Conventionally Submitted Material : 1 Flash Drive. Text Only Entry. (apesa, ) (Entered: 08/24/2020)
ORDER re: 44 Motion for Order to Show Cause by Judge R. Brooke Jackson on 11/23/20.(jdyne, ) (Entered: 11/23/2020)
RESPONSE to 44 MOTION for Order to Show Cause filed by
Defendant City of Denver. (Attachments: # 1 Exhibit A -
Conferral Email 7.22.2020, # 2 Exhibit B - Pazen Declaration,
# 3 Exhibit C - Conferral Email 7.27.2020, # 4 Exhibit D
- Use of Force Report, # 5 Exhibit E - Carroll Declaration)(Lewis, Melanie) (Entered: 12/15/2020)
SUPPLEMENT/AMENDMENT to 48 Response to Motion, by Defendant City of Denver. (Attachments: # 1 Exhibit Exhibit F, # 2 Exhibit Exhibit G)(Lewis, Melanie) (Entered: 12/17/2020)

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 Case 1:20-cv-01616-RBJ Document 1 Filed 06/04/20 USDC Colorado Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-1616 AGAZI ABAY, GABRIEL THORN, AMY SCHNEIDER, and MICHAEL McDANIEL, on behalf of themselves
and other similarly situated individuals Plaintiffs,
v. CITY AND COUNTY OF DENVER,
Defendant.
NOTICE OF REMOVAL
Defendant City and County of Denver (“Denver”), through undersigned counsel, submits this Notice of Removal pursuant to 28 U.S.C. §§ 1331, 1441, and 1446.
AS GROUNDS THEREFOR, Defendant Denver states as follows: 1. Plaintiffs Agazi Abay, Gabriel Thorn, Amy Schneider, and Michael McDaniel commenced this action by filing their Complaint in the District Court for the City and County of Denver, State of Colorado, Case No. 2020CV31927, on June 4, 2020. See Exhibit A. This Notice of Removal is filed within thirty days after receipt of the Complaint and, therefore, is timely filed pursuant to 28 U.S.C. §1446(b). 2. Plaintiffs’ Complaint sets forth two claims pursuant to 42 U.S.C. § 1983, alleging that members of the Denver Police Department violated their rights under the First and Fourth Amendments of the United States Constitution during public protests between May 28, 2020 and

Case 1:20-cv-01616-RBJ Document 1 Filed 06/04/20 USDC Colorado Page 2 of 5
June 1, 2020. See Exhibit A, at ¶¶ 40-71, 87-108. Plaintiff’s Complaint also alleges that Denver has a purported policy, practice, or custom of violating the freedom of expression of protesters and of using excessive force against such protesters as well failing to train its police officers. Id. at ¶¶ 72-77. Plaintiffs are attempting to assert these claims as a class action for prospective relief on behalf of themselves and others who they contend are similarly situated. Id. at ¶¶ 78-86.
3. Plaintiff seeks uncalculated monetary damages and other relief, including costs, fees, declarations, class certification, preliminary and permanent injunctive relief, and attorney’s fees recoverable pursuant to 42 U.S.C. § 1988. Exhibit A, at p. 25.
4. Denver submits this Notice of Removal pursuant to 28 U.S.C. 1441(a), which provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. This Court has original jurisdiction over this case pursuant to 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Plaintiff’s allegations of a violation of the United States Constitution and assertion of claims pursuant to 42 U.S.C. § 1983 present a federal question over which this Court properly has jurisdiction under 28 U.S.C. § 1331. This action may therefore be removed to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. 5. Pursuant to 28 U.S.C. § 1446(a) and D.C.COLO.LCivR 81.1, copies of all state court pleadings, motions and other papers are attached hereto. These pleadings consist of the following:
2

Case 1:20-cv-01616-RBJ Document 1 Filed 06/04/20 USDC Colorado Page 3 of 5
a. Complaint and Jury Demand (Exhibit A); b. District Court Civil Case Cover Sheet (Exhibit B); c. District Court Summons (Exhibit C) d. Notice of In-Person Status Conference [10:00 a.m. on 6/5/2020] (Exhibit D) e. Pre-Trial Order (Exhibit E) f. Delay Reduction Order (Exhibit F) A current docket sheet (register of actions) for the state case is submitted as Exhibit G. 6. 28 U.S.C. § 1446(b)(2)(A) requires that in a civil action removed solely under section 1441(a), “all defendants who have been properly joined and served must join in or consent to the removal of the action.” Denver is the only defendant in this lawsuit. 7. An in-person status conference has been set in the Colorado state court case (District Court for the City and County of Denver, State of Colorado, Case No. 2020CV31927) for Friday, June 5, 2020, at 10:00 a.m. in Denver District Court, Courtroom 280, at 1437 Bannock Street, Denver, Colorado 80202 before the Hon. Christopher J. Baumann, Denver District Court Judge. In accordance with D.C.Colo.LCivR 81.1(c), undersigned counsel certifies that she will also separately notify the state court judge forthwith of this removal. 8. Pursuant to 28 U.S.C. § 1446(d) and D.C.Colo.LCivR 81.1(b), undersigned counsel certifies that this Notice of Removal has been sent to all other parties in this action as indicated on the certificate of service and is being filed with the clerk of the District Court for the City and County of Denver, State of Colorado, forthwith.
3

Case 1:20-cv-01616-RBJ Document 1 Filed 06/04/20 USDC Colorado Page 4 of 5
DATED this 4th day of June, 2020. Respectfully submitted, s/ Melanie B. Lewis Melanie B. Lewis, Assistant City Attorney Denver City Attorney’s Office, Civil Litigation Section 201 W. Colfax Avenue, Dept. 1108 Denver, CO 80202-5332 Telephone:(720) 913-3240 Facsimile: (720) 913-3182 Email: melanie.lewis@denvergov.org s/ Conor D. Farley Conor D. Farley, Assistant City Attorney Denver City Attorney’s Office, Civil Litigation Section 201 W. Colfax Avenue, Dept. 1108 Denver, CO 80202-5332 Telephone:(720) 913-3315 Facsimile: (720) 913-3182 Email: conor.farley@denvergov.org Counsel for Defendant City and County of Denver
4

Case 1:20-cv-01616-RBJ Document 1 Filed 06/04/20 USDC Colorado Page 5 of 5
CERTIFICATE OF SERVICE I certify that on this 4th day of June, 2020, I electronically filed the foregoing NOTICE OF REMOVAL, with exhibits, with the Clerk of the Court using the CM/ECF system and emailed a true and accurate copy of the same to the following: Edward Milo Schwab, Esq. Ascend Counsel, LLC Email: milo@ascendcounsel.co Counsel for Plaintiffs
s/ Melanie B. Lewis Denver City Attorney’s Office
5

 
 Case 1:20-cv-01616-RBJ Document 2 Filed 06/04/20 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:20-cv-1616
AGAZI ABAY, GABRIEL THORN, AMY SCHNEIDER, and MICHAEL McDANIEL, on behalf of themselves and other similarly situated individuals,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER Defendants.

ENTRY OF APPEARANCE ON BEHALF OF PLAINTIFFS
E. Milo Schwab of Ascend Counsel, LLC, hereby enters his appearance in the above captions action on behalf of Plaintiffs Agazi Abay, Gabriel Thorn, Amy Schneider, and Michael McDaniel, on behalf of themselves and other similarly situated individuals

Respectfully submitted this 4th day of June 2020.

Ascend Counsel, LLC
/s/ E. Milo Schwab _______________________
Edward Milo Schwab Ascend Counsel, LLC

Case 1:20-cv-01616-RBJ Document 2 Filed 06/04/20 USDC Colorado Page 2 of 2

CERTIFICATE OF SERVICE

3000 Lawrence Street Denver, CO 80205 (303) 888-4407 milo@ascendcounsel.co

I hereby certify that on this 4th day of June 2020, I electronically filed the foregoing Entry of Appearance with the Clerk of the Court using the Court’s CM/ECF system, which will send notification of the filing to the following:

Melanie B. Lewis, Assistant City Attorney Conor D. Farley, Assistant City Attorney Denver City Attorney’s Office, Civil Litigation Section 201 W. Colfax Avenue, Dept. 1108 Denver, CO 80202-5332 Telephone:(720) 913-3240 Facsimile: (720) 913-3182 Email: melanie.lewis@denvergov.org

/s/ E. Milo Schwab _________________

 
 Case 1:20-cv-01616-RBJ Document 16 Filed 06/05/20 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No. 20-cv-01616-RBJ AGAZI ABAY, GABRIEL THORN, AMY SCHNEIDER, and MICHAEL McDANIEL
Plaintiffs, v. CITY OF DENVER,
Defendant.
ORDER ON PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
This matter is before the court on plaintiffs Agazi Abay, Gabriel Thorn, Amy Schneider, and Michael McDaniel’s request for an temporary restraining order to enjoin defendant the City and County of Denver (“Denver”)—specifically the Denver Police Department and police officers from other local jurisdictions from whom Denver has requested assistance in responding to the protests that have arisen following the George Floyd incident in Minneapolis—from using chemical agents or certain physical force against individuals engaged in demonstration activities, documentation of the demonstration and police activities, or the treatment of injured demonstrators. ECF No. 10.
For the reasons stated herein, the motion is GRANTED IN PART. I. BACKGROUND
On May 28, 2020 citizens of Denver, Colorado joined a nationwide expression of outrage at the death of George Floyd and other acts of violence perpetrated by police officers against the
1

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African American community. Though much of the demonstrations have remained peaceful, violence and destruction has occurred at the hands of citizens and police officers alike.
Plaintiffs challenge the Denver Police Department (“DPD”)’s use of chemical agents (including mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, skunk, inert smoke, pepper pellets, xylyl bromide) and rubber projectiles on protestors participating in these demonstrations. ECF No. 1. Plaintiffs sue on behalf of themselves and similarly situated individuals, alleging that during these demonstrations the Denver police have in some instances violated their First Amendment right to free speech and their Fourth Amendment right against excessive force by using pepper spray, pepper balls, rubber bullets, flashbang grenades, and tear gas to punish plaintiffs for demonstrating against police brutality.
The Court has reviewed video evidence of numerous incidents in which officers used pepper-spray on individual demonstrators who appeared to be standing peacefully, some of whom were speaking to or yelling at the officers, none of whom appeared to be engaging in violence or destructive behavior. See ECF No. 10 at 5. Plaintiffs cite video evidence of officers using projectiles on several journalists in the process of documenting the scene. Id. at 6–8. Plaintiffs cite video evidence in which a projectile struck and knocked out a peaceful protestor. After a “medic” protestor attempts to rescue the unconscious protestor the medic is subsequently shot with projectiles. Id. at 9. Plaintiffs further cite video evidence of four incidents in which police projectiles struck the eyes of peaceful demonstrators, in some cases resulting in facial fractures, in some cases resulting in permanent loss of vision. Id. 9–10. Finally, plaintiffs cite video evidence of three incidents in which officers threw tear gas or shot pepper balls into peaceful crowds. Id. at 10–11.
Plaintiffs allege that defendant’s use of such force has resulted in injuries including loss
2

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of vision, fractured bones requiring surgery, deep lacerations, loss of eyes, ruptured testicles. Id. at 2. They further allege that officers have targeted peaceful protestors, journalists, and protest “medics” and have retaliated against demonstrators for engaging in demonstrations, and sometimes for expressing anti-law enforcement. Id. at 2–3. Plaintiffs allege that this use of force against peaceful protestors and others is sometimes intentional and that officers target projectiles at demonstrators’ heads and groins. Id. at 3.
Procedural Background Plaintiffs filed a complaint in Denver District Court on June 4, 2020. ECF No. 1-1. Defendant removed to this Court. ECF No. 1. Plaintiffs’ complaint alleges two causes of action premised on 42 U.S.C. § 1983. ECF No. 1-1 at 21, 23. First, plaintiffs allege that defendant violated their Fourth Amendment right against excessive force. Id. ¶¶ 87–97. Second, plaintiffs allege that defendant violated their First Amendment right to free speech. Id. ¶¶ 98–108. This Court heard the parties in an emergency oral argument on the motion for a TRO on June 5, 2020 at 6:00 p.m. ECF No. 13.
II. STANDARD OF REVIEW In determining whether to grant a TRO, the court must analyze the following factors: (1) whether the movant has a substantial likelihood of success on the merits; (2) whether irreparable harm will ensue if the request for a TRO is denied; (3) whether the threatened injury outweighs the harm that the TRO may cause the defendant; and (4) whether, if issued, the TRO will not adversely affect the public interest. See General Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007).
III. ANALYSIS A. Likelihood of Success on the Merits
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In cases in which the deprivation of constitutional rights is at issue, the likelihood of the success on the merits factor is determinative. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (quoting ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012), cert. denied, --- U.S. ---, 133 S. Ct. 651 (2012)) (“[I]n First Amendment cases, the likelihood of success on the merits will often be the determinative factor.”).
Before turning to these issues, however, I wish to make certain things perfectly clear, as I did during the hearing held earlier this evening. First, people have an absolute right to demonstrate and protest the actions of governmental officials, including police officers. It is one of the many freedoms on which this country was built. Second, police have a very difficult and often thankless job. They frequently are called upon to make split second decisions and to expose themselves to danger while protecting the health and safety of the rest of us. Third, some of the behaviors of what I hope and believe to be a minority of the police officers in Denver and the nation during recent days (and before), not only vis-à-vis persons of color but against peaceful protesters of all backgrounds, have been disgusting. Finally, as I emphasized during the hearing, the difficulty is in trying to draw an enforceable line that permits police officers to use appropriate means to respond to violence and destruction of property without crossing the line into the chilling free speech and abusing those who wish to exercise it.
I analyze the likelihood of success of each of plaintiffs’ two claims. 1. Plaintiffs’ Fourth Amendment Claim
The Fourth Amendment guarantees the right to be free from excessive force. Excessive force claims are analyzed under the objective reasonableness standard of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395 (1989). The reasonableness of an officer’s conduct must be assessed “from the perspective of a reasonable officer on the scene,” recognizing the fact
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that the officer may be “forced to make split-second judgments” under stressful and dangerous conditions. Id. at 396–97. The Fourth Amendment standard requires inquiry into the factual circumstances of every case. See id. at 396–97. Relevant factors include the severity of the crime, the potential threat posed by the suspect to the officer’s and others’ safety, and the suspect’s attempts to resist or evade arrest. See id.
Here, plaintiffs provide video evidence of police conduct at the demonstrations. Those videos show that the officers had ample time for reflection and were not dealing with dangerous conditions. Named plaintiffs were attacked with rubber bullets, tear gas, etc, allegedly solely on the basis of their presence at the demonstrations, their viewpoint, or their attempts to render treatment to injured protestors. Additionally, plaintiffs allege that officers specifically aimed at heads and groins, causing broken facial bones and ruptured testicles. These are peaceful demonstrators, journalists, and medics who have been targeted with extreme tactics meant to suppress riots, not to suppress demonstrations.
There may later be questions of qualified immunity to grapple with, but plaintiffs have established a strong likelihood that defendant engaged in excessive force contrary to the Fourth Amendment.
2. Plaintiffs’ First Amendment Claim The First Amendment provides that all citizens have a right to hold and express their personal political beliefs. See Cohen v. California, 403 U.S. 15, 24 (1971). Organized political protest is a form of “classically political speech.” Boos v. Barry, 485 U.S. 312, 318 (1988). “[T]he First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association.” McCutcheon v. Fed. Election Com’n, 572 U.S. 185, 203 (2014). This “reflects a profound national commitment to the principle that debate
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on public issues should be uninhibited, robust, and wide-open,” and the Supreme Court has “consistently commented on the central importance of protecting speech on public issues.” Id. (internal citations omitted) (collecting cases). Thus courts must “scrutinize carefully any restrictions on public issue picketing.” Id. (citations omitted).
Additionally, the Supreme Court “has repeatedly held that police may not interfere with orderly, nonviolent protests merely because they disagree with the content of the speech or because they simply fear possible disorder.” Jones v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (citing Cox v. Louisiana, 379 U.S. 536, 550 (1965)). Indeed, “it has long been clearly established that the First Amendment bars retaliation for protected speech and association.” Buck v. City of Albuquerque, 549 F.3d 1269, 1292 (10th Cir. 2008) (quoting Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 848 (10th Cir. 2005)).
The Tenth Circuit examines “First Amendment retaliation claims under Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000),” which requires inquiry into whether (1) plaintiffs were engaged in constitutionally protected activity; (2) defendants caused the plaintiffs to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) defendant’s actions were motivated by plaintiffs’ protected activity. Id.
Here, first, plaintiffs were engaged in constitutionally protected activity through organized political protest. Second, defendant’s use of excessive force likely caused injury sufficient to chill a person of ordinary firmness from continuing to engage in that political protest. Officers used physical weapons and chemical agents to prevent not just peaceful demonstration, but also the media’s ability to document the demonstrations and plaintiffs’ and third parties’ ability to offer aid to demonstrators. Peaceful demonstrators’ legitimate and credible fear of police retaliation is silencing their political speech—the very speech most highly
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valued under the First Amendment. Third, it also seems likely that defendant’s actions were motivated by the content of plaintiffs’ demonstrations against police violence. Citizens should never have to fear peaceful protest on the basis of police retaliation, especially not when protesting that very same police violence.
As with plaintiffs’ Fourth Amendment claims, there may later be questions of qualified immunity. For now, however, I find that plaintiffs have established a strong likelihood that defendant violated plaintiffs’ First Amendment right to free speech.
B. Irreparable Harm to the Movant “The Supreme Court has made clear that ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality)). The demonstrations in Denver are ongoing, likely even as this opinion is written. The demonstrations will likely continue tonight and at least into the weekend. If immediate relief is not granted, plaintiffs’ speech would be chilled and outright denied over the next several days or weeks of demonstrations. Indeed, irreparable harm has already occurred in the form of physical injury and the suppression of speech; there is no reason such harm would not otherwise continue if this relief were denied. Officers would continue to use force, secure in the knowledge that retrospective claims take a significant amount of time, effort, and money to pursue. Significantly, plaintiffs also note that their “speech is deeply rooted in the [current] time and context.” ECF No. 10 at 18. I recognize the importance of shielding and uplifting this ongoing, nationwide movement. As such, I find that irreparable harm would occur were I to deny this relief.
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C. Balancing Harm to the Nonmovant Plaintiffs’ motion does not discuss potential harm to the defendant. In theory, the inability to use the complained-of tactics limit the officers’ ability to protect themselves against potential violence from demonstrators. Yet this is a hypothetical harm, especially given the fact that officers have access to many other types of non-lethal weapons that they use on a daily basis, including tazers. The unlikelihood of such harm to officers is outweighed by the very real harm that has already been caused to plaintiffs. D. Public Interest The Tenth Circuit has recognized that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). The Tenth Circuit has particularly recognized a “strong public interest in protecting First Amendment values.” Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983). Even where individuals’ constitutional rights come into conflict with other important values or public objectives, the Tenth Circuit has held that those other values must yield to the protection of individuals. For example, in Awad v. Ziriax, the Tenth Circuit noted that “[w]hile the public has an interest in the will of the voters being carried out . . . the public has a more profound and longterm interest in upholding an individual’s constitutional rights.” 670 F.3d at 1132. Here, it is clearly in the public interest to protect plaintiffs’ right to demonstrate, the media’s ability to document that demonstration, and third parties’ ability to render aid to demonstrators without threat of excessive force by police. Plaintiffs’ lawsuit is itself a class action on behalf of “all similarly situated demonstrators and citizens of Denver whose
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constitutional rights have been, and continue to be, violated by the Denver Police Department.” ECF No. 10 at 2.
Plaintiffs do not expressly discuss the potential harm to the public interest. The most likely potential harm is an increase in property damage. Although I do not agree with those who have committed property damage during the protests, property damage is a small price to pay for constitutional rights—especially the constitutional right of the public to speak against widespread injustice. If a store’s windows must be broken to prevent a protestor’s facial bones from being broken or eye being permanently damaged, that is more than a fair trade. If a building must be graffiti-ed to prevent the suppression of free speech, that is a fair trade. The threat to physical safety and free speech outweighs the threat to property.
E. Conclusion In issuing this relief I do not seek to prevent officers from protecting themselves or their community. I seek to balance citizens’ constitutional rights against officers’ ability to do their job. However, the time is past to rely solely on the good faith and discretion of the Denver Police Department and its colleagues from other jurisdictions. I believe in everything that Commander Phelan testified during tonight’s hearing about the duty of the police to protect the rights of citizens who demonstrate and protest. However, the Denver Police Depart has failed in its duty to police its own.
ORDER Plaintiffs’ motion for a temporary restraining order, ECF No. 10, is GRANTED in PART. The Court temporarily enjoins the City and County of Denver, and specifically the Denver Police Department and officers from other jurisdictions who are assisting Denver Police Officers, from employing chemical weapons or projectiles of any kind against persons engaging
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in peaceful protests or demonstrations. To be better assure that this idealistic order is carried out, the Court temporarily enjoins the Denver Police Department and officers from other jurisdictions working with Denver Police Department officers from using chemical weapons or projectiles unless an on-scene supervisor at the rank of Captain or above specifically authorizes such use of force in response to specific acts of violence or destruction of property that the command officer has personally witnessed. The Court further orders that:
1. Kinetic Impact Projectiles (“KIPs”) and all other non- or less-lethal projectiles may never be discharged to target the head, pelvis, or back.
2. KIPs and all other non- or less-lethal projectiles shall not be shot indiscriminately into a crowd.
3. Non-Denver officers shall not use any demonstration of force or weapon beyond what Denver itself authorizes for its own officers. Any non-Denver officer permitted to or directed to be deployed to the demonstrations shall be considered an agent of Denver such that Denver shall ensure such officer is limiting their use of force to that authorized by the Defendant.
4. All officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording at all times, and they may not intentionally obstruct the camera or recording.
5. Chemical agents or irritants (including pepper spray and tear gas) may only be used after an order to disperse is issued.
6. Any and all orders to disperse must be followed with adequate time for the intended audience to comply, and officers must leave room for safe egress. If it appears that the
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Case 1:20-cv-01616-RBJ Document 16 Filed 06/05/20 USDC Colorado Page 11 of 11 intended audience was unable to hear the order, the order must be repeated prior to the use of chemical agents or irritants. DATED this 5th day of June, 2020, 8:39 p.m. BY THE COURT: ___________________________________ R. Brooke Jackson United States District Judge
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 Case 1:20-cv-01616-RBJ Document 35 Filed 06/19/20 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No. 20-cv-01616-RBJ AGAZI ABAY, GABRIEL THORN, AMY SCHNEIDER, and MICHAEL McDANIEL
Plaintiffs, v. CITY OF DENVER,
Defendant.
ORDER ON PLAINTIFFS’ MOTION TO EXTEND TEMPORARY RESTRAINING ORDER
The Court issued as temporary restraining order on June 5, 2020. ECF No. 16. At the defendant’s request, the Court modified the temporary restraining order to substitute Lieutenant for Captain on June 6, 2020. ECF No. 21. Absent a specific expiration date, temporary restraining orders may not exceed 14 days unless the Court, for good cause, extends it. See Fed. R. Civ. P. 65(b)(2).
On June 16, 2020 plaintiffs filed a motion for an extension of the temporary restraining order, the primary focus of which was the upcoming Juneteenth celebration on June 19, 2020. The primary focus of the motion to modify the temporary restraining order was plaintiffs’ desire to have a mechanism by which they could monitor defendant’s compliance with the order. The focus of plaintiffs’ desire to convert the order into a preliminary injunction was to extend the order through anticipated future public demonstrations until a permanent injunction hearing could be held. See ECF Nos. 25-27. The defendant filed responses. ECF No. 28.
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On June 17, 2020 the Court denied plaintiffs’ motions in a minute order which stated, The Court will not consider further relief until counsel certify that they have conferred, in person or by telephone, and that they have attempted in good faith to reach a stipulated order that reasonably assures that peaceful protesters in the future will be protected against inappropriate police response and that reasonably assures that police officers will be able to take reasonable actions to protect themselves, the public, and property. Further, the Court will not entertain any "emergency" motion that is based on speculation as opposed to hard evidence of misconduct. The parties, if they set aside the extremes on both sides, should be able to reach an agreement that accomplishes mutually desired goals. If the parties, despite their respective statements that they have similar goals, cannot reach an agreement, then they may submit their respective proposed orders, and the Court will likely enter the order or a version of it that is the most reasonable. ECF No. 29. It is now late in the afternoon of June 19, 2020. Until minutes ago the Court had heard only from the plaintiffs. In their “notice,” filed on June 18, 2020, plaintiffs summarized several exchanges of emails with the defendant but, at least at that time, very little conferring, despite my explicit direction that counsel confer in person or by telephone. See ECF Nos. 32 and 32-1. The parties did not appear at that time to be able to reach a stipulation of any kind. The Court has now been informed of a stipulation that Denver police officers (1) will not discharge Kinetic Impact Projectiles or other non- or less-lethal projectiles in a manner that targets the head, pelvis, or back or indiscriminately into a crowd; (2) will not use chemical agents or irritants, including pepper spray, prior to issuing an order to disperse in a sufficient manner to ensure that the order is heard, followed by sufficient time and space to allow compliance with the order; and (3) officers deployed to or engaged in demonstrations must have their body-worn cameras recording any and all acts of confrontation between police officers and others. I appreciate the parties’ agreement on these items and adopt them as an order of the Court. However, there still are disputes in other areas, and the evening of the Juneteenth holiday is upon us. There is not time to hold an evidentiary hearing to resolve the remaining disputes.
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Case 1:20-cv-01616-RBJ Document 35 Filed 06/19/20 USDC Colorado Page 3 of 3 Accordingly, the Court sua sponte extends its temporary restraining order for one week to June 26, 2020, with the proviso that, as to any part of the temporary restraining order that is inconsistent with the points on which the parties have agreed, the parties’ agreement will prevail. The Court will not further extend the temporary restraining order or issue a preliminary injunction without an agreement of the parties on all disputed issues or an evidentiary hearing.
DATED this 19th day of June, 2020, at 4:57 p.m. BY THE COURT: ___________________________________ R. Brooke Jackson United States District Judge
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 Case 1:20-cv-01616-RBJ Document 40 Filed 06/26/20 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 20-cv-1616-RBJ AGAZI ABAY, GABRIEL THORN, AMY SCHNEIDER, and MICHAEL McDANIEL, on behalf of themselves
and other similarly situated individuals, Plaintiffs,
v. CITY AND COUNTY OF DENVER,
Defendant.
STIPULATION
The parties agree and stipulate during the pendency of this litigation to the following: 1. The requirements of C.R.S. § 24-31-905(1)(a-c) regarding law enforcement action in response to protests are effective as of June 19, 2020. As provided therein: (1) In response to a protest or demonstration, the Denver Police Department and any person acting on behalf of DPD shall not: a. discharge Kinetic Impact Projectiles (“KIPs”) and all other non- or less-lethal projectiles in a manner that targets the head, pelvis, or back; b. discharge KIPs indiscriminately into a crowd; c. use chemical agents or irritants, including pepper spray and tear gas, prior to issuing an order to disperse in a sufficient manner to ensure the order is heard and

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repeated if necessary, followed by sufficient time and space to allow compliance with the order. 2. In addition to the requirements of C.R.S. § 24-31-905, Denver agrees: a. DPD will not use chemical agents or KIPs unless an on-scene supervisor at the rank of Sergeant or above specifically authorizes such use of force in response to specific acts of violence or destruction of property that the Sergeant has personally witnessed or learned about from a fellow officer, absent exigent circumstances. Exigent circumstances include but are not limited to situations where the Sergeant could not be immediately present and delay would be unreasonable. b. All officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording any and all acts of confrontation between police officers and others. Officers shall not intentionally obstruct the camera or recording. 3. Non-Denver officers shall not use any weapon beyond what Denver itself authorizes for its own officers. All non-Denver officers shall comply with Colorado law regarding the use of force and responses to protests or demonstrations.

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On behalf of the Plaintiffs:
s/ Ross Ziev Ross Ziev, Esq. Help in Colorado, Ross Ziev, PC Email: ross@helpincolorado.com

On behalf of the City and County of Denver:
s/Melanie Lewis____________________ Melanie Lewis, Assistant City Attorney Denver City Attorney’s Office Civil Litigation Section 201 W. Colfax Avenue, Dept. 1108 Denver, CO 80202-5332 Telephone:(720) 913-3100 Facsimile: (720)913-3182 Email: melanie.lewis@denvergov.org

 
 Case 1:20-cv-01616-RBJ Document 1-1 Filed 06/04/20 USDC Colorado Page 1 of 26

DENVER DISTRICT COURT 1437 Bannock Street Denver, CO 80202

DATE FILED: June 4, 2020 3:04 PM
▲FCIA​CLSIONEGUNRUIDTM: BU94ES9RE1:327O072NF0CLC6YV583▲31927

Plaintiff: AGAZI ABAY, GABRIEL THORN, AMY SCHNEIDER, and MICHAEL McDANIEL ​On behalf of themselves and other similarly situated individuals​,
v.

Case No. Division:

Defendant: CITY OF DENVER​.

Attorney for Plaintiff Edward Milo Schwab, #47897 Ascend Counsel, LLC 3000 Lawrence Street Denver, CO 80205 (303) 888-4407 milo@ascendcounsel.co
CLASS ACTION COMPLAINT AND DEMAND FOR A JURY TRIAL

For their Complaint, Plaintiffs state and allege as follows: INTRODUCTION
The Denver Police cannot be trusted with the use of non-lethal weapons against protesters. For seven days, they have shown, across hundreds of incidents and just as many officers, that the use of these “less than lethal” ordinances is being done without regard to the constitutional rights of protesters and bystanders. The officers have, time and again, targeted journalists and ordinary citizens documenting their conduct, targeted medics seeking to give aide to those harmed by the use of these ordinances, failed to follow training or have not been trained on the use of these ordinances, and most upsettingly, these officers have simply used these weapons to assert and show their dominance over protesters and the citizens of Denver and
1
EXHIBIT A

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Colorado. These actions have not been isolated events - rather, they are part of a force-wide use of excessive and unconstitutional force to restrict the constitutional rights of protesters challenging racism and police brutality in our society. This pattern and practice of conduct by Denver police tramples on the Constitution.
Plaintiffs bring this action to ask the Court to restrain the City of Denver from further violence and unconstitutional conduct.
THE PARTIES 1. Plaintiff Agazi Abay is a Colorado resident who lives in the city and county of Denver. 2. Plaintiff Gabriel Thorn is a Colorado resident who lives in the city and county of Denver. 3. Plaintiff Amy Schenider is a Colorado resident who lives in the city and county of
Denver. 4. Plaintiff Michael McDaniel is a Colorado resident who lives in the city and county of
Denver. 5. Defendant City of Denver is a municipality incorporated in the State of Colorado.
JURISDICTION AND VENUE 6. This Court has jurisdiction over the subject matter of this action pursuant to C.R.S. Const.
art. VI,§ 9(1), and over the parties pursuant to C.R.S. § 13-1-124(1)(b) because this action arises from the commission of tortious acts within the State of Colorado, by residents of the State of Colorado. 7. Pursuant to C.R.C.P. 98(c), venue is proper in the District Court in and for the City and County of Denver because the conduct complained of occurred within the City and County of Denver.
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BACKGROUND 8. On Monday, May 25, 2020, George Floyd was murdered by an officer of the Minneapolis
Police Department (“MPD”). The events of Mr. Floyd’s arrest and murder were captured on video by multiple bystanders as well as individual officers’ body cameras. The videos depicted Mr. Floyd pinned on the street, face down and increasingly unresponsive, while MPD Officer Derek Chauvin knelt on Mr. Floyd’s upper back and neck, two officers held him down, and another stood by. All four officers were soon fired by the MPD. 9. Nationwide protests have erupted in response to this police brutality. 10. Denver’s first protest occurred on Thursday, May 28, 2020. 11. Every night since and including May 28, 2020, peaceful protesters have assembled in downtown Denver, often on the steps of the Colorado State Capitol building. Although some protestors engaged in destructive activity (e.g., burning property and looting), these incidences have been remote when compared to the thousands of otherwise peaceful protesters. 12. Nonetheless, the Denver Police Department (“Denver Police” or “DPD”), and other police departments at their invitation, have engaged in injurious riot control tactics without issuing clear warnings and orders to disperse. 13. The Denver Police immediately turned to riot gear and riot tactics from the first day of protest. 14. One officer posted a picture on instagram of himself and two fellow officers stating: “Let’s start a riot.”
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15. This officer was subsequently terminated. The Denver Police have taken no action against the other two officers.
16. But this officer was alone only in saying the quiet part out loud. 4

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17. As Exhibit A shows, another DPD officer, when asked what was going to happen at 8:00 (the city enforced curfew), the officer responded: “What’s going to happen is we’re going to start beating the fuck out of you.”
See video of Denver Police officer threatening protester: ​www.ascendcounsel.co/exhibita 18. The Police were there to counter the police brutality protests, and indeed were dressed and armed to use violence. 19. This mentality that the DPD was not there to serve a public safety role, but instead to dominate the protesters, is evident through talks with protesters, bystanders, press, and indeed, as captured on video. 20. In Exhibit B, we see a protester confronting a police officer. At some point, the police officer decides he has had enough of the protester’s talking back and pepper sprays him to show who is in control.
See video of Denver Police wantonly pepper spraying a protester: www.ascendcounsel.co/exhibitb
21. As the Exhibits below will show, such an incident was not isolated. See second video of Denver Police wantonly pepper spraying a protester: www.ascendcounsel.co/exhibitc See third video of police officers tearing up sign of peaceful protester and spraying without justification: ​www.ascendcounsel.co/exhibitd See fourth video of line of officer spraying people without provocation: www.ascendcounsel.co/exhibite
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22. What becomes clear in viewing these videos is that the Denver Police are not using pepper spray in a limited manner, but instead as a tool to suppress expression they don’t appreciate.
23. Not only is the Denver Police using pepper spray to suppress expression, they are using it to deter documentation of their activity. In Exhibit F, we see a peaceful protester documenting a team of police in riot gear in broad daylight. When one of the officers notices the filmmaker, he takes action by targeting the filmmaker and shooting him with a pepper bullet.
See video of Denver police officer punishing the mere act of documenting him in his riot gear. ​www.ascendcounsel.co/exhibitf
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See second video of Denver police shooting at photographers: www.ascendcounsel.co/exhibitg
24. The Denver Police’s attacks on those documenting the protests and the actions of the Denver Police was not limited to protesters. The Denver Police also targeted accredited journalists whose credentials were clearly visible.
See photo of Denver Post reporter who was shot with pepper ball or rubber bullet
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25. The Denver Post reported on May 29, 2020 that photojournalist Hyoung Chang was struck twice Thursday night with pepper balls that cut his arm and shattered the press credential hanging around his neck. Chang said a Denver Police officer fired two pepper balls directly at him.
See camera lens broken by police:
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26. Denver Post​ reporter Elise Schmelzer, who was wearing a reflective vest with the word “Press” on it, said ​Denver Police ​officers on Thursday fired at least one pepper ball at her feet.
27. On Friday May 29, 2020, a Denver7 reporter wrote on Twitter that a station photographer was hit four times by “paint balls” fired by ​Denver Police​. 9

Case 1:20-cv-01616-RBJ Document 1-1 Filed 06/04/20 USDC Colorado Page 10 of 26
28. On Saturday May 31, 2020, a 9NEWS reporter wrote on Twitter that state Capitol security officers fired “something” that hit his backpack “just after I went live with a large camera and light.” The reporter was wearing a 9NEWS hat. He found a yellow-and-black projectile at the spot where he was hit.
29. On Saturday May 31, 2020, a reporter for Denverite wrote on Twitter: “Cops shoved me after I showed them my press credentials and forced me to inhale choking gas.”
30. On Saturday May 31, 2020, a journalist wrote on Twitter that, while standing with photographers, an officer kicked a rolling chemical cannister “sideways right into us. Took it full in the face …”
31. On Sunday, another ​Denver Post​ reporter wrote on Twitter that he and a Denverite reporter, who was wearing a neon press vest, were ordered by an officer to move “toward an epic amount of tear gas … Cop points weapon right at us. We were forced back into the chaos and we both took a ton of gas to the face.” A ​New York Times​ reporter posted a photo of a contusion the ​Post​ reporter suffered after being hit with a projectile: “He screamed “Press” shortly before being hit as officers fired on protesters.”
32. The Denver Police also specifically targeted medics wearing red crosses attempting to provide care and treatment to those injured by the Police’s wanton use of force.
See video of protester being hit in the head and knocked out by a rubber bullet, and medics being shot at as they try to rescue him: ​www.ascendcounsel.co/exhibith
33. Protester after protester have spoken out about seeing police target medics, especially medics while they attempt to administer care to people prone on the ground. As shown
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Case 1:20-cv-01616-RBJ Document 1-1 Filed 06/04/20 USDC Colorado Page 11 of 26 below in the Megan Matthews news report, medics were also attacked while attempting to render aide.
34. Not only were the Denver Police targeting protesters, press, and medics, they were and continue to aim their ordinances at the heads and groins of individuals, in a clear tactic to inflict maximum damage, pain, and distress to their target.
See also news report of Megan Matthews who was hit in the eye with a rubber bullet: https://kdvr.com/news/local/police-projectile-fractures-denver-protesters-face-she-says-it-w as-unprovoked/?fbclid=IwAR1PDmRuiWVLGjXjkXlzaYODofgSH4dxMqPZIIg95uWn0RjvqCZBZq_bBs
See also news report of second person hit in the eye with a rubber bullet: https://kdvr.com/news/local/local-man-needs-his-eye-removed-after-projectile-hits-his-face-
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during-afternoon-protest-in-denver/?fbclid=IwAR2Q9RdYRmi3dp5GnuyOf6Tm6E-Noqu hzKTvHSknBTmUKLuZ-17UIc4YJkA See also video of third person hit in the eye with a rubber bullet: www.ascendcounsel.co/exhibiti See also video of fourth person hit in the eye with a rubber bullet: www.ascendcounsel.co/exhibitj
35. The targeting of heads is a common feature of the Police’s response to protesters, and Plaintiffs will attest to the fact that they saw and/or were targeted with rubber bullets.
36. This is not only excessive and malicious, it is also contrary to guidance on how rubber bullets are to be used. Proper use of 40 millimeter rubber bullets requires that they be aimed at the ground, not at the mass of a person’s body. However, the City of Denver has failed to train the DPD on proper use of these ordinances before unleashing them on the City’s civilians.
37. In addition to the improper use of these ordinances, general excessive force against protesters, press, and medics, the real story is that the DPD is not maintaining peace and public safety, but rather, is using force against peaceful protesters.
See video of peaceful protesters chanting hands up don’t shoot before being tear gassed and shot with pepper balls in broad daylight: ​www.ascendcounsel.co/exhibitk See second video of police throwing teargas unprompted into a peaceful crowd: www.ascendcounsel.co/exhibitl See video of Denver Police casually throwing flashbangs into peaceful crowds: www.ascendcounsel.co/exhibitm
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38. The Denver Police is and continues to use these weapons to send the message that they are to be feared, that they are there to dominate, and that they will use their weapons to silence any person they feel is not respecting their authority.
See video of more than a dozen Denver officers shooting into a car in traffic with a pregnant woman inside: ​www.ascendcounsel.co/exhibitn See video of Denver officers spraying pepper balls at a woman instead of asking her to move: ​www.ascendcounsel.co/exhibito
39. Unequivocally, the Denver Police cannot be trusted with these weapons. They use them without legitimate public safety goals, they use these weapons to prove a point, they use these weapons to silence criticism of the very practices that are being protested, they use these weapons with an intent to inflict maximum injury, and they use these weapons to dominate protesters, medics, and press. The Denver Police have proven, night after night, that they cannot be trusted to use these weapons. PLAINTIFF ALLEGATIONS
40. Plaintiff Agazi Abay is a resident of Denver and is a student and former social worker. 41. Mr. Abay attended protest rallies on Thursday, Friday, and Saturday. 42. On Thursday, Mr. Abay was tear gassed while marching. Later that evening, Mr. Abay
was again tear gassed and shot at. 43. On Friday, Mr. Abay again joined the protest rally where he again observed peaceful
protests. Over the course of the evening, more and more police arrived, lobbing tear gas and shooting at protesters. Mr. Abay observed people being tear gassed and shot at.
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44. Mr. Abay attempted to help several people who had been severely tear gassed. While attempting to provide, Mr. Abay was targeted by police and further tear gassed. Mr. Abay, at no time, made and move or threat towards police. Their actions were provoked by his efforts to assist injured protesters.
45. During Mr. Abay’s tear gassing on Friday evening, he began coughing. The tear gas was so thick and strong that he could not open his eyes. Mr. Abay struggled with these severe burning sensations and coughing for at least 15 minutes, and could not escape the continual bombardment of tear gas from the police.
46. Mr. Abay once more attended the protest rally on Saturday. He worked to stay away from the commotion to give himself a chance to heal from the previous two nights’ attacks. But feeling guilty about the violence being done to other protesters, he ultimately decided to go back in to protest and assist those being injured.
47. That evening, one things Mr. Abay observed was the police in riot gearing, hanging off of vans, driving around shooting protesters. It was almost as if the police were playing a game of hide and seek, only when they found someone, the shot at them. Mr. Abay never observed the police give any oral commands.
48. Plaintiff Gabriel Thorn is a resident of Denver and is a public employee. 49. Mr. Thorn attended protest rallies on Friday and Sunday. While at the protests, Mr. Thorn
served at times as a medic. Mr. Thorn is a verteran who served in the Armed Forces. 50. On Friday, Mr. Thorn observed a largely peaceful protest. He witnessed officers from the
Denver Police Department utilize rubber bullets, tear gas, flashbang grenades, and pepper
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balls. The protesters were attacked indiscriminately with these ordinances and without regard for safety. 51. Mr. Thorn also observed police officers aiming at bodies and heads when firing rubber bullets. Having served in the military and been trained to use rubber bullets, Mr. Thorn was struck that these officers had not been trained to use them correctly. His training in the military made clear that these bullets were to be aimed at the ground and ​never directly at people, even in war zones. 52. On Friday, Mr. Thorn was himself the victim of police violence. Mr. Thorn was struck with pepper balls, rubber bullets, and was tear gassed multiple times. When Mr. Thorn was struck with rubber bullets, as with many others, he was struck in the head. Fortunately, he was wearing a helmet at that time. 53. Mr. Thorn also wore a red cross on his helmet and backpack to indicate that he was a medic there to treat those injured. Several times while treating injured people, police officers targeted him and shot pepper balls. 54. Mr. Thorn also observed unprovoked drivebys around 6:00 pm whereby police officers would drive by in cruisers shooting protesters with pepper balls from the car windows. 55. Plaintiff Amy Schneider is a resident of Denver and works as a union organizer. 56. Ms. Schneider attended protest rallies on the evening of Saturday, Sunday, and Monday. 57. On Saturday afternoon, Ms. Schneider, while peacefully protesting, was struck with tear gas, leaving her with burning eyes and throat. She could not breathe for several minutes and believed she was dying.
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58. On Sunday evening, Ms. Schneider was again peacefully protesting when Denver police officers aimed and shot flashbang grenades at Ms. Schneider’s head.
59. On Monday evening, Ms. Schneider was once again peacefully protesting when Denver police officers surrounded her and fellow protesters. Many protesters were teargassed, but Ms. Schneider was thankfully not at this point and attempted to provide aide to those in pain.
60. Ms. Schneider heard that medics were being targeted by the Denver police. 61. Ms. Schneider quickly again found herself surrounded by Denver police, and which point
they began shooting her with pepper bullets. The Police never made any demand and continued to shoot protesters who kept their hands up in the air. 62. The protesters begged the cops to be allowed to go home, but the police continued to shoot. 63. Soon thereafter, Ms. Schneider was tackled by a police officer, without resisting. 64. She was then arrested and placed in a windowless van with other protesters. When one of the protesters who had been gassed began having an asthma attacked, the protesters begged the police officers to call for medical attention. Instead the police officers laughed and said: “if you wanted to breathe, you should have stayed home tonight.” 65. Plaintiff Michael McDaniel is a resident of Denver. 66. Mr. McDaniel attended the protest rally on Saturday afternoon to serve as a medic to attend to those injured by the police. 67. At one point, the Police excessive tear gassed a parking lot on the corner of Colfax and Lincoln. The tear gas was so thick, that it was a cloud that could not be seen through.
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68. Mr. McDaniel saw a protester crawling out on his hands and knees. The protester was choking and could not breathe.
69. Mr. McDaniel, with his back to the police, kneeled down to treat the protester, who was still on all fours.
70. The police then proceeded to target and shoot Mr. McDaniel and the protester with pepper bullets.
71. Thankfully, Mr. McDaniel was wearing a helmet, so when the police aimed at his head, they did not cause any injury, other than the intense burning pain that Mr. McDaniel experienced as a result of the pepper balls. MUNICIPAL ALLEGATIONS
72. The City of Denver has policies and customs of violating the freedom of expression of protesters and of using excessive force against such protesters.
73. The City of Denver has a custom or policy of deploying chemical agents and injurious, less-lethal ballistics against protesters without provocation. Denver has a custom or practice of targeting press, of targeting medics, and of using force for no reason other than to show its dominance.
74. The City of Denver has failed to train its police officers on the use of chemical agents and less-lethal ballistics. This is shown in part by the fact that officers are aiming rubber bullets at peoples’ heads and groins when proper training would instruct that this should never be done. Rubber bullets are to be aimed at the ground. Nonetheless, the police continue to target heads, leading to many head and eye injuries.
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75. The City of Denver has a custom or practice of targeting press and those recording police actions. The City of Denver entered into a settlement after arresting a reporter in 2018 for simply documenting police conduct.1 The police have either not been trained under this settlement, or have a custom of disregarding their duties under it. Journalists continue to be targeted2 and protesters are attacked for recording police abuse.
76. The City of Denver has a custom or practice of failing to provide warning and/or dispersal orders before using chemical agents and injurious, less-lethal ballistics against protesters, medics, and members of the media.
77. The City of Denver has a custom or practice of infringing on peoples’ right to assemble, to protest, to express their political and other beliefs, and on the basis of their viewpoint. CLASS ALLEGATIONS
78. Under Rules 23(a) and 23(b)(1) and (2) of the Colorado Rules of Civil Procedure, Plaintiffs bring this action for prospective relief on behalf of themselves and other similarly situated people who, as protesters, medics, journalists, and citizens of the State of Colorado, will in the future observe, record, and participate in protest activity and in public places within the city Denver in traditional or designated public fora (the “Plaintiff Class”). The Plaintiff Class is defined as:
1
https://www.coloradoindependent.com/2019/09/10/denver-police-agree-to-first-amendment-training-in-settlement-w ith-indy-editor-they-wrongfully-detained/
2
https://www.coloradoindependent.com/2020/06/01/denver-floyd-protests-law-enforcement-targeting-reporters-photo graphers/
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All protesters, who intend to engage in protest activities, to render aide to those who have been injured, and to record the actions of police officer on duty in public places within the city and county of Denver. 79. The Plaintiff Class is so numerous that joinder of all the members would be impracticable. Denver protest events over the past week often number in excess of 10,000 participants. 80. As a result of the Denver’s customs and policies of targeting journalist, medics, and protesters with less-lethal projectiles and chemical irritants without constitutionally adequate justification or warning, with excessive force, denying them freedom of movement to observe, record, and participate in public demonstrations, intimidation by threats of violence, and ad infringement on their right to assemble and speak, the Plaintiff Class have been and will continue to be deprived of their constitutional rights under the First, Fourth, and Fourteenth Amendments. 81. Plaintiffs’ claims for prospective relief are typical of the members of the Plaintiff Class because Protests are ongoing and Plaintiffs and the Plaintiff Class members have a reasonable fear that Defendants will continue to carry out their unconstitutional customs or policies of deploying less-lethal projectiles and chemical irritants without constitutionally adequate warning, with excessive force, denying them freedom of movement to observe, participate, and record public demonstrations, intimidation by threats of violence, and infringement on their right to assemble and speak. 82. Plaintiffs will fairly and adequately protect the interests the interests of the Plaintiff Class. Plaintiffs has no conflicts involving other class members or Defendant. Plaintiffs
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understand their role as a class representative and their duties to the class in this litigation. Plaintiffs are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class. 83. Questions of law or fact are common to the class. These legal and factual questions include but are not limited to:
a. Does the use of less-lethal weapons, as deployed by the Denver Police, infringe on protester’s constitutional right to be free of excessive force under the Fourth Amendment?
b. Does the use of less-lethal weapons, as deployed by the Denver Police, infringe on protester’s constitutional right to peaceable assemble and their right to freedom of expression and from view-point discrimination under the First Amendment?
c. Has the City of Denver manifested a failure to adequately train and supervise its officers to utilize these weapons?
d. Has the City of Denver exhibited deliberate indifference to the unconstitutional conduct complained herein?
84. Maintaining individual actions would create a risk of “inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class.” C.R.C.P. 23(b)(1)(A). Multiple courts issuing multiple injunctions governing the engagement and use-of-force standards for law enforcement would be entirely untenable. Doing so would only contribute to a state of uncertainty and confusion that allows the constitutional violations described in the complaint to continue.
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85. This case involves “adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications.” C.R.C.P. 23(b)(1)(A). A ruling with respect to a single Plaintiffs in this case would arguably be strong stare decisis—if not necessarily res judicata—with respect to other putative class members and members of the law enforcement community. There is no benefit to allowing the overwhelmingly common issues in this case to be litigated individually. The interests of both class members and defendants requires classwide treatment.
86. Finally, “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]” C.R.C.P. 23(b)(1)(A). There is no allegation that Plaintiffs have been targeted because of anything unique to them as individuals. Rather, they have been repeatedly targeted and assaulted because of their membership in a class protesters and medics. Plaintiffs’ targeting exists only by virtue of a broader pattern and practice of unconstitutional conduct directed at journalists, medics, and protesters as a class. Logically, injunctive relief for the “class as a whole” is the only mechanism available to afford relief in light of conduct directed specifically to the class. CAUSES OF ACTION COUNT I: Fourth Amendment - Excessive Force, 42 U.S.C. 1983
87. Plaintiffs and the Plaintiff Class restate and reallege all previous paragraphs of this Complaint.
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88. Plaintiff and the Plaintiff Class were seized by Defendant when its officers intentionally, through the use of force and threat of arrest, chemical agents, and nonlethal projectiles, terminated their freedom of movement.
89. Defendant committed these acts without forewarning and, as a result, Defendant’s acts were objectively unreasonable and constituted unlawful seizure and excessive force.
90. Plaintiffs and the Plaintiff Class did not commit a crime. 91. Plaintiffs and the Plaintiff class did not pose a threat to any of Defendant’s officers or
agents or any other person. 92. It was Denver’s custom and policy, as well as their failure to train and supervise their
officers, and issue corrective instructions after violations were brought to light, that caused the unlawful seizures and excessive use of force. 93. Denver’s failure to supervise and train their employees and agents with respect to the Fourth Amendment rights of Plaintiffs and the Plaintiff Class, including a failure to investigate and discipline officers for Fourth Amendment violations, amounts to deliberate indifference to the rights of Plaintiffs and the Plaintiff Class. 94. The pattern of similar constitutional violations against Plaintiffs and the Plaintiff Class that occurred during the protests demonstrates the deliberate indifference of Denver to the rights of Plaintiffs and the Plaintiff Class. 95. Further, given the pattern and practice of constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that Denver demonstrated their deliberate indifference to the need for such training and supervision.
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96. Plaintiffs’ Fourth Amendment rights were violated when they were deliberately targeted and shot with rubber bullets, tear gas, pepper balls, flashbang grenades, and pepper spray during the course of their lawful protests.
97. Plaintiffs and the Plaintiff Class reasonably fear further retaliation in the future in violation of the Fourth Amendment if they continue to observe, record, or participate in constitutionally protected activity. COUNT II: First Amendment - 42 U.S.C. 1983
98. Plaintiffs and the Plaintiff Class restate and reallege all previous paragraphs of this Complaint.
99. Plaintiffs and the Plaintiff Class engaged in constitutionally protected acts of observing, recording, and participating in events of public interest, including public demonstrations and in expressing their political views. Plaintiffs and the Plaintiff Class will continue to do so in the future.
100. Defendant retaliated against Plaintiffs and the Plaintiff Class for engaging in constitutionally protected activity and for the content and viewpoint of the expressions. Defendant’s retaliation is part of a pattern or practice of unconstitutional conduct that is certain to continue absent any relief.
101. Plaintiffs and the Plaintiff Class reasonably fear the continued deployment of chemical agents without warning, unlawful seizure, and excessive force through the firing of flash bang grenades, less-lethal projectiles, riot batons, and other means if they continue to engage in constitutionally protected activity.
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102. These acts would chill a reasonable person from continuing to engage in a constitutionally protected activity. These acts did, in fact, chill Plaintiffs and the Plaintiff Class from continuing to observe and record some events of public interest and to participate in peaceful protests.
103. It was Defendant’s custom and policy, as well as their failure to train and supervise their officers, and issue corrective instructions after violations were brought to light, that caused the First Amendment retaliation.
104. Defendant’s failure to supervise and train their employees and agents with respect to the First Amendment rights of Plaintiff and the Plaintiff Class, amounts to deliberate indifference to the rights of Plaintiff and the Plaintiff Class.
105. The pattern of similar constitutional violations against Plaintiffs and the Plaintiff Class that occurred during the protests demonstrates the deliberate indifference of the Defendant to the rights of Plaintiffs and the Plaintiff Class.
106. Further, given the multiple constitutional violations documented above, the need for more supervision or training was so obvious, and the inadequacy of the training and supervision so likely to result in the violation of constitutional rights, that Defendant demonstrated their deliberate indifference to the need for such training and supervision.
107. Plaintiffs’ First Amendment rights were violated when they was deliberately targeted and shot with rubber bullets, tear gas, pepper spray, pepper balls, and flashbang grenades during the course of their protest activities.
108. Plaintiffs and the Plaintiff Class reasonably fear further retaliation in the future if they continue to observe, record, or participate in constitutionally protected activity.
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WHEREFORE​, Plaintiffs, individually and as representatives of the class defined here, pray for relief as follows:
1. A temporary restraining order barring the City of Denver from the use of tear gas, rubber bullets, pepper balls, pepper spray, and flashbangs.
2. A preliminary injunction barring Defendants from engaging in unconstitutional conduct
3. A determination that this action may proceed as a class action under Rule 23(b)(1) or 23(b)(2) of the Colorado Rules of Civil Procedure;
4. Designation of Plaintiffs as Class Representatives and designation of Plaintiffs’ counsel as class counsel;
5. A declaration that Defendant’s conduct violated the First and Fourth Amendments of the United States Constitution.
6. A permanent injunction barring Defendants from engaging in unconstitutional 7. Damages compensating Plaintiffs for their injuries, including but not limited to
compensatory, pecuniary, and medical expense damages; 8. An award of prejudgment interest; 9. An award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and 10. An award of such other and further relief as the Court deems equitable and just.
JURY DEMAND Plaintiffs demand a trial by jury of all issues triable.
Respectfully submitted this 4​th​ day of June, 2020.
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s/ Edward Milo Schwab Edward Milo Schwab, #47897 Ascend Counsel, LLC 3000 Lawrence Street Denver, CO 80205 (303) 888-4408 milo@ascendcounsel.co ATTORNEY FOR PLAINTIFFS
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 Case 1:20-cv-01616-RBJ Document 47 Filed 11/23/20 USDC Colorado Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson
Civil Action No. 20-cv-01616-RBJ AGAZI ABAY, GABRIEL THORN, AMY SCHNEIDER, and MICHAEL McDANIEL
Plaintiffs, v. CITY OF DENVER,
Defendant.
ORDER ON MOTION FOR AN ORDER TO SHOW CAUSE
On July 27, 2020 plaintiffs filed what they labeled as a motion for an order to show cause. ECF No. 44. In substance the motion asked the Court to order the Denver Police Department to explain why conduct shown in photos and videos of incidents on July 1 and July 19, 2020 does not violate the stipulation and order entered in this case on June 26, 2020.
The July 1 photos purport to show that a few Denver police offers responded to a protest without body-worn cameras. The July 19 videos purport to show Denver police officers dispersing projectiles and chemical agents at peaceful protesters. Defense counsel responded that a substantive response was not permitted unless the Court issues an order to show cause as to why the Department should not be held in contempt. ECF No. 45 at 1. Nevertheless, the response goes on to suggest, apparently in the opinion of counsel, that the photos and videos might have a benign explanation. ECF No. 45.
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The Court apologizes for its delayed response to the motion. Rather than setting a contempt hearing now, the Court instead express its concern about the cavalier attitude reflected in the defendant’s response to the pending motion. The settlement was designed to prevent recurrences of these incidents and to prevent needless future lawsuits, for the benefit of the public and the Department. The Denver Police Department should be aware that this Court has referred to the settlement as rendering injunctive relief potentially unnecessary in several pending lawsuits against the Department, including class action lawsuits, arising from police actions during the protests. The Denver Police Department at the very highest level should have a keen interest in assuring that its officers comply fully with the stipulation. Rather than accepting a procedural non-response to the plaintiffs’ motion, the Department should have jumped on these photos and videos, determined what they do show, and provided the plaintiffs and the Court with a substantive response, including if necessary admissions of any noncompliance and assurances that the non-complying conduct has been dealt with internally and will not recur. If it has not done so, then it should do so now.
This Court greatly respects the important, difficult and often dangerous work the Department does on behalf of all of us. It gives me no pleasure to preside over lawsuits or contempt proceedings against the Department, but you must do your part.
Dated this 23rd day of November, 2020
BY THE COURT:
___________________________________ R. Brooke Jackson United States District Judge
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