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Sandra S. Park** 

Lenora Lapidus** 

Michaela Wallin** 

ACLU Women’s Rights Project 

125 Broad Street, 18th Fl. 

New York, NY 

Telephone: (212) 519-7871 

Email: spark@aclu.org

llapidus@aclu.org

mwallin@aclu.org 

**Pro hac vice application forthcoming 

Heather Macre (Bar No. 026625) 

Aiken Schenk Hawkins & Ricciardi P.C. 

2390 East Camelback Road, Suite 400 

Phoenix, Arizona 85016-3479 

Telephone: (602) 248-8203 

E-Mail: ham@ashrlaw.com 

Daniel J. Pochoda (Bar No. 021979) 

Victoria Lopez (Bar No. 330042)** 

Joel Edman (Bar No. 031324) 

ACLU Foundation of Arizona 

3707 North 7th Street, Suite 235 

Phoenix, AZ 85011-0148 

Telephone: (602) 650-1854 

Email: dpochoda@acluaz.org 

vlopez@acluaz.org 

**Admitted pursuant to Ariz. Sup. Ct. R. 38(f)

Attorneys for the Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

NANCY MARKHAM, 

Plaintiff, 

 v. 

CITY OF SURPRISE; MICHAEL 

FRAZIER in his individual and official 

capacities, and CHRISTOPHER TOVAR, in 

his individual capacity, 

Defendants.

 

 No. 

 COMPLAINT 

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INTRODUCTION 

1. Plaintiff Nancy Markham, a resident of Surprise, Arizona, was a victim of 

repeated domestic violence and needed to contact and rely on the Surprise police for 

protection and assistance at her rental home. In response, Defendants sought Ms. 

Markham’s eviction. 

2. Defendants – City of Surprise (“Surprise”), Surprise chief of police Michael 

Frazier and Surprise police officer Christopher Tovar – have enacted or enforced laws that 

require landlords to take action against tenants when police are called or respond to crime at 

a rental unit, even if the tenant was not involved in or responsible for the crime, and impose 

penalties if landlords fail to take such action. 

3. The laws in question include Chapter 105, Article III of the Surprise 

Municipal Code §105-104, which defines nuisance properties and authorizes officials to 

impose penalties on the property owner if the nuisance is not abated (“the Nuisance Property 

Section”) and §105-106, which requires the adoption of crime free lease provisions that 

entitle landlords to evict tenants upon a single occurrence of any criminal activity (“the 

Crime Free Lease Section”). Hereinafter these two sections will be referred to as the 

Surprise “Nuisance Policy.” 

4. Under Surprise’s Nuisance Policy, nuisance offenses include four or more 

calls for police service or commission of two crimes at a property that the tenant allegedly 

“allows,” even if the tenant called to report and deter her attacker or was the victim of the 

criminal conduct. Surprise Municipal Code §105-104. 

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5. The Nuisance Policy requires that landlords be authorized to pursue evictions 

on this basis and authorizes the city to impose penalties if landlords fail to do so. Surprise 

Municipal Code §§105-106, 105-104(c)(3). 

6. The Nuisance Policy has the effect of encouraging landlords to take steps 

before the Nuisance Property Section is even triggered and evict any tenant who arguably 

engages in the prohibited behaviors, such as by calling the police a single time to report a 

crime committed against her, or because of a crime occurring at her unit even if the tenant 

had no involvement. 

7. In materials promoting the Nuisance Policy to landlords and the public, 

Surprise anticipated and advertised that the Nuisance Property Section and Crime Free 

Lease Section would work in tandem to significantly deter calls to police. 

8. Surprise enacted the Nuisance Policy – both the Nuisance Property and Crime 

Free Lease Sections – in 2010. Ord. No. 2010-01 §2, 6-24-2010. 

9. At the time of passage, the Surprise City Council was warned about the likely 

negative impact of the Nuisance Policy on domestic violence victims, the majority of whom 

are women. Community stakeholders, including the Chair of Surprise’s Quality of Life 

Commission, raised the concern that this policy could be enforced against domestic violence 

victims on the basis of crimes committed against them and the resulting calls to police. 

10. Despite knowing these predicted results, Surprise adopted the current 

Nuisance Policy, thereby increasing the vulnerability of domestic violence victims to 

eviction and deterring their use of an important means for protection – calls to law 

enforcement. 

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11. Housing security and access to police assistance are often essential to 

domestic violence victims’ ability to escape life-threatening violence and live free from 

abuse. Yet, domestic violence victims continue to face barriers to reporting the abuse to law 

enforcement. In addition, domestic violence is a primary cause of homelessness for women 

and their children. 

12. Reforms adopted by federal, state, and local governments over the last thirty 

years have focused on supporting victims’ ability to reach out to law enforcement for 

assistance and to obtain and maintain secure housing. 

13. The Nuisance Policy ignores the needs of victims of domestic violence, the 

overwhelming majority of whom are women, empowers abusers to act without fear of police 

intervention and increases victims’ vulnerability to both homelessness and future violence 

by pressuring landlords to remove them from housing. 

14. As set out below in the Facts section, the actions taken by Defendants against 

Ms. Markham illustrate the danger of the Surprise Nuisance Policy. In addition to the 

repeated domestic violence and physical abuse that she suffered, Ms. Markham and her 

children faced the loss of their rental home through the operation of the Nuisance Policy and 

its aggressive enforcement by Defendant Frazier, Defendant Tovar and the Surprise Police 

Department. 

15. Defendants’ actions violated and continue to threaten Ms. Markham’s 

fundamental federal constitutional rights. The Surprise Nuisance Policy and its enforcement 

infringe on Ms. Markham’s right under the First Amendment to freedom of speech and to 

petition her government and disregard the Fourteenth Amendment’s requirements of due 

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process and equal protection. Defendants similarly violated the Arizona State Constitution’s 

equivalent protections of freedom of speech, the right to petition, due process, and equal 

protection. 

16. Defendants’ policies and practices also violate or conflict with the federal Fair 

Housing Act’s prohibitions against discrimination, Arizona Fair Housing Law A.R.S. §41-

1491, and additional Arizona tenant protections, such as A.R.S. §33-1315(A)(4), which 

provides that no rental agreement may “waive or limit the tenant’s right to summon or any 

other person’s right to summon a peace officer or other emergency assistance in response to 

an emergency.” A.R.S. §33-1315(A)(4). 

17. Ms. Markham brings this action seeking damages for injuries suffered by 

Defendants’ unconstitutional and unlawful enforcement of the Nuisance Property and Crime 

Free Lease Sections and to enjoin Defendants from enforcing these provisions in the future. 

The presence and enforcement of the Nuisance Policy continues to chill Ms. Markham’s 

ability to contact law enforcement and require her to choose between calling for police 

assistance – even in emergencies – and keeping her present home. 

18. This action is brought pursuant to 42 U.S.C. §1983 and 42 U.S.C. §3601 et 

seq. 

19. Ms. Markham seeks declaratory and injunctive relief, as well as 

compensatory and punitive damages. 

JURISDICTION AND VENUE 

20. This Court has subject matter jurisdiction over this action pursuant to 28 

U.S.C. §§1331 and 1343(3) and (4). 

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21. This Court has supplemental jurisdiction over the state claims pursuant to 28 

U.S.C. §1367. 

22. Declaratory relief is authorized by 28 U.S.C. §2201 and Federal Rule of Civil 

Procedure 57. 

23. Injunctive relief is authorized by Federal Rule of Civil Procedure 65. 

24. This Court has personal jurisdiction over Defendants because they are located 

or reside in the District of Arizona and the events that give rise to this action occurred 

within the District of Arizona. 

25. Venue is proper in the District of Arizona pursuant to 28 U.S.C. §1391(b) in 

that Defendants are subject to personal jurisdiction within the District of Arizona and/or the 

events that give rise to this action occurred within the District of Arizona. 

PARTIES 

26. Ms. Markham is a single mother of two sons, one of whom is a minor. She 

and her sons live in Surprise, Arizona. Ms. Markham has lived in Surprise for eleven years 

and intends to remain in Surprise. 

27. From March 1, 2013 until February 28, 2015, Ms. Markham lived at 15526 

West Ocotillo Lane in Surprise (hereinafter “the Property”). 

28. Ms. Markham currently rents another home in Surprise. 

29. Defendant Surprise is a municipal corporation, having the name of “City of 

Surprise,” located in Maricopa County, in the State of Arizona, with administrative offices 

located at 16000 N. Civic Center Plaza, Surprise, AZ 85374 and police headquarters located 

at 14250 W. Statler Plaza, Suite 103, Surprise, AZ 85374. 

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30. Arizona cities derive their legislative powers either from state law or from 

their own charters. Surprise does not have a charter and possesses only that legislative 

power authorized by state law and the Arizona Constitution. Surprise must be able to point 

to a delegation in state law to support its legislative enactments. 

31. Defendant Michael Frazier is the Chief of the Surprise Police Department and, 

in that position, has responsibility for, among other things: overseeing the operations of 

police officers in their official duties; enforcing the Nuisance Policy, including determining 

whether a call to police or other activity at a property is a “nuisance offense;” notifying 

landlords and other involved parties of alleged nuisance offenses at a property; and directing 

landlords and other involved parties to act against the tenant to abate the designated 

nuisance or face penalties imposed by Surprise. He is the final decision maker for Defendant 

Surprise in the area of law enforcement. 

32. Defendant Frazier maintains an office at 14250 W. Statler Plaza, Suite 103, 

Surprise, AZ 85374. 

33. Defendant Christopher Tovar is a Police Officer in the Surprise Police 

Department and, in that position, has responsibility for, among other things, enforcing the 

Nuisance Policy, including determining whether a call to police or other activity at a 

property is a “nuisance offense;” notifying landlords and other involved parties of alleged 

nuisance offenses at a property, and instructing landlords and other involved parties to act to 

against the tenant to abate the designated nuisance or face penalties imposed by Surprise. 

34. Defendant Tovar maintains an office at 14250 W. Statler Plaza, Suite 103, 

Surprise, AZ 85374. 

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35. Each of the individual defendants is a “person” as defined in 42 U.S.C. §1983, 

and at all relevant times acted under the color of state law. 

36. Defendant Frazier is sued in his individual and official capacities. 

37. Defendant Tovar is sued in his individual capacity. 

FACTS 

A. The Nuisance Policy 

38. Defendants adopted, maintain and enforce the Nuisance Policy, Chapter 105, 

Article III §§105-104 (the Nuisance Property Section) and 105-106 (the Crime Free Lease 

Section) of the Surprise Municipal Code, against landlords and tenants with the aim of 

“providing for accountability of property owners for slum conditions and criminal conduct.” 

Surprise Municipal Code §105-91. 

39. Surprise Municipal Code Chapter 26, Article II §26-20 requires landlords to 

obtain business licenses for each property that a landlord desires to rent to tenants in 

Surprise. 

The Nuisance Property Section 

40. The Nuisance Policy includes the Nuisance Property Section, §105-104, 

which declares a property a nuisance upon the occurrence of the following, among other 

criteria: 1) four or more calls for police to the same service address or unit within a 30-day 

period when these calls relate to commission of crime under Arizona or federal law or 

otherwise report criminal activity or 2) commission of any two or more crimes under 

Arizona or federal law on the property that “negatively impacts the quality of life or 

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threatens the safety and/or health in the area.” Exhibit A, Surprise Municipal Code §105-

104.

41. The Nuisance Property Section authorizes Surprise to revoke or suspend a 

landlord’s business license and/or charge the landlord with a civil or criminal violation if, 

after receiving notice that a tenant “allows” any nuisance offense to occur at the property, 

the landlord fails to take steps against the tenant to effectively abate the alleged nuisance 

violation. 

42. The Nuisance Property Section does not distinguish between perpetrators and 

victims of crime or between those who call the police frivolously and those who are in need 

of emergency assistance. 

43. The Nuisance Property Section states that notice will be given to the 

“responsible party,” which it defines as the “owner, occupant, lessor, lessee, manager, 

licensee, or other person having control.” 

44. However, after providing notice to the “responsible party,” Surprise is not 

required to notify tenants about alleged nuisance offenses or any threatened or imposed 

penalty. 

45. In fact, the law does not require Defendants to provide notice of the law to 

tenants at any stage of enforcement, including when police respond to emergency calls from 

a home. 

46. The Nuisance Property Section does not give a tenant or occupant any 

opportunity to contest the decision to enforce the Nuisance Property Section against the 

property owner, landlord or property manager, or to contest the determination that various 

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incidents at the property should be characterized as an “offense,” justifying enforcement and 

resulting in harms to the tenant. 

47. On information and belief, Surprise has informed only property owners, 

landlords and managers of possible violations and threatened enforcement against them. 

The Crime Free Lease Section 

48. A related section of the Nuisance Policy, the Crime Free Lease Section, §105-

106 requires all owners, managers or leasing agents in Surprise to include a lease provision 

that, on information and belief, permits them to evict tenants upon a single occurrence of 

any criminal activity, regardless of whether the tenant was the perpetrator or victim of that 

crime. Thus, the Crime Free Lease Section requires landlords to adopt a lease provision that 

serves as a ready abatement measure to avoid any penalty under the Nuisance Property 

Section – namely, the eviction of the tenant residing in an alleged nuisance property. 

49. By mandating that landlords be prepared to take action against tenants 

whenever police respond to crime at the rental property and then imposing penalties on 

landlords if they fail to take action, Surprise established a statutory system that pressures 

landlords to penalize any instance of crime occurring at the property, even when the tenant 

is the victim of the criminal acts. 

50. Neither the Nuisance Property Section nor the Crime Free Lease Section 

references any relevant legislative authority granted to Surprise by state law. 

Conflict with State Law 

51. Arizona state law provides that no rental agreement may “waive or limit the 

tenant’s right to summon or any other person’s right to summon a peace officer or other 

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emergency assistance in response to an emergency.” A.R.S. §33-1315(A)(4). The Nuisance 

Policy conflicts with this state mandate and cannot be lawfully enforced.

Discriminatory Intent and Impact 

52. Before the Nuisance Property and Crime Free Lease Sections, as currently 

amended, were jointly passed in 2010, Surprise, including the City Council and Mayor, 

were warned by interested stakeholders that these provisions could be used to penalize 

victims of crime and would encourage discrimination by landlords. 

53. For example, in response to the proposed language, in June 2010, the William 

Morris Institute for Justice (“Morris Institute”) submitted detailed concerns in a letter to the 

Mayor and City Council members about the potential impact of both the Nuisance Property 

and Crime Free Lease Sections, emphasizing the harms they posed to victims of domestic 

violence through its broad and undefined designation of nuisance offenses as including any 

crime that “negatively impacts the quality of life or threatens the safety and/or health of 

those in the area,” and its coverage of any police calls for service. Exhibit B Letter from 

Ellen Katz, William E. Morris Institute for Justice, to Lyn Truitt, Mayor of Surprise, 

and Surprise City Council Members (June 24, 2010).

54. The letter warned that the Nuisance Property Section “may lead to 

discriminatory evictions,” in particular “evicting or terminating the tenancy of a victim of 

domestic violence based on a domestic violence incident. . .” See Exhibit B. 

55. The letter also put Surprise on notice that such evictions would amount to 

gender discrimination in violation of relevant Arizona fair housing law and the federal Fair 

Housing Act. See Exhibit B. 

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56. In addition to the letter, at the June 2010 meeting of the Surprise City Council, 

a representative from the Morris Institute again voiced concern about the negative impacts 

of the Nuisance Property Section, stating that it would deter victims of crime from seeking 

police assistance and could penalize victims of domestic violence seeking law enforcement 

assistance against serious threats. 

57. The chair of Surprise’s own Quality of Life Commission also expressed 

concern that the Nuisance Property Section could be enforced against, and lead to evictions 

of, domestic violence victims. Exhibit C, Video of June 24, 2010 City Council Meeting, 

available at: 

http://surpriseaz.granicus.com/MediaPlayer.php?view_id=&clip_id=1584&meta_id=21665. 

58. These predictions were well grounded because calls regarding domestic 

violence make up the largest category of calls a police department receives in many 

communities.1

59. According to an article dated June 30, 2010 in the Arizona Republic, Surprise 

City Councilmember John Williams attempted to allay concerns about the use of the 

Nuisance Property Section against victims of crime and domestic violence victims in 

particular by assuring that “[e]nforcement of the new ordinance will be ‘situational,’ and the 

City will continue to encourage residents to report crimes and suspicious activity.” Exhibit 

D, copy of the June 30, 2010 Arizona Republic Article. 

 

1

 Andrew R. Klein, Nat’l Inst. Of Justice, Practical Implications of Current Domestic Violence Research: For Law 

Enforcement, Prosecutors, and Judges (June 2009), http://www.nij.gov/topics/crime/intimate-partner-violence/practicalimplications-research/Pages/welcome.aspx. 

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60. As demonstrated by Defendants’ actions against Ms. Markham, those were 

empty words. 

61. The Surprise City Council passed the Nuisance Property Section at their June 

2010 meeting without further consideration of, or any changes to, its language. No steps 

were taken to ensure that the rights and safety of victims of domestic violence and persons 

in need of emergency assistance were protected. 

62. The Morris Institute’s June 2010 letter also expressed concern about the 

impact of the Crime Free Lease Section. The letter noted that legal services advocates and 

civil rights groups had already identified crime free lease provisions as having been used to 

evict victims of domestic violence based on the violence perpetrated against them, and 

warned of their likely disparate impact on women who are disproportionately the victims of 

domestic violence. See Exhibit B. 

63. The letter concluded that “requiring a blanket policy that landlords use crime 

free lease provisions opens up the door to violations of state and federal Fair Housing laws 

in cases where the tenancy is terminated on the basis that the tenant was a victim of 

domestic violence.” See Exhibit B. 

64. In the years before the Surprise Nuisance Policy was enacted, the Arizona 

Civil Rights Advisory Board (ACRAB) conducted public hearings on the use and effect of 

crime free lease provisions in 2006 and 2007, and subsequently publicized a letter outlining 

concerns with these provisions. Exhibit E, Letter from Jason Martinez, Chairperson of 

the Arizona Civil Rights Advisory Board, to Rebeca Flanagan, HUD Field Office 

Director, Terry Feinberg, Executive Director of the Arizona Multihousing Association, 

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Tim Zehring, Executive Director of the International Crime Free Association, and 

Susan Brenton, Executive Director of the Manufactured Housing Communities of 

Arizona (Apr. 10, 2007). 

65. ACRAB submitted this letter to the U.S. Department of Housing and Urban 

Development (HUD) and to several housing organizations in Arizona in April of 2007. 

See Exhibit E. 

66. The ACRAB letter noted that crime free housing programs that require the 

adoption of crime free lease provisions “may have a disparate impact on women and 

families with children who are victims of domestic violence,” in which “such vulnerable 

people could lose their housing if a domestic violence incident occurs on the property or the 

abuser returns without the tenant’s knowledge or permission.” The letter also warned that 

such provisions could be used as a pretext for underlying discriminatory actions and may 

also have a disparate impact on racial and minority groups. See Exhibit E. 

67. The June 2010 letter from the Morris Institute notified Surprise of ACRAB’s 

concerns with crime free lease provisions and directed them to the ACRAB letter. See 

Exhibit B and Exhibit E. 

68. Despite knowing the predicted consequences of the Crime Free Lease Section 

on women victims of domestic violence and crime victims, the City Council unanimously 

adopted this policy, together with the Nuisance Property Section, on June 24, 2010. 

69. Surprise publicly acknowledged ACRAB’s concerns about crime free lease 

provisions in a 2012 “Analysis of Impediments to Fair Housing Choice” that it submitted to 

HUD, but again failed to actually address these serious problems. Exhibit F, Analysis of 

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Impediments to Fair Housing Choice, City of Surprise, Arizona, May 2012. Instead, 

Surprise recommended “use of existing institutional structure and partners to more 

effectively disseminate fair housing information.” On information and belief, Surprise has 

engaged in no education or outreach efforts about any possible negative impact of either the 

Nuisance Property Section or the Crime Free Lease Section of the Nuisance Policy on crime 

victims generally or domestic violence victims in particular. See Exhibit F. 

70. Moreover, Surprise anticipated and continues to advertise to landlords and the 

public that the Nuisance Property and Crime Free Lease Sections comprising the Nuisance 

Policy work in tandem to deter tenants from seeking police assistance at their rental 

properties. 

71. Materials that the Surprise Police Department uses to promote the Nuisance 

Policy and train police officers and property managers link the operation of the crime free 

lease provisions to nuisance abatement efforts and characterize the Crime Free Lease 

Section and the Nuisance Property Section as new tools for addressing crime at a property. 

72. On its website, Surprise clearly articulates its intent to deter police calls in its 

recommendations that local landlords participate in its Crime Free Multi-Housing Program, 

of which the Crime Free Lease Section’s requirement is “one of the key components.” The 

website advocates the benefits of the program, stating that “[m]easurable results in the 

reduction of police calls-for service for properties participating in the Crime Free MultiHousing Program have been seen nationwide. . . up to a 90% reduction in police calls for 

service.” Exhibit G, Crime Free Multi-Housing Program, surpriseaz.gov, 

www.surpriseaz.gov/index.aspx?NID=1190 (last visited July 30, 2014). 

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73. Defendants, in internal training materials and publicly-distributed 

communications to property managers about the Nuisance Policy, also promote the use of 

evictions to abate criminal activity or police responses to a property. Defendants not only 

encourage eviction pursuant to “offenses” under the Nuisance Property Section, but also 

characterize it as a proactive response to crime, possible under the crime free lease 

provisions that are in turn required by the Crime Free Lease Section. 

B. Ms. Markham’s Rental Property and Lease

74. Between March of 2013 and March of 2015, Ms. Markham rented the 

Property, where she lived with her two sons. 

75. Xiaoli Wang was the Property owner and Ms. Markham’s landlord (the 

“Landlord”). 

76. The Landlord employed Adam Botticello (the “Property Manager”) from AZ 

Rental Homes to manage the Property. 

77. As required by the Crime Free Lease Section, Ms. Markham’s lease included a 

“Crime-Free Provision” that stated that “[t]enant, occupants, family, guests, invitees, or 

other persons under the Tenant’s control shall not engage in . . . any criminal activity, 

including . . . any act of violence or threats of violence . . . threatening or intimidating, 

unlawful discharge of firearms, or assault” and that any violation of this provision would be 

a material and irreparable violation of the lease. Exhibit H, Lease Between Xiaoli Wang 

and Nancy Markham for the tenancy of 15526 W. Ocotillo Lane, Surprise Arizona. 

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C. Domestic Violence Perpetrated Against Ms. Markham 

78. While living at the Property, Ms. Markham was the victim of domestic abuse 

perpetrated by her former boyfriend, R.V., on several occasions. This included violent 

attacks and threats to kill. 

79. R.V. is the father of Ms. Markham’s minor child. 

80. From March of 2014 through August of 2014, officers from the Surprise 

Police Department responded to the Property on several occasions related to the domestic 

violence. 

81. During this time period, the Property was the site of four calls for police 

assistance in thirty days as well as more than two instances of criminal activity that 

threatened the safety of those in the area, either of which could trigger enforcement of the 

Surprise Nuisance Policy. 

82. Ms. Markham never called the police to the Property for any reason other than 

domestic violence, except for one occasion when she accidentally dialed 911 and hung up. 

83. She was not arrested for or charged with any crime at the Property. 

84. At no point in any of the responses to the Property did any Surprise police 

officer mention the Nuisance Policy or Nuisance Property and Crime Free Lease Sections to 

Ms. Markham, or inform her that repeated calls to the police or instances of criminal activity 

at the Property could result in her eviction or other penalty. 

85. Ms. Markham first requested police assistance from the Surprise Police 

Department at the Property on March 13, 2014 because of a threat to her safety. 

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86. After arguing with Ms. Markham through the night, early that morning, R.V. 

put his hands around Ms. Markham’s neck, choked her repeatedly, and punched her in the 

mouth. 

87. R.V. left before the police arrived at the Property.

88. Following this, Surprise police made visits to the Property to find and serve 

R.V. with a charge of aggravated assault stemming from the March 13, 2014 domestic 

violence attack. 

89. In March and April 2014, police responded on three other occasions when Ms. 

Markham called 911 for aid – once when she feared R.V. had returned to the Property and 

twice when R.V. was at the Property, threatening her and refusing to leave. 

90. In July and August of 2014, the Property was the subject of four police calls in 

thirty days – one call on July 22, two calls on July 31, and one call on August 1. 

July 22, 2014 Event 

91. On or about July 22, 2014, Ms. Markham’s son let R.V. into the home to get 

some personal items that he had left there. 

92. R.V. and Ms. Markham began arguing and R.V. left, taking Ms. Markham’s 

car without her permission. 

93. Ms. Markham called 911 to report the incident. 

94. Police officers responded to the call, which was coded as “domestic violence.” 

95. The officers located the vehicle and spoke to R.V. He confirmed that he had 

argued with Ms. Markham at her home. 

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96. The officers impounded the car, advised R.V. not to go back to the Property, 

and issued him a citation for driving while license suspended. 

97. Despite the open charges, the officers did not serve R.V. with the charge for 

aggravated assault from March 13, 2014. 

July 31, 2014 Events 

98. On or about July 31, 2014, R.V. ignored officers’ instructions not to go back 

to the Property and arrived at Ms. Markham’s home.

99. R.V. argued with Ms. Markham, brandished a gun and refused to leave. 

100. Ms. Markham called the police at 8:39 p.m. and told the 911 operator that 

R.V. was refusing to leave the property and had a gun.

101. When police responded, R.V. was already gone and Ms. Markham asked them 

to leave the Property. 

102. At approximately 11:06 p.m., Ms. Markham called 911 a second time to report 

that R.V. had returned to the Property and was trying to get into her locked residence. 

103. R.V. was armed with a shovel and still had the handgun on his person. 

104. Surprise police responded and arrested R.V. They conducted a search of R.V. 

and found two syringes in his pocket. 

105. Police arrested and charged R.V. with disorderly conduct with a deadly 

weapon and possession of drug paraphernalia.

August 1, 2014 Police Response to Ms. Markham’s Home 

106. The next day, on August 1st, police again responded to the Property when a 

neighbor called to report that he had found a phone nearby that he believed belonged to R.V. 

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The neighbor described R.V. as the male who had been taken into custody by the police the 

night before. 

107. The neighbor stated that he found text messages on the phone from R.V.’s 

son. 

108. The phone was taken by the police and placed into safekeeping for R.V. to 

pick up when he was released from jail. 

D. Defendants’ Enforcement of the Nuisance Policy Against Ms. Markham 

109. Under the direction of Defendant Frazier, the Surprise Police Department 

initiated its enforcement of the Nuisance Policy by having Defendant Tovar contact Ms. 

Markham’s Landlord on August 4, 2014. 

110. Under the Nuisance Property Section’s definition of a nuisance as a situation 

where a tenant “allowed” a nuisance offense to occur, the decision to pursue enforcement 

against the Property necessarily involved a determination that Ms. Markham should be held 

at fault for the domestic violence committed against her at the Property. 

111. Officer Tovar informed the Landlord that “serious criminal problems” were 

occurring at Ms. Markham’s rental home and warned that the Property may be deemed a 

criminal nuisance under the Nuisance Property Section if the problems were not corrected. 

112. Officer Tovar sent the Property Manager formal notice of the four calls to 

police and criminal activity occurring at the rental home on August 6, 2014. In addition to 

warning that the property could be deemed a criminal nuisance, the letter threatened the 

Property Manager directly, stating “should you fail to take reasonable steps to prevent future 

unlawful use of this property, you will not be considered an ‘innocent owner/agent’ in any 

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future action with respect to this property.” Exhibit I, Letter from Chris Tovar, Crime 

Prevention Unit Surprise Police Department to Adam Botticello, Property Manager, 

AZ Rental Homes (Aug. 6, 2014). 

113. The Property Manager corresponded with Officer Tovar over the next week, 

and told Officer Tovar that he had no knowledge of any criminal activity at the property. 

114. Officer Tovar then shared a list of calls for police service to the Property. 

115. Defendant Tovar told the Property Manager that Ms. Markham’s home was 

the subject of “numerous calls for various incidents,” including three where officers arrested 

R.V. Exhibit J, E-Mail from Chris Tovar Crime Prevention Unit Surprise Police 

Department to Adam Botticello, Property Manager, AZ Rental Homes (Aug. 7, 2014). 

116. Tovar acknowledged that at least two of these arrests were for domestic 

violence-related charges and that Ms. Markham was the victim. 

117. On information and belief, the third arrest arose out of the July 31st domestic 

violence incident in which R.V. was charged with disorderly conduct with a deadly weapon 

and possession of drug paraphernalia. 

118. In this exchange, Officer Tovar told the Property Manager that Ms. Markham 

“was the listed victim in each of these cases; however she would sometimes be 

uncooperative with the officers upon their arrival.” Exhibit K, Chris Tovar, Officer 

Report for Incident 140803078 (Oct. 11, 2014). 

119. Upon information and belief, Officer Tovar incorrectly assumed in 

conversations with Ms. Markham’s Landlord and Property Manager that R.V. was invited to 

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stay at the Property by Ms. Markham, rather than an unwanted perpetrator of domestic 

violence who Ms. Markham could not control. 

120. Likewise, a supplementary report to an April 2014 Surprise police response to 

the Property inaccurately described R.V. as Ms. Markham’s “live-in boyfriend.” R.V. never 

lived at the Property. 

121. At no point did Defendant Tovar, Defendant Frazier or anyone else at the 

Surprise Police Department directed by Frazier, instruct or advise the Property Manager or 

Landlord that Ms. Markham should not be the subject of negative housing action or penalty 

on the basis of the domestic violence occurring at her home or related police calls. Instead, 

Officer Tovar pushed for Ms. Markham’s removal by discussing the possible legal grounds 

for evicting her from the residence with the Property Manager. 

Neighbors’ Letter and Eviction Threat 

122. On August 14, 2014, some of Ms. Markham’s neighbors wrote a letter to 

Chief Frazier expressing concerns about the police responses to the domestic violence 

incidents at Ms. Markham’s Property. 

123. The letter blamed Ms. Markham for the violence perpetrated against her, 

evinced significant animus against Ms. Markham as a victim of domestic violence and 

demanded action against her. Exhibit L, Letter from Residents of Ocotillo Lane to 

Michael Frazier, Police Chief Surprise Police Department (Aug. 14, 2014). 

124. The letter attracted police attention and Defendant Frazier demanded, in an 

email sent to Officer Christopher Tovar, among others, that someone at the department 

“take ownership of this issue. . . [and] keep me apprised as to the status of this situation.” 

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Exhibit M, E-mail from Michael Frazier, Police Chief Surprise Police Department to 

Geoffrey Leggett, Criminal Investigations Commander Surprise Police Department 

and others (Aug. 18, 2014). 

125. On August 18th, Police Chief Frazier responded to the neighbors’ letter and 

stated that there were already a number of actions in progress that were designed to abate 

the issue and that police “have a strategy in place that should result in a permanent solution, 

but it is still a work in progress.” Defendant Frazier indicated that Officer Tovar would be 

handling this issue, stating that he would contact the neighbors. Exhibit N, E-mail from 

Michael Frazier, Police Chief Surprise Police Department to April Irish (Aug. 18, 

2014). 

126. As part of the “strategy” put in place by Defendant Frazier and in response to 

the direct contacts and threats made by Defendant Tovar to the Property Manager, on 

August 18, 2014, the Property Manager told Ms. Markham that “[t]he Surprise P.D. has put 

the owner in a position where they can no longer allow you to stay as a tenant.” Exhibit O 

E-mail from Adam Botticello, Property Manager, AZ Rental Homes, to Nancy 

Markham (Aug. 18, 2014). 

127. The Property Manager told Ms. Markham that the Landlord would return her 

security deposit if she agreed to terminate the lease, but that if she did not voluntarily quit 

her apartment, the Landlord would pursue an eviction action against her. 

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August 20, 2014 Event

128. On August 20, 2014, Ms. Markham again called the police to report a 

domestic violence incident and serious threat to her safety. R.V. was at the Property, 

intoxicated, refused to leave and waved a knife at her.

129. Surprise police officers responded, arrested R.V. under the active warrant for 

aggravated assault relating to the strangulation incident on March 13, 2014 and charged 

R.V. with two counts of Assault, Police; two counts of Assault, Simple; two counts of 

Aggravated Injury; and Obstructing Justice.

130. Ms. Markham subsequently obtained an Order of Protection against R.V. that 

same day.

Defendants Continue to Push for Ms. Markham’s Eviction 

131. From late August through September 2014, Defendant Tovar continued to 

pressure the Landlord and Property Manager to take action against Ms. Markham pursuant 

to the Surprise Nuisance Policy. 

132. On information and belief, this was done pursuant to, and consistent with, the 

policies and practices of Defendant Frazier as Chief of the Surprise Police Department. 

133. On August 21, 2014, Officer Tovar requested information from the Property 

Manager on how his “contact with Ms. Markham turned out,” inquiring into whether the 

attempts to remove her from the Property had been successful. Exhibit P, E-mail from 

Chris Tovar, Crime Prevention Unit Surprise Police Department to Adam Botticello, 

Property Manager, AZ Rental Homes, and Xiaoli Wang, Owner of 15526 W. Ocotillo 

Lane, Surprise, AZ (Aug. 21, 2014). 

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134. On that date, Officer Tovar informed the Landlord and Property Manager that 

Ms. Markham had again called the police regarding domestic violence for which R.V. was 

arrested. 

135. Officer Tovar also notified the Property Manager of the complaint letter that 

was sent by some of Ms. Markham’s neighbors and demanded action against her.

Defendants Discourage Any Alternative to Eviction 

136. On August 26, 2014, Ms. Markham responded to the Property Manager’s 

threat of eviction, assuring him in an email that the problems at her Property had been 

resolved because of the protection order against R.V. and because R.V. was now 

incarcerated. 

137. The Property Manager was receptive to this explanation and requested that 

Ms. Markham send him a police report to verify this, indicating his willingness to work 

matters out and not require Ms. Markham and her children to leave their home. 

138. On September 2, 2014, Defendant Tovar again contacted the Property 

Manager to confirm that he was proceeding to evict Ms. Markham and to remind him about 

the need for abatement of the nuisance, referencing an earlier phone conversation in which 

the Property Manager said he was giving Ms. Markham until the end of August to get out. 

139. In response, the Property Manager told Defendant Tovar that Ms. Markham 

had informed him that R.V., the cause of the disturbances, would no longer be able to return 

to the Property because he had been arrested and Ms. Markham had obtained an order of 

protection against him. 

140. The Property Manager asked Tovar if he could verify this information. 

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141. While Officer Tovar confirmed that R.V. was arrested and served with an 

order of protection, he told the Property Manager that this was not an adequate solution. He 

noted a police report indicating that Ms. Markham had obtained an order of protection in the 

past but did not serve it on R.V.. 

142. However, the police report cited by Defendant Tovar did not contain any 

discussion of a prior order of protection against R.V. and did not substantiate Officer 

Tovar’s characterization. 

143. On information and belief, Defendant Tovar based enforcement of the 

Nuisance Policy, including his pursuit of Ms. Markham’s eviction, on stereotypical notions 

about survivors of domestic violence. Because Ms. Markham had already served a 

protection order against R.V., the only purpose for Officer Tovar’s statement was to assert 

to the Property Manager that Ms. Markham, not her abuser, was responsible for the 

domestic violence perpetrated against her and was ultimately the cause of the so-called 

nuisance that must be abated. 

144. On information and belief, these views were consistent with attitudes 

conveyed to officers by Defendant Frazier in running the Surprise Police Department. 

145. Instead of affirming the Property Manager’s belief that the problem was 

resolved given R.V.’s arrest and the order of protection, Defendant Tovar continued to urge 

that the Property Manager and Landlord evict Ms. Markham by suggesting that her eviction 

could be pursued on an alternative basis. 

146. Despite Defendants’ coercive tactics, the Property Manager recommended to 

the Landlord that Ms. Markham be allowed to stay as long as an inspection showed that her 

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property was being maintained, noting that she had recently obtained an order of protection 

against the ex-boyfriend who was causing the problem and that the rent was paid. 

147. The Landlord then sought the views of the Surprise Police Department, under 

the direction of Defendant Frazier, and emailed Defendant Tovar on September 8, 2014 for 

his response to the Property Manager’s recommendation. 

148. Defendant Tovar reported having a phone conversation with the Landlord that 

same day. Tovar’s report indicates that he did not disclaim his previous statements to the 

Landlord and Property Manager, which urged Ms. Markham’s eviction on the basis of the 

domestic violence committed against her. 

Eviction Notice 

149. On September 9, 2014, the Landlord directed the Property Manager to move 

forward with the eviction of Ms. Markham. 

150. On September 12, 2014, the Property Manager told Ms. Markham that the 

Landlord was not willing to let her stay and that she would be evicted in the next month if 

she failed to move before that time. 

151. Under Arizona Landlord Tenant Law, where there is a criminal breach of lease 

through criminal acts such as threatening, intimidating and assault, the landlord may deliver 

a written notice for immediate termination of the rental agreement. A.R.S. §33-1368. 

152. In response to Ms. Markham’s request for a reason for the eviction, and her 

explanation that “[t]here was no criminal activity going on at [her] home, it was a domestic 

violence issue and [the abuser] was not living at the home,” the Property Manager replied 

that he had no choice but to move forward. He acknowledged that: “[t]his is coming from 

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the city,” which “has a law on the books where they can designate a home with a lot of 

police activity a ‘public nuisance’ or something else to that effect.” Exhibit Q, Email from 

Nancy Markham to Adam Botticello, Property Manager, AZ Rental Homes (Sept. 16, 

2014) and Email from Adam Botticello, Property Manager, AZ Rental Homes, to 

Nancy Markham (Sept. 15, 2014); Exhibit R Email from Adam Botticello, Property 

Manager, AZ Rental Homes, to Nancy Markham (Sept. 18, 2014). 

153. The Property Manager suggested that Ms. Markham contact the Surprise 

Police Department for more information, explaining that “[b]asically they are threatening to 

deem the property a public nuisance.” Exhibit R Email from Adam Botticello, Property 

Manager, AZ Rental Homes, to Nancy Markham (Sept. 23, 2014). 

154. Based on the Property Manager’s statements, Ms. Markham would be evicted 

on or soon after October 1, 2014. 

E. Discriminatory Enforcement Based on Gender 

155. Blaming and stereotyping of domestic violence survivors, the majority of 

whom are women, as responsible for or contributing to the violence perpetrated against 

them is a form of discrimination that many women domestic violence survivors experience 

in their encounters with law enforcement. 

156. Officer Tovar demonstrated this kind of gender-biased policing practice in the 

statements he made to the Property Manager and Landlord, described above, as well as in 

his differing enforcement of the Nuisance Policy against male victims of domestic violence. 

157. Defendants enforced the Nuisance Policy against one residence involving 

male victims of domestic violence at a similar residential community in Surprise. 

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158. Other than the sex of the victims, the activity that occurred at the other 

Surprise property was similar to that at Ms. Markham’s home in all material aspects. 

159. The other Surprise rental property was the site of numerous calls for police aid 

and arrests for domestic violence and assault on October 21, 2012 and December 1, 2012, as 

well as other categories of police calls. 

160. Defendant Tovar was the Surprise police contact for this property and, as 

opposed to his persistent pursuit of the eviction of Ms. Markham and her children, he 

ultimately did not push for the eviction of all residents in the home. 

161. In this instance involving male victims, Defendant Tovar, who was, upon 

information and belief, acting consistently with the attitudes and policies of the Surprise 

police department under the direction of Defendant Frazier, approved the property owner’s 

proposed abatement method of only removing one tenant whom the property owner 

identified as the primary source of the problem. 

162. Defendant Tovar did not require eviction of the other tenants who lived in that 

unit, including one man who had been a subject of the police responses for domestic 

violence and was assaulted by the tenant who was removed. 

163. Although the man was also charged with domestic violence-related crimes in 

these incidents, Defendant Tovar, and on information and belief Defendant Frazier and 

Surprise police department, allowed him to stay and made no assertion or determination that 

the remaining male victim had contributed to the incidents of domestic violence and thus 

should be removed. 

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164. Even though Ms. Markham’s Property Manager suggested a similar method of 

abating any nuisance activity at her property, Defendants did not make a similar 

accommodation for Ms. Markham and her children. This is particularly striking in light of 

Officer Tovar’s acknowledgement that Ms. Markham was the victim in all the domestic 

violence incidents at her home and the fact that Ms. Markham was never charged with any 

criminal acts at the property. 

165. This disparate treatment on the basis of sex and on the basis of gender 

stereotypes that blame women victims of domestic violence for the abuse perpetrated 

against them violates constitutional and fair housing rights and ignores the well-being of 

women victims such as Ms. Markham. 

F. The Harms to Ms. Markham and Her Children 

166. The actions by Defendants, in adopting and enforcing the Nuisance Policy, 

resulted in significant harms to Ms. Markham including loss of constitutional rights and 

violations of statutory protections, imminent loss of her and her children’s home, as well as 

severe and ongoing emotional suffering and mental anguish. 

167. At all relevant times, the individual Defendants were acting pursuant to the 

policy and authority of the current Nuisance Policy enacted in 2010. 

168. As a result of each and every violation of law set out in the individual Counts, 

Ms. Markham has suffered loss of rights and safety, and great emotional distress. 

169. The continued existence of the Nuisance Policy after its enforcement against 

Ms. Markham as described above has resulted in a chilling effect on Ms. Markham’s ability 

to call the police or seek law enforcement assistance in the future. Based on her previous 

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experience, Ms. Markham reasonably fears that any future calls to the police will alert her 

new landlord to the Nuisance Policy and lead to her eviction. 

170. Ms. Markham has already declined to call the police when she otherwise 

would have and would not feel capable of doing so in the future, even if she believes that 

her safety and the safety of her children are threatened. She is currently vulnerable to 

further violence because R.V. was recently released from prison. 

171. This chilling effect on her speech and her predictable hesitancy to contact 

public agencies, in light of her experience with Surprise officials and law enforcement, has 

caused an ongoing loss of her fundamental First Amendment rights of speech and to petition 

the government. 

G. Notice to Surprise 

172. Ms. Markham, through her undersigned counsel, sent Defendants a letter on 

October 2, 2014, notifying Defendants of the unlawfulness of Defendants’ actions under the 

Nuisance Policy and that enforcement of this policy violated Ms. Markham’s constitutional 

rights and federal housing law. The October 2, 2014 letter demanded that Defendants cease 

enforcement of the Nuisance Property Section against Ms. Markham and Ms. Markham’s 

Landlord and suspend all enforcement of the Nuisance Policy in Surprise. Exhibit S, Letter 

from Michaela Wallin, Equal Justice Works Fellow, ACLU Women’s Rights Project, 

Sandra Park, Senior Staff Attorney, ACLU Women’s Rights Project, and Dan 

Pochoda, Legal Director, ACLU of Arizona, to Sharon Wolcott, Mayor of Surprise, 

Arizona, and Bob Wingenroth, City Manager of Surprise, Arizona (Oct. 2, 2014). 

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173. Defendants responded by denying they had taken any action either against Ms. 

Markham or the Landlord to abate the “nuisance” at the Property. Defendants claimed that 

they recommended that the Landlord “not terminate the lease agreement relative to the 

domestic violence incidents.” However, they did not address Officer Tovar’s repeated 

discussions of Ms. Markham’s eviction with the Landlord and Property Manager, all of 

which was due to the domestic violence and police calls to the Property. Exhibit T, E-mail 

from Lieutenant Harold Brady, Public Safety Legal Advisor, Surprise Police 

Department, to Michaela Wallin, Equal Justice Works Fellow, ACLU Women’s Rights 

Project, and Sandra Park, Senior Staff Attorney, ACLU Women’s Rights Project (Oct. 

6, 2014). 

174. Defendants did not respond to the request to suspend enforcement and made 

no assurance that the Nuisance Policy would not be enforced against Ms. Markham or the 

Landlord at a later date. Defendants did not even indicate that Ms. Markham would not be 

sanctioned for reported crimes against her or calls for police assistance when she was the 

victim of domestic violence. 

175. Ms. Markham’s counsel also contacted the Landlord and Property Manager to 

inform them that the threatened eviction was unlawful and that other negative housing 

action on the basis of incidents of domestic violence or Ms. Markham’s status as a victim of 

domestic violence would be unlawful. 

176. Ms. Markham received no initial response from the Landlord or Property 

Manager regarding whether they would continue to pursue her removal from housing. 

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177. Eventually, upon further correspondence with Ms. Markham’s counsel, the 

Property Manager stated, on December 3, 2014, that there was no pending eviction or legal 

action against Ms. Markham coming from our office. 

178. On March 5, 2015, Ms. Markham submitted a Notice of Claim to Surprise, the 

Surprise Arizona Police Department, Police Chief Michael Frazier, and Officer Christopher 

Tovar. 

H. Injunctive and Declaratory Relief

179. Adoption and enforcement of the Nuisance Policy by Defendants has caused 

and continues to cause irreparable harm to Ms. Markham, including by chilling her First 

Amendment rights to free speech and to petition the government and by violating her 

Fourteenth Amendment rights to Due Process and Equal Protection and her rights under the 

federal Fair Housing Act and state law, as described above.

180. Ms. Markham has suffered and will continue to suffer irreparable harm unless 

this Court permanently enjoins Defendants from enforcing the Nuisance Policy.

181. Absent injunctive and declaratory relief, Ms. Markham and other crime 

victims in Surprise face the very real threat of losing their homes if they contact the police 

for help. 

182. The policies and practices of Defendants have caused and continue to cause a 

serious threat to the safety and well-being of such victims, including Ms. Markham. 

183. Defendants’ actions continue to result in a significant chilling effect on the 

exercise of Ms. Markham’s, and other Surprise tenants’, free speech rights and their ability 

to seek the assistance of law enforcement.

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184. Ms. Markham has no adequate remedy at law. Unless enjoined by the Court, 

Defendants will continue to infringe Ms. Markham’s rights and those of Surprise residents 

who require or seek police or emergency assistance, and continue to inflict irreparable 

injury. This threat of injury to Ms. Markham requires preliminary and permanent injunctive 

relief in which Defendants are enjoined from enforcing the Nuisance Policy against her and 

other residents in Surprise. 

COUNT I – Rights of Speech 

(U.S. Const. amend. 1; Ariz. Const. Art. 2 §5) 

185. Ms. Markham incorporates by reference the allegations in the preceding 

paragraphs as though set forth at length herein. 

186. The First Amendment to the United States Constitution and its Arizona 

equivalent, Ariz. Const. Art. 2 §5, guarantee the right to freedom of speech and the right to 

petition the government for redress of grievances. 

187. Under the First Amendment’s “right to petition” clause, communications to 

law enforcement – including (1) reporting physical assault, (2) reporting criminal activity, 

and (3) filing a complaint with law enforcement – are constitutionally protected activities. 

188. The First Amendment also prohibits restrictions on the expression of 

information or speech, including prohibitions on reporting crime or requesting police 

service. 

189. The language of the Nuisance Property Section violates the First Amendment 

on its face by imposing penalties on the basis of calls to the police or reports of criminal 

activity. 

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190. The Nuisance Property and Crime Free Lease Sections also chill the exercise 

of First Amendment rights by imposing penalties on the basis of crime occurring at a 

property, regardless of whether the tenant was the victim or perpetrator, and thereby 

deterring and outright burdening tenants’ ability to report crime and seek police assistance. 

191. The Nuisance Property Section further violates the First Amendment as 

applied in Defendants’ enforcement of it against Ms. Markham. 

192. Defendants’ enforcement of the Nuisance Property Section against Ms. 

Markham based on calls made to the police reporting violent harassment and instances of 

domestic violence perpetrated against her directly violated her right to petition the 

government to redress grievances and to freedom of speech. 

193. The continued existence of the Nuisance Policy has prevented Ms. Markham 

from calling the police because of the impact it could have on her housing. Ms. Markham 

has declined to call 911 when she otherwise may have and would avoid contacting the 

police in the future. 

194. Thus, the Nuisance Policy and Defendants’ aggressive enforcement of it has 

created an undue burden and chilling effect on Ms. Markham’s First Amendment right to 

free speech and to petition the police for protection. 

195. The Nuisance Policy, particularly as applied to victims of crime or those in 

need of emergency assistance, does not advance any compelling government interest and is 

not narrowly tailored to justify the infringement of Ms. Markham’s fundamental right to call 

the police. 

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196. Accordingly, the Nuisance Policy violates the First Amendment and its 

Arizona equivalent. 

197. Therefore, Ms. Markham requests the relief outlined below. 

Count II: Procedural Due Process 

(U.S. Const. amend. XIV; Ariz. Const. Art. 2 §4) 

198. Ms. Markham incorporates by reference the allegations in the preceding 

paragraphs as though set forth at length herein. 

199. The Fourteenth Amendment to the United States Constitution and its Arizona 

equivalent provide that no person shall be deprived of life, liberty or property without due 

process of law. 

200. Enforcement of the Nuisance Property Section threatened to deprive Ms. 

Markham of her property interest in her leasehold by subjecting her Landlord to potential 

criminal fines or revocation of her rental license and by directing and incentivizing her 

Landlord to initiate eviction proceedings against her without adequate procedural 

protections. 

201. On its face, the Nuisance Property Section does not require any notice to the 

tenant when the Section is enforced against property owners, nor does it give the tenant an 

opportunity to contest either the discretionary decision to characterize an incident as an 

“offense” or the decision to enforce the Nuisance Property Section against the Landlord. 

202. Defendants did not afford any procedural protections to Ms. Markham as they 

made their decisions and took actions to ensure that she suffered penalties including 

eviction. 

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203. Accordingly, the Nuisance Property Section and its enforcement by 

Defendants violate the Fourteenth Amendment Procedural Due Process Clause and its 

Arizona equivalent. 

204. Therefore, Ms. Markham requests the relief outlined below.

Count III: Equal Protection 

(U.S. Const. amend. XIV; Ariz. Const. Art. 2 §13) 

205. Ms. Markham incorporates by reference the allegations in the preceding 

paragraphs as though set forth at length herein. 

206. The Fourteenth Amendment to the United States Constitution and its Arizona 

equivalent prohibit the denial of equal protection of the law. 

207. Defendants intentionally discriminated against women by chilling the ability 

of women victims of domestic violence to report crime and seek police protection and by 

penalizing women victims for seeking police assistance. 

208. The City Council enacted the Nuisance Property Section and the Crime Free 

Lease Section with the knowledge and intent that they would adversely impact domestic 

violence victims’ ability to seek police assistance and maintain their housing. 

209. The City Council had knowledge of, but disregarded, the warnings of local 

stakeholders, including a representative from Surprise, about the harmful impact the 

Nuisance Property Section and Crime Free Lease Section would have on women, especially 

women victims of domestic violence. 

210. Moreover, the Police Department’s application of the Nuisance Property 

Section against women domestic violence victims relied on gender stereotypes about abused 

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women to justify its action, blaming women victims for the criminal conduct perpetrated 

against them. 

211. Officer Tovar, the primary official who enforced the Nuisance Property 

Section, also treated Ms. Markham less favorably than a similarly-situated male victim of 

domestic violence and did so based on the same gender stereotypes about abused women’s 

responsibility for the violence committed against them. 

212. The disparate enforcement of the Nuisance Property Section against women 

intentionally discriminated against female tenants in Surprise, such as Ms. Markham, who 

are victims of domestic violence. 

213. Ms. Markham was injured by the discriminatory enforcement of the Nuisance 

Property Section because she could not seek police assistance without risking being evicted. 

214. Enforcement of the Nuisance Property Section in situations where residents 

seek emergency or police assistance or are the victims of crime does not advance an 

important or legitimate government interest, and is not substantially or rationally related to 

advance such an interest. 

215. Accordingly, Defendants violated and continue to violate the Fourteenth 

Amendment and its Arizona equivalent. 

216. Therefore, Ms. Markham requests the relief outlined below. 

Count IV: Discrimination in Housing on the Basis of Sex

(Fair Housing Act, 42 U.S.C. §§3601 et seq.; Ariz. Rev. Stat. §41-1491) 

217. Ms. Markham incorporates by reference the allegations in the preceding 

paragraphs as though set forth at length herein. 

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218. The Fair Housing Act and its Arizona equivalent prohibit discrimination in 

housing on the basis of any protected class, including sex, and further prohibit any law that 

purports to require or permit any action that would constitute a discriminatory housing 

practice or has a disparate impact on a protected class. 

219. Ms. Markham was a victim of domestic violence. The great majority of 

victims of domestic violence are women, a protected class recognized by the Fair Housing 

Act and its Arizona equivalent. 

220. Defendants interfered with Ms. Markham’s housing on a discriminatory basis, 

otherwise making housing unavailable to her and discriminating in the provision of services 

or facilities on the basis of sex. 

221. Defendants made housing unavailable to Ms. Markham pursuant to the 

Nuisance Policy by pressuring her Landlord to evict Ms. Markham based on the domestic 

violence committed against her and predicated on inaccurate gender stereotypes about 

women victims of domestic violence. 

222. Defendants discriminated against Ms. Markham in the provision of services 

by enforcing the Nuisance Policy to penalize Ms. Markham for seeking police services in 

response to incidents of domestic violence. 

223. Defendants’ acts and decisions in enforcing the Nuisance Policy against Ms. 

Markham, as described above, demonstrate their discriminatory animus against women 

victims of domestic violence. 

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224. The City Council knowingly disregarded local stakeholders’ warnings about 

the harmful impact the Section would have on women victims of domestic violence and the 

likely Fair Housing Act violations that would result. 

225. The Surprise Police Department relied on gender stereotypes about abused 

women in justifying police action against Ms. Markham and more aggressively enforced the 

Nuisance Property Section against her as compared to a similarly situated male.

226. Defendants engaged in such discriminatory conduct intentionally, willfully, 

and with disregard of the rights of Ms. Markham, and she suffered injury as a result. 

227. Accordingly, the Nuisance Property Section violates the Fair Housing Act and 

its Arizona equivalent.

228. Therefore, Ms. Markham requests the relief outlined below. 

Count V: State Preemption 

229. Ms. Markham incorporates by reference the allegations in the preceding 

paragraphs as though set forth at length herein. 

230. The Nuisance Policy intrudes on a matter of statewide concern: the ability of 

residents to call the police and/or receive police assistance in an emergency or in the face of 

criminal activity. 

231. The Arizona Legislature has appropriated the field by enacting A.R.S. §33-

1315(A)(4), which provides that no rental agreement may “waive or limit the tenant's right 

to summon or any other person's right to summon a peace officer or other emergency 

assistance in response to an emergency.” 

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232. The Nuisance Property Section directly conflicts with A.R.S. §33-1315 by 

imposing penalties and prohibiting a property owner, agent, or manager to rent or continue 

to rent “to a tenant following “[f]our or more calls for police service to the same service 

address/unit within a 30-day period . . . reporting criminal activity.” 

233. The Nuisance Policy also conflicts with §33-1315 by imposing penalties and 

requiring or encouraging a property owner, agent, or manager to evict a tenant upon crime 

occurring at the property, even when the tenant was the victim of that crime. 

234. The Nuisance Policy effectively imposes strict liability on tenants for crime 

that occurs in their homes and thereby impermissibly limits a tenant’s statutory right to seek 

police assistance in response to that crime. 

235. The Crime Free Lease Section extends the tenant’s responsibility without any 

meaningful limit, instead requiring that the tenant “not allow criminal activity within the 

tenants [sic] sphere of influence,” a vague, overly broad term that is found nowhere in the 

Arizona Residential Landlord Tenant Act. 

236. Similarly, although the Nuisance Property Section defines a nuisance as based 

on crime that the tenant “allows” on or near the property, in operation it imposes penalties 

based on crime over which the tenant has no control, such as violent assaults by an abuser 

against a victim of domestic violence. 

237. With the backdrop of the Crime Free Lease Section’s requirement that all 

leases in Surprise authorize eviction based on a single instance of criminal activity and 

Defendants’ aggressive enforcement of the Nuisance Property Section based on instances of 

crime, tenants are necessarily chilled and restricted in their ability to seek police protection. 

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238. The Nuisance Policy and its enforcement violate Ms. Markham’s statutory 

right to seek police assistance in an emergency situation like the domestic violence incidents 

described above. 

239. Additionally, Surprise does not have a charter and thus must be able to point 

to a provision of state law to justify any local legislation. Non-charter Arizona cities, like 

Surprise, derive their legislative powers from the state constitution and statutes. 

240. Surprise exceeded its legislative authority when it enacted the Nuisance Policy 

because there is no provision of state law or the constitution that grants cities the power to 

limit calls for police service, to punish a landlord or tenant for making such calls, or to 

impose penalties based on the occurrence or reporting of crime without regard to whether 

the person punished was the perpetrator or otherwise responsible. 

241. Neither the Nuisance Property nor Crime Free Lease Sections cite to any state 

law granting the supposed legislative authority being invoked. Other sections of Chapter 

105, Article III do contain state law references. 

242. Therefore, Ms. Markham requests the relief outlined below. 

WHEREFORE, Ms. Markham prays for judgment on Counts I – V as follows: 

1. Ms. Markham requests a declaratory judgment and order for permanent 

injunctive relief under (a) Federal Rules of Civil Procedure 57 and 65, (b) 28 U.S.C. 

§2201(a), and (c) any “further necessary or proper relief” under 28 U.S.C. §2202; 

2. Ms. Markham requests a declaration that the Nuisance Policy violates the 

United States Constitution, Fair Housing Act, Arizona equivalents, and other state legal 

provisions as set out above; 

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3. Ms. Markham requests entry of a permanent injunction enjoining the 

Defendants, acting in their official capacities, and all others under their supervision and 

control, and those acting in concert with them, under color of the law of the State of 

Arizona, from enforcing the Nuisance Property and Crime Free Lease Sections; 

4. Ms. Markham requests an award of her compensatory and punitive damages; 

5. Ms. Markham requests an award of the costs and expenses of this action, 

including attorneys’ fees pursuant to 42 U.S.C. §1988(b) and 3613(c); and 

6. Ms. Markham requests any further relief that the Court determines may be just 

or equitable. 

DATED this 27th day of August, 2015. 

By /s/ Heather A. Macre 

Heather A. Macre 

Aiken Schenk Hawkins Ricciardi P.C.

2390 East Camelback Road, Suite 400 

Phoenix, Arizona 85016-3479 

Attorneys for Plaintiff 

 

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VERIFICATION 

State of Arizona ) 

 ) 

County of Maricopa ) 

I, Nancy Markham, hereby declare that I am the Plaintiff in the attached matter, 

Markham v. City of Surprise et al., and that I have read the foregoing Complaint, and that I 

know of the contents thereof; that the same are true and correct to the best of my belief, 

except as to those matters alleged on information and belief, and as to those matters, I 

believe them to be true. 

I declare under penalty of perjury that the foregoing is true and correct. 

DATED this 25th day of August, 2015. 

 /s/ Nancy Markham 

 Nancy Markham 

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