Bospy
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Finegold grunts and sluggishly submits a motion.
SUPERIOR COURT OF THE STATE OF SAN ANDREAS
COUNTY OF LOS SANTOS
CIVIL DIVISION
DONI PROVACCI
(Plaintiff)
- against -
STATE OF SAN ANDREAS;
LOS SANTOS COUNTY SHERIFF'S DEPARTMENT;
DEPUTY KYLER MERRICK;
DEPUTY NATHANIAL MERCER;
DEPUTY JOHN DOE 3;
DEPUTY JOHN DOE 4;
DEPUTY JOHN DOE 5;
DEPUTY JOHN DOE 6;
(Defendants)
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)Court File: 24GJCC00010
CIVIL COMPLAINT
Action Filed: March 23rd, 2024
I. MOTION FOR SUMMARY JUDGMENT
In this Motion for Summary Judgment, defendant Los Santos Sheriff's Department (LSSD) contends that the Department cannot be held liable per the San Andreas Sovereign Immunity Act, and prays for this Court to absolve the Department of liability.
1. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT AS IT CANNOT BE HELD LIABLE PER THE SAN ANDREAS SOVEREIGN IMMUNITY ACT (SASI)
The Los Santos Sheriff's Department conducted a robust and thorough internal affairs investigation where they interviewed persons involved at the scene and determined that one Detective Kyler Merrick acted outside the scope of their employment and grossly violated established departmental protocol by firing on the plaintiff improperly without informing them of their presence. The Department has met its responsibility to investigate the shooting and determined that Deputy Merrick was the sole party responsible for violating policy by failing to announce the presence of deputies on scene, and this was outside the scope of his employment and furthermore an egregious breach of policy.
2. THE DEFENDANT CANNOT BE HELD LIABLE FOR A FAILURE TO TRAIN WHEN THE DEPUTY INVOLVED VIOLATED ESTABLISHED POLICY
In Springfield v. Kibbe we are informed "it is only when the execution of the government's policy or custom . . . inflicts the injury" that the municipality can be held liable, and furthermore a "city's failure to provide training to municipal employees resulted in the constitutional deprivation . . . are cognizable under § 1983 . . . [only when the] city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants." In this case, the plaintiff was offered the opportunity to pursue criminal charges against the deputy defendant who first opened fire, thus the department met their responsibility to protect the civil liberties of the plaintiff. Critically, the individual deficiencies of a single police officer or even the negligent administration of an "otherwise sound program" are insufficient to allow the governmental entity to be held liable under § 1983. Note the attached policies. This clearly shows that the department expects deputies to adhere to the law when encountering individuals armed with firearms, as in this case, and to consider tactics predicated upon reducing or preventing the use of force at all.
3. THERE IS NO GENUINE ISSUE OF MATERIAL FACT (REGARDING THIS DEFENDANT'S LIABILITY), THUS ENTITLING THE DEFENDANT TO SUMMARY JUDGMENT
The Plaintiff acknowledges that they aimed a loaded weapon at their garage door when deputies entered their place of business, in effect aiming a loaded firearm in the direction of deputies responding to an emergency. While a deputy did violate policy and operate outside the scope of their employment by failing to announce their entry, as established by the internal affairs investigation, it would be onerous to hold the Department liable for what amounted to a lawful, but ultimately improper shooting. This would establish the precedent that law enforcement officers must wait while a loaded firearm is pointed at them before opening fire. In a critical situation, split-second decisions are necessary. The department is not vicariously liable given it took appropriate steps to remedy the issue. Other facts may be open for dispute, but these do not concern the defendant.
Declaration
I, Adam Finegold, affirm that the above-stated facts are true and accurate to the best of my knowledge and belief. This shall be the official petition submitted for the Superior Court to commence proceedings.
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To clarify for the Court, Your Honor, we believe the shooting was lawful but egregiously violated LSSD policy by failing to announce their presence, thus meeting the criteria under SASI.
Spoiler(i) Has acted outside their scope of employment,
(ii) Grossly violated prior established departmental protocol.
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Ah, yes - the answer. Yes, of course, in all of my years practicing law in this State I have never shirked my duty to provide the answer in civil court proceedings. Here it is...
Right, I'll read through it quickly to catch us up so we don't have to waste any time reading the fine print... yes...
Acknowledge paragraph 1, we dispute the factuality of paragraph 2 in that "acting under color of law" seems to grant implicit agreement to their actions, we acknowledge the plaintiff's beliefs in paragraph 3, the phrasing in paragraph 4 is confusing... the deputies all were acting with consent of one another? We acknowledge paragraph 5.
No disputes with 6-9. We dispute the factuality of paragraph 10, we have no idea what intent the plaintiff had when he drew his weapon given he pointed it at armed deputies in uniform. We agree with 11 and 12. We acknowledge paragraph 13 and 14, and highlight under paragraph 15 that the defendant pointed his firearm at the deputy as they entered, we dispute the factuality that it was lowered and contend it was raised when shots were fired. We are in agreement with 16, dispute the factuality of point 17 given investigation revealed only two deputies fired, and only tersely agree with point 18 given we don't know who's shots hit the plaintiff.
Critically, we dispute paragraph 20, particularly that the plaintiff posed no harm. We contend that his decision to point a loaded firearm at responding sheriff's deputies endangered their lives. Point 21 is confirmed, we dispute point 22 and deny the allegation given he pointed a loaded firearm at responding deputies thus satisfying the conditions for probable cause of Brandishing a Firearm. Point 23 - eugh, we don't have evidence to showcase what kind of healthcare issues Mister Provacci has had, and deny the allegations.
On to points 42 through 54 - I'm not going through these bullet by bullet, suffice it to say we dispute the factuality of these allegations and deny them given the LSSD cannot be held liable due to SASI and the other points I've brought forward in the motion, the court cases listed have little to no relation to the case at hand - one of which is still undergoing trial. I'll read from the court transcript for further detail, and we bring forward these affirmative defenses:
Quote(b) Pursuant to Sec. 301, the agency employing the party defendant shall not hold civil liability in matters where the party defendant in the case;
(i) Has acted outside their scope of employment,
(ii) Grossly violated prior established departmental protocol.
QuoteWith regards to the claims filed for Failure to Train pursuant to 42 U.S.C. § 1983, in Springfield v. Kibbe we are informed "it is only when the execution of the government's policy or custom . . . inflicts the injury" that the municipality can be held liable, and furthermore a "city's failure to provide training to municipal employees resulted in the constitutional deprivation . . . are cognizable under § 1983 . . . [only when the] city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants." Critically, the individual deficiencies of a single police officer or even the negligent administration of an "otherwise sound program" are insufficient to allow the governmental entity to be held liable under § 1983. The plaintiff has failed to provide any evidence indicating that the training of the Los Santos County Sheriff's Department is insufficient or defective. In fact, I shall provide the manual of the Los Santos County Sheriff's Department wherein the deputy grossly violated established procedure. This clearly shows that the department expects deputies to adhere to the law when encountering individuals armed with firearms, as in this case, and to consider tactics predicated upon reducing or preventing the use of force at all.
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Your Honor, on behalf of the Sheriff's Department, we seek a motion to dismiss the claims against the Los Santos County Sheriff's Department due to the laws of the San Andreas Sovereign Immunity Act, in particular § 301 subsection B, and I quote...
Quote(b) Pursuant to Sec. 301, the agency employing the party defendant shall not hold civil liability in matters where the party defendant in the case;
(i) Has acted outside their scope of employment,
(ii) Grossly violated prior established departmental protocol.
The Los Santos Sheriff's Department conducted a robust and thorough internal affairs investigation where they interviewed persons involved at the scene and determined that one Detective Kyler Merrick acted outside the scope of their employment and grossly violated established departmental protocol by firing on the plaintiff. He was suspended, and in fact the plaintiff was offered the opportunity to pursue charges against the Detective via Internal Affairs but opted not to do so. With reference to the claims against other deputies... frankly I'm not sure what the claims against deputies who did not utilize their firearms are for, but under Warren v. District of Columbia a police officer has no civil duty to protect a citizen from wrongdoing and cannot be held liable for inaction unless the person was initially in their custody. There is no duty of care for the Department in this case until the plaintiff was handcuffed, only for the deputies who fired their weapons.
Quote
Your Honor, with regards to the claims filed for Failure to Train pursuant to 42 U.S.C. § 1983, in Springfield v. Kibbe we are informed "it is only when the execution of the government's policy or custom . . . inflicts the injury" that the municipality can be held liable, and furthermore a "city's failure to provide training to municipal employees resulted in the constitutional deprivation . . . are cognizable under § 1983 . . . [only when the] city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants." Critically, the individual deficiencies of a single police officer or even the negligent administration of an "otherwise sound program" are insufficient to allow the governmental entity to be held liable under § 1983. The plaintiff has failed to provide any evidence indicating that the training of the Los Santos County Sheriff's Department is insufficient or defective. In fact, I shall provide the manual of the Los Santos County Sheriff's Department wherein the deputy grossly violated established procedure. This clearly shows that the department expects deputies to adhere to the law when encountering individuals armed with firearms, as in this case, and to consider tactics predicated upon reducing or preventing the use of force at all.
Spoiler
As for the claims arising out of a pattern or practice, I won't address those at the present - frankly, their factual basis has nothing to do with this case and provides no historical background. In fact, one case referenced is still undergoing trial. I shall continue this motion when I am furnished with the internal affairs report.
See the furnished Internal Affairs report which addresses the issues of the case.
Spoiler
I shall also note, Your Honor, the fact that it is not disputed that the plaintiff pointed a loaded firearm at deputies entering the building. A use of force is not unreasonable in that circumstance, but it was improper.
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Adam Finegold waltzes into the room and slicks his hair back. He takes a seat and sets his briefcase down. He swigs on a cup of cold brew coffee.
Adam Finegold for the Los Santos County Sheriff’s Department.
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Your Honor, we seek a subpoena for the Los Santos Police Department to identify John Doe - he can be identified by his voice on dash-camera stating the following:
Quote[22:52:29] Wilmer Rueda says: You know what? My Sergeant asked you three times to get off the median.
[22:52:37] Wilmer Rueda says: And you keep ignoring him, so... here's what I'm gonna do.
[22:52:40] * Wilmer Rueda reaches for James' arm.
[22:52:49] Wilmer Rueda says: I'm gonna put you in these cuffs since you've been disobeying lawful ccommands.
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Adam Finegold stands and adjusts his tie. He slicks his greasy hair back.
Your Honor, the plaintiff is present.
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SUPERIOR COURT OF SAN ANDREAS, COUNTY OF:
BRANCH NAME: LOS SANTOS
COURTHOUSE NAME: GREG E JOPLIN
CASE NUMBER: 24GJCC00008
PLAINTIFF/PETITIONER: JAMES GASSLER
DEFENDANT/RESPONDENT: LOS SANTOS POLICE DEPARTMENT, JASON KING-ROGERS, MATTHEW RUSSELL, JOHN DOE
PROOF OF SERVICE OF SUMMONS
1. At the time of service I was at least 18 years of age.
2. I served copies of:
[-] summons
[x] complaint
[-] cross-complaint
[-] other (specify documents):
3.
a. Party served (specify name of party as shown on documents served):
LOS SANTOS POLICE DEPARTMENT
b. [-] Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person under item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a):
4. Address where the party was served:
5. I served the party:
[-] by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to
receive service of process for the party (1) on (date): DATE (2) at (time): TIME[-] by substituted service. On (date): DATE at (time): TIME I left the documents listed in item 2 with or
in the presence of (name and title or relationship to person indicated in item 3):(1) [-] (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. I informed him or her of the general nature of the papers.
(2) [-] (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. I informed him or her of the general nature of the papers.
(3) [-] (physical address unknown) a person at least 18 years of age apparently in charge at the usual mailing address of the person to be served, other than a United States Postal Service post office box. I informed him or her of the general nature of the papers.
(4) [x] (by mail and acknowledgment of receipt of service) I mailed the documents listed in item 2 to the party, to the address shown in item 4, by first-class mail, postage prepaid.
(5) [-] by other means (specify means of service):
6. Person who served papers
a. Name: ADAM FINEGOLD
b. Address: N/A
c. Telephone number: USE EMAIL
d. (if applicable) The fee for the service was $0000
7. I declare under penalty of perjury under the laws of the State of San Andreas that the foregoing is true and correct.
or
8. I am a San Andreas sheriff or marshal and I certify that the foregoing is true and correct
ADAM FINEGOLD
(NAME OF PERSON WHO SERVED PAPERS/SHERIFF OR MARSHAL)
ADAM FINEGOLD
(SIGNATURE)
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Superior Court of San Andreas, County of Los Santos
Payment Submittal Notice
Please print and complete all information on this form clearly and legibly.
Date: 03/19/24
Case Number: 24GJCC00008
Case Name: James Gassler v. Los Santos Police Department et al.
In case we need to notify you, please provide your name and telephone number.
Name/Requester: Adam Finegold
Phone #: Use email
Address: Use email
Payment Amount: $1500
(( Proof of Payment ))
Proof of Payment (Image):
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SUPERIOR COURT OF THE STATE OF SAN ANDREAS
COUNTY OF LOS SANTOS
CIVIL DIVISION
James Gassler
(Plaintiff)
- against -
Los Santos Police DepartmentJason King-Rogers
Matthew Russell
John Doe
(Defendant)
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)Court File: 24GJCC00008
CIVIL COMPLAINT
Action Filed: March 19th, 2024
I. CAUSES OF ACTION
Defendant LOS SANTOS POLICE DEPARTMENT (#1)
[1] 42 U.S. Code § 1983 Civil Deprivation of Rights (vicarious liability)
[2] False Imprisonment (vicarious liability)
[3] Violation of the First Amendment (vicariously)
[4] Violation of the Fourth Amendment (vicariously)
[5] Violation of the Eighth Amendment (vicariously)
[6] Violation of the Fourteenth Amendment (vicariously)[7] Negligence
Defendant JASON KING ROGERS (#2)
[1] 42 U.S. Code § 1983 Civil Deprivation of Rights
[2] False Imprisonment
[3] Violation of the First Amendment
[4] Violation of the Fourth Amendment
[5] Violation of the Eighth Amendment
[6] Violation of the Fourteenth AmendmentDefendant MATTHEW RUSSELL (#3)
[1] 42 U.S. Code § 1983 Civil Deprivation of Rights
[2] False Imprisonment
[3] Violation of the First Amendment
[4] Violation of the Fourth Amendment
[5] Violation of the Eighth Amendment
[6] Violation of the Fourteenth AmendmentDefendant JOHN DOE (#4)
[1] 42 U.S. Code § 1983 Civil Deprivation of Rights
[2] False Imprisonment
[3] Violation of the First Amendment
[4] Violation of the Fourth Amendment
[5] Violation of the Eighth Amendment
[6] Violation of the Fourteenth Amendment
II. PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that this Court enter judgment against Defendant, adjudging, and decreeing that:
Defendant #1
[1] Punitive Damages - $400,000
Defendant #2
[1] Punitive Damages - $200,000
[2] Attorney Fees - $50,000
Defendant #3
[1] Punitive Damages - $200,000
[2] Attorney Fees - $50,000
III. FACTUAL BACKGROUND
[1] On the date of March 14th, the plaintiff (James Gassler) was exercising his first amendment rights to freedom of the press, filming an ongoing arrest being conducted by Defendant #2 (Jason King-Rogers), Defendant #3 (Matthew Russell), and Defendant #4 (John Doe) when he walked from a side walk to another side walk to gain a better view of the ongoing situation. Sergeant Russell approached the plaintiff and ordered him to leave, claiming that he was standing on a portion of the road when evidence clearly demonstrates he was standing on a sidewalk. According to the Honorable Cecilia Newkirk, "Mister Gassler was ordered to move from the scene because he was standing on a median, which the officers do not consider a sidewalk, and not because he was necessarily impeding or obstructing an officer or an active crime scene." Mister Gassler was subsequently falsely arrested and imprisoned, in violation of his civil liberties. (ref exhibit 1)
[2] The arresting officers (defendant #2, #3, and #4) articulated that the arrest was due to his presence in a median. Ostensibly, "For all intents and purposes, a median is considered a sidewalk. San Andreas law does not make a distinction between the two. To also make it clear, the officers do have the right to issue a lawful order to an individual to move further back on the basis that he is actively impeding an officer and/or their crime scene. However, in this instance, it seems the order was given on the basis that Mister Gassler was situated on a median unlawfully, which is not the case." We posit that Mister Gassler was arrested due to his insistence on filming the crimescene, as this is what initially drew the police officer's attention to him, as they note in their narrative "As the officers were attending to the scene and securing the suspect who still was resisting officers. While this happened, a male, later identified as James Gassler, was standing on the sidewalk of Dorset Drive and taking photos of the police scene." (ref exhibit 1)
[3] Mister Gassler was subject to an illegal search incident to arrest by the defendants, whereas the Fourth Amendment guarantees "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (ref Exhibit 2)
[4] Mister Glasser was brought to jail and subjected to arrest procedures by the defendants, including a thorough search and a brief period of time spent in custody of the Police Department, whereas the Eighth Amendment guarantees "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Given the arrest was illegal, Mister Glasser was forced to endure a cruel punishment. (ref Exhibit 1)
[5] Mister Glasser was deprived of his rights by the defendants, whereas the Fourteenth Amendment guarantees "[no] state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (ref exhibits 1, 2)
[6] We posit that the Los Santos Police Department is vicariously liable for these claims given the confidence of the supervisor involved in the scene, who callously and repeatedly refers to laws on the books that do not exist. We hold that this is fundamentally due to a training issue and negligence in properly educating police officers on the limits to their authority when engaging pedestrians in consensual contact, in that two seasoned police officers and an unidentified officer (one of which is a supervisor) falsely arrested a man who was merely exercising his rights to film police activity in public, and did so with indifference and banality, as though this is routine. Sergeant Russell states numerous times, "Read up on the penal code" and continued to claim that the median was a separate entity from the sidewalk. The Los Santos Police Department is clearly not vetting whether or not their officers are educated on the penal code when no law exists defining sidewalks, medians, or "road anatomy." That it was possible three officers and numerous officer bystanders conducted an arrest without question is an indication of a dereliction of duty by the department. The evidence in exhibit one clearly demonstrates the plaintiff standing on a sidewalk. See 1 and 2 for further support by the Honorable Ceicilia Newkirk, who held that this was, in fact, not the case. See exhibit three for the defendants' attitudes towards Mister Gassler's exercise of his rights.
IV. EVIDENCE
In support of the provided narrative, the following evidence shall be submitted into the court:
EXHIBIT ONE
SpoilerEXHIBIT TWO
Spoiler
EXHIBIT THREE
Spoiler-
RECORDING FROM GASSLER'S CAMERA (STILL RUNNING DURING THE DURATION OF THE ARREST)
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[23:08:09] James Gassler says (to Matthew Russell): You know I didn't do anything illegal.
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[23:08:19] Matthew Russell says: You sadly dide.
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[23:08:24] Matthew Russell says: You were told to get back on the sidewalk.
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[23:08:29] Matthew Russell says: You refused and didn't obey.
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[23:08:31] James Gassler says: I wasn't inside your scene, I was on a sidewalk.
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[23:08:38] Matthew Russell says: It's a median.
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[23:08:40] Matthew Russell says: Not a sidewalk.
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[23:08:46] Matthew Russell says: And you were told to leave it.
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[23:08:53] Matthew Russell says: You were in the middle of the road.
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[23:09:08] James Gassler says: A median is made to be stood on if it has a fuckin' sidewalk on it, Bro.
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[23:09:37] Matthew Russell says: A median is used to separate traffic.
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[23:09:56] James Gassler says: I need everyone's name and badge number from that scene, everyone that was stood in front of me and let you arrest me.
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[23:10:07] Matthew Russell says: You think I know everyone?
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[23:10:11] James Gassler says: I requested it from another officer and it wasn't fulfilled.
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[23:10:16] Matthew Russell says: Which one.
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[23:10:25] James Gassler says: I'm going to be reporting this, Bro. Give me their badge numbers.
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[23:10:34] Matthew Russell says: Dude.
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[23:10:38] Matthew Russell says: I do not know everyone there.
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[23:10:50] James Gassler says: I don't care, Man. You're a supervisor, your job is to figure it out.
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[23:11:03] Matthew Russell says: Meh.
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[23:11:10] Matthew Russell says: I did what you asked from me.
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[23:11:14] James Gassler says: Let's see how that blows over when I report you.
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[23:11:36] * Matthew Russell opens the trunk and stores his firearm away in storage, locking it.
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[23:11:54] * Matthew Russell opens the back door and grabs James by his bicep, leading him down to processing.
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[23:13:27] Matthew Russell says: Read up on the penal code man.
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[23:13:31] Beau Everhart says: Brilliant.
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[23:13:33] Matthew Russell says: You obstructed.
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[23:13:40] James Gassler says: You said I resisted.
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[23:13:45] James Gassler says: Is it obstructed, or resisted?
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[23:13:45] Matthew Russell says: And obstructed.
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[23:13:49] Matthew Russell says: Both.
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[23:13:55] Beau Everhart says: I didn't obstruct shit.
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[23:13:55] Mason Conway says: Wh—
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[23:13:58] James Gassler says: I didn't obstruct anything. You walked up to me. It's on camera.
Declaration
I, Adam Finegold, affirm that the above-stated facts are true and accurate to the best of my knowledge and belief. This shall be the official petition submitted for the Superior Court to commence proceedings.
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Your Honor, a police officer in the United States cannot arbitrarily approach someone standing on a public sidewalk and order them to leave the area. This is a question of constitutional rights. My client was exercising his first amendment right to record a crime scene. He did not interfere with the operations of police, he did not position himself beyond a secure perimeter, and he was standing on a sidewalk. The question as to whether he was standing on a side walk or median is EXTREMELY important to this case given the officers articulate the reason he was arrested was due to the fact he stood in a “median” rather than a sidewalk. There is no distinction in San Andreas law for what constitutes the difference between a sidewalk. The idea that him standing on a raised platform above the road does not constitute a sidewalk is a frivolous invention by the police department who were attempting to snuff out my client’s right to freedom of the press.
The State fails to show how my client was interfering with police duties. The mere presence of my client near the crime scene is not interference. He was, according to the description given in the arrest report, actually across the street from the scene of arrest. It is unreasonable and onerous on the public to give police officers the authority to order them away if they were quite literally standing across the street from the crime scene when there is no secure perimeter clearly delineated. It is the responsibility of the police to CLEARLY mark the borders of their crime scene, and I posit that if they do not then there should be no expectation that they can arrest someone unless they’re explicitly endangering public safety or polluting the crime scene.
We therefore ask the Court to dismiss these charges as a clear violation of my client’s constitutional rights.
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Your Honor, it is our intent to call the two officers mentioned in the arrest narrative as witnesses for cross examination. We also will file a motion to suppress the following from Exhibit One:
”When arriving at MRS, he continued to argue with officers and failed to comply with their basic orders”
There is no evidence that my client continued to argue or comply with basic orders. If he refused to comply with orders while handcuffed, what exactly was the result? They provide no description of what orders were given and what orders were not complied with. It is very clear he DID comply with orders given he was arrested and is now out on bail. The fact he was arguing for his rights is irrelevant to this case - a citizen has the right to voice their displeasure with an unconstitutional arrest, or frankly any arrest.
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STILL ACCEPTING CLIENTS! FIND OUT IF YOU QUALIFY FOR PRO-BONO REPRESENTATION!
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[24GJCC00010] Doni Provacci v. State of San Andreas, et al.
in Civil Division
Posted
Your Honor, I don’t believe the Department was actually served. I am a contractor for the department and therefore it’s not my responsibility to serve them the subpoenas.
@Soyuz @Sephiken