Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT MOHAMED LUHIZO PLAINTI FFS VS. CITY OF BURLINGTON. BRANDON DEL POZO. INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE FOR THE CITY OF BURLINGTON. VERMONT: JASON BELLAVANCE. INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF BURLINGTON. DEREK HODGES, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF BURLINGTON. BRYAN KIRBY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF BURLINGTON. DEFENDANTS CORY CAMPBELL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER FOR THE CITY OF BURLINGTON. VERMONT: 0.3. DISTRICT COURT DISTRICT OF VERMONT FILED BY DEPUTY CLERK Civil Action No.25w-aq-5 JURY TRIAL DEMANDED Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 2 of 13 COMPLAINT FUR MONETARY DAMAGES AND DECLARATORY RELIEF I. JURISDICTION 1. Jurisdiction of this court is attained pursuant to 28 U.S.C. 1331. 1343(a). (3) and (4), and 2201 and is based on causes of action arising under 42 1983 and Bivens v. Six Unknown Avents. 403 U.S. 388. 91 S. Ct. 1999, 29 2d 619 (1971). Plaintiff further invokes the pendentjurisdiction ofthe Court to hear and decide claims arising under Vermont State law. II. PARTIES 2. Plaintil'fMOl IAMED LUHIZO (hereinafter was at all times mentioned herein. a resident of the State ofVerntont. 3. Defendant ITY OF is a municipality within the State of Vermont and owns. operates, manages. directs and controls the Burlington Police Department which employs Defendants JASON BEUAVANCE (hereinafter DEREK HODGES (hereinafter BRYAN KIRBY (hereinafter and CORY CAMPBELL (hereinafter 4. Defendant HODGES is. and was at all times mentioned herein. an of?cer with the City of Burlington Police Department and acting under color of state law. HODGES participated in the events described below. He is being sued in his individual and of?cial capacities. 5. Defendant is. and was at all times mentioned herein, an of?cer with the Cit},r ofBurlington Police Department and acting under color of state law. BELLAVANCE participated in the events described below. He is being sued in his individual and of?cial capacities. Is.) Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 3 of 13 6. Defendant CAMPBELL is, and was at all times mentioned herein, an of?cer with the City of Burlington Police Department and acting under color of state law. CAMPBELL participated in the events described below. He is being sued in his individual and of?cial capacities. 7. Defendant KIRBY is, and was at all times mentioned herein. an of?cer with the City of Burlington Police Department and acting under color of state law. KIRBY participated in the events described below. KIRBY is being sued in his individual and o?icial capacities. 8. Defendant BRANDON DEL POZO (hereinafter was at all times mentioned herein. the chief of police of the Burlington Police Department and acting under color of state law. DEL P020 is ultimately responsible for the control. training, supervision and discipline of of?cers ofthe Burlington Police Department. DEL P020 is being sued in his individual and of?cial capacities. NATURE OF ACTION 9. This action is brought by MOHAMED to recover damages which he has suffered, and which he continues to suffer. and to declare unconstitutional. certain actions of defendants, who are a municipality. its police department. local police of?cers and the former chiefof police. Defendants acting under color of state law have subjected MOHAMED to an illegal and unwarranted detention and to the unlawful. unreasonable and excessive use of force in effecting that detention. Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 4 of 13 1V. PLAINTIFF MOHAMED FIRST CAUSE OF ACTION 10. On October 6th. 2018 Plaintiff MOHAMED was socializing among a group of friends in the area of 199 Main Street in the city of Burlington. Among the group was brother. identi?ed as LUHIZO LUHIZO (hereinafter 1 i. This gathering was not tumultuous or violent, it was a lawful gathering of citizens in a public place. During this time. officers on scene were overheard saying, ?What are we doing over here?? and. ?are we stopping this. er are we going to sit here and watch it happen?? l2. 1-10DGES observed that LUI-IIZO was potentially injured and was attempting to ?x his shoulder which was apparently out ofits socket. IIODGES also observed attempting to climb a tree. as well as rough housing with his Friend. MUSEH (hereinafter 13. While the two were roughhousing. no complaint or dissatisfaction was expressed by MUSEH against LUHIZO nor did any of?cers allege that MUSEH was the victim of any crime. 14. BELLAVANCE concluded that he needed to detain LUHIZO and BELLAVANCE and other officers at the scene brought LUHIZO to the ground on his stomach. 15. While on the ground, LUHIZO shouted multiple times that he could not breathe. LU I-IIZO stated that he could not be on his chest and that he ?just wants to breathe.? At one point. a bystander approached the group of of?cers and requested multiple times that the officers do something to ensure LUHIZO couid breathe. 16. MOHAMED became fearful for his brother who was lying in front ofhim, screaming that he could not breathe while multiple police officers were on tor: of him. During this series of Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 5 of 13 events. MOHAMED approached and attempted to render aid to his brother; during his approach, he came into physical contact with an of?cer. 17. Upon realization that he came into physical contact with an of?cer. MOHAMED ran away from the Of?cers for fear of his own safety. 18. BEI..LAVANCE. HODGES. KIRBY. and CAMPBELL were. at alt times mentioned herein. Law Enforcement Of?cers employed by the City of Burlington Police Department. 19. After approximately ten seconds of running. MOHAMED stopped near the sidewalk on Main Street. 20. Immediately after stopping, MOHAMED was tackled by CAMPBELL and was pinned on the ground. MOI IAMED was now immobile and no longer resisting the authority of the officers. 21. After being tackled. KIRBY also positioned himself on top of MOHAMED and assisted CAMPBELL in taking MOHAMED into custody. 2. At no point did any officers command MOHAMED to stop resisting. 3. HODGES was also involved in the pursuit of MOHAMED. 24. Once HODGES began to pursue MOHAMED. HODGES could be heard saying, ?Get that fucker. Get that motherfucker.? in reference to MOHAMED. 25. HODGES was the third of?cer to approach MOHAMED. who was now laying on the ground on his stomach with CAMPBELL and KIRBY. pinning him to the ground. 26. HODGES ran around CAMPBELL and KIRBY and then dropped his knee onto face with significant force. Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 6 of 13 27. MOHAMED was already in the custody of CAMPBELL and KIRBY when HODGES dropped his knee onto face. 23. After knee struck face. MOHAMED shouted. ?Ow. my jaw! I just got hurt!" Bodycam footage shows a mixture of either blood and/or saliva on uniform pants. as well as a splattering ofblood on the concrete sidewalk. Blood is also seen inside mouth. 29. During this detention. MOHAMED shouted that he had broken his tooth. Officers at the scene told onlookers to ?Back the fuck up." 30. MOHAMED. who was spitting out blood, some which landed on the police cruiser. was then placed inside a Burlington Police Department cruiser. 31. friends approached the officers inquiring as to why the of?cers needed to assault MOHAMED. and wl'l}r there was blood at the scene. 32. While walking away from the scene. KIRBY referred to MOHAMED as ?that little fucker." and stated. ?He might be missing a tooth. He?s a shithead.? 33. At the time of the incident involving MOHAMED. Defendant BELLAVANCE was under an internal affairs investigation for another excessive use of force case. 34. The failure of the City of Burlington and to enact more prompt or effective discipline onto BELLAVANCE resulted in another citizen suffering serious injuries as a result of the actions of officers under supervision. 35. KIRBY. HODGES and CAMPBEI JIS use of force was without cause or justi?cation. 36. KIRBY and obscene language directed toward MOHAMED indicated an underlying malice toward him. Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 7 of 13 37. All criminal charges brought against MOHAMED as a result ofthis incident have been dismissed by the Chittenden State?s Attorney?s Of?ce. 38. MOHAMED continues to suffer injuries as a result of the battery of HODGES, KIRBY and CAMPBELL including a metal plate being placed into hisjaw and continued pain and discomfort long after the incident passed. 39. Officers HODGES. KIRBY and intentional use of excessive force and physical brutality on MOE-IAMED constituted an illegal and unreasonable seizure of MOHAMED. 40. As a direct and proximate result of the actioos of Defendants BELLAVANCE, HODGES, KIRBY, CAMPBELL, DEL P020, and the CITY OF BURLINGTON, Plaintiff MOI IAMED has suffered injuries and damages, including, but not limited to: a. Physical injury, treatment of which caused Plaintiff MOHAMED to incur medical and therapeutic fees and expenses, and associated incidental and consequential costs; b. Emotional trauma; c. Physical and mental pain and suffering: d. Disruption of normal body functioning; e. Humiliation and embarrassment; 41. Defendant OF BURLINGTON, as a matter of policy and practice has. with deliberate indifference to well-established constitutional and civil rights of citizens of the United States and the State of Vermont failed to adequately discipline, train, or otherwise direct or SUpewise police of?cers concerning, the rights ofcitizens and victims, thereby causing police, Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 8 of 13 including Defendants BELIAVANCE, HODGES, KIRBY. and CAMPBELL, to engage in the unlawlul conduct described above. 42. Defendant CITY OF BURLINGTON. as a matter of policy and practice, has, with deliberate indifl?Erence to well-established constitutional and civil rights ofcitizens of the United States and the State of Vermont, failed to properly sanction or discipline police of?cers, including Defendants BELLAVANCE, KIRBY and CAMPBELL, in this case, for violations of the constitutional rights ofcitizens and persons. thereby causing police, including Defendants BELLAVANCE, CAMPBELL, HODGES. KIRBY and CAMPBELL. to engage in the unlawful conduct set forth herein. 43. Defendant CITY OF BURLINGTON, as a matter of policy and practice, has, with deliberate indifference to well?established constitutional and civil rights of citizens of the United States and The State of Vermont. failed to sanction and discipline police of?cers, including the Defendants DEL POZO. BELLAVANCE. HODGES. KIRBY and CAMPBELL, thereby causing police. including the Defendants DEL POZO, BELLAVANCB, HODGES, KIRBY and CAMPBELL to engage in the unlawful conduct set forth herein. 44. Defendant DEL POZO has with deliberate indifference to well?established constitutional and civil rights of citizens of the United States and the State of Vermont, failed to adequately control, train. supervise and discipline police of?cers under his command, including Defendant BELLAVANCE, HODGES, KIRBY and CAMPBELL for violations of the constitutional rights of citizens and persons. 45. As a direct and proximate result of Defendants DEL POZO, BELLAVANCE, CAMPBELL, KIRBY, HODGES and the CITY OF BURLINGTON actions, all of which were Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 9 of 13 unreasonable, unnecessary. and excessive, and which were undertaken by Defendants with gross recklessness and callous indifference to Plaintiff protected constitutional rights, privileges and immunities secured to him by the Fourth. Fifth and Fourteenth Amendments to the United States Constitution. in violation of 42 U.S.C. 1983 and the laws of the State of Vermont, in particular the right to be free from unlawful seizure. V. PLAINTIFF SECOND CAUSE OF ACTION 46. Plaintiff MOI hereby realleges and incorporates by reference all prior allegations, as though fully set forth here. The actions of CAMPBELL in this matter constitute an assault on MOHAMED. 48. The actions of KIRBY in this matter constitute an assault on MOHAMED. 49. The actions of HODGES in this matter constitute an assault on MOHAMED. 50. This Court has pendent jurisdiction to hear and adjudicate said claims. VI. PLAINTIFF THIRD CAUSE OF ACTION SI. MOHAMED hereby and incorporates by reference all prior allegations. as though fully set forth here. 52. The actions of Defendants KIRBY, CAMPBELL, and HODGES in this matter constitute a battery against IAMFD by causing unwanted physical contact with MOHAMED. 53. This Court has pendent jurisdiction to hear and adjudicate said claims. VII. PLAINTIFF FOURTH CAUSE OF ACTION 54. MOHAMED hereby realleges and incorporates by reference all prior allegations, as though fully set forth here. Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 10 of 13 55. The actions of Defendants KIRBY. CAMPBELL and HODGES in tackling and striking MOHAMED in the lace. without cause or justi?cation. constitutes intentional in?iction of emotional distress. 56. Defendant?s KIRBY. CAMPBELL. and actions were intentional, extreme and outrageous, and were the actual and proximate cause ofsevere emotional distress to MOHAMED. 57. This Court has pendent jurisdiction to hear and adjudicate said claims. PLAINTIFF FIFTH CAUSE OF ACTION 58. MOHAMED hereby reallcges and incorporates by reference all prior allegations, as though fully set forth here. 59. The actions of Defendants KIRBY, I IODGES and CAMPBELL in this case constitute gross negligence. 60. Defendants KIRBY, HODGES. and CAMPBELL as police officers acting under color of state law. owed MOHAMED a duty of care as a citizen. 61. Defendants KIRBY. I-IODGES and CAMPBELLS acts were a gross deviation of the duty ol'care owed to MOHAMED and the actual and proximate cause of the damage suffered by MOHAMED. 62. This Court has pendent jurisdiction to hear and adjudicate said claims. IX. PLAINTIFF SIXTH CAUSE OF ACTION 63- MOHAMED hereby realleges and incorporates by reference all prior allegations. as though fully set forth here. IO Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 11 of 13 64. Defendants CITY OIT BURIJNGTON, DEL P020, and BELLVANCE have negligently failed to control, train, supervise and discipline police of?cers under their command, including KIRBY, HODGES and CAMPBELL, regarding the constitutional rights ofcitiaens and persons, thereby causing police officers. including KIRBY, HODGES and CAMPBELL to engage in the unlawful conduct complained ofherein- 65- This Court has pendent jurisdiction to hear and adjudicate said claims. X. PLAINTIFF MOI IAMEDS SEVENTH CAUSE OF ACTION MOHAMED hereby realleges and incorporates by reference ail prior allegations as though full}.r set forth here. 58. In 2001. Defendant DEL POZO published an academic article which concludes that racial profiling is an effective law enforcement strategy. 59. In 2015, The City Council of the CITY OF BURLINGTON, had knowledge of DEL academic writing prior to the time he was selected as the Police Chief for the CITY OF BURLINGTON. 60. In spite of the official written policies of Defendant CITY OF BURLINGTON, Defendant DEL POZO has allowed a pattern of behavior to form within the ranks ofthe Burlington Police Department which encourages the unlawful use of force against minorities. 61. The pattern of behavior of Defendant CITY OF BURLINGTON is based upon diSparate use of force and escalation of force in interactions with white persons and black persons. Specifically, officers identify themselves as law enforcement and issue verbal commands when encountering disorderly situations involving white persons. By contrast. officers fail to identify themselves, act aggressively towards and deploy sudden and overwhelming force, which 11 Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 12 of 13 generally constitutes excessive force in and of itself. when encountering disorderly situations involving black persons. 62. The implementation ofthis pattern ofbehavior. which discriminates against MOHAMED on the basis ofa protected status. in violation of the equal protection clause of the 14th Amendment. is a proximate cause of the injuries and damages suffered by MOHAMED. 63- In E?l 2. the Vermont Legislature mandated the adoption ofbias-li'ec policing policies. 64- Statistics compiled by the CITY OF BURLINGTON Show that black persons are disproportionater represented in the pool of suspects who had force used against them and are over represented when compared to both whites and other races of people of color. 65. The disparate treatment of black persons has created an environment of racial animus and is a proximate cause of the injuries and damages suffered by MOHAMAD. 66- This Court has pendent jurisdiction to hear and adjudicate said claims. XI. REQUEST FOR RELIEF WHEREFORE. the Plaintiffs request the following relief: a. Compensatory damages; b. Punitive damages: An order ofthis Court declaring the above actions of Defendants to be illegal and in violation of Plaintiffs? constitutional. statutoiy and common law rights; d. Reasonable attorney?s fees and costs. pursuant to 42 U.S.C. 1988 and other applicable authority; e. Such other and further relief as appears reasonable. necessary,just and appropriate. Case 2:20-cv-00005-wks Document 1 Filed 01/08/20 Page 13 of 13 day of January. 2020. Dated mm Vermont, this Respectfully Submitted. MOHAMED LUHIZO My EVAN CHADWICK, ESQ- CHADWICK SPENSLEY, PLLC 136 High Street Bratlleboro. VT 05301 (802) 257-7161 evan@ehadwicklawvt.c0m l3