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Class-action complaint against San Jose

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A class-action lawsuit against the City of San Jose over the San Jose Police Department's drunk-in-public policy.

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Andrew V. Stearns, SBN 164849 Ignascio G. Camarena II, SBN 220582 Steven M. Berki, SBN 245426 BUSTAMANTE O'HARA & GAGLIASSO, P.C. 333 W. San Carlos St., 8th Floor San Jose, California 95110 Telephone: (408) 977-1911 Facsimile: (408) 977-0746 astearns@loboinc.com icamarena@loboinc.com sberki@loboinc.com M. Jeffery Kallis, SBN 190028 THE LAW FIRM OF KALLIS & ASSOCIATES, P.C. 333 W. San Carlos St., 8th Floor San Jose, CA 95110 Telephone: (408) 971-4655 Facsimile: (408) 971-4644 M J Kallis @Kallislaw.org Attorneys for Plaintiff s MR. FRANCISCO VALDEZ; MR. RICARDO VASQUEZ, and On behalf of those persons similarly situated UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FRANCISCO VALDEZ, individually and on behalf of those persons similarly situated; RICARDO VASQUEZ, individually and behalf of those persons similarly situated; Plaintiffs, vs. CITY OF SAN JOSE, as a municipal corporation; SAN JOSE POLICE CHIEF ROBERT DAVIS, in his individual and official capacity; OFFICER R. AGAMAN (#4041), in his individual and official capacity; DOES 1 through 2500, as entities of unknown form and unknown capacities, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CLASS-ACTION COMPLAINT FOR DAMAGES, STATUTORY PENALTIES, AND ATTORNEY’S FEES AND COSTS BASED ON CIVIL RIGHTS VIOLATIONS AND COMMON LAW TORTS

DEMAND FOR JURY TRIAL

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INTRODUCTORY STATEMENT 1. This is an action for damages sustained by residents or citizens of the United

States against: a. The City of San Jose as the employer of the police personnel involved in the misconduct underlying this Complaint; b. The San Jose Police Chief as the ultimate supervisory officer responsible for the conduct of the defendants and for his failure to: (i) take corrective action with respect to police personnel whose vicious propensities were notorious; (ii) assure proper training and supervision of the personnel; and/or (iii) implement meaningful procedures to discourage lawless official conduct; and c. Certain police officers of the San Jose Police Department, who unlawfully detained, arrested, assaulted, searched, and harassed Plaintiffs and Class Members, who are sued as persons under 42 U.S.C. §1983 and California Civil Code §§52, et seq., among other pendent state claims. FEDERAL JURISDICTION AND VENUE 2. This action is brought pursuant to 42 U.S.C. §§1983 and 1988 and the First,

Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. 3. and 1367. 4. The proper venue for this case is the San Jose Division of the Northern The jurisdiction of this Court is predicated on 28 U.S.C. §§ 1331, 1343, 1345,

District of California, United States District Court, because all of the acts, omissions, violations, events, and conduct alleged herein occurred in San Jose, California. PARTIES 5. Plaintiff FRANCISCO VALDEZ is, and at all times relevant to the

allegations of this Complaint was, a member of a racial minority and a resident of Freedom, California and a citizen of the United States (hereinafter “MR. VALDEZ”). 6. Plaintiff RICARDO VASQUEZ is, and at all times relevant to the allegations

of this Complaint was, a member of a racial minority and a resident of Watsonville,
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California and a citizen of the United States (hereinafter “MR. VASQUEZ”). (Plaintiffs FRANCISCO VALDEZ, RICARDO VASQUEZ, and those persons similarly situated are hereinafter collectively referred to as “Plaintiffs” unless specifically referred to otherwise.) 7. The defendant City of San Jose is a municipal corporation within the State of

California and, at all relevant times, it employed all of the defendants named herein (hereinafter “SAN JOSE”). 8. At all times relevant hereto, defendant ROBERT DAVIS was the duly

appointed Chief of the City of San Jose Police Department. As such, he was the commanding officer of defendants OFFICER AGAMAN (#4041) and DOES 1 through 2500 and was responsible for their training, supervision, and conduct. He was also responsible by law for enforcing the regulations of the City of San Jose Police Department and for ensuring that City of San Jose police personnel obey the laws of the State of California and of the United States. At all relevant times, he was acting in such capacity as the agent, servant, and employee of SAN JOSE. He is sued individually and in his official capacity (hereinafter “CHIEF DAVIS”). 9. At all times relevant hereto, defendant OFFICER AGAMAN was a San Jose

Police Officer employed by the City of San Jose Police Department to perform duties in the City of San Jose. At all relevant times, he was acting in such capacity as the agent, servant, and employee of SAN JOSE. He is sued individually and in his official capacity (hereinafter “OFFICER AGAMAN”). 10. At all times relevant hereto and in all their actions described herein, all of the

foregoing defendants were acting under color of law and pursuant to their authority as police personnel for SAN JOSE. 11. Plaintiffs are unaware of the true identities or capacities of DOES 1 through

2500 and on that basis sue them under fictitious names. Plaintiffs are informed and believe and thereon allege that each defendant sued herein fictitiously is responsible in some manner for the events and occurrences referred to herein. Once Plaintiffs discover the true identity and capacities of DOES 1 through 2500, Plaintiffs will amend their Complaint to
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identify them by their true names and capacities. 12. Plaintiffs are further informed and believe and thereon allege that at all times

referred to herein, each defendant, including DOES 1 through 2500, inclusive, was the principal, agent, employer, or employee, of each of the other defendants, and was acting within the course and scope of that agency or employment and under color of law at all times relevant hereto. Further, the acts of defendants, and each of them were ordered, approved, adopted, ratified, or acquiesced in by the remaining defendants, and each of them. CLASS ACTION ALLEGATIONS 13. Plaintiffs bring this action on behalf of themselves and, therefore the class is

defined as, all racial minorities, including but not necessarily limited to Latinos, who were arrested within the City of San Jose, County of Santa Clara, State of California by the San Jose Police Department for a violation of California Penal Code section 647(f) and who either contested the charge and was acquitted or whose charge was dismissed either by the Court, the trier of fact, or district attorney within the two years preceding the filing of this Complaint for purposes of the federal civil rights claims and between May 14, 2008 through the conclusion of this action for purposes of the pendent state claims. 14. Pursuant to Federal Rule of Civil Procedure 23(a), plaintiffs and Class

members bring this cause of action because (1) the class is so numerous that joinder of all members is impracticable, (2) there are common questions of law or fact common to the class, (3) the claims or defenses of the representative parties will fairly and adequately protect the interests of the class and (4) the representative parties will fairly and adequately protect the interests of the class. 15. Pursuant to Federal Rule of Civil Procedure Rule 23(b) the plaintiffs and Class

Members allege that common questions of law or fact to the Class Members predominate over any questions affecting only individual members of the class and a class action is superior and manageable for the foregoing reasons: (1) the interests of the Class Members in individually controlling the prosecution of separate causes of action will not be injured; (2) the only cases filed outside of this class action have been filed recently by individual
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plaintiffs in this case and will not substantially affect this matter; (3) the forum is desirable for all involved in that the representatives reside in the forum, all defendants existed and do business in this forum, and all the acts occurred within the forum; and (4) the management of the class action will not be difficult since all causes of action either arise out of federal law or involves state laws that are consistently similar. 16. Pursuant to Federal Rule of Civil Procedure 11(b)(3), the plaintiffs and Class

Members allege that to the best of their knowledge, information and belief, the factual contentions contain herein have evidentiary support and will likely have further evidentiary support after a reasonable opportunity for investigation or discovery. 17. California Penal Code section 647(f) reads: Every person who commits any

of the following acts is guilty of disorderly conduct, a misdemeanor: (f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way. 18. Plaintiff is informed and believes, and on that basis alleges, that a subclass of

the persons harmed by the conduct alleged herein consists of approximately 5,000 racial minorities because 2,643 of the 4,661 persons reportedly arrested for alleged violations of Penal Code section 647(f) within the City of San Jose in 2007 alone were Latino. Joinder of all these persons would be impracticable. 19. The questions of law and fact presented in this case are common to each and

every member of the class, in that each member of the class was falsely arrested by San Jose Police, charged for alleged violations of Penal Code section 647(f), and were either acquitted or the charges were dismissed.
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20.

There is a well defined community of interest among the members of the

Class. Plaintiffs are proper representatives of this class of persons because, as will be more fully shown below, plaintiffs are members of the class and the claims plaintiffs are asserting in this Complaint are typical of the claims of all members of the class. Plaintiffs’ claims are not subject to any unique defenses nor do any interest of plaintiffs in this litigation conflict with any other member of the class. 21. Plaintiffs contend that the claims set out below are proper for certification as a

class action under the provisions of Federal Rule of Civil Procedure 23(b). Accordingly, class certification is proper because: a. The questions of law and fact common to the class predominate over any questions affecting individual members in that each class member claims his or her false arrest by the San Jose Police for an alleged violation of Penal Code section 647(f) was the producing cause of the injuries and losses suffered by each class member. The central issue is the false arrest for violations of Penal Code section 647(f) based on racial profiling or the disparate impact of these false arrests on racial minorities, , and its role as the producing cause of injury. The injuries suffered by class members as a result of the false arrests are similar in nature, and vary only in their severity. b. The class action is superior to other available methods of adjudication because there are approximately 5,000 members in the proposed class, and repeated individual litigation of the common issues shared by all class members would reduce the amount of recovery available to each member. This is true because establishing each false arrest in question will be relatively costly and time-consuming when compared to proof of the nature and severity of each individual class member's resulting injury. 22. Notice of this class action may be made to each class member by ordinary

mail, using arrest records obtained from Defendant SAN JOSE as well as public records from the Santa Clara County Superior Court. 23. A class action is superior to other available methods for the fair and efficient

adjudication of the controversy. Absent a class action, most members of the Class likely
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would find the cost of litigating their claims to be prohibitive, and would have no effective remedy at law. Because of the relatively small size of the individual Class Member’s claims, it is likely that only a few Class Members could afford to seek legal redress for defendants’ misconduct. Absent a Class Action, Class Members will continue to incur damages and defendants’ misconduct will continue without remedy. Class treatment of common questions of law and fact would also be superior to multiple individual actions or piecemeal litigation in that class treatment will conserve the resources of the courts and the litigants, and will promote consistency and efficiency of adjudication. 24. The factual basis of defendants’ misconduct are common to all Class

Members and represent a common thread of discriminatory, fraudulent, deliberate, malicious and negligent misconduct resulting in injury to the Class Members. 25. There are numerous questions of law and fact common to Class Members that

predominate over any questions that may affect individual Class Members, including, without limitation the following: a. Does the City of San Jose properly train and supervise its officers? b. Does the City of San Jose take proper corrective action against officers whose vicious propensities are notorious? c. Does the City of San Jose implement meaningful procedures to discourage lawless official conduct? d. Does the City of San Jose have a policy of using racial profiling to arrest persons under Penal Code section 647(f)? e. Is this profiling directed at racial minorities, including but not necessarily limited to Latinos? f. Are these arrests made without probable cause? 26. The representative plaintiffs will fairly and adequately protect the interests of

the Class. Plaintiffs have retained counsel with substantial experience in litigating class action cases, involving defective products and defective home construction, as well as nonclass action civil rights actions. Plaintiffs and their counsel are committed to prosecuting
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this action vigorously on behalf of the Class, and have the financial resources to do so. Neither plaintiffs nor their counsel have any interest contrary to or a disabling conflict with those of the Class they seek to represent. 27. Plaintiffs and their counsel are entitled to recover attorney’s fees as private

attorney general for enforcing an important right affecting a large class of persons pursuant to 15 U.S.C. 2310(d)(2), Code of Civil Procedure §1021.5 and other statutory law. FACTUAL ALLEGATIONS 28. On or about Friday, June 27, 2008, at approximately 10:30 p.m. plaintiffs

drove up to a 7-Eleven convenience store located at 452 E. Santa Clara Street at 10th Street in the City of San Jose, County of Santa Clara, State of California to purchase food and nonalcoholic beverages for the drive home to the Watsonville area of Monterey County. 29. As they pulled up to the store, they noticed a marked San Jose police patrol

car parked in the lot with a fully-uniformed and armed police officer standing outside of his vehicle talking to a transient person. 30. Plaintiffs had not been drinking alcoholic beverages that evening so they were

not concerned with the police officer’s presence and went into the store. 31. As plaintiffs came out of the store, OFFICER AGAMAN and DOES 1

through 10, fully uniformed and armed, surrounded plaintiffs and, without any Miranda advisement, asked for identification and if they had been drinking alcohol. 32. Plaintiffs showed them their identification and told the officers that they had

not been drinking alcohol that evening. 33. Without a warrant, probable cause, or voluntary consent, OFFICER

AGAMAN and officer DOES 1 through 10 handcuffed MR. VALDEZ, frisked him, and placed him in the back of a locked patrol car. 34. Without a warrant, probable cause, or voluntary consent, OFFICER

AGAMAN and officer DOES 1 through 10 “hogtied” MR. VASQUEZ with plastic zip-ties, frisked him, and threw him into the back of a locked, marked San Jose police paddy wagon. 35. As the officers locked MR. VASQUEZ in the back of the paddy wagon,

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officer DOE 1 told MR. VASQUEZ that they did not want “his kind” in San Jose. 36. These unwarranted actions and comments led plaintiffs to believe that their

arrests were racially motivated and they had been racially profiled. 37. Without a warrant or asking for or receiving voluntary consent from plaintiffs,

OFFICER AGAMAN and officer DOES 1 through 10 searched the car the plaintiffs were driving that evening. 38. OFFICER AGAMAN and officer DOES 1 through 10 did not find any

contraband or evidence of a crime on the plaintiffs or in their vehicle. 39. OFFICER AGAMAN and officer DOES 1 through 10 did not administer or

offer to administer any field sobriety tests or a preliminary alcohol screening test on either plaintiff to determine whether they had consumed alcohol prior to arresting them. 40. 41. OFFICER AGAMAN and officer DOES 1 through 10 took plaintiffs to jail. At no time did any San Jose police officer administer or offer to administer a

blood, breathe, or urine test of either plaintiff while they were in jail to determine whether they had consumed alcohol or other substance. 42. With no evidence that plaintiffs had committed or were about to commit a

crime, OFFICER AGAMAN and officer DOES 1 through 10 incarcerated plaintiffs for approximately twelve (12) hours. 43. Based on information and belief, the district attorney relies solely on officer

statements to prosecute Penal Code section 647(f) violations. 44. Upon their release from jail, plaintiffs were finally advised that they were

arrested for a violation of Penal Code section 647(f). 45. On September 10, 2008, plaintiffs appeared, through counsel, before the Santa

Clara County Superior Court at which time the Court dismissed the charges against them. 46. Based on information and belief, over the past two years OFFICER

AGAMAN and officer DOES 1 through 2500, made, ratified, or approved approximately 10,000 warrantless arrests for alleged violations of Penal Code section 647(f) within the City of San Jose, County of Santa Clara, State of California.
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47.

Based on information and belief, approximately 5,000 of those 10,000

warrantless arrests of racial minorities, including but not necessarily limited to Latino persons, were made without probable cause and motivated by race or had a disparate impact on racial minorities, including but not necessarily limited to Latinos, in San Jose, California. 48. Based on information and belief, OFFICER AGAMAN and officer DOES 1

through 2500 were present, knew that their police confederates were committing these civil rights violations and crimes and, despite having ample opportunity to do so, either failed to prevent or ignored the misconduct and criminal acts alleged herein in furtherance of a conspiracy to commit these violations over the past two years. 49. Based on information and belief, the abuse to which plaintiffs were subjected

was consistent with an institutionalized practice of the San Jose City Police Department, which was known to and ratified by CHIEF DAVIS and SAN JOSE and neither CHIEF DAVIS nor SAN JOSE has taken any effective or meaningful action to prevent the aforesaid police personnel from continuing to engage in such misconduct. 50. Based on information and belief, CHIEF DAVIS and SAN JOSE had prior

notice of the propensities of the lower-ranking defendants named herein and DOES to be named later, to violate constitutionally protected rights of citizens, but took no steps to train them, correct their abuse of authority, or to discourage their unlawful use of authority. The failure to properly train these lower-ranking defendants included the failure to instruct them in applicable provisions of the California State Penal Law, the federal and state constitutional limits on searches and seizures, and the proper and prudent use of force. 51. Based on information and belief, SAN JOSE and CHIEF DAVIS authorized,

tolerated as institutionalized practices, and ratified the misconduct hereinbefore detailed by: a. Failing to properly discipline, restrict, and control police personnel or other employees, including the lower-ranking defendants named-herein and DOES to be named later, known to be irresponsible in their dealings with citizens of the community; b. Failing to take adequate precautions in the hiring, promotion, and retention of police personnel, including but not limited to the lower-ranking defendants
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named herein and DOES to be named later, if any; c. Failing to forward to the office of the District Attorney of Santa Clara County evidence of the criminal acts committed by police personnel alleged herein; and d. Failing to establish and/or assure the functioning of a bona fide and meaningful departmental system for dealing with complaints of police misconduct, but instead responding to such complaints with bureaucratic power and official denials calculated to mislead the public. This failure institutes a policy and practice of adopting and ratifying such police misconduct and constitutes gross negligence under California law. 52. As a consequence of the abuse of authority and misconduct hereinbefore

described, plaintiffs experienced humiliation, emotional distress, pain and suffering, incurred and are incurring expenses, including legal fees, in connection with this case, and were otherwise damaged and entitled to state statutory penalties. FEDERAL CAUSES OF ACTION First Cause of Action 42 U.S.C. §1983 (Plaintiffs v. Defendant SAN JOSE for Monell Liability based on Official Policy, Practice, or Custom) 53. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 54. CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through 2500 acted

under color of law. 55. The acts of CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through

2500, as alleged above, deprived plaintiffs of their particular rights secured to them by the Constitution of the United States, including, but not limited to, their First Amendment right to freedom of expression and association, their Fourth Amendment right to be free from unlawful seizure of their persons, including the right to be free from unjustified and excessive force utilized by police, their Fifth, Sixth and Fourteenth Amendment rights to remain silent, counsel, due process of law, and freedom of association, and their Eighth
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amendment right to be free from cruel and unusual punishment. 56. CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through 2500 acted

pursuant to an expressly adopted and ratified official policy or longstanding practice or custom of SAN JOSE, including but not limited to warrantless and unreasonable detentions, searches, and seizures under the pretext of a Penal Code section 647(f) arrest. 57. Defendants’ conduct as alleged herein was a substantial factor in actually and

proximately causing plaintiffs’ harm and was malicious, oppressive or in reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Second Cause of Action 42 U.S.C. §1983 (Plaintiffs v. Defendant SAN JOSE for Monell Liability based on Act of CHIEF DAVIS as Final Policymaker for SAN JOSE) 58. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 59. 60. CHIEF DAVIS acted under color of law. The acts of CHIEF DAVIS as alleged herein deprived plaintiffs of their

particular rights secured to them by the Constitution of the United States, including, but not limited to, their First Amendment right to freedom of expression and association, their Fourth Amendment right to be free from unlawful seizure of their persons, including the right to be free from unjustified and excessive force utilized by police, their Fifth, Sixth and Fourteenth Amendment rights to remain silent, counsel, due process of law, and freedom of association, and their Eighth amendment right to be free from cruel and unusual punishment. 61. these acts. 62. When CHIEF DAVIS engaged in these acts, he was acting as a final CHIEF DAVIS had final policy making authority from SAN JOSE concerning

policymaker for SAN JOSE.
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63.

Defendants’ conduct as alleged herein was a substantial factor in actually and

proximately causing plaintiffs’ harm and was malicious, oppressive or in reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Third Cause of Action 42 U.S.C. §1983 (Plaintiffs v. Defendant SAN JOSE for Monell Liability based on Ratification of Police Misconduct by CHIEF DAVIS as Final Policymaker for SAN JOSE) 64. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 65. CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through 2500 acted

under color or law. 66. The acts of OFFICER AGAMAN, and DOES 1 through 2500 deprived

Plaintiffs of their particular rights secured to them by the Constitution of the United States, including, but not limited to, their First Amendment right to freedom of expression and association, their Fourth Amendment right to be free from unlawful seizure of their persons, including the right to be free from unjustified and excessive force utilized by police, their Fifth, Sixth and Fourteenth Amendment rights to remain silent, counsel, due process of law, and freedom of association, and their Eighth amendment right to be free from cruel and unusual punishment. 67. CHIEF DAVIS has final policymaking authority from SAN JOSE concerning

the acts of OFFICER AGAMAN, and DOES 1 through 2500. 68. CHIEF DAVIS ratified that acts of OFFICER AGAMAN, and DOES 1

through 2500 and the basis for those acts, that is CHIEF DAVIS knew of and specifically approved of their acts. 69. Defendants’ conduct as alleged herein was a substantial factor in actually and

proximately causing plaintiffs’ harm and was malicious, oppressive or in reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages.
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WHEREFORE, the plaintiffs pray for relief as requested below. Fourth Cause of Action 42 U.S.C. §1983 (Plaintiffs v. Defendant SAN JOSE for Monell Liability based on Policy of Failure to Train) 70. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 71. 72. OFFICER AGAMAN, and DOES 1 through 2500 acted under color of law. The acts of OFFICER AGAMAN, and DOES 1 through 2500 deprived the

Plaintiffs of their particular rights secured to them by the Constitution of the United States, including, but not limited to, their First Amendment right to freedom of expression and association, their Fourth Amendment right to be free from unlawful seizure of their persons, including the right to be free from unjustified and excessive force utilized by police, their Fifth, Sixth and Fourteenth Amendment rights to remain silent, counsel, due process of law, and freedom of association, and their Eighth amendment right to be free from cruel and unusual punishment. 73. The training policies of SAN JOSE were not adequate to train its police

officers adequately. 74. The failure of SAN JOSE to provide adequate training caused the deprivation

of plaintiffs’ rights as alleged above by SAN JOSE’s police officers; that is, SAN JOSE’s failure to train is so closely related to the deprivation of the Plaintiffs’ rights as to be the moving force that caused the ultimate injury. 75. Defendants’ conduct as alleged herein was a substantial factor in actually and

proximately causing plaintiffs’ harm and was malicious, oppressive or in reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. // Fifth Cause of Action
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42 U.S.C. §1983 (Plaintiffs v. Defendants CHIEF DAVIS and DOES 11 through 500 for Supervisory Liability based on Misconduct of Subordinates) 76. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 77. CHIEF DAVIS and DOES 11 through 500 acted under color of law

(hereinafter collectively “Supervisory Defendants”). 78. The above alleged acts of the Supervisory Defendants’ subordinates

OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500 deprived the plaintiffs of their particular rights secured to them by the Constitution of the United States, including, but not limited to, their First Amendment right to freedom of expression and association, their Fourth Amendment right to be free from unlawful seizure of their persons, including the right to be free from unjustified and excessive force utilized by police, their Fifth, Sixth and Fourteenth Amendment rights to remain silent, counsel, due process of law, and freedom of association, and their Eighth amendment right to be free from cruel and unusual punishment. 79. The Supervisory Defendants directed their subordinates in the acts that

deprived plaintiffs of these rights. 80. The Supervisory Defendants set in motion a series of acts by their

subordinates that they knew or reasonably should have known would cause the subordinates to deprive plaintiffs of these rights. 81. The Supervisory Defendants knew, or reasonably should have known, that

their subordinates were engaging in these acts and that their conduct would deprive the plaintiffs of these rights, but failed to act to prevent their subordinates from engaging in such conduct. 82. Defendants’ conduct as alleged herein was a substantial factor in actually and

proximately causing plaintiffs’ harm and was malicious, oppressive or in reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages.
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WHEREFORE, the plaintiffs pray for relief as requested below. Sixth Cause of Action 42 U.S.C. §1983 (Plaintiffs v. Defendants OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500 for Violations of Civil Rights) 83. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 84. OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500

acted under color of law. 85. The above alleged acts of OFFICER AGAMAN, DOES 1 through 10, and

DOES 501 through 2500 deprived plaintiffs of their particular rights secured to them by the Constitution of the United States, as set forth in the following counts: Count One 86. Said defendants deprived plaintiffs their First Amendment right to freedom of

expression and association by falsely detaining and arresting and incarcerating them, as alleged above. Count Two 87. Said defendants deprived plaintiffs of their Fourth Amendment right to be

free from [1] unlawful seizure of their persons, and [2] the right to be free from unjustified and excessive force utilized by police, in falsely detaining, arresting, and incarcerating them, as alleged above. Count Three 88. Said defendants deprived plaintiffs of their Fifth Amendment right to remain

silent and due process by failing to advise them of their Miranda rights before commencing custodial interrogation, as alleged above. Count Four 89. Said defendants deprived plaintiffs of their Sixth Amendment right to counsel

by preventing them from having counsel present during custodial interrogation, as alleged
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above. Count Five 90. Said defendants deprived plaintiffs of their Eighth Amendment right to be free

from cruel and unusual punishment by falsely detaining, arresting, incarcerating them, and using excessive force against and verbally harassing plaintiffs when doing so, as alleged above. Count Six 91. Said defendants deprived plaintiffs of their Fourteenth Amendment right to

equal protection of the law by applying Penal Code section 647(f), a facially neutral statute, in a discriminatory manner in that the enforcement of that statute had a discriminatory effect and was motivated by a discriminatory purpose, as alleged above. 92. As to all counts alleged above, defendants’ conduct herein was a substantial

factor in actually and proximately causing plaintiffs’ harm and was malicious, oppressive or in reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Seventh Cause of Action 42 U.S.C. §1985 (Plaintiffs v. All Defendants for Conspiracy to Violate Civil Rights) 93. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 94. The defendants were involved in a conspiracy, that is, that they had an

agreement among each other. 95. The purpose, or part of the purpose, of the conspiracy was to deprive the

plaintiffs of his civil rights as alleged above; 96. The actions of the defendants were motivated, in whole or in part, by a

disliking or hateful discriminatory attitude toward a specific class of people, here Latino or Hispanic persons. 97. The defendants knew or thought that the plaintiffs were members of that

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class, spoke out for that class, or somehow supported that class. 98. The conspiracy actually and proximately caused the plaintiffs injury or a

deprivation rights and was malicious, oppressive or in reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. PENDENT STATE CAUSES OF ACTION 99. The allegations set forth in paragraphs 1 through 53 are incorporated herein by

this reference as if set forth fully verbatim. 100. Heretofore and on or about November 14, 2008, plaintiffs, on behalf of

themselves and the Class Members, caused a written verified Notice of Claim to be filed with and served upon the proper officers, agents, and employees of SAN JOSE pursuant to the statutes in such cases made and provided. 101. Within the last six months, and 45 days since November 14, 2008, SAN JOSE

failed to respond to the Notice of Claim by plaintiffs and hence pursuant to California Government Code §XXXX the Claim is deemed rejected . 102. The acts and conduct hereinbefore alleged constitute false arrest, false

imprisonment, assault and battery, intentional infliction of emotional distress, trespass to chattels, violation of California Civil Code §52, et seq., conspiracy to violate civil rights, and negligence under the laws of the State of California. This Court has pendent jurisdiction to hear and adjudicate these claims. Eighth Cause of Action False Arrest (Plaintiffs v. Defendants OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500) 103. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 104. OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500

arrested each plaintiff without a warrant.
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105.

The law assumes that plaintiffs were harmed and they are entitled to nominal

damages even if no actual damages are shown at trial. 106. The conduct of OFFICER AGAMAN, DOES 1 through 10, and DOES 501

through 2500 was a substantial factor in actually and proximately causing plaintiffs’ harm. 107. Defendants’ conduct as alleged herein was malicious, oppressive or in

reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Ninth Cause of Action False Imprisonment (Plaintiffs v. Defendants OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500) 108. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 109. OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500

intentionally deprived plaintiffs of their freedom of movement by use of physical barriers, force, threats of force, menace, fraud, deceit, and unreasonable duress. 110. 111. Plaintiffs did not consent to these acts. The law assumes that plaintiffs were harmed and they are entitled to nominal

damages even if no actual damages are shown at trial. 112. The conduct of OFFICER AGAMAN, DOES 1 through 10, and DOES 501

through 2500 was a substantial factor in actually and proximately causing plaintiffs’ harm. 113. Defendants’ conduct as alleged herein was malicious, oppressive or in

reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. // // // Tenth Cause of Action
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Battery (Plaintiffs v. Defendants OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500) 114. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 115. OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500

intentionally touched plaintiffs or caused them to be touched when frisked and arrested. 116. OFFICER AGAMAN, DOES 1 through 10, and DOES 501 through 2500

used unreasonable force to detain, search, and arrest plaintiffs. 117. 118. Plaintiffs did not consent to the use of that force. The law assumes that plaintiffs were harmed and are entitled to nominal

damages even if no actual damages are shown at trial. 119. The force used by OFFICER AGAMAN, DOES 1 through 10, and DOES 501

through 2500 was a substantial factor in actually and proximately causing plaintiffs’ harm. 120. Defendants’ conduct as alleged herein was malicious, oppressive or in

reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Eleventh Cause of Action Violations of the Ralph Act - California Civil Code §§ 51.7 (Plaintiffs v. SAN JOSE, CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through 2500) 121. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 122. Defendants SAN JOSE, CHIEF DAVIS, OFFICER AGAMAN, and DOES 1

through 2500 threatened or committed violent acts against plaintiffs and their property, as alleged above. 123. A motivating reason for said defendants’ conduct was their perception of

plaintiffs’ race, color, ancestry, or national origin.
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124.

The law assumes that plaintiffs were harmed and are entitled to nominal

damages even if no actual damages are shown at trial. 125. 126. Defendants’ conduct was a substantial factor in causing plaintiffs’ harm. Defendants’ conduct as alleged herein was malicious, oppressive or in

reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Twelfth Cause of Action Violations of the Bane Act - California Civil Code §§ 52.1(b) (Plaintiffs v. SAN JOSE, CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through 2500) 127. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 128. SAN JOSE, CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through

2500 each interfered with or attempted to interfere with plaintiffs’ constitutional rights by threatening or committing violent acts as alleged above. 129. Plaintiffs reasonably believed that if they exercised their right against

unreasonable searches and seizures, right to remain silent, right to counsel, right against cruel and unusual punishment, and right of association, among others, as alleged above SAN JOSE, CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through 2500 would commit violence against them or their property. 130. SAN JOSE, CHIEF DAVIS, OFFICER AGAMAN, and DOES 1 through

2500, performed the above alleged acts to prevent plaintiffs and Class Members from exercising their rights. 131. The law assumes that plaintiffs were harmed and are entitled to nominal

damages even if no actual damages are shown at trial. 132. The conduct of SAN JOSE, CHIEF DAVIS, OFFICER AGAMAN, and

DOES 1 through 2500 was a substantial factor in actually and proximately causing plaintiffs’ harm.
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133.

Defendants’ conduct as alleged herein was malicious, oppressive or in

reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Thirteenth Cause of Action Civil Conspiracy to Violate Civil Rights and Commit Torts (Plaintiffs against All Defendants) 134. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 135. Each defendant named herein was aware that each other said defendant

planned to violate plaintiffs’ civil rights and commit the torts against plaintiffs as alleged above. 136. Each said defendant agreed or joined with the other said defendants by

falsifying reports and offering false statements or testimony, among other things, and intended that the violations of civil rights and torts be committed as alleged above. 137. The law assumes that plaintiffs were harmed and are entitled to nominal

damages even if no actual damages are shown at trial. 138. The conduct of said defendants was a substantial factor in actually and

proximately causing plaintiffs’ harm. 139. Defendants’ conduct as alleged herein was malicious, oppressive or in

reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Fourteenth Cause of Action Aiding and Abetting Violations of Civil Rights and Commission of Torts (Plaintiffs v. All Defendants) 140. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 141. Each defendant named herein knew that the above-alleged violations of civil

rights and torts were being or were going to be committed by each other defendant against
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plaintiffs. 142. Each defendant named herein gave substantial assistance or encouragement to

each other defendant. 143. The law assumes that plaintiffs were harmed and are entitled to nominal

damages even if no actual damages are shown at trial. 144. The conduct of said defendants was a substantial factor in actually and

proximately causing plaintiffs’ harm. 145. Defendants’ conduct as alleged herein was malicious, oppressive or in

reckless disregard of the plaintiffs’ rights entitling plaintiffs to punitive damages. WHEREFORE, the plaintiffs pray for relief as requested below. Fiftheenth Cause of Action Negligence (Plaintiffs v. All Defendants) 146. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 147. Defendants had owed a duty to plaintiffs to exercise ordinary care and

prudence when performing their police functions, including but not limited to detaining, arresting, searching, and applying force to plaintiffs. 148. By engaging in all of the above-alleged wrongful conduct, defendants

breached that duty of care owed to plaintiffs. 149. The law assumes that plaintiffs were harmed and are entitled to nominal

damages even if no actual damages are shown at trial. 150. As a proximate result of defendants' breaches, plaintiffs’ have been damaged

in an amount to be proven at trial. WHEREFORE, the plaintiffs pray for relief as requested below. // // Sixteenth Cause of Action
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Injunctive Relief (Plaintiffs v. All Defendants) 151. The allegations set forth in paragraphs 1 through 53 and 91 through 94 are

incorporated herein by this reference as if set forth fully verbatim. 152. Defendants' wrongful conduct, unless and until enjoined and restrained by

order of this Court, will cause great and irreparable injury to plaintiffs, and those in the general public that are similarly situated as plaintiffs, as the wrongful acts and omissions of the defendants that resulted in a deprivation of plaintiffs’ constitutional rights as alleged above of United States Citizens or residents who come into contact with SAN JOSE and its police force, as alleged above, is a manifestation of the ongoing and continuing policy and practice of the defendants. 153. Plaintiff has no adequate remedy at law for the injuries currently being

suffered or that are threatened as it will be impossible for plaintiffs, or those similarly situated, to determine the precise amount of damage that he or she will suffer if defendants' conduct is not restrained and plaintiffs, or those similarly situated, will be forced to institute a multiplicity of suits to obtain adequate compensation for injuries resulting from the ongoing and continuing deprivation of the constitutional rights of United States Citizens who some into contact with SAN JOSE and its police force. WHEREFORE, the plaintiffs pray for relief as requested below. PRAYER FOR RELIEF WHEREFORE, plaintiffs hereby demand the following relief against all the defendants, individually, jointly and severally: A. That this court certify the action as a class action under the provision of Rule

23(b), and appoint counsel for the class, and order notice to class members as required by Rule 23(c). B. That plaintiffs and each member of the class recover damages for the personal

injuries that each has suffered in an amount to be determined by the evidence presented at trial, but in no event less than the jurisdictional minimum of this court.
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C.

Statutory penalties under California Civil Code §52 pursuant to §52.1. in the

amount of $25,000 per violation against each defendant in violation. D E. Punitive damages. That plaintiffs recover costs of suit and that plaintiffs’ attorneys be awarded

attorney's fees, as provided by Fed R Civ P 23(h), and pursuant to 42 U.S.C. § 1988 and California Civil Code §§52 and 52.1, which are intended to protect and benefit the public against violations of rights. F. For an order requiring defendants to show cause, if any they have, why they

should not be enjoined as set forth in this Complaint, during the pendency of this action. G. For a temporary restraining order, a preliminary injunction, and a permanent

injunction, all enjoining defendants, and each of them, and their agents, servants, and employees, and all persons acting under, in concert with, or for them: 1. From unlawfully seizing and searching persons and their property and

using unlawful force in violation of the constitutional rights of any person; 2. To require SAN JOSE and CHIEF DAVIS to (a) meaningfully train all

San Jose police officers on proper search and seizure procedure and the proper use of force so that no person’s constitutional rights are violated; (b) issue quarterly reports for three years from the date the injunction is issued concerning the efforts made to comply with any order issued pursuant to this request; and (c) actively review and supervise the training of its police officers on proper arrest procedure, proper search procedure, and the proper use of force to comply with any order issued pursuant to this request. H. Such other and further relief as this Court may deem appropriate under the

circumstances. // // // // DEMAND FOR JURY TRIAL
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Plaintiffs hereby demand a jury trial of this action. DATED: BUSTAMANTE, O’HARA, & GAGLIASSO, PC

By:

/S/ ANDREW V. STEARNS IGNASCIO G. CAMARENA II STEVEN M. BERKI, attorneys for Plaintiffs THE LAW FIRM OF KALLIS & ASSOCIATES, P.C.

DATED:

By:
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/S/ M. JEFFERY KALLIS, attorneys for Plaintiffs

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