VERIFIED COMPLAINT AND JURY DEMAND (CIVIL RIGHTS LAWSUIT)

Place Where Verified Complaint and Jury Demand was Filed:
District Court, City and County of Denver, State of Colorado
Case Number 96 CV 6563
Courtroom 9

Date Verified Complaint and Jury Demand was Filed:
Month of December 1996 and on or before December 7, 1996.

Plaintiff: Franklin Perez

Defendants:
THE COLORADO STATE PATROL; RANDY RAHNE, individually, and in his official capacity as a Colorado State Trooper; GERALD LINCOLN, individually, and in his official capacity as a Colorado State Trooper; and, TIMOTHY McCLINCHY, individually, and in his capacity as a Colorado State Trooper

COMES NOW the Plaintiff, Franklin Perez, by and through his attorney, Larry D. Sather, P.C., and for his Complaint against the defendants above named, states as follows:

1. That the court has juristiction over the parties and the subject matter of this action.

2. That venue is proper in this court pursuant to C.R.C.P., Rule 98.

3. That all claims for relief set forth in this complaint arise from a common nucleus of operative facts.

4. That this entire action constitutes a single case which should be heard in a single judicial proceeding.
   NOTICE OF SUIT

5. That notice of suit against a public entity, pursuant to C.R.S., Section 24-10-109, has been given to all defendants in a timely fashion.

6. That the Plaintiff is a citizen and resident of the State of Colorado.

7. That the defendant, Colorado State Patrol, is a public entity with its principal offices located in the City and County of Denver, State of Colorado.

8. That the individual defendants, Troopers Randy Rahne, Gerald Lincoln, and Timothy McClinchy, are Colorado State Troopers, who were, at all times relevant herein, acting within the course and scope of their employment and under color of state law on December 7, 1995.

9. That on or about December 7, 1995, at approximately 5:50 p.m., the Plaintiff was driving northbound on I-25 at approximately the 58th Avenue Exit when he was wrongfully stopped, detained, and arrested by Colorado State Patrol Troopers Randy Rahne, Gerald Lincoln, and Timothy McClinchy.

10. That at all times relevant hereto, the individual defendants acted willfully and wantonly and with deliberate indifference to the rights and feelings of the Plaintiff.

11. That at all times relevant hereto, the individual defendants acted in accordance with an established policy, practice, custom, and/or procedure which violated the Plaintiff's known constitutional rights. Upon information and belief, the defendants acted in accordance with the unconstitutional policy, which authorized off duty, non-uniformed officers to stop, detain, and investigate certain drivers who watched a "profile" based upon unconstitutionally discriminatory factors of age, race, and sex. The plaintiff herein fit the unconstitutional profile.

12. That, in the alternative, the defendants acted in accordance with the unconstitutional policy, which authorized off duty, non-uniformed officers to stop, detain, and investigate drivers without reasonable suspicion and without probable cause to do so.

13. That at all times relevant hereto, the individual defendants acted without reasonable suspicion and/or probable cause that the Plaintiff was operating a motor vehicle while under the influence of alcohol or drugs.

14. That on the above referenced date and time, defendants Randy Rahne and Gerald Lincoln wrongfully stopped and detained the Plaintiff without probable cause.

15. That the defendants ordered the Plaintiff to perform various roadside sobriety tests without first informing the Plaintiff that he had a right to refuse same.

16. That the defendants never informed the Plaintiff that the roadside sobriety tests were voluntary.

17. That during the administration of the roadside sobriety tests, the Plaintiff told defendant Randy Rahne that: "I must respectfully state that this is now turning into harassment."

18. That during the administration of the roadside tests, defendant Timothy McClinchy told the Plaintiff in an intimidating voice to: "shut up and cooperate."

19. That during the administration of the roadside tests, defendant Randy Rahne made derogatory, defamatory, and racially discriminatory comments to the Plaintiff that the Plaintiff "looked as though he had never lived in this country before."

20. That the Plaintiff successfully performed the roadside tests to the satisfaction of the defendant troopers.

21. That the Plaintiff was required by the defendants to submit to a roadside breathalyzer test which registered 0.000.

22. That the defendant Randy Rahne then ordered the Plaintiff to open his mouth and looked at his tongue. Thereafter, defendant Gerald Lincoln, on three occasions, asked the Plaintiff if he had been smoking marijuana.

23. That the defendant Timothy McClinchy then issued a traffic citation to the Plaintiff for Careless Driving, without reasonable suspicion or probable cause.

24. The the defendants illegally searched the Plaintiff's vehicle without probable cause and without a search warrant.

25. That at all times relevant hereto, the defendants conduct violated clearly established constitutional rights of the Plaintiff, which a reasonable peace officer knew or should have known.

26. That at all times material hereto, defendants Randy Rahne and Gerald Lincoln were not in uniform; and, represented themselves to be acting in the course and scope of their employment as Colorado State Patrol Troopers. Upon information and belief, defendants Randy Rahne and Gerald Lincoln were, in fact, off duty at all relevant times hereto.

27. That the above-referenced actions of the individual defendants constituted police harassment based upon the Plaintiff's race, age and sex, in violation of his known constitutional rights.

28. That as a result of the false and wrongful arrest of the Plaintiff, malicious prosecution and the other willful and wanton acts referenced above, the Plaintiff incurred attorneys fees; loss of income; loss of self-esteem; humiliation; emotional injuries, damages and losses; pain and suffering; past, present and future economic and non-economic damages; and, loss of enjoyment of life.

29. That the injuries, damages and losses suffered by the Plaintiff were suffered in the past and will continue into the future.
    FIRST CLAIM FOR RELIEF
    (CIVIL RIGHTS VIOLATION UNDER 42 USC, SECTION 1983)

30. That the Plaintiff hereby incorporates by reference pragraphs 1 through 29 above as though fully set forth herein.

31. That the Plaintiff's stop, detention and investigation was without probable cause and in violation of his civil rights under the United States Constitution and the Colorado Constitution.

32. That the Plaintiff was charged with Careless Driving without probable cause, in violation of the Plaintiff's rights under the United States Constitution and the Colorado Constitution. The defendants had actual or constructive notice of the pervasive constitutional violations perpetrated by the defendants upon the Plaintiff.

33. That the defendants' actions constitute a willful and knowing violation and depravation of a right secured by the Constitution of the United States in violation of 42 USC, Section 1983, specifically, the right to be free from excessive and unreasonable police action; the depravation of liberty without due process of law; the right to be secure against unreasonable searches and seizures; and, the right to equal protection of the laws.

34. That the acts of all defendants in violation of the United States Constitutional rights of the Plaintiff justify an award of reasonable fees under 42 USC, Section 1988; and, the Plaintiff is entitled to recover against all defendants for injuries, damages and losses proximately caused by their conduct as set forth in this complaint.
    SECOND CLAIM FOR RELIEF
    (FALSE ARREST)

35. That the Plaintiff hereby incorporates by reference paragraphs 1 through 34 above as though fully set forth herein.

36. That the defendants intended to restrict the Plaintiff's freedom of movement. The Plaintiff's freedom of movement was directly restricted by the acts of the defendants by illegally stopping, detaining and investigating the Plaintiff without reasonable suspicion or probable cause.

37. That the Plaintiff was aware that his freedom of movement was restricted and suffered great humiliation, injury to reputation, emotional injuries, and damages as a result of being falsely arrested and detained for investigation of driving under the influence.

38. That the defendants have caused damages to the Plaintiff by their false arrest and detention of the Plaintiff, and Plaintiff is entitled to recover against the defendants for injuries, damages and losses proximately caused by their false arrest as set forth in this Complaint.
    THIRD CLAIM FOR RELIEF
    (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)

39. That the Plaintiff hereby incorporates by reference paragraphs 1 through 38 above as though fully set forth herein.

40. That the defendants, by their actions as set forth above, were negligent.

41. That the defendants' negligence created an unreasonable risk of physical harm to the Plaintiff and caused the Plaintiff to be put in fear of his own safety, which was shown by the emotional disturbance of the Plaintiff.

42. That the defendants have directly and proximately caused, by way of their negligent infliction of emotional distress upon the Plaintiff, the injuries, damages and losses set forth herein; and, the Plaintiff is entitled to recover against the defendants for damages caused by their conduct as set forth in this Complaint.
    FOURTH CLAIM FOR RELIEF
    (NEGLIGENCE)

43. That the Plaintiff hereby incorporates by reference paragraphs 1 through 40 above as though fully set forth herein.

44. That the above-referenced acts and omissions of the defendants were negligent.

45. That the negligent acts and omissions were a direct and proximate cause of the injuries, damages and losses to the Plaintiff; and, the Plaintiff is entitled to recover against the defendants for damages caused by their negligence as set forth in this Complaint.
    FIFTH CLAIM FOR RELIEF
    (OUTRAGEOUS CONDUCT)

46. That the Plaintiff hereby incorporates by reference paragraphs 1 through 45 above as though fully set forth herein.

47. That the defendants' actions as set forth herein, were outrageous, intolerable and so extreme as to exceed all bounds of decency which prevail in civilized communities and societies.

48. That the defendants, by their actions as set forth herein, intended to inflict irreparable damage to the Plaintiff's reputation, good name, honor, integrity and respect in the community.

49. That as a direct and proximate result of the defendants' outrageous conduct, as set forth herein, the Plaintiff has suffered loss of his reputation, good name, honor, integrity and respect in the community.

50. That the defendants have caused the injuries, damages and losses to the Plaintiff by their outrageous conduct; and, the Plaintiff is entitled to recover against the defendants for the injuries, damages and losses set forth herein.
    SIXTH CLAIM FOR RELIEF
    (NEGLIGENT SUPERVISION)

51. That the Plaintiff hereby incorporates by reference paragraphs 1 through 50 above as though fully set forth herein.

52. That the defendant, Colorado State Patrol, is required to supervise the actions of its troopers. Defendants Randy Rahne, Gerald Lincoln and Timothy McClinchy are employees of defendant Colorado State Patrol.

53. That the defendant, Colorado State Patrol, created an unreasonable risk of harm to the Plaintiff by failing to adequately supervise, control or otherwise monitor the activities of its employees, defendants Randy Rahne, Gerald Lincoln and Timothy McClinchy.

54. That the defendant, Colorado State Patrol, has caused damages by way of its negligent supervision; and, the Plaintiff is entitled to recover against defendant, Colorado State Patrol, for his injuries, damages and losses caused by defendant's, Colorado State Patrol's, conduct as set forth herein.
    SEVENTH CLAIM FOR RELIEF
    (NEGLIGENT TRAINING)

55. That the Plaintiff hereby incorporates by reference paragraphs 1 through 54 above as though fully set forth herein.

56. That the defendant, Colorado State Patrol, is required to adequately train its troopers Defendants Gerald Lincoln, Timothy McClinchy and Randy Rahne are employees of defendant, Colorado State Patrol.

57. That the defendant, Colorado State Patrol, created an unreasonable risk of harm to the Plaintiff for failing to adequately train its employees defendants Gerald Lincoln, Randy Rahne, and Timothy McClinchy. Specifically, the defendant, Colorado State Patrol, was negligent for failing to adequately train its employees regarding off duty activities.

58. That the defendant, Colorado State Patrol, caused injuries, damages and losses to the Plaintiff by virtue of its negligent training; and, the Plaintiff is entitled to recover against the defendant, Colorado State Patrol, for the injuries, damages and losses caused by the defendant's conduct as set forth herein.
    EIGHTH CLAIM FOR RELIEF
    (MALICIOUS PROSECUTION)

59. That the Plaintiff hereby incorporates by reference paragraphs 1 through 58 above as though fully set herein.

60. That the traffic citation issued to the Plaintiff was a direct result of the negligent actions of the defendants.

61. That the traffic citation was issued without probable cause.

62. That the traffic citation was motivated by malice, racial discrimination or other improper purposes against the Plaintiff.

63. That the defendants have caused injuries, damages and losses to the Plaintiff by way of their malicious prosecution of the Plaintiff; and, the Plaintiff is entitled to recover against the defendants for all such damages caused by their conduct as set forth herein.
    NINTH CLAIM FOR RELIEF
    (EXEMPLARY DAMAGES)

64. That the Plaintiff hereby incorporates by reference paragraphs 1 through 63 above as though fully set forth herein.

65. That the aforementioned acts, omissions and violations of the defendants were attended by wanton and willful disregard for the rights and feelings of the Plaintiff, thus entitling the Plaintiff to the recovery of exemplary damages.

WHEREFORE, the Plaintiff respectfully requests that this Court

(a) Enter an Order of Judgment in Plaintiff's favor against the defendants for compensatory damages in an amount sufficient to fully compensate the Plaintiff for his injuries, damages and losses;

(b) Enter an Order of Judgment in favor of the Plaintiff and against the defendants for exemplary damages in an amount which will adequately punish the defendants for their actions and omissions;

(c) Enter an Order of Judgment in Plaintiff's favor and against the defendants for attorneys fees as a result of their violation of the Plaintiff's civil rights under 42 USC, Sections 1983 and 1988, including costs of this lawsuit, expert witness fees, witness fees, deposition costs and such other and further relief as the Court may deem just and proper.

(d) Such other and further relief as this Court may deem just and proper.

THE PLAINTIFF REQUESTS A TRIAL ON ALL ISSUES TO A JURY OF SIX