24-CV-1034 - Trial - Jefferson vs City of Los Santos, et al.

[Kotwica]

** Donald stands as Jacob presents a physical copy to the court after e-filing. Donald welcomes Jacob back to his seat before speaking. **

"Your honor, in order of expediency we ask the court to instruct the opposing counsel to answer timely so we can move onto our discovery conference. As the court sees we have requested additional witnesses and with those witnesses we expect to file a multitude of subpoenas duces tecum. Is it the preference of this court to file them individually, by person, or in totality?"

(( @almightybounter ))

[almightybounter]

"Thank you, counsel. In the interest of efficiency and to ensure a smooth progression of this case, I direct the Defense to respond to the Plaintiff's amended civil case brief within 3 business days. Regarding the subpoenas duces tecum, I will allow them to be filed collectively for efficiency, provided they are organized and clearly identify the witnesses and the documents requested. This will help expedite the discovery process. If any issues arise from the subpoenas, we can address them at the upcoming discovery conference."
 

((  @Kotwica @John Gilbane @nfr.ai @Userone )) 

Edited September 21, 2024 by almightybounter

[Jacob Rabinowitz]

Michelle Jefferson

v.

City of Los Santos, Alexander Blair, Los Santos Police Department, Samuel Gonzales, Los Santos County Sheriff’s Department, and Roderick Hayward, in their official capacities,
Amber Moore, Christopher Kaminski, and Marvin Low, in their individual and official capacities,
 

Case Number: 24-CV-1034

Prepared by: Jacob E. Rabinowitz III, Esq., and Donald J. Wright, Esq., Supplementary Counsel for Plaintiff.

Short Title: Michelle Jefferson v. City of Los Santos, Los Santos Police Department, Los Santos County Sheriff’s Department, et al.

 

AMENDED CIVIL CASE BRIEF FOR MICHELLE JEFFERSON V. LOS SANTOS POLICE DEPARTMENT

_______________________________________________

TABLE OF AUTHORITIES

• United States v. Duarte, No. 22-50048 (9th Cir. Jul. 17, 2024)
• Graham v. Connor, 490 U.S. 386 (1989)
• Torres v. Madrid, 592 U.S. ___ (2021)
• Briscoe v. LaHue, 460 U.S. 325 (1983)
• Heien v. North Carolina, 574 U.S. 54 (2014)

• United States v. Grace, 461 U.S. 171 (1983)

• Gitlow v. New York, 268 U.S. 652 (1925)

• Cox v. New Hampshire, 312 U.S. 569 (1941)

• Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939)

• Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990)

• Pierson v. Ray, 386 U.S. 547 (1967)

• Harlow v. Fitzgerald, 457 U.S. 800 (1982)

• Feiner v. New York, 340 U.S. 315 (1951)

• Smith v. Wade, 461 U.S. 30 (1983)

• Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978)

• Thomas v. Cook Cty Sheriff's Dept, 604 F.3d 293 (7th Cir. 2009)

• McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 2009)

• Florida v. Jardines, 569 U.S. 1 (2013)

• Payton v. New York, 445 U.S. 573 (1980)

• United States v. Santana, 427 U.S. 38 (1976)

• Terry v. Ohio, 392 U.S. 1 (1968)

• Mapp v. Ohio, 367 U.S. 643 (1961)

• Brady v. Maryland, 373 U.S. 83 (1963)

• Strickler v. Greene, 527 U.S. 263 (1999)

• Armstrong v. Toler, 24 U.S. 258 (1826)

 

 

PARTIES TO ACTION

1. Michelle Jefferson is a natural person with primary residence in the State of San Andreas. She is the chief executive of a non-profit organization called “Anti-Corruption Group”, “ACG” for short.
    
2. City of Los Santos is a municipal corporation of the State of San Andreas, sued in its official capacity as an entity responsible for the orderly management of all agencies organized within its geographic area of incorporation.
    
3. Alexander Blair is a natural person serving as Mayor of the City of Los Santos, sued in his official capacity as Mayor of the City of Los Santos.
    
4. Los Santos Police Department is a municipal agency and state agency in the service of the City of Los Santos, sued in its official capacity as an entity responsible for the orderly management of all employees and resources organized under it.
    
5. Samuel Gonzales is a natural person serving as Chief of Police for the Los Santos Police Department, sued in his official capacity as the chief executive of the Los Santos Police Department.
    
6. Los Santos County Sheriff's Department is a municipal agency and state agency in service of the City of Los Santos and the unincorporated areas surrounding the incorporated region of Los Santos, sued in its official capacity as an entity responsible for the orderly management of all employees and resources organized under it.
    
7. Roderick Hayward is a natural person serving as Sheriff for the Los Santos County Sheriff's Department, sued in his official capacity as the chief executive of the Los Santos Police Department.
    
8. Amber Moore is a natural person and sworn law enforcement officer employed by the Los Santos Police Department during the dates relevant to this claim.
    
9. Christopher Kaminski is a natural person and sworn law enforcement officer employed by the Los Santos County Sheriff's Department during the dates relevant to this claim.
    
10. Marvin Low is a natural person and sworn law enforcement officer employed by the Los Santos County Sheriff's Department during the dates relevant to this claim.

 

 

JURISDICTION AND VENUE

1. This court has general jurisdiction over the parties named due to their organization within the geographic boundaries of the State of San Andreas.
    
2. This court possesses subject matter jurisdiction over the natural persons in this case as all natural persons are domicile within the geographic boundaries of the State of San Andreas.

 

BACKGROUND
 

1. On August 15th, 2024, Plaintiff engaged in protected speech activities, while located on public property, in the vicinity of the Los Santos Police Department Headquarters in Pershing Square, Los Santos, San Andreas. Plaintiff was speaking about the fundamental nature of the second amendment and advocating to others that the policies of the Firearms Licensing Division of the Los Santos Police Department were excessive and unconstitutional.
    
2. Defendant Amber Moore was present on August 15th, 2024, at the same location at Plaintiff, and spoke to her directly to inquire about Plaintiff’s criminal history but did not detain Plaintiff or conduct an arrest.
    
3. On August 17th, 2024, Plaintiff returned to the same location to engage in protected speech activities. She was joined by a volunteer associate of ACG, Michael “Mike” Walters, who was helping her to find a photographer for the event.
    
4. Two deputies, Defendants Kaminski and Low were present on scene and Deputy Kaminski was brandishing a less-than-lethal firearm. The Penal Code of the State of San Andreas prescribes no definition for the term "firearm", so we look to the federal firearms laws for a presumptive definition. According to 18 U.S.C. 921(a)3, "The term 'firearm' means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm." A less-than-lethal firearm, such as a rubber bullet launcher, operates by expulsion of a projectile by the action of an explosive primer, usually silver nitrate or a comparable compound that ignites powder. The definition makes no prescription about the material from which a projectile must be composed in order for the discharging device to be considered a firearm, so the fact that a projectile is rubber versus copper, brass, or lead makes no difference under this definition. As such, a less-than-lethal firearm qualifies as a firearm.
    
5. Deputy Kaminski pointed the firearm in an unsafe direction, toward Plaintiff, and Plaintiff responded by informing Kaminski of his error in generally-accepted firearm safety. Defendants Kaminski and Low then verbally engaged by Plaintiff, and Plaintiff told them they should neither have such firearms nor have them pointed in an unsafe direction. In response, Deputies Kaminski and Low approached Plaintiff and began to argue with her. Notably, Defendant Kaminski falsely stated that a less-than-lethal firearm "does not count as a firearm under the law", implying that he could point it anywhere he wanted without legal consequence. An argument ensued between Plaintiff and Defendants Kaminski and Low about this issue.
    
6. While verbally engaged with two deputies of the Los Santos Sheriff’s Department, Plaintiff and Mr. Walters identified a potential photographer, identified only as “Frank”, and they attempted to make a verbal contract with him. Plaintiff paid “Frank” a sum of $10,000 United States Dollars by inserting the bills directly into his pocket. This was witnessed directly by the two deputies, Christopher Kaminski and Marvin Low.
    
7. The photographer, “Frank”, demanded that Plaintiff pay an additional sum of $140,000 for his services. When Plaintiff refused, “Frank” made a report of inappropriate sexual contact to Defendant Amber Moore, who had recently arrived and had not witnessed any of the prior events including the initial payment of $10,000 by Plaintiff to “Frank”.
    
8. Defendants Christopher Kaminski and Marvin Low gave false testimony to Defendant Moore that Plaintiff had slapped the rear end of “Frank” when in fact they had not witnessed any such act. In fact, the deputies had witnessed Plaintiff pay “Frank” by slotting the cash payment directly into the man’s back pocket; there was no inappropriate sexual touching committed upon the person of “Frank” at any time, neither by Plaintiff nor by anyone else at that time or place.
    
9. A settlement agreement was reached between Plaintiff and the Los Santos Sheriff’s Department in which the Los Santos Sheriff’s Department, Deputy Christopher Kaminski, and Deputy Marvin Low admitted a mistake of fact and nullified any outstanding charges lodged by their department upon Plaintiff. The settlement agreement lacked monetary or other lawful consideration and is therefore unenforceable, however the written admissions of fault contained therein are admissible in this court as evidence of the deputies’ true observations as they were misrepresented to Defendant Moore.
    
10. Defendant Moore, upon receiving the report from “Frank” and the two deputies, did not investigate further. Defendant Moore did not review the relevant dashcam or bodycam footage available from nearby cruiser-based recording devices, nor did she review the CCTV footage available in the CCTV system of the LSPD Headquarters building and its exterior. Defendant Moore instead placed Plaintiff under arrest on a charge of Sexual Battery, pursuant to Penal Code § 220(a).
     
11. While Defendant Moore was in the process of handcuffing Plaintiff, a person unknown to Plaintiff attacked Moore from behind and struck her several times. Moore responded with lethal force, killing the unknown person. Shocked and terrified by the events she had witnessed in her vicinity, Plaintiff made statements emphasizing the brutality of the Los Santos Police Department and stated “violence will continue to happen”. Defendant Moore then transported Plaintiff to the Harbor Substation operated by the Los Santos Police Department for processing.
     
12. While discussing the circumstances of the arrest with Plaintiff, Defendant Moore represented that she was lawfully able to order dispersion of the crowd because Plaintiff lacked a permit to protest, and that a failure to disperse was grounds for a citation under Penal Code section 401.
     
13. On August 23rd, 2024, Plaintiff returned to the same location to engage in constitutionally-protected speech activities. She was joined by several others who had gathered to listen to Plaintiff speak about topics ranging from speech to firearms rights, the right to remain secure in one’s papers, house, and effects, and other constitutional topics. The assembly was conducted on public sidewalks and other public property, and did not abridge or otherwise obstruct roads or public pathways in any manner not ordinary to their regular and ordinary usage.
     
14. Defendant Moore arrived and asked Plaintiff if she had a permit to conduct an assembly. In response, Plaintiff responded that she did not have a permit. Without more, Defendant Moore then issued a citation to Plaintiff on a charge of Unlawful Assembly pursuant to Penal Code § 401(b).
     
15. Without more, Defendant Moore used her megaphone to order the people in attendance to disperse. Plaintiff peacefully protested this order, refusing to leave, but did not communicate any type of encouragement to the crowd to damage property, harm others, or commit any crime of violence or destruction. To the contrary, Plaintiff urged the crowd to not engage in any such acts because of the event’s nature as a civil protest. She further urged that violence was not necessary. Plaintiff’s intention behind the event was to show a pathway to civil discourse as a means of solving the city’s problems, but her attempts at peaceful and articulate debate were unfortunately interrupted by Defendant Moore.
     
16. Defendant Moore then proceeded to arrest and charge Plaintiff on charges of Incitement to Riot and Riot, pursuant to Penal Code § 402 and § 403 respectively.
     
17. The events of August 26th, August 28th, August 30th, September 2nd, September 9th, September 10th, September 12th, and September 14th all mirrored the events of August 23rd, with the exception that Defendant Moore did not inquire as to whether Plaintiff possessed a permit on these additional days. Defendant Moore did, however, on each day issue a citation for the same charge, order dispersion of the crowd, and then arrest Plaintiff when the crowd did not disperse, thereafter charging her with the offenses of Incitement to Riot and Riot.
     
18. On September 10th, September 12th, and September 14th, Plaintiff refused to take the citations from Defendant Moore when issued. As a result, Defendant Moore charged Plaintiff with Obstruction of Justice, pursuant to Penal Code § 610, in addition to the charges of Incitement to Riot and Riot.
     
19. In total, over the above-cited date range, Plaintiff has been issued nine citations of $2,000 United States Dollars each, totaling $18,000. She has been arrested and incarcerated over these same dates on a total of 11 misdemeanor offenses and 10 felony offenses. She has bonded out of jail each time.
     
20. On August 30th, around 1:30 AM, Plaintiff was at her home located at 520 Halm Street. Upon getting home, and because she had been previously receiving death threats from an unknown source, Plaintiff armed herself with a concealed pistol upon arriving at her residence, and remained on her property at all times while armed with said pistol. Plaintiff was located outside, smoking a cigarette, when Defendants Kaminski and Low approached the residence and confronted Plaintiff outside of the home. Defendants Kaminski and Low informed Plaintiff that they had earlier been attempting to engage her in a traffic stop. They did not specify any violations of the Penal Code or Vehicle Code.
     
21. Defendants Kaminski and Low informed Plaintiff that they would be seeking to search the premises. Plaintiff requested that they present a warrant to search the premises. Defendants Kaminski and Low then stated that they did not need to present a warrant because Plaintiff had allegedly evaded from them and entered the residence, thereby giving them reason to search the premises in hot pursuit. Defendants Kaminski and Low, in doing so, were invoking Title 0, Section 27, Subsection 1 of the Penal Code (Police Exigency and Hot Pursuit Policy), which states "Peace officers have the authority to follow suspects into private property if directly related to an ongoing pursuit. Entry related to investigations or other projects not in a direct pursuit of a suspect require a warrant."
     
22. Plaintiff refused to allow Defendants Kaminski and Low to enter the premises without first presenting a search warrant authorizing entry to and search of the home. Upon her refusal, Defendants Kaminski and Low called for assistance. Soon thereafter, Defendant Moore arrived to assist the Defendant-Deputies. Another unknown Deputy Sheriff arrived and was ordered to conduct a cursory pat-down of Plaintiff's person. In order to do so, the unknown Deputy Sheriff ordered Plaintiff to step in front of a cruiser. Plaintiff did not consent to a search or pat-down of her person.
     
23. During the pat-down of her person, the concealed pistol was discovered in a holster affixed to Plaintiff's thigh under her skirt. Immediately upon discovery, someone yelled that she has a gun. All of the law enforcement officers present backed away and trained their firearms upon her, ordering her to remove the firearm herself and throw it to the ground. Fearful of the consequences of grabbing a firearm whilst multiple firearms were aimed at her, Plaintiff refused and told law enforcement to remove the firearm themselves. Hesitantly, the law enforcement officers present removed the firearm from her person and placed her under detainment.
     
24. While Plaintiff was detained, Defendants Kaminski and Low conducted a search of four properties under Plaintiff's ownership. Defendants did not at any time present a warrant authorizing them to search any of the four properties, including the residence at 520 Halm Street.
     
25. While searching the residence at 520 Halm Street, deputies discovered a controlled substance but Plaintiff denies all knowledge of any such substance being in her home. Plaintiff makes an unsubstantiable claim that the controlled substance was introduced to her property by Defendants Kaminski and Low. While searching the other properties, deputies discovered a prescription opioid medication for which Plaintiff has a prescription. Plaintiff at no time operated a motor vehicle whilst under the influence of this medication.
     
26. On August 30th, 2024, Plaintiff sent a version of an out-of-court settlement to the Los Santos County Sheriff's Department, proposing a monetary settlement in addition to the dropping of all charges stemming from the August 17th incident.
     
27. On September 1, 2024, Defendants Kaminski and Low approached Plaintiff whilst not wearing their Sheriff's Department uniforms. They informed Plaintiff that they had been placed on administrative leave by Internal Affairs. Furthermore, Kaminski and Low themselves participated in a demonstration alongside Plaintiff on September 1st.
     
28. Following the protest on September 1, 2024, Plaintiff went to the Internal Affairs office with Defendant Low. Defendant Low drafted his own version of a settlement agreement between Plaintiff and the Los Santos County Sheriff's Department. This agreement was signed by Plaintiff and the assigned Internal Affairs officer, Captain Elise Crawford. The agreement principally detailed that Plaintiff would release and hold harmless Defendant Los Santos County Sheriff's Department of any claims arising from the incident on August 17th, 2024, and also included many provisions requiring confidentiality. The agreement further detailed that Plaintiff may not speak about the Los Santos County Sheriff's Department during any protests or in public, assumedly in perpetuity because no time period is specified. In exchange for these, Defendant Los Santos County Sheriff's Department represented that it would "forward nolle prosequi to the prosecutors and shall drop all charges levied by the department from Marvin Low, Christopher Kaminski, or Darren Foster". Defendant Los Santos County Sheriff's Department further represented that the charges of Sexual Battery were not founded, and that any testimony given by Defendants Kaminski and Low to Defendant Moore on August 17th is "null and void".
     

COUNT ONE – DEPRIVATION OF CIVIL RIGHTS UNDER FOURTH AMENDMENT ARISING FROM EXCESSIVE FORCE AND DE-FACTO DETAINMENT LACKING REASONABLE SUSPICION OF ANY CRIME, PURSUANT TO 42 U.S.C. § 1983
 

1. Plaintiff was subjected to excessive force by Defendants Kaminski and Low when Defendant Low pointed a loaded firearm in her direction absent reasonable articulable suspicion of any crime. Pointing a firearm at a person is a form of force that police officers may typically employ only where there is a threat of a suspect possessing a firearm. The fact that a suspect has possessed one in the past, has a firearms permit, or that a suspect has a conviction history involving firearms is not sufficient grounds for assuming a suspect is armed. See United States v. Duarte, No. 22-50048 (9th Cir. Jul. 17, 2024).
    
2. Plaintiff, while having a firearm aimed in her direction, had reason to believe that her freedom to leave was restrained, thereby making the application of force a de-facto detainment. Under Graham v. Connor, 490 U.S. 386 (1989), uses of force must be objectively reasonable given the severity of the crime at issue, whether a suspect poses an immediate threat, and whether a suspect is actively resisting or attempting to evade by flight.
    
3. The application, or threat, of physical force is a detainment under Torres v. Madrid, 592 U.S. ___ (2021). Such force need not be successful in order for it to qualify as an application of force. The pointing of a firearm at Plaintiff was an application of force and a de-facto detainment because a reasonable person would believe they are not free to leave if they are aware that there is a threat or chance of injury if they attempt to do so.
    
4. Since Plaintiff had committed no crime and was simply engaging in protected speech activities, her actions could not have suggested criminality. As such, the pointing of any firearm violates the Graham factors specifically because the absence of a crime immediately causes any use of force to fail to objective reasonableness test required by Graham, therefore making any such use of force presumptively excessive and an unconstitutional breach of Plaintiff's fourth amendment right to be secure in her person and to be free of unnecessary seizure.
   
    

COUNT TWO – DEPRIVATION OF CIVIL RIGHTS UNDER FOURTH AMENDMENT ARISING FROM FALSE TESTIMONY AND FOLLOWING ARREST LACKING PROBABLE CAUSE, PURSUANT TO 42 U.S.C. § 1983

 

1. Plaintiff was arrested on a charge of Sexual Battery pursuant to Penal Code § 220(a). The applicable subsection contains one constructive element: the presence of unwanted touching or sexual contact by a person upon another person.
    
2. The arrest conducted by Defendant Moore was wholly substantiated by her reliance on the false testimony of the reporting party and the false testimony of the deputies who she spoke with.
    
3. The settlement agreement issued by the Los Santos Sheriff’s Department constitutes an admission that the deputies misrepresented their observations in an official capacity, thereby submitting an unlawful
    
4. Deputies of the Los Santos Sheriff’s Department gave false testimony to Defendant Moore, which served as a primary evidentiary basis leading to Defendant Moore’s reasonable belief of having probable cause.
    
5. Defendant Moore made no attempt to collect additional evidence, even though it was available to her in the form of cruiser dashcam footage and closed circuit television footage from the Police Headquarters. Furthermore, Defendant Moore made no attempt to collect the witness testimony of others on the scene.
    
6. Defendant Moore did not herself witness the events underlying the charge of Sexual Battery and therefore cannot assert a claim of her own witnessing of a crime as evidence for the crime.
    
7. Deputies Christopher Kaminski and Marvin Low made no attempt to correct Defendant Moore’s understanding of the events. By introducing false testimony to an official record, both officers committed the crime of Perjury pursuant to Penal Code § 606(b), which provides “A peace officer who knowingly and intentionally makes or causes to be made any material statement in an official report or to another peace officer and the statement is included in an official report, knowing the statement to be false, is guilty of a felony”. Christopher Kaminski and Marvin Low may assert absolute immunity from civil liability under Briscoe v. LaHue, 460 U.S. 325 (1983), but their employing agency has no such immunity and therefore must indemnify Plaintiff for the officers’ actions.
    
8. Lacking the testimony given by Kaminski and Low, and without more, Defendant Moore would not have had the requisite basis to establish probable cause. Since additional evidence was available but not sought by Moore, she neglected to perform her duties in a manner consistent with a reasonable police officer.
    
9. Defendant Moore’s failure to collect this evidence further constitutes a deprivation of Plaintiff’s right to discovery of exculpatory evidence during any criminal prosecution.
    
10. Conducting an arrest without probable cause implicates the Fourth Amendment’s seizure clause, which provides that a person has a right to security in their person and may not be unreasonably seized. Under common law understood at the time the fourth amendment was adopted, an arrest and subsequent incarceration was understood to be a seizure under the meaning of the fourth amendment.
     
11. Defendants Kaminski and Low have admitted fault in this matter, as shown in the unenforceable settlement agreement contained in evidence.
     
12. Defendant Moore may assert qualified immunity under Heien v. North Carolina, 574 U.S. 54 (2014), shielding herself from liability arising from the mistake of fact alone, but is not shielded by Heien on the issue of failing to investigate the matter, lacking probable cause for arrest, or failing to collect evidence that may have proven exculpatory.
     

COUNTS THREE THROUGH TWELVE– DEPRIVATION OF CIVIL RIGHTS UNDER FIRST AMENDMENT ARISING FROM PRIOR RESTRAINT TO FREEDOM OF SPEECH AND OF PEACEFUL PROTEST, PURSUANT TO 42 U.S.C. § 1983

 

1. Plaintiff was cited for Unlawful Assembly on August 23rd, August 26th, August 28th, August 30th, September 2nd, September 9th, September 10th, September 12th, and September 14th for Unlawful Assembly pursuant to Penal Code § 401(b). The applicable subsection contains two constructive elements: (1) that a group failed to protest or demonstrate peacefully, and; (2) that the group did not have a permit or authorization from the city.
    
2. Where protests are conducted in a traditional public forum, and are therein peaceful in nature, congress cannot restrain the right of persons to protest or display picket signs, under United States v. Grace, 461 U.S. 171 (1983).
    
3. Under Gitlow v. New York, 268 U.S. 652 (1925), the first amendment is incorporated onto state governments. Given this and applying Grace, state governments may not priorly restrain the free expression of the people by peacefully protest by requiring a permit to do so in a traditional public forum.
    
4. Under common law, traditional public fora are locations such as public parks, street, sidewalks, city plazas, town squares, outdoor pedestrian malls, steps in front of city hall, front lawns of county office buildings, city-maintained alleyways, and any other location in which a person at common law may have expected to be able to speak without the restrictions of administrative regulation. In contrast, a limited public forum, under Cox v. New Hampshire, 312 U.S. 569 (1941), is any property of another wherein the government may enforce time, place, and manner restrictions upon the speech of another.
    
5. Under Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939), as applied and cited in Lutz v. City of York, 899 F.2d 255 (1990), “individuals coming into or going about a city upon their lawful concerns must be allowed free locomotion upon the streets and public places”.
    
6. Pershing Square in the City of Los Santos is a traditional public forum because it is a city plaza and town square. Furthermore, the Los Santos Police Department Headquarters is public property. While the interior of the building is a limited public forum subject to time, place, and manner restrictions under Cox, the stairs outside of the building are traditional public fora in much the same way as the interior of City Hall is a limited public forum while the stairs outside of it is a traditional public forum. The stairs on the exterior of a building is not a place where specific government business is conducted, and therefore is not subject to the reasonable time, place, and manner restrictions that govern limited public fora.
    
7. Penal Code § 401(b) is facially unconstitutional under Cox, and both the enforcement thereof by the City of Los Santos through its permitting process and by the Los Santos Police Department through issuance of citations to those lacking permits while protesting in traditional public fora constitutes a violation of clearly established law that is grounds for suit under 42 U.S.C. § 1983.
    
8. Defendant Amber Moore may not assert qualified immunity in this matter because the corpus of law involving traditional public fora, including, but not limited to, Cox, Grace, Hague, Lutz, and Gitlow are all clearly established precedents that she has a duty to know and to apply in the course of her duties, as held in Pierson v. Ray, 386 U.S. 547 (1967). Under Harlow v. Fitzgerald, 457 U.S. 800 (1982), this court must apply the objective reasonable test prescribed therein, which requires an analysis of the existing corpus of law and whether an officer would be reasonably noticed of the unconstitutional nature of their conduct. Applying this test, Moore is not entitled to qualified immunity and is therefore personally liable for her actions.
    
9. The City of Los Santos and Los Santos Police Department are also jointly liable for their constructive violations of Cox, Grace, Hague, Lutz, and Gitlow, and must indemnify Plaintiff for her losses as a result of the arrests and citations that arose from these acts.
    
10. Counts 3 through 12 constitute a series of repeated violations of Plaintiff’s constitutional rights with each consisting of the unlawful issuance of a citation and unlawful dispersion of an otherwise-lawfully gathered and peaceful protest within a traditional public forum.

 

COUNTS THIRTEEN THROUGH TWENTY-TWO – DEPRIVATION OF CIVIL RIGHTS UNDER FIRST AND FOURTH AMENDMENT ARISING FROM UNLAWFUL ARREST FOR EXERCISING FREE SPEECH THROUGH PEACEFUL ASSEMBLY, PURSUANT TO 42 U.S.C. §1983
 

1. Plaintiff, after refusing to disperse when ordered to do so by Defendant Moore, was arrested for Incitement to Riot and Riot, pursuant to Penal Code § 402 and § 403 respectively. Section 402 contains two constructive elements. The first element requires a single overt act or attempt therein: the deliberate agitation or intention to agitate a crowd or large group of people. The second element requires that the crowd or large group is located in a public or private area in order to promote acts of violence or civil unrest.
    
2. Plaintiff did not communicate any messages that a reasonable person would be agitated, and did not intend to do so in any way. To the contrary, Plaintiff has alleged her intent to be an expression of free speech for the purpose of demonstrating a mode of civil discourse through which others may express their grievances constructively.
    
3. Furthermore, the group was not gathered in the traditional public forum of Pershing Square for the purpose of promoting acts of violence or civil unrest. A failure to disperse does not, without explicit calls for violence or civil unrest, constitute an incitement to riot even if the organizer of the group tells others not to disperse. Under this same logic, we would have expected figures such as Martin Luther King, Jr., and his compatriots, to have been charged with felony acts of incitement to riot rather than the public order offenses they were in fact charged with during their protests that led to the passing of the 1963 Civil Rights Act.
    
4. As discussed in Feiner v. New York, 340 U.S. 315 (1951), a person may be convicted of breaching the peace if the direct result of his speech is civil unrest or disorder. Here, Plaintiff did not call for unrest or disorder, or violence of any kind, and her speech did not result in civil unrest, disorder, or a breach of the peace beyond continued protest and civil disobedience of officers by the participants of the protest.
    
5. The charges under Penal Code § 402 are unconstitutional as applied to Plaintiff because her actions did not satisfy the elements of the crime, and Defendants Los Santos Police Department and Moore lack the probable cause necessary to substantiate an arrest.
    
6. The charges under Penal Code § 403 are unconstitutional as applied to Plaintiff because her actions did not constitute a riot. Lacking civil unrest, disorder, or a breach of peace exceeding civil disobedience, the elements of the crime have not been satisfied and Defendants Los Santos Police Department and Moore lack the probable cause to substantiate an arrest.
    
7. Lacking probable cause for an arrest, Defendants Los Santos Police Department and Moore have engaged in an unlawful seizure of the person of Plaintiff, and in so doing have violated her right to be free of such unreasonable seizure under the fourth amendment.
    
8. Under Smith v. Wade, 461 U.S. 30 (1983), punitive damages are recoverable where a defendant’s actions are reckless or callously indifferent to the rights of a plaintiff. Defendants Moore and Los Santos Police Department were callously indifferent to the rights of Plaintiff through assertion of incorrect criminal charges of Incitement to Riot and Riot, pursuant to Penal Code § 402 and § 403 respectively, where the elements of the crime were not met.
    
9. Counts 13 through 22 constitute a series of repeated violations of Plaintiff’s constitutional rights with each consisting of an unlawful arrest and incarceration where Plaintiff was engaged in constitutionally protected speech.

 

COUNT TWENTY-THREE – MONELL CLAIM FOR A PATTERN OR PRACTICE OF DELIBERATE INDIFFERENCE IN TRAINING OF POLICE OFFICERS, PURSUANT TO 42 U.S.C. § 1983
 

1. Under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978), a municipal agency may be held liable under 42 U.S.C. § 1983 for official acts constituting a pattern or practice that results in a systemic violation of a plaintiff’s civil rights.
    
2. The elements of a Monell claim are: (1) deprivation of a clearly-established federal right; (2) that specific government action can be traced to the deprivation; (3) presence of a pattern or practice demonstrating fault or deliberate indifference to the risks therein, and; (4) municipal action, or inaction, was the driving force behind the deprivation.
    
3. Under Thomas v. Cook Cty Sheriff's Dept, 604 F.3d 293 (7th Cir. 2009), a municipal department’s awareness of some risk to plaintiffs by a custom or practice constitutes deliberate indifference under the requirements of the test in Monell.
    
4. Under McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 2009), the municipal policies of an agency are legal conclusions where not factually supported. As reasoned in McTigue, if a municipal agency’s policy, where followed appropriately, results in a constitutional violation, the municipal agency may be held liable under 42 U.S.C. § 1983.
    
5. Defendant Los Santos Police Department failed to provide Defendant Moore the appropriate level of training in the clearly-established laws concerning protesting. As a result, Moore conducted false arrests on numerous occasions.
    
6. In failing to provide the necessary training for Defendant Moore, Defendant Los Santos Police Department was deliberately indifferent to the first amendment rights of the public in a manner that was likely to lead to the violation of citizens’ rights to protest and speak in traditional public fora.
    
7. Defendant Los Santos Police Department has a duty to train officers appropriately before permitting them to patrol or conduct arrests on their own. Defendant Moore was able to conduct the multiple arrests of Plaintiff without any such supervision, therein suggesting that she was considered by the Department to be a fully trained and capable officer with all the rights and privileges of law enforcement officers in this State. However, her actions suggest otherwise. Her own personal indifference to the rights affirmed in Cox, Grace, Hague, Lutz, and Gitlow suggest that the department did not conduct an appropriate level of training before granting her the statuses common to fully trained officers.
    
8. Applying Monell, Thomas, and McTigue, Defendant Los Santos Police Department is liable under 42 U.S.C. § 1983 to indemnify Plaintiff for the losses resulting from her incarceration. Defendant’s lack of policies requiring that officers be trained in the clearly-established law relevant to the performance of their duties as they pertain to maintenance of public order demonstrates deliberate indifference to preventing such risks.
    

COUNT TWENTY-FOUR – DEPRIVATION OF CIVIL RIGHTS UNDER FOURTH AMENDMENT ARISING FROM UNLAWFUL SEARCH OF PERSON AND PRIVATE PROPERTY WITHOUT CONSENT OR EXIGENCY, PURSUANT TO 42 U.S.C. §1983
 

1. On August 30th, Plaintiff was located on her own private property within the curtilage of the property on the porch. Under Florida v. Jardines, 569 U.S. 1 (2013), the front porch of a private residence is part of the home. Under Jardines, officers are granted the same license to approach the residence as any ordinary citizen. Defendants Kaminski and Low encountered Plaintiff on her porch.
    
2. Defendants Kaminski and Low informed Plaintiff that they would be searching the home and, upon Plaintiff's request for a search warrant, failed to produce such warrant. In the absence of a search warrant, searches of a home without consent are presumptively unreasonable under the meaning of the Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980). Defendants Kaminski and Low cited the Exigency and Hot Pursuit Policy of the Penal Code, codified in Title 0, Section 27. Under United States v. Santana, 427 U.S. 38 (1976), exigent circumstances by hot pursuit are present if an arrest is actively being conducted when a suspect retreats into their home. Under this standard, a suspect must first be detained and informed that he is under arrest. Here, Plaintiff was not under arrest and did not retreat into her home while under arrest. Contrary to the claims made by Defendants Kaminski and Low, Plaintiff did not make any attempt to evade by flight from a traffic stop and was not therefore retreating into her home when she went indoors. Plaintiff refused Defendants Kaminski and Low access to her home, requiring that they first present a search warrant before she allowed them to enter.
    
3. After backup had arrived, another Deputy Sheriff conducted a cursory pat-down upon the person of Plaintiff without consent. Under Terry v. Ohio, 392 U.S. 1 (1968), officers may conduct a cursory pat-down of a suspect if they have reasonable suspicion that the suspect is armed and presently dangerous. Defendants and the unknown Deputy Sheriff had no such reasonable suspicion, and therefore a non-consensual cursory pat-down under Terry is unreasonable under the Fourth Amendment. While this is ordinarily a de minimus intrusion, this unreasonable pat-down resulted in the discovery of a firearm which was later used as evidence against her.
    
4. Since the firearm, used as evidence, was discovered as the result of an unreasonable search and violation therein of the Fourth Amendment, it is inadmissible as evidence under Mapp v. Ohio, 367 U.S. 643 (1961).
    
5. Defendants Kaminski and Low then proceeded to search four of Plaintiff's properties without a warrant and, applying Santana, without exigent circumstances under hot pursuit. Even if they did have exigent circumstances to enter Plaintiff's residence, which we contend they did not, they would not have been permitted to search the other three properties. Applying both Santana and Payton together, all four of these searches were presumptively unreasonable in the absence of a warrant or some demonstrable exigency.
    
6. Defendants Kaminski and Low are not entitled to qualified immunity because there is clearly-established law, established in Santana, Jardines, and Payton, relating directly to the role of a front porch as curtilage to the property, and entered four separate properties to search them without a warrant and without consent of the property owner.

 

COUNT TWENTY-FIVE – BREACH OF DUTY TO INFORM COUNSEL OF FALSE TESTIMONY, AND DEPRIVATION OF RIGHTS UNDER FIFTH AMENDMENT PURSUANT TO 42 U.S.C. § 1983.
 

1. Plaintiff previously entered into a contractual settlement with Defendant Los Santos County Sheriff's Department. Plaintiff submits that this agreement is unenforceable by this or any court and is therefore null and void.
    
2. In the agreed-upon settlement, Los Santos County Sheriff's Department made unlawful promises as consideration for a release of liability by Plaintiff. The powers and jurisdictions of the Los Santos County Sheriff's Department are enumerated in Addendum 2, Section 2 of the State Constitution. The enumerated powers do not include the power to "forward nolle prosequi". This power is reserved exclusively to the Office of the District Attorney and the District Attorney. The agreed-upon settlement also offered, as consideration for the contract, a remedy to prior perjury by Defendants Kaminski and Low in exchange for a release of liability.
    
3. Under Brady v. Maryland, 373 U.S. 83 (1963), Defendant Los Santos County Sheriff's Department, the government's withholding of evidence that is material to the determination of either guilt or punishment of a criminal defendant violates the defendant's constitutional right to due process. Defendant Los Santos County Sheriff's Department was required to reveal to both the prosecution and to the defense in Plaintiff's underlying criminal prosecution for Sexual Battery that Defendants Kaminski and Low had perjured themselves to Defendant Moore. In offering this as consideration, Los Santos County Sheriff's Department breached a legal duty they have to the defense and to the courts, and thereby deprived Plaintiff of her due process rights under the Fifth Amendment.
    
4. Under Strickler v. Greene, 527 U.S. 263 (1999), there are three components to any claim under Brady. Firstly, there must be some evidence that would have been favorable to the defendant in a criminal matter either because the evidence is impeaching or because it is exculpatory. Secondly, the evidence must have been suppressed by the state either willfully or inadvertently. Thirdly, the presentation of such evidence may have reasonably produced a different outcome. Applying the test defined in Strickler, all three components of the test are met and Plaintiff therefore has a valid claim under Brady.
    
5. Under Armstrong v. Toler, 24 U.S. 258 (1826), courts must not lend their aid to enforce contracts that grows immediately out of and is connected with an illegal act. If Plaintiff did not accept the settlement agreement, the Los Santos County Sheriff's Department may not have made the representation that it was aware of the falsity of statements made by Defendants Kaminski and Low. To fail to present such information would violate Plaintiff's rights under Brady, and would therefore be to deprive her of her due process rights. Applying Armstrong, the settlement agreement assented to by Plaintiff and Defendant Los Santos County Sheriff's Department is unenforceable and therefore null and void.

 

 

DAMAGES AND PRAYER FOR RELIEF

 

1. Compensatory damages in the amount of:

•  $10,000 per hour spent incarcerated for charges of Incitement to Riot and Riot (252 hours), for a total of $2,520,000.
•  Compensatory damages in the amount of $10,000 per hour spent incarcerated for the charge of Sexual Battery (30 hours), for a total of $300,000.
•  Compensatory damages in the amount of $18,000 for the citations under Penal Code §401 that were paid by Plaintiff.
• $25,000 for pain, suffering, and mental anguish resulting from the application of excessive force.
• $10,000 per occurrence as compensation for the mental anguish arising from unlawful search and seizure, for a total of $40,000.

 

2. Punitive Damages in the amounts:

•  Treble the applicable compensatory damages for unlawful incarceration resulting from the charges of Incitement to Riot and Riot, totaling $7,560,000.
•  Treble the applicable compensatory damages for unlawful incarceration resulting from the charge of Sexual Battery, totaling $900,000

3. Dismissal of all charges stemming from the actions on the dates referenced in this claim.

 

4. A permanent injunction from this court, detailing that both Defendants Christopher Kaminski and Marvin Low be listed as having perjured themselves in a past matter, as a means of preventing their testimony from being entered into evidence against future criminal defendants.

5. Reasonable attorney fees awarded to attorneys Xavier Castendas, Donald J. Wright, and Jacob E. Rabinowitz. While Mr. Wright and Mr. Rabinowitz are acting pro bono without charge to Plaintiff, their services are recompensable from Defendants by this court. As a reference point, all three attorneys bill for their services at a rate of $5,000 per hour.

 

 

WITNESS LIST

Michael Walters
Samuel Gonzales, Chief of Police, Los Santos Police Department
Amber Moore, Employee of the Los Santos Police Department
Deputy Christopher Kaminski, Employee of the Los Santos Sheriff’s Department
Deputy Marvin Low, Employee of the Los Santos Sheriff’s Department
Captain Elise Crawford, Employee of the Los Santos Sheriff’s Department

 

_______________________________________________

Certification. The undersigned swears or affirms, under penalty of perjury, that the information contained herein is truthful to the best of his knowledge.

 

Sworn this 20th day of September, 2024 by:

 

/s/ Jacob E. Rabinowitz

JACOB E. RABINOWITZ

Co-Counsel for Plaintiff

[email protected]
 

DONALD J. WRIGHT

Co-Counsel for Plaintiff

 

XAVIER CASTENDAS

Lead Counsel for Plaintiff

 

 

-

 

Edited September 23, 2024 by Jacob Rabinowitz
add claim 24 and 25, additional cases in table of authorities

[Jacob Rabinowitz]

** The Court Clerk receives a fax from the Office of Jacob E. Rabinowitz, Esq.

 

TO: Court Clerk; Judge Martin Hockenbeyer; Counsel for Defendant Los Santos Police Department; Lead Counsel for Plaintiff Michelle Jefferson
FROM: Jacob E. Rabinowitz III, Esq.

DATE: September 21st, 2024

RE: Case 24-CV-1034 Amendment of Complaint

-----

 

Judge Hockenbeyer,

 

Please be advised that we have once more amended the complaint to correct an error in identification of the Chief of Police, whom we believed at the time of our first amended complaint to be Manuel Caldera. After further research, we have identified our error and changed the defendant from Manuel Caldera to Samuel Gonzales, the current Chief of Police.

 

Additionally, after conducting a strategy session, we have renumbered the counts listed therein and added an additional claim of excessive force as it is alleged to have been conducted by Defendant Deputies Kaminski and Low.

This will be our final amendment to the complaint and we are in the process of notifying all applicable defendants.

 

Signed,

 

Jacob E. Rabinowitz III

Counsel for Plaintiff

(( @almightybounter ))

[Jacob Rabinowitz]

** The Court Clerk receives a fax from the Office of Jacob E. Rabinowitz, Esq.

 

TO: Court Clerk; Judge Martin Hockenbeyer; Counsel for Defendant Los Santos Police Department; Lead Counsel for Plaintiff Michelle Jefferson
FROM: Jacob E. Rabinowitz III, Esq.

DATE: September 22nd, 2024

RE: Case 24-CV-1034 Notification of Parties

-----

 

Mister or Madam Court Clerk:

 

Please be advised that we have dispatched certified priority mail to Defendants City of Los Santos, Los Santos Police Department, and Los Santos Sheriff's Department, for additional service by such parties upon any additional parties named in official capacity as officers or representative of the same. Please see the attached document, a copy of the letter we have dispatched.

 

Signed,

 

Jacob E. Rabinowitz III

Counsel for Plaintiff

(( @almightybounter ))
(( I do not know how to find out who owns the characters listed - Alexander Blair, Samuel Gonzales, Roderick Hayward, Amber Moore, Christopher Kaminski, or Marvin Low. ))

 

---

 

attachments

 

Edited September 22, 2024 by Jacob Rabinowitz

[Cashew]

21 minutes ago, Jacob Rabinowitz said:

(( I do not know how to find out who owns the characters listed - Alexander Blair, Samuel Gonzales, Roderick Hayward, Amber Moore, Christopher Kaminski, or Marvin Low. ))

(( Tagging for you:

 

Moore - @Cashew

Blair - @Eren

Gonzales - @Michael

Hayward - @Brasi

Low - @Iudex

Kaminski - @aymel ))

[NotCraft]

Case Number: 24-CV-1034

---

NOTICE OF APPEARANCE AND REQUEST FOR CONTINUANCE

---

 

The Los Santos County Sheriff's Department (LSSD),  represented through its counsel Silverman and Goldstein Law Firm, hereby enters its appearance in this case and respectfully requests a postponement of the proceedings.
 

We have recently become aware of the lawsuit filed by Michelle Jefferson. The LSSD is actively reviewing the claims and needs additional time to gather all relevant information.

We are conducting a thorough internal investigation and review to understand the details of the allegations. Additional time will allow us to prepare a clear and comprehensive plan of action to present all factual information to the Court.

 

We respectfully ask the Court to grant a five (5) day continuance to complete our review and formulate an appropriate response.
 

SILVERMAN AND GOLDSTEIN LAW FIRM

Attorneys for Los Santos County Sheriff's Department

By:

/s/ Yeshua Silverman
YESHUA SILVERMAN, ESQ.
Silverman and Goldstein Law Firm

((@almightybounter ))

Edited September 22, 2024 by NotCraft
Request of 5 days total added

[Jacob Rabinowitz]

** The Court Clerk receives a fax from the Office of Jacob E. Rabinowitz, Esq.

 

TO: Court Clerk; Judge Martin Hockenbeyer; Counsel for Defendant Los Santos Police Department; Lead Counsel for Plaintiff Michelle Jefferson
FROM: Jacob E. Rabinowitz III, Esq.

DATE: September 22nd, 2024

RE: Case 24-CV-1034 Reply to Request for Postponement by Counsel for Defendant Los Santos County Sheriff's Department

-----

 

To Judge Hockenbeyer:

 

We write in reply to the request for postponement submitted by counsel for the Los Santos County Sheriff's Department. Under your continued order, the defendant is already given 5 days from the date of service to submit a reply brief. We respectfully disagree with postponement beyond this point because, as your honor has stated, it is the court’s duty to ensure that the litigation process remains fair, orderly, and free from undue delays or procedural complications. It is the position of the Plaintiff that to delay the response brief and, by extension, additionally delay the discovery process would be an undue delay.

 

Furthermore, the matter for which Defendant Los Santos County Sheriff's Department, Defendant-Sheriff Roderick Hayward, and Defendant-Deputies Kaminski and Low are being sued has been fully investigated by the Los Santos County Sheriff Department's Internal Affairs Division, thereby further lessening the degree to which additional time is necessary.

 

We respectfully request that your honor order the defendants to submit their reply briefs on or before September 27th, 2024, so that we may begin the discovery process.

 

Signed,

 

Jacob E. Rabinowitz III

Counsel for Plaintiff

(( @almightybounter @NotCraft ))

Edited September 22, 2024 by Jacob Rabinowitz

[almightybounter]

"After reviewing the request for a five-day continuance submitted by counsel for the Los Santos County Sheriff's Department (LSSD), as well as the Plaintiff's response, the Court has carefully considered the interests of both parties.

While I understand the Defense's need for time to gather information and fully respond, the Plaintiff’s point regarding the timely resolution of this case and the prior internal investigation conducted by LSSD is well-taken. It's important to ensure that proceedings continue without undue delay.
 

Therefore, in the interest of fairness and to maintain the orderly flow of litigation, I am granting the Defense an additional three (3) days beyond the original deadline. The Defense must file its reply brief on or before September 30th, 2024. This extension should provide adequate time for the Defense to conduct its review and prepare its response while preventing unnecessary delays in the discovery process.

This extension is granted with the understanding that no further delays will be permitted unless exceptional circumstances arise."
 

Signed,
Judge Hockenbeyer

(( @NotCraft @Jacob Rabinowitz )) 

[NotCraft]

** Yeshua Silverman adjusts his tie and takes a sip of his Dasani water, before clearing his throat to speak **

"The Defense thanks the Honorable judge for additional timing. We would also like to add that the internal investigation has not been completed regarding the plaintiff's initial report to the Los Santos Sheriff's Department. Therefore the Los Santos Sheriff's Department is still attempting to gather all of the facts of this case. I'm unaware of where Mr. Rabinowitz learned that the case had been closed. " 

((@almightybounter @Jacob Rabinowitz))

 

Edited September 23, 2024 by NotCraft

[Jacob Rabinowitz]

** Jacob makes a record.

 

"I may have misspoken here. It is our understanding that the investigation of the first matter, relating to the Defendant-Deputies' testimony to Defendant Moore about having witnessed our client make unwanted sexual contact with another, had been completed. I misspoke by extending this to mean that the investigation of the remaining matters had also been completed. Please accept my apologies for this mistake, counsel, and know it was not intentional.

 

We look forward to your response brief. If, after investigation, you feel it is prudent to engage in settlement discussions we are open to the prospect."

 

(( @almightybounter @NotCraft ))

 

[NotCraft]

**Superior Court of San Andreas**  

**County of Los Santos**  

**Case No: 24-CV-1034**  

**Michelle Jefferson v. Los Santos Police Department, et al.**   

 

 

 

Your Honor, the Defense respectfully submits this Reply Brief in response to the Plaintiff's arguments and opposition. We are grateful for the time the court has given us to review the case and while the internal affairs investigation is on-going we believe the case can proceed. We would address the key issues raised by the Plaintiff and emphasize that the actions taken by the Los Santos County Sheriff's Department (LSSD) and its deputies were lawful, reasonable, and necessary under the circumstances that those deputies found themselves in. The Plaintiff's claims fail to account for important legal standards governing probable cause, public safety, and reasonable restrictions on assembly.  

 

We ask this Court to deny the Plaintiff’s claims and allow the defense to proceed to summary judgment.

 

 

I. Probable Cause Justified the Arrests and Citations 

 

The Plaintiff contends that the arrests and citations issued by the LSSD were unlawful and lacked probable cause. However, the facts demonstrate that probable cause existed at every stage of the interaction between the Plaintiff and the LSSD deputies. The defendant has been unable to meat the burden of proof. 

 

Furthermore probable cause exists when the facts and circumstances known to law enforcement would lead a reasonable officer to believe that a crime has been, or is being, committed (see *Graham v. Connor*, 490 U.S. 386 (1989)). In this case, the Plaintiff’s repeated refusal to disperse during the unlawful assemblies and failure to comply with lawful orders provided the necessary probable cause for law enforcement to issue citations and make arrests. 

 

The Plaintiff was part of a large gathering that violated the city’s lawful time, place, and manner restrictions for public assemblies. When the Plaintiff and her associates failed to comply with orders to disperse, it created a legitimate basis for law enforcement to act in order to preserve public safety and restore order.

 

 

II. Lawful Search Under Exigent Circumstances

 

The Plaintiff argues that the search of her property was unlawful because it was conducted without a warrant. However, the defense asserts that the search was justified under the doctrine of exigent circumstances, specifically hot pursuitas recognized in *United States v. Santana*, 427 U.S. 38 (1976). 

 

The deputies reasonably believed that the Plaintiff had evaded from a lawful traffic stop by retreating into her home. Under these circumstances, law enforcement officers are permitted to enter a residence without a warrant if they are in immediate pursuit of a suspect. Furthermore, once inside the property, the deputies conducted their duties in accordance with public safety concerns and were justified in their actions. The defendant has been arrested several times on weapons offenses and is known to be armed to law enforcement. The search was conducted reasonably and did not violate the Plaintiff's Fourth Amendment rights according to Terry V. Ohio. 

 

 

III. Plaintiff's Contributory Negligence Contributed to the Events

 

The Plaintiff's own actions played a significant role in escalating the situation. By repeatedly refusing to disperse from unlawful assemblies, and by failing to comply with lawful orders from law enforcement, the Plaintiff contributed to the very outcomes she now challenges. The deputies and officers explained what would happen to the defendant multiple times and she still refused to disperse even after threat of arrest. 

 

Contributory negligence is a well-established defense, and the Plaintiff's decision to engage in defiance during multiple encounters with law enforcement directly led to her arrest and citations multiple different times. The Plaintiff's failure to comply with lawful orders is a key factor in assessing the reasonableness of the deputies' actions. 

 

IV. Reasonable Restrictions on Public Assembly 

 

The Plaintiff claims that her First Amendment rights were violated by the citations and arrests for unlawful assembly. However, the Defense argues that the restrictions imposed on the Plaintiff’s gatherings were lawful, reasonable, and necessary to maintain public order.

 

Time, place, and manner restrictions on public assemblies are constitutionally permissible, particularly when public safety is at risk (*Cox v. New Hampshire*, 312 U.S. 569 (1941)). The Plaintiff’s repeated attempts to gather large crowds without a permit as required, combined with her refusal to comply with lawful orders to disperse, placed a burden on public resources and posed potential risks to public safety. Law enforcement's actions were justified as a necessary response to prevent potential unrest or disorder. 

 

As the defendant was the organizer for the event she was the first arrest. Following her arrest the crowd dispersed and went about their business freeing up local police and fire resources to assist in their normal duties. 

 

 

V. No Malice or Ill Intent in Law Enforcement Actions

 

The Plaintiff has alleged that the LSSD deputies acted with malice or ill intent in their interactions with her. However, the evidence does not support this claim once again. 

 

My deputies acted in accordance with their duties as law enforcement officers and responded to situations based on public safety concerns in support of their sister agency Los Santos Police Department. There is no indication that the deputies acted with malicious intent or reckless disregard for the Plaintiff's rights. The use of force and the issuance of citations were proportionate to the circumstances as required by law and LSSD policy and procedure, and the actions of the deputies were guided by public safety concerns, not personal animus and vendettas as the client describes. 

 

 

For the reasons outlined above, the Defense respectfully requests that the Court deny the Plaintiff’s claims in their entirety. The actions taken by the Los Santos County Sheriff's Department and its deputies were lawful, reasonable, and necessary to protect public safety and maintain order. Furthermore, the Plaintiff’s own actions contributed significantly to the events in question. The Plaintiff if once again tying up legitimate resources over frivolous claims of malice just like in the situation that’s lead to her arrest. 

 

We ask that the Court grant summary judgment in favor of the Los Santos County Sheriff's Department.

 

Respectfully submitted,  

/s/ Yeshua Silverman  

**Yeshua Silverman, Esq.**  

**Silverman and Goldstein Law Firm**  

**Attorneys for Los Santos County Sheriff's Department**  

[Kotwica]

"Your Honor, Silverman and Goldstein's Law Firm's response was untimely they were given until the end of September 30th to file, they filed their response hours after the period given to them by the court. The plaintiff is therefore entitled to a Rule 55 Default Judgment,  and move for such against the Los Santos Sheriff's Department. If this request is denied, we would request an opportunity to respond to the claim for summary judgment that has been improperly filed."

(( @NotCraft, @almightybounter ))

Edited October 1, 2024 by Kotwica

[almightybounter]

“The Court has reviewed the filings from both parties regarding the timing of the Defense’s Reply Brief and the Plaintiff’s subsequent motion for default judgment.

I) It is noted that the Defense filed its reply brief after the deadline of September 30th, 2024, as ordered by the Court. While the Defense’s response was indeed filed late, the delay appears to have been a matter of a few hours and not a significant or willful disregard for the Court’s deadline. Given that this is not a case of prolonged delay or bad faith on the part of the Defense, the Court finds that default judgment under Rule 55 is not warranted in this instance. The lateness of the filing does not, in itself, result in undue prejudice to the Plaintiff or significantly impact the progression of the case. Therefore, the Plaintiff’s motion for default judgment is denied.

 

II) The Defense has requested summary judgment based on the arguments presented in their reply brief. While the Court acknowledges the Defense’s position, fairness requires that the Plaintiff be given the opportunity to respond to the Defense’s motion for summary judgment. The issues at hand—particularly involving questions of probable cause, First and Fourth Amendment rights, and contributory negligence—are significant and require thorough examination of both parties’ arguments.

 

Therefore, the Court grants the Plaintiff the opportunity to file a response to the Defense’s motion for summary judgment. The Plaintiff is given three (3) days from the date of this ruling to submit their response, after which the Court will evaluate both the Defense’s motion and the Plaintiff’s counterarguments before rendering a decision on summary judgment.

 

The Court seeks to ensure that the case is resolved based on a full consideration of the facts and arguments from both sides, without resorting to procedural shortcuts. As such, the request for default judgment is denied, but the Plaintiff’s right to respond is upheld to maintain fairness in these proceedings.”

 

Signed,
Judge Hockenbeyer

[Kotwica]

Michelle Jefferson v. City of Los Santos, Alexander Blair, Los Santos Police Department, Samuel Gonzales, Los Santos County Sheriff’s Department, and Roderick Hayward, in their official capacities,
Amber Moore, Christopher Kaminski, and Marvin Low, in their individual and official capacities.

 

Case Number: 24-CV-1034

Prepared by: Donald J. Wright
 

MOTION IN OPPOSITION OF DEFENDANT'S MOTION TO DISMISS

_______________________________________________
 

Comes now, Michelle Jefferson through her counsel opposes the Defendant's motion for summary judgment.

(1) Summary judgment is inappropriate
Federal Rule of Civil Procedure 56 governs Summary Judgment. Summary judgment is only appropriate in situations where there is (1) no genuine dispute of material fact; (2) the moving party is entitled to judgment as a matter of law. In determining whether the moving party is entitled, the court must look at the light most favorable to the non-moving party.

 

Here, the defense does not respond adequately to the twenty four claims, therefore leaving the question of material facts at issue, and the moving party is not entitled to judgment as a matter of law.

 

(2) The Defendant's claim in I. Probable Cause Justified the Arrests and Citations are circular, and are statements not arguments.
The Defendant states their opinion, lacking any specificity to their claim. Additionally, the defense does not address the claims outlined in count two and thirteen through twenty-two. Count two, and thirteen through twenty-two meet Federal Rules of Civil Procedure Rule 8 as well pleaded complaints. Simple disagreement with the assertions does not lead to an entitlement to the motion for summary judgment.

 

(3) The Defendant's claim of contributory negligence is an affirmative defense that requires specific pleading.

The Defendant's claim of contributory negligence is an affirmative defense that requires specificity by Rule 8(c)(1), claiming such defense is a bar on a motion for summary judgment as it raises a new claim by the defense that the defense has not thoroughly pleaded and is a matter of fact which requires this court to hear the proceedings. This claim raises another question of law, therefore prohibiting summary judgment.

 

(3) The Defendant's claim in II. Lawful Search Under Exigent Circumstances are opinions of legal interpretation, not legal conclusions.

The Defendant states their opinion, lacking any specificity to their claim. Additionally, the defense does not address the claims outlined in count twenty four. Count twenty four meets Federal Rules of Civil Procedure Rule 8 as a well pleaded complaint. Disagreement with the facts, and law pled by the plaintiff prohibits summary  judgment.

 

(4) The Defendant's claim in IV. Reasonable Restrictions on Public Assembly are opinions of legal interpretation, not legal conclusions.

The Defendant does not adequately state a rebuttal to claim three through twenty four that would entitle them to a summary judgment motion, they do not thoroughly dispel the case theory of the plaintiff that was well pleaded under Federal Rules of Civil Procedure Rule 8. Disagreement with the facts, and law pled by the plaintiff prohibits summary judgment.

 

(5) The Defendant's claim in V. No Ill Will or Malice

The defendant raises a claim of no ill will or malice, this statement is not correlated to the complaint. This theory appears to be an affirmative defense which lacks specificity under Rule 8(c)(1). The Defendant's claim has no legal significance as it is a circular statement. This claim was not pled in the complaint, therefore the defenses pleading raises another issue of fact and law which prohibits summary judgment.

 

_______________________________________________

Certification. The undersigned swears or affirms, under penalty of perjury, that the information contained herein is truthful to the best of his knowledge.

 

Sworn this 2 day of October, 2024 by:

 

/s/ Donald J. Wright

DONALD J. WRIGHT

Co-Counsel for Plaintiff

 

JACOB E. RABINOWITZ

Co-Counsel for Plaintiff

 

XAVIER CASTENDAS

Lead Counsel for Plaintiff

 

(( @almightybounter @NotCraft ))

Edited October 2, 2024 by Kotwica