Hein V Chandler Amended Complaint

Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 1 of 23
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Stephen D. Benedetto (#022349)

THE PEOPLES LAW FIRM, PLC
2111 E. Highland Ave., Suite 145
Phoenix, Arizona 85016
Telephone: (602) 456-1901
Facsimile: (602) 801-2834
benedetto@the-plf.com
Adam Feldman (#023201)
THE FELDMAN LAW FIRM, PLLC
1 E. Washington Street, Suite 500
Phoenix, Arizona 85004
Telephone: (602) 540-7887
afeldman@topazattorney.com
Attorneys for Plaintiff Luke Hein
IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA

Luke Hein, a single man,
Case No. 2:15-cv-01162-DJH
Plaintiff,
v.
FIRST AMENDED COMPLAINT
City of Chandler, an Arizona municipal

corporation; Brian Hawkins and Jane Doe
Hawkins, husband and wife; William
Nocella and Jane Doe Nocella, husband
and wife,
Defendants.
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(Assigned to the Honorable Diane J.

Humetewa)
(JURY TRIAL DEMANDED)
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For his Complaint against Defendants City of Chandler, Brian and Jane Doe
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Hawkins, and William and Jane Doe Nocella (collectively, Defendants), Plaintiff Luke
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Hein, through undersigned counsel, hereby alleges as follows:

INTRODUCTION
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1.
This is a civil rights complaint brought by Plaintiff Luke Hein under 42
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U.S.C. 1983 against Defendants as a result of their use of excessive force, unlawful
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arrest and detention, malicious prosecution, and other wrongful acts, occurring in and
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around the City of Chandler, Arizona on May 8, 2014 and thereafter.

2.
Defendants Brian Hawkins and William Nocella are sued both in their
individual and official capacities.

3.
Defendant City of Chandler is sued both as a result of the actions
Defendants Hawkins and Nocella took within the course and scope of their authority, as
caused by and/or ratified by the City, and by virtue of its longstanding practices and/or
customs.
JURISDICTION AND VENUE
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4.
Plaintiff brings this action against Defendants pursuant to 42 U.S.C. 1983
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for deprivation of civil rights secured by the Fourth and Fourteenth Amendments of the
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United States Constitution, the Arizona Constitution, and other claims arising out of the
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law of the State of Arizona.
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5.
Jurisdiction is founded upon 28 U.S.C. 1331, 1343(a)(3)(4) and 1367(a).
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6.
This Court has jurisdiction over Plaintiffs claims of violation of his civil
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rights under 42 U.S.C. 1983 and pendent jurisdiction over Plaintiffs state law claims
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pursuant to 28 U.S.C. 1367(a).
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7.
Venue is proper in this Court pursuant to 28 U.S.C. 1391 in that the acts
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and omissions that give rise to this action occurred within this District within one year of
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the filing of the original Complaint, and this Court otherwise has jurisdiction.
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8.
This case presents an actual case in controversy arising under the Fourth and
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Fourteenth Amendments to the United States Constitution, and under the provisions of 42
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U.S.C. 1983 and 1988.

THE PARTIES
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9.
Plaintiff Luke Hein is an unmarried man. He is a citizen and resident of the
United States, domiciled in Maricopa County, Arizona.

10.
Upon information and belief, Defendants Brian and Jane Doe Hawkins are a
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married couple residing in Maricopa County, Arizona.
allegations in this Complaint, Mr. Hawkins was acting in his capacity as a City of
Chandler Police Officer and acting under the color of law. He is sued in his individual
capacity and in his official capacity as a City of Chandler Police Officer.
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At all times material to the
Upon information and belief Defendants William and Jane Doe Nocella are
a married couple residing in Maricopa County, Arizona. At all times material to the
allegations in this Complaint, Mr. Nocella was acting in his capacity as a City of Chandler
Police Officer and acting under the color of law. He is sued in his individual capacity and
in his official capacity as a City of Chandler Police Officer.
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At all relevant times to this Complaint, Defendants Hawkins and Nocella
were acting in furtherance of their respective martial communities.

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The City of Chandler (the City) is a municipal corporation created under
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the laws of the State of Arizona. The City operates and maintains a law enforcement
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agency known as the City of Chandler Police Department.
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The City is under a duty to run its policing activities in a lawful manner so
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as to preserve the peace of the City of Chandler and to preserve for its citizens the rights,
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privileges, and immunities guaranteed and secured to them by the Constitutions and laws
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of the United States and the State of Arizona.
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The City has established or delegated to the City of Chandler Police
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Department the responsibility for establishing and implementing policies, practices,
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procedures and/or customs used by law enforcement officers employed by the City of
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Chandler, including Defendants Brian Hawkins and William Nocella (collectively, the
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Defendant Officers), regarding the investigation, detention, arrest, and use of force
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during law enforcement operations.
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Every act and omission of the Defendants detailed in this Complaint was
performed under the color and pretense of the Constitutions, statutes, ordinances,
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regulations, customs and uses of the United States of America, the State of Arizona, and
the City of Chandler, by virtue of their authority as law enforcement officers, and within
the course and scope of their employment with the City of Chandler Police Department.
FACTUAL BACKGROUND
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On May 8, 2015, City of Chandler police officers Brian Hawkins and
Jeremy Logan responded to the Stone Oaks Apartment complex (the Complex) at 2450
W. Pecos Road, Mesa, AZ 85202 to conduct an investigation into a single-vehicle
collision in the Complexs parking lot.
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Upon arrival the officers observed a Jeep Grand Cherokee that appeared to
have collided with a tree in the complexs parking lot.
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exit the vehicle.
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The officers contacted the driver, Zoe Beth Shunick, and requested that she
Ms. Shunick indicated she did not wish to exit the vehicle, asking the
Officers multiple times whether she was being detained and was under arrest.
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Plaintiff, a resident of Stone Oaks Apartments and Ms. Shunicks boyfriend,
heard the commotion and came outside to see what was happening.
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Defendant Hawkins explained to Plaintiff that Ms. Shunick had crashed the
car and that they were trying to convince her to exit the vehicle.
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Defendant Hawkins then requested that Plaintiff assist him with the
investigation by attempting to convince Ms. Shunick to exit the vehicle.

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Plaintiff readily complied with the officers request, suggesting to Ms.
Shunick that she exit the vehicle. Ms. Shunick then complied.
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As Ms. Shunick walked away from her vehicle, Officer Logan stepped
behind her to close the drivers side door, turning his back on her.
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When Officer Logan turned around he immediately delivered a two-handed,
open-fist strike to Ms. Shunicks chest, knocking her back and onto the ground.
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Upon seeing Officer Logan assault Ms. Shunick, Plaintiff spontaneously
exclaimed hey!
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Defendant Hawkins responded by grabbing Plaintiffs right wrist, jamming
his forearm into Plaintiffs throat, and slammed Plaintiff against the vehicle, bending him
backwards over the vehicles hood.
29.
Plaintiff immediately put his hands up in the air in a surrender posture,
attempting to comply with Defendant Hawkins commands and asking for an explanation
of what Defendant Hawkins was doing to him.
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30.
Defendant Hawkins provided no explanation, instead persisting with the
physical force and yelling.

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Plaintiff continued to protest that he did not do anything, exclaiming, this is
not fair.
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Defendant Hawkins responded by rhetorically asking Plaintiff do you want
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to get fucked up?!, before grabbing Plaintiff by his throat, lifting him off of the vehicle
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and slamming him against the car again.
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Plaintiff again protested, announcing, Im not doing anything as
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Defendant Hawkins controlled both of Plaintiffs wrists in pressure holds and tackled him
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to the ground.
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34.
Defendant Hawkins then wrenched Plaintiffs arms behind his back and
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handcuffed him.
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35.
Plaintiff, compliant with Defendant Hawkins but having just been assaulted
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for no reason, called out for help and requested that somebody record what was happening
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to him.
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36.
After handcuffing Plaintiff, Defendant Hawkins assisted Officer Logan with
Ms. Shunick.
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Defendant Hawkins then took some time to compose himself before

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returned to help escort Plaintiff to the curb.

38.
Defendant Hawkins engaged Plaintiff, apologizing for his conduct and
asking if he was injured.

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When Plaintiff indicated that he did not believe he was injured, Defendant
Hawkins expressed surprise, suggesting that he expected Plaintiff to be more seriously
injured given the amount of force employed.
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40.
Defendant Hawkins then explained that he understood why Plaintiff reacted
how he did and that he was not charging [him] with any crimes.
41.
After escorting Plaintiff to the curb, Defendant Hawkins stated for a second
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time that he was not charging Plaintiff with any crimes, explaining that he only detained
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Plaintiff because he believed his relationship with Ms. Shunick and his likely desire to
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protect his girlfriend could have placed Officer Logan at risk.
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42.
Within minutes a number of back-up officers arrived including City of
Chandler Police Sergeant William Nocella.

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Upon information and belief, Defendant Nocella is Defendant Hawkins
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supervisor and, as such, has the authority, responsibility, and obligation to provide
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training and guidance to Defendant Hawkins.
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44.
Defendant Hawkins sought out Defendant Nocella to brief him on the level
of force he had used with Plaintiff.

45.
Defendant Hawkins explained to Defendant Nocella that he pile-drived
[Plaintiff], back-first into the top of [the] car.

46.
Upon hearing the explanation, Defendant Nocella pointed his flashlight at
Plaintiff sitting on the curb and stated, so he can go ahead and go to jail, right?
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Defendant Hawkins responded by indicating he had no objection to Plaintiff
being released without citation.
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48.
Defendant Nocella then instructed Defendant Hawkins that his proposal to
release Plaintiff without a citation was not an option. Defendant Nocella specifically
instructed Defendant Hawkins as follows:
Once the handcuffs go on, he goes to jail. So Ill ask it

again. Do you want to unhandcuff him and get sued
again or do you want to put him in jail for what he
shouldnt have done. If you date an animal, this kind of
shit happens. So he decides to help an animal and not
act like a law abiding citizen, his sorry ass goes to jail.
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49.
Defendant Hawkins sought input from Defendant Nocella about the crimes
for which he could cite Plaintiff.

50.
Defendant Nocella, who arrived after Plaintiff was already handcuffed and
seated on the curb and who had not observed any of the conduct, responded [h]indering
[prosecution] not following orders whatever. You were here.
51.
Defendant Nocella then instructed Defendant Hawkins to lie, if necessary,
in order to find a crime with which to charge Plaintiff, as long as Defendant Hawkins got
him in a police car on his way to jail immediately: If you can make the stretch, if he
raised his voice above what mine is now, he goes for dis[orderly] con[duct]. But hes
going in a patrol car in the next five [minutes].
52.
Unwilling to acknowledge that he had acted improperly, Defendant
Hawkins arrested Plaintiff, transported him to jail, and cited him for violating section 1111 of the Chandler City Code.
53.
Section 11-11 of the Chandler City Code provides as follows: Every
person who willfully resists, delays or obstructs any public officer in the discharge or
attempt to discharge any duty or his office or who fails to obey any lawful order of any
public officer is guilty of a misdemeanor.
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54.
There was no factual basis to support this charge, or probable cause to
justify it, and it was made against Plaintiff solely in an effort to cover-up the Defendants
unconstitutional actions.
55.
Defendants Hawkins and Nocella engaged in a course of conduct designed
to cover up their unconstitutional actions in violation of Plaintiffs constitutional rights by
submitting false reports and charges against him.
56.
Defendants Hawkins and Nocella caused Plaintiff to be arrested, transported
to Chandler City Jail, booked, and held in custody for approximately 14 hours before he
was released.
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57.
Plaintiff appeared in Chandler City Court on the date scheduled, and learned
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that the City of Chandler Prosecutors Office was offering him the opportunity to enter
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into a plea agreement before receiving discovery.
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58.
Plaintiff rejected the plea agreement, refusing to resolve the case until he
received discovery from the State.

59.
On numerous occasions Plaintiff demanded the footage from Defendant
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Hawkins body camera, which Plaintiff remembered being told was recording that night
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(the Video).
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60.
After significant delay, the City of Chandler Prosecutors Office finally
provided the Video to Plaintiff.

61.
The Video exonerated Plaintiff, showing that not only did he not interfere
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with a police investigation but, to the contrary, had actually assisted the investigation by,
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at Defendant Hawkins request, convincing Ms. Shunick to exit the vehicle.
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After observing the Video, the City of Chandler Prosecutors office
dismissed the charges against Plaintiff.
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FIRST CLAIM FOR RELIEF

42 U.S.C. 1983 Excessive Force in Violation of Fourth and Fourteenth
Amendments
(Against Defendant Hawkins Only)
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paragraphs 1 through 62 as if they were fully set forth herein.

64.
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42 U.S.C section 1983 provides, in relevant part, as follows:

Every person, who under color of any statute, ordinance,
regulation, custom or usage of any state or territory of the
District of Columbia subjects or causes to be subjected any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges
or immunities secured by the constitution and law shall be
liable to the party injured in an action at law, suit in equity, or
other appropriate proceeding for redress . . .
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Plaintiff hereby incorporates by reference the allegations contained in
65.
Plaintiff is a citizen of the United States; Defendant Hawkins is a person for
the purposes of 42 U.S.C. 1983.

66.
Defendant Hawkins was, at all times relevant hereto, acting under the color
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of law in his capacity as a City of Chandler police officer, and his acts and omissions were
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conducted within the scope of his official duties or employment.
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67.
At the time of the complained-of events, the Fourth and Fourteenth
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Amendments to the United States Constitution clearly established Plaintiffs right to be
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secure in his person from unreasonable seizure through excessive force.
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68.
At the time of the complained-of events, any reasonable police officer
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would have known that the Constitution clearly establishes the right of American citizens
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to be secure in their persons from unreasonable seizure through excessive force.
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69.
Defendant Hawkins actions and use of force, as described herein, were
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objectively unreasonable in light of the facts and circumstances confronting him and
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violated Plaintiffs rights.
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70.
Defendant Hawkins actions and use of force, as described herein, were also
malicious and/or involved reckless, callous, and deliberate indifference to Plaintiffs
federally protected rights.
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71.
Under the circumstance, the force Defendant Hawkins used against Plaintiff
shocks the conscience and violated Plaintiffs rights.

72.
Defendant Hawkins unlawfully seized Plaintiff by means of objectively
unreasonable, excessive and conscious-shocking physical force, thereby unreasonably
restraining Plaintiff of his freedom.
73.
Defendant Hawkins engaged in the above-described conduct willfully,
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maliciously, in bad faith, with willful indifference to and in reckless disregard of
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Plaintiffs federally protected constitutional rights, and with conscious awareness that he
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would cause Plaintiff severe physical and emotional injuries.
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74.
Defendant Hawkins acts and/or omissions were moving forces behind
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Plaintiffs injuries, intentionally depriving Plaintiff of his constitutional rights and causing
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him other damages.
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75.
Defendant Hawkins is not entitled to qualified immunity for the conduct
complained of in this Complaint.

76.
At all times relevant to this Complaint Defendant Hawkins was acting
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pursuant to municipal custom, policy, decision, ordinance, regulation, widespread habit,
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usage, or practice in his actions pertaining to Plaintiff.
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77.
As a proximate result of Defendant Hawkins unlawful conduct, Plaintiff
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suffered injuries and other damages and losses as described herein entitling him to
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compensatory, economic, consequential and special damages in an amount to be
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determine at trial.
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Plaintiff is further entitled to attorneys fees and costs pursuant to 42 U.S.C.
1988, pre-judgment interest and costs as allowable by federal law.

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79.
In addition to compensatory, economic, consequential and special damages,
Plaintiff is entitled to punitive damages against Defendant Hawkins under 42 U.S.C.
1983, in that the actions of this Defendant were taken maliciously, willfully, or with a
reckless disregard of Plaintiffs Constitutional rights.
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SECOND CLAIM FOR RELIEF

42 U.S.C. 1983 Malicious Prosecution in Violation of Fourth and
Fourteenth Amendments
(Against Defendants Hawkins and Nocella Only)
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82.
Plaintiff is a citizen of the United States; both of the Defendant Officers are
persons for the purposes of 42 U.S.C. 1983.

83.
The Defendant Officers, at all times relevant hereto, were acting under the
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color of law in their respective capacities as City of Chandler police officers and their acts
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or omissions were conducted within the scope of their official duties or employment.
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Amendments to the United States Constitution clearly established Plaintiffs right to be
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free from criminal prosecution without probable cause under the Fourth Amendment.
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to be free from criminal prosecution without probable cause.

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86.
The Defendant Officers violated these rights when they conspired and/or
acted in concert to institute, procure, and continue a criminal proceeding against Plaintiff
for violation of Section 11-11 of the Chandler City Code that never occurred.
87.
The Defendant Officers engaged in the above-described conduct willfully,
maliciously, in bad faith, and in reckless disregard of Plaintiffs federally protected
constitutional rights.
88.
The procurement of prosecution against Plaintiff, for allegations the
Defendant Officers knew to be false, was malicious, shocking, and objectively
unreasonable in light of the circumstances.
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Those criminal proceedings terminated in Plaintiffs favor when the City of
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Chandler Prosecutors Office voluntarily dismissed the charges without any compromise
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by Plaintiff, reflecting a prosecutorial judgment that there was not even probable cause to
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maintain the charges against Plaintiff.
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90.
The acts and omissions of the Defendant Officers as described herein
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intentionally deprived Plaintiff of his constitutional and statutory rights and caused him
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other damages.
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91.
The Defendant Officers are not entitled to qualified immunity for the
complained-of conduct.
92.
At all times relevant hereto the Defendant Officers were acting pursuant to
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municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or
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practice with respect to their actions pertaining to Plaintiff.
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93.
As a proximate result of the Defendant Officers unlawful conduct, Plaintiff
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has suffered actual injuries, and other damages and losses as described herein entitling
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him to damages in amounts to be determined at trial.
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94.

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95.
In addition to compensatory, economic, consequential, and special damages,
Plaintiff is entitled to punitive damages against the Defendant Officers under 42 U.S.C.
1983, in that the actions of each of these defendants were taken maliciously, willfully or
with a reckless or wanton disregard of Plaintiffs constitutional rights.
THIRD CLAIM FOR RELIEF

Violation of 42 U.S.C. 1983 Unlawful Arrest and Detention in Violation of Fourth
and Fourteenth Amendments
(Against Defendants Hawkins and Nocella Only)
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96.
paragraphs 1-95 as if they were fully set forth herein.

97.
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98.
Plaintiff is a citizen of the United States; Defendant Officers are persons for
the purposes of 42 U.S.C. 1983.

99.
At all times relevant hereto the Defendant Officers were acting under the
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color of law in their capacity as City of Chandler police officers and their acts or
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omissions were conducted within the scope of their official duties or employment.
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100.
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Amendments clearly established Plaintiffs right to be free from arrest and detention
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without an officer having probable cause to believe the citizen had committed a crime
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(hereinafter unlawful arrest and detention).
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101.
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to be free from unlawful arrest and detention.

102.
The Defendant Officers violated Plaintiffs rights when they conspired
and/or acted in concert to secure false charges against him, arrest him, and cause him to be
booked into jail and held in custody for 14 hours despite their knowledge that they lacked
probable cause for doing so.
103.
The Defendant Officers engaged in the conduct described by this Complaint
willfully, maliciously, in bad faith, and in reckless disregard of Plaintiffs federally
protected constitutional rights.
104.
The arrest and imprisonment of Plaintiff for allegations the Defendant
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Officers knew to be false was malicious, shocking, and objectively unreasonable in light
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of the circumstances.
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105.
The acts and omissions of the Defendant Officers as described herein
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intentionally deprived Plaintiff of his constitutional and statutory rights and caused him
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other damages.
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106.
The Defendant Officers are not entitled to qualified immunity for the
complained-of conduct.
107.
At all times relevant hereto the Defendant Officers were acting pursuant to
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municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or
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practice with respect to their actions pertaining to Plaintiff.
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108.
As a proximate result of the Defendant Officers unlawful conduct, Plaintiff
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has suffered actual injuries, and other damages and losses as described herein entitling
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him to damages in amounts to be determined at trial.
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109.

110.
Plaintiff is entitled to punitive damages against the Defendant Officers under 42 U.S.C.
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1983, in that the actions of each of these defendants were taken maliciously, willfully or
with a reckless or wanton disregard of Plaintiffs constitutional rights.
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FOURTH CLAIM FOR RELIEF

Violation of 42 U.S.C. 1983 Deliberately Indifferent Policies, Practices, Customs,
Training, and Supervision in violation of the Fourth and Fourteenth Amendments
(Against Defendant Nocella and City of Chandler Only)
111.

112.
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113.
Plaintiff is a citizen of the United States; Defendants to this claim are
persons for the purposes of 42 U.S.C. 1983.

114.
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Amendments to the United States Constitution guaranteed Plaintiff the right to be free
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from unlawful arrest, unlawful detention, and malicious prosecution under the Fourth and
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Fourteenth Amendments.
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115.
At the time of the complained-of events, Defendants Nocella and City of
Chandler knew or should have known of these rights.

116.
The acts or omissions of Defendants Nocella and City of Chandler, as
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described herein, deprived Plaintiff of his constitutional and statutory rights and caused
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him other damages.
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117.
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The acts or omissions of Defendants Nocella and City of Chandler as
described herein intentionally deprived Plaintiff of his constitutional and statutory rights
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and caused him other damages.

118.
Defendants Nocella and City of Chandler are not entitled to qualified
immunity for the complained-of conduct.

119.
Defendants Nocella and City of Chandler were, at all times relevant hereto,
policymakers for the City of Chandler Police Department and, in that capacity, established
policies, procedures, customs, and/or practices for the same.
120.
As a supervisor responsible for directing Defendant Hawkins with respect to
the arrest, detention, and criminal citation of Plaintiff, Defendant Nocella acted as a
policymaker for the City of Chandler Police Department.
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121.
Defendant City of Chandler has developed and maintained policies,
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procedures, customs, and/or practices exhibiting deliberate indifference to the
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constitutional rights of citizens, which were moving forces behind and proximately caused
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the violations of Plaintiffs constitutional and federal rights as set forth herein and in the
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other claims, resulted from a conscious or deliberate choice to follow a course of action
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among various available alternatives.
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122.
Defendant City of Chandler has created and tolerated an atmosphere of
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lawlessness, having developed and maintained long-standing, department-wide customs,
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law enforcement-related policies, procedures, customs, practices, and/or failed to properly
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train and/or supervise its officers in a manner amounting to deliberate indifference to the
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constitutional rights of Plaintiff and of the public.
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123.
More specifically, Defendant City of Chandler has developed and
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maintained, permitted to propagate and grow, and has a department-wide custom of
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arresting, detaining, and ultimately charging citizens with crimes in an effort to insulate
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itself from claims of excessive force, even if doing so requires fabrication of factual
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evidence.
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124.
The improper training and supervision provided by Defendant Nocella and
deliberate indifference of the City of Chandler both resulted from a conscious or
deliberate choice to follow a course of action from among various alternatives.
125.
As a direct result of Defendants Nocella and City of Chandlers unlawful
conduct, Plaintiff has suffered injuries, and other damages and losses as described herein
entitling him to compensatory and special damages, in amounts to be determined at trial.
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126.
FIFTH CLAIM FOR RELIEF

Assault and Battery under Arizona law
(Against Defendants Hawkins and City of Chandler Only)
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127.

128.
As set forth herein, during his contact with Plaintiff, Defendant Hawkins
caused harmful or offensive contact with Plaintiff.

129.
As set forth herein, Defendant Hawkins acted outside the scope of his
authority to use lawful force, and therefore had no legal right to cause the harmful or
offensive contact with Plaintiff.
130.
As a direct and proximate cause of Defendant Hawkins harmful and
offensive contact, Plaintiff was injured and suffered other damages in an amount to be
proven at trial.
131.
As set forth herein, Defendant Hawkins was acting within the course and
scope of his employment as a police officer for the City of Chandler when he made
contact with Plaintiff: Defendant Hawkins was performing an act he was authorized to
perform; he was on-duty working in his regular job capacity; and his actions were
motivated at least in part by a purpose to serve the City of Chandler.
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132.
Because Defendant Hawkins was acting within the course and scope of his
employment for the City of Chandler, Defendant City of Chandler is vicariously liable for
the damages caused by his tortious conduct.
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SIXTH CLAIM FOR RELIEF
Abuse of Process under Arizona law
(Against All Defendants)
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133.

134.
The criminal justice system is designed for the purpose of prosecuting
individuals that the State has probable cause to believe committed a criminal offense.
135.
As set forth herein, the Defendant Officers willfully used the criminal
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justice system to accomplish an ulterior purpose for which the process or procedure was
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not designed namely, causing him to be charged with a criminal offense in an effort to
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discourage, dissuade, or procedurally preclude Plaintiff from filing suit against Officer
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Hawkins and/or the City of Chandler for excessive force.
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136.
The improper purpose set forth in the forgoing paragraph was, in fact, the
Defendant Officers primary purpose in citing Plaintiff for a criminal offense.

137.
As a direct and proximate result of Defendants misuse of the legal process
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or procedure Plaintiff was injured and suffered other damages in an amount to be proven
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at trial.
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138.
As set forth herein, the Defendant Officers were acting within the course
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and scope of their employment as police officers for the City of Chandler when decided to
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charge Plaintiff with a criminal offense: The Defendant Officers were performing acts
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they were authorized to perform; were on-duty, working in their regular job capacity; and
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their actions were motivated at least in part by a purpose to serve the City of Chandler.
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139.
Because the Defendant Officers were acting within the course and scope of
their employment for the City of Chandler, Defendant City of Chandler is vicariously
liable for the damages caused by their tortious conduct.

140.
Plaintiff is entitled to punitive damages against the Defendant Officers under Arizona law
because both of these defendants took deliberate, intentional, and malicious action against
him.
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SEVENTH CLAIM FOR RELIEF
Malicious Prosecution under Arizona law
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141.

142.
As set forth herein, the Defendant Officers initiated and/or took active part
in the criminal prosecution against Plaintiff.

143.
As set forth herein, the criminal prosecution against Plaintiff was terminated
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in Plaintiffs favor when the City of Chandler voluntarily dismissed the criminal
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complaint against him without compromise or plea agreement of any kind.
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144.
As set forth herein, the Defendant Officers acted with malice, causing him
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to be charged with a criminal offense in an effort to discourage, dissuade, or procedurally
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preclude Plaintiff from filing suit against Officer Hawkins and/or the City of Chandler for
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excessive force.
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145.
As a direct and proximate result of the Defendant Officers malicious
conduct, Plaintiff was injured and suffered damages in an amount to be proven at trial.
146.
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and scope of their employment as police officers for the City of Chandler when decided to
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charge Plaintiff with a criminal offense: The Defendant Officers were performing acts
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they were authorized to perform; were on-duty, working in their regular job capacity; and
their actions were motivated at least in part by a purpose to serve the City of Chandler.
147.
Because the Defendant Officers were acting within the course and scope of
their employment for the City of Chandler, Defendant City of Chandler is vicariously
liable for the damages caused by their tortious conduct.

148.
Plaintiff is entitled to punitive damages against the Defendant Officers under Arizona law
because both of these defendants took deliberate, intentional, and malicious action against
him.
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EIGHTH CLAIM FOR RELIEF
Negligence
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149.

150.
The Defendants owed Plaintiff a duty of reasonable care, namely, the duty
to act as reasonable police officers under the circumstances.

151.
Defendant Hawkins breached his duty of reasonable care to Plaintiff when,
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among other things, he: placed Plaintiff into a potentially dangerous situation, namely, a
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pending investigation, when he requested Plaintiffs assistance in removing Ms. Shunick
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from her vehicle; used unreasonable and unnecessary force against Plaintiff; caused
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Plaintiff to be detained in handcuffs on the sidewalk; caused Plaintiff to be arrested and
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transported to jail; caused Plaintiff to be booked into jail and detained for 14 hours; and
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caused Plaintiff to be cited and prosecuted for a criminal violation without probable cause.
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152.
A reasonable officer in Defendant Hawkins position would not have taken
these actions.
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153.
Defendant Nocella breached his duty of reasonable care to Plaintiff when,
among other things, he: instructed Defendant Hawkins to charge Plaintiff with a criminal
offense even if though there was no probable cause to maintain such a charge; caused
Plaintiff to be arrested and transported; caused Plaintiff to be booked into jail and detained
for 14 hours; and caused Plaintiff to be cited and prosecuted for a criminal violation
without probable cause.
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154.
A reasonable officer in Defendant Nocellas position would not have taken
these actions.
155.
Defendant City of Chandler breached its duty of reasonable care to Plaintiff
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when, among other things, it: permitted Defendant Hawkins to be in a position to injure
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Plaintiff despite prior issues, including at least one prior lawsuit for excessive force;
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permitted Defendant Nocella to be in a supervisory position where he could give
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unconstitutional orders; and failed to provide adequate and reasonable training and
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supervision to these officers about proper methodologies in using force, conducting arrests
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and detentions, and asserting criminal charges against citizens.
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156.
A reasonable city or municipality in the City of Chandlers position would
not have undertaken these acts and omissions.

157.
As a direct and proximate result of the Defendant Officers acts and
omissions, Plaintiff was injured and suffered damages in an amount to be proven at trial.
158.
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and scope of their employment as police officers for the City of Chandler during the sum
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of their involvement in this matter: The Defendant Officers were performing acts they
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were authorized to perform; were on-duty, working in their regular job capacity; and their
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actions were motivated at least in part by a purpose to serve the City of Chandler.
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159.
In addition to its independent and direct liability for negligence, because the
Defendant Officers were acting within the course and scope of his employment for the
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City of Chandler, Defendant City of Chandler is vicariously liable for the damages caused
by the Defendant Officers tortious conduct.
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WHEREFORE, Plaintiff Luke Hein hereby requests that the Court enter judgment
against Defendants as follows:
a. For damages in an amount to compensate Plaintiff fairly and fully for the
numerous violations of his Constitutional Rights;
b. For general, consequential, special, and compensatory damages, including
but not limited to his pain and suffering, mental anguish, lost wages, and
lost future income;
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c. For nominal damages as provided for by law;
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d. For prejudgment interest on all liquidated sums;
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e. For attorneys fees under 42 U.S.C. 1983 and 1988, and as provided for
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by Arizona law;
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f. For Plaintiffs costs and other expenses incurred in this action; and
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g. Such other and further relief as the Court deems just.
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DATED this 27th day of July, 2015.

THE PEOPLES LAW FIRM
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By: /s/ Stephen D. Benedetto

Stephen D. Benedetto
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CERTIFICATE OF SERVICE
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I hereby certify that on the 27th day of July, 2015, the foregoing was
electronically filed with the Clerk of the Court utilizing the CM/ECF filing system,
and that on said date I sent via electronic mail and U.S. Mail a copy of the foregoing
to:
Thomas A. Lloyd, Esq.

Assistant City Attorney
Chandler City Attorneys Office
MS602
PO Box 4008
Chandler, AZ 85244-4008
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/s/ Stephen D. Benedetto

Stephen D. Benedetto
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Hein V Chandler Amended Complaint

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Hein V Chandler Amended Complaint

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Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 1 of 23

Stephen D. Benedetto (#022349)

FOR THE DISTRICT OF ARIZONA

Case No. 2:15-cv-01162-DJH

FIRST AMENDED COMPLAINT

City of Chandler, an Arizona municipal

(Assigned to the Honorable Diane J.

Hein, through undersigned counsel, hereby alleges as follows:

This is a civil rights complaint brought by Plaintiff Luke Hein under 42

Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 2 of 23

around the City of Chandler, Arizona on May 8, 2014 and thereafter.

individual and official capacities.

Defendant City of Chandler is sued both as a result of the actions

Plaintiff brings this action against Defendants pursuant to 42 U.S.C. 1983

law of the State of Arizona.

Jurisdiction is founded upon 28 U.S.C. 1331, 1343(a)(3)(4) and 1367(a).

pursuant to 28 U.S.C. 1367(a).

U.S.C. 1983 and 1988.

Plaintiff Luke Hein is an unmarried man. He is a citizen and resident of the

United States, domiciled in Maricopa County, Arizona.

Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 3 of 23

married couple residing in Maricopa County, Arizona.

capacity and in his official capacity as a City of Chandler Police Officer.

At all times material to the

in his official capacity as a City of Chandler Police Officer.

At all relevant times to this Complaint, Defendants Hawkins and Nocella

were acting in furtherance of their respective martial communities.

The City of Chandler (the City) is a municipal corporation created under

agency known as the City of Chandler Police Department.

of the United States and the State of Arizona.

The City has established or delegated to the City of Chandler Police

Department the responsibility for establishing and implementing policies, practices,

during law enforcement operations.

Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 4 of 23

On May 8, 2015, City of Chandler police officers Brian Hawkins and

W. Pecos Road, Mesa, AZ 85202 to conduct an investigation into a single-vehicle

collision in the Complexs parking lot.

have collided with a tree in the complexs parking lot.

exit the vehicle.

Plaintiff, a resident of Stone Oaks Apartments and Ms. Shunicks boyfriend,

investigation by attempting to convince Ms. Shunick to exit the vehicle.

Plaintiff readily complied with the officers request, suggesting to Ms.

When Officer Logan turned around he immediately delivered a two-handed,

Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 5 of 23

Upon seeing Officer Logan assault Ms. Shunick, Plaintiff spontaneously

Defendant Hawkins responded by grabbing Plaintiffs right wrist, jamming

backwards over the vehicles hood.

Plaintiff immediately put his hands up in the air in a surrender posture,

of what Defendant Hawkins was doing to him.

Defendant Hawkins provided no explanation, instead persisting with the

physical force and yelling.

Plaintiff continued to protest that he did not do anything, exclaiming, this is

Defendant Hawkins responded by rhetorically asking Plaintiff do you want

and slamming him against the car again.

Plaintiff again protested, announcing, Im not doing anything as

After handcuffing Plaintiff, Defendant Hawkins assisted Officer Logan with

Defendant Hawkins then took some time to compose himself before

Case 2:15-cv-01162-DJH Document 6 Filed 07/27/15 Page 6 of 23

returned to help escort Plaintiff to the curb.

Defendant Hawkins engaged Plaintiff, apologizing for his conduct and

asking if he was injured.

Hawkins expressed surprise, suggesting that he expected Plaintiff to be more seriously

injured given the amount of force employed.