Professional Documents
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Gregory Heard v. Greg Dulayev, Et. Al.
Gregory Heard v. Greg Dulayev, Et. Al.
GREGORY HEARD
Plaintiff,
v.
Defendants.
______________________________________________________________________________
Plaintiff Gregory Heard, by and through his attorneys, HOLLAND, HOLLAND EDWARDS &
GROSSMAN, P.C., complains against Defendants and request a trial by jury as follows:
I. INTRODUCTION
was subjected to unreasonable and excessive force by Officer Dulayev, who tased him and
shoved his face into the dirt while he was unarmed and obviously complying with officer
commands to surrender.
2. After tasing and shoving Mr. Heard to the ground, this Defendant, another police
officer present at the scene, and the Investigating Supervisor, knowingly prepared false police
reports in an overt effort to cover up this grossly excessive force. They thus falsely asserted that
Mr. Heard was disobeying police commands, aggressively advancing towards and threatening
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the officers, when in fact he was doing nothing at the time besides complying with the officers
3. The Denver Police Department determined that Officer Dulayevs conduct was
4. This action arises under the Constitution and laws of the United States and is
6. This case is instituted in the United States District Court for the District of
Colorado pursuant to 28 U.S.C. 1391 as the judicial district in which all relevant events and
III. PARTIES
7. At all times relevant hereto, Plaintiff Gregory Heard was a resident of the State of
8. At all times relevant hereto, Defendant Greg Dulayev was a citizen of the United
States and a resident of the State of Colorado and was acting under color of state law in his
Denvers Department of Safety is responsible for the oversight, supervision, and training of the
Denver Police Department (DPD). Denver was at all relevant times the employer of Officer
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10. Plaintiff hereby incorporates all of the forgoing paragraphs of this Complaint as if
11. Gregory Heard is a 53 year-old African American man who was homeless.
12. On June 3, 2016, Gregory Heard and another homeless man got into a fight.
13. Denver police officers Greg Dulayev and Adrian Enriquez responded to a call
14. The interactions between the officers and Mr. Heard was captured on Officer
15. Some of the initial communications between Mr. Heard and Officer Dulayev can
16. As was captured on video, when the officers arrived, Mr. Heard was in or behind
some bushes.
17. The other man had already come out from behind the bushes as he was instructed
to do by Officer Enriquez.
18. Before starting to come out from behind the bushes, Mr. Heard showed Officer
Dulayev both palms of his empty hands, clearly demonstrating on the video that he was unarmed
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This Video is attached to the Complaint as Exhibit 1.
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19. Mr. Heard at one point asks Officer Dulayev are you ready, asking whether it
21. Mr. Heard responds, My hands are up, man. My hands are up, okay?
22. Mr. Heards empty hands and surrendering gestures were clearly visible to Officer
Dulayev.
23. Officer Dulayev admitted in his police report that he did not observe any
24. Officer Dulayev instructed Mr. Heard to come out from behind the bushes.
25. Officer Dulayev stated as follows: Crawl out. Crawl out on your hands and
knees.
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26. Officer Dulayev pointed his taser at Mr. Heard, and then needlessly threatened
27. Before his was tased, Mr. Heard can be heard pleading: Dont tase me man.
28. In proceeding to come out from behind the bushes as instructed, Mr. Heard
crawled out, stood up slowly, and ducked a little bit in order to avoid an overhanging branch
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29. Having commanded him to come out from the bushes, Officer Dulayev then
suddenly yelled stop right there while Mr. Heard was following his previous command and
30. Immediately thereafter, as Mr. Heard was still in the process of taking a couple
steps forward in order to comply with the officers command from seconds ago that he get out
31. Immediately after being tased, Mr. Heard cried out in pain and clutched his
32. He collapsed to his knees in pain, completely in shock and disabled by the taser.
33. Officer Dulayev then jumped on him and aggressively shoved his face into the
dirt.
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34. While placing him in handcuffs, these officers repeatedly falsely accused him of
resisting despite Mr. Heard then being disabled on the ground from just having been tased, in
36. Mr. Heard was not resisting but simply trying to breathe, while writhing on the
ground in pain.
37. He kept begging to be let up or rolled onto his stomach and saying I cant
breathe. He felt like he was going to die and could not get air.
38. Officer Dulayev ignored these statements and at one point callously remarked,
39. Mr. Heard was bleeding from his mouth and nose from being forcefully taken
40. Mr. Heard was never given a chance to peacefully surrender and comply with
41. It was not more than five seconds from when Officer Dulayev can be heard on
video telling him to come out from the bushes to when he was needlessly tased in the chest and
42. At no time did Mr. Heard appear agitated or aggressive towards Officer Dulayev.
43. At no time did Mr. Heard demonstrate any sort of physical resistance or try to
44. Mr. Heards facial expression and body movements were all non-threatening.
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45. His arms were at his sides and his body language clearly indicated he was in no
46. Nevertheless, as Mr. Heard was trying to comply with officer commands to come
out from the bushes and surrender, Officer Dulayev tased him in his abdomen from a close
range.
47. Mr. Heard was taken to St. Presbyterian Hospital following this excessive use of
force. The doctor found in addition to being tased, Mr. Heard had abrasions on his nose from
49. This use of force on an unarmed, non-aggressive, and surrendering arrestee was
grossly excessive.
50. Mr. Heard was not charged with any crime directed at law enforcement.
51. Following this incident, Officer Dulayev, Officer Enriquez, and the City of
52. Thus, Officer Dulayev falsely reported the circumstances surrounding the tasing,
stating:
I told the suspect to crawl out to me on his hands and knees; however he jumped
up and started coming towards me. Once the suspect was out of the bushes he was
still walking towards me, I told him to stop and put his hands up, but he kept
advancing. I took a couple of steps back as I told the suspect to stop one more
time. The suspect did not comply with my orders and advance towards me, at that
time I deployed my Tazer, striking the suspect in his chest area.
53. Officer Enriquez also participated in this cover up, falsely stating:
The officers attempted to detain the defendant but he refused officers orders to get
on the ground. Instead he advanced towards officers in an aggressive manner and
was tased in order to stop him. While on the ground, the defendant was resisting
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officers and would not put his hands behind his back after officers ordered him
numerous times to stop resisting and put hi[s] hands behind his back.
54. Despite video evidence to the contrary, Investigating Supervisor Sgt. J. Maher
55. Thus, on June 3, 2016, the same day as this incident, Sgt. J. Maher issued a
56. Sergeant Maher also falsely reported that: As Heard exited he was still active
[sic] aggressive and did not comply with Officer Dulayevs commands to stop advancing on him.
Officer Dulayev had to take several steps back to avoid being potentially assaulted by Heard.
Heard did not stop walking towards Officer Dulayev at which time he deployed his Taser at the
57. Officer Dulayev did not take several steps back to avoid an assault.
58. Yet Sgt. Maher falsely claimed that the officers body worn camera footage on
Denver Failed to Discipline Officer Dulayev in This Case and Found That He Acted in
Accordance with His Training
59. In his Supervisors Use of Force Report, Sgt. Maher determined that Officer
60. Sgt. Maher concluded his report by stating: The force used against Heard was
appropriate due to his level of aggression. The less lethal system incapacitated Heard quickly and
prevented further injuries to both the suspect and officers. The force was both reasonable and
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61. The Command Officer also signed off on this Supervisor Use of Force Report,
62. Denver determined this despite the video evidence contradicting both of these
officers accounts.
63. The Internal Affairs Bureau (IAB) investigated this incident and continued to
misrepresent or mischaracterize the video footage and statements of Mr. Heard and officers with
64. Notably, IAB reported that Officer Enriquez interviewed an unknown male who
claimed to be video recording the arrest of Greg Heard on a cell phone but did not obtain this
65. Thus, contrary to well-established police practices, officers did not obtain a
statement from this unbiased eyewitness to these events who apparently had additional video
footage of the incident in question. They did not even obtain his information so this witness
66. Nevertheless, Denver, through IAB and command staff, continued to ratify this
unconstitutional use of force, showing its deliberately indifferent customs, training and
supervision, by completely exonerating him with respect to the use of force and all of his actions
67. The Conduct Review Office of DPD specifically concluded that: Officer
Dulayevs actions were within the policies, procedures, rules, regulations and directives of the
Department.
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68. In stark contrast, Michael Berry, a retired police officer who currently trains
Colorado law enforcement officers, strongly criticized the use of force against Mr. Heard.
69. Mr. Berry told the news media that Officer Heards first mistake was using
profanity and threatening Mr. Heard upon arriving on scene, stating: The officer is already
amped up, because hes already using curse words. He says Ill fucking tase you and thats
uncalled for. Hes heightening the situation, showing that hes out of control that hes agitated
70. Mr. Berry, who has seventeen years experience in law enforcement, further
But this guy [Heard] wasnt trying to fight the officer, he wasnt arguing with the
officer. His facial expression, his body movement, didnt display any pre-
assaultive indicators. He was getting his balance, coming out of a leaned position,
and even if he wasnt tripping outright, he wasnt on solid footing. And hes a big
man. It looks like hes just trying to stand straight up, and hes talking while hes
walking, kind of trying to explain himself like I didnt start it or something
like that. So hes doing a lot of things hes multi-tasking and trying to process
all of this information. But the officer didnt give him time to process it.
His arms are at his sides, hes unarmed, his chest isnt expanded, his shoulders
arent back, his eyebrows arent in a frowning position. He doesnt curse the
officer. Hes giving all of these cues that he doesnt want conflict. And then,
when he gets tased, you can see by the way his body and face react that hes like
What the hell just happened? If youd have shot him with a gun, he wouldnt
have been more surprised.
Denvers Custom, Practice, and Policy of Excessive Force & Unlawful Seizures
71. Plaintiffs injury at the hands of Denver law enforcement officers is yet another
example of the overwhelmingly common use of excessive force by Denver law enforcement
throughout the past months and years that has been tolerated by Denver.
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72. Denvers failure to train and discipline Officer Dulayev with respect to this use of
73. Mr. Heards case is yet another example of the customs, habits and practices by
the Denver Police Department that condones excessive force as well as officers giving false
reports to investigators in an official records that cover up their abuses of power a practice that
continues to be tolerated by the Department and City of Denver. Here, as with many other cases,
Denver determined that Officer Dulayevs use of force was essentially textbook and on point,
when in reality, it was not in compliance with modern and well-established police training.
74. The City of Denver has created, fostered, and tolerated an environment and
culture of law enforcement brutality and deliberate indifference to the constitutional rights of
75. Denver law enforcement officers have engaged in a persistent practice of law
enforcement misconduct, and the officials responsible for assuring that such misconduct does not
occur have consistently failed to properly train, supervise, and discipline individual officers who
76. In Ortega, et al. v. City and County of Denver, et al., 944 F. Supp. 2d 1033 (D.
Colo. 2013), the U.S. District Court for the District of Colorado found that the four plaintiffs in
that case had met their burden to survive summary judgment on municipal liability as to their
claims of excessive force based on three separate theories: (1) Denvers inadequate training of
DPD Officers on use of force, (2) Denvers failure to adequately investigate complaints of DPD
Officers excessive force and discipline officers who used excessive force, and (3) Denvers
custom of tolerating DPD Officers code of silence with respect to uses of force.
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77. This finding was based on plentiful evidence presented in that case, including the
following:
78. Following the Ortega matter, then-Denver Manager of Safety Alex Martinez
publicly criticized the disciplinary process for DPD officers. In November 2012, following the
Civil Service Commissions upholding of the termination of an officer after many overturned
terminations, he stated: Thats a positive outcome, but it took a year-and-a-half to get there.
Its a sign of a system that didnt work well. Yeah, its going to spit out results in our favor
sometimes. And so Im pleased to have the success, but its merely an illustration for the need
for reform. He called for the reform of the Civil Service Commission.2
79. The evidence presented in the Ortega matter is applicable to the present situation,
where, as described above, Officer Dulayev received inadequate training, supervision, and
2
Levin, Sam. Alex Martinez, Manager of Safety, Wants Civil Service Commission Reform Despite Latest Ruling.
Westword (Nov. 1, 2012), available at http://www.westword.com/news/alex-martinez-manager-of-safety-wants-
civil-service-commission-reform-despite-latest-ruling-5863093.
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80. This culture and environment of brutality and the lack of training, supervision,
and discipline of law enforcement officers is further evidenced by, among other things, the sheer
volume of lawsuits filed against and/or legal settlements with Denver law enforcement alleging
excessive force, the involvement of dozens of different law enforcement officials in those
lawsuits, and the repeated involvement of the same officers in multiple lawsuits. For length and
notice pleading rules required of Complaints, Plaintiff does not list the many examples of the
rampant use of excessive force (including deadly force) by Denver law enforcement officers over
the years, which demonstrates the lack of any training or supervision on the part of the City and
81. Thus, courts frequently hold that Denver has a pattern and practice of failing to
train and supervise its officers in the use of excessive force. See e.g. Schreiber v. City and
Denvers motion to dismiss, which was approved by the District Judge) (the Court is not
persuaded by Defendants arguments that the purported actions taken (or not taken) by
Defendant Denver cannot rise to the level of municipal liability based on custom. Plaintiff
effectively pleads that Defendant Denvers ongoing track record of failing to investigate,
discipline, train, and supervise its officers with respect to use of force could plausibly
3
Without reprinting the laundry lists of prior cases, for example, those identified in the complaints in Booker v.
Denver, Civil Action No. 11-cv-000645-WYD-KMT, Doc. #36 and Ronquillo v. Denver, Civil Action No. 16-cv-
1664- KMT, Doc. #1, (both incorporated by this reference), it is also sufficient to recognize that in December 2014,
North Denver News examined the list of hundreds of cases within the last decade and found that Denver has the
second highest, per capita, rate of death caused by law enforcement in the country. See North Denver News article
titled: Denver has the second highest rate of death from law enforcement in the country.
https://northdenvernews.com/denver-secondhighest-rate-death-law-enforcement-country/.
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actual physical and emotional injuries, and other damages and losses as described herein,
84. Plaintiff continues to suffer ongoing emotional distress, including severe distrust
of police and society, as a result of the unreasonable excess force employed during his seizure.
85. Plaintiff is also entitled to punitive damages against Officer Dulayev to redress his
willful, malicious, wanton, reckless conduct and attempted cover-up of this civil rights violation.
86. Plaintiff hereby incorporates all of the forgoing paragraphs of this Complaint as
Every person, who under color of any statute, ordinance, regulation, custom or
usage of any state or territory or 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 . . .
88. Plaintiff is a citizen of the United States and the individual police officer
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89. Defendant, at all times relevant hereto, was acting under the color of state law in
his capacity as a Denver police officer, and his acts or omissions were conducted within the
90. At the time of the complained of events, Plaintiff had a clearly established
constitutional right under the Fourth Amendment to be secure in his person from unreasonable
91. Any reasonable police officer knew or should have known of this right at the time
92. Officer Dulayev engaged in the use of force that was objectively unreasonable in
light of the facts and circumstances confronting him, violating Mr. Heards Fourth Amendment
93. It was not objectively reasonable to tase and shove an unarmed Mr. Heard to the
ground as he was complying with the Officers commands to come out from behind the bushes,
showing his hands in a surrendering position, in no way attempting to escape or flee, and not
94. Officer Dulayev engaged in the acts and omissions described herein pursuant to
the custom, policy, and practice of Denver, which encourages, condones, tolerates, and ratifies
the use of excessive force and deprivation of constitutionally protected interests by law
enforcement officers.
95. The acts or omissions of Defendant were the legal and proximate cause of
Plaintiffs damages.
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96. As a proximate cause and result of Defendants unlawful conduct, Plaintiff has
suffered actual physical bodily and emotional injuries, and other damages and losses as described
herein entitling him to compensatory and special damages, in amounts to be determined at trial.
These injuries include, but are not limited to, loss of constitutional and federal rights, physical
97. Plaintiff is entitled to attorneys fees and costs pursuant to 42 U.S.C. 1988, pre-
Plaintiff is entitled to punitive damages against Defendant, in that his actions were taken
Plaintiff.
100. Denver failed to properly train, supervise, and discipline its employees, including
101. Denvers failure to, in its supervisory duties, adequately train, supervise, and
discipline its officers with respect to the use of excessive force is a custom, policy, or practice of
Denver and a moving force behind the constitutional violations described herein.
102. Denver has a culture of tolerating excessive force by its law enforcement officers.
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103. The constitutional violations against and harming of Plaintiff was a foreseeable
104. Denver was deliberately indifferent to the constitutional rights of its citizens by
failing to properly train, monitor, supervise, and discipline its employees with respect to the use
of excessive force. Denver could have and should have pursued reasonable methods of training,
105. Denvers policies, customs, and/or practices in failing to properly monitor, train,
supervise and discipline its employees were the moving force and proximate cause of the
106. The acts or omissions of Denver caused Plaintiff damages in that he suffered
extreme physical and mental pain during and after the assault.
107. The actions or omissions of Denver as described herein deprived Plaintiff of the
rights, privileges, liberties, and immunities secured by the Constitution of the United States of
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in his favor
and against each of the Defendants, and award him all relief allowed by law, including but not
injuries, emotional distress including but not limited to upset, anger, flashbacks, loss of
trust, humiliation, loss of enjoyment of life, and other pain and suffering on all claims
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B. Special damages including for all past and future health and
trial;
D. Attorneys fees and the costs associated with this action under 42 U.S.C. 1988;
F. Any further relief that this court deems just and proper, and any other appropriate
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