Professional Documents
Culture Documents
Lawsuit Against WVC
Lawsuit Against WVC
Sykes (#3180)
C. Peter Sorensen (#16728)
Christina D. Isom (#17244)
SYKES MCALLISTER LAW OFFICES, PLLC
311 S. State Street, Suite 240
Salt Lake City, Utah 84111
Telephone No. (801) 533-0222
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
vs.
Defendants.
Masaniai Pea, and Nonnie L. Masaniai Pea through counsel of record, complain against
Defendants as follows:
PRELIMINARY STATEMENT
of the information presently available. This is a civil rights action in which the Plaintiffs
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seek relief for Defendants' violation of their rights guaranteed by the United States
Constitution, specifically the Fourth and Fourteenth Amendments. These rights are further
secured by the Civil Rights Act of 1871, codified as 42 U.S.C. § 1983 and § 1988. This
action also seeks relief under the law, statutes and Constitution of the State of Utah,
1. This action arises under the United States Constitution and federal
law, particularly under the provisions of the Fourth and Fourteenth Amendments to the
2. This action also arises under the Constitution of the State of Utah
3. This action seeks redress for violations of the civil rights laws of the
United States, and jurisdiction is therefore invoked pursuant to 28 U.S.C. §1343 and 42
U.S.C. §1983.
5. The claims made in this Complaint occurred and arose in the State of
Utah, in this District. Venue for the federal claims is therefore proper under 28 U.S.C. §§
1391 and 1331. Venue for the State claims is proper under 28 U.S.C. §1367.
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7. This Court has authority to award costs and attorney fees pursuant to
42 U.S.C. §1988, and pursuant to the Court’s inherent power under State law.
constitutional rights secured by the Utah Constitution. This Court further has pendent
PARTIES
Cross, Davis County, Utah. Nonnie is Atonio's mother and has been legally appointed by
11. Defendant Ammon Fox (“Fox”) was at all relevant times herein an
officer with the West Valley City Police Department, a department of West Valley City,
operating in the course and scope of his employment, and under the color and guise of the
herein an officer with the West Valley City Police Department, a department of West
Valley City, operating in the course and scope of his employment, and under the color and
herein an officer with the West Valley City Police Department, a department of West
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Valley City, operating in the course and scope of his employment, and under the color and
14. Defendant Nick Green (“Green”) was at all relevant times herein an
officer with the West Valley City Police Department, a department of West Valley City,
operating in the course and scope of his employment, and under the color and guise of the
15. Defendants Doe Officers 1-10 were at all relevant times herein
officers of the West Valley City Police Department, a department of West Valley City,
operating in the course and scope of their employment, and under the color and guise of
the laws of the State of Utah. The specific identities are presently unknown, but upon
positive identification they will be properly served with process, and their individual names
will be added to this Complaint in accordance with the applicable federal rules.
Utah. West Valley City has a law enforcement branch known as the West Valley City
Police Department (“WVCPD”) which is authorized to operate by West Valley City and
the State of Utah. West Valley City funds and supervises the WVCPD and is legally
responsible for the acts of its employee officers that are within the course and scope of their
employment. West Valley City, through the actions of WVCPD Officers Fox, Faubion,
Williams, Green, and Does 1-10, is a “person” within the meaning of 42 U.S.C. § 1983.
Officers Fox, Faubion, Williams, Green, and Does 1-10 were at all times state actors.
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FACTUAL ALLEGATIONS
6, 2020. Some of the background facts occurred late in the evening of December 5, 2020.
(“Complex”). The caller reported an individual was causing a commotion in the parking
lot.
19. Fox responded to the call and arrived at the Complex to find an
22. When Atonio saw Fox, he began to walk away, toward where the
25. Just after midnight, Fox fired his taser and struck Atonio in the back.
26. Atonio immediately dropped to the road on his back, arms outward,
in the inside southbound lane of Redwood Road, with his head pointed north, so he could
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29. Once Atonio was on the road, Fox ordered him to stay where he was.
30. Atonio complied with the orders from Fox to stay in the traffic lane
33. Atonio had initially walked away and disobeyed orders by Fox, but
had taken no hostile or threatening actions as he walked, and had made no threats.
34. Atonio presented no risk of harm or serious injury to Fox, any other
35. At the point that Atonio was on his back in the inside lane of traffic
36. At that point, any potential threat Atonio posed was completely
37. Fox ordered Atonio to stay where he was in the southbound inside
39. The way Fox forced him to lay in the road with his head to the north
in the inside southbound lane, prevented Atonio from seeing on-coming traffic coming
toward him.
40. Atonio was at all times completely compliant and remained on the
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41. Fox knew cars were driving on the dark road just after midnight and
42. Fox knew that on-coming motorists would be unable to see Atonio
43. Any reasonable Officer would have known with certainty that
compelling a suspect, like Atonio, to lie on his back in a lane of highspeed traffic on
Redwood Road at midnight would subject that suspect to a very high risk of catastrophic
injury from being struck by a motorist who would not expect to encounter a person lying
44. Tasing causes the tased individual to lose all muscle control and fall
in the spot where he is tased, and remain immobile for 30-60 seconds.
45. The WVCPD policy manual and department training prohibit tasing
of someone at a location where the tased person would be at risk for harm from traffic or
other causes.
46. Any objectively reasonable officer would have known not to tase a
subject at a location where it would put the subject at risk or extreme risk of harm such as
47. Tasing is viewed by WVCPD policy and Tenth Circuit law as the use
of extreme force.
48. Tasing is only permitted under WVCPD policy and training where the
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49. Tasing is prohibited under WVCPD policy for minor offenses.
50. Prior to Fox's tasing of Atonio, Atonio had committed only very
51. Fox knew that tasing Atonio under the circumstances violated
WVCPD policy as well as his police training but chose to tase Atonio anyway.
52. Fox's actions were more than just negligent but were reckless, grossly
53. Just after Atonio was tased and had dropped to the ground, one car
barely missed striking Atonio but swerved at the last minute into the number two
reckless when he continued to order Atonio to stay on the road and not move even though
he could see that traffic was not blocked and was moving toward Atonio.
57. It was the early morning hours, just past midnight, and drivers could
58. Atonio was complying with Fox's orders to stay on the ground and
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59. Fox never allowed Atonio to get up and move off the dark roadway
to safety.
60. Atonio was detained but was never told he was under arrest.
61. Fox knew that cars were driving on the dark roadway at high speeds.
62. Fox knew that keeping Atonio on his back in the roadway put Atonio's
63. After the tasing, Fox ordered Atonio to remain where he was in Lane1
of the southbound traffic for many seconds before Atonio was struck by a vehicle.
64. Fox could have easily, at any time, directed Atonio to move onto the
65. Fox was aware of the grave danger because he could see multiple
vehicles coming toward the point where Atonio lay, some of them barely missing Atonio.
66. Shortly after Fox tased Atonio, Officer Williams arrived at the scene
and parked a short distance to the south of Fox, while Atonio lay the middle turning lane.
69. From his vehicle Williams could see Fox, as well as Atonio on the
70. Williams observed that Atonio was being fully compliant with Fox’s
demands.
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71. Williams did not feel the need to rush because Atonio was obviously
73. Williams got out of his vehicle and approached Atonio to handcuff
him.
75. Williams could and did perceive the risk of grave danger that Atonio
could be hit by a vehicle and be seriously injured or killed, but ignored the risk and did
nothing.
rights violations to Atonio, but he failed to take any action to protect Atonio from harm
77. Williams had many seconds during which he could have easily
78. At this critical moment, Williams and Fox were 12-15 feet away from
Atonio to the south. The two officers were discussing next steps in the arrest of Atonio.
number 1 lane to block traffic from approaching and possibly hitting Atonio while he was
laying supine, head forward, complying with Fox’s directions to stay on the ground.
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80. WVCPD policy and training required Fox and Williams to place a
blocking vehicle to protect someone like Atonio from being hit. They should have done
this.
82. While Fox was waiting, Williams began walking toward Atonio. At
that moment, a white sedan, traveling southbound in the number 1 lane, came toward
83. The driver of the vehicle did not see Atonio and hit him.
84. The undercarriage of the vehicle caught Atonio and dragged him
85. When the vehicle hit Atonio it only stopped because it became stuck
86. Fox saw the incident and began running toward the white vehicle
87. Fox was also struck by the front bumper of the white sedan as it came
to a stop on top of Atonio. Fox was knocked to the ground but was not seriously injured.
89. If Faubion and Green were present at the scene when the white sedan
hit Atonio, and had the ability to prevent the incident, they are liable for failure to take
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90. When the white sedan finally came to a stop, Atonio was still pinned
91. Atonio's legs were pointing southbound, and the car’s front axle was
92. Once the white sedan was stopped, Williams rushed to the driver’s
door and pounded on the window ordering the driver to exit the car.
93. Williams opened the door and pulled the driver from the car.
94. As soon as the driver’s seat was open, Faubion jumped into the car
and drove in reverse in an attempt to get the car off Atonio's head and torso.
95. Fox and Green pushed on the front bumper as Faubion reversed in
96. The Officers were able to back the car off of Atonio.
97. Once Atonio was out from under the vehicle, Faubion and Green
98. The driver of the vehicle indicated she was a nurse, and also helped
99. The driver of the white sedan had been drinking and had blood drawn
for testing.
100. The driver was not cited for DUI on the scene.
middle of the dark, busy roadway could result in him being hit by a car and injured.
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102. Officers never placed a blocking vehicle in the southbound lanes to
alert drivers of Atonio laying, by police command, in the middle of the road.
103. Atonio has suffered extreme life altering injuries as a result of the
Officers' recklessness in leaving him lying in the roadway, forbidding him from moving,
104. Atonio has undergone multiple surgeries since being hit by the car
and will likely have to have many follow-up surgeries in the years to come.
109. Atonio can no longer bathe himself or care for his personal hygiene.
him.
114. Atonio does not remember where he is or what day of the week it is.
116. Atonio no longer has the physical or mental ability to care for himself
in any capacity.
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117. Over the past twelve months, Atonio has been determined to have
unconstitutional use of force as set forth above, Atonio has been rendered permanently and
120. Nonnie L. Masaniai Pea ("Nonnie") is Atonio's mother and has been
121. Nonnie has lost the relationship and society of her only son.
122. Atonio was very close to his mother and three older sisters. He can no
longer have a relationship with them because of the recklessness of the Defendants on
December 6, 2020.
123. Nonnie has suffered the loss of relationship and companionship of her
only son.
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FIRST CAUSE OF ACTION
~ Excessive Force ~
reasonableness of force under the Fourth Amendment: (1) the severity of the crime at issue;
(2) whether the suspect poses an immediate threat to the safety of the officers or others;
and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by
flight at the precise moment that force is used. Graham v. Connor, 490 U.S. 386 (1989).
on the events immediately confronting an officer when he or she decided to use force.
not fleeing, or poses no threat. Force is not permitted at all when there is no need to use
force.
128. Taser use "unquestionably 'seizes' the victim in an abrupt and violent
manner." Cavanaugh v. Woods Cross City, 625 F.3d 661, 665 (10th Cir. 2010). The nature
and quality of "the intrusion into the interest[]" of a citizen who is tased is "quite severe."
Id.
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129. A police officer violates the Fourth Amendment if he uses a "[t]aser
against a non-violent misdemeanant who appeared to pose no threat and who was given no
warning or chance to comply with the officer's demands." Cavanaugh, 625 F.3d at 666.
a harsh method to subdue a person. A taser, by design, delivers an intense shock that causes
great pain and is intended to disable the suspect. Finlinson v. Millard County, 2018 WL
131. Officer Fox's use of a taser against Atonio was unreasonable and
excessive.
133. At the time Fox followed and tased Atonio, he had at most, 1) walked
away from the scene of an argument; 2) possibly broke a window; and/or 3) not stopped
when Officer Fox told him to do so. These are all minor misdemeanors under Utah law.
137. Fox knew he could easily obtain Atonio's name and address from
witnesses at the party and arrest him later without putting anyone at risk from high speed
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138. Atonio had done nothing serious enough to require an immediate
139. Fox never warned Atonio he was going to be tased if he did not
140. At the precise moment Fox used force and deployed his taser, Atonio
141. Atonio never made verbal or physical threats, toward any Officers at
any time.
142. Prior to Fox’s use of force, no one on the scene had alleged Atonio
143. At the precise moment Fox used force, Atonio possessed no weapon.
144. Fox’s subjective views of the encounter are irrelevant in the analysis
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145. What is important is how an “objectively reasonable” officer would
excessive force.
148. An objectively reasonable officer on the scene would have known that
tasing a person in the back, without warning, in the middle of a dark, busy highway,
police officers that an individual’s constitutional rights are violated by the unreasonable
have been familiar with the law set forth in Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995)
with regard to a state-created danger. Uhlrig indicated that “[t]he classic case of state actors
creating a danger so as to give rise to §1983 liability is Wood v. Ostrander, where police
officers placed plaintiff in danger by impounding her car and abandoning her in a high
crime area at 2:30 a.m., thereby distinguishing Wood from the general public and
triggering a duty of the police to afford her some measure of peace and safety.” Uhlrig, 64
F.3d at 572 (cleaned up; citing Wood, 879 F.2d 583, 589-90 (9th Cir. 1989), cert. den., 498
U.S. 938 (1990)). Fox would have known that he could not leave a detainee in a dangerous
or a precarious situation that would deprive him of his rights under the Fourth Amendment.
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151. In December 2020, every reasonable police officer in Utah would
have been aware of the 10th Circuit case of Lee v. Tucker, 904 F.3d 1045 (10th Cir. 2018).
In Lee, sheriff’s deputies used a stun gun (taser) on Lee’s back for an alleged misdemeanor
domestic violence crime that involved arguing, intoxication, and Lee shoving his wife. Id.
at 1147-48. The court held that “the law was clearly established that an officer may not use
a Taser against a non-violent misdemeanant who appeared to pose no threat and who was
given no warning or chance to comply with the officer’s demands.” Id. at 1150 (cleaned
up and punctuation omitted). Fox would have known in December 2020 that he could not
use a taser on Atonio because he was, at most, a non-violent misdemeanant who posed no
threat.
152. In December 2020, all reasonable police officers in Utah would have
been aware of the 10th Circuit decision in Emmett v. Armstrong, 973 F.3d 1127 (10th Cir.
2020). Emmett had been drinking in a bar in a small Wyoming town, got in a fight, and
then initially ran from Officer Armstrong. Officer Fox and the other Defendants would
have known that Atonio could not be tased unless "the officers [or others] were in danger
at the precise moment that they used force.” Emmett, 973 F.3d. at 1136 (citing Pauly v.
153. Officer Fox, acting under color of statute, regulation, custom, and/or
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154. Fox is not entitled to qualified immunity based on his unlawful and
directly and proximately caused his injuries and damages set forth herein.
156. The conduct of Fox and Williams warrants the imposition of punitive
used excessive force in unreasonably tasing him in the back, without warning.
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161. Fox and Williams flagrantly violated Atonio’s Utah Constitutional
164. The Utah Supreme Court has clarified the "unnecessary rigor" clause
Dexter v. Bosko, 2008 UT 29, ¶17, 184 P.3d 592 (emphasis added). The Court clarified:
"This may include being unnecessarily exposed to an increased risk of serious harm." Id.
harm when he was tased on a heavily traveled road and ordered to remain there, where he
could not see oncoming traffic, and where no blocking vehicle protected him.
166. He was not only exposed to that risk, but he suffered directly from it,
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We have held that the last sentence [of Article I, Section 9] makes section 9
broader than its federal counterpart. See Bishop I, 717 P.2d at 267. Article
I, section 9 is also a self-executing provision that prohibits specific evils that
can be remedied without implementing legislation.
State v. Lafferty, 2001 UT 19, ¶73, 20 P.3d 342, 365 (emphasis and bracketed text added).
168. Fox was keenly aware that Atonio was detained in the middle of a
dark, busy roadway and that traffic was not blocked in the lane in which Atonio was laying.
169. Fox witnessed one car narrowly miss hitting Atonio, but the car
170. This narrow miss put Fox on further notice of the very real danger
171. Fox and Williams knew traffic was not blocked and they could both
see cars on the roadway heading toward Atonio, but still took no steps to block the lane of
Constitution, Defendants had a duty to ensure that Atonio was not unnecessarily exposed
Atonio laying in the lane of oncoming traffic on a dark, busy roadway without blocking
174. Defendants have long been aware that there are specific well-
established protocols in West Valley City which are used to detain individuals safely.
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175. Defendants knowingly and willfully did not follow the established
Atonio, they unnecessarily exposed him to a significantly higher risk of injury and
accordingly "demand[ed] more of the prisoner than society is entitled to require." Dexter,
178. Any reasonable official in the position of each Defendant would have
understood that not blocking the oncoming traffic, or having the compliant Atonio follow
them to the sidewalk, would expose him to an increased risk of harm, which occurred in
this case.
Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶48, 250 P.3d 465 (citing Spackman ex
180. Atonio Sivatia suffered a flagrant violation of his rights under the
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protocol requiring them to safely detain Atonio, and instead left him lying in the middle of
a dark roadway where oncoming traffic was coming, and failed to block traffic. The correct
protocol would have necessitated Atonio being moved from the roadway and/or blocking
loss, nor are there existing remedies that would redress Nonnie's loss since Atonio's
injuries.
leaving Atonio in the middle of a dark, busy roadway without blocking traffic, Atonio was
hit by a car and has suffered catastrophic mental and physical injuries which have changed
be deprived of his life without due process when Defendants knowingly and willfully left
him in the middle of a dark, busy roadway at night without blocking oncoming traffic.
Atonio to the side of the road, resulted in catastrophic, life altering injuries.
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187. As a direct and proximate result of Defendants' flagrant violation,
Atonio was run over by a car, resulting in catastrophic, life changing injuries.
injuries exist.
189. The conduct of Fox, Williams and the Doe Officers 1-10 warrants the
imposition of damages and punitive damages as may be allowed by law and as alleged
herein.
Against West Valley City through its Police Department Relating to Defective Policies,
Customs or Practices
department or division of West Valley City. West Valley City is therefore responsible for
192. After the tasing, Officers Fox, and Williams wrongfully, and
unreasonably left Atonio laying in the middle of a dark, busy highway at night.
193. This resulted in Atonio being run over by a car wherein he sustained
profound catastrophic life altering injuries resulting in permanent, total disability as well
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194. At all relevant times herein, West Valley City was the employer,
195. West Valley City, through WVCPD, had a duty to create, adopt, and
promulgate, implement, enforce, revise, and/or update lawful policies, procedures, and/or
196. West Valley City, through WVCPD, knowingly and recklessly failed
to create, adopt, promulgate, implement, enforce, revise, and/or update lawful policies,
procedures, and/or protocols regarding tasing, arrest, excessive force, and detention,
specifically about when such tactics and procedures are permitted by law and how they
were to be conducted.
promulgate, implement, enforce, revise and/or update lawful policies, procedures and/or
198. The failure to have and utilize such policies proximately caused
Officers to tase Atonio in the back, without warning, at a dangerous location under
dangerous circumstances.
leave Atonio laying in the southbound number 1 lane of traffic on a busy, dark roadway,
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200. The above-described actions, or inactions of West Valley City,
through the WVCPD, constitute willful and wanton misconduct and heedless disregard to
the rights, health, well-being, and safety of Utah citizens, particularly Atonio. Such
compensatory damages, for punitive damages, for costs and attorney fees, and for such
other relief as this Court deems just and proper, and as may be allowed by law.
Against West Valley City through the WVCPD in their Official Capacity
204. The action of Officers Fox and Williams toward Atonio were pursuant
to, and consistent with, established policies, practices, and/or customs of Defendant West
Valley City, through the WVCPD, for which West Valley City is responsible.
with tasers and condoning their use without requiring warning, and without providing
proper training and/or supervision regarding their safe, reasonable, and appropriate use in
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206. The actions of Officers Fox, Williams, and Doe Officers 1-10 show a
207. The lack of proper training and supervision caused Officer Fox and
other Defendants to unreasonably and improperly tase Atonio and use unreasonable and
excessive force to detain him, directly resulting in catastrophic injuries and other damages
described herein.
208. The failure of West Valley City, through WVPD, to properly train and
supervise Officers Fox and Williams resulted in their reckless tasing of Atonio and leaving
him in the middle of a busy dark roadway where he was run over by a car.
209. Had there been proper training Atonio never would have been tased
on a busy roadway, and Williams or some other Officer would have blocked the
210. The failure to train and supervise Fox and Williams caused their
indifferent toward the proper training, arming, and supervision of its police officers.
212. The actions of West Valley City, through its WVCPD, were the
proximate cause of Plaintiffs’ injuries and damages, including Atonio's catastrophic, life
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FIFTH CAUSE OF ACTION
215. "Generally, state actors are liable only for their own acts, and not the
violent acts of third parties." Armijo by and through Chavez v. Wagon Mound Public
Schools, 159 F.3d 1253, 1260 (10th Cir. 1998) (quoting Liebson v. New Mexico
Corrections Dep't, 73 F.3d 274, 276 (10th Cir. 1996)). However, there are two exceptions
The first exception, known as the special relationship doctrine, "exists when
the state assumes control over an individual sufficient to trigger an
affirmative duty to provide protection to that individual." The second
exception, sometimes referred to as the "danger creation" theory, provides
that the state may also be liable for an individual's safety "if it created the
danger that harmed the individual."
Armijo, 159 F.3d at 1260 (emphasis added) (quoting Uhlrig v. Harder, 64 F.3d 567, 572
(10th Cir. 1995) and DeShaney v. Winnebago Co. Dep't of Social Servs., 489 U.S. 189,
199-200 (1989)).
"governmental actors should be answerable in tort when their negligent conduct causes
injury to persons who stand so far apart from the general public that we can describe them
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217. In Francis, the Utah Supreme Court recognized four instances where
detrimental reliance by Atonio that he would not be run over by a car while being detained
219. Additionally, the Defendants had actual custody of Atonio at the time
he was run over because he had complied with commands to stay down in the middle of
the road.
221. Defendants had a duty to Atonio to keep him safe from unreasonable,
foreseeable harm that can be caused by leaving him lying in the middle of a dark, road.
222. Defendants failed to take even rudimentary steps to make Atonio safe
such as getting him out of the lane of traffic or blocking the lane of traffic in which he was
lying.
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224. Defendants' conduct evidenced extreme carelessness and recklessness
in needlessly exposing Atonio to such a dangerous condition, with obvious serious and/or
of care, Atonio has suffered catastrophic and permanent life altering injuries and damages.
226. These consequences and damages will continue for the rest of
Atonio's life. This includes life-long medical care, more surgeries, life-long assisted living
care, and life-long loss of meaningful relationships with family and friends.
the same.
228. The cost of Atonio's life-long assisted living and care will exceed
$20,000,000.
229. There is no medical cure for the massive brain injury sustained by
Atonio.
230. Defendants are responsible for Plaintiffs’ injuries and damages set
forth herein.
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SIXTH CAUSE OF ACTION
~ Loss of Consortium ~
232. This loss of consortium claim is not subject to notice under the Utah
Governmental Immunity Act, including the requirement to file a notice of claim because it
is a derivative claim. This claim is derived from federal and state constitutional actions on
which no notice of claim and no application of the Utah Governmental Immunity Act are
required. Plaintiffs have nevertheless filed notice of this claim in this case.
caused Nonnie to be denied consortium, companionship, love, and emotional support that
alleged in the First, Second, Third, Fourth, and Fifth Causes of Action herein, and are
by a jury, and for punitive damages and attorney fees as may be allowed by law.
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238. Atonio was struck by a car due to the actions of Defendants, and
suffered catastrophic injuries including but not limited to extremely serious brain injury,
profound loss of almost all brain and bodily functions, massive and permanent orthopedic
injuries, inability to take care of any of his ADL (activities of daily living), and other major
239. Atonio will now have to live in a care facility for the rest of his life.
240. Atonio's family members have been denied the association and benefit
Atonio has suffered severe life altering damage including: great physical pain, mental and
emotional damage, loss of familial relationship, and economic damage in the millions of
dollars.
Officers Fox and Williams, as well as by West Valley City, which employs Defendant
Officers.
JURY DEMANDED
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REQUESTS FOR RELIEF
determined at trial;
law;
allowed by law;
pursuant to 42 U.S.C. 1988; and as otherwise may be allowed by Utah State or federal law;
and,
6. For such other and further relief as the Court deems just and proper.
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