Rebecca Gasca v. City of Reno Lawsuit

Case 3:22-cv-00238-MMD-CSD Document 1 Filed 05/27/22 Page 1 of 26
1 MARGARET A. MCLETCHIE, Nevada Bar No. 10931

LEO S. WOLPERT, Nevada Bar No. 12658
2 MCLETCHIE LAW
3 602 South Tenth Street
Las Vegas, NV 89101
4 Telephone: (702) 728-5300
Fax: (702) 425-8220
5 Email: [email protected]
6 Counsel for Plaintiffs
7 UNITED STATES DISTRICT COURT

8 DISTRICT OF NEVADA
9
REBECCA GASCA, an individual, Case. No.:
10
Plaintiffs, COMPLAINT
11
vs.
12 [JURY TRIAL DEMANDED]
CITY OF RENO, Nevada, a Municipal
13 Corporation; JASON SOTO, in his official
(702)728-5300 (T) / (702)425-8220 (F)
capacity as the Chief of the Reno Police

602 SOUTH TENTH STREET
WWW.NVLITIGATION.COM
14
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
Department; DARIN BALAAM, in his

15 official capacity as Washoe County Sheriff;
DOES I – X,
16
Defendants.
17
Plaintiff, Rebecca Gasca, by and through her counsel of record, hereby files this
18
Amended Complaint for damages pursuant to 42 U.S.C. § 1983 (civil action for deprivation
19
of rights), 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1367(a)
20
(supplemental jurisdiction), and 28 U.S.C. § 2201 (creation of remedy).
21
NATURE OF THE ACTION
22
The May 25, 2020, murder of George Floyd at the hands of Minneapolis police
23
sparked a season of protests against police brutality and systemic injustice. Throughout the
24
nation, those outraged by the lack of accountability for police officers who abuse their power
25
took to the streets to make their voices heard. But protestors wielding signs calling for
26
sweeping reforms had to stare down walls of the very officers they were protesting—further
27
escalating tensions that, on several occasions, prompted law enforcement to engage in
28
1
1 drastically outsized responses to demonstrators’ presence.

2 The fervor reached Reno on May 30, 2020. Residents showed up to speak out
3 against the unjust murder of not just George Floyd, Breonna Taylor, and Ahmaud Arbery,
4 but one of their own—18-year-old Miciah Lee—who was killed by a Sparks police officer
5 in January 2020. 1 Demonstrations and marches began around 2 P.M. and continued
6 peacefully throughout the day. Around 7 P.M., isolated instances of vandalism left City Hall
7 and the Patagonia outlet store with broken windows. Authorities issued a curfew order in an
8 attempt to suppress protestors’ cries for justice, curtailing demonstrators’ First Amendment
9 rights to speak truth to power and giving law enforcement agencies free reign to take extreme
10 measures against anyone violating the rushed, sparsely disseminated curfew.
11 Instead of addressing the few perpetrators of vandalism, police indiscriminately
12 launched tear gas canisters into peaceful crowds and pelted peaceful protestors with rubber
13 bullets. Footage from minutes after the curfew was called shows officers—standing behind
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14 a barrier gate, protected by helmets and shields—firing tear gas into crowds of journalists
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15 and legal observers. 2 Several protest participants were injured by rubber bullets, flash bang
16 grenades, and projectiles, while other innocent downtown Reno residents were arrested
17 merely for existing in their neighborhood during the curfew. 3 Plaintiff Rebecca Gasca was
18 one of the individuals caught in the crossfire.
19 Law enforcement’s violent, sweeping responses illustrate the very concerns
20 protesters sought to address through their demonstrations and calls for change. Notably, law
21
1
22 Miciah Lee investigation in-process, Washoe County DA will render a decision
in next few weeks, SIERRA NEVADA ALLY (June 4, 2020),
23 https://sierranevadaally.org/2020/06/04/miciah-lee-investigation-in-process-washoe-
county-da-will-render-a-decision-in-next-few-weeks/ (last accessed May 18, 2022).
24 2
UPDATES: Reno mayor declares a State of Emergency, describes some of
25 damages to City Hall, RENO GAZETTE JOURNAL (May 30, 2020),
https://www.rgj.com/story/news/2020/05/30/hundreds-gather-reno-protest-george-floyds-
26 death/5291340002/ (last accessed May 18, 2022).
3
27 RGJ Investigates: Most arrested after BLM protest live near downtown, not involved in
violence, RENO GAZETTE JOURNAL (June 6, 2020),
28 https://www.rgj.com/story/news/2020/06/06/police-arrests-residents-reno-protest-black-
lives-matter-rally-downtown/3160445001/ (last accessed May 18, 2022).
2
1 enforcement did not initiate such aggressive measures during protests that were not
2 criticizing law enforcement. For example, police did not deploy tear gas or less-than-lethal
3 weapons to suppress protests against COVID-19 shutdowns less than a month earlier—
4 despite the presence of protestors who came fully armed with rifles and shotguns. 4
5 Plaintiff seeks a permanent injunction and declaratory relief to redress Defendants’
6 willful, deliberate, and clear constitutional violations, and the harm—which is ongoing and
7 irreparable—that she has suffered as a result. Furthermore, Plaintiff is entitled to damages,
8 costs, attorney’s fees, punitive damages, and any other relief this Court deems appropriate as
9 victims of civil rights violations and as victims of state law torts.
10 JURISDICTION AND VENUE
11 1. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331 et seq. for civil
12 rights claims arising under the Constitution and laws of the United States. Pursuant to § 1331,
13 this Court has original subject matter jurisdiction over Plaintiff’s claims brought under 42
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14 U.S.C. § 1983.
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15 2. This Court has jurisdiction over claims arising under the laws of the State
16 of Nevada pursuant to the supplemental jurisdiction provided by 28 U.S.C. § 1367(a).
17 3. The prayer for relief is predicated on 28 U.S.C. § 2201 and Fed. R. Civ. P.
18 38. This Court has jurisdiction to award Plaintiff damages pursuant to 42 U.S.C. § 1983 and
19 Nev. Rev. Stat. § 41.130. Authorization for the request of attorney’s fees and costs is
20 conferred by 42 U.S.C. § 1988(b).
21 4. The Defendants acted, purported to act, and/or pretended to act in the
22 performance of their official duties, and thus Defendants acted under color of law and are
23 subject to liability as state actors pursuant to 42 U.S.C. § 1983.
24 5. Because Defendants are not arms of the State, this suit is not barred by the
25 Eleventh Amendment to the United States Constitution. See Eason v. Clark Cty. Sch. Dist.,
26
4
27 Some Nevadans Protest Nonessential Business Closures, KUNR (April 28, 2020)
https://www.kunr.org/politics-and-policy/2020-04-28/some-nevadans-protest-nonessential-
28 business-closures; see also https://www.youtube.com/watch?v=oFcfkofTZuM (last accessed
May 18, 2022).
3
1 303 F.3d 1137, 1147 (9th Cir. 2002); Culinary Workers Union v. Del Papa, 200 F.3d 614,
2 619 (9th Cir. 1999).
3 6. The acts or omissions giving rise to Plaintiff’s claims all occurred in
4 Washoe County, Nevada, and all parties reside or operate in Washoe County, Nevada. Thus,
5 pursuant to 28 U.S.C. § 1391(b)(2) and (c), venue is proper in the United States District Court
6 for the District of Nevada.
7 PARTIES
8 7. During all relevant times herein, Plaintiff Rebecca Gasca (“Ms. Gasca”) is
9 an individual who resides in Washoe County, Nevada.
10 8. Ms. Gasca was a legal observer at the May 30, 2020, Black Lives Matter
11 (“BLM”) protest in Reno, Nevada.
12 9. Ms. Gasca attended the May 30, 2020, protest in Reno to observe and record
13 the activities of law enforcement during the protest, and observe and record any incidents
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14 between demonstrators and law enforcement, including but not limited to arrests, uses of
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15 force, denial of access to public spaces such as sidewalks, and any other behavior on the part
16 of law enforcement that appeared to restrict demonstrators’ ability to express their views.
17 10. Defendant City of Reno (“Reno”) is a political subdivision of the State of
18 Nevada.
19 11. At all times, Defendant Reno possessed the power and authority to adopt
20 policies and prescribe rules, regulations, policies, and practices affecting all facets of the
21 training, supervision, control, employment, assignment, and removal of individual members
22 of the Reno Police Department (hereinafter “RPD”).
23 12. RPD is the is a law enforcement agency for Reno, Nevada with jurisdiction
24 over Reno, Nevada, and is tasked with enforcing state, federal, and local laws.
25 13. Defendant Jason Soto was the RPD Chief of Police at all relevant times.
26 14. RPD’s policies delegate policymaking authority to the RPD Chief of Police.
27 The Chief of Police has “the power to supervise, regulate, and manage the Department, and
28 to make and enforce necessary and desirable rules and regulations. This includes the
4
1 authority to issue, modify, and approve departmental written directives.” (RPD General
2 Order E-190-17, p. 2.) Further, “only the Chief of Police is authorized to implement
3 additions, deletions, or revisions to any General Order for the Reno Police Department.”
4 (Id.).
5 15. On information and belief, Defendant Chief Soto is ultimately responsible
6 for hiring, training, and supervision of RPD officers, including Officer Defendants.
7 16. On information and belief, Defendants Reno and Chief Soto are aware of
8 and have either explicitly or implicitly condoned or created a policy and practice that allows
9 RPD officers to deliberately violate the constitutional rights of persons engaged in free
10 speech activities, such as peaceful protests.
11 17. On information and belief, Defendants Reno and Chief Soto are aware of
12 and have either explicitly or implicitly condoned or created a policy and practice that allows
13 RPD officers to treat persons engaged in free speech activities such as peaceful protests that
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14 include messages critical of law enforcement differently than persons engaged in free speech
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15 activities such as protests that do not relate to criticism of law enforcement.

16 18. On information and belief, Defendants Reno and Chief Soto have a policy
17 and practice of allowing RPD officers to violate the law with impunity and have created or
18 failed to address a culture at RPD that its officers are above the laws and constitutions of
19 Nevada and the United States.
20 19. On information and belief, Washoe County Sheriff’s Office (“WCSO”) also
21 deployed officers and exercised a role in coordination with the RPD in responding to the
22 May 30 BLM protest. 5
23 20. Defendant Darin Balaam (“Sheriff Balaam”) is the elected Sheriff of WCSO
24 and was the Sheriff of WCSO at all relevant times herein. Sheriff Balaam has final
25
5
See https://www.rgj.com/story/news/2020/05/30/hundreds-gather-reno-protest-george-
26 floyds-death/5291340002/ (“agencies including Sparks Police, the Washoe County School
27 District Police Department, the Douglass County SWAT and the National Guard were
assisting Reno Police and the Washoe County Sheriff’s Office as they responded to looting
28 and violence in downtown Reno that started around 6:30 p.m.”)(suggesting that RPD and
WCSD shared responsibility for decisions made at the May 30 protest);
5
1 policymaking authority for WCSO internal policies and is vested with supervisory authority
2 over all WCSO officers. Sheriff Balaam is being sued in his official capacity.
3 21. On information and belief, Sheriff Balaam is aware of, and has either
4 explicitly or implicitly condoned or created a policy and practice of deliberate indifference
5 toward the constitutional rights of persons engaging in free speech activities, such as peaceful
6 protests in public forums.
7 22. On information and belief, despite clearly established case law establishing
8 such rights, Sheriff Balaam has failed to implement policies safeguarding speakers’ and
9 observers’ First Amendment rights in these forums and has failed to adequately train his
10 officers to protect citizens’ First Amendment rights in these forums.
11 23. On information and belief, Defendant Unknown Officer 1 is the RPD
12 incident commander that authorized the implementation of non-deadly force that resulted in
13 Ms. Gasca’s injury. Plaintiff reserves the right to name additional defendants and modify
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14 their allegations concerning defendants named herein.

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15 24. On information and belief, Defendants Unknown Officer 2 is the RPD

16 officer who shot Ms. Gasca with a pepperball. Plaintiff reserves the right to name additional
17 defendants and modify their allegations concerning defendants named herein.
18 25. The naming of defendants herein is based upon information and belief.
19 Plaintiff reserves the right to name additional defendants and modify their allegations
20 concerning defendants named herein.
21 STANDING
22 26. Plaintiff is and continues to be directly affected by Defendants’ practices
23 and policies of violating the constitutional rights of individuals based upon their exercise of
24 constitutional rights, as set forth more fully herein, and/or other abuses by Defendants acting
25 under color of law.
26 27. An actual case and controversy exist between Plaintiff and Defendants
27 concerning their respective rights, privileges, and obligations.
28
6
1 FACTUAL ALLEGATIONS
2 Rebecca Gasca, May 30, 2020, Protest
3 28. On the evening of May 30, 2020, Plaintiff Rebecca Gasca received a call
4 from her friend who was acting as a legal observer for the BLM protests in downtown Reno.
5 Her friend informed her that police had begun shooting indiscriminately at protestors and
6 that she had been a member of the crowd that had been tear gassed. Rebecca offered her
7 support to research information about curfews that other cities had instituted and to meet her
8 friend downtown to legal observe and record videos of the protest. As a former ACLU policy
9 director and active participant in the organization’s legal observing and cop-watching
10 initiatives, Ms. Gasca had experience observing protests and police-civilian interactions, so
11 she agreed to meet up with her.
12 29. After stopping by her house to change, Ms. Gasca arrived in downtown
13 Reno, parked on Holcomb Street near its intersection with Ryland Street, and walked to meet
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14 her friend. They encountered each other on Center Street, northeast of the Pioneer Center
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15 and south of the Center Street bridge on the east side of the then-West Elm store on Virginia
16 Street. Her friend gave Ms. Gasca a blue vest that said “ACLU Legal Observer” in large
17 white block print on the back and an ACLU logo on the breast, which Ms. Gasca donned.
18 30. People were milling around the area, and the atmosphere was like bar crawl
19 and not a confrontational protest.
20 31. Ms. Gasca’s friend pointed to a line of RPD and WCSO officers whom she
21 had previously observed shooting into crowds of protestors in an attempt to disperse the
22 peaceful march. Ms. Gasca walked into the empty parking lot and toward the grassy plot of
23 land on the west side of the then-West Elm, which was close to where the line of officers
24 were standing, intending to observe their potential interactions with protestors in that grassy
25 area. No other vantage point was available to observe the officers without approaching the
26 line of officers.
27 32. As she approached the horde of officers while walking through the then-
28 West Elm parking lot, Ms. Gasca stopped and raised her arms over her head to identify
7
1 herself and ensure that her legal observer vest was visible. She did not recall officers shooting
2 at protestors or into the crowd while walking through the parking lot.
3 33. But suddenly, after Ms. Gasca had stopped advancing towards the line of
4 officers, she was hit in the left arm with a pepperball—despite the fact that she was nowhere
5 near the crowd, was wearing a vest that distinguished her as a legal observer rather than a
6 protestor, and posed no threat to any officers.
7 34. After suffering the first shot, Ms. Gasca began to film her interactions with
8 police to document the shock she experienced. Her video captured the second time she was
9 shot; the impact was in her upper right thigh towards her groin. The video also captured the
10 significant distance between her and the protest activity. No officers’ faces are individually
11 distinguishable to the naked eye in the video, conveying just how far away officers were
12 from Ms. Gasca.
13 35. Officers then began shooting at Ms. Gasca’s friend who had followed her
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14 into the parking lot. The police turned their attention back to Ms. Gasca—who was now
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15 seated in the parking lot, clearly in shock—before firing several more rounds in Ms. Gasca’s
16 direction while she remained seated.
17 36. The video ultimately captures Ms. Gasca attempting to stand up and move
18 away from officers. While filming, Ms. Gasca vocalized her plan to leave the scene—just
19 before she is hit for a third time, again near the groin but this time on her left side.
20 37. Ms. Gasca left the protest and went home in a state of shock. Exhausted and
21 delirious, she fell asleep still wearing the leggings covered in residue from the projectiles
22 fired at her.
23 38. When the shock had dissipated the next day, Ms. Gasca began to grapple
24 with the severity of her injuries. Ms. Gasca eventually changed out of her leggings and vest
25 that she had been wearing under the legal observer vest and she discovered massive bruises
26 on her thigh and arm.
27 39. Concerned about potential blood clots, Ms. Gasca went to the hospital very
28 early the Monday following the protest. The doctor cleared her for any blood clot risks but
8
1 prescribed her painkillers and told her the bruises would likely take a long while to clear up.
2 40. In the following weeks and months, Ms. Gasca has suffered and continues
3 to suffer severe physical, emotional, and mental distress that have prevented her from
4 transacting in the typical business and enjoyment of life.
5 41. Ms. Gasca is deterred and chilled from participating in events and activities
6 such as attending protests as a legal observer.
7 RPD’s Use of Force Policy
8 42. The RPD Use of Force policy that was in place during the May 30, 2020,
9 protest defines a use of non-deadly force to include “Any use of force other than that which
10 is considered deadly force. This includes any physical effort used to control or restrain
11 another, or to overcome the resistance of another.” (Use of Force Policy, p. 1.)
12 43. This policy authorizes officers to use non-deadly force in order to (1) protect
13 the officer or others from physical harm; (2) restrain or subdue a resistant individual; and/or,
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14 (3) bring an unlawful situation safely and effectively under control. (Id. at 2.)
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15 44. When determining whether to use non-deadly force such as pepperballs and
16 tear gas, officers “may only use that level of force that is objectively reasonable to bring an
17 incident under control.” (Id.)
18 45. An “objectively reasonable” use of force is one that requires officers to
19 “evaluate each situation in light of the known circumstances, including, but not limited to,
20 the seriousness of the crime, the level of threat or resistance presented by the subject, and the
21 danger to the community.” (Id. at 1.)
22 46. Based on Ms. Gasca’s conduct at the time officers would have been
23 assessing these factors, it was not objectively reasonable to shoot her with pepperballs. She
24 was acting lawfully as a legal observer for the protest, as is her First Amendment right. Prior
25 to being struck, she put her hands above her head to indicate that she was not a threat and
26 had no intent to engage in criminal activity or interfere with the police. None of her conduct
27 on the night of the protest suggested she posed any danger to the community.
28 47. Less than a week after the BLM protests began, RPD implemented a new
9
1 Use of Force policy on June 5, 2020. The revised directives create a new use of force
2 category, “Intermediate Force,” which encompasses crowd control procedures such as the
3 use of tear gas, pepperballs, and less-than-lethal rounds. (New Use of Force Policy, p. 1.)
4 48. This policy includes language that tacitly accepts indiscriminate use of
5 intermediate force without regard for a subject’s threat level, categorizing intermediate force
6 as “Non-Deadly Force options that may pose a risk of unintended or unforeseen injury.” (Id.)
7 49. In contradiction to this phrasing that creates a justification for an RPD
8 officer’s overzealous use of crowd control weapons, the procedural application of
9 intermediate force is only permitted “in situations where an individual poses an immediate
10 threat to the safety of the Officer or others…” (Id. at 2 (emphasis added).)
11 CAUSES OF ACTION
12 FIRST CAUSE OF ACTION: EXCESSIVE FORCE
VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS
13 TO THE CONSTITUTION OF THE UNITED STATES
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PURSUANT TO 42 U.S.C. § 1983

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50. Plaintiff repeats and realleges Paragraphs 1 through 49 as though fully set
15
forth herein.
16
51. The Fourth Amendment to the United States Constitution, as applied to state
17
governments through the Fourteenth Amendment, provides that the “right of the people to
18
be secure in their persons, houses, papers and effects, against unreasonable searches and
19
seizures, shall not be violated[.]” U.S. Const. Amend. IV.
20
52. Courts have enumerated a set of factors to assess whether a state actor’s use
21
of force is reasonable. These factors include “the ‘severity of the crime at issue, whether the
22
suspect poses an immediate threat to the safety of the officers or others, and whether he is
23
actively resisting arrest or attempting to evade arrest by flight.’” Velazquez v. City of Long
24
Beach, 793 F.3d 1010, 1024–25 (9th Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386,
25
396 (1989).)
26
53. Defendants, acting under color of law, violated Plaintiff’s right to be free
27
from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth
28
10
1 Amendments to the United States Constitution.

2 54. Defendants used excessive force when they shot pepperballs at Ms. Gasca
3 on May 30, 2020, while she was acting as a legal observer and watching protestors and law
4 enforcement from a distance.
5 55. Defendants’ conduct was objectively unreasonable because Ms. Gasca was
6 a considerable distance from the protest crowds and the line of officers when she was shot,
7 indicating that she did not pose an any threat, much less an immediate threat, to officers or
8 other attendees.
9 56. Defendants’ conduct was also objectively unreasonable because Ms. Gasca
10 had her hands above her head before she was first shot, indicating that she was prepared to
11 comply with officers’ orders and had no intention of resisting or fleeing and was not engaging
12 in any conduct that necessitated or permitted force.
13 57. Defendants Reno and Chief Soto are liable because at all relevant times they
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14 were responsible for making and enforcing policies with respect to the Officer Defendants’
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15 use of force.
16 58. Defendant Sheriff Balaam is liable because at all relevant times, he was
17 responsible for making and enforcing policies with respect to the Officer Defendants’ use of
18 force.
19 59. Defendant Unknown Officer 1 is liable because they authorized and/or
20 permitted the use of objectively unreasonable force when permitting other officer(s) to
21 repeatedly shoot pepperballs at Ms. Gasca despite her clear indication of compliance and the
22 significant distance between her and anyone who could have perceived her as a threat.
23 60. Defendant Unknown Officer 2 is liable because they used objectively
24 unreasonable force when deciding to repeatedly shoot pepperballs at Ms. Gasca despite her
25 clear indication of compliance and the significant distance between her and anyone who
26 could have perceived her as a threat.
27 61. As a direct and proximate cause of Defendants’ violations of the Fourth
28 Amendment, Ms. Gasca has suffered, is suffering, and will continue to suffer damages in an
11
1 amount subject to proof. In addition, Ms. Gasca, as a direct and proximate result of
2 Defendants’ actions, has sustained and continues to sustain severe mental and physical pain
3 and/or anguish of mind and is prevented from transacting in her usual business and
4 enjoyment.
5 62. Ms. Gasca is entitled to monetary and compensatory damages from
6 Defendants Reno, Chief Soto, and Sheriff Balaam and monetary, compensatory, and punitive
7 damages from Defendant Officers.
8 63. Because it has been necessary for Ms. Gasca to retain the services of
9 attorneys to pursue this matter, she is entitled to attorneys’ fees, costs, and prejudgment
10 interest herein.
11 64. Further, Ms. Gasca is entitled to declaratory and injunctive relief.
12 SECOND CAUSE OF ACTION: RIGHT TO FREE SPEECH AND EXPRESSION
VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS
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15
forth herein.
16
66. The First Amendment to the United States Constitution, as applied to state
17
governments through the Fourteenth Amendment, prohibits a state from “abridging the
18
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
19
petition the Government for a redress of grievances.” U.S. Const. Amend. I.
20
67. Although a municipality may place reasonable time, place, and manner
21
restrictions on speech, those restrictions must be content neutral and narrowly tailored to
22
serve a significant government interest. A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784,
23
792 (9th Cir. 2006).
24
68. The First Amendment prohibits “restrict[ing] expression because of
25
[expression’s] message, its ideas, its subject matter, or its content.” Ashcroft v. A.C.L.U., 535
26
U.S. 564, 573 (2002).
27
69. “[T]he First Amendment protects a significant amount of verbal criticism
28
12
1 and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987).
2 “Additionally, “[a]ctivities such as demonstrations, protest marches, and picketing are
3 clearly protected by the First Amendment.” Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir.
4 1996) (citing Edwards v. South Carolina, 372 U.S. 229 (1963); Thornhill v. Alabama, 310
5 U.S. 88, 84 (1940); NAACP Western Region v. City of Richmond, 743 F.2d 1346 (9th Cir.
6 1984)).
7 70. Courts in the Ninth Circuit have also recognized that acting as a legal
8 observer, including “documenting police interactions with protesters” constitutes activity
9 protected by the First Amendment. See, e.g., Index Newspapers LLC v. City of Portland, 474
10 F. Supp. 3d 1113, 1118 (D. Or. 2020).
11 71. Freedom of speech is “protected against censorship or punishment, unless
12 shown likely to produce a clear and present danger of a serious substantive evil that rises far
13 above inconvenience, annoyance or unrest.” Edwards, 83 S.Ct. at 684.
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14 72. Defendants, acting under color of law, have caused and continue to cause
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15 Ms. Gasca to be deprived of her constitutional rights in violation of 42 U.S.C. § 1983.

16 73. Because peaceful protests in public forums are protected speech, police
17 tactics which cause physical harm and pose physical threats to law-abiding demonstrators
18 have the effect of preventing Ms. Gasca from engaging or attending in such protests, thus
19 abridging her First Amendment right to do so.
20 74. Defendants violated Ms. Gasca’s right to free speech and expression by
21 authorizing the use of projectiles on her, firing projectiles at her, and otherwise deterring her
22 from engaging in her constitutionally protected right to express her views by acting as a legal
23 observer of peaceful protests.
24 75. Defendants’ violated Ms. Gasca’s right to free speech by authorizing the
25 use of excessive force against protestors expressing messages critical of police and legal
26 observers supporting protestors’ exercise of these rights, but not taking such extreme
27 measures during demonstrations involving armed protestors who were not criticizing police.
13
2 use of force, which deterred and abridged Ms. Gasca’s First Amendment right.
5 force, which deterred and abridged Ms. Gasca’s First Amendment right.
6 78. Defendant Unknown Officer 1 is liable because they authorized officer(s)
7 under their supervision to use excessive force indiscriminately with the purpose and/or effect
8 of suppressing the free speech of attendees such as Ms. Gasca.
10 unreasonable excessive force indiscriminately with the purpose and/or effect of suppressing
11 the free speech of attendees such as Ms. Gasca.
12 80. As a direct and proximate cause of Defendants’ violations of the First and
13 Fourteenth Amendments, Plaintiff has suffered, is suffering, and will continue to suffer
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14 damages in an amount subject to proof. In addition, Plaintiffs, as a direct and proximate result
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15 of Defendants’ actions, have sustained and continue to sustain severe mental or physical pain
16 and/or anguish of mind and are prevented from transacting in their usual business and
17 enjoyment.
21 82. Because it has been necessary for Ms. Gasca to retain the services of
22 attorneys to pursue this matter, she is entitled to attorneys’ fees, costs, and interest herein.
24 THIRD CAUSE OF ACTION: RIGHT TO FREE SPEECH AND EXPRESSION (CHILLING)
26 PURSUANT TO 42 U.S.C. § 1983
27
forth herein.
28
14
1 85. Defendants, acting under color of law, violated Plaintiff’s rights to freedom
2 of speech and expression as guaranteed by the First and Fourteenth Amendments to the U.S.
3 Constitution.
4 86. An individual’s First Amendment right is chilled when a state agent, seeing
5 that the person is engaging in constitutionally protected speech, intentionally causes an injury
6 that would chill “a person of ordinary firmness from continuing” to exercise their First
7 Amendment right to freedom of expression. Mendocino Envtl. Ctr. v. Mendocino Cty., 192
8 F.3d 1283, 1300 (9th Cir. 1999).
9 87. Ms. Gasca was engaged in constitutionally protected free speech activity
10 when acting as a legal observer at the May 30, 2020, BLM protest in downtown Reno.
11 88. Defendants have no compelling state interest in restricting, chilling, and
12 deterring the content and viewpoint of lawful, protected speech.
13 89. Because she suffered severe physical and mental anguish after being shot
(702)728-5300 (T) / (702)425-8220 (F)
14 with pepperballs, Ms. Gasca has been chilled from protesting and acting as a legal observer
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 for future protests against police brutality because she fears that RPD will use excessive force
16 against her, exacerbating the physical, emotional, and mental anguish she incurred a result
17 of RPD’s excessive force on May 30, 2020.
18 90. Defendants Reno and Chief Soto are liable because at all relevant times,
19 Defendant Reno and Chief Soto are responsible for making and enforcing policies that ensure
20 officers respect and comply with civilians’ First Amendment rights. Defendants failed to do
21 so by permitting its officers to indiscriminately deploy projectiles against citizens for
22 peacefully demonstrating in public fora.
24 responsible for making and enforcing policies that ensure officers respect and comply with
25 civilians’ First Amendment rights. Defendant failed to do so by permitting WCSO officers
26 to indiscriminately deploy projectiles against citizens for peacefully demonstrating in public
27 fora.
28
15

2 under their supervision to target and use pepperballs against Ms. Gasca without reason, and
3 thereby improperly restrained and chilled Ms. Gasca’s right to free speech and expression.
4 93. Defendant Unknown Officer 2 is liable because they targeted and used
5 pepperballs against Ms. Gasca without reason, and thereby improperly restrained and chilled
6 Ms. Gasca’s right to free speech and expression.
8 Fourteenth Amendments, Ms. Gasca has suffered, is suffering, and will continue to suffer
9 damages in an amount subject to proof. In addition, Ms. Gasca , as a direct and proximate
10 result of Defendants’ actions, has sustained and continues to sustain severe mental or
11 physical pain and/or anguish of mind and is prevented from transacting in her usual business
12 and enjoyment.
(702)728-5300 (T) / (702)425-8220 (F)
14 Defendants Reno and Chief Soto and monetary, compensatory, and punitive damages from
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 Defendant Officers.
16 96. It has been necessary for Ms. Gasca to retain the services of attorneys to
17 pursue this matter and Plaintiffs are entitled to attorneys’ fees, costs, and prejudgment interest
18 herein.
20 FOURTH CAUSE OF ACTION: RETALIATION
22 PURSUANT TO 42 U.S.C. § 1983
23
forth herein.
24
99. Legal observers serve an important role that ensures law enforcement
25
officers respect the rights of citizens or are held accountable when they violate those rights.
26
Courts have recognized that, “Without journalists and legal observers, there is only the
27
government’s side of the story to explain why a ‘riot’ was declared and the public streets
28
16
1 were ‘closed’ and whether law enforcement acted properly in effectuating that order.” Index
2 Newspapers, 474 F. Supp. 3d at 1123.
3 100. Defendants, acting under color of law and in retaliation for Ms. Gasca’s
4 presence as a legal observer, violated Ms. Gasca’s right to assemble and record police
5 conduct, as is her right guaranteed by the First and Fourteenth Amendments to the U.S.
6 Constitution.
7 101. As a legal observer, Ms. Gasca was engaging in protected First Amendment
8 activity when she attended the May 30 BLM protest to document and record police
9 interactions with protestors to ensure their First Amendment rights are being respected. Ms.
10 Gasca was wearing a blue vest bearing the words “ACLU Legal Observer” while performing
11 her legal observer duties.
12 102. Police fired projectiles and hit Ms. Gasca with pepperballs. Ms. Gasca was
13 a significant distance from where crowds were protesting. Ms. Gasca was wearing the blue
(702)728-5300 (T) / (702)425-8220 (F)
14 vest identifying her as a legal observer. Ms. Gasca was not engaging in any threatening
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 conduct or anything that allowed or necessitated the use of force.

16 103. Notably, such a use of force was not deployed in response to protests that
17 did not communicate messages that were critical of police.
18 104. Defendants Reno and Soto do not have a legally cognizable interest in
19 preventing Ms. Gasca from serving as a legal observer that would override her right to act in
20 this capacity.
21 105. Defendant Unknown Officer 1’s authorization of officer(s) under their
22 supervision to shoot Ms. Gasca with pepperballs was retaliatory and violated her right to
23 freedom of speech, including her right to act as a legal observer and document potential
24 police misconduct, as guaranteed by the First and Fourteenth Amendments to the U.S.
25 Constitution.
26 106. Defendant Unknown Officer 2’s actions of shooting Ms. Gasca with
27 pepperballs were retaliatory and violated her right to freedom of speech, including her right
28
17
1 to act as a legal observer and document potential police misconduct, as guaranteed by the
2 First and Fourteenth Amendments to the U.S. Constitution.
3 107. Defendants Reno and Soto are liable because at all relevant times,
4 Defendant Reno and Soto are responsible for making and enforcing policies that respect
5 civilians’ First Amendment rights in a content-neutral manner.
7 responsible for making and enforcing for making and enforcing policies that respect
8 civilians’ First Amendment rights in a content-neutral manner.
9 109. Defendant Unknown Officer 1 is liable because they authorized officers to
10 use projectiles against protestors aligning themselves with messages and movements that
11 were critical of police.
12 110. Defendant Unknown Officer 2 is liable because they identified Ms. Gasca
13 as a legal observer for the ACLU, which regularly supports messages critical of the police,
(702)728-5300 (T) / (702)425-8220 (F)
14 and retaliated against her by shooting her with pepperballs even though she was peacefully
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 exercising her right to free expression.

18 damages in an amount subject to proof. In addition, Ms. Gasca, as a direct and proximate
20 physical pain and/or anguish of mind and is prevented from transacting in her usual business
21 and enjoyment.
26 pursue this matter and Plaintiffs are entitled to attorneys’ fees, costs, and prejudgment interest
27 herein.
28 ///
18
FIFTH CAUSE OF ACTION: RIGHT TO ASSEMBLY

1
3
4
forth herein.
5
115. First Amendment rights of free speech and assembly are protected by the
6
Fourteenth Amendment from invasion by the States. Edwards, 83 S.Ct. at 683.
7
116. Defendants, acting under color of law, violated Ms. Gasca’s right to
8
assembly as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution.
9
117. Defendants’ use of pepperballs on Ms. Gasca and other non-party
10
individuals on May 30, 2020, violated Ms. Gasca’s right to assembly, as guaranteed by the
11
First and Fourteenth Amendments to the U.S. Constitution.
12
118. Defendants Reno and Chief Soto are liable because at all relevant times,
13
(702)728-5300 (T) / (702)425-8220 (F)
Defendants were responsible for making and enforcing policies that respect the right to
14
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
assembly guaranteed by the First and Fourteenth Amendments. Defendants failed to do so

15
by permitting its officers to regulate peaceful protestors and legal observers and use projectile
16
weapons against citizens for demonstrating in public fora.
17
119. Defendant Sheriff Balaam is liable because at all relevant times, he was
18
responsible for making and enforcing policies that respect the right to assembly guaranteed
19
by the First and Fourteenth Amendments. Defendant failed to do so by permitting WCSO
20
officers to regulate peaceful protestors and legal observers and use projectile weapons against
21
citizens for demonstrating in public fora.
22
120. Defendant Unknown Officer 1 is liable because they authorized officer(s)
23
to use projectiles in an attempt to prevent Ms. Gasca and other non-party protestors from
24
continuing to exercise their First Amendment right to assemble in public fora.
25
121. Defendant Unknown Officer 2 is liable because they fired projectiles in an
26
attempt to prevent Ms. Gasca and other non-party protestors from continuing to exercise their
27
First Amendment right to assemble in public fora.
28
122. As a direct and proximate cause of Defendants’ violations of the First and
19
2 damages in an amount subject to proof. In addition, Ms. Gasca , as a direct and proximate
4 physical pain and/or anguish of mind and are prevented from transacting in her usual business
5 and enjoyment.
10 pursue this matter and Plaintiff is entitled to attorneys’ fees, costs, and prejudgment interest
11 herein.
13 SIXTH CAUSE OF ACTION: EXCESSIVE FORCE
(702)728-5300 (T) / (702)425-8220 (F)
VIOLATION OF THE CONSTITUTION OF THE STATE OF NEVADA – EXCESSIVE FORCE

14
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15
forth herein.
16
127. Article 1, Section 18 of the Nevada Constitution provides that “[t]he right
17
of the people to be secure in their persons, houses, papers and effects against unreasonable
18
seizures and searches shall not be violated; and no warrant shall issue but on probable cause,
19
supported by Oath or Affirmation, particularly describing the place or places to be searched,
20
and the person or persons, and thing or things to be seized.”
21
128. Defendants, acting under color of law, violated Ms. Gasca’s right to be free
22
from unreasonable state action as guaranteed by Article 1, Section 18 of the Nevada
23
Constitution.
24
129. Defendants violated Ms. Gasca’s right to be free from unreasonable state
25
actions when they shot her with projectiles even though she was a significant distance from
26
the protest crowd and was clearly designated as a legal observer rather than a protest
27
participant. Ms. Gasca did not pose any threat to officers. Ms. Gasca even had her hands
28
above her head right before she was shot, clearly complying with their demands and
20
1 attempting to communicate that she was not armed and not a threat.
4 use of force.
7 force.
8 132. Defendant Unknown Officer 1 is liable because they were responsible for
9 authorizing officers to indiscriminately deploy projectiles against protestors and legal
10 observers such as Ms. Gasca who did not pose any threat to officers or others.
12 unreasonable force when deciding to repeatedly shoot pepperballs at Ms. Gasca despite her
13 clear indication of compliance and the significant distance between her and anyone who
(702)728-5300 (T) / (702)425-8220 (F)
14 could have perceived her as a threat. Ms. Gasca is entitled to monetary and compensatory
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 damages from Defendant Reno, Chief Soto, and Sheriff Balaam and monetary,
16 compensatory, and punitive damages from Defendant Officers.
19 herein.
21 SEVENTH CAUSE OF ACTION: FREEDOM OF SPEECH
VIOLATION OF THE CONSTITUTION OF THE STATE OF NEVADA – FREE SPEECH
22 PROTECTIONS
23 136. Plaintiff repeats and realleges Paragraphs 1 through 136 as though fully set
24 forth herein.
25 137. Article 1, § 9 of the Constitution of the State of Nevada provides “[e]very
26 citizen may freely speak, write, and publish his sentiments on all subjects . . . and no law
27 shall be passed to restrain or abridge the liberty of speech[.]”
28 138. Ms. Gasca was engaged in activities protected by the Nevada Constitution
21
1 when she exercised her right to free speech and expression when acting as a legal observer
2 for the May 30, 2020, protest concerning police brutality.
3 139. Defendants, acting under color of law, violated Ms. Gasca’s right to free
4 speech under the Nevada Constitution when they shot her with projectiles while she served
5 as a legal observer. Her physical injuries prevented her from attending subsequent protests,
6 and the emotional trauma she suffered from being shot prevented her from acting as a legal
7 observer or attending future protests.
8 140. Defendants’ actions, as alleged herein, constitute violations of Plaintiffs’
9 rights under the Constitution of the State of Nevada, Art. 1, § 9.
12 use of force, which deterred and abridged Ms. Gasca’s right to free speech.
(702)728-5300 (T) / (702)425-8220 (F)
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 force, which deterred and abridged Ms. Gasca’s right to free speech.
17 under their supervision to use excessive force indiscriminately with the purpose and/or effect
18 of suppressing the free speech of attendees such as Ms. Gasca.
19 144. Defendant Unknown Officer 2 is liable because they used excessive force
20 indiscriminately with the purpose and/or effect of suppressing the free speech of attendees
21 such as Ms. Gasca.
26 pursue this matter, and Plaintiff is entitled to attorney’s fees, costs, and prejudgment interest.
27 147. As a direct and proximate result of Defendants’ violations of Nevada
28 Constitution, Ms. Gasca has suffered, is suffering, and will continue to suffer damages in an
22
1 amount subject to proof.

2 EIGHTH CAUSE OF ACTION:
NEGLIGENT SUPERVISION
3 UNDER NEV. REV. STAT. § 41.130
4 148. Plaintiff repeats and re-allege Paragraphs 1 through 148 as though fully set
5 forth herein.
6 149. RPD’s Use of Force policy in place during the May 30, 2020 protest in
7 downtown Reno adopts a necessity-based approach to the use of non-deadly force. RPD
8 officers “may use only that level of force that is objectively reasonable to bring an incident
9 under control.” Non-deadly force is only authorized to (1) protect the officer or others from
10 physical harm; (2) restrain or subdue a resistant individual; and/or, (3) bring an unlawful
11 situation safety and effectively under control. (RPD Use of Force Policy, p. 2.)
12 150. When determining whether a use of force is objectively reasonable, officers
13 must consider the severity of the target’s crime, the threat or resistance the target is
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14 expressing, and whether they are a danger to the community (RPD Use of Force Policy, p.
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 2.)
16 151. RPD officers acted in a manner that is clearly not objectively reasonable
17 when shooting Ms. Gasca with pepperballs. Ms. Gasca was not committing any crime when
18 peacefully observing the May 30 protest, and certainly could not have reasonably been
19 suspected of any crime. Ms. Gasca had even indicated to officers that she was not resisting
20 or threatening them or others by raising her hands above her head. For the same reasons,
21 RPD’s decision to shoot her with pepperballs was not justified by any purported threat to the
22 community.
23 152. As the incident commander for the BLM protests which took place in the
24 Downtown Reno area on May 30, 2020, Defendant Unknown Officer 1 had a duty to use
25 reasonable care in the supervision of police officers under their command to ensure that
26 officers complied with RPD’s Use of Force Policy, including but not limited to its policy
27 limiting the use of specialty impact weapons such as rifles which fire pepperballs.
28 153. Defendant Unknown Officer 1 breached that duty by permitting the officers
23
1 under their command at the May 30, 2020 protest to indiscriminately fire pepperballs at
2 individuals, including Ms. Gasca, who did not take any actions to prompt a use of force.
3 154. As a direct and proximate result of Defendant Unknown Officer 1’s failure
4 to supervise the officer(s) under their command during the May 30 protest, Ms. Gasca
5 suffered, is suffering, and will continue to suffer damages in an amount subject to proof.
7 were responsible for hiring and training officers on adherence to department policies.
9 Defendant Reno and Chief Soto and monetary, compensatory, and punitive damages from
10 Defendant officers.
12 pursue this matter, and Plaintiffs are entitled to attorney’s fees, costs, and prejudgment
13 interest.
(702)728-5300 (T) / (702)425-8220 (F)
NINTH CAUSE OF ACTION: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

14
LAS VEGAS, NV 89101
ATTORNEYS AT LAW
UNDER NEV. REV. STAT. § 41.130

15 158. Plaintiff repeats and realleges Paragraphs 1 through 158 as though fully set
16 forth herein.
17 159. Individuals whose constitutional rights have been violated are entitled to
18 damages related to the emotional distress they suffered. To prove intentional infliction of
19 emotional distress, a person must show (1) that the defendant’s conduct was extreme and
20 outrageous; (2) that the defendant either intended or recklessly disregarded the causing of
21 emotional distress; (3) that the plaintiff actually suffered severe or extreme emotional
22 distress; and (4) that the defendant’s conduct actually or proximately caused the distress.”
23 Nelson v. Las Vegas, 665 P.2d 1141, 1145 (Nev. 1983).
24 160. Unknown Officer 1 conducted themselves with a reckless disregard for
25 inflicting emotional distress on Ms. Gasca by authorizing officer(s) under their supervision
26 to shoot her with pepperballs. This conduct was outrageous because Ms. Gasca was identified
27 as a legal observer rather than a potentially disruptive protester. She had her arms above her
28 head right before she was shot for the first time, indicating to officers that she was not a
24
1 threat and had every intent of complying with orders. Further, she was separated by the
2 protest action by a significant distance—the mingling of protestors was occurring on Center
3 Street which was separated from the line of officers on Virginia Street, and Ms. Gasca was
4 between those parties in a parking lot otherwise empty of any persons when she was first
5 shot.
6 161. Unknown Officer 2 conducted themselves with a reckless disregard for
7 inflicting emotional distress on Ms. Gasca by shooting her with pepperballs. This conduct
8 was outrageous because Ms. Gasca was identified as a legal observer rather than a potentially
9 disruptive protester. She had her arms above her head right before she was shot for the first
10 time, indicating to officers that she was not a threat and had every intent of complying with
11 orders. Further, she was separated by the protest action by a significant distance—the
12 mingling of protestors was occurring on Center Street which was separated from the line of
13 officers on Virginia Street, and Ms. Gasca was between those parties in a parking lot
(702)728-5300 (T) / (702)425-8220 (F)
14 otherwise empty of any persons when she was first shot.

LAS VEGAS, NV 89101
ATTORNEYS AT LAW
16 were responsible for hiring and training officers on adherence to department policies.
18 responsible for hiring and training officers on adherence to department policies.
19 164. As a direct and proximate result of Defendants’ conduct, Ms. Gasca has
20 suffered, is suffering, and will continue to suffer damages in an amount subject to proof. In
21 addition, Ms. Gasca , as a direct and proximate result of the Defendants’ actions, has
22 sustained and continues to sustain severe mental or physical pain and/or anguish of mind,
23 and is prevented from transacting in her usual business and enjoyment.
24 165. Ms. Gasca is entitled to compensatory damages from Defendants.
27 herein.
28
25
1 PRAYER FOR RELIEF

2 WHEREFORE, Plaintiff respectfully prays as follows:
3 a. A declaration that Defendants Reno, Chief Soto, and Sheriff Balaam’s
4 failures to make or enforce policies and practices with respect to preventing the use of force
5 against Plaintiff violated her constitutional rights;
6 b. A permanent injunction prohibiting RPD and WCSO from using excessive
7 force as crowd control measures, including but not limited to pepperballs, against peaceful
8 protestors and legal observers who are only engaged in passive resistance, including passive
9 resistance to an order to disperse. In any case where RPD or WCSO uses less lethal weapons,
10 it must ensure that no person who is engaged in observation or passive resistance is impacted
11 or affected by those weapons;
12 c. An award requiring all Defendants to pay monetary and compensatory
13 damages in an amount to be determined at trial;
(702)728-5300 (T) / (702)425-8220 (F)
14 d. An award against the individual Defendants for punitive damages in an

LAS VEGAS, NV 89101
ATTORNEYS AT LAW
15 amount to be determined at trial;

16 e. An award of attorney’s fees and expenses under 42 U.S.C. § 1988(b); and
17 f. Any further relief the Court deems appropriate.
18 DATED this 27th day of May, 2022.
19
20 /s/ Margaret A. McLetchie
MARGARET A. MCLETCHIE, Nevada Bar No. 10931
21 LEO S. WOLPERT, Nevada Bar No. 12658
MCLETCHIE LAW
22
602 South Tenth Street
23 Las Vegas, NV 89101
Telephone: (702) 728-5300; Fax: (702) 425-8220
24 Email: [email protected]
25 Counsel for Plaintiff
26
27
28
26

Rebecca Gasca v. City of Reno Lawsuit

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Rebecca Gasca v. City of Reno Lawsuit

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Case 3:22-cv-00238-MMD-CSD Document 1 Filed 05/27/22 Page 1 of 26

1 MARGARET A. MCLETCHIE, Nevada Bar No. 10931

7 UNITED STATES DISTRICT COURT

capacity as the Chief of the Reno Police

Department; DARIN BALAAM, in his

1 drastically outsized responses to demonstrators’ presence.

15 activities such as protests that do not relate to criticism of law enforcement.

14 their allegations concerning defendants named herein.

15 24. On information and belief, Defendants Unknown Officer 2 is the RPD

PURSUANT TO 42 U.S.C. § 1983

1 Amendments to the United States Constitution.

PURSUANT TO 42 U.S.C. § 1983

15 Ms. Gasca to be deprived of her constitutional rights in violation of 42 U.S.C. § 1983.

1 92. Defendant Unknown Officer 1 is liable because they authorized officer(s)

15 conduct or anything that allowed or necessitated the use of force.

15 exercising her right to free expression.

FIFTH CAUSE OF ACTION: RIGHT TO ASSEMBLY

assembly guaranteed by the First and Fourteenth Amendments. Defendants failed to do so

VIOLATION OF THE CONSTITUTION OF THE STATE OF NEVADA – EXCESSIVE FORCE

1 amount subject to proof.

NINTH CAUSE OF ACTION: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

UNDER NEV. REV. STAT. § 41.130

14 otherwise empty of any persons when she was first shot.

1 PRAYER FOR RELIEF

14 d. An award against the individual Defendants for punitive damages in an

15 amount to be determined at trial;

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