Mesa Police Department

Mesa Police Department

Mesa Police Department Complaint

Lihosit 1983 Complaint

 

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
JEFFREY LIHOSIT, a single man;
Plaintiff,
v.
JASON FLAM and JANE DOE FLAM,
husband and wife; OFFICER CARROLL and
JANE DOE CARROLL, husband and wife;
CITY OF MESA, a municipal entity; and
JOHN DOES I-X, ABC CORPORATIONS IX, and XYZ PARTNERSHIPS I-X,
Defendants.
)
)
Case No.
COMPLAINT
(42 U.S.C. § 1983)
Plaintiff Jeffrey Lihosit (“Jeffrey”) files this civil action against Jason Flam, Officer
Carroll, and the City of Mesa (collectively “Defendants”), pursuant to the United States
Constitution, Title 42 U.S.C. § 1983 seeking damages for committing acts under the color of
law which deprived Jeffrey of rights secured under the Constitution. In addition, this is a
civil action seeking damages against Defendants for intentional wrongdoing under the
common and statutory laws of Arizona.
Marc J. Victor, SBN 016064
Richard A. Cruz, SBN 023164
MARC J. VICTOR, P.C.
3920 South Alma School Road, Suite 5
Chandler, Arizona 85248
Phone: (480) 755-7110
Fax: (480) 755-0150
[email protected]
[email protected]
Attorney for Plaintiff

JURISDICTION AND VENUE
1. This action arises because members of the Mesa City Police Department used
excessive force while arresting Jeffrey outside of his home, violating his rights protected by
the United States Constitution and the laws of Arizona.
2. This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C.
§ 1343, and supplemental jurisdiction under 28 U.S.C. § 1367.
3. Venue is proper as the events complained of occurred in the city of Mesa,
Arizona, a municipality located within Maricopa County, Arizona.
4. Plaintiff demands a jury trial.
PARTIES
5. Plaintiff Jeffrey Lihosit, a single man, was at all relevant times a resident of
Maricopa County, Arizona.
6. Upon information and belief , Defendants Jason Flam and Jane Doe Flam are
residents of Maricopa County, Arizona. Defendant Flam was at all relevant times a Mesa
City Police Officer acting within the course and scope of his employment with Defendant
City of Mesa. Defendant Flam is being sued in both his individual and official capacities.
Once Plaintiff determines Jane Doe Flam’s true name, he will seek leave of this Court to
amend his complaint and set forth her true name.
7. Upon information and belief, Defendants Officer Carroll and Jane Doe Carroll
are residents of Maricopa County, Arizona. Defendant Carroll was at all relevant times a
Mesa City Police Officer acting within the course and scope of his employment with
Defendant City of Mesa. He was serving as Defendant Flam’s “cover” during the event
complained of. Defendant Carroll is being sued in both his individual and official capacities.
Once Plaintiff determines Jane Doe Carroll’s true name, he will seek leave of this Court to
amend his complaint and set forth her true name.
8. Defendant City of Mesa is a public municipal corporation formed and
designated as such pursuant to Title 9 of the Arizona Revised Statutes. It deploys a police
force that operates under and administers a set of law enforcement policies, practices and
customs involving the hiring, training and supervision of its police officers. These policies,
practices and customs include training in the use of force and on-the-street encounters with
civilians as well as firearm training. As such, it is the subject to this civil suit and it may be
held liable both directly and vicariously for the wrongful conduct of its police officers.
9. Defendants, at all material times, did cause to occur in the State of Arizona,
County of Maricopa, the events that are the subject matter of this lawsuit and which events
were performed for and on behalf of their community and separate estates.
10. Defendants John and Jane Does I-X, ABC Corporations I-X and XYZ
Partnerships I-X are fictitiously named persons, entities, presidents, officers, employers
and/or owners whose action or actions or relationship to Defendants may render them liable
to the Plaintiff for his injuries and damages herein complained of. Plaintiff reserves the right
to amend the Complaint to reflect their true names.

STATEMENT OF RELEVANT FACTS
11. On the evening of October 29, 2014, Jeffrey arrived at his home in Mesa,
Arizona to Defendant officers Flam and Carroll waiting in his driveway. A conversation took
place regarding Jeffrey’s recent communication with his ex-wife.
12. While answering questions, Jeffrey was calm, smoking a cigarette and holding
a cup of coffee. The conversation was cordial and amicable. At no point did Jeffrey threaten
or pose any threat to either officer on the scene.
13. During the discussion, Jeffrey tried to clear the air and read a text message from
his ex-wife to the officers. Jeffrey calmly read the text, stating verbatim: “…this is
ridiculous, just like you.”
14. Upon hearing Jeffrey and without provocation, Carroll threatened to “punch

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15. Shocked, Jeffrey asked Carroll if he just threatened to “punch me in the face.”
16. At this point, Flam tried to cover up Carroll’s threat and stated Carroll did not
make such a threat. However, Flam’s body video confirms Carroll did threaten bodily harm
to Jeffrey.
17. Jeffrey requested to speak with Flam and Carroll’s supervisor.
18. Both officers ignored Jeffrey’s request; instead, Flam became very aggressive
and drew his taser, pointing the red dot at Jeffrey’s chest. Jeffrey was unarmed, nonthreatening, andwas holding a cell phone in one hand and a coffee in the other. Despite
Jeffrey’s submissive posture, Flam threatened Jeffrey stating, “You are about to be lit up!”
19. Flam and Carroll proceeded to arrest Jeffrey in front of his family, friends and
neighbors.
20. The entire event took place in Jeffrey’s front yard, and was witnessed by
numerous neighbors and people driving by.
21. Flam and Carroll’s actions were not only unreasonable, reckless and excessive,
their intentional acts to hide and lie about Carroll’s threat to Jeffrey are punitive in nature.
22. Defendant Flam and Carroll’s acts throughout the arrest of Jeffrey have resulted
in an array of maladies. Jeffrey has been subjected to anguish and pain and suffering, posttraumatic stress-disorder, humiliation in front of his kids, girlfriend and neighbors, and
families in the neighborhood won’t let their kids play with Jeffrey’s kids anymore.
Additionally, his cherished role has a scout leader of his son’s boy-scout group is now
jeopardized due to rumors stemming from this incident.
23. At all times relevant to this action, Defendants Flam and Carroll were acting
under the color of law and within the course and scope of their employment as duly appointed
law enforcement officers.
24. At all times relevant to this action, Defendant City of Mesa had in effect and
was responsible for the policies and procedures followed by Defendants Flam and Carroll,
and was further responsible for the hiring, supervision, monitoring and disciplining of the
involved officers.

COUNT I
CIVIL RIGHTS-42 U.S.C. § 1983
Fourth Amendment & Deprivation of Civil Rights
25. Plaintiff incorporates by reference every paragraph contained above.
26. At the time of this incident, Defendants Flam and Carroll were performing their
duties as police officers, acting under the color of law.
27. Defendants Flam and Carroll acted with deliberate indifference to and reckless
disregard for the safety and well-bing of Jeffrey with the specific intent to deprive Jeffrey of
his constitutional rights secured by the Fourth Amendment to the United States Constitution,
including his right to be secure in his person and free from the use of unreasonable force and
threats.
28. Defendants Flam and Carroll acted unreasonable by using force when it was
patently unnecessary to prevent injury to officers or third persons.
29. Defendants Flam and Carroll acted in concert and worked off of each other in
order to commit the violation upon Jeffrey.
30. The behavior of Defendant Flam, drawing his taser and pointing it at Plaintiff
using threats, was not necessary and shocking to the conscious.
31. Defendant Flam and Carroll’s unjustified use of excessive force on an unarmed
person was unreasonable and excessive.
32. Defendant Flam and Carroll’s actions were unreasonable under the
circumstances.
33. As a direct and proximate result of Defendants acts, omissions, and
constitutional violations stated above, Jeffrey suffered injuries in an amount to be proven at
trial.
Municipal Liability against Defendant City of Mesa
34. Plaintiff incorporates by reference every paragraph contained above.
35. Defendant City of Mesa acted with indifference to the rights of the citizens of
Mesa, including Jeffrey, protected by the Fourteenth and Fourth Amendments.
36. Defendant Flam and Carroll’s unreasonable acts were followed pursuant to a
policy, practice, or custom put in place by the policymakers of the Defendant City of Mesa.
37. Defendant City of Mesa had a policy, practice, or custom of failing to
adequately train officers in charge of arresting peaceful citizens, and failing to put in place a
plan for when individuals ask to speak to supervisors.
38. Defendant City of Mesa had a policy, practice, or custom of failing to
adequately train officers to recognize the boundaries of their constitutional authority, and
such failure constitutes deliberate indifference.
39. As a direct and proximate result of Defendant City of Mesa’s actions, Plaintiff
suffered mental anguish and pain and suffering, post-traumatic stress disorder and other
damages in an amount to be proven at trial.
COUNT II
CIVIL RIGHTS-42 U.S.C. § 1983
Excessive Force/Police Brutality
40. Plaintiff incorporates by reference every paragraph contained above.
41. At all times relevant herein, Defendants Flam and Carroll had a duty to employ
only reasonable measures in their interaction and treatment of Jeffrey.
42. Notwithstanding said obligations, Defendants Flam and Carroll wrongfully,
unlawfully and maliciously used excessive and unreasonable force on Jeffrey, inasmuch as no
force whatsoever was warranted under the circumstances nor authorized under the law.
43. Defendant City of Mesa had a policy, practice, or custom of failing to
adequately train, monitor and educate officers to recognize the boundaries of their
constitutional authority and force needed under the circumstances.
44. As a direct and proximate result of the intentional, reckless and wrongful
actions of Defendants, Jeffrey was deprived of his constitutional right to be free from the use
of excessive force by a law enforcement officer.
COUNT III
DEPRIVATION OF CIVIL RIGHTS-42 U.S.C. § 1983
45. Plaintiff incorporates by reference every paragraph contained above.
46. Defendants Flam and Carroll, with deliberate indifference to and reckless
disregard for the safety and well-being of Jeffrey, and in violation of the Fourth Amendment
to the Constitution, committed or allowed to be committed an unreasonable denial of
Jeffrey’s freedom and threatened use of a dangerous weapon.
47. As a direct and proximate result of the unreasonable actions of Defendants
negligence, Jeffrey suffered injuries in an amount to be proven at trial.

COUNT IV
CIVIL RIGHTS-42 U.S.C. § 1983
Negligent Training and Supervision Amounting to Deliberate Indifference
48. Plaintiff incorporates by reference every paragraph contained above.
49. At all times relevant herein, Defendants Flam and Carroll were acting under the
direction and control, and pursuant to the rules, regulations, policies and procedures of
Defendant City of Mesa.
50. Defendant City of Mesa acted negligently, carelessly, recklessly and with
deliberate indifference in failing to properly train, supervise, control, direct and monitor the
members of its police force involved in interacting with the public, and in particular,
Defendants Flam and Carroll in their duties and responsibilities.
51. As a direct and proximate result of the acts and omissions of Defendant City of
Mesa, Jeffrey was wrongfully, unlawfully and unnecessarily harmed by their actions.
COUNT V
Negligence
52. Plaintiff incorporates by reference every paragraph contained above.
53. This Cause of Action is brought pursuant to Arizona state law.
54. Defendants Flam and Carroll failed to act with reasonable care under the
circumstances.
55. Defendants Flam and Carroll breached the proper standard of care by using
excessive force.
56. Defendant City of Mesa is vicariously liable under respondeat superior for the
actions of any employee, agent, or servant of the City of Mesa, including that of Defendants
Flam and Carroll.
57. As a direct and proximate result of Defendants’ negligence, Jeffrey suffered
mental anguish and pain and suffering in an amount to be proven at trial.
COUNT VI
Assault & Battery
58. Plaintiff incorporates by reference every paragraph contained above.
59. This Cause of Action is brought pursuant to Arizona state law.
60. Defendants Flam and Carroll, acting as agents of Defendant City of Mesa,
intentionally and unlawfully placed Jeffrey in reasonable apprehension of imminent physical
injury when (1) Defendant Carroll threatened to punch Plaintiff in the face, and when (2)
Defendant Flam threatened to “light [Jeffrey] up” with his taser.
61. The threats by both Defendants were instances of unlawful use of force given
the circumstances.
62. Defendants Flam and Carroll, acting as agents for Defendant City of Mesa,
intended to cause harm or offensive contact with Jeffrey.
63. Defendants Flam and Carroll did in fact make offensive contact with Jeffrey.
64. Defendant City of Mesa is vicariously liable under respondeat superior for the
actions of any employee, agent, or servant of the City of Mesa, including that of Defendants
Flam and Carroll.
65. As a direct and proximate result of Defendants’ actions, Jeffrey suffered mental
anguish and pain and suffering in an amount to be proven at trial.
COUNT VII
Intentional Infliction of Emotional Distress
66. Plaintiff incorporates by reference every paragraph contained above.
67. Defendants Flam and Carroll intentionally caused severe emotional distress to
Jeffrey by their extreme, outrageous and indifferent conduct.
68. As a direct and proximate result of Defendants’ actions, Jeffrey suffered
emotional distress and mental anguish in an amount to be proven at trial
WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and
severally, in the full and fair amount to be proven at trial, including:
A. General Damages
B. Compensatory Damages
C. Punitive Damages
D. Attorneys Fees
E. Interest and Costs
DATED this 1
day of July 2015.
MARC J. VICTOR, P.C
/s/ Richard A. Cruz, Esq.
Attorney for Plaintiff

 

Mesa Police Department Complaint

Lihosit 1983 Complaint