SCOTT TRIAL LAWYERS [A PROFESSIONAL CORPORATION January 9, 2018, Jackie A. Meck, Mayor City of Buckeye 530 East Monroe Avenue Buckeye, AZ 85326 Lucinda Aja, City Clerk City of Buckeye 530 East Monroe Avenue Buckeye, AZ 85326 Re: Tort Claim, Connor L. et af v. City of Buckeye et a, Dear Sir and Madam: |. Introduetion. Please accept this letter as a claim for damages under A.R.S, 12-821.01 on behalf of Connor Leibel, a 14-year-old autistic boy, and his parents Danielle and Kevin Leibel, Connor L. was detained without legal cause by Buckeye Police Officer David Grossman on or about July 19, 2017. Grossman purportedly mistook Connor's autistic mannerisms for that of a drug-abuser. Grossman detained, physically seized, and took Connor to the ground as a result, causing significant injuries and damage that continues to this day, Connor's treatment violated a host of Constitutional, statutory, and common law rights under both Federal and state law. By this letter we offer to resolve this case and to release the City of Buckeye from any and all claims relating to this matter. Asa preliminary matter, | address this letter to both of you in an abundance of caution, and in rellance on Ariz. R, Civ, P. 4.1 (providing for service upon a city by serving the “chief executive officer, the secretary, clerk, or recording officer thereof’). After a diligent online search, it does not appear that Buckeye has publicly designated a different agent for service of process. | inquired through Buckeye’s online help portal where to address the tort claim, but was told that Buckeye could not give legal advice and referred to the tort statute. After | clarified that ! was seeking, factually, the identity of the agent for service, an attorney hired by the City wrote to request that I not contact Buckeye with these “legal” 1250 Cohen Set Suite 600, San Dlga,CA V2 | 1 IPSS) | (6126529964 | awenscottatonyes.comquestions. So | inquired whether the attorney—who has already sent me a letter of representation— would simply accept service. That letter was ignored. Sadly, ths is consistent with the Lelbels's experience thus far. After Connor's injury, we sent a letter to the police chief. See attached as Exhibit 1, Above all the Leibels wanted an apology, some. community service for the officer, and changes in training, We pledged to resolve any economic damages to Connor quickly and fairly if those three things were addressed. Id. The Buckeye Police Department has ignored the letter. Although the family remains willing to resolve this case in good faith, Buckeye’s responses (and lack thereof) do not engender a great deal of optimism, So itis with 3 heavy heart, and having received no meaningful response or apology from Buckeye to date, that Connor Land his family are forced to pursue legal action as described below. |, Background: “Facts upon which liability is claimed.” Connor is @ 14-year-old boy who has been diagnosed with Autism Spectrum Disorder. Like many who live with autism, Connor relies on “stimming”—repetitive physical movements'—that help him cope with his environment. Anyone who has received training about autism is familiar with stimming. This is Connor: + See www.cde,gow/nebddd/autism/signs.html (last visited January 9, 2018) (“people with an ASD spend a lot of time repeatedly flapping their arms or racking from side to side. .. .These types of activities are known as self-stimulation or ‘stimming.’”)(On July 19, 2017, Connor's caregiver took him to a public park, at Verrado Town Square in the City of Buckeye. The caregiver, a woman named Diane Craglow, had stepped across the street for @ moment to look into @ music lesson for Connor's little sister. Ms. Craglow permitted Connor to stay behind and play—an appropriate decision given Connor's age (14) and the setting (a bucolic park at 3:30, inthe afternoon). Ms. Craglow also felt comfortable given the fact that Connor does not behave ‘aggressively to others. Moreover, he has never been mistaken—by anyone, ever—for a drug-user or criminal, Connor had played alone at the same park many times without incident. But this day, Officer David Grossman drove by on patrol. He noticed Connor playing, and also noticed his “stimming” behaviors. With no further information to suggest that anything was amiss, Officer Grossman stopped his truck—an unmarked black pickup—and quickly approached Connor, Grossman’s body camera captured what followed.” Grossman first asked Connor what he was doing. Connor responded, “Me? Good.” When asked again what he was doing, Connor answered precisely and accurately: “'m stimming,” he said. Grossman commanded, “stop walking away from me.” Connor simultaneously held up the string he was holding and explained, “I stim with this. It's a string.” By that point at the very latest, Connor's behavior and answers had dispelled any suggestion that he had drug paraphernalia or other contraband in his hand, It should have been apparent that he was not breaking the law in any way. But Grossman had never received training on autism, stimming, or even on dealing with ‘mentally disabled persons generally. He plainly had no idea what Connor was talking about. Instead, as a “drug recognition expert,” he purportedly suspected Connor of using drugs.* Grossman asked if Connor had identification. Connor said no, and turned to leave. At that point, Officer Grossman forcibly grabbed Connor and began placing his hands behind his back to handcuff him, Predictably, ® Connor began screaming, as Officer Grossman slammed him against a nearby tree and forcibly took him to the ground, 2 In fact, small steps towards the outside world and integration into the community represent the overarching goals of many autistic people and their families. See e.g. www.autism-society.org/living= \with-autism/community-inclusion (last visited January 8, 2018) ("Being a part of a community and feeling included is extremely important in people's lives.") 3 The City of Buckeye already possesses this video footage, including in unredacted form. We Incorporate that footage by reference here, and encourage you to refer to it to help evaluate liability in this matter. + As discussed below, Grossman had never received any mental-health training on what is not a sign or symptom of drug use. Claiming to be a drug-recognition expert without being able to distinguish behavior that is not caused by drug use is akin to claiming to be a bird expert without being able to discern which animals are not birds, 5 See e.g, www.autismspeaks.ora/what-autism/symptoms (last visited January 8, 2018) (describing “hypersensitive[ity] to sounds or touch, a condition also known as sensory defensiveness.Connor's caregiver returned to the scene almost immediately. She quickly and calmly told the officer that Connor had autism. She told him that Connor's behavior was called “stimming.” She also exclaimed that Connor's hand was turning white under the officer's weight. Nevertheless, Grossman refused to allow Connor off the ground until “backup” arrived. Connor remained pinned to the ground, under Grossman's weight, until additional officers reached the scene. These facts give rise to liability against both the City of Buckeye and Officer Grossman on a host of legal theories.® By the time Grossman seized Connor and took him to the ground, he had no probable ‘cause or reasonable suspicion to do so. He used excessive force against Connor throughout the encounter, He continued the force against Connor, and refused to release him, even after being told that Connor was autistic and after It was clear (to any objectively reasonable person) that he posed no threat to anyone. Grossman is liable under 42 U.S.C. § 1983 for all these reasons. The City of Buckeye itself is also liable under § 1983 and Monell v. Department of Social Services, 436 U.S, 658 (1978). Buckeye failed to adequately train Officer Grossman, and it wrongfully retained him despite notice that he was unfit for duty. Indeed, after the incident with Connor, it came to light that Officer Grossman had a checkered past with the Buckeye Police Department. According to Grossman's personnel file, supervisors have long been “concemed that [Grossman's] situational awareness may not be adequate enough for the rigors of law enforcement.”” Ina different incident predating Connor's, Grossman again grabbed a teenage boy at a park, wrestled him to the ground and used force against him, AA Performance Improvement Plan recognized the obvious—and the obvious problems with employing Grossman: "As we have previously discussed, ‘seizing’ a person requires articulation which you could not provide when you performed these actions. ... Looking for charges after an arrest is made is unacceptable and unconstitutional.” See Exhibit 2, Performance Improvement, Plan, at 2. Yet after these incidents, Grossman remained a Buckeye Officer and was permitted to encounter Connor L. without another officer's supervision. Then the Department defended and ratified Grossman's wrongful actions, All of these issues constitute cognizable claims under § 1983; each permit all of the remedies provided by that statute. ‘The City also violated Title Il of the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq., and similar provisions of the Rehabilitation Act, 29 U.S.C. § 794. There's no question that Connor is disabled within the meaning of the statute. See Ninth Circuit Model Civil Jury Instr, 12.2. And the ADA applies broadly to “services, programs, or activities” which encompass virtually “anything @ public entity does.” Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev'd in part on unrelated ‘grounds, City & Cty. of San Francisco, Calli. v. Sheehan, 135 S. Ct. 1765 (2015). “Under Ninth Circuit precedent, Title Il of the ADA applies to arrests.” Sheehan, 743 F.3d at 1232. As applicable here, the Ninth Circuit recognizes two types of Title Ii claims stemming from police © This list is not meant to be exhaustive. It's also without prejudice to other claims and causes of action that may be stated as discovery and investigation continue, > see www.abes,com/news/local-news/investigations/buckeye-officerwho-mnistook-teen-with-autism- for-drug-user-has-checkered-history, (last visited January 8, 2018) 4arrests: (1) wrongful arrest, where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity; and (2) reasonable accommodation, where, although police properly investigate and arrest a person with a disability for a crime unrelated to that disability, they fail to reasonably accommodate the person's disability n the course of investigation or arrest, causing the person to suffer greater injury or indignity in that process than other arrestees. Id. Both theories apply here. See generally Patrice v. Murphy, 43 F.Supp.2d 1156, 1158-60 (W.D.Wash.1999) (surveying cases). Beyond this case law, legislative history demonstrates that Congress envisioned situations precisely like Connor's in passing and implementing the ADA: “In order to comply with the non- discrimination mandate,” Congress asserted, “itis often necessary to [train] public employees about disability, For example, persons who have epilepsy, and a variety of other disabilities, are frequently inappropriately arrested and jailed because police officers have not received proper training in [how to recognize and aid people having] seizures.... Such discriminatory treatment based on disability can be avoided by proper training.” H.R.Rep. No. 101-485, pt. Ill (1990), reprinted in 1990 U.S.C.CA.N. 445. It is difficult to imagine a clearer congressional mandate that public entities provide this kind of training, But Officer Grossman did not receive this ADA-required training. We know this because Buckeye has already said so, in writing. As the post-incident internal report states: “Officer Grossman has not been trained in handling special needs people or mentally il persons. Only certain Officers in this department went to Critical Incident Training (CIT) due to restricted number of available seats during the training.” Exhibit 3 at 13. The report concluded with a recommendation that Grossman “attend the Critical Intervention Training class to help recognize the difference between both drug user and mental iliness." Id. at 5. Finally, Connor would be forced to pursue state remedies as well, including assault and battery, false Imprisonment, negligence, and others according to Arizona law.Ml, “Amount for which the claim can be settled and the facts supporting that amount.” Connor was injured physically as a result of Grossman's actions:In addition to the contusions and abrasions documented above, Officer Grossman's use of force injured Connor's ankle—an injury that has required multiple doctor's visits for drainage, and most recently, for surgery: Given the nature of the injuries, more surgeries may be required as well But as serious as these injuries are, the other damages to Connor are worse. Like many autistic people, Connor is particularly sensitive to stimulus and trauma, One cannot overstate how painful these events must have been to Connor—including the physical pain and suffering of the event itself, the pain and suffering each time his ankle was drained with a heavy-gauge needle, and the pain and suffering, from his surgery and convalescence.‘And then there are emotional damages—probably the most severe harm in the case. A feature of Connor's condition is that he often relives past grievances over and over, without an appreciation of how far inthe past they occurred. Consequently, Connor continues to relive the events of last year in ‘excruciating detail. One of the most heartbreaking aspects of this case is that Connor's parents have always taught him to find a police officer if he needs help. But Connor is now afraid of the police. He randomly makes statements like “are the police going to hurt me?" He asks if he is going to be hurt again when he sees a police car, In fact, he expresses fear of meeting new adult men in general ~ something that he never experienced previously. His parents are anguished at the changes that they have witnessed in Connor. Connor and his family have suffered significant economic harm as a result ofthis incident, including both past and future medical bills in an amount to be determined. We are still in the process of gathering those records. They will also sustain future economic damages (In an amount stil to be determined) for the additional therapy, resources, and care that Connor will require to manage the emotional trauma that he has suffered, And of course, Connor is entitled to fair compensation for pain and suffering and emotional damages, past and future, suffered asa result ofthese incidents. Based on all these facts, those set forth above, and the files and records that the Cty has in ts possession, we hereby state a claim for a sum certain of $5,000,000. While the expenses associated with medical care, psychiatric therapy, and other professional services might well exceed that figure one day, the Lelbels's would nevertheless accept this sur as full satisfaction of this claim, and would release the City for all claims and liability as a result. If Buckeye declines this offer, the Leibels reserve all rights to pursue the full measure of damages, including exemplary damages, costs, and attorneys fees as applicable, in a court of law. Sincerely, s/Timothy A. Scott TIMOTHY A, SCOTT SCOTT TRIAL LAWYERS, APC Attorneys for Connor L. % Gf. Deer Valley Unified Sch, Dist. No. 97 v. Houser, 214 Ariz, 293, 297, 152 P.3d 490, 494 (2007); see also Yollin v. City of Glendale, 219 Ariz, 24, 28, 191 P.3d 1040, 1044 (Ct. App. 2008).EXHIBIT 1SCOTT TRIAL LAWYERS A PROFESSIONAL CORPORATION (Chief Larry Hall Buckeye Police Department 100 N. Apache, Suite 0 Buckeye, AZ 85326 Dear Chief Hall, | write this letter on behalf of my client Connor L, a 14-year-old autistic boy, and his parents Kevin and Danielle. On July 19 of this year, Connor was detained and slammed to the ground by Buckeye police officer Grossman, who purportedly mistook Connor's autistic mannerisms for the behavior of a criminal drug user. The family is anguished at what happened to Connor, and outraged that Buckeye has apparently determined that its officer did absolutely nothing wrong. (See Investigative Findings, produced through @ public records act request, attached.) While we have profound disagreements with many of the findings in this internal investi: Cone thing is beyond dispute: this officer appears to have had literally no training in distinguishing between suspected drug users and citizens who suffer from developmental disabilities like autism. Given the ever-increasing prevalence of autism in today's society, this lack of training and Buidance is deeply disturbing. it puts some of our most vulnerable citizens ~ people like Connor ~ at foreseeable and unjustifiable risk of harm at the hands of law enforcement. 1950 Cokin Suet, Se E00, Sn Dingo, CAO | 61.794 | 6ILE52 INA | ansctadtonyerscomtIn our view, the Buckeye Police Department has significant litigation exposure as a result of this Incident, Justice requires that Connor received some amount of fair compensation for the physical and emotional injuries that he suffered, as well as for the cost of the additional treatment and programming that will be necessary to address the damage that was inflicted upon him. We pledge to you, however, that this compensatory aspect of the case will be resolved quickly and exceedingly reasonably, provided that the following three conditions are met by the Buckeye Police Department first. These three requests are: 1, That Officer Grossman apologize to Connor and his family, face to face. 2. That Officer Grossman perform 40 hours of community service on behalf of the autistic ‘community, for an organization or group approved by Connor's family. And, 3. That the Buckeye Police Department agrees to institute a mandatory training program that gives its officers the tools necessary to help distinguish between autistic and other developmentally-disabled people, and common drug abusers. As I sald, if these three terms are agreed to first, any financial component of this case will be quickly resolved. But these three terms are non-negotiable. if we cannot agree on these issues, we will be forced to seek justice by filing a lawsuit instead, ook forward to your response, and to working with you to achieve a fair resolution of this regrettable Incident. Sincerely, s/Timothy A. Scott TIMOTHY A, SCOTT SCOTT TRIAL LAWYERS, APC ‘Attorneys for Connor L. 1350 Coban Set Ste 400, 5an Diego, CA 92101 | AR TAFOABL | F65.6529364 | wwwscatralers.conEXHIBIT 2Town of Buckeye pa es “PERFORM ANGE IMPROVEMENT ELAN You are being given a Performance Improve action designed fo Improve thage aroas, and expected outcomes. Employee Name: David Grossman _ Job Title: Police Officer Supervisor: Michael Haddad Department: Police Digactons:. The purpose ofthe plans to help the omployoe Improve In areas noted below. The pan fo epeclly ‘areas for improvement, idenly alvlles designed to strengthen the employee's performance, and indleata ‘expected outcomes, A separate form can be Used foreach area requking Improvamant, ofall aroas may be listed ‘on one form, Areas Nesting Improvement: 1. Failure fo Act cn Pian fo outlno speolfis areas of defclency or conor, corral 1, Buckeye PD assists with the pureul of car facking suspects from Avondale, During the course of this pursult, Officer Hannaman gets shot at by the suspects as he Is trying fo deploy stop sticks. After being shot al, Officer Hannaman advised that he observed, who he belleved was, Officer Grossman crive away from the suspect vehicle after announolng that shots had Just been fred at him, While discussing this later, you offered two separate justifcations/exouses, advising that "blocking" Is against polloy. You also stated thal there was another entrance to tho. development and wanted to get to that exit to make sure the suspects didn’t escape via that centrancelexit. This (ype of call requires that you respond directly to the threat and utilize all possible tools at your disposal to deal with the slivation at hand, 2. Buckeye officers responded to a domestic disturbance (Bigler, Beaver, Grossman, Sot Heley), While Bigler and Beaver are dealing wih a female armed with two machotes, you are observed running from the incident, around a corner, following the fomalo’s husband, You lator advised that you were trying fo keep the partes separated, You stated that while speaking with the mele, you observed the female through a window as she was walking towards a door. ‘You continued stating that felt you should remove the malo from the area to keep the situation from escalating, You further advised that you had no Idea untl after everything was over that there were any edged instruments involved, You were adamant thal you never heard or saw anything about any knives. You also dd not heer your fellow officers commanding the woman to drop tho knives, Sgt Haley advised that when he arrived on scone he hoard the verbal ‘commands from the other officers to drop the knives, It's worrisome (o me If you did not hoar these same commands, 1am concemed that your situational awareness may not be adequate ‘enough for the rigors of law enforcement. ‘3, During the 2010 year-end decision shoot, a ecenarlo Is prosonted that ascelates to lethal force. When the role-playor dlsplays and points his weapon al you, you turned your body and relroated, running into your cover officer, | later explained to you that you constanlly have to ‘assess situations for appropriate response. | continuod that whon you blindly retreated, you effectively removed your cover offlar response from belng able fo aselst you with tho situation You are now dealing with and you are empowering the suspect lo persevere over this situallon, 4, Officer Glenn recognized a subject known fo have a Valid felony warrant for his arrest. Ho Original - HR Personnel File Employee Department Cot elections Cosmin oor acsIngounarPe- biteJ vf Town of Buckeye requested that unlts set up a perimeter around the residence prior to attempting contact, You ‘advised that you wore In position behind the residence with a view of the back door. The ‘subject s00s officars and runs into his house. Consent is granted at the front door by the suspect's mother (homeowner) to search the residence although all present state thatthe ‘suspect fled from the residence via the rear door. Checks are made with you and you reportedly advised that no one oame out. Subsequent search shows where the suspect went ‘over the wall and landed In the nelghbor's yard ((resh prints in mud). You were not spoken to ‘about this by me although other officers, to Include Sgt Hayman later chastised you about this, Porformanco (or lack thereof) In not apprehending or seeing the suspect run from the back door of the residence you ware watching. Anplleable Departmental Policlos: ADM 830 Causes For Disciplinary Action (Performance actions, le Gowardice, Unsatisfactory Porformance) FLD 210 Uso of Force (inaction) 2, Search and Selzure 4. You were involved with a nolseiparty call where you entered a residence against the ‘consent ofthe homeowner and made en arrest, This incident has already been documented end additional training received. 2, You respond to a Disorderly call involving teenagers, backing up Officer Beaver, On your arrival inthe area, two malo subjects are observed. While you are exting your Vehicle, you state that you heer Ofleer Beaver making a comment (words tothe effect cf) "Don't you do it” At this pola, the two indlviduals turn eround and run away from your location, You run efter one and when you get close enough, you grab the subject and wrestle him tothe ground. This was wile you are asking why the Individual is running from the police after he was told not {o, The individual continues struggling and yt deployed a chemical agent tothe subjects face twice before being able to gain Compliance and got handcuffs on the subject. An open mike transmission allowed us to hear thal you were asking the subject why he ran when he was told notte, Dispatch ends up requesting Code Three response of additional responding units. While en route J asked for an update and heard you reply that you could not fesl your hand. This ‘caused me to respond Code Three. As | arrived in tho afea (within visual sight of you), you advised over the air that units can slow down, everything Is Cade Four, Code Three ‘perallon fs extremely dangerous, to say the least, and puls us and the general motoring public at great risk fr injury and tigation, There ls no excuse for allowing us to respond in thet mannor when you know or have ascertalned there is no exiganey supporting such response. When questioned about your hand! statement you advised that what you sald was that you could not freo your hand. This Is stil not an appropriate radio transmission as it promotes an Implled exigency. ‘Ae wo have provlously discussed, ‘selzing”a person regultes aicuation which you could not provide when you performed these actions, Adding to the situation, you used chemical agents ageinst the person. Looking fr charges afler an arrest ls made fs unaccepiable and unconstitutlonel. 5, During a trafic stop you request a consensual search ofthe vehicle which you get, During this eearch you encounier a set of "brass knuckles" which you utately seize stating that they era llega. You thon log them Info evidence for destuation. This s another example of making a decision that has you operating against current law. lloable Depart lictos: tinal -HR Personne! Fla Employee Copy Deparimont Copy hoses tongeConolaiGessrenPIP -Grssmaosenon Fefemanc lpenrod O20 doo NTe = \- — Town of Buckeye ADI 631 Responsibilities (Knowlerige to Laws and Regulations) ‘ADM 632 Conduct (Respact for Constitutional Rights) FLD 210 Use of Force (Authorization to Use Force) ‘3. Report Writing 4, Your roports that are of a substantive nature continually have to be retuned for extensive rmodifeation, In our previous ciscussion regarding your report writing sls, you mentioned a hoad Injury, explaining that you write reports from memory (almost template format) Unfortunately, with the dversiy of calls seen inlaw enforcement, there Is not a template ‘vallable for everything you wil encounter, Your skls inthis arena will have to be developed, Applicable Departmental Policies: ADM 1320 Dopartmental Reports 4. Vehicle Operation 41. Your driving has been observed and reported by fellow officers to be unsafe, le, driving too {as, following others {oo closely, and inappropriate response to calls for service, | have spoken with you regarding these issues. You have, reportedly, continued to operate your police vehicle In disregard of polley during response to non-ife threatening cals for service, leablo or 7 FLD 180 Vehicle Operations (General Guldelines) Activities Designed to Improve Performance: 41, Attendance of Rio Salado Community College Report Writing Gourse. Upon completion of this course you will have been provided with the baslos to gather Information and prepare a coherent and prosecutable report through improved written communication and oritical thinking, This class Is April 48% through June 27%, 2011 and lean On Liv program. 2. Attendance of Defensive Tactios refresher course, After completing this “in house" area of instruction you wil have been provided with varlous options of appropriate emply hand, Impact ‘weapon, all the way to lethal force options to deal withthe situations commonly encountered on the treat. 3. Atfondance of Buckeye Use of Force Continuum Tralning. Upon completing this instruction you will have been provided with an In depth view of tho Buckeye Police Departmant Uso of Force Matrix. ‘This is a neoessary too forthe correct apploation of the eppropriate force for any gWven situation. To compliment this "n houso" traning, you wil also attend two blacks of nstructon; one ls Complex {Issues Inthe Use of Force on March 26", 2041 from 0800 to 1200 at Tolleson PD and the second Is Use of Force Refresher on March 31%, 2011 from 0800-1200 at Merana PD. 4, Attendance of Force on Force Training, This Buckeye Polloe Department trining will cur prior to tho ond of the PIP but aflor tho Laws of Arrest, Complex tssues inthe Uso of Foree, and Use of Force Refreshor Instiuction, ‘This Foroe on Force training wll encompass scenarios to fest and evaluate your decision making as wel as response level for appropriateness In gven situations. iighal -HR Personnel Fle Employee Copy Department Copy \WasizsaflngeontinlelGesensd??-GmonarirosinanParomane Inpcwnanian- Mods Ot taeo NOY