STRINDBERG SCHOLNICK BIRCH HALLAM HARSTAD THORNE Employment & Labor Lev April 5, 2022 Via Facsimile and U.S, Mail Boise City Clerk City of Boise 150 N. Capital Blvd. Boise ID 83702 Fax: 208.384.3711 Boise City Attomey’s Office City of Boise 150 N. Capital Bivd. Boise ID 83702 Fax: 208.384.4454 Hd S- Ud¥ 2202 Chief Ryan Lee Boise Police Department City of Boise 333 N. Mark Stall Place Boise ID 83704 Fax: 208.570.6732 4 Re: Notice of Tort Claim for Sgt. Kirk Rush To Whorn It May Concern: Please be advised that we have been retained by your employee Sgt. Kirk Rush with regard to his employment with the Boise Police Department (“BPD”). This letter explains the basis of Sgt. Rush’s claims arising from recent actions by the chain of command at BPD and serves as a Notice of Tort Claim pursuant to LLC. § 50-219 and 6-905. Factual Background ‘The claims arise from Chief Ryan Lee's willful and/or unprovoked physical aggression against Sgt. Kirk Rush on or about October 12, 2021. As further described below, Chief Lee's actions caused significant injuries to Sgt. Rush, which resulted in multiple medical procedures and ultimately surgical repair of Sgt. Rush’s broken neck. We are happy to provide additional factual analysis and/or discussion should you request the same. Sgt. Rush is long-time (17 year), decorated employee of the Boise Police Department.! Sgt. Rush’s current assignment is to che K9 unit and patrol. Sgt. Rush has been in charge of the K9 " Sgt. Rush's awards and accommodations over his tenure with BPD include a Life Saving Award, being nominated ran {r the Leadership Commendation Medal by both the BPD K9 unit and the awards committee, the American Red ia, Gre 5, 2466033 Lay Bafpreement Hero Award, along with multiple department anc citizen commendations. ise wine aenat Sal: Lake City, Uteh 84106 Boise, luaho 85702 Pr So%-SeS-si8, ant 302 7: 208-556-1786, ant 210 wwntahjobjustice.com wow.idahojoblusunit for over six years and has been part of the K9 unit in total for sixteen years. The Boise K9s are trained as a “bite and hold” unit, with the K9 dogs trained to bite when ordered by the K9 handler. The BPD K9 unit has always been a bite and hold unit and is a very successful unit. In fact, the BPD K9 unit has a suspect surrender rate of approximately ninety-five percent (95%). ‘The BPD K9 unit is very proud of how the unit operates and how successful it is as a unit, Chief Lee is apparently an advocate of a “bark and hold” K9 program, which would be a significant change fiom the notmal operations of the current BPD K9 unit. On a number of occasions prior to October 12, 2021, Chief Lee had conversations with Sgt. Rush about changing, . the BPD K9 program to bea bark and hold unit. At various times during these conversations about the BPD K9 unit, Set. Rush communicated concems about changing the operations of the BPD. K® unit, including concerns about the expense associated with such a change.’ Despite these concerns (which were shared by others in the K9 unit), it was evident that Chief Lee wanted to change the program to be a bark and hold unit. Despite expressing these concems, Sgt. Rush was willing to respect his chain of command and implement any orders from the Chief. In fact, not long before October 12, 2021, Sgt. Rush told Chief Lee directly that if Chief Lee wanted the K9 unit to change to a bark and hold unit, Chief Lee just needed to tell Sgi. Rush to do it and the K9 unit would go to a bark and hold unit? Chief Lee’s response, as he walked away from the conversation was “Yeah, but what do I know, I am only the Chief.” Chief Lee never gave Sgt. Rush an order to change the K9 unit to become a bark and hold unit. Members of the BPD K9 unit began asking Sgt. Rush questions about why Chief Lee wanted to change the direction of the K9 unit and other questions which Sgt. Rush did not have an answer to. Ultimately, Sgt. Rush scheduled a meeting with Chief Lee to again discuss the direction of the BPD KS program and to get clear direction from Chief Lee as to the direction the K9 program was going to go. That meeting was set for some time at the end of October 2021. On October 12, 2021, Sgt. Rush was the acting Watch Commander. As a result, Sgt, Rush ‘was in charge of running the normal moming watch briefing. The BPD watch patrol team was present at this briefing, along with a number of trainees, civiliens, Chief Lee, end newly hired Deputy Chief Brooks. After completing the normal watch briefing, Sgt. Rush turned the meeting, over to Chief Lee, believing that Chief Lee intended to introduce Deputy Chief Brooks to the watch team, Sgt. Rush retumed to his seat in the briefing room. Chief Lee began talking to the briefing group about a situation which arose the prior week where a BPD officer responded to a call where a man was trying to strangle or kill a woman. That officer had apparently used a Lateral Vascular Neck Restraint (“LVNR”) in order to control the suspect. Chief Lee then spoke about the national best practice regarding use of the LVNR. Chief Lee also mentioned an event when Chief Lee worked in Portland, Oregon, when a female supervisor had commented to Chief Lee (while the two of them were in an elevator) that Chief Lee 2 The eurent K9s would either have tobe retrained tobe “bark and hold” dogs or, more likely, the BPD K9 unit would hhave to get new dogs and train those dogs as bark and hold. BPD K9 officers and trainers would have to also be re- ‘rained in the new method of operations. 5 Spt Rush said this even though the existing BPD KO unit and its trainers had no background o traning necessary to implementa change to bark and hod.had used force more than any other supervisor in the Portland Police Department over the last several years. Chief Lee then said something to the effect of: “Hey Rush, get up here.” Sgt. Rush believed that Chief Lee was ordering him to the front of the briefing room, so Sgt. Rush made his way back to the front of the briefing som. Chief Lee did not ask for volunteers; Sgt. Rush did not volunteer.* ‘As soon as Sgt. Rush arrived at the front of the briefing room, Chief Lee grabbed the back of Sgt. Rush’s neck and forced him toward the ground. Chief Lee did not warn Sgt. Rush that he was going to lay hands on him, nor did Chief Lee ask permission to do so. Sgt. Rush was unprepared for the force employed by Chief Lee. Chief Lee then proceeded to hold Sgt. Rush’s neck and physically moved Sgt. Rush around the briefing room by the neck. Eventually Sgt. Rush had to grab on to one of Chief Lee’s arms and hold on because Sgt. Rush had been forced to bend over for such a long period of time. Chief Lee then asked Sgt. Rush to “try to stand up.” Sgt. Rush told Chief Lee that he could not stand up while Chief Lee held by the neck. Chief Lee then released his hold on Sgt. Rush’s neck, and Sgt. Rush stood up. Chief Lee told Sgt. Rush to face away from him. Sgt. Rush then tumed around, and Chief Lee immediately strack Sgt. Rush in the forehead and simultaneously again forced Sgt. Rush toward the ground. Chief Lee again neglected to wa Sgt. Rush that he was going to strike Sgt. Rush. Chief Lee did not ask permission to do so. Sgt. Rush was again unprepared for the physical aggression employed by Chief Lee. In fact, Set. Rush had no warning, and did not see the strike coming, Sgt. Rush’s neck hyperextended backwards and audibly cracked. Whatever physical strike Chief Lee used was a quick, violent, and fast movement that forced Sgt. Rush backwards and toward the ground. Sgt. Rush then retumed to his seat in the briefing room. Sgt. Rush knew that Chief Lee had injured him as soon ashe heard and felt the snap in his neck. A few minutes after Sgt. Rush returned to his seat, Chief Lee, who had continued talking after battering Sgt. Rush, tuned to Sgt. Rush and said: “What are you going to do now, fill out an SDI?" Chief Lee’s tone in asking that question was condescending and mocking, Sgt. Rush believes that Chief Lee intended his comment to discourage Sgt. Rush from filing a report related to the battery and injury and/or was another method of humiliating Sgt. Rush in front of the entire BPD patrol watch present in the briefing room, Chief Lee's physical battery of Sgt, Rush did not occur as part of training. The BPD watch briefing room was not a training environment, BPD has very specific policies and procedures in place for physical training, which takes place ina training room with mats on the floor. Participants in physical training are aware ahead of time what physical moves and physical training will be performed. Instead, Chief Lee utilized some unknown and unapproved physical maneuvers to injure and embarrass Sgt. Rush. Chief Lee's actions were willful and unprovoked physical aggression in the watch briefing room in front of multiple witnesses. “To the extent Chief Lee’s attorney and agent, Chuck Peterson, told members ofthe press that Sgt. Rush volunteered, that statement is fase. If Chief Lee told investigating officers ofthe Idaho State Police that Sgt. Rush volunteered, or that Chief Lee requested a volunteer come to the front of the briefing, that statement is also false 5 an SD1 is the BPD form that BPD officers complete when an officer is injured on the job.Sgt. Rush believes that Chief Lee singled him out because Sgt. Rush had expressed concems with Chief Lee’s suggestion that the BPD K9 unit change to bark and hold. Sgt. Rush believes that Chief Lee’s intentional acts were retaliatory in nature and intended to humiliate and injure Sgt. Rush in front of a group of his peers and subordinates. Of note, in approximately ten (10) similar watch briefings on October 12, 2021, Chief Lee did not demonstrate on any other officers. Because of Chief Lee’s comments in the watch briefing about the SDI, Sgt. Rush was naturally hesitant to make a report of his injuries or the incident. Sgt. Rush waited to file the SDI injury form until the end of his shift on Friday, October 15, 2021 ‘The City Suppressed Internal Investigations into the Chief's Actions and Treated Chief Lee Differently Than Other Officers. After becoming aware of Chief Lee's wrongful actions and the injuries he caused to Sgt. Rush, the City has actively treated Chief Lee more favorably than it hes treated other officers accused of misconduct in the past. This is particularly true when there is a pending criminal investigation. As set forth further below, this includes not placing Chief Lee on administrative leave and failing to investigate the incident. ‘The following is a general timeline of events beginning when a member of command staff reported the incident to the City Human Resources Department: © On Monday, October 18, 2021, a member of BPD command staff, after hearing what Chief Lee did to Sgt. Rush, reported the issue to Boise City HR. © An HR investigation was opened. ‘Ms, Sarah Martin was essigned to investigate on behelf of Boise City HR. © An initial interview was scheduled with Sgt. Rush and rescheduled because of my representation of Sgt. Rush. That second HR interview was to take place on Tuesday, November 2, 2021 * On October 29, 2021, Courtney Washburn, City Chief of Staff, sent 2 memorandum to Chief Lee, Deputy Chief Brooks, and Sgt. Rush, that temporarily changed Sgt. Rush’s command structure such that Sgt. Rush would now report to Deputy Chief Brooks instead of Chief Lee. * On Monday, November 1, 2021, Ms. Martin emailed that the interview the following day was cancelled without explanation. * On Wednesday, November 3, 2021, I (as Sgt. Rush’s attomey) received an email from Mr. Larracoechea in City HR which stated that I had “asked for a meeting with city representatives for an intake regarding a complaint from a city employee.” City Legal was ce’d on that emailAfter some additional emails, Mr, Larracoechea noted that his inquiry “was based on some conflicting information” and that the “oorrect path” has been identified. City Legal was ec'd on that email To date no one from the City has identified what the “correct path” is. On November 10, 2021, I received an email from Mr. Tyler in City Legal indicating that there is no pending HR inquiry into any incident involving Chief Lee and Sgt. Rush. Lnoted my confusion to this chain of events, and Mr. Tyler was supposed to call me on Friday, November 12, 2021, to discuss the HR investigation and matter. Later on Novemiber 12, 2021, I received an apology email from Mr. Tyler (for not calling me as scheduled). At some point in November 2021, a member of BPD command staff reported the matter to the Idaho State Police. In December 2021, Capt. Zweigart of the Idaho State Police requested copies of City documents related to the HR investigation from City Legal. ‘On December 17, 2021, City Legal forwarded a copy of the SD1, Boise’s workplace injury form, completed by Sgt. Rush after Chief Lee injured him, On January 4, 2022, I emailed City Legal and inquired about the City’s production of documents related to the HR investigation to Capt. Zweigart. After some emails back and forth between me and City Legal, later on January 4, 2021, Kim Smith in City Legal stated: “IR told me that their investigation never started because you declined repeated requests to have Sgt. Rush interview with them. As such, they did not produce any documents. If thet is not the ease, I recommend you reach out to HR to clear up any confusion.” In response, I provided much of the above timeline of events regarding the opened, and then strangely closed, HR investigation. On January 4, 2022, Ms. Smith sent an email to me wherein she stated (among other things): “To this date, Sgt. Rush has not submitted anything to HR beyond the SD form. If you and Sgt. Rush wish to file a complaint with HR for something else, then you are welcome to do so.” Attthe end of January 2022, Sgt, Rush raised concerns about his working environment after Chief Lee and/or his agents made false and/or inaccurate statements to the press, and presumably as part of the Idaho State Police investigation.¢ On January 20, 2022, Ms. Martin, on behalf of City HR, acknowledged Sgt. Rush's communication regarding “working conditions” and noted that “the City is ready to accept, and investigate any employee complaint, especially one alleging @ hostile work environment. Please let me know if you would like to set up an intake interview directly with you or with your counsel regarding this, or any other complaint.” * On January 24, 2022, Sgt. Rush responded to Ms. Martin’s email and noted that he thought IR was already investigating the issues. © On January 25, 2022, Ms. Martin responded and said: “I suggest you speak with Guy Hallam. There were communications with him that I was not a party to.” © On February 8, 2022, I sent a letter (via email) to City Legal and BPD Capt. Fleming (the BPD Captain over the Office of Internal Affairs) and requested, on hehalf of Sgt. Rush, that City HR open (again) an investigation into Chief Lee’s actions. The February 8, 2022, letter identified potential policy violations and issues which Sgt. Rush wanted HR to investigate. © On February 9, 2022, Mr. Tyler responded to my letter and email and stated the following: “I still stand by my initial response thet there is no matter pending with HR. I have revisited the matter and have found no indication that any complaint was filed with HR conceming Sgt. Rush in accordance with the City’s BEO Regulation or that any matter was assigned to HR in accordance with the City’s Corrective Action Regulation. Those are the only two bases T can discern for HR to investigate under the City’s policies and procedures.” © On February 23, 2022, | inquired as to whether the City intended to take any action with regards to the February 8, 2022, letter which requested that the City open an investigation. * On February 25, 2022, Mr. Tyler responded to my email with the following: “In accordance with the City’s Corrective Action Regulation (5.05a, Employee Policy Handbook) and BPD policy, OIA is the proper investigating authority within the City for the complaint at issue. Once ISP instituted its independent criminal investigation, O1A’s administrative was suspended and remains so until ISP’s investigation is concluded, Based on this, I cannot give you a timetable for completion of OLA’s administrative investigation. However, the investigation has not been “closed” or otherwise discontinued.” © OnFebruary 25, 2022, I responded to Mr. Tyler in an attempt to decipher what was actually going on at City HR and BPD OIA. My email was as follows:If T understand correctly, OTA has opened an investigation into the Chief's actions which caused injury to Sgt. Rush. Can you tell us when that investigation was opened and when it was stayed? 1 also am also inferring from your email that City Legel has made a determination thet OIA does not have a conflict investigating the allegations, although the allegations relate to actions of Chief Lee, who is the top of the chain of command for BPD OIA. Can you confirm that such a determination has been made? Finally, it appears that City HR is not going to open another investigation as requested by Sgt. Rush. Is that correct? On February 28, 2022, Mr. Tyler responded as follows: “1 anticipate that OIA will proceed pursuant to City and BPD policies and procedures and that Sgt. Rush will be provided with information as provided in those policies and procedures.” On that same day, I responded to Mr. Tyler's email and noted that I assumed it was intentional that City Legal had not answered the questions in my February 25, 2022, email Also on February 28, 2022, Capt. Fleming, who had been copied on many of the emails between me and City Legal, responded to me and Sgt. Rush and stated: “As you know, I have been copied on the last few emails regarding this matter. OIA stands ready to take your case upon your request. If you desire {o have OIA hanéle the investigation, please let me know. At that time, 1 will give you more specific information on the process.” On February 28, 2022, Ms. Smith from City Legal responded as follows and closed communications regarding this matter: “Mr. Hallam: Sgt. Rush filed a worker's comp claim with HR. That is proceeding, 2. Set. Rush reported this incident to the acting captain of OIA at the time, Lt. Hunsaker, which triggered an OIA investigetion, 3. Before the OIA investigation could proceed, ISP opened an independent criminal investigation. 4. Per usual process, the OLA investigation is suspended until the conclusion of the criminal investigation. 5. Once the criminal investigation is concluded, O1A will take any necessary next steps in the OIA investigation, In sum, OIA has this investigation. It is suspended. HR has the worker's comp claim. It is proceeding. We have no further information for you at this time. Once the criminal investigation is concluded, OIA will be in touch with you and Sgt. Rush. We will retain any emails you send between nowand then, but we will not be responding again to questions we have repeatedly answered.” In summary, the City and BPD have treated this matter (end have treated Chief Lee) differently than it would treat any other officer. Although a member of BPD command staff reported the incident and requested an investigation within a week of Chief Lee injuring Sgt. Rush, the original HR investigation surreptitiously closed. Despite a formal written request from Sgt. Rush that HR investigate the matter and Chief Lee’s (or his attorney/agent’s) false statements regarding what occurred, City Legal and/or City HR again declined to investigate Chief Lee. Further, BPD’s policy is to place officers on administrative leave when an officer is being investigated for wrongdoing. Despite this long practice, Chief Lee has continued to work while the Idaho State Police have investigated potential charges against him. In short, the City seems to be intentionally declining to take any actions against Chief Lee or otherwise apply its normel protocols or practices to him. Sgt. Rush does not serve this Notice of Tort Claim lightly. Indeed, he has given the City every opportunity to address this issue short of this legal path. However, as noted above, the City hhas repeatedly declined to take up this issue internally, to the detriment of Sgt. Rush. from Chief Lee's Miscondu Chief Lee caused serious and significant injuries to Sgt. Rush. Sgt. Rush initially treated conservatively, undergoing a cycle of medication after the initial C-spine Xray and clinical exam revealed cervical neck sprain, with secondary myofascial tightness, limited range of motion and occipital headaches. Sgt. Rush’s treating physician could not exclude a cervical disc injury, with proximal scapular radiculopathy. Additionally, the treating physician noted a possible C5 anterior process avulsion fracture. Several days later, an MRI revealed multiple bulging dises in Sgt. Rush’s neck. Ultimately, conservative treatment and two epidural steroid injections failed to alleviate Sgt. Rush's ongoing pain and neck issues. On January 27, 2022, Sgt. Rush had surgery to repair the neck injuries caused by Chief Lee. The surgical repair included harvest of a bone from Sgt. Rush's sternum which the surgeon used as part ofa bone graft to repair Sgt. Rush’s injured discs after an anterior cervical diskectomy at C5-C6. Further, the surgeon implanted an anterior plate and screw system at C5-C6 to stabilize Sgt. Rush’s neck. Itis expected that Sgt. Rush will have issues associated with the neck injury for the rest of his life. Sgt. Rush may also require future surgery if/when the repair destabilizes with age. Chief Lee’s actions have also taken an emotional toll on Sgt. Rush, He has been forced to seek professional help related to the emotional distress associated with Chief Lee's attempts to humiliate and embarrass Sgt. Rush in front of his peors and subordinates. Sgt. Rush has further ‘had physical manifestations associated with the emotional distress.Claims* Chief Lee’s and the City’s actions give rise to a number of statutory and tort claims, including but not limited to: negligent infliction of emotional distress, negligent hiring and supervision, and negligence per se” along with breach of the covenant of good faith and fair dealing and 42 U.S.C. § 1983 federal cleims, along with any other claims supported by the above facts. Additionally, there are intentional claims including assault and battery and intentional infliction of ‘emotional distress based on the actions of Chief Lee individually, which are not precluded by the Idaho Tort Claim Act because they were either outside the course and scope of employment, and/or with malice or criminal intent. It is worthy of note that Sgt. Rush® bas ongoing protection under the Idaho Protection of Public Employees Act (the “IPPEA”) against adverse action as part of his protected activity in providing information in the investigation(s), including the criminal investigation. Although the Idaho Tort Claims Act and the provisions of Idaho Code §50-219 do not apply to claims under the IPPEA,’ this claim is identified herein with the intent that the City will ensure that Boise Police Department ceases end/or avoids additional adverse actions against Sgt. Rush Damages ‘The extent of Sgt. Rush’s damages is currently unknown. The medical billings and charges paid through worker's compensation are currently pending, as Sgt. Rush continues to receive treatment post-surgery. Additionally, Sgt. Rush's damages include lost wages and benefits, attomeys’ fees and expenses, damage to his career advancement, lost retirement benefits, and emotional distress associated with the manner in which Chief Lee sought to embarrass and humiliate Sgt. Rush in front of the entire watch at the briefing in question, Address At all times relevant to his claims, Sgt. Rush resided at: Set. Rush can be reached through correspondence addressed to counsel. Please do not hesitate to contact me if you would like to discuss this matter. © While the several of these claims do not require a notice of tort claim, the claims are identified herein for your records and response, as you deem fit. 7 The City should be aware that it will not be able to use the exclusivity of worker's compensation law to avoid liability in this matter, See Gomez v, Crookitam Co., 166 Idaho 249, 256 (2020). In short, the facts in this matter support exception to the exclusivity of worker's compensation laws, whether it be a result of Chief Lee's “wilfal physical aggression” or “unprovoked physical aggression,” ¥ And all other officers and members of command staff who have participated in any investigation into Chief Lee's wrongful acts and/or have communicated regerding potential or actual violation of law or waste. ° See Carter v. City of Boise, Order ve: Motion for Partial Summary Judgment, Ada County Case No, CVO1-18-8242.Sincerely, _SERISDBERG SCHOLNICK BIRCH HALLAM HARSTAD RNE —_—— a T. Gay Hallam, of the Fim cc: client