Rafael Delgado, Et. Al., v. Joseph Ruybal, Et. Al.

Case 1:18-cv-01117-NYW Document 1 Filed 05/09/18 USDC Colorado Page 1 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No. _______________
RAFAEL DELGADO;
RAFAEL IVAN DELGADO;
ANNABELLE DELGADO;
Plaintiffs,
v.
JOSEPH RUYBAL;
DAVID PINO;
MATTHEW BORDEWICK;
NOBLE HAVENS; and
TYLER DEAN;
Defendants.
COMPLAINT AND JURY DEMAND
Plaintiffs, by and through their attorneys, David A. Lane and Liana Orshan of KILLMER,
LANE & NEWMAN, LLP, respectfully allege for their Complaint as follows:
INTRODUCTION
1. Soon after Defendants, police officers from the Monte Vista Police Department
and Rio Grande County Sheriff’s Office, contacted the Delgados at their home on May 10, 2016,
Defendants unjustifiably and without provocation escalated the encounter into a brutal violation
of the Delgados’ constitutional rights.
2. For no legitimate reason, Defendants forcibly entered the Delgados’ residence,
subjecting the Delgados to unreasonable seizure and excessive force. Without cause, Defendants
repeatedly assaulted Plaintiff Rafael Delgado, Sr., and held Plaintiffs under threat of violence for
an extended period of time.

3. Defendants’ conduct was performed under color of state law and directly or
proximately caused the deprivation of Plaintiffs’ federally protected rights.
JURISDICTION AND VENUE
4. This action arises under the Constitution and laws of the United States.
5. Jurisdiction over these claims is conferred upon this Court pursuant to 28 U.S.C.
§ 1331 and § 1343(a)(3). Jurisdiction supporting Plaintiffs’ claims for attorney fees is conferred
by and brought pursuant to 42 U.S.C. § 1988.
6. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All
of the events alleged herein occurred within the State of Colorado, and all of the parties were
residents of the State of Colorado at all relevant times stated herein.
PARTIES
Plaintiffs:
7. At all times relevant to the subject matter of this Complaint, Plaintiff Rafael
Delgado, Sr. was a citizen of the United States of America and a resident of the State of
Colorado.
8. At all times relevant to the subject matter of this Complaint, Plaintiff Annabelle
Delgado was a citizen of the United States of America and a resident of the State of Colorado.
9. At all times relevant to the subject matter of this Complaint, Plaintiff Rafael Ivan
Delgado, Jr. was a citizen of the United States of America and a resident of the State of
Colorado.
Defendants:
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10. The City of Monte Vista is a Colorado municipality organized under the laws of
the State of Colorado. Monte Vista Police Department (“MVPD”) is a law enforcement agency
that is part of the City of Monte Vista.
11. At all times relevant to the subject matter of this Complaint, Corporal Joseph
Ruybal was a citizen of the United States and a resident of Colorado. At all relevant times,
Corporal Ruybal was employed by the City of Monte Vista as a peace officer in the Monte Vista
Police Department. At all relevant times, Corporal Ruybal was acting within the scope of his
employment, pursuant to his official duties, and under the color of state law.
12. At all times relevant to the subject matter of this Complaint, Defendant Officer
David Pino was a citizen of the United States and a resident of Colorado. At all relevant times,
Officer Pino was employed by the City of Monte Vista as a police officer in the Monte Vista
Police Department. At all relevant times, Officer Pino was acting within the scope of his
13. At all times relevant to the subject matter of this Complaint, Defendant Officer
Matthew Bordewick was a citizen of the United States and a resident of Colorado. At all relevant
times, Officer Bordewick was employed by the City of Monte Vista as a police officer in the
Monte Vista Police Department. At all relevant times, Officer Bordewick was acting within the
scope of his employment, pursuant to his official duties, and under the color of state law.
14. Rio Grande County is a governmental entity organized under the laws of the State
of Colorado. Rio Grande County Sheriff’s Office (“RGSO”) is a law enforcement agency that is
part of Rio Grande County.
15. At all times relevant to the subject matter of this Complaint, Defendant Corporal
Tyler Dean was a citizen of the United States and a resident of Colorado. At all relevant times,
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Corporal Dean was employed by Rio Grande County as a deputy sheriff in the Rio Grande
County Sheriff’s Office. At all relevant times, Corporal Dean was acting within the scope of his
16. At all times relevant to the subject matter of this Complaint, Defendant Deputy
Noble Havens was a citizen of the United States and a resident of Colorado. At all relevant
times, Deputy Havens was employed by Rio Grande County as a deputy sheriff in the Rio
Grande County Sheriff’s Office. At all relevant times, Deputy Havens was acting within the
scope of his employment, pursuant to his official duties, and under the color of state law.
FACTS
Defendants went to the Delgados’ residence in Monte Vista to speak with Rafael Ivan
Delgado, Jr.
17. Plaintiffs Rafael Delgado, Sr. and Annabelle Delgado were long-term residents of
Monte Vista, Colorado. In May 2016, their adult son, Rafael Ivan Delgado, Jr., was staying with
them at their house in Monte Vista.
18. At approximately 10:34 a.m. on May 10, 2016, the Monte Vista Police
Department received a call from a neighbor of the Delgados that when she was taking out the
trash ten minutes earlier, her neighbor, “Ralph Delgado,” walked by holding a gun.
19. Within minutes, the Defendant Officers and Deputies from the Monte Vista Police
Department and the Rio Grande County Sheriff’s Office arrived at the Delgados’ residence.
20. None of the responding officers had attempted to obtain a warrant before arriving
at the house. Although Corporal Ruybal later claimed in his written incident report that he had
prior knowledge of an existing arrest warrant for Rafael Delgado, Sr., the video recordings from
the officers’ body cameras and the incident log show that Corporal Ruybal did not in fact learn
of the warrant until after he illegally entered the Delgados’ residence.
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21. Some or all of the responding officers, including at least Defendants Corporal
Ruybal and Officer Bordewick, were familiar with the Delgados.
22. In fact, the Delgados had previously filed a lawsuit against the MVPD and several
MVPD officers in 2003, claiming, among other things, that the MVPD officers used excessive
force against Rafael Delgado, Sr. when the officers forcibly arrested him after he had just had
back surgery. The facts underlying the lawsuit were startingly similar to those here, with the
police officers confronting the Delgados at their residence and the officers’ actions against the
Delgados quickly escalating to excessive force when the Delgados challenged their authority.
23. The Delgados dismissed their suit in exchange for a settlement payment from the
MVPD. On information and belief, the MVPD and MVPD officers harbored resentment toward
the Delgados because of the lawsuit and because the MVPD had to pay the Delgados some
money. Indeed, MVPD officers continued to harass the Delgados after the charges stemming
from the 2003 arrest were dropped.
24. Given the information the neighbor provided and the officers’ familiarity with the
Delgados, Defendants believed that the subject of the neighbor’s report was Rafael Delgado, Jr.
Discussions among Defendants, captured by the Defendant MVPD Officers’ body cameras,
show that the only reason the officers came to the Delgados’ residence on May 10, 2016, was to
speak with Rafael Delgado, Jr.
After arriving at the Delgados’ property, Defendants drew their weapons and/or otherwise put
on a substantial show of force, even though there was no indication that any of the Delgados
posed a threat.
25. When the police arrived, all three Delgados were inside the house. There was no
indication that any of them posed a threat to Defendants or any other individual.
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26. Officer Bordewick and Deputy Havens were the first law enforcement officials to
arrive. Upon arrival, Officer Bordewick and Deputy Havens immediately drew their firearms or
tasers and entered the house’s back yard. Neither officer announced himself as a law
enforcement official.
27. Because the neighbor who contacted the police said that “Ralphie” lived in a
trailer next door to his mother’s house, Officer Bordewick and Deputy Havens first approached a
trailer parked behind the Delgados’ house. They knocked on the trailer’s door and called for
“Ralphie.” After receiving no response, they forced open a gate and entered a fenced area at the
back of the house.
28. Officer Bordewick and Deputy Havens remained in the backyard, looking into the
windows of the trailer and even the house itself, with their firearms or tasers in hand, until they
received a radio transmission from the officers at the front of the house. They then ran to the
front of the house with their firearms and/or tasers drawn.
29. While Officer Bordewick and Deputy Havens were in the back of the house,
Corporal Ruybal and Officer Pino approached the front. Corporal Ruybal initially knocked on
the front door with his right fist; when he did not receive an immediate response, he instead
began to bang on the door with his left fist, allowing him to place his right hand on his holstered
gun. Simultaneously, Officer Pino knelt in a tactical stance a few feet away from the door, with
his handgun or taser drawn.
30. Rafael Delgado, Sr. eventually opened the front door. He was unarmed and did
not display any aggressive behavior toward either of the officers present.
31. Corporal Ruybal immediately asked, “Is Ralphie here?” Rafael Delgado, Sr.
responded that he was not.
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32. Corporal Ruybal then asked Rafael Delgado, Sr. if the police could take a look
inside to see if “Ralphie” was there. Corporal Ruybal said, “That’s all we’re looking for, to see
him,” making clear that the police were not there to arrest Rafael Delgado, Sr. pursuant to the
outstanding arrest warrant that Corporal Ruybal later (falsely) claimed he knew existed.
33. Rafael Delgado, Sr. said that he would not allow police to enter his home.
Corporal Ruybal responded with a threat: “If he’s in there, you’re going to get in trouble.”
34. Rafael Delgado, Sr. asked Corporal Ruybal whether he had a “permit” to come
inside the house, clearly meaning a warrant. Defendant Ruybal responded, “If we need to get
one,” clearly meaning the police did not have a warrant.
35. If, in fact, Corporal Ruybal had known about the outstanding arrest warrant for
Rafael Delgado, Sr. for a misdemeanor failure to appear regarding a traffic citation by the
Colorado State Patrol, Corporal Ruybal would have had a duty to arrest Rafael Delgado, Sr. on
contact. Not only did Corporal Ruybal not arrest Rafael Delgado, Sr., neither Corporal Ruybal
nor any other Defendant made any statement indicating that they knew about the arrest warrant
before they entered the Delgados’ residence. Indeed, Corporal Ruybal’s statement that “Ralphie”
was “all [they were] looking for” indicated the exact opposite.
Defendants unlawfully entered the Delgados’ house and used plainly excessive force against
Rafael Delgado, Sr. in doing so.
36. Rafael Delgado, Sr. decided that he did not wish to answer any more questions,
and started to slowly close his front door, as was his right. Corporal Ruybal immediately
responded by stepping forward into the house and shoving the door so that it stayed open.
37. Corporal Ruybal told Rafael Delgado, Sr., “We have a legal right to be here and
I’ll tell you what it is.” However, Corporal Ruybal never told Rafael Delgado, Sr. what such
legal right was.
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38. Instead, Corporal Ruybal demanded to know Rafael Delgado, Sr.’s name. After
Rafael Delgado, Sr. answered truthfully, Corporal Ruybal disingenuously asked, “Are you the
one we’re looking for?”
39. Corporal Ruybal then demanded that Rafael Delgado, Sr. “get outside.” Rafael
Delgado, Sr. replied, “I don’t come outside.” Corporal Ruybal said, “I’ll make you come outside
in just a second.” When Rafael Delgado, Sr. said to Corporal Ruybal that Corporal Ruybal could
not make him come outside, Corporal Ruybal responded, “If you’re the party we’re looking for,
absolutely.”
40. Corporal Ruybal asked Rafael Delgado, Sr. for his date of birth, which Rafael
Delgado, Sr. provided. Corporal Ruybal wrote the information down on his hand.
41. Rafael Delgado, Sr. then again attempted to close his door and conclude the
encounter with Corporal Ruybal.
42. Corporal Ruybal shoved the door open and burst inside the house, yelling “get
outside!” Corporal Ruybal immediately grabbed Rafael Delgado, Sr. by the neck and forced him
to his knees, twisting Rafael Delgado, Sr.’s arm behind his back and away from his body.
43. Officer Pino immediately followed Corporal Ruybal inside the house but made no
attempt to prevent Corporal Ruybal from using physical force against Rafael Delgado, Sr.
Officer Pino in fact took the opposite course of action, grabbing Rafael Delgado, Sr.’s other arm
and assisting Corporal Ruybal with the takedown.
44. As clearly shown in the recordings from Corporal Ruybal’s and Officer Pino’s
body cameras, only at this point—after Corporal Ruybal grabbed Rafael Delgado, Sr. and forced
him to the ground—did Corporal Ruybal see a BB gun behind the front door.
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45. Corporal Ruybal thus lied in his incident report when he said that he first
“observed a rifle just to the south of the door” and “then went to place Delgado Sr into a position
of [his] control.”
46. Corporal Ruybal had no reason to shove his way inside the house and grab Rafael
Delgado, Sr., a salient fact that Officer Pino and Officer Bordewick both omitted from their
incident reports. Moreover, no “scuffle” between Rafael Delgado, Sr. and Corporal Ruybal
“broke out,” like Officer Pino said, nor did Rafael Delgado, Sr. start “actively…resisting arrest,”
like Corporal Ruybal said. Corporal Ruybal threw a disabled, 66-year-old, unarmed man to the
ground for no legitimate reason.
47. The only reasons that Coporal Ruybal had for slamming Rafael Delgado, Sr. to
the ground were the history between the Delgados and the police and his anger that Mr. Delgado
was asserting his constitutional rights.
48. Rafael Delgado, Sr. did not act aggressively towards Corporal Ruybal or Officer
Pino, attempt to assault either officer, resist arrest, or engage in any other conduct which could
have perhaps justified Corporal Ruybal’s use of force against him. Corporal Ruybal and Officer
Pino had no reason to believe that Rafael Delgado, Sr. had committed a crime, let alone a violent
crime, or that he was a danger to the officers or others.
49. Rafael Delgado, Sr. simply attempted to exercise his right to discontinue his
encounter with the police and retreat into his own home. For that, he was assaulted.
Defendants unreasonably seized Plaintiffs using force, including pointing their weapons at
Plaintiffs and handcuffing Rafael Ivan Delgado, Jr.
50. Alarmed by the commotion, Annabelle Delgado and Rafael Ivan Delgado, Jr.
came into the living room from other areas of the home. Almost simultaneously, Officer
Bordewick and Deputy Havens arrived at the front door, having sprinted from the back yard with
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their guns or tasers in hand. Both entered the house. Subsequently, Corporal Dean arrived and
also entered the house.
51. Annabelle Delgado yelled out that Rafael Delgado, Sr. was diabetic.
52. Undeterred, Corporal Ruybal and Officer Pino pulled their firearms and/or tasers
and pointed them at Rafael Ivan Delgado, Jr. Because Annabelle Delgado was between the
officers and Rafael Ivan Delgado, Jr., the officers also pointed their weapons at Annabelle
Delgado, an unarmed elderly woman who posed no threat to the officers and was a mere
bystander to the encounter.
53. Rafael Ivan Delgado, Jr. also posed no threat; he clearly had no weapons and did
not make any aggressive movements toward the officers. Although he yelled at the officers after
they assaulted his father, he did not make any threats that would have warranted a show of force.
54. In addition to pointing his weapon at Rafael Ivan Delgado, Jr., Officer Pino also
pointed his weapon at Rafael Delgado, Sr., after Rafael Delgado, Sr. was already down on the
floor. Officer Pino kept his weapon loosely pointed at Rafael Delgado, Sr. for several minutes.
55. Corporal Ruybal, with his weapon pointed at Rafael Ivan Delgado, Jr., directed
Rafael Ivan Delgado, Jr. to go outside. Corporal Ruybal could clearly see Rafael Ivan Delgado’s
Jr.’s hands and movements and had no legitimate reason to believe he needed to point his
weapon at him. Officer Bordewick and Corporal Dean also ordered Rafael Ivan Delgado, Jr. to
step outside.
56. Rafael Ivan Delgado, Jr. peacefully walked out of the house, escorted by Corporal
Dean.
57. After Rafael Ivan Delgado, Jr. left the house, Rafael Delgado, Sr. attempted to get
to his feet, stumbling at least once in doing so. He told Corporal Ruybal that Corporal Ruybal
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had hurt his back. Rafael Delgado, Sr. told Corporal Ruybal that he did not “have permit to come
inside.”
58. Corporal Ruybal’s response made clear that he forced his way inside and grabbed
Rafael Delgado, Sr. because Rafael Delgado, Sr. tried to close the door. Corporal Ruybal said:
“When I was running your information, you thought it was a good idea to slam the door in my
face. That ain’t gonna happen.”
59. Several Defendants, including at least Officer Pino, Corporal Ruybal, Deputy
Havens, and Officer Bordewick, continued to mill about the Delgados’ home for approximately
ten to twenty minutes. At some point, Corporal Ruybal left the house to go to his police vehicle
and start issuing a citation to Rafael Delgado, Sr. for “obstructing a peace officer.”
60. Though Plaintiff Rafael Ivan Delgado, Jr. never made any aggressive moves
toward Defendants, did not attempt to resist Defendants’ commands, and had not committed and
did not commit any crime during the relevant time period, Corporal Dean handcuffed him and
patted him down. The officers’ body camera recordings show that Rafael Ivan Delgado, Jr. posed
no threat to officer safety at that time.
61. At this point, Defendants finally informed the Delgados why the police were
there, that MVPD had received a call that Rafael Ivan Delgado, Jr. had been walking around the
neighborhood with a handgun.
62. Rafael Ivan Delgado, Jr. told Defendants that he had been outside with a BB gun.
He told Defendants where they could find the gun in the house; the officers retrieved it and
confirmed that it was a BB gun.
63. No firearms had been present at the Delgados’ house, and no Plaintiff was in
possession of a firearm at any relevant time.
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64. Although Rafael Ivan Delgado, Jr. had been entirely cooperative with Defendants,
and Defendants had determined that he had not, in fact, been walking around the neighborhood
with a handgun and thus they had no reason to further detain him, Defendants did not remove his
handcuffs. Rafael Ivan Delgado, Jr. asked Defendant RGSO Deputies several times to remove
the handcuffs after Defendants retrieved the BB gun, and they refused. Rather, they forced
Rafael Ivan Delgado, Jr. to remain seated outside by the front door in handcuffs for
approximately ten to twenty minutes.
Defendants used plainly excessive force against Rafael Delgado, Sr., including unjustifiably
stunning him with a taser, when arresting him.
65. Only after unlawfully entering the residence did Defendants run Rafael Delgado,
Sr.’s information through dispatch and learn that he had an active arrest warrant.
66. Officer Bordewick and Officer Pino told Rafael Delgado, Sr. that there was a
warrant for his arrest. They told him to go outside because they were arresting him.
67. Rafael Delgado, Sr. acquiesced. He put on his shoes and gathered some
belongings. He then started walking out of the house, with Officer Bordewick and Officer Pino
following closely behind him. Corporal Dean was also close by; he was on the other side of the
open front door from Rafael Delgado Sr.
68. As he walked out the door, Rafael Delgado, Sr. started to close the door behind
him. Officer Bordewick immediately grabbed the door and then grabbed Rafael Delgado, Sr.
69. Officer Bordewick seized Plaintiff Rafael Delgado, Sr. by his right arm and
shoulder, while Corporal Dean grabbed Rafael Delgado, Sr.’s left arm. At this point, one of the
Defendants said, “He’s got a knife in that hand.”
70. Rafael Delgado, Sr. had a handkerchief and a closed pocket knife (only slightly
larger than a chapstick tube) in his hand. He had picked up the closed pocket knife, along with
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his other possessions, in full view of Officer Bordewick, who did not object. His intent likely
was to hand the pocket knife to his wife or son before being taken to the station.
71. Rafael Delgado, Sr. did not threaten any officer with the knife, attempt to open
the knife, or make any aggressive motion with it whatsoever. He was surrounded by armed law
enforcement officials on all sides, at least two of whom held him by his arms. He posed no
physical threat to any Defendant.
72. Nevertheless, Defendants immediately applied brutal force to Rafael Delgado, Sr.
73. Officer Bordewick forcefully twisted Rafael Delgado, Sr.’s arm behind his back
and wrapped his hand around Rafael Delgado, Sr.’s fist, completely immobilizing the hand
holding the knife. At this point, Officer Bordewick and Corporal Dean, who had hold of Rafael
Delgado, Sr.’s other arm, had him completely secured and under their control.
74. Officer Pino then deployed his taser and stunned Rafael Delgado, Sr. in the back
for several seconds.
75. Simultaneously, Officer Bordewick and Corproal Dean slammed Rafael Delgado,
Sr. to the ground so that he was lying on his stomach. Officer Bordewick straddled Rafael
Delgado Sr., and placed him in handcuffs.
76. As Rafael Delgado, Sr. moaned in pain, Officer Pino held his taser against his
back, threatening him with further application of force.
77. Defendants then escorted Rafael Delgado, Sr., in handcuffs, to a patrol car, where
he was frisked in full view of his family and neighbors before Defendants transported him to the
Monte Vista Police Department and then to Rio Grande County Jail.
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Defendants’ unlawful actions caused Plaintiffs’ lasting harm.
78. Corporal Ruybal stated that he would cancel the citation that he had begun to
write for Rafael Delgado, Sr. for obstruction because there were “higher charges now.”
79. On information and belief, in a calculated effort to protect themselves from the
legal and professional consequences of their unlawful actions, Defendants fabricated an array of
charges against Rafael Delgado, Sr. They arrested him on charges of two felonies, First Degree
Assault on a Police Officer and Menacing, and three misdemeanors, Obstructing Government
Operations, Resisting Arrest, and Criminal Mischief.
80. Though Rafael Ivan Delgado, Jr. was never armed, had never behaved
aggressively towards Defendants, had cooperated with each and every one of Defendants’
directives, and in fact had done nothing illegal at any relevant time, Defendants, including
Deputy Havens and Corporal Dean, refused to remove the handcuffs from his wrists after they
transported his father from the scene.
81. Rafael Ivan Delgado, Jr. was issued a citation for Disorderly Conduct.
82. The charge against Rafael Ivan Delgado, Jr. was later dismissed.
83. All charges against Rafael Delgado, Sr. were later dismissed.
84. Defendants’ unlawful actions injured Rafael Delgado, Sr.’s shoulder, tearing his
rotator cuff and necessitating surgery in March 2017. Due to his injury, which as of yet remains
unhealed, Rafael Delgado, Sr., who is a manual laborer, has been unable to work since the
incident on May 10, 2016.
85. Due to Defendants’ unlawful actions on May 10, 2016, including illegally
entering the Delgados’ residence and pointing weapons at the Delgados, all three Delgados have
suffered emotional harm.
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STATEMENT OF CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF

42 U.S.C. § 1983 – Fourth & Fourteenth Amendment Violation – Excessive Force
(All Plaintiffs against all Defendants)
86. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set
forth herein.
87. The actions of Defendants as described herein, while acting under color of state
law, intentionally deprived Plaintiffs of the securities, rights, privileges, liberties, and immunities
secured by the Constitution of the United States of America, including their right to freedom
from unlawful seizures as guaranteed by the Fourth Amendment to the Constitution of the United
States of America and 42 U.S.C. §1983.
88. Prior to seizing their persons by means of excessive force, Defendants had no
probable cause or reasonable suspicion to believe that Plaintiffs had committed any violation of
the law, and/or in light of the facts and circumstances confronting Defendants, the use of
physical force against Plaintiffs was not reasonably proportionate to the violation Rafael Ivan
Delgado, Jr. allegedly committed.
reasonable belief that Plaintiffs posed an immediate potential threat to their safety, and/or in light
of the facts and circumstances confronting Defendants, the use of physical force against
Plaintiffs was not reasonably proportionate to any threat he posed.
reasonable belief that Plaintiffs were attempting to resist or evade arrest by flight.
91. Defendants unlawfully seized Plaintiffs by means of intentional and excessive
physical force and thereby unreasonably restrained their freedom.
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92. As police officers, Defendants had an affirmative duty to intercede on behalf of
Plaintiffs when their constitutional rights were being violated by other Defendant Officers.
Defendants had an affirmative constitutional duty to stop the other Defendant Officers from
using unconstitutionally excessive force.
93. Defendants intentionally failed to intervene and prevent the other Defendant
Officers from using unconstitutionally excessive force. Defendants’ actions and inactions during
the encounter with Plaintiffs directly facilitated and contributed to other Defendant Officers’
excessive use of force against Plaintiffs.
94. Defendants’ actions, as described above, were objectively unreasonable in light of
the facts and circumstances confronting them.
95. Defendants’ actions, as described above, were motivated by intent to harm
Plaintiffs.
96. Defendants’ actions, as described herein, were undertaken intentionally, willfully,
and wantonly.
97. Defendants’ conduct violated clearly established rights belonging to Plaintiffs of
which reasonable law enforcement officers knew or should have known.
98. Plaintiffs have been and continues to be damaged by Defendants’ use of excessive
force against them.
99. The acts or omissions of each Defendant were the legal and proximate cause of
Plaintiffs’ damages.
100. As a direct result of Defendants’ unlawful action as described above, Plaintiffs
suffered actual physical, emotional, and economic injuries in an amount to be proven at trial.
SECOND CLAIM FOR RELIEF

42 U.S.C. § 1983 – Fourth & Fourteenth Amendment Violation – Unlawful Seizure/Arrest
16
(All Plaintiffs against all Defendants)
forth herein.
secured by the Constitution of the United States of America, including their rights to freedom
from unlawful seizure as guaranteed by the Fourth Amendment to the Constitution of the United
States of America and 42 U.S.C. §1983, in that Plaintiffs were unlawfully seized by Defendants.
103. Defendants intentionally, knowingly, recklessly, and excessively subdued,
restrained, and detained Plaintiffs without any reasonable justification.
104. Defendants each willfully and objectively unreasonably terminated Plaintiffs’
freedom of movement and intentionally acquired physical control of Plaintiffs and/or Defendants
directly facilitated and contributed to other Defendant Officers’ willful and objectively
unreasonable termination of Plaintiffs’ freedom of movement and intentional acquisition of
physical control of Plaintiffs.
105. Defendants intentionally seized, restrained, and detained Plaintiffs by pointing
their weapons at Plaintiffs, placing their hands and/or handcuffs on Plaintiffs, and/or using
displays of their weapons and their presence in Plaintiffs’ house to cause Plaintiffs to submit to
their show of authority.
Plaintiffs when their constitutional rights were being violated by the other Defendant Officers.
unconstitutionally seizing Plaintiffs.
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Officers from unconstitutionally seizing Plaintiffs and/or Defendants’ actions and inactions
during the encounter with Plaintiffs directly facilitated and contributed to other Defendant
Officers unconstitutionally seizing Plaintiffs.
108. Prior to seizing their persons through unreasonable force and restraint, Defendants
had no reasonable belief that Plaintiffs posed an immediate potential threat to Defendants’ safety,
and/or in light of the facts and circumstances confronting Defendants, the unreasonable force
against Plaintiffs was not proportionate to any threat posed.
109. Prior to seizing their persons through unreasonable force and restraint,
Defendants had no reasonable belief that Plaintiffs were attempting to resist or evade arrest by
flight.
110. Defendants’ actions, as described above, were objectively unreasonable in light of
the facts and circumstances confronting them.
and wantonly.
113. Plaintiffs were and continue to be damaged by Defendants’ unlawful acts.
Plaintiffs’ damages.
115. Defendants’ conduct proximately caused significant injuries, damages, and
economic losses to Plaintiffs.
THIRD CLAIM FOR RELIEF

42 U.S.C. § 1983 – Fourth & Fourteenth Amendment Violation – Unlawful Entry/Search
18
(All Plaintiffs against All Defendants)
forth herein.
from unlawful governmental intrusions into their residence as guaranteed by the Fourth
Amendment to the Constitution of the United States of America and 42 U.S.C. §1983, in that
Defendants unlawfully and intentionally entered Plaintiffs’ residence.
118. Plaintiffs had a constitutionally protected right to be secure against unreasonable
governmental intrusions into their residence.
119. Defendants intentionally entered Plaintiffs’ residence and/or Defendants’ actions
and inactions during the encounter with Plaintiffs directly facilitated and contributed to other
Defendant Officers intentionally entering Plaintiffs’ residence.
120. Defendants entered Plaintiffs’ residence without their permission or consent.
121. Defendants had no warrant authorizing the search or entry of Plaintiffs’ residence
that occurred.
122. No legally recognizable exigent circumstances existed which would have
permitted Defendants’ entry of Plaintiffs’ residence.
123. Neither Plaintiffs nor anyone in control of Plaintiffs’ residence consented to
permit Defendants to enter the Delgado residence.
Plaintiffs when their constitutional rights were being violated by the other Defendant Officers.
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unconstitutionally entering Plaintiffs’ residence.
Officers from unconstitutionally entering Plaintiffs’ residence and/or Defendants’ actions and
inactions during the encounter with Plaintiffs directly facilitated and contributed to other
Defendant Officers unconstitutionally entering Plaintiffs’ residence.
126. Defendants’ entry or direct facilitation of entry of the Plaintiffs’ home, as
described above, were objectively unreasonable in light of the facts and circumstances
confronting them.
and wantonly.
129. Plaintiffs were and continue to be damaged by Defendants’ unlawful acts.
Plaintiff ‘s damages.
131. As a direct result of Defendants’ unlawful action as described above, Plaintiffs
suffered actual injuries in an amount to be proven at trial.
FOURTH CLAIM FOR RELIEF

42 U.S.C. § 1983 – First & Fourteenth Amendment Violation – Retaliation
(All Plaintiffs against All Defendants)
forth herein.
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from unlawful governmental interference with their free speech rights as guaranteed by the First
Amendment to the Constitution of the United States of America and 42 U.S.C. §1983, in that
Defendants retaliated against Plaintiffs for engaging in constitutionally protected activity.
134. Plaintiffs were engaged in constitutionally-protected activity at all relevant times,
including but not limited to their filing of a previous lawsuit against MVPD and criticizing the
Defendant Officers in the performance of their duties over the course of the events of May 10,
2016, specifically in the officers’ failure to respect Plaintiffs’ Fourth Amendment rights and
Defendants’ use of excessive force against Rafael Delgado, Sr.
135. Plaintiffs’ speech was related to a matter of important public concern.
136. Defendants’ conduct was substantially motivated as a response to Plaintiffs’
exercise of their First Amendment speech rights.
137. Defendants’ actions caused Plaintiffs to suffer injury that would chill a person of
ordinary firmness from continuing to engage in such constitutionally protected conduct.
138. Defendants’ adverse actions in retaliation for Plaintiffs’ exercise of their free
speech rights caused Plaintiffs to suffer injuries.
which reasonable police officers knew or should have known.
140. Plaintiffs’ right to speak out on issues of public concern outweighed any of
Defendants’ interests.
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141. Defendants engaged in the conduct described by this Complaint willfully and
wantonly and in reckless disregard of Plaintiffs’ State and federal constitutional rights.
142. Defendants’ conduct legally and proximately caused significant injuries, damages,
and losses to Plaintiff.
143. As a direct and proximate cause and consequence of Defendants’ violation of
Plaintiffs’ rights under the First Amendment, Fourth Amendment and Fourteenth Amendment,
Plaintiffs suffered injuries in an amount to be proven at trial.
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their
favor and against the Defendants, and grant:
(a) Appropriate declaratory and other injunctive and/or equitable relief;
(b) Compensatory and consequential damages, including damages for emotional
distress, loss of reputation, humiliation, loss of enjoyment of life, and other pain
and suffering on all claims allowed by law in an amount to be determined at trial;
(c) All economic losses on all claims allowed by law;
(d) Punitive damages on all claims allowed by law and in an amount to be
determined at trial;
(e) Attorneys fees and the costs associated with this action, including but not limited
to costs for expert witness fees, to the fullest extent allowed by law;
(f) Pre and post-judgment interest at the lawful rate; and
(g) Any further relief that this court deems just and proper, and any other relief as
allowed by law.
PLAINTIFFS REQUEST A TRIAL TO A JURY ON ALL ISSUES SO TRIABLE.
22
Dated this 9th day of May 2018.
KILLMER, LANE & NEWMAN, LLP
s/ Liana Orshan
___________________________________
David A. Lane
Liana Orshan
1543 Champa Street, Suite 400
Denver, Colorado 80202
(303) 571-1000
Attorneys for Plaintiffs
23

Rafael Delgado, Et. Al., v. Joseph Ruybal, Et. Al.

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Case 1:18-cv-01117-NYW Document 1 Filed 05/09/18 USDC Colorado Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

Civil Action No. _______________

COMPLAINT AND JURY DEMAND

of the Delgados’ constitutional rights.

2. For no legitimate reason, Defendants forcibly entered the Delgados’ residence,

an extended period of time.

proximately caused the deprivation of Plaintiffs’ federally protected rights.

JURISDICTION AND VENUE

by and brought pursuant to 42 U.S.C. § 1988.

6. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All

residents of the State of Colorado at all relevant times stated herein.

that is part of the City of Monte Vista.

part of Rio Grande County.

them at their house in Monte Vista.

of the warrant until after he illegally entered the Delgados’ residence.

Ruybal and Officer Bordewick, were familiar with the Delgados.

from the 2003 arrest were dropped.

speak with Rafael Delgado, Jr.

back of the house.

front of the house with their firearms and/or tasers drawn.

his handgun or taser drawn.

responded that he was not.

one,” clearly meaning the police did not have a warrant.

legal right was.

one we’re looking for?”

encounter with Corporal Ruybal.

and assisting Corporal Ruybal with the takedown.

ground for no legitimate reason.

was asserting his constitutional rights.

crime, or that he was a danger to the officers or others.

also entered the house.

bystander to the encounter.

face. That ain’t gonna happen.”

no threat to officer safety at that time.

neighborhood with a handgun.

confirmed that it was a BB gun.

possession of a firearm at any relevant time.

approximately ten to twenty minutes.

open front door from Rafael Delgado Sr.

Defendants said, “He’s got a knife in that hand.”

physical threat to any Defendant.

for several seconds.

Delgado Sr., and placed him in handcuffs.

back, threatening him with further application of force.

Defendants’ unlawful actions caused Plaintiffs’ lasting harm.

Operations, Resisting Arrest, and Criminal Mischief.

transported his father from the scene.

incident on May 10, 2016.

suffered emotional harm.

STATEMENT OF CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

States of America and 42 U.S.C. §1983.

Delgado, Jr. allegedly committed.