Barton Vs. The City of Austin; Kyu An

Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 1 of 16
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
§
Plaintiff,
§
§
1-22
00221
V.
§
CIVIL ACTION NO.:
-CV-
§
KYU AN, Individually,
§
and CITY OF AUSTIN, TEXAS
§
§
Defendants.
§
PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT COURT:
BOMANI BARTON (hereinafter referred to as "Mr. Barton" or "Plaintiff") and files his
Original Complaint complaining of KYU AN, individually (hereinafter referred to as "Officer Kyu
An" or "An"), and the City of Austin, Texas (hereinafter referred to as "Austin, Texas" or "the
City"), and respectfully shows this Honorable Court as follows:
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 2 of 16
TABLE OF CONTENTS
Nature of the Case
3
Parties
4
Jurisdiction
4
Venue
4
Conditions Precedent
5
Factual Background
5
Causes of Action
7
A.
§ 1983 - Excessive-Force Claims Against Officer Kyu An in his Individual
Capacities
7
B.
§ 1983 - First Amendment Retaliation Claim against Officer Kyu An in his
Individual Capacity
9
C.
Qualified Immunity Under § 1983
10
D.
Governmental Liability under 42 U.S.C. § 1983 (Monell) and the First and Fourth
Amendment to the U.S. Constitution
12
Damages
15
Attorney's Fees and Costs
15
Relief Requested
15
Jury Demand
16
Prayer
16
Page 2 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 3 of 16
TO THE HONORABLE UNITED STATES DISTRICT COURT:
BOMANI BARTON (hereinafter referred to as "Mr. Barton" or "Plaintiff") and files his
Original Complaint complaining of KYU AN, individually (hereinafter referred to as "Officer Kyu
An" or "An"), and the City of Austin, Texas (hereinafter referred to as "Austin, Texas" or "the
City") and respectfully shows this Honorable Court as follows:
I.
NATURE OF THE CASE
1.
This is an excessive force and First Amendment retaliation case, wherein Defendant Kyu
An - a police officer with the City of Austin Police Department - used excessive force against
Plaintiff, including shooting him with bean bag rounds in the face, elbow, and hip despite the fact
that Plaintiff posed no risk to Defendant or anyone else. Defendant An committed these acts in
retaliation for Plaintiff exercising his First Amendment rights of free speech and assembly against
police brutality.
2.
Specifically, this is a civil action arising under the United States Constitution under the
provisions of the First and Fourth Amendment to the Constitution of the United States, as applied
through the Fourteenth Amendment, and under federal law, particularly the Civil Rights Act, Title
42 of the United States Code § 1983, seeking damages against Defendants for committing acts,
under the color of law, with the intent and for the purpose of depriving Mr. Barton of rights secured
under the Constitution and law of the United States. 1
3.
Plaintiff also asserts governmental liability (Monell) claim against the City of Austin
because there exists pattern, practice, or custom of City of Austin Police Officers engaging in
excessive force and because the City of Austin-acting through its policy makers-failed to
1
Although Plaintiff refers to Defendants collectively at times, specific factual references are made concerning
actions or inactions by specific Defendants throughout this Complaint - these are not global allegations. As such,
this pleading complies with current federal standards. FED. R. CIV. P. 8.
Page 3 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 4 of 16
properly train and supervise Defendant Kyu An and encouraged the use of kinetic projectiles into
crowd of unarmed people.
II.
PARTIES
4.
Plaintiff, BOMANI BARTON, is a citizen of the United Sates currently residing Bell
County, Texas.
5.
Defendant, KYU AN, is an individual that was employed by the City of Austin Police
Department at the time of the incident that make the basis of this lawsuit and was acting within the
scope of his employment and under the color of law, statues, ordinances, rules and regulations,
customs and usage of the City of Austin Police Department. At the time of the incident, Officer
An assumed his role as a peace officer for the City of Austin. Upon information and belief,
Defendant An is still employed by the City of Austin as a police officer. Officer An can be served
with processes at the Austin Police Department, 715 E. 8th Street, Austin, Texas 78701.
6.
Defendant, CITY OF AUSTIN, is a municipality located within the State of Texas. The
City of Austin may be served through its Mayor, Steve Adler, or its City Clerk, Jannette Goodall,
at 301 W. 2nd Street, Austin, Texas 78701.
III.
JURISDICTION
7.
This action is brought pursuant to 42 U.S.C. § 1983, and the First, Fourth, and Fourteenth
Amendments to the United States Constitution. The Court has jurisdiction of this action under 28
U.S.C. §§ 1331 and 1343.
IV.
VENUE
8.
Venue is proper in this district under 28 U.S.C. § 1391(b) because the acts, events, or
omissions giving rise to this claim occurred in Travis County, Texas, which falls within the United
District Court for the Western District of Texas, Austin Division.
Page 4 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 5 of 16
V.
CONDITIONS PRECENDENT
9.
All conditions precedent have been performed or have occurred.
VI.
FACTUAL BACKGROUND
10.
On Saturday, May 30, 2020, the Austin Police Department responded to a peaceful protest
of police brutality with further police brutality.
11.
Bomani Ray Barton, his girlfriend, and another friend attended a civil rights protest near
the Austin Police Department Headquarters in Austin, Texas.
12.
When they arrived, they noticed Austin Police Department officers in what appeared to be
riot gear in a formation of numerous rows of officers.
13.
These officers used bicycles to barricade and corral individuals into certain areas and to
split up groups.
14.
Mr. Barton and his friends protested peacefully for several hours; however, the police
began to get agitated with the crowd, began pushing protestors, and used OC spray (commonly
referred to as "pepper spray") to silence the crowd.
15.
Mr. Barton witnessed an officer push a female protestor off of a retaining wall, which
caused her to hit her head on the ground.
16.
As the police became more violent, the protesters migrated and made their way towards
the Capitol. Officers continually used OC spray on unarmed individuals who did not pose a threat.
17.
The protesters continued marching the streets of Austin and eventually found their way
back to Austin Police Department Headquarters.
18.
By this time, Austin police officers resorted to wantonly spraying OC spay into crowds.
After seeing this tactic, Mr. Barton and his friends decided to stay towards the back of the protest
- away from the violent officers.
Page 5 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 6 of 16
19.
The protesters again started to march down the highway and Mr. Barton eventually ended
up towards the front of the march.
20.
Officer Kyu An eventually blocked off Mr. Barton and a handful of other protestors from
marching by aiming a weapon at Mr. Barton without ordering a command to Mr. Barton or the
other protestors.
21.
Officer Kyu An was approximately 20 feet away from Mr. Barton as Mr. Barton slowly
raised his hands in a surrendering position. Mr. Barton begged Officer Kyu An not to shoot him;
however, Officer Kyu An stared down Mr. Barton. Fearing for his life. Mr. Barton began to slowly
back away from Officer Kyu An with his arms still in the surrender position.
22.
Inexplicably, Officer Kyu An shot Mr. Barton in the right hip despite it being obvious that
Mr. Barton posed no threat to Officer Kyu An or anyone else.
23.
Mr. Barton staggered back in pain before Officer Kyu An immediately shot him in the right
elbow.
24.
Officer Kyu An then approached a stunned, immobile, and helpless Mr. Barton. This is
when Office Kyu An deploys his coup de grâce - a close-rage, point-blank, bean bag round to
Mr. Barton's face.
25.
Mr. Barton, dazed and feeling like he was hit in the jaw with a metal bat, stumbled a few
steps before falling to his knees as blood sputtered from his mouth. Two of his teeth broke off
from his mouth and fell to the pavement.
26.
Officer Kyu An, apparently pleased with his brutal assault of a peaceful protester, observed
the carnage he inflicted and carelessly walked away.
27.
Bystanders then assisted Mr. Barton to EMS as it was clear he needed emergency medical
care. EMS informed Mr. Barton that getting to the hospital was a matter of life and death. Mr.
Page 6 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 7 of 16
Barton, who was now dizzy from blood loss, was put on a stretcher and loaded into the ambulance.
28.
The ambulance only made it a few feet before it had to stop and pick up another victim of
Austin Police brutality. This time, EMS rescued a young, pregnant woman who suffered from
asthma and had been sprayed with OC spay. She was also taken to the ER with Mr. Barton.
29.
Mr. Barton underwent emergency surgery on his shattered jaw and was in and out of
consciousness as he recovered the next day. Additionally, his right elbow and hip were severally
bruised and could not function properly.
30.
Mr. Barton has currently undergone seven (7) surgeries on his face, but unfortunately, the
damage caused by Officer Kyu An is permanent.
31.
Officer Kyu An and 18 other officers have been indicated for assaulting Mr. Barton and
numerous other innocent civilians protesting police brutality. Several officers have stated through
their attorney that the highest levels of APD command authorized and ordered the use of bean bags
on the unarmed protesters that day. 2
32.
Mr. Barton has never been arrested nor charged with a crime related to this protest.
VII.
CAUSES OF ACTION
A.
§ 1983 - Excessive-Force Claims Against Kyu An in his Individual Capacity
33.
Plaintiff hereby adopts, incorporates, restates, and re-alleges paragraphs 1 through 32,
inclusive, with regard to all causes of action.
34.
As a direct and proximate result of the above-referenced unlawful and malicious physical
abuses of Plaintiff by Officer Kyu An that were committed under the color of law and under his
authority as a City of Austin Police Officer, Plaintiff suffered grievous bodily harm and was
deprived of his right to be secure in his person against unreasonable seizure of his person, in
2
https://www.texastribune.org/2022/02/21/austin-police-indictment-protests/
Page 7 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 8 of 16
violation of the Fourth Amendment of the Constitution of the United State of America.
35.
Plaintiff specifically pleads that Officer Kyu An used excessive force and/or deadly force
in the course of an illegal assault and battery of the Plaintiff, a free citizen, in violation of the
Fourth Amendment and its "reasonableness" standard.
36.
To establish Officer Kyu An violated his constitutional rights to be free from excessive
force, Plaintiff must show:
a.
An injury;
b.
Which resulted from the use of force that was clearly excessive to the need; and
C.
The excessiveness of which was objectively unreasonable. 3
37.
Officer Kyu An's use of unreasonable, unnecessary, and excessive force violated Plaintiff's
clearly established constitutional rights and was not objectively reasonable in light of the
circumstances.
38.
Specifically, Officer Kyu An used unreasonable, excessive, and unnecessary force by
shooting Mr. Barton with a bean bag gun three times, including one in the face at close range.
39.
Mr. Barton was not posing a threat to Officer Kyu An nor any other member of the public.
Mr. Barton did not disobey any lawful commands issued by Officer Kyu An. Mr. Barton was not
arrested nor charged with any crimes in relation to his presence at the protest.
40.
Plaintiff suffered multiple injuries as a direct result of Officer Kyu An's actions. As a result
of his encounter with Officer Kyu An, Mr. Barton was shot in the elbow, hip, and jaw with bean
bags, which resulted in a shattered jaw, numerous corrective surgeries, and permanent damage.
41.
Officer Kyu An's actions and/or omissions were "objectively unreasonable" in light of the
facts and circumstances confronting the officer without regard to his underlying intention or
3
See Newman V. Guedry, 703 F.3d 757, 761 (5th Cir. 2012); Rockwell V. Brown, 664 F.3d 985, 991 (5th Cir. 2011).
Page 8 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 9 of 16
motivation. Clearly, the facts and circumstances of this particular incident demonstrate the
unreasonableness of said actions, including that Plaintiff was unarmed, had not committed a crime,
was not attempting to flee, and posed no immediate threat or danger to the police. For these
reasons, it was objectively unreasonable for Officer Kyu An to shoot Plaintiff three times with a
bean bag gun.
42.
Officer Kyu An's actions were clearly excessive to the need.
43.
The acts of Officer Kyu An as set forth above were intentional, wanton, malicious, and
oppressive, or were with reckless disregard of Plaintiff's established constitutional rights;
therefore, Plaintiff is entitled to an award of punitive damages.
B.
§ 1983 - First Amendment Retaliation Claims Against Kyu An in his Individual
Capacity
44.
Plaintiff hereby adopts, incorporates, restates, and re-alleges paragraphs 1 through 43,
inclusive, with regard to all causes of action.
45.
To assert a claim for First Amendment retaliation under § 1983, Plaintiff must show:
a. He was engaged in a constitutionally protected activity;
b. The defendants' actions caused him to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity; and
C. The defendants' adverse actions were substantially motivated against Plaintiff's
exercise of constitutionally protected conduct. 4
46.
Here, Plaintiff was engaged in the constitutionally protected activity of voicing his free
speech and freedom to peaceably assemble in an attempt to redress grievances related to police
brutality across the nation.
47.
Defendant Kyu An shattered Mr. Barton's jaw in an effort to both literally and figuratively
take away his ability to speak on police brutality and to instill fear in all that assembled on the
4 Keenan V. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)
Page 9 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 10 of 16
matter. Such a public, brutal, and devastating injury not only chills a person of ordinary firmness
from continuing to engage in the activity, it also makes them physically unable to engage.
48.
Plaintiff was peacefully protesting, was not armed, and had his hands raised in a
surrendering position at the time Officer Kyu An shot him with the bean bag gun the first time.
Officer Kyu An then proceeded to repeatedly shoot Mr. Barton in what can only be described as a
simulated overkill. Officer Kyu An never gave Plaintiff a lawful order, never suspected Plaintiff
of committing a crime, never attempted to arrest Plaintiff, and never attempted to render aid after
the assault - he simply walked away. Further, Plaintiff was never charged with a crime related to
the protest. The totality of the circumstances show that Officer Kyu An's substantial motivation
was to infringe on those protesting police brutality by inflicting police brutality.
49.
The acts of Officer Kyu An as set forth above were intentional, wanton, malicious, and
oppressive, or were with reckless disregard of Plaintiff's established constitutional rights;
therefore, Plaintiff is entitled to an award of punitive damages.
C.
Qualified Immunity Under § 1983
50.
Plaintiff hereby adopts, incorporates, restates and re-alleges paragraphs 1 through 49,
inclusive, with regard to all causes of action.
51.
Officer Kyu An was carrying out a governmental function in employing the excessive use
of force against Plaintiff. Government actors can be entitled to qualified immunity to their
individual liability, but this immunity is waived if the complainant shows that:
a. the individual's acts deprived the party of constitutional rights under color of law;
b. the deprived rights were clearly established and constitutional rights which existed
at the time of the acts; and
C. such acts were not objectively reasonable under the circumstances, that is, no
reasonable official could have believed at the time that the conduct was lawful.
Page 10 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 11 of 16
52.
In Kinney V. Weaver, the Fifth Circuit explained the "clearly established" prong as follows:
Qualified immunity should not be denied unless the law is clear in the more
particularized sense that reasonable officials should be on notice that their
conduct is unlawful. The central concept is that of fair warning: The law can
clearly be established despite notable factual distinctions between the
precedents relied on and the cases then before the Court, SO long as the prior
decisions gave reasonable warning that the conduct then at issue violated
constitutional rights. 5
53.
In Newman V. Guedry, the Fifth Circuit Court addressed whether the law on the use of
Tasers was clearly established at the time of the event that occurred before the encounter between
Mr. Barton and Officer Kyu An:
Guedry contends that he had no reasonable warning that tasing Newman multiple
times violated Newman's constitutional rights, because there was then no binding
case law on the appropriate use of tasers. Lawfulness of force, however, does not
depend on the precise instrument used to apply it. Qualified immunity will not
protect officers who apply excessive and unreasonable force merely because their
means of applying it are novel. 6
54.
In Bush V. Strain, the Fifth Circuit held that the law was clearly established that an officer
slamming an arrestee's face into a vehicle when the arrestee was not resisting or attempting to flee
was objectively unreasonable.
55.
At the time of the encounter between Officer Kyu An and Plaintiff, there was no doubt that
Mr. Barton had the clearly established right to be free from harm, including excessive force in the
form of improper use of a bean bag gun.
56.
Here, Mr. Barton posed no immediate threat to Officer Kyu An or any else, was not
disobeying an unlawful command, was not suspected of a crime, was not informed he was under
5 See Kinney V. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (internal citations and quotations omitted).
6 See Newman V. Guedry, 703 F.3d 757, 763-64 (5th Cir. 2012).
7 Bush V. Strain, 513 F.3d 492, 502 (5th Cir. 2008).
Page 11 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 12 of 16
arrest; yet, Officer Kyu An chose to shoot Mr. Barton with his bean bag gun three times and shatter
Mr. Barton's jaw before calmly walking away.
57.
The actions taken by Officer Kyu An were excessive and unreasonable under clearly
established law.
58.
The acts of Officer Kyu An violated clearly established statutory or constitutional rights of
which a reasonable person would have known, including the constitutional rights afforded by the
Due Process Clause, First Amendment and Fourth Amendment of the United States Constitution.
D.
Governmental Liability Under 42 U.S.C. §1983 (Monell) and the First and Fourth
Amendment to the U.S. Constitution applied through the Fourteenth Amendment.
59.
Plaintiff hereby adopts, incorporates, restates, and re-alleges paragraphs 1 through 58,
inclusive, with regard to all causes of action.
60.
This cause of action is to redress the deprivation under the color of policy, custom, and
practice of rights and privileges secured to Plaintiff by the First and Fourth Amendment to the
United States Constitution.
61.
The elements of a cause of action under § 1983 against a governmental entity are:
a. Plaintiff was deprived of rights under the United States Constitution;
b. Such deprivation was caused by a person acting under color of state law;
C. The governmental entity adopted, or failed to adopt, a policy statement, ordinance,
regulation or decision adopted and promulgated by the governmental entity's
lawmaking officers or by an official to whom the law makers delegate law-making
authority or a persistent, widespread practice of officials or employees of the
governmental entity which, though not authorized or officially adopted and
promulgated, the policy is SO common and well settled as to constitute a custom
that fairly represents policy of the governmental entity; and
d. The promulgation of the policy by City of Austin was done SO with deliberate
indifference to known or obvious consequences that violations of constitutional
rights would occur, and the unconstitutional policy is the moving force behind the
deprivation of the Plaintiff's rights. 8
8
Zarnow V. City of Wichita Falls, 614 F.3d 461, 166-67 (5th Cir. 2010); see Groden V. City of Dallas, 826 F.3d
Page 12 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 13 of 16
62.
At all relevant times mentioned here, the City of Austin employed Officer Kyu An as a
police officer of the Austin Police Department. The City of Austin provided this employee and
agent with an official badge, identification, and uniform, which designated and described its
bearers as Austin Police Officers.
63.
At all relevant times mentioned here, Officer Kyu An, separately and in concert, acted
under the color of law, as well as under the color of policies, practices, and customs of the City of
Austin. The Defendants deprived Plaintiff of the rights, privileges, and immunities secured to
Plaintiff by the First and Fourth Amendment to the United States Constitution and the laws of the
United States.
64.
The facts alleged above are part of the customs, practices, polices, and decisions of the
Cirt of Austin, including but not limited to, the following:
a. Shooting kinetic projective into crowds where innocent people could be injured;
b. Using, authorizing, and/or tolerating excessive force against non-violent protestors;
C. Failing to adequately discipline officers;
d. Failing to adequately supervise officers;
e. Failing to adequately train officers concerning de-escalation of force, crowd
control, use of force against non-violent protestors, and the use or misuse of kinetic
projectiles;
f. Failing to train officers regarding demonstrators' free speech and assembly rights;
g. Not intervening to stop constitutional violations, including excessive force;
h.
Failing to train or instruct officers about specific incidents it considers
unreasonable, excessive force, or in violation of the constitution; and
i. Disproportionally using and tolerating excessive force, including deadly force,
against unarmed people of color.
280, 283 (5th Cir. 2016).
Page 13 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 14 of 16
65.
Former Chief Brian Manly, who was a policymaker for the City of Austin related to law
enforcement at the time, had a duty to properly train and supervise his deputies concerning the use
of force and to prevent excessive force. Former Chief Brian Manly failed to properly train and
supervise Officer Kyu An in not engaging in excessive and the proper use of force.
66.
Numerous other citizens have filed complaints and lawsuits against the City of Austin for
excessive and unreasonable force stemming from police action in this protest and many other
unrelated instances.
67.
Further, 19 police officers, include Defendant Officer Kyu An have been indicted on
criminal assault charges related to their conduct at this protest, including Officer Kyu An's conduct
that makes the basis of this lawsuit. This demonstrates that the City of Austin had a widespread
failure to adequately train and/or supervise problem with its officers and/or condoned the use of
these projectiles on innocent people at the time of the incident.
68.
Each of these customs, practices, and/or policies was actually known, constructively
known and/or ratified by the City of Austin, the Austin Police Department, and/or Former Chief
Brian Manly, a policymaker for the City of Austin, and were promulgated with deliberate
indifference to Plaintiff's rights, as guaranteed by the First and Fourth Amendments to the United
States Constitution, and specifically deprived Plaintiff of his First Amendment right to free speech
and to assemble and Fourth Amendment right to be free from excessive and unreasonable force.
The known and obvious consequence of these policies was that Austin Police Department officers,
and specifically Officer Kyu An, would be placed in recurring situations in which the constitutional
violations that occurred in this incident would result. Plaintiff alleges that continuation of the
above-mentioned practices of improper policies or customs actually caused Officer Kyu An to
9
https://www.texastribune.org/2022/02/21/austin-police-indictment-protests/
Page 14 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 15 of 16
violate Plaintiff's constitutional rights.
69.
Former Chief Brian Manly also ratified Officer Kyu An's conduct by failing to discipline
Officer Kyu An for his use of excessive and unreasonable force. It took a grand jury indictment
from citizens outside of Former Chief Brian Manly's control to bring Officer Kyu An to criminal
justice.
VIII. DAMAGES
70.
Plaintiff hereby adopts, incorporates, restates and re-alleges paragraphs 1 through 69,
inclusive, with regard to all causes of action.
71.
As a result of Defendants' statutory and constitutional violations, Plaintiff has suffered
serious and substantial damages and injuries, including but not limited:
a. Past, present, and future medical expenses;
b. Past, present, and future physical impairment;
C. Past, present, and future physical pain and suffering;
d. Emotional distress and mental anguish;
e. Physical disfigurement; and
f. Past, present, and future loss of earning capacity.
72.
Defendants are jointly and severally liable for Plaintiff's damages.
IX.
ATTORNEY'S FEES AND COSTS
73.
Pursuant to the Civil Rights Attorney's Fees Award Act, 42 U.S.C. § 1988, Plaintiff asserts
the right to an award of attorney's fees and costs under its 42 U.S.C. § 1983 pleadings if he prevails.
X.
RELIEF REQUESTED
74.
The preceding factual statements and allegations are incorporated by reference.
75.
For these reasons, Plaintiff prays for judgment against Defendants, any or all of them, for
Page 15 of 16
Case 1:22-cv-00221 Document 1 Filed 03/08/22 Page 16 of 16
the following:
a.
Actual damages;
b.
Pre-judgment and post-judgment interest;
C.
Statutory attorney's fees and expenses;
d.
Punitive and exemplary damages against the individual Defendant in an
amount to be determined and as allowed by the Court;
e.
Costs of court; and
f.
Such other and further relief as the Court deems just and equitable.
XI.
JURY DEMAND
76.
Plaintiff respectfully demands trial by jury and has tendered the appropriate fee for the
same.
XII. PRAYER
Plaintiff respectfully requests Defendants to be cited to appear and answer herein, and that
upon final trial hereof, the Court award the relief sought against Defendants.
Respectfully submitted,
By: /s/ Myles Lenz
Ramez F. Shamieh
Texas State Bar No. 24066683
ramez@shamiehlaw.com
Myles Lenz
Texas State Bar No. 24092685
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
214.389.7333 telephone
214.389.7335 facsimile
ATTORNEYS FOR PLAINTIFF
Page 16 of 16
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON
§
Plaintiff
§
§
V.
§
CIVIL ACTION No. 1:22-CV-00221-RP
§
CITY OF AUSTIN AND KYU AN
§
Defendants
§
§
§
DEFENDANT CITY OF AUSTIN'S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE ROBERT PITMAN:
Defendant City of Austin ("the City") files this Answer and Affirmative Defenses to
Plaintiffs' Original Complaint (Doc. No. 1). Pursuant to Rules 8 and 12 of the Federal Rules of
Civil Procedure, the City respectfully shows the Court the following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), the City responds to each of the specific
averments in Plaintiffs' First Amended Complaint as set forth below. To the extent that the City
does not address a specific averment made by Plaintiffs, the City expressly denies that averment. 1
NATURE OF THE CASE
1.
The City admits that Plaintiff is seeking relief under the First and Fourth Amendments of
the Constitution. The City denies the remaining allegations contained in Paragraph 1.
2.
The City admits that Plaintiff is seeking relief pursuant to 42 USC § 1983 and constitutional
provisions but denies that Plaintiff is entitled to such relief.
1
Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiffs' Original Complaint.
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 2 of 12
3.
The City admits that Plaintiff is asserting a Monell claim against the City but denies the
remaining allegations contained in Paragraph 3.
PARTIES
4.
Upon information and belief, the City admits the allegations contained in Paragraph 4.
5.
The City denies that any APD officer can be served at 715 E. 8th Street, Austin Texas 78701
but admits the remaining allegations contained in Paragraph 5.
6.
The City admits the allegations contained in Paragraph 6.
JURISDICTION
7.
The City admits the allegations contained in Paragraph 7.
VENUE
8.
The City admits the allegations in Paragraph 8.
CONDITIONS PRECEDENT
9.
The City is without information sufficient to admit or deny the allegations in Paragraph 9.
FACTUAL BACKGROUND
10.
The City admits that the Austin Police responded and to and provided law enforcement
support for large crowds of people gathered on May 30, 2020. The City denies the
remaining allegations contained in Paragraph 10 of the Complaint.
11.
The City admits that on May 30, 2020, Plaintiff was in downtown Austin. Otherwise, the
City lacks sufficient information to admit or deny the remainder of the allegations of
Paragraph 11.
12.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 12 of the Original Complaint and therefore denies same.
Page 2 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 3 of 12
13.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 13 of the Complaint and therefore denies same.
14.
The City admits police use of force included OC Spray in response to violence and threats
of violence by large crowds gathered on May 30, 2020. The City is without sufficient
information to admit the remaining allegations in Paragraph 14 and therefore denies the
same.
15.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 15 of the Original Complaint and therefore denies same.
16.
The City admits that there were large crowds of people gathering at or near the Capitol
Complex on May 30, 2020. The City further admits police use of force included OC Spray
in response to violence and threats of violence by large crowds gathered. The City denies
the remaining allegations in Paragraph 16.
17.
The City admits that there were large crowds of people gathering at or near Austin Police
Headquarters on May 30, 2020.
18.
The City admits police use of force included OC Spray in response to violence and threats
of violence by large crowds gathered on May 30, 2020. The City is without sufficient
information to admit the remaining allegations in Paragraph 14 and therefore denies the
same.
19.
The City admits that there were large crowds of people gathered and walking along the
highway. The City is without information sufficient to form a belief as to the remaining
allegations and therefore denies the same.
20.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 20 of the Original Complaint and therefore denies same.
Page 3 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 4 of 12
21.
The City admits that upon information and belief Plaintiff was struck by a projectile fired
by Officer Kyu An. The City denies the remaining allegations in Paragraph 21.
22.
The City admits that upon information and belief Plaintiff was struck by a projectile fired
by Officer Kyu An. The City denies the remaining allegations in Paragraph 22.
contained in Paragraph 22 of the Original Complaint and therefore denies same.
23.
The City admits that upon information and belief Plaintiff was struck by a projectile fired
by Officer Kyu An. The City denies the remaining allegations in Paragraph 23.
24.
The City admits that upon information and belief Plaintiff was struck by a projectile fired
by Officer Kyu An. The City denies the remaining allegations in Paragraph 24.
25.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 25 of the Original Complaint and therefore denies same.
26.
The City denies the allegations in Paragraph 26.
27.
Upon information and belief the City admits that Plaintiff was transported to the hospital
by EMS. The City is without sufficient knowledge to form a belief as to the truth of the
remaining allegations in the Paragraph and therefore denies the same.
28.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 28 of the Original Complaint and therefore denies same.
29.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 29 of the Original Complaint and therefore denies same.
30.
The City is without sufficient knowledge to form a belief as to the truth of the allegations
contained in Paragraph 30 of the Original Complaint and therefore denies same.
31.
Upon information and belief, the City admits that the Travis County District Attorney
issued 19 indictments to APD officers, including Officer Kyu An. The indictments and the
Page 4 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 5 of 12
news articles related to the indictments speak for themselves. The City denies any
remaining allegations in the Paragraph.
32.
Upon information and belief the City admits to the allegations in Paragraph 32.
CAUSES OF ACTION
33.
Paragraph 32 does not allege facts and does not require a response.
34.
The allegations contained in Paragraph 34 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
35.
The allegations contained in Paragraph 35 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
36.
Paragraph 36 contains a restatement of the legal requirements needed to assert a cause of
action for excessive force and for that reason does not require a response.
37.
Paragraph 37 contains a legal conclusion and further does not appear to be directed to the
City. To the extent a response is required, the City denies the allegations in Paragraph 37.
38.
The allegations contained in Paragraph 38 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
39.
The allegations contained in Paragraph 39 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint. Upon
information and belief, the City admits that Plaintiff was not arrested or charged with any
crimes related to the May 30, 2020, protest.
Page 5 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 6 of 12
40.
Paragraph 40 does not appear to be primarily directed to the City. The City admits that
police use of beanbag shotgun rounds in response to violence and threats of violence by
large crowds at the May 30, 2020, protests resulted in Plaintiff being struck with beanbag
round. Otherwise, the City lacks information sufficient to admit or deny the remainder of
the allegations in Paragraph 40.
41.
Paragraph 41 contains a legal conclusion and further does not appear to be directed at the
City. If a response is required of the City, the City denies the allegations contained within
this paragraph of the Complaint.
42.
The allegations contained in Paragraph 42 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
43.
The allegations contained in Paragraph 42 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
44.
Paragraph 44 does not allege facts and does not require a response.
45.
Paragraph 45 contains a restatement of the legal requirements needed to assert a cause of
action for retaliation and for that reason does not require a response.
46.
The allegations contained in Paragraph 46 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City admits that Plaintiff was present in the crowd of people assembled in and near the
downtown areas on May 30, 2020, it is without sufficient information to admit or deny
what rights if any Plaintiff purported to exercise on May 30, 2020.
Page 6 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 7 of 12
47.
The allegations contained in Paragraph 47 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint and
specifically denies that any APD officers fired weapons without provocation.
48.
The allegations contained in Paragraph 48 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City admits that it does not have any information indicating that Plaintiff was in possession
of a weapon or that he was guilty of a crime on May 30, 2020. The City denies the
remaining allegations contained within this paragraph of the Complaint and specifically
denies that any APD officers fired weapons without provocation.
49.
The allegations contained in Paragraph 49 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
50.
Paragraph 50 does not allege facts and does not require a response.
51.
Paragraph 51 is a restatement of the law related to qualified immunity and any allegations
contained within that legal restatement do not appear to be directed at the City. To the
extent a response is required, the City denies allegations of excessive force and retaliation.
52.
Paragraph 52 contains a reference to Fifth Circuit case related to qualified immunity and
legal requirements. The case speaks for itself and beyond that does not require a response.
53.
Paragraph 53 contains a reference to and quote from Fifth Circuit case involving the use of
tasers. The case speaks for itself and beyond that does not require a response.
54.
Paragraph 54 contains a case law reference to a Fifth Circuit case involving an arrestee. As
such it does not require a response from the City.
Page 7 of 12
Case 1:22-cv-00221-RP
Document 7
Filed 04/14/22
Page
8
of
12
55.
Paragraph 55 is a legal conclusion. To the extent a response is warranted, the City denies
allegations of excessive force and retaliation.
56.
Paragraph 56 does not appear to be directed to the City. To the extent a response is required,
other than the fact that Plaintiff was in a large crowd of people-including people who
were engaged in violent or otherwise threatening or unlawful behavior, the City admits that
it does not have any information indicating that Plaintiff was guilty of any criminal conduct
on May 30, 2020. Otherwise, the City lacks information sufficient to admit or deny the
allegations in Paragraph 56.
57.
The allegations contained in Paragraph 57 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
58.
The allegations contained in Paragraph 58 of the Complaint do not appear to be addressed
to the City and therefore no response is required. If a response is required of the City, the
City denies the allegations contained within this paragraph of the Complaint.
59.
Paragraph 59 does not allege facts and does not require a response. Paragraph 70 does not
allege facts and does not require a response.
60.
Paragraph 60 is a policy statement behind the cause of action and does not contain factual
allegations for the City to admit or deny. The City denies that it is liable for any
constitutional violations as described.
61.
Paragraph 61 is a statement of the legal elements for a Monell claim and does not contain
allegations that require the City to admit or deny. To the extent the cited elements contain
factual allegations or references against the City, the City denies.
Page 8 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 9 of 12
62.
The City admits that on May 30, 2020, Kyu An was employed by the City of Austin as a
full-time and licensed police officer. The City admits it provided Officer An will all City-
issued equipment applicable to full-time officers for the City of Austin.
63.
The City admits that Kyu An was employed as a peace officer on May 30, 2022, and was
on duty on May 30, 2020, as a City of Austin police officer. The City denies the remaining
allegations contained in Paragraph 63 of the Original Complaint.
64.
The City denies the allegations contained in Paragraph 64 of the Original Complaint.
65.
The City admits that former Chief Brian Manley served as a law enforcement policy maker,
including policy maker for law enforcement training, during the May 2020 protests. The
City denies the remaining allegations in Paragraph 65 of the Original Complaint.
66.
The City admits that multiple individuals have filed lawsuits alleging excessive force
related to the May 2020 protests and other incidents.
67.
Upon information and belief, the City admits that the Travis County District Attorney
issued 19 indictments to APD officers, including Officer Kyu An. The City denies the
remaining allegations in Paragraph 67 of the Original Complaint.
68.
The City denies the allegations in Paragraph 68 of the Original Complaint.
69.
Per Texas state law, the disciplinary process for an officer remains open regarding the
allegations in this lawsuit. The disciplinary process is deferred until 30 days after the
conclusion of the related criminal process. Otherwise, the City denies the allegations in
Paragraph 69 of the Original Complaint.
DAMAGES
70.
Paragraph 70 does not allege facts and does not require a response.
71.
The City denies the allegations contained in Paragraph 71 of the Original Complaint and
Page 9 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 10 of 12
denies Plaintiff is entitled to the relief requested in Paragraph 71 a-f.
72.
The City denies the allegations contained in Paragraph 72 of the Original Complaint.
ATTORNEY'S FEES AND COSTS
73.
The City admits that Plaintiff seeks an award of attorney's fees and expenses under 42
U.S.C. § 1988 but denies that Plaintiff is entitled to such relief.
RELIEF REQUESTED
74.
Paragraph 74 does not allege facts and does not require a response.
75.
The City denies liability for the damages sought in Paragraph 75of the Original Complaint
and denies Plaintiff is entitled to the relief requested.
JURY DEMAND
76.
Paragraph 76 is a request for a trial by jury and does not contain allegations that require
the City to admit or deny.
PRAYER FOR RELIEF
77.
The City denies Plaintiff is entitled to the requested relief in the unnumbered Prayer for
relief in the Original Complaint.
AFFIRMATIVE DEFENSES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as
a municipal corporation entitled to immunity while acting in the performance of its governmental
functions, absent express waiver.
2.
Defendant City of Austin asserts the affirmative defense of governmental immunity
since its employees are entitled to qualified/official immunity for actions taken in the course and
scope of their employment, absent express waiver.
3.
As a political subdivision, Defendant City of Austin denies that it can be liable for
Page 10 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 11 of 12
exemplary/punitive damages under 42 U.S.C. § 1983.
4.
Defendant reserves the right to assert additional affirmative defenses throughout the
development of the case.
DEFENDANT'S PRAYER
Defendant City of Austin prays that all relief requested by Plaintiff be denied, that the Court
dismiss this case with prejudice, and that the Court award Defendant costs and attorney's fees, and
any additional relief to which it is entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ Meghan L. Riley
MEGHAN L. RILEY
State Bar No. 24049373
meghan.riley@austintexas.gov
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2268
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT CITY OF
AUSTIN
Page 11 of 12
Case 1:22-cv-00221-RP Document 7 Filed 04/14/22 Page 12 of 12
CERTIFICATE OF SERVICE
I certify that on the 14th day of April 2022, I served a copy of Defendant City of Austin's
Answer and Affirmative Defenses to Plaintiff's Original Complaint on all parties, by and through
their attorney of record, in compliance with the Federal Rules of Civil Procedure.
Via CM/ECF:
Ramez F. Shamieh
State Bar No. 24066683
ramez@shamiehlaw.com
Myles Lenz
State Bar No. 24092685
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane
Suite 1160
Dallas, Texas 75247
Telephone: (214) 389-7333
Facsimile: (512) 389-7335
ATTORNEYS FOR PLAINTIFF
/s/ Meghan L. Riley
MEGHAN L. RILEY
Page 12 of 12
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-00221-RP
§
CITY OF AUSTIN AND KYU AN,
§
Defendants.
§
DEFENDANT KYU AN'S ORIGINAL ANSWER TO
PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COMES NOW Defendant, Kyu An, by and through his attorneys of record, and files this
his Original Answer to Plaintiff's Original Complaint and in support thereof would respectfully
show the Court as follows:
I.
INTRODUCTION
1.
Between May 25 and July 31 of 2020, approximately 2,037 law enforcement officers were
injured during protests related to the in-custody death of George Floyd in Minnesota. 1 During those
protests, approximately 62% of major U.S. cities experienced looting. 2 56% of major U.S. cities
experienced arson incidents-a statistic which does not include the 97 police vehicles set on fire
during that time period, which was an act of violence reported by over 26% of major city law
1
Report on the 2020 Protests & Civil Unrest, Major Cities Chiefs Association 9-12 (October
2020), hhttps://majorcitieschiefs.com/wp-content/uploads/2021/01/MCCA-Report-on-the-2020-
Protest-and-Civil-Unrest.pdf.
2 Id.
Defendant Kyu An's Original Answer
Page 1
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 2 of 11
enforcement agencies nationwide. 3 Approximately 72% of major city law enforcement agencies
reported officer injuries. 4
2.
State and local governments in 21 different U.S. states were forced to call up the U.S.
National Guard to defend persons and property from violent rioters. 5 Property Claims Services
designated the riots as a "multi-state catastrophe event," which is the first such designation for a
civil disorder event since 1992. 6 Conservative insurance estimates of property damage caused
during the riots exceeds $1 billion dollars-the "costliest civil disorder in U.S. history."
3.
The weapons used by the "protest" rioters nationwide varied. The most common weapons
used "were improvised or weapons of opportunity such as rocks, bricks, pieces of landscape, and
bottles (including frozen and glass bottles). ",8 Over three quarters of major city law enforcement
agencies reported rioters using such weapons. 9 "Another common violent tactic used by protestors
involved throwing 'Molotov cocktails' at officers," which was reported by a staggering 46% of
major city law enforcement agencies nationwide. 10 "Another common tactic was to use peaceful
protesters as human shields while violent individuals attacked officers and attempted to incite
violence by throwing objects from deep within crowds."
4.
63% of agencies reported incendiary fireworks thrown or launched at officers. 12 51% of
agencies reported officers being confronted by protestors wielding firearms-including "AR-15s,
3 Id.
4 Id.
5 Facts + Statistics: Civil Disorders, Insurance Information Institute, https://www.iii.org/fact-
statistic/facts-statistics-civil-disorders.
6 Id.
7 Id.
8
Report on the 2020 Protests & Civil Unrest at 11.
9 Id.
10 Id.
11 Id.
12 Id. at 11 - 12.
Defendant Kyu An's Original Answer
Page 2
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 3 of 11
shotguns, and handguns.' "13 Other weapons wielded by protestors commonly included bats,
hammers, metal poles, and shields. 14 Five different agencies reported "police officers being shot
or critically injured" during the riots, one agency reported rioters discharging their firearms from
moving vehicles, and at least two agencies "reported protestors being shot and killed by other
protestors." 5
5.
It is undisputed that many protestors committed no violence whatsoever during the protests.
It is equally undisputed that a significant number of protestors did commit violent acts during the
protests. When a previously peaceful protest suddenly includes persons who are carrying deadly
weapons, injuring police officers, throwing Molotov cocktails, looting buildings, and setting cars
on fire, the protest is no longer a protest. It is a riot.
6.
Austin was by no means immune to the violence. Rioters looted buildings and businesses;
shattered windows-including buildings with important historical significance; set cars and other
property on fire; broke open an ATM; and defaced the Capitol grounds and numerous other
properties. 16 Rioters in Austin also launched or threw items that included-but were not limited
to "rocks, bricks, eggs, water bottles, and Molotov cocktails" at Austin Police Department
officers.17 Starting on May 30, the Austin Police Department was forced to issue a "citywide
request for assistance, which means all Austin officers [were] asked to report to duty. ,18 DPS sent
13 Id.
14 Id.
15
Id.
16 See e.g. Ken Herman, Herman: A sad Sunday morning on Sixth Street, AUSTIN AMERICAN
STATESMAN (May 31, 2020, 1:38 PM), https://www.statesman.com/news/20200531/herman-sad-
sunday-morning-on-sixth-street.
17
Heather Osborne, Ariana Garcia & Katie Hall, Fires set as Austin protests against police
violence spread, scatter, AUSTIN AMERICAN STATESMAN (May 30, 2020, 11:07 AM),
htps://www.statesman.com/news/20200530/fires-set-as-austin-protests-against-police-violence
spread-scatter.
18 Id.
Defendant Kyu An's Original Answer
Page 3
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 4 of 11
"more than 1,500 officers to assist local police departments" statewide, and the governor ultimately
"activated the Texas National Guard." 19 By the time of the incident underlying this lawsuit, the
Austin protests were no longer protests-they were riots. It is thus within the context of an ongoing
riot that the force used by APD officers must be analyzed.
7.
On May 30, APD Officer Kyu An personally observed rioters throwing projectiles at APD
officers that included but were not limited to rocks, glass bottles, fluid-filled water bottles, and
large fireworks. Officer An himself suffered a serious burn to his neck as a result of one such
rioter's attack using an "artillery shell" style pyrotechnic explosive device, and was also struck by
several other types of rioter-thrown projectiles that day.
8.
APD Officer Kyu An was one of the APD officers tasked with policing the protests and
riots to protect the citizens of Austin and the city itself on the day in question. APD officers on the
scene had reason to believe that the protests would turn violent or even deadly-including the
knowledge that rioters had burned a police precinct to the ground in a related "protest" two days
earlier.20 By the time Officer An arrived, protestors had physically taken over and blocked
Interstate 35, creating a potentially deadly situation for themselves as well as oncoming drivers
travelling on the highway.
9.
Plaintiff Barton's conduct on May 30, 2020 crossed the line of peaceful protest-including
violent acts that intentionally and directly threatened the health and safety of officers on the scene.
Plaintiff's violent acts far exceeded anything that would be protected by the First Amendment.
19 Id.
20 See e.g. Sarah Kerr, Mike Shum, Katie G. Nelson, Dmitry Khavin & Haley Willis,
Minneapolis Precinct Fire: How a Night of Chaos Unfolded, N.Y. TIMES (May 29, 2020),
https://www.nytimes.com/video/us/100000007162707/minneapolis-police-protest-
burn.html?searchResultPosition=1.
Defendant Kyu An's Original Answer
Page 4
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 5 of 11
10.
Over the course of the protest-turned-riot, Officer An never purposefully impacted any
person who was not either actively committing a violent act, or was obviously preparing to
imminently commit a violent act. Officer An never aimed his weapon at any rioter's head, neck,
or face. At all times, Officer An acted pursuant to his training and accepted police procedures.
Officer An's conduct as a law enforcement officer was reasonable, especially when the requisite
consideration is given to his surrounding circumstances that were "tense, uncertain, and rapidly
evolving. 21 He is entitled to the protections of Qualified Immunity as a result.
II.
ORIGINAL ANSWER
A. Nature of the Case.
11.
Defendant admits that Plaintiff is seeking relief under the First and Fourth Amendments of
the Constitution contained within Paragraph 1 of Plaintiff's Original Complaint. Otherwise,
denied.
12.
Defendant admits that Plaintiff is seeking relief pursuant to 42 USC § 1983 and
constitutional provisions within Paragraph 2 of Plaintiff's Original Complaint. Otherwise, denied.
13.
Defendant admits that Plaintiff is asserting a Monell claim against the City of Austin within
Paragraph 3 of Plaintiff's Original Complaint. Otherwise, denied.
B. Parties.
14.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraph 4 of Plaintiff's Original Complaint.
15.
As to the allegations contained within Paragraph 5 of Plaintiff's Original Complaint,
Defendant denies that any APD officer may be validly served at 715 E. 8th Street, Austin Texas
21 See Graham V. Connor, 490 U.S. 386, 397 (1989).
Defendant Kyu An's Original Answer
Page 5
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 6 of 11
78701 through means other than personal service of process. Defendant otherwise admits the
remaining allegations therein.
16.
Defendant admits the allegations contained within Paragraph 6 of Plaintiff's Original
Complaint.
C. Jurisdiction and Venue.
17.
Defendant admits the allegations contained within Paragraphs 7 - 8 of Plaintiff's Original
Complaint.
D. Conditions Precedent.
18.
Defendant lacks sufficient knowledge to be able to form a belief as to the truth of the
allegations contained in Paragraph 9 of Plaintiff's Original Complaint and therefore denies the
same.
E. Factual Background.
19.
As it pertains to the allegations contained in Paragraph 10 of Plaintiff's Original Complaint,
Defendant admits that the Austin Police Department responded to and provided law enforcement
support for large crowds of people gathered on May 30, 2020. Otherwise, denied.
20.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraph 11 of Plaintiff's Original Complaint.
21.
As to the allegations contained within Paragraph 12 of Plaintiff's Original Complaint,
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations as it
pertains to what other APD officers were wearing when Plaintiff and his companions arrived.
22. Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraphs 13 - 19 of Plaintiff's Original Complaint as written, and therefore
denies the same.
Defendant Kyu An's Original Answer
Page 6
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 7 of 11
23.
As to the allegations contained within Paragraphs 20 - 24 of Plaintiff's Original Complaint,
Defendant admits that he discharged his bean bag shotgun at an individual who was observed
actively throwing projectiles at police officers, and that such person may have been Plaintiff.
Defendant further admits that he aimed his bean bag shotgun at the rioter's waist and discharged
his weapon three times in quick succession in conformance with his training. Defendant denies the
remaining allegations contained within Paragraphs 20 - 24 of Plaintiff's Original Complaint.
24.
As to the allegations contained within Paragraph 25 of Plaintiff's Original Complaint,
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained therein, and therefore denies the same.
25.
Defendant denies the allegations and nefarious dramatizations contained within Paragraph
26 of Plaintiff's Original Complaint.
26.
As to the allegations contained within Paragraphs 27 - 30 of Plaintiff's Original Complaint,
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained therein, and therefore denies the same.
27.
As to the allegations contained within Paragraph 31 of Plaintiff's Original Complaint,
Defendant admits that the Travis County District Attorney issued 19 indictments to APD officers,
including to Defendant. The indictments and the cited news article related to the indictments speak
for themselves. Defendant denies the remaining allegations and characterizations in Paragraph 31
of Plaintiff's Original Complaint.
28.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraph 31 of Plaintiff's Original Complaint.
F. Causes of Action.
i.
§1983 - Excessive-Force Claims against Kyu An in his Individual Capacity
Defendant Kyu An's Original Answer
Page 7
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 8 of 11
29.
As to the allegations contained in Paragraph 33, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
30.
As to the allegations contained in Paragraphs 34 - 43 of Plaintiff's Original Complaint,
Defendant admits that he was acting under the color of law during the protests and riots that form
the backdrop of this lawsuit. No response from this Defendant is necessary regarding what the law
allegedly is as it relates to the claims alleged. Otherwise, denied.
ii.
§1983 - First Amendment Retaliation Claims Against Kyu An in his
Individual Capacity
31.
As to the allegations contained in Paragraph 44, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
32.
As to the allegations contained in Paragraphs 45 - 49 of Plaintiff's Original Complaint, no
response from this Defendant is necessary regarding what the law allegedly is as it relates to the
claims alleged. Otherwise, denied.
iii.
Qualified Immunity Under § 1983.
33.
As to the allegations contained in Paragraph 50, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
34.
As to the allegations contained within Paragraph 51 - 58 of Plaintiff's Original Complaint,
no response from this Defendant is necessary regarding what the law allegedly is as it relates to
the claims alleged. Otherwise, denied.
iv.
Governmental Liability Under 42 U.S.C. $1983 (Monell) and the First and
Fourth Amendment to the U.S. Constitution applied through the Fourteenth
Amendment.
35.
As to the allegations contained in Paragraph 59, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
Defendant Kyu An's Original Answer
Page 8
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 9 of 11
36.
As to the allegations contained in Paragraphs 60 - 69, no answer is necessary from this
Defendant. To the extent any answer is deemed necessary, Defendant denies the allegations
therein.
V.
Damages, Relief Requested, Jury Demand, & Prayer.
37.
As to the allegations contained in Paragraphs 70 - 76, no answer is necessary from this
Defendant. To the extent any answer is deemed necessary, Defendant admits that Plaintiff seeks
the relief requested therein, but denies that any of his own alleged conduct at issue amounted to an
injustice of any kind.
III.
AFFIRMATIVE DEFENSES & IMMUNITIES
38.
Defendant denies any deprivation under color of statute, ordinance, custom, or abuses of
any rights, privileges, or immunities secured to the decedent by the United States Constitution,
state law, or 42 U.S.C. § 1983, et seq.
39.
Defendant hereby invokes the doctrine of Qualified Immunity and Official Immunity.
Defendant discharged his obligations and public duties in good faith and would show that his
actions were objectively reasonable in light of the law and the information possessed at that time,
and that no clearly established law exists prohibiting him from using force to defend himself and/or
other persons from an active or imminent assault with a potentially deadly weapon or projectile,
whether during a riot or otherwise.
40.
Further and in the alternative, the incident in question and the resulting harm to Plaintiff
were caused or contributed to by another persons' own illegal and/or violent or reckless conduct,
including but not limited to the conduct of Plaintiff himself. To the extent legally applicable herein,
Defendant Kyu An's Original Answer
Page 9
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 10 of 11
Defendant invokes the comparative responsibility provisions of the Texas Civil Practice &
Remedies Code. 22
41.
Defendant further pleads that, in the unlikely event he is found to be liable, such liability
be reduced by the percentage of the causation found to have resulted from the acts or omissions of
other persons.
42.
Defendant pleads that he had legal justification for each and every action taken by him
relating to this incident.
43.
Defendant asserts the limitations and protections of Chapter 41 of the Texas Civil Practice
& Remedies Code, and the due process clause of the United States Constitution.
44.
Defendant asserts the limitations and protections of Chapter 101 of the Texas Civil Practice
& Remedies Code.
45.
Defendant reserves the right to assert additional affirmative defenses throughout the
development of this case.
46.
To the extent Defendant did not address a specific averment made by Plaintiff in her
Original Complaint, Defendant expressly denies all such averments.
IV.
JURY DEMAND
47.
Pursuant to Federal Rule of Civil Procedure 48, Defendant hereby requests a jury trial.
V.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendant Kyu An prays that upon a final
hearing of this cause, the Court dismiss all of Plaintiff's claims with prejudice, that all costs of
22
See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendant Kyu An's Original Answer
Page 10
Case 1:22-cv-00221-RP Document 8 Filed 04/22/22 Page 11 of 11
court be assessed against Plaintiff, that he be awarded attorney fees incurred in the defense of this
suit, and for all further relief to which he may be justly entitled.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
900 Congress Avenue, Suite 500
Austin, Texas 78701
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANT
KYU AN
CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of April, 2022, a true and correct copy of the foregoing
document was caused to be served upon all counsel of record via E-File/E-Service/E-Mail and/or
Regular U.S. Mail, in accordance with the Federal Rules of Civil Procedure, as follows:
Ramez F. Shamieh
ramez@shamiehlaw.com
Myles Lenz
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
Meghan L. Riley
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
meghan.riley@austintexas.gov
/s/ Blair J. Leake
Blair J. Leake
Defendant Kyu An's Original Answer
Page 11
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 1 of 25
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-00221-RP
§
CITY OF AUSTIN AND KYU AN,
§
Defendants.
§
DEFENDANT KYU AN'S OPPOSED
MOTION TO STAY DISCOVERY
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
NOW COMES Defendant Kyu An, and files this, his motion to stay discovery pending the
resolution of his criminal case, and would respectfully show the Court as follows:
I. BACKGROUND
A. The day of the alleged incident.
1.
This lawsuit arises out injuries suffered by Plaintiff Bomani Barton (hereinafter "Plaintiff")
during his attendance at a protest-turned-riot outside of Austin Police Department (hereinafter
"APD") on May 30, 2020. The riots grew to such a size that the City of Austin was forced to call
in all of its police officers due the scale and dangers posed by the violence demonstrated by the
crowds. 1 Among other violent acts, the most common perpetrated against APD officers included
the throwing of rocks, bricks, water bottles full of various liquids, and other dangerous projectiles.
Officer An himself suffered a serious burn to his neck as a result of one such rioter's attack using
1 Defendant incorporates by reference the information contained in his Original Answer,
including background information about the protests-turned-riots nationwide and locally. See
Defendant Kyu An's Original Answer to Plaintiff's Original Complaint, Dkt. # 8, pgs. 1 -5. -
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 2 of 25
an "artillery shell" style pyrotechnic explosive device, was struck by multiple rocks thrown by
rioters, and saw several other police officers get struck by rocks thrown by rioters. Over the course
of the protests-turned-riots, Officer An never purposefully discharged any weapon at any person
who was not engaged in throwing potentially dangerous projectiles at police officers.
B. The Travis County District Attorney has indicted Officer An arising out of Plaintiff
Barton's allegations in this lawsuit.
2.
Earlier this year, however, Travis County District Attorney Jose Garza indicted Officer An
along with roughly two dozen other APD officers. 2 Officer An maintains his innocence and plans
to aggressively defend all charges against him. Such indictments only represent a portion of the
criminal charges being actively pursued against local first responders by District Attorney Garza. 3
It is believed that District Attorney Garza has potentially indicted more police officers related to
riot response incidents than any other District Attorney nationwide.4
3.
Specifically, District Attorney Garza is pursuing felony Aggravated Assault by a Public
Servant charges against Officer An related to the less than lethal shotgun deployment conduct
alleged by Plaintiff herein. 5 Plaintiff's Original Complaint specifically references the indictment
2
See Andrew Weber, Here's what we know about APD officers facing charges for using
beanbag rounds in 2020 protests, AUSTIN MONITOR (Feb. 22, 2022),
https://www.austinmonitor.com/stories/2022/02/heres-what-we-know-about-apd-officers-facing
harges-for-using-beanbag-rounds-in-2020-protests/; see also 2 more APD officers indicted
related to 2020 protests, KXAN AUSTIN (May 27, 2022 10:28 PM),
https://www.kxan.com/news/local/austin/2-more-apd-officers-indicted-related-to-2020-protests/
3
See Ex. 1, Travis County DA Civil Rights Unit Case Summaries - September 30, 2022, pg. 2
https://www.traviscountytx.gov/images/district_attorney/docs/Press_Releases/2022/Case_Summ
aries_Sept_30 _2022.pdf.
4
See Acacia Coronado et al., Sources: 19 Austin police officers indicted in protest probe, AP
News (Feb. 18, , 2022), https://apnews.com/article/business-shootings-austin-texas-
884a81a9663391e79b0ac45c7ae463co ("It ranks among the most indictments on a single police
department in the U.S. over tactics used by officers during the widespread protests...' ").
5 See Ex. 1, Travis County DA Civil Rights Unit Case Summaries - September 30, 2022, pg. 2
tps://www.traviscountytx.gov/images/district_attorney/docs/Press_Releases/2022/Case_Summ
aries_Sept 30 2022.pdf.
Defendant Kyu An's Motion to Stay Discovery
Page 2
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 3 of 25
of Officer An for First Degree Felony Aggravated Assault by a Public Servant, and concedes that
the indictment is based on "Officer Kyu An's conduct that makes the basis of this lawsuit."6
4.
Officer An files this motion to seek relief from this Court in the form of not forcing him to
sacrifice one case or the other-his civil defense and reputation, or his criminal defense. Officer
An seeks such relief in the form of a temporary stay of discovery until the parallel criminal
proceedings have resolved.
II. ARGUMENTS & AUTHORITIES
6.
"There's no question that a district judge can stay a federal civil rights case pending the
resolution of a defendant's parallel criminal proceeding.''7 As a demonstrative example, this Court
recently granted a stay of discovery for several individual defendants in the Javier Ambler V.
Williamson County, et al., civil suit based on the existence of ongoing parallel criminal
proceedings for several of the individual defendants therein, as well as in several other pending
civil suits-including one case related to an APD officer's actions during the same riots at issue
in this lawsuit. 8 Courts are empowered to utilize discretion on such motions "when the interests of
justice seems to require such action." In Campbell, the Fifth Circuit admonished district courts to
"be sensitive to the difference in the rules of discovery in civil and criminal cases. ,10 "While
the
Federal Rules of Civil Procedure have provided a well-stocked battery of discovery procedures,
6 See Pl.'s Orig. Compl., Dkt. 1 31,67,69.
7
Agueros V. Vargas, No. CIVA SA07-CV0994 XR, 2008 WL 2937972, (W.D. Tex. July 21,
2008); see also United States V. Little Al, 712 F.2d 133, 136 (5th Cir. 1983).
8 See Order, Ambler V. Williamson County, 1:20-cv-01068-LY (W.D. Tex. July 27, 2021), Dkt. #
89; see also e.g., Text Order, Nembhard V. Williamson County, 1:21-cv-00350-RP (W.D. Tex.
Aug. 26, , 2021); see also Order, Drake V. City of Austin, 1:20-cv-00956-RP (W.D. Tex. Sept. 21,
2021), Dkt. # 31; see also DeSilva V. City of Austin, 1:21-cv-00129-RP (W.D. Tex. Feb. 23,
2022), Dkt. # 23; see also Kirsch V. City of Austin, 1:20-cv-01113-RP (W.D. Tex. Aug. 5, 2022),
Dkt. # 63.
9 United States V. Kordel, 397 U.S. 1, 12, n. 27 (1970).
10 Campbell V. Eastland, 307 F.2d 478, 487 (5th Cir. 1962).
Defendant Kyu An's Motion to Stay Discovery
Page 3
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 4 of 25
the rules governing criminal discovery are far more restrictive." The Fifth Circuit further advised
that "in ruling on requests for stays of the civil side of parallel civil/criminal proceedings, [j]udicial
discretion and procedural flexibility should be utilized to harmonize the conflicting rules and
policies applicable to one suit from doing violence to those pertaining to the other."12
7.
Courts have established several factors to be considered in determining whether a stay is
appropriate. 13 The current variation of these factors was first articulated in Plumbers & Pipefitters,
and has been adopted and applied by District Courts within the Fifth Circuit: 14
(1) The extent to which the issues in the criminal case overlap with those presented in the civil
case;
(2) The status of the criminal case, including whether the criminal defendant has been indicted;
(3) The private interests of the plaintiff in proceeding expeditiously weighed against the
prejudice to plaintiff caused by the delay;
(4) The private interests of and burden on the defendant;
(5) The interests of the courts; and
(6) The public interest. 15
B. The factors weigh in favor of staying discovery to relieve Officer An of the impossible
choice between (1) harming his criminal defense or (2) harming his civil defense.
a. The "overlap" factor weighs in favor of a stay of discovery because the facts
and legal issues align to create a danger of self-incrimination.
11 Id.
12 Id.
13
See Walker V. Wilburn, No. 3:13-CV-4896-D, 2015 WL 5873392, at *5 (N.D. Tex. Oct. 5, 2015)
(citing Heller Healthcare Fin., Inc. V. Boyes, No. CIV.A. 300CV1335D, 2002 WL 1558337, at *2
(N.D. Tex. July 15, 2020); see also Trs. of Plumbers & Pipefitters Nat'l Pension Fund V.
Transworld Mech. Inc., 886 F.Supp. 1134, 1139 (S.D. NY. 1995) (establishing current variation of
test); see also Golden Quality Ice Cream Co., Inc. V. Deerfield Specialty Papers, Inc., 87 F.R.D.
53 (E.D. Pa. 1980) (establishing initial test).
14 See Plumbers and Pipefitters, 886 F.Supp at 1139; see also Librado V. M.S. Carriers, Inc., No.
CIV.A. 3:02-CV-2095D, 2002 WL 31495988, at *1 (N.D. Tex. Nov. 5, 2002); see also Alcala V.
Tex. Webb County, 625 F.Supp.2d 391, 398 - 99 (S.D. Tex. 2009); see also Walker, 2015 WL
5873392, at *5.
15 Walker, 2015 WL 5873392, at *5; see also Alcala at 399; see also Sec. & Exch. Comm'n V.
Kiselak Capital Grp., LLC, No. 4:09-CV-256-A, 2011 WL 4398443, at *2; see also Agueros, 2008
WL 2937972, at *1.
Defendant Kyu An's Motion to Stay Discovery
Page 4
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 5 of 25
8.
The first factor-the degree to which civil issues overlap with criminal issues-has been
deemed the most important factor. 16 The primacy and importance of the overlap factor is because
"[i]f there is no overlap, there would be no danger of self-incrimination and accordingly no need
for a stay. ,17 A court should consider whether the defendant could effectively defend the civil
lawsuit without being pressured into waiving his Fifth Amendment rights if no stay is entered. 18
Some courts have decided that the overlap factor weighs in favor of a stay simply because the
subject matter of the two proceedings was substantially similar. 19 Courts have weighed this factor
in favor of a stay even when the overlap of the issues was not "entirely coterminous."20
5.
This factor-the most important of the six-is functionally not even in dispute here.
Plaintiff's Original Complaint specifically references the indictment of Officer An for First Degree
Felony Aggravated Assault by a Public Servant, and concedes that the indictment is based on
"Officer Kyu An's conduct that makes the basis of this lawsuit."21 Such a judicial admission is
arguably binding in a manner that would prevent Plaintiff from arguing against the overlap factor
whatsoever in his response. 22 Judicial admissions notwithstanding, a review of the parallel civil
16 See S.E.C. V. AmeriFirst Funding, Inc., No. CIV A 307-CV-1188-D, 2008 WL 866065, at *2
(N.D. Tex. Mar. 17, 2008 (citing Volmar Distribs., Inc. V. New York Post Co., 152 F.R.D. 36, 39
(S.D.N.Y. 1993)).
17 AmeriFirst Funding, Inc., 2008 WL 866065, at *2 (citing Trs. of Plumbers & Pipefitters Nat 'l
Pension Fund, 886 F.Supp. at 1139)).
18 See Alcala at 400.
19
See Sec & Exch. Comm'n V. Mutuals.com Inc., No. CIV. A. 3:03-CV-2912-D, 2004 1629929,
at *3 (N.D. Tex. July 20, 2004); see also Dominguez V. Hartford Fin. Svcs. Grp., Inc., 530
F.Supp.2d 902, 907 (S.D. Tex. 2008); see also Doe V. Morris, No. 11-1532, 2012 WL 359315, at
*1 (E.D. La. Feb. 2, 2012).
20 Heller Healthcare Fin., Inc., 2002 WL 1558337, at *2.
21 See Pl.'s Orig. Compl., Dkt. 1
31,
67,
69.
22
See Martinez V. Bally's Louisiana, Inc., 244 F.3d 474, 476 (5th Cir. 2001) ("A judicial
admission is a formal concession in the pleadings or stipulations by a party or counsel that is
binding on the party making them."); see also White V. ARCO/Polymers, Inc., 720 F.2d 1391,
1396 (5th Cir. 1983) ("Normally, factual assertions in pleadings and pretrial orders are
considered to be judicial admissions conclusively binding on the party who made them.").
Defendant Kyu An's Motion to Stay Discovery
Page 5
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 6 of 25
and criminal elements would reach the same result-a finding of coterminous overlap that would
weigh in favor of the requested stay of discovery.
9.
The incident that forms the basis of this lawsuit also forms the basis of the subject criminal
charges-Officer An's alleged less than lethal deployment against Plaintiff Barton on May 30,
2020. Consequently, the factual overlap is a fait accompli, and should not be in dispute. The
corresponding self-incrimination minefield inherent in testifying in a deposition in this civil suit-
not to mention responding to written discovery-for Officer An merits a stay of discovery until
the criminal case has been adjudicated.
10.
The conduct at issue in both legal actions is SO intertwined as to make the legal aspect of
the "overlap" factor likewise undeniable. Defendant An has been indicted for the charge of
Aggravated Assault by Public Servant, a first-degree felony. This offense requires the State to
prove Officer An caused serious bodily injury to Plaintiff Barton while An was acting as a public
servant under color of his office/employment.23
11.
Plaintiff's Excessive Force claim in this civil case requires him to prove that he: (1)
suffered a physical injury; (2) which resulted directly and only from a use of force by Defendant
An while acting under color of State law that was clearly excessive to the need; and (3) the
excessiveness of the force employed was objectively unreasonable. 24 Demonstrably, these legal
tests for the criminal and civil cases overlap significantly-in that both require an examination of
the force used against Barton and whether that force was reasonable under the circumstances.
23 See TEX. PENAL CODE § 22.02(a)(1) and (b)(2)(A).
24
See Knight V. Caldwell, 970 F.2d 1430, 1432, n.3 (5th Cir. 1992); see also Johnson V. Morel,
876 F.2d 477 (5th Cir. 1989).
Defendant Kyu An's Motion to Stay Discovery
Page 6
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 7 of 25
This legal overlap-arising from the exact same event and involving the exact same parties-
reveals that these issues are effectively "coterminous."25
12.
Allowing civil discovery would force Officer An to-at minimum-give sworn deposition
testimony about matters that would strike at the very heart of the legal elements at issue in his
parallel
criminal
proceedings. 26 Permitting civil discovery at this time will thus force Officer An
to choose between testifying under oath on matters directly implicated in his looming criminal
trial, or asserting his Fifth Amendment rights and being unable to fully defend himself in this
lawsuit-precisely the scenario this factor seeks to avoid. In the context of that impossible
decision, the most important "overlap" factor has already been judicially admitted, but still
nonetheless weighs heavily in favor of a stay of discovery.
b. The "status of the criminal case" factor weighs in favor of a stay because the
officer is under an active indictment.
13.
The second factor is the status of the criminal case. 27
"A stay of a civil case is most appropriate where a party to the civil case has already been
indicted for the same conduct for two reasons: first, the likelihood that a defendant may
make incriminating statements is greatest after an indictment has issued, and second, the
prejudice to the plaintiffs in the civil case is reduced since the criminal case will likely
be
quickly resolved due to Speedy Trial Act consideration."28
The "strongest case for a stay exists where a party is [currently] indicted for a serious offense and
must defend a civil action involving the same matter." "29 Whether the civil and criminal issues will
25 Heller Healthcare Fin., Inc., 2002 WL 1558337, at *2.
26 FED. R. CIV. P. 37 (Allowing civil parties to obtain Court orders compelling responses to
interrogatories, requests for production, requests for admission and to compel a party to attend a
deposition).
27 See Alcala at 398; see also Walker, 2015 WL 5873392, at *5.
28
Kiselak Capital Group, LLC, 2011 WL 4398443, at *2 (emphasis added); see also S.E.C. V.
Offill, No. CIV. A. 3:07-CV-1643-D, 2008 WL 958072, at *2 (N.D. Tex. Apr. 9, 2008).
29
Id. (emphasis added) (internal quotations removed); see also Lizarraga V. City of Nogales
Arizona, No. CV 06-474 TUC DCB, 2007 WL 215616, at *3 (D. Arizona, January 24, 2007).
Defendant Kyu An's Motion to Stay Discovery
Page 7
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 8 of 25
overlap prior to an indictment is a mere "matter of speculation." ,30 Post-indictment, however, "is
when the degree of overlap between a criminal and civil case can most readily be determined."31
The criminal indictment "helps clarify the alleged conduct at issue and can be easily compared
against the civil complaint."33
14.
This lawsuit does not deal with potential indictments. Defendant An is under an active
indictment for the exact same conduct that forms the basis of Plaintiff's lawsuit. Due to the active
indictment and the extremely serious nature of the criminal charges and corresponding potential
consequences, the second factor-the status of the criminal case-weighs heavily in favor of
granting the requested stay of discovery.
c. Mere delay alone is legally insufficient to tip the "Plaintiff's interests" factor
against a stay, especially where-as here-the incident was captured via video
footage and witness interviews.
15.
Courts recognize that a "civil plaintiff has an interest in the prompt resolution of its claims
and in obtaining discovery while information is still fresh in witnesses' minds.' 33 However,
"[n]ormally in evaluating the plaintiff's burden resulting from the stay, courts may insist that the
plaintiff establish more prejudice than simply a delay in his right to expeditiously pursue his
claim."3 Courts recognize that this allegation of prejudice is typically insufficient-even if the
criminal case is "proceeding slowly and uncertainly, with no specific trial date," because "Texas
law recognizes a right to a speedy trial."
30 Alcala at 401.
31 Id.
32 Id.
33 See Mutuals.com Inc., 2004 WL 1629929, at *3.
34 Walker, 2015 WL 5873392, at *7 (citing Alcala at 397).
35 Librado, 2002 WL 31495988, at *2; see also Walker, 2015 WL 5873392, at *7.
Defendant Kyu An's Motion to Stay Discovery
Page 8
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 9 of 25
16.
The events of this lawsuit were largely captured via video evidence-from multiple
cameras-and further memorialized by IA and SIU recorded interviews, none of which has the
corresponding threat of degradation like that of human witness memory. Moreover, the requested
stay of discovery would not prevent or delay Plaintiff's counsel from conducting discovery or
depositions related to the claims made against Defendant City of Austin, and thus there are plenty
of available avenues for Plaintiff to work up and move this case forward during the pendency of
the requested stay. Because mere delay alone is insufficient as a legal argument for this factor, any
argument by Plaintiff that does not go beyond a mere temporal delay would thus fail to defeat the
requested stay of discovery.36
d. The "Defendant's interests" factor weighs heavily in favor of a stay because
the lack of a stay would unavoidably cripple either his civil or criminal defense.
17.
The undersigned cannot overemphasize Officer An's private interest in the stay requested
herein. The fourth factor considers the private interest of the defendant in securing a stay, and the
burden that would result if the stay were denied. 37 "[A]bsent a stay [the officer] faces a conflict
between asserting his Fifth Amendment rights and fulfilling his legal obligations as a witness
in this civil action. This conflict may be largely, if not completely, eliminated by granting a
stay." A defendant officer also has an interest in a stay "to avoid exposing [his] criminal defense
strategy to the prosecution."
18.
The insidious civil-law threat looming over Officer An-should he choose to invoke his
Fifth Amendment constitutional rights during depositions-is the potential for harmful adverse
36 See id.
37 Librado, 2002 WL 31495988, at *3; see also Walker, 2015 WL 5873392, at *8.
38 See Librado V. M.S. Carriers, Inc., No. CIV.A. 3:02-CV-2095D, 2002 WL 31495988, at *3
(N.D. Tex. Nov. 5, 2002) (emphasis added).
39 Walker, 2015 WL 5873392, at *8.
Defendant Kyu An's Motion to Stay Discovery
Page 9
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 10 of 25
inferences. Legally, when a party invokes his or her Fifth Amendment privilege during a
deposition, the invocation of such privilege is potentially admissible against the party, specifically
as an inference wherein the jury may be allowed to interpret such invocation adversely against the
invoking party. 40 Applied here in more direct terms, Plaintiff may be permitted to argue to the jury
that Officer An invoked his Fifth Amendment rights because he has something to hide or is a
criminal. If permitted, such an inference would likely be fatal for Officer An's defense of this civil
suit and thus of his personal and vocational reputation.
19.
In contrast, the insidious criminal-law threat looming over Officer An-should he choose
to not invoke his Fifth Amendment constitutional rights during depositions-would be inevitable
scrutiny under oath for seven hours or more about his split-second decision to use force against
what he ostensibly believed to be a serious or potentially deadly threat to nearby officers. 41
Crucially, nothing will prevent the Travis County District Attorney's office from obtaining Officer
An's written discovery responses or depositions transcripts for use in his future criminal trial of
the felony charges levied against him.
20.
Absent a stay, Officer An would effectively be forced to choose between (1) the civil jury
holding An's decision not to testify against him; or (2) providing information and potential
impeachment testimony to the Travis County District Attorney, who would otherwise not be
entitled to obtain any such testimony prior to trial. Other than the granting of this stay, there is
no path forward that would allow Officer An to avoid potential prejudice in one case or the
other. Like in Librado and in Walker, Officer An's dilemma of being forced to pick between the
40 See F.D.I.C. V. Fid. & Deposit Co. of Maryland, 45 F.3d 969, 977 (5th Cir. 1995) (reiterating
that courts have discretion as to whether to allow a party's Fifth Amendment invocation into
evidence, and permit an adverse inference to be drawn from the same).
41
See TEX. PENAL CODE § 22.02(a)(1) and (b)(2)(A).
Defendant Kyu An's Motion to Stay Discovery
Page 10
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 11 of 25
two testimonial poisons will be "largely, if not completely, eliminated by granting a stay of
appropriate scope." The fourth factor of the Defendant's interests consequently weighs in favor
of granting the requested stay of discovery, as Officer An's interests are inexorably intertwined
with the outcome of this motion.
e. The fifth factor-the Courts' interests-weighs in favor of a stay, because the
criminal case's results could streamline the burden of proof in this suit or
increase the likelihood of settlement.
21.
The fifth factor takes this Court's own interests into account, including judicial
efficiency. 43 While progressing civil cases on a docket is no doubt important, courts have
recognized that "granting a stay of discovery serves the interests of the courts, because conducting
the criminal proceedings first advances judicial economy."44 To advance judicial economy
here, the Court should analyze whether-and to what extent-the outcome of the parallel criminal
proceedings would "streamline" the issues in this lawsuit.45 The judicial efficiency analysis also
turns upon the degree of overlap between the criminal and civil cases, with an eye toward whether
a conviction in the criminal case would "speak to the actual bases [sic] of liability" in the latter
civil action. 46 Due to differences in the standards of proof between civil and criminal prosecutions,
"the possibility always exists for a collateral estoppel or res judicata effect on some or all of the
overlapping issues." 47 Resolution of the criminal case consequently may also increase the
likelihood of reaching a settlement that resolves the civil lawsuit outright. 48 All of the possible
42 Librado, 2002 WL 31494988, at *3; see also Walker, 2015 WL 5873392, at *8.
43 Offill, 2008 WL 958072, at *3.
44 Id; see also Walker, 2015 WL 5873392, at *8 (emphasis added).
45
See Alcala at 406.
46 Id.
47
Offill, 2008 WL 958072, at *3; see also Emich Motors Corp. V. Gen. Motors Corp., 340 U.S.
558, 568 (1951).
48 See Offill, 2008 WL 958072, at *3; see also Alcala, 625 F. Supp.2 at 406 (noting a potential
criminal conviction against the civil defendant might significantly decide that gambling occurred,
Defendant Kyu An's Motion to Stay Discovery
Page 11
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 12 of 25
efficiencies discussed supra are palpable in the case at bar. The fifth factor of judicial efficiency
consequently weighs in favor of granting the requested stay of discovery.
f. The final "public interest" factor weighs in favor of a stay because the public
has an interest in preserving citizens' abilities to invoke their constitutional
rights.
22.
The public has an interest in the just and constitutional resolution of disputes with minimal
delay. 49 However, that resolution must be weighed against the possibility that the "integrity" of a
citizen's constitutional rights might be in jeopardy. 50 The Fifth Circuit has also recognized that the
public has an interest in protecting law enforcement, and "ensuring the criminal discovery process
is not subverted." Considering these principles, the public interest factor also weighs in favor of
granting Officer An's requested stay. The public has a vested interest in maintaining the integrity
of a citizen's choice to invoke the Fifth Amendment-and in being shielded from the unavoidable
tainting of that constitutional right discussed supra if this motion is not granted. 52 The public
interest factor thus likewise weighs in favor of granting the requested temporary stay of discovery
until the criminal parallel proceedings have concluded.
III. PRAYER
23.
WHEREFORE, PREMISES CONSIDERED, Defendant Kyu An respectfully requests that
this Court grant his motion to temporarily stay civil discovery until the parallel criminal
the wrongful conduct in dispute in the overlapping civil case, and therefore promote settlement of
the civil litigation).
49 See Collins, 2011 WL 3874910, at *4; see also Librado, 2002 WL 31495988, at *3; see also
Frierson V. City of Terrell, No. CIV.A. 3:02CV2340-H, 2003 WL 21355969, at *4 (N.D. Tex.
June 6, 2003).
50 Frierson, 2003 WL 21355969, at *4.
51 Offill, 2008 WL 958072, at *4 (citing Campbell at 487).
52 See Campbell, 307 F.2d at 487.
Defendant Kyu An's Motion to Stay Discovery
Page 12
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 13 of 25
proceedings have resolved, and for all other relief to which he may justly be entitled in law or
equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANT
KYU AN
CERTIFICATE OF CONFERENCE
Counsel for Defendant An has complied with the Court's requirement to confer. Plaintiff
is opposed to the requested stay of discovery. Co-defendant is unopposed.
/s/ Blair J. Leake
Blair J. Leake
Defendant Kyu An's Motion to Stay Discovery
Page 13
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 14 of 25
CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of October 2022, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service/E-
Mail and/or U.S. First Class Mail, in accordance with the Federal Rules of Civil Procedure, as
follows:
Ramez F. Shamieh
ramez@shamiehlaw.com
Myles Lenz
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
Daniel R. Richards
drichards@rrsfirm.com
Clark Richards
crichards@rrsfirm.com
RICHARDS RODRIGUEZ & SKEITH, LLP
816 Congress Avenue, Suite 1200
Austin, Texas 78701
/s/ Blair J. Leake
Blair J. Leake
Defendant Kyu An's Motion to Stay Discovery
Page 14
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 15 of 25
Exhibit
1
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 16 of 25
STATEMENT
STREET
TRAVIS
COUNTY
OFFICE OF THE
DISTRICT ATTORNEY
P.O. Box 1748, Austin, TX 78767
JOSÉ P. GARZA
Telephone 512/854-9400
TRUDY STRASSBURGER
DISTRICT ATTORNEY
Telefax 512/854-4206
FIRST ASSISTANT
Travis County DA Civil Rights Unit Case Summaries - September 30, 2022
The following is a current list of each officer-involved use of force or other misconduct matter involving
injury to any person currently pending in the Office's Civil Rights Unit.
INDICTED CASES
INDICTED: STATE OF TEXAS VS BRETT TABLERIOU, D-1-DC-22-900018: At the time of the
incident, Mr. Tableriou was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Tableriou was indicted for Aggravated Assault by Public Servant, a first-degree
felony, by the 390th District Court Special Grand Jury. The case is pending in the 460th District Court.
The next court setting is October 4, 2022.
INDICTED: STATE OF TEXAS VS EDWARD BOUDREAU, D-1-DC-22-900020: At the time of the
incident, Mr. Boudreau was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Boudreau was indicted for Aggravated Assault by Public Servant, a first-degree felony,
by the 390th District Court Special Grand Jury. The case is pending in the 450th District Court.
The next court setting is October 4, 2022.
INDICTED: STATE OF TEXAS VS. SHANNON OWENS, D-1-DC-20-900003: At the time of the incident,
Mr. Owens was employed as a corrections officer with the Travis County Sherriff's Office. On Wednesday,
December 16, 2020, TCSO Deputy Owens was indicted for Aggravated Perjury, a third-degree felony, and
Tampering with Governmental Record with the intent to defraud or harm another, a state jail felony, by the 147th
District Court Special Grand Jury. The case is pending in the 450th District Court.
The next court setting is October 4, 2022.
INDICTED: STATE OF TEXAS VS NATHANIEL STALLINGS, D-1-DC-21-904041: At the time of the
incident, Mr. Stallings was employed as a police officer with the Austin Police Department Mr. Stallings was
indicted by the 390th District Court Special Grand Jury for Abuse of Official Capacity and Official
Oppression, both of which are class-A misdemeanors. The case is pending in the 450th District Court.
The next court setting is October 4, 2022.
Ronald Earle Building, 416 W. 11th Street, Austin, Texas 78701
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 17 of 25
September 30, 2022
Page 2 of 10
INDICTED: STATE OF TEXAS VS. WALTER DODDS, D-1-DC-20-301555: At the time of the incident,
Mr. Dodds was employed as a police officer with the Austin Police Department. On Tuesday, August 30,
2022, Mr. Dodds was indicted by the 427th District Court Grand Jury for one count of Aggravated Sexual
Assault, and two counts of Burglary Habitation Intend Sex Offense, all of which are first- degree felonies Mr.
Dodds was also indicted for two counts of Official Oppression, both of which are class-A misdemeanors. The
case is pending in the 460th District Court.
The next court setting is October 10, 2022
INDICTED: STATE OF TEXAS VS. ROBERT CHODY, D-1-DC-21-904036: At the time of the incident,
Mr. Chody was the elected Sheriff in Williamson County, Texas. On Wednesday, March 31, 2021, Mr. Chody
was indicted for Tampering with Physical Evidence with Intent to Impair, a third-degree felony by the 147th
District Court Extended Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is October 12, 2022
INDICTED: STATE OF TEXAS VS. JASON NASSOUR, D-1-DC-21-904035: At the time of the incident,
Mr. Nassour was employed as General Counsel for the Williamson County Attorney's Office. On Wednesday,
March 31, 2021, Mr. Nassour was indicted for Tampering with Physical Evidence with Intent to Impair, a
third-degree felony by the 147th District Court Extended Special Grand Jury. The case is pending in the 299th
District Court.
The next court setting is October 12, 2022
INDICTED: STATE OF TEXAS VS DERRICK LEHMAN, D-1-DC-20-900071: At the time of the
incident, Mr. Lehman was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Lehman was indicted for Aggravated Assault by Public Servant, a first-degree felony
by the 390th District Court Special Grand Jury. The case is pending in the 450th District Court.
The next court setting is October 18, 2022.
INDICTED: STATE OF TEXAS VS KYU AN, D-1-DC-20-900057: At the time of the incident, Mr. An
was employed as a police officer with the Austin Police Department. On Thursday, February 17, 2022, Mr.
An was indicted for Aggravated Assault by Public Servant, a first-degree felony by the 390th District Court
Special Grand Jury. The case is pending in the 403rd District Court.
The next court setting is October 19, 2022.
INDICTED: STATE OF TEXAS VS JEREMY FISHER, D-1-DC-22-900011: At the time of the
incident, Mr. Fisher was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Fisher was indicted for Aggravated Assault by Public Servant, a first-degree felony,
by the 390th District Court Special Grand Jury. The case is pending in the 403rd District Court.
The next court setting is October 19, 2022.
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 18 of 25
September 30, 2022
Page 3 of 10
INDICTED: STATE OF TEXAS VS ALEXANDER LOMOVSTEV, D-1-DC-21-900126: At the time
of the incident, Mr. Lomovstev was employed as a police officer with the Austin Police Department. On
Thursday, February 17, 2022, Mr. Lomovstev was indicted for Aggravated Assault by Public Servant, a
first-degree felony, by the 390th District Court Special Grand Jury. The case is pending in the 427th District
Court.
The next court setting is October 26, 2022.
INDICTED: STATE OF TEXAS VS JAMES MORGAN, D-1-DC-22-900053: At the time of the incident,
Mr. Morgan was employed as a police officer with the Austin Police Department. On Thursday May 26,
2022, Mr. Morgan was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 460th
District Court Special Grand Jury. The case is pending in the 427th District Court.
The next court setting is October 26, 2022.
INDICTED: STATE OF TEXAS VS JOHN SIEGEL, D-1-DC-20-900072: At the time of the incident, Mr.
Siegel was employed as a police officer with the Austin Police Department. On Thursday, February 17, 2022,
Mr. Siegel was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 390th District
Court Special Grand Jury. The case is pending in the 147th District Court.
The next court setting is October 27, 2022.
INDICTED: STATE OF TEXAS VS JOSHUA JACKSON, D-1-DC-22-900010: At the time of the
incident, Mr. Jackson was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Jackson was indicted for Aggravated Assault by Public Servant, a first-degree
felony, by the 390th District Court Special Grand Jury. The case is pending in the 390th District Court.
The next court setting is October 31, 2022
INDICTED: STATE OF TEXAS VS STANLEY VICK, D-1-DC-22-900009: At the time of the
incident, Mr. Vick was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Vick was indicted for Aggravated Assault by Public Servant, a first-degree felony,
by the 390th District Court Special Grand Jury. The case is pending in the 390th District Court.
The next court setting is October 31, 2022
INDICTED: STATE OF TEXAS VS JUSTIN BERRY, D-1-DC-20-900055: At the time of the incident,
Mr. Berry was employed as a police officer with the Austin Police Department. On Thursday, February 17,
2022, Mr. Berry was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 390th
District Court Special Grand Jury. The case is pending in the 390th District Court.
The next court setting is October 31, 2022
INDICTED: STATE OF TEXAS VS JOSEPH CAST, D-1-DC-20-900061: At the time of the incident,
Mr. Cast was employed as a police officer with the Austin Police Department. On Thursday, February 17,
2022, Mr. Cast was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 390th
District Court Special Grand Jury. The case is pending in the 390th District Court.
The next court setting is October 31, 2022
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 19 of 25
September 30, 2022
Page 4 of 10
INDICTED: STATE OF TEXAS VS NICHOLAS GEBHART, D-1-DC-20-900060: At the time of the
incident, Mr. Gebhart was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Gebhart was indicted for Aggravated Assault by Public Servant, a first-degree felony,
by the 390th District Court Special Grand Jury. The case is pending in the 450th District Court.
The next court setting is November 1, 2022.
INDICTED: STATE OF TEXAS VS CHRISTOPHER IRWIN, D-1-DC-22-900012: At the time of the
incident, Mr. Irwin was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Irwin was indicted for Aggravated Assault by Public Servant, a first-degree felony,
by the 390th District Court Special Grand Jury. The case is pending in the 450th District Court.
The next court setting is November 1, 2022.
INDICTED: STATE OF TEXAS VS ROLAN RAST, D-1-DC-20-900080: At the time of the incident, Mr.
Siegel was employed as a police officer with the Austin Police Department. On Thursday, February 17, 2022,
Mr. Siegel was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 390th District
Court Special Grand Jury. The case is pending in the 331st District Court.
The next court setting is November 04, 2022.
INDICTED: STATE OF TEXAS VS ROLAN RAST, D-1-DC-20-900080: At the time of the incident, Mr.
Siegel was employed as a police officer with the Austin Police Department. On Thursday, February 17, 2022,
Mr. Siegel was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 390th District
Court Special Grand Jury. The case is pending in the 331st District Court.
The next court setting is November 04, 2022.
INDICTED: STATE OF TEXAS VS TODD GILBERTSON, D-1-DC-21-900125: At the time of the
incident, Mr. Gilbertson was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Gilbertson was indicted for Aggravated Assault by Public Servant, a first-degree
felony, by the 390th District Court Special Grand Jury. The case is pending in the 167th District Court.
The next court setting is November 07, 2022.
INDICTED: STATE OF TEXAS VS. CHRISTOPHER TAYLOR, D-1-DC-19-900111: At the time of the
incident, Mr. Taylor was employed as an officer for the Austin Police Department. On Thursday, August 26,
2021, Mr. Taylor was indicted for Murder, a first-degree felony, and for Deadly Conduct Discharge of
Firearm, a third-degree felony, by the 331st District Court Special Grand Jury. The case is pending in the 167th
District Court.
The next court setting is November 07, 2022.
INDICTED: STATE OF TEXAS VS. KARL KRYCIA, D-1-DC-21-900071: At the time of the incident,
Mr. Krycia was employed as an officer for the Austin Police Department. On Thursday, August 26, 2021, Mr.
Krycia was indicted for Murder, a first-degree felony, and for Deadly Conduct Discharge of Firearm, a third-
degree felony, by the 331st District Court Special Grand Jury. The case is pending in the 167th District Court.
The next court setting is November 07, 2022.
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 20 of 25
September 30, 2022
Page 5 of 10
INDICTED: STATE OF TEXAS VS. CHRISTOPHER TAYLOR, D-1-DC-20-900048: At the time of the
incident, Mr. Taylor was employed as an officer with the Austin Police Department. On Wednesday, March 10,
2021, Officer Taylor was indicted with Murder, a first-degree felony, by the 147th District Court Special Grand
Jury. The case is pending in the 167th District Court.
The next court setting is November 07, 2022.
INDICTED: STATE OF TEXAS VS. KARL KRYCIA, D-1-DC-21-900071: At the time of the incident,
Mr. Krycia was employed as an officer for the Austin Police Department. On Thursday, August 26, 2021, Mr.
Krycia was indicted for Murder, a first-degree felony, and for Deadly Conduct Discharge of Firearm, a third-
degree felony, by the 331st District Court Special Grand Jury. The case is pending in the 167th District Court.
The next court setting is November 07, 2022.
INDICTED: STATE OF TEXAS VS. CHRISTOPHER TAYLOR, D-1-DC-20-900048: At the time of the
incident, Mr. Taylor was employed as an officer with the Austin Police Department. On Wednesday, March 10,
2021, Mr. Taylor was indicted for Murder, a first-degree felony, by the 147th District Court Special Grand Jury.
The case is pending in the 167th District Court.
The next court setting is November 07, 2022.
INDICTED: STATE OF TEXAS VS. CHRISTOPHER TAYLOR, D-1-DC-19-900111: At the time of the
incident, Mr. Taylor was employed as an officer for the Austin Police Department. On Thursday, August 26,
2021, Mr. Taylor was indicted for Murder, a first-degree felony, and for Deadly Conduct Discharge of
Firearm, a third-degree felony, by the 331st District Court Special Grand Jury. The case is pending in the 167th
District Court.
The next court setting is November 07, 2022.
INDICTED: STATE OF TEXAS VS TODD GILBERTSON, D-1-DC-21-900125: At the time of the
incident, Mr. Gilbertson was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Gilbertson was indicted for Aggravated Assault by Public Servant, a first-degree
felony, by the 390th District Court Special Grand Jury. The case is pending in the 167th District Court.
The next court setting is November 07, 2022.
INDICTED: STATE OF TEXAS VS JOSHUA BLAKE, D-1-DC-22-900019: At the time of the
incident, Mr. Blake was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Blake was indicted for Aggravated Assault by Public Servant, a first-degree felony,
by the 390th District Court Special Grand Jury. The case is pending in the 147th District Court.
The next court setting is November 08, 2022.
INDICTED: STATE OF TEXAS VS. JAMES JOHNSON, D-1-DC-20-900070: At the time of the incident,
Mr. Johnson was employed as a deputy with the Williamson County Sheriff's Office. On Monday, March 29,
2021, Mr. Johnson was indicted for Manslaughter, a second-degree felony, by the 147th District Court Extended
Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is November 08, 2022.
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 21 of 25
September 30, 2022
Page 6 of 10
INDICTED: STATE OF TEXAS VS. ZACHARY CAMDEN, D-1-DC-20-900069: At the time of the
incident, Mr. Camden was employed as a deputy with the Williamson County Sheriff's Office. On Monday,
March 29, 2021, Mr. Camden was indicted with Manslaughter, a second-degree felony, by the 147th District
Court Extended Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is November 08, 2022.
INDICTED: STATE OF TEXAS VS JOSHUA BLAKE, D-1-DC-22-900019: At the time of the
incident, Mr. Blake was employed as a police officer with the Austin Police Department. On Thursday,
February 17, 2022, Mr. Blake was indicted for Aggravated Assault by Public Servant, a first-degree felony,
by the 390th District Court Special Grand Jury. The case is pending in the 147th District Court.
The next court setting is November 08, 2022.
INDICTED: STATE OF TEXAS VS KYLE FELTON, D-1-DC-20-900054 / D-1-DC-20-900059: At the
time of the incident, Mr. Felton was employed as a police officer with the Austin Police Department. On
Thursday, February 17, 2022, Mr. Felton was indicted for Aggravated Assault by Public Servant, a first-degree
felony, by the 390th District Court Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is November 10, 2022.
INDICTED: STATE OF TEXAS VS KYLE FELTON, D-1-DC-20-900054 / D-1-DC-20-900059: At the
time of the incident, Mr. Felton was employed as a police officer with the Austin Police Department. On
Thursday, February 17, 2022, Mr. Felton was indicted for Aggravated Assault by Public Servant, a first-degree
felony, by the 390th District Court Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is November 10, 2022.
INDICTED: STATE OF TEXAS VS JEFFREY TENG, D-1-DC-22-900005: At the time of the incident,
Mr. Teng was employed as a police officer with the Austin Police Department. On Thursday, February 17,
2022, Mr. Teng was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 390th
District Court Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is November 17, 2022.
INDICTED: STATE OF TEXAS VS ERIC HEIM, D-1-DC-20-900076: At the time of the incident, Mr.
Heim was employed as a police officer with the Austin Police Department. On Thursday, February 17,
2022, Mr. Heim was indicted for Aggravated Assault by Public Servant, a first-degree felony, by the 390th
District Court Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is November 17, 2022.
INDICTED: STATE OF TEXAS VS. CHANCE BRETCHES, D-1-DC-20-900091: At the time of the
incident, Mr. Bretches was employed as a police officer with the Austin Police Department. On Wednesday,
January 20, 2021, Officer Bretches was indicted with Aggravated Assault by a Public Servant, Serious Bodily
Injury/Deadly Weapon, a first-degree felony, by the extended 147th District Court Extended Special Grand Jury.
The case is pending in the 299th District Court.
The next court setting is November 17, 2022.
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 22 of 25
September 30, 2022
Page 7 of 10
INDICTED: STATE OF TEXAS VS CHANCE BRETCHES, D-1-DC-20-900056: At the time of the
incident, Mr. Bretches was employed as a police officer with the Austin Police Department. On Thursday
May 26, 2022, Mr. Bretches was indicted for Aggravated Assault by Public Servant, a first-degree felony, by
the 460th District Court Special Grand Jury. The case is pending in the 299th District Court.
The next court setting is November 17, 2022.
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 23 of 25
September 30, 2022
Page 8 of 10
UNINDICTED
COMPLAINANT: TYREE TALLEY/SUBJECT OFFICER: NAME WITHHELD (Date of Incident:
05/31/2020): On May 31, 2020, Mr. Talley was struck by less-lethal ammunition while attending a protest in
downtown Austin following the deaths of George Floyd and Michael Ramos.
The investigation into, and review of, the use of force allegations arising out of the May 30 and May 31,
2020 protests is still underway.
DECEDENT: ENRIQUE QUIROZ/SUBJECT OFFICERS: EDUARDO PINEDA, SPENCER
HANNA, ZANE DOWDELL, LUCAS PARKER, MARK YALETCHKO and TRINITHAD GARCIA
(Date of Incident: 03/21/2020): Mr. Quiroz died while in the custody of the Austin Police Department after
an encounter with multiple officers on March 31, 2020.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
DECEDENT: ALEXANDER GONZALES/SUBJECT OFFICERS: LUIS SERRATO AND GABRIEL
GUTIERREZ (Date of Incident: 01/05/2021): On January 5, 2021, Mr. Alexander Gonzales died as a result
of multiple gunshot wounds in an incident involving an off-duty Austin Police Department officer and another
officer who was on duty.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
COMPLAINANT: NAME WITHHELD/SUBJECT OFFICER: NAME WITHHELD (Date of Incident:
03/12/2021): On March 12, 2021, the complainant was arrested for an active warrant. While officers attempted
to place the complainant under arrest, the complainant was struck with a baton and tased.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
COMPLAINANT: NAME WITHHELD/SUBJECT OFFICER: NAME WITHHELD (Date of
Incident: 11/26/2020): On November 26, 2020, the complainant was arrested by the Austin Police
Department for interfering with a crime scene. The complainant was struck by the subject officer while being
handcuffed.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
COMPLAINANT: NAME WITHHELD/SUBJECT OFFICERS: MICHAEL BARBA/JASON
CUMMINS/DERRICK LEHMAN (Date of Incident: 08/19/2021): On August 19, 2021, the complainant
was shot and tased by Austin Police Department Officers. The civilian is expected to recover from his
injuries.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 24 of 25
September 30, 2022
Page 9 of 10
COMPLAINANT: NAME WITHHELD/SUBJECT OFFICER: NAME WITHHELD (Date of Incident:
09/18/2021): On September 18, 2021, the complainant was struck by an Austin Police Department Officer after
multiple requests to leave the area.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
DECENDENT: MICHAEL CAROTHERS/SUBJECT OFFICER: NAME WITHHELD (Date of
Incident: 10/09/2021): On October 9, 2021, there was gunfire between civilians. Subsequently, an officer
discharged his weapon. Mr. Carothers died from a gunshot wound.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
COMPLAINANT: JUVENTINO NAVEJAR/SUBJECT OFFICER: JAVIER RODRIGUEZ (Date of
Incident: 12/24/2021) On December 24, 2021, Mr. Navejar was shot by an Austin Police Department
Officer. Mr. Navejar is expected to recover from his injuries.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
COMPLAINT: NAME WITHHELD/SUBJECT OFFICER: NAME WITHHELD (Date of Incident:
06/24/2021): On June 24, 2021, the juvenile complainant was struck by less-lethal ammunition while officers
were executing a search warrant and arrest warrant.
The case is currently under investigation by the Travis County District Attorney's Office Civil Rights Unit.
COMPLAINANT: SIMONE GRIFFITH/SUBJECT OFFICER: NAME WITHHELD (Date of Incident:
10/30/2021): On October 30, 2021, Ms. Griffith was arrested for criminal trespass. While officers attempted to
place Ms. Griffith under arrest, she was struck by Austin Police Department Officers.
The case is currently under investigation with the Travis County District Attorney's Office Civil Rights Unit.
COMPLAINANT: TERRY GONZALES/SUBJECT OFFICER: JON RIORDAN (Date of Incident
01/29/2022) On January 29, 2022, Mr. Gonzales sustained a gunshot wound during an incident with Austin
Police Department Officers. Mr. Gonzales is expected to recover from his injuries.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
DECENDENT: MIGUEL RIVERA/SUBJECT OFFICERS: BRITTON TAYLOR and CHARLES
WESLEY (Date of Incident: 03/06/2022) On March 6, 2022, Mr. Rivera died as a result of a gunshot wound
sustained during an incident involving Austin Police Department Officers.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
DECENDENT: ROBERT HAMMITT/SUBJECT OFFICERS: NAME WITHHELD (Date of Incident:
05/26/2022) On May 26, 2022, Mr. Hammitt died from gunshot wounds sustained during an incident involving
Austin Police Department Officers.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
Case 1:22-cv-00221-RP Document 19 Filed 10/17/22 Page 25 of 25
September 30, 2022
Page 10 of 10
DECENDENT: CARLOS ELI CHACON-CASTILLO/SUBJECT OFFICERS: JOHN ZAVALA,
SPENCER BRADLEY, and DENNIS KERLIN (Date of Incident: 06/12/2022) On June 12, 2022, Mr.
Chacon-Castillo died as a result of a gunshot wound sustained during an incident with Austin Police
Department Officers.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
DECENDENT: MICHAEL CRATER/SUBJECT OFFICERS: NAME WITHHELD (Date of Incident:
06/14/2022) On June 14, 2022, Mr. Crater died as a result of a gunshot wound sustained during an incident
involving a Leander Police Department Officer.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
COMPLAINANT: BRANDON MUNOZ/SUBJECT OFFICER: NAME WITHHELD (Date of Incident
08/08/2022) On August 8, 2022, Mr. Munoz was sustained a gunshot wound during an incident involving an
Austin Police Department Officer and a Texas Department of Public Safety Trooper. Mr. Munoz is expected to
recover from his injuries.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
COMPLAINANT: CLATEACHIA STEWART/SUBJECT OFFICER: ZACHARY MAINI (Date of
Incident: 08/28/2022): On August 28, 2022, Ms. Stewart was pulled over for an alleged traffic violation.
During the encounter, Ms. Stewart was tased by DPS Trooper Zachary Maini.
The case is currently under investigation with the Travis County District Attorney's Office Civil Rights Unit.
DECEDENT: NAME WITHHELD/SUBJECT OFFICER: NAME WITHHELD (Date of Incident:
09/23/2022): On September 23, 2022, a civilian died following an incident during which shots were fired by
Austin Police Department Officers.
The case is being jointly investigated by the Austin Police Department's Special Investigations Unit and the
Travis County District Attorney Office's Civil Rights Unit.
Case 1:22-cv-00221-RP Document 19-1 Filed 10/17/22 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-00221-RP
§
CITY OF AUSTIN AND KYU AN,
§
Defendants.
§
ORDER GRANTING DEFENDANT KYU AN'S
MOTION TO STAY DISCOVERY
CAME ON to be heard Defendant Kyu An's Motion to Stay Discovery. After considering
said Motion and the response of Plaintiff, if any, the Court is of the opinion that the Motion
should be GRANTED.
It is therefore, ORDERED, ADJUDGED AND DECREED that Defendant Kyu An's
Motion to Stay Discovery is GRANTED, and discovery as to Defendant An shall hereby be
stayed until the resolution of his criminal proceedings.
SIGNED this
day of
, 2022.
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 1 of 8
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON
§
§
Plaintiff,
§
§
V.
§
CAUSE NO. 1:22-cv-00221-RP
§
CITY OF AUSTIN AND KYU AN
§
§
Defendants.
§
PLAINTIFF'S RESPONSE TO DEFENDANT KYU AN'S
MOTION TO STAY DISCOVERY
TO THE HONORABLE UNITED STATES JUDGE:
NOW COMES Plaintiff, Bomani Barton, and files this, his response the Defendant Kyu
An's ("Defendant") motion to stay discovery pending the resolution of Defendant's criminal case,
and respectfully shows the Court the following in support:
I.
BACKGROUND
1.
On May 30, 2020, Bomani Barton attended the police brutality protest in Austin, Texas
only to become the victim of further police brutality. Despite Bomani remaining peaceful at all
times, Defendant An shot him three times with a bean bag shot gun. In his Original Answer,
Defendant An admitted:
a.
that he was an Austin Police Department ("APD") officer that responded to the
protest¹;
b. that he shot a protestor (Bomani) three times with a bean bag shot gun²;
1 Dkt. #8, I 8
2 Dkt. #8, I 23
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 1 OF 8
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 2 of 8
C. that doing SO conformed to his training3;
d. that he was acting under the color of law when he shot the protestor (Bomani).
2.
While Defendant An appears to justify his acts of violence by generally alleging some
individuals in the protest were acting violent, he has failed to allege any specific acts he claims
Bomani committed that justifies being shot in the face with a bean bag shotgun. 5
3.
On February 17, 2022, Defendant An was indicted by Travis County, Texas for Aggravated
Assault by a Public Servant for his conduct at the May 30 and 31 protests. 6
4.
On March 8, 2022, Bomani filed his original complaint against Defendant An and the City
of Austin for First and Fourth Amendment Violations. 7
5.
On August 22, 2022, Plaintiff sent written discovery to Defendants.
6.
On October 3, 2022, the Court granted an agreed confidentiality and protective order for
materials and information disclosed in this lawsuit. 8
7.
Rather than make specific objections to the written discovery, Defendant An filed his
motion to stay discovery for an indefinite time period, essentially asserting a blanket Fifth
Amendment privilege. 9 Defendant is not asking the Court to limit the scope of the discovery, but
is instead asking this Court to fully restrict Plaintiff's ability to conduct any discovery related to
Defendant An until the resolution of his criminal charges, whenever that may be.
8.
There is currently a pending agreed proposed scheduling order before the Court with
Plaintiff's expert deadline of 7/14/23 and discovery deadline of 9/29/23.
10
3 Dkt. #8, I 23
4 Dkt. #8, I 30
5 Dkt. #8, II 1 - 9; Dkt. #19, 1
6
Dkt #19, Ex. 1
7 Dkt. #1
8 Dkt. #15
9
Dkt. #19
10
Dkt. #20
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 2 OF 8
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 3 of
8
9.
Plaintiff, Bomani Barton, opposes Defendant An's unnecessary request to stay discovery
during the pendency of his criminal investigation because An has not shown good cause to do SO.
Further, staying discovery would cause unnecessary delay to the civil case and unduly prejudice
Plaintiff's ability to seek redress for the harms done to him.
II.
ARGUMENT & AUTHRORITIES
10.
The Supreme Court has established that there is no general constitutional, statutory, or
common law prohibition against simultaneously prosecting parallel civil and criminal actions. 11
Indeed, "[i]t is the rule, rather than the exception that civil and criminal cases proceed together."
A stay of a civil action until the conclusion of a related criminal proceeding is considered to be an
"extraordinary remedy."13 One reason for this is that a complete stay is equivalent to a defendant's
"blanket assertion" of the Fifth Amendment, which is improper.14 "A party is required to
selectively invoke the privilege against self-incrimination and object with specificity to the
information sought from him."15 This allows the court to examine whether the claimed privilege
proper. 16 "Whether a party is entitled to the protection of the privilege is for the court to decide,
not the invoking party." ,17 There is a strong presumption in favor of discovery and the defendant
bears the burden to show "special circumstance" to overcome this strong presumption. 18
11
Alcala V. Tex. Webb Cnty., 625 F. Supp. 2d 391, 396 (S.D. Tex. 2009); SEC V. First Fin. Group of Texas, Inc., 659
F.2d 660, 666-67 (5th Cir. 1981) (citing United States V. Kordel, 397 U.S. 1, 11, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970)).
12 United States ex rel. Gonzalez V. Fresenius Med. Care N. Am., 571 F.Supp.2d 758, 761 (W.D.Tex.2008)
(quoting IBM V. Brown, 857 F.Supp. 1384, 1387 (C.D.Cal.1994)).
13 In re Piperi, 137 B.R. 644, 646-47 (Bankr.S.D.Tex.1991) (citing Weil V. Markowitz, 829 F.2d 166, 174
(D.C.Cir.1987)); see also Plumbers and Pipefitters, 886 F.Supp. at 1139.
14
SEC V. Incendy, 936 F.Supp. 952, 957 (S.D.Fla.1996); see United States V. Little Al, 712 F.2d 133, 134-136 (5th
Cir. 1983); see also First Financial, 659 F.2d at 668-69; see also United States V. Goodwin, 625 F.2d 693, 701 (5th
Cir. 1980).
15 Alcala at 625 F. Supp. 2d 391, 397 (S.D. Tex. 2009) (citing First Financial, 659 F.2d at 668).
16 Id.
17 Id.
18 Id.
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 3 OF 8
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 4 of 8
11.
Initially, court's looked to the following factors in determining whether a stay was
appropriate when the defendant was facing criminal prosecution as well: (1) the plaintiff's interest
in proceeding expeditiously in the civil case, balanced against the potential prejudice to the
plaintiff caused by a delay; (2) the defendant's interest and the burden which any particular aspect
of the proceedings may impose on him; (3) the court's interest in the management of its cases and
the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation;
and (5) the public's interest in the pending civil and criminal litigation. 19 This test was modified
in Plumbers and Pipefitters to add two additional factors: the extent to which the issues in the
criminal case overlap with those presented in the civil case; and the status of the criminal case,
including whether the defendants have been indicted. 20
12.
District courts in the Fifth Circuit who apply the Plumbers and Pipefitters test consider or
weigh the six following factors: (1) the extent to which the issues in the criminal case overlap with
those presented in the civil case; (2) the status of the criminal case, including whether the
defendant has been indicted; (3) the private interests of the plaintiff in proceeding expeditiously,
weighed against the prejudice to the plaintiff caused by a delay; (4) the private interests of and
burden on the defendant; (5) the interests of the courts; and (6) the public interest. 21
13.
A Southern District of Texas court noted that factors (1) and (2) added in Plumbers and
Pipefitters - the extent to which the issues in the criminal case overlap with those presented in the
civil case and the status of the criminal case, including whether the defendant has been indicted -
are not really independent factors for the court to consider. 22 "Rather, they are factors important in
19 Id. at 397-98 (Citing Golden Quality Ice Cream Co., Inc. V. Deerfield Specialty Papers, Inc., 87 F.R.D. 53
(E.D.Pa. 1980)).
20 Trustees of Plumbers and Pipefitters Nat'l Pension Fund V. Transworld Mech., Inc., 886 F.Supp. 1134
(S.D.N.Y.1995)
21 Alcala, at 625 F. Supp. 2d 391, 398-99 (S.D. Tex. 2009).
22 Id.
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 4 OF 8
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 5 of 8
determining how the interests of the parties, the Court, third parties, and the public will be weighed
against each other."23 Essentially, these two factors that are in the interest of the defendant should
be weighed within the framework of balancing the interests of the parties, the Court, third parties,
and the public. 24 "This balancing-of-the-interests approach ensures that the rights of both [the
defendant and the plaintiff] are taken into consideration before the court decides whose rights
predominate.' " 25
14.
Defendant's main argument here is that because the criminal charges and civil action arise
from the same conduct, Defendant An will either have to chose between defending his civil lawsuit
or defending his criminal prosecution, but he cannot do both simultaneously. The Fifth Circuit
has addressed this argument in a similar case in which a defendant faced criminal and civil
prosecution arising out of the same conduct in United States V. White. 27 In White, the court stated
It appears to us, however, that [defendant] overstates his dilemma. He was not
forced to surrender his privilege against self-incrimination in order to prevent a
judgment against him; although he may have been denied his most effective defense
by remaining silent, there is no indication that invocation of the fifth amendment
would have necessarily resulted in an adverse judgment. 28
15.
Moreover, in 2020, the same lawyers representing Defendant An made the same arguments
as they do here, to the same court (Western District of Texas), in a case with the similar controlling
facts, asking for the same relief, and were denied. 29 In Olson as Next Friend of H.J. V. City of
Burnet, Tex., Sgt. Butler was under indictment for murder as well as aggravated assault by a public
23 Id.
24 Id. at 400
25 Id. at 399-400 (S.D. Tex. 2009) (citing Wehling V. Columbia Broadcasting System, 608 F.2d 1084, 1088 (5th
Cir. 1979)
26 Dkt #19.
27 589 F.2d 1283, 1286 (5th Cir. 1979)
28 Id.
29 Olson as Next Friend of H.J. V. City of Burnet, Tex., No. A-20-CV-00162-JRN, 2020 WL 9076545, at *2 (W.D.
Tex. July 17, 2020)
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 5 OF 8
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 6 of
8
servant arising from shooting a civilian and sought a stay of discovery because he may be forced
to choose between asserting his Fifth Amendment rights and adequately defending himself in the
lawsuit. 30 This Court held that while there is certainly overlap with the ongoing criminal case, none
of the other factors favor the stay. 31 The Court further noted the plaintiff has a significant interest
in proceeding with discovery quickly as many factual disputes about what occurred will require
deposition testimony to resolve and delaying such until after the criminal trial will only further
strain memories that may be hazy. 32 Further, abstract hypothetical fears of choosing between the
Fifth Amendment and adequately defending a civil suit foes not meet the heavy burden to merit a
stay of discovery. 33 While Defendant can certainly make objections as he sees fit, blanket
hypothetical objections are not proper. Similar to Olsen, Defendant An only provides abstract
fears.
16.
It is important to note that the degree of overlap between criminal and civil proceedings is
further reduced by the fact that the prosecutor in the criminal case, the State of Texas, is not a party
to the civil action. 34 Private parties have interests distinct from the Texas government and there is
no reason to assume that the Plaintiff's case is brought for any purpose other a good faith effort to
obtain compensation for his own injuries. Had the civil action been brought by the State of Texas
as well, the risk improper discovery in the criminal case occurring through the civil case would be
prevalent, but is not the case here.
30
Olson as Next Friend of H.J. V. City of Burnet, Tex., No. A-20-CV-00162-JRN, 2020 WL 9076545, at *1 (W.D.
Tex. July 17, 2020)
31 Id.
32 Id.
33 Id.
34 Alcala at 625 F. Supp. 2d 391, 402 (S.D. Tex. 2009)
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 6 OF 8
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 7 of 8
17.
The Court in Alcala, noted that private plaintiffs are further prejudiced when a defendant
is being prosecuted by the State of Texas rather than the Federal Government because Texas does
not have a Speedy Trial Act. 35 Indeed, Plaintiff is unaware of any trial setting in the parallel
criminal case and as such, the Defendants request for stay in essentially indefinite at this moment.
This could make it impossible for Plaintiff to obtain the discovery needed if certain factual
information is lost to hazy memories. Here, Plaintiff will need to obtain testimony as to the facts
of how each individual involved interacted the day of the shooting - which is likely only available
via deposition.
18.
The public has an interest in resolution of disputes with minimal delay. Further, the Court
has an interest in managing its docket and not letting cases languish before it.
19.
Because the Plaintiff's interests would be unduly prejudiced by a stay and the Defendant
is still able to present a defense by selectively using his Fifth Amendment privilege, if needed, the
stay should be denied. Further, because the Court and the public have an interest in quickly
resolving claims, especially when they involve public concerns such as police brutality, the stay
should be denied.
III.
CONCLUSION
20.
A defendant does not have an absolute right to stay discovery simply because they are
subject to criminal prosecution as well. A civil litigant does not lose his fundamental right to plead
the Fifth and protect against criminal prosecution during the civil case. The defendant may assert
this privilege selectively during a civil proceeding, but cannot issue a blanket assertion. Staying
all discovery against Defendant An would severely and unduly prejudice Plaintiff's ability to
35 Id. at 405-06
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 7 OF 8
Case 1:22-cv-00221-RP Document 23 Filed 11/02/22 Page 8 of 8
persecute his claim against all defendants and Defendant An has not shown special circumstances
for doing SO. For these reasons, Defendant's motion to stay should be denied
IV.
CONCLUSION
For these reasons, Plaintiff prays that upon hearing and considering the arguments of counsel,
Defendant An's motion to stay discovery be denied and for any and all such further relief Plaintiff
is justly entitled.
Respectfully submitted,
By: /s/ Myles A. Lenz
Ramez F. Shamieh
Louisiana State Bar No. 35558
Texas State Bar No. 24066683
New York State Bar No. 5280219
Myles A. Lenz
Texas State Bar No. 24092685
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
214.389.7333 telephone
214.389.7335 facsimile
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I do hereby certify that on November 2, 2022, a true and correct copy of the above and
foregoing document has been forwarded electronically to all counsel of record through CM/ECF.
/s/ Myles A. Lenz
Myles A. Lenz
PLAINTIFF'S REPONES TO DEFENDANTS MOTION TO STAY DISCOVERY
PAGE 8 OF 8
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-00221-RP
§
CITY OF AUSTIN AND KYU AN,
§
Defendants.
§
DEFENDANT KYU AN'S REPLY IN SUPPORT OF
MOTION TO STAY DISCOVERY
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
NOW COMES Defendant Kyu An ("Officer An") and files this, his reply to Plaintiff
Bomani Barton's ("Barton") response to An's Motion to Stay Discovery of this civil matter
pending the resolution of his criminal proceedings, and would respectfully show the Court as
follows:
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 2 of 9
I.
SUMMARY OF THE ARGUMENT
1.
Plaintiff's characterization as a stay of discovery as being a blanket Fifth Amendment
invocation misses the mark. A stay of discovery seeks specifically to avoid invoking the Fifth
Amendment entirely. Whereas the requested stay of discovery will ultimately result in full
testimony and a trial on the merits, a denial of the stay is more likely to end up in a trial revolving
around nefarious adverse inferences rather than the unrestricted truth. There is no benefit to the
public at large nor to our court systems when a trial is decided outside of the merits-especially a
trial that involves public interest or concern.
2.
Plaintiff's reliance on Alcala is entirely misplaced. The facts of Alcala are SO far outside
the norm as to be alien and unhelpful for the analysis of the vast majority of motions to stay.
Beyond that, the Alcala court by its own admission applied a stay of discovery test taken from the
Ninth Circuit that deviates from the established Fifth Circuit test. Plaintiff either fails to address
entirely, or only addresses in a handful of cast-off sentences with no legal support, four of the six
accepted factors. This Court may legally grant Officer An's motion on those grounds alone.
3.
Lastly, Plaintiff's citation of Olson is fatally incomplete. This Court subsequently ordered
sua sponte that the same case be stayed entirely. The grounds for doing included the same "pick
your poison" grounds initially presented in Olson that have also been presented in the motion at
bar. If the stay is granted, Plaintiff Barton will still be able to depose every other fact witness and
otherwise aggressively develop his case-and only stands to gain a Fifth Amendment invocation
if the motion is denied-collectively rendering moot Plaintiff's arguments about decaying
memories from fact witnesses. This Court in retrospect stayed the Olson case "out of fairness to
[the defendant officer]." Officer An asks that those same notions of fairness be afforded to him SO
that he may defend himself and his reputation fully in court.
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 2
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 3 of 9
II.
ARGUMENTS & AUTHORITIES
A. A stay of discovery is not a blanket Fifth Amendment invocation because it seeks to
avoid the privilege altogether, and facilitates open testimony and a trial on the merits.
Plaintiff's characterization of a stay of discovery as being a blanket Fifth Amendment
privilege invocation misses the point. In the context of an overlapping parallel criminal indictment
situation, the entire purpose of moving for a stay of discovery is to avoid the Fifth Amendment
entirely. The end result of a stay is full and open testimony after the criminal case has resolved,
which in turn allows for a civil trial on the actual merits of what happened. In contrast, a Fifth
Amendment privilege invocation prevents full and open testimony. A de facto forced Fifth
Amendment invocation situation thus transforms what would be an open trial on the merits into
one revolving around how nefarious of an inference the attorneys can weave during closing
arguments-and with a jury instruction potentially supporting the adverse inference, no less. ¹ A
stay of discovery accordingly cannot be a blanket Fifth Amendment invocation when it both (i) is
sought specifically to avoid invoking the Fifth Amendment entirely, and (ii) leads to a far different
and far more meritorious trial on the merits rather than one based on inferences and speculation by
counsel.
B. Parties resisting a stay of discovery should stop citing Alcala-a case with facts
especially far removed from a typical stay case, and where the Court admits its stay
of discovery test deviates from Fifth Circuit precedent.
4.
Simply put, litigants should stop citing Alcala when opposing a stay of discovery. The fact
scenario the Alcala court faced was SO atypical as to be inapplicable and unhelpful to the analysis
of the vast majority of motions to stay discovery based on parallel criminal proceedings. Beyond
1
See e.g. Baxter V. Palmigiano, 425 U.S. 308, 318 (1976) ("[T]he Fifth Amendment does not
forbid adverse inferences against parties to civil actions when they refuse to testify in response to
probative evidence offered against them.").
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 3
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 4 of 9
just being a factual outlier, the Alcala Court literally admits in a footnote that it applied a Ninth
Circuit stay of discovery test out that does not strictly conform with Fifth Circuit precedent.
5.
In the instant suit, the overlap between the criminal and civil matters is absolute-one
specific incidence of a police officer allegedly using physical force against a specific person. 2
Alcala offers anything but harmonious overlap. In Alcala, the inculpatory criminal law conduct
was the running of a de facto gambling operation, whereas the inculpatory civil law conduct
amounted to an employment law retaliation case. 3 The conduct had factual a connection, but it
certainly did not have the same-or probably any-overlapping elements between the civil and
criminal statutes at issue.
6.
The Alcala court cited numerous other precedents in its discussion, and thus is commonly
cited due to being a de facto aggregation of various holdings and legal standards. The actual
Alcala court's reasoning and application of the law, however, deviates from Fifth Circuit
precedent in a manner freely admitted to by the court in a footnote. The Alcala decision's
deviations include but are not limited to the point noted by Plaintiff's Response-that pursuant
to Alcala the first two factors should not even be viewed as independent factors. 4 The Alcala court
explicitly recognized that its choice of which factors to apply (or not apply) deviated from the
judicial norm, admitting that its "understanding of the test aligns more closely with the test applied
by the Ninth Circuit Court of Appeals.' ",5 In contrast, other Fifth Circuit district courts-including
this Court twice within the past week-view the first factor as not only a proper factor, but also
2 Def. An's Mot. to Stay Discovery, Dkt. # 19, pgs. 4-7.
3
Alcala V. Texas Webb Cnty., 625 F. Supp. 2d 391 (S.D. Tex. 2009).
4
Pl. Resp. to Mot. to Stay, Dkt. # 23, pgs. 4-5.
5 Alcala V. Texas Webb Cnty., 625 F. Supp. 2d 391, 399, fn. 6 (S.D. Tex. 2009).
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 4
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 5 of
9
as being widely "regarded as the most important factor in the analysis. " The Alcala challenged
second factor likewise has been used by this Court and others to make a determination as to the
appropriate length of a stay. 7
7.
Plaintiff ostensibly cites Alcala in part because he lacks any substantive rebuttal in regards
to the existence of overlap, and he lacks any substantive rebuttal in regards to the active
indictment status of the criminal case-the first and second factors that the Alcala decision
deviates from emphasizing. Both factors weigh entirely in favor of a stay, not addressed
whatsoever by Plaintiff. Plaintiff does address the interests of Plaintiff and the interests of
Defendant-the third and fourth factors. Beyond that, however, Plaintiff's only attempt to address
the last two factors of the test come in the form of two to three short, conclusory sentences at the
end of the response. As this Court recently noted, Plaintiff's failure to engage and address all of
the factors creates a situation where "[t]he Court could grant the motion on this basis alone. ",8
8.
The conduct that forms the basis of this lawsuit and the conduct that forms the basis of the
criminal charges are the same conduct-the alleged use of force against Plaintiff Barton on May
30, 2020. There is also already an active indictment, and thus the criminal jeopardy that face
Officer An is real and immediate. At the very least, this matter should not be controlled by a
precedent that openly admits to using a different test taken from a different Circuit, especially one
that downplays a factor that is considered the most important factor by other Fifth Circuit district
6
See e.g., Order, Underwood V. Siegel, 1:22-cv-00032-RP (W.D. Tex. Nov. 14, 2022), Dkt. # 39,
pg. 3 (citing DeSilva V. Taylor, No. 1:21-CV-00129-RP, 2022 WL 545063, at 3 (W.D. Tex.
Feb. 23, 2022) (internal quotation marks omitted); see also e.g., Order, Sanders V. City of Austin,
1:22-cv-00314-RP (W.D. Tex. Nov. 15, 2022), Dkt. # 39, pgs. 3-4; see also e.g. S.E.C. V.
AmeriFirst Funding, Inc., No. CIV A 307-CV-1188-D, 2008 WL 866065, at *2 (N.D. Tex. Mar.
1,2008).
7
See e.g. Slack V. City of San Antonio, Texas, No. CV SA-18-CA-1117-FB, 2019 WL 11097069,
at *3 (W.D. Tex. May 28, 2019).
8 Order, DeSilva V. Taylor, 1:21-cv-00129-RP (W.D. Tex. Feb. 23, 2022), Dkt. # 23, pg. 5.
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 5
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 6 of 9
courts. Accordingly, Alcala as a precedent-both factually and legally-is inapplicable and
unhelpful for the analysis of the facts and motion at issue before this Court.
C. Plaintiff's cite of Olson fails to disclose the fact that a stay was later granted sua sponte
by this Court based on criminal exposure grounds and "out of fairness" to the officer
defendant.
Plaintiff's cite of Olson is fatally incomplete. It is true, as Plaintiff notes, that this Court in
Olson initially denied a motion to stay discovery filed by the undersigned counsel on behalf of a
police officer defendant based on parallel criminal proceedings, and that the Court initially held
that sworn testimony for an indicted civil defendant was an "abstract" concern.9 However, this
Court subsequently issued a sua sponte order staying the entire case, including trial, based on the
very same concerns raised by Officer An of criminal exposure and being forced to pick a poison-
harming his civil case or his criminal case. Specifically, this Court noted in retrospect that "this
case approaches trial, during which [the defendant officer] could rightly be called upon to testify-
that is certainly not an abstract concern, and the danger of eliciting testimony from [the defendant
officer] harmful to his criminal case is not SO easily overlooked."10 This Court also noted in Olson
that "it appears to the Court that each of the [six accepted stay of discovery factors] support a stay,"
which is likewise true for Officer An. 11
The lack of any significant prejudice to the plaintiff noted in the Olson order is particularly
important as it pertains to Plaintiff's Response in this case. Therein, Plaintiff Barton argued
incorrectly that the requested stay of discovery "could make it impossible for Plaintiff to obtain
the discovery needed if certain factual information is lost to hazy memories." 12 Plaintiff's
9 Pl. Resp. to Mot. to Stay, Dkt. # 23, pgs. 5-6.
10
Order, Olson V. City of Burnet, Tex., 1:20-cv-00162-JRN (W.D. Tex. Mar. 17, 2021), Dkt. #
107, pg. 1 (emphasis added).
11 Id. at 2.
12
Pl. Resp. to Mot. to Stay, Dkt. # 23, pg. 7.
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 6
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 7 of 9
argument once again misses the mark. Officer An has never requested that this Court stay
discovery regarding the other claims or parties in this lawsuit. It is the norm for courts to only stay
discovery as to one defendant while allowing depositions and discovery to proceed for all other
plaintiffs and defendants in the case. 13 If the requested stay is granted, there would be absolutely
nothing barring Plaintiff from deposing every other fact witness, propounding written discovery
with the City of Austin, and sending subpoenas to third parties. Plaintiff's argument also fails to
address the fact that a deposition of Officer An in the immediate future would not actually net any
substantive information about the subject incident whatsoever, because Officer An would be
almost guaranteed to invoke his Fifth Amendment privileges if deposed while under active
indictment.
Thus, what risk of "information lost to hazy memories" would be rectified by
denying a stay? Such a denial will not yield a shred of additional discovery from other witness or
parties-which can proceed at Plaintiff's will-and it likewise would not yield any substantive
testimony from Officer An about the incident beyond a Fifth Amendment invocation.
There is no substantive discovery or information whatsoever that weighs in the balance of
the outcome of this motion. This Court issued the sua sponte order staying the Olson case "in the
interest of fairness to [the defendant officer]." Officer An asks for the same relief out of fairness
to him, and to be treated the same as the other officers currently in his exact same position.1
13 See e.g. Weaver V. Stroman, No. 1:16-CV-01195-ADA, 2020 WL 3545655, at *3 (W.D. Tex.
June 30, 2020) (Noting that "[t]his Court has discretion to tailor a stay to operate with respect to
only 'some portion of the proceeding," and denying the municipal defendant's request for a stay
"SO as to allow Plaintiffs to conduct depositions of any person who is not an individual
Defendant [with a stay of discovery in place].").
14 Order, Olson V. City of Burnet, Tex., 1:20-cv-00162-JRN (W.D. Tex. Mar. 17, 2021), Dkt. #
107, pg. 1.
15 See e.g., Order, Underwood V. Siegel, 1:22-cv-00032-RP (W.D. Tex. Nov. 14, 2022), Dkt. #
39, pg. 3; see also e.g., Order, Sanders V. City of Austin, 1:22-cv-00314-RP (W.D. Tex. Nov. 15,
2022), Dkt. # 39, pgs. 3-4.
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 7
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 8 of 9
III.
PRAYER
9.
WHEREFORE, PREMISES CONSIDERED, Defendant Kyu An respectfully requests that
this Court grant Defendant An's motion to stay civil discovery pending the resolution of his
criminal proceedings, and for all other relief to which Defendant An may justly be entitled in law
or equity.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANT
KYU AN
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 8
Case 1:22-cv-00221-RP Document 26 Filed 11/18/22 Page 9 of 9
CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of November 2022, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service/E-
Mail and/or U.S. First Class Mail, in accordance with the Federal Rules of Civil Procedure, as
follows:
Ramez F. Shamieh
ramez@shamiehlaw.com
Myles Lenz
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
Daniel R. Richards
drichards@rrsfirm.com
Clark Richards
crichards@rrsfirm.com
RICHARDS RODRIGUEZ & SKEITH, LLP
816 Congress Avenue, Suite 1200
Austin, Texas 78701
/s/ Blair J. Leake
Blair J. Leake
Defendant Kyu An's Reply in Support of Motion to Stay Discovery
Page 9
Case 1:22-cv-00221-RP Document 27 Filed 11/30/22 Page 1 of 7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
Plaintiff
§
§
V.
§
No. 1:22-CV-00221-RP
§
CITY OF AUSTIN, TEXAS, KYU
§
AN,
§
Defendants
§
ORDER
Before the Court is Defendant Kyu An's Opposed Motion to Stay Discovery,
Dkt. 19. The District Court referred the motion to the undersigned for disposition
pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule
1(c) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas. After considering the motion and all related filings, the
Court now grants the motion.
I.
BACKGROUND
This case arises out of the Austin Police Department's response to protests that
happened in downtown Austin in May 2020. Dkt. 1. The plaintiff in this case, Bomani
Barton, alleges that APD Officer An shot him with a "beanbag round," also referred
to as a "less lethal" round, during the protest. Id., at 6. Citing this conduct, Barton
asserts Fourteenth Amendment excessive-force, First Amendment retaliation, and
punitive damages claims against Officer An, all pursuant to 42 U.S.C. § 1983. Id., at
7-9. In connection with law enforcement's response to this same protest, the Travis
1
Case 1:22-cv-00221-RP Document 27 Filed 11/30/22 Page 2 of 7
County District Attorney indicted Officer An, along with numerous other area law-
enforcement officers who were on the scene. Dkt. 17-2. Officer An's indictment in
particular charges him with two counts of Aggravated Assault By Public Servant,
specifically citing his alleged firing of a firearm at Barton. Dkt. 18-1.
II.
LEGAL STANDARDS
"The Court has broad discretion to stay proceedings in the interest of justice
and in order to control its docket." Raymond U. J.P. Morgan Chase Bank, No. SA-20-
CA-161-OLG, 2020 WL 10731935, at *1 (W.D. Tex. Sept. 24, 2020). "Proper use of this
authority calls for the exercise of judgment, which must weigh competing interests
and maintain an even balance." Id. (internal quotation marks omitted). "When a
defendant in a civil case is facing criminal charges, a district court may, in its
discretion, stay the civil action." U.S. ex rel. Gonzalez U. Fresenius Med. Care N. Am.,
571 F. Supp. 2d 758, 761 (W.D. Tex. 2008); see also United States U. Little Al, 712 F.2d
133, 136 (5th Cir. 1983) ("Certainly, a district court may stay a civil proceeding during
the pendency of a parallel criminal proceeding."). Such a stay contemplates "special
circumstances" and the need to avoid "substantial and irreparable prejudice." Little
Al, 712 F.2d at 136.
When deciding whether "special circumstances" warrant a stay, courts in the
Fifth Circuit have found the following factors relevant: (1) the extent to which the
issues in the criminal and civil cases overlap, (2) the status of the criminal case,
(3) the private interests of the plaintiffs in proceeding expeditiously, (4) the burden
on the defendants, (5) the interest of the courts, and (6) the public interest. Olson U.
2
Case 1:22-cv-00221-RP Document 27 Filed 11/30/22 Page 3 of
7
City of Burnet, No. A-20-CV-00162-JRN, 2020 WL 9076545, at *1 (W.D. Tex. July 17,
2020) (citing Alcala U. Tex. Webb Cnty., 625 F. Supp. 2d 391, 397-98 (S.D. Tex. 2009)).
Courts have found special circumstances where a defendant attempts to preserve his
Fifth Amendment right against self-incrimination and resolve "the conflict he would
face between asserting this right and defending the civil action." Bean U. Alcorta, 220
F. Supp. 3d 772, 775 (W.D. Tex. 2016) (quoting Alcala, 625 F. Supp. 2d at 397); see
also, e.g., In re Grand Jury Subpoena, 866 F.3d 231, 234 (5th Cir. 2017) (observing
that "less restrictive civil discovery could undermine an ongoing criminal
investigation and subsequent criminal case").
III.
DISCUSSION
A.
Overlap Between the Criminal and Civil Cases
"The extent to which issues in the criminal case overlap with those presented
in the civil case generally is regarded as the most important factor in the analysis."
DeSilva U. Taylor, No. 1:21-CV-00129-RP, 2022 WL 545063, at *3 (W.D. Tex. Feb. 23,
2022) (internal quotation marks omitted). "Where there is significant overlap, self-
incrimination is more likely and thus weighs in favor of a stay." Bean, 220 F. Supp.
3d at 776. The facts that form the basis of the indictment pending against Officer An
are the same facts that form the basis for Barton's claims against him. Compare Dkt.
1, at 6, with Dkt. 18-1.
Barton does not deny that the facts here overlap, nor could he credibly do SO.
Instead, Barton points to cases denying a stay despite an overlap in the facts. Dkt.
23, at 5-7. As Officer An points out, though, one of those cases, Alcala, involved a civil
3
Case 1:22-cv-00221-RP Document 27 Filed 11/30/22 Page 4 of 7
claim based on an alleged employment-law retaliation, while the criminal case was
based on the running of an illegal gambling operation. See Dkt. 26, at 4 (discussing
Alcala, 625 F. Supp. 2d at 402-03). Citing "a lack of significant overlap between the
[civil and criminal cases]," the court denied the stay. 625 F. Supp. 2d at 402. Likewise,
Olson, is also distinguishable: while the Court there found the facts did overlap and
the criminal prosecution was active, the Court concluded that-unlike here, as
discussed below-the remaining factors did not favor a stay. 2020 WL 9076545, at *2.
Moreover, the Court later revisited that decision sua sponte and ultimately granted
a stay. See Order, No. 1:20-CV-00162-JRN (W.D. Tex. Mar. 17, 2021), Dkt. 107.
The question is simple: do the facts overlap? Here, they undeniably do. This
factor, the "most important," weighs in favor of granting a stay. See, e.g., DeSilva,
2022 WL 545063, at *3 ("Because there is significant overlap between the issue
presented in this case and Defendants' criminal proceedings, there is a significant
danger of self-incrimination. The first and most important factor weighs strongly in
favor of staying the case.").
Barton gives the remaining factors either cursory treatment or declines to
address them at all. As alluded to above, however, the Court concludes that each of
the remaining factors likewise favors a stay.
B.
Status of the Criminal Case
"The 'strongest case' for a stay exists where a party is indicted for a serious
offense and must defend a civil action involving the same matter." Alcala, 625
F.
Supp. 2d at 401. Officer An has been indicted. Dkt. 27-1.
4
Case 1:22-cv-00221-RP Document 27 Filed 11/30/22 Page 5 of 7
A stay of a civil case is most appropriate where a party to the civil case
has already been indicted for the same conduct for two reasons: first, the
likelihood that a defendant may make incriminating statements is
greatest after an indictment has issued, and second, the prejudice to the
plaintiffs in the civil case is reduced since the criminal case will likely
be quickly resolved due to Speedy Trial Act considerations.
Librado U. M.S. Carriers, Inc., No. 3:02-CV-2095D, 2002 WL 31495988, at *2 (N.D.
Tex. Nov. 5, 2002). Now that Officer An has been indicted, he is at risk of potentially
making incriminating statements in his civil case. See DeSilva, 2022 WL 545063, at
*3 (reaching the same conclusion). This factor weighs in favor of a stay.
C.
Plaintiff's Interests
Barton does have an interest in having his claim against Officer An prosecuted
expeditiously. But when evaluating this factor, "courts may require a plaintiff to
establish more prejudice than simply a delay in its right to expeditiously pursue his
claim." Id. Barton complains that granting a stay may delay the trial in this case
"indefinitely," and with that delay, the attendant loss of witnesses' memory. Dkt. 23,
at 7. But, as in DeSilva, Barton "identifies no discovery that is available now but
would be unavailable later should a stay be granted" and "has not alleged that any
witnesses will be unable to testify nor that any particular evidence will degrade if a
stay is granted." DeSilva, 2022 WL 545063, at *3. Barton's conclusory statements to
the contrary fail to tip this factor in his favor.
D.
Burden on Defendant
Absent a stay, Officer An will face "a conflict between asserting his Fifth
Amendment rights and fulfilling his legal obligations as a witness" and defendant in
this civil case. DeSilva, 2022 WL 545063, at *4. "This conflict may be largely, if not
5
Case 1:22-cv-00221-RP Document 27 Filed 11/30/22 Page 6 of 7
completely, eliminated by granting a stay." Librado, 2002 WL 31495988, at *3.
"Defendants have an interest in staying the civil trial to avoid exposing their criminal
defense strategies to the prosecution." DeSilva, 2022 WL 545063, at *4 (citing Alcala,
625 F. Supp. 2d at 397). In light of the substantial overlap between the facts of the
civil and criminal cases discussed above, the Court concludes that this factor weighs
in favor of a stay.
E.
Interest of the Courts
As the Court in DeSilva noted, "granting a stay 'serves the interests of the
courts, because conducting the criminal proceedings first advances judicial economy."
2022 WL 545063, at *4 (quoting Jean U. City of Dallas, No. 3:18-CV-2862-M, 2019 WL
4597580, at *5 (N.D. Tex. Sept. 22, 2019)). Moreover, "[r]esolution of the criminal case
may increase prospects for settlement of the civil case and, '[d]ue to differences in the
standards of proof between civil and criminal prosecutions, the possibility always
exists for a collateral estoppel or res judicata effect on some or all of the overlapping
issues." Id. (quoting Jean, 2019 WL 4597580, at *5). The Court concludes that this
factor, too, weighs in favor of a stay.
F.
The Public Interest
Finally, the Court considers the public's interest. "The public has an interest
in the just and constitutional resolution of disputes with minimal delay." Walker U.
Wilburn, No. 3:13-CV-4896-D, 2015 WL 5873392, at *9 (N.D. Tex. Oct. 5, 2015). "The
sixth factor typically weighs against the grant of a stay only where, unlike here, a
civil case is pending and no criminal investigation has begun." DeSilva, 2022 WL
6
Case 1:22-cv-00221-RP Document 27 Filed 11/30/22 Page 7 of 7
545063, at *4 (citing Meyers U. Pamerleau, No. 5:15-CV-524-DAE, 2016 WL 393552,
at *7 (W.D. Tex. Feb. 1, 2016)). Moreover, "[w]hile the public certainly has an interest
in the prompt resolution of the instant civil case, it also has an interest in protecting
the constitutional rights of criminal defendants." Meyers, 2016 WL 393552, at *7.
Accordingly, the final factor also supports a stay.
IV.
ORDER
For these reasons, the Court GRANTS Officer An's motion, Dkt. 19, and
ORDERS that all discovery and further proceedings in the matter against Officer An
are STAYED until further order of this Court. (This Order does not apply to
proceedings or discovery involving Defendant City of Austin.)
IT IS FURTHER ORDERED that Officer An is to file a status report every
three months, beginning February 1, 2023, notifying the Court of the status of his
criminal case. Officer An should also notify the Court as soon as practicable upon the
final resolution of the criminal case.
IT IS FURTHER ORDERED this cause of action is removed from the docket
of the undersigned and RETURNED to the docket of the Honorable Robert Pitman.
SIGNED November 30, 2022.
DRIVER
DUSTIN M. HOWELL
UNITED STATES MAGISTRATE JUDGE
7
casse1122260v002221RRP Fllébeld001330223 PPagel1061177
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO.: 1:22-CV-00221-RP
§
KYU AN, Individually,
§
and CITY OF AUSTIN, TEXAS
§
§
Defendants.
§
PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT COURT:
BOMANI BARTON (hereinafter referred to as "Mr. Barton" or "Plaintiff") and files his
First Amended Complaint complaining of KYU AN, individually (hereinafter referred to as
"Officer Kyu An" or "An"), and the City of Austin, Texas (hereinafter referred to as "Austin,
Texas" or "the City"), and respectfully shows this Honorable Court as follows:
DDocument2391 Filéed001330223 Pragee22061177
TABLE OF CONTENTS
Nature of the Case
3
Parties
4
Jurisdiction
4
Venue
4
Conditions Precedent
4
Factual Background
5
Causes of Action
7
A.
§ 1983 - Excessive-Force Claims Against Officer Kyu An in his Individual
Capacities
7
B.
§ 1983 - First Amendment Retaliation Claim against Officer Kyu An in his
Individual Capacity
9
C.
Qualified Immunity Under § 1983
10
D.
Governmental Liability under 42 U.S.C. § $1983 (Monell) and the First and Fourth
Amendment to the U.S. Constitution
12
Damages
15
Attorney's Fees and Costs
15
Relief Requested
15
Jury Demand
16
Prayer
16
Plaintiff's First Amended Complaint
Page 2 of 17
casse1122260V002221RRP Discounted 2801 Pragige3306f1177
TO THE HONORABLE UNITED STATES DISTRICT COURT:
BOMANI BARTON (hereinafter referred to as "Mr. Barton" or "Plaintiff") and files his
First Amended Complaint complaining of KYU AN, individually (hereinafter referred to as
"Officer Kyu An" or "An"), and the City of Austin, Texas (hereinafter referred to as "Austin,
Texas" or "the City") and respectfully shows this Honorable Court as follows:
I.
NATURE OF THE CASE
1.
This is an excessive force and First Amendment retaliation case, wherein Defendant Kyu
An - a police officer with the City of Austin Police Department - used excessive force against
Plaintiff, including shooting him with bean bag rounds in the face, elbow, and hip despite the fact
that Plaintiff posed no risk to Defendant or anyone else. Defendant An committed these acts in
retaliation for Plaintiff exercising his First Amendment rights of free speech and assembly against
police brutality.
2.
Specifically, this is a civil action arising under the United States Constitution under the
provisions of the First and Fourth Amendment to the Constitution of the United States, as applied
through the Fourteenth Amendment, and under federal law, particularly the Civil Rights Act, Title
42 of the United States Code § 1983, seeking damages against Defendants for committing acts,
under the color of law, with the intent and for the purpose of depriving Mr. Barton of rights secured
under the Constitution and law of the United States. 1
3.
Plaintiff also asserts governmental liability (Monell) claim against the City of Austin
because there exists pattern, practice, or custom of City of Austin Police Officers engaging in
excessive force and because the City of Austin-acting through its policy makers-failed to
1
Although Plaintiff refers to Defendants collectively at times, specific factual references are made concerning
actions or inactions by specific Defendants throughout this Complaint - these are not global allegations. As such,
this pleading complies with current federal standards. FED. R. CIV. P. 8.
Plaintiff's First Amended Complaint
Page 3 of 17
DDoccumeent2891 Filéed0011330223 PPaggo44061177
properly train and supervise Defendant Kyu An and encouraged the use of kinetic projectiles into
crowd of unarmed people.
II.
PARTIES
4.
Plaintiff, BOMANI BARTON, is a citizen of the United Sates currently residing Bell
County, Texas.
5.
Defendant, KYU AN, is an individual that was employed by the City of Austin Police
Department at the time of the incident that make the basis of this lawsuit and was acting within the
scope of his employment and under the color of law, statues, ordinances, rules and regulations,
customs and usage of the City of Austin Police Department. At the time of the incident, Officer
An assumed his role as a peace officer for the City of Austin. Officer An has appeared in this
lawsuit and can be served through his attorney of record.
6.
Defendant, CITY OF AUSTIN, is a municipality located within the State of Texas. The
City of Austin has appeared in this lawsuit and can be served through its attorney of record.
III.
JURISDICTION
7.
This action is brought pursuant to 42 U.S.C. § 1983, and the First, Fourth, and Fourteenth
Amendments to the United States Constitution. The Court has jurisdiction of this action under 28
U.S.C. §§ 1331 and 1343.
IV. VENUE
8.
Venue is proper in this district under 28 U.S.C. § 1391(b) because the acts, events, or
omissions giving rise to this claim occurred in Travis County, Texas, which falls within the United
District Court for the Western District of Texas, Austin Division.
V.
CONDITIONS PRECENDENT
9.
All conditions precedent have been performed or have occurred.
Plaintiff's First Amended Complaint
Page 4 of 17
casse1122260V002221RRP Fllébeld001330223 PPagege5506f1177
VI.
FACTUAL BACKGROUND
10.
On Saturday, May 30, 2020, the Austin Police Department responded to a peaceful protest
of police brutality with further police brutality.
11.
Bomani Ray Barton, his girlfriend, and another friend attended a civil rights protest near
the Austin Police Department Headquarters in Austin, Texas.
12.
When they arrived, they noticed Austin Police Department officers in what appeared to be
riot gear in a formation of numerous rows of officers.
13.
These officers used bicycles to barricade and corral individuals into certain areas and to
split up groups.
14.
Mr. Barton and his friends protested peacefully for several hours; however, the police
began to get agitated with the crowd, began pushing protestors, and used OC spray (commonly
referred to as "pepper spray") to silence the crowd.
15.
Mr. Barton witnessed an officer push a female protestor off of a retaining wall, which
caused her to hit her head on the ground.
16.
As the police became more violent, the protesters migrated and made their way towards
the Capitol. Officers continually used OC spray on unarmed individuals who did not pose a threat.
17.
The protesters continued marching the streets of Austin and eventually found their way
back to Austin Police Department Headquarters.
18.
By this time, Austin police officers resorted to wantonly spraying OC spay into crowds.
After seeing this tactic, Mr. Barton and his friends decided to stay towards the back of the protest
- away from the violent officers.
19.
The protesters again started to march down the highway. During this time, Mr. Barton is
seen on video holding a protest sign over this head and sitting on the concrete divider between
Plaintiff's First Amended Complaint
Page 5 of 17
north and south lanes of travel on I-35.
20.
As Mr. Barton is sitting on the divider, Officer An and two other officers began to advance
in his direction, which caused Mr. Barton to further retreat to the side of the highway opposite of
the officers.
21.
As Officer An and two other officers continue to walk towards Mr. Barton and other
protestors, Mr. Barton continued to raise his protest sign and slowly back away. Inexplicably,
Officer An raised his bean-bag shot gun and shot Mr. Barton three times, with one round hitting
Mr. Barton in the face as Mr. Barton was backing away.
22.
Mr. Barton, dazed and feeling like he was hit in the jaw with a metal bat, stumbled a few
steps before falling to his knees as blood sputtered from his mouth. Two of his teeth broke off
from his mouth and fell to the pavement. Officers never checked on Mr. Barton after the assault
nor did he or any other officer call for EMS.
23.
Bystanders then assisted Mr. Barton to EMS as it was clear he needed emergency medical
care. EMS informed Mr. Barton that getting to the hospital was a matter of life and death. Mr.
Barton, who was now dizzy from blood loss, was put on a stretcher and loaded into the ambulance.
24.
The ambulance only made it a few feet before it had to stop and pick up another victim of
Austin Police brutality. This time, EMS rescued a young, pregnant woman who suffered from
asthma and had been sprayed with OC spay. She was also taken to the ER with Mr. Barton.
25.
Mr. Barton underwent emergency surgery on his shattered jaw and was in and out of
consciousness as he recovered the next day. Additionally, his right elbow and hip were severally
bruised and could not function properly.
26.
Mr. Barton has currently undergone seven (7) surgeries on his face, but unfortunately, the
damage caused by Officer Kyu An is permanent.
Plaintiff's First Amended Complaint
Page 6 of 17
casse11222E0V002221RRP Flléed0011330223
27.
Officer Kyu An and 18 other officers have been indicated for assaulting Mr. Barton and
numerous other innocent civilians protesting police brutality. Several officers have stated through
their attorney that the highest levels of APD command authorized and ordered the use of bean bags
on the unarmed protesters that day. 2
28.
Mr. Barton has never been arrested nor charged with a crime related to this protest and
video evidence confirms that Mr. Barton was peacefully protesting when he was shot. Mr. Barton
never threw any objects at Office An or any other officer.
VII.
CAUSES OF ACTION
A.
§ 1983 - Excessive-Force Claims Against Kyu An in his Individual Capacity
29.
Plaintiff hereby adopts, incorporates, restates, and re-alleges paragraphs 1 through 28,
inclusive, with regard to all causes of action.
30.
As a direct and proximate result of the above-referenced unlawful and malicious physical
abuses of Plaintiff by Officer Kyu An that were committed under the color of law and under his
authority as a City of Austin Police Officer, Plaintiff suffered grievous bodily harm and was
deprived of his right to be secure in his person against unreasonable seizure of his person, in
violation of the Fourth Amendment of the Constitution of the United State of America.
31.
Plaintiff specifically pleads that Officer Kyu An used excessive force and/or deadly force
in the course of an illegal assault and battery of the Plaintiff, a free citizen, in violation of the
Fourth Amendment and its "reasonableness" standard.
32.
To establish Officer Kyu An violated his constitutional rights to be free from excessive
force, Plaintiff must show:
a.
An injury;
2 https://www.texastribune.org/2022/02/21/austin-police-indictment-protests/
Plaintiff's First Amended Complaint
Page 7 of 17
casse11222e0V002221RRP DDocomeent2891 Filéed001330223 Pagge88061177
b.
Which resulted from the use of force that was clearly excessive to the need; and
c.
The excessiveness of which was objectively unreasonable.
33.
Officer Kyu An's use of unreasonable, unnecessary, and excessive force violated Plaintiff's
clearly established constitutional rights and was not objectively reasonable in light of the
circumstances.
34.
Specifically, Officer Kyu An used unreasonable, excessive, and unnecessary force by
shooting Mr. Barton with a bean bag gun three times, including one in the face at close range.
35.
Mr. Barton was not posing a threat to Officer Kyu An nor any other member of the public.
Mr. Barton did not disobey any lawful commands issued by Officer Kyu An. Mr. Barton was not
arrested nor charged with any crimes in relation to his presence at the protest.
36.
Plaintiff suffered multiple injuries as a direct result of Officer Kyu An's actions. As a result
of his encounter with Officer Kyu An, Mr. Barton was shot in the elbow, hip, and jaw with bean
bags, which resulted in a shattered jaw, numerous corrective surgeries, and permanent damage.
37.
Officer Kyu An's actions and/or omissions were "objectively unreasonable" in light of the
facts and circumstances confronting the officer without regard to his underlying intention or
motivation. Clearly, the facts and circumstances of this particular incident demonstrate the
unreasonableness of said actions, including that Plaintiff was unarmed, had not committed a crime,
was not attempting to flee, and posed no immediate threat or danger to the police. For these
reasons, it was objectively unreasonable for Officer Kyu An to shoot Plaintiff three times with a
bean bag gun.
38.
Officer Kyu An's actions were clearly excessive to the need.
3
See Newman V. Guedry, 703 F.3d 757, 761 (5th Cir. 2012); Rockwell V. Brown, 664 F.3d 985, 991 (5th Cir. 2011).
Plaintiff's First Amended Complaint
Page 8 of 17
casse11222E0V002221RRP DDCCIMENT239 PFagge9906f117
39.
The acts of Officer Kyu An as set forth above were intentional, wanton, malicious, and
oppressive, or were with reckless disregard of Plaintiff's established constitutional rights;
therefore, Plaintiff is entitled to an award of punitive damages.
B.
§ 1983 - First Amendment Retaliation Claims Against Kyu An in his Individual
Capacity
40.
Plaintiff hereby adopts, incorporates, restates, and re-alleges paragraphs 1 through 39,
inclusive, with regard to all causes of action.
41.
To assert a claim for First Amendment retaliation under § 1983, Plaintiff must show:
a. He was engaged in a constitutionally protected activity;
b. The defendants' actions caused him to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity; and
C. The defendants' adverse actions were substantially motivated against Plaintiff's
exercise of constitutionally protected conduct.4
42.
Here, Plaintiff was engaged in the constitutionally protected activity of voicing his free
speech and freedom to peaceably assemble in an attempt to redress grievances related to police
brutality across the nation.
43.
Defendant Kyu An shattered Mr. Barton's jaw in an effort to both literally and figuratively
take away his ability to speak on police brutality and to instill fear in all that assembled on the
matter. Such a public, brutal, and devastating injury not only chills a person of ordinary firmness
from continuing to engage in the activity, it also makes them physically unable to engage.
44.
Plaintiff was peacefully protesting, was not armed, and had his hands raised in a
surrendering position at the time Officer Kyu An shot him with the bean bag gun the first time.
Officer Kyu An then proceeded to repeatedly shoot Mr. Barton in what can only be described as a
4 Keenan V. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)
Plaintiff's First Amended Complaint
Page 9 of 17
casse11222E0V002221RRP Pagege110061177
simulated overkill. Officer Kyu An never gave Plaintiff a lawful order, never suspected Plaintiff
of committing a crime, never attempted to arrest Plaintiff, and never attempted to render aid after
the assault - he simply walked away. Further, Plaintiff was never charged with a crime related to
the protest. The totality of the circumstances show that Officer Kyu An's substantial motivation
was to infringe on those protesting police brutality by inflicting police brutality.
45.
The acts of Officer Kyu An as set forth above were intentional, wanton, malicious, and
oppressive, or were with reckless disregard of Plaintiff's established constitutional rights;
therefore, Plaintiff is entitled to an award of punitive damages.
C.
Qualified Immunity Under § 1983
46.
Plaintiff hereby adopts, incorporates, restates and re-alleges paragraphs 1 through 45,
inclusive, with regard to all causes of action.
47.
Officer Kyu An was carrying out a governmental function in employing the excessive use
of force against Plaintiff. Government actors can be entitled to qualified immunity to their
individual liability, but this immunity is waived if the complainant shows that:
a. the individual's acts deprived the party of constitutional rights under color of law;
b. the deprived rights were clearly established and constitutional rights which existed
at the time of the acts; and
C. such acts were not objectively reasonable under the circumstances, that is, no
reasonable official could have believed at the time that the conduct was lawful.
48.
In Kinney V. Weaver, the Fifth Circuit explained the "clearly established" prong as follows:
Qualified immunity should not be denied unless the law is clear in the more
particularized sense that reasonable officials should be on notice that their
conduct is unlawful. The central concept is that of fair warning: The law can
clearly be established despite notable factual distinctions between the
precedents relied on and the cases then before the Court, SO long as the prior
decisions gave reasonable warning that the conduct then at issue violated
Plaintiff's First Amended Complaint
Page 10 of 17
casse11222e0V002221RRP DDocument2801 Fllébeld001330223 PPagel11061177
constitutional rights. 5
49.
In Newman V. Guedry, the Fifth Circuit Court addressed whether the law on the use of
Tasers was clearly established at the time of the event that occurred before the encounter between
Mr. Barton and Officer Kyu An:
Guedry contends that he had no reasonable warning that tasing Newman multiple
times violated Newman's constitutional rights, because there was then no binding
case law on the appropriate use of tasers. Lawfulness of force, however, does not
depend on the precise instrument used to apply it. Qualified immunity will not
protect officers who apply excessive and unreasonable force merely because their
means of applying it are novel.
50.
In Bush V. Strain, the Fifth Circuit held that the law was clearly established that an officer
slamming an arrestee's face into a vehicle when the arrestee was not resisting or attempting to flee
was objectively unreasonable.
51.
At the time of the encounter between Officer Kyu An and Plaintiff, there was no doubt that
Mr. Barton had the clearly established right to be free from harm, including excessive force in the
form of improper use of a bean bag gun.
52.
Here, Mr. Barton posed no immediate threat to Officer Kyu An or any else, was disobeying
a lawful command, was not suspected of a crime, was not informed he was under arrest; yet,
Officer Kyu An chose to shoot Mr. Barton with his bean bag gun three times and shatter Mr.
Barton's jaw before calmly walking away.
53.
The actions taken by Officer Kyu An were excessive and unreasonable under clearly
established law.
5
See Kinney V. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (internal citations and quotations omitted).
6
See Newman V. Guedry, 703 F.3d 757, 763-64 (5th Cir. 2012).
7 Bush V. Strain, 513 F.3d 492, 502 (5th Cir. 2008).
Plaintiff's First Amended Complaint
Page 11 of 17
casse11222E0V002221RRP Fllébeld001330223 Pagge122061 f1177
54.
The acts of Officer Kyu An violated clearly established statutory or constitutional rights of
which a reasonable person would have known, including the constitutional rights afforded by the
Due Process Clause, First Amendment and Fourth Amendment of the United States Constitution.
D.
Governmental Liability Under 42 U.S.C. §1983 (Monell) and the First and Fourth
Amendment to the U.S. Constitution applied through the Fourteenth Amendment.
55.
Plaintiff hereby adopts, incorporates, restates, and re-alleges paragraphs 1 through 54,
inclusive, with regard to all causes of action.
56.
This cause of action is to redress the deprivation under the color of policy, custom, and
practice of rights and privileges secured to Plaintiff by the First and Fourth Amendment to the
United States Constitution.
57.
The elements of a cause of action under § 1983 against a governmental entity are:
a. Plaintiff was deprived of rights under the United States Constitution;
b. Such deprivation was caused by a person acting under color of state law;
c. The governmental entity adopted, or failed to adopt, a policy statement, ordinance,
regulation or decision adopted and promulgated by the governmental entity's
lawmaking officers or by an official to whom the law makers delegate law-making
authority or a persistent, widespread practice of officials or employees of the
governmental entity which, though not authorized or officially adopted and
promulgated, the policy is SO common and well settled as to constitute a custom
that fairly represents policy of the governmental entity; and
d. The promulgation of the policy by City of Austin was done SO with deliberate
indifference to known or obvious consequences that violations of constitutional
rights would occur, and the unconstitutional policy is the moving force behind the
deprivation of the Plaintiff's rights. 8
58.
At all relevant times mentioned here, the City of Austin employed Officer Kyu An as a
police officer of the Austin Police Department. The City of Austin provided this employee and
8
Zarnow V. City of Wichita Falls, 614 F.3d 461, 166-67 (5th Cir. 2010); see Groden V. City of Dallas, 826 F.3d
280, 283 (5th Cir. 2016).
Plaintiff's First Amended Complaint
Page 12 of 17
casse11222E0V002221RRP Filéed0011330223 Paggeli f117
agent with an official badge, identification, and uniform, which designated and described its
bearers as Austin Police Officers.
59.
At all relevant times mentioned here, Officer Kyu An, separately and in concert, acted
under the color of law, as well as under the color of policies, practices, and customs of the City of
Austin. The Defendants deprived Plaintiff of the rights, privileges, and immunities secured to
Plaintiff by the First and Fourth Amendment to the United States Constitution and the laws of the
United States.
60.
The facts alleged above are part of the customs, practices, polices, and decisions of the
Cirt of Austin, including but not limited to, the following:
a. Shooting kinetic projective into crowds where innocent people could be injured;
b. Using, authorizing, and/or tolerating excessive force against non-violent protestors;
C. Failing to adequately discipline officers;
d. Failing to adequately supervise officers;
e.
Failing to adequately train officers concerning de-escalation of force, crowd
control, use of force against non-violent protestors, and the use or misuse of kinetic
projectiles;
f. Failing to train officers regarding demonstrators' free speech and assembly rights;
g. Not intervening to stop constitutional violations, including excessive force;
h. Failing to train or instruct officers about specific incidents it considers
unreasonable, excessive force, or in violation of the constitution; and
i. Disproportionally using and tolerating excessive force, including deadly force,
against unarmed people of color.
61.
Former Chief Brian Manly, who was a policymaker for the City of Austin related to law
enforcement at the time, had a duty to properly train and supervise his deputies concerning the use
of force and to prevent excessive force. Former Chief Brian Manly failed to properly train and
Plaintiff's First Amended Complaint
Page 13 of 17
casse11222e0v002221RRP Flléed0011330223 PRagel 144061177
supervise Officer Kyu An in not engaging in excessive and the proper use of force.
62.
Numerous other citizens have filed complaints and lawsuits against the City of Austin for
excessive and unreasonable force stemming from police action in this protest and many other
unrelated instances.
63.
Further, 19 police officers, include Defendant Officer Kyu An have been indicted on
criminal assault charges related to their conduct at this protest, including Officer Kyu An's conduct
that makes the basis of this lawsuit. This demonstrates that the City of Austin had a widespread
failure to adequately train and/or supervise problem with its officers and/or condoned the use of
these projectiles on innocent people at the time of the incident.
64.
Each of these customs, practices, and/or policies was actually known, constructively
known and/or ratified by the City of Austin, the Austin Police Department, and/or Former Chief
Brian Manly, a policymaker for the City of Austin, and were promulgated with deliberate
indifference to Plaintiff's rights, as guaranteed by the First and Fourth Amendments to the United
States Constitution, and specifically deprived Plaintiff of his First Amendment right to free speech
and to assemble and Fourth Amendment right to be free from excessive and unreasonable force.
The known and obvious consequence of these policies was that Austin Police Department officers,
and specifically Officer Kyu An, would be placed in recurring situations in which the constitutional
violations that occurred in this incident would result. Plaintiff alleges that continuation of the
above-mentioned practices of improper policies or customs actually caused Officer Kyu An to
violate Plaintiff's constitutional rights.
65.
Former Chief Brian Manly also ratified Officer Kyu An's conduct by failing to discipline
Officer Kyu An for his use of excessive and unreasonable force. It took a grand jury indictment
9 ps://www.texastribune.org/2022/02/21/austin-police-indictment-protests/
Plaintiff's First Amended Complaint
Page 14 of 17
DDocument2391 Paggel 15500 f117
from citizens outside of Former Chief Brian Manly's control to bring Officer Kyu An to criminal
justice.
VIII. DAMAGES
66.
Plaintiff hereby adopts, incorporates, restates and re-alleges paragraphs 1 through 65,
inclusive, with regard to all causes of action.
67.
As a result of Defendants' statutory and constitutional violations, Plaintiff has suffered
serious and substantial damages and injuries, including but not limited:
a. Past, present, and future medical expenses;
b. Past, present, and future physical impairment;
C. Past, present, and future physical pain and suffering;
d. Past, present, and future emotional distress and mental anguish;
e. Physical disfigurement; and
f. Past, present, and future loss of earning capacity.
68.
Defendants are jointly and severally liable for Plaintiff's damages.
69.
Plaintiff seeks punitive damages against Defendant An for the actions described above.
IX.
ATTORNEY'S FEES AND COSTS
70.
Pursuant to the Civil Rights Attorney's Fees Award Act, 42 U.S.C. § 1988, Plaintiff asserts
the right to an award of attorney's fees and costs under its 42 U.S.C. § 1983 pleadings if he prevails.
X.
RELIEF REQUESTED
71.
The preceding factual statements and allegations are incorporated by reference.
72.
For these reasons, Plaintiff prays for judgment against Defendants, any or all of them, for
the following:
a.
Actual damages;
Plaintiff's First Amended Complaint
Page 15 of 17
csse11222e0V002221RRP DDocument2301 Paggel 16600 f1177
b.
Pre-judgment and post-judgment interest;
c.
Statutory attorney's fees and expenses;
d.
Punitive and exemplary damages against the individual Defendant in an
amount to be determined and as allowed by the Court;
e.
Costs of court; and
f.
Such other and further relief as the Court deems just and equitable.
XI.
JURY DEMAND
73.
Plaintiff respectfully demands trial by jury and has tendered the appropriate fee for the
same.
XII. PRAYER
Plaintiff respectfully requests Defendants to be cited to appear and answer herein, and that
upon final trial hereof, the Court award the relief sought against Defendants.
Respectfully submitted,
By: /s/ Myles Lenz
Ramez F. Shamieh
Texas State Bar No. 24066683
ramez@shamiehlaw.com
Myles Lenz
Texas State Bar No. 24092685
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
214.389.7333 telephone
214.389.7335 facsimile
ATTORNEYS FOR PLAINTIFF
Plaintiff's First Amended Complaint
Page 16 of 17
casse11222E0V002221RRP DDocument2391 PRage17706f117
CERTIFICATE OF SERVICE
I do hereby certify that on January 30, 2023, a true and correct copy of the above and
foregoing document has been forwarded electronically to all counsel of record through
CM/ECF.
/s/ Myles A. Lenz
Myles A. Lenz
Plaintiff's First Amended Complaint
Page 17 of 17
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-00221-RP
§
CITY OF AUSTIN AND KYU AN,
§
Defendants.
§
DEFENDANT KYU AN'S ORIGINAL ANSWER TO
PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COMES NOW Defendant, Kyu An, by and through his attorneys of record, and files this
his Original Answer to Plaintiff's First Amended Complaint and in support thereof would
respectfully show the Court as follows:
I.
INTRODUCTION
1.
Between May 25 and July 31 of 2020, approximately 2,037 law enforcement officers were
injured during protests related to the in-custody death of George Floyd in Minnesota. 1 During those
protests, approximately 62% of major U.S. cities experienced looting. 2 56% of major U.S. cities
experienced arson incidents-a statistic which does not include the 97 police vehicles set on fire
during that time period, which was an act of violence reported by over 26% of major city law
1
Report on the 2020 Protests & Civil Unrest, Major Cities Chiefs Association 9-12 (October
2020), ,https://majorcitieschiefs.com/wp-content/uploads/2021/01/MCCA-Report-on-the-2020-
Protest-and-Civil-Unrest.pdf.
2 Id.
Defendant Kyu An's Answer to First Amended Complaint
Page 1
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 2 of 11
enforcement agencies nationwide.³ Approximately 72% of major city law enforcement agencies
reported officer injuries. 4
2.
State and local governments in 21 different U.S. states were forced to call up the U.S.
National Guard to defend persons and property from violent rioters. 5 Property Claims Services
designated the riots as a "multi-state catastrophe event," which is the first such designation for a
civil disorder event since 1992. 6 Conservative insurance estimates of property damage caused
during the riots exceeds $1 billion dollars-the "costliest civil disorder in U.S. history."
3.
The weapons used by the "protest" rioters nationwide varied. The most common weapons
used "were improvised or weapons of opportunity such as rocks, bricks, pieces of landscape, and
bottles (including frozen and glass bottles). ",8 Over three quarters of major city law enforcement
agencies reported rioters using such weapons. 9 "Another common violent
tactic
used
by
protestors
involved throwing 'Molotov cocktails' at officers," which was reported by a staggering 46% of
major city law enforcement agencies nationwide. 10 "Another common tactic was to use peaceful
protesters as human shields while violent individuals attacked officers and attempted to incite
violence by throwing objects from deep within crowds."ll
4.
63% of agencies reported incendiary fireworks thrown or launched at officers. 12 51% of
agencies reported officers being confronted by protestors wielding firearms-including "AR-15s,
3 Id.
4 Id.
5 Facts + Statistics: Civil Disorders, Insurance Information Institute, https://www.iii.org/fact-
statistic/facts-statistics-civil-disorders.
6 Id.
7 Id.
8
Report on the 2020 Protests & Civil Unrest at 11.
9 Id.
10 Id.
11 Id.
12 Id. at 11 - 12.
Defendant Kyu An's Answer to First Amended Complaint
Page 2
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 3 of 11
shotguns, and handguns.' "13 Other weapons wielded by protestors commonly included bats,
hammers, metal poles, and shields. 14 Five different agencies reported "police officers being shot
or critically injured" during the riots, one agency reported rioters discharging their firearms from
moving vehicles, and at least two agencies "reported protestors being shot and killed by other
protestors." 5
5.
It is undisputed that many protestors committed no violence whatsoever during the protests.
It is equally undisputed that a significant number of protestors did commit violent acts during the
protests. When a previously peaceful protest suddenly includes persons who are carrying deadly
weapons, injuring police officers, throwing Molotov cocktails, looting buildings, and setting cars
on fire, the protest is no longer a protest. It is a riot.
6.
Austin was by no means immune to the violence. Rioters looted buildings and businesses;
shattered windows-including buildings with important historical significance; set cars and other
property on fire; broke open an ATM; and defaced the Capitol grounds and numerous other
properties. 16 Rioters in Austin also launched or threw items that included-but were not limited
to "rocks, bricks, eggs, water bottles, and Molotov cocktails" at Austin Police Department
officers.17 Starting on May 30, the Austin Police Department was forced to issue a "citywide
request for assistance, which means all Austin officers [were] asked to report to duty. "18 DPS sent
13 Id.
14 Id.
15
Id.
16
See e.g. Ken Herman, Herman: A sad Sunday morning on Sixth Street, AUSTIN AMERICAN
STATESMAN (May 31, 2020, 1:38 PM), https://www.statesman.com/news/20200531/herman-sad-
sunday-morning-on-sixth-street.
17 Heather Osborne, Ariana Garcia & Katie Hall, Fires set as Austin protests against police
violence spread, scatter, AUSTIN AMERICAN STATESMAN (May 30, 2020, 11:07 AM),
htps://www.statesman.com/news/20200530/fires-set-as-austin-protests-against-police-violence-
spread-scatter.
18 Id.
Defendant Kyu An's Answer to First Amended Complaint
Page 3
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 4 of 11
"more than 1,500 officers to assist local police departments" statewide, and the governor ultimately
"activated the Texas National Guard."19 By the time of the incident underlying this lawsuit, the
Austin protests were no longer protests-they were riots. It is thus within the context of an ongoing
riot that the force used by APD officers must be analyzed.
7.
On May 30, APD Officer Kyu An personally observed rioters throwing projectiles at APD
officers that included but were not limited to rocks, glass bottles, fluid-filled water bottles, and
large fireworks. Officer An himself suffered a serious burn to his neck as a result of one such
rioter's attack using an "artillery shell" style pyrotechnic explosive device, and was also struck by
several other types of rioter-thrown projectiles that day.
8.
APD Officer Kyu An was one of the APD officers tasked with policing the protests and
riots to protect the citizens of Austin and the city itself on the day in question. APD officers on the
scene had reason to believe that the protests would turn violent or even deadly-including the
knowledge that rioters had burned a police precinct to the ground in a related "protest" two days
earlier.20 By the time Officer An arrived, protestors had physically taken over and blocked
Interstate 35, creating a potentially deadly situation for themselves as well as oncoming drivers
travelling on the highway.
9.
Plaintiff Barton's conduct on May 30, 2020 crossed the line of peaceful protest-including
violent acts that intentionally and directly threatened the health and safety of officers on the scene.
Plaintiff's violent acts far exceeded anything that would be protected by the First Amendment.
19 Id.
20 See e.g. Sarah Kerr, Mike Shum, Katie G. Nelson, Dmitry Khavin & Haley Willis,
Minneapolis Precinct Fire: How a Night of Chaos Unfolded, N.Y. TIMES (May 29, 2020),
https://www.nytimes.com/video/us/100000007162707/minneapolis-police-protest-
burn.html?searchResultPosition=1.
Defendant Kyu An's Answer to First Amended Complaint
Page 4
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 5 of 11
10.
Over the course of the protest-turned-riot, Officer An never purposefully impacted any
person who was not either actively committing a violent act, or was obviously preparing to
imminently commit a violent act. Officer An never aimed his weapon at any rioter's head, neck,
or face. At all times, Officer An acted pursuant to his training and accepted police procedures.
Officer An's conduct as a law enforcement officer was reasonable, especially when the requisite
consideration is given to his surrounding circumstances that were "tense, uncertain, and rapidly
evolving." 21 He is entitled to the protections of Qualified Immunity as a result.
II.
ORIGINAL ANSWER
A. Nature of the Case.
11.
Defendant admits that Plaintiff is seeking relief under the First and Fourth Amendments of
the Constitution contained within Paragraph 1 of Plaintiff's First Amended Complaint. Otherwise,
denied.
12.
Defendant admits that Plaintiff is seeking relief pursuant to 42 USC § 1983 and
constitutional provisions within Paragraph 2 of Plaintiff's First Amended Complaint. Otherwise,
denied.
13.
Defendant admits that Plaintiff is asserting a Monell claim against the City of Austin within
Paragraph 3 of Plaintiff's First Amended Complaint. Otherwise, denied.
B. Parties.
14.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraph 4 of Plaintiff's First Amended Complaint.
21 See Graham V. Connor, 490 U.S. 386, 397 (1989).
Defendant Kyu An's Answer to First Amended Complaint
Page 5
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 6 of 11
15.
As to the allegations contained within Paragraph 5 of Plaintiff's First Amended Complaint,
Defendant denies that any APD officer may be validly served at 715 E. 8th Street, Austin Texas
78701 through means other than personal service of process. Defendant otherwise admits the
remaining allegations therein.
16.
Defendant admits the allegations contained within Paragraph 6 of Plaintiff's First Amended
Complaint.
C. Jurisdiction and Venue.
17.
Defendant admits the allegations contained within Paragraphs 7 - 8 of Plaintiff's First
Amended Complaint.
D. Conditions Precedent.
18.
Defendant lacks sufficient knowledge to be able to form a belief as to the truth of the
allegations contained in Paragraph 9 of Plaintiff's First Amended Complaint and therefore denies
the same.
E. Factual Background.
19.
As it pertains to the allegations contained in Paragraph 10 of Plaintiff's First Amended
Complaint, Defendant admits that the Austin Police Department responded to and provided law
enforcement support for large crowds of people gathered on May 30, 2020. Otherwise, denied.
20.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraph 11 of Plaintiff's First Amended Complaint.
21.
As to the allegations contained within Paragraph 12 of Plaintiff's First Amended
Complaint, Defendant is without sufficient knowledge to form a belief as to the truth of the
allegations as it pertains to what other APD officers were wearing when Plaintiff and his
companions arrived.
Defendant Kyu An's Answer to First Amended Complaint
Page 6
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 7 of 11
22.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraphs 13 - 18 of Plaintiff's First Amended Complaint as written, and
therefore denies the same.
23.
As to the allegations contained within Paragraphs 19 - 21 of Plaintiff's First Amended
Complaint, Defendant admits that he discharged his bean bag shotgun at an individual who was
observed and identified as a person who was actively throwing projectiles at police officers, and
that such person may have been Plaintiff. Defendant further admits that he aimed his bean bag
shotgun at the rioter's waist and discharged his weapon three times in quick succession in
conformance with his training. Defendant is without sufficient knowledge to form a belief as to
the truth of the remaining allegations contained therein, and therefore denies the same.
24.
As to the allegations contained within Paragraphs 22 - 26 of Plaintiff's First Amended
Complaint, Defendant is without sufficient knowledge to form a belief as to the truth of the
allegations contained therein, and therefore denies the same.
25.
As to the allegations contained within Paragraphs 27 - 28 of Plaintiff's First Amended
Complaint, Defendant admits that the Travis County District Attorney issued 19 indictments to
APD officers, including to Defendant. The indictments and the cited news article related to the
indictments speak for themselves. Defendant is without sufficient knowledge to form a belief as
to the truth of whether District Attorney Garza made any attempts to prosecute projectile-throwing
rioters or those who may have enabled them. Defendant denies the remaining allegations and
characterizations in Paragraphs 27 - 28 of Plaintiff's First Amended Complaint.
F. Causes of Action.
i.
§1983 - Excessive-Force Claims against Kyu An in his Individual Capacity.
Defendant Kyu An's Answer to First Amended Complaint
Page 7
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 8 of 11
26.
As to the allegations contained in Paragraph 29, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
27.
As to the allegations contained in Paragraphs 30 - 39 of Plaintiff's First Amended
Complaint, Defendant admits that he was acting under the color of law during the protests and
riots that form the backdrop of this lawsuit. No response from this Defendant is necessary
regarding what the law allegedly is as it relates to the claims alleged. Otherwise, denied.
ii.
$1983 - First Amendment Retaliation Claims Against Kyu An in his
Individual Capacity.
28.
As to the allegations contained in Paragraph 40, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
29.
As to the allegations contained in Paragraphs 41 - 45 of Plaintiff's First Amended
Complaint, no response from this Defendant is necessary regarding what the law allegedly is as it
relates to the claims alleged. Otherwise, denied.
iii.
Qualified Immunity Under § 1983.
30.
As to the allegations contained in Paragraph 46, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
31.
As to the allegations contained within Paragraphs 47 - 54 of Plaintiff's First Amended
Complaint, no response from this Defendant is necessary regarding what the law allegedly is as it
relates to the claims alleged. Defendant specifically denies that Barton and those around him posed
no immediate threat to officers, and denies that Barton was not disobeying a lawful command,
and/or was not suspected of a crime. Defendant denies the remaining allegations and
characterizations therein.
iv.
Governmental Liability Under 42 U.S.C. $1983 (Monell) and the First and
Fourth Amendment to the U.S. Constitution applied through the Fourteenth
Amendment.
Defendant Kyu An's Answer to First Amended Complaint
Page 8
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 9 of 11
32.
As to the allegations contained in Paragraph 55, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
33.
As to the allegations contained in Paragraphs 56 - 65, no answer is necessary from this
Defendant. To the extent any answer is deemed necessary, Defendant denies the allegations
therein.
V.
Damages, Relief Requested, Jury Demand, & Prayer.
34.
As to the allegations contained in Paragraphs 66 - 73, no answer is necessary from this
Defendant. To the extent any answer is deemed necessary, Defendant admits that Plaintiff seeks
the relief requested therein, but denies that any of his own alleged conduct at issue amounted to an
injustice of any kind.
III.
AFFIRMATIVE DEFENSES & IMMUNITIES
35.
Defendant denies any deprivation under color of statute, ordinance, custom, or abuses of
any rights, privileges, or immunities secured to the decedent by the United States Constitution,
state law, or 42 U.S.C. § 1983, et seq.
36.
Defendant hereby invokes the doctrine of Qualified Immunity and Official Immunity.
Defendant discharged his obligations and public duties in good faith and would show that his
actions were objectively reasonable in light of the law and the information possessed at that time,
and that no clearly established law exists prohibiting him from using force to defend himself and/or
other persons from an active or imminent assault with a potentially deadly weapon or projectile,
whether during a riot or otherwise.
37.
Further and in the alternative, the incident in question and the resulting harm to Plaintiff
were caused or contributed to by another persons' own illegal and/or violent or reckless conduct,
Defendant Kyu An's Answer to First Amended Complaint
Page 9
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 10 of 11
including but not limited to the conduct of Plaintiff himself. To the extent legally applicable herein,
Defendant invokes the comparative responsibility provisions of the Texas Civil Practice &
Remedies Code. 22
38.
Defendant further pleads that, in the unlikely event he is found to be liable, such liability
be reduced by the percentage of the causation found to have resulted from the acts or omissions of
other persons.
39.
Defendant pleads that he had legal justification for each and every action taken by him
relating to this incident.
40.
Defendant asserts the limitations and protections of Chapter 41 of the Texas Civil Practice
& Remedies Code, and the due process clause of the United States Constitution.
41.
Defendant asserts the limitations and protections of Chapter 101 of the Texas Civil Practice
& Remedies Code.
42.
Defendant reserves the right to assert additional affirmative defenses throughout the
development of this case.
43.
To the extent Defendant did not address a specific averment made by Plaintiff in her First
Amended Complaint, Defendant expressly denies all such averments.
IV.
JURY DEMAND
44.
Pursuant to Federal Rule of Civil Procedure 48, Defendant hereby requests a jury trial.
V.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendant Kyu An prays that upon a final
hearing of this cause, the Court dismiss all of Plaintiff's claims with prejudice, that all costs of
22 See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendant Kyu An's Answer to First Amended Complaint
Page 10
Case 1:22-cv-00221-RP Document 31 Filed 02/14/23 Page 11 of 11
court be assessed against Plaintiff, that he be awarded attorney fees incurred in the defense of this
suit, and for all further relief to which he may be justly entitled.
Respectfully submitted,
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By:
/s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANT
KYU AN
CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of February, 2023, a true and correct copy of the
foregoing document was caused to be served upon all counsel of record via E-File/E-Service/E-
Mail and/or Regular U.S. Mail, in accordance with the Federal Rules of Civil Procedure, as
follows:
Ramez F. Shamieh
ramez@shamiehlaw.com
Myles Lenz
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
Daniel R. Richards
drichards@rrsfirm.com
Clark Richards
crichards@rrsfirm.com
RICHARDS RODRIGUEZ & SKEITH, LLP
816 Congress Avenue, Suite 1200
Austin, Texas 78701
/s/ Blair J. Leake
Blair J. Leake
Defendant Kyu An's Answer to First Amended Complaint
Page 11
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON
§
Plaintiff
§
§
V.
§
CIVIL ACTION No. 1:22-CV-00221-RP
§
CITY OF AUSTIN AND KYU AN
§
Defendants
§
§
§
DEFENDANT CITY OF AUSTIN'S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE HONORABLE JUDGE ROBERT PITMAN:
Defendant City of Austin ("the City") files this Answer and Affirmative Defenses to
Plaintiff's First Amended Complaint (Doc. No. 30). Pursuant to Rules 8 and 12 of the Federal
Rules of Civil Procedure, the City respectfully shows the Court the following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), the City responds to each of the specific
averments in Plaintiffs' First Amended Complaint as set forth below. To the extent that the City
does not address a specific averment made by Plaintiffs, the City expressly denies that averment. 1
NATURE OF THE CASE
1.
The City admits that Plaintiff is seeking relief under the First and Fourth Amendments of
the Constitution. The City denies the remaining allegations contained in Paragraph 1.
2.
The City admits that Plaintiff is seeking relief pursuant to 42 USC § 1983 and constitutional
provisions but denies that Plaintiff is entitled to such relief.
1 Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiffs' First Amended Complaint.
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 2 of 12
3.
The City admits that Plaintiff is asserting a Monell claim against the City but denies the
remaining allegations contained in Paragraph 3.
PARTIES
4.
Upon information and belief, the City admits the allegations contained in Paragraph 4.
5.
The City denies that any APD officer can be served at 715 E. 8th Street, Austin Texas 78701
but admits the remaining allegations contained in Paragraph 5.
6.
The City admits the allegations contained in Paragraph 6.
JURISDICTION
7.
The City admits the allegations contained in Paragraph 7.
VENUE
8.
The City admits the allegations in Paragraph 8.
CONDITIONS PRECEDENT
9.
The City is without information sufficient to admit or deny the allegations in Paragraph 9.
FACTUAL BACKGROUND
10.
The City admits that the Austin Police responded and to and provided law enforcement
support for large crowds of people gathered on May 30, 2020. The City denies the
remaining allegations contained in Paragraph 10.
11.
The City admits that on May 30, 2020, Plaintiff was in downtown Austin. Otherwise, the
City lacks sufficient information to admit or deny the remainder of the allegations of
Paragraph 11.
12.
The City lacks sufficient information to admit or deny the allegations contained in
Paragraph 12.
Page 2 of 12
Case 1:22-cv-00221-RP
Document 33
Filed
02/15/23
Page
3
of
12
13.
The City lacks sufficient information to admit or deny the allegations contained in
Paragraph 13.
14.
The City admits police use of force included OC Spray in response to violence and threats
of violence by large crowds gathered on May 30, 2020. The City lacks sufficient
information to admit or deny the remaining allegations in Paragraph 14.
15.
The City lacks sufficient information to admit or deny the allegations contained in
Paragraph 15.
16.
The City admits that there were large crowds of people gathering at or near the Capitol
Complex on May 30, 2020. The City further admits police use of force included OC Spray
in response to violence and threats of violence by large crowds gathered. The City denies
the remaining allegations in Paragraph 16.
17.
The City admits that there were large crowds of people gathering at or near Austin Police
Headquarters on May 30, 2020.
18.
The City admits police use of force included OC Spray in response to violence and threats
of violence by large crowds gathered on May 30, 2020. The City lacks sufficient
information to admit or deny the remaining allegations in Paragraph 18.
19.
In response to Paragraph 19, the City admits that there were large crowds of people
gathered and walking in the traffic lanes of Interstate Highway 35 ("IH 35"). The City
admits that video recordings, the contents of which speak for themselves, show Plaintiff
on IH 35, including on the concrete median. Otherwise, denied.
20.
In response to Paragraph 20, the City admits that video recordings, the contents of which
speak for themselves, show Plaintiff, Officer Kyu An, and other officers on IH 35.
Otherwise denied.
Page 3 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 4 of 12
21.
In response to Paragraph 21, the City admits that video recordings, the contents of which
speak for themselves, show Plaintiff and Officer Kyu An on IH 35. The City admits that
Officer Kyu An discharged his beanbag shotgun resulting in Plaintiff being struck by one
or more beanbag rounds. The City lacks sufficient information to admit or deny the
remainder of the allegations in Paragraph 21.
22.
The City lacks sufficient information to admit or deny the allegations in Paragraph 22.
23.
The City lacks sufficient information to admit or deny the allegations in Paragraph 23.
24.
The City denies the allegation of police brutality in paragraph 24. Otherwise, the City lacks
sufficient information to admit or deny the allegations in Paragraph 24.
25.
The City lacks sufficient information to admit or deny the allegations contained in
Paragraph 25.
26.
The City lacks sufficient information to admit or deny the allegations contained in
Paragraph 26.
27.
In response to Paragraph 27, the City admits that Officer Kyu An and other officers have
been indicted and that the indictments speak for themselves. The City denies the allegation
of police brutality. Otherwise, the City lacks sufficient information to admit or deny the
allegations contained in Paragraph 27.
28.
In response to Paragraph 28, the City states that Plaintiff was unlawfully blocking traffic
lanes on IH 35 and therefore denies that he was peacefully protesting. The City admits that
Plaintiff was not arrested or charged with a crime for any events of May 30, 2020.
Otherwise, the City lacks sufficient information to admit or deny the allegations of
Paragraph 28.
Page 4 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 5 of 12
CAUSES OF ACTION
29.
Paragraph 29 does not allege facts and does not require a response.
30.
The allegations contained in Paragraph 30 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 30.
31.
The allegations contained in Paragraph 31 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 31.
32.
Paragraph 32 contains a restatement of the legal requirements needed to assert a cause of
action for excessive force and for that reason does not require a response.
33.
Paragraph 33 contains a legal conclusion and further does not appear to be directed to the
City. To the extent a response is required, the City denies the allegations in Paragraph 33.
34.
The allegations contained in Paragraph 34 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 34.
35.
The allegations contained in Paragraph 35 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 35. Upon information and belief, the City admits
that Plaintiff was not arrested or charged with any crimes related to the May 30, 2020,
protest.
36.
Paragraph 36 does not appear to be primarily directed to the City. The City admits that
police use of beanbag shotgun rounds in response to violence and threats of violence by
large crowds at the May 30, 2020, protests resulted in Plaintiff being struck with beanbag
Page 5 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 6 of 12
round. Otherwise, the City lacks information sufficient to admit or deny the remainder of
the allegations in Paragraph 36.
37.
Paragraph 37 contains a legal conclusion and further does not appear to be directed at the
City. If a response is required of the City, the City denies the allegations contained within
Paragraph 37.
38.
The allegations contained in Paragraph 38 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 38.
39.
The allegations contained in Paragraph 39 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 39.
40.
Paragraph 40 does not allege facts and does not require a response.
41.
Paragraph 41 contains a restatement of the legal requirements needed to assert a cause of
action for retaliation and for that reason does not require a response.
42.
The allegations contained in Paragraph 42 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City admits that
Plaintiff was present in the crowd of people assembled in and near the downtown areas on
May 30, 2020, it is without sufficient information to admit or deny what rights if any
Plaintiff purported to exercise on May 30, 2020. The City states that Plaintiff was
unlawfully blocking traffic lanes on IH 35 and therefore denies that he was engaged in
peaceable assembly.
Page 6 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 7 of 12
43.
The allegations contained in Paragraph 43 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 43.
44.
The allegations contained in Paragraph 44 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City admits that
it does not have any information indicating that Plaintiff was in possession of a weapon or
that he was arrested or charged with any crime on May 30, 2020. The City denies the
remaining allegations contained within Paragraph 44. The City states that Plaintiff was
unlawfully blocking traffic lanes on IH 35 and therefore denies that he was engaged in
peaceful protest.
45.
The allegations contained in Paragraph 45 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 45.
46.
Paragraph 46 does not allege facts and does not require a response.
47.
Paragraph 47 is a restatement of the law related to qualified immunity and any allegations
contained within that legal restatement do not appear to be directed at the City. To the
extent a response is required, the City admits Officer Kyu An was carrying out a
governmental function and denies the remainder of the allegations of Paragraph 47.
48.
Paragraph 48 contains a reference to Fifth Circuit case related to qualified immunity and
legal requirements. The case speaks for itself and beyond that does not require a response.
49.
Paragraph 49 contains a reference to and quote from Fifth Circuit case involving the use of
tasers. The case speaks for itself and beyond that does not require a response.
Page 7 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 8 of 12
50.
Paragraph 50 contains a reference to a Fifth Circuit case involving an arrestee. As such, it
does not require a response from the City.
51.
Paragraph 51 is a legal conclusion. To the extent a response is warranted, the City denies
allegations of paragraph 51.
52.
Paragraph 52 does not appear to be directed to the City. To the extent a response is required,
other than the fact that Plaintiff was in a large crowd of people unlawfully blocking traffic
lanes on IH 35 and that the crowd included people who were engaged in violent or
otherwise threatening or unlawful behavior, the City admits that it does not have any
information indicating that Plaintiff was guilty of any criminal conduct on May 30, 2020.
Otherwise, the City lacks sufficient information to admit or deny the allegations in
Paragraph 52.
53.
The allegations contained in Paragraph 53 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 53.
54.
The allegations contained in Paragraph 54 do not appear to be addressed to the City and
therefore no response is required. If a response is required of the City, the City denies the
allegations contained within Paragraph 54.
55.
Paragraph 55 does not allege facts and does not require a response.
56.
Paragraph 56 is a policy statement behind the cause of action and does not contain factual
allegations for the City to admit or deny. The City denies that it is liable for any
constitutional violations as described.
57.
Paragraph 57 is a statement of the legal elements for a Monell claim and does not contain
Page 8 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 9 of 12
allegations that require the City to admit or deny. To the extent the cited elements contain
factual allegations or references against the City, the City denies Paragraph 57.
58.
The City admits that on May 30, 2020, Kyu An was employed by the City of Austin as a
full-time and licensed police officer. The City admits it provided Officer An with City-
issued equipment applicable to full-time officers for the City of Austin.
59.
The City admits that Officer Kyu An was employed as a peace officer on May 30, 2022,
and was on duty on May 30, 2020, as a City of Austin police officer. The City denies the
remaining allegations contained in Paragraph 59.
60.
The City denies the allegations contained in Paragraph 60.
61.
The City admits that former Chief Brian Manley served as a law enforcement policy maker,
including policy maker for law enforcement training, during the May 2020 protests. The
City denies the remaining allegations in Paragraph 61.
62.
The City admits that multiple individuals have filed lawsuits alleging excessive force
related to the May 2020 protests and other incidents. Otherwise the City denies the
allegations of Paragraph 62.
63.
The City admits that the Travis County District Attorney issued indictments to APD
officers, including Officer Kyu An and that the indictments speak for themselves. The City
denies the remaining allegations in Paragraph 63.
64.
The City denies the allegations in Paragraph 64.
65.
Per Texas state law, the disciplinary process for an officer remains open regarding the
allegations in this lawsuit. The disciplinary process is deferred until 30 days after the
conclusion of the related criminal process. Otherwise, the City denies the allegations in
Paragraph 65.
Page 9 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 10 of 12
DAMAGES
66.
Paragraph 66 does not allege facts and does not require a response.
67.
The City denies the allegations contained in Paragraph 67 and denies Plaintiff is entitled to
the relief requested in Paragraph 67 a-f.
68.
The City denies the allegations contained in Paragraph 68.
69.
The City admits Plaintiff seeks punitive damages against Defendant but denies that
Plaintiff is entitled to such relief.
ATTORNEY'S FEES AND COSTS
70.
The City admits that Plaintiff seeks an award of attorney's fees and expenses under 42
U.S.C. § 1988 but denies that Plaintiff is entitled to such relief.
RELIEF REQUESTED
71.
Paragraph 71 does not allege facts and does not require a response.
72.
The City denies liability for the damages sought in Paragraph 72 and denies Plaintiff is
entitled to the relief requested in subparagraphs a-f.
JURY DEMAND
73.
Paragraph 73 is a request for a trial by jury and does not contain allegations that require
the City to admit or deny.
AFFIRMATIVE DEFENSES
74.
Defendant City of Austin asserts the affirmative defense of governmental immunity as a
municipal corporation entitled to immunity while acting in the performance of its
governmental functions, absent express waiver.
Page 10 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 11 of 12
75.
Defendant City of Austin asserts the affirmative defense of governmental immunity since
its employees are entitled to qualified/official immunity for actions taken in the course and
scope of their employment, absent express waiver.
76.
As a political subdivision, Defendant City of Austin denies that it can be liable for
exemplary/punitive damages under 42 U.S.C. § 1983.
77.
Defendant reserves the right to assert additional affirmative defenses throughout the
development of the case.
DEFENDANT'S PRAYER
Defendant City of Austin prays that all relief requested by Plaintiff be denied, that the Court
dismiss this case with prejudice, and that the Court award Defendant costs and attorney's fees, and
any additional relief to which it is entitled under law or equity.
Respectfully submitted,
/s/ Daniel R. Richards
Daniel R. Richards
State Bar No. 00791520
drichards@rrsfirm.com
Clark Richards
State Bar No. 90001613
crichards@rrsfirm.com
RICHARDS RODRIGUEZ & SKEITH, LLP
816 Congress Avenue, Suite 1200
Austin, Texas 78701
Telephone: (512) 476-0005
Facsimile: (512) 476-1513
ATTORNEYS FOR THE CITY OF AUSTIN
Page 11 of 12
Case 1:22-cv-00221-RP Document 33 Filed 02/15/23 Page 12 of 12
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 15, 2023, a true and correct copy of the foregoing
document was served via email to the following:
Ramez F. Shamieh
Blair J. Leake
Myles Lenz
Stephen B. Barron
Shamieh Law PLLC
Stephen Barron
1111 W. Mockingbird, Suite 1160
Wright & Greenhill, PC
Dallas, TX 75247
900 Congress Avenue, Suite 500
Tel: (214) 389-7333
Austin, Texas 78701
Fax: (214) 389-7335
Direct: (512) 708-5328
ramez@shamiehlaw.com
bleake@w-g.com
myles@shamiehlaw.com
sbarron@w-g.com
/s/ Daniel R. Richards
DANIEL R. RICHARDS
Page 12 of 12
Case 1:22-cv-00221-RP Document 38 Filed 08/03/23 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANIBARTON
§
Plaintiff
§
§
V.
§
CIVIL ACTION No. 1:22-CV-00221-RP
§
CITY OF AUSTIN AND KYU AN
§
Defendants
§
§
§
JOINT STIPULATION OF DISMISSAL WITH PREJUDICE
Now come, through undersigned counsel, Plaintiff, Bomani Barton and Defendants, The
City of Austin and Kyu An (hereinafter referred to as "Parties"), and pursuant to Fed. R. Civ. P.
41(a)(1)(A)(ii), file this Joint Stipulation of Dismissal with Prejudice as follows:
The parties have resolved all matters in dispute by agreement. The parties agree that this
suit is dismissed with prejudice to the refiling of the claims made herein. The parties agree that
each party shall bear their own attorney's fees and costs of court.
Respectfully submitted,
By: /s/ Myles Lenz
Ramez F. Shamieh
Texas State Bar No. 24066683
ramez@shamiehlaw.com
Myles Lenz
Texas State Bar No. 24092685
myles@shamiehlaw.com
SHAMIEH LAW, PLLC
1111 West Mockingbird Lane, Suite 1160
Dallas, Texas 75247
214.389.7333 telephone
214.389.7335 facsimile
ATTORNEY FOR PLAINTIFF
BOMANI BARTON
Case 1:22-cv-00221-RP Document 38 Filed 08/03/23 Page 2 of 3
WRIGHT & GREENHILL, P.C.
4700 Mueller Blvd., Suite 200
Austin, Texas 78723
(512) 476-4600
(512) 476-5382 - Fax
By: /s/ Blair J. Leake
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANT KYU AN
By: /s/ Daniel R. Richards
Daniel R. Richards
State Bar No. 00791520
drichards@rrsfirm.com
Clark Richards
State Bar No. 90001613
crichards@rrsfirm.com
RICHARDS RODRIGUEZ & SKEITH, LLP
611 West 15th
Austin, Texas 78701
Telephone: (512) 476-0005
Facsimile: (512) 476-1513
ATTORNEYS FOR THE CITY OF AUSTIN
2
Case 1:22-cv-00221-RP Document 38 Filed 08/03/23 Page 3 of 3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 3, 2023, a true and correct copy of the foregoing
document was served via email to the following:
Ramez F. Shamieh
Blair J. Leake
Myles Lenz
Stephen B. Barron
Shamieh Law PLLC
Stephen Barron
1111 W. Mockingbird, Suite 1160
Wright & Greenhill, PC
Dallas, TX 75247
900 Congress Avenue, Suite 500
Tel: (214) 389-7333
Austin, Texas 78701
Fax: (214) 389-7335
Direct: (512) 708-5328
ramez@shamiehlaw.com
bleake@w-g.com
myles@shamiehlaw.com
sbarron@w-g.com
/s/ Daniel R. Richards
DANIEL R. RICHARDS
3
Case 1:22-cv-00221-RP Document 39 Filed 08/04/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BOMANI BARTON,
§
§
Plaintiff,
§
§
V.
§
1:22-cv-221-RP
§
CITY OF AUSTIN and KYU AN,
§
§
Defendants.
§
ORDER
On August 3, 2023, the parties dismissed all claims in this case with prejudice by joint
stipulation of dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). (Dkt. 38).
"Stipulated dismissals under Rule 41(a)(1)(A)(ii)
require no judicial action or approval and are
effective automatically upon filing." Yesh Music V. Lakewood Church, 727 F.3d 356, 362 (5th Cir. 2013).
As nothing remains to resolve, IT IS ORDERED that the case is CLOSED.
SIGNED on August 4, 2023.
Room
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE