Johnson Vs. The City of Austin; Brandon Salter; Samuel Noble; Katherine Alzola

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JAMES EDWARD JOHNSON,
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Plaintiff,
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V.
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CAUSE OF ACTION NO.
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1:22-cv-1050
BRANDON SALTER, SAMUEL NOBLE,
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and KATHERINE ALZOLA, in their
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individual capacities, and the CITY OF
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AUSTIN, TEXAS;
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Defendants.
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PLAINTIFF'S COMPLAINT
Plaintiff James Edward Johnson brings this 42 U.S.C. § 1983 case against Defendants
Brandon Salter, Samuel Noble, and Katherine Alzola, officers of the Austin Police Department,
because they used brutal excessive force against him, and against Defendant City of Austin for its
practices that enabled and directly caused such brutal and excessive force to be employed.
I. PARTIES
1.
Plaintiff James Edward Johnson is a resident of Austin, Texas.
2.
Defendant Brandon Salter was at all relevant times a police officer with the Austin Police
Department, and is sued in his individual capacity for compensatory and punitive damages. At all
relevant times, Salter was acting under color of law as an Austin Police Department officer. Salter
may be served with process at 715 E. 8th Street, Austin, Texas, 78701.
3.
Defendant Samuel Noble was at all relevant times a police officer with the Austin Police
Department, and is sued in his individual capacity for compensatory and punitive damages. At all
relevant times, Noble was acting under color of law as an Austin Police Department officer. Noble
may be served with process at 715 E. 8th Street, Austin, Texas, 78701.
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4.
Defendant Katherine Alzola was at all relevant times a police officer with the Austin Police
Department, and is sued in her individual capacity for compensatory and punitive damages. At all
relevant times, Alzola was acting under color of law as an Austin Police Department officer. Alzola
may be served with process at 715 E. 8th Street, Austin, Texas, 78701.
5.
Defendant City of Austin is a municipality that operates the Austin Police Department and
employed Salter, Noble, and Alzola at all relevant times. The City's policymaker for policing
matters at the time of the incident was Interim Police Chief Joseph Chacon, who is now the Police
Chief. The City may be served with process through its City Manager at 301 W. 2nd Street, Austin,
TX 78701.
II. JURISDICTION AND VENUE
6.
As this case is brought pursuant to 42 U.S.C. § 1983, this Court has federal question subject
matter jurisdiction pursuant to 28 U.S.C. § 1331.
7. This Court has general personal jurisdiction over Defendants as they are located in or reside
in Travis County, Texas.
8.
This Court has specific in personam jurisdiction over Defendants because this case arises
out of conduct by Defendants which occurred in Travis County, Texas, which is within the Western
District of Texas.
9.
Venue of this cause is proper in the Western District pursuant to 28 U.S.C. § 1391(b)
because a substantial portion of the events or omissions giving rise to Plaintiff's claims occurred
in Travis County, which is within the Western District of Texas.
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III. FACTS
A. SALTER BEAT JOHNSON AND NOBLE ELECTROCUTED JOHNSON WITHOUT JUSTIFICATION
WHILE ALZOLA STOOD BY AND DID NOT STOP THEM.
10. Shortly after midnight on August 22, 2021, Plaintiff James Edward Johnson, who suffers
from chronic mental illness, experienced a mental health crisis, SO a loved one called 911 to get
him mental health care.
11. Instead of sending trained mental health officers, the Austin Police Department dispatched
officers Brandon Salter, Samuel Noble, and Katherine Alzola to Johnson's home.
12. Noble had encountered Johnson before, knew that he was not dangerous, and knew that
Johnson suffered from chronic mental illness.
13. Noble communicated this information to Salter and Alzola.
14. After they made contact with Johnson, and after several minutes passed, Johnson explained
that he was not a threat to anyone and told the officers he wanted them to leave.
15. Salter told Johnson through his closed door, "I just want to talk to you."
16. Johnson replied from inside his home that he was not a threat to anyone and he wanted the
officers to leave.
17. Salter instructed Johnson to leave his home.
18. Johnson complied, slowly stepped out of his home, raised his empty hands over his
shoulders, and showed both of his hands were visibly empty.
19. Upon opening his door, Johnson immediately saw Salter and Alzola with their service
weapons drawn and pointed at him.
20. Noble was behind Johnson, SO the officers knew that Johnson could not see Noble.
21. At all relevant times, Johnson was completely unarmed, never threatened the officers, and
was wearing nothing but close-fitting shorts and socks.
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22. The area was well lit and all three officers could see Johnson was unarmed and that he had
nowhere to hide a weapon on his person.
23. At this time, the officers could see that Johnson was not a threat to himself or others.
24. At this time, none of the officers had reason to believe Johnson had engaged in a crime.
25. Johnson, complying with Salter's early statements that he just wanted to talk to him, began
calmly talking to Salter while keeping his empty hands above his shoulders.
26. Despite this, and despite knowing that Johnson was experiencing a mental health crisis,
Salter pointed his firearm at Johnson and began yelling over Johnson's efforts to talk.
27. Salter knew that yelling at Johnson with his gun drawn would make an ordinary person
fear for their safety and was particularly inappropriate during a mental health crisis.
28. Salter knew that his conduct was inappropriate as it escalated, rather than de-escalated, the
situation.
29. Alzola also knew Salter's conduct was inappropriate, but did not intercede and continued
to brandish her firearm at Johnson.
30. Noble also knew Salter's conduct was inappropriate, but he also did not intercede.
31. In response to Salter's threatening provocation, Johnson peacefully stepped away from the
officers, while continuing to raise his hands to show the officers they were empty and calmly
repeating that he was not a threat, and re-entered his home.
32. Unbeknownst to Johnson, as Johnson began closing the door to his home, Noble rushed
Johnson from behind.
33. Without warning, Noble shot Johnson in the back using a TASER as Johnson stood inside
his home.
34. All three officers then charged into Johnson's home.
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35. Salter then yelled at Johnson while he was being electrocuted, "get on the ground."
36. Johnson complied, sat on the floor, and told the officers, "I didn't do anything."
37. Johnson then raised his hands over his head, again showing he was visibly unarmed.
38. The area was well lit and the officers could see Johnson's hands were empty and there was
no weapon within reach.
39. Salter then yelled at Johnson to "get on your stomach, now!"
40. Johnson complied, lying on his stomach and holding his hands out where the officers could
see they remained empty.
41. Salter then turned Johnson's head to the right by grabbing the back of Johnson's head and
putting his weight onto Johnson's head, thereby pressing the left side of Johnson's face into the
floor.
42. Meanwhile, Alzola took control of both of Johnson's hands and pressed her weight onto
Johnson's back and his right, upper thigh.
43. Noble stood over Johnson's left leg and held his TASER against it.
44. Without justification, Salter began to forcefully punch the exposed right side of Johnson's
face approximately four times in a row, crushing Johnson's jaw in between Salter's fist and the
floor.
45. Next, Salter and Alzola released Johnson SO that Noble could electrocute him again with
the TASER.
46. Johnson was never fighting the officers.
47. At no time did any of the officers have any reason to believe Johnson was fighting them.
48. Johnson was never reaching for a weapon.
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49. At no time did any of the officers have any reason to believe Johnson was reaching for a
weapon.
50. On information and belief, at the time of this incident, Salter, Noble, and Alzola were not
certified in mental health crisis intervention.
51. On information and belief, at the time of this incident, Salter, Noble, and Alzola were not
qualified to provide mental health care.
52. Despite the obviously excessive force, none of the Defendant officers intervened to stop
Salter from mercilessly beating Johnson or to stop Noble from electrocuting him.
53. Defendants had an opportunity to stop the brutal attack, but each chose not to intervene,
preferring to watch Johnson be injured or join in.
54. All told, the Defendants' use of excessive force and failure to intervene caused Johnson to
suffer significant injuries-including a broken jaw-requiring medical treatment, that left a pool
of blood on the floor of his home.
55. Defendants did not arrest Johnson or charge him with a crime.
B. THE CITY OF AUSTIN HAS A ROUTINE CUSTOM OF USING EXCESSIVE FORCE AND FAILING
TO INTERVENE.
56. Upon information and belief, Salter, Noble, and Alzola were never trained that they have
a constitutional obligation to prevent their fellow officers from using excessive force.
57. At the time of this incident, no APD officer had ever been disciplined for failure to
intervene to stop excessive force.
58. This failure to train and supervise was a moving force causing APD officers to routinely
fail to intervene to stop other officers from using excessive force, despite a long and well-
publicized history that APD leadership (including Chief Chacon), and the City Council are well
aware of.
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59. As officers are not trained to stop one another's use of excessive force, and are not
disciplined for failing to stop one another's use of excessive force, unchecked excessive force by
APD officers is common.
60. As a consequence, officers not intervening to stop a use of excessive force has become the
de facto practice/policy of APD and the City of Austin which is well-known by the City's
policymakers, including Chief Chacon.
61. Among numerous other incidents where APD officers have failed to intervene to stop other
officers from using excessive force, APD officers failed to intervene to stop the unconstitutional
use of excessive force in the following instances (among many others):
a. Carlos Chacon - On April 29, 2011, APD Officers Eric Copeland and Russell Rose
violently assaulted Carlos Chacon. Carlos Chacon had called the police to report he was
the victim of a robbery. The officers alleged that Carlos Chacon failed to comply quickly
enough with their orders to lay on the ground, and began electrocuting him with their
TASER while punching his body. Neither officer intervened to stop the other from
assaulting Carlos Chacon. A jury awarded Carlos Chacon significant damages based on
the officers' excessive force.
b. Byron Carter - On May 30, 2011, Officer Nathan Wagner fatally shot Byron Carter, Jr.,
who was only 20 years old. Carter was in a vehicle driven by a 16-year-old child, L.W.,
while exiting a tight parallel parking space after 11:00 pm. Unbeknownst to Carter and
L.W., Wagner and his partner were nearby on foot, and had been following Carter and
L.W. surreptitiously without suspicion of any crime. L.W. heard Carter say, "go," in a
fearful tone, SO he accelerated out of the parking space. Wagner claimed that the car sped
towards him and his fellow officer, and that he (incorrectly and uncredibly) believed it
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struck his partner and was dragging him beneath the vehicle. As a result, Wagner fired
his weapon five times into the driver's side doors as the car drove away. Wagner's shots
wounded L.W. and killed Carter. Wagner's partner did nothing to intervene and stop the
shooting, even as the car drove away. In ensuing excessive force litigation, The District
Court for the United States Western District of Texas, Judge Lee Yeakel, denied summary
judgment to Wagner on May 20, 2013. Although neither officer was disciplined by APD,
then-Police Monitor Margo Frasier and a Citizen Review Panel told the then-chief that
the shooting was unjustified.
C. Pete Hernandez - On June 7, 2012, APD Officer Jesus Sanchez used excessive force to
tackle Pete Hernandez, whose only "crime" was exiting a Wal-Mart store. As Hernandez
walked through the parking lot, an APD police officer suddenly yelled from behind him
to "stay," and then, "get on the ground." Confused, Hernandez stopped-he testified that
all he heard was to "Move out of the way," not "get on the ground"-and, less than four
seconds after the first command, Sanchez executed a flying tackle into Hernandez,
slamming him into the ground. Investigation revealed a third APD officer ordered police
to "grab" Hernandez because he was supposedly walking toward a stolen truck occupied
by another person. The ordering officer had incorrectly assumed Hernandez was an
accomplice merely because he was walking through the parking lot, and Sanchez had, in
turn, assumed that the order to "grab" Hernandez justified a flying tackle. None of the
many APD officers present intervened to stop Sanchez's use of excessive force. The City
found Sanchez did not violate any policies. But a jury found Sanchez used excessive
force, awarding Hernandez $877,000 on February 8, 2016 (later reduced on remittitur).
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d. Caroline Callaway - On February 4, 2015, APD Sergeant Adam Johnson and APD
Officer Patrick Oborski were conducting a blood draw of Callaway with Sheriff's
deputies and a nurse. Callaway, a 140-pound, 22-year-old woman, was placed into a
restraint chair in a padded room with several deputies, the two APD officers, and a nurse
present. Although Callaway did not resist, she was placed in a mask that covered her
entire face, impeding her ability to see and breathe. This induced a panic attack, causing
her to involuntarily shake. Sergeant Johnson placed his boot on her arm to pin it in place.
Someone else applied a chokehold to Callaway. Oborski knew Callaway had been
diagnosed with anxiety, but did not inform his compatriots. Neither Johnson nor Oborski
intervened to stop the use of excessive force. In ensuing litigation by Callaway, The
District Court for the United States Western District of Texas, Judge Sam Sparks, denied
summary judgment to Johnson and Oborski, including for bystander claims, on July 28,
2016. (That September, Callaway was found not guilty of the DWI for which Oborski
had arrested her.)
e. Grady Bolton - On February 9, 2015, APD Officers Manuel Jimenez, Michael Nguyen,
and Rolando Ramirez approached Bolton after Bolton was told to leave a bar on 6th
Street. Officer Jimenez escalated the encounter by suddenly grabbing Bolton's wrist,
twisting it behind Bolton's back, and attempting to kick out Bolton's legs to collapse his
body to the ground. Instead of intervening to stop Officer Jimenez, Officer Johnson joined
in the use of force, including by hitting Bolton in the neck. Next, Officer Nguyen also did
nothing to stop the force, instead joining and repeatedly kicking Bolton with his knee. In
ensuing litigation by Bolton, the District Court for the United States Western District of
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Texas, Judge Sam Sparks, denied summary judgment to officers Jimenez, Nguyen, and
Ramirez on May 25, 2018.
f.
Joseph Cuellar - On February 15, 2015, Cuellar, who was intoxicated, encountered four
APD officers on horseback on 6th Street, including APD Detective Otho Deboise. When
Cuellar came close to the horses, Detective Deboise ordered him to back away. Cuellar
complied, but in a dancing motion. Deboise reacted by grabbing Cuellar and throwing
him to the ground. None of the other three officers intervened to stop Deboise. In ensuing
litigation by Cuellar, the District Court for the United States Western District of Texas,
Judge Sam Sparks, denied summary judgment to Detective Deboise on April 6, 2018.
g. Gregory Jackson - On December 20, 2015, Jackson was attempting to cross to the North
side of 6th Street with his party when officers were about to close the street. He
encountered APD Officers Jason Jones and Brian Huckaby on bicycles, among many
other patrol officers in vehicles and on horseback. Jones' bike bumped into Jackson, they
had an eleven second conversation, then Jones suddenly grabbed Jackson to place him
under arrest. Jackson complied and placed his hands behind his back, but was swarmed
by APD officers, including Huckaby and Jones, who repeatedly punched him in the face.
Although a large number of APD officers were present and could see Jackson was not
resisting, none of them intervened to stop the use of excessive force. The District Court
for the United States Western District of Texas, Magistrate Judge Andrew Austin, denied
summary judgment to the two officers on October 11, 2019.
h. Jason Roque - On May 2, 2017, APD Officer James Harvel shot at Jason Roque-who
had been threatening to shoot himself in the head, but never threatened anyone else-
three times, including twice after Roque dropped his BB-gun and was stumbling away
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from the police. Though four other APD officers were on the scene, none of them did
anything to prevent Harvel from continuing to fire on Roque. Neither Harvel nor any of
the four officers was disciplined. In ensuing litigation by Roque's survivors, the District
Court for the United States Western District of Texas, Judge Lee Yeakel, denied summary
judgment to Harvel on March 23, 2020. Judge Yeakel's order was affirmed by the Fifth
Circuit Court of Appeals in a published opinion, 993 F.3d 325, on April 1, 2021. The
matter subsequently settled for $2,250,000.
i. Justin Grant - On July 4, 2018, Justin Grant had an argument with security at a bar who
refused to let him rejoin his party. Grant walked away, but APD officers Gadiel Alas and
Corey Hale approached Grant from behind. Alas and Hale grabbed Grant without
warning, then violently threw him to the ground. Once Grant was on the ground, Alas
escalated further by electrocuting Grant with his TASER while Alas sat on top of Grant.
Instead of intervening to stop Alas' excessive force, Hale then punched Grant in the face
repeatedly. Alas then punched Grant in the face repeatedly as well. Though one of the
officers complained to his supervisor that he had injured his hand by violently punching
Grant in the face, neither Alas nor Hale were disciplined by APD.
j.
Michael Yeager-Huebner - On November 18, 2018, Yeager and his girlfriend were
heading back to their hotel from 6th Street when four unidentified assailants attacked
Yeager while he waited at a crosswalk. APD Officers Bradley Hoover and Timothy Skeen
witnessed the assault, dispersed the assailants, and then followed Yeager to a nearby
parking lot where they immediately threatened to electrocute him with a TASER. Then a
third officer, Dusty Jester, sprinted 30-40 yards to intentionally tackle Yeager, pulling
him to the ground, and then began to mercilessly punch him in the face. Instead of
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stopping Jester, Hoover and Skeen piled on-and called for backup, leading to a massive
dog pile of officers pummeling Yeager. Jester was given a reprimand but no additional
training, while neither Hoover nor Skeen was disciplined (or retrained) whatsoever.
Subsequent civil litigation settled for $99,000.
k. Javier Ambler - On March 28, 2019, APD Officer Michael Nissen arrived at the scene
of a car wreck caused by Williamson County Sheriff's deputies who had chased the
driver, Ambler, into Austin for allegedly failing to dim his headlights and not pulling
over. As Nissen arrived, the deputies already had Ambler at gun point and had TASERed
him three times. The officers ordered Ambler, who was unarmed and visibly obese, to lay
on the ground on his stomach. Ambler warned the officers, "I have congestive heart
failure" and "I can't breathe" as they tried to force him to lie flat. Ambler told the officers
he was trying to comply, but the officers insisted he flatten further despite his obvious
inability to do SO due to his obesity, and despite his repeated cries that "I can't breathe"
and "I'm not resisting." Instead of stopping this, Nissen helped the deputies worsen
Ambler's plight by pulling one of his arms further behind his back. The officers then
shocked Ambler with the TASER again and put a knee into his back to press him further
into the pavement before handcuffing him behind his back. Ambler stopped breathing
following the excessive use of force. As a result, Ambler died. On March 30, 2021, the
two Williamson County deputies were indicted for their role in killing Ambler.
1. Paul Mannie - Also on March 28, 2019, numerous officers, including officers Chance
Bretches and Gregory Gentry, mercilessly punched and kicked Mannie in the face while
they had him pinned to the ground and he was not resisting. Although many officers were
present, none of them intervened to stop the obviously excessive force. Chief Chacon was
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certainly aware of the incident; while APD decided not to discipline the officers, Bretches
was indicted for aggravated assault by a public servant on January 20, 2021.
m. 2020 Black Lives Matter/ George Floyd Protests - Dozens of APD officers shot at non-
violent demonstrators with kinetic projectiles fired from shotguns and launchers. Despite
the extensive police presence at the demonstrations, including numerous officers who
could have intervened to prevent demonstrators from being seriously injured, no
bystander officers intervened to protect unarmed civilians. This failure to intervene and
put a stop to the illegal, unconscionable, and unreasonable shooting left numerous
innocent individuals at the protest with serious, life altering injuries. Not a single officer
has been disciplined for the intentional firing of kinetic projectiles into crowds or the
failure to intervene to stop their misuse during the protests, even though Chief Chacon
and his predecessor Manley personally knew that shotguns and kinetic projectiles were
being used inappropriately, dangerously, and against nonviolent people. More than
twenty APD officers have since been indicted for assaulting peaceful protesters. In
another incident during the protests exemplifying the failure of APD officers to intervene,
no fewer than three APD officers all used excessive force on a single non-violent protestor
on May 30, 2020: Officer John Siegel sprayed Jason Gallagher in the face, then while
Gallagher was still reacting to the pain of the first attack, Officer Salvador Gonzalez-
Galvan also sprayed him in the face. When Gallagher turned away and tried to wipe his
eyes, Officer Bryan McCulloch shoved Gallagher down a concrete hill while he was
effectively blinded by the OC spray, causing significant injury to Gallagher.
n. Armando Herrera-Amaro - On December 1, 2020, APD officers Gadiel Alas and
Alexander Khidre brutally tasered and hit an autistic, bipolar Hispanic young man for no
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justifiable reason. The force used by Officer Alas was excessive, unreasonable, and pure
police brutality. Despite the egregious nature of the abuse, which was caught on video,
another APD officer stood by and helped it happen. As a consequence, Amaro faced
bogus charges for nearly two years before the County Attorney dismissed them. Tellingly,
APD's leadership approved of Alas' misconduct and his fellow officer's decision to allow
it to continue.
62. In 2017, United States District Judge Sam Sparks of the Western District of Texas,
summarized other incidents where APD officers failed to intervene to stop fellow officers from
using excessive force in an order denying summary judgment to the City:
a. Officer Richter - in the presence of another officer, threw a suspect who was not resisting
to the ground by the neck;
b. Officer Richter - in the presence of two other officers, shot with a TASER a suspect who
was not resisting and had complied with Richter's commands.
63. The City ultimately settled the claims against the City and Officer Richter at issue in Judge
Sparks' 2017 order for $425,000. In that litigation, unrelated to the two incidents identified above,
Richter had assaulted Breaion King, who he had pulled over for a minor traffic violation. Richter
was not disciplined or retrained for brutalizing this young woman until after the press learned about
his brutality and made the assault public.
64. In total, from 2006 to 2017, APD officers used force on 18,297 people-on average each
person's use of force involved 1.6 APD officers. Thus, like this case, in many thousands of
incidents, multiple APD officers were present but the use of force occurred anyway.
65. APD's own reports reflect that its officers routinely use force against those who are not
resisting at all-like Johnson-as well as those who it deems to be engaged in mere "verbal,"
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"passive," or "defensive" resistance. This is despite the fact that any significant force against
people engaged in that level of resistance is unconstitutional.
66. APD's reports reflect that from 2006 to 2016, APD used force against 1,159 people who
only exhibited "passive" resistance, 838 people who only exhibited "verbal" resistance, and 6,626
who only exhibited "defensive" resistance.
67. During the middle of 2017, APD changed its reporting metric SO the type of resistance is
not available during that year.
68. From 2018 through 2020, APD used force against 58 people who did not resist, 310 people
whose resistance was "passive," and 4,148 people whose resistance was only "defensive."
69. From 2017 to 2020, APD began using force 58% more often-while making 51% fewer
arrests.
70. During an independent review of a small fraction of uses of force, authorized by the City
of Austin, 112 uses of force (against 88 individuals) in late 2019 were found to be inappropriate,
despite approval of the officers' use of force by APD supervisors.
71. The same review further found that APD officers frequently command individuals to get
on the ground when there is no reason to do so, just like Salter did in this case.
72. The same review also found that APD officers frequently punch the back or side of the
heads of people on the ground when there is no reason to do so, just like Salter did in this case.
73. The same review found that the APD use of force process lacks proper internal supervisory
review and investigation which frequently fails to address the appropriateness of the use of force
used against members of the public.
74. The same review criticized APD for failing to require that officers document when they
point their guns at citizens, just like Salter did in this case, obscuring how often this occurs.
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75. The same review also found that APD officers used neck restraints and head strikes when
that level of force would not have been appropriate-as that force can have lethal consequences-
on multiple occasions, just like Salter's use of both in this case.
76. Upon information and belief, because the aforementioned practices were SO widespread
that only a limited review of uses of force during 2019 detected all of them, they were also SO
widespread that the chief of police actually know of, but failed to ameliorate, these practices at the
time APD officers abused Johnson in the exact same manner.
77. Upon information and belief, there are numerous other incidents where APD officers used
excessive force, failed to intervene to stop excessive force by law enforcement, or both.
C. APD's PATTERN OF EXCESSIVE FORCE IS EVIDENCED BY ITS TRAINING ACADEMY AND
CULTURE OF VIOLENCE.
78. At the time of this incident, the City operated a stress-oriented military-style police training
academy where multiple cadets had resigned due to the toxic, abusive, and combative teaching
methods that embraced intimidation tactics.
79. APD historically has been strongly reluctant to change the paramilitary nature of the
Academy in any fundamental way, and even recently fired the staff hired to evaluate and make
recommendations to change the training.
80. As such, the APD Academy utilizes "teaching" techniques like yelling and screaming at
cadets, and other humiliating tactics, which serve little purpose other than to instill a military-like,
bootcamp atmosphere that was counterproductive to preparing officers to actually serve the
community.
81. This combative attitude is likely a cause of Noble's and Salter's decisions to deploy
unreasonable attacks on Johnson-and to escalate to repeated, unnecessary, and potentially life
altering blows to an unarmed, helpless suspect's face.
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82. In fact, APD's training reflected an 'us VS. them' mentality that often escalated encounters
between police officers and the public-much like how the officers' conduct in this case only
served to escalate a confrontation for no reason.
83. According to reports, the Academy's paramilitary atmosphere was abusive to cadets, and
encouraged them to abuse members of the public. Instructors relentlessly ridiculed and mocked
cadets during physical training.
84. Cadets described how instructors frequently yelled and cursed at them, leading these cadets
to believe the Academy would create police officers who were indifferent to the community.
85. A group of former cadets alleged that the Academy encouraged a culture of abuse towards
citizens. One former cadet alleged that instructors told cadets that they would "punch them in the
face" if they said they wanted to be police officers to help people.
86. Another instructor told cadets to "pick someone out of a crowd and ask yourself, 'how
could I kill that person?"
87. As a result, the message absorbed by the cadets was that the Austin community-including
members like Johnson-was the enemy.
88. The culture of APD's training academy reflects the culture of the department and impacts
the mindset and approach to policing of every individual officer, including Defendants.
89. These problems with APD's training academy had been festering for years by the time of
this incident, and were well-known to its policymakers, including the chief of police
90. Apart from direct complaints about the training academy, APD also knew the results were
disastrous.
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91. The Office of the Police Monitor (OPM), an agency created by the City to facilitate public
complaints against police officers, participated in investigations of APD officers and made non-
binding policy recommendations to APD.
92. OPM recommended APD rethink its missing de-escalation training and aggressive tactics
as early as 2007-based on 2005 data-due to a high number of complaints and allegations of
misconduct.
93. For 2005, OPM reported citizens made a total of 73 use-of-force-related allegations, and
succeeding years saw between 47 and 123 such complaints each year through 2015, for a total of
815 allegations of excessive force reported to OPM from 2004 to 2015.
94. Critically, every year beginning in 2009, OPM warned that this number was under-
inclusive, with succeeding reports stating that APD was not obeying its own written use-of-force
complaint and investigation procedures-hampering oversight of misconduct both by deterring
citizens from raising excessive force matters and by failing to internally investigate potential
excessive uses of force.
95. In 2015, OPM observed that multiple high-profile cases highlighted the deficiency in the
manner in which APD reviews responses to resistance or uses of force.
96. The OPM emphasized that the uses of force against Breaion King and another use of force
against Tyrone Wilson-a young man who was pepper sprayed in the face while handcuffed in
the back of a prisoner transport van for despite only harmlessly kicking the van door-were
originally determined by APD to be reasonable, only to later result in officer discipline when the
videos were leaked to the press.
97. In August 2016, then-APD Chief Art Acevedo admitted that APD officers "have this
attitude of" falsifying reports about using force with "creative writing." Sadly, Chief Chacon has
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continued the pattern of failing to discipline numerous officers who filed reports with misleading
or false information.
98. In 2015, OPM again recommended APD revise policies and training for de-escalation and
officer communication, but APD again declined.
99. As a result, APD officers like Defendants continued to unnecessarily escalate encounters
with violence, and continued to fail to intervene to stop excessive force by their fellow officers.
D. APD's INADEQUATE MENTAL HEALTH RESPONSE POLICIES ROUTINELY RESULT IN
EXCESSIVE FORCE.
100. Due to an array of well-known dangerous policies, APD routinely uses excessive force
against people experiencing mental health crises like Johnson.
101. Police officers often encounter citizens experiencing mental health crises.
102. In Austin, APD is dispatched more than twice as frequently to mental health crises than
emergency medical services.
103. APD reported from 2017 through 2020 that its officers used force against 1,619 people
who were either mentally unstable or emotionally disturbed persons but were, like Johnson, not
impaired by any drugs or alcohol.
104. In addition, APD officers used force against 1,803 people who were impaired by drugs or
alcohol and either an emotionally disturbed person or mentally unstable from 2017 through 2020.
105. From 2017 through 2020, APD officers used force far more frequently during encounters
with individuals with mental health issues compared to encounters with those without.
106. Encounters between police and mentally ill citizens often lead to death or permanent injury
for the mentally ill person in Austin.
107. APD officers used firearms, caused hospitalizations, killed, or struck in the head 26
mentally unstable or emotionally disturbed people from 2019 through 2020.
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108. Austin police officers are trained to respond to a person who threatens to kill themselves
as if that person is homicidal.
109. Thus, Austin deliberately trains its officers to overreact to a person who threatens to kill
themselves.
110. APD officers routinely disobey the department's own mental health policies.
111. Instead, dispatchers are not authorized to assign a Crisis Intervention Technique certified
officer directly to a call.
112. Moreover, as of 2019, APD 911 call takers and dispatchers were not trained to recognize
or manage mental health crisis calls. By the time of this incident, some of these staff had received
incomplete training.
113. Chief Chacon has been specifically aware that this deficiency in dispatch was dangerous,
as it was reported and publicly criticized by the City Auditor in September 2018, the Citizen
Review Panel that reviewed the death of David Joseph, and the Meadows Institute in a City-funded
report in 2019.
114. As of 2019, APD 911 call takers and dispatchers are also not integrated with mobile crisis
outreach teams or clinical triage services, even though those teams and services are provided by a
different Austin agency, SO neither of those sources of mental health care is accessible from 911.
115. This deficiency was known to Chief Chacon, as it was specifically criticized by the
Meadows Institute in a City-funded report in 2019.
116. By the time of this incident, APD incorporated some triage services into 911 dispatch, but
not during the evening hours when mental health calls are most common-thus, there was no triage
service available at the time of the calls regarding Johnson.
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117. As Chief Chacon was personally involved in making the partial change to 911 dispatch, he
knew that it did not encompass the recommended time period and was deficient for evening
services.
118. Thus, in scenarios like this encounter with Johnson during the evening, it falls on APD
officers to ask for mental health services.
119. Yet, APD officers routinely ignore the appropriate procedure for mental health crises, like
in this case: APD officers routinely do not wait to assess the suicide threat or consult mental health
services before resorting to force.
120. That is exactly what Noble, Salter, and Alzola did to Johnson.
121. APD also failed to track and review crisis intervention incidents until 2021, as it made no
effort to improve its deplorable mental health response practices but instead chose to deliberately
obscure its failures.
122. Chief Chacon has been specifically aware that this deficiency in reporting obscured APD's
mental health failures, as it was reported and publicly criticized by the City Auditor in September
2018, by the Citizen Review Panel in its review of the use of deadly force against a mentally ill
man on Aug. 20, 2015, and by the Meadows Institute in a City-funded report in 2019.
123. APD also provides no training in responding to suicide calls involving a suspected weapon.
124. APD further trains its officers not to use any mental health response techniques until after
the subject is cooperative-so in the case of a suicide threat, according to APD's specific training,
no mental health crisis response techniques may be deployed when those methods might save lives
or de-escalate a situation.
125. Although Austin has a mobile crisis outreach team service that can provide a mental health
clinician to respond to a mental health crisis, and that clinician can be deployed remotely such as
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by telehealth (such as with an iPad connected to the physician that the officer carries), APD
routinely delays attempting to use this service indefinitely. APD will not attempt to use telehealth
unless the scene is secure-again ensuring that the service will not be deployed when it is needed
most.
126. Thus, in cases like this encounter with Johnson, APD officers routinely yell aggressively
and use inappropriate force-like Salter and Noble did-rather than try to de-escalate the
encounter safely or call a mental health provider to do SO.
127. Chief Chacon, and former Chiefs Manley and Acevedo, were personally aware of this
deficiency in training, as the Citizen Review Panel recommended this problem be fixed when it
reviewed APD's use of force on mentally ill, suicidal woman whose identity is known to the City
on February 12, 2016.
128. Former Chief Manley has also publicly acknowledged that these deficiencies arise in part
from fiscal decisions. This remained true in 2021: Austin chose not to pay for mental health
providers to be available for emergency telehealth or triage services during the early morning hours
and has chosen not to provide monetary incentives for all patrol officers to receive CIT training.
129. APD officers used deadly force on at least 18 people with mental illness from 2010 through
2017, killing Jason Roque, David Joseph, Richard Monroe, Morgan Rankins, William Mann, Tyler
Hunkin, Ray Ojeda, Micah Jester, Cassandra Bolin, Michael Holt, Tyler Caraway, Larry
McWilliams, Herbert Babelay, Mark Guard, Jamaryl Tyler, Gene Vela, Evan Schaffrath, and
Patrick Faith.
130. APD officers shot another 20 people experiencing a mental health-related crisis from 2010
to 2016, but those victims survived.
131. APD officers also shot and killed Paul Cantu while he was suffering a mental health crisis
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on January 29, 2019.
132. As a result, Austin has the highest per capita rate of fatal police shootings involving persons
believed to be experiencing a mental health crisis of the largest cities in the United States.
133. Moreover, an external review of APD, commissioned by the City of Austin, reviewed uses
of force in late 2019 by APD and identified 21 uses of force that involved a mental health
component where the officers engaged in misconduct-over 90% of which was the inappropriate
use of force.
134. Jane Doe #1 - One incident identified as inappropriate by the external review involved
Jane Doe #1, a 57-year-old white female was reported to have a "fake" gun in her home and wanted
to kill herself. Officers responded with body armor, Kevlar helmets, and a patrol rile. The officers
called into the house and asked Doe #1 to exit the home-just like with Johnson. Doe #1 complied
by exiting the home, just like Johnson. The officers saw that Doe #1 was visibly unarmed-just
like Johnson-as she was dressed only in a t-shirt and a bikini under bottom. Despite this, when
Doe #1 turned to re-enter her home-similar to Johnson-officers shot her in the left buttocks with
a "less lethal" bean bag projectile.
135. John Doe #2 - Another incident identified as inappropriate by the external review involved
John Doe #2, a 34-year-old white male who called 911 on himself, reporting he had a personality
disorder and needed assistance. Despite Doe #2 having a small build, being nonviolent, and
appearing to be in distress, three officers were dispatched and one officer initiated a body slam
takedown of Doe #2. The officer falsely reported that Doe #2 lunged at him, contrary to video
footage, and the use of excessive force was approved by a supervisor.
136. Jane Doe #3 - In a third incident identified as inappropriate by the external review, three
APD officers responded to a disturbance involving Jane Doe #3, a 48-year-old white female, and
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her boyfriend. The officers knocked on her door and Doe #3 declined to let them in because she
was naked. Nonetheless, similar to the officers in this case, the officers forced their way inside
Doe #3's home, forced her to the ground, handcuffed her, and arrested her for resisting. One officer
claimed her demeanor was aggressive in his report and that the naked woman threatened their
safety while she was on the ground. These allegations were contradicted by video evidence, which
further showed Doe #3 was experiencing a mental health related incident, yet an APD supervisor
approved the use of excessive force and the false arrest.
137. As a result of these glaring policy failures, APD has used excessive force against many
mentally ill people and people experiencing a mental health crisis. High profile incidents of misuse
of force against people suffering mental health issues known to Chief Chacon and the City Council
include the Roque shooting discussed above and the following:
a. On July 5, 2015, Alexander Munroe called 911 early in the morning, saying he felt
suicidal and wanted someone to talk to. Munroe asked the dispatcher not to send officers,
and she promised not to, but she did anyway. Officers Matthew Murphy, Stephen
Johnson, and John Nelson arrived at Munroe's home. After they confronted Monroe, he
sat on his porch with a BB gun in his lap and continued speaking to the 911 dispatcher on
his cell phone. Murphy snuck up behind Munroe and shot him in the back with a
TASER-similar to Noble's tactic with Johnson. Less than two seconds later, all three
officers opened fire, hitting Munroe a total of six times and killing him. The United States
District Court for the Western District of Texas, Judge Lee Yeakel, denied summary
judgment to officers Murphy and Johnson on March 12, 2018. On July 28, 2018, the City
agreed to pay $895,000 to settle claims with Munroe's parents.
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b. On February 8, 2016, then-Officer Geoffrey Freeman fatally shot David Joseph, who was
just seventeen, while Joseph, suffering a mental health crisis, was running naked around
a suburban area. Freeman found Joseph, naked and obviously unarmed, standing in the
middle of a residential street. Freeman exited his vehicle with his sidearm already drawn,
and shouted at Joseph not to move. Confused, Joseph instead ran towards Freeman, who
opened fire, killing Joseph. APD terminated Freeman and concedes the shooting was not
justified. The City paid Joseph's mother $3,250,000 to settle her claims.
E. APD's HISTORY OF EXCESSIVE FORCE
138. The Austin Police Department also has a long, well-documented history of using excessive
force.
139. In addition to the high-profile incidents above, APD officers additionally killed or
brutalized other citizens in cases that Chief Chacon and the City Council were well aware of.
a. On June 9, 2005, then-Officer Julie Schroeder engaged in a struggle with Daniel Rocha,
who was trying to flee an arrest. When Rocha turned away from her, Schroeder shot him
in the back, killing him. The United States District Court for the Western District of
Texas, Judge Lee Yeakel, denied summary judgment on July 6, 2007 in a suit brought by
Rocha's family. The Fifth Circuit Court of Appeals affirmed on July 27, 2008. The
lawsuit settled for $1,000,000. APD admits Schroeder's use of force was unreasonable.
b. On June 3, 2007, APD Sgt. Michael Olsen fatally shot Kevin Brown, after Olsen chased
Brown alone into a field. Olsen shot Brown multiple times including while Brown lay on
the ground. Olsen rushed into the confrontation without a plan and then claimed that
Brown appeared to be reaching for a weapon, even though Brown dropped his weapon
moments earlier (and dozens of feet from where Olsen shot him). APD admitted that
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Olsen's use of force was unreasonable, and paid Brown's family a settlement of
$1,000,000.
C. On May 11, 2009, then-APD-Officer Leonardo Quintana shot Sir Smith after approaching
his car while he was unarmed and asleep. Quintana and another APD officer came up on
the car from behind, and could tell through the car windows that both occupants were
asleep. Instead of making a plan and communicating with his partner, Quintana opened
fire on the car, shooting through the car's rear windows. Smith, unarmed and suddenly
under fire, awoke from sleeping and tried to escape by running from the car, but Quintana
shot him after he exited the car. Quintana was only disciplined for failing to activate his
squad car's video camera, though an independent investigation by the City's Office of
the Police Monitor sharply criticized APD's investigation. Quintana's partner did nothing
to intervene and, on information and belief, was not disciplined. The City paid Smith
$175,000.
d. On April 5, 2012, Officer Copeland (the same officer who abused Carlos Chacon,
discussed above) shot and killed Ahmede Bradley during a traffic stop. Copeland had not
been re-trained or disciplined in any meaningful way after brutally beating Carlos
Chacon. Bradley initially fled the stop, then pulled over again, exited his vehicle, and ran
away on foot. Copeland angrily gave chase on foot and shouted that he would kill
Bradley. Copeland electrocuted Bradley with a TASER, then kicked and struck Bradley
before fatally shooting Bradley three times. The United States District Court for the
Western District of Texas, Judge Lee Yeakel, denied summary judgment on January 6,
2016. Then-Police Monitor Frasier, the former Sheriff of Travis County, told the then-
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chief that the shooting was unjustified, particularly because Bradley was trying to escape
SO that he was not an immediate threat requiring deadly force.
e. On July 29, 2013, APD Det. Charles Kleinert fatally shot Larry Jackson, Jr. Kleinert
chased Jackson on foot from a bank fraud call, and even requisitioned a civilian vehicle
to continue the chase, before cornering Jackson alone under a bridge. Kleinert fired his
gun at point blank range after engaging in a fist-fight with Jackson. Jackson was unarmed.
Kleinert resigned in lieu of discipline, but APD acknowledges his use of force was
unjustified and the City settled the family's civil claim for a total of $1,850,000.
f. In March 2014, APD Sgt. Greg White shot Jawhari Smith after confronting Smith when
Smith was holding a small BB gun. Smith honestly and immediately told White that the
"pistol" was just a BB gun and immediately held it up in his right hand over his head,
according to White. Both Smith and a bystander reported Smith then quickly dropped the
BB gun on the ground. White shot Smith, though his patrol car audio recording shows
White gave Smith less than two seconds to comply with his commands to drop the BB-
gun. APD did not discipline White, but the City paid Smith a settlement.
g. On April 24, 2020, APD Officer Christopher Taylor shot and killed Michael Ramos, who
was unarmed. Taylor and other APD officers pulled up to Ramos and a passenger sitting
in his vehicle. They ordered Ramos to exit his vehicle at gunpoint. Ramos complied,
begged them not to shoot, asked what was going on, and said he was not armed. When
Ramos continued to stand with his hands up and complain that he had done nothing
wrong, another APD officer, Mitchell Pieper, shot him with a "less lethal" weapon. In
response, Ramos ducked back into the car and attempted to drive away from the police.
As the vehicle moved away from the officers, Christopher Taylor shot into the cabin with
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a firearm, killing Ramos. Taylor has been indicted for murder, but not disciplined by
APD.
IV. CAUSES OF ACTION
A. FOURTH AND FOURTEENTH AMENDMENT EXCESSIVE FORCE BY DEFENDANTS NOBLE
AND SALTER
140. Defendants Noble and Salter, while acting under color of law, brutally attacked,
electrocuted, and punched when Johnson posed no danger to anyone.
141. Noble and Salter's use of force was wholly excessive to any conceivable need, objectively
unreasonable in light of clearly established law, and directly caused Johnson to suffer serious
injuries. Therefore, both Noble and Salter's actions violated Johnson's clearly established Fourth
Amendment right to be free from excessive force and unreasonable seizure.
142. As a direct and proximate result of Noble and Salter's actions, Johnson suffered and
continues to suffer significant injuries.
143. Noble and Salter were acting under color of law at all relevant times.
B.
FOURTH AND FOURTEENTH AMENDMENT BYSTANDER EXCESSIVE FORCE BY
DEFENDANTS NOBLE, SALTER, AND ALZOLA
144. Defendants Noble, Salter, and Alzola, while acting under color of law, watched on while
Noble and Salter attacked Johnson without cause, and failed to intervene as bystanders to protect
Johnson, in addition to assisting in the use of that force (and in Noble and Salter using their own
excessive force against Johnson).
145. Defendants Noble, Salter, and Alzola each knew there was no possible justification for
attacking Johnson, because they saw that Johnson was peacefully re-entering his own home when
Noble electrocuted him from behind. They further saw that Johnson was subdued, face down on
the ground, while Salter struck him repeatedly in the face and then when Noble electrocuted him.
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Noble, Salter, and Alzola's failure to intervene to stop their fellow officers, when they were present
at the scene, had the ability to do so, and failed to take reasonable measures to protect Johnson
from the officers' use of excessive force, caused Johnson to suffer serious injuries.
146. Nonetheless, Noble, Salter, and Alzola did not stop the officers' use of force at any point
or make any attempt at de-escalation despite knowing the force was excessive and having sufficient
time to stop it. Instead, Noble and Salter inflicted excessive force of their own, while Alzola
assisted such as by releasing Johnson to allow Noble to electrocute him again. Noble and Salter's
use of force was objectively unreasonable in light of clearly established law, and directly caused
Johnson to suffer serious injuries.
147. Noble, Salter, and Alzola were acting under color of law at all relevant times.
C. FOURTH AND FOURTEENTH AMENDMENT MONELL CLAIM AGAINST DEFENDANT CITY
OF AUSTIN ONLY
148. Plaintiff incorporates by reference all of the foregoing and further alleges as follows:
149. The conduct by the officers discussed in this complaint and described herein constituted
excessive force and failure to intervene in violation of the Fourth Amendment United States
Constitution, as incorporated through the Fourteenth Amendment.
150. At all material times, the officers acted under color of state law, as agents of Defendant
City of Austin.
151. At all material times, Noble, Salter, and Alzola wore their official department uniforms
and were acting within the course and scope of their duties as City of Austin police officers at the
time they assaulted Johnson and failed to intervene to stop the assault.
152. Defendant City of Austin's policymaker for all matters related to the activities of the Austin
Police Department was Interim Chief Joseph Chacon.
153. The City of Austin had or ratified the following policies and/or practices in place when
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Officers Noble, Salter, and Alzola and other officers assaulted Johnson and/or failed to intervene
to stop the assault:
Failing to train officers regarding their obligation to intervene as bystanders to stop fellow
officers from using excessive force;
A pattern, practice, or custom of officers failing to intervene as bystanders to stop fellow
officers from using excessive force;
Failing to discipline officers who did not intervene as bystanders to stop fellow officers
from using excessive force;
Failing to train officers in the proper measure of force, including but not limited to TASERs
and head strikes, and alternatives to force during an encounter with mentally-il citizens or
citizens experiencing a mental health crisis;
A pattern, practice, or custom of officers using excessive force disproportionately against
mentally-ill citizens and citizens experiencing a mental health crisis;
A pattern, practice, or custom of officers pointing their firearms at nondangerous people;
Training officers not to use mental health crisis de-escalation techniques and not to call for
mental health resources for an individual experiencing a mental health crisis;
A pattern, practice, or custom of officers failing to call for mental health resources when
encountering mentally-ill citizens and citizens experiencing a mental health crisis;
Training officers to engage in the use of routine, excessive force;
A pattern, practice, or custom of officers using excessive force including, but not limited
to, resorting to head strikes and other deadly force in the face of no resistance, passive
resistance, verbal resistance, or defensive resistance;
On information and belief, hiring, retaining, and failing to retrain Noble, Salter, and Alzola
despite knowing they had a history of using excessive force;
Training officers in an "us VS. them," militaristic and warriorlike manner that promotes
excessive force;
Failing to report misconduct, i.e., employing a code of silence amongst police officers SO
that wrongdoing is not remedied.
154. On information and belief, APD supervisors, including Chief Chacon, reviewed Noble,
Salter, and Alzola's conduct with regard to Johnson. Incredibly, despite video of the event, Chief
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Chacon found no problems, and took no action. The City of Austin approved their conduct and the
basis for it.
155. Noble, Salter, and Alzola, Chief Chacon's subordinates, violated Johnson's constitutional
rights, when Chief Chacon failed to supervise them by failing to train them regarding their
obligation to intervene to stop excessive force, failing to train them not to treat the community as
their enemy, failing to train them they were prohibited from brutalizing mentally ill citizens who
posed no threat to anyone (like Johnson), and failing to supervise officers to ensure they followed
this obligation, and the other above delineated policies, all of which proximately caused the
violation of Johnson's constitutional rights. Chief Chacon was deliberately indifferent to the
known and obvious consequences of these policies, practices, training, and customs which he was
aware of, authorized, and encouraged, rather than acting to correct them. Chief Chacon was
actually aware of facts from which any reasonable policymaker could draw the inference that a
substantial risk of serious harm and violations of constitutional rights existed, and actually drew
that inference.
156. Chief Chacon was aware of the pattern of similar incidents that occurred before and after
the officers assaulted Johnson, although it was also apparent and obvious that a constitutional
violation was a highly predictable consequence of the City's above delineated policies. Chief
Chacon was specifically aware that his officers had violated the constitution by using excessive
force and failing to intervene in each of the specific incidents of excessive force listed in this
complaint, as well as in other thousands of other incidents reported by APD, and that no additional
procedures, policies, training, or practices had been implemented that would resolve this ongoing
risk of constitutional harm to citizens.
157. Likewise, Chief Chacon knew or should have known that failing to train his officers that
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they were obligated to stop other officers from using excessive force was a particular omission in
the City's training program that would cause City employees to violate the constitutional rights of
members of the public they encountered, like Johnson. Nevertheless, though Chief Chacon knew
of these obvious deficiencies, he chose to retain this dangerously flawed training program.
158. Rather, the Austin Police Department hierarchy and Chief Chacon ratified Officer Noble,
Salter, and Alzola's conduct, and continued to approve and their mistreatment of Johnson.
159. In any event, each of the policies delineated above was actually known, constructively
known and/or ratified by the City of Austin and its policymakers, including Chief Chacon, and
was promulgated with deliberate indifference to Johnson's rights under the United States
Constitution. Moreover, the known and obvious consequence of these policies was that APD
officers would be placed in recurring situations in which the constitutional violations described
within this complaint would result. Accordingly, these policies also made it highly predictable that
the particular violations alleged here, all of which were under color of law, would result.
160. Consequently, the policies delineated above were a moving force of Johnson's
constitutional deprivations and injuries, and caused him to suffer serious injuries.
V. DAMAGES
161. Plaintiff James Johnson seeks the following damages:
a.
Past and future lost wages and loss of earning capacity;
b.
Past and future physical pain;
C.
Past and future mental anguish;
d.
Past and future impairment;
e.
Past and future disfigurement;
f.
Past and future medical expenses;
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g.
Attorneys' fees, including costs, expert fees, and attorneys' fees pursuant to 42
U.S.C. § 1988;
h.
Pre-judgment and post-judgment interest at the highest rates allowable under the
law;
i.
All other compensatory and/or general damages to which Johnson is entitled under
state or federal law; and,
j.
Punitive damages in the highest amount allowed by law against Defendants Noble,
Salter, and Alzola only.
VI. JURY DEMAND
162. Plaintiff respectfully requests a trial by jury.
VII. PRAYER FOR RELIEF
163. To right this grave injustice, Plaintiff requests the Court:
a.
Award compensatory damages to the Plaintiff, against all Defendants;
b.
Award punitive damages to Plaintiff against Defendants Noble, Salter, and Alzola
only;
C.
Award Plaintiff costs, including expert fees and attorneys' fees pursuant to 42
U.S.C. § 1988;
d.
Award pre-judgement and post-judgment interest at the highest rate allowable
under the law; and,
e.
Award and grant such other just relief as the Court deems proper.
Dated: October 18, 2022
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Respectfully submitted,
EDWARDS LAW GROUP
603 W. 17th St.
Austin, TX 78701
Tel. 512-623-7727
Fax. 512-623-7729
By
/s/ Jeff Edwards
JEFF EDWARDS
State Bar No. 24014406
jeff@edwards-law.com
DAVID JAMES
State Bar No. 24092572
david@edwards-law.com
PAUL SAMUEL
State Bar No. 24124463
paul@edwards-law.com
ATTORNEYS FOR PLAINTIFF
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JAMES EDWARD JOHNSON
§
Plaintiff,
§
§
VS.
§
§
BRANDON SALTER, SAMUEL NOBLE,
§
CIVIL ACTION NO.: 1:22-CV-1050
AND KATHERINE ALZOLA, IN THEIR
§
INDIVIDUAL CAPACITIES, AND THE
§
CITY OF AUSTIN, TEXAS
§
Defendants.
§
DEFENDANT CITY OF AUSTIN'S ORIGINAL ANSWER AND DEFENSES
COMES NOW, Defendant CITY OF AUSTIN and files this Original Answer and
Defenses pursuant to the Federal Rules of Civil Procedure and would respectfully show this Court
as follows:
A.
ORIGINAL ANSWER
1.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny Plaintiff's allegations of material fact contained in Paragraph 1 of Plaintiff's
Complaint.
2.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 2 of Plaintiff's Complaint, other than to deny he is entitled to the relief sought from
this Defendant.
3.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 3 of Plaintiff's Complaint, other than to deny he is entitled to the relief sought from
this Defendant.
Defendant City of Austin's Original Answer and Defenses/26932
Page 1
Case 1:22-cv-01050-LY Document 7 Filed 12/01/22 Page 2 of 25
4.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 4 of Plaintiff's Complaint, other than to deny he is entitled to the relief sought from
this Defendant.
5.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 5 of Plaintiff's Complaint.
6.
Defendant City of Austin admits Plaintiff asserts claims pursuant to the statutory
provision identified and that this Court has subject matter jurisdiction over the same, subject to
sovereign and qualified immunities, as alleged in Paragraph 6 of Plaintiff's Complaint, but denies
that Plaintiff is entitled to any relief under this provision with respect to this Defendant.
7.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 7 of Plaintiff's Complaint.
8.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 8 of Plaintiff's Complaint.
9.
Defendant City of Austin admits that the Western District-Austin Division is the
proper venue for this matter as the incident described occurred in the District, as alleged in
Paragraph 9 of Plaintiff's Complaint, and deny any other allegations of material fact contained in
this paragraph.
10.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny allegations regarding Plaintiff's state of mind and medical diagnosis, admits
that it received 911 emergency calls regarding Plaintiff, and denies the remainder of Plaintiff's
allegations of material fact contained in Paragraph 10 of Plaintiff's Complaint.
Defendant City of Austin's Original Answer and Defenses/26932
Page 2
Case 1:22-cv-01050-LY Document 7 Filed 12/01/22 Page 3 of 25
11.
Defendant City of Austin admits the officers identified were dispatched and denies
the remainder of Plaintiff's allegations of material fact contained in Paragraph 11 of Plaintiff's
Complaint.
12.
Defendant City of Austin admits Defendant Noble had encountered Plaintiff before
and that he appeared to have a mental illness and denies the remainder of Plaintiff's allegations of
material fact contained in Paragraph 12 of Plaintiff's Complaint.
13.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 13 of Plaintiff's Complaint.
14.
Defendant City of Austin admits Plaintiff yelled statements similar to what is
alleged in Paragraph 14 of Plaintiff's Complaint, but the recordings speak for themselves and are
the best record of what was said, when and how, and denies the remainder of Plaintiff's
allegations of material fact contained in this paragraph.
15.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 15 of Plaintiff's Complaint.
16.
Defendant City of Austin admits Plaintiff yelled statements similar to what is
alleged in Paragraph 16 of Plaintiff's Complaint, but the recordings speak for themselves and are
the best record of what was said, when and how, and denies the remainder of Plaintiff's
allegations of material fact contained in this paragraph.
17.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 17 of Plaintiff's Complaint.
18.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 18 of Plaintiff's Complaint to the extent that it incompletely and inaccurately describes
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what occurred at that time and the recordings speak for themselves and are the best record of what
was said and done, when and how.
19.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny allegations regarding what Plaintiff actually saw, as described in Paragraph 19
of Plaintiff's Complaint.
20.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny allegations regarding what each individual Defendant actually knew, as
described in in Paragraph 20 of Plaintiff's Complaint.
21.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny Plaintiff's allegations of material fact contained in Paragraph 21 of Plaintiff's
Complaint, other than to admit that Plaintiff was wearing socks and shorts.
22.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 22 of Plaintiff's Complaint, other than to admit that the hallway was well lit.
23.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 23 of Plaintiff's Complaint.
24.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 24 of Plaintiff's Complaint.
25.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 25 of Plaintiff's Complaint.
26.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 26 of Plaintiff's Complaint.
27.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 27 of Plaintiff's Complaint.
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28.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 28 of Plaintiff's Complaint.
29.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 29 of Plaintiff's Complaint.
30.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 30 of Plaintiff's Complaint.
31.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 31 of Plaintiff's Complaint, other than to admit that he failed to comply with the
officers' directives and to note that the recordings speak for themselves and are the best record of
what was said and done, when and how.
32.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny allegations regarding what Plaintiff knew and denies the remainder of the
allegations of material fact contained in Paragraph 32 of Plaintiff's Complaint.
33.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 33 of Plaintiff's Complaint, other than to admit that Defendant Noble activated his
taser and to note that the recordings speak for themselves and are the best record of what was said
and done, when and how.
34.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 34 of Plaintiff's Complaint.
35.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 35 of Plaintiff's Complaint, other than to admit that Defendant Salter directed Plaintiff
to get on the ground and to note that the recordings speak for themselves and are the best record
of what was said and done, when and how.
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36.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 36 of Plaintiff's Complaint, other than to admit that Plaintiff said he did not do
anything and to note that the recordings speak for themselves and are the best record of what was
said and done, when and how.
37.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 37 of Plaintiff's Complaint.
38.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 38 of Plaintiff's Complaint.
39.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 39 of Plaintiff's Complaint, other than to admit Defendant Salter directed Plaintiff to
get on his stomach and to note that the recordings speak for themselves and are the best record of
what was said and done, when and how.
40.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 40 of Plaintiff's Complaint.
41.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 41 of Plaintiff's Complaint, other than to admit that Defendant Salter turned Plaintiff
head and kept his hand there and to note that the recordings speak for themselves and are the best
record of what was said and done, when and how.
42.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 42 of Plaintiff's Complaint, other than to admit that Defendant Arzola tried to secure
both of Plaintiff's hands in order to handcuff him and to note that the recordings speak for
themselves and are the best record of what was said and done, when and how.
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43.
Defendant City of Austin that Defendant Noble activated his Taser after Plaintiff
pulled his hand out of Defendant Arzola's grasp, and denies the remainder of the allegations of
material fact contained in Paragraph 43 of Plaintiff's Complaint other than to note that the
recordings speak for themselves and are the best record of what was said and done, when and
how.
44.
Defendant City of Austin admits that Defendant Salter struck Plaintiff in the face,
and denies the remainder of the allegations of material fact contained in Paragraph 44 of
Plaintiff's Complaint other than to note that the recordings speak for themselves and are the best
record of what was said and done, when and how.
45.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 45 of Plaintiff's Complaint.
46.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 46 of Plaintiff's Complaint.
47.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 47 of Plaintiff's Complaint.
48.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny the allegations of material fact contained in Paragraph 48 of Plaintiff's
Complaint.
49.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 49 of Plaintiff's Complaint.
50.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 50 of Plaintiff's Complaint.
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51.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny the allegations of material fact contained in Paragraph 51 of Plaintiff's
Complaint because it is too vague to be properly responded to.
52.
Defendant City of Austin admits the officers did not intervene with respect to each
other's conduct, but denies there was an opportunity or need to do so, and denies the remainder of
the allegations of material fact contained in Paragraph 52 of Plaintiff's Complaint.
53.
Defendant City of Austin admits the officers did not intervene with respect to each
other's conduct, but denies there was an opportunity or need to do so, and denies the remainder of
the allegations of material fact contained in Paragraph 53 of Plaintiff's Complaint.
54.
Defendant City of Austin admits Plaintiff was injured in the incident and denies
the remainder of the allegations of material fact contained in Paragraph 52 of Plaintiff's
Complaint.
55.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 55 of Plaintiff's Complaint with respect to this specific incident.
56.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 56 of Plaintiff's Complaint.
57.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny Plaintiff's allegations of material fact contained in Paragraph 57 of Plaintiff's
Complaint because it is too vague to be properly responded to.
58.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 58 of Plaintiff's Complaint.
59.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 59 of Plaintiff's Complaint.
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60.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 60 of Plaintiff's Complaint.
61.
Defendant City of Austin admits that there were uses of force related to the events
described in in Paragraph 61 of Plaintiff's Complaint, but denies that the recitations are accurate
or complete, denies that any of them are relevant to the incident at issue in this case, and denies
any other allegations of material fact contained in this paragraph as related to this Defendant.
62.
Defendant City of Austin admits that Judge Spark's communication referred to in
Paragraph 62 of Plaintiff's Complaint speaks for itself and denies that this is relevant to the
incident at issue in this case.
63.
Defendant City of Austin admits that the Richter case, referred to in Paragraph 63
of Plaintiff's Complaint was settled, but denies this is relevant to the incident at issue and denies
any other allegations of material fact contained in this paragraph as related to this Defendant.
64.
Defendant City of Austin admits that APD officers have used force on a number of
occasions and that other officers were sometime present for the same, as referred to in Paragraph
64 of Plaintiff's Complaint, but denies this is relevant to the incident at issue and denies any other
allegations of material fact contained in this paragraph as related to this Defendant.
65.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 65 of Plaintiff's Complaint.
66.
Defendant City of Austin admits that APD officers have used force on a number of
occasions and in response to varying types of resistance, as referred to in Paragraph 66 of
Plaintiff's Complaint, but denies this is relevant to the incident at issue and denies any other
allegations of material fact contained in this paragraph as related to this Defendant.
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67.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 67 of Plaintiff's Complaint.
68.
Defendant City of Austin admits that APD officers have used force on a number of
occasions and in response to varying types of resistance, as referred to in Paragraph 68 of
Plaintiff's Complaint, but denies this is relevant to the incident at issue and denies any other
allegations of material fact contained in this paragraph as related to this Defendant.
69.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 69 of Plaintiff's Complaint.
70.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 70 of Plaintiff's Complaint, other than to admit that a review was conducted, and its
specific statements speak for themselves. Defendant denies this report is relevant to the incident
in question.
71.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 71 of Plaintiff's Complaint, other than to admit that a review was conducted, and its
specific statements speak for themselves. Defendant denies this is relevant to the incident in
question.
72.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 72 of Plaintiff's Complaint, other than to admit that a review was conducted, and its
specific statements speak for themselves. Defendant denies this is relevant to the incident in
question.
73.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 73 of Plaintiff's Complaint, other than to admit that a review was conducted, and its
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specific statements speak for themselves. Defendant denies this is relevant to the incident in
question.
74.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 74 of Plaintiff's Complaint, other than to admit that a review was conducted, and its
specific statements speak for themselves. Defendant denies this is relevant to the incident in
question.
75.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 75 of Plaintiff's Complaint, other than to admit that a review was conducted, and its
specific statements speak for themselves. Defendant denies this is relevant to the incident in
question.
76.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 76 of Plaintiff's Complaint.
77.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 77 of Plaintiff's Complaint.
78.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 78 of Plaintiff's Complaint as not representing a complete or accurate description of
the entire academy training program. Defendant denies this is relevant to the incident in question.
79.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 79 of Plaintiff's Complaint as not representing a complete or accurate description of
the entire academy training program. Defendant denies this is relevant to the incident in question.
80.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 80 of Plaintiff's Complaint as not representing a complete or accurate description of
the entire academy training program. Defendant denies this is relevant to the incident in question.
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81.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 81 of Plaintiff's Complaint.
82.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 82 of Plaintiff's Complaint.
83.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 83 of Plaintiff's Complaint as not representing a complete or accurate description of
the entire academy training program. Defendant denies this is relevant to the incident in question.
84.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 84 of Plaintiff's Complaint as not representing a complete or accurate description of
the entire academy training program. Defendant denies this is relevant to the incident in question.
85.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 85 of Plaintiff's Complaint as not representing a complete or accurate description of
the entire academy training program. Defendant denies this is relevant to the incident in question.
86.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 86 of Plaintiff's Complaint as not representing a complete or accurate description of
the entire academy training program. Defendant denies this is relevant to the incident in question.
87.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 87 of Plaintiff's Complaint.
88.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 88 of Plaintiff's Complaint.
89.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 89 of Plaintiff's Complaint.
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90.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 90 of Plaintiff's Complaint.
86.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 86 of Plaintiff's Complaint.
87.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 87 of Plaintiff's Complaint.
88.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 88 of Plaintiff's Complaint. Defendant denies this is relevant to the incident in
question.
89.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 89 of Plaintiff's Complaint. Defendant denies this is relevant to the incident in
question.
90.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 90 of Plaintiff's Complaint. Defendant denies this is relevant to the incident in
question.
91.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 91 of Plaintiff's Complaint but denies this is a complete statement of its role or
purpose.
92.
Defendant City of Austin admits that OPM periodically made recommendations
but denies the allegations of material fact contained in Paragraph 92 of Plaintiff's Complaint
represent a complete and accurate re-statement of the same.
93.
Defendant City of Austin admits that OPM periodically provided statistics on the
reports it received but denies that the allegations of material fact contained in Paragraph 93 of
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Plaintiff's Complaint represent a complete and accurate re-statement of the same. Defendant
denies this is relevant to the incident in question.
94.
Defendant City of Austin admits that OPM reports were issued and that these
reports and their specific contents speak for themselves, and it denies any other allegations of
material fact contained in Paragraph 94 of Plaintiff's Complaint. Defendant denies this is relevant
to the incident in question.
95.
Defendant City of Austin admits that OPM reports were issued and that these
reports and their specific contents speak for themselves, and it denies any other allegations of
material fact contained in Paragraph 95 of Plaintiff's Complaint. Defendant denies this is relevant
to the incident in question.
96.
Defendant City of Austin admits that OPM reports were issued and that these
reports and their specific contents speak for themselves, and it denies any other allegations of
material fact contained in Paragraph 96 of Plaintiff's Complaint. Defendant denies this is relevant
to the incident in question.
97.
Defendant City of Austin admit that former Police Chief Acevedo spoke about
report writing but denies that Plaintiff's allegations of material fact contained in Paragraph 97 of
Plaintiff's Complaint are a complete and accurate reflection of the same and denies any other
allegations of material fact contained in this paragraph.
98.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 98 of Plaintiff's Complaint.
99.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 99 of Plaintiff's Complaint.
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100.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 100 of Plaintiff's Complaint.
101. Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny Plaintiff's allegations of material fact contained in Paragraph 101 of Plaintiff's
Complaint because it is too vague to be properly responded to.
102.
Defendant City of Austin is without knowledge or information sufficient to enable
it to admit or deny Plaintiff's allegations of material fact contained in Paragraph 102 of Plaintiff's
Complaint because it is too vague to be properly responded to.
103.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 103 of Plaintiff's Complaint other than to refer to the report the data comes from as the
best indication of what it reflects.
104.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 104 of Plaintiff's Complaint other than to refer to the report the data comes from as the
best indication of what it reflects.
105.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 105 of Plaintiff's Complaint other than to refer to the report the data comes from as the
best indication of what it reflects.
106.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 106 of Plaintiff's Complaint.
107. Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 107 of Plaintiff's Complaint other than to refer to the report the data comes from as the
best indication of what it reflects.
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108. Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 108 of Plaintiff's Complaint.
109. Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 109 of Plaintiff's Complaint.
110.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 110 of Plaintiff's Complaint.
111.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 111 of Plaintiff's Complaint.
112. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 112 of Plaintiff's Complaint.
113. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 113 of Plaintiff's Complaint.
114. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 114 of Plaintiff's Complaint other than to refer to the report the information comes
from as the best indication of what it reflects.
115.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 115 of Plaintiff's Complaint other than to refer to the report the information comes
from as the best indication of what it reflects.
116.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 116 of Plaintiff's Complaint and denies that this was relevant to the incident at issue.
117.
Defendant City of Austin denies the allegations of material fact contained in
Paragraph 117 of Plaintiff's Complaint.
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118. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 118 of Plaintiff's Complaint other than to admit that an officer can ask for mental
health services if needed.
119. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 119 of Plaintiff's Complaint.
120. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 120 of Plaintiff's Complaint.
121. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 121 of Plaintiff's Complaint.
122.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 122 of Plaintiff's Complaint other than to refer to the reports referred to as the best
indication of what they reflect.
123. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 123 of Plaintiff's Complaint.
124. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 124 of Plaintiff's Complaint.
125. Defendant City of Austin admits that officers generally secure the scene before
involving a mental health clinician and denies the remainder of the allegations of material fact
contained in Paragraph 125 of Plaintiff's Complaint.
126. Defendant City of Austin denies admits the allegations of material fact contained
in Paragraph 126 of Plaintiff's Complaint.
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127. Defendant City of Austin denies the allegations of material fact contained in
Paragraph 127 of Plaintiff's Complaint. Defendant denies this is relevant to the incident in
question.
128. Defendant City of Austin admits that fiscal decisions are made and that they can
impact police response, as noted in Paragraph 128 of Plaintiff's Complaint, but Defendant denies
this is relevant to the incident in question and denies the remainder of the allegations of material
fact in this paragraph.
129. Defendant City of Austin admits deadly force has been used against persons with
mental illness, as alleged in Paragraph 129 of Plaintiff's Complaint. Defendant denies this is
relevant to the incident in question.
130.
Defendant City of Austin admits non-deadly force has been used against persons
with mental illness, as alleged in Paragraph 130 of Plaintiff's Complaint. Defendant denies this is
relevant to the incident in question.
131.
Defendant City of Austin admits the allegations of material fact contained in
Paragraph 131 of Plaintiff's Complaint. Defendant denies this is relevant to the incident in
question.
132.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 132 of Plaintiff's Complaint.
133.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 133 of Plaintiff's Complaint other than to refer to the report the data comes from as the
best indication of what it reflects.
134.
Defendant City of Austin admits that there was a use of force related to the event
described in Paragraph 134 of Plaintiff's Complaint, but denies that the recitations are fully
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accurate or complete, denies it is relevant to the incident at issue in this case, and denies any other
allegations of material fact contained in this paragraph as related to this Defendant.
135. Defendant City of Austin admits that there was a use of force related to the event
described in Paragraph 135 of Plaintiff's Complaint, but denies that the recitations are fully
accurate or complete, denies it is relevant to the incident at issue in this case, and denies any other
allegations of material fact contained in this paragraph as related to this Defendant.
136.
Defendant City of Austin admits that there was a use of force related to the event
described in Paragraph 136 of Plaintiff's Complaint, but denies that the recitations are fully
accurate or complete, denies it is relevant to the incident at issue in this case, and denies any other
allegations of material fact contained in this paragraph as related to this Defendant.
136.
Defendant City of Austin admits that there was a use of force related to the event
described in Paragraph 136 of Plaintiff's Complaint, but denies that the recitations are fully
accurate or complete, denies it is relevant to the incident at issue in this case, and denies any other
allegations of material fact contained in this paragraph as related to this Defendant.
137. Defendant City of Austin admits that there was a use of force and settlement
related to the events described in Paragraph 137 of Plaintiff's Complaint, but denies that the
recitations are fully accurate or complete, denies they are relevant to the incident at issue in this
case, and denies any other allegations of material fact contained in this paragraph as related to this
Defendant.
138. Defendant City of Austin admits that there have been instances of force used by
officers that was determined to be excessive under the circumstances but denies the remainder of
the allegations of material fact contain in Paragraph 138 of Plaintiff's Complaint.
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139. Defendant City of Austin admits that there was a use of force and settlement
related to the events described in Paragraph 137 of Plaintiff's Complaint, but denies that the
recitations are fully accurate or complete, denies they are relevant to the incident at issue in this
case, and denies any other allegations of material fact contained in this paragraph as related to this
Defendant.
140. Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 140 of Plaintiff's
Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
141.
Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 141 of Plaintiff's
Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
142. Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 142 of Plaintiff's
Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
143.
Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 143 of Plaintiff's
Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
144.
Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 144 of Plaintiff's
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Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
145. Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 145 of Plaintiff's
Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
146. Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 146 of Plaintiff's
Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
147. Defendant City of Austin is not obligated under the rules to respond to claims and
allegations not made against it, such as the allegations contained in Paragraph 147 of Plaintiff's
Complaint. If and to the extent a response is required as to Defendant City of Austin, this
Defendant denies any allegations of material fact as related to it.
148. Paragraph 148 of Plaintiff's Complaint does not contain factual information to
admit or deny.
149. Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 149 of Plaintiff's Complaint.
150.
Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 150 of Plaintiff's Complaint.
151.
Defendant City of Austin admits the officers were in uniform and in the course of
their duties as police officers at the time of the incident, and denies the remainder of Plaintiff's
allegations of material fact contained in Paragraph 151 of Plaintiff's Complaint.
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152. Defendant City of Austin admits Plaintiff's allegations of material fact contained
in Paragraph 152 of Plaintiff's Complaint with respect to the time of the incident at issue.
153.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 153 of Plaintiff's Complaint.
154. Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 154 of Plaintiff's Complaint.
155. Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 155 of Plaintiff's Complaint.
156.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 156 of Plaintiff's Complaint.
157.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 157 of Plaintiff's Complaint.
158.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 158 of Plaintiff's Complaint.
159.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 159 of Plaintiff's Complaint.
160.
Defendant City of Austin denies Plaintiff's allegations of material fact contained in
Paragraph 160 of Plaintiff's Complaint.
161.
Defendant City of Austin admits Plaintiff seeks the relief identified in Paragraph
161 of Plaintiff's Complaint, but denies Plaintiff is entitled to such relief from this Defendant.
162. Paragraph 162 of Plaintiff's Complaint does not contain factual information to
admit or deny.
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163. Defendant City of Austin admits Plaintiff seeks the relief identified in Paragraph
163 of Plaintiff's Complaint, but denies Plaintiff is entitled to such relief from Defendant and
denies any other allegations of material fact contained in this paragraph.
B.
AFFIRMATIVE AND OTHER DEFENSES TO PLAINTIFF'S CLAIMS
1.
Defendant City of Austin would show that the City is a political subdivision of the
State of Texas and enjoys sovereign immunity (immunity from suit and liability) except to the
extent waived by an applicable statute. This Defendant asserts the defense of sovereign immunity
and the defenses and limitations set forth in any statute waiving immunity. Defendant further
asserts sovereign, governmental and/or prosecutorial immunities from this suit, liability and/or
damages.
2.
Defendant City of Austin further alleges that Plaintiff is not entitled to recovery if
and to the extent his conduct, whether acting singly or in concert with others, was the sole
proximate cause, or alternatively, a proximate cause of Plaintiff's injuries and damages, if any.
3.
Defendant City of Austin would show that Plaintiff is not entitled to recovery if
and to the extent he failed to mitigate the alleged injuries and/or damages by negligent and/or
intentional acts, whether individually or in any combination, and if such failure was the sole,
proximate and/or producing cause of the damages alleged by Plaintiff.
4.
Defendant City of Austin invokes $18.091 of the TEXAS CIVIL PRACTICE AND
REMEDIES CODE and requests, to the extent any party seeks recovery for loss of earnings or loss of
earning capacity, that the evidence to prove such loss must be presented in the form of a net loss
after reduction for income tax payments or unpaid tax liability.
Defendant City of Austin's Original Answer and Defenses/26932
Page 23
Case 1:22-cv-01050-LY Document 7 Filed 12/01/22 Page 24 of 25
5.
Answering further and in the affirmative, Defendant City of Austin invokes
$41.0105 of the TEXAS CIVIL PRACTICE AND REMEDIES CODE concerning any claim for the
recovery of health care expenses and other related damages, past and future.
6.
Defendant City of Austin expressly reserves the right to assert additional
affirmative and other defenses as the case develops and further factual investigation reveals their
applicability.
WHEREFORE PREMISES CONSIDERED, Defendant City of Austin prays that this
matter be set for trial with proper notice to all parties; and upon hearing, that judgment
subsequently enter in favor of said Defendant; and for such other and further relief to which this
Defendant may be justly entitled.
Respectfully submitted,
FLETCHER, FARLEY,
SHIPMAN & SALINAS, L.L.P.
2530 Walsh Tarlton Lane, Suite 150
Austin, Texas 78746
(512) 476-5300
FAX (512) 476-5771
By:/s/ Joanna Lippman Salinas
Joanna Lippman Salinas
State Bar No. 00791122
joanna.salinas@fletcherfarley.com
Attorneys for Defendant, City of Austin
Defendant City of Austin's Original Answer and Defenses/26932
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Case 1:22-cv-01050-LY Document 7 Filed 12/01/22 Page 25 of 25
Certificate of Service
I here certify that a true and correct copy of the foregoing Defendant City of Austin's
Original Answer and Defenses has been provided to the offices of:
Jeff Edwards
Mike Singley
David James
Paul Samuel
EDWARDS LAW
1101 East 11th Street
Austin, Texas
by Electronic Service, in accordance with the Federal Rules of Civil Procedure, on December 1,
2022.
/s/ Joanna Lippman Salinas
Joanna Lippman Salinas
Defendant City of Austin's Original Answer and Defenses/26932
Page 25
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JAMES EDWARD JOHNSON,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-01050-LY
§
BRANDON SALTER, SAMUEL NOBEL,
§
and KATHERINE ALZOLA, in their
§
individual capacities, and the
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
DEFENDANTS BRANDON SALTER, SAMUEL NOBLE AND KATHERINE
ALZOLA'S ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COME NOW Defendants, Brandon Salter, Samuel Noble, and Katherine Alzola, by and
through their attorneys of record, and files this their Original Answer to Plaintiff's Original
Complaint, and in support thereof would respectfully show the Court as follows:
I.
ORIGINAL ANSWER
A. Parties.
1.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraph 1 of Plaintiff's Original Complaint.
2.
As to the allegations contained within Paragraphs 2 - 4 of Plaintiff's Original Complaint,
Defendants deny that any APD officer may be validly served at 715 E. 8th Street, Austin Texas
78701 through means other than personal service of process. Defendants otherwise admit the
remaining allegations therein.
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 2 of 11
3.
As to the allegations contained within Paragraph 5 of Plaintiff's Original Complaint,
Defendants are without sufficient knowledge to form a belief as to the truth of who the policymaker
is, nor how service of process may be served upon the City. Otherwise, admit.
B. Jurisdiction and Venue.
4.
Defendants admit the allegations contained within Paragraphs 6 - 9 of Plaintiff's Original
Complaint.
C. Facts.
5.
As it pertains to the allegations contained in Paragraph 10 of Plaintiff's Original Complaint,
Defendant admits that someone from Plaintiff's family member called 911 on the date specified
to report that Plaintiff Johnson was acting in a manner believed to be suicidal, and that he possessed
the means to kill himself or others-a firearm. Defendants are without sufficient knowledge to
form a belief as to the truth of whether he suffered from chronic mental illness, nor whether he
was genuinely going through a mental health crisis.
6.
As it pertains to the allegations contained in Paragraph 11 of Plaintiff's Original Complaint,
Defendant deny that the Austin Police Department did not dispatch trained mental health officers
to the scene. Defendants admit that the three of them were dispatched to Plaintiff's home due to
the report that he was suicidal and possessed a firearm.
7.
As to the allegations contained within Paragraphs 12 - 13 of Plaintiff's Original Complaint,
Defendants admit that Officer Noble had encountered Plaintiff on a previous call, but deny that
Officer Noble knew that Plaintiff was not dangerous, nor that he verifiably knew any specific
diagnosis of Plaintiff. Defendants are without sufficient knowledge to form a belief as to the truth
of what specific information Officer Noble communicated to Officers Salter and Azola leading up
to engaging Plaintiff.
Defendants Salter, Noble, and Alzola's Original Answer
Page 2
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 3 of 11
8.
As to the allegations contained within Paragraphs 14 - 17 of Plaintiff's Original Complaint,
Defendants deny that Plaintiff's initial statements suggested he was not a threat to himself or
others. Defendants admit that Plaintiff communicated to the officers that he wanted them to leave,
and that instructions were given to Plaintiff asking him to come outside and talk to the officers
dispatched to his apartment.
9.
As to the allegations contained within Paragraphs 18 - 20 of Plaintiff's Original Complaint,
Defendants deny that Plaintiff's actions amounted to cooperative compliance, as suggested, but
admit that he eventually exited through his front door. Defendants are without sufficient
knowledge to form a belief as to the exact positioning of his hands, and therefore deny the same.
Defendants are currently without sufficient knowledge to form a belief as to when specifically any
of the officers may have drawn their service weapons during the encounter. Defendants admit that
Officer Noble was behind Plaintiff, but deny that they knew what Plaintiff personally knew, saw,
or did not see.
10.
As to the allegations contained within Paragraphs 21 - 24 of Plaintiff's Original Complaint,
Defendants admit Plaintiff was in shorts and socks, but deny that they knew he was unarmed, deny
that he had no place to potentially hide a weapon, and deny that Plaintiff's apartment was well lit.
Defendants are currently without sufficient knowledge to form a belief as to what threats, if any,
Plaintiff made as to the officers themselves, but deny that his actions-reported via dispatch and
observed by the officers-did not amount to a risk of potential harm to the officers or to himself.
Defendants further deny that none of the officers suspected him of committing any crimes.
11.
As to the allegations contained within Paragraphs 25 - 30 of Plaintiff's Original Complaint,
Defendant deny that Plaintiff's conduct amounted to calm compliance, as suggested, and that they
verifiably knew whether Plaintiff was going through a mental health crisis. Defendants are
Defendants Salter, Noble, and Alzola's Original Answer
Page 3
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 4 of 11
currently without sufficient knowledge to form a belief as to when specifically any of the officers
may have drawn their service weapons during the encounter. Defendants admit that Plaintiff was
given instructions by the officers attempting to make the scene secure, but deny that the officers
acted inappropriately or otherwise triggered any duty to intercede.
12.
As to the allegations contained within Paragraphs 31 - 34 of Plaintiff's Original Complaint,
Defendants admit that Plaintiff re-entered his home but deny that he did SO in the peaceful and
non-threatening manner specified, and deny that the act of re-entering his home was itself conduct
that an officer would perceive as not being threatening under the circumstances. Defendants admit
that Officer Noble deployed his Taser on Plaintiff and that they subsequently followed him into
his residence.
13.
As to the allegations contained within Paragraphs 35 - 38 of Plaintiff's Original Complaint,
Defendants admit that one or more of them issued commands for Plaintiff to get into a position
where he could be safely handcuffed. Defendants are currently without sufficient knowledge to
form a belief as to the truth of the specific quoted statements allegedly made by the parties therein,
as written. Defendants deny that the area was well lit, deny that Plaintiff's conduct amounted to
compliance, and deny that he peacefully sat on the floor. Defendants further deny that Plaintiff's
conduct amounted to him showing the officers he was unarmed, and deny they could see there was
no weapon in reach in the dark apartment.
14.
As to the allegations contained within Paragraphs 39 - 42 of Plaintiff's Original Complaint,
Defendants admit that Plaintiff was given instructions by the officers attempting to make the scene
secure. Defendants deny that Plaintiff's conduct amounted to compliance, and denied that he
calmly laid on his stomach holding his hands out where the officers could see they were empty, as
suggested. Defendants admit that Officer Salter took control of Plaintiff's head during attempts to
Defendants Salter, Noble, and Alzola's Original Answer
Page 4
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 5 of 11
subdue him and make the scene safe, and that Officer Alzola also attempted to take control of
portions of Plaintiff's body for the same purposes.
15.
As to the allegations contained within Paragraphs 43 - 45 of Plaintiff's Original Complaint,
Defendants are currently without sufficient knowledge to form a belief as to the truth of the specific
allegations related to Taser usage as they are written. Defendants admit that Officer Salter used
hand strikes to Plaintiff's face or head in order to subdue him enough to allow him to be put in
handcuffs, but deny that they were unjustified.
16.
As to the allegations contained within Paragraphs 46 - 49 of Plaintiff's Original Complaint,
Defendants deny that Plaintiff never resisted, deny that officers had no reason to believe he was
resisting, and deny that Plaintiff never did anything to suggest he might be reaching for a weapon.
17.
As to the allegations contained within Paragraphs 50 - 51 of Plaintiff's Original Complaint,
Defendants deny that one or more of the responding officers were not trained and/or certified in
handling mental health crisis intervention. Defendants also deny that they were not qualified to
handle an emergency detention call for a person who is suicidal, whether because of mental health
reasons or otherwise.
18.
As to the allegations contained within Paragraphs 52 - 55 of Plaintiff's Original Complaint,
Defendants deny that anything they did constituted excessive force, and deny that anything that
occurred that would have triggered a need or duty to intervene. Defendants admit that Plaintiff's
jaw was broken and required medical treatment, and that there was blood on the floor. Defendants
admit that-technically speaking-Plaintiff was not arrested or charged with a crime, as he was
detained under an emergency detention.
19.
Defendants deny the allegations contained within Paragraph 56 of Plaintiff's Original
Complaint.
Defendants Salter, Noble, and Alzola's Original Answer
Page 5
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 6 of 11
20.
Defendants are currently without sufficient knowledge to form a belief as to the truth of
the specific allegations contained within Paragraph 57 of Plaintiff's Original Complaint, as written.
21.
As to the allegations contained within Paragraph 58 of Plaintiff's Original Complaint,
Defendants deny any such failures to train, and deny that APD has a "long" history of excessive
force incidents.
22.
Defendants deny the allegations contained within Paragraphs 59 - 60 of Plaintiff's Original
Complaint.
23.
Defendants are currently without sufficient knowledge to form a belief as to the truth of
the specific allegations contained within Paragraphs 61 - 64 of Plaintiff's Original Complaint as
written.
24.
As to the allegations contained within Paragraphs 65 - 68 of Plaintiff's Original Complaint,
Defendants deny that-categorically, without exception-using force against persons who are
exhibiting passive or defensive resistance is inappropriate or unconstitutional. Defendants are
currently without sufficient knowledge to form a belief as to the truth of the specific allegations
related to how routinely APD officers use force in such circumstances.
25.
Defendants are currently without sufficient knowledge to form a belief as to the truth of
the specific allegations contained within Paragraphs 69 - 77 of Plaintiff's Original Complaint.
26.
As to the allegations contained within Paragraphs 78 - 99 of Plaintiff's Original Complaint,
Defendants deny that the APD training academy utilized training methods that encouraged the use
of excessive force or were otherwise inappropriate. However, Defendants are currently without
sufficient knowledge to form a belief as to the truth of the allegations contained therein as
specifically written.
Defendants Salter, Noble, and Alzola's Original Answer
Page 6
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 7 of 11
27.
Defendant denies the allegations contained within Paragraph 100 of Plaintiff's Original
Complaint.
28.
Defendants are currently without sufficient knowledge to form a belief as to the truth of
the specific allegations contained within Paragraphs 101 - 102 of Plaintiff's Original Complaint.
29.
As to the allegations contained within Paragraphs 103 - 128 of Plaintiff's Original
Complaint, Defendants respond that the reports containing the data referenced speak for
themselves and no response is required from these defendants regarding the veracity of the data
therein. Defendants admit that officers are permitted to ask for mental health services if needed.
Defendants further admit that they are trained generally to make every scene secure, especially in
the case of a suspect in possession of a deadly weapon, before any mental health professional are
deployed on the scene, and that they do SO for the safety of the mental health professionals.
Defendants are currently without sufficient knowledge to form a belief as to the truth of the
allegations therein that reflect what other persons knew or other persons did or did not do at any
time. Otherwise, denied.
30.
As to the allegations contained within Paragraphs 129 - 137 of Plaintiff's Original
Complaint, Defendants respond that the reports containing the data referenced speak for
themselves and no response is required from these defendants regarding the veracity of the data
therein. Defendants are currently without sufficient knowledge to form a belief as to the truth of
the allegations therein that reflect what other persons knew or other persons did or did not do at
any time. Otherwise, denied.
31.
As to the allegations contained within Paragraphs 138 - 139 of Plaintiff's Original
Complaint, Defendants respond that the reports containing the data referenced speak for
themselves and no response is required from these defendants regarding the veracity of the data
Defendants Salter, Noble, and Alzola's Original Answer
Page 7
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 8 of 11
therein. Defendants are currently without sufficient knowledge to form a belief as to the truth of
the allegations therein that reflect what other persons knew, or other persons did or did not do at
any time. Otherwise, denied.
D. Causes of Action.
i.
Fourth and Fourteenth Amendment Excessive Force by Defendants Noble and
Salter.
32.
As to the allegations contained in Paragraphs 140 - 143 of Plaintiff's Original Complaint,
Defendants admit that they were acting under the color of law during the incident that forms the
basis of this lawsuit. Otherwise, denied.
ii.
Fourth and Fourteenth Amendment Bystander Excessive Force by Defendants
Noble, Salter, and Alzola.
33.
As to the allegations contained in Paragraphs 144 - 147 of Plaintiff's Original Complaint,
Defendants admit that they were acting under the color of law during the incident that forms the
basis of this lawsuit. Defendants further admit that none of them stepped in to intercede, because
no duty to intercede had been triggered or was otherwise warranted. Otherwise, denied.
iii.
Fourth and Fourteenth Amendment Monell Claim against Defendant City of
Austin Only.
34.
As to the allegations contained in Paragraphs 148 - 160, no response is necessary from
these Defendants. If a response is ultimately deemed necessary, then Defendants adopt and
incorporate their responses to the previous Paragraphs of the Complaint, and deny all allegations
therein not addressed supra.
E. Damages, Relief Requested, Jury Demand, & Prayer.
35.
As to the allegations contained in Paragraphs 161 - 163, no answer is necessary from these
Defendants. To the extent any answer is deemed necessary, Defendants admit that Plaintiff seeks
Defendants Salter, Noble, and Alzola's Original Answer
Page 8
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 9 of 11
the relief requested therein, but denies that any of their alleged conduct at issue amounted to an
injustice of any kind. Otherwise, denied.
II.
AFFIRMATIVE DEFENSES & IMMUNITIES
36.
Defendants deny 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.
37.
Defendants hereby invoke the doctrine of Qualified Immunity and Official Immunity.
Defendants discharged their obligations and public duties in good faith and would show that their
actions were objectively reasonable in light of the law and the information possessed at that time,
and that no clearly established law exists prohibiting them from using force against a person who
is believed to have very recently used a deadly weapon, and is uncompliant with officer commands
when those commands are given in order to secure the scene to make it safe for all persons
involved.
38.
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,
Defendants invoke the comparative responsibility provisions of the Texas Civil Practice &
Remedies Code. 1
39.
Defendants further plead that, in the unlikely event they are 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, including Plaintiff himself.
1 See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendants Salter, Noble, and Alzola's Original Answer
Page 9
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 10 of 11
40.
Defendants plead that they had legal justification for each and every action taken by them
relating to this incident based on the information available to them at the time.
41.
Defendants assert the limitations and protections of Chapter 41 of the Texas Civil Practice
& Remedies Code, and the Due Process Clause of the United States Constitution.
42.
Defendants assert the limitations and protections of Chapter 101 of the Texas Civil Practice
& Remedies Code.
43.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of this case.
44.
To the extent Defendants did not address a specific averment made by Plaintiff in his
Original Complaint, Defendants expressly deny all such averments.
III.
JURY DEMAND
45.
Pursuant to Federal Rule of Civil Procedure 48, Defendants hereby request a jury trial.
IV.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants pray that upon a final hearing of
this cause, the Court dismiss all of Plaintiff's claims with prejudice, that all costs of court be
assessed against Plaintiff, that they be awarded attorney fees incurred in the defense of this suit,
and for all further relief to which they 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
Defendants Salter, Noble, and Alzola's Original Answer
Page 10
Case 1:22-cv-01050-DII Document 16 Filed 05/22/23 Page 11 of 11
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
BRANDON SALATER, SAMUEL NOBLE,
AND KATHRINE ALZOLA
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of December, 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:
Jeff Edwards
jeff@edward-law.com
David James
david@edwards-law.com
Paul Samuel
paul@edwards-law.com
EDWARDS LAW
603 W. 17th St.
Austin, TX 78701
Joanna Lippman Salinas
Joanna.salinas@fletcherfarley.com
FLETCHER, FARLEY, SHIPMAN & SALINAS, LLP
2530 Walsh Tarlton Lane, Suite 150
Austin, TX 78746
/s/ Blair J. Leake
Blair J. Leake
Defendants Salter, Noble, and Alzola's Original Answer
Page 11
Case 1:22-cv-01050-DII Document 16-1 Filed 05/22/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JAMES EDWARD JOHNSON,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-01050-DII
§
BRANDON SALTER, SAMUEL NOBEL,
§
and KATHERINE ALZOLA, in their
§
individual capacities, and the
§
CITY OF AUSTIN, TEXAS,
§
Defendants.
§
SUPPLEMENTAL CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of May, 2023, a true and correct copy of Defendants
Brandon Salter, Samuel Noble, and Katherine Alzola's Original Answer to Plaintiff's Original
Complaint was served upon the following counsel of record via CM/ECF and/or E-Mail:
Jeff Edwards
jeff@edward-law.com
David James
david@edwards-law.com
Paul Samuel
paul@edwards-law.com
EDWARDS LAW
603 W. 17th St.
Austin, TX 78701
Joanna Lippman Salinas
Joanna.salinas@fletcherfarley.com
FLETCHER, FARLEY, SHIPMAN & SALINAS, LLP
2530 Walsh Tarlton Lane, Suite 150
Austin, TX 78746
/s/ Blair J. Leake
Blair J. Leake
Supplemental Certificate of Service
Page 1