Volter-Jones V. The City of Austin; Edward Boudreau and Derrick Lehman

Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 1 of 27
FILED
MAY 26 2022
WESTERNDISTRICT BY DAY OF TEXAS
CLERK, U.S. DISTRICT CLERK
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
DEPUTY
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
1:22 CV00511
LY
§
Plaintiff
§
V.
§
CAUSE OF ACTION: -CV-
§
CITY OF AUSTIN, EDWARD BOUDREAU,
§
Individually, and DERRICK LEHMAN,
Individually
§
§
§
Defendants
PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT COURT:
Plaintiff GE'MICAH VOLTER-JONES (hereinafter referred to as "Mr. Volter-Jones" or
"Plaintiff") brings this Original Complaint under the First, Fourth and Fourteenth Amendment of the
United States Constitution and 42 U.S.C. § 1983 against the CITY OF AUSTIN, Texas (hereinafter
referred to as "the City" or "Austin, Texas) incorporating all parts of the municipality including the
Austin Police Department (hereinafter "APD" or "Police Department"), EDWARD BOUDREAU
(hereinafter "Defendant Boudreau" or "Officer Boudreau"), individually, and DERRICK LEHMAN
(hereinafter "Defendant Lehman" or "Officer Lehman"), individually, and shows this Honorable Court
the following:
I. PARTIES
1. Plaintiff GE'MICAH VOLTER-JONES is a citizen of the United States and is a
permanent resident of Travis County, Texas.
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2. Defendant CITY OF AUSTIN, is a municipal government in the United States. The
City of Austin, Texas may be served through its Mayor or City Clerk at 301 W. 2nd Street, Austin,
TX 78701. Service is hereby requested at this time.
3. Defendant EDWARD BOUDREAU is an individual employed as a police officer with
the Austin Police Department. He is sued in his individual capacity for compensatory and
punitive damages. At all relevant times, Edward Boudreau was acting within the scope of his
employment and under color of law as an Austin Police Department officer. Austin Police
Department Chief of Police at the time of the excessive force shooting, Brian Manley, was his
ultimate supervisor, and the City's policy maker for law enforcement issues. Defendant Boudreau
may be served with process at the Austin Police Department, 715 E. 8th Street, Austin, Texas,
78701. Service is hereby requested at this time.
4. Defendant DERRICK LEHMAN is an individual employed as a police officer with the
Austin Police Department. He is sued in his individual capacity for compensatory and punitive
damages. At all relevant times, Defendant Lehman was acting within the scope of his
employment and under color of law as an Austin Police Department officer. Austin Police
Department Chief of Police at the time of the excessive force shooting, Brian Manley, was his
ultimate supervisor, and the City's policy maker for law enforcement issues. Defendant Lehman
may be served with process at the Austin Police Department, 715 E. 8th Street, Austin, Texas,
78701. Service is hereby requested at this time.
II. JURISDICTION AND VENUE
5. This Court has jurisdiction over this action pursuant to the First, Fourth, and
Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 under 28 U.S.C.
§§ 1331 and 1343.
2
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6. Venue is proper in this Court, pursuant to 28 U.S.C. § 1391(b)(2), as all parts of the
events or omissions giving rise to the claim occurred in Travis County, Texas, which is within
this United States District Court for the Western District of Texas, Austin division.
III. FACTS
7. Austin has a long history of mobilization and direct action. 1
8. On May 28th, 2020, following the police killings on May 25th, 2020 of George Floyd in
Minneapolis, Minnesota² and on April 24th, 2020 of Mike Ramos in Austin, Texas3, anti-violence
supporters organized demonstrations against police brutality in central Austin and the media
publicly it to the community. 4
9. The Austin Police Department was aware of the planned demonstrations for Saturday,
May 30th, 2020 and released a statement affirming that they would keep the community safe. 5
10. On Friday, May 29th, 2020, as per current Chief Chacon, the City of Austin Police
Department mobilized a "125-officer special crowd control management team" in anticipation
of the demonstrations scheduled for Saturday, May 30th, 2020.6
1 htps://library.austintexas.gov/blog/taking-it-streets-visual-history-protest-and-demonstration-austir and
https://storymaps.arcgis.com/stories/754a36d75f6440dea43b73f5562c629
2
Hill, E., Tiefenthäler, A., Triebert, C., Jordan, D., Willis, H., & Stein, R. (2020, May 31). How George Floyd was
killed in police custody. The New York Times at https://www.nytimes.com/2020/05/31/us/george-floyd-
investigation.html
3
https://www.kut.org/austin/2020-05-20/austin-police-report-confirms-michael-ramos-was-fatally-shot-says-officer
considered-car-a-weapon
4 https://spectrumlocalnews.com/tx/austin/news/2020/05/28/george-floyd-protest-event-planned-for-saturday-in-
austin- "The event organizer wrote the following on Facebook, in part: "Across the whole country, the fight against
the police and for people's justice is the same. Come join us this Saturday in solidarity with Minneapolis and to
demand justice for George and Mike!"
5 "The Austin Police Department is aware of the planned protest occurring this weekend. We will have the
appropriate number of officers on duty to ensure every citizen's right to gather and peacefully protest is protected,
while also keeping our community safe."athttps://www.kvue.com/article/news/local/austin-protest-police-ramos
plack-lives-matter-floyd-derek-chauvin/269-1e126940-ecda-48c5-b0dc-10bfbec6d0f7
6
https://www.statesman.com/story/news/2022/02/23/austin-police-chiefs-depositions-2020-protest-officers
force/6820028001/
3
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11. The City of Austin Police Department had between 1,143 police officers7 and 2,100
officers8 employed on May 30th, 2020. Between 99.98%9 and 99.995%¹0 of APD police officers
employed on May 30th, 2020 acted reasonably by refraining from excessive force shootings of
less-lethal rounds, thus they protected and served the Austin community and honorably upheld
their motto, "One Austin, Safer Together."
12. Mr. Volter-Jones arrived downtown on the morning of May 30, 2020 to attend the
public anti-violence demonstrations. Mr. Volter-Jones parked his vehicle in the West Campus
area of the University of Texas.
13. Mr. Volter-Jones is an artistic and commercial photographer. For example, on 2019,
Mr. Volter-Jones was hired as a commercial photographer to document the EU Antitrust Chief
Margrethe Vestager at a SXSW event in Austin, Texas and his photography was published in
Bloomberg BusinessWeek on March 13, 2019. 12 Mr. Volter-Jones was attending the anti-violence
demonstrations as a private individual without a professional photography commission or
assignment, yet he took numerous personal photos of the events that day as they transpired.
14. Mr. Volter-Jones is an advocate for peace and demonstrated in opposition to
unreasonable police violence, excessive force and brutality. He had previously attended other
peaceful demonstrations, including Women's Marches, without any harm from police.
7
https://www.kxan.com/investigations/apd-overtime-during-protests-may-near-1-million/
8https://www.kvue.com/article/news/local/austin-protest-police-ramos-black-lives-matter-floyd-derek-chauvin/269-
1e126940-ecda-48c5-b0dc-10bfbec6d0f7
9
11/2100 or 1143 disciplined by APD at https://www.npr.org/2022/02/17/1081609073/19-austin-police-officers-
indicted-from-investigation-into-2020-protests-sources
10 19/1143 or 2100 criminally indicted, Ibid.
11 https://www.austintexas.gov/department/police
12 https://www.bloomberg.com/news/articles/2019-03-13/eu-antitrust-chief-margrethe-vestager-on-her
next-act
4
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15. On May 30, 2020, the temperature in central Austin reached a high of 87.1° degrees
Fahrenheit. 13
16. Mr. Volter-Jones brought with him to the demonstrations bottled water, his camera
and backpack.
17. Mr. Volter-Jones assembled with other anti-violence demonstrators and walked from
the morning throughout the day from the Capitol and throughout downtown Austin.
18. The APD provided employee officers with less-than-lethal Kinetic Impact Projectiles
(KIPs) in the form of bean bag round munitions which "send a projectile at 600 feet per
second. "14 Since 1974, law enforcement has known via the findings of the US Army Land
Warfare Laboratory in the National Criminal Justice Reference Service (NCJRS) that the use of
Kinetic Impact Projectiles (KIPs) such as bean bag munitions "means accepting a high incidence
of serious injury to any person hit in the head or trunk areas. "15
19. On May 30th, 2020 at approximately 1:25 pm, all APD officers were "ordered to
work. " 16
20. On May 30th, 2020, at approximately 1:30 pm, Governor Greg Abbott announced he
sent "state resources to Austin, Dallas, Houston and San Antonio to maintain public safety." "
DPS sent more than 1,500 officers to assist local police departments.17
21. During the day and early evening, Mr. Volter-Jones witnessed demonstrators being
bloodied and severely injured by police officers shooting less-than-lethal Kinetic Impact
Projectiles (KIPs) bean bag rounds into crowds from unsafe distances (most frighteningly for
13 ps://weatherspark.com/h/d/8004/2020/5/30/Historical-Weather-on-Saturday-May-30-2020-in-Austin-Texas-
United-States#metar-16-53
14
https://www.statesman.com/story/news/2022/02/23/austin-police-chiefs-depositions-2020-protest-officers-
force/6820028001/
15
hhttps://www.ojp.gov/pdffiles1/Digitization/34846NCJRS.pdf
16 Ibid.
17 Ibid.
5
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him, police officers were shooting on demonstrators from the top of the IH-35 highway down
onto the lower level of IH-35). 18 As no other police officers stopped or arrested the police who
were shooting into the crowds of anti-violence demonstrators, it was evident that Police Chief
Manley and his senior leadership at APD had directed the shooting to continue; thus, the City of
Austin and individual unreasonable police officers were thereby committing excessive force and
US Constitution First Amendment violations.
22. Mr. Volter-Jones observed other demonstrators who had sanitizers (as this was during
the COVID-19 pandemic), additional water and some demonstrators were acting as "street
medics" providing first aid to people injured by police violence.
23. By 7 pm, Mr. Volter-Jones had marched from the Capitol to the Ann W. Richards
Congress Avenue Bridge and was walking near 1000 E. Riverside Dr., Austin, Texas, 78704.
Plaintiff recalled that after turning left onto East Riverside Drive, the informal group of
demonstrators he was walking with (an estimated 30-40 people) started heading back downtown.
24. Plaintiff Volter-Jones witnessed APD bring in busloads of additional officers who
dispersed themselves in a line in front of peaceful demonstrators and barricaded off the exit areas
to the middle and left of the group. Mr. Volter-Jones recalls that there was an individual, whom
he recalled as "an older black gentleman", next to him recording a Facebook live (about the
police officers blocking the group exits and pathways), who said, 'Please don't kill me. Please
don't kill me. Let us pass. "
25. Mr. Volter-Jones observed the line of police officers (a group of approximately 40-60
officers) at a distance of approximately 15-20 feet away from where he was standing.
18
https://www.kvue.com/article/news/local/protests/austin-protests-texas-austinite-hit-in-jaw-less-lethal-round/2694
a1694517-4f08-4a02-bed2-975b388c0ed8
6
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26. Mr. Volter-Jones was unarmed, defenseless and not a threat to anyone. Mr. Volter-
Jones had previously suffered from clinical anxiety and perceived that his life was in danger. Mr.
Volter-Jones was prevented from safe movement away from the police officers blocking him into
the area (he reasonably feared that running, or even moving quickly, away would likely result in
unreasonable police officers shooting him, as he had witnessed them shoot and injure
demonstrators throughout that day).
27. Overcome with anxiety and fear at witnessing police shooting and injuring multiple
anti-violence demonstrators, being physically surrounded by officers armed with weapons while
nearby demonstrators begged not to be killed by the police; Mr. Volter-Jones panicked.
28. As an expression of Mr. Volter-Jones' fear, he engaged in a startle reflex, a set of
skeletomuscular contractions elicited by an intense stimulus of sudden onset¹9 (e.g., police
holding weapons and pointing at the group he was in while blocking off movement pathways)
and as a result tossed an empty water bottle up into the air. No one (or property) was hit by the
empty water bottle. Mr. Volter-Jones witnessed a police officer catch the empty water bottle in
their hand.
29. Mr. Volter-Jones witnessed an officer (now identified as Edward Boudreau), open his
mouth, say words (that Plaintiff couldn't clearly hear from 15-20 feet away) and pointed at
Plaintiff. Then, another officer (now identified as Derrick Lehman) next to the first officer who
pointed at him, raised a 12-gauge shot gun loaded with less-than-lethal Kinetic Impact Projectiles
(KIPs) bean bag rounds and shot Mr. Volter-Jones with a round at a velocity of 600 ft per
second.
19 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6707516/
7
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30. Mr. Volter-Jones observed the less-than-lethal bean bag bullet round fire out of an
Austin police officer's gun and into his forearm, he recalled it was almost as if the shooting was
in slow motion. Mr. Volter-Jones recalls that he was screaming in pain and his hand started
violently shaking. A street medic attended to him after being shot and wrapped his arm up in a
makeshift bandage. Mr. Volter-Jones then was assisted by friends to his vehicle and to the
emergency room at Ascension Seton Medical Center Austin at 1201 W 38th St, Austin, TX
78705.
31. The Kinetic Impact Projectiles (KIPs) bean bag shot severely damaged Volter-Jones's
forearm necessitating emergency surgery for compartment syndrome²0, as his medical providers
informed him that "the blood flow stopped" to his arm.
Illustration of deep volar compartment fasciotomy21
Superficial branch
Brachioradialis
of radial nerve
Radial artery
Flexor pollicis longus
Flexor digitorum superficialis
Flexor carpi radialis
Pronator teres
Flexor digitorum profundus
Median nerve
AO
32. The shooting also caused Volter-Jones to suffer significant pain, mental anguish,
impairment, injury, and disfigurement.
33. Mr. Volter-Jones was not questioned, cited, or charged with any crime related to the
events on May 30th, , 2020.
20
"Acute compartment syndrome is a surgical emergency, in the setting of which immediate actions should be taken
to avert muscle and nerve cell death[.]" at https://www.ncbi.nlm.nih.gov/books/NBK553899/
21
https://surgeryreference.aofoundation.org/orthopedic-trauma/pediatric-trauma/forearm-shaft/further-
ading/compartmentsyndrome#volar-compartment-fasciotomy-of-the-forearm
8
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 9 of 27
34. In June of 2020, APD, led by former Chief Manley, reviewed the incident on May
30th, 2020, and put Officer Derrick Lehman on administrative duty for his involvement in the use
of force during protests against racial injustice, specifically for shooting Plaintiff.22 APD
determined that a Level 1 less-lethal force protest-related critical incident had occurred at the
date, time and location that Officer Edward Boudreau and Officer Lehman unreasonably shot
Mr.
Volter-Jones (20-5022436 I May 30, 2020 I Approximately 7:12 p.m. I 1000 E. Riverside
Dr.). 23
35. In February of 2022, the Travis County District Attorney's Office indicted and
arrested Officers Derrick Lehman (D-1-DC-20-900071) and Edward Boudreau (D-1-DC-22-
900020) for felony aggravated assault by a public servant based on criminal law arising out of
the same facts herein of the May 30, 2020 shooting of Plaintiff. 24
Iv. CAUSES OF ACTION
A. 42 U.S.C. § 1983 (Monell) and the FIRST, FOURTH AMENDMENT TO THE US
CONSTITUTION APPLIED THROUGH THE FOURTEENTH AMENDMENT - As To DEFENDANT
CITY OF AUSTIN ONLY
36. Plaintiff incorporates the preceding paragraphs as if alleged herein.
37. The City of Austin is a municipality founded in 1839 as the capital of the Republic of
Texas. After the annexation of Texas by the United States in 1845, Austin became the capital of
the state of Texas. 25
22
https://www.austintexas.gov/news/protest-response-resistance-investigation-update
23
https://www.austintexas.gov/news/protest-response-resistance-investigation-update
24
4https://cbsaustin.com/news/local/16-indicted-apd-officers-now-out-on-bond
25 https://library.austintexas.gov/ahc/brief-history-austin
9
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 10 of 27
38. The Austin Police Department is a department of the City of Austin that was formally
created by the Austin City Council in 1862. 26
39. The City of Austin is responsible for their policy making employee. The City of
Austin's policymaker for policing matters currently is Police Chief Joseph Chacon. At the time
of this excessive force shooting of Plaintiff on May 30th, 2020, current Police Chief Chacon was
one of four assistant APD Chiefs27 and the City of Austin Police Chief was Brian Manley. 28
40. Plaintiff was deprived of his rights, privileges, and immunities secured him by the
United States Constitution on May 30th, 2020.
41. Officers Derrick Lehman and Edward Boudreau were, and still are, employed as
police officers of the City of Austin Police Department.
42. The persons who deprived Mr. Volter-Jones of his US Constitutional rights, Derrick
Lehman and Edward Boudreau, were acting under the color of state and local law of their
governmental entity employer, the City of Austin, while executing the policies or customs
thereof.
43. The injury to Mr. Volter-Jones was caused by the following City of Austin policies,
practices, or customs (that were in place when Defendants, Austin Police Officers Derrick
Lehman and Edward Boudreau, shot and injured Plaintiff Volter-Jones), these policies were
conscious choices by the City of Austin municipality's final decision-making officials (APD
Police Chief) and demonstrate deliberate indifference to the plaintiff's constitutional rights:
a) Failure to procure appropriate quality of less-lethal weapons and/or ammunition
(including the provision of kinetic impact projectiles such as bean bag rounds) for
municipality public-safety purposes;
26 Page 3 athttps://library.austintexas.gov/library/austin_police_department_subject_guide.pdf
27 bs://www.statesman.com/story/news/2022/02/23/austin-police-chiefs-depositions-2020-protest-officer
force/6820028001/
28 https://apnews.com/article/austin-police-texas-racial-injustice-01004b35f8e59ec26c16c7c4d2f1cb8c
10
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 11 of 27
b) Failure to provide instruction and experiential training to employee police officers
in reasonable rules of engagement and tactical deployment for officer safety;
c) Failure to providing instruction, training and performance feedback to employee
police officers on reasonable rules of engagement and tactical deployment of less-
lethal weapons systems and ammunitions in crowd control settings (including
angle, distance, of firing less-lethal weapons);
d) Failure to distribute less-lethal weapons and/or ammunition to employee police
officers in an organized manner;
e) Failure to maintain less-lethal weapons and/or ammunition stock to protect the
safety thereof, enable tracking and prevent expiration;
f) Failure to maintain officers' uniforms and equipment to ensure identifying
information is visible to other officers and the public (even if wearing masks or
other tactical or protective gear);
g) Failure to adequately train officers concerning de-escalation of force, use of force
against non-violent protestors (who were not suspected of, investigated, cited or
arrested for any crime), and the dangers of injury associated with kinetic
projectiles with utilization of real and virtual educational exercises to ensure
police officers have experienced the physical, sensory and psychological reactions
in themselves and citizens inherent in large crowds of impassioned demonstrators;
h) Failure to plan communication protocols to ensure reporting and body-camera
recording requirements maintained real time data and analysis of events on the
ground to protect officer and public safety;
i) Failure to adequately analyze and assess (e.g., with after-action reviews) crowd
control events of City of Austin and other similar municipalities to learn and
implement evidence-based best practices for the safety of officers and the
community at large;
j) Failure to adequately ensure administrative transparency and trust with other
departments and the community at large by providing timely, fact based, solution-
oriented leadership communication prioritizing accountability and shared
responsibility by both officers and community members;
11
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 12 of 27
k) Using, authorizing, and/or tolerating excessive force against non-violent
protestors;
1) Failure to adequately discipline officers, including officers known to have used
excessive force in the past;
m) Failure to support an ethical organizational culture by adequately rewarding and
recognizing the majority of officers who act reasonably by refraining from using
lethal or less-lethal force unless it is clearly and unequivocally permitted and
necessary;
n) Failure to adequately supervise officers;
o) Failure to adequately promote officers who role-model and communicate
effective community-building actions integrated with ethical decision-making and
critical thinking;
p) Failure to adequately protect the career retention and mental health of officers by
engaging in modern, evidence-based practices (drawing on multidisciplinary
fields such as psychology, sociology, communication, public health, law and
civics) focused on police officers helping and serving the community and not "at
war" as war combatants face mental health consequences and, "[S]uicide claims
more law enforcement lives than felonious killings or accidental deaths in the line
of duty."29;
q) Failure to train officers regarding demonstrators' free speech and assembly rights;
r) Not intervening to stop constitutional violations, including use of excessive force;
s) Failure to train or instruct officers about specific incidents the City of Austin
considers unreasonable, excessive force, or in violation of the Constitution.
44. Each of the policies, practices, or customs delineated above was actually known,
constructively known and/or ratified by City of Austin and its policymaker for law enforcement
purposes, Chief of Police, Brian Manley, and was promulgated with deliberate indifference to
29 https://www.policechiefmagazine.org/the-le-suicide-data-collection/
12
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 13 of 27
Volter-Jones's First, Fourth and Fourteenth Amendment rights under the United States
Constitution.
45. Upon information and belief, Derrick Lehman and Edward Boudreau still have not
been disciplined by APD for using unreasonable force and violence against Mr. Volter-Jones.
Likewise, neither former Chief Manley nor any of Derrick Lehman and Edward Boudreau's
supervisors have been disciplined for tacitly or actively tolerating, authorizing, or endorsing this
type of unconstitutional conduct while leaving officers without the education, training, tools and
clearly defined practices to prevent these entirely predictable events.
46. As per current APD Chief Chacon (then Assistant Chief),
47. The City of Austin Police Department had previously provided public safety to
demonstrators without unreasonably shooting any demonstrators even when the protestors failed
to obey public health laws and/ or blocked the interstate highway. On May 1st, 2020, only 29
days before the excessive force shooting of Mr. Volter-Jones, the Austin Police Department
reported that, "Fifteen protesters from the group Rent Strike ATX were arrested in Downtown
Austin on Friday afternoon for obstructing Interstate 35. " 30 None of the demonstrators blocking
the IH35 highway, who were protesting for rent relief, were reportedly shot by the police. On
Saturday, April 18th, 2020, six weeks before the unreasonable shooting of Mr. Volter-Jones, anti-
public health demonstrators in downtown Austin (including at the state Capitol) violated public
health legal mandates while police officers stood by reportedly without shooting anyone. 31
30
50https://www.kvue.com/article/news/local/blocking-obstructing-interstate-highway-35-arrests/269-123a4f9c-05a5-
42db-a402-112af7021b5f
31 Protestors "took turns yelling into megaphones, recording each other on their phones and parading up and down
11th Street at the Congress Avenue intersection. About two dozen Austin police and Texas Department of Public
Safety officers stood by. After an initial confrontation with several protesters edging into the street, the police mostly
observed the protest, declining to issue citations for the generally unmasked and non-social-distancing
participants. "," at https://www.expressnews.com/news/politics/texas_legislature/article/Responding-to-Infowars-
all-protesters-mass-in-15210224.php#photo-1931416
13
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48. This lack of disciplinary action as to senior leaders is all the more disturbing as
former Chief Manley acknowledged that numerous demonstrators were victims of unreasonable
force by APD officers on May 30th and 31st, 2020.
49. On June 1, 2020, a reporter asked the [former] chief [Manley] what he would say to
the families of those injured by police. "What I say to them now is my heart is with you, Manley
said before an emotional pause. "I'm praying for your child. I'm hoping they have a complete
and quick recovery. And I will make myself open to speak with you and answer questions." 32
Manley stated, "That is not what we set out to do as a police department. That was not what we
set out to do this weekend. 1133
50. Within days of her son being shot, Mr. Volter-Jones' mother attended the City
Council meeting and personally called Police Chief Manley's office to speak with him about her
concerns about the police shooting people with less-than-lethal Kinetic Impact Projectiles (KIPs)
bean bag rounds. Former Chief Manley (nor anyone else from APD) has yet to return her call.
51. Former Chief Manley retired from the City of Austin Police Department effective
March 28th, 2021 to "pursue that next opportunity. "34
52. Current Police Chief Joe Chacon was publicly reported on February 23rd, 2022 to
have stated in a deposition in October 2021 (related to City of Austin police shooting and
injuring demonstrators with bean bag rounds on May 30th and May 31st, 2020), "We knew the
protests were coming and we were certainly trying to plan for it. I don't think we planned for the
scope of these protests - for the sheer size of the crowd that was going to be coming out
I
32 2https://www.kvue.com/article/news/local/austin-texas-protest-chief-brian-manley-speaks/269-904cf6f3-e619-
44ed-ab31-0582508e9c04
33
https://www.texastribune.org/2020/06/01/austin-police-george-floyd-mike-ramos/
34
https://www.kut.org/austin/2021-02-12/austin-police-chief-brian-manley-steps-down-after-30-years-with-
department
14
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 15 of 27
don't think in the end it was adequate for the size of everything that we saw[.]"35 Chief Chacon
stated, the police "were expecting hundreds and got thousands" of demonstrators. 36
53. The City of Austin Police Department had historically planned effectively and
provided public safety to demonstrators without unreasonably shooting and harming protestors;
even with very large crowds. Reportedly, 50,000 demonstrators assembled at the Texas State
Capitol on January 21st, 2017 for a Woman's March.³7 On February 15th, 2003 reportedly 10,000
anti-war demonstrators rallied at the Texas Capitol (where some "marchers took over the
Congress Avenue Bridge for about 30 minutes" without police shooting anyone)3 and 20,000
anti-war "demonstrators peacefully marched through downtown Austin" on Friday, May 8th,
1970. 39
54. The consequence of these City of Austin policies, practices, or customs on May 30th,
2020, was that Austin Police Department 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.
55. The City of Austin is directly liable for its policymakers' failures, poor leadership and
policies and customs resulting in two employee police officers, Defendants Derrick Lehman and
Edward Boudreau, possessing and unreasonably deploying less-lethal bean bag rounds in an act
of excessive force that deprived Mr. Volter-Jones of his US Constitutional rights; which was the
direct proximate cause of his injury and permanent disfigurement.
35
"https://www.kvue.com/article/news/investigations/defenders/chacon-speaks-on-2020-austin-police-protests/269-
525b4cc7-8d88-4089-8e70-5232ec7fafe7
36
https://www.statesman.com/story/news/2022/02/23/austin-police-chiefs-depositions-2020-protest-officers-
force/6820028001/
37
https://austin.culturemap.com/news/city-life/01-23-17-womens-march-austin-pictures-recap-signs/#slide=0
38
ttps://web.archive.org/web/20030401235115/www.austin360.com/aas/metro/021603/0216antiwar.html
39 https://drive.google.com/file/d/1rzV9KVqXrfl5XPHsY-SZpESzPAHIRkEX/view
15
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 16 of 27
56. As a direct result of official policy of the City of Austin, permanently disfigured
demonstrators like Mr. Volter-Jones could not trust in the integrity of self-regulation via internal
investigations into his shooting (by APD itself). Mr. Volter-Jones's conclusion of fact is
evidenced by, in September 20, 2021, the City of Austin, Office of Police Oversight, Preliminary
Analysis - 2020 Summer Protests report stated, "Internal Affairs continued the practice of
disqualifying complaints by administratively closing them or assigning them a D classification
(no policy violation) without the level of thoroughness required by APD policies. "40 Without the
ability to access justice for the harm done to him through the defendant's inadequate
investigation of their shooting of Plaintiff, Mr. Volter-Jones's only path toward enforcement of
the rule of law and his US Constitutional rights is through the pleadings herein in this court.
57. The City of Austin policy and customs that resulted in any individual employee being
provided weapons and ammunition and sent out in the community without training, supervision,
instruction, or communication foreseeably resulted in serious injuries and violations of the
foundational rule of law in this nation codified in the US Constitution.
58. On May 30th, 2020, the overwhelming number of City of Austin police officers did
not violate US Constitutional rights and did not engage in excessive force; despite the paucity of
appropriate resources available. Unfortunately, Defendants Derrick Lehman and Edward
Boudreau crossed the line into unreasonable excessive force and US Constitutional violations
which severely injured Plaintiff, a member of the community.
59. The reasonable actions and individual ethics of the majority of the police officers
enabled them to remain law-abiding despite the lack of policy, custom or practices to help them
effectively engage in safe crowd control. On May 30th, 2020, the majority of police officers
40 https://www.austintexas.gov/edims/document.cfm?id=36752)
16
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 17 of 27
were fending for themselves, navigating by their own moral and ethical guidance against the City
of Austin policies, customs and practices that placed them (and the entire community) in peril.
That is shameful. Current Police Chief Joe Chacon agrees and was publicly reported on February
23rd, 2022 to have stated in a deposition in October 2021, "I would say that there is some level of
shame because I represent the police department. I don't like that this happened. I want to take
steps to make sure we never have anything like this happen again. "41
B. 42 U.S.C. § 1983 FOURTH AMENDMENT EXCESSIVE FORCE -As To DEFENDANT EDWARD
BOUDREAU, INDIVIDUALLY
60. Plaintiff incorporates the preceding paragraphs as if alleged herein.
61. Austin Police Department Officer Edward Boudreau is a person. Defendant Boudreau
is an individual employed as a police officer with the Austin Police Department publicly reported
to hold the rank of Corporal (having passed the written examination of January 9th, 2020 for the
Corporal/Detective Promotion Examination).42 On May 30th, 2020, he had over 12 years of
service with the Austin Police Department.43
62. On May 30th, 2020, Defendant Boudreau was acting as a government actor under
color of statute, ordinance, regulation, custom, or usage, of any State or Territory, in this instance
as an employee of the City of Austin (a municipality in the State of Texas). Defendant Boudreau
was in a police uniform with identifying markings as an on-duty APD officer on May 30th, 2020
between 7:00 pm - 7: 30 pm at approximate location, 1000 E. Riverside Dr., Austin, Texas,
78704.
41 hhttps://www.kvue.com/article/news/investigations/defenders/chacon-speaks-on-2020-austin-police-protests/269-
5b4cc7-8d88-4089-8e70-5232ec7fafe7
42 https://www.austintexas.gov/edims/document.cfm?id=335761
43 https://www.austintexas.gov/edims/document.cfm?id=335761
17
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 18 of 27
63. Defendant Boudreau subjected a citizen of the United States, Plaintiff Ge'Micah
Volter-Jones, to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws (Amendment 1, in part, "right of the people peaceably to assemble, and to
petition the Government for a redress of grievances").
64. Defendant Boudreau engaged in a Fourth Amendment "seizure" of Plaintiff
Ge'Micah Volter-Jones by shooting his person with a 12-gauge shotgun loaded with a Kinetic
Impact Projectiles (KIPs) bean bag round at the velocity of 600 feet per second from 15-20 feet
away. Mr. Volter-Jones's freedom of movement was restrained by physical force or show of
authority44 by the impact of the shotgun round on his person. Therefore, Defendant Edward
Boudreau violated Volter-Jones's clearly established Fourth Amendment right to be free from
excessive force and unreasonable seizure.
65. This use of force was excessive and unreasonable because from the perspective of a
reasonable officer on the scene45, in light of the facts and circumstances confronting them, as
only one (1) officer, Derrick Lehman (out of a group of police officers standing side by side)
fired a shot into the crowd at this time and location. A second officer, Edward Boudreau,
intentionally and knowingly caused the shooting by giving the firing officer verbal instruction to
engage in the unreasonable excessive force. It is evident what a reasonable officer on the scene
would have done because all of the other officers present (approximately a group of 40-60 police
officers) were reasonable and did not shoot into the crowd and injure anti-violence
demonstrators.
44 United States V Mendenhall, 446 US 544, 546 (1980)
45 Graham V Connor, 490 US 386, 396 (1989).
18
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 19 of 27
66. Defendant Boudreau did violate clearly established statutory or constitutional rights
of which a reasonable person would have known46 (e.g., the constitutional right for Mr. Volter-
Jones to peaceably assemble and petition for Government for redress of grievances). In addition
to the conduct of Defendant Boudreau amounting to a constitutional violation47 the constitutional
right was clearly established at the time of the conduct48 and thus qualified immunity is not
applicable.
67. Mr. Volter-Jones was severely injured by the shotgun round and underwent
emergency surgery on May 30th, 2020 as he had lost blood flow to his arm due to the bullet
hitting near an artery. Mr. Volter-Jones was told by medical providers that he had compartment
syndrome and recalls his physician telling him that he "needed emergency surgery to keep [his]
hand and have function in it." Mr. Volter-Jones is permanently disfigured.
68. The City of Austin Police Department officers shot Mr. Volter-Jones and he was hit
on his right upper extremity. The bullet he was hit with was the proximate and actual cause of his
injuries, emergency surgery and permanent disfigurement. Thus, Defendant Edward Boudreau
shall be jointly and severally liable to the party injured, Mr. Volter-Jones, in an action at law, suit
in equity, or other proper proceeding for redress for the use of excessive force.
69. Mr. Volter-Jones has shown: (1) injury, (e.g., his arm had a loss of blood flow
requiring emergency surgery), (2) which resulted directly and only from a use of force that was
clearly excessive (e.g., the only cause of the loss of blood flow was being shot by the 12-gauge
shotgun with a round with a velocity of 600 feet per second at less than 100 feet of distance), and
(3) the excessiveness of which was clearly unreasonable (e.g., evidenced by the reasonable
46 Harlow v Fitzgerald, 457 US 800, 818 (1982)
47 McDonald V. McClelland, 779 F. App'x 222, 225 (5th Cir. 2019)
48
Lytle V. Bexar Cnty. 560 F.3d 404, 410 (5th Cir. 2009)
19
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 20 of 27
actions of the other officers not to shoot while facing the same crowd with the same
circumstances).49
70. Defendant's conduct was intentional, wanton, malicious and oppressive, or was with
reckless disregard of Plaintiff's established constitutional rights; thus, Mr. Volter-Jones is
entitled to punitive damages.
C. 42 U.S.C. § 1983 FOURTH AMENDMENT EXCESSIVE FORCE-AS To DEFENDANT DERRICK
LEHMAN, INDIVIDUALLY
71. Plaintiff incorporates the preceding paragraphs as if alleged herein.
72. Austin Police Department Officer Derrick Lehman is a person. Derrick Lehman is an
individual employed as a police officer with the Austin Police Department publicly reported to
hold the rank of Senior Police Officer.50 On May 30th, 2020, he had over 10 years of service with
the Austin Police Department.5
73. On May 30th, 2020, Defendant Lehman was acting as a government actor under color
of statute, ordinance, regulation, custom, or usage, of any State or Territory, in this instance as an
employee of the City of Austin (a municipality in the State of Texas). Defendant Lehman was in
a police uniform with identifying markings as an on-duty APD officer on May 30th, 2020
between 7:00 pm - 7: 30 pm at approximate location, 1000 E. Riverside Dr., Austin, Texas,
78704.
74. Defendant Lehman subjected a citizen of the United States, Plaintiff Ge'Micah
Volter-Jones, to the deprivation of any rights, privileges, or immunities secured by the
49 Tarver V. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
50 https://www.linkedin.com/in/derrick-lehman
51 https://www.austintexas.gov/news/protest-response-resistance-investigation-update
20
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 21 of 27
Constitution and laws (Amendment 1 "right of the people peaceably to assemble, and to petition
the Government for a redress of grievances"). 52
75. Defendant Lehman engaged in a Fourth Amendment "seizure" of Plaintiff Ge'Micah
Volter-Jones by shooting his person with a 12-gauge shotgun loaded with a Kinetic Impact
Projectiles (KIPs) bean bag round at the velocity of 600 feet per second from 15-20 feet away.
Mr. Volter-Jones's freedom of movement was restrained by physical force or show of authority53
by the impact of the shotgun round on his person. Therefore, Defendant Lehman violated
Volter-Jones's clearly established Fourth Amendment right to be free from excessive force and
unreasonable seizure.
76. This use of force was excessive and unreasonable because from the perspective of a
reasonable officer on the scene54, in light of the facts and circumstances confronting them, as
only one (1) officer, Derrick Lehman (out of a group of police officers standing side by side)
fired a shot into the crowd at this time and location. A second officer, Edward Boudreau,
intentionally and knowingly caused the shooting by giving the firing officer verbal instruction to
engage in the unreasonable excessive force. It is evident what a reasonable officer on the scene
would have done because all of the other officers present (approximately a group of 40-60 police
officers) were reasonable and did not shoot into the crowd and injure anti-violence
demonstrators.
77. Defendant Lehman did violate clearly established statutory or constitutional rights of
which a reasonable person would have known55 (e.g., the constitutional right for Mr. Volter-
52 2https://constitution.congress.gov/constitution/amendment-1/
53
United States V Mendenhall, 446 US 544, 546 (1980)
54 Graham y Connor, 490 US 386, 396 (1989).
55
Harlow v Fitzgerald, 457 US 800, 818 (1982)
21
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 22 of 27
Jones to peaceably assemble and petition for Government for redress of grievances) and thus
qualified immunity is not applicable.
78. Mr. Volter-Jones was severely injured by the shotgun round and underwent
emergency surgery on May 30th, 2020 as he had lost blood flow to his arm due to the bullet
hitting near an artery. Mr. Volter-Jones was informed by medical providers that he had
compartment syndrome and recalls his physician telling him that he "needed emergency surgery
to keep [his] hand and have function in it." Mr. Volter-Jones is permanently disfigured.
79. Defendant Lehman shot Mr. Volter-Jones and he was hit on his right upper extremity.
The bullet he was hit with was the proximate and actual cause of his injuries, emergency surgery
and permanent disfigurement.
80. Thus, Defendant Lehman shall be jointly and severally liable to the party injured, Mr.
Volter-Jones, in an action at law, suit in equity, or other proper proceeding for redress for the use
of excessive force.
81. Mr. Volter-Jones has shown: (1) injury, (e.g., his arm had a loss of blood flow
requiring emergency surgery), (2) which resulted directly and only from a use of force that was
clearly excessive (e.g., the only cause of the loss of blood flow was being shot by the 12-gauge
shotgun with a round with a velocity of 600 feet per second at less than 100 feet of distance), and
(3) the excessiveness of which was clearly unreasonable (e.g., evidenced by the reasonable
actions of the other officers not to shoot while facing the same crowd with the same
circumstances).56
56 Tarver V. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005).
22
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 23 of 27
82. Defendant's conduct was intentional, wanton, malicious and oppressive, or were with
reckless disregard of Plaintiff's established constitutional rights; thus, Mr. Volter-Jones is
entitled to punitive damages.
D. 42 U.S.C. § 1983 FIRST AMENDMENT RETALIATION - As To DEFENDANT EDWARD
BOUDREAU
83. Plaintiff incorporates the preceding paragraphs as if alleged herein.
84. Mr. Volter-Jones exercised his US Constitution First Amendment rights by engaging
in protected free speech and assembly by attending the demonstration against police violence on
May 30th, 2020.
85. The government's retaliatory conduct (shooting him with a 12-gauge shotgun)
adversely affected Mr. Volter-Jones protected speech. A government official, Defendant
Boudreau, took adverse action against Mr. Volter-Jones by shooting him and such shooting
would chill a person of ordinary firmness from continuing in the exercise of their protected
speech First Amendments rights (as they would immediately be in excruciating pain and then
undergoing emergency surgery within hours of the shooting). The adverse action (of Defendant
Boudreau shooting Mr. Volter-Jones) was substantially motivated against Plaintiff's exercise of
the protected activity57 (to stop Mr. Volter-Jones with continuing to assemble and engage in free
speech). Evidence of a causal connection between the retaliatory animus and injury58 is that upon
being subject to being shot (the retaliatory animus), the shooting itself caused injury to Mr.
Volter-Jones (loss of blood flow to his limb and compartment syndrome, necessitating
57
Peterson V. Kopp, 754 F.3d 594, 602 (8th Cir. 2014)
58 Quraishi V. St. Charles County, Mo., 986 F.3d 831, 837 (8th Cir. 2021)
23
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 24 of 27
emergency surgery). Defendant Boudreau's attack on the defenseless Volter-Jones was
unreasonable.
86. Numerous APD officers watched Derrick Lehman and Edward Boudreau shoot
Volter-Jones, who posed no danger to anyone, but not one officer intervened to stop the
excessive and unreasonable conduct. Defendant's conduct was intentional, wanton, malicious
and oppressive, or were with reckless disregard of Plaintiff's established constitutional rights;
thus, Mr. Volter-Jones is entitled to punitive damages.
E. 42 U.S.C. § 1983 FIRST AMENDMENT RETALIATION - As To DEFENDANT DERRICK
LEHMAN
87. Plaintiff incorporates the preceding paragraphs as if alleged herein.
88. Mr. Volter-Jones exercised his US Constitution First Amendment rights by engaging
in protected free speech and assembly by attending the demonstration against police violence on
May 30th, 2020.
89. The government's retaliatory conduct (shooting him with a 12-gauge shotgun)
adversely affected Mr. Volter-Jones protected speech. A government official, Defendant
Lehman, took adverse action against Mr. Volter-Jones by shooting him and such shooting would
chill a person of ordinary firmness from continuing in the exercise of their protected speech First
Amendments rights (as they would immediately be in excruciating pain and then undergoing
emergency surgery within hours of the shooting). The adverse action (of Defendant Lehman
shooting Mr. Volter-Jones) was substantially motivated against Plaintiff's exercise of the
protected activity59 (to stop Mr. Volter-Jones with continuing to assemble and engage in free
59 Peterson V. Kopp, 754 F.3d 594, 602 (8th Cir. 2014)
24
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 25 of 27
speech). Evidence of a causal connection between the retaliatory animus and injury60 is that upon
being subject to being shot (the retaliatory animus), the shooting itself caused injury to Mr.
Volter-Jones (e.g., loss of blood flow to his limb and compartment syndrome, necessitating
emergency surgery). Defendant Lehman's attack on the defenseless Volter-Jones was
unreasonable.
90. Numerous APD officers watched Derrick Lehman and Edward Boudreau shoot
Volter-Jones, who posed no danger to anyone, but not one officer intervened to stop the
excessive and unreasonable conduct. Defendant's conduct was intentional, wanton, malicious
and oppressive, or were with reckless disregard of Plaintiff's established constitutional rights;
thus, Mr. Volter-Jones is entitled to punitive damages.
V. DAMAGES
91. As a result of Defendants' (who are jointly and severally liable) unconstitutional
violations of his rights and the resultant damages and injuries suffered by Plaintiff, Mr. Volter-
Jones seeks the following damages:
a. Past, present, and future medical expenses;
b. Past, present, and future economic damages, including (but not limited to) loss
of earning capacity;
c. Past, present, and future physical pain and suffering;
d. Past, present and future mental anguish;
e. Past, present and future physical impairment;
f. Past, present and future physical disfigurement;
60 Quraishi V. St. Charles County, Mo., 986 F.3d 831, 837 (8th Cir. 2021)
25
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 26 of 27
g. and loss of consortium.
VI. JURY DEMAND
92. Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff hereby requests a jury
trial on all of the issues SO triable.
VII. ATTORNEY'S FEES AND COSTS
93. Pursuant to 42 U.S.C. § 1988, Plaintiff requests costs and fees, including but not limited to
expert fees and attorneys' fees.
VIII. PRAYER FOR RELIEF
94. To right this injustice, Plaintiff requests the Court:
a. Award actual compensatory damages against the City of Austin, and actual
compensatory and exemplary punitive damages against Lehman and Boudreau;
b. Award pre-judgment and post-judgment interest at the highest rate allowable
under the law; and,
c. Award and grant any other just relief as the Court deems proper.
Dated: May 26, 2022.
Respectfully COURTNEY By: submitted, E. ANDERSON BROADHEAD
State Bar No: 24006185
Email: C;XB@AndBroLaw.com
Anderson Broadhead Law Firm, PLLC
660 S. Bagdad Rd., Ste. 120, Leander, TX 78641
Tel. 737.373.3373
Fax. 512.277.7227
ATTORNEY FOR PLAINTIFF
26
Case 1:22-cv-00511-RP Document 1 Filed 05/26/22 Page 27 of 27
CERTIFICATE OF SERVICE
By my signature below, I certify that a true and correct copy of the foregoing has been served on
all counsel of record via the Court's electronic case filing system.
Courtney Anderson Broadhead Boh
27
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE' MICHAH VOLTER-JONES
§
Plaintiff
§
§
V.
§
CIVIL ACTION No. 1:22-CV-00511-RP
§
CITY OF AUSTIN, EDWARD
§
BOUDREAU, AND DERRICKLEHMAN
§
Defendants
§
§
DEFENDANT CITY OF AUSTIN'S ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT COURT:
Defendant City of Austin ("the City") files this Answer and Affirmative Defenses to
Plaintiffs' Original Complaint [Doc. No. 1]. Pursuant to Rules 8 and 12 of the Federal Rules of
Civil Procedure, the City respectfully shows the Court the following:
ORIGINAL ANSWER
Pursuant to Federal Rule of Civil Procedure 8(b), the City responds to each of the specific
averments in Plaintiffs' Original Complaint [Doc No. 1] as set forth below. To the extent that the
City does not address a specific averment made by Plaintiffs, the City expressly denies that
averment. 1
I. PARTIES
1.
Admitted, upon information and belief.
2.
The City admits Paragraph 2.
3.
The City admits that Edward Boudreau is a police officer with the Austin Police
Department and that he was acting in the course and scope as an Austin Police Officer on May 30,
1 Paragraph numbers in Defendant's Answer correspond to the paragraphs in Plaintiffs' Original Complaint.
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 2 of 21
2020. The City further admits that at the time of the incident, Brian Manley was the Chief of
Police for the Austin Police Department and set policy for the Department. The City denies the
remaining allegations contained in Paragraph 3 of the Complaint.
4.
The City admits that Derrick Lehman is a police officer with the Austin Police Department
and that he was acting in the course and scope as an Austin Police Officer on May 30, 2020. The
City further admits that at the time of the incident, Brian Manley was the Chief of Police for the
Austin Police Department and set policy for the Department. The City denies the remaining
allegations contained in Paragraph 4 of the Complaint.
II.
JURISDICTION AND VENUE
5.
The City admits the allegations contained in Paragraph 5.
6.
The City admits the allegations contained in Paragraph 6.
III. FACTS
7.
The allegations of this paragraph, including Footnote (n.1), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. Defendant is without sufficient
knowledge to form a belief as to the truth of the allegations as stated. To the extent any response
is required, the Defendant denies any allegations asserting fault or liability.
8.
The allegations of this paragraph, including Footnotes (n.2,3,4), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
9.
The allegations of this paragraph, including Footnote (n.5), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
Page 2 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 3 of 21
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
10.
The allegations of this paragraph, including Footnote (n.6), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
11.
The allegations of this paragraph, including Footnotes (n.7,8,9,10,11), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
12.
The allegations of this paragraph are referring to and asserting conclusions of law or fact
without stating a claim upon which relief can be granted, and do not require a response as stated.
To the extent any response is required, the Defendant denies any allegations asserting fault or
liability.
13.
The allegations of this paragraph, including Footnote (n.12), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
14.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
Page 3 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 4 of 21
15.
The allegations of this paragraph, including Footnote (n.13), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
16.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
17.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
18.
The allegations of this paragraph, including Footnotes (n.14,15), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
19.
The allegations of this paragraph, including Footnote (n.16), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
20.
The allegations of this paragraph, including Footnote (n.17), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
Page 4 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 5 of 21
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
21.
The allegations of this paragraph, including Footnote (n.18), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated and are therefore denied. To the extent
any response is required, the Defendant denies any allegations asserting fault or liability.
22.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
23.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
24.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
25.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
Page 5 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 6 of 21
26.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated, and are denied. To the extent any response is required, the
Defendant denies any allegations asserting fault or liability.
27.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated, and are denied. To the extent any response is required, the
Defendant denies any allegations asserting fault or liability.
28.
The allegations of this paragraph, including Footnote (n.19), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated, and are denied. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
29.
Defendant admits that Police Officers Boudreau and Lehman were on duty and that Officer
Lehman shot a less-than-lethal bean bag round which impacted Mr. Volter-Jones after he threw an
object toward the police. The remaining allegations of this paragraph seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response and are denied as stated. To the extent any response
is required, the Defendant denies any allegations asserting fault or liability.
30.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
Page 6 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 7 of 21
31.
The allegations of this paragraph, including Footnotes (n.20,21), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
32.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
33.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
34.
The allegations of this paragraph, including Footnotes (n.22,23), seem vague and
ambiguous, referring to and asserting unsupported conclusions of law or fact without stating a
claim upon which relief can be granted, and which do not require a response as stated, and are
denied. To the extent any further response is required, the Defendant denies any allegations
asserting fault or liability.
35.
The allegations of this paragraph, including Footnote (n.24), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
Page 7 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 8 of 21
IV.
CAUSES OF ACTION
A.
42 U.S.C. §1983 (Monell) and the FIRST, FOURTH AMENDMENT TO THE US
CONSTITUTION APPLIED THROUGH THE FOURTEENTH AMENDMENT
-
As To DEFENDANT CITY OF AUSTIN ONLY
This Defendant denies the allegations as stated in sub-heading A. The allegations call for
conclusions of law or fact which do not otherwise require a response.
36.
Paragraph 36 does not allege facts and does not require a response.
37.
The City admits the allegations contained in Paragraph 37 but clarifies that Austin became
the capital of the State of Texas in 1846. The allegations of this paragraph, including Footnote
(n.25), seem vague and ambiguous, referring to and asserting conclusions of law or fact without
stating a claim upon which relief can be granted, and which do not require a response as stated. To
the extent any response is required, the Defendant denies any allegations asserting fault or liability.
38.
The City admits the allegations contained in Paragraph 38 of the Complaint. The
allegations of this paragraph, including Footnote (n.26), seem vague and ambiguous, referring to
and asserting conclusions of law or fact without stating a claim upon which relief can be granted,
and which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
39.
The City admits that Joseph Chacon is the current Chief of Police for the Austin Police
Department and sets policy for the Department. The City further admits that on May 30, 2020,
Chief Chacon was as Assistant Chief for the Austin Police Department and that Brian Manley was
the Chief of Police. The City denies the remaining allegations in Paragraph 39 of the Complaint.
The allegations of this paragraph, including Footnotes (n.27,28), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
Page 8 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 9 of 21
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
40.
The City denies Paragraph 40.
41.
The City admits paragraph 41.
42.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
43.
The allegations of this paragraph, including subparts a) through s), and Footnote (n.29),
seem vague and ambiguous, referring to and asserting unsupported conclusions of law or fact
without stating a claim upon which relief can be granted, and which do not require a response and
are denied as stated. To the extent any response is required, the Defendant denies any allegations
asserting fault or liability.
44.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact without stating a claim upon which relief can be granted,
and which do not require a response and are denied as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
45.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported or irrelevant conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response, and are denied as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
46.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
Page 9 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 10 of 21
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
47.
The allegations of this paragraph, including Footnotes (n.30,31), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
48.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response, and are denied as stated. To the extent any response is required, the
Defendant denies any allegations asserting fault or liability.
49.
The allegations of this paragraph, including Footnotes (n.32,33), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
50.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
51.
The allegations of this paragraph, including Footnote (n.34), seem vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
Page 10 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 11 of 21
52.
The allegations of this paragraph, including Footnotes (n.35,36), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
53.
The allegations of this paragraph, including Footnotes (n.37,38,39), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
54.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response, and are denied as stated. To the extent any response is required, the
Defendant denies any allegations asserting fault or liability.
55.
Denied. The allegations of this paragraph are vague and ambiguous, referring to and
asserting conclusions of law or fact without stating a claim upon which relief can be granted, and
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
56.
The allegations of this paragraph, including Footnote (n.40), are vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response, and are denied as stated. To the extent any
response is required, the Defendant denies any allegations asserting fault or liability.
57.
Denied. The allegations of this paragraph are vague and ambiguous, referring to and
asserting conclusions of law or fact without stating a claim upon which relief can be granted, and
Page 11 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 12 of 21
which do not require a response as stated. To the extent any response is required, the Defendant
denies any allegations asserting fault or liability.
58.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response. and are denied as stated. To the extent any response is required, the
Defendant denies any allegations asserting fault or liability.
59.
The allegations of this paragraph, including Footnote (n.41), are vague and ambiguous,
referring to and asserting conclusions of law or fact without stating a claim upon which relief can
be granted, and which do not require a response as stated. To the extent any response is required,
the Defendant denies any allegations asserting fault or liability.
B.
42 U.S.C. § 1983 FOURTH AMENDMENT EXCESSIVE FORCE - AS TO
DEFENDANT EDWARD BOUDREAU, INDIVIDUALLY
This Defendant denies the allegations as stated in sub-heading B. The allegations call for
conclusions of law or fact which do not otherwise require a response.
60.
Paragraph 60 does not allege facts and does not require a response.
61.
The allegations of this paragraph, including Footnotes (n.42,43), seem vague and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability. If a response is required
of the City, the City admits that Officer Boudreau is a person employed as a City of Austin Police
Officer.
62.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
Page 12 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 13 of 21
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
63.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response, and are denied as stated. To the extent any response is required, the
Defendant denies any allegations asserting fault or liability.
64.
The allegations of this paragraph, including Footnote (n.44), are vague and ambiguous,
referring to and asserting conclusions of law or fact which do not require a response and are denied
as stated. To the extent any response is required, the Defendant denies any allegations asserting
fault or liability.
65.
The allegations of this paragraph, including Footnote (n.45), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
66.
The allegations of this paragraph, including Footnotes (n.46,47,48), are vague and
ambiguous, referring to and asserting unsupported conclusions of law or fact which do not require
a response, and are denied as stated. To the extent any response is required, the Defendant denies
any allegations asserting fault or liability.
67.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response and are denied as stated. To the extent any response is required, the
Defendant denies any allegations asserting fault or liability.
Page 13 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 14 of 21
68.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
conclusions of law or fact which do not require a response, and are denied as stated. To the extent
any response is required, the Defendant denies any allegations asserting fault or liability.
69.
The allegations of this paragraph, including Footnote (n.49), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
70.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact which do not require a response, and are denied as stated.
To the extent any response is required, the Defendant denies any allegations asserting fault or
liability.
C.
42 U.S.C. § 1983 FOURTH AMENDMENT EXCESSIVE FORCE - AS TO
DEFENDANT DERRICK LEHMAN, INDIVIDUALLY
This Defendant denies the allegations as stated in sub-heading C. The allegations call for
conclusions of law or fact which do not otherwise require a response.
71.
Paragraph 71 does not allege facts and does not require a response.
72.
The allegations of this paragraph, including Footnotes (n.50,51), seem vague
and
ambiguous, referring to and asserting conclusions of law or fact without stating a claim upon which
relief can be granted, and which do not require a response as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability. If a response is required
of the City, the City admits that Officer Lehman is a person employed as a City of Austin Police
Officer.
73.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
Page 14 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 15 of 21
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
74.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact which do not require a response, and are denied as stated.
To the extent any response is required, the Defendant denies any allegations asserting fault or
liability.
75.
The allegations of this paragraph, including Footnote (n.53), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
76.
The allegations of this paragraph, including Footnote (n.54), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
77.
The allegations of this paragraph, including Footnotes (n.55), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
78.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
Page 15 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 16 of 21
79.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact without stating a claim upon which relief can be granted,
and which do not require a response, and are denied as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
80.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact without stating a claim upon which relief can be granted,
and which do not require a response, and are denied as stated. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
81.
The allegations of this paragraph, including Footnote (n.56), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
82.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact which do not require a response, and are denied as stated.
To the extent any response is required, the Defendant denies any allegations asserting fault or
liability.
D.
42 U.S.C.§1983 FIRST AMENDMENT RETALIATION - AS TO DEFENDANT
EDWARD BOUDREAU
This Defendant denies the allegations as stated in sub-heading D. The allegations call for
conclusions of law or fact which do not otherwise require a response.
83.
Paragraph 83 does not allege facts and does not require a response.
84.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
Page 16 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 17 of 21
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
85.
The allegations of this paragraph, including Footnotes (n.57,58), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
86.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact which do not require a response, and are denied as stated.
To the extent any response is required, the Defendant denies any allegations asserting fault or
liability.
E.
42 U.S.C. § 1983 FIRST AMENDMENT RETALIATION - AS TO DEFENDANT
DERRICK LEHMAN
This Defendant denies the allegations as stated in sub-heading E. The allegations call for
conclusions of law or fact which do not otherwise require a response.
87.
Paragraph 87 does not allege facts and does not require a response.
88.
The allegations of this paragraph seem vague and ambiguous, referring to and asserting
conclusions of law or fact without stating a claim upon which relief can be granted, and which do
not require a response as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
89.
The allegations of this paragraph, including Footnotes (n.59,60), are vague and ambiguous,
referring to and asserting unsupported conclusions of law or fact which do not require a response,
and are denied as stated. To the extent any response is required, the Defendant denies any
allegations asserting fault or liability.
Page 17 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 18 of 21
90.
The allegations of this paragraph are vague and ambiguous, referring to and asserting
unsupported conclusions of law or fact which do not require a response, and are denied as stated.
To the extent any response is required, the Defendant denies any allegations asserting fault or
liability.
V.
DAMAGES
91.
The allegations of this paragraph, including subparagraphs a. through g., are vague and
ambiguous, referring to and asserting unsupported conclusions of law or fact which do not require
a response, and are denied as stated. To the extent any response is required, the Defendant denies
any allegations asserting fault or liability.
VI.
JURY DEMAND
92.
The allegations of this paragraph do not require a response. To the extent any response is
required, the Defendant denies any allegations asserting fault or liability.
VII.
ATTORNEY'S FEES AND COSTS
93.
Denied.
VIII. PRAYER FOR RELIEF
94.
Defendant denies the allegations as stated, including subparts a. - C.
AFFIRMATIVE DEFENSES
1.
Defendant City of Austin asserts the affirmative defense of governmental immunity as a
municipal corporation entitled to immunity while acting in the performance of its governmental
functions, absent express waiver.
2.
Defendant City of Austin asserts the affirmative defense of governmental immunity
since its employees are entitled to qualified/official immunity for actions taken in the course and
scope of their employment, absent express waiver.
Page 18 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 19 of 21
3.
As a political subdivision, Defendant City of Austin denies that it can be liable for
exemplary/punitive damages under 42 U.S.C. § 1983.
4.
Pleading further and in the alternative, Plaintiff's injuries and damages were caused in
whole or in part by the conduct of other persons or entities for whom this defendant has no
responsibility.
5.
To the extent applicable and subject to withdrawal, Defendant asserts the affirmative
defense of comparative fault and that Plaintiff failed to mitigate damages, if any, and asserts
failure to mitigate as both an affirmative defense and as a reduction in the damage amount, if any,
due Plaintiff.
6.
Defendant asserts the affirmative defense of statute of limitations as to all claims outside
the applicable limitations period(s), both statutory and administrative, if any.
7.
Defendant denies deprivation of rights under color of statute, ordinance, custom, or abuses
of any rights, privileges, or immunities secured to the Plaintiff by the United States Constitution,
state law, or 42 U.S.C. § 1983, et seq.
8.
Defendant hereby invokes applicable defenses based on the doctrine of Official Immunity
and any related defenses. Defendant discharged its obligations and public duties in good faith, its
actions were objectively reasonable in light of the law and the information possessed at that time.
9.
To the extent applicable and subject to withdrawal, Defendant asserts the incident in
question and the resulting harm to Plaintiff were caused or contributed to by Plaintiff's own
conduct.
10.
Defendant further pleads that, in the unlikely event it is found to be liable, such liability be
reduced by the percentage of the causation found to have resulted from the acts or omissions of
other persons.
Page 19 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 20 of 21
11.
Defendant pleads legal justification for the actions and conduct by it relating to this
incident.
12.
To the extent Defendant did not address a specific averment made by Plaintiff, Defendant
expressly denies all such averments.
13.
Defendant reserves the right to assert additional affirmative defenses as may be applicable
throughout the development of the case, including estoppel, illegality, laches, waiver, or any other
matter which may constitute an avoidance or affirmative defense.
DEFENDANT'S PRAYER
Defendant City of Austin prays that all relief requested by Plaintiff be denied, that the Court
dismiss this case with prejudice, and that the Court award Defendant costs and attorney's fees, and
any additional relief to which it is entitled under law or equity.
RESPECTFULLY SUBMITTED,
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF, LITIGATION
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
State Bar No. 24115616
nonte.barton@austintexas.gov
Assistant City Attorney
City of Austin
. O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
Page 20 of 21
Case 1:22-cv-00511-RP Document 9 Filed 06/17/22 Page 21 of 21
CERTIFICATE OF SERVICE
I certify that on the 17th day of June 2022, I served a copy of Defendant City of Austin's
Answer and Affirmative Defenses to Plaintiff's Original Complaint on all parties, by and through
their attorney of record, in compliance with the Federal Rules of Civil Procedure.
Via CM/ECF:
Courtney E. Anderson Broadhead
State Bar No. 24006185
Anderson Broadhead Law Firm, PLLC
660 S. Bagdad Rd., Ste. 120
Leander, Texas 78641
Telephone: (737) 373-3373
Facsimile: (512) 277-7227
CAB@AndBroLaw.com
ATTORNEY FOR PLAINTIFF
/s/ Monte L. Barton Jr.
Monte L. Barton Jr.
Page 21 of 21
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff,
§
§
V.
§
Case No. 1:22-cv-00511-LY
§
CITY OF AUSTIN, EDWARD BOUDREAU,
§
and DERRICK LEHMAN,
§
Defendants.
§
DEFENDANTS EDWARD BOUDREAU AND DERRICK LEHMAN'S
ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE UNITED STATES DISTRICT JUDGE:
COMES NOW Defendants, Sergeant Edward Boudreau, and Officer Derrick Lehman, 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.
INTRODUCTION
1.
Between May 25 and July 31 of 2020, approximately 2,037 law enforcement officers were
injured during protests related to the in-custody death of George Floyd in Minnesota. 1 During those
protests, approximately 62% of major U.S. cities experienced looting. 2 56% of major U.S. cities
experienced arson incidents-a statistic which does not include the 97 police vehicles set on fire
during that time period, which was an act of violence reported by over 26% of major city law
1 Report on the 2020 Protests & Civil Unrest, Major Cities Chiefs Association 9-12 (October
2020),https://majorcitieschiefs.com/wp-content/uploads/2021/01/MCCA-Report-on-the-2020-
Protest-and-Civil-Unrest.pdf.
2 Id.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 1
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 2 of 13
enforcement agencies nationwide. 3 Approximately 72% of major city law enforcement agencies
reported officer injuries. 4
2.
State and local governments in 21 different U.S. states were forced to call up the U.S.
National Guard to defend persons and property from violent rioters 5 Property Claims Services
designated the riots as a "multi-state catastrophe event," which is the first such designation for a
civil disorder event since 1992. 6 Conservative insurance estimates of property damage caused
during the riots exceeds $1 billion dollars-the "costliest civil disorder in U.S. history."
3.
The weapons used by the "protest" rioters nationwide varied. The most common weapons
used "were improvised or weapons of opportunity such as rocks, bricks, pieces of landscape, and
bottles (including frozen and glass bottles). ",8 Over three quarters of major city law enforcement
agencies reported rioters using such weapons. 9 "Another common violent tactic used by protestors
involved throwing 'Molotov cocktails' at officers," which was reported by a staggering 46% of
major city law enforcement agencies nationwide. 10 "Another common tactic was to use peaceful
protesters as human shields while violent individuals attacked officers and attempted to incite
violence by throwing objects from deep within crowds."
4.
63% of agencies reported incendiary fireworks thrown or launched at officers. 12 51% of
agencies reported officers being confronted by protestors wielding firearms-including "AR-15s,
3 Id.
4 Id.
5 Facts + Statistics: Civil Disorders, Insurance Information Institute, https://www.iii.org/fact-
statistic/facts-statistics-civil-disorders.
6 Id.
7 Id.
8
Report on the 2020 Protests & Civil Unrest at 11.
9 Id.
10 Id.
11 Id.
12 Id. at 11 - 12.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 2
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 3 of 13
shotguns, and handguns.' "13 Other weapons wielded by protestors commonly included bats,
hammers, metal poles, and shields. 14 Five different agencies reported "police officers being shot
or critically injured" during the riots, one agency reported rioters discharging their firearms from
moving vehicles, and at least two agencies "reported protestors being shot and killed by other
protestors." 5
5.
It is undisputed that many protestors committed no violence whatsoever during the protests.
It is equally undisputed that a significant number of protestors did commit violent acts during the
protests. When a previously peaceful protest suddenly includes persons who are carrying deadly
weapons, injuring police officers, throwing Molotov cocktails, looting buildings, and setting cars
on fire, the protest is no longer a protest. It is a riot.
6.
Austin was by no means immune to the violence. Rioters looted buildings and businesses;
shattered windows-including buildings with important historical significance; set cars and other
property on fire; broke open an ATM; and defaced the Capitol grounds and numerous other
properties. 16 Rioters in Austin also launched or threw items that included-but were not limited
to
"rocks, bricks, eggs, water bottles, and Molotov cocktails" at Austin Police Department
officers.1 17 Starting on May 30, the Austin Police Department was forced to issue a "citywide
request for assistance, which means all Austin officers [were] asked to report to duty. ,18 DPS sent
13 Id.
14 Id.
15
Id.
16 See e.g. Ken Herman, Herman: A sad Sunday morning on Sixth Street, AUSTIN AMERICAN
STATESMAN (May 31, 2020, 1:38 PM), https://www.statesman.com/news/20200531/herman-sad-
sunday-morning-on-sixth-street.
17 Heather Osborne, Ariana Garcia & Katie Hall, Fires set as Austin protests against police
violence spread, scatter, AUSTIN AMERICAN STATESMAN (May 30, 2020, 11:07 AM),
htps://www.statesman.com/news/20200530/fires-set-as-austin-protests-against-police-violence-
spread-scatter.
18 Id.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 3
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 4 of 13
"more than 1,500 officers to assist local police departments" statewide, and the governor ultimately
"activated the Texas National Guard."19 By the time of the incident underlying this lawsuit, the
Austin protests were no longer protests-they were riots. It is thus within the context of an ongoing
riot that the force used by APD officers must be analyzed.
7.
On May 30, APD Sergeant Edward Boudreau and Officer Derrick Lehman personally
observed rioters throwing projectiles at APD officers that included but were not limited to rocks,
glass bottles, fluid-filled water bottles, and more.
8.
APD Officer Lehman was one of the APD officers tasked with policing the protests and
riots to protect the citizens of Austin and the city itself on the day in question. APD officers on the
scene had reason to believe that the protests would turn violent or even deadly-including the
knowledge that rioters had burned a police precinct to the ground in a related "protest" two days
earlier. ² By the time Officer Lehman arrived, protestors were in the process of attempting to take
over and block Interstate 35, creating a potentially deadly situation for themselves as well as
oncoming drivers travelling on the highway.
9.
Plaintiff Volter-Jones's conduct on May 30, 2020 crossed the line from peaceful protestor
to violent rioter. Plaintiff's violent acts far exceeded anything that protected by the First
Amendment.
10.
Over the course of the protest-turned-riot, Officer Lehman never purposefully impacted
any person who was not either actively committing a violent act or was obviously preparing to
imminently commit a violent act. Officer Lehman never aimed his weapon at any rioter's head,
19 Id.
20
See e.g. Sarah Kerr, Mike Shum, Katie G. Nelson, Dmitry Khavin & Haley Willis,
Minneapolis Precinct Fire: How a Night of Chaos Unfolded, N.Y. TIMES (May 29, 2020),
https://www.nytimes.com/video/us/100000007162707/minneapolis-police-protest-
burn.html?searchResultPosition=1.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 4
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 5 of 13
neck, or face. At all times, Officer Lehman acted pursuant to his training and accepted police
procedures. Officer Lehman's conduct as a law enforcement officer was reasonable, especially
when the requisite consideration is given to his surrounding circumstances that were "tense,
uncertain, and rapidly evolving." 21 He is entitled to the protections of Qualified Immunity as
a
result.
II.
ORIGINAL ANSWER
A. Parties
11.
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.
12.
Defendants admit the allegations contained within Paragraph 2 of Plaintiff's Original
Complaint.
13.
As to the allegations contained within Paragraphs 3 - 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.
B. Jurisdiction and Venue.
14.
Defendants admit allegations contained within Paragraphs 5 - 6 of Plaintiff's Original
Complaint.
C. Facts.
15.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraph 7 of Plaintiff's Original Complaint.
21 See Graham V. Connor, 490 U.S. 386, 397 (1989).
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 5
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 6 of 13
16.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraph 8 of Plaintiff's Original Complaint.
17.
As it pertains to the allegations contained in Paragraphs 9 - 10 of Plaintiff's Original
Complaint, Defendants admit that the Austin Police Department responded to and provided law
enforcement support for large crowds of people gathered on May 30, 2020. Otherwise, denied.
18.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraph 11 of Plaintiff's Original Complaint as written, and
therefore denies the same.
19.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraphs 12 - 17 of Plaintiff's Original Complaint.
20.
With regard to Paragraph 18 of Plaintiff's Original Complaint, denied.
21.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraphs 19 - 20 of Plaintiff's Original Complaint as written, and
therefore denies the same.
22.
Defendants cannot admit or deny what Plaintiff Volter-Jones claims to have observed.
Otherwise, Paragraphs 21 - 25 are otherwise denied.
23.
Paragraph 26 is denied.
24.
Paragraph 27 is denied.
25.
Paragraph 28 is denied.
26.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraph 29 - 31 of Plaintiff's Original Complaint. Otherwise,
denied.
27.
Defendants deny Plaintiff is entitled to damages. Paragraph 32 is denied.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 6
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 7 of 13
28.
Defendants are without sufficient knowledge to form a belief as to the truth of the
allegations contained within Paragraph 33 of Plaintiff's Original Complaint. Otherwise, denied.
29.
Officer Lehman was put on administrative duty. Austin Police Department never
determined Officer Lehman violated policy for the conduct that makes the basis of this suit.
Otherwise, Paragraph 34 is denied.
30.
As to the allegations contained within Paragraph 35 of Plaintiff's Original Complaint,
Defendants admit that the Travis County District Attorney issued 21 indictments to APD officers,
including to Defendants. The indictments and the cited news article related to the indictments
speak for themselves. Defendant denies the remaining allegations and characterizations in
Paragraph 35 of Plaintiff's Original Complaint.
D. Causes of Action.
i.
42 U.S.C. § 1983 (Monell) and the First and Fourth Amendment to the U.S.
Constitution applied through the Fourteenth Amendment - as to Defendant
City of Austin Only
31.
As to the allegations contained in Paragraph 36, Defendants adopt and incorporate their
responses to the previous Paragraphs of the Complaint.
32.
Pursuant to Federal Rule of Procedure 8(b)(A) no answer is necessary from these
Defendants as to Paragraphs 37 - 59 because these paragraphs support causes of action explicitly
not asserted against them. To the extent any answer is deemed necessary, Defendants deny the
allegations therein.
ii.
42 U.S.C. § 1983 - Fourth Amendment Excessive Force - as to Defendant
Edward Boudreau, Individually
33.
As to the allegations contained in Paragraph 60, Defendant Boudreau adopts and
incorporate their responses to the previous Paragraphs of the Complaint.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 7
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 8 of 13
34.
As to the allegations contained in Paragraphs 61 - 63 of Plaintiff's Original Complaint,
Defendant admits that he was acting under the color of law during the protests and riots that form
the backdrop of this lawsuit.
35.
Defendant Boudreau denies using a less-lethal shotgun on the date in question. Pargraph
64 is denied. Pursuant to Federal Rule of Civil Procedure 8(b) a Defendant need not respond to a
Plaintiff's alleged conclusions regarding the law.
36.
Defendant Boudreau denies pointing out Volter-Jones to Defendant Lehman to be
impacted. Pargraph 65 is denied. Pursuant to Federal Rule of Civil Procedure 8(b) a Defendant
need not respond to a Plaintiff's alleged conclusions regarding the law.
37.
Pargraph 66 requires no response. Plaintiff summarily claims a constitutional violation
occured. Pursuant to Federal Rule of Civil Procedure 8(b) a Defendant need not respond to a
Plaintiff's alleged conclusions regarding the law.
38.
As to the allegations contained in Paragraphs 67 - 69, Defendants are without sufficient
knowledge to form a belief as to the truth of the allegations. Otherwise, denied.
39.
Paragraph 70 is denied. Plaintiff is not entitled to damages.
iii.
42 U.S.C. § 1983 - Fourth Amendment Excessive Force - as to Defendant
Derrick Lehman, Individually
40.
As to the allegations contained in Paragraph 71, Defendant Lehman adopts and incorporate
their responses to the previous Paragraphs of the Complaint.
41.
As to the allegations contained in Paragraphs 72 - 74 of Plaintiff's Original Complaint,
Defendant Lehman admits that he was acting under the color of law during the protests and riots
that form the backdrop of this lawsuit. Pursuant to Federal Rule of Civil Procedure 8(b) a
Defendant need not respond to a Plaintiff's alleged conclusions regarding the law. Otherwise,
denied.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 8
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 9 of 13
42.
Defendant is without sufficient knowledge to form a belief as to the truth of the allegations
contained within Paragraph 75 of Plaintiff's Original Complaint. Pursuant to Federal Rule of Civil
Procedure 8(b) a Defendant need not respond to a Plaintiff's alleged conclusions regarding the
law. Otherwise, denied.
43.
Defendant Lehman denies Volter-Jones was pointed out to him Defendant Boudreau to be
impacted. Pargraph 76 is denied. Pursuant to Federal Rule of Civil Procedure 8(b) a Defendant
need not respond to a Plaintiff's alleged conclusions regarding the law.
44.
Pargraph 77 requires no response. Plaintiff summarily claims a constitutional violation
occured. Pursuant to Federal Rule of Civil Procedure 8(b) a Defendant need not respond to a
Plaintiff's alleged conclusions regarding the law.
45.
As to the allegations contained in Paragraphs 78 - 81, Defendants are without sufficient
knowledge to form a belief as to the truth of the allegations. Otherwise, denied.
46.
Paragraph 82 is denied. Plaintiff is not entitled to damages.
iv.
42 U.S.C. § 1983 - First Amendment Retaliation - as to Defendant Edward
Boudreau, Individually
47.
As to the allegations contained in Paragraph 83, Defendant adopts and incorporates his
responses to the previous Paragraphs of the Complaint.
48.
Paragraphs 84 - 86 are denied. At no point did Defendant Boudreau take any action
designed to chill any citizen's protected right to free speech or to peacefully assemble. The only
actions ever taken by this Defendant were in response to riotous behavior. Pursuant to Federal
Rule of Civil Procedure 8(b) this Defendant need not respond to or rebut Plaintiff's alleged legal
conclusions regarding the law of the First Amendment. Otherwise, denied.
V.
42 U.S.C. § 1983 - First Amendment Retaliation - as to Defendant Derrick
Lehman, Individually
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 9
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 10 of 13
49.
As to the allegations contained in Paragraph 87, Defendant Lehman adopts and
incorporates his responses to the previous Paragraphs of the Complaint.
50.
Paragraphs 88 - 90 are denied. At no point did Defendant Lehman take any action designed
to chill any citizen's protected right to free speech or to peacefully assemble. The only actions ever
taken by this Defendant were in response to riotous behavior. Pursuant to Federal Rule of Civil
Procedure 8(b) this Defendant need not respond to or rebut Plaintiff's alleged legal conclusions
regarding the law of the First Amendment. Otherwise, denied.
vi.
Damages, Jury Demand, Attorney's Fees and Costs, and Prayer.
51.
As to the allegations contained in Paragraphs 91 - 94 no answer is necessary from these
Defendants. To the extent any answer is deemed necessary, Defendants admit that Plaintiff seeks
the relief requested therein. Defendants deny that their conduct entitles Plaintiff to compensatory
damages, punitive damages, or attorney's fees.
III.
AFFIRMATIVE DEFENSES & IMMUNITIES
52.
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.
53.
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 to defend themself
and/or other persons from an active or imminent assault with a potentially deadly weapon or
projectile, whether during a riot or otherwise.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 10
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 11 of 13
54.
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. 22
55.
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.
56.
Defendants plead that they had legal justification for each and every action taken by them
relating to this incident.
57.
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.
58.
Defendants assert the limitations and protections of Chapter 101 of the Texas Civil Practice
& Remedies Code.
59.
Defendants reserve the right to assert additional affirmative defenses throughout the
development of this case.
60.
To the extent Defendants did not address a specific averment made by Plaintiff in his
Original Complaint, Defendants expressly deny all such averments.
IV.
JURY DEMAND
61.
Pursuant to Federal Rule of Civil Procedure 48, Defendants hereby request a jury trial.
22
See TEX. CIV. PRAC & REM. CODE ANN. § 33.001.
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 11
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 12 of 13
V.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Defendants, Edward Boudreau and Derrick
Lehman 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 Defendants 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/ Stephen B. Barron
Blair J. Leake
State Bar No. 24081630
bleake@w-g.com
Stephen B. Barron
State Bar No. 24109619
sbarron@w-g.com
ATTORNEYS FOR DEFENDANTS
EDWARD BOUDREAU AND
DERRICK LEHMAN
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 12
Case 1:22-cv-00511-RP Document 10 Filed 06/30/22 Page 13 of 13
CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of June 2022, a true and correct copy of the foregoing
document was caused to be served upon all counsel of record via E-File/E-Service/E-Mail and/or
U.S. First Class Mail, in accordance with the Federal Rules of Civil Procedure, as follows:
Courtney E. Anderson Broadhead
CAB@AndBroLaw.com
ANDERSON BROADHEAD LAW FIRM, PLLC
660 S. Bagdad Rd., Ste. 120
Leander, TX 78641
Monte L. Barton, Jr.
monte.barton@austintexas.gov
City of Austin - Law Department
P.O. Box 1546
Austin, Texas 78767-1546
/s/ Stephen B. Barron
Stephen B. Barron
Defendants Edward Boudreau and Derrick Lehman's Original Answer
Page 13
Case 1:22-cv-00511-RP Document 14 Filed 09/07/22 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-00511-LY
§
CITY OF AUSTIN, EDWARD
§
BOUDREAU, individually, and
§
DERRICK LEHMAN, individually,
§
Defendant.
§
PLAINTIFF'S ALTERNATIVE DISPUTE
RESOLUTION REPORT
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, through their counsel, files this Alternative Dispute Resolution Report pursuant
to Local Rule CV-88 and the Court's Scheduling Order [Docket No. 12]. Plaintiff shows the
Court as follows:
1.
Status of settlement negotiations: Prior to filing suit, counsel for Plaintiff sent
settlement demands to Defendant City of Austin. Plaintiff and Defendant City of Austin are
presently actively engaged in negotiations.
2.
Identity of persons known, or reasonably believed to be responsible for settlement
negotiations for each party:
A. For Plaintiff: Courtney E. Anderson Broadhead, counsel for Plaintiff;
B. For Defendant City of Austin: Monte L. Barton, Jr., counsel for Defendant;
C. For Defendants Edward Boudreau and Derrick Lehman: Blair J. Leake,
counsel for Defendants.
3.
Plaintiff believes that mediation would provide a forum to attempt meaningful efforts
to accomplish resolution of this case and that mediation would be the preferred method of ADR.
Counsel for the Plaintiff certifies that their client has been informed of the ADR procedures available
in the Western District of Texas. Plaintiff and counsel believe that should mediation be necessary,
they will be able to mutually agree with Defendants upon a provider election method, specific
Case 1:22-cv-00511-RP Document 14 Filed 09/07/22 Page 2 of 3
mediator and date. Plaintiff has proposed to Defendants that the mediator's fees be split equally
amongst each party.
Date: September 7, 2022.
Respectfully submitted,
Anderson Broadhead Law Firm, PLLC
660 S. Bagdad Rd., Ste. 120, Leander, TX 78641
Tel. 737.373.3373
Fax. 512.277.7227
By:
/s/ Courtney E. Anderson Broadhead
COURTNEY E. ANDERSON BROADHEAD
State Bar No: 24006185
Email: CAB@AndBroLaw.com
ATTORNEY FOR PLAINTIFF
Case 1:22-cv-00511-RP Document 14 Filed 09/07/22 Page 3 of 3
CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing on all parties or their attorneys of
record on this 7th day of September 2022.
Via email:
MONTE L. BARTON, JR.
State Bar No. 24115616
Email: monte.barton@austintexas.gov
Assistant City Attorney
City of Austin
P.O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEY FOR DEFENDANT CITY OF AUSTIN
BLAIR J. LEAKE
State Bar No. 24081630
Email: bleake@w-g.com
STEPHEN B. BARRON
sbarron@w-g.com
State Bar No. 24109619
Wright & Greenhill, P.C.
900 Congress Avenue, Suite 500 Austin, Texas 78701
ATTORNEYS FOR INDIVIDUAL DEFENDANTS
EDWARD BOUDREAU AND DERRICK LEHMAN
/s/ Courtney E. Anderson Broadhead
COURTNEY E. ANDERSON BROADHEAD
Case 1:22-cv-00511-RP Document 20 Filed 05/09/23 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-00511-RP
§
CITY OF AUSTIN, EDWARD
§
BOUDREAU, individually, and
§
DERRICK LEHMAN, individually,
§
Defendant.
§
DEFENDANT CITY OF AUSTIN'S OPPOSED
MOTION TO STAY DISCOVERY AND FURTHER PROCEEDINGS
TO THE HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE:
Defendant the City of Austin (the "City") files this motion to stay further proceedings and
corresponding scheduling order deadlines in this matter, including discovery, pretrial exchanges,
dispositive motion deadlines, and trial, pending resolution of the criminal proceeding related to
this case that remains pending in Travis County criminal district court.
1.
On April 10, 2023, the Court granted Defendant Officers' (Edward Boudreau and Derrick
Lehman) Motion to Stay Discovery [Dkt. 17], as to those two defendants until the resolution of
the criminal proceedings they both face in connection with their alleged conduct during a May
2020 protest, which is the same conduct that forms the basis for the claims of the plaintiff, Mr.
Volter-Jones, in the civil lawsuit against them and Defendant City of Austin. The discovery
issues are common to and intertwined among all defendants, including the City of Austin. The
remaining defendant, The City of Austin, joins in and fully adopts and incorporates the
Defendant Officers' Motion to Stay Discovery, and separately moves the Court to Stay
Discovery and all Further Proceedings for the reasons stated [Dkt. 17] and also set out below.
2.
As for the Plaintiff's pending claims against Defendant City of Austin ("COA"), the
Case 1:22-cv-00511-RP Document 20 Filed 05/09/23 Page 2 of 5
current scheduling order [Dkt. 16] set this case for trial on December 4, 2023.
3.
The Travis County Grand Jury has yet to convene regarding the pending charges against
Defendants Boudreau and Lehman. As a result, the usual and ordinary discovery has been
delayed. The remaining discovery issues are common to and intertwined among all parties.
Consequently, defendant, COA, respectfully submits that it would be better for the interests of all
parties for all discovery and deadlines in this lawsuit be stayed until the resolution of the criminal
proceedings now pending against co-defendants, Officer Boudreau and Officer Lehman.
4.
Discovery involving the individual officers-who are critical fact witnesses under
indictment-has forced upon the individual officers the impossible choice of invoking their Fifth
Amendment rights in light of the pending criminal cases or defending themselves against civil
liability by waiving those rights and testifying. The officers have not waived their Fifth
Amendment protections. This situation is on point with other cases involving parallel
proceedings where the Court has entered stays of discovery and/or other proceedings in recent
matters arising out of the May 2020 protests, as well as in other cases involving parallel civil and
criminal proceedings over officer conduct. See, e.g., Order (Dkt. 39), Sanders V. City of Austin,
No. 1:22-cv-00314-RP (W.D. Tex. Nov. 15, 2022) (Howell, M.J.) (staying all discovery against
officer defendant); Doe V. City of Austin, No. 1:22-CV-00299-RP, 2022 WL 4234954, at *8
(W.D. Tex. Sept. 14, 2022) (Hightower, M.J.) (staying all discovery against city and officer
defendant); Kirsch V. City of Austin, No. A-20-CV-01113-RP, 2022 WL 4280908, at *3 (W.D.
Tex. Aug. 5, 2022) (Howell, M.J.) (staying all discovery against officer defendant); DeSilva V.
Taylor, No. 1:21:cv-00129-RP, 2022 WL 545063, at *4 (W.D. Tex. Feb. 23, 2022) (Hightower,
M.J.) (staying all discovery against officer defendants); Order Staying Case (Dkt. 89), Ambler V.
Williamson Cnty., No. 1:20-CV-1068-LY (W.D. Tex. July 27, 2021) (staying entire case).
5.
Given the lack of resolution of the criminal case that factually overlaps this one, COA
OPPOSED MOTION BY PARTIES TO STAY ALL DISCOVERY
Page 2 of 5
Case 1:22-cv-00511-RP Document 20 Filed 05/09/23 Page 3 of
5
respectfully submits that it will not be able to conduct additional and necessary discovery that is
unavailable while the criminal case is pending. Further, it is not possible to conduct expert
discovery without the necessary and currently unavailable testimony of the individual officers, as
essential fact witnesses. Without this unavailable testimony and other evidence, COA will not be
able to prepare its defenses for summary judgment, much less for trial. The practical effects of
the parallel criminal proceedings preclude the completion of expert disclosures and reports,
summary judgment briefing, trial preparation, and presentation of the claims and defenses at
trial. The City ("COA") therefore moves to stay all further proceedings in this case until the
resolution of the corresponding parallel criminal proceedings pending against the officer
defendants who are essential witnesses in the case.
6.
Once the overlapping criminal matters are resolved, the parties will be able to complete
remaining discovery, summary judgment proceedings, and any pretrial preparations.
7.
Defendant, The City of Austin, does hereby request for the Court to stay the deadlines
and discovery as to all parties consistent with the Court's Order [Dkt. 19].
PRAYER FOR RELIEF
For the above stated reasons, defendant, The CIty of Austin, respectfully requests that the
Court grant the requested temporary stay of all deadlines and discovery until the criminal parallel
proceedings have concluded, and for all further relief to which the parties may be justly entitled.
RESPECTFULLY SUBMITTED,
/s/ Monte L. Barton Jr.
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF OF LITIGATION
MONTE BARTON JR.
State Bar No. 24115616
monte.barton@austintexas.gov
H. Gray Laird
State Bar No. 24087054
OPPOSED MOTION BY PARTIES TO STAY ALL DISCOVERY
Page 3 of 5
Case 1:22-cv-00511-RP Document 20 Filed 05/09/23 Page 4 of 5
gray.laird@austintexasgov
City of Austin
P. O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
CERTIFICATE OF CONFERENCE
I certify that on April 12, 2023, I conferred via email with Counsel for Plaintiff, Courtney
Anderson Broadhead, and she advised that the plaintiff was opposed to this Motion to Stay All
Discovery
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
CERTIFICATE OF SERVICE
I certify that on May 9, 2023, I served a copy of this Opposed Motion to Stay Deadlines
and Discovery on all parties, by and through their attorneys of record, in compliance with the
Federal Rules of Civil Procedure.
Via CM/ECF:
Courtney E. Anderson Broadhead
Blair J. Leake
State Bar No. 24006185
State Bar No. 24081630
660 S. Bagdad Rd., Suite 120
bleake@w-g.com
Leander, Texas 78641
Stephen B. Barron
Telephone: (737) 373-3373
State Bar No. 24109619
Facsimile: (512) 277-7227
sbarron@g-w.com
WRIGHT & GREENHILL, P.C.
ATTORNEYS FOR PLAINTIFF
4700 Jueller Blvd., Suite 200
Austin, Texas 78723
Telephone: (512) 476-4600
Facsimile: (512) 476-5382
ATTORNEYS FOR DEFENDANTS
EDWARD BOUDREAU and
OPPOSED MOTION BY PARTIES TO STAY ALL DISCOVERY
Page 4 of 5
Case 1:22-cv-00511-RP Document 20 Filed 05/09/23 Page 5 of 5
DERRICK LEHMAN
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
OPPOSED MOTION BY PARTIES TO STAY ALL DISCOVERY
Page 5 of 5
Case 1:22-cv-00511-RP Document 21 Filed 05/22/23 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-00511-RP
§
CITY OF AUSTIN, EDWARD
§
BOUDREAU, individually, and
§
DERRICK LEHMAN, individually,
§
Defendants.
§
PLAINTIFF'S RESPONSE TO DEFENDANT
CITY OF AUSTIN'S MOTION TO STAY DISCOVERY
TO THE HONORABLE ROBERT PITMAN, UNITED STATES DISTRICT JUDGE:
Plaintiff Ge'Micah Volter-Jones ("Plaintiff") respectfully opposes the Motion to Stay
Discovery and Further Proceedings filed by Defendant City of Austin ("the City") in the above-
captioned matter. The Court should deny the City of Austin's Motion to Stay Discovery [Dkt 20].
I. SUMMARY OF THE ARGUMENT
The City of Austin's Motion to Stay Discovery was filed in this court on May 9th, 2023. It
should be denied because under the Alcala factors, the City of Austin fails to meet their burden to
establish a stay1.
Defendant omitted events transpiring during this case proceeding that have rendered moot their
request for a stay of further proceedings "pending resolution of the [overlapping] criminal proceeding"
against individual Defendants Edward Boudreau and Derrick Lehman (in Travis County criminal
district court). [Dkt. 20]
After the criminal proceeding indictments against the individual officers in this case were made
public, the chief executive of the state of Texas, the Governor, made public the promise and assurance
to them that they would not face any criminal consequences. [Exhibit 1] This is a promise from the
1 Alcala V. Texas Webb County, 625 F. Supp. 2d 391 (S.D. Tex. 2009)
1
Case 1:22-cv-00511-RP Document 21 Filed 05/22/23 Page 2 of 18
state of Texas that defendants may rely on in this civil matter as:
1. The state of Texas made a unilateral and unconditional promise to "exonerate any
police officer unjustly prosecuted." [Exhibit 1]
2. The pardon promise of the state of Texas is intended to induce reliance thereon on
by the defendants. The state must fulfill contractual public promises that there will be
no criminal punishment; that a defendant relies on to their detriment by providing
testimony in a civil case. 2
3. On April 8th, 2023, the Governor took overt action to fulfill his prior promise to
"exonerate" criminal defendants who shot people in Austin, Texas (who were
demonstrating against the police violence that caused the death of George Floyd). By
publicly promising that the office of the Governor was "taking action as swiftly as
Texas law allows regarding the pardon" of the convicted murderer defendant Daniel
Perry; the Governor ensured that his prior promise to defendants in this case was not
speculation, but an enforceable promise. [Exhibit 2]
Thus, there is no unresolved parallel criminal action which would necessitate Fifth Amendment
invocation and thus deprive defendant City of Austin of essential witness evidence for their defense.
For the individual defendants and their employer, the City of Austin, the shield of invoking the Fifth
Amendment is superfluous to the effective grant of immunity conferred by the Governor.
Plaintiff requests a hearing on this issue.
For these reasons, the court should deny Defendant City of Austin's motion.
II. PROCEDURAL HISTORY
On May 26th, 2022, Plaintiff filed this Original Complaint. [Dkt. 1]
2 Commonwealth V. Cosby, 252 A. 3d 1092, 1131 (Pa 2021); Pennsylvania V. Cosby, (US Supreme Court cert denied March 7th,
2022)
2
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On August 26th, 2022, Defendant City of Austin served first Discovery Requests
(Interrogatories and Requests for Production) on Plaintiff.
On September 25th, 2022, Plaintiff served Discovery Responses to Defendant City of Austin.
On September 26th, 2022, the Initial Pretrial Conference was held. This case is scheduled for
jury trial on December 4, 2023. [Dkt 16]
On March 9th, 2023, Motion for Discovery Stay was filed by Defendants Edward Boudreau,
and Derrick Lehman. Plaintiff subsequently withdrew their opposition.
On April 10th, 2023, the court granted Defendant Officers' (Edward Boudreau and Derrick
Lehman) Motion to Stay Discovery. [Dkt. 19]
On April 12th, 2023, Defendant City of Austin and Plaintiff agreed in writing via email to a
joint 20-day Extension to Designate Experts.
On May 9th, 2023, Defendant City of Austin's Motion to Stay Discovery was filed in this court.
[Dkt. 20]
III. FACTUAL BACKGROUND
The Office of the Governor is the Chief Executive in the state of Texas.
3
As the Chief Executive of Texas, the Governor is the only entity with the power to pardon
under the Texas Constitution, Article IV, Section 11 (b). 4
A pardon in Texas restores "certain citizenship rights forfeited upon criminal conviction, such
as the right to serve on a jury, to hold public office, and to serve as executor or administrator of an
estate.
A person receiving a full pardon after a conviction is entitled to an expunction of all arrest
3 Office of the Texas Governor | Greg Abbott at https://gov.texas.gov/governor-abbott/duties
4 Texas Constitution, Article IV. ""In all criminal cases, except treason and impeachment, the Governor shall have power, after
conviction or successful completion of a term of deferred adjudication community supervision, on the written signed recommendation
and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and
pardons; and under such rules as the Legislature may prescribe, and upon the written recommendation and advice of a majority of the
Board of Pardons and Paroles, he shall have the power to remit fines and forfeitures."
3
Case 1:22-cv-00511-RP Document 21 Filed 05/22/23 Page 4 of 18
records relating to the conviction." 5
Gregory W. Abbott is the current Governor of Texas (since 2015). 6 Mr. Abbott is an attorney
(Texas Bar Card Number: 00794500, licensed in Texas since 11/08/1985).
On May 30th, 2020, in Austin, Texas, Plaintiff was participating in a public free speech
demonstration against excessive force violence by police officers (in response to the deaths of George
Floyd on May 25th, 2020 in Minneapolis, Minnesota and Mike Ramos on April 24th, 2020 in Austin,
Texas). Plaintiff was shot by individual Austin Police officer defendants (acting under the color of
state and local law of their governmental employer, Defendant the City of Austin), with a 12-gauge
shot gun loaded with less-than-lethal Kinetic Impact Projectiles (KIPs) bean bag rounds. Plaintiff was
severely injured, underwent emergency surgery and is permanently disfigured.
Plaintiff was not questioned, cited, or charged with any crime related to the events on May
30th, 2020.
On July 25th, 2020, in Austin, Texas there was a public free speech demonstration against
excessive force violence by police officers (in response to the deaths of George Floyd and Mike
Ramos). 8 Plaintiff did not participate in this event. An anti-violence protestor unrelated to plaintiff,
Garrett Foster, was fatally shot five times with an AK-47 rifle9 by a member of the public, Daniel
Perry. 10
On or about February 17th, 2022, the Travis County Grand Jury signed the indictment against
the individual Defendants herein, DERRICK LEHMAN and EDWARD BOUDREAU, for
Aggravated Assault by Public Servant against Plaintiff, a first-degree criminal felony by the 390th
5
TEXAS BOARD OF PARDONS AND PAROLES at https://www.tdcj.texas.gov/bpp/exec_clem/Effects_of_a_Full_Pardon.html
6
Office of the Texas Governor | Greg Abbott at https://gov.texas.gov/governor-abbott/duties
7 State Bar of Texas at
https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template=/Customsource/MemberDirectory/MemberDirecto
ryDetail.cfm&ContactID=148193
8 Associated Press at https://apnews.com/article/shootings-violence-u-s-news-austin-texas-a00748a564346acd7a483ab0b3855ef
9
C. Osborn for the Austin American-Statesman athttps://www.statesman.com/story/news/local/2023/04/07/daniel-perry-verdict-
guilty-murder-garrett-foster-austin-protest/70090982007/
10 A. Coronado for the Associated Press at https://apnews.com/article/austin-texas-e6ba2ff02bbe2a1931cb9837d0dbfd69
4
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District Court Special Grand Jury. The cases are pending in the 450th District Court. [Dkt 17-1]
On February 23rd 2022, the Texas Governor issued a press release entitled, "Governor Abbott
Issues Statement in Support of Austin Police Department Officers." [Exhibit 1] It stated in part, "In
2020, Texas experienced violent protests that wreaked havoc on our cities." The Governor continued
to make promises that,
"Time will tell whether the accusations against the courageous Austin police officers is a
political sham. Time will also tell whether I, as Governor, must take action to exonerate any
police officer unjustly prosecuted." 11 [Exhibit 1]
The same day, the office of the Travis county District Attorney released a statement in response
to the Governor's promise, stating in part, "In these cases, Austin police officers indiscriminately fired
deadly weapons into crowds of people. Many of the people hit were innocent bystanders and they
suffered severe and lasting injuries."12
To exonerate is defined as "a situation in which a defendant who was convicted of a crime was
later relieved of all legal consequences of that conviction through a decision by a prosecutor, a
governor, or a court, after new evidence of his or her innocence was discovered." ¹
On April 7th, 2023, a Travis County jury returned a criminal verdict of murder against the
defendant Daniel Perry, accused of fatally shooting the anti-violence protestor Garrett Foster. 14
Publicly disseminated sentencing evidence included that within days after the murder of George
Floyd on May 25th, 2020,
11 Ex. 1, Governor Abbott Issues Statement In Support Of Austin Police Department Officers at
https://gov.texas.gov/news/post/governor-abbott-issues-statement-in-support-of-austin-police-department-officers
12 P. Livengood, KVUE News athttps://www.kvue.com/article/news/investigations/defenders/use-of-force/austin-texas-officer
indictments-gov-abbott-response/269-bf7d606b-34dd-4c68-88a4-eb5e599bcfff
13 Timothy Cole Exoneration Review Commission p. 7, athttps://www.txcourts.gov/media/1436589/tcerc-final-report-december-9-
2016.pdf
14 J. Vertuno, for Associated Press (AP) News, May 9th, 2023
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"[the defendant] sent a text message to an acquaintance as protests over Floyd's death
got underway. "I might go to Dallas to shoot looters," [the defendant] wrote." 15 On
June 1, 2020, [the defendant] wrote that "now it is my turn to get banned (from
Facebook) by comparing the black lives matter movement to a ZOO full of monkeys
that are freaking out flinging their s--t." 16
On April 8th, 2023, the Governor of Texas "tweeted" from@GregAbbott_TX
"I am working as swiftly as Texas law allows regarding the pardon of [convicted
murderer] Sgt. Perry[;] Texas has one of the strongest "Stand Your Ground" laws of
self-defense that cannot be nullified by a jury or a progressive District Attorney.[..
look forward to approving the Board's pardon recommendation as soon as it hits my
desk. Additionally, I have already prioritized reining in rogue District Attorneys, and
the Texas Legislature is working on laws to achieve that goal." "17 [Exhibit 2]
On May 10th 2023, Defendant Daniel Perry was sentenced to 25 years in prison for fatally
shooting a 28 year old US Air Force veteran, who was attending a Black Lives Matter rally in Austin
Texas on July 25th, 2020. 18
IV. LEGAL STANDARD
A. There exists "no general constitutional, statutory, or common law prohibition against the
prosecution of parallel criminal and civil actions, even where such actions proceed simultaneously." 9
B. Whether to stay a civil action is "one of court discretion" exercised "when the interests of
15
J. Vertuno, for Associated Press (AP) News, May 9th, 2023 athttps://apnews.com/article/black-lives-matter-protest-shooting-texas-
sentence-04abb51c52d41fa259b2f2ed8ee72f37
16 T. Plohetski and C. Osborn, Austin American Statesman April 13th, 2023 at
htps://www.statesman.com/story/news/local/2023/04/13/daniel-perry-trial-social-media-racist-anti-protester-cor
garrett-foster/70113166007/
17 Greg Abbott via Twitter at @GregAbbott_TX at https://twitter.com/GregAbbott_TX/status/1644778789493243907
18
Reuters athttps://www.reuters.com/world/us/us-army-sergeant-sentenced-25-years-texas-protesters-murder-2023-05-10/
19 Alcala V. Texas Webb County, 625 F. Supp. 2d 391 (S.D. Tex. 2009) p. 7, citing SEC V. First Fin. Group of Texas, Inc., 659 F.2d
660, 666-67 (5th Cir. 1981) (citing United States V. Kordel, 397 U.S. 1, 11 (1970)).
6
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justice SO require.' "20 "[S]imultaneous prosecutions of civil and criminal actions are "generally
unobjectionable.*21
C. "[T]here is a strong presumption in favor of discovery, and it is the party who moves for a
stay that bears the burden of overcoming this presumption."
D. ."A district court should stay the civil case only upon a showing of 'special circumstances,'
SO as to prevent the defendant from suffering substantial and irreparable prejudice."23
E. In "making the determination whether to stay discovery, the court balances,
(1) the extent to which the issues in the criminal case overlap with those presented in
the civil case;
(2) the status of the criminal case, including whether the defendant has been indicted;
(3) the private interests of the plaintiff in proceeding expeditiously, weighed against
the prejudice to the plaintiff caused by a delay;
(4) the private interests of and burden on the defendant;
(5) the interests of the courts; and
(6) the public interest[.]""24
F. Executive clemency is contractual because it requires acceptance by the convicted person. 25
G. This court does not have judicial review of the State of Texas pardon decision by the Chief
Executive, the Governor of Texas. "Pardon powers are committed, as is our tradition, to the authority
of the executive."26 As per former United States Supreme Court Chief Justice Rehnquist, pardon
"decisions have not traditionally been the business of courts; as such, they are rarely, if ever,
20
Alcala V. Texas Webb County, 625 F. Supp. 2d 391, 396 (S.D. Tex. 2009) p. 7, citing Kordel, 397 U.S. at 12 n. 27; Dominguez V.
Hartford Fin. Servs. Group, Inc., 530 F.Supp.2d 902, 905 (S.D. Tex. 2008).
21 Jostens, Inc. V. Hammons, Civil Action 4:20-CV-00225 (E.D. Tex. Jun. 10, 2022) citing Standard Sanitary Mfg. Co. V. United
States, 226 U.S. 20, 52 (1912)
22 Id. at 397-98.
23 Id. at 398.
24 Id. at 398-400 (string cite omitted).
25
Speth V. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999)
26 Ohio Adult Parole Authority V. Woodard, 523 U.S. 272 (1998)
7
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appropriate subjects for judicial review."27 The Texas Court of Criminal Appeals "has no power to
control nor right to review the Governor's exercise of his clemency power."28
V. ARGUMENT
A. The extent to which the issues in the criminal case overlap with those presented in the civil
case supports proceeding.
Inaccurate facts pled by City of Austin defendant include, "The Travis County Grand Jury has
yet to convene regarding the pending charges against Defendants Boudreau and Lehman. As a result,
the usual and ordinary discovery has been delayed. The remaining discovery issues are common to
and intertwined among all parties." [Dkt 20, page 2, Section 3].
The Travis County Grand Jury has in fact convened and at the July Term, 2021 indicted the
individual Defendants (signed on February 17th, 2022) [Dkt 17-1 and Dkt 17-2] in the following cases:
STATE OF TEXAS VS EDWARD BOUDREAU, D-1-DC-22-900020 and STATE OF TEXAS VS
DERRICK LEHMAN, D-1-DC-20-900071 [Dkt 17-3].
The plaintiff is not a party to any criminal case (he is only the victim of the state felony crimes
for which individual defendants are under indictment).
The greatest concern when a defendant faces simultaneous civil and criminal proceedings is
the risk of self-incrimination. 29 In this case, limited issues related to individual actions of the individual
defendants in this case overlap with the factual events in the indicted Travis county criminal case.
There is no overlapping issue wherein the defendant City of Austin will not have more
evidentiary access than their employees, the individual defendants. The City defendant has internal
access to all of the records in relation to the weapon(s), ammunition, witness statements, personnel
27 523 U.S. 272, 280 (1998) at 276 (citing Conn. Bd. of Pardons V. Dumschat, 452 U.S. 458 (1981))
28
Vandyke V. State, 2017 Tex. Crim. App. LEXIS 1311 (2017) citing Ex parte Gore, 4 S.W.2d 38, 39 (Tex. Crim. App. 1928)
29 Jostens, Inc. V. Hammons, Civil Action 4:20-CV-00225 (E.D. Tex. Jun. 10, 2022) citing Tajonera V. Black Elk Energy Offshore
Ops., L.L.C., No. 13-0366, 2015 U.S. Dist. LEXIS 163518, at *33 (E.D. La. Dec. 4, 2015).
8
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records and audio and video recording of the actual shooting in real time. Individual defendants only
have their own recollections of personal experiences; they did not decide to purchase, pay for, design
training, hire trainers, set training outcomes, create storage and maintenance thereof of physical
evidence, or review of practices of policies related to the evidence or events of the case herein.
In addition, defendant City of Austin has in their possession a wealth of prior discovery in
similar cases (including specific data related to records of the shooting of plaintiff herein), and access
to all current employees (and data on past employees) to mitigate against any potential selective
invocation of the Fifth Amendment privilege by individual defendants. For example, the City is able
to effectively defend itself with utilization of essential witnesses they employ (or have employed); the
City may ask current and past coworkers and supervisors of the individual defendants, "Did you have
knowledge of any assaults on anyone else committed by [individual defendant]?" For these reasons,
this factor weighs in favor of this case proceeding.
B. The status of the criminal case is that there is no unresolved criminal case that might subject
any of the defendants to criminal responsibility.
There is no criminal proceeding against Defendant City of Austin.
The separate criminal proceedings against the individual Defendants in this matter are moot
as:
1) Discovery has been stayed by this court [Dkt. 19]; and,
2) Preemptive criminal case resolution has been undertaken by specific actions of the Governor
of Texas ("the Governor").
The individual City of Austin employee defendants in this case are engaged in a criminal
process in Travis county, Texas, with an outcome that is certain and resolved. The resolution is
evidenced by the fact that the case will either not end in any conviction (due to dismissal, mistrial, or
9
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acquittal), or it will end in a conviction.
If it ends in a conviction, the Governor previously made an enforceable public promise
specifically to the individual defendants in this case that they would not be subject to any criminal
penalties, as he would "exonerate" them. [Exhibit 1]
Subsequently, on April 8th, 2023, the Governor stated that he had "instructed the Board" and
provided his assurance that, "I look forward to approving the Board's pardon recommendation as soon
as it hits my desk." The Governor thus proved that his prior promise to pardon was a trustworthy and
valid offer and could and should be relied upon by defendants that they would not be subject to any
criminal responsibility. The criminal case against the individual defendant employees is rendered moot
based on the reliable public promises made by the Chief Executive of the state of Texas and the actions
of the Governor's subsequent pardon instruction. Thus, the status of the criminal proceeding weighs
in favor of this case proceeding.
C. Proceeding expeditiously is fair and unprejudicial.
The three-year anniversary of plaintiff's shooting will be on May 30th, 2023. Even though
defendant City of Austin has reviewed the shooting and publicly stated in June of 2020 that they
determined that a Level 1 less-lethal force critical incident occurred at the date, time and location that
only plaintiff was shot and injured; zero accountability, assistance or compensation from the
defendants has been forthcoming. In addition, although the defendant City of Austin has all of the
evidence regarding this civil matter in their control and possession; the changes of personnel at the
City during the pendency of this case (new City Manager, new mayor, etc.) prejudice plaintiff and
jeopardize the preservation of evidence. "With the passage of time, witnesses become unavailable,
memories of conversations and dates fade, and documents can be lost or destroyed."3
30 Alcala V. Texas Webb County, 625 F. Supp. 2d at 405
10
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The City of Austin defendant has publicly published report(s) admitting their responsibility for
failures to train, etc., resulting in their employees shooting plaintiff (thus causing his injury and
disfigurement). For example, in their After Action Report released September 16th, 2022, the defendant
City of Austin stated, "APD recognizes that the less-lethal beanbag munition did not perform as
expected, which resulted in unintended injuries" [and] "identifies 17 critical areas of analysis and lists
problem identification, findings, recommendations, and subsequent implementation of
improvements.
Plaintiff is simultaneously a victim of a crime that is prepared to testify in a criminal trial with
no set trial date (that has been rendered effectively impotent and moot by the Governor of Texas) and
this civil litigation with a set trial date against a defendant City who asserts they don't have access to
the evidence of their culpability for shooting him that they themselves have previously published in
reports to the public.
Proceeding with the case herein against defendant the City of Austin is the only potential path
for legal remedy available for plaintiff to pursue at this juncture. Even if a different individual Chief
Executive of Texas were to take the office of Governor in the future; as per the Pennsylvania V. Cosby
case, the promises of the current Governor to "exonerate" the defendants will be enforceable.
Plaintiff has only these civil proceedings to hold those responsible for his shooting accountable
for their actions. There is no method for plaintiff to petition the Governor or the courts in regard to the
public promise to pardon(s) those who were indicted for crimes against him by the grand jury members
in Travis County, Texas.
It is more likely than not that the public awareness of the promised pardon will impact the civil
jury selection in this case. Some potential jurors may impute that plaintiff is making "unjust" or
"sham" civil claims herein, as per the promised pardon language. [Exhibit 1] Potential jurors may
31 City of Austin "Austin Police Announce Key Changes to Policing of Protests" on September 16th, 2022 at
https://www.austintexas.gov/news/austin-police-announce-key-changes-policing-protests
11
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likely believe that for the highest ranking official in the state, the Texas Governor, to make the public
promise to pardon individual defendants that the Governor must have access to information that
"proves" the plaintiff in this case, as per his statement:
engaged in "violent protests," "wreak[ed] havoc on our cities," was engaged in "criminal
assault" on the state Capitol, "shut down" the interstate, participated in "criminal activity" and/
or "physically attacked" police officers. [Exhibit 1]
The only opportunity for plaintiff to rebut those untrue characterizations about him, is in this
proceeding. The longer the public statements about plaintiff remain unaddressed in court proceedings,
the stronger they become in the public consciousness.
Thus, to stay this case as per the Motion of Defendant the City of Austin will be inherently
unfair to plaintiff as it will foreclose the only path legally available to him as a party to seek redress
or justice. Staying this case is overwhelmingly prejudicial to plaintiff as his emotional, medical,
psychological and financial burdens continue to mount as he endures almost three years post-shooting
with no consequences to those who injured and permanently disfigured him. Factors of fairness and
prejudice weigh for proceeding against defendant City of Austin as scheduled.
D. Defendant's interest in justice is not burdened by proceeding.
The City is entitled and obligated to zealously defend themselves. The individual defendants
in this case are reassured by statute and case law that they will be able rely on the public promises of
the state of Texas via the office of the Governor. Neither state nor federal courts have the right to
judicial review of the Governor's pardon power. The individual defendants are secure as they have
been promised zero risk of criminal consequence for shooting plaintiff.
The motion herein by Defendant City of Austin cited cases in "recent matters arising out of the
May 2020 protests," where discovery was stayed only on the officer defendants, "Sanders V. City of
12
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Austin, No. 1:22-cv-00314-RP (W.D. Tex. Nov. 15, 2022) (Howell, M.J.) (staying all discovery
against officer defendant); Kirsch V. City of Austin, No. A-20-CV-01113-RP, 2022 WL 4280908, at
*3 (W.D. Tex. Aug. 5, 2022) (Howell, M.J.) (staying all discovery against officer defendant) [.]" [Dkt
20]
Another cited case, "DeSilva V. Taylor, No. 1:21:cv-00129-RP, 2022 WL 545063, at *4 (W.D.
Tex. Feb. 23, 2022) (Hightower, M.J.) (staying all discovery against officer defendants)" did not stay
discovery against the city and did not relate to the May 2020 protests. It was related to a July 31, 2019
police action resulting in a fatality. 32
The cited case, Ambler V. Williamson Cnty., No. 1:20-CV-1068-LY (W.D. Tex. July 27,
2021), was granted a stay of the entire case yet it was not related to the May 2020 protests herein and
did not include the City of Austin as a party. It was related to a March 28, 2019 fatal event in
Williamson county, Texas. 33 The only other case defendant City of Austin cited was one with an
unidentified plaintiff, Doe V. City of Austin, No. 1:22-CV-00299-RP, 2022 WL 4234954, at *8 (W.D.
Tex. Sept. 14, 2022). [Dkt 20]. This case has an identified plaintiff.
The City may effectively engage in discovery with their own employees to ascertain the events
witnessed by those other employees, including those on the scene of the shooting who did not
discharge their weapons (yet witnessed the individual defendants do so). Issues pertaining to the
purchase of the weapon(s) used in the shooting (in addition to the training, maintenance, storage,
check-in and checkout process thereof), the records on all ammunition used in this shooting, the
records of the actions of the individual defendants (in regard to their hiring, training, evaluation,
discipline, performance reviews) and a wealth of other information is available to the City to ensure
they defend themselves against any allegations by Plaintiff that are not supported by factual evidence.
It is common for an employer to have to defend themselves against an employee, or former
32
DeSilva V. Taylor, No. 1:21:cv-00129-RP, 2022 WL 545063, at *4 (W.D. Tex. Feb. 23, 2022
33
Ambler V. Williamson Cnty., Case No. 1-20-CV-1068-LY (W.D. Tex. Feb. 25, 2021)
13
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employee, that is an opposing party (e.g., in employment cases where the employer is held responsible
for the actions of their employee under respondeat superior liability, for wrongful termination, etc.).
In this case, the City of Austin still employs the individual defendants and the parties are not in
opposition in any public civil or criminal proceeding. The City of Austin has unfettered and
uncompromised ability to defend themselves in this matter through their possession and control of the
physical evidence, personnel and recorded record of the events. In assessing the full and fair defense
available to this specific employer defendant City of Austin, their unique role in regard to evidence
determining inception, control, documentation thereof and as possessor of all relevant evidence should
be afforded a realistic assessment by this court and weighs against a stay.
E. The court's interest (in case management and efficient use of judicial resources) is only served
by proceeding.
Courts "have a "strong interest in moving matters expeditiously through the judicial system."
The potential of criminal responsibility has been foreclosed by the public promise of pardon and the
criminal case has no trial date at this juncture. As there is no trial date for the criminal proceeding and
no Texas court Speedy Trial Act; the defendant City of Austin is effectively "seeking an indefinite
stay, which will frustrate resolution of this case for an undefined period of time. "35 Stay orders will be
reversed when they are "immoderate or of an indefinite duration." ,36 This court faces a certain trial
date pending herein or a stay based on a non-existent trial date with no risk of criminal responsibility
or conviction for defendants' individual employees (due to the promised executive pardon).
The criminal case has no practical meaning as the sole entity with the power to "exonerate" by
the power to pardon, the Governor, promised to do SO and then took overt action to support the validity
34 Jostens, Inc. V. Hammons, Civil Action 4:20-CV-00225 (E.D. Tex. Jun. 10, 2022) citing SEC V. Kiselak Capital Grp., LLC, No.
4:09-CV-256-A, 2011 WL 4398443, at *4 (N.D. Tex. Sept. 20, 2011)
35 Jostens, Inc. V. Hammons, Civil Action 4:20-CV-00225 (E.D. Tex. Jun. 10, 2022)
36 US V. Mallavarapu, 2010 WL 3896422, at *6 (W.D. La. Sept. 30, 2010) (citing In re Beebe, 56 F.3d 1384, at *3 (5th Cir. 1995)
14
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of his promise to pardon. Any other entity publicly proclaiming they would "exonerate" defendants
would be inconsequential as that entity would have no actual power to do SO. The Governor's public
promise to "exonerate" those who shot individual(s) protesting against the death of George Floyd
became enforceable (if it was relied on to the detriment of a criminal defendant who testified in a civil
case) when he acted to pardon "as swiftly" as allowed by law, the defendant Daniel Perry who was
criminally convicted of murder by a jury in Travis County, Texas. Thus, it is a highly inefficient
utilization of this court's resources to stay this actually unresolved federal civil case "pending" an
already resolved state criminal case with a certain and known outcome (e.g., if convicted, defendants
will be pardoned by the office of the Governor). This factor weighs in favor of proceeding this case.
F. The interests of parties not related to the civil litigation and that of the public are only served
by proceeding with civil litigation.
Parties not related to this civil litigation (and that of the general public) are ill-served by
foreclosure of criminal consequences via the promised gubernatorial pardon and ending this civil
process with a "stay" against the defendant City of Austin. "[T]he public has an interest in the just and
constitutional resolution of disputes with minimal delay." 37
The public is aware of the nexus between the proffered pardon action for convicted murderer
Daniel Perry in April 2023 and the previously promised pardons for City of Austin individual
defendant officers indicted for crimes in February 2022. This nexus is evidenced by articles including
one published on April 16th, 2023 in the Austin American-Statesman, "Indicted officers may seek
pardons - Potential action for Perry raises questions" 38 and on April 17th, 2023, "What Gov. Greg
Abbott's Daniel Perry pardon request could mean for indicted police officers[.]"39
37 Jostens, Inc. V. Hammons, Civil Action 4:20-CV-00225 (E.D. Tex. Jun. 10, 2022) citing Kiselak Capital, 2011 WL 4398443
38 T. Plohetski, Austin American-Statesman, April 16th, 2023 page 1A
39 T. Plohetski, Austin American-Statesman at https://www.statesman.com/story/news/local/2023/04/17/greg-abbott-pardon-austin-
protests-police-officers-indicted/70111045007
15
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The public taxpayer should have access to transparent information on issues including how
firearms are obtained, trained on, maintained for operational safety, on where and how they are
assigned to individual officers and where are all of the firearms involved in this case (and similarly
situated ones) are currently located.
The public is the funding source for defendant and for their legal defense. This public funding
aspect results in a heightened interest in the just resolution of disputes with minimal delay. Resolution
of this civil matter (via alternative dispute resolution, settlement or trial verdict) will end the
expenditure of taxpayer funds. Staying this matter for an indeterminate amount of time in deference
to a resolved criminal matter outcome continues the expenditure of taxpayer funds, deprives the public
of information regarding public finance, and weakens public trust in the integrity of the justice system.
This factor thus weighs in favor of proceeding with this case.
VI. PRAYER FOR RELIEF
As plaintiff has shown, the defendant City of Austin has failed meet their burden to establish
factors showing that justice warrants a stay. Procedurally, the individual defendants have already been
granted a stay by this court. They have no possible exposure to the risk of self-incrimination as they
are subject to no discovery at this juncture. The defendant City of Austin is not subject to criminal
responsibility as they are not criminally indicted and face no criminal charges. The individual
defendants have the right to invoke their fifth amendment rights if and when they are ever subject to
discovery in this civil case. They also have the public promise from the government that they may rely
upon, via the Chief Executive of the government of Texas (where they are employed by a subsidiary
municipality), that upon any future criminal conviction the office of the Governor will "exonerate"
them; an effective grant of immunity.
NOW COMES Plaintiff Ge'Micah Volter-Jones ("Volter-Jones") and hereby asks the court to
16
Case 1:22-cv-00511-RP Document 21 Filed 05/22/23 Page 17 of 18
deny the Motion to Stay Discovery filed on May 9th, , 2023 in its entirety and permit this case to proceed
and for all other relief to which plaintiff may be entitled.
RESPECTFULLY SUBMITTED,
Anderson Broadhead Law Firm, PLLC
660 S. Bagdad Rd., Ste. 120, Leander, TX 78641
Tel. 737.373.3373
Fax. 512.277.7227
By:
/s/ Courtney E. Anderson Broadhead
COURTNEY E. ANDERSON BROADHEAD
State Bar No: 24006185
Email: CAB@AndBroLaw.com
ATTORNEY FOR PLAINTIFF
17
Case 1:22-cv-00511-RP Document 21 Filed 05/22/23 Page 18 of 18
CERTIFICATE OF SERVICE
I hereby certify that on the 22nd day of May 2023, a true and correct copy of the foregoing
document was caused to be served upon all parties or their counsel of record via E-File/E-
Service/E-Mail/or U.S. First Class Mail, in compliance with the Federal Rules of Civil Procedure,
as follows:
MONTE L. BARTON, JR.
Blair J. Leake
State Bar No. 24115616
State Bar No. 24081630
Email: monte.barton@austintexas.gov
bleake@w-g.com
Assistant City Attorney
Stephen B. Barron
City of Austin
State Bar No. 24109619
P.O. Box 1546
sbarron@g-w.com
Austin, Texas 78767-1546
WRIGHT & GREENHILL, P.C.
Telephone (512) 974-2409
4700 Jueller Blvd., Suite 200
Facsimile (512) 974-1311
Austin, Texas 78723
Telephone: (512) 476-4600
ATTORNEY FOR DEFENDANT
Facsimile: (512) 476-5382
CITY OF AUSTIN
ATTORNEYS FOR DEFENDANTS
EDWARD BOUDREAU and
DERRICK LEHMAN
/s/ Courtney E. Anderson Broadhead
COURTNEY E. ANDERSON BROADHEAD
18
Case 1:22-cv-00511-RP Document 21-1 Filed 05/22/23 Page 1 of 2
EXHIBIT 1
19
Case 1:22-CV-00511-RP Document 21-1 Filed 05/22/23 Page 2 of 2
Flag Status: Full-Staff
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Governor Abbott Issues Statement In Support Of Austin Police Department Officers
Governor Abbott Issues Statement In
Support Of Austin Police Department
Officers
February 23, 2022 Austin, Texas Press Release
Governor Greg Abbott today issued a statement of support for the officers of the
Austin Police Department:
"Last year, Austin set an all-time record for the number of murders. It comes as
no surprise that murders increased after Austin decreased funding for law
enforcement. In Texas, we do not defund and denigrate our law enforcement
officers. Instead we support them for risking their own lives and safety to protect
our communities from people who endanger and attack our communities. In
2020, Texas experienced violent protests that wreaked havoc on our cities. In
Austin, law enforcement officers defended the state Capitol from criminal
assault, protected the Austin Police Department headquarters from being
overrun, cleared the interstate from being shut down, and disrupted criminal
activity in areas across the city. Many officers were physically attacked while
protecting Austin. Those officers should be praised for their efforts, not
prosecuted. Time will tell whether the accusations against the courageous Austin
police officers is a political sham. Time will also tell whether I, as Governor, must
take action to exonerate any police officer unjustly prosecuted."
Case 1:22-cv-00511-RP
Document 21-2 Filed 05/22/23 Page 1 of 2
EXHIBIT 2
20
5/16/23, 6:31 PM
as Document 122123
/
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1/4
Case 1:22-cv-00511-RP Document 21-3 Filed 05/22/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-00511-RP
§
CITY OF AUSTIN, EDWARD
§
BOUDREAU, individually, and
§
DERRICK LEHMAN, individually,
§
Defendants.
§
ORDER DENYING DEFENDANT
CITY OF AUSTIN'S MOTION TO STAY DISCOVERY
On this day the Court considered Defendant City of Austin's opposed motion to stay and
the response of the Plaintiff. After considering the motion, response, arguments of counsel, and
applicable law, the Court does not find the motion meritorious.
It is therefore ORDERED, ADJUDGED, and DECREED that the motion to stay is
hereby DENIED.
SIGNED this
day of
, 2023.
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
21
Case 1:22-cv-00511-RP Document 21-1 Filed 05/22/23 Page 1 of 2
EXHIBIT 1
19
Case 1:22-CV-00511-RP Document 21-1 Filed 05/22/23 Page 2 of 2
Flag Status: Full-Staff
Español
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Office of the Texas Governor
Greg Abbott
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D
Governor Abbott Issues Statement In Support Of Austin Police Department Officers
Governor Abbott Issues Statement In
Support Of Austin Police Department
Officers
February 23, 2022 Austin, Texas Press Release
Governor Greg Abbott today issued a statement of support for the officers of the
Austin Police Department:
"Last year, Austin set an all-time record for the number of murders. It comes as
no surprise that murders increased after Austin decreased funding for law
enforcement. In Texas, we do not defund and denigrate our law enforcement
officers. Instead we support them for risking their own lives and safety to protect
our communities from people who endanger and attack our communities. In
2020, Texas experienced violent protests that wreaked havoc on our cities. In
Austin, law enforcement officers defended the state Capitol from criminal
assault, protected the Austin Police Department headquarters from being
overrun, cleared the interstate from being shut down, and disrupted criminal
activity in areas across the city. Many officers were physically attacked while
protecting Austin. Those officers should be praised for their efforts, not
prosecuted. Time will tell whether the accusations against the courageous Austin
police officers is a political sham. Time will also tell whether I, as Governor, must
take action to exonerate any police officer unjustly prosecuted."
Case 1:22-cv-00511-RP
Document 21-2 Filed 05/22/23 Page 1 of 2
EXHIBIT 2
20
5/16/23, 6:31 PM
as Document 122123
/
Twitter
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Greg Abbott
@GregAbbott_T)
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I am working as swiftly as Texas law allows regarding the pardon of Sgt.
Perry.
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Texas has one of the strongest "Stand Your
Sign up with A
Ground" laws of self-defense that cannot be
nullified by a jury or a progressive District
Create accour
Attorney.
By signing up, you agree to the Te
Privacy Policy, including Cookie l
Unlike the President or some other states, the
Texas Constitution limits the Governor's pardon
Relevant people
authority to only act on a recommendation by the
Greg Abbott
@GregAbbott_TX
Board of Pardons and Paroles. Texas law DOES
Texas Governor Gre
allow the Governor to request the Board of
Personal Twitter Fe
Pardons and Paroles to determine if a person
should be granted a pardon. I have made that
What's happening
request and instructed the Board to expedite its
MLB LIVE
review.
Angels at Orioles
Trending in United States
I look forward to approving the Board's pardon
Doria
recommendation as soon as it hits my desk.
3,083 Tweets
Zendaya Trending
Zendaya
Additionally, I have already prioritized reining in
139K Tweets
rogue District Attorneys, and the Texas Legislature
Music Trending
is working on laws to achieve that goal.
6ix9ine
11.6K Tweets
2:06 PM Apr 8, 2023 . 17.8M Views
Trending in United States
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14.6K Retweets 3,605 Quotes
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IT
133
4,549
ilil 228.7K
1
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Aries-Atlas @elebull Apr 8
Thank you! The DA intentionally mislead the Grand Jury which is a
violation of federal law. Texas needs to pass HB2640 requiring DA's to
present exculpatory evidence in Grand jury proceedings.
Don't miss what's happening
Log in
S
People on Twitter are the first to know.
https://twitter.com/GregAbbott_TX/status/1644778789493243907
1/4
Case 1:22-cv-00511-RP Document 21-3 Filed 05/22/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-00511-RP
§
CITY OF AUSTIN, EDWARD
§
BOUDREAU, individually, and
§
DERRICK LEHMAN, individually,
§
Defendants.
§
ORDER DENYING DEFENDANT
CITY OF AUSTIN'S MOTION TO STAY DISCOVERY
On this day the Court considered Defendant City of Austin's opposed motion to stay and
the response of the Plaintiff. After considering the motion, response, arguments of counsel, and
applicable law, the Court does not find the motion meritorious.
It is therefore ORDERED, ADJUDGED, and DECREED that the motion to stay is
hereby DENIED.
SIGNED this
day of
, 2023.
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
21
Case 1:22-cv-00511-RP Document 25 Filed 05/30/23 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff,
§
§
V.
§
CIVIL ACTION NO. 1:22-cv-00511-RP
§
CITY OF AUSTIN, EDWARD
§
BOUDREAU, individually, and
§
DERRICK LEHMAN, individually,
§
Defendant.
§
DEFENDANT CITY OF AUSTIN'S REPLY SUPPORTING ITS
MOTION TO STAY DISCOVERY AND FURTHER PROCEEDINGS
TO THE HONORABLE DUSTIN HOWELL, UNITED STATES MAGISTRATE JUDGE:
Defendant the City of Austin (the "City") files this reply in rebuttal to Plaintiff's response
[Dkt 21] in opposition to the City's pending motion to stay [Dkt 20] further proceedings and
corresponding scheduling order deadlines in this matter, including discovery, pretrial exchanges,
dispositive motion deadlines, and trial, pending resolution of the criminal proceeding related to
this case that remains pending in Travis County criminal district court.
1.
Defendant respectfully submits that Plaintiff's Response [Dkt 21] filed on May
22, 2023, does not satisfy either the time limits or page limits of local rule 7(d). Accordingly,
Defendant requests for the Court to grant the City's Motion [Dkt 20].
2.
Further, Defendant respectfully submits that plaintiff's argument about the
authority of the Governor of Texas to unilaterally grant pardons does not apply in this situation.
Consequently, the defendant officers remain the subject of unresolved parallel criminal
proceedings as a result of Travis County Grand Jury indictments on February 17, 2022.
Defendant, City of Austin, maintains and reasserts the arguments from its pending Motion [Dkt
20], and again, in support points out that on April 10, 2023, the Court granted Defendant
Case 1:22-cv-00511-RP Document 25 Filed 05/30/23 Page 2 of 3
Officers' (Edward Boudreau and Derrick Lehman) Motion to Stay Discovery [Dkt. 17], as to
those two defendants until the resolution of the criminal proceedings they both face in
connection with their alleged conduct during a May 2020 protest, which is the same conduct that
forms the basis for the claims of the plaintiff, Mr. Volter-Jones, in the civil lawsuit against them
and Defendant City of Austin. The discovery issues are common to and intertwined among all
defendants, including the City of Austin.
The remaining defendant, The City of Austin, joins
in and fully adopts and incorporates the Defendant Officers' Motion to Stay Discovery, and
separately moves the Court to Stay Discovery and all Further Proceedings for the reasons stated
[Dkt. 17] and also set out in Defendant City of Austin's motion [Dkt 20].
3.
Once the overlapping criminal matters are resolved, the parties will be able to
complete remaining discovery, summary judgment proceedings, and any pretrial preparations.
4.
Defendant, The City of Austin, does hereby request for the Court to stay the
deadlines and discovery as to all parties consistent with the Court's Order [Dkt. 19].
PRAYER FOR RELIEF
For the above stated reasons, defendant, The City of Austin, respectfully requests that the
Court grant the requested temporary stay of all deadlines and discovery until the criminal parallel
proceedings have concluded, and for all further relief to which the parties may be justly entitled.
RESPECTFULLY SUBMITTED,
/s/ Monte L. Barton Jr.
ANNE L. MORGAN, CITY ATTORNEY
MEGHAN RILEY, CHIEF OF LITIGATION
MONTE L. BARTON JR.
State Bar No. 24115616
monte.barton@austintexas.gov
H. Gray Laird
State Bar No. 24087054
gray.laird@austintexasgov
City of Austin
CITY OF AUSTIN REPLY IN SUPPORT OF MOTION TO STAY ALL DISCOVERY
Page 2 of 3
Case 1:22-cv-00511-RP Document 25 Filed 05/30/23 Page 3 of 3
P. O. Box 1546
Austin, Texas 78767-1546
Telephone (512) 974-2409
Facsimile (512) 974-1311
ATTORNEYS FOR DEFENDANT
CITY OF AUSTIN
CERTIFICATE OF SERVICE
I certify that on May 30, 2023, I served a copy of this Reply in Support of City of
Austin's Motion to Stay Deadlines and Discovery on all parties, by and through their attorneys of
record, in compliance with the Federal Rules of Civil Procedure.
Via CM/ECF:
Courtney E. Anderson Broadhead
Blair J. Leake
State Bar No. 24006185
State Bar No. 24081630
660 S. Bagdad Rd., Suite 120
bleake@w-g.com
Leander, Texas 78641
Stephen B. Barron
Telephone: (737) 373-3373
State Bar No. 24109619
Facsimile: (512) 277-7227
sbarron@g-w.com
WRIGHT & GREENHILL, P.C.
ATTORNEYS FOR PLAINTIFF
4700 Jueller Blvd., Suite 200
Austin, Texas 78723
Telephone: (512) 476-4600
Facsimile: (512) 476-5382
ATTORNEYS FOR DEFENDANTS
EDWARD BOUDREAU and
DERRICK LEHMAN
/s/ Monte L. Barton Jr.
MONTE L. BARTON JR.
CITY OF AUSTIN REPLY IN SUPPORT OF MOTION TO STAY ALL DISCOVERY
Page 3 of 3
Case 1:22-cv-00511-RP Document 26 Filed 06/08/23 Page 1 of 8
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
Plaintiff
§
§
V.
§
No. 1:22-CV-00511-RP
§
CITY OF AUSTIN; EDWARD
§
BOUDREAU, POLICE OFFICER;
§
AND DERRICK LEHMAN,
§
POLICE OFFICER;
§
Defendants
§
ORDER
Before the Court is Defendant City of Austin's Motion to Stay Discovery and
Further Proceedings, Dkt. 25. The District Court referred the motion to the
undersigned for disposition. After considering the briefs and exhibits filed, along with
the applicable law, the Court grants the City's motion.
I.
BACKGROUND
This is one of several civil cases filed against the City of Austin and various
Austin Police Department officers over officer conduct during protests that took place
in Austin in late May 2020. Dkt. 1, at 3. Plaintiff, Ge'Micah Volter-Jones, alleges that
he was injured when officers, including the Defendant Officers here, fired "less-than-
lethal Kinetic Impact Projectiles" into the crowd of protesters. Id., at 7-8. Volter-Jones
asserts claims under 42 U.S.C. § 1983 against Officers Boudreau and Lehman and
against the City. Id., at 9-24. The Court previously granted the Defendant Officers'
unopposed motion to stay discovery pending the resolution of the criminal
1
Case 1:22-cv-00511-RP Document 26 Filed 06/08/23 Page 2 of 8
proceedings against them. Dkt. 19. The City did not join this motion; accordingly, the
relief granted in that order applied only to the Defendant Officers. Id.
The City now seeks to stay discovery and all further proceedings until the
pending criminal proceedings against the Defendant Officers are resolved. Dkt. 20.
Volter-Jones asserts Monell1 liability against the City-alleging constitutional
violations arising from policies, practices, and customs that he contends contributed
to the alleged use of excessive force in his case. Dkt. 1, at 9-17. The City argues that,
due to the unavailability of testimony from the Defendant Officers and similarly
situated officers, it cannot obtain the additional fact and expert discovery it needs
and that this prevents the City from adequately preparing its claims and defenses for
summary judgment and trial. Dkt. 20, at 2-3.
II.
LEGAL STANDARDS
"The Court has broad discretion to stay proceedings in the interest of justice
and in order to control its docket." Raymond V. J.P. Morgan Chase Bank, No. SA-20-
CA-161-OLG, 2020 WL 10731935, at *1 (W.D. Tex. Sept. 24, 2020). "Proper use of this
authority calls for the exercise of judgment, which must weigh competing interests
and maintain an even balance." Id. (internal quotation marks omitted). "When a
defendant in a civil case is facing criminal charges, a district court may, in its
discretion, stay the civil action." U.S. ex rel. Gonzalez U. Fresenius Med. Care N. Am.,
571 F. Supp. 2d 758, 761 (W.D. Tex. 2008); see also United States U. Little Al, 712 F.2d
133, 136 (5th Cir. 1983) ("Certainly, a district court may stay a civil proceeding during
1 Monell U. New York City Dep't of Social Servs., 436 U.S. 658 (1978).
2
Case 1:22-cv-00511-RP Document 26 Filed 06/08/23 Page 3 of 8
the pendency of a parallel criminal proceeding."). Such a stay contemplates "special
circumstances" and the need to avoid "substantial and irreparable prejudice." Little
Al, 712 F.2d at 136.
When deciding whether "special circumstances" warrant a stay, courts in the
Fifth Circuit have found the following factors relevant: (1) the extent to which the
issues in the criminal and civil cases overlap, (2) the status of the criminal case,
(3) the private interests of the plaintiffs in proceeding expeditiously, (4) the burden
on the defendants, (5) the interest of the courts, and (6) the public interest. Olson ex
rel. H.J. U. City of Burnet, No. A-20-CV-00162-JRN, 2020 WL 9076545, at * 1 (W.D.
Tex. July 17, 2020) (citing Alcala U. Tex. Webb Cnty., 625 F. Supp. 2d 391, 397-98
(S.D. Tex. 2009)). Courts have found special circumstances where a defendant
attempts to preserve his Fifth Amendment right against self-incrimination and
resolve "the conflict he would face between asserting this right and defending the civil
action." Bean U. Alcorta, 220 F. Supp. 3d 772, 775 (W.D. Tex. 2016) (quoting Alcala,
625 F. Supp. 2d at 397); see also, e.g., In re Grand Jury Subpoena, 866 F.3d 231, 234
(5th Cir. 2017) (observing that "less restrictive civil discovery could undermine an
ongoing criminal investigation and subsequent criminal case").
III.
DISCUSSION
As noted above, the Court has already stayed discovery in this case as to the
Defendant Officers. And the undersigned recently granted a similar motion filed by
the City in a related case arising out of officer conduct in the same protests. See
Sanders U. City of Austin, No. 1:22-CV-00314-RP, Dkt. 72 (W.D. Tex. May 12, 2023);
3
Case 1:22-cv-00511-RP Document 26 Filed 06/08/23 Page 4 of 8
see also, e.g., Doe U. City of Austin, No. 1:22-CV-00299-RP, 2022 WL 4234954, at *7
(W.D. Tex. Sept. 14, 2022) ("[T]he Court finds that a stay of discovery against the City
is appropriate because Doe's Monell claims against the City are inextricably
intertwined with her claims against Dodds."). For the same reasons as those cases, 2
the Court concludes here that the City's requested stay is appropriate. The factors
set out above confirm this conclusion.
A.
Overlap Between the Criminal and Civil Cases
"The extent to which issues in the criminal case overlap with those presented
in the civil case generally is regarded as the most important factor in the analysis."
DeSilva U. Taylor, No. 1:21-CV-00129-RP, 2022 WL 545063, at *3 (W.D. Tex. Feb. 23,
2022) (internal quotation marks omitted). "Where there is significant overlap, self-
incrimination is more likely and thus weighs in favor of a stay." Bean, 220 F. Supp.
3d at 776. And while some facts related to the City's policies, practices, and customs
will not likely feature in the criminal proceedings against the Defendant Officers,
Volter-Jones's Monell claim is predicated on constitutional violations alleged to have
been committed by the Defendant Officers-the same conduct that forms the factual
basis of the criminal proceedings pending against them.
As in Doe, "[t]o defend against [Volter-Jones]'s allegations that the City's
policies and procedures was the moving force behind [the Defendant Officers]'
constitutional violations, the City will need discovery from [the Defendant Officers]
2 The City also argues that Volter-Jones's response was filed late and over-length. See Dkt.
25, at 1. While the undersigned agrees, the Court declines to grant the motion on this basis,
particularly where, as discussed below, the City also prevails on the merits.
4
Case 1:22-cv-00511-RP Document 26 Filed 06/08/23 Page 5 of 8
and likely must depose [them]. Conversely, in order for [Volter-Jones] to prove that
the City is liable under Monell, [he] must first demonstrate that [the Defendant
Officers] committed a constitutional violation, and that the constitutional violation
was caused by the City's policies." 2022 WL 4234954, at *7. Accordingly, this factor,
the "most important," weighs in favor of granting a stay. See, e.g., DeSilva, 2022 WL
545063, at *3 ("Because there is significant overlap between the issue presented in
this case and Defendants' criminal proceedings, there is a significant danger of self-
incrimination. The first and most important factor weighs strongly in favor of staying
the case.").
B.
Status of the Criminal Case
"The 'strongest case' for a stay exists where a party is indicted for a serious
offense and must defend a civil action involving the same matter." Alcala, 625 F.
Supp. 2d at 401. The Defendant Officers have been indicted. Dkts. 17-1, 17-2, 17-3.
A stay of a civil case is most appropriate where a party to the civil case
has already been indicted for the same conduct for two reasons: first, the
likelihood that a defendant may make incriminating statements is
greatest after an indictment has issued, and second, the prejudice to the
plaintiffs in the civil case is reduced since the criminal case will likely
be quickly resolved due to Speedy Trial Act considerations.
Librado U. M.S. Carriers, Inc., No. 3:02-CV-2095D, 2002 WL 31495988, at *2 (N.D.
Tex. Nov. 5, 2002). Now that the Defendant Officers have been indicted, they are at
risk of potentially making incriminating statements in this civil case, thereby
precluding their availability as witnesses.
Volter-Jones minimizes this factor, citing various "enforceable public
promise[s]" made by Governor Greg Abbott. Dkt. 21, at 9-10. Volter-Jones contends
5
Case 1:22-cv-00511-RP Document 26 Filed 06/08/23 Page 6 of
8
the Governor-on pain of contractual liability if he doesn't follow through-has
committed to pardoning the Defendant Officers if they are convicted in their criminal
trials. Thus (the argument goes), any concerns the Defendants have about
incriminating themselves with testimony in this case are unfounded. Though
creative, this argument is meritless. The undersigned concludes that this factor
weighs in favor of a stay.
C.
Plaintiff's Interests
To be sure, Volter-Jones does have an interest in having his claim prosecuted
expeditiously. But when evaluating this factor, "courts may require a plaintiff to
establish more prejudice than simply a delay in its right to expeditiously pursue his
claim." DeSilva, 2022 WL 545063, at *3. Volter-Jones contends that the delay caused
by a stay could "jeopardize the preservation of evidence." Dkt. 21, at 10. But, as in
DeSilva, Volter-Jones "identifies no discovery that is available now but would be
unavailable later should a stay be granted" and "has not alleged that any witnesses
will be unable to testify nor that any particular evidence will degrade if a stay is
granted." DeSilva, 2022 WL 545063, at *3. Volter-Jones's conclusory statements to
the contrary fail to tip this factor in his favor. Volter-Jones invokes his gubernatorial-
nullification argument here as well, but this novel theory holds no more sway in this
context than with the previous factor.
D.
Burden on Defendant
Absent a stay, the City will be forced to defend against Volter-Jones's claim
without the availability of the two witnesses most central to the factual allegations
6
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underlying the claim. In addressing this factor, the best Volter-Jones could muster to
distinguish Doe, which the undersigned finds is the case most on-point with this one,
is to note that the plaintiff in that case was unidentified, while the plaintiff here is
identified. It is unclear how this distinction is material to the analysis, and Volter-
Jones does not bother to explain. This factor weighs in favor of a stay.
E.
Interest of the Courts
Volter-Jones correctly argues that the Court has an interest in moving its
docket along. Dkt. 21, at 14. But, as the Court in DeSilva noted, "granting a stay
'serves the interests of the courts, because conducting the criminal proceedings first
advances judicial economy." 2022 WL 545063, at *4 (quoting Jean U. City of Dallas,
No. 3:18-CV-2862-M, 2019 WL 4597580, at *5 (N.D. Tex. Sept. 22, 2019)). Moreover,
"[r]esolution of the criminal case may increase prospects for settlement of the civil
case and, '[d]ue to differences in the standards of proof between civil and criminal
prosecutions, the possibility always exists for a collateral estoppel or res judicata
effect on some or all of the overlapping issues." Id. (quoting Jean, 2019 WL 4597580,
at *5). For all of these reasons, the Court concludes that this factor, too, weighs in
favor of a stay.
F.
The Public Interest
Finally, the Court considers the public's interest. "The public has an interest
in the just and constitutional resolution of disputes with minimal delay." Walker U.
Wilburn, No. 3:13-CV-4896-D, 2015 WL 5873392, at *9 (N.D. Tex. Oct. 5, 2015). "The
sixth factor typically weighs against the grant of a stay only where, unlike here, a
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civil case is pending and no criminal investigation has begun." DeSilva, 2022 WL
545063, at *4 (citing Meyers U. Pamerleau, No. 5:15-CV-524-DAE, 2016 WL 393552,
at *7 (W.D. Tex. Feb. 1, 2016)). Moreover, "[w]hile the public certainly has an interest
in the prompt resolution of the instant civil case, it also has an interest in protecting
the constitutional rights of criminal defendants." Meyers, 2016 WL 393552, at *7.
Accordingly, the final factor also supports a stay.
IV.
ORDER
The Court GRANTS Defendant City of Austin's Motion to Stay Discovery and
Further Proceedings, Dkt. 20, and ORDERS that all further proceedings in this case
are STAYED until further order of this Court.
IT IS FURTHER ORDERED that this cause of action is removed from the
docket of the undersigned and RETURNED to the docket of the Honorable Robert
Pitman.
SIGNED June 8, 2023.
D
DUSTIN M. HOWELL
UNITED STATES MAGISTRATE JUDGE
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Case 1:22-cv-00511-RP Document 27 Filed 07/10/23 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
GE'MICAH VOLTER-JONES,
§
§
Plaintiff,
§
§
V.
§
1:22-CV-511-RP
§
CITY OF AUSTIN, et al.,
§
§
Defendants.
§
ORDER
On June 8, 2023, the Court granted the City of Austin's motion to stay and stayed this case.
(Dkt. 26). Accordingly, the parties are ORDERED to file joint quarterly status reports with the next
report being due on or before September 8, 2023.
SIGNED on July 10, 2023.
Room
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE