Denver Diner Case: Affidavits

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EXHIBIT 34

Case 1:11-cv-02394-WJM-CBS Document 62-35 Filed 07/16/12 USDC Colorado Page 1 o80


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______________________________________________________________________________

AFFIDAVIT OF CHELSEA CALDWELL

______________________________________________________________________________

I, Chelsea Caldwell, swear that the following is true and correct to the best of my

knowledge and information:

1. My name is Chelsea Caldwell. I am over the age of twenty-one and am otherwisecompetent to testify. I make the following statements based on my personal knowledge.

2. In the summer of 2007 I was at my Aunts ex-girlfriends birthday party in Denver.3.

I was standing outside the front of the house when two Denver police officers drove up

and got out of the car.

4. I went inside to tell my brother. He was sitting on the couch so I decided to sit there withhim.

5. My dad, Mitch Caldwell, came inside. The officers were trying to push their way into thehouse. My dad told them that they couldnt come inside the house. He was being very calm and

respectful.

6. One of the officers charged at my dad and grabbed him by the neck. The officer liftedhim off the ground and shoved him into the nearby bathroom extremely violently.

7. As soon as I saw the officer grab my dad and shove him down by the neck like that Istarted crying. It was horrifying; I thought my dad was going to be seriously hurt.

8. The officer had absolutely no reason to attack my dad. They didnt even have a reason tocome into the house.



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______________________________________________________________________________

AFFIDAVIT OF KELLY CALDWELL

______________________________________________________________________________

I, Kelly Caldwell, swear that the following is true and correct to the best of my


1. My name is Kelly Caldwell. I am over the age of eighteenand am otherwise competentto testify. I make the following statements based on my personal knowledge.

2. In the summer of 2007 I was at the 30th birthday party of my aunts girlfriend.3.

There was a live band playing at the party.

4. I was inside the house, sitting in the main entryway with five other people. I looked outthe window and saw my dad, Mitch Caldwell, talking with some police officers. He came into

the entryway and an officer followed him inside. When my dad saw this he turned and said, I

thought I told you to wait outside.

5. The police officer rushed toward my dad and intentionally bumped him with his belly.The officer was over six feet tall and had a big gut, so the force was intended to knock my dad

backwards.

6. This officer then grabbed him by the neck, lifted him off the ground, and violentlyshoved him into the nearby bathroom.

7. The force used by the police officers was over the top. It appeared as if the police thoughtthe party was being thrown by a bunch of teenagers. They came in ready to fight from the

beginning.



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ase : -cv- - - ocumen - e o ora o age o80


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e 1:11-cv-02394-WJM-CBS Document 62-35 Filed 07/16/12 USDC Colorado P80


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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 09-cv-01029-JLK-MJW

JASON ANTHONY GRABER,

Plaintiff,

v.

CITY AND COUNTY OF DENVER, a municipality,OFFICER MILLER, in his official and individual capacity,

UNKNOWN DENVER POLICE DEPARTMENT OFFICERS 1 - 2, in their official and

individual capacities.

Defendants.

______________________________________________________________________________

AFFIDAVIT OF JAMES D. MOORE

______________________________________________________________________________

I, James D. Moore, swear that the following is true and correct to the best of my


1. My name is James D. Moore. I am over the age of twenty-one and am otherwisecompetent to testify. I make the following statements based on my personal knowledge.

2. On or about March 25, 2008, my girlfriend Julie Gomez and I were standing peacefullynext to each other on the sidewalk in front of my apartment complex. Ms. Gomez and I

were not arguing or otherwise engaging in any violation of law.

3. Denver Police Officers Shawn Miller and John Robledo approached us and yelled at me,get your hands out of your pockets, let me see some ID!

4. Confused as my hands were not in my pocket. I also responded respectfully why, whatis going on?



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5. Without any provocation, warning, or further communication, Officers Miller andRobledo tackled me from behind and from the side and struck me on the left side of my

head. Officer Shawn Miller as I was being tackled to the ground leveraged his weight to

slam my face first into the concrete. My nose started to bleed profusely.

6. I was then instructed to place my hands in front of me. I obeyed their commands and as Ilay face down I placed my hands in front of me. Then the officers started to beat my

fingers, wrist, elbows and arms. I was in full compliance of the officers only to get

tortured. Officers Miller and Robledo then handcuffed my right arm as I lay face down

in the ground and chained my left leg to my right arm with a pair of restraints that looked

like a pair of nunchuks that had a very long chain. I was literally hogtied.

7. While handcuffed, Officers Miller and Robledo continued to beat my head, arms, elbows,fingers, knuckles, knees, shoulders, neck, back and elbows with brutal force leveraging

Saps and Black/Slap Jacks. Blood was pouring out of the front left side of my skull like a

water fountain.

8. Officer Robledo buried his knee and all his weight into my lower back while grabbingmy left leg and extending it vertical into the air against the natural motion of my back

which only allowed me to breathe minimally and intermittently. This wrenching action

damaged my spine.

9. During the assault, I plead with Officers Miller and Robledo. I stated you have thewrong guy, my name is James Moore. Im a disabled vet. I repeated my name is

James Moore, you have the wrong guy.

10. Officers Miller and Robledo were both laughing and one of them sarcastically said youhear that, we have the wrong guy.

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11. While already restrained, Officers Miller and Robledo continued to beat me with closedfists and impact weapons such as saps. Officers Miller and Robledo kicked and kneed

me while I was restrained and on the ground. I was begging please, I cant breathe. I

was seeing stars. The result of the extreme violence caused me to lose consciousness.

12. Ms. Gomez the entire time was pleading with Officers Miller and Robledo for my life,and continued to inform them that I had done nothing wrong.

13. At no time did I resist arrest, or take any action to justify Officer Millers and Robledosuse of violent force against me.

14.

I suffered extensive physical injuries to my body, including my head. A large pool of my

blood measuring approximately the circumference of my body covered the sidewalk at

the site where I was assaulted and arrested.

15. My injuries were so severe that I stopped breathing and my heart stopped, requiring othermembers of Defendant Denvers law enforcement to perform Cardio Pulmonary

Resuscitation.

16. I was transported via ambulance to Denver Health Medical Center.17. I was falsely charged criminally with violation of C.R.S. 18-3-203, Felony Assault on a

Police Officer, and C.R.S. 18-8-116, Felony Disarming of a Police Officer. After almost

two years of criminal prosecution, all criminal charges against me were correctly

dismissed upon motion by the Denver District Attorneys Office.

18. To this day I live with chronic pain. I have had to undergo back surgery and numerousbouts of physical rehabilitation with frequent visits to different specialists. I use a

walking cane to take the weight off my left leg. I can no longer stand up for more than

ten minutes, without having to sit or lie down due to the pain. My left foot has lost most

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of its feeling and I have a permanent indention in my left leg above my ankle marking the

spot where the chain of the restraint that was that was used to hog tie me.

19. I have filed a federal lawsuit against the City and County of Denver and Officers Millerand Robledo, Civil Action No. 10-cv-651-JLK.

20. I, James D. Moore, declare under penalty of perjury pursuant to 28 U.S.C. 1746 and thelaws of the United States of America that the following is true and correct, based on my

personal knowledge. Here is part of my argument from the brief on this issue:

____________________________________James D. Moore

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Affidavit of Ashford WorthamPage 2 of 8

u-turn, and pulled up behind the vehicle. After pulling up behind our vehicle, Officers Davis and

Campion turned on their police lights and pulled us over. Officer Speelman had followed us

from behind and was also on the scene.

8. Officer Davis approached our vehicle on the drivers side demanding, in an aggressiveand loud voice, Get your license, registration, and insurance. At the same time Officer

Campion approached our vehicle on the passenger side. Mr. Campbell leaned slightly forward

and advised Officer Davis that it was his car, and the insurance and registration were in the glove

box. I asked Officer Davis why they pulled us over.

9. Officer Davis refused to answer my question and instead demanded: Get me what Ifucking asked for! We were stunned by the hostility and aggressiveness of the officers and

instantly became fearful for our well-being.

10. Mr. Campbell stated carefully what he was doing with his hands to retrieve the insuranceand registration (I am going to use my right hand to open the glove box.), so as not to create

further tension with the already hostile officers or to give any concern that he was making any

suspicious or inappropriate movements.

11. As Mr. Campbell opened the glove box to get the registration and insurance, he looked tothe right and saw that Officer Campion had his gun drawn and was pointing it at him. Mr.

Campbell, afraid for his life, immediately froze and put his other hand in the air. Without

allowing Mr. Campbell to retrieve the insurance and registration, Officer Campion aggressively

yanked Mr. Campbell from his seat. Mr. Campbell became entangled in his seat belt, which

made it difficult for him to exit the car. Once outside the car, Officer Campion searched Mr.

Campbell, even though he lacked reasonable suspicion to believe Mr. Campbell had a weapon.



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12. Shortly thereafter, Officer Davis demanded that I exit the car. Officer Davisproceeded to search me even though he had no reason to believe I had a weapon or had engaged

in any criminal activity. Officer Davis then questioned me about where we were going. In

response, I asked the officer, Why does it matter where we were going? Officer Davis

retorted: Youre one of those smart mouthed niggers, arent you? Officer Davis then

handcuffed me and placed me on the sidewalk.

13. It was about 28 degrees at the time of the stop and neither Mr. Campbell or I waswearing appropriate clothing to be forced to sit outside in the freezing cold on the sidewalk. At

my subsequent trial, Officer Speelman testified, in contrast to the recorded weather record, It

was not cold.

14. While we were sitting outside in the cold, Officers Davis and Campion performeda warrantless and illegal search of our vehicle and obtained Mr. Campbells registration and

insurance from the glove-box.

15. Officer Speelman, who spent much of the stop in the warmth of one of the twopolice vehicles on the scene, approached us at one point and announced: Well, we got ourselves

some real gang bangers here. He then stated to me: Youre a spook gangbanger. Officers

Speelman and Davis continued to taunt me, telling him that I was fatter than my identification

indicates.

16. According to police records, the stop lasted approximately 45 minutes. However,at my subsequent trial, Officer Speelman testified, that the stop lasted twenty minutes at the

most . . . .

17. During the stop we were left sitting in the cold on the sidewalk without properclothing for no apparent reason. Mr. Campbell asked repeatedly to either be allowed to put on



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his coat or that he be arrested and taken to jail since he was freezing and had a bad back which

was hurting because of the position in which he was forced to sit. The officers repeatedly

refused Mr. Campbells request, and did not allow him to get his coat until near the end of the

stop.

18. After the forty-five minute plus ordeal, Officer Speelman cited me for: (1) failingto wear a seat belt; (2) running a red light; and (3) failure to sign insurance/registration. Finally,

we were permitted to leave. All of these citations lacked a factual basis and were given to cover-

up the officers racially motivated and otherwise illegal stop, detention and treatment of us. At all

times we were each wearing our seatbelt; and (2) I was driving in a safe and lawful manner and

did not run a red light. Further, as the officers well knew, I had no legal responsibility to sign

Mr. Campbells car insurance and registration forms.

19. I pled not guilty to all the charges against me and on June 29, 2009, appearedprose in Denver County Court. Officer Speelman was the only DPD representative who appeared at

the trial. Officer Speelman testified in a demonstrably false manner.

20. During a May 18, 2010 phone interview with Sergeant Maria Cameron, JudgeOrtiz-White commented that the testimony of Officer Speelman was incredible as it was a

whole different story . . . . [v]ery divergent . . . [a]nd it wasnt just one part of the story . . . .[it

was] how they [were] stopped, why they [were] stopped, and it just went way beyond a traffic

stop.

21. Judge Ortiz-White held, and stated in the official Court record, that the officerslacked any probable cause for the stop. The judge found that the: Police conduct was extreme,

profane and racially motivated. Def[endant] and passenger were unlawfully detained for

unreasonable time and without reasonable suspicion. Further, the judge held that the: Officers



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credibility was seriously questioned based on his testimony about the location of the stop and

details of the stop. And that the police conduct was not acceptable from what I heard. Judge

Ortiz-White dismissed all charges against me.

22. After dismissing the charges Judge Ortiz-White had one final word ofadvice/caution for me:

THE COURT: Mr. Wortham, just one other thing I want to say, I hear thattestimony from time to time about that kind of situation basically a majorshake down MR. WORTHAM: Yes, maam.THE COURT: --of males in the car, and, but really ninety-five percent of theofficers that I hear testimony and see how they operate, arent like that. But

unfortunately, the other whatever percent make it feel like everybody is.MR. WORTHAM: Yes.THE COURT: So Im glad you handled it well, I mean it could have been deadly

23. Mr. Campbell and I attempted to file a complaint on the same night of the stop,February 13, 2009. Initially we went to District Two to file the complaint. At District Two we

talked to Officer Gallawa who falsely told us we would have to file our complaint with Internal

Affairs or go to District Six. We then dove to District Six and spoke with Officer Warwick who

summoned Sergeant Speelman. When Sergeant Speelman arrived he took a threatening posture

and intimidated us to such a degree that we asked an officer passing by to wait and be a witness.

Officer Warwick then told us to leave.

24. Unable to file a complaint we met with a member of the African-Americanreligious community who personally contacted Denver Police Chief Gerald Whitman. Only after

speaking with Police Chief Whitman were we allowed to go file an internal affairs complaint

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25. After the complaint was filed, DPD opened an internal affairs investigationrelated to the incident. We were interviewed by Internal Affairs officers. The investigation was

cursory and the result was pre-determined.

26. On May 15, 2009, Chief Whitman and Deborah Dilley sent us a letter stating thatthere is no preponderance of evidence to prove the charge of Discourtesy or Racial Harassment

against Sgt. Speelman, Officer Davis or Officer Campion.

27. Disturbed by this result, Mr. Campbell and I, through the American CivilLiberties Union of Colorado Foundation (ACLU), sought through Colorados open records

laws to review the records related to this matter, including the internal affairs records.

28. Denver refused to provide these records and the ACLU was left with no choicebut to file a lawsuit compelling disclosure. Even though we were obviously legally entitled to

obtain the records sought, only when the district court set a show cause hearing did Denver

provide redacted versions of the files. Denver ultimately had to pay $24,000 to the ACLU for

their legal fees in obtaining the records.

29. The records reveal that all three officers on scene that night have a history ofrelevant public complaints.

30. Officer Speelman had at least thirty-five complaints from 1995-2009, manyinvolving unlawful use of force and inappropriate treatment, and several involving unlawful

stops, searches and detentions.

31. Officer Davis has at least nine complaints from 2007-2009, most involvingunnecessary use of force or profanity.

32. Officer Campion had at least three complaints from 2008-2009, includingcomplaints of discrimination, discourtesy and inappropriate force.



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AO: Thats because of what they were saying to the man as they pulled him outof the car and stuck him on the sidewalk.MC: Okay, as and did that come from like the testimony of the guys?AO: Yes, and the officers said yes, they did pull him out.

35. Even though a Denver County Court judge found the conduct of the officers to beextreme, profane and racially motivated Denver failed to discipline any of the officers for their

conduct relating to their stop of us. Instead, Officer Speelman was disciplined for only one of

his lies: failing to notify a superior that we had attempted to file a complaint against him and

Officers Davis and Campion.

36. On August 27, 2010, the ACLU, asked Denver to reopen the investigation due toall the contradictory testimony on the part of the officers. Denver declined the ACLUs request,

stating that all of the inconsistencies between the officers accounts can readily be explained

away as innocent.

I, Ashford Wortham, declare under penalty of perjury pursuant to 28 U.S.C. 1746 and

the laws of the United States of America that the preceding is true and correct, based on my

personal knowledge.

DATED This:______ day of July, 2012

____________________________________Ashford Wortham



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Denver Diner Case: Affidavits

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