Nehad et al v. Browder et al

1 LOUIS R. MILLER (State Bar No. 54141) [email protected]

2 SCOTI'"J. STREET (State Bar No. 258962) [email protected]

3 MILLER BARONDESS, LLP 1999 Avenue of the Stars, Suite 1000

4 Los Angeles, California 90067 Telephone: (310) 552-4400

5 Facsimile: (310) 552-8400

6 BRIAN E. WATKINS (State Bar No. 190599) [email protected]

7 BRIAN E. WATKINS & ASSOCIATES 925 B Street Suite 402

8 San Diego, California 92101 Telephone: (619) 255-5930

9 Facsimile: (619) 255-5639

10 Att()!neys for Plaintiffs S.R. NEHAD, K.R. NEHAJ?., and ESTATE OF FRIDOON

11 RA WSrtAN NEHAD

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

16 S.R. NEHAD, an individual, K.R. NEHAD, an individual, ESTATE OF

17 FRIDOON RA WSHAN NEHAD,

CASE NO.

COMPLAINT FOR:

18 Plaintiffs,

19 v.

(1) DEPRIVATION OF CIVIL RIGHTS UNDER 42 U.S.C. § 1983 (FOURTH AMENDMENT); AND

20 NEAL N. BROWDER, an individual, and DOES 1 through 10, inclusive,

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259797.1

Defendants.

(2) DEPRIVATION OF CIVIL RIGHTS UNDER 42 U .S.C. § 1983 (FOURTEENTH AMENDMENT)

DEMAND FOR .JURY TRIAL

Case No. COMPJ.AJNT FOR V!OJ.AT!ON OF C!Vll, RIGHTS

'15CV1386 NLSWQH

Case 3:15-cv-01386-WQH-NLS Document 1 Filed 06/24/15 of 10

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Plaintiffs S.R. Nehad and K.R. Nehad (the "Nehads") and the Estate of

Fridoon Rawshan Nehad (the "Estate") (collectively, "Plaintiffs") allege as follows:

INTRODUCTION

1. On April 30, 2015, Fridoon Rawshan Nehad ("Fridoon") was shot to

death by Defendant Neal N. Browder. Browder was acting under color of authority,

in his capacity as a San Diego police officer. Fridoon was unarmed.

2. The shooting was captured on a surveillance video owned by a private

business named KECO, Inc. (the "KECO Video"). KECO has the video of the

shooting and provided a copy to the San Diego Police Department ("SDPD").

KECO's attorney has agreed to provide a copy of the video to Plaintiffs, but only

pursuant to a legally issued subpoena, necessitating this lawsuit.

3. Individuals have seen the KECO Video. One of them called the video

"shocking" and stated that Browder appeared to shoot Fridoon "on a whim," at a

moment when Fridoon's walking cadence noticeably changed from normal to a

near-stop.

4. Browder was wearing a body camera but it was not activated when the

shooting occurred. The KECO Video is critical direct evidence of the shooting and

will establish whether the shooting was justified.

5. Based on the accounts of the SDPD and individuals who have seen the

KECO Video, Plaintiffs believe that Fridoon's shooting was unjustified. They

bring this action for violation of their civil rights under 42 U.S.C. § 1983 and the

Fourth and Fourteenth Amendments to the United States Constitution. They have

also filed an administrative claim with the City of San Diego and intend to amend

this Complaint and add common law claims, if necessary.

6. At this juncture, Plaintiffs' only means of understanding Fridoon's

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untimely death is to see the KECO Video. They have tried to obtain it from the

SDPD but no avail: the SDPD refused to provide the video and told Plaintiffs to file

28 a lawsuit if they wanted to see it. Plaintiffs also tried to obtain a copy of the video

259797.1 1 Case No. COMPLAINT FOR VIOT.ATTON OF CIVIL RIGHTS


1 from KECO, but KECO said it would only produce the video if it receives a

2 subpoena. The City of San Diego would not give Plaintiffs a copy of the video

3 either.

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5 7.

PARTIES, .JURISDICTION AND VENUE

The Estate is Fridoon's probate estate. Under Section 377.20 of the

6 California Code of Civil Procedure, the Estate has standing to bring claims for

7 Fridoon's pre-death pain and suffering. For jurisdictional purposes, and since

8 Fridoon's death occurred in California, the Estate resides in California.

9 8. Plaintiff S.R. Nehad is a United States citizen. She is Fridoon's mother

10 and resides in San Diego, California. Plaintiff K.R. Nehad is a United States

11 citizen. He is Fridoon's father and resides in San Diego, California.

12 9. Defendant Neal N. Browder is a United States citizen. He resides in

j 13 Temecula, California.

14 10. Plaintiffs are ignorant of the true names and capacities of Defendants Z t<o ~ E ~ 15 sued herein as Does 1 through 10 and therefore sue those unknown Defendants by -< 2 ~

~ ~! 16 such fictitious names. Plaintiffs will amend this Complaint to allege said ~ &;

:: • 17 Defendants' true names and capacities when ascertained. Plaintiffs are informed ~ ~

5 ~ 18 and believe that each of the fictitiously named Defendants is responsible in some ~ ~

~ 19 manner for the occurrences alleged herein, and that Plaintiffs' injuries were

20 proximately caused by the acts and/or omissions of said fictitiously named

21 Defendants.

22 .JURISDICTION AND VENUE

23 11. This is a civil suit brought under the Civil Rights Act, 42 U.S.C. §

24 1983, for violations of Plaintiffs' rights under the United States Constitution. This

25 Court has subject matter jurisdiction over the parties and this action pursuant to 28

26 U.S.C. § 1343(a)(3) and 28 U.S.C. § 1331.

27 12. This suit seeks compensatory and punitive damages against all

28 Defendants as permitted by law.

259797.1 2 Case No.

C:OMPT.AINT FOR VIOI.ATION OF r:TVIT. RIGHTS


1 13. Venue is proper in this Court because the events or omissions that gave

2 rise to each of these causes of action occurred in San Diego, California, within the

3 Southern District of California.

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5 A. FACTS

Fridoon and His Family

6 14. Fridoon grew up in Mghanistan. He was an intelligent, kind,

7 thoughtful and creative person. He had a loving and happy childhood. But it was

8 interrupted by the Russian invasion of Mghanistan and the internal civil war after

9 the Russians left.

10 15. The civil war pitted the Mghan government against groups called the

11 Mujahideen (some of these groups would later form the Taliban). Fridoon was

12 drafted into the Mghan army when he was a teenager. While serving, he was

13 captured by one of the Mujahideen groups. He spent nearly two months in captivity

14 and was only released after his mother met face-to-face with the kidnappers and

15 pleaded for the release of her son.

16 16. Fridoon did not talk much about the war. He likely was tortured. The

17 Mujahideen had a well-documented practice of torturing their prisoners of war.

18 17. Mter his release, Fridoon still was in grave danger of further

19 persecution by the Mujahideen (which opposed the government). To save his life,

20 his family got him out of Mghanistan and into refuge in Germany. He was a

21 teenager at the time.

22 18. Fridoon spent the next 14 years in Germany, isolated from his family.

23 He saw his parents just a few times. He did not see his siblings (six sisters) at all.

24 19. In 1991, the Nehads immigrated to the United States, settling in San

25 Diego. They became American citizens. Their daughters attended school and have

26 jobs and careers in the U.S. in medicine, law and business. Fridoon finally joined

27 them in 2003.

28 20. Fridoon suffered from Post-Traumatic Stress Disorder ("PTSD"). He

259797.1 3 Case No. COMPLAINT FOR VIOT.ATION OF CIVTT. RIGHTS


1 also was diagnosed with schizophrenia and bipolar disorder.

2 21. Fridoon battled against his illnesses. He was intelligent, learning new

3 languages (German and French) and taking classes on computer programming,

4 linguistics and literature. He became a permanent resident of the United States and

5 obtained a work permit. He tried to improve his life. But he sometimes had manic

6 episodes. He was arrested and, in 2008, went to jail for burglary.

7 22. Fridoon was loved. His family spent years and countless hours trying

8 to help him cope with his PTSD and illness. At times, it was difficult.

9 23. Fridoon was receiving treatment for his PTSD and mental illness. But

10 he still had manic episodes. During one episode, he became upset with his mother

11 and sister, who called the police. The police recommended that the Nehads get a

12 restraining order.

13 24. The police told the Nehads that getting a restraining order would help

14 Fridoon get into a shelter in Oceanside, which he had visited. The Nehads trusted

15 the police and followed their advice.

16 B. Fridoon's Shooting

17 25. On April29-30, 2015, Fridoon was walking in downtown San Diego.

18 26. Browder responded to a 911 call from an adult bookstore employee.

19 He arrived at the store around midnight.

20 27. According to a KECO employee who saw the KECO Video, Fridoon

21 was walking in the alley behind the bookstore when Browder arrived in his police

22 car. He was about 15 to 20 feet away from the police car when Browder stepped out

23 of his car and, within seconds, fired his side arm, hitting Fridoon with at least one

24 shot. Fridoon died later at UCSD Medical Center.

25 28. The KECO employee who saw the video, Wesley Doyle, provided a

26 declaration about what he remembers about the KECO Video. Doyle said the

27 shooting was "unprovoked" and "shocking." Browder did not take any time to

28 communicate with Fridoon and did not use any other (non-deadly) measures against

259797.1 4 Case No. COMPLATNT FOR VTOT.ATTON OF CTVTT. RTGHTS


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1 Fridoon. He did not even get into a police shooting stance. He appeared to shoot

2 Fridoon "on a whim," at a moment when Fridoon's walking cadence noticeably

3 changed from normal to a near-stop.

4 C. The SDPD Cover-Up and the KECO Video

5 29. Fridoon was not armed. Nonetheless, the SDPD tried to "spin" the

6 story against Fridoon, falsely suggesting to his family and the media that he had a

7 knife. The SDPD also falsely claimed that Fridoon was threatening Browder when,

8 in fact, Fridoon was shot at a distance of at least 15 feet and just after Browder

9 arrived at the scene.

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30. Browder was wearing a body camera that night. But it was not

activated at the time of the shooting. After the killing, the SDPD admitted that it

had not properly trained its officers on use of their cameras and changed its policy

and practice to require they be turned on during all law enforcement contacts with

civilians (which would have included the incident preceding Fridoon's shooting).

31. The KECO Video is direct evidence of Fridoon's shooting. The

existence of the KECO Video became known after an employee of KECO saw the

video and contacted the media to rebut the SDPD's story.

18 32. There are two copies of the KECO Video. KECO has one. The SDPD

19 has the other.

20 33. Plaintiffs requested a copy of the KECO Video from the SDPD but

21 their request was rejected. The SDPD told Plaintiffs that they should file a lawsuit

22 if they wanted to see the video.

23 34. Plaintiffs also asked KECO to turn over its copy of the video. KECO

24 also declined. However, KECO's attorney agreed to give Plaintiffs a copy of the

25 video pursuant to a subpoena, during a lawsuit.

26 35. Plaintiffs made a similar request to the City of San Diego. But the City

27 also refused to give Plaintiffs the video. Plaintiffs' only option is to file this action

28 and seek leave of court to serve a subpoena on KECO.

259797.1 5 Case No.

C:OMPLAINT FOR VIOLATION OF C:IVII. RIGHTS


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36. Plaintiffs are filing this action concurrently with a motion for leave to

serve the KECO subpoena and obtain the video. As more fully set forth in that

motion, there will be no harm or prejudice to the defendants. KECO is a private

business and is willing to produce the video pursuant to a subpoena.

37. There is great harm, prejudice and unfairness to Plaintiffs in not

getting the video. That is the only way they can see what truly happened and

proceed with their claim. There is no good reason to delay the process: the video is

clearly discoverable and could affect the just and speedy resolution of this case.

FIRST CAUSE OF ACTION

(Deprivation of Civil Rights Under 42 U.S.C. § 1983 (Fourth Amendment))

(By the Estate Against Browder)

38. Plaintiffs repeat and re-allege the allegations contained in the preceding

and subsequent paragraphs of this Complaint, as though set forth fully herein.

39. This cause of action is brought pursuant to 42 U.S.C. § 1983 and the

Fourth and Fourteenth Amendments of the United States Constitution.

40. Under section 377.20 of the California Code of Civil Procedure, the

Estate is Fridoon's successor-in-interest and has standing to assert a claim for

Fridoon's pre-death damages.

41. Defendant Browder shot and killed Fridoon. Shooting a weapon is the

use of deadly force. Plaintiffs are informed and believe, and on that basis allege,

that deadly force was not warranted: Fridoon did not have a weapon and was not

threatening Browder, or anyone else, with deadly force.

42. In the process, Browder violated Fridoon's right to be free from

excessive force as secured by the Fourth and Fourteenth Amendments.

43. Browder acted under color of law and within the course and scope of

26 his employment with the City of San Diego and the SDPD in deploying excessive

27 force against Fridoon.

28 44. Browder's actions directly and proximately caused injury to Fridoon, as

259797.1 6 Case No. COMPLAINT FOR VTOT.ATTON OF CTVTT. RIGHTS


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1 he was mortally wounded and endured horrific pain and suffering in the time before

2 he died.

3 45. As a result of Browder's actions, the Estate is entitled to damages in an

4 amount to be proven at trial.

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46. Browder acted in knowing violation of Fridoon's legal and

constitutional rights and without good faith, so punitive damages are warranted.

SECOND CAUSE OF ACTION

(Deprivation of Civil Rights Under 42 U.S.C. § 1983 (Fourteenth Amendment))

(By the Nehads Against Browder)

47. Plaintiffs repeat and re-allege the allegations contained in the preceding

and subsequent paragraphs of this Complaint, as though set forth fully herein.

48. This cause of action is brought pursuant to 42 U.S.C. § 1983 and the

Fourteenth Amendment of the United States Constitution.

49. Defendant Browder shot and killed Fridoon. Shooting a weapon is the

use of deadly force. Plaintiffs are informed and believe, and on that basis allege,

that deadly force was not warranted: Fridoon did not have a weapon and was not

threatening Browder, or anyone else, with deadly force.

50. In the process, Browder violated the Nehads' liberty interest in the

19 companionship of their eldest child and only son, a right secured by the Fourteenth

20 Amendment.

21 51. Browder acted under color of law and within the course and scope of

22 his employment with the City of San Diego and the SDPD in deploying excessive

23 force against Fridoon.

24 52. Browder's actions directly and proximately caused injury to the

25 Nehads, as the shooting killed Fridoon and deprived the Nehads of the

26 companionship of their eldest child and only son.

27 53. As a result of Browder's actions, the Nehads are entitled to damages in

28 an amount to be proven at trial.

259797.1 7 Case No. C:OMPJ ,AJNT FOR VIOl ,ATJON OF r.JVJJ, RIGHTS


1 54. Browder acted in knowing violation of the Nehads' legal and

2 constitutional rights and without good faith, so punitive damages are warranted.

3 PRAYER FOR RELIEF

4 WHEREFORE, Plaintiffs pray for judgment as follows:

5 1. For damages in an amount to be proven at trial, including general

6 damages, special damages and punitive damages;

7 2. For attorneys' fees, costs and interest; and for such other and further

8 relief as the Court deems just and proper.

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10 DATED: June 24, 2015

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259797.1

LOUIS R. MILLER Attorneys for Plaintiffs S.R. NEHAD, K.R. NEHAD, and ESTATE OF FRIDOON RA WSHAN NEHAD

8 Case No, C:OMPT ,AINT FOR VIOl ,ATION OF C:IVTT, RIGHTS


1 DEMAND FOR .JURY TRIAL

2 Pursuant to Rule 38 of the Federal Rules of Civil Procedure and Local Rule

3 38.1, Plaintiffs hereby demand a trial by jury.

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DATED: June 24, 2015

259797.1

MILLER BARONDESS, LLP

LOUIS R. MILLER Attorneys for Plaintiffs S.R. NEHAD, K.R. NEHAD, and ESTATE OF FRIDOON RA WSHAN NEHAD

9 Case No. COMPLAINT FOR VIOLATION OF CIVIl. RIGHTS


Nehad et al v. Browder et al

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