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  • 1. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 1 of 19 PageID #: 550 SCHUTTER DIAS & SMITH PAUL V. K. SMITH 5891-0 City Center 810 Richards Street, Suite 810 Honolulu, Hawaii 96813 Telephone: (808) 524-4600 Email: pvsmith@mail2world.com Attorneys for Plaintiff KIHA SILVA IN THE UNITED STATES DISTRICT COURT DISTRICT OF HAWAII KIHA SILVA ) ) Plaintiff, ) ) vs. ) ) THE CITY AND COUNTY OF ) HONOLULU, KEITH DAVID ) MARINI and DOE DEFENDANTS ) 1-10, ) ) Defendants. ) _______________________________ ) CIVIL NO. 11-CV-00561-LEK-RLP [Other Civil Action] FIRST AMENDED COMPLAINT; CERTIFICATE OF SERVICE COMPLAINT COUNT I. CLAIM FOR DAMAGES UNDER 42 U.S.CA. Sec. 1983 FOR THE USE OF EXCESSIVE FORCE Plaintiff, KIHA SILVA by and through his attorneys, Schutter Dias & Smith,
  • 2. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 2 of 19 PageID #: 551 hereby alleges and avers as follows: 1. Plaintiff KIHA SILVA is a resident of the City and County of Honolulu, State of Hawaii. 2. At all material times herein Defendant CITY AND COUNTY OF HONOLULU (hereinafter referred to as “Defendant City” or “CITY” or Defendant “City and County” or Defendant “County”), is and was a municipality organized and exiting under the laws of the State of Hawaii and the United States of America and is charged, inter alia, with the duty to supervise, manage and control its Police Department to prevent the violation of the civil rights of its citizens. 3. At all material times herein, Defendant KEITH DAVID MARINI (hereinafter “Defendant MARINI”) was a police officer employed by Defendant CITY AND COUNTY OF HONOLULU, and acting within the course and scope of his employment. 4. This action arises under the United States Constitution, particularly under the provisions of Fourth and Fourteenth Amendments to the Constitution of the United States and under federal law, particularly the Civil Rights Act, Title 42 of the United States Code, § 1983 (42 U.S.C.A. § 1983) and the laws of the state of Hawaii for damages for unlawful violation of civil rights. 5. This court has jurisdiction of this cause under the concurrent jurisdiction of the State Courts to hear civil rights actions for civil rights violations and other torts against its citizens. 6. In doing the acts alleged in this complaint, Defendant MARINI was acting under the color of the statutes, ordinances, regulations, customs, and usages of Defendant City and County of Honolulu and the State of Hawaii and under the authority of his office as police officer. 7. DOE DEFENDANTS 1-10 are sued herein under fictitious names for the 2
  • 3. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 3 of 19 PageID #: 552 reasons that their true names and identities is presently unknown to Plaintiff, except that they are persons and/or entities who in some manner presently unknown to Plaintiff are responsible for the injuries and damages described below, and/or who conducted themselves in a negligent, reckless and/or wilful manner, said conduct being a substantial factor in causing the injuries or damages described below. Reference hereinafter to a named Defendant is also an allegation against all DOE DEFENDANTS. Plaintiff prays for leave to amend this complaint to allege the true names, identities and capacities, activities and/or responsibilities of the DOE DEFENDANTS when the same are as ascertained. Plaintiff has been unable to ascertain the entities names, identities, capacities, activities and/or responsibilities of these DOE DEFENDANTS through reasonable investigation. 8. At all times mentioned, Defendant CITY AND COUNTY OF HONOLULU employed police officer(s) who were employees, servants and/or agents of defendant’s police department, and were acting within the course and scope of that employment, and was the employer of Defendant MARINI at the time of the events complained of herein. Defendants are liable for the negligent/tortious actions of its agents, employees and servants, including those of Defendant MARINI, under the doctrine of respondeat superior/vicarious liability. 9. Plaintiff is informed and believes and therefore alleges that at all times mentioned each of the defendants, including all defendants sued under fictitious names, was the agent and employee of each of the remaining defendants, and in doing the things alleged, was acting within the course and scope of that agency and employment. 10. On March 29, 2009, an altercation occurred between Plaintiff and Defendant Marini involving the Plaintiff’s alleged unauthorized entry into the Defendant Marini’s motor vehicle. . 3
  • 4. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 4 of 19 PageID #: 553 11. The Plaintiff was unarmed at the time of said altercation. 12. Defendant Marini shot the Plaintiff multiple times with his service revolver, including one or more shots into the back of the Plaintiff. Defendant MARINI made no effort to assist or obtain any medical attention for the Plaintiff after shooting and incapacitating the Plaintiff with the first gun shot to the Plaintiff’s abdomen. Rather, Defendant MARINI continued to fire into the defenseless and helpless Plaintiff. 13. Plaintiff denies that he had committed a crime justifying the use of lethal force, but even if the Plaintiff had committed an offense, Defendant MARINI was not justified in using deadly force to prevent the Plaintiff’s escape and attempt to bring about the death of the wounded Plaintiff. Although unauthorized entry into a motor vehicle is a crime under the laws of the State of Hawaii, it is not such an inherently dangerous offense that there is a great risk of harm to the public if the perpetrator is not immediately apprehended. In addition, at the time that the Plaintiff was shot the Plaintiff was unarmed and posed no serious threat of death or serious physical injury to either Defendant MARINI or the public if the Plaintiff were not immediately apprehended. As a result, the use, and repeated use, of deadly force on the Plaintiff was unreasonable and totally without justification. 14. Defendant CITY AND COUNTY OF HONOLULU was responsible for the training of all police officers of Defendant CITY in the proper use of firearms and in the exercise of restrain in the use of weapons and employing force and in the performance of their duties as police officers. Defendant CITY trained Defendant MARINI in the use of firearms in accordance with the statutes, ordinances, regulations, customs, and usages of Defendant CITY and the State of Hawaii. 15. The conduct of defendants as described above deprived the Plaintiff of the Plaintiff's right to be secure in his person against unreasonable searches and 4
  • 5. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 5 of 19 PageID #: 554 seizure as guaranteed to the Plaintiff under the Fourth Amendment to the United States Constitution (Art. XIV, U.S. Constitution) (hereinafter “Fourth Amendment”), of Plaintiff's right not to be subjected to any cruel or unusual punishment as secured to the Plaintiff under the Eighth Amendment to the United States Constitution (Art. VIII, U.S. Constitution), and of Plaintiff's right not to be deprived of life, liberty, or property without due process of law and to be accorded the equal protection of the laws as guaranteed to Plaintiff under the Fourteenth Amendment to the United States Constitution (Art. XIV, U.S. Constitution) (hereinafter “Fourteenth Amendment”). 16. At all times material, Defendant MARINI had a duty under the Fourteenth Amendment to the Constitution of the United States to refrain from the use of excessive force in apprehending, arresting, or in taking Plaintiff into custody. 17. Notwithstanding that duty, Defendant MARINI is guilty of one or more of the following wrongful acts and/or omissions to act, in that he: (a) shot the Plaintiff multiple times including when the Plaintiff attempted to flee without adequate cause or provocation to use lethal force AND EVEN AFTER THE Plaintiff was incapacitated; (b) failed to use non-lethal force alternatives; (c) failed to call for back-up when the Plaintiff attempted to flee instead of continuing to shoot the already wounded Plaintiff who posed no risk to Defendant MARINI; (d) shot and continued to shoot the Plaintiff in the back one or more times after the Plaintiff had already been shot in the abdomen by Defendant MARINI and when the Plaintiff posed no threat of harm to Defendant MARINI or the public at large; (e) shot the Plaintiff while the Plaintiff was on the ground crawling 5
  • 6. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 6 of 19 PageID #: 555 away from Defendant and attempting to flee for his life after the Plaintiff had already been shot in the abdomen by Defendant MARINI and when the Plaintiff posed no threat of harm to Defendant MARINI or the public at large; (f) deliberately continued to fire into the Plaintiff after the Plaintiff was severely wounded and posed no threat of harm whatsoever; (g) After having shot the Plaintiff once in the abdomen and thereby incapacitating Plaintiff, rather than call for an ambulance or bring about medical aid or assistance to the Plaintiff who had life-threatening injuries, Defendant MARINI was deliberately indifferent to the Plaintiff’s condition and continued to shoot the Plaintiff in an apparent effort to kill the Plaintiff; (h) Failed to exercise restraint in the application of lethal force under circumstances which called for the exercise of restraint; (i) in other ways as shall be shown at the time of trial. COUNT II. CLAIM FOR DAMAGES UNDER 42 U.S.C.A. § 1983 FOR RECKLESS INDIFFERENCE TO PLAINTIFF’S SERIOUS MEDICAL NEEDS Plaintiff here realleges the allegations of Paragraphs 1 through 17 of Count I as if fully set forth. For the violation of plaintiff’s rights protected under the Fourteenth Amendment to the Constitution of the United States, the Plaintiff is entitled to general/compensatory damages, punitive damages in an amount sufficient to deter such wrongful conduct in the future, plus plaintiff’s attorney’s fees and costs as provided in 42 U.S.C.A. § 1988. Plaintiff demands trial by jury. COUNT III. MONETARY CLAIM AGAINST DEFENDANT CITY PURSUANT TO 42 U.S.C. § 1983 6
  • 7. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 7 of 19 PageID #: 556 18. Plaintiff here realleges the allegations of Paragraphs 1 through 17 of Count I as if fully set forth. 19. Defendant city is a State of Hawaii municipal corporation which operates, administers, maintains and controls the Honolulu Police Department as one of its executive branches. 20. Defendant city has established policies and procedures for its Police Department regarding the use of force, and regarding the provision of medical service to prisoners and detainees and those seized or arrested. 21. In establishing these procedures, defendant city had a duty under the Fourth Amendment (regarding excessive force and the use of force) and Fourteenth Amendments (applicable to the medical needs of detainees who have not yet been charged or incarcerated) to the Constitution of the United States to refrain from enforcing or continuing in effect policies, procedures and customs that created a substantial likelihood that prisoners or detainees or those persons arrested and/or seized would be subjected to the use of excessive force (as guaranteed and protected by the Fourth Amendment) by defendant city’s Police Department officers; or policies and procedures which created a substantial likelihood that the serious medical needs of prisoners or detainees or those arrested and/or seized would not be treated with reckless indifference by its agents, servants and employees employed by defendant city’s Police Department (as guaranteed and protected by the substantive due process clause of the Fourteenth Amendment to the United States Constitution) . 22. Notwithstanding its aforementioned duties, defendant city and county was guilty of one or more of the following wrongful acts or omissions to act in violation of plaintiff’s Constitutional rights, in that it: (a) Allowed policies and procedures to continue in force and effect 7
  • 8. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 8 of 19 PageID #: 557 which resulted in the use of outrageous and excessive force against plaintiff in violation of the Fourth Amendment to the United States Constitution; (b) had a well settled custom and practice which constituted the standard operating procedure of the City and County of failing to independently and adequately investigate complaints of excessive force against its police officers demonstrating Defendant City’s long-standing custom of authorizing and not reprimanding police officers involved in the use of excessive force in violation of the Fourth Amendment, including the instant case, which involved an obvious case of excessive force ignored by Defendant City where an unarmed individual, guilty of at most a minor and unarmed fracas with little or no harm to the Defendant officer and who posed no threat to the public at large, was shot multiple times in the back and while he was defenseless and crawling on the ground; Defendant City and County of Honolulu’s investigating agents and police officers were aware of the nature and extent of the Plaintiff’s injuries including multiple gun-shot wounds to the Plaintiff’s back and abdomen, as well as multiple gun-shot entrance wounds to the Plaintiff’s back but chose to take no action to reprimand or discharge the offending officer. (b)(1) Defendant City ignored or “whitewashed-over” eye-witness statements, medical reports and other evidence of Defendant Marini’s clearly excessive use of lethal force against the unarmed plaintiff, including evidence of: the Defendant Officer shooting the Plaintiff multiple times with his service revolver while the Plaintiff was defenseless, on the ground, and into the Plaintiff’s back; Defendant City’s unconstitutional policy or custom of tacitly authorizing and allowing excessive force prohibited by the Fourth Amendment is further apparent from Defendant City and County’s failure to adequately investigate the use of excessive force in the instant case, whitewashing over and covering up the excessive force in the instant case, accepting the tenuous and improbable statements of the 8
  • 9. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 9 of 19 PageID #: 558 Defendant Officer contradicted by eye-witness statements and medical evidence of the Plaintiff, and based on Defendant City’s having failed to take any steps to reprimand or discharge Defendant Marini in spite of overwhelming evidence of the use of excessive lethal force by him and in failing to in any way admit or acknowledge in the face of obvious evidence that Defendant Marini was in error in any way. Defendant City’s unconstitutional custom and policy of authorizing and permitting excessive force is further evident by Defendant City’s deliberate indifference to its need to retrain Officer Marini in the use of force following prior claims of the use of excessive force. (c) had a well settled custom and practice which constitutes the standard operating procedure of the City and County of failing to effectively discipline or retrain police officers who wrongfully utilized excessive force in violation of the Fourth Amendment; including the instant case where Defendant City and County ignored eye-witness statements, medical reports and other evidence of Officer Marini’s clearly excessive use of force against an unarmed citizen, including having shot the Plaintiff while he was defenseless, on the ground, and into the Plaintiff’s back; Defendant City’s longstanding unconstitutional policy or custom of not disciplining officers and not retaining them can be inferred based on Defendant City’s having failed to take any steps to reprimand or discharge Officer Marini in spite of overwhelming evidence of excessive force for repeatedly shooting an unarmed individual in the back and in having ignored and whitewashed over the obvious evidence of excessive force, and in failing to in any way admit that Officer Marini was in error; Defendant City and County was also deliberately indifferent to its need to retrain Officer Marini in the use of appropriate force and not to use lethal force without proper justification following prior claims of excessive force against him; 9
  • 10. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 10 of 19 559 PageID #: (c)(1) Defendant City and County’s failure to properly investigate and whitewash over the use of excessive force in this case supports the finding that excessive force employed by officers employed by the City and County of Honolulu was not only accepted but customary in violation of the Fourth Amendment; (c)(2) The extent and openness of the excessive use of lethal force in this case further demonstrates that managerial level employees of Defendant City and County of Honolulu should have known of the customary use of excessive force by employees and officers of the City and County of Honolulu. (d) failed to establish appropriate policies and procedures to address and correct the repeated use of excessive force by police officer in traffic stops; and (e) allowed the continuance in force and effect of policies and procedures which failed to protect detainees who had sustained injury from the reckless indifference of defendant city’s agents, servants and employees in its Police Department to their serious medical needs (in violation of the protections afforded by substantive due-process of the Fourteenth Amendment of the United States Constitution); Defendant City’s custom of authorizing and not reprimanding police officers who seize an individual and recklessly disregard their serious medical needs is demonstrated in the instant case, where an unarmed individual was shot multiple times in the back and while he was defenseless and crawling on the ground with no effort or attempt by the seizing officer to render any medical aid whatsoever, call for an ambulance or otherwise minimize the plight of the wounded plaintiff; Defendant City also ignored or “whitewashed-over” eye-witness statements, medical reports and other evidence of Defendant Marini’s reckless indifference to the medical needs of the wounded Plaintiff demonstrating its unconstitutional policy or custom of tacitly authorizing and allowing its officers to recklessly ignore the medical needs of injured detainees in violation of the 10
  • 11. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 11 of 19 560 PageID #: Fourteenth Amendment; Defendant City’s unconstitutional custom or policy is further apparent from Defendant City and County’s failure to adequately investigate the reckless disregard of the Plaintiff’s medical needs in this case and based on Defendant City’s having failed to take any steps to reprimand or discharge Defendant Marini in spite of overwhelming evidence of Defendant Marini’s failure to take any steps to attend to the serious medical needs of the detainee and the City’s failure to acknowledge that Defendant Marini was in error in any way. (f) was deliberately indifferent to the need and failed to provide constitutionally sufficient training to its officers to prevent the use of excessive force in violation of the Fourth Amendment and continued use of force against detainees and/or those who are seized and rendered helpless by the arresting officers actions, including, but not limited to, calling for back-up and obtaining medical aid to incapacitated and wounded persons/detainees in violation of the protections of the substantive due process under the Fourteenth Amendment as opposed to further application of force, including deadly force, against already wounded persons who pose no threat to the arresting officer or the public at large; (g) was deliberately indifferent to the need and failed to provide constitutionally sufficient training to its officers to exercise restraint and self control under circumstances such as set-forth herein in violation of the Fourth Amendment; (h) ratified Defendant Marini’s unconstitutional use of force in violation of the Fourth Amendment and failure to attend to the medical needs of the Plaintiff in violation of the Fourteenth Amendment, notwithstanding obvious and overwhelming evidence of excessive force known to the Defendant County, including: Officer Marini’s repeatedly having shot the Plaintiff while he was defenseless, on the ground, and into the Plaintiff’s back, and including medical 11
  • 12. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 12 of 19 561 PageID #: evidence and reports confirming the shooting of the Plaintiff multiple times in the back, and the lack of any demonstrable serious injury to the Defendant Officer or threat of harm to others or any other probable cause justifying the repeated use of lethal force in the instant case. In addition, an official with final policy-making authority, to wit: then acting Chief of Police Paul Putzulu, and/or other managerial level employees whose actions can fairly be said to represent the official policy of Defendant City and County, ratified and/or approved of the unconstitutional use of force in violation of the Fourth Amendment, and failure to attend to the serious medical needs of the wounded Plaintiff in violation of the Fourteenth Amendment as alleged herein and incorporated by reference. (i) Defendant City’s failure to discipline Officer Marini under its existing written use of force policies or adhere to its written use of force policy, which would have required the severe disciplining of the offending officer, supports and further demonstrates the routine failure of Defendant City to follow its own codified general policy and constitutes an actual custom of Defendant City and County to ignore its own codified policies and procedures regarding the use of lethal force against unarmed citizens and failing to attend to the medical needs of detainees, thereby effectively routinely authorizing and/or ratifying its officers’ use of excessive force and deliberate indifference to the medical needs of detainees, notwithstanding a written policy to the contrary; (j) Defendant City’s failure to adequately discipline or investigate instances of excessive force also demonstrates a deficiency in Defendant City’s training and retraining of its Officers involved in instances of excessive force. 23. As a direct and proximate result of one or more of defendants’ foregoing wrongful acts or omissions to act, the plaintiff sustained a violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United 12
  • 13. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 13 of 19 562 PageID #: States, severe and permanent injury to his person, pain, suffering, disability, loss of income, mental anguish, humiliation, and other diverse injuries. COUNT IV STATE LAW CLAIM FOR COMMON-LAW BATTERY 24. Plaintiff realleges as if fully set forth the allegations of Paragraphs 1 through 23 as if fully set forth. 25. At all times material, defendant MARINI was on duty as a defendant city police officer and was acting in the scope of their employment by defendant city as a police officer for the city. Defendant MARINI used his service revolver to shoot the Plaintiff multiple times and maintained a loaded shot-gun in the back of his police subsidized vehicle at the time of the shooting. 26. Defendants’ above-described acts constitute a battery under the common law of the state of Hawaii. 27. The described acts were done without adequate cause or provocation by plaintiff, and with a malicious intent to cause plaintiff permanent injury and death. They were also outrageous and a shock to the conscience. 28. As a direct and proximate result of defendants’ described acts, plaintiff suffered severe and permanent injury to his person, pain, suffering, disability, loss of income, mental anguish, humiliation and other diverse injuries. WHEREFORE, plaintiff demands judgment against the defendant police officer, and defendant city, and each of them, in such amounts as shall be shown at trial, and plaintiff’s costs of the suit. COUNT V STATE LAW CLAIM FOR GROSS NEGLIGENCE OR WILLFUL AND WANTON MISCONDUCT 28. Plaintiff realleges as if fully set forth the allegations of Paragraphs 1 13
  • 14. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 14 of 19 563 PageID #: through 27 as if fully set forth. 29. At all times material, defendant MARINI, individually and as an agent, servant, and employee of defendant city, had a duty to refrain from causing injury to plaintiff through gross negligence or willful and wanton misconduct and a duty to refrain from malicious actions particularly with respect to the use of force and most particularly with respect to the use of lethal or deadly force and to otherwise act with reasonable care and prudence to avoid unnecessarily harming the Plaintiff. 29.1 Defendant MARINI had a further duty to exercise restraint and not allow malice to motivate his actions concerning the application of force against members of the public including arrestees and/or detainees and other members of the public. 30. In breach of his duty to refrain from causing injury to Plaintiff through gross negligence or willful and wanton misconduct, or otherwise negligent or tortuous action, defendant MARINI, as agent, servant and employee of defendant city, was guilty of one or more of the following tortuous, grossly negligent and/or willful and wanton acts or omissions to act, in that defendants: (a) shot the Plaintiff multiple times, including when the Plaintiff attempted to flee, without adequate cause or provocation to use lethal force; (b) deliberately failed to use non-lethal force alternatives; (c) deliberately failed to call for back-up when the Plaintiff attempted to flee instead of continuing to shoot the Plaintiff; (d) shot and continued to shoot the Plaintiff in the back one or more times after the Plaintiff had already been shot in the abdomen by Defendant MARINI and when the Plaintiff posed no threat of harm to Defendant MARINI or the public at large; (e) shot the Plaintiff while the Plaintiff was on the ground attempting to crawl away from Defendant MARINI after the Plaintiff had already been 14
  • 15. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 15 of 19 564 PageID #: shot in the abdomen by Defendant MARINI and when the Plaintiff posed no threat of harm to Defendant MARINI or the public at large; (f) deliberately continued to fire into the Plaintiff after the Plaintiff was severely wounded and posed no threat of harm whatsoever; (g) After having shot the Plaintiff once in the abdomen and thereby incapacitating Plaintiff, rather than call for an ambulance or bring about medical aid or assistance to the Plaintiff who had life-threatening injuries, Defendant MARINI was deliberately indifferent to the Plaintiff’s condition and continued to shoot the Plaintiff in an apparent effort to kill the Plaintiff; (h) Failed to exercise restraint and/or self-control in the application of lethal force under circumstances, such as those set forth herein, which called for the exercise of restraint; (i) in other ways as shall be shown at the time of trial; 31. As a direct and proximate result of one or more of defendants’ wrongful acts or omissions to act, plaintiff sustained severe and permanent injury to plaintiff’s person, pain, suffering, disability, loss of income, mental anguish, humiliation and other diverse injuries. GENERAL AVERMENTS APPLICABLE TO ALL COUNTS 32. Plaintiff realleges as if fully set forth the allegations of Paragraphs 1 through 31 as if fully set forth. 33. Defendant MARINI was not justified in using deadly force to prevent the Plaintiff’s escape, nor to shoot the unarmed Plaintiff one or more times in the back as he tried to flee Defendant MARINI. At the time that officer MARINI shot the Plaintiff, the Plaintiff was unarmed and posed no significant threat of death or serious physical injury to either Defendant MARINI or the public at large if the Plaintiff were not immediately apprehended. 15
  • 16. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 16 of 19 565 PageID #: As a result, the use of deadly force on the Plaintiff was unreasonable and totally without justification and are a violation of the “fleeing felon” laws including Tennessee v. Garner, 471 U.S. 1 (1985). Defendant MARININ’s actions were willful and malicious. 34. Defendant CITY AND COUNTY OF HONOLULU was responsible for the training of all police officers of defendant city in the proper use of force and in the performance of their duties as police officers, including arrest of suspects and the proper use of service revolvers. Defendant CITY AND COUNTY OF HONOLULU was deliberately indifferent to its obligations to properly train/retrain Officer MARINI in the performance of his duties as a police officer and to protect the constitutional rights of the citizens of Honolulu, including the use of force on suspects and the public at large, said deliberate indifference constituting a substantial factor in bringing about the permanent injury of the Plaintiff. Defendant City and County of Honolulu had an inadequate training program with respect to the use of lethal force on its citizens which resulted in the deprivation of the constitutional rights of the Plaintiff and harm to the Plaintiff. 35. The conduct of Defendants as described above deprived the Plaintiff of the Plaintiff's right to be secure in his person against unreasonable searches and seizure as guaranteed to the Plaintiff under the Fourth Amendment to the United States Constitution (Art. XIV, U.S. Constitution), of Plaintiff's right not to be subjected to any cruel or unusual punishment as secured to the Plaintiff under the Eighth Amendment to the United States Constitution (Art. VIII, U.S. Constitution), and of Plaintiff's right not to be deprived of life, liberty, or property without due process of law and to be accorded the equal protection of the laws as guaranteed to Plaintiff under the Fourteenth Amendment to the United States Constitution (Art. XIV, U.S. Constitution), and to be free of assault and battery and unreasonable 16
  • 17. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 17 of 19 566 PageID #: use of force under the laws of the state of Hawaii. 36. As a direct and proximate result of the unlawful conduct of the Defendants as described above, plaintiff has been damaged as follows: multiple gun shot wounds, edical/surgical/rehabilitation expenses/bills, two bullets remain lodged in the Plaintiff’s body subjecting the Plaintiff to continuous pain and suffering, future damage, limitation of activities, loss of future employment opportunities/income, fear, extreme mental anguish and emotional distress. 37. As a further direct and proximate result of the unlawful conduct of the defendants as described above, the Plaintiff has suffered loss/diminished enjoyment of life and such other and further damages as shall be shown at the time of trial. WHEREFORE, Plaintiff requests judgment against defendants, and each of them for: 1. General and special damages, in an amount to be proved at trial; 2. Attorneys fees and costs of suit; 3. Punitive damages; 4. Such other and further relief as the court may deem just and proper; and 5. for compensatory damages, plus attorney’s fees and costs as provided in 42 U.S.C.A. § 1988. DATED: Honolulu, Hawaii July 16, 2012. /s/Paul V.K. Smith PAUL V.K. SMITH Schutter Dias & Smith Attorneys for Plaintiff 17
  • 18. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 18 of 19 567 PageID #: IN THE UNITED STATES DISTRICT COURT DISTRICT OF HAWAII KIHA SILVA ) Plaintiff, ) ) vs. ) ) ) THE CITY AND COUNTY OF ) HONOLULU, KEITH DAVID MARINI) and DOE DEFENDANTS 1-10, ) ) Defendants. ) ) Defendants. ) ) CIVIL NO. CV 11-00561 LEK RLP [Other Civil Action] CERTIFICATE OF SERVICE [First Amended Complaint] 18
  • 19. Case 1:11-cv-00561-DKW-RLP Document 78 Filed 07/16/12 Page 19 of 19 568 PageID #: CERTIFICATE OF SERVICE I CERTIFY that on July 16, 2012 PLAINTIFF’S First Amended Complaint was served on the below named Defendants as follows: Defendant(s) Fa x U.S. Hand eServ Mai Delivere e l d X Carrie K.S. Okinaga, Esq. Corporation Counsel D.Scott Dodd, Esq. Deputy Corporation Counsel City and County of Honolulu 530 S. King Street, Rm #110 Honolulu, Hawaii 96813 Served Electronically Through CM/ECF: dsdodd@honolulu.gov, jhara@honolulu.gov, nchang@honolulu.gov, ndata@honolulu.gov, smoka@honolulu.gov Attorneys for Defendant City and County of Honolulu, DATED: Honolulu, Hawaii, on July 16, 2012. /s/Paul V.K. Smith PAUL V.K. SMITH Attorney for Plaintiff