STINSON MORRISON HECKER

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1 STINSON MORRISON HECKER - - LLP - Michael C. Manning DIRECT DIRECT FAX June 8, 2012 CITY OFPHOENIX CITY OFPHOENIX POLICE OFFICERS: c/o Phoenix City Clerk PATRICK HANLON AND NICHOLAS FRENCH 200 W. Washington St., 15 th Fl. Phoenix Police Department, Central Booking Phoenix, AZ S. Central Ave. Phoenix, AZ Re: NOTICE OF CLAIM - Death of Ernest M. Atencio On December 16, 20 11, Ernest Marty Atencio ("Marty"), a vulnerable Army Veteran, was brought by the Phoenix Police Department to Maricopa County's Fourth Avenue Jail. There, he was mocked, beaten, electrocuted, stripped naked, and killed. This letter constitutes a Notice of Claim by: The Estate of Ernest M. Atencio; Marty's parents Ernest Joseph ("Joe") and Rosemary Atencio; and Marty's three sons, Josh, Joseph, and Marty Atencio. Their claims arise from the fatal injuries indicted upon Marty as a result of ajailers' riot started by Phoenix Police Officers Patrick Hanlon and Nicholas French. The facts presented in this Notice of Claim are derived primarily from interviews taken by members of the Maricopa County Sheriffs Office General Investigations Division. Despite a Public Records Request issued pursuant to A.R.S et seq., Maricopa County has not released all of the records in its possession related to Marty's contact with City of Phoenix ("City") and Maricopa County ("County") employees. I Additionally, the City has refused, thus far, to release documents or findings, in connection with its Professional Standards Bureau's investigation of the City's officers' contact with Marty. If additional records are received, they may provide greater detail about the claims made herein and reveal the existence of additional City employees, who are cunently unidentified, that may have been involved in the acts which are the subject of this claim. Upon the discovery of such information, this Notice of Claim may be amended to redect the existence of such additional claims. t The Atencio family have already had to file one Special Action, in Superior Court, related to the County's failure to comply with Arizona public records Jaw in connection with this claim. The County settled that matter by turning over the requested records and paying the plaintiffs attorneys' fees. stinson.com 1650 N. Central Avenue, Suite 2100 Phoenix, AZ MA'N Kansas City I SI. Louis I Jefferson City I Overland Park I Wichita I Omaha I Washington D.C. I Phoenix FAX

2 Page 2 Phoenix Police Recognized Marty Was Vulnerable Marty was a proud Veteran. His family has a long history of service in the United States military. Marty s son, Joshua, is currently serving in the National Guard. Marty s Father, Joe, his Uncles Samuel and Earl, and his Great Uncle Steve, all served in the Army during the Vietnam War. Marty s Great Uncle Ismael died serving his country in the Korean war. Marty s Grandfather Joe, and Great Uncles Ben and Albert, served in the Army during World War II. Albert was killed in action in World War II. Unfortunately, after his discharge from service, Marty was diagnosed with schizoaffective disorder. 2 Marty was generally able to control his outward symptoms with medication. However, on December 16, 2011, when Phoenix Police Officers encountered Marty, they recognized Marty s mental illness. Even so, they arrested him because he walked very aggressively toward [a woman] and stopped only an inch away from her face and began yelling at her. 3 According to the woman: Marty did not physically threaten me at any time. He did not make comments that made me think he would harm me..... I didn t want Marty to be arrested; he had not touched me, he wasn t verbally belligerent. I knew there was something wrong with him and I just wanted him to go to the psych ward, at 24th and Van Buren, to get some help, not necessarily go to jail because he had not done anything.... [The officer] was saying, We can t take him downtown for this because he didn t do that I understood the officer was looking for a reason to arrest Marty. All I wanted was take him downtown and get him some help. The officer said he was going to arrest Marty for verbal assault due to the fact Marty scared me. He asked if I was scared at any time. I said yes, when Marty s face was close to mine. My first thought was to push him away. However, I knew if I didn t instigate a physical altercation, I would be okay. 4 In interviews with the Phoenix Officers who encountered Marty before he was brought to the jail, they explained: He, he was just kind of a jovial goofball.... We weren t sure if he was like, I say 918, crazy or mentally disturbed.... He didn t, he wasn t violent or anything like that, if that s kind of what you re getting at... I never felt threatened. Not once.... Just a goofy guy. 5 2 Report of Autopsy, May 30, 2011, p Phoenix Police Department Report, , p Affidavit of Cathy Boyd, May 2, 2012, at 7, Interview of Jeremiah Fiola, December, 2011, p. 2-3.

3 Page 3 [H]e was more off his rocker. He was a little crazy not all there... he wasn t being aggressive with people, he was, he was just more so being a pain in the butt. 6 [H]e didn t look to be under the influence of anything. He just looked to not be all there.... He wasn t making sense with what he was saying, but he didn t seem consistent with being on any kind of drug or alcohol. 7 He seemed to be a mentally impaired subject, to the point where he was talking about seeing lights out of different places and he talked to you normal and he would listen to you but then he d go off on a random tangent [about a] penny and this girl he knows and it s his wife and then she has light in her eyes and my thumb is attached to my cell phone and that s just some of the weird things that he would say. 8 He was dressed nice, he had a leather jacket, a polo, slacks, normal dress shoes. Uh, had all his clothing on. He wasn t doing any weird twitching or anything like that, that s consistent with some [ ] meth users or anything like that like he was experiencing any problems, so we asked if he had a place to go, he said, yeah, he lived down the street. 9 It was, it was fairly obvious within minutes of the first contact at 7-11 that he was not, he wasn t on something trying to hurt me or, you know, any of my partners, he was just a little off... he would get very close um, but we didn t, none of the three of us that were there each time perceived a threat and just took the step back, just kind of, if you put your hand on him, or said ok Marty, you know, step back then he would, as long as...yeah, I just had to talk him down for most of it and he was fine. As long as I kept talking, he didn t have any issue. 10 According to the City of Phoenix Police Department Report, which documents the City s Officers first contact with Marty: During that first contact with Atencio, erratic behavior was noted. However, it appeared to be mental in nature and not due to drugs due to the fact that he was not exhibiting any symptoms of drug use. His eyes appeared normal, he was not sweating profusely, he was not twitching, his speech was normal, his complexion appeared normal, he was able to talk without any trouble. He was alert and would respond to questions. However, [he] would get easily distracted and speak of random and odd things. He showed no signs of being a danger to himself or others, he 6 Interview of Josh James, December 16, 2011, p Id. at p Interview of Sarah Roberts, December, 2011, p Id. 10 Id. at p. 9.

4 Page 4 simply appeared to be not medicated and engaged in very random conversation. He was not violent at all toward any officer o[r] civilian present.... When told he was being placed under arrest Atencio did not resist, he just asked that someone hold his phone that was still in his hand. Atencio was transported to the Cactus Park Precinct without incident. A wagon then transported Atencio to Central Booking. 11 Importantly, when Marty arrived at the City s Southern Command Station, also known as Central Booking, he was searched by Phoenix Police Officers. The Officer who initially searched Marty told investigators: I searched him, everything was fine. He listened to my commands after two or three times giving him verbal commands keep his hands on the wall, you know, do this, turn around so I can, you know, see so I can search him and everything. And, uh, for the most part he listened but sometimes I had to repeat myself multiple times. 12 Another Officer, who assisted with searching Marty at Central Booking, told investigators: There was two other officers in the booking area with us that just stood by the search and had a, an officer [in] training assist with us because he s a reserve. Just to, get more experience around people that are not as easily rational, just to see how we did with the search and he did fine. He took off his shoes, got his shoe laces, his jacket, he d like to protest but it wasn t, it wasn t any violent protest or anything like that, it was just, I mean, crazy, he wanted his stuff back. 13 Once Marty was searched at Central Booking, he was transported to MCSO s Fourth Avenue Jail, where Officer Hanlon was processing detainees brought in by other Phoenix Officers. Officer Hanlon s first contact with Marty was in an area where detainees are kept while they wait to go through the medical screening process. At that time, Officer Hanlon knew of Marty s mental illness. He stated, Marty was babbling some incoherent stuff... about peanut butter [ ] like it was a person... I cuffed him to a bench to wait his turn for medical, you know when we call their names to see the medical nurse. 14 Officers Hanlon And French Started A Violent And Deadly Jailers Riot After Marty was photographed, Officer Hanlon, accompanied by Officer French, brought him into a room identified by MCSO video recordings as the Linescan Room. 11 Phoenix Police Department Report, , p Interview of Bradd Walston, December 15, 2011, p Interview of Sarah Roberts, December, 2011, p Interview of Patrick Hanlon, December 16, 2011, p. 1.

5 Page 5 The manner in which Officer Hanlon handled Marty constituted an force. It was described by one witness as follows: excessive use of The guards were escorting Marty by leading him with his hands and arms bent in what looked to be a very painful position. Marty said, you re making Tony angry, you re making Tony angry. Marty was telling the guards that they were hurting him. At this point Marty looked right at me, like he was asking for help, but there was nothing I could do. 15 Video from the jail s surveillance system confirms the disturbing description of the manner in which Officer Hanlon painfully marched Marty into the Linescan Room: While in the Linescan Room, Officers Hanlon and French took Marty s fingerprints. They then backed Marty into a corner and removed his handcuffs. Though the Officers were needlessly inflicting pain on Marty, he was never aggressive, abusive, or resistive. So, Officers French and Hanlon felt safe and comfortable enough to remove Marty s handcuffs. County employees, and other Phoenix Police Officers, consistently told investigators that, despite not making sense, Marty was not threatening or combative while in the jail. They stated: He got loud, but he wasn t being combative. 16 [H]e was being funny...nothing serious, nothing that I would call uncooperative Affidavit of Mathew S. Layman, January 24, Interview of Anthony Hatton, December 16, 2011, p Id.

6 Page 6 [Marty was] making noise, whatever, talking crazy stuff, like, not even like I m going to kill you, like normal people that are angry are like screaming, I m going to kill you, he was like talking to just crazy stuff. 18 [Marty] wasn t saying anything like, I want to kill you, like I ve heard other people say. He was not being like that. 19 Nothing like, f-u (laughs), no, nothing you could even be like, oh this guy is angry. 20 He s a happy guy. 21 Nevertheless, Marty was surrounded by no less than nine law enforcement officers, including Officers Hanlon and French, as pictured below: When asked to take off his shoes, which were to be put through a scanner with his clothes, Marty removed his right shoe pursuant to the Officers instructions. When asked to remove his left shoe, Marty, according to the Officers, refused to do so. What happened next was the shocking commencement of the jailers riot that would kill Marty Atencio. According to one Sergeant from the MCSO, as well as others, the best way to describe what happened next was a group of law enforcement officers formed a dog pile, on top of Marty. 22 That jailers riot was needlessly started by Officers Hanlon and French, who were the first law enforcement officers to engage in a physical struggle with Marty, as seen below: 18 Interview of Dawn Kocur, December 16, 2011, p Id. 20 Id. 21 Id. 22 Interview of Anthony Scheffner, December 16, 2011, p. 13.

7 Page 7 Pictures from the jail s cameras show a mass of individuals, including Officers Hanlon and French, attacking Marty: Officers Hanlon and French helped hold Marty down, allowing MCSO Sergeant Weiers to continuously electrocute Marty with his Taser. One of the witnesses to this

8 Page 8 brutality stated that Marty was screaming in pain, in a deep voice. 23 A woman, who told the witness that she works in a medical office, said, if they tase him anymore, they are going to kill him. 24 And, indeed, they did. MCSO DOs carried Marty out of the Linescan Room and into their Safe Cell 4. While Marty s life was slipping away in their Safe Cell, Officer Hanlon, with employees of the County, took a moment to laugh and joke about the events that had just transpired. Indeed, the jail s surveillance video, outside of Safe Cell 4, shows Officers Hanlon and Hatton, with smiles on their faces, talking to other Officers, while two women dance and bump their butts together: Nine minutes after Marty was left alone in their Safe Cell, County employees found him without a pulse and without a breath. Although paramedics were able to restart Marty s heart 35 minutes later, there is no question, Marty is yet another victim who died in the MCSO s jail. Although Marty s heart was re-started, he never regained consciousness but was kept alive for four days. When the doctors confirmed that Marty had no brain activity, he was removed from artificial life support. This claim is against Officers Hanlon and French, who are responsible for the excessive use of force that caused Marty s death. The City of Phoenix is also the subject of this claim, and is vicariously liable for the actions of its employees, as well as directly responsible for its failure to properly screen, hire, train, and supervise its employees, and its failure to implement proper policies, procedures, and training in the areas of use of force and treatment of those who suffer from mental illness. This failure is clearly demonstrated by the actions and inactions, of Officers Hanlon and French. Marty s parents, Joe and Rosemary, as well as his three sons, Josh, Joseph, and Marty, are entitled to monetary damages for past, present, and future loss of the love, affection, and companionship of their son and Father. Each of these claimants loved, 23 Affidavit of Mathew S. Layman, January 24, Id.

9 Page 9 and was loved, by Marty, and each have experienced a loss which is immeasurable. Marty's Estate is entitled to damages in the fonn ofpre-death pain and suffering, loss of life, expected earnings, and economic damages. If this case proceeds to litigation, these claimants will be entitled to recover punitive damages from Officers French and Hanlon, as well as their attorneys' fees. A.R.S requires the claimants to include in their Notice of Claim a specific dollar amount for which their claims can be settled. That amount is $5,000,000. Sincerely, STINSON MORRISON HECKER LLP A.~.-_ ~ Michael C. Manning MCM:kk

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