The City of Denison and Denison Police Officer Rogelio Valdez filed an answer on Monday to an excessive force lawsuit brought by a person who was arrested on September 18, 2018, on charges of eluding a police officer and interference with official acts.
The suit was entered in federal district court on April 25 by David Edward Nielsen, Jr., 47, of Denison.
Nielsen cites the violation of the Fourth Amendment of the U.S. Constitution and Article 1, Section 8 of the Iowa Constitution in his lawsuit.
The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures by the government, and Article 1, Section 8 of the state constitution addresses searches and seizures.
The city and Valdez denied all counts of Nielsen’s lawsuit.
The four counts claimed by Nielsen are the use of excessive force and arrest without cause, filed against both the city and Valdez; and common law negligence and common law battery, filed against Valdez alone.
The city and Valdez asked Nielsen’s suit to be dismissed and that all costs be taxed to Nielsen.
The city and Valdez also offered the following affirmative defenses.
w Nielsen’s complaint fails to state a claim for relief against the city and Valdez
w Valdez is entitled to qualified immunity on Nielsen’s federal constitutional claims
w The city and Valdez exercised all due care to conform to existing law and are immune from Nielsen’s state constitutional claims
w Nielsen was negligent, and his negligence was a proximate cause of the incident and alleged injuries and damages
w Nielsen has failed to mitigate his damages
w The actions of Valdez were based upon the existence of probable cause
w The city and Valdez will rely on the doctrine of judicial estoppel
A closed meeting was conducted by the city council on Tuesday. Doug Phillips, an attorney from Sioux City, met with the council, mayor and police officer. Phillips was hired to by the city’s insurance carrier, EMC Insurance.
The charges on which Nielsen was arrested have been handled in state district court.
On May 7, Nielsen voluntarily pled guilty to the charge of interference with official acts, a simple misdemeanor.
On the serious misdemeanor charge of eluding, on April 15 an order was filed in district court for a plea taking and sentencing for May 20, and on the same day a waiver of rights and plea of guilty was filed in court. However, on May 6, the charge of eluding against Nielsen was dismissed by the court and the costs and attorney fees were taxed to Nielsen.
The suit says that on September 18 last year, Valdez started to follow Nielsen after receiving a communication that Nielsen may have been suicidal.
The suit claims that Nielsen did not see and/or comprehend that Valdez was following him and wanted Nielsen to stop. Valdez had his emergency lights on and later turn on his siren; the suit claims the siren sounded only for a few seconds.
Nielsen alleges that when he pulled into his assigned parking spot at Oakwood Manor Apartments, without giving any verbal command, Valdez opened his car door, pulled him out of the car with force, threw him to the ground and then put his foot on his head. Nielsen claims he was always compliant and did not resist in any way and that Valdez had no reason to follow or stop him other than the report that he may have been suicidal.