Ortiz complaint

Editor’s note: The following is a lawsuit filed in Brown County Circuit Court by Cesar Grijalva-Ortiz and family against the city of Green Bay, four of its officers and insurers, over Grijalva-Ortiz’s injury by police shooting in 2007. The information contained below is the civil complaint filed by Grijalva-Ortiz, with insertion in blue of the formal response by the city and police.

STATE OF WISCONSIN CIRCUIT COURT BROWN COUNTY BRANCH ____

CESAR GRIJALVA-ORTIZ, JUDITH GRIJALVA, KJG (a minor child), CEG (a minor child), MMG (a minor child), and AJG (a minor child), by their Guardian Ad Litem, George Burnett Plaintiffs, Case No. 10-CV-_______

v. Classification Code: _____

THE CITY OF GREEN BAY, 100 N. Jefferson Street Green Bay, WI 54301, OFFICER MATTHEW CAIN, OFFICER SCOTT SALZMANN, OFFICER ERIC ALLEN, and OFFICER GARY RICHGELS, 307 S. Adams Street Green Bay, WI 54301, CITY AND VILLAGES MUNICIPAL INSURANCE COMPANY 1250 S Sunny Slope Road Brookfield, WI 53005, and BROWN COUNTY HUMAN SERVICES 100 South Jefferson Street Green Bay, Wisconsin 54305, Defendants.

COMPLAINT

NOW COME the Plaintiffs, Cesar Grijalva-Ortiz and Judith Grijalva, and KJG (a minor

child), CEG (a minor child), MMG (a minor child) and AJG (a minor child) by and through their

attorneys, Liebmann, Conway, Olejniczak & Jerry, S.C., and as for their complaint against the

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Defendants, The City of Green Bay, Matthew Cain, Scott Salzmann, Eric Allen, Gary Richgels,

City and Villages Municipal Insurance Company, and Brown County Human Services, alleges

and shows to the Court as follows:

1. Plaintiff, Cesar Grijalva-Ortiz (hereinafter “Ortiz”), is an adult resident in the

State of Wisconsin. At all times material hereto, Ortiz was the husband to Judith Grijalva.

1. Lack of knowledge and information sufficient to form a belief as to the truth

of falsity of Paragraph 1, and therefore deny the same.

2. Plaintiff, Judith Grijalva (hereinafter “Grijalva”), is an adult resident of the State

of Wisconsin. At all times material hereto, Grijalva was the wife to Ortiz.



3. That Plaintiffs, KJG (a minor child), CEG (a minor child), MMG (a minor child)

and AJG (a minor child), are the children of Ortiz.



4. The Defendant, the City of Green Bay is a municipal corporation with its

principal place of business located at 307 South Adams Street, Green Bay, Wisconsin 54301,

which is charged with furnishing a safe and responsible police department for protecting and

safeguarding residents of the city.

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5. Defendant, Matthew Cain (hereinafter “Cain”), at all times relevant to this

complaint, was duly appointed and acting as a police officer and an employee and agent of

Defendant, City of Green Bay / Green Bay Police Department (“GBPD”). Cain, is being sued in

this matter in his official and individual capacity.

5. Admit.

6. Defendant, Scott Salzmann (hereinafter “Salzmann”), at all times relevant to this

complaint, was duly appointed and acting as a Police Officer and an employee and agent of

Defendant, City of Green Bay / GBPD. Salzmann, is being sued in this matter in his official and

individual capacity.

6. Admit.

7. Defendant, Eric Allen (hereinafter “Allen”), at all times relevant to this complaint,

was duly appointed and acting as a Police Officer and an employee and agent of Defendant, City

of Green Bay / GBPD. Allen, is being sued in this matter in his official and individual capacity.

7. Admit.

8. Defendant, Gary Richgels (hereinafter “Richgels”), at all times relevant to this

complaint, was duly appointed and acting as a Police Officer and an employee and agent of

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Defendant, City of Green Bay / GBPD. Richgels, is being sued in this matter in his official and

individual capacity.

8. Admit.

9. That the Defendant, City and Villages Municipal Insurance Company (hereinafter

“Municipal Insurance”), is a domestic insurance corporation authorized to do business in the

State of Wisconsin with a principal place of business located at 1250 S Sunny Slope Road,

Brookfield, WI 53005.

9. Admit.

10. That upon information and belief, at all times material hereto, Municipal

Insurance carried a liability policy of insurance for the City of Green Bay and the GBPD, which

policy agrees to indemnify the City and victims of mistake and errors made by its police

department.



11. Municipal Insurance is a proper party defendant pursuant to the provisions of

§803.04(2), Wis. Stats., and by the laws of the State of Wisconsin is directly liable to the

Plaintiffs by the reason of the negligence of its insured, as alleged in this complaint



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12. On April 21, 2007 at approximately 2:00 AM, the GBPD was called for a

disturbance at a bar known as Fat Daddy’s Tavern in the 1600 block of Main Street, Green Bay,

Wisconsin.

12. Admit.

13. Shortly after the initial call, officers were alerted that a suspect was threatening

individuals with a baseball bat.

13. Admit.

14. Green Bay Police Officers were responding to the call when the suspects left Fat

Daddy’s Tavern and headed west on Main Street in a red Olds Aurora, vehicle license number

932LSX.

14. Admit.

15. According to the Green Bay Police Department Reports (hereinafter “GBPD

Reports”), a pursuit of this vehicle by the Green Bay Police Officers began heading west on

Main Street, Green Bay, Wisconsin.

15. Admit.

16. Cain was driving a Green Bay squad car and Richgels was a passenger in Cain’s

vehicle during the pursuit.

16. Admit.

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17. The red Olds Aurora (vehicle license number 932LSX) turned left on Jackson

Street and then turned west onto Bodart Street and stopped in an alley and parked over the

sidewalk near Club 720 on Bodart Street.

17. Admit.

18. Club 720 is a nightclub with six (6) large panel windows facing the sidewalk on

Bodart Street.



19. Allen pulled his vehicle behind the red Olds Aurora (vehicle license number

932LSX), opened his door, and from behind his door began shouting commands.

19. Admit.

20. Cain then parked his vehicle behind Allen’s vehicle.

20. Admit.

21. Cain had exited his vehicle and used his flashlight laser unit on his weapon to aim

a laser on Ben Sonnenberg’s head. Sonnenberg was the driver of the stopped vehicle and was

located inside the car.

21. Admit.

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22. Salzmann had arrived on the scene and moved behind a utility pole which he used

for cover on the passenger side of the suspect’s vehicle.

22. Admit.

23. Allen continued shouting commands to the persons in the vehicle to get their

hands up and to let him see their hands.

23. Admit.

24. The passengers in the vehicle were cooperating insofar as putting their arms up

and out the window.



25. As the vehicles were stopped at the front of the 720 Club with the official red and

blue squad car lights flashing, many patrons of the 720 Club went to the large front windows in

order to see what was going on outside.

25. Lack of knowledge and information sufficient to form a belief as to the truth of

falsity of Paragraph 25, and therefore deny the same.

26. According to GBPD Reports, the area was well lit by street lights, the flashing red

lights from the officer’s vehicles, headlights from the vehicles, and the lights from inside the 720

Club.

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27. The nightclub had beer signs, an “open” sign and additional lighting in the front

windows.



28. Patrons were standing, dancing and socializing near the windows at and shortly

before the time of the shooting. The nightclub had a capacity of 240 patrons in the building and

all knew or should have known that weekend nights were a busy time for the business.



29. Approximately 75 patrons were present at the nightclub at this time. In fact,

many of those patrons were gathering by the front glass panel windows out of curiosity about the

police cars with their lights flashing in front of the nightclub.



30. Each officer realized they were in front of the 720 Club and knew the club was

often patronized by Hispanics so Allen began shouting commands in Spanish.

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of falsity of Paragraph 30, and therefore deny the same, but admit that Officer Allen

shouted in Spanish.

31. According to GBPD Reports, the driver of the suspect vehicle, Ben Sonnenberg,

now exited the vehicle and turned and faced Allen and said provocative words. At the same

time, officers reported hearing a gunshot coming from Sonnenberg. In fact, Sonnenberg was

unarmed.

31. Admit, but allege that Sonnenberg deliberately acted to make the officers

believe he was armed, and intended to shoot one or more of them.

32. The Green Bay Police Officers at the scene then began firing their guns, shooting

into the glass panels at the 720 Club, without care or concern for the crowd of patrons inside the

720 Club.

32. Deny.

33. Allen was within 20 feet of the suspect vehicle and within 30 feet of the front

windows of the nightclub when Sonnenberg exited his vehicle and when Allen commenced

shooting.



34. Allen was stationed behind the door of his squad car at the time of the shooting.

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34. Admit.

35. Allen had a non-deadly taser weapon on him at the time of the incident, but did

not use it.

35. Admit that Officer Allen had a TASER and did not deploy it.

36. Cain was 20–30 feet from Sonnenberg when he began firing at Sonnenberg.



37. Richgels was approximately 15 feet away from Sonnenberg when he started firing

toward Sonnenberg.



38. Salzmann was approximately 2-3 feet from the Sonnenberg vehicle on the

passenger side at the time he began firing shots toward Sonnenberg.



39. Sonnenberg was running away from police and ran in front of the 720 Club as

officers continued shooting at him.

39. Deny.

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40. All officers aimed their guns toward the nightclub and its windows, only a short

distance away, and fired without knowing whether the shots endangered innocent patrons and

employees.

40. Deny, the officers were aiming at the person later determined to be

Sonnenberg.

41. Green Bay Police Officers shot 33 times in total, with Allen firing 11 rounds,

Cain firing 9 rounds, Salzmann firing 6 rounds and Richgels firing 7 rounds.

41. Admit.

42. According to a forensic pathology report, Ben Sonnenberg received just 11

gunshot wounds to his body, from his head to his legs, 8 of which were entrance wounds at the

back of his body.



43. According to GBPD Reports, of the 33 shots fired, 22 shots were sprayed into the

surrounding area and many into the 720 Club’s large windows at the front of the nightclub.



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44. According to witness statements and physical evidence which GBPD obtained

from the scene, bullets projected through the windows and inside of the 720 Club bar.



45. According to witness statements, patrons throughout the nightclub and on the

dance floor heard gun shots and people yelled to “get down.”

45. Admit.

46. According to witness statements and video surveillance, patrons were laying on

the floor of the nightclub to hide and shield themselves from police gun fire.



47. According to witness statements and video surveillance, the scene was chaotic

and patrons were screaming and attempting to escape bullets coming through the large panel

windows.



48. According to witness statements, once the bullets penetrated the large panel

windows, glass began breaking and hitting patrons who were seeking safety on the ground.

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49. Ortiz was a patron at the 720 Club at the time of this incident.

49. Deny, Ortiz stated he was working at the 720 Club.

50. Ortiz was hit by one of the police bullets in his chest. The bullet entered his

bicep, traveled through his armpit and lodged in his chest near his heart.

50. Admit.

51. Ortiz was taken via ambulance to the St. Vincent Emergency Department where

he was admitted to the ICU. He remained in the hospital for six (6) days and underwent surgery

but surgeons could not remove the bullet.

51. Admit.

52. Ortiz had fifty-two (52) staples in his abdomen and back from the surgery.



53. As a result of the injury, Ortiz was on bed rest for approximately (6) six months

and has scarring across his chest and back, including a thirteen (13) inch scar.



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54. To date, the bullet remains in Ortiz’s chest. Physicians were unable to remove

the bullet and it is likely permanently placed in his body.



55. Ortiz has ongoing pain from the injuries he sustained in the shooting.



56. Grijalva, as wife of Ortiz, had to care for her husband while he was healing and

had full the responsibility for the couple’s children.



57. The City of Green Bay and the GBPD and its officers, who were at all times

acting within the authority of their office and as agents of the City of Green Bay, were negligent,

in and among other things, a) in the training provided to its officers in handling provocative

situations, such as the one presented in this matter; 2) in that officers were not provided proper

handgun training resulting in substandard marksmanship (a 33.33% accuracy rate here); 3) were

not trained in properly identifying developing suicidal situations; 4) were not properly trained as

to when to use deadly force and in isolating a target before shooting into a crowd of people as

required by the Green Bay Police Manual and the Defense and Arrest Tactics Manual (DAAT)

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provided by the Wisconsin Department of Justice; and 5) were not properly trained in

alternatives to using deadly force.

57. Deny.

58. The Defendants, the City of Green Bay and its officers, Cain, Allen, Richgels, and

Salzmann, were negligent and reckless with respect to the actions taken on April 21, 2007 at 720

Bodart Street, Green Bay, Wisconsin, including, but not limited to: 1) failing to keep control of

their firearms and fire in a low and safe direction so as to not fire shots into the windows and

crowd at the 720 Club; 2) firing their firearms into the 720 Club without taking into

consideration their surroundings and the crowded bar of people directly behind the suspect; and

3) failing to assess the situation and look at options other than using deadly force.

58. Deny.

59. At no point before he exited the vehicle did the officers have any information that

Sonnenberg had a firearm and, in fact, during an earlier altercation at the bar no one reported that

he had a gun.

59. Admit.

60. Sonnenberg did not have a firearm and never fired a shot at officers at the time he

was shot and killed.

60. Admit.

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61. That as a result of the negligence of Ortiz sustained multiple injuries, suffered

great pain of body and mind, incurred medical and hospital expenses and those injuries may be

permanent in nature, thereby causing the Ortiz to suffer pain in the future, and incur future

medical and hospital expenses.

61. Deny.

62. Ortiz has incurred medical expenses as a result of this incident in excess of

$95,000.



63. Grijalva, as wife of Ortiz, is also responsible for the medical expenses of Ortiz.



64. Ortiz was an innocent bystander who did nothing to provoke injury when shot by

the GBPD.



65. A Notice of Circumstances of Claim was served upon the Defendants on August

15 and 16, 2007 pursuant to Wis. Stat. §893.80(1)(a).

65. Admit.

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66. A Claim for Damages was served upon the Defendants on July 15, 2008 pursuant

to Wis. Stat. §893.80(1)(b), and no action was ever taken on the Claim for Damages.

66. Admit.

67. That since Ortiz made a claim with the City of Green Bay for his medical

expenses and pain and suffering, the GBPD has been looking for Ortiz and have been sitting

outside the house of his wife and children.

67. Deny.

68. That since Ortiz made a claim with the City of Green Bay, in retaliation, the

GBPD have contacted and worked in conjunction with the United States Department of

Homeland Security, Immigration and Customs Enforcement (ICE) in an effort to get Ortiz

deported from the United States.

68. Deny.

69. Specific acts of the GBPD and its officers, who were acting at all times within the

authority of their office and as agents of the City of Green Bay, include, but are not limited to:

a) On Thursday, February 12, 2009, multiple officers of the GBPD went to

the home of Cesar Grijalva-Ortiz’s brother looking for Ortiz. They searched the entire

house with flashlights. They did not have a search warrant. Ortiz’s brother was home

and was holding his young child when they arrived. A short time after they left Ortiz’s

brother’s home, they went to the home of Grijalva. Grijalva went to her daughter’s

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bedroom and looked out the window and saw a police car and officers and then also saw

two more police cars on Eighth Street. After about a minute, her whole house was

surrounded. They came to the door and a Spanish speaking officer asked Grijalva who

she was. She told him she was Cesar’s wife. The officer responded in Spanish to

Grijalva with words to the effect of – “you are the wife?” Grijalva asked if there was any

problem with her being Oritz’s wife. An immigration officer then signaled to the officer

to not respond and the facial expressions of the officer changed. Grijalva asked them if

they had papers to come into her house and they did not respond to her. They asked

where Ortiz was and Grijalva told them that she and Ortiz were not presently living

together. They then left at about 7:00 p.m.

b) On Tuesday February 17, 2009 at about 5 p.m., KJG told Grijalva there

was a police car outside. Grijalva finished making dinner for her children. When she

was done making dinner, she put a movie on for the kids and turned the lights off in the

house for the movie. At 6:10 p.m., an officer shined spotlights into her living room. It

was 6:32 when they stopped flashing lights in the window but the police car remained

parked in front of her house. Grijalva was so uncomfortable she told her children it was

time to go to bed at 7:00 p.m. She went to her daughter’s room and turned the light on.

She had looked through her bedroom window and saw the Green Bay Police car parked

outside the house. The officer then shined the light into her daughter’s bedroom. The

officers then turned the lights off their car and went down an alley next to her house and

onto Eighth Street, where her daughter’s bedroom faces.

c) On Friday, February 27, 2009 at 7 a.m., Grijalva was outside her house

shoveling snow. A short time later, a gray car drove by very slowly. After about five

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minutes Green Bay Police car number 55 drove by very slowly and the officer was

looking closely at Grijalva and her neighbor shoveling. At 8:20 a.m., Grijalva went

upstairs to make food for her kids and to clean. At 11 a.m. she noticed there was a police

car sitting in front of the house. At 1:20 p.m. the officer moved the car to her driveway.

Grijalva saw the officer watching her house. At 1:40 p.m., Grijalva went outside to finish

shoveling and the officer then got back into his car and moved away slowly.

d) On Saturday, March 7, 2009 at 9:40 a.m., Grijalva went downstairs to start

her van. Two minutes later her neighbor called her and told her that she had two police

cars in front of her house and both cars had two officers inside. Grijalva was also told

that two officers were at the front door entrance to her house and two other officers were

going to the back of the house. Grijalva told her kids to get into the van and when she

went into the van the officers started walking away.

e) On Saturday, March 14, 2009 at 9:00 p.m., Grijalva saw several police

cars outside of her house, both in her driveway and on the street. This involved Green

Bay Police cars 73, 50, 43 and 40. Some of the officers then went to her door and were

knocking on the door very hard for several minutes. Eventually they left at 9:35 p.m.

Grijalva remained inside with her children who were crying and very upset.

f) On Friday, December 18, 2009 at approximately 12:30 p.m., Grijalva went

outside to get her mail. She noticed a Green Bay Police car parked in front of their

house. She watched the car and it was still parked there at 1:10 p.m. The officer was

sitting in his car and looking at their apartment. It was Green Bay Police car no. 66.

g) On Tuesday, February 10, 2010, at 1:10 p.m., Grijalva returned home

from grocery shopping with her two youngest children and found a Green Bay Police car

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parked in front of their house. Green Bay Police car no. 66 was parked in their driveway

until 2:40 p.m.

h) On Saturday, February 20, 2010, at 12:10 p.m., one of Grijalva’s children

was at the window and yelled that a police car was parked in front of their house with the

officer looking inside. This continued until 12:45 p.m. This was Green Bay Police car

no. 72.

i) On March 4, 2010, Grijalva was cleaning the house and windows and

noticed a police car parked in front of her house at 11:45 a.m. The officer finally left at

2:10 p.m. This was Green Bay Police car no. 69.

j) On March 5, 2010 at 12:15 p.m., MMG called Grijalva and told her there

was a police officer sitting in a squad car outside of the home. The police officer then

drove away at 12:30 p.m. This was Green Bay Police car no. 51.

k) On Wednesday, March 24, 2010 at 3:00 p.m., Grijalva went to check her

mail and saw a police car approaching slowly and then stop in front of her house.

Grijalva told her kids to stay in their room and saw another police officer driving toward

the home. Grijalva went to take pictures of the police vehicles and when they saw her

taking pictures, they left the scene at a fast speed. They then parked in the alley near her

house for 15 minutes and then left. The police squads were Green Bay Police car

numbers 66 and 81.

69. (a) – (k) Deny.

70. Plaintiffs KJG and CEG have had anxiety and trouble functioning in elementary

school as a result of the emotional distress placed on them by the GBPD.

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70. Deny.

71. Plaintiff CEG has talked of suicide numerous times and wanting to become a

ghost.

71. Deny.

72. Plaintiff KJG has been fearful of leaving home.

72. Deny.

73. As a direct and proximate result of this constant surveillance by the GBPD and its

officers, Grijalva, along with two of her minor children, KJG, and CEG, have suffered emotional

and psychological injury and will continue to suffer such injuries in the future.

73. Deny.

74. That as a result of the negligence and conduct of Defendants, Grijalva and the

children, KJG, CEG, MMG and AJG, have suffered a loss of society, companionship and

consortium and will continue to suffer the loss of society, companionship and consortium in the

future of their husband and father who has been forced to vacate the family’s home.

74. Deny.

75. That upon information and belief, the Defendant, Brown County Human Services,

has made certain payments on behalf of the Plaintiff, with regard to medical and hospital

expenses incurred by the Plaintiff as a result of the injuries sustained in the above-described

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incident and Defendant Brown County Human Services may be subrogated to the rights of the

Plaintiff. The Plaintiff denies that said Defendant is truly subrogated or otherwise interested in

this action, but that said Defendant is joined, in part, as a party for the purpose of complying with

§803.03, Wis. Stats.

75. Deny.

PRAYER FOR DAMAGES

WHEREFORE, the Plaintiffs respectfully demand judgment against the above-named

Defendants as follows:

A. Against Defendants for compensatory damages;

B. For attorney fees, costs and disbursements of this action; and

C. For such other and further relief as the Court deems just and equitable.

Dated this ____ day of April 2010.

LIEBMANN, CONWAY, OLEJNICZAK & JERRY, S.C. Attorneys for Plaintiffs

By: _________________________________________________ Tricia A. Nell

POST OFFICE ADDRESS: 231 South Adams Street Green Bay, WI 54301 P.O. Box 23200 Green Bay, WI 54305-3200 (920) 437-0476 Attorney Bar No. 1037702 720715.021:476096

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Affirmative Defenses

1. Plaintiffs’ complaint against the defendant, City of Green Bay, fails to state a claim

upon which relief can be granted.

2. Plaintiffs’ complaint against each and every individual defendant fails to state a

claim upon which relief can be granted.

3. If any injuries were suffered by the plaintiffs, all of such injuries and damages were

caused through their own conduct, negligence and behavior or through the conduct

and behavior of third parties and through no fault on the part of these answering

defendants.

4. The individual defendant police offers are entitled to the defense of qualified

immunity.

5. Plaintiffs’ claims are subject to the exclusions, immunities and limitations on

liability set forth in §893.90, Wis. Stats

6. Plaintiffs have failed to mitigate their damages.

7. Cesar Grijalva-Ortiz was negligent regarding his own safety.

8. The defendants’ conduct was privileged.

9. The defendants acted in good faith and had no reason to believe that their conduct

was unlawful.

10. Defendants are protected by discretionary act immunity.

11. On information and belief, Matthew Cain is on active duty with the Wisconsin

National Guard in Afganistan (sic) and is subject to the protections of the Soldiers

and Sailors Civil Relief Act.

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WHEREFORE, defendants request judgment as follows:

1. Dismissing the complaint of the plaintiffs on its merits, together with costs and

disbursements as well as attorneys fees in favor of defendants.

2. For such other further relief as the Court may deem just and equitable and to which

the defendants are entitled.

JURY DEMAND

Defendants Officer Matthew Cain, Officer Scott Salzmann, Officer Eric Allen, Officer

Gary Richgels and City and Villages Mutual Insurance Company demand trial by a jury of

twelve.

Dated at Milwaukee, Wisconsin, this 10th day of June, 2010.

Ortiz complaint

Documents

Transcript of Ortiz complaint