Diallo Complaint Filed Nov. 9, 2018 in Denver Federal District Court

Case 1:18-cv-02898-REB-KLM Document 1 Filed 11/09/18 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No.
NAKIKO DIALLO
Plaintiff,
v.
MATTHEW MILLIGAN, in his personal capacity; and
CITY OF AURORA
Defendants
CIVIL RIGHTS COMPLAINT AND REQUEST FOR TRIAL BY JURY
COMES NOW Plaintiff, Nakiko Diallo, by and through his attorneys, Furtado Law PC,
and for its Complaint and Defendants Matthew Milligan and City and County of Aurora alleges
and avers as follows:
I. INTRODUCTION
1. This is an action brought by Nakiko Diallo, an African American resident of the
State of Colorado, to vindicate profound deprivations of his constitutional rights caused by
dishonest policing practices.
2. On November 9, 2016, Plaintiff was pulled over by Aurora police officer Matthew
Milligan in a traffic stop for allegedly driving above the speed limit and having non-functioning
tail lights.
3. Officer Milligan observed an open container in the back of Plaintiff’s vehicle and
used this as pretext to allege that Mr. Diallo was driving while intoxicated.
4. Officers Jason Oviatt and Alex Sotelo arrived on the scene shortly thereafter.
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5. In a subsequent inventory search of Mr. Diallo’s vehicle recorded by Officer
Milligan’s body camera, Officer Milligan can be seen searching a lunch box and finding no drugs
or other contraband, then turning off his body camera.
6. When Officer Milligan subsequently instructed Officer Sotelo to search that same
lunch box again several minutes later, drugs and other contraband are suddenly easily visible.
7. In reality, Mr. Diallo was not intoxicated and, upon information and belief, the
drugs that Officers Milligan and Sotelo “found” in Mr. Diallo’s vehicle were placed there by
Officer Milligan himself.
8. Officer Milligan arrested Mr. Diallo and took him into custody, alleging five
charges against him: (1) Possession with Intent to Manufacture or Distribute a Controlled
Substance – Schedule I or II, C.R.S. 18-18-405(1), (2)(c)(I); (2) Possession of a Controlled
Substance, C.R.S. 18-18-403.5(1), (2)(a); (3) Driving Under the Influence, C.R.S. 42-4-
1301(1)(a); (4) Illegal Possession of Consumption of Alcohol in Motor Vehicle, C.R.S. 42-4-1305;
and (5) Tail Lamp Violation, C.R.S. 42-4-206(1).
9. Mr. Diallo refused a plea deal and spent the next seventeen months in jail awaiting
trial.
10. A jury returned not guilty verdicts on all charges on April 13, 2018.
II. JURISDICTION AND VENUE
11. This action arises under the Constitution and laws of the United States and is
brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28 U.S.C.
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§ 1331. Jurisdiction supporting Mr. Diallo’s claims for attorney’s fees and costs is conferred by
42 U.S.C. § 1988.
12. Venue in the District of Colorado is proper under 28 U.S.C. § 1391(b) because all
of the events relevant to the claims contained herein occurred in the State of Colorado.
III. PARTIES
13. Plaintiff Nakiko Diallo is a resident of Denver, Colorado. At all times relevant to
this Complaint, he resided or was incarcerated in Colorado.
14. Defendant Matthew Milligan is a police officer with the Aurora Police Department.
He acted under color of law and in the scope of his employment when engaging in the actions and
omissions alleged in this Complaint. He is sued in his individual capacity.
15. Defendant City of Aurora was at all times relevant herein a municipal entity created
and authorized under the laws of Colorado. Defendant City of Aurora was, at all times relevant
herein, authorized by law to maintain and did maintain a police department known as the Aurora
Police Department. Defendant City of Aurora is responsible for the supervision, training, official
policies, customs, and actual practices of its agents and the Aurora Police Department.
IV. GENERAL ALLEGATIONS
16. At approximately 11:54 PM on the evening of November 9, 2016, Plaintiff Nakiko
Diallo was driving southbound on Xanadu Street near the Colfax intersection in Aurora, Colorado,
when he was pulled over by Aurora Police Department Officer Matthew Milligan.
17. Friends of Mr. Diallo were driving ahead of him and they too pulled over when
they saw that Mr. Diallo had been stopped.
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18. Office Milligan approached Mr. Diallo’s vehicle from the passenger side and
examined his license and registration.
19. Officer Milligan noted an open beer can in the back of the car and asked Mr. Diallo
if he had been drinking.
20. Mr. Diallo denied that he had been drinking and explained that the empty cans in
the back were from much earlier in the day.
21. Officer Alex Sotelo and his field training officer, Officer Jason Oviatt, subsequently
arrived on the scene.
22. Officer Milligan was not Officer Sotelo’s field training officer that night.
23. Officer Milligan did not initially tell Mr. Diallo why he had been pulled over. He
instructed Mr. Diallo to exit the vehicle and searched him.
24. When Mr. Diallo exited the vehicle, Officer Milligan noticed a bottle of tequila that
was also in Mr. Diallo’s vehicle.
25. After Mr. Diallo had been frisked and told to sit on the curb, Officer Milligan
informed him that he had been pulled over because his tail lights were not functioning and because
he was “flying down Colfax.”
26. Moments later, Officer Milligan admitted that Mr. Diallo was going under the
speed limit, and he then claimed that Mr. Diallo had caught Officer Milligan’s attention by nearly
rear ending a vehicle at a stop light.
27. Officer Milligan then returned to his vehicle to run Mr. Diallo’s background check.
28. Mr. Diallo was on parole at the time for a prior offense in 2011.
29. When Officer Sotelo subsequently approached Officer Milligan’s vehicle, Officer
Milligan told Officer Sotelo that “We need to search this car essentially.” This was before Mr.
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Diallo had even undergone a roadside sobriety test and with reference to no demonstrable probable
cause whatsoever.
30. Officer Milligan had already made up his mind that he was going to find a reason
to search Mr. Diallo’s vehicle no matter what.
31. Officers Sotelo and Milligan then returned to speak with Mr. Diallo. Mr. Diallo
does not appear to be intoxicated in any way. His eyes are clear, he is not slurring his speech and
his conversation is clear and coherent.
32. Mr. Diallo consented to a roadside sobriety test, and that test was conducted by
Officer Sotelo. Video of that test clearly shows that Mr. Diallo was not intoxicated. Mr. Diallo
shows no difficulty walking in a straight line, standing on one foot, or answering any of Officer
Sotelo’s questions.
33. Upon information and belief, this was the first time that Officer Sotelo had ever
conducted a roadside sobriety test. As a result, at times he mistakenly gave confusing instructions.
34. Probable cause to arrest Mr. Diallo for driving under the influence did not exist.
35. Mr. Diallo was in disbelief when he was placed in handcuffs.
36. At this time, Mr. Diallo’s friends again approached Officer Milligan to ask what
was happening, why Mr. Diallo was being arrested, and if they could take his vehicle.
37. Officer Milligan said he would ask Mr. Diallo if he consented to them taking his
vehicle, but he did not actually ask Mr. Diallo if he consented.
38. Officer Milligan did not interview or take any statements from these witnesses.
39. In violation of the Aurora Police Department Directives Manual section 8.16.2,
Officer Milligan refused to release Mr. Diallo’s vehicle to these individuals, despite the fact that
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they were not legally impaired to drive and Mr. Diallo would have consented to the release, had
Officer Milligan asked him as he claimed he would.
40. Mr. Diallo did not consent to a search of his vehicle.
41. Officer Milligan used the pretext of a driving under the influence charge, for which
there was no probable cause, to conduct an inventory search of Mr. Diallo’s vehicle.
42. At approximately 1:33 AM, Officer Milligan conducted a thorough search of a
lunch box in the back of Mr. Diallo’s car, including the lunch box’s side pockets. His body camera
shows no drugs or other contraband present in that lunch box, and Officer Milligan did not mention
or otherwise indicate that he had found drugs to the other officers on the scene.
43. Officer Milligan makes no indication that he has found this contraband on the
video, instead moving on as though nothing was there.
44. Notably, the search of the lunchbox takes place during the muted 30-second pre-
event buffer period preceding the time when Officer Milligan turned on his body camera. Officer
Milligan therefore likely believed his search of the lunchbox was not captured on film.
45. Officer Milligan then again turned off his body camera at 1:35 AM.
46. Mr. Diallo did not ask Officer Milligan to turn off his body camera.
47. Repeatedly turning a body camera on and off during an encounter of this nature is
a violation of Aurora Police Department Directives Manual section 16.4.
48. Officer Milligan had no justifiable reason to turn his camera on and off repeatedly.
49. Upon information and belief, at this time Officer Milligan placed the drugs and
other contraband for which Mr. Diallo was subsequently charged in the lunch box in Mr. Diallo’s
car.
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50. Three minutes and forty-two seconds later, at 1:38 AM, Officer Milligan instructed
Officer Sotelo to search the very same lunch box that he himself had thoroughly searched just
minutes before.
51. This time, Officer Sotelo finds contraband that is easily visible as soon as he opens
the lunch box side pocket, including a digital scale, small baggies with dollar signs on them, Ziploc
bags, and a white substance that appeared to be cocaine.
52. Officer Sotelo removed these items and placed them on the trunk of Mr. Diallo’s
car.
53. Officer Milligan acts surprised when he sees these items, asking Officer Sotelo
what he has found. He makes no indication that he had already searched that same lunchbox.
54. Both Officers Milligan and Sotelo were wearing gloves when they examined this
contraband.
55. Officer Milligan’s report of the incident does not indicate that he searched that same
lunch box himself.
56. Several months later, after Mr. Diallo’s attorney filed a motion to dismiss the
charges against him on the basis of outrageous police conduct after viewing the body camera
footage, Officer Milligan for the first time claimed that he had observed the contraband in the
lunch box, but deliberately made no mention of that fact because he wanted to use the discovery
as some sort of training exercise for Officer Sotelo.
57. Deliberately pretending not to be aware of evidence of a crime in order to see if
another officer would detect it is not proper procedure and would have been entirely inappropriate.
58. As a result of the inventory search of Mr. Diallo’s car, Mr. Diallo was charged with
possession of a controlled substance and possession with intent to distribute.
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59. On November 30, 2016, Detective Pete Szuch requested that the contraband be
tested for finger prints by the Aurora Police Crime Laboratory Crime Scene Unit.
60. On April 15, 2017, Examiner Carolyn Barker with the Aurora Police Department
Crime Laboratory produced a Print Comparison Report indicating that the finger and palm prints
on the contraband did not match Mr. Diallo’s.
61. Mr. Diallo’s request that Officer Milligan’s prints be compared to those on the
contraband was denied.
62. At trial, Officer Milligan admitted that the prints could be his, even though he was
wearing gloves when he examined the contraband at the scene.
63. Mr. Diallo knew he was innocent and maintained his innocence, preferring to await
trial rather than take a plea deal.
64. Because Mr. Diallo was on parole for a prior offense in 2011, he had no choice but
to remain in jail until he was eligible to be bonded out, more than seventeen months later in March
of 2018.
65. Mr. Diallo’s case went to trial in April of 2018.
66. At trial, Officer Milligan claimed under oath that he had told Officer Oviatt about
the contraband in the lunch box.
67. Officer Oviatt denied under oath that Officer Milligan had ever told him about the
contraband in the lunch box.
68. On April 13, 2018, the jury returned not guilty verdicts on all charges against Mr.
Diallo, finding that he was not intoxicated when he was pulled over, that he was not in unlawful
possession of a controlled substance, and that he was not in possession of a controlled substance
with intent to distribute.
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69. Mr. Diallo endured a seventeen-month long ordeal including wrongful
incarceration and significant psychological trauma as a result of falsified claims and planted
evidence.
70. This wrongful deprivation of Mr. Diallo’s rights was in violation of the United
States Constitution.
71. Mr. Diallo has suffered significant damages, both economic and noneconomic, as
a result of the violation of his constitutional rights.
V. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF

42 U.S.C. 1983 – Malicious Prosecution
Violation of the Fourth & Fourteenth Amendments
(against Defendant Milligan)
72. Plaintiff incorporates by reference the foregoing allegations as if fully set forth
herein.
73. Plaintiff brings this claim against Defendants Milligan.
74. Defendant Milligan was acting under the color of state law at all times relevant to
this Complaint.
75. Probable cause did not exist to charge Mr. Diallo for Driving Under the Influence,
Unlawful Possession of a Controlled Substance, or Unlawful Possession of a Controlled Substance
with Intent to Distribute.
76. Eighteen months of litigation and advocacy resulted in a favorable termination of
Mr. Diallo’s case when he was found not guilty of all charges on April 13, 2018.
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77. Defendant Milligan’s adherence to his false assertion that Mr. Diallo was
intoxicated and in possession of controlled substances with intent to distribute entrenched the City
of Aurora in Mr. Diallo’s prosecution and subsequent wrongful incarceration.
78. Defendant Milligan caused Mr. Diallo’s prosecution with motives other than a
desire to bring an offender to justice.
79. Defendant Milligan knowingly, recklessly, and with reckless disregard for the truth,
spread false information concerning Mr. Diallo’s case and guilt.
80. As a result of Defendant’s unlawful conduct, Mr. Diallo was imprisoned awaiting
trial and maliciously prosecuted for crimes he did not commit. Mr. Diallo has suffered emotional
distress, psychological injury, and significant damage to family and other personal relationships
as a result of the malicious prosecution by Defendants. He continues to suffer psychological harm
resulting from more than seventeen months of wrongful and baseless incarceration for crimes he
did not commit.
SECOND CLAIM FOR RELIEF

42 U.S.C. 1983 – Manufacturing False Inculpatory Evidence
Violation of the Fourteenth Amendment
(against Defendant Milligan)
herein.
82. Upon information and belief, Officer Milligan manufactured false inculpatory
evidence against Mr. Diallo by knowingly, intentionally, and willfully placing illegal contraband
in Mr. Diallo’s vehicle and leaving it for Officer Sotelo to “find.”
83. Officer Milligan repeatedly changed his story with respect to that evidence, first
asserting that he didn’t search the lunch box and that Officer Sotelo had discovered the contraband.
Upon realizing there was video footage of him searching the lunch box, Officer Milligan then
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asserted a new story, this time claiming that he deliberately left the evidence in Mr. Diallo’s car as
some sort of training exercise for Officer Sotelo, even though he was not Officer Sotelo’s field
training officer.
84. Officer Milligan’s story also changed with respect to his claim that Mr. Diallo was
driving while intoxicated. Officer Milligan first claimed that he saw Mr. Diallo speeding down
Colfax, then backtracked when video footage showed him acknowledging that Mr. Diallo was
going under the speed limit. The field sobriety test conducted by Officer Sotelo (his first) and
observed by Officer Milligan clearly demonstrated that Mr. Diallo was not intoxicated, but Officer
Milligan insisted that he was to provide pretext for an inventory search that was itself unnecessary
given that sober third parties were available and had offered to take Mr. Diallo’s vehicle.
85. Taken together, these false and inconsistent statements served to create the
appearance of probable cause to arrest Mr. Diallo when in fact there was none.
86. Mr. Diallo has suffered emotional distress, psychological injury, and significant
damage to family and other personal relationships as a result of the manufacture of false
inculpatory evidence by Defendant. He continues to suffer psychological harm resulting from more
than seventeen months of wrongful and baseless incarceration that arose from this fabricated
evidence.
THIRD CLAIM FOR RELIEF

42 U.S.C. 1983 – Deliberately Indifferent Training and Supervision Resulting in
Violations of the Fourteenth Amendment
(against City of Aurora)
herein.
88. The Aurora Police Department is a subdivision of the City of Aurora.
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89. Municipalities and their subdivisions may be held liable to an individual of they
enforce a policy or custom that causes the deprivation of an individual’s constitutional rights.
90. Municipal liability may be based upon:
a. A formal promulgated policy;
b. A well settled custom or practice;
c. A final decision by a municipal policymaker; or
d. Deliberately indifferent training or supervision.
91. Defendant City of Aurora engaged in the following deliberately indifferent training
and supervision practices that allowed for various constitutional violations:
a. Failure to train police officers on proper body camera usage;
b. Failure to ensure that police officers are properly utilizing body cameras;
c. Failure to enforce punishment for violations of body camera usage directives;
d. Failure to train police officers on the proper protocol for impounding vehicles of
individuals suspected of driving under the influence;
e. Failure to ensure that police officers adhere to proper protocol for impounding
vehicles of individuals suspected of driving under the influence;
f. Failure to enforce punishment for violations of directives relating to the
impounding of vehicles of individuals suspected of driving under the influence;
g. Failure to train police officers on acceptable legal grounds for probable cause;
h. Failure to ensure that police officers are only arresting citizens on the basis of valid
probable cause;
i. Failure to enforce punishment for arrests carried out without valid probable cause;
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92. Defendant City of Aurora’s indifferent employee training and supervision practices
were: (1) deliberately or recklessly indifferent to Mr. Diallo’s constitutional rights; and (2)
deliberately or recklessly indifferent to whether innocent people were being wrongfully charged
with crimes they had not committed.
93. As a direct and proximate result of the City of Aurora’s indifferent employee
training or supervision practices, Mr. Diallo was wrongly charged with crimes he did not commit,
and forced to spend more than seventeen months in jail awaiting trial. During this time, Mr. Diallo
endured substantial emotional and pecuniary injuries.
VI. PRAYER FOR RELIEF
WHEREFORE, Mr. Diallo requests that this Court enter judgment in his favor and against
the Defendants, and award him all relief as allowed by law and equity, including, but not limited
to, the following:
a. A declaration that Defendants violated the federal constitutional rights of Mr.
Diallo;
b. Actual economic damages as established at trial;
c. Compensatory damages, including but not limited to those for past and future
pecuniary and non-pecuniary losses, emotional distress, suffering, loss of
reputation, humiliation, inconvenience, mental anguish, loss of enjoyment of life,
and other non-pecuniary losses;
d. Punitive damages for all claims allowed by law in an amount to be determined at
trial;
e. Nominal damages;
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f. Pre-judgment and post-judgment interest at the highest lawful rate;
g. Attorney’s fees and the costs associated with this action as allowed by law; and
h. Any further relief that this Court deems just and proper, and any other relief as
allowed by law.
JURY TRIAL DEMAND
Mr. Diallo requests a trial to a jury on all issues so triable.
Respectfully submitted this 9th day of November, 2018.
/s/ Brad Kloewer

Brad Kloewer #50565
Furtado Law PC
3773 Cherry Creek N. Dr. #755
Denver, CO 80209
303-910-2734
brad@furtadolaw.com
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Case 1:18-cv-02898-REB-KLM Document 1 Filed 11/09/18 USDC Colorado Page 1 of 14

IN THE UNITED STATES DISTRICT COURT

Civil Action No.

MATTHEW MILLIGAN, in his personal capacity; and

CIVIL RIGHTS COMPLAINT AND REQUEST FOR TRIAL BY JURY

and avers as follows:

1. This is an action brought by Nakiko Diallo, an African American resident of the

State of Colorado, to vindicate profound deprivations of his constitutional rights caused by

dishonest policing practices.

5. In a subsequent inventory search of Mr. Diallo’s vehicle recorded by Officer

or other contraband, then turning off his body camera.

Officer Milligan himself.

Substance – Schedule I or II, C.R.S. 18-18-405(1), (2)(c)(I); (2) Possession of a Controlled

and (5) Tail Lamp Violation, C.R.S. 42-4-206(1).

II. JURISDICTION AND VENUE

this Complaint, he resided or was incarcerated in Colorado.

omissions alleged in this Complaint. He is sued in his individual capacity.

IV. GENERAL ALLEGATIONS

16. At approximately 11:54 PM on the evening of November 9, 2016, Plaintiff Nakiko

they saw that Mr. Diallo had been stopped.

examined his license and registration.

if he had been drinking.

the back were from much earlier in the day.

arrived on the scene.

instructed Mr. Diallo to exit the vehicle and searched him.

was also in Mr. Diallo’s vehicle.

he was “flying down Colfax.”

rear ending a vehicle at a stop light.

to search Mr. Diallo’s vehicle no matter what.

his conversation is clear and coherent.

35. Mr. Diallo was in disbelief when he was placed in handcuffs.

vehicle, but he did not actually ask Mr. Diallo if he consented.

Officer Milligan asked him as he claimed he would.

40. Mr. Diallo did not consent to a search of his vehicle.

42. At approximately 1:33 AM, Officer Milligan conducted a thorough search of a

video, instead moving on as though nothing was there.

a violation of Aurora Police Department Directives Manual section 16.4.

bags, and a white substance that appeared to be cocaine.

lunch box himself.

as some sort of training exercise for Officer Sotelo.

57. Deliberately pretending not to be aware of evidence of a crime in order to see if

possession of a controlled substance and possession with intent to distribute.

on the contraband did not match Mr. Diallo’s.

contraband was denied.

wearing gloves when he examined the contraband at the scene.

trial rather than take a plea deal.

65. Mr. Diallo’s case went to trial in April of 2018.

the contraband in the lunch box.

contraband in the lunch box.

with intent to distribute.

69. Mr. Diallo endured a seventeen-month long ordeal including wrongful

a result of the violation of his constitutional rights.

V. CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

73. Plaintiff brings this claim against Defendants Milligan.

Unlawful Possession of a Controlled Substance, or Unlawful Possession of a Controlled Substance

with Intent to Distribute.

76. Eighteen months of litigation and advocacy resulted in a favorable termination of

of Aurora in Mr. Diallo’s prosecution and subsequent wrongful incarceration.

desire to bring an offender to justice.

spread false information concerning Mr. Diallo’s case and guilt.

as a result of the malicious prosecution by Defendants. He continues to suffer psychological harm

did not commit.