Fox v. BOPC Et Al Western District of Missouri

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION
DANIEL FOX,
Plaintiff,
v. Case No. __________________
BOARD OF POLICE
COMMISSIONERS OF KANSAS CITY,
Serve: Bishop Mark Tolbert
1125 Locust Street
Kansas City, Missouri 64106
CAPTAIN JAMES GOTTSTEIN,
Serve: Metro Patrol Division
7601 Prospect Avenue
SERGEANT WILLIAMS MAJORS,
Serve: Metro Patrol Division
7601 Prospect Avenue
and
OFFICER JOHN DOE,
Defendants.
COMPLAINT
Plaintiff Daniel Fox, for his Complaint against Defendants the Board of Police
Commissioners of Kansas City (“BOPC”), and Captain James Gottstein, Sergeant William
Majors, and Officer John Doe (collectively, the “KCPD Officers”), states as follows:
Summary of Action
1. In December of 2019, police officer Eric DeValkenaere shot and killed an
unarmed homeowner after entering the man’s property with his gun drawn but without
Case 4:22-cv-00526-BP Document 1 Filed 08/12/22 Page 1 of 23

a warrant, probable cause, or exigent circumstances to justify his actions. In November of
2020, a Judge found DeValkenaere guilty of involuntary manslaughter in the second de-
gree and armed criminal action. In protest of DeValkenaere’s conviction, the Kansas City,
Missouri Police Department (“KCPD”) and its officers have now adopted a policy and
practice in which they refuse to investigate or take action in response to crimes on per-
sonal property even when exigent circumstances exist to justify immediate action without
a warrant.
2. In July of 2022, Plaintiff reported an active break-in of his neighbor’s house.
KCPD officers quickly arrived to find a door to the house kicked in and the intruder likely
still inside. But the officers refused to take any action and soon left, telling Plaintiff their
“hands were tied” to do anything further to stop the apparent burglary in progress. This
was a real-life implementation of the protest policy adopted after the DeValkenaere con-
viction, which KCPD officers view as incorrect and hope to be reversed on appeal. This
situation has likely played out hundreds of times since the policy change following the
DeValkenaere conviction.
3. After this experience left Plaintiff feeling unsafe and unprotected, he posted
a video to his Twitter account criticizing the officers’ approach and asking that the matter
be elevated to the Mayor or KCPD officials. In direct response to his Twitter post, Plaintiff
was soon harassed and intimidated into removing his critical Twitter post by three other
KCPD officers—including a watch captain who left a threatening voicemail for Plaintiff
and two armed officers who showed up at his home unannounced in a late-night show
of force to “stop by and talk to” Plaintiff about the matter.
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4. The actions of these officers and the policies, and practices of the BOPC that
facilitate these actions, violate Plaintiff’s Constitutional right to engage in free speech on
matters of public importance without retaliation. These Constitutional violations have
caused Plaintiff injuries redressable under 42 U.S.C. § 1983, including loss of free speech
and emotional distress. Plaintiff’s action is filed to recover damages for those injuries and
to procure injunctive relief to prevent future recurrence of these violations.
Parties
5. Plaintiff Daniel Fox is a resident of City of Kansas City, Missouri, and dur-
ing all times relevant to the causes of action pleaded here, he has lived within the City of
Kansas City, Missouri.
6. Defendant BOPC is a governmental body created pursuant to Mo. Rev. Stat.
§ 84.020 et. seq., consisting of four appointed commissioners together with the Mayor of
Kansas City.
7. Defendant Captain James Gottstein is an individual who is a citizen of the
state of Missouri. Defendant Gottstein works as a Watch Captain of the KCPD assigned
to the Metro Patrol Division located at 7601 Prospect Kansas City Mo 64132. This action
is filed against Defendant Gottstein in his individual and official capacity.
8. Defendant Sergeant William Majors is an individual who is a citizen of the
state of Missouri. Defendant Majors works as an officer of the KCPD assigned to the
Metro Patrol Division located at 7601 Prospect Kansas City Mo 64132. This action is filed
against Sergeant Majors in his individual and official capacity.
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9. Officer John Doe works as an officer of the KCPD assigned to the Metro
Patrol Division located at 7601 Prospect Kansas City Mo 64132. This action is filed against
Officer Doe in his individual and official capacity.
Jurisdiction and Venue
10. This Court has subject matter jurisdiction pursuant to 28 U.S. §1331 as this
is a civil action arising under the Constitution of the United States.
11. This Court has personal jurisdiction over all Defendants in this case because
all parties are domiciled within the State of Missouri and all the events giving rise to the
claims occurred in the State of Missouri.
12. Venue is proper in this Court pursuant 28 U.S.C. § 1391(b)(1) and (2) be-
cause all Defendants reside in this judicial district and all events giving rise to the claim
occurred in this judicial district.
Background Facts Common to All Counts
13. In the early morning hours of July 15, 2022, at approximately 1:18 AM,
Plaintiff heard a loud noise coming from his neighbor’s house located at 5347 Rockhill
Road, Kansas City Missouri, 64110. Startled, Plaintiff looked outside to see what caused
the loud noise. Upon seeing no movement, Plaintiff then went outside to investigate fur-
ther. Once outside Plaintiff discovered the loud noise was a product of an unknown per-
son who had kicked in the door of his neighbor’s house.
14. Fearing for the safety of himself, his wife, and his two small children, Plain-
tiff went back inside his home and hurriedly called KCPD at approximately 1:21 AM to
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report the break-in. After making this call, Plaintiff looked back over to his neighbor’s
house and was shocked and scared when he saw an unidentified intruder inside.
15. Two officers wearing patrol blue uniforms (“Initial Responding Officers”)
arrived at Plaintiff’s residence at approximately 1:33 AM. The Initial Responding Officers
arrived with their patrol lights activated and exited their vehicle to causally walk around
the neighbor’s house.
16. After their brief walk, the Initial Responding Officers knocked on Plaintiff’s
door and asked Plaintiff what he knew about his neighbor’s house or “who was on the
premises.” Plaintiff was relieved to see the officers and responded that he believed it was
student housing owned by Rockhurst or UMKC and the students typically come and go
with the semester. Plaintiff explained to the officers that although students come and go,
it was not ordinary for someone to kick the door open in the middle of the night.
17. Without entering the neighbor’s house, investigating the break in, or even
knocking on the neighbor’s door, the Initial Responding Officers left the area approxi-
mately ten minutes after their arrival.
18. Confused and alarmed that the Initial Responding Officers left the scene
without resolving the situation, Plaintiff called the police department at 1:46 AM to ask
why the neighbor’s door was still open and why the officers did nothing about the in-
truder in the neighbor’s house. Plaintiff received a call back at 1:50 AM from one of the
Initial Responding Officers, who informed Plaintiff that they could not do anything more
because “their hands were tied.”
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19. Believing the intruder was still inside the neighbor’s house, Plaintiff asked
the officer if he was expected to sit in his house with a gun all night to protect his family
in case the intruder came for him, his wife, and his two small children. Again, the Initial
Responding Officer replied that her “hands were tied.”
20. Because the Initial Responding Officers failed to take any further action,
Plaintiff stayed awake all night standing guard in his home to protect his family. This
experience left Plaintiff upset, fearful and concerned about how KCPD and its officers
had handled the incident.
21. At approximately 8:30 AM that same morning, Plaintiff posted a video to
his Twitter account detailing the previous night and expressing that he was scared for his
family’s safety because officers refused to take the appropriate action when an intruder
was actively breaking into his neighbor’s house. Plaintiff questioned the apparent KCPD
policy of inaction in these situations. Plaintiff noted that the intruder still appeared to be
in the neighbor’s house when officers arrived and when they left, yet the officers made
no effort whatsoever to meaningfully address the situation or resolve the threat.
22. At the end of Plaintiff’s video, he expressed frustration and asked that the
matter be brought to the attention of the right person of the Mayor’s office or the KCPD
to help him understand the inaction.
23. At approximately 8:30 PM that same evening, Plaintiff received a call from
an unknown number and did not answer the phone. Plaintiff later learned the call was
from a KCPD officer claiming to be the Captain at Metro Patrol, who left the following
message:
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“Hi Mr. Fox, if this is your number, my name is James [unintelligi-
ble], I’m the watchman captain at Metro Patrol. You posted some-
thing on Twitter begging for attention, so I was calling you back to
try to explain to you our procedures our limitations that have been
placed upon us since the 4th amendment ruling concerning Eric
DeValkenaere that was passed down like last year that strictly lim-
ited out ability to go on private property without owner consent or
without vast vast knowledge on something happening like some-
one screaming for help inside. We no longer search abandoned
houses without a warrant from a judge to go in, it strictly limited
our ability to provide the public with safety and that’s something
you citizens need to know. That ruling had a direct impact on what
we can do. Which is affecting you and I don’t agree with it, we
should be able to meet your need We should be able to go into a
house that’s next to you to keep you safe but we no longer do that
because if we go in there and somebody be in there that belongs in
there for some reason ya know maybe one of the college students
is back and he aims a gun and we shoot at him then we are gunna
be brought up on charges so we have to be very careful on how we
proceed on those things.
But if you want to call me back this is my work number. I’m also
going to have a sergeant contact you tonight who is a supervisor of
those officers I believe. To talk to you also. umm
I’m sorry you had that experience, but many citizens are going to
have that same experience but it’s kind of out of the police’s hands
until that judgment is overturned on appeal so that we can go back
to our business to keep citizens safe, you take care buh-bye.”
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24. The officer who left the voicemail on Plaintiff’s phone is believed to be De-
fendant Captain James Gottstein.
25. Captain Gottstein never directly spoke to Plaintiff to address his concerns,
never informed Plaintiff that additional officers were coming to his home (as opposed to
calling him or contacting him by email), and never confirmed with Plaintiff that he would
be comfortable with additional officers coming to his home (particularly late at night and
in the circumstances described below).
26. At 9:52 PM the same evening, two KCPD officers arrived at Plaintiff’s home.
These officers are believed to be Sergeant Majors and Officer Doe. The officers arrived in
the same vehicle together and parked in front of Plaintiff’s home with the lights on their
patrol vehicle activated. Their lights remained activated for the entire duration of the visit
to Plaintiff’s home. There was no need in this situation for the lights to remain activated,
however, because this was a non-emergency visit and the patrol vehicle was parked in a
parking zone with no need to warn other vehicles on the road of its presence.
27. Sergeant Majors wore a tactical chest vest adorned with weapons giving the
impression a show of force was necessary during this encounter.
28. Plaintiff, his wife, and his two young children were already in bed when
Sergeant Majors and Officer Doe arrived at his home late in the evening. Despite the late
hour and without confirming the visit beforehand, the officers rang the doorbell of Plain-
tiff’s home. Tired and confused as to why the officers were at her home, Plaintiff’s wife
answered the door and asked the officers what they needed. The officers responded that
they wanted to “stop by and talk to” Plaintiff’s husband.
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29. During this conversation, Plaintiff’s wife noticed that Sergeant Majors had
placed his right hand close to the gun on his right hip, leaving her nervous and question-
ing his intent. Plaintiff’s wife told the officers that Plaintiff was in bed and would not be
coming to the door.
30. Sergeant Majors left a business card with Plaintiff’s wife and asked that
Plaintiff contact him. Plaintiff’s wife then woke up Plaintiff and informed him she was
very upset and scared about the interaction she just had with the officers.
31. After being awoken, Plaintiff remembered he had a call from an unknown
number and listened to the voicemail transcribed above from Captain Gottstein. Plaintiff
was shocked at the tone of the voicemail that was aggressive, contentious, and threaten-
ing. Plaintiff was especially confused why Captain Gottstein would describe asking for
help as “begging for attention.”
32. Given the intimidating late-night actions of Sergeant Majors and Officer
Doe, coupled with the aggressive and dismissive message from Captain Gottstein, Plain-
tiff felt afraid and believed the true intentions of KCPD and its officers were not to help
him, but to intimidate and retaliate against him for his critical Twitter post. When Plaintiff
finished listening to the voicemail from Captain Gottstein, he was certain KCPD officers
would not protect him because Captain Gottstein had specifically said in a veiled threat
that the department would not be able to keep him safe.
33. KCPD has a written policy for responding to community complaints, Policy
No. 18-02. That policy instructs citizens to make formal complaints in person at their
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nearest police station. Complaints will not be accepted over the telephone but, if a citizen
calls on the phone, they will be advised on how to file a formal complaint.
34. Plaintiff’s criticism via Twitter of KCPD practices was an informal com-
plaint analogous to a phone call. Plaintiff asked that his complaint reach the right person
at KCPD. Instead of directing Plaintiff to make a formal written complaint or forwarding
Plaintiff’s informal complaint to the Office of Community Complaints as instructed in the
General Guidelines of Policy No. 18-02, the KCPD Officers took it upon themselves to
respond directly to Plaintiff’s critical Twitter post with intimidating conduct in violation
of the stated policy. The KCPD Officers intentionally chose not to follow the KCPD policy
on informal complaints because doing so would have cost them the opportunity to intim-
idate Plaintiff into deleting his critical Twitter post.
35. In the totality of circumstances, the KCPD Officers’ actions caused Plaintiff
to feel threatened, unsafe, and intimidated. Those actions include:
a. The Initial Responding Officers refusing to act.
b. Captain Gottstein’s aggressive voicemail:
i. Threatening Plaintiff that he was “begging for attention”;
ii. Threatening Plaintiff that the police are unable to keep him safe;
iii. Threatening Plaintiff that other citizens will not be kept safe;
iv. Threatening Plaintiff that he will only be safe if a judicial ruling is
overturned; and
v. Declining to follow KCPD policy for responding to citizen com-
plaints.
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c. The later responding officers, Sergeant Majors and Officer Doe:
i. Visiting at a late hour with no confirmation they were welcome;
ii. Visiting with their patrol vehicle lights activated for no legitimate
reason throughout the entirety of their non-emergency visit;
iii. One officer adorning himself in tactical gear with more weapons
than the Initial Responding Officers; and
iv. The same officer keeping his right hand close to the gun on his right
hip, while speaking to the Plaintiff’s wife about wanting to “stop by
and talk” to Plaintiff.
36. Plaintiff reasonably believed that this pattern of intimidating and retalia-
tory conduct by the KCPD Officers was designed to pressure him into deleting his Twitter
post critical of the KCPD actions.
37. For fear of further retaliation from the KCPD, Plaintiff immediately deleted
his Twitter post after being told of his wife’s upsetting visit with Sergeant Majors and
Officer Doe and listening to the threatening voicemail from Captain Gottstein.
38. Plaintiff was so intimidated that he went further to search his entire Twitter
history and delete every post he could find containing the word “police.” This was done
to avoid additional retaliation from KCPD and its officers, who obviously were monitor-
ing his Twitter account. Plaintiff deleted at least four posts from his Twitter account that
referenced police.
39. The BOPC plays an integral part in creating and implementing formal and
informal police policies and procedures.
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40. The BOPC developed, implemented, and carried out official policies, prac-
tices, or procedures which permitted, encouraged and condoned the use of the alleged
retaliatory conduct of the KCPD Officers that resulted in the chilling of Plaintiff’s First
Amendment right to free speech.
41. In the alternative, Defendant BOPC created an unofficial custom which per-
mitted, encouraged and condoned the use of intimidation tactics in response to criticism
of KCPD practices. This unofficial custom facilitated the specific conduct of the KCPD
Officers in this case by giving them unfettered power to unilaterally respond to Twitter
criticism through the alleged retaliatory conduct that resulted in the chilling of Plaintiff’s
First Amendment right to free speech.
42. In the alternative, Defendant BOPC committed a deliberately indifferent
failure to train or supervise the KCPD Officers to prevent the alleged retaliatory conduct
of those officers that resulted in the chilling of Plaintiff’s First Amendment right to free
speech. In particular:
a. Defendant BOPC has a policy regarding First Amendment protections in
some circumstances, including Policy No. 21-04 related to the protection of
the right the assembly in the event of public protest.
b. This policy acknowledges that protecting the First Amendment rights of
citizens is crucial to abiding by the United States Constitution.
c. Despite that acknowledgment, the BOPC declined to create a written policy
outlining First Amendment protections for speech on internet platforms,
including critical speech likely to raise the ire of officers who might disagree
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with or take offense to the criticism. The BOPC has completely and utterly
failed to train and supervise KCPD officers in appropriately responding to
these situations and interacting with citizens who have exercised their First
Amendment right to speech via the internet. Contrasted with other written
policies, the lack of a written policy on this significant issue likely to arise
on a regular basis demonstrates the BOPC’s deliberate indifference to the
protection of the right to free speech in this instance.
d. The BOPC’s deliberate indifference to Plaintiff’s First Amendment right to
free speech in this circumstance created the opportunity for the retaliatory
actions of the KCPD Officers, who now hold unfettered power in an uncon-
trolled environment to harass and intimidate citizens into silences on mat-
ters of public importance.
Clearly Established Constitutional Rights
43. The First Amendment provides that “Congress shall make no law ... abridg-
ing the freedom of speech, ... and to petition the Government for a redress of grievances.”
U.S. Const. Amend. I.
44. The BOPC and all police officers—including the KCPD Officers—know that
all citizens have a constitutional right to free speech.
45. Defendants, as alleged herein, individually and collectively violated clearly
established constitutional and/or statutory rights of which a reasonable person would
have known.
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Count I
Violation of the First Amendment Under 42 U.S.C. § 1983
46. Plaintiff incorporates paragraphs 1-45 as if fully set forth herein.
47. Defendants are “persons” within the meaning of 42 U.S.C. § 1983.
48. Defendants’ decision to threaten and intimidate Plaintiff into deleting his
Twitter posts had the effect of chilling his speech and violated the First Amendment in at
least three ways: (i) as an unconstitutional restriction to a public forum; (ii) as unconsti-
tutional content-and viewpoint-based discrimination; and (iii) as a violation of Plaintiff’s
right to speak to matters of public interest.
49. Defendants have adopted municipal policies, practices, and customs that
have caused the violations complained of herein; and, in the alternative, have actual or
constructive notice of the constitutional violations described herein and have failed to
take action, thereby allowing the continuation of such a policy or custom, and causing
the harms complained of herein.
50. Defendants acted under color of state law when they deprived Plaintiff of
his right to free speech critical of the government and when they committed the alleged
intimidating actions that caused Plaintiff to delete his Twitter posts.
51. Defendants’ actions against Plaintiff were substantially motivated by Plain-
tiff’s engagement in First Amendment protected activity. The KCPD Officers engaged in
a deliberate effort to deter future similar activity, which demonstrates a pattern and prac-
tice of unconstitutional conduct that is certain to continue absent any relief.
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52. The above-described conduct was, and continues to be, a proximate cause
of Plaintiff’s enduring pain and suffering and has chilled his desire to participate in future
speech in a public forum regarding matters of police conduct. These violations of the First
Amendment are also continuing and causing irreparable harm.
53. The KCPD Officers engaged in their conduct intentionally, knowingly, will-
fully, wantonly, maliciously, and in reckless disregard of Plaintiff’s constitutional rights,
and are therefore liable to Plaintiff for punitive damages.
Count II
First Amendment Retaliation Under 42 U.S.C. § 1983
55. Plaintiff engaged in speech protected under the First Amendment by post-
ing his criticism of KCPD policies and practices on Twitter on July 15, 2022.
56. Defendants responded to Plaintiff’s constitutionally protected activity by
retaliating against him, including committing the alleged actions to single him out for his
exercise of free speech and to threaten and intimidate him into deleting his criticism of
KCPD practices on a matter of public importance.
57. By engaging in the alleged conduct Defendants sought to punish Plaintiff
for exercising his First Amendment rights, to silence him, and deter him from posting
criticisms of the KCPD in the future.
58. Defendants’ retaliatory actions were substantially motivated by Plaintiff’s
exercise of his First Amendment rights and the content and viewpoint expressed in his
speech.
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59. The chronology of the events demonstrates a causal connection between
Plaintiff’s protected speech and the Defendants’ actions to chill that particular speech and
other similar speech. But for Plaintiff’s Twitter post, Captain Gottstein, Sergeant Majors,
and Officer Doe would never have engaged in the alleged intimidating acts designed to
strong-arm Plaintiff into deleting his Twitter post.
60. Plaintiff has a clearly established right under the First Amendment not to
suffer retaliation for engaging in protected free speech. Any reasonable law enforcement
officer and law enforcement institution knows of this clearly established right.
61. Defendant BOPC failed to properly train and supervise officers with respect
to the First Amendment, the rights of persons like Plaintiff to exercise free speech under
the First Amendment, and the appropriate means of responding without retaliation to
messages critical of law enforcement.
62. Defendants’ intentional actions as described herein deliberately deprived
Plaintiff of rights, privileges, liberties, and immunities secured by the Constitution of the
United States.
63. Defendants’ custom, policy and practice of permitting officers to retaliate
against citizens who exercise their First Amendment right to criticize law enforcement is
not a reasonable regulation of constitutionally protected activities.
64. Defendants acted under color of state law when they deprived Plaintiff of
his right to free speech critical of the government and when they committed the alleged
intimidating actions that caused Plaintiff to delete his Twitter posts.
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speech in a public forum. These violations of the First Amendment are also continuing
and causing irreparable harm.
Count III
Conspiracy to Violate Constitutional Rights Under 42 U.S.C. §§ 1983 and 1985
68. With a meeting of the minds for an unlawful objective, the KCPD Officers
conspired and acted in concert to deny Plaintiff his constitutional rights via coordinated
acts of intimidation designed to force Plaintiff to delete his Twitter post critical of KCPD
practices.
69. Plaintiff was thereby injured and deprived of the ability to exercise his Con-
stitutional right to free speech on important public issues.
speech in a public forum. These violations of the First Amendment are also continuing
and causing irreparable harm.
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Count IV
Grounds for Injunctive Relief
72. Plaintiff Incorporates paragraphs 1-71 as if fully set forth herein.
73. The Plaintiff is a citizen of Kansas City, Missouri under the patrolling juris-
dictions of the KCPD controlled by the BOPC.
74. As alleged above, Plaintiff has been injured by the acts of the BOPC and the
KCPD Officers. This conduct is likely to continue and threatens future harm to Plaintiff
and other member of the community.
75. One set of likely recurring constitutional violations involves intimidating
and retaliatory responses of KCPD officers to public criticism of law enforcement made
through social media channels like Twitter, which will continue to occur because of the
lack of a formal written policy by the BOPC controlling such conduct.
76. These violations will cause irreparable harm to citizens whose rights of free
speech are chilled by retaliatory conduct. The balance of harms and public interest favor
enactment of a policy to expressly prohibit such retaliatory conduct.
77. Another form of likely recurring harmful conduct involves the KCPD’s new
practice adopted since the DeValkenaere conviction in which KCPD officers refuse to in-
vestigate or take appropriate action in response to apparent crimes on personal property
even when exigent circumstances exist to justify immediate action without a warrant. As
confirmed by Captain Gottstein, the KCPD’s standard policy and practice is that officers
will not enter into a personal residence to stop a crime in progress without a warrant, an
invitation from the owner, or indications far exceeding the normal standard of exigent
circumstances.
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78. This new policy and practice stems from a gross misinterpretation of the
facts and ruling in the case of State of Missouri v. Eric J DeValkenaere, case no. 2016-CR02823
(2021). In that case an officer was convicted of involuntary manslaughter in the second
degree and armed criminal action for shooting an unarmed citizen in his home. In a bench
trial, the court explained its finding of conviction as follows:
[D]efendant . . . had no probable cause to believe that a crime had

been committed by Cameron Lamb; . . . no exigent circumstances as
that phrase has been defined by the law justified their presence on
the property at 4154 College that day. . . . [Defendant] had only rea-
sonable suspicion that criminal activity was afoot. Transcript of State
of Missouri v. Eric J DeValkenaere, case no. 2016-CR02823 (2021): Pg.
698, Ln 16-25.
Sgt. Schwalm and defendant were the initial aggressors in the en-
counter with Cameron Lamb on December 3rd, 2019, and had a duty
to retreat from the encounter under the circumstances. Transcript of
State of Missouri v. Eric J DeValkenaere, case no. 2016-CR02823 (2021):
Pg. 702, Ln. 20-23.
Sgt. Schwalm and [defendant] were unlawfully on the property, that

they were both escalating a situation that previously had deesca-
lated, and that their actions created or exacerbated the risk that what
ultimately occurred would. Transcript of State of Missouri v. Eric J
DeValkenaere, case no. 2016-CR02823 (2021): Pg. 70, Ln. 18-22.
The Court concludes that this conduct was a gross deviation from
the standard of care that a reasonable person would exercise in the
situation and constituted criminal negligence as that phrase is de-
fined under Missouri law. were unlawfully on the property, that
they were both escalating a situation that previously had deesca-
lated, and that their actions created. Transcript of State of Missouri v.
Eric J DeValkenaere, case no. 2016-CR02823 (2021): Pg. 703:704, Ln. 23-
2.
79. In other words, DeValkenaere was convicted because he shot a man in his
own home when he did not have probable cause a crime was being committed and was
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the initial aggressor with a duty to retreat. His conduct in the situation deviated markedly
from the standard of care that a reasonable person would exercise.
80. The BOPC and Captain Gottstein grossly misinterpret the Court’s decision
in DeValkenaere because nothing in this case precludes an officer from entering a house to
stop a crime in progress when exigent circumstances exist.
81. In the case of Plaintiff’s neighbor’s house, there was an obvious break-in
with an unknown assailant who appeared to still be in the house. On those facts, officers
had probable cause the believe a crime was being committed and there were exigent cir-
cumstances to protect the lives and property of the people possibly inside the dwelling
or owners of the dwelling from an active break in. Probable cause included: (1) a witness,
Plaintiff, to an unknown intruder in the dwelling; (2) Plaintiff describing the loud noise,
the open door, and the unknown intruder turning on lights; and (3) officers seeing a door
open to the dwelling at approximately 1:30 AM in the morning, an unusual time to have
a door to your home wide open. Exigent circumstances included: (1) probable cause of a
residential burglary in progress; and (2) probable cause of the need to prevent the crimi-
nal suspect’s escape.
82. Even without an exigent circumstance, officers had probable cause a crime
was being committed and an option to obtain a warrant for entry on the premises.
83. The responding officers chose to do none of these things. Instead, they left
the property without taking any action against a potentially violent crime in progress that
posed an ongoing threat because they claim their “hands were tied” by a faulty and dis-
ingenuous interpretation of the DeValkenaere ruling.
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84. The BOPC, KCPD, and its officers have essentially said that they will not
respond to crimes in progress inside a residential property unless they have consent of
the owner to enter the property or absolute immunity from liability for their subsequent
actions. This policy and practice leaves citizens without proper police response to ensure
their safety in circumstances like those encountered by Plaintiff.
85. The possibility of irreparable harm to the Plaintiff and community is clear
and present if this practice continues. It is quite literally a matter of life or death in some
cases, and in all cases it is a matter of general public safety and peace of mind in appro-
priate police response to situations of dangerous criminal activity.
86. The new KCPD policy and practice of hands-off policing adopted since the
DeValkenaere ruling is contrary to the public interest. The balance of harms weighs heavily
in favor of returning to the policy and practice of responding to reported crimes in place
before the DeValkenaere ruling, where officers were not indiscriminately prohibited from
entering personal residences with probable cause or in exigent circumstances.
Relief Requested
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in his fa-
vor and against each of the Defendants, and award him all relief allowed by law or equity,
including but not limited to the following:
1. Recovery of damages, including economic losses on all claims as allowed
by law; compensatory and consequential damages, including damages for
emotional distress, humiliation, loss of enjoyment of life, and other pain
and suffering on all claims allowed by law in an amount to be determined
21
at trial; punitive damages on all claims allowed by law and in an amount to
be determined at trial; attorneys’ fees and the costs associated with this ac-
tion, on all claims allowed by law under §1983; and pre-and post-judgment
interest at the lawful rate.
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2. Injunctive relief, including:
a. Mandated adoption of a formal written policy by the BOPC that will
instruct KCPD officers on the appropriate response to social media
criticism and specifically restrict them from engaging in any retalia-
tory conduct against such criticism; and
b. Return to the pre-DeValkenaere policy and practice of entering personal
residences or property without a warrant when justified by probable
cause or exigent circumstances.
3. All other appropriate relief in law or equity as the Court may deem just and
proper in the circumstances.
Demand for a Jury Trial
Plaintiff hereby demands a trial by jury on all claims and issues so triable.
Respectfully submitted,
KRIGEL & KRIGEL, P.C.

By: /s/ Sarah J. Duggan
Stephen J. Moore Mo. Bar #59080
Sarah J. Duggan Mo. Bar #73687
4520 Main Street, Suite 700
Telephone: 816-756-5800
Facsimile: 816-756-1999
sjmoore@krigelandkrigel.com
sduggan@krigelandkrigel.com
Attorneys for Plaintiff Daniel Fox
23
JS 44 (Rev. 04/21) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
Board of Police Commissioners of Kansas City,
Daniel Fox
Captain James Gottstein, Sergeant Williams Majors
(b) County of Residence of First Listed Plaintiff Jackson County of Residence of First Listed Defendant Jackson
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Sarah J. Duggan and Stephen J. Moore, Krigel & Krigel,
P.C. 4520 Main St., Ste. 700, Kansas City, MO
816-756-5800
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ INTELLECTUAL 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. 1983, 1985
VI. CAUSE OF ACTION Brief description of cause:
First Amendment Violations
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
08/12/2022 /s/Sarah J. Duggan
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE

Case 4:22-cv-00526-BP Document 1-1 Filed 08/12/22 Page MAG.
1 ofJUDGE
2
JS 44 Reverse (Rev. 04/21)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then
the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statute.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service.
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 4:22-cv-00526-BP Document 1-1 Filed 08/12/22 Page 2 of 2

Fox v. BOPC Et Al Western District of Missouri

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Fox v. BOPC Et Al Western District of Missouri

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

1. In December of 2019, police officer Eric DeValkenaere shot and killed an

Case 4:22-cv-00526-BP Document 1 Filed 08/12/22 Page 1 of 23

2. In July of 2022, Plaintiff reported an active break-in of his neighbor’s house.

of force to “stop by and talk to” Plaintiff about the matter.

matters of public importance without retaliation. These Constitutional violations have

to procure injunctive relief to prevent future recurrence of these violations.

Kansas City, Missouri.

6. Defendant BOPC is a governmental body created pursuant to Mo. Rev. Stat.

7. Defendant Captain James Gottstein is an individual who is a citizen of the

is filed against Defendant Gottstein in his individual and official capacity.

8. Defendant Sergeant William Majors is an individual who is a citizen of the

against Sergeant Majors in his individual and official capacity.

Officer Doe in his individual and official capacity.

Jurisdiction and Venue

is a civil action arising under the Constitution of the United States.

claims occurred in the State of Missouri.

occurred in this judicial district.

Background Facts Common to All Counts

son who had kicked in the door of his neighbor’s house.

the neighbor’s house.

mately ten minutes after their arrival.

because “their hands were tied.”

Responding Officer replied that her “hands were tied.”

had handled the incident.

21. At approximately 8:30 AM that same morning, Plaintiff posted a video to

no effort whatsoever to meaningfully address the situation or resolve the threat.

to help him understand the inaction.

fendant Captain James Gottstein.

in the circumstances described below).

impression a show of force was necessary during this encounter.

they wanted to “stop by and talk to” Plaintiff’s husband.

coming to the door.

help as “begging for attention.”

that the department would not be able to keep him safe.

at KCPD. Instead of directing Plaintiff to make a formal written complaint or forwarding

Plaintiff’s informal complaint to the Office of Community Complaints as instructed in the

idate Plaintiff into deleting his critical Twitter post.

to feel threatened, unsafe, and intimidated. Those actions include:

a. The Initial Responding Officers refusing to act.

b. Captain Gottstein’s aggressive voicemail:

i. Threatening Plaintiff that he was “begging for attention”;

iv. Threatening Plaintiff that he will only be safe if a judicial ruling is

v. Declining to follow KCPD policy for responding to citizen com-

i. Visiting at a late hour with no confirmation they were welcome;

reason throughout the entirety of their non-emergency visit;

than the Initial Responding Officers; and

hip, while speaking to the Plaintiff’s wife about wanting to “stop by

and talk” to Plaintiff.

post critical of the KCPD actions.

informal police policies and procedures.

Amendment right to free speech.

First Amendment right to free speech.

42. In the alternative, Defendant BOPC committed a deliberately indifferent

a. Defendant BOPC has a policy regarding First Amendment protections in

some circumstances, including Policy No. 21-04 related to the protection of

the right the assembly in the event of public protest.

b. This policy acknowledges that protecting the First Amendment rights of

citizens is crucial to abiding by the United States Constitution.

c. Despite that acknowledgment, the BOPC declined to create a written policy

outlining First Amendment protections for speech on internet platforms,

failed to train and supervise KCPD officers in appropriately responding to

on a regular basis demonstrates the BOPC’s deliberate indifference to the