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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO KENNETH W. BOHN, Plaintiff, v. CITY OF HOBBS, a municipality, MONTY NEWMAN, in his individual and official capacities, DAN DIBLE, in his individual and official capacities, Defendants. JURY TRIAL DEMANDED No.

COMPLAINT FOR DAMAGES, INJUNCTIVE AND DECLARATORY RELIEF NATURE OF THE ACTION 1. Plaintiff Kenneth W. Bohn brings this action against Defendants City of Hobbs, New Mexico, Monty Newman, Mayor of the City of Hobbs, and Dan Dible, City Manager of the City of Hobbs, due to Defendants' termination of Plaintiff's employment as Chief of Police. Plaintiff alleges that Defendants violated Plaintiff's right to free speech secured by the United States and New Mexico constitutions, as well as New Mexico common law prohibiting retaliatory discharge in violation of public policy. Plaintiff seeks reinstatement and compensatory damages. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1985, the New Mexico Declaratory Judgment Act, NMSA 1978, §§ 44-6-1 to 44-6-15 (1975), and New Mexico common law. JURISDICTION AND VENUE 2. Jurisdiction of this action is conferred on this Court by 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1343. Venue

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lies within this district pursuant to 28 U.S.C. § 1391. PARTIES 3. Plaintiff Kenneth W. Bohn (hereinafter "Bohn") was Chief of Police for Defendant City of Hobbs until his termination on August 11, 2005. Bohn is a resident of Hobbs, New Mexico and at all times relevant was a resident of the City of Hobbs. 4. Defendant City of Hobbs is a municipal corporation that employed Bohn as Chief of Police from June 14, 2004 until August 11, 2005. 5. Defendant Monty Newman is and was, at all times relevant, the Mayor of Hobbs, New Mexico. Newman is and was, at all times relevant, a resident of Hobbs, New Mexico. Defendant Newman is being sued in his individual and official capacities. 6. Defendant Dan Dible is and was, at all times relevant, the City Manager of Hobbs, New Mexico. On behalf of Defendant City of Hobbs, Dible terminated Bohn's employment on August 11, 2005. Dible is and was, at all times relevant, a resident of Hobbs, New Mexico. Defendant Dible is being sued in his individual and official capacities. 7. Defendants are persons within the meaning of 42 U.S.C. §§ 1983 and 1985. 8. At all times relevant, Defendants acted under color of state law. FACTS 9. Bohn was Chief of Police for the City of Hobbs from June 14, 2004 until his termination on August 11, 2005. 10. Bohn was hired as Chief of Police after a nationwide search for a new Chief conducted by the City of Hobbs. 11. Bohn has served in law enforcement for over thirty years.

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12. Prior to serving as Chief of Police for the City of Hobbs, Bohn was the Chief of Police in Franklin, Wisconsin. Bohn's Speech Regarding Pay and Safety Issues 13. As Chief of Police for the City of Hobbs, one of Mr. Bohn's primary duties was to guarantee the safety of his police force and, correspondingly, the citizens of Hobbs. 14. At a June 27, 2005 Hobbs City Commission meeting, Bohn spoke up regarding issues of pay for personnel employed with the Hobbs Police Department. 15. At the June 27, 2005 meeting, Bohn directly addressed safety issues related to the pay issues. 16. Shortly after the June 27, 2005 meeting, Defendant Dible issued Bohn a "draft performance evaluation" setting forth that Dible was upset about Bohn's speech at the meeting. In the draft evaluation, with the exception of criticism Dible included regarding Bohn's remarks at the June 27, 2005 meeting, Bohn received excellent marks for his job performance. 17. At a subsequent City Commission meeting held on July 18, 2005, Hobbs Police Captain Shaw also expressed concern about the pay issues previously raised by Bohn. 18. At the July 18, 2005 meeting, Bohn defended Captain Shaw and expressed support for him. 19. At the July 18, 2005 meeting, the Commission addressed the pay and safety issues by directing Defendant Dible to review the pay inequities in both the Fire and Police Departments. 20. Shortly after the July 18, 2005 meeting, Defendant Dible responded by drafting a letter purporting to resolve the issue, a copy of which he sent via e-mail to Bohn. In the e-mail, Defendant Dible requested Bohn's feedback on the letter. 21. The letter drafted by Dible specifically criticized Captain Shaw and concluded that the Police and Fire Chiefs were in agreement that no pay adjustments were necessary.

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22. On August 9, 2005, Bohn responded to Defendant Dible's request for feedback by disagreeing with Mr. Dible's criticism regarding Captain Shaw and otherwise objecting to the substance of the draft. Bohn's Request for an Audit of the Evidence Room 23. During his employment as Chief of Police, Bohn received multiple complaints regarding unlawful acts committed regarding items in the Hobbs Police Department evidence room prior to Bohn's tenure. 24. The evidence room complaints included allegations of the illegal transfer of evidence weapons to former members of the Hobbs Police Department, missing transfer records, and missing homicide evidence. 25. In or about May 2005, Bohn requested that an independent audit of the evidence room be conducted by the State Auditor's Office in cooperation with the District Attorney's Office. Bohn's Opposition to Hidden Recording Devices at the Hobbs Police Headquarters 26. During his employment as Chief of Police, Bohn discovered audio and video recording devices utilized in recording conversations within the police headquarters during the tenure of previous Police Chiefs. 27. The illicit recording devices included hidden microphones and cameras. Chief Bohn refused to allow use of such devices during his tenure. 28. In or about June 2005, Bohn discovered what appeared to be evidence that the recording devices were paid for utilizing federal asset forfeiture funds, a misuse of funds prohibited by federal law.

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29. In or about June 2005, Bohn began to investigate the apparent misuse of federal asset forfeiture funds. Bohn's Opposition to Racially Discriminatory Practices 30. During his employment as Chief of Police, Bohn opposed racially discriminatory practices within his department. 31. Specifically, Bohn called a halt to double standards used to discipline African-American officers for conduct that Caucasian officers engaged in without sanction. 32. Bohn insisted that department policies be applied consistently regardless of race. 33. Bohn documented discriminatory actions committed by employees of the Hobbs Police Department and issued reprimands. 34. Upon information and belief, Bohn's opposition to racially discriminatory practices resulted in complaints about him made by employees to Defendants. Bohn's Questioning of Potential Witness Testimony 35. On September 29, 2004 former Interim Chief of Police Donald Graham filed suit against the City of Hobbs, Mayor Monty Newman, City Manager Dan Dible, Bohn, the former Hobbs mayor, as well as former and current City Commissioners, for claims arising out of his employment with the City. 36. In a meeting held August 3, 2005 among defendants and their counsel in the Graham lawsuit, Bohn raised questions regarding inconsistencies in possible testimony of Defendant Dible in that litigation. 37. Bohn's questions raised concerns regarding Dible's potentially inconsistent testimony that could conceivably result in perjury by Dible.

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38. In a meeting with Defendant Newman on August 9, 2005, Bohn explained his concerns regarding Dible's potential testimony. The Termination of Bohn's Employment 39. On August 10, 2005, Defendant Dible issued Bohn an ultimatum that he was to resign or be terminated on August 11, 2005. 40. On August 11, 2005, Defendant Dible terminated Bohn's employment. COUNT I VIOLATIONS OF FREE SPEECH RIGHTS SECURED BY THE FIRST AMENDMENT (42 U.S.C. § 1983) 41. Plaintiff incorporates by reference all preceding allegations as if fully set forth herein. 42. Bohn spoke out on a number of issues of public concern, including: a) pay and safety issues; b) unlawful actions regarding the Hobbs Police Department evidence room; c) the use of illicit recording devices at the Hobbs Police Department; d) misuse of federal asset forfeiture funds; e) racially discriminatory practices; and f) potential perjury by a witness in litigation against the City of Hobbs. 43. Defendants' termination of Bohn's employment was in retaliation for Bohn's exercise of rights secured by the First Amendment to the United States Constitution, as applied to Defendants through the Fourteenth Amendment. 44. Defendants acted intentionally and/or with reckless indifference to Plaintiff's rights. 45. Defendants acted willfully, maliciously, wantonly, oppressively, knowingly, in bad faith and with callous and reckless disregard for Plaintiff's constitutional rights. 46. Defendants' acts and omissions were the direct and proximate cause of harm to Plaintiff, including but not limited to: loss wages, benefits, career opportunities, embarrassment, humiliation, emotional distress, pain and suffering, and loss of constitutional rights. 6

COUNT II VIOLATIONS OF FREE SPEECH SECURED BY THE NEW MEXICO CONSTITUTION (DECLARATORY JUDGMENT) 47. Plaintiff incorporates by reference all preceding allegations as if fully set forth herein. 48. Bohn spoke out on a number of issues of public concern, including: a) pay and safety issues; b) unlawful actions regarding the Hobbs Police Department evidence room; c) the use of illicit recording devices at the Hobbs Police Department; d) misuse of federal asset forfeiture funds; e) racially discriminatory practices; and f) potential perjury by a witness in litigation against the City of Hobbs. 49. Defendants' termination of Bohn's employment was in retaliation for Bohn's exercise of rights secured by Article II, Section 17 of the New Mexico Constitution. 50. Article II, Section 17 of the New Mexico Constitution provides broader free speech protection that the First Amendment to the United States Constitution. 51. Defendants acted intentionally and/or with reckless indifference to Plaintiff's rights. 52. Defendants acted willfully, maliciously, wantonly, oppressively, knowingly, in bad faith and with callous and reckless disregard for Plaintiff's constitutional rights. 53. Defendants' acts and omissions were the direct and proximate cause of harm to Plaintiff, including but not limited to: loss wages, benefits, career opportunities, embarrassment, humiliation, emotional distress, pain and suffering, and loss of constitutional rights. COUNT III CONSPIRACY TO VIOLATE CONSTITUTIONAL RIGHTS (42 U.S.C. § 1985) 54. Plaintiff incorporates by reference all preceding allegations as if fully set forth herein. 55. Defendants conspired to violate Bohn's constitutional rights secured by the First and Fourteenth Amendments to the U.S Constitution. 7

56. Defendants acted intentionally and/or with reckless indifference to Plaintiff's rights. 57. Defendants acted willfully, maliciously, wantonly, oppressively, knowingly, in bad faith and with callous and reckless disregard for Plaintiff's constitutional rights. 58. Defendants' acts and omissions were the direct and proximate cause of harm to Plaintiff, including but not limited to: loss wages, benefits, career opportunities, embarrassment, humiliation, emotional distress, pain and suffering, and loss of federal constitutional rights. COUNT IV RETALIATORY DISCHARGE IN VIOLATION OF NEW MEXICO PUBLIC POLICY 59. Plaintiff incorporates by reference all preceding allegations as if fully set forth herein. 60. Bohn's employment was terminated in retaliation for his opposition to unlawful practices including: a) unlawful actions regarding the Hobbs Police Department evidence room; b) the use of illicit recording devices at the Hobbs Police Department; c) misuse of federal asset forfeiture funds; d) racially discriminatory practices; e) potential perjury by a witness in litigation against the City of Hobbs. 61. Defendants termination of Bohn's employment was in violation of the public policy of the State of New Mexico. 62. Defendants acted intentionally and/or with reckless indifference to Plaintiff's rights. 63. Defendants acted willfully, maliciously, wantonly, oppressively, knowingly, in bad faith and with callous and reckless disregard for Plaintiff's rights. 64. Defendants' acts and omissions were the direct and proximate cause of harm to Plaintiff, including but not limited to: loss wages, benefits, and career opportunities, embarrassment, humiliation, emotional distress, and pain and suffering.

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WHEREFORE Plaintiff respectfully requests that: A) the Court enter judgment against each Defendant; B) that the Court order Plaintiff reinstated to his position as Chief of Police for the Hobbs Police Department; C) that the Court award compensatory damages in an amount determined by a jury at trial; D) that the Court award punitive damages against the individual Defendants in an amount to be determined by a jury at trial; E) that the Court award pre- and post-judgment interest; F) that the Court declare Defendants violated Bohn's rights secured by N.M. Const. art. II, § 17; G) that the Court award Plaintiff's reasonable attorneys' fees, expenses, and costs of this action; and H) that the Court award any other further relief as may be just and equitable. Respectfully submitted,

_______________________ Justin Lesky Cooperating Attorney for the New Mexico Civil Liberties Union Law Office of Justin Lesky 8210 La Mirada Pl. NE Ste. 600 Albuquerque, NM 87109 (505) 266-4335 Facsimile (505) 266-1915 George Bach Staff Attorney ACLU of New Mexico P.O. Box 80915 Albuquerque, NM 87198 9

(505) 266-5915 ext. 1007 Facsimile (505) 266-5916 Philip Davis, Co-Legal Director ACLU of New Mexico 814 Marquette NW Albuquerque, NM 87102 (505) 242-1904 Of Counsel

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