The case has been assigned to Senior United States District Court Judge Henry Lee Adams, Jr., a fair jurist, who ruled for the plaintiffs in 2005 Bridge of Lions Rainbow flags First Amendment case against City of St. Augustine. Read Mendez v. St. Johns County civil rights complaint and docket from PACER, below this article, from Jacksonville, Florida Times-Union
Civil rights lawsuit filed against St. Johns County, officers in immigrant's case
Attorneys for the Guatemalan immigrant charged with aggravated manslaughter of an officer have filed a federal civil rights lawsuit against that officer’s estate, another lieutenant and St. Johns County.
The lawsuit seeks compensatory damages for 19-year-old Virgilio Aguilar Mendez citing violations of the Americans with Disabilities Act and Rehabilitation Act. It names the county, the late Sgt. Michael Kunovich and Lt. Jose Jimenez.
Aguilar Mendez’s native language is Mam, not Spanish or English, according to the filing. His limited understanding of English and Spanish is his disability, and he was denied an interpreter at the scene and at the Sheriff’s Office to allow him to understand his Miranda rights before Jimenez interrogated him.
The lawsuit does not note that Jimenez questioned him in Spanish, which is referenced in arrest documents, but states Mam “translation into other languages, such as Spanish or English, can take on a different structure.”
A judge has already ruled Aguilar Mendez incompetent to proceed to trial due to his language barrier and inability to aid in the preparation of his case or understand the legal system. He is undergoing treatment and training while in the Volusia County jail to determine if he can move forward.
What happened to Virgilio Aguilar Mendez?
The complaint provides the following summary of the arrest of Aguilar Mendez, who was 18 at the time and also charged with resisting an officer with violence.
After completing his workday at a farm on May 19, he arrived back at the Super 8 Motel where he was staying in St. Augustine. While Aguilar Mendez was eating outside about 9 p.m., Kunovich self-initiated a call for service to the vicinity in regard to a “suspicious person” who was a “Hispanic male.”
Sgt. Kunovich’s self-initiated call did not identify any possible crimes that he witnessed,” according to the summary.
Aguilar Mendez was on the phone with his mother when the sergeant stopped him. In Mam he told his mother he did not understand why he was being approached.
“Aguilar Mendez was walking on a public sidewalk and speaking with his mother, which is not a crime,” the lawsuit states. “When Sgt. Kunovich seized Aguilar Mendez, he stopped and did not try to flee.”
He was confused by the officer’s aggressive manner and questions, responding “I'm sorry no speak no speak English.”
“It was clear to Sgt. Kunovich that Aguilar Mendez had limited English proficiency, and Sgt. Kunovich made no attempts, under SJCSO policy, to communicate with Aguilar Mendez in another language,” the lawsuit states. “Without provocation or justification, Sgt. Kunovich then physically seized Aguilar Mendez without any reasonable suspicion of any crime, misdemeanor or felony, and illegally searched Aguilar Mendez’s person.”
Aguilar Mendez did not understand why the officer was trying to restrain him and began to resist in a non-violent manner out of fear.
Deputy Gavin Higgins was the first deputy to arrive as backup and put Aguilar Mendez in a chokehold. Deputy George Montgomery was the second to arrive and body slammed and repeatedly struck him, also seen on officers' body-worn camera videos.
“Unable to understand the brutality of the officers, Aguilar Mendez began to cry out for his family,” according to the lawsuit. “In the video, he says several times “familia” (family) and, in response to commands, says that he does not understand or speak English. In the video, Aguilar Mendez can be heard screaming in pain when he is tased six times by Sgt. Kunovich over two minutes. Without question, Aguilar Mendez did not understand the purpose or reason for the officers to pile on him, to physically strike him multiple times, and the repeated use of a taser by Sgt. Kunovich.”
They did not give him his Miranda rights or attempt to obtain an interpreter for him, pursuant to Sheriff’s Office policy, the lawsuit says. About 10 minutes after Aguilar Mendez was placed in a patrol car, Kunovich collapsed in medical distress and died from what the medical examiner ruled were natural causes. He was 52.
Jimenez questioned the 18-year-old afterward at the Sheriff’s Office and, like Kunovich, ”knew there was a substantial likelihood that Aguilar Mendez would be unable to communicate effectively, absent any interpretive aid for Mam, and ignored Aguilar Mendez’s statutory rights and SJCSO’s policies regarding limited English proficiency,” according to the lawsuit.
Spanish-speaking deputy was called to scene
A Sheriff’s Office spokesman said he would consult the county’s general counsel for comment but didn’t think they had received anything formal yet concerning the lawsuit.
The lawsuit does not mention that Aguilar Mendez had to be disarmed of a knife that he had retrieved from a pocket toward the end of the struggle and also can be seen in the bodycam video, nor does it reference another responding officer who speaks Spanish.
A Sheriff’s Office supplemental report states that Deputy Matheus Alves was called to the scene as a backup and “believes Sergeant Kunovich specifically requested him because the subject he was out with was a Hispanic male and he needed a deputy who spoke Spanish. … Deputy Alves stated he was not sure if the suspect understood what he was telling him in Spanish during the struggle but based on conversations with him afterward he knew he understood Spanish.”
Another deputy, Brian Armenta, in the supplemental report said he heard over the dispatch “Kunovich specifically request Deputy Alves respond and assumed he was requesting him due to his ability to speak Spanish.”
Case 3:24-cv-00195-HLA-PDB Document 1 Filed 02/19/24 Page 1 of 12 PageID 1
VIRGILIO AGUILAR MENDEZ, individually,
Plaintiff, vs.
ST. JOHNS COUNTY, a political subdivision of the State of Florida;
MICHAEL KUNOVICH, through his personal representative of his estate, in his official capacity as a St. Johns County police officer and his individual capacity as a St. Johns County police officer;
JOSE JIMENEZ, in his official capacity as a St. Johns County police officer and his individual capacity as a St. Johns County police officer,
Defendants.
COMPLAINT
JURY TRIAL DEMANDED
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
Plaintiff, VIRGILIO AGUILAR MENDEZ, individually, sues Defendants, ST. JOHNS COUNTY, a political subdivision of the State of Florida; MICHAEL KUNOVICH, through his Personal Representative of his Estate; and JOSE JIMENEZ, and alleges as follows:
NATURE OF THE ACTION
1. This is a federal civil rights action for damages, pursuant to Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12132, et seq., and
Case 3:24-cv-00195-HLA-PDB Document 1 Filed 02/19/24 Page 2 of 12 PageID 2
Section 504 of the Rehabilitation Act, (“Section 504”), 29 U.S.C. §§ 701, et seq., to redress discrimination against people with disabilities.
PARTIES
2. Plaintiff, VIRGILIO AGUILAR MENDEZ (“Aguilar Mendez”), is sui juris and is an adult person living in the State of Florida. Aguilar Mendez is Guatemalan with indigenous ancestry of Mayan descent.
3. Defendant, ST. JOHNS COUNTY, is a political subdivision of the State of Florida. The St. Johns Sheriff’s Office (“SJCSO”) is and was at all times material hereto a county agency, providing the vehicle through which the County fulfills its policing functions.
4. Defendant, the PERSONAL REPRESENTATIVE of the ESTATE OF MICHAEL KUNOVICH, is sui juris. Upon information and belief, Sergeant Michael Kunovich was employed by the SJCSO from 1997 until May 19, 2023, when he died from natural causes. Before his death, Sgt. Kunovich was sui juris and was an adult citizen of the State of Florida. Sgt. Kunovich is sued in both his official capacity and his individual capacity.
5. Defendant, SERGEANT JOSE JIMENEZ, is sui juris and is an adult citizen of the State of Florida. Sgt. Jimenez is sued in both his official capacity and his individual capacity.
COMPLAINT - 2
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SUBJECT MATTER JURISDICTION
6. This Court has jurisdiction over the subject matter in this action, pursuant to 28 U.S.C. §§ 1331, 1343, because this action involves federal questions raised by the Civil Rights Act, 42 U.S.C. §§ 1983, 1988, et seq.
PERSONAL JURISDICTION
7. This Court has general in personam jurisdiction over Defendants because they are found in the State of Florida.
VENUE
8. Venue is proper in this Court, pursuant to 28 U.S.C. § 1391(b)(1), because Defendants reside in the same state: Florida.
9. The Jacksonville Division of this Court is proper, pursuant to Local Rule 1.04, because the claims accrued in St. John’s County, FL.
GENERAL ALLEGATIONS
Language Barriers
10. Aguilar Mendez was raised in a small rural village, Colotenango, in the mountains of Guatemala.
His native language is Mam, not Spanish or English.
Mam is an ancient Mayan language spoken by the Mam people, who
are indigenous to the highlands of western Guatemala and eastern Chiapas, Mexico. Mam is one of several Mayan languages spoken in Guatemala, along with K’iche’, Kaqchikel, Q’anjob’al, and Tz’utujil, among others. The Mam language is spoken
COMPLAINT - 3
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by around 500,000 people in Guatemala and Mexico, and it is an important part of the cultural identity of the indigenous people. Mam is used in a variety of settings, including at home, in the community, and in religious ceremonies.
13. While a sentence might be phrased in a specific manner in Mam, its translation into other languages, such as Spanish or English, can take on a different structure, maintaining the essence but adapting to the linguistic norms of the target language.
14. Aguilar Mendez entered the United States with hopes to work and send money home to his mother and father, for money to buy corn for his younger brothers and sisters to eat.
15. He moved to Florida in or about September 2022, specifically moving to St. Augustine in or about May 13, 2023, and then resided at a Super 8 Motel.
16. In St. Augustine, Aguilar Mendez gained employment in the farms, harvesting watermelons and peppers.
The Incident
17. After completing his workday on May 19, 2023, Aguilar Mendez arrived back at the Super 8 Motel.
18. While eating, he saw an SJCSO officer driving by, which was later determined to be Sgt. Kunovich.
19. At approximately 9:00 PM on May 19, 2023, Sgt. Kunovich self- initiated a call for service to the vicinity to the Super 8 Motel located at 2550 State
COMPLAINT - 4
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Road 16, St. Augustine, FL 32092, in regard to a “suspicious person,” who was a “Hispanic male” (Aguilar Mendez).
20. Sgt. Kunovich’s self-initiated call did not identify any possible crimes that he witnessed.
The incident was videotaped by Sgt. Kunovich’s bodycam.
Sgt. Kunovich approached Aguilar Mendez while he was walking
between the Super 8 Motel and the gas station convenient store.
23. Sgt. Kunovich did not witness any crimes in that area between the Super 8 Motel and the gas station convenient store.
24. Aguilar Mendez was on the phone speaking with his mother when Sgt. Kunovich stopped him and immediately seized him on the north side of State Road 16.
25. On the call with his mother, Aguilar Mendez (in Mam) stated that he did not understand why Sgt. Kunovich was approaching him.
26. Aguilar Mendez was walking on a public sidewalk and speaking with his mother, which is not a crime.
27. When Sgt. Kunovich seized Aguilar Mendez, he stopped and did not try to flee.
Aguilar Mendez was confused as to why Sgt. Kunovich stopped him.
Unlike hundreds of other cases, where the police officer gets out of the
patrol vehicle and begins to question the suspect in a courteous and calm manner,
COMPLAINT - 5
Case 3:24-cv-00195-HLA-PDB Document 1 Filed 02/19/24 Page 6 of 12 PageID 6
Sgt. Kunovich can be heard on his bodycam immediately yelling at Aguilar Mendez in a very aggressive manner.
30. Sgt. Kunovich unnecessarily elevated the situation by saying “when you saw me, you got up and walked away. Why? WHY!”
31. Aguilar Mendez gestured “eating,” “tienda” (store), and “drink” in the direction to the gas station convenient store in response to Sgt. Kunovich’s commands and stated, “I'm sorry no speak no speak English (sic).”
Sgt. Kunovich did not speak Mam (nor Spanish).
It was clear to Sgt. Kunovich that Aguilar Mendez had limited English
proficiency, and Sgt. Kunovich made no attempts, under SJCSO policy, to communicate with Aguilar Mendez in another language.
34. Without provocation or justification, Sgt. Kunovich then physically seized Aguilar Mendez without any reasonable suspicion of any crime, misdemeanor or felony, and illegally searched Aguilar Mendez’s person.
Aguilar Mendez did not consent to Sgt. Kunovich’s search and seizure.
In the bodycam video, Sgt. Kunovich grabs Aguilar Mendez’s arm and
says, “don’t walk away from me!” even though Aguilar Mendez never tried to pull away from Sgt. Kunovich at that moment and before.
37. Aguilar Mendez is repeatedly heard on the video saying in broken English, “I’m sorry, I’m sorry.”
Sgt. Kunovich then threw Aguilar Mendez to the ground, violently.
Sgt. Kunovich then tased Aguilar Mendez several times.
COMPLAINT - 6
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40. Aguilar Mendez did not understand why Sgt. Kunovich was trying to restrain him.
41. When attacked by Sgt. Kunovich, Aguilar Mendez began to resist arrest in a mild and non-violent manner out of fear.
42. Dep. Gavin Higgins was the first deputy to arrive at the scene, after Sgt. Kunovich.
Dep. Higgins put Aguilar Mendez in a choke hold.
Dep. George Montgomery was the second deputy to arrive at the scene.
Dep. Montgomery pulled Aguilar Mendez from his throat and body
slammed Aguilar Mendez. Dep. Montgomery then repeatedly hit Aguilar Mendez’s left arm and left shoulder. In addition, he delivered multiple knees strikes to Aguilar Mendez.
46. Unable to understand the brutality of the officers, Aguilar Mendez began to cry out for his family. In the video, he says several times “familia” (family) and, in response to commands, says that he does not understand or speak English.
47. In the video, Aguilar Mendez can be heard screaming in pain when he is tased six times by Sgt. Kunovich over two minutes.
48. Without question, Aguilar Mendez did not understand the purpose or reason for the officers to pile on him, to physically strike him multiple times, and the repeated use of a taser by Sgt. Kunovich.
49. Dep. Higgins and Dep. Montgomery placed handcuffs on Aguilar Mendez, on his back.
COMPLAINT - 7
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50. Aguilar Mendez remained calm and complied with each of the officers’ commands as directed, without incident, and did not at any point physically or verbally threaten the officers.
51. At the time of arrest, the SJCSO did not give Aguilar Mendez his Miranda rights, nor did the SJCSO attempt to obtain an interpreter for Aguilar Mendez, pursuant to SJCSO policy, so he could appropriately understand the rights that he was waiving by giving his answers.
52. About 10 minutes after the arrest was complete and Aguilar Mendez was in the car patrol, Sgt. Kunovich, who was 52 years old, had a sudden heart attack at the scene and was pronounced dead.
53. All general and statutory conditions precedent to this action have either occurred or have been waived by operation of law.
54. The undersigned counsels are entitled to recover reasonable fees in this action, pursuant to 42 U.S.C. § 12205.
COUNT I
Violation of Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12132, et seq. St. Johns County
Sgt. Micheal Kunovich, in his Official and Individual Capacity Sgt. Jose Jimenez, in his Official and Individual Capacity
55.
through 53, above, as though fully alleged herein.
Aguilar Mendez re-alleges the allegations set forth in paragraphs 2
56. Aguilar Mendez has limited English proficiency.
COMPLAINT - 8
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57. He is an individual with a disability who has a record of such an impairment, including but not limited to statements made to the SJCSO that he does not understand English.
58. Aguilar Mendez is qualified to participate in or receive the benefit of some of SJCSO’s services, programs, or activities, pursuant to SJCSO Policy 81.13 and other SJCSO policies.
59. Aguilar Mendez was excluded or denied the benefits of the SJCSO’s services, programs, or activities, or was otherwise discriminated against by the SJCSO .
60. The SJCSO’s decision to exclude, deny, or discriminate was because of Aguilar Mendez’s disability.
61. According to SJCSO Policy 81.13, the Office makes reasonable accommodations for Limited English Proficient persons by using “LanguageLine” Services, which is a service available any time of the year with interpreters and translators.
62. The LanguageLine is an American company who provides on-demand and onsite language interpretation and document translation services worldwide for law enforcement, healthcare organizations, courts, schools, and businesses in over 240 languages. The LanguageLine is the largest interpretation services provider in the world. It has more than 28,000 clients, including the SJCSO.
63. Aguilar Mendez repeatedly told Sgt. Kunovich that he did not understand English.
COMPLAINT - 9
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64. After the arrest, the SJCSO also failed to give Aguilar Mendez a Mam interpreter at the station to allow him to understand his Miranda rights before Sgt. Jose Jimenez interrogated Aguilar Mendez.
Aguilar Mendez told Sgt. Jimenez that he did not understand English.
But both sergeants knew there was a substantial likelihood that Aguilar
Mendez would be unable to communicate effectively, absent any interpretive aid for Mam, and ignored Aguilar Mendez’s statutory rights and SJCSO’s policies regarding limited English proficiency.
67. In addition, the SJCSO denied Aguilar Mendez with an interpreter for medical assistance regarding the injuries by Sgt. Kunovich, Dep. Higgins, and Dep. Montgomery from the incident on May 19, 2023.
68. Sgt. Kunovich did not use the LanguageLine even when there were no exigent circumstances before he illegally searched and seized Aguilar Mendez.
69. There were also no exigent circumstances after the arrest where the SJCSO could have used the LanguageLine before they violated several of Aguilar Mendez’s constitutional rights when Sgt. Jimenez interrogated Aguilar Mendez.
70. By virtue of Sgt. Kunovich and Sgt. Jimenez’s upper rank in the SJCSO, both Sgt. Kunovich and Sgt. Jimenez had the authority to address the alleged discrimination and to institute corrective measures on the SJCSO’s behalf.
71. Sgt. Kunovich and Sgt. Jimenez made an official deliberate choice not to provide interpretive aid, including using the LanguageLine.
COMPLAINT - 10
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72. St. Johns County is liable for compensatory damages for the statutory violation in this Count from Sgt. Kunovich and Sgt. Jimenez because they were deliberately indifferent and made official actions on behalf of St. Johns County.
WHEREFORE, Plaintiff, VIRGILIO AGUILAR MENDEZ, demands judgment against Defendants, ST. JOHNS COUNTY, a political subdivision of the State of Florida, PERSONAL REPRESENTATIVE of the ESTATE OF MICHAEL KUNOVICH, and JOSE JIMENEZ, and respectfully requests the entry of an Order awarding Aguilar Mendez with (i) nominal, compensatory, and special damages; (ii) injunctive relief; (iii) reasonable attorneys’ fees; (iv) costs of the action; (v) prejudgment interest; and (vi) any such other, further, and different relief as the Court deems appropriate.
COUNT II
Violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq.
St. Johns County
Sgt. Micheal Kunovich, in his Official and Individual Capacity Sgt. Jose Jimenez, in his Official and Individual Capacity
73.
through 53 and 55 through 72, above, as though fully alleged herein.
Aguilar Mendez re-alleges the allegations set forth in paragraphs 2
74. The SJCSO receives federal financial assistance through St. Johns County .
WHEREFORE, Plaintiff, VIRGILIO AGUILAR MENDEZ, demands judgment against Defendants, ST. JOHNS COUNTY, a political subdivision of the State of Florida, PERSONAL REPRESENTATIVE of the ESTATE OF MICHAEL
COMPLAINT - 11
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KUNOVICH, and JOSE JIMENEZ, and respectfully requests the entry of an Order awarding Aguilar Mendez with (i) nominal, compensatory, and special damages; (ii) injunctive relief; (iii) reasonable attorneys’ fees; (iv) costs of the action; (v) prejudgment interest; and (vi) any such other, further, and different relief as the Court deems appropriate.
DATED: February 19, 2024
Respectfully submitted,
/s/ Coleman Watson
Coleman W. Watson, Esq.
Florida Bar. No. 0087288
California Bar No. 266015
Georgia Bar No. 317133
New York Bar No. 4850004
Email: coleman@alexanderhero.com
ALEXANDER HERO
P.O. Box 3586 Orlando, FL 32802 Tel: (917) 796-6055
-and-
Phillip Arroyo, Esq.
Florida Bar No. 1022409
Email: phillip@chillcallphil.com Josephine B. Arroyo, Esq.
Florida Bar No. 93714
Email: josephine@chillcallphil.com
THE ARROYO LAW FIRM
390 N. Orange Ave., Ste 2185 Orlando, FL 32801
Tel: (407) 770-9000
Attorneys for Plaintiffs
COMPLAINT - 12
Federal Court docket sheet from PACER:
U.S. District Court
Middle District of Florida (Jacksonville)
CIVIL DOCKET FOR CASE #: 3:24-cv-00195-HLA-PDB
Aguilar Mendez v. St. Johns County et al Assigned to: Senior Judge Henry Lee Adams, Jr Referred to: Magistrate Judge Patricia D. Barksdale Cause: Americans with Disabilities Act | Date Filed: 02/19/2024 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question |
| Plaintiff | ||
| Virgilio Aguilar Mendez individually | represented by | Coleman W. Watson Alexander Hero P.O. Box 3586 Orlando, FL 32802 917-796-6055 Email: coleman@alexanderhero.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Josephine Marie Balzac Law Office of Josephine Balzac 601 Oak Circle Oviedo, FL 32765 407/687-2108 Fax: 407/392-2779 Email: jbalzac.law@gmail.com ATTORNEY TO BE NOTICED Phillip H. Arroyo The Arroyo Law Firm 390 N Orange Ave Suite 2185 Orlando, FL 32801 407-770-9000 Fax: 407-770-9000 Email: Phillip@ChillCallPhil.com ATTORNEY TO BE NOTICED |
V. | ||
| Defendant | ||
| St. Johns County a political subdivision of the State of Florida | ||
| Defendant | ||
| Michael Kunovich through his personal representative of his estate, in his official and individual capacity as a St. Johns County police officer | ||
| Defendant | ||
| Jose Jimenez in his official and individual capacity as a St. Johns County police officer | ||
| Date Filed | # | Docket Text |
|---|---|---|
| 02/19/2024 | 1 | COMPLAINT against Jose Jimenez, Michael Kunovich, St. Johns County with Jury Demand (Filing fee $405 receipt number AFLMDC-21780533) filed by Virgilio Aguilar Mendez. (Attachments: # 1 Civil Cover Sheet)(Watson, Coleman) (Entered: 02/19/2024) |
| 02/19/2024 | 2 | NOTICE of Lead Counsel Designation by Coleman W. Watson on behalf of Virgilio Aguilar Mendez. Lead Counsel: Coleman W. Watson, Esq.. (Watson, Coleman) (Entered: 02/19/2024) |
| 02/19/2024 | 3 | CERTIFICATE of interested persons and corporate disclosure statement by Virgilio Aguilar Mendez. (Watson, Coleman) (Entered: 02/19/2024) |
| 02/20/2024 | 4 | NEW CASE ASSIGNED to Senior Judge Henry Lee Adams, Jr and Magistrate Judge Patricia D. Barksdale. New case number: 3:24-cv-00195-HLA-PDB. (JK) (Entered: 02/20/2024) |
| 02/20/2024 | 5 | NOTICE TO COUNSEL Josephine Marie Balzac of Local Rule 2.01(b)(2)(B), which requires members of the Middle District bar to maintain with the clerk a current telephone number, mailing address, and email address. Update your contact information for the Middle District through PACER. (Signed by Deputy Clerk). (JK) (Entered: 02/20/2024) |
| 02/20/2024 | 6 | NOTICE of Local Rule 3.02(a)(2), which requires the parties in every civil proceeding, except those described in subsection (d), to file a case management report (CMR) using the uniform form at www.flmd.uscourts.gov. The CMR must be filed (1) within forty days after any defendant appears in an action originating in this court, (2) within forty days after the docketing of an action removed or transferred to this court, or (3) within seventy days after service on the United States attorney in an action against the United States, its agencies or employees. Judges may have a special CMR form for certain types of cases. These forms can be found at www.flmd.uscourts.gov under the Forms tab for each judge. (Signed by Deputy Clerk). (MO) (Entered: 02/20/2024) |
The officer probably not in good health to begin with and died in the line of duty as a result. That doesn't warrant a manslaughter charge for the boy. Nobody would suspect that resisting an officer might cause him to drop dead from the struggle. The kid wasn't a big guy. Any other officer probably wouldn't have dropped dead for obvious reasons. Throwing that charge on that boy is retaliation plain and simple. That's a rights violation in itself.
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