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HomeMy WebLinkAbout2023CV228 - Lynne V. Yonce - 12 - Response To Complaint1 DISTRICT COURT, LARIMER COUNTY, COLORADO 201 LaPorte Ave., Ste. 100 Fort Collins, CO 80521 (970) 494-3500  COURT USE ONLY  Plaintiff: STACY LYNNE, Investigative Journalist v. Defendant: JEREMY YONCE, in his official capacity as Internal Affairs records custodian for Fort Collins Police Services Andrew W. Callahan, #52421 – acallahan@wicklaw.com Cassie L. Williams, #58279 – cwilliams@wicklaw.com WICK & TRAUTWEIN, LLC 323 South College Avenue, Suite 3 Fort Collins, CO 80522 Phone & Fax Number: (970) 482-4011 Case No.: 2023 CV 228 Division: 3B RESPONSE TO COMPLAINT AND APPLICATION FOR ORDER TO SHOW CAUSE COMES NOW Defendant Jeremy Yonce, in his official capacity as Internal Affairs records custodian for Fort Collins Police Services, by and through his attorneys, Wick & Trautwein, LLC, and for his Response to Plaintiff’s “Complaint and Application for Order to Show Cause Pursuant to Colorado Open Records Act (CORA) under the authority of Colorado Revised Statutes (C.R.S.) §24-72-201 et seq and Colorado Criminal Justice Records Act (CCJRA) C.R.S. §24-72-301 et seq.” (hereafter, the “Complaint”), states as follows: Introduction Plaintiff’s Complaint arises out of statements John Feyen made during a Facebook Live political campaign event while he was running for Larimer County Sheriff. This event occurred while Mr. Feyen was off duty and out of uniform. Based on statements Mr. Feyen made about Plaintiff at that event, Plaintiff filed a complaint with Fort Collins Police Services in February 2022, which led to an internal investigation into Mr. Feyen’s conduct during the campaign event. DATE FILED: December 1, 2023 5:05 PM FILING ID: F3E860E7E3A18 CASE NUMBER: 2023CV228 2 Over a year later, in March 2023, Plaintiff submitted a request for a copy of the internal affairs investigation about Mr. Feyen’s February 2022 campaign event in furtherance of her civil lawsuit against Mr. Feyen. The City denied her request. The basis for the City’s denial of this request is contained in a March 22, 2023 letter signed by Defendant Jeremy Yonce, a Lieutenant in the Professional Standards Unit of Fort Collins Police Services. A copy of this letter is attached hereto as Exhibit 1. Mr. Yonce denied the request at issue in this case because Mr. Feyen’s conduct at issue in the Internal Affairs investigation was not made “in uniform,” nor was it the “on-duty conduct of a police officer.” Accordingly, the mandatory disclosure requirements of C.R.S. § 24-72-303(4)(a) did not apply to Plaintiff’s request. Instead, Defendant Yonce evaluated this request under C.R.S. §§ 24-72-304(1) and 24-72- 305(5) of the Colorado Criminal Justice Records Act and applied the five-factor analysis set forth in Freedom Colorado Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 899 (Colo. 2008). Based on his evaluation, and afforded the discretion available to him as custodian of Internal Affairs records under Subsection 305(5) of the CCJRA, Defendant Yonce determined that disclosure of an internal affairs investigation into an officer’s off-duty conduct at a private campaign event while not in uniform, would be contrary to the public interest in this particular case. Mr. Yonce’s reasoning for the denial of the investigation records is set forth in detail in Exhibit 1. Unlike a request under § 24-72-303(4)(a), which requires de novo review, C.R.S. § 24-72- 305(5) provides discretion to the records custodian and is reviewed for an abuse of discretion. Madrigal v. City of Aurora, 349 P.3d 297, 300 (Colo. App. 2014). Therefore, the decision whether to grant inspection of the records here [is] consigned to the exercise of the custodian’s sound discretion under sections 24-72- 304 and -305. The district court [is] obligated to review the custodian’s decision for an abuse of discretion . . . . The custodian’s determination constitutes an abuse 3 of discretion when it is manifestly arbitrary, unreasonable, or unfair; it reflects a misapplication of the law; or it is not reasonably supported by competent evidence in the record. Id. (internal citations and quotation marks omitted)1. Here, Defendant properly exercised his discretion to deny production of the Internal Affiars records. His decision does not amount to an abuse of discretion, and the Court should deny the request for production of the records at issue. Answer to Specific Allegations in the Complaint Pages 1-8 of Plaintiff’s Complaint contain a narrative of unnumbered paragraphs which fails to comply with the requirements to C.R.C.P. 4 and states a number of irrelevant facts directed primarily at individuals and entities not involved in this action. To the extent that a response is required to these allegations, however, Defendant hereby denies all such allegations. Jurisdiction and Venue 1. In response to paragraphs 1 and 2, Defendant admits that the Court has jurisdiction, and venue is proper in Larimer County District Court. The Parties 2. In response to paragraph 3, Defendant admits that Plaintiff Stacy Lynne publicly holds herself out as an investigative journalist residing in Larimer County, Colorado. 3. In response to paragraph 4, Defendant admits. 4. In response to paragraph 5, Defendant states that Lisa Robles is no longer a defendant in this case. Defendant admits that Ms. Robles, in her official capacity, denied a request by Mr. Feyen on June 22, 2023; however, Defendant denies that this is a material allegation to the issues presented in this case. 1 Although the CCJRA has undergone recent amendments, the applicable language under subsections 304(1) and 305(5) has not changed since Madrigal. 4 5. In response to paragraph 6, Defendant states that Dawn Downs is no longer a defendant in this case. Defendant admits that Ms. Downs, in her official capacity, did communicate with Plaintiff in response to a subsequent records request and notice of intent to file motion. Because this second request included records which fall under CORA (personnel records), Ms. Downs responded that the City would produce the requested personnel files. Ms. Downs further reiterated Defendant’s position on Plaintiff’s second request for CCJRA Internal Affairs investigative files, however. Ms. Downs’ response merely restated the reasons set forth in the original letter attached as Exhibit 1. At all times, Ms. Downs acted in her official capacity as a Senior Assistant City Attorney for the City of Fort Collins. Background Facts and Evidence 6. In response to paragraph 7, Defendant admits there is a Facebook Live recording of a political campaign event in which Mr. Feyen participated. The remainder of the allegations in this paragraph are immaterial and not directed to Defendant, and no response is required. To the extent a response is required, however, Defendant denies all such allegations. 7. In response to paragraph 8, Defendant admits there was an Internal Affairs investigation conducted in response to a complaint made by Plaintiff regarding Mr. Feyen’s campaign event. 8. In response to paragraph 9, Defendant lacks knowledge of when Mr. Feyen was served with a notice of claim, and therefore denies. 9. In response to paragraph 10, Defendant states this allegation is immaterial and not directed to the actions of Defendant. Defendant lacks knowledge about the truth of the allegations contained in paragraph 10, and therefore denies. 5 10. In response to paragraph 11, Defendant denies that there was a request for Mr. Feyen’s Internal Affairs investigation records in March of 2022. Defendant admits that Plaintiff made her first request for the Internal Affairs investigation records at issue in this case in March of 2023. 11. The allegations in paragraph 12 recount Plaintiff’s various lawsuits and claims against the City of Loveland and Loveland City Manager Steve Adams. These allegations are irrelevant to the case at issue and not directed at the actions of Defendant; therefore, no response is required. To the extent a response is required, however, Defendant lacks information sufficient to admit or deny the allegations, and therefore denies. 12. In response to paragraph 13, Defendant lacks information sufficient to admit or deny the allegations in this paragraph, , and therefore denies. 13. In response to paragraph 14, Defendant admits Plaintiff filed a lawsuit against Mr. Feyen. Defendant lacks knowledge as to when Mr. Feyen was served with a “lawsuit.” Upon information and believe, Defendant denies that Mr. Feyen acted in his official capacity as Assistant Chief of Police at Fort Collins Police Services when he made various statements at a Facebook Live campaign event while he was running for Larimer County sheriff. 14. In response to paragraph 15, Defendant states that the allegations regarding John Feyen’s Anti-SLAPP motion are irrelevant to this case. To the extent a response is required, Defendant lacks knowledge of the facts alleged, and therefore denies. 15. Defendant admits the allegations contained in paragraphs 16 and 17. 16. In response to paragraphs 18 and 19, Defendant states these allegations are immaterial and concern Plaintiff’s other lawsuits against Mr. Feyen and Justin Smith. These allegations are immaterial and not directed to Defendant, and no response is required. To the extent 6 a response is required, however, Defendant states that he lacks information sufficient to admit or deny the statements contained in this paragraph, and therefore denies. 17. In response to paragraph 20, Defendant admits that Fort Collins Police Services denied a request by Mr. Feyen for the Internal Affairs investigation records at issue in this case. Defendant denies this is material to the present lawsuit, and specifically denies Plaintiff’s remaining speculative allegations in the complaint. 18. In response to paragraph 21, Defendant states the allegations in this paragraph are irrelevant to the issues presented in this case and, further, states that Defendant lacks knowledge of what occurred at a discovery dispute hearing conducted in Plaintiff’s civil case against Mr. Feyen. 19. In response to paragraph 22, Defendant admits that, on October 5, 2023, Plaintiff made a second request for records encompassing personnel files governed by CORA, as well as Internal Affairs investigation records covered by CCJRA. 20. In response to paragraph 23, Defendant states that Plaintiff’s request for the personnel file was granted, and those records were produced. Defendant admits that Plaintiff’s request for the Internal Affairs investigation records was denied for the second time for the reasons stated in the original letter, attached as Exhibit 1. 21. In response to paragraph 24, Defendant admits that Plaintiff sent a notice to the individuals identified. Defendant denies that this is a material allegation, however, and further denies that any notice was required under the CCJRA. 22. In response to paragraph 25, Defendant admits that Ms. Downs corresponded with Plaintiff in her official capacity as a Senior Assistant City Attorney for Fort Collins, and that this paragraph accurately quotes an excerpt from Ms. Downs’ email. 7 23. Defendant admits the allegations in paragraph 26 and 27. Application for Order to Show Cause 24. In response to paragraph 28, Defendant admits that Plaintiff has certain rights to request an order to show cause. Defendant denies that the records requested should be released pursuant to CORA or CCJRA. 25. Defendant denies the allegations in paragraph 29. 26. In response to the final numbered paragraph (misnumbered as 26), Defendant specifically denies that he failed to articulate why the Internal Affairs investigation records were not produced. Defendant refers to the statements made in Exhibit 1. WHEREFORE, Defendant Jeremy Yonce, in his official capacity as Internal Affairs records custodian for Fort Collins Police Services, requests that this Court enter an Order finding that Defendant did not abuse his discretion in denying the record request at issue, that no additional records need to be produced, and for such other and further relief as is just and proper. Respectfully submitted this 1st day of December, 2023. WICK & TRAUTWEIN, LLC By: s/ Andrew W. Callahan Andrew W. Callahan, #52421 Cassie L. Williams, #58279 Attorney for Defendant 8 CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing RESPONSE TO COMPLAINT AND APPLICATION FOR ORDER TO SHOW CAUSE was filed with the court via Colorado Courts E-filing System (CCES) this 1st day of December, 2023, and served on the following: Stacy Lynne 305 West Magnolia Street #282 Fort Collins, CO 80521 Via email to stacy_lynne@comcast.net Pro se Plaintiff /s/ Jody L. Minch