HomeMy WebLinkAbout2023CV228 - Lynne V. Yonce - 15 - Df's Pre-Hearing Brief And Exhibits 1-5DISTRICT 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
DEFENDANT’S PRE-HEARING BRIEF
COMES NOW Defendant Jeremy Yonce, in his official capacity as Internal Affairs records
custodian for Fort Collins Police Services (hereafter, “FCPS”), by and through his attorneys, Wick
& Trautwein, LLC, and for his Pre-Hearing Brief, hereby states as follows:
INTRODUCTION
This matter concerns a request by Plaintiff to the City of Fort Collins to produce the records
of an internal affairs investigation into statements made at a campaign event by former Assistant
Chief of Police for the City Fort Collins, John Feyen. As background, Plaintiff filed a lawsuit
against Mr. Feyen for defamation and, as part of that lawsuit, Plaintiff submitted a request for the
Fort Collins Police Services internal affairs investigation file related to the campaign event.
The present case concerns two requests for Criminal Justice Records which Ms. Lynne
tendered to Fort Collins Police Services (“FCPS”). Ms. Lynne sent her first request in a letter dated
March 6, 2023, attached to this Brief as Exhibit 1. This letter includes a request for the Internal
DATE FILED: December 6, 2023 3:59 PM
FILING ID: BFEEC96C97B69
CASE NUMBER: 2023CV228
2
Affairs investigations file for John Feyen. FCPS responded to this request in writing on March 22,
2023, in a letter attached as Exhibit 2. In that letter, Lt. Yonce explained that he was denying Ms.
Lynne’s request for the Internal Affairs files, in accordance with the discretion afforded him under
the Colorado Criminal Justice Records Act (hereafter, the “CCJRA”), and on the basis that
disclosure would not be in the public interest.
Ms. Lynne requested the same documents once more on October 5, 2023. The second
request is attached to this Brief as Exhibit 3. This request asked for the Internal Affairs
investigation file, as well as other records, including Mr. Feyen’s personnel file. In a letter dated
October 18, 2023, attached as Exhibit 4, FCPS reiterated the determination that release of the
Internal Investigations file would be improper under the CCJRA. This letter further directed Ms.
Lynne to the appropriate custodian to request the personnel records, which were duly produced.
Finally, in an email exchange on November 2, 2023, Fort Collins Senior Assistant City
Attorney Dawn Downs offered Ms. Lynne another avenue for potentially obtaining the records.
(Email attached as Exhibit 5.) Ms. Downes noted that if the City was served with a valid subpoena
duces tecum, it would produce the records under seal to the Judge handling her civil case for an
in-camera review for relevance. Ms. Lynne rejected this offer.
At all times, FCPS and Lt. Yonce followed the requirements of the CCJRA. Lt. Yonce
properly exercised the discretion given to him under the CCJRA when he determined that the
Internal Affairs file should not be produced. The denial was proper, and the Court should not find
that he abused his discretion in making this decision.
3
LEGAL AUTHORITY
The Colorado Criminal Justice Records Act Applies to the Present Request
Both of Ms. Lynne’s Requests for Criminal Justice Records, as well as her Complaint,
invoke the Colorado Open Records Act (“CORA”) and the CCJRA. Additionally, within her
Complaint, Ms. Lynne cites case law interpreting CORA 1 and habitually refers to the Internal
Affairs investigations file as “public records.” By statutory definition, however, the records of the
Internal Affairs investigation that Plaintiff has requested are not public records. Accordingly,
CORA does not apply to the request at issue; only the CCJRA applies.
CORA, located at Colo. Rev. Stat. § 24-72-200.1, et seq., applies to requests for production
of public records, as defined in Colo. Rev. Stat. § 24-72-202(6). In contrast, the CCJRA governs
the inspection of criminal justice records, both concerning official and non-official actions. Colo.
Rev. Stat. § 24-72-301(2). “Criminal justice records” are those “that are made, maintained, or kept
by any criminal justice agency in the state for use in the exercise of functions required or authorized
by law or administrative rule. . . .” Colo. Rev. Stat. § 24-72-302(4). “Criminal justice agencies”
include,
[A]ny agency of the state, including. . . any agency of any county . . . , city, town .
. . , or law enforcement authority that performs any activity directly relating to the
detection or investigation of crime, the apprehension, pretrial release, posttrial
release, prosecution, correctional supervision, rehabilitation, evaluation, or
treatment of accused persons or criminal offenders; or criminal identification
activities or the collection, storage, or dissemination of arrest and criminal records
information.
Colo. Rev. Stat. § 24-72-302(3).
1 Including, e.g., Daniels v. City of Commerce City, Custodian of Rec., 988 P.2d 648 (Colo. App. 1999) (concerning
application of the Open Records Act, §§ 24-72-201, et seq.); Martinelli v. Dist. Ct., 612 P.2d 1083 (Colo. 1980)
(concerning Colo. R. Civ. P. 34); Denver Pub. Co. v. Dreyfus, 520 P.2d 104 (Colo. 1974); Denver Pub. Co. v. Univ.
of Colo., 812 P.2d 682 (Colo. App. 1990); Denver Post Corp. v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987)
(concerning the Open Records Act). Contra Freedom v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892 (Colo. 2008)
(considering the distinction between CORA and the CCJRA and noting that a Martinelli analysis is inapplicable to a
CCJRA case).
4
FCPS is a criminal justice agency, and the requested Internal Affairs investigation records
are criminal justice records. As a result, the standard for production is dictated by the CCJRA, not
CORA. Ms. Lynne’s own requests support this finding as well, as she submitted her letters along
with the “Request for Criminal Justice Records” form. Exhibits 1 and 2.
The Requested Documents are Not Records of Official Actions
The CCJRA differentiates between records of “official” actions and all other records.
Records of official actions “shall be open to inspection by any person and to challenge by any
person in interest.” Colo. Rev. Stat. § 24-72-301(2). However, “all other records of criminal justice
agencies in this state may be open for inspection . . . .” Id. (emphasis added). In line with this
distinction, requests for records of official actions are governed by Colo. Rev. Stat. § 24-72-303;
all other records are governed by §§ 24-72-304, 305.
“Official action” means an arrest; indictment; charging by information; disposition;
pretrial or posttrial release from custody; judicial determination of mental or
physical condition; decision to grant, order, or terminate probation, parole, or
participation in correctional or rehabilitative programs; and any decision to
formally discipline, reclassify, or relocate any person under criminal sentence.
Colo. Rev. Stat. § 24-72-302(7).
Here, Plaintiff requested records regarding an internal investigation into Mr. Feyen’s
statements at an off-duty campaign event, which does not fall under any of the specifically
enumerated official actions.
The Internal Affairs Investigation Was Not For “In-Uniform or On-Duty Conduct,”
And Thus Subsection 303(4)(A) Does Not Apply.
Colo. Rev. Stat. § 24-72-303(4)(a) states that: “Upon completion of an internal
investigation… that examines the in-uniform or on-duty conduct of a peace officer . . . related to
an incident of alleged misconduct involving a member of the public, the entire investigation file is
5
open to the public for inspection upon request.” (Emphasis added). However, this statute does not
apply to the Plaintiff’s requests at issue here.
Plaintiff does not allege that the Internal Affairs investigation at issue concerned in-
uniform or on-duty conduct. And, in fact, it did not – the investigation resulted from the former
Assistant Chief of Police’s participation in a campaign event during his candidacy for Sheriff. The
event was held in person and published through Facebook Live. A screenshot of the video is
attached below.2
Lt. Yonce will testify that the IA report determined that Sheriff Yonce was not on duty
during the event, and did not take his department assigned car to the venue. As seen above, Mr.
Feyen was not in uniform during this event. As explained by Lt. Yonce in Exhibit 2, the Internal
Affairs investigation records concern conduct that occurred when Mr. Feyen was not in uniform
and off-duty. He was not conducting an official action under the CCJRA, nor did he hold himself
out to be doing so. Accordingly, subsection 303(4)(a) does not apply.
2 Stacy Lynne, Facebook (Dec. 15, 2023), https://www.facebook.com/RelentlessPursuitTruthJustice/videos/video-
this-is-john-feyen-on-february-2-2022-john-feyen-introduced-himself-as-for/676923357561267.
6
The Applicable Standard of Review is Abuse of Discretion
Where “the records requested are criminal justice records but are not records of official
actions . . . the decision whether to grant inspection of the records [is] ‘consigned to the exercise
of the custodian’s sound discretion under sections 24-72-304 and - 305.’” Madrigal v. City of
Aurora, 349 P.3d 297, 300 (Colo. App. 2014) (quoting Freedom Colo. Info., Inc. v. El Paso Cnty.
Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008)); Colo. Rev. Stat. § 24-72-304(1) (2023)
(“[C]riminal justice records, at the discretion of the official custodian, may be open for inspection
by any person at reasonable times . . . .”) (emphasis added).
Following an applicant’s request for a show cause hearing, the district court is “obligated
to review the custodian’s decision for an abuse of discretion.” Madrigal, 349 P.3d 297 (interpreting
Colo. Rev. Stat. § 24-72-304(1) (2014), using identical language to § 34-72-304(1) (2023)); see
also Freedom Colo. Info., Inc., 196 P.3d at 897 (Colo. 2008) (“Applying an abuse of discretion
standard to the custodian’s criminal justice records request determination accords the proper
deference to the custodian . . . . This standard of review preserves the separation of powers between
the judicial and executive branches.”).
“The custodian’s determination constitutes an abuse 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.” Madrigal, 349 P.3d at 300. “Unless the court
finds that the denial of inspection was proper, it shall order the custodian to permit such inspection
. . . .” Colo. Rev. Stat. § 24-72-305(7) (2023) (emphasis added).
7
ARGUMENT
The Official Records Custodian Properly Exercised His Discretion
Colo. Rev. Stat. § 24-72-305 concerns the custodian’s discretion to deny inspection of
records of non-official actions. This statute states that the custodian may allow a person to inspect
such records unless “disclosure would be contrary to the public interest.” Colo. Rev. Stat. § 24-
72-305(5). Importantly, subsection 305(5) applies specifically to “records of investigation
conducted by or of intelligence information or security procedures of any sheriff, district attorney,
or police department or any criminal justice investigatory files compiled for any other law
enforcement purpose.”
Case law provides further guidance for the custodian in making a determination:
In creating a class of criminal justice records, the inspection of which is subject to
the custodian's exercise of sound discretion, the General Assembly intended the
custodian to engage in balancing the public and private interests in the inspection
request.
* * *
The custodian must consider the pertinent factors, which include: the privacy
interests of individuals who may be impacted by a decision to allow inspection; the
agency's interest in keeping confidential information confidential; the agency's
interest in pursuing ongoing investigations without compromising them; the public
purpose to be served in allowing inspection; and any other pertinent consideration
relevant to the circumstances of the particular request.
Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 899 (Colo. 2008).
Furthermore, “[t]he legislative policy regarding access to criminal justice records under the
CCJRA is more limited than access to public records under CORA.” Id. at 898.
In the present case, FCPS received Plaintiff’s first request for the Internal Affairs
investigation in March of 2023. Exhibit 1. On March 22, 2023, Lieutenant Jeremy Yonce of Fort
Collins Police Services sent Plaintiff a letter explaining his reason for denial. Exhibit 2. Lt.
Yonce’s letter specifies that the subsections applicable to Ms. Lynne’s request are Colo. Rev. Stat.
8
§§ 24-72-304(1), - 305(5). This is in contrast to Ms. Lynne’s request for “records of official
actions” pursuant to Colo. Rev. Stat. § 24-72-303.
Lt. Yonce Properly Applied the Relevant Factors to Ms. Lynne’s Request
In his letter, Lt. Yonce correctly identified the five factors which an official custodian must
weigh in evaluating a records request of this nature. To that issue, he states,
I have determined that the private interests in not releasing the IA File for public
inspection outweigh the public interests in making it publicly available. I conclude
this primarily on consideration of factors 1, 2, and 4 . . . , and the additional pertinent
factors that Chief Feyen’s conduct examined [in the requested file] involved the
exercise of his First Amendment rights in a political campaign and he is no longer
a City employee.”
Exhibit 2, 2. Lt. Yonce’s letter goes on to discuss each of these factors in more detail.
Lt. Yonce correctly applied the law by identifying the applicability of the CCJRA;
identifying this particular request as falling under Colo. Rev. Stat. §§ 24-72-304(1), -305(5),
specifically; and considering the factors outlined by the courts and the legislature.
In addition, Lt. Yonce provided his reasoning under each of the pertinent factors. This
reasoning is not manifestly arbitrary, unreasonable, or unfair. With regard to the first factor, he
considered the privacy interests of Mr. Feyen, the primary individual who may be impacted by a
decision to allow inspection of the requested records. Despite some of the implications contained
in Plaintiff’s Complaint, Lt. Yonce did not decide arbitrarily, or even of his own volition, to take
Mr. Feyen’s privacy interests into account. Rather, Lt. Yonce followed the exact letter of the law
in doing so. Statutory authority and Colorado case law both require Lt. Yonce to consider this
factor.
To the second factor, Lt. Yonce considered the interests of the City and FCPS in
maintaining the confidentiality of internal investigations. At least in part, these entities have an
interest in protecting the constitutional rights of their individual employees. Moreover, this is
9
relevant because Internal Affairs can compel police officers to make a statement under penalty of
termination of employment pursuant to Garrity v. State of N.J., 385 U.S. 493 (1967). The prospect
of a police officer’s compelled statement about personal conduct outside of his or her official
capacity being publicly disseminated would have a chilling effect on the willingness of police
officers to fully cooperate in Internal Affairs investigations.
The Complaint spends considerable time invoking the public interest; however, Lt. Yonce
noted that Plaintiff failed to identify a public purpose in her actual records request. Rather, she
included a Court Order related to another civil case in which she, as a private individual, is a party.
See Exhibit 1.
The Evidence Supports Lt. Yonce’s Determination
Beyond those factors explicitly considered by Lt. Yonce in his initial letter, the Defendant
is prepared to introduce competent evidence into the record that supports his decision. For instance,
Ms. Lynne’s personal Facebook profile illustrates an increased need to carefully consider the
private interests at stake, as well as the confidentiality interests of FCPS and the City. See
https://www.facebook.com/RelentlessPursuitTruthJustice. Based on Ms. Lynne’s past online
posts, it would be reasonable for the records custodian for FCPS to expect Ms. Lynne to
immediately publish the information online, alongside allegations related to her other court cases.
Finally, to the extent that Plaintiff seeks the records at issue to support her pending civil
lawsuits, she was provided an option to request these records through a subpoena duces tecum.
This avenue likely would have allowed her to obtain relevant portions of the internal affairs file,
while allowing the Court to protect the privacy of Mr. Feyen and the investigation process by
limiting disclosure, where necessary. It is apparent why Ms. Lynne rejected this offer – she wants
to publish this information publicly on her Facebook page. This is additional, competent evidence
10
to establish that, under the circumstances, the Defendant’s decision was not manifestly arbitrary,
unreasonable, or unfair.
OBJECTION TO UNTIMELY AND IMPROPER SUBPOENA DUCES TECUM
On Tuesday, December 5, Plaintiff served subpoenas on Defendant Yonce, Dawns Downs,
Lisa Robles and Assistant Chief Adam McCambridge. Defendant does not believe that Ms. Robles
or Assistant Chief McCambridge have relevant information to offer the court on the issue to be
decided. But, all four individuals will be present for the hearing.
Plaintiff’s subpoena to Mr. McCambridge additionally demands that he produce: “All
written records, all written correspondence, and all recorded phone calls between yourself and
Stacy Lynne in 2022, regarding John Feyen’s internal affairs investigation that was conducted by
Fort Collins Police Services in 2022.” This is clearly an attempt to use a subpoena to get the very
records which were denied to her under the CCJRA request.
If required to testify, Mr. McCambridge will testify that he has no access to these records
other than through the IA filed at issue in this case. He will further testify that he is not the
custodian of these records and is not authorized to release them without department approval. Mr.
McCambridge will testify that he tendered the subpoena duces tecum to Defendant Yonce, as the
custodian of the IA file.
Defendant objects to this subpoena under CRCP 45(c)(3)(iii), in that the requested records
are part of the Internal Affairs investigation file at issue in this case and thus are protected records
under the CCJRA. Accordingly, the records should not be produced unless the court orders them
produced on the merits of Plaintiff’s Petition to Show Cause.
Defendant further objects to the sufficiency of this subpoena duces tecum. CRCP 45
requires service 14 days in advance of the date of compliance, or in the case of an expedited
11
hearing, “as soon as possible.” The Court entered its Order to Show Cause on November 21, 2023,
setting the hearing for December 8. Plaintiff waited 14 days before serving the subpoena at issue
on Mr. McCambridge on December 5. This does not satisfy the 14 day notice requirement or meet
the condition of “as soon as possible.” Accordingly, Defendant objects to both the documents
requested by Plaintiff’s subpoena duces tecum and to its timeliness.
CONCLUSION
Defendant Jeremy Yonce, acting in his official capacity as the custodian of Internal Affairs
records for Fort Collins Police Services, did not abuse his discretion in denying Plaintiff Stacy
Lynne’s request for production of the 2022 Internal Affairs investigation records for Mr. Feyen.
Lt. Yonce correctly applied the law and provided reasons for his decision which are not manifestly
arbitrary, unreasonable, or unfair. Furthermore, additional competent evidence supports his
determination. As such, this Court should find that Lt. Yonce’s decision was proper, and therefore
decline to enter an order requiring reconsideration of the decision or production of the records at
issue.
WHEREFORE Defendant respectfully requests that the Court deny Plaintiff’s requests for
relief, and for any other relief which the Court finds proper.
Respectfully submitted this 6th day of December, 2023.
WICK & TRAUTWEIN, LLC
By: s/ Andrew W. Callahan
Andrew W. Callahan, #52421
Cassie L. Williams, #58279
Attorney for Defendant
12
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing DEFENDANT’S
PRE-HEARING BRIEF was filed with the court via Colorado Courts E-filing System (CCES)
this 6th 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
Exhibit 1
DATE FILED: December 6, 2023 3:23 PM
FILING ID: FB1ED58E3DCD9
CASE NUMBER: 2023CV228
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 1
Exhibit 2
DATE FILED: December 6, 2023 3:23 PM
FILING ID: FB1ED58E3DCD9
CASE NUMBER: 2023CV228
Exhibit 3
DATE FILED: December 6, 2023 3:23 PM
FILING ID: FB1ED58E3DCD9
CASE NUMBER: 2023CV228
Exhibit 3
Exhibit 3
Exhibit 4
DATE FILED: December 6, 2023 3:23 PM
FILING ID: FB1ED58E3DCD9
CASE NUMBER: 2023CV228
Exhibit 4
Exhibit 4
Records Division
2221 S. Timberline Road
PO Box 580
Fort Collins, CO 80522
970.221-6540
fcgov.com
October 18, 2023
Subject: Records Request PD-2023-4224
Dear Stacy Lynne,
We are in receipt of your records request dated October 5, 2023. We have reviewed your request, outlined
below and respond in accordance with the applicable records release statutes provided in 24-72-200 through 24-
72-309 of the Colorado Revised Statutes.
You have requested:
1.Former Assistant Chief of Police John Feyen's personnel/employment file:
a.All documents that are contained in John Feyen's personnel/employment file including and not
limited to his department transfers, employment application, employment agreement,
performance ratings, performance evaluation narratives, compensation, expense allowances and
benefits, and all other documents that are not explicitly exempt under the law.
b.All documents that should be contained in John Feyen's personnel file/employment file but that
may have been improperly removed, renamed, or filed under any other system in order to avoid
disclosure under CORA/CCRJA laws.
2.Former Assistant Chief of Police John Feyen's Internal Affairs investigations files:
a.All internal affairs investigations conducted and completed after April 12, 2019, per House Bill 19-1119,
including and not limited to:
i.Witness interviews
ii.video and audio recordings
iii.transcripts
iv.documentary evidence
v.investigative notes
vi.final departmental decision
vii.summaries of the investigation
viii.narratives of the investigation
3.All documents and correspondence between all persons related to former Assistant Chief of Police John
Feyen’s policy violations, training violations, procedural violations, untruthfulness, dishonesty, false
statements about material facts, and/or omissions of material facts including all instances in testimony,
under oath, and in written narratives and in audio/video from agency reports.
In response to Part 1 of this request for records, the requested items may be available for release by submitting
a CORA request to City of Fort Collins HR. You may contact Rachel Askeland with City HR to submit that
CORA request:
Rachel Askeland- raskeland@fcgov.com
970-221-6829
Exhibit 5
DATE FILED: December 6, 2023 3:23 PM
FILING ID: FB1ED58E3DCD9
CASE NUMBER: 2023CV228
In response to Part 2 and Part 3 regarding policy violations, training violations, procedural violations, there
are no internal affairs investigation files or related documents involving John Feyen that fall under House Bill
19-1119. Certain records are exempt from disclosure, and in this case, the internal affairs investigation(s) you
have requested falls under this exemption. Colorado Revised Statute 24-72-303 (4)(a) states:
Upon completion of an internal investigation, including any appeals process, that examines the in-
uniform or on-duty conduct of a peace officer, as described in part 1 of article 2.5 of title 16, related to
an incident of alleged misconduct involving a member of the public… the custodian shall provide access
to the entire investigation file subject to the provisions of subsections (4)(b), (4)(c), and (4)(d) of this
section.
Because Chief Feyen was not in uniform or on-duty, and the incident did not involve a member of the public as
required by statute, the IA File(s) are not subject to public release under this statute. Instead, whether the IA File
is to be publicly released under the CCJRA is governed by C.R.S. Sections 24-72-304(1) and 24-72-305(5).
In interpreting and applying Sections 24-72-304(1) and 24-72-305(5), the courts have held that the custodian of
a requested criminal justice record may deny such request if public disclosure of it would be "contrary to the
public interest" and, in so deciding, the custodian is to "engage in balancing the public and private interests in
the inspection request" by considering these factors, as applicable.
Having considered these factors in evaluating your Records Request, I have determined that the private interests
in not releasing IA File(s) for public inspection outweigh the public interests in making it publicly available.
Therefore, based on my consideration of this and other factors, I have determined that it would be contrary to
the public interest to release your requested items since the private interests involved in your Records Request
outweigh any public interests.
In response to Part 3 regarding records pertaining to untruthfulness, dishonesty, false statements about material
facts, and/or omissions of material facts including all instances in testimony, under oath, and in written
narratives and in audio/video from agency reports, there are no records responsive to this request.
Sincerely,
Fort Collins Police Services
Exhibit 5