HomeMy WebLinkAbout2023-cv-1343 - Elias v. City of Fort Collins, et al. - 103 - Plaintiff's Response re City Heaton Mot Dismiss 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-1343-GPG-KLM
HARRIS ELIAS,
Plaintiff,
v.
CITY OF FORT COLLINS,
JASON HAFERMAN, and
SERGEANT ALLEN HEATON.
Defendants.
______________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANT CITY OF FORT COLLINS’ AND SERGEANT
HEATON’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP
12(b)(6) & REQUEST FOR QUALIFIED IMMUNITY [ECF 98]
______________________________________________________________________________
INTRODUCTION
This is a civil rights action arising from the unlawful arrest and malicious prosecution of the
Plaintiff Harris Elias by the City of Fort Collins (“the City”) and its police officers. The allegations in Mr.
Elias’s complaint – which at this stage are presumed to be true – paint a detailed and disturbing picture of
an overzealous FCPS police officer (Haferman) incentivized and enabled by his chain of command at
FCPS to accumulate as many DUI arrests as possible, even of the plainly innocent (like Mr. Elias) and
without probable cause (as in the case of Mr. Elias). The allegations are not conclusory or broad; they are
detailed, directly relevant, reflect statistics and admissions from FCPS public statements and internal
investigations, and they are the product of the synthetization of thousands of pages of still incomplete data
obtained by Plaintiff’s counsel through open records requests, Colorado Criminal Justice Records
Requests, media reports, and from previous client accounts, over the preceding multiple years.
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It bears reminding that in a municipal liability claim, “it is exceedingly rare that a plaintiff will
have access to (or personal knowledge of) specific details regarding the existence or absence of internal
policies or training procedures prior to discovery.” De la Torre v. La Plata County, 2022 WL 910710 at
*7 (D. Colo. Mar. 29, 2022) (citing Taylor v. RED Dev., LLC, 2011 WL 3880881, at *4 (D. Kan. Aug.
31, 2011) (quoting Thomas v. City of Galveston, Texas, 800 F. Supp. 2d 826, 842 (S.D. Tex. 2011)).
“‘Accordingly, only minimal factual allegations are required at this stage of the proceedings.” Id. (quoting
City of Galveston, 800 F. Supp. 2d at 842-43); see also Kerns v. Sw. Colorado Mental Health Ctr., Inc.,
2019 WL 6893022, at *12 (D. Colo. Dec. 18, 2019) (finding that, based on the “asymmetry of available
information,” the plaintiffs need not plead a failure to train or supervise claim “with greater factual
specificity at this time”). Indeed, it is the very nature of Monell claims that the Defendants will always
have near complete control over the evidence prior to discovery and thus Courts have long granted the
most factual pleading latitude to this type of claim for that very reason. See Arnold v. City of Olathe, 413
F.Supp.3d 1087, 1112 (D. Kan. 2019) (recognizing plaintiff had not included as many facts for his
municipal liability claim as for other claims in the complaint, but noting plaintiff “ha[d] not yet been
granted discovery into the policies, practices, and customs that may have resulted in the officers’ actions”
and holding “at this point in the litigation,” plaintiff had alleged a plausible Monell claim against the city);
Bledsoe v. Board of County Commissioners, 501 F.Supp.3d 1053, 1059 (D. Kan. 2020) (same).
And yet, here, Mr. Elias’s 95-page Second Amended Complaint [ECF 88] has pleaded far more.
His Complaint contains not just extensive, detailed evidence of the failures to supervise and the specific
pattern/practices driving the constitutional violations he experienced, but also extensive detail regarding
subsequent public admissions made by the FCPS Chief of Police himself which only served to further
establish the elements of Mr. Elias’s Monell and supervisory claims against the City. These details,
alongside fact after additional fact describing how Haferman’s supervising sergeant Defendant Heaton
incentivized, directed, and condoned all his DUI arrests without the slightest care or concern for the
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arrestees’ blood test results or observable innocence, culminate in one particularly egregious wrongful
DUI arrest that Heaton elected to personally participate in, facilitate, and materially assist: Mr. Elias’s.
Neither 12(b)(6) dismissal nor qualified immunity has application to this type of pleading or facts. The
Defendants’ Motion should be denied.
NOTE REGARDING PENDING ASSOCIATED CASES
There are 4 associated cases currently pending filed by other Plaintiffs against the same Defendant
officer (Haferman) and same Defendant City of Fort Collins for their own wrongful DUI arrests.
Defendant Heaton is named as an individual capacity Defendant only in Mr. Elias’s case because it is the
only case in which Heaton’s direct personal participation is documented1 and evident. The City has filed
Motions to Dismiss in all 5 cases; 2 of their Motions have already been ruled on and denied. See
Cunningham v. City of Fort Collins, et al, 23-cv-01342-CNS-SBP, Order Denying Motion to Dismiss
and Request for Qualified Immunity [ECF 57], and Erbacher v. City of Fort Collins, et al, 23-cv-01341-
CNS-NRN, Order Denying Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to FRCP
12(b)(6) and Request for Qualified Immunity [ECF 63]. The Orders are of course not controlling here,
but they may nevertheless be of interest. If so, for ease of reference, copies of the Orders have been
attached as Exhibits 1 (Cunningham Order on MTD) and 2 (Erbacher Order on MTD) to this Response.
STANDARD OF REVIEW
To state a claim, a plaintiff’s complaint must “show[] that the pleader is entitled to relief.” Fed.
R. Civ. P. (8)(a)(2). This means that the plaintiff must allege enough factual matter, taken as true, to make
his “claim to relief . . . plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “This
1 Heaton originally endeavored to keep his personal participation in, and assisting of Haferman with, Mr.
Elias’s arrest out of all the reports and criminal case records. He wrote no report for his involvement in
the case (in violation of FCPS policy), and he made sure that his own BWC video was not attached to the
Elias case (in violation of FCPS policy). It took the filing of this lawsuit and considerable public pressure
to get Heaton and FCPS to eventually admit this, which in part also led to the second amendment to Mr.
Elias’s complaint. See infra.
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is not to say that the factual allegations must themselves be plausible; after all, they are assumed to be
true. It is just to say that relief must follow from the facts alleged.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (citing Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247
(10th Cir. 2008)). “If a complaint explicitly alleges every fact necessary to win at trial, it has necessarily
satisfied this requirement. If it omits some necessary facts, however, it may still suffice so long as the
court can plausibly infer the necessary unarticulated assumptions.” Id.
RELEVANT FACTUAL BACKGROUND
Because his well-pleaded and rather detailed 95-page Second Amended Complaint is quite not,
Plaintiff will try here to make this summary brief: On December 3, 2021, Defendant Officer Haferman,
in eager pursuit of the accolades and encouragement of his superiors at FCPS given to those who made
the most DUI arrests, wrongfully seized, arrested, detained, searched, and jailed (for 3 days) the
observably innocent Mr. Elias. ECF 88 at ¶¶59-132; ¶¶147-175. Haferman did not have probable cause to
arrest or charge Mr. Elias with DUI or Child Abuse.2 He arrested Mr. Elias because he wanted to make
another DUI arrest and Mr. Elias had refused Haferman’s (repeated) demands that he submit to his
questioning. Id. at ¶103. Haferman did not do this alone. With Defendant Sergeant Heaton’s live guidance
and directives (by phone at time of initial arrest and again minutes later at the station),3 id. at ¶¶102-04,
and Defendant Heaton’s on-scene participation and collaboration (ten minutes after that at the hospital),
they together were able to force Mr. Elias to submit to an intrusive blood test (denying him his selected
breath test) and then filed criminal charges against him for DUI and Child Abuse. Id. at ¶¶168-174.
2 The City and Heaton do not appear to dispute this.
3 The City/Heaton claim in their MTD that Plaintiff cannot know what was said in this call because there
were no witnesses to it beyond Haferman and Heaton. See MTD [ECF 98], p. 8 (“The problem with
Plaintiff’s allegations is the lack of any knowledge regarding the substance of Haferman and Sgt. Heaton’s
conversation.”). The City/Heaton may want to re-review Haferman’s BWC from this call before they
make further commitment in written pleadings to this claim.
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Defendant Heaton subsequently watched his BWC video from his encounter with Mr. Elias and
took measures to prevent that BWC video from being attached to the Elias case or otherwise thereafter
discoverable for purposes of release. Id. at ¶133-46; ¶337. He did not document Mr. Elias’s formal
complaints about Haferman as required by FCPS policy. Id. at ¶149. Heaton’s efforts to hide his video
caused Plaintiff’s counsel to reasonably deduce and thus originally allege in Mr. Elias’s first complaint
that the video had never been recorded (in violation of policy). Upon the filing of this lawsuit, Heaton
suddenly “found” his video. Id. at ¶138. It is unknown how many other wrongful DUI arrests Heaton
personally assisted Haferman on. What is known is that as to Mr. Elias’s wrongful DUI arrest at least, he
did; and for once, this sergeant and his subordinate officer’s subsequent effort to conceal and omit the
sergeant’s participation was done so sloppily that Plaintiff wasn’t just able to discover it, his counsel was
also finally able to adequately plead its underlying facts pre-discovery.
Mr. Elias spent 3 days in jail. Id. at ¶175. While in jail, Haferman reported Mr. Elias to Child
Protective Services to be investigated for child abuse. Id. at ¶173. As conditions of his release from jail,
Mr. Elias had to submit to daily sobriety monitoring and oppressive bond conditions, one of which
prohibited him – a single father with sole custody of his three children – from driving with kids in his car.
Id. at ¶177-80. Humiliated, Mr. Elias had to ask friends and hire Ubers to take his son to and from school
and activities. Id. at ¶180. Mr. Elias’s blood test results, received over five months after his arrest, and
even after being sent out by FCPS to be extra tested for every single alcohol, drug, and medicine that
could be physically tested for by modern science, came back with nary a substance detected. Id. at ¶169;
¶203. His criminal case was dismissed. Id. at ¶323.
As it happens, Mr. Elias’s experience with Haferman and FCPS was neither unusual nor unique.
In fact, at the time Plaintiff encountered Haferman, Haferman had held the “DUI Officer” position at
FCPS for over 18 months, and throughout that time had been regularly stopping cars without reasonable
suspicion and making arrests without probable cause. Id. at ¶18. FCPS had no problem with this, as they
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could receive more funding as a result of having more DUI arrests, id. at ¶14, and were also able to win
awards, positive publicity, and even timed DUI arrest competitions put on by nationally-known
organizations (like MADD) as a result of being an agency that posted high DUI arrest numbers. Id. There
was just one big problem: No one – not Heaton, Haferman’s first-line supervisor, and certainly not
Haferman himself – paid any care to the quality of the DUI arrests. Inevitably as a result, within just a few
months of his May 2020 start as FCPS’s official “DUI Officer,” and certainly by no later than March of
2021, Haferman had already produced substantial waves of constitutional concern of which any
reasonable supervisor in Heaton’s position providing even the most cursory of supervision would have
recognized as indication that (among other problems) Haferman had, in his quest to top the scoreboards
and impress FCPS chain of command with his DUI arrest stats, been regularly stopping, seizing,
searching, and arresting innocent people with reckless abandon for their constitutional rights, and with
complete disregard for both Colorado law and written FCPS policy, id. at ¶¶22-30, while writing reports
that contained lies, material omissions, and training issues that would have been easily identified by
watching just one of his BWC videos. Id. at ¶¶19-41. But no one at FCPS was providing even cursory
supervision to Haferman, because no one at FCPS cared. Id. at ¶39, ¶41. They were benefitting from his
high DUI arrests numbers too. Id. at ¶15. And so on he went, utterly and entirely unsupervised. Id. at ¶42.
Red flags abounded with Haferman for 9 more months (detailed in over 20 pages of Plaintiff’s Complaint),
without intervention or comment from anyone at FCPS, and instead (according to Haferman) were
actually affirmed by his chain of command’s continuous encouragement of the “great work” he was doing,
leading up to (and continuing well after) the day that Haferman, with Heaton’s participation and
assistance, encountered and wrongfully arrested Mr. Elias in December 2021. Id.
In those months leading up to Plaintiff’s arrest, at least a dozen other drivers were wrongfully
arrested for DUI by Haferman and had chemical test results come back showing no impairing substance
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detected, and over and over again, chain of command at FCPS (by their own claims)4 would “internally
review” such arrests and approve of each and every one. Id. at ¶¶39-45; ¶¶231-34. Eventually the press
got involved. Id. at ¶216. Reporters wanted to know how one (purportedly highly-trained) officer could
have been so completely wrong about something so important – without anyone at FCPS intervening – so
many times. Id. at ¶¶216-22. Rather than apologize – and rather than just merely ask everyone to sit tight
while FCPS took a closer look – FCPS’s Chief responded by instead doubling down on the wrongful DUI
arrests, claiming that Haferman’s DUI investigations and decision-making were beyond reproach and
further proclaiming that the drivers he had wrongly arrested weren’t innocent, that they were simply all
on synthetic street drugs that science couldn’t test for. Id. at ¶¶236-40.
And so, as emboldened as ever by FCPS’s continued support, Haferman quite naturally continued
making more wrongful DUI arrests. Id. at ¶¶208-212. Various judges continued having to make findings
at various hearings regarding their grave concerns that Haferman’s sworn testimony continued to be
contradicted by video evidence and that he appeared to not be a credible witness. Id. at ¶20; ¶36; ¶212(d).
Finally, in September of 2022, the District Attorney informed FCPS Chief Swoboda it would no longer
prosecute any of Haferman’s cases due to his demonstrated lack of integrity and blatant disregard for the
constitutional rights of citizens. Id. at ¶262. At this, FCPS abruptly reversed course, put him on leave, and
4 As detailed in the Complaint, FCPS’s statements to the media imploring the public to “not fall for the
salacious headlines” and insisting that Haferman’s entire chain of command at FCPS had always been
internally reviewing all of his “none detected” chemical test result DUI arrests and finding nothing of
concern is highly implausible. Id. at ¶¶249-250. Data from the BWC videos in the wrongful DUI arrest
cases that the undersigned was able to gain access to reveals no supervisor ever even opened one of
Haferman’s BWC videos until the media began running stories on him in May of 2022. ECF 88 ¶34; ¶
232. This is important, because the findings ultimately made by FCPS’s own IA unit (after being forced
to open an investigation into Haferman’s DUI arrests following press inquiries) describe much of the
misconduct related to Haferman’s repeated constitutional violations being the kind that could have been
identified by watching any one of his videos. Id. at ¶26. In any event, Plaintiff has pleaded both theories
of liability (that is, the theory that FCPS provided literally zero supervision/training and the theory that
FCPS knew exactly what Haferman was doing and simply agreed with/condoned/encouraged it), as is
expressly permitted at this stage of proceedings by FRCP 8.
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opened an investigation culminating in FCPS being forced to admit (i) that Haferman’s own videos
showed he had long been being untruthful in his reports, (ii) that he had long been administering roadsides
incorrectly,5 and (iii) that he had long been arresting innocent people without probable cause. Id. at ¶¶263-
264.
On these facts, the City and Heaton have filed a Motion to Dismiss for failure to state a claim as
to their Monell liability and Heaton’s individual liability, and also asserting qualified immunity as to
Heaton. It should be denied.
ARGUMENT
I. Mr. Elias’s has more than adequately pleaded abundant specific facts to meet FRCP 12(b)(6)
early pleading and notice standards for a Monell claim.
To establish liability under Monell, a plaintiff must show “(1) the existence of a municipal custom
or policy, and (2) a direct causal link between the custom or policy and the violation alleged.”
Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir. 1997). There are five different types of municipal
liability. They are:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread
practice that, although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a custom or usage with the force of law; (3) the
decisions of employees with final policymaking authority; (4) the ratification by such final
policymakers of the decisions – and the basis for them – of subordinates to whom authority was
delegated subject to these policymakers’ review and approval; or (5) the failure to adequately
train or supervise employees, so long as that failure results from deliberate indifference to the
injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotation and alteration marks
omitted); see also Hinkle v. Beckham Cty. Bd. of Cty. Comm’rs, 962 F.3d 1204, 1239 (10th Cir. 2020).
As it happens, Plaintiff has alleged facts supporting all five types of municipal liability here. He has
5 Haferman also taught SFSTs to new officers as FCPS’s SFST instructor, and in the year since forcing
Haferman’s resignation for those SFST administration deficiencies (among other things), the agency has
apparently not made any effort to identify or retrain all the officers he taught them to.
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detailed a scheme of profit and promotion wherein FCPS officers are rewarded for baseless DUI arrests,
where their arrests of innocent people are aggressively and vociferously defended publicly by the Chief
of Police, ECF 88 at ¶¶230-244, and where absolutely no one in any supervisory capacity imposed any
form of consequence on any FCPS officers for the repeated wrongful arrests of citizens that they were
observing their subordinates make. Id. at ¶¶201, 205, 206. Plaintiff has also provided specific allegations
with corroborative detail regarding an unconstitutional custom and practice trained at FCPS (according to
Haferman) wherein a person’s invocation of their constitutional right to remain silent during a police
encounter itself was treated as an indication of drug/alcohol impairment because it “showed poor judgment
in how to interact with police.” Id. at ¶259.6 Plaintiff has further pleaded in extensive detail both the fact
of and various specifics regarding at least 14 separate similar wrongful DUI arrest instances in just a one-
year span further corroborating FCPS’s persistent and deliberate failure to train and supervise with respect
to Haferman which Plaintiff has alleged quite foreseeably enabled Haferman to inflict the constitutional
violations that he and Heaton personally did on December 3, 2021 to Mr. Elias. Id. at ¶¶37-53.
“Pleading a municipal policy, custom, or practice is like pleading the breach element of negligence –
which is also ultimately a question of fact for the jury.” Griego v. City of Albuquerque, 100 F.Supp.3d
1192, 1213 (D. N. Mex. Apr. 11, 2015). Although ordinarily a plaintiff must demonstrate a pattern of
similar constitutional violations by untrained employees in order to satisfy the deliberate indiff erence
standard, “in a narrow range of circumstances, a pattern of similar violations might not be necessary to
show deliberate indifference.” Id. (citing Connick v. Thompson, 563 U.S. 51, 62 (2011)). Deliberate
indifference may be found “if a violation of federal rights is a ‘highly predictable’ or ‘plainly obvious’
6 It is a “basic – and itself uncontroversial – principle” that “to punish a person because he has done what
the law plainly allows him to do is a due process violation ‘of the most basic sort,’” see United States v.
Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)), and for
a state actor “to pursue a course of action whose objective is to penalize a person’s reliance on his legal
rights is ‘patently unconstitutional.’” Bordenkircher, supra (citing Chaffin v. Stynchcombe, 412 U.S. 17,
32-33, n.20 (1973)).
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consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee
in specific skills needed to handle recurring situations, thus presenting an obvious potential for
constitutional violations.” Id., quoting Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998), citing
Brown, 520 U.S. at 409; see also Canton, 489 U.S. at 390 and n.10. Yet here Plaintiff has, in quite a bit
of detail, pleaded both a pattern of similar violations by the untrained and unsupervised Haferman (14
instances in one year) preceding and succeeding his arrest of Mr. Elias, and he has alleged facts related to
FCPS’s failure to train and supervise Haferman with respect to specific skills needed to handle recurring
situations that presented obvious potential for constitutional violations – namely: That there were at least
three major problems as early as March 2021 that would have been plainly observable to any first-line
supervisor (Heaton) if providing even the barest minimum of supervision: (1) that Haferman was regularly
writing reports in support of his DUI arrests that consistently contained lies and exaggerations that were
obviously contradicted by his and other officers’ BWC videos; (2) that Haferman was not administering
SFSTs correctly to citizens and even still would lie about nonexistent “clues” of impairment from the
same in his reports; and (3) He was regularly muting and deactivating his bodyworn camera during his
citizen contacts and arrests, in violation of FCPS policy and Colorado law. ECF 1-1 at ¶27.
Plaintiff has alleged in his Complaint plainly observable facts revealing an officer clearly engaged in
the repetitive violations of citizens’ rights and who was demonstrating over and over again across multiple
components of his job that without intervention he would only grow bolder in the frequency and nature
of his repetitive violations of citizens’ rights (which he in fact did). Id. at ¶30(d)-(h). Plaintiff has alleged
in factual detail how FCPS was aware of this and chose to do nothing about it, id. at ¶28, and he has
alleged in factual detail how (in the alternative, although for numerous reasons detailed in the Complaint,
this is highly improbable), by FCPS’s own public admissions and statements, Haferman’s supervisors had
been reviewing Haferman’s police work in every “none detected” test result red flag incident, and they
had all, all the way up the chain of command elected to ratify the misconduct in each. Id. at ¶¶184-87.
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It was the City’s obligation to train and supervise Haferman, and the City’s deliberate and knowing
choices made here with respect to Haferman were the impetus and core moving force behind the
constitutional violations (wrongful arrest and malicious prosecution) that Haferman and Heaton inflicted
upon Mr. Elias on December 3, 2021. And not to beat a dead horse, but in case it hasn’t yet been adequately
emphasized enough, some of the actual quotes from Haferman that Plaintiff pleaded in his Complaint
include those made in ¶205, worth repeating here in full:
When interviewed by FCPS’s Professional Standards Unit in the summer of 2022,
Haferman further solidified Plaintiff’s Monell claims, when he stated that throughout his
tenure as FCPS’s DUI Officer he “believed he was doing good work” and that he “didn’t
have any reason to believe he wasn’t doing good work based on no supervisors or experts
in the field saying otherwise.”
It normally takes months of discovery and depositions to get an admission that so clearly establishes a
City’s municipal liability on a claim of failure to supervise/train, and yet here Plaintiff (along with 4 other
Plaintiffs) already has this one at the exceedingly lower detail-pleading stage of a FRCP 12(b)(6) Motion
to Dismiss. Suffice it to say, Mr. Elias has provided fair notice to the City on the grounds for which he is
suing it and he has alleged facts supporting all the elements necessary to establish his entitlement to relief
under Monell. To entertain the arguments made by Defendants in their Motion to Dismiss would require
the reader to ignore vast swaths of Mr. Elias’s well-pleaded complaint while also weighing in on and
resolving dozens of factual disputes that the Defendants attempt to improperly raise in a 12(b)(6) motion
to dismiss. The motion must be denied.
II. Defendant Heaton’s claim that Mr. Elias failed to allege personal participation as to his
Fourth Amendment claim is also without merit.
Mr. Elias is suing Heaton based on theories of both personal and supervisory liability. See Brown
v. Montoya, 662 F.3d 1152, 1163-64 (10th Cir. 2011) (“A § 1983 defendant sued in an individual capacity
may be subject to personal liability and/or supervisory liability”). Plaintiff agrees that those facts he’s
alleged regarding Heaton’s supervisory responsibilities, real and constructive notice of Haferman’s
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constitutional-right violating propensities, and various failures to train or supervise pertain to, and are
essentially part of, the above-discussed Monell claim against the City. But Defendant Heaton also
personally participated in the Fourth Amendment violations Plaintiff Mr. Elias suffered that night. And
for all of that direct, personal participation, Plaintiff has adequately pleaded against Heaton individual
claims for violating his Fourth Amendment rights.
To establish personal liability against a supervisory defendant, a plaintiff must establish “a
deliberate, intentional act by the supervisor to violate constitutional rights.” Jenkins v. Wood, 81 F.3d 988,
994-95 (10th Cir. 1996). The supervisor “must be personally involved in the constitutional violation and
a sufficient causal connection must exist between the supervisor and the constitutional violation.” Serna
v. Colo. Dep’t of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006). Plaintiff agrees with Defendants that
to establish a supervisory liability claim pursuant to § 1983, Plaintiff must assert that the supervisor: (1)
personally participated in the conduct; or (2) exercised control or direction over it; or (3) failed to
supervise it; or (4) failed to train; or (5) tacitly authorized the conduct that resulted in a constitutional
deprivation. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
Plaintiff has alleged all of these facts with respect to Defendant Heaton. He has alleged that after
Mr. Elias requested a breath test and was taken to the station to do it, that Haferman (knowing already
that Plaintiff would blow zeroes) called his supervising Sergeant (Heaton) and discussed with him a plan
to deny Mr. Elias his breath test and instead take him to the hospital for medical care on his knee. ECF
88, ¶108(c); ¶¶116-120. Heaton directed this plan and even met Haferman at the hospital to join him in
executing it. Id. at ¶147. Plaintiff has alleged that Heaton deliberately concealed his BWC video from the
encounter, and purposely chose not to write a report, because he knew very well that he and Haferman
had violated Mr. Elias’s constitutional rights, Colorado law, and FCPS policy, id. at ¶133, and he knew
after personally observing Mr. Elias at the hospital to be “sober, coherent, articulate, and showing no
indication of impairment whatsoever, not even to the slightest degree,” id. at ¶151, that if he were foolish
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enough to write a report, attach his video to the case, or otherwise admit to his involvement, he’d have to
lie about those observations and would be forced to answer for his choice to continue facilitating this
abuse of the rights of an innocent citizen instead of bringing it to a swift end.
Defendant Heaton endeavors to make the issue of his liability hinge on the idea that Mr. Elias
needs to prove Heaton had personal knowledge of “more than two” of Haferman’s wrongful DUI arrests
prior to assisting him with Mr. Elias’s. Defendants Motion to Dismiss, p. 6-7 [ECF 98]. No doubt, Mr.
Elias has pleaded that Heaton had personal knowledge of at least two of Haferman’s prior wrongful DUI
arrests at the time of Mr. Elias’s 7, and had specifically approved of them, ECF 88 at ¶11, but that is not
remotely necessary in the context of facts pleading Heaton’s personal participation in a wrongful DUI
arrest that he knew to be a wrongful DUI arrest independent of what Haferman had done to others before.
Plaintiff has pleaded that Haferman called Heaton and told him he had arrested Mr. Elias for not answering
questions and not doing roadsides, id. at ¶103, and then minutes after that Heaton joined them at the
hospital where he could smell no alcohol on Mr. Elias and knew he was live and in living color staring at
and interacting with a clearly sober individual.8 You do not need to know the arresting officer’s prior
7 Given Heaton’s complete indifference to Haferman’s arrests of the innocent, one has to wonder what
difference Defendants think it would make if Plaintiff had pleaded Heaton’s specific approval of 3 or 4
such prior arrests in his supplemental reports as opposed to 2. Is there a minimum quantity threshold at
which point a supervisor’s ongoing indifference to a subordinate’s constitutional violations will suddenly
trigger accountability regarding the idea of “notice”? If the supervisor has approved of the first two with
zero investigation or follow-up, why would anyone expect him to suddenly jump into proper supervisory
action when signing off on number 3? To that end, it should be noted that even if Mr. Elias was merely
notice event #3 to Heaton, it still resulted in no action, as Haferman went on to wrongfully arrested still
more drivers, including Plaintiff Derrick Groves (23-cv-1339-RM-STV) in the five months that followed).
ECF 88 at ¶211.
8 Defendant Heaton also endeavors to frame the duration of a wrongful seizure or wrongful arrest claim
as somehow both starting and ending at the moment the person is put in handcuffs. See Defendants MTD,
p. 7-8 [ECF 98] (“[T]here are no proper allegations that Sgt. Heaton participated in the decision to arrest
Plaintiff, nor could he because Sgt. Heaton was not on scene at the time of Plaintiff’s arrest.”). If only. A
wrongful seizure/arrest claim matures when the person is seized and does not conclude until they are jailed
or released. See, e.g., Wallace v. Kato, 549 U.S. 384, 389-90 (2007) (reminding that false imprisonment
or false arrest “ends once the victim becomes held pursuant to [legal] process – when, for example, he is
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constitutional violations to be able to recognize the one happening right in front of you. You also don’t
need the person’s chemical test result to realize this type of constitutional violation. Arresting a citizen
without probable cause always violates the Fourth Amendment. Here, Heaton could see Mr. Elias was
sober and unimpaired, id. at ¶151, Heaton directed Haferman away from giving Mr. Elias his requested
breath test because they were specifically concerned it would immediately prove Mr. Elias’s innocence,
id. at ¶99, and Heaton directly approved of Mr. Elias’s continued arrest and jailing, at the hospital, directly
to Haferman, after having made those observations and provided such assistance. Id. at ¶108; ¶¶116-117;
¶¶147-153. All that the law requires for pleading a supervisor’s individual liability are facts alleging that
he “personally directed the violation or had actual knowledge of the violation and acquiesced in its
continuance.” Hinkle v. Beckham County Board of Commissioners, 962 F.3d 1204, 1226 (10th Cir. 2020).
For that threshold, the facts pleaded here seem plenty.
C. Plaintiff has adequately pleaded facts supporting his conspiracy claim.
Plaintiff’s fifth claim for relief is a claim of conspiracy to deprive him of a constitutional right.
ECF 88 at ¶¶331-338. Plaintiff’s subheading for this claim in error stated that the claim was brought
pursuant to 42 U.S.C. § 1985; this was meant to say pursuant to 42 U.S.C. § 1983. It is established that
“‘a conspiracy to deprive a plaintiff of a constitutional or federally protected right under color of state
law’ [i]s actionable.” Snell v. Tunnell, 920 F.2d 673, 701 (10th Cir. 1990) (quoting Dixon v. City of
Lawton, 898 F.2d 1443, 1449 n.6 (10th Cir. 1990)). “In order to succeed on this claim, [a plaintiff] must
prove both the existence of a conspiracy and the deprivation of a constitutional right.” Thompson v. City
of Lawrence, 58 F.3d 1511, 1517 (10th Cir. 1995). Plaintiff has pleaded the deprivation of constitutional
rights (Fourth Amendment wrongful seizure, Fourth Amendment wrongful search (compelled intrusive
bound over by a magistrate or arraigned on charges”). Not being physically present at the moment Mr.
Elias was put into handcuffs is thus immaterial to the determination of whether Sergeant Heaton
knowingly assisted with and directly approved continuing this wrongful Fourth Amendment seizure.
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blood test), and malicious prosecution), so for this claim he must have also pleaded adequate facts “to
give rise to the inference that [the defendants] conspired.” Brever v. Rockwell Int’l Corp., 40 F.3d 1119,
1127 (10th Cir. 1994). He has done so directly and he has done so with reference to considerable conduct
of both defendants that creates compelling inference of such a conspiracy.
“Frequently, a conspiracy must be proven with circumstantial evidence, because ‘[r]arely . . . will
there be direct evidence of an express agreement among all the conspirators to conspire.’” Snell, 920 F.2d
at 702 (alterations in original) (quoting Bell v. City of Milwaukee, 746 F.2d 1205, 1260 (7th Cir. 1984)).
The “sequence of events” may be sufficient “to ‘infer from the circumstances that the [conspirators] had
a “meeting of the minds.”’” Brever, 40 F.3d at 1127 (alteration in original) (quoting Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970)). And “proof of an agreement to deprive often will require examination
of [the conspirators’] conduct,” Snell, 920 F.2d at 702; see also Mendocino Envtl. Ctr. v. Mendocino Cty,
192 F.3d 1283, 1301 (9th Cir. 1999) (noting a conspiratorial agreement may not be overt and “may be
inferred on the basis of circumstantial evidence such as the actions of the defendants”). Very rarely will
anyone be able to prove through conspirator testimony that the conspiracy existed, but very often can we
take a look at the specific actions, choices, and conduct of the conspirators and deduce a conspiracy to
violate someone’s rights to be an unavoidable explanation. And it is certainly not a good start on the
reasonable-inferences-from-Defendants’-conduct front when one examines the efforts undertaken by both
Heaton and Haferman to mute their BWC videos for each of their repeated discussions by phone and in
person during Mr. Elias’s seizure, and, in Heaton’s case, to see the further efforts he took afterward to
hide his own BWC video from being discovered. Haferman and Heaton’s joint preoccupation with
ensuring none of their discussion is recorded (while working in a profession that otherwise generally
requires constant recording) alone is compelling circumstantial evidence of a conspiracy. And Plaintiff
has alleged far more than that.
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D. Defendant Heaton is not entitled to qualified immunity.
To overcome qualified immunity, Plaintiff must have alleged facts in his Complaint that establish
the Defendant violated a constitutional right and that the right was clearly established at the time of the
conduct. Plaintiff has so alleged such facts with respect to the plenary Fourth Amendment violations he
experienced that night, and, for each such form of Fourth Amendment violation, the particular right at
issue was clearly established.
1. The right to be free of unreasonable seizure is clearly established.
Plaintiff has pleaded that he was subjected to an unreasonable seizure and arrest by Haferman that
Heaton both directed and personally participated in. In addition to actually being specifically written out
in the Fourth Amendment itself, it has long been established that officers may not arrest or otherwise
subject an individual to extended detention without probable cause. U.S. v. Davis, 94 F.3d 1465, 1468
(10th Cir. 1996); see also Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (“In the context of an
unlawful arrest our [qualified immunity] analysis is simple, for the law was and is unambiguous: a
government official must have probable cause to arrest an individual.”); see also Holland ex rel. Overdorff
v. Harrington, 268 F.3d 1179, 1196 (10th Cir. 2001) (“It is also clearly established that police use of force
in seizing and detaining a person, particularly a bystander not suspected of any wrongdoing, must be
justified under all of the circumstances.”); U.S. v. Espinosa, 782 F.2d 888, 890 (10th Cir. 1986) (An arrest
is “a seizure characterized by highly intrusive or lengthy search or detention”).
Plaintiff has pleaded the categorical and obvious absence of probable cause in his case and in over a
dozen wrongful Haferman DUI arrests to precede his, and, he has pleaded plenary specifics as to Heaton’s
personal, actual, and (for likely some of the prior wrongful arrests due to Heaton’s ongoing willful failure
to ever look once at any of Haferman’s videos) constructive knowledge of the same. Plaintiff has also
pleaded that he was subjected to an intrusive, extended seizure (transport to hospital for blood draw and
three days in jail) which Defendant Heaton both first personally directed Haferman to do, and which he
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then moments later showed up on site and assisted Haferman in doing for the entire period thereafter.
Qualified immunity offers no shelter to such brazen and knowing misconduct.
2. The right to not be maliciously prosecuted is clearly established.
The elements of malicious prosecution are: (1) the defendant caused the plaintiff’s continued
confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) there was no
probable cause to support the original arrest, continued confinement, or prosecution; (4) the defendant
acted with malice; and (5) the plaintiff sustained damages. Novitsky v. City of Aurora, 491 F.3d 1244,
1257-58 (10th Cir. 2007). The facts as alleged in Mr. Elias’s amended complaint, presumed true, meet
all of these elements and, therefore, are sufficient to state a valid malicious prosecution claim against
Heaton. Defendants’ arguments for dismissal of this claim focus solely on Mr. Elias’s initial arrest, and
fail to address Heaton’s role in Mr. Elias’s continued confinement and prosecution. However, as already
discussed at length supra, Plaintiff has pleaded both supervisory liability and personal involvement on
Heaton’s part with respect to the malicious prosecution claim.
3. The right to be free of unreasonable search is clearly established.
“The [Fourth] Amendment prohibits ‘unreasonable searches’ and our cases establish that the
taking of a blood sample or the administration of a breath test is a search.” Birchfield v. North Dakota,
136 S. Ct. 2160, 2173 (2016) (citations omitted). Blood tests are “searches involving intrusions beyond
the body’s surface,” and these searches have long been considered particularly invasive with particularly
heightened implications for “interests in human dignity and privacy.” Id. at 2183 (citations and quotations
omitted). Probable cause (or a warrant) is, again, long established as being required before law
enforcement can subject a person to such an intrusive search. Id.; Missouri v. McNeely, 569 U.S. 141,
151-52 (2013).
Plaintiff has pleaded that probable cause did not exist to subject him to such a search. Plaintiff has
pleaded that the absence of such probable cause was immediately apparent to all involved, including
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Defendant Heaton personally. Plaintiff has pleaded that Defendant Heaton recognized the issues related
to the absent probable cause and that rather than intervening to stop the ongoing constitutional violation,
he made certain to violate Colorado law and FCPS policy by not activating his BWC video while
interacting with Plaintiff (and deliberately not making any record of Plaintiff’s formal complaints made
to him at the hospital re: the ongoing constitutional violations, again in violation of FCPS policy and
Colorado law) and instead gave Haferman directions, permission, and suggestions for how to best effect
this unreasonable search and continued unreasonable seizure upon the helpless Mr. Elias. Qualified
immunity does not apply. Defendants’ Motion must be denied.
Respectfully submitted this 3rd day of June, 2024.
/s/ Sarah Schielke
Sarah Schielke
The Life & Liberty Law Office LLC
1055 Cleveland Avenue
Loveland, CO 80537
P: (970) 493-1980
E: sarah@lifeandlibertylaw.com
Counsel for Plaintiff
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CERTIFICATE OF SERVICE
This is to certify that on June 3, 2024, a true and accurate copy of the foregoing Response has been sent
to the following parties by PACER/ECF:
Mark Ratner
Katherine Hoffman
Hall & Evans, LLC
Attorneys for Defendants City of Fort Collins
and Sergeant Allen Heaton
Yulia Nikolaevskya
Jonathan Abramson
Kissinger & Fellman, P.C.
Attorneys for Defendant Jason Haferman
/s/ Sarah Schielke
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