HomeMy WebLinkAbout2022-cv-1983 - Townley v. Fort Collins, et al - 094 - Dfs' Reply iso Mot Summ JIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-CV-01983-SKC
MICHAEL PIPER TOWNLEY and ANNA KRUGER;
Plaintiffs,
v.
BRIAN MALLORY, in his individual capacity;
DANIEL NETZEL, in his individual capacity; and
JARED ROBERTSON, in his individual capacity;
Defendants.
DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Defendants, through their counsel, respectfully submit this Reply in Support of Motion for
Summary Judgment [ECF 78], as follows:
ARGUMENT
I. This Case Presents No Cognizable Malicious Prosecution Claims.
a. Anna Kruger.
Kruger cannot establish her criminal matter terminated in her favor. Although the charges
for disorderly conduct and resisting arrest were dismissed, Kruger pled guilty and paid a fine on
her fireworks charge. Kruger contends a charge-by-charge approach is “the prevailing law,” but
she ignores recent decisions in this Circuit. The Tenth Circuit declined to find a favorable
termination when a plaintiff pled guilty on at least one charge. See Van De Weghe v. Chambers,
569 Fed. Appx. 617, 619-620 (10th Cir. 2014) (“Mr. Van De Weghe's own complaint admits facts
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showing that the defendants had probable cause to pursue at least one charge against him. … [T]he
defendants possessed probable cause to pursue an evidence tampering charge at every point in the
proceedings — and thus cannot be said to have engaged in malicious prosecution.”); Montoya v.
Vigil, 898 F.3d 1056, 1067-1068 (10th Cir. 2018); Livingston v. Unified Gov’t of Wyandotte
Cnty., 2023 U.S. Dist. LEXIS 122804, at *10-11 (Dist. Kan. July 17, 2023) (“Plaintiff cannot
demonstrate that no probable cause supported his arrest or prosecution where he was found guilty
of one charge.”). In Guinn v. Unknown Lakewood Police Officers, 2010 U.S. Dist. LEXIS
121429, at *14-15 (Dist. Colo. Sept. 30, 2010), the Court determined a total transaction approach
was the “more logical approach,” finding:
[T]he favorable termination of some but not all individual charges does not
necessarily establish the favorable termination of the criminal proceeding as a
whole. It is rare that a defendant pleads guilty to every charge against him when
there are multiple charges. The more logical approach is to consider as a total
transaction whether the activity forming the basis for the arrest is the same as the
activity to which the defendant pleaded guilty.
Id. at *14-15 (internal citations and quotations omitted).
Kruger’s reliance on Stewart v. City of Boulder, 2020 U.S. Dist. LEXIS 160058, at *23-
27 (Dist. Colo. March 5, 2020), is misplaced. In Stewart, the plaintiff attempted a malicious
prosecution claim and alleged the prosecutor declined to retry criminal charges against him
because of concerns the prosecution may not secure a conviction. Here, Kruger submits no
evidence establishing prosecutors had misgivings about her criminal charges or the underlying
investigation.
Kruger has not, and cannot, establish any of the Defendants acted with malice because the
Defendants possessed arguable probable cause to arrest her. Arguable probable cause exists when
a defendant "in the same circumstances and . . . possessing the same knowledge as the officer in
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question could have reasonably believed that probable cause existed in light of well-established
law." Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 879 (10th Cir. 2014). Kruger also ignores
her guilty plea to the fireworks charge addressed above, and the charge for resisting arrest clearly
documented in body camera footage. [See Defendants’ Statement of Undisputed Material Facts
(“DSUMF”), at ¶¶58-59]. Arguable probable cause existed based on (1) her proximity to the fight,
(2) her statements to officers, and (3) because the Defendants articulated facts establishing Kruger
interfered in Plaintiff Townley’s arrest and ran away after being informed she was also under
arrest. [DSUMF, at ¶¶54-55, 57-59]. Probable cause, (or at a minimum, arguable probable cause),
existed for an arrest on charges of disorderly conduct and resisting arrest. Additionally, probable
cause existed for the fireworks charge, confirmed by Kruger’s guilty plea.
To show malice, Kruger relies on pre-arrest statements made by Sgt. Mallory regarding
Antifa. The statements are immaterial, because Kruger has not established they were directed at
her, nor could she. The statements were made earlier in the day, at a time when Kruger had not yet
interacted with Defendants, and Kruger does not allege the statements were directed to her. Kruger
believes “these [Sgt. Mallory’s] statements suggest a strong dislike for ‘Antifa’ which Mr. Mallory
associates with Kruger.” Kruger offers no citation for this allegation. [ECF 85, p. 4]. The fact that
Sgt. Mallory expressed a concern with Antifa earlier in the day [and no facts to suggest he arrested
any individuals he perceived to be associated with Antifa, see Plaintiffs’ Statement of Additional
Disputed Facts (“PSADF”), at ¶¶80, 82, 84, 86, 89], does not support the separate assertion that
Sgt. Mallory (1) believed Kruger was a member of Antifa and (2) arrested her based on his belief.
There simply is no evidentiary support for Plaintiffs’ assertion.
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Kruger’s claims against Officers Netzel and Robertson are even more tenuous, and she has
not met her burden to show Officers Netzel and Robertson personally participated in her
prosecution. Regarding Officer Netzel, Kruger argues he complained about an unidentified woman
reporting an incident where someone spit at her, and she then threatened to spit at others. [PSADF,
at ¶91]. This assertion is irrelevant, however: the unidentified woman is not a plaintiff; Kruger was
not present for this interaction; and Officer Netzel’s statement did not refer to Kruger. Moreover,
Plaintiff includes no facts connecting Officer Robertson to her prosecution.1
b. Michael Piper Townley
Plaintiffs do not address Defendants’ argument that “Townley’s malicious prosecution
claim against the remaining Defendants should be dismissed as well, as there is no evidence
establishing that Robertson and Netzel were involved in the decision to arrest and prosecute
Townley.” [ECF, 78, at p. 11; ECF 85, at pp. 5-8]. Thus, Townley’s malicious prosecution claims
against Officers Netzel and Robertson are waived. See Goodwin v. General Motors Corp., 275
F.3d 1005, n. 1 (10th Cir. 2002).
Townley is unable to establish an absence of probable cause or malice by Sgt. Mallory,
underlying her charge. [DSUMF, at ¶57]. Townley attacks the on-scene investigation by Sgt.
Mallory, including an alleged failure to conduct a credibility assessment of an individual in a blue
shirt, who responded to Sgt. Mallory’s inquiry about Townley’s involvement in the fight. Townley
argues this blue-shirted individual was allegedly untruthful later in the day; however, no causal
1 In the Response, Plaintiffs refer one time to Officer Robertson and one time to Officer
Netzel, in the confession of their false arrest claims against Officers Robertson and Netzel.
Plaintiffs refer to Officer Netzel three other times, rehashing the same statement by Officer Netzel
discussing the unknown female. [ECF 85, at pp. 4, 11, 14].
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connection between this individual’s subsequent statements and Sgt. Mallory’s actions is
established.
While officers cannot ignore available and undisputed facts, see Baptiste v. J.C. Penney
Co., 147 F.3d 1252 (June 30, 1998), they are “not required to explore and eliminate every
theoretically plausible claim of innocence before making an arrest.” Marquez v. Norton, 2010 U.S.
Dist. LEXIS 115716, at *11 (Dist. Colo. Oct. 29, 2010) (citations omitted). This is especially true
in exigent circumstances such as a protest/counterprotest rife with contentious civil dialogue
between individuals of different viewpoints. See DSUMF, ¶69; Lucero v. Valdez, 2008 U.S. Dist.
LEXIS 143043, at *33 (Dist. N.M. March 27, 2008), citing Kuehl v. Burtis, 173 F.3d 646, 650
(8th Cir. 1999).
II. This Case Presents No Cognizable False Arrest Claims.
When a warrantless arrest is the subject of a §1983 action, the defendant arresting officer
is "entitled to immunity if a reasonable officer could have believed that probable cause existed to
arrest" the plaintiff. Hunter v. Bryant, 502 U.S. 224, 228 (1991). "Even law enforcement officials
who 'reasonably but mistakenly conclude that probable cause is present' are entitled to
immunity." Hunter, 502 U.S. at 227. Sgt. Mallory had probable cause—or at a minimum, arguable
probable cause—to arrest Plaintiffs and, therefore, he is entitled to qualified immunity on these
claims. The basis for Sgt. Mallory’s probable cause determinations is outlined in Defendants’
DSUMF [for Kruger, see DSUMF, ¶¶48-52, 54-59; for Ms. Townley, see DSUMF ¶¶48-57].
Plaintiffs attack the trustworthiness of information provided by the male in the blue shirt regarding
Townley engaging in fighting. There are several problems with Plaintiffs’ argument, however: (1)
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Plaintiffs’ credibility concern 2 with the male in the blue shirt largely relies on this individual’s
post-fight activities and statements, which Plaintiffs have not, and cannot, establish Sgt. Mallory
was involved in or aware of at the time he directed officers to arrest Townley absent clairvoyance;
and (2) Sgt. Mallory’s decision to arrest Townley was based on more than just the statement by
the male in the blue shirt. Indeed, the statement by the male in the blue shirt corroborated Sgt.
Mallory’s on-scene observations, including that Townley was winded and had observable injuries.
[See DSUMF ¶¶54-57]. Even a mistaken determination by Sgt. Mallory will not vitiate arguable
probable cause. Finally, nothing in Plaintiffs’ response addresses the volatile situation Sgt. Mallory
encountered or had a continuing obligation to monitor. Plaintiffs have not provided any caselaw
establishing their rights were clearly established and violated by Sgt. Mallory in the unique exigent
circumstance of a volatile protest/counterprotest.
III. This Case Presents No Cognizable Free Speech or Retaliation Claims.
Plaintiffs acknowledge their free speech and First Amendment retaliation claims are
“closely related.” [ECF 85, p. 11]. That is incorrect—their claims are identical. In sum, Plaintiffs
allege they engaged in free speech; Defendants arrested them; and Defendants arrested them
because they did not like Plaintiffs’ speech. Such allegations support only a retaliation claim
properly analyzed under the framework articulated in Worrell v. Henry, 219 F.3d 1197 (10th Cir.
2000). Sodaro v. City & Cnty. of Denver, U.S. Dist. LEXIS 170904, *19-20 (D. Colo. September
21, 2022), citing Valdez v. New Mexico, 109 F. App'x 257, 263 n.4 (10th Cir. 2004). Plaintiffs do
not allege there were any prior restraints on their speech. Indeed, Plaintiffs do not allege any police
2 It is improper for the Court to make credibility determinations on summary judgment.
Hansen v. PT Bank Negara Indon. (Persero), 706 F.3d 1244, 1251 (10th Cir. 2013).
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officers interfered with or limited their speech while Plaintiffs were in front of the FCPS building
during the demonstration. Plaintiffs also do not point to any policies, practices, or regulations
restricting their ability to speak during the rally.
Plaintiffs cite Sexton v. City of Colo. Springs, 530 F. Supp. 3d 1044, 1065 (D. Colo. 2021),
for the proposition, “An arrest by a police officer can give rise to a claim for a content-based
restriction on free speech.” (Emphasis added). The Sexton Court relied on the Sixth Circuit’s
decision in Logsdon v. Hains, 492 F.3d 334, 346 (6th Cir. 2007), for this proposition. Sexton and
Logsdon are distinguishable from the present case, however. In Sexton, an officer arrested the
plaintiff, who was present on a public sidewalk, immediately after the plaintiff “flipped off” the
officer. Sexton, 530 F. Supp. 3d at 1052. In Logsdon, officers removed plaintiff from a public
forum due to the content of his speech. 492 F.3d at 345-46. In both Sexton and Logsdon, the
officers’ actions arguably resulted in the plaintiffs’ arrests AND silenced their immediately
preceding speech in a public forum. Thus, bringing free speech and First Amendment retaliation
claims would not be duplicative in those factual scenarios. But that is not the situation here.
Plaintiffs’ arrests were made in a grassy area behind a house – away from the FCPS
building where the protests were occurring – after Plaintiffs were leaving the protests. Other than
a conclusory assertion that Plaintiffs engaged in speech in a public forum, Plaintiffs make no effort
to establish the grassy area was a public forum. Also, there are different categories of public
forums, but Plaintiffs fail to identify which category applies to the grassy area. Regardless, it is
not clear as a matter of law that a grassy area behind a house is a public forum under any category.
Moreover, Plaintiffs do not allege they were engaged in protected speech at the time of their
arrests; rather, they admit they were in the process of leaving the area.
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Defendants are also entitled to summary judgment on Plaintiffs’ First Amendment
retaliation claim. Defendants argue Plaintiffs have not established they engaged in protected
speech in the timeframe immediately leading to their arrests. Plaintiffs respond by faulting
Defendants for not citing a case standing for this proposition. [ECF 85, p. 12]. Plaintiffs, however,
misunderstand their burden- it is their burden - not Defendants’ - to prove their First Amendment
retaliation claim. This burden includes proving they participated in protected speech. Moreover,
Plaintiffs do not address Worrell’s intent requirement. Plaintiffs must prove the "defendant's
adverse action was substantially motivated as a response to the plaintiff's exercise of
constitutionally protected conduct."3 219 F.3d at 1212-13. Worrell explains that proof of a
defendant’s intent is “the key element” in a First Amendment retaliation claim. Id. at 1215 (“Under
that framework, the defendant's intent is the key element. ‘An act taken in retaliation for the
exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken
for a different reason, would have been proper.’”). Here, Plaintiffs have not established any of the
Defendants had knowledge or awareness of Plaintiffs’ speech earlier in the day at a different
location. Plaintiffs also do not allege they engaged in any protected speech critiquing police in the
presence of Defendants just before their arrests. Moreover, Plaintiffs were not carrying any anti-
police signs. Plaintiffs rely on Sgt. Mallory’s earlier statements expressing concern with Antifa,
which Plaintiffs have not established were made in reference to them. Plaintiffs have not
established the decisions to arrest them by Sgt. Mallory was substantially motivated by their
speech; indeed, such a showing is impossible because Plaintiffs have not established Sgt. Mallory
3 Plaintiffs do not cite the correct framework under Worrell. Plaintiffs allege they must
prove the officers’ conduct was “motivated” by Plaintiffs’ speech [ECF 85, at p. 12], but the
complete language is “substantially motivated.” 219 F.3d at 1215.
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had any knowledge of the substance of their earlier speech. Again, Plaintiffs’ allegations against
Officers Netzel and Robertson are even more attenuated and fail to establish personal participation
in any alleged violations. Plaintiffs rehash Officer Netzel’s earlier statement about an unrelated,
unknown female, and Plaintiffs cite no statements or conduct in support of their claim against
Officer Robertson.
Finally, Plaintiffs have not established the exception outlined in Nieves v. Bartlett, 587
U.S. 391 (2019), applies in this case. In Nieves, the Supreme Court held, “the no-probable-cause
requirement should not apply when a plaintiff presents objective evidence that he was arrested
when otherwise similarly situated individuals not engaged in the same sort of protected speech had
not been.” Id. at 407. Here, Plaintiffs have produced no objective material evidence establishing
they engaged in protected speech and were arrested, but other individuals who were not engaged
in protected speech were not arrested. This exception logically requires that Defendants were
aware of Plaintiffs’ alleged protected speech, which – again – Plaintiffs have failed to establish.
IV. This Case Presents No Cognizable Selective Enforcement Claim.
Plaintiffs cannot establish Defendants’ actions “had a discriminatory effect and were
motivated by a discriminatory purpose.” Haskett v. Flanders, 2014 U.S. Dist. LEXIS 179691, at
*16 (D. Colo. Dec. 12, 2014) (citations omitted). Plaintiffs include no assertion in support of their
claim against Officer Robertson, other than Officer Netzel’s irrelevant comment regarding
interactions with an unrelated female—this is insufficient to establish their personal participation
in Plaintiffs’ underlying arrests (indeed, Plaintiffs confessed their unlawful arrest claims against
Officers Robertson and Netzel) or that they possessed the requisite mental state. Regarding Sgt.
Mallory, Plaintiffs repeat the same allegations regarding Sgt. Mallory’s earlier statements about
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Antifa. But repetition does not transform Plaintiffs’ immaterial allegations into material ones. Sgt.
Mallory’s statements about Antifa were made earlier in the day and not in reference to Plaintiffs.
Plaintiffs have not alleged Sgt. Mallory was present when they allegedly engaged in protected
speech in front of the FCPS building or that he knew or was aware of their alleged protected
speech. Plaintiffs have not alleged Sgt. Mallory made any statements to them (or about them)
regarding their alleged protected speech and have not alleged he made any statements to them
connecting them with Antifa. Notably, Sgt. Mallory permitted other members of Plaintiffs’ group
(who he did not have probable cause to believe committed a crime) to leave the scene. Sgt. Mallory
policed the protest/counterprotest before the fight and made observations of individuals he
believed to be Antifa, but he did not arrest them, instead allowing them to express their views
without intervening. Finally, Sgt. Mallory alerted Lt. Murphy to his concerns that he was unable
to conduct a complete on-scene investigation; Detective O’Loughlin was thereafter assigned to
investigate the fight in the ditch and his investigation resulted in charges against additional
individuals. The standard for proving a selective enforcement claim is “demanding,” and
Plaintiffs’ presentation of conclusory and immaterial assertions fail to create a disputed issue of
material fact on their claim. Barwick v. Behnke, 2012 US Dist. LEXIS 171713, at *11-16 (D.
Colo. Nov. 13, 2012).
CONCLUSION
For the foregoing reasons, Defendants respectfully request this Court grant them summary
judgment on Plaintiffs’ claims, dismiss this case in its entirety with prejudice, and for all other and
further relief as this Court deems just and appropriate.
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AI CERTIFICATION
No part of this Reply was generated or drafted by AI.
Respectfully submitted this 14th day of June, 2024.
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Andrew D. Ringel, Esq.
Katherine N. Hoffman, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
ringela@hallevans.com
hoffmank@hallevans.com
ATTORNEYS FOR DEFENDANTS
BRIAN MALLORY, DANIEL NETZEL,
AND JARED ROBERTSON
CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on this 14th day of June 2024, a true and correct copy of the foregoing
DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was
filed by CM/ECF and was served on all counsel of record.
s/ Sarah Stefanick
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