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Home My WebLink About2022-cv-1983 - Townley v. Fort Collins, et al - 095 - Dfs' Reply Statement 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. MOVING PARTY’S REPLY STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Moving Party’s Undisputed Material Facts and Supporting Evidence Opposing Party’s Response/Additional Facts and Supporting Evidence Moving Party’s Reply and Supporting Evidence 1. On August 8, 2020, there was a back the blue rally in Fort Collins attended by protestors expressing pro- police viewpoints. [Fort Collins Police Services “FCPS” Operational Plan, Officers 00078-81, Exh. A, a 00078; Kruger Dep., Exh. B, at 104:22-105:4]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 1 of 55 2. Black Lives Matter (“BLM”) protestors and individuals protesting police conduct attended this event in counterprotest. [FCPS Operational Plan, Exh. A, at 00078; Kruger Dep., Exh. B, at 104:22-105:4]. Disputed in part. FCPS Protest Mission Planning document referred to the protest as “Blue Lives Matter (Young Republican’s- 3:00 pm) VS Defund the Police (BLM - 3:00pm).” See Ex. A. Undisputed. Defendants admit Plaintiffs’ additional fact but note it is immaterial. 3. Before the rally, there was a briefing attended by FCPS officers policing the rally. During the briefing, officers were notified of their assigned positions and responsibilities. [FCPS Operational Plan, Exh. A, at 00078-81; Netzel Dep., Exh. C, at 24:4-22; Mallory Dep., Exh. D, at 35:5-11]. Undisputed. 4. Lieutenant Weaver was the Incident Commander during the rally. Lieutenant Murphy was the Tactical Operations Commander. Lieutenant Weaver and Lieutenant Murphy managed FCPS’ response to the rally from the command post in the FCPS building. Lieutenant Weaver and Lieutenant Murphy watched drone footage and directed FCPS’ resources as needed during the rally. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 2 of 55 [FCPS Operational Plan, Exh. A, at 00079; Netzel Dep.,Exh. C, at 48:2-24; Mallory Dep., Exh. D, at 37:11-24;39:3-11]. 5. FCPS established two- foot patrol teams to police the rally, in addition to other response units. Both teams were in uniform, and both teams consisted of five officers (ten officers total). The teams were tasked with monitoring and responding to incidents during the rally as needed and/or directed. [FCPS Operational Plan, Exh. A, at 00079-80]. Disputed. The exhibit cited provides no basis for the statement “The teams were tasked with monitoring and responding to incidents during the rally as needed and/or directed.” Disputed. There is support for Defendants’ fact in the summary judgment record. [FCPS Operational Plan, Exh. A, at 00078-79; Sgt. Mallory Dep., Exh. D, at 39:3-9; Van Sickle Dep., Exh. Y, at 16:9-17:5; 20:9-21:4]. 6. The following FCPS officers were assigned to Foot Patrol Team 1: Officer Robertson, Officer Netzel, Officer Schilz, and Officer Van Sickle. Sergeant Mallory was tasked with overseeing Foot Patrol Team 1. [FCPS Operational Plan, Exh. A, at 00079; Netzel Dep., Exh. C, at 33:16- 20]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 3 of 55 7. Officer Haferman and Officer Young were assigned to transport vehicles. [FCPS Operational Plan, Exh. A, at 00080]. Undisputed. 8. Ms. Kruger and Ms. Townley are acquaintances. They met prior to August 8, 2020. [Townley Dep., attached as Exh. E, at 76:9-23]. Undisputed. 9. Before the rally, Ms. Kruger circulated an electronic flyer to Ms. Townley via Signal (an encrypted messaging service) containing information for individuals wishing to provide medical and other assistive support to counter protestors at the rally. The flyer included a meet location, which was an apartment complex parking lot near the FCPS building. Ms. Kruger did not create the flyer. [Kruger Dep., attached as Exh. B, at 82:13-83:22; 84:15-23; Townley Dep., Exh. E, at 70:3-72:3; 72:16- 74:22]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 4 of 55 10. Ms. Kruger, Ms. Townley discussed the rally and decided to attend together. [Kruger Dep., Exh. B, at 82:13- 83:22; Townley Dep., Exh. E, at 70:3-72:3]. Undisputed. 11. Ms. Kruger attended the rally as a counter-protestor. Ms. Kruger did not consider or label herself as a medic. [Kruger Dep., Exh. B, at 82:13-19; 98:18-99:9; 104:3- 6; 110:3-9]. Undisputed. 12. Ms. Townley attended the rally to protest racial justice and to provide medical support to counter-protestors. [Townley Dep., Exh. E, at 59:22-60:5; 68:15-69:7]. Undisputed. 13. Ms. Townley was “absolutely” concerned the rally could incite violence in the City. Ms. Townley voiced her concerns to Ms. Kruger. [Townley Dep., Exh. E, at 66:2-67:3]. Disputed. The evidence cited does not support this contention. Mx. Townley stated that she was concerned about people being hurt. Ms. Townley makes no mention of a concern that the rally could “incite violence.” Disputed. Support for Defendants’ fact comes from Ms. Townley's deposition testimony. [Ms. Townley Dep., Exh. E, at 66:2-67:3, in response to the question "...you had a concern that Back the Blue rally could invite some violence...", Ms. Townley responded, "That is correct..."]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 5 of 55 14. Ms. Kruger wore all black attire to the rally; her purpose in doing so was to conceal her identity from individuals affiliated with far-right groups. [Kruger Dep., Exh. B, at 102:16-103:21]. Undisputed. 15. Ms. Kruger carried a backpack containing first aid supplies, empty syringes (for eye flushes), fireworks, and a collapsible baton (for self- defense). [Kruger Dep., Exh. B, at 109:13-110:2; 111:1-11; 124:14-125:7]. Undisputed. 16. Ms. Townley wore all black attire. She did so for two reasons: (1) to express solidarity with the BLM movement and (2) to conceal her identity from individuals affiliated with far-right groups. [Townley Dep., Exh. E, at 78:8-80:22]. Undisputed. 17. Ms. Townley carried a backpack containing first aid supplies. Ms. Townley wore “low profile-type 3A body armor” providing protection from firearm ammunition up to 45-caliber rounds. Ms. Townley affixed a cross to her chest with red tape to identify herself Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 6 of 55 as a street medic. Ms. Townley also carried her phone, wallet, and keys in her pants pocket. [Townley Dep., Exh. E, at 80:23-81:23; 83:5-24; 84:8-16; 84:22-85:8]. 18. Ms. Kruger and Ms. Townley met with others, including Rob (last name unknown), Lloyd Porsche, Hannah (last name known), and unknown others, at the meet location—the apartment complex parking lot. Ms. Kruger got lost and was late to arrive at the meet location. [Kruger Dep., Exh. B, at 84:5-23; 86:2-20; Townley Dep., Exh. E, at 73:3-16; 86:11-87:12]. Undisputed. 19. While in the parking lot, the group discussed the use of signals to communicate with each other at the rally. The group agreed upon the following hand signal if a group member perceived a safety concern—“[hands] just over your head, fist to palm, tap, tap.” The group discussed a leave protocol. [Townley Dep, Exh. E, at 87:13-88:11]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 7 of 55 20. The group considered whether it was too dangerous for them to attend this event. One of the group members received a text message from a friend near the FCPS building who indicated he/she was being harassed by protestors. The group decided to walk to the police station and extract the counter protestors from the rally. [Townley Dep., Exh. E, at 88:5-90:3; 93:17-95:4]. Undisputed. 21. Ms. Kruger has limited knowledge of police practices; Ms. Townley has no knowledge of police practices.[Kruger Dep., Exh. B, at 71:3-22; Townley Dep., Exh. E, at 95:5-96:4]. Undisputed. 22. Ms. Townley did not call 911 to report the contents of the text message or to request police assistance with the extraction. Ms. Kruger also did not call 911. Ms. Kruger did not bring her cell phone to the rally pursuant to her personal practice. [Kruger Dep., Exh. B, at 115:20-116:12; Townley Dep., Exh. E, at 96:5-22]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 8 of 55 23. Ms. Kruger, Ms. Townley, and the group walked from the parking lot to the FCPS building. [Townley Dep., Exh. E, at 96:23-97:9]. Undisputed. 24. There were several hundred people assembled in front of the FCPS building. [Townley Dep., Exh. E, at 97:10-12]. Undisputed. 25. In attendance at the rally, there was a large number of pro-police protestors and a smaller number of individuals believed to be members of far-right organizations like the Proud Boys and the Three Percenters. [Townley Dep., Exh. E, at 101:7-102:9]. Undisputed. 26. The counter protestors that Ms. Kruger and Ms. Townley’s group had gone to the rally to extract ended up being “fine”. No extractions were performed by Ms. Kruger and Ms. Townley’s group. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 9 of 55 [Townley Dep., Exh. E, at 89:24-90:3]. 27. Ms. Kruger and Ms. Townley protested through their “existence” and “presence.” [Kruger Dep., Exh. B, at 100:6-15; Townley Dep., Exh. E, at 69:6-7]. Undisputed. 28. Ms. Kruger and Ms. Townley did not bring or carry any signs. [Kruger Dep., Exh. B, at 100:16-19; Townley Dep., Exh. E, at 69:8-9]. Undisputed. 29. Ms. Kruger did not participate in any chants. Ms. Townley alleges she chanted but does not recall any of the chants in which she participated. [Kruger Dep., Exh. B, at 120:21- 121:4; 121:24-122:7; Townley Dep., Exh. E, at 69:10- 13]. Disputed. Although Ms. Kruger did not engage in chanting, she did engage in dialogue as part of her protest activity. Ex. B 120:24-25. Plaintiffs do not dispute Defendants’ fact. Plaintiffs’ additional fact should be in their Supplemental Statement of Additional Disputed Facts (“SSADF”). Undisputed that Ms. Kruger so testified. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 10 of 55 30. Ms. Kruger and Ms. Townley remained in front of the police station for approximately 45 minutes. [Kruger Dep., Exh. B, at 112:4-9]. Undisputed. 31. After approximately ten minutes in front of the FCPS building, Ms. Kruger was approached by Brian Wooley, a protestor. Mr. Wooley spoke negatively to Ms. Kruger. [Kruger Dep., Exh. B, at 118:10-13; 124:1-10]. Disputed. Mr. Wooley crossed the street to verbally berated Ms. Kruger. Among the statements made by Mr. Wooley is that Ms. Kruger was a “fairy fruit-loop faggot.” Ms. Kruger relayed that Mr. Wooley was trying to taunt people to fight him in the street, he made fun of people, he made various insults and he generally taunted and challenged people. See Ex. 1, 107:6-108:8. Undisputed. Plaintiffs do not dispute Defendants’ fact. Plaintiffs' additional facts should be included in their SSADF. Regarding Plaintiffs’ additional facts, Defendants admit Ms. Kruger so testified. 32. Ms. Kruger was body- checked a few times by protestors. Ms. Kruger was not subjected to any other force in front of the FCPS building. [Kruger Dep., Exh. B, at 112:24-113:3]. Disputed. Ms. Kruger was body checked by “some Back the Blue people.” Ex. B, 112:24-113:3. Plaintiffs do not dispute Defendants’ fact. Ms. Kruger testified, "I was body-checked a couple of times by, like, some Back the Blue people...". Individuals attended the Back the Blue rally to protest, and Ms. Kruger attended the event in counterprotest. Thus, there is no dispute regarding ¶32. [See Defendants’ Undisputed Material Facts, ¶¶1-2, supra]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 11 of 55 33. At some point, the protestors and counter protestors intermingled. There was a lot of yelling by both sides. [Kruger Dep., Exh. B, at 121:5-9; 122:11-15; 125:19-126:3]. Disputed. Ms. Kruger and Ms. Townley were approached by the Back the Blue side. Ex. 1 118:5-7. The Back the Blue people came over to Ms. Kruger and Mx. Townley within seconds. Ex. 1 121:2-10. The Back the Blue people were bodychecking people and pushing into the counterprotest area. Ex. 1 125:19-126:3. Indeed, Ms. Kruger explicitly rejected Mr. Ratner’s description of intermingling. Ex. 1 126:4-13. Plaintiffs do not dispute there was a lot of yelling by both sides. [Kruger Dep., Exh. B, at 121:5-9]. Defendants do not dispute Plaintiffs' additional facts, which should be in their SSADF. Regarding the intermingling of protestors and counter protestors, it is admitted Ms. Kruger testified Back the Blue protestors approached counter protestors’ location on the opposite sidewalk and pushed into this area, intermingling with counter protestors. [Kruger Dep., at 125:17-126:13]. 34. Ms. Townley described the atmosphere created by the more extreme protestors as intimidating. Ms. Townley believed the more extreme protestors were attempting to provoke the counter protestors into a physical altercation. [Townley Dep., Exh. E, at 102:18-103:19]. Disputed. Mx. Townley's only mention of the word intimidating is a response to a question where Mx. Townley states “No, I witnessed a lot of bearing down upon. A lot of very intimidating, getting in people's spaces, I'm not -- you know, I mean, people laid hands on me. If you want to call people putting their hand on me and trying to shake me around, trying to rile me up to be an assault, that was happening. That did happen. But, again, these are all the things I consider to be attempts at provocation, attempts to get us to start swinging back.” Ex. 2 103:10-19 Undisputed. Plaintiffs do not dispute Defendants’ fact. Plaintiffs' additional facts should be in their SSADF. Regarding Plaintiffs’ additional facts, admitted Ms. Townley so testified. [Townley Dep. Exh. E, at 102:18-103:19]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 12 of 55 35. Some of the more extreme protestors placed their hands on Ms. Townley. Ms. Townley viewed this as an attempt to provoke her into a fight. Ms. Townley denied witnessing or being subjected to any other acts of physical force in front of the FCPS building. [Townley Dep.,Exh. E, at 102:18- 103:19]. Disputed. Mx. Townley's only mention of the word intimidating is a response to a question where Mx. Townley states “No, I witnessed a lot of bearing down upon. A lot of very intimidating, getting in people's spaces, I'm not -- you know, I mean, people laid hands on me. If you want to call people putting their hand on me and trying to shake me around, trying to rile me up to be an assault, that was happening. That did happen. But, again, these are all the things I consider to be attempts at provocation, attempts to get us to start swinging back.” Ex. 2 103:10-19 Undisputed. Plaintiffs do not dispute Defendants’ fact. Plaintiffs' additional facts should be in their SSADF. Regarding Plaintiffs’ additional facts, admitted Ms. Townley so testified. [Townley Dep. Exh. E, at 102:18-103:19]. 36. Ms. Kruger did not interact with any police officers while she was at the rally. After leaving the rally, Ms. Kruger did not observe or interact with any officers until her arrest. [Kruger Dep., Exh. B, at 112:10-14; 147:4- Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 13 of 55 11]. 37. Ms. Kruger observed police officers standing in front of the police station doors. Ms. Kruger was “nowhere near the cops.” Ms. Kruger did not observe police officers interact with any pro- police protestors. [Kruger Dep., Exh. B, at 113:7-114:4;114:16-24; 115:13-19;176:15-23]. Undisputed. 38. Ms. Townley did not observe police officers while at the rally. [Townley Dep., Exh. E, at 106:10-13]. Undisputed. 39. Neither Ms. Kruger nor Ms. Townley complained to any officers. Neither called 911 to request assistance. [Kruger Dep., Exh. B, at 114:5-12; Townley Dep., Exh. E, at 103:20-104:14]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 14 of 55 40. Ms. Kruger and Ms. Townley also had civil, productive discussions with some protestors while at the rally. [Kruger Dep., Exh. B, at 119:2-120:9; Townley Dep., Exh. E, at 104:15- 17; 105:16-106:9]. Undisputed. 41. Feeling uncomfortable with the proximity of some protestors, Ms. Townley made the agreed upon hand signal to trigger the leave protocol. Fellow group members observed Ms. Townley’s hand signal. The group gathered and started to walk away from the rally. [Townley Dep., Exh. E, at 106:14-25; 107:22-108:6]. Undisputed. 42. Ms. Kruger, Ms. Townley, and unknown other group members headed back towards the open space area they passed on their way to the rally. Some protestors followed and verbally taunted them. There was some shoving but no other acts of violence. [Kruger Dep., Exh. B, at 155:19-156:6; Townley Dep., Exh. E, at 106:16- 107:14; 108:7-12; 110:3-16]. Disputed. Ms. Kruger, Ms. Townley, and other protesters were threatened and forcibly made to leave the protest. Ex. 3 37:16-45:53, Ex. 4, Ex. 5, Ex. 6, Ex. 7, Ex. 8, Ex. 9, Ex. 10, Ex. 11, Ex. 12, Ex. 26. Plaintiffs do not dispute Defendants’ fact. Defendants dispute Plaintiffs’ additional fact, which should be in their SSADF. There is no specific factual support for Plaintiffs’ assertion that counter protestors were “forcibly made to leave the protest.” Neither Ms. Kruger nor Ms. Townley testified as such. [Kruger Dep., Exh. B, at 155:19-156:6; Townley Dep., Exh. E, at 106:16-107:14; 108:7-12; 110:3-16]. Plaintiffs’ Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 15 of 55 citation to 11 media exhibits with almost no specific timeframe references is improper and does not comport with the Court’s practice standards. 43. Ms. Kruger did not observe any police officers during the walk from the FCPS building to the open space area. [Kruger Dep., Exh. B, at 138:4-11]. Undisputed. 44. A fight broke out between the protestors and counter protestors in the open space area near Adobe Drive and Nancy Gray Avenue. Some protestors and counter protestors fought in a ditch while others watched. [Kruger Dep., Exh. B, at 133:1-134:2]. Disputed. The cited evidence only speaks of a brawl without suggestion that the fight was between protesters and counterprotesters. Only the counterprotesters engaged in fighting. Ex. 13, Ex. 14, Ex. 15 Disputed. As an initial matter, Plaintiffs’ reference to protestors and counter protestors is unclear. It appears Plaintiffs, through their counsel, are referring to themselves as protestors; however, Ms. Kruger testified she attended the event in counterprotest. Some counter protestors engaged in violence during the fight. [Incident Report, Exh. K, at 00016-00018, 00025, 00027]. 45. Mr. Wooley pushed Ms. Townley into the ditch and physically assaulted her. [Townley Dep., Exh. E, at 111:3- 113:17]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 16 of 55 46. Ms. Kruger did not see what started the fight. She was not involved in the fight. She was not struck by anyone or injured during the fight. She stayed to the side of the ditch and watched the fight. When the fight was over, Ms. Kruger helped counter protestors, including Ms. Townley, out of the ditch. [Kruger Dep., Exh. B, at 133:1-134:10; 138:12- 140:4]. Undisputed. 47. The fight lasted approximately 1 minute and 15 seconds. There were no police officers in the open space area during the fight. [Kruger Dep., Exh. B, at 138:1-11; Townley 00018, Exh. R, at 1:15-2:19; Townley 00029, Exh. S, at 7:55-9:32]. Disputed. Fort Collins police had a drone operator observing the fight. Ex. 3 40:44-42:08 Plaintiffs do not dispute Defendants’ fact. Plaintiffs’ additional fact should be in their SSADF. Defendants dispute Plaintiffs’ additional fact in part. Defendants do not dispute a FCPS drone captured some of this fight, but deny Plaintiffs’ assertions regarding the observations of the drone operator as unsupported by the citation. 48. After helping Ms. Townley out of the ditch, Ms. Kruger brought her to a grassy area behind a fence where Ms. Kruger could assess her injuries. [Townley Dep., Exh. E, at 114:9-19]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 17 of 55 49. Foot Patrol Team 1 was monitoring the radio and tracking Ms. Townley’s and Ms. Kruger’s group and the group of protestors as they migrated from the rally. [Netzel Dep., Exh. C, at 81:11-19]. Undisputed. 50. Foot Patrol Team 1 was notified of a fight taking place in the open space area by radio and immediately increased their pace, running to the open space area. Marked cruisers in the vicinity of Foot Patrol 1 turned on their lights and sirens and drove to the open space area. [Van Sickle’s Dep., Exh. F, 81:7-16; Mallory’s Dep., Exh. D, 62:16-63:8; Van Sickle’s BWC, Exh. G, Axon_Body_3_Video_2020- 08-08_1554_FC371 (VanSickle).mp4, at 00:00-1:15]. Undisputed. 51. Foot Patrol Team 1 arrived at the open space area together. The fight had already ended upon their arrival. [Robertson Dep., 37:8-39:4; Robertson BWC, Exh. I, Axon_Body_3_Video_202 0-08-08_1554_FC339 Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 18 of 55 (Robertson).mp4, at 00:50-1:24; Van Sickle’s BWC, Exh. G, Axon_Body_3_Video_202 0-08-08_1554_FC371 VanSickle).mp4, at 00:00- 1:15]. 52. Officer Van Sickle and Officer Robertson were the first officers to arrive at the open space area. Officer Robertson observed individuals moving around near a ditch and ran towards the ditch. Believing it could be a fight, officers yelled at the crowd, “Fort Collins Police…Hey, you are under arrest…No fighting.” [Robertson Dep., Exh. H, 37:8-39:4; Robertson BWC, Exh. I, Axon_Body_3_Video_20 20- 08-08_1554_FC339 (Robertson).mp4, at 00:50- 1:24; Van Sickle’s BWC, Exh. G, Axon_Body_3_Video_20 20-08-08_1554_FC371 (VanSickle).mp4, at 00:00- 1:15]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 19 of 55 53. Numerous individuals were assisting an elderly man, in the ditch, and out of his wheelchair. Sergeant Mallory approached the elderly male and asked if he was okay. [Robertson Dep., Exh. H,37:8-39:4; Robertson BWC, Exh. I, Axon_Body_3_Video_2020- 08-08_1554_FC339 (Robertson).mp4, at 00:50-1:24; Mallory BWC, Exh. J, Axon_Body_3_Video_2020-08-08_1555_FC204 (Mallory).mp4, at 00:30- 1:00]. Undisputed. 54. Officer Robertson continued to inspect the open space area for any remnants of the fight called out on the radio. Officer Robertson turned the corner and encountered Ms. Townley, Ms. Kruger, and other unknown members of their group. Ms. Townley was on the ground; she appeared winded and had observable injuries to her face. An officer noted, “We have one down over here too” in reference to Ms. Townley. [Robertson Dep., Exh. H, 37:8-39:4; Robertson BWC, Exh. I, Disputed. No evidence provided supports the statement that Mr. Robertson “continued to inspect the open space area for any remnants of the fight.” Additionally, no evidence cited supports the statement “she appeared winded and had observable injuries to her face.” Disputed. Support for Defendants’ statement that Officer Robertson “continued to inspect the open space area for any remnants of the fight” comes from his deposition testimony. [Robertson Dep., Exh. H, at 37:8-39:4]. Support for Defendants’ statement that Ms. Townley “appeared winded and had observable injuries to her face” is well-established in the summary judgment record. [Van Sickle Dep., Exh. F, at 86:7-87:7; Van Sickle BWC, Exh. G, at 1:30-2:01; Robertson Dep., Exh. H, at 39:11-13; Kruger Dep., Exh. 1, at 152:13-153:11]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 20 of 55 Axon_Body_3_Video_202 0- 08-08_1554_FC339 (Robertson).mp4, at 1:24-1:34]. 55. Ms. Kruger told officers, “We’re fine. We’re fine. We don’t need you. We have medics; we’re fine; bye. We have medics; we’re fine; bye. We don’t need you.” Ms. Kruger than generally points to other individuals in the area and says “They are the ones who fucking started it. Go do your job.” Ms. Townley and other unknown group members accused others in the area of being the instigators in the fight and indicated they were trying to leave. [Robertson BWC, Exh. I, Axon_Body_3_Video_202 0- 08-08_1554_FC339 (Robertson).mp4, at 1:30- 1:50]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 21 of 55 56. Sergeant Mallory asked bystanders if Ms. Townley participated in the fight. An unknown individual responded, “I don’t know.” A man in a blue button-down shirt with a mask responded, “Yea he was fighting.” [Robertson BWC, Exh. I, Axon_Body_3_Video_202 0- 08-08_1554_FC339 (Robertson).mp4, at 1:45-2:05; Mallory BWC, Exh. J, Axon_Body_3_Video_2 020-08- 08_1555_FC204 (Mallory).mp4, at 1:10-1:22]. Facts 77-84 Plaintiffs’ response is unclear. Defendants presume this fact is undisputed in the absence of a response by Plaintiffs to ¶56 or any supporting evidentiary citations. 57. Ms. Townley was charged with disorderly conduct for her participation in a disturbance. Probable cause for Ms. Townley’s charge was based on the following: she was winded and had observable injuries to her face, consistent with participation in a disturbance. Statements made by Ms. Townley’s group accused others of instigating the fight but did not deny Ms. Townley’s participation in the disturbance. A bystander confirmed Ms. Disputed. Mx. Townley was charged with disorderly conduct because Defendants possessed an animus towards Mx. Townley and others who criticized police. Ex. 17 3:20:43-3:21:05, 3:21:10, 3:21:53, 3:23:51, 3:24:35, 3:25:20-3:25:30. See Disputed fact 56 regarding the “bystander.” Disputed. Plaintiffs’ additional fact should be in their SSADF. Plaintiffs cite to one exhibit in support of this additional fact—Exh. 17, which is Sgt. Mallory’s body worn camera. Exh. 17 is 12 minutes long. At no time in Exh. 12 does Sgt. Mallory or any other FCPS officers interact with Ms. Townley. The fight is not captured in Exh. 12, and Ms. Townley’s arrest is not captured in Exh. 12. Sgt. Mallory’s statements made earlier in the day and not made in reference to Ms. Townley’s arrest do not, and cannot, provide support for Plaintiffs’ additional fact. In the Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 22 of 55 Townley participated in the fight. [Van Sickle’s Dep., Exh. F, 86:7-90:7; Robertson BWC, Exh.I,Axon_Body_3_Vide o_2020-08- 08_1554_FC339 (Robertson).mp4, at 1:45- 2:05]. absence of any factual support for Plaintiffs’ additional assertion, the Court should not consider it. It is conclusory, unsupported, and objectionable pursuant to Fed. R. Evid. 602. 58. Ms. Kruger grabbed or appeared to grab Ms. Townley. It appeared to Officer Robertson and Sergeant Mallory that Ms. Kruger was attempting to obstruct officers from arresting Ms. Townley. Officers yelled at Ms. Kruger to move back from Ms. Townley. Sergeant Mallory and Officer Robertson pushed Ms. Kruger away from Ms. Townley to create distance so officers could effectuate Ms. Townley’s arrest. Ms. Kruger fell down. [Incident Report, Officers 00001-000027, Exh. K, at pp. 00010- 00014; Robertson Dep., Exh. H, at 64:16-65:5; 97:12-98:4; 116:25-117:11; Mallory Dep., Exh. D, at 195:4-18; Robertson BWC, Exh. I, Axon_Body_3_Video_2020- 08-08_1554_FC339 (Robertson).mp4, at Disputed. When officers used force on Ms. Kruger, her hands were at her side. Ex. 20 3:56:12-3:36:18 Disputed. When officers attempted to arrest Ms. Townley, Ms. Kruger appeared to move closer to Ms. Townley, leading officers to believe she was attempting to obstruct officers from arresting Ms. Townley. [Incident Report, Exh. K, at pp. 00010-00014; Robertson Dep., Exh. H, at 64:16-65:5; 97:12-98:4; 116:25-117:11; Mallory Dep., Exh. D, at 195:4-18; Robertson BWC, Exh. I, Axon_Body_3_Video_2020- 08-08_1554_FC339 (Robertson).mp4, at 2:00-2:30; Netzel BWC, Exh. L, Axon_Body_3_Video_2020-08-08_1554_FC382 (Netzel).mp4, at 1:44-2:12; Mallory BWC, Exh. J, Axon_Body_3_Video_2020-08-08_1555_FC204 (Mallory).mp4, at 1:20-1:46]. Plaintiffs’ statement also does not address the undisputed fact. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 23 of 55 2:00-2:30; Netzel BWC, Exh. L, Axon_Body_3_Video_2020-08-08_1554_FC382 (Netzel).mp4, at 1:44-2:12; Mallory BWC, Exh. J, Axon_Body_3_Video_2020-08-08_1555_FC204 (Mallory).mp4, at 1:20-1:46]. 59. Sergeant Mallory made the decision to arrest Ms. Kruger, and told the other Officers to grab her. Officers approached Ms. Kruger to place her under arrest (for interfering), and Ms. Kruger started to run away from officers. Sergeant Mallory grabbed Ms. Kruger’s backpack and she fell to the ground. She began to kick and said “fuck you.” Officer Robertson placed Ms. Kruger under arrest. Ms. Kruger asked why she was being arrested. Officers explained Ms. Kruger resisted arrest, and further explained that individuals cannot physically interfere in the arrests of others. [Incident Report, Exh. K, at pp. 00010-00014; Mallory Dep., Exh. D, at 195:19- Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 24 of 55 196:5; Robertson BWC, Exh. I, Axon_Body_3_Video_2020- 08-08_1554_FC339 (Robertson).mp4, at 2:00-2:30; Netzel BWC, Exh. L, Axon_Body_3_Video_2020-08-08_1554_FC382 (Netzel).mp4, at 1:44-2:12; Mallory BWC, Exh. J, Axon_Body_3_Video_2020-08-08_1555_FC204 (Mallory).mp4, at 1:20-1:46]. 60. The other members of Ms. Kruger and Ms. Townley’s group left the scene without further interaction with officers. No other members of Ms. Kruger or Ms. Townley’s group were arrested at the scene. [Netzel BWC, Exh. L,Axon_Body_3_Video_2 020-08-08_1554_FC382 (Netzel).mp4, at 2:10- 2:18; Mallory BWC, Exh. J Undisputed. 61. Officer Robertson walked Ms. Kruger to the arrest processing area near the FCPS building. Neither Officer Robertson nor any other FCSO officers made any comments to her about her counterprotest Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 25 of 55 activities or speech. [Kruger Dep., Exh. B, 158:17-21]. 62. Following Ms. Kruger’s arrest, a search incident to arrest was conducted. A baton and fireworks were located during the search of Ms. Kruger’s backpack. [Incident Report, Exh. K, at 00011]. Undisputed. 63. Ms. Kruger was charged with disorderly conduct, unlawful use of fireworks, and resisting arrest. Her disorderly conduct and resisting arrest charges were dismissed. Ms. Kruger pled guilty and paid a fine on the unlawful use of fireworks charge. [Kruger Dep., Exh. B, at 184:7-12; Kruger Arrest Paperwork, Exh. M, at Officers 00032-33; Kruger Sentencing Order, Exh. T]. Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 26 of 55 64. Officer Haferman completed the arrest paperwork for Ms. Kruger’s criminal charges. Officer Haferman did not witness the fight or Ms. Kruger’s arrest. Officer Haferman completed the arrest paperwork based on his understanding of the information provided from other officers. [Haferman Dep., Exh. N, at 25:24-26:17; Kruger Arrest Statement, Exh. U, at Officers 00103]. Disputed. Officer Haferman completed his paperwork based on statements from Mr. Mallory. Ex. 16, 23:5-29:10 Disputed in part. Plaintiffs do not dispute Officer Haferman completed arrest paperwork for Ms. Kruger and Officer Haferman did not witness the fight or Ms. Kruger’s arrest. Officer Haferman completed the arrest paperwork based on his understanding of information provided by Sgt. Mallory; Officer Haferman does not recall if he spoke with any other officers. [Haferman Dep., Exh. N, at 25:14-26:13]. 65. Officer Van Sickle walked Ms. Townley to the arrest processing area near the FCPS building. Officer Van Sickle thanked Ms. Townley several times for her cooperation during their walk. Ms. Townley mentioned she was a “little roughed up,” and officers arranged for EMTs to evaluate Ms. Townley. Neither Officer Van Sickle nor any other FCSO officers made any comments to her about her counterprotest activities or speech. [Townley Dep., Exh. E, at 127:21- 131:11; Van Sickle BWC, Exh. G, Axon_Body_3_Video_2020- Undisputed. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 27 of 55 08-08_1554_FC371 (VanSickle).mp4, at 2:00-5:00]. 66. Officer Young completed the arrest paperwork for Ms. Townley’s disorderly conduct charge. Officer Young did not witness the fight. Officer Young completed the arrest paperwork based on his understanding of the information provided from other officers. [Young Dep., Exh. O, at 29:17-31:25; 32:9-34:2; Townley Arrest, Exh. P, at Officers 00028- 29;Townley Arrest Statement, Exh. V, at Officers 00102]. Undisputed. 68. After returning to the police station, Sergeant Mallory approached Lieutenant Murphy and recommended further investigation of the fight believing there may have been other participants involved in the fight. [Mallory Dep., Exh. D, at 83:13-84:5]. Disputed. The evidence cited only states that Mr. Mallory told Mr. Murphy that he had only arrested one side. Disputed. Plaintiffs’ assertion is incomplete. Support for Defendants’ fact comes from Sgt. Mallory’s deposition testimony. In response to the question, Did you do anything else to investigate the fight, Sgt. Mallory explained he spoke to Lt. Murphy and Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 28 of 55 voiced a concern they had only gotten one side of the fight; shortly thereafter, Lt. Murphy assigned Det. O’Loughlin to further investigate the fight. [Mallory Dep., Exh. D, at 83:13-84:5]. 69. Further investigation of the fight at the scene (to include interviews of numerous potential witnesses) was not practicable or safe with the rally/counterprotest still ongoing. Hundreds of individuals attended this event, some of whom carried weapons. Tensions ran high between the groups. [Mallory Dep., Exh. D, at 93:15-23; 96:10-97:21; Netzel Dep., Exh. C, at 52:3-53:14; Van Sickle Dep., Exh. F, at 51:16-52:11]. Disputed. The scene was calm, officers walked through many of the violent protesters without concern, officers allowed these protesters to mingle about behind their backs without concern. Nothing about the scene officers confronted near the ditch could possibly have prevented these officers from asking questions. Ex. 20 3:57:00-4:01:38 Disputed. Plaintiffs do not dispute Defendants’ fact. Plaintiffs’ additional facts should be in their SSADF. Plaintiffs’ additional facts are unsupported by the citations. Plaintiffs’ assertion officers acted “without concern” is not evidence, it is inadmissible speculation regarding unknown officers’ states of mind, and is objectionable pursuant to Fed. R. Evid. 602. Plaintiffs’ assertion, “Nothing about the scene officers confronted near the ditch could have possibly prevented these officers from asking questions” is conclusory, unsupported, and constitutes impermissible argument. Id. ¶69 is supported by admissible evidence in the summary judgment record. [Mallory Dep., Exh. D, at 93:15-23; 96:10-97:21; Netzel Dep., Exh. C, at 52:3-53:14; Van Sickle Dep., Exh. F, at 51:16-52:11; Mallory Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 29 of 55 BWC, Exh. J, at 1:57-2:02, saying “Team 2 I need you to watch our backs while we deal with this.”]. 70. On August 9, 2020, FCPS assigned Detective O’Loughlin to further investigate the August 8, 2020, altercation in the open space area at Nancy Gray Avenue and Adobe Drive. Detective O’Loughlin inspected the open space area for evidence and interviewed residents in the vicinity of the open space area. Detective O’Loughlin also followed up with witnesses to this incident to request and compile additional information and evidence. [Incident Report, Exh. K, at 00015]. Disputed. This is not material to any claim in this case as no Defendant was involved in any investigation and there is no claim against the City of Fort Collins. Disputed. Plaintiffs dispute materiality, not the substance of the fact asserted. Defendants’ fact is material in light of Plaintiffs’ claims. Specifically, this fact is material to whether Sgt. Mallory acted with a discriminatory animus. Sgt. Mallory reported concern to a supervisor with the completeness of the on-scene investigation of the fight. Following Sgt. Mallory’s report, Detective O’Loughlin was assigned to investigate the fight, and his investigation resulted in charges against back the blue protestors. Sgt. Mallory started the chain of events leading to additional charges against back the blue protestors. [Mallory Dep., Exh. D, at 83:13-84:5; Incident Report, Exh. K, at 00015-18; Defendants’ Statement of Undisputed Material Facts ¶69, supra]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 30 of 55 71. Two individuals— Brian Wooley and Michael Oropeza—drove themselves to the police station and admitted they were involved in the disturbance. Both individuals were interviewed. Mr. Wooley and Mr. Oropeza admitted attending the rally to protest. Mr. Wooley alleged he participated in the disturbance after observing a counter protestor spray an unknown substance at a man in a wheelchair. Both Mr. Wooley and Mr. Oropeza admitted using force against others, and also alleged they were on the receiving end of force exerted by others. Specifically, Mr. Wooley alleged he was struck with a baton and cut with a knife. [Incident Report, Exh. K, at 00015-18]. Disputed. This is not material to any claim in this case as no Defendant was involved in any investigation and there is no claim against the City of Fort Collins. Defendants dispute Plaintiffs’ materiality objection. [See Defendants’ Reply to ¶70]. 72. Detective O’Loughlin arrested and charged Mr. Wooley and Mr. Oropeza for disorderly conduct for their respective involvement in the disturbance. [Incident Report,Exh. K, at 00015- 18; Wooley and Oropeza Disputed. This is not material to any claim in this case as no Defendant was involved in any investigation and there is no claim against the City of Fort Collins. Defendants dispute Plaintiffs’ materiality objection. [See Defendants’ Reply to ¶70]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 31 of 55 Arrest Statements, Exh. Q, at Officers 00104-105]. 73. Ms. Kruger does not possess any information showing police officers conspired with pro- police protestors. [Kruger Dep., Exh. B, at 176:15-178:10]. Undisputed. 74. Ms. Townley does not possess any information showing police officers conspired with pro-police protestors. [Townley Dep., Exh. E, at 127:9-20]. Undisputed. 75. In addition to the two foot patrol teams of 5 present in uniform, the Fort Collins police had four officers assigned as undercover intelligence officers, two officers assigned to overwatch officers, 5 Quick Reaction Team officers, 2 transport officers, 4 traffic control team officers, 2 UAS team officers, and a sniper. In total, 31 officers were Disputed in part. Defendants do not dispute Plaintiffs’ summary of officer assignments during the rally—these assignments are outlined in FCPS’ Operations Plan. Defendants dispute 31 officers were assigned to this event; more than 31 officers were assigned to this event, based on the Operations Plan. [Operations Plan, Exh. A, at 00079-00081]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 32 of 55 assigned to this protest. Ex. 18 76. Prior to engaging any bodyworn camera, officers interacted with members of the protest, including with one individual who stated “I’m leaving in handcuffs.” Ex. 21 110:1-112:25 Disputed in part. Plaintiffs’ assertion is conclusory as the citation is to Officer Netzel’s deposition and not the recording allegedly capturing the statement. Fed. R. Evid. 602. Undisputed Officer Netzel vaguely recalls hearing a man with a red bandana saying he was going to leave in handcuffs. [Exh. 21, at 110:20-111:11]. Plaintiffs’ assertion, however, is irrelevant under Fed. R. Evid. 401, and is hearsay if Plaintiffs are attempting to show the man had an intention to leave in handcuffs. Fed. R. Evid. 801(c)(1)-(2). Plaintiffs have not established the statement was made in connection with Plaintiffs’ arrests. Plaintiffs do not connect the person who allegedly made the statement, to any acts of the Defendants, vis-à-vis Ms. Townley or Ms. Kruger. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 33 of 55 77. Within the Back the Blue protest crowd were family members of Fort Collins police officers, including Sergeant Bendzsa who was working that day. Ex. 18, Ex. 19 30:16-31:6 . Disputed in part. Undisputed Sgt. Mallory testified he observed Sgt. Bendzsa’s family in attendance at the rally. Nonetheless, this allegation is immaterial. Fed. R. Civ. P. 401. Sgt. Bendzsa is not a Defendant, he was not involved in responding to the fight or arresting the Plaintiffs, and his family members were not involved. [Mallory’s Dep., Exh. Z, at pp. 30:16-32:5]. 78. In the beginning of the protest, Mallory and other officers engage with the Back the Blue side, receiving thanks, shaking hands, and telling individuals “we appreciate you being here.” Ex. 17 3:18, 3:22:43 Disputed in part. Undisputed Sgt. Mallory engaged with individuals who expressed their appreciation to the officers. Disputed as to Plaintiffs’ reference to “other officers” as the statement is conclusory and unsupported by the citation. Fed. R. Civ. P. 602. Plaintiffs’ assertion is also immaterial. Fed. R. Civ. P. 401. Sgt. Mallory’s statements were not made during Plaintiffs’ arrests, or in relation to the Plaintiffs in any way. Plaintiffs have also not established the individuals Sgt. Mallory engaged with were involved in actions forming the basis for Plaintiffs’ claims, in any way. Fed. R. Civ. P. 401 & 602. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 34 of 55 79. Throughout the protest, many individuals on the Back the Blue side were carrying weapons and wearing earpieces. Ex. 22 Disputed. Plaintiffs’ assertion “many” individuals on the Black the Blue side carried weapons and wore earpieces” is vague, conclusory, and unsupported by the citation. Fed. R. Evid. 602. The evidence does establish some individuals had objects resembling earpieces and a smaller number appeared to carry weapons. Plaintiffs’ assertions, however, are immaterial. Fed. R. Civ. P. 401. The fact some individuals were carrying weapons or wearing earpieces, without more, does not address any of Plaintiffs’ claims. None of the Defendants observed or were aware of individuals wearing earpieces on the date of the incident. [Mallory Dep., Exh. Z, at 45:9-15; Robertson Dep., Exh. AA, at 41:13-21; Netzel Dep., Exh. BB, at 64:19-21]. 80. Defendant Mallory told his officers: “It’s those guys right there that we are worried about. These guys dressed in all black and masks. The antifa people. That's who we are worried about. So everybody else either likes us or hates us, it’s those guys who are violent.” During this time, Mallory instructs his Admitted Sgt. Mallory made the referenced statement. Denied Sgt. Mallory “instructed” officers to mute their cameras. He indicated the officers could mute them if they wanted, but needed to have them activated if something occurred, consistent with Fort Collins’ Policy. [Exh. 17, at Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 35 of 55 officers to mute their bodyworn cameras. Ex. 17 at 3:20:43 p.m. through 3:21:05 p.m. 5:00-5:06; Fort Collins BWC Policy, Exh. CC, at Officers 00110-00111]. The statement, however, is irrelevant. Fed. R. Evid. 401. Sgt. Mallory’s statement was not made during any interactions with the Plaintiffs’ including their arrests. Plaintiffs have not established Sgt. Mallory was referring to Plaintiffs in making this statement. 81. Defendant Mallory has never received any training on “Antifa” and instead based his knowledge of “Antifa” from only the news. Ex. 19, 45:23-46:8; 47:4-8; 47:22-48:10. Admitted Sgt. Mallory so testified, but this is immaterial pursuant to Fed. R. Evid. 401. 82. Mr. Mallory speaks into his radio stating “Hey, we are getting a bunch of antifa coming from the west if you haven't already advised yet.” Ex. 17 at 3:21:10 Undisputed but immaterial pursuant to Fed. R. Evid. 401. Plaintiffs have not established Sgt. Mallory made this statement in reference to Plaintiffs. This statement was not made during the any interactions with the Plaintiffs, including their arrests. 83. At 3:21:19 p.m. the unknown individual informs Mr. Mallory’s team that they had just been spit on. Mr. Mallory tells them to “make an online report, we are not doing it now. The unknown individual states “you are going to let Disputed in part, but also immaterial to Plaintiffs’ claims. Defendants admit an unknown female reported someone spat at her, and Sgt. Mallory directed her to make an online report. Plaintiffs’ assertion is incomplete—the unknown female then responded, “Ok, alright, I’m Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 36 of 55 them spit on me?” Again Mallory states “make an online report” As this individual drives away, Mr. Mallory instructs his officers to take down her license plate. Earlier, this individual had shouted “fuck the police, fuck Donlad Trump.” Per Mr. Mallory, he did not suspect her of a crime. Ex. 17 3:19:19-3:21:45; Ex. 19 114:4-117:15. gonna spit on all those mother fuckers, watch” and drove away. Sgt. Mallory instructed officers to take down her license plate. [Exh. 17, at 6:20-6:45]. Sgt. Mallory admitted he was unaware if the unknown female had committed a crime at the time he gave this instruction but believed she may commit a crime based on her statement to officers. [Exh. 19, at 116:14-19]. Plaintiffs’ additional assertions are immaterial, pursuant to Fed. R. Evid. 401. This interaction did not involve the Plaintiffs in any way, including during their arrests. 84. At 3:21:53 p.m. Mr. Mallory speaking into his radio says “Yeah we got ‘em coming in across the church right now. They're all anti- police, all antifa dressed in black.” At 3:22:08 p.m. Mr. Mallory radios the Quick Reaction Team and says “Now might be a good time for you guys to at least get ready to come out cause the other group is ready to confront them.” Ex. 17 Undisputed, but immaterial. Plaintiffs have not established Sgt. Mallory was referring to Plaintiffs or their group in making these statements on his radio. Fed. R. Civ. P. 401. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 37 of 55 85. At 3:22:34 p.m. those dressed in black are confronted by the Blue Lives Matter group. A member of the Blue Lives Matter group can be heard yelling “Go home, get the fuck out of here.” The confrontation is directly across the street from Mr. Mallory and Team #1 who are aware of the confrontational actions of the Back the Blue protesters. Ex. 17 Disputed in part, but immaterial. Defendants admit individuals exchanged words across the street from officers, and a someone yelled “Go home, get the fuck out of here.” Denied Plaintiffs’ citation supports a physical confrontation by anyone. [Exh. 17, at 7:20-8:00]. Plaintiffs’ assertion regarding the Defendants being aware of any such confrontation, is not supported by the citation and is conclusory and speculative. See Fed. R. Evid. 602. FCPS officers watched protestors and counter protestors interact across the street, and Sgt. Mallory spoke with Corporal Bogosian (of Foot Patrol Team 2) about strategy if officers needed to intervene in the exchange across the street. [FCPS Operational Plan, Exh. A, at 00080; Exh. 17, at 8:00-8:12]. Plaintiffs’ assertion is immaterial, pursuant to Fed. R. Evid. 401. Plaintiffs have not established they participated in this exchange across the street from Officers. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 38 of 55 86. At 3:23:51 p.m. Mr. Mallory states into his radio “The pro-police are just confronting antifa right now, telling them they aren’t welcome.” Ex. 17. Mr. Mallory routinely refers to the Back the Blue members as “pro-police.” Ex. 19 30:21-23, 40:21-22, 79:12-13, 160:25-161:2. Disputed in part. Defendants do not dispute Sgt. Mallory stated into his radio, “The pro-police are just confronting antifa right now, telling them they aren’t welcome.” Sgt. Mallory made this statement while continuing to monitor protestors and counter protestors interact across the street. There is no physical violence taking place when Sgt. Mallory makes this statement. [Exh. 17, at 8:50-9:05]. Plaintiffs’ assertion is immaterial. Fed. R. Evid. 401. Plaintiffs have not alleged they participated in this exchange across the street from officers. Regarding Plaintiffs’ second assertion, disputed as unsupported by the citations. Sgt. Mallory does not say anything about “Black the Blue members” in the cited excerpts. Sgt. Mallory described individuals attending the rally in protest as “pro-police.” [Ex. 19, 30:21-23, 40:21-22, 79:12-13, 160:25-161:2]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 39 of 55 87. At 3:24:35 p.m. Mr. Mallory tells his team “Hey you guys, let’s back up just a little bit. Cause if, I think they are thinking if we are standing here somehow they don’t have to fight.” Mallory and his fellow officers then leave the area where they had been standing. Ex. 17. Disputed in part, but immaterial. Defendants admit Sgt. Mallory made the statement, but deny they “le[ft] the area.” Sgt. Mallory testified the group moved back because in his experience, sometimes officers in the area embolden people to act. The decision was made to take a low-visibility position. [Sgt. Mallory’s Dep., Exh. Z, at 128:22-25; 129:1-5]. Foot Patrol Team 1 moved a short distance to a spot under some trees where they continued to monitor the interaction between protestors and counter protestors across the street. [Exh. 17, at 9:34-10:24]. Plaintiffs’ assertion is irrelevant. Plaintiffs have not alleged they participated in this exchange across the street from officers. 88. Throughout the first 15 minutes of their bodyworn camera, Defendants and their fellow officers are not the subject of any protest nor do they appear to in any way be provoking any reaction from the crowd other than handshakes. Ex. 17. Disputed in part as vague, conclusory, and unsupported by the citation, and therefore inadmissible pursuant to Fed. R. Evid. 602. Sgt. Mallory and other FCPS officers occasionally shook hands with unknown individuals, but denied the occasional handshake provoked the crowd as unsupported by Plaintiffs’ generic citation to Exh. 17. Admitted Defendants did nothing to incite or provoke Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 40 of 55 the crowd, but the subject of law enforcement was a hotly disputed issue in summer 2020 as evidenced by the fact there was a protest and counterprotest in the City on August 8, 2020, on this very issue. [Defendants’ Undisputed Material Facts ¶¶1-2, 69, supra]. 89. Now away from the confrontation Mr. Mallory states to Defendants and their fellow officers “Let them work out their First Amendment rights. But I don't want… If we, if we break them up then antifa wins.” Ex. 17 at 3:25:20 p.m. - 3:25:30 p.m. Disputed in part, but immaterial. Defendants admit Sgt. Mallory made the statement. Defendants dispute Plaintiffs’ assertion they were “now away from the confrontation.” This is contradicted by Plaintiffs’ citations and Sergeant Mallory’s deposition testimony [Sgt. Mallory Dep. Exh. Z, 128:22-129:5]. Plaintiffs’ cited evidence shows no physical violence between protestors and counter protestors when Sgt. Mallory made this statement. [Exh. 17, at 10:22-10:40]. Plaintiffs’ assertion is irrelevant. Plaintiffs have not alleged they participated in this exchange across the street from officers. 90. While observing the two groups at 3:26:10 p.m. Mr. Mallory states about an unknown individual “My buddy is ready to get into a rumble.” Officer Van Sickle replies “oh yeah. He stayed calm longer than I thought Disputed in part. Admitted Sgt. Mallory, Officer Van Sickle, and Officer Netzel had a conversation about an unknown individual, who Sgt. Mallory sarcastically referred to as his buddy. [Exh. 19, at 150:5-11]. Plaintiffs have Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 41 of 55 he was going to though.” Mr. Mallory “oh, I thought he would already be throwing punches.” Officer Van Sickle “Oh yeah he was getting *indistinguishable* with that one dude.” At 3:26:28 p.m. Mr. Mallory states “I give it ten minutes before punches start getting thrown.” Officer Netzel replies “I give it five.” The individual referenced by Mr. Mallory was Brian Wooley. Ex. 19 150:5-11. Ex. 17. not established the unknown individual Sgt. Mallory, Officer Van Sickle, and Officer Netzel were discussing was Brian Mallory. The cited exhibits do not establish this assertion. The statement is also irrelevant as it does not involve the Plaintiffs. Fed. R. Evid. 401. 91. At 3:26:33 Officer Netzel turns to Defendants and their fellow officers and asks if they are muted, referring to their BWC’s. Mr. Mallory replies “yeah.” Mr. Mallory’s BWC is not muted and is actively recording audio and video. Officer Netzel continues “How about that chick driving by that said fuck us and then I want to press charges.” While doing this, Mr. Netzel mocks this woman’s voice. Ex. 17; Ex.21 120:20-122:5. Disputed in part, but immaterial. Defendants do not dispute Officer Netzel made this statement. Defendants deny Plaintiffs have cited any evidence establishing Officer Robertson was present for this discussion. Plaintiffs’ assertion is immaterial. The unknown female who reported a spitting incident and then threatened to spit on others is not a Plaintiff in this litigation, and Plaintiffs have not established she was present for the subsequent fight in the ditch. Additionally, muting one’s body-worn camera, is not against policy. [FCPS BWC Policy, Exh. CC, at Officers 000110-00111]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 42 of 55 92. At approximately 3:28, Defendants and their fellow officers begin to walk back into the crowd. At 3:28:33 p.m. Officer Van Sickle can be heard saying, “It’s still going on. I see three, four involved. Maybe five.” While moving through this crowd, Defendants walk past multiple individuals wearing tactical vests, right wing logos, earpieces similar to the police, and armed with firearms. Ex. 23; Ex. 22, pp. 1, 11, 12, 13, 14, 15, 16, 17, 27, 28, 30, 31, 32,. Disputed in part. Defendants do not dispute Officer Van Sickle made the statement, but it is unclear from Plaintiff’s citation what Officer Van Sickle was referring to; there were no physical altercations between protestors and counter protestors in view at the time Officer Van Sickle made the statement. Plaintiffs zoomed in and highlighted video still frames from unknown officers’ body worn cameras to support the last sentence in ¶92, but Plaintiffs’ citation does not establish any of the Defendants actually observed any of the items in real time, and therefore Plaintiffs’ assertions are objectionable. Fed. R. Evid. 602. Plaintiffs’ assertions are also irrelevant. Fed. R. Evid. 401. Plaintiffs have not established they were present or involved in the encounter, and therefore any such assertion is irrelevant (Fed. Rule Evid. 401) and inadmissible (Fed. R. Evid. 602). Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 43 of 55 93. At 3:28:50 an individual wearing a dark bucket hat, red polo, khaki pants and tactical gloves communicates to Mallory about where the officers should respond. Ex. 23. This individual is also wearing an earpiece and would later be involved in the herding of the plaintiffs towards the ditch and talks with Defendant Mallory at the ditch. Ex. 4 at 6:40,7:24-7:33, 7:35, Ex. 20 at 0:00-1:00. Disputed as unsupported by the citations, and inadmissible pursuant to Fed. R. Evid. 602. The unknown attendee in a red polo makes a gesture, but there is no testimony as to what the gesture is. To any extent the gesture is somehow admissible, it is objectionable on the basis it is hearsay pursuant to Fed. R. Evid. 801(c)(1) –(2). Plaintiffs’ citation to Officer Van Sickle’s body worn camera does not prove a “communication” between Sgt. Mallory and this unknown attendee. Fed. R. Evid. 602. Officer Van Sickle continued walking in the same direction after passing the unknown attendee in the red polo and did not stop to speak to him. Plaintiffs’ assertion of a subsequent conversation at the ditch between Sgt. Mallory and the attendee in the red polo is unsupported by the citations—they both assisted (along with others) a man in the ditch back into his wheelchair. [See Defendants’ Undisputed Material Facts, ¶53, supra]. Plaintiffs have not established any of the Defendants were aware of this attendee’s earpiece on the date of the incident. Plaintiffs’ assertions are immaterial. Fed. R. Evid. 401. Plaintiffs have not Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 44 of 55 established Defendants had any knowledge or awareness of this individual as a potential concern before the fight in the ditch. Fed. R. Evid. 602. 94. When Defendants and fellow officers arrive at the location of the potential fight, there are three Blue Lives Matter protesters holding down an individual identified as Joshua DeLeon. 3:29:15 p.m.- 3:29:18 p.m. Ex. 23. Denied as unsupported by the citation. Fed. R. Evid. 602. Plaintiffs’ assertion is immaterial—former Plaintiff Joshua Deleon stipulated to the dismissal of all his claims against all Defendants. [ECF 73 & 74]; Fed. R. Evid. 401. 95. Defendants and their fellow officers engage in no investigation, ask no person any question, and do not arrest the three other individuals observed engaged in a fight. Instead, Defendants and their fellow officers simply arrest the one individual dressed in all black. Ex. 23 at 3:29:00- 3:30:00 Denied as conclusory, an improperly group pled assertion, and unsupported by the citation. [See ECF 75, p. 7]. Plaintiffs’ assertion is immaterial—former Plaintiff Joshua Deleon stipulated to the dismissal of all his claims against all Defendants. [ECF 73 & 74]. Additionally, Plaintiff cites to no testimony supporting a generalized and conclusory assertion to video, which is improper. Fed. R. Civ. P. 602. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 45 of 55 96. At 3:30:10 Defendants and their fellow officers walk past an individual in a blue and white dress shirt. This individual is James Reitman. As Defendants and their fellow officers pass James Reitman he is seen filming them on his camera and says “This is what a true racist looks like.” Ex. 23. Disputed in part. Defendants do not dispute a man in a blue shirt stated, “This is what a true racist looks like.” Defendants dispute Plaintiffs have established the man in the blue shirt is James Reitman based on the cited evidence. Fed. R. Evid. 602. Defendants dispute Plaintiffs have established all “Defendants and their fellow officers” passed James Reitman as conclusory and unsupported by the citation. Plaintiffs’ assertion is immaterial—former Plaintiff Joshua Deleon stipulated to the dismissal of all his claims against all Defendants. [ECF 73 & 74]; Fed. R. Evid. 401 97. At 3:43:13 Defendants and their fellow officers respond to a confrontation occurring at the front of the police station. While monitoring the situation Mallroy speaks with three individuals. Each of which has an earpiece. Ex. 23, Ex. 22 pp. 2, 3, 18. Disputed in part. Defendants admit Foot Patrol Team 1 walked to the front of the FCPS building and observed protest activity taking place in front of building. Plaintiffs’ citation does not show a “confrontation” taking place in front of the building. Disputed Plaintiffs’ evidence establishes Sgt. Mallory had a conversation with three individuals with earpieces. Plaintiff has not submitted any evidence showing Sgt. Mallory knew or was aware on the date of Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 46 of 55 the incident that several protestors wore earpieces. 98. At 3:46:25 p.m. both Teams remove themselves from the protest and go inside the Police Services building. The UAS team brought the drone to the ground at 3:48:00 p.m. Ex. 25, Ex. 3 at 34:30-37:00. Disputed in part. Undisputed Foot Patrol Teams 1-2 entered the FCPS building around 3:46 P.M. Disputed “The UAS team brought the drone to the ground at 3:48:00 p.m.” as incomplete. The drone came down to the ground and went back up one minute later. [Exh. 3, at 35:00-36:00]. Plaintiffs’ assertions the drone came down at 3:48 p.m. are unsupported by the citations. [Id.]. 99. While inside, Mr. Mallory looks at his phone which shows the “Molon Labe” image as hid screen art. Molon labe is a well known symbol of right wing extremists. Ex. 37, 39. Disputed as unsupported by the citation. Fed. R. Evid. 602. Disputed Plaintiffs have established Ms. Townley possesses sufficient foundation to establish the alleged use of the “molon labe” symbol by right wing extremists. Plaintiffs’ assertion is immaterial. Fed. R. Evid. 401. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 47 of 55 100. While all Fort Collins Police Officers have removed themselves from the protest at the same time, the Back the Blue protesters begin to violently confront Ms. Townley, Ms. Kruger, and other counterprotesters. The drone watches much of this aggression by the Back the Blue protesters and at times, appears to look around for officers. Ex. 3 36:00-45:53, Ex. 4, Ex. 5, Ex. 6, Ex. 7, Ex. 8, Ex. 9, Ex. 10, Ex. 11, Ex. 12, Ex. 26. Disputed as conclusory and unsupported by the citations. The last sentence of Plaintiffs’ assertion does not make sense. The drone captured Ms. Townley and Ms. Kruger’s group walking away from the police station wherein they were followed by protestors, and the drone captured the fight in the ditch. [See Defendants’ Undisputed Material Fact ¶42, supra; Exh. 3, 36:00-45:53]. Plaintiffs have provided no specific citation establishing protestors applied physical violence to Ms. Townley before the fight in the ditch, or any knowledge of such actions by any of the Defendants. Plaintiffs have not provided any specific citation establishing protestors applied physical violence to Ms. Kruger at any time during the walk or the fight in the ditch, or any knowledge of such actions by any of the Defendants. Foot Patrol Teams 1-2 entered the FCPS building to take a break to avoid overheating given the warm temperature. [Van Sickle Dep., Exh. Y, 77:9-79:10; Robertson Dep. Exh. CC, 61:11-13]. FCPS resources remained in place policing this event, including but not limited to the drone. [Van Sickle Dep., Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 48 of 55 Exh. Y, 77:9-80:13; Mallory Dep., Exh. Z, 189:1-15]. Plaintiffs have not asserted or established there were any physical altercations taking place outside at the time Foot Patrol Teams 1-2 entered the FCPS building. 101. Throughout this time and throughout the protests, the Back the Blue protesters continually to Ms. Townley, Ms. Kruger, and their fellow counterprotesters as “Antifa.” Ex. 4, Ex. 5, Ex. 6, Ex. 7, Ex. 8, Ex. 9, Ex. 10, Ex. 11, Ex. 12. Disputed as conclusory. Plaintiffs have failed to provide a specific citation establishing protestors referred to Ms. Townley or Ms. Kruger as antifa. Fed. R. Evid. 602. Plaintiffs’ assertion is irrelevant to the claims in this matter. Fed. R. Evid. 401. 102. The Back the Blue walked Plaintiffs and others backwards in a menacing manner for about five minutes while every officer on the scene remained inside. Nonetheless, the drone operator who was communicating with these officers observed much of this aggressive behavior. When they arrived in a grassy area, the Back the Blue protesters attack the counterprotesters. Ex. 3 36:00-45:53, Ex. 4, Ex. 5, Ex. 6, Ex. 7, Ex. 8, Ex. 9, Ex. 10, Ex. 11, Ex. 12, Ex. 26. Disputed as conclusory and unsupported by the citations. Plaintiffs’ assertion “every officer on the scene remained inside” is contradicted by evidence in the summary judgment record. [Van Sickle Dep., Exh. Y, 77:9-79:10; Mallory Dep., Exh. Z, 189:1-15; see generally FCPS Operations Manual, Exh. A; Defendants’ Undisputed Material Facts ¶¶49-50]. There is no support for the statement the “drone operator, who was communicating with these officers, observed much of this aggressive behavior.” Fed. R. Evid. 602. The citations do not establish who or what started the Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 49 of 55 fight in the ditch. Fed. R. Evid. 602. 103. Individuals associated with the Back the Blue protest can be seen repeatedly punching people dressed in black, choking them, and one individual stabs a counterprotester with a flag pole. Ex. 4, 6, 9, 11, 13, 14, 15 Disputed as incomplete. Individuals attending the protest can be seen punching and using violence against counter protestors. Counter protestors can also be seen using violence against protestors. [Exh. 13, at 00:05-00:20; 00:25-00:30]. 104. Mx. Townley was repeatedly punched in the face by Brian Wooley. Mx. Townley did not engage in any act of violence. Mx. Kruger stands to the side and never engages. The drone operator, communicating with Defendants and other officers, watched the entire assault. Ex. 13. Disputed in part. Undisputed Ms. Townley and Ms. Kruger testified alleging as such. Disputed “The drone operator, communicating with Defendants and other officers, watched the entire assault.” Plaintiffs provide no specific citation or proper evidentiary support for this assertion. Fed. R. Evid. 602 105. As Defendants and their fellow officers arrive, many of the violent people are casually walking out. Many of these individuals are wearing earpieces. None of them are questioned by and Defendant or other police Disputed as conclusory and unsupported by the citations. Specifically, Plaintiffs’ characterization of “the violent people” is conclusory and vague—Plaintiffs make no attempt to specifically identify any participants in the fight who seconds later walk by Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 50 of 55 officer. Ex. 20, Ex. 22, Ex. 38, Exs. 33-35; Ex. 36, Exs. 4-15. FCPS officers. Plaintiffs’ assertion that some protestors wore earpieces is immaterial. While some individuals appear to be wearing objects resembling earpieces (which is visible through Plaintiffs screenshotting still images from video footage), Plaintiffs have not submitted any evidence showing any of the Defendants were aware in real time of individuals wearing earpieces. [Mallory Dep., Exh. Z, at 45:9-15; Robertson Dep., Exh. AA, at 41:13-21; Netzel Dep., Exh. BB, at 64:19-21]. 106. Defendants and their fellow officers approach the pit where the fight occurred and where several people who had engaged in fighting, including Brian Wooley, now without a shirt on, were standing or crawling out of the ditch. Again, no Defendant asked any individual what had occurred, whether they had been fighting, who had been fighting, or otherwise conducted any investigation into these individuals who had in fact engaged in violence and remained in the same location. Ex. 20; Ex. 38; Ex. 22; Exs. 33-35; Ex. 36, Exs. 4-15 Disputed in part. Defendants do not dispute they approached the ditch to attempt to locate the disturbance. Defendants do not dispute they did not ask every individual in the vicinity of the ditch about the disturbance for obvious logistical and public safety reasons. [See Defendants’ Undisputed Material Fact, ¶69, supra]. Defendants dispute Plaintiffs’ assertion that “no Defendant asked any individual.” This is incorrect and contradicted by Plaintiffs’ citations. [See Defendants’ Undisputed Material Facts, ¶¶55-56, supra]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 51 of 55 107. Mr. Mallory then walked up behind Mr. Reitman towards where Ms. Townley was sitting. Upon seeing Ms. Townley, Mr. Mallory turned to James Reitman, and asked if “He (Townley) was fighting?” Reitman responds “yeah he (Townley) was fighting.” To which Mr. Mallory immediately moved to arrest Townley. 3:56:04 p.m.-3:56:15 p.m. Ex. 27. Disputed as ¶107 omits several material facts regarding Foot Patrol Team 1’s interaction with Ms. Townley and her group. Sgt. Mallory asked if Ms. Townley was fighting, and an individual in a blue shirt responded in the affirmative. Disputed Plaintiffs have established the individual in the blue shirt was Mr. Reitman, and it is disputed Sgt. Mallory’s decision to arrest Ms. Townley was based solely on the male in the blue shirt’s response. [See Defendants’ Undisputed Statement of Material Facts ¶¶ 56-57, supra]. 108. Mr. Mallory never engaged in any effort to determine whether Mr. Reitman was trustworthy. Mr. Mallory testified that he did not know if Mr. Reitman is a trustworthy source of information. Ex. 19 81:12-23 Disputed in part. Defendants do not dispute Sgt. Mallory testified he did not know if the male in the blue shirt was trustworthy, but deny Sgt. Mallory made no effort to evaluate this male’s involvement in the disturbance. [Exh. 19, 73:21-74:7]. Further investigation of the fight at the scene (to include interviews of numerous potential witnesses) was not practicable or safe with the rally/counterprotest still ongoing. [See Defendants’ Undisputed Material Fact ¶69]. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 52 of 55 109. Mr. Mallory acknowledged that grass stains on Reitman’s shirt would indicate that he was engaged in a fight. Mr. Reitman had earlier choked someone during the fight and did have grass stains on his shirt. Mr. Reitman would be found minutes later letting the air out of the tires of someone’s car and lying to police officers about his conduct. Ex. 19 73:21-74:3; Ex. 31 4:38:55 p.m.- 4:40:24 p.m. Disputed in part. Plaintiffs mischaracterize Sgt. Mallory’s testimony. Sgt. Mallory testified the individual in the blue shirt who responded to Sgt. Mallory’s question about Ms. Townley’s involvement in the disturbance did not appear to be involved in the fight because “he was not amped up. He was – he stayed around. He didn’t have torn shirts or grass stains or—or injuries, and his sunglasses were still on his head.” [Exh. 19, 73:21-74:7]. Plaintiffs’ assertions regarding this individual’s conduct post-fight are immaterial. Defendants admit FCPS investigated Mr. Reitman on suspicion of letting air out of someone’s tires. Plaintiffs neglect to include that FCPS officers cited Mr. Reitman with criminal tampering for his actions of letting air out of tires. [Incident Report, Exh. K, at p. 00008-00009]. 110. No Defendant or other officer observed either Ms. Townley or Ms. Kruger engaged in fighting. Ex. 19 52:20-25; Ex. 28:8-19; Ex. 21 72:19-21; Ex. 24 102:11- 17; Ex. 16 26:15-17; Ex. 29 47:2-5 89:14-14, Ex. 30 40:10-15. Disputed in part. Undisputed Sgt. Mallory and Officers Netzel, Haferman, Van Sickle, Schilz, and Robertson testified they did not observe Ms. Townley or Ms. Kruger engage in fighting. Disputed as to any “other officer” as conclusory, vague, and unsupported by the citations. Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 53 of 55 111. The probable cause statement for Mx. Townley stated that “Michael was observed by officers engaging in a physical fight with other protesters” and for Ms. Kruger that she “was observed by multiple officers fighting in public.” Ex. 32 Undisputed. 112. No individuals other than Ms. Kruger and Ms. Townley were arrested at this incident. Ex. 20; Ex. 33; Ex. 34; Ex. 35; Ex. 36. Disputed. If by “this incident,” Plaintiffs are referring to the specific time the fight in the ditch occurred, Defendants do not dispute Ms. Kruger and Ms. Townley were the only individuals arrested on that day. Disputed, however, that Plaintiffs were the only individuals arrested as a result of the fight. Subsequent to Plaintiffs’ arrets Detective O’Loughlin investigated the fight in the ditch, which lead to the arrest and charge of additional participants in the fight. [See Defendants’ Undisputed Material Facts ¶72]. 113. Ms. Kruger and Ms. Townley repeatedly told Defendants and their fellow officers that it was the pro- police people who had been violent. Ex. 20; Ex. 33; Ex. 34; Ex. 35; Ex. 36. Disputed. As an initial matter, Plaintiffs cite to five video exhibits for this assertion with no specific timeframes or citations provided. The cited exhibits involve over 97 minutes of recorded video. This is improper, not in compliance with this Court’s practice standards, and is tantamount to a request for Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 54 of 55 the Court to search through Plaintiffs’ exhibits for evidence supporting Plaintiffs’ assertions. Admitted Ms. Kruger told members of Foot Patrol Team 1 that “they are the ones who fucking started it.” [See Defendants’ Undisputed Material Facts ¶55]. 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 the 14th day of June 2024, a true and correct copy of the foregoing MOVING PARTY’S REPLY STATEMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was filed with the Court via CM/ECF and served on the below- listed party by email: Edward Milo Schwab, Esq. milo@ascendcounsel.co s/ Sarah Stefanick Case No. 1:22-cv-01983-SKC Document 95 filed 06/14/24 USDC Colorado pg 55 of 55 ∑1∑ ∑right now? ∑2∑ ∑ ∑ ∑ A.∑ ∑I do not. ∑3∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ So in reviewing your body-worn camera, ∑4∑ ∑it appears that you're a pretty observant police ∑5∑ ∑officer; is that fair to say? ∑6∑ ∑ ∑ ∑ ∑ ∑ ∑MS. NIKOLAEVSKAYA:∑ Form. ∑7∑ ∑ ∑ ∑ ∑ ∑ ∑THE WITNESS:∑ I'd say so. ∑8∑ ∑BY MR. SCHWAB: ∑9∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ So from what I can tell -- and I'm 10∑ ∑going to ask you questions about this, and some of them 11∑ ∑will be my own perception, and you can tell me if I'm 12∑ ∑correct; but if I'm not, obviously, I want you to 13∑ ∑explain how I'm not right.∑ From what I can tell, there 14∑ ∑were two teams of five officers this day; is that right? 15∑ ∑ ∑ ∑ A.∑ ∑Yes. 16∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ And were they going on and off 17∑ ∑different shifts? 18∑ ∑ ∑ ∑ A.∑ ∑If I remember -- and it's -- it's been a while 19∑ ∑-- it's that we -- it wasn't as much shifts as just they 20∑ ∑would kind of shift us around as needed, and that way, 21∑ ∑we had -- if one team was engaged in something or busy, 22∑ ∑the other team could be involved and take over that 23∑ ∑team's place.∑ So I don't remember it being -- there 24∑ ∑being a primary or secondary; it was just kind of who 25∑ ∑was available and who was best suited to handle The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 16 YVer1f EXHIBIT Y Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 1 of 8 ∑1∑ ∑something. ∑2∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ There were two teams around so that ∑3∑ ∑there would at least be one team that could cover any ∑4∑ ∑incident? ∑5∑ ∑ ∑ ∑ A.∑ ∑Uh-huh. ∑6∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ Now, we saw your first body-worn ∑7∑ ∑camera, and it starts at around two -- or 3:15, I ∑8∑ ∑believe.∑ Were you out at the protest prior to this ∑9∑ ∑event -- or prior to this body-worn camera? 10∑ ∑ ∑ ∑ A.∑ ∑I don't remember when, exactly, we started 11∑ ∑heading outside.∑ I believe, at least according to my 12∑ ∑report, at approximately, like, 3:00 p.m. is when we 13∑ ∑started being actively involved, in terms of having the 14∑ ∑team ready and being ready to respond to stuff.∑ But I 15∑ ∑do remember, when we started, we were initially inside 16∑ ∑the police department, and eventually moved outside. 17∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ So you said over the weekend, probably, 18∑ ∑you -- or relatively recently, you watched all three of 19∑ ∑your body-worn cameras, right? 20∑ ∑ ∑ ∑ A.∑ ∑Yeah, in the past couple days. 21∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ Were there any other instances, where 22∑ ∑you were outside, that your body-worn camera, either was 23∑ ∑not engaged or is not reflected in those three body-worn 24∑ ∑cameras? 25∑ ∑ ∑ ∑ A.∑ ∑I believe there was periods of -- periods of The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 17 YVer1f Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 2 of 8 ∑1∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ Did you have any meetings in ∑2∑ ∑preparation? ∑3∑ ∑ ∑ ∑ A.∑ ∑Yes.∑ We had a briefing ahead of time, to talk ∑4∑ ∑about what the plan was for the day. ∑5∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ And was that earlier in that same day? ∑6∑ ∑ ∑ ∑ A.∑ ∑Yes. ∑7∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ And how long was that briefing? ∑8∑ ∑ ∑ ∑ A.∑ ∑I don't remember how long it was. ∑9∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ Who ran that briefing? 10∑ ∑ ∑ ∑ A.∑ ∑I don't remember everyone that was involved. I 11∑ ∑knew Lieutenant Murphy was there, and I believe the 12∑ ∑chief was there as well, but past that, I don't remember 13∑ ∑who exactly gave all -- the entire briefing and all of 14∑ ∑the details. 15∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ Was it done by PowerPoint?∑ What was 16∑ ∑the method of transmission of information to you? 17∑ ∑ ∑ ∑ A.∑ ∑I -- I don't remember if it was by PowerPoint 18∑ ∑or not.∑ I know there was at least someone talking and 19∑ ∑telling us what the plan was; but I don't remember what 20∑ ∑medium they used to relay the information. 21∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ And what was the plan? 22∑ ∑ ∑ ∑ A.∑ ∑The plan was essentially to -- from my 23∑ ∑understanding, to allow people to exercise their First 24∑ ∑Amendment rights; and if -- even if that meant arguing, 25∑ ∑yelling, whatever that was.∑ Let people exercise their The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 20 YVer1f Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 3 of 8 ∑1∑ ∑rights and have discourse about what their opinions on ∑2∑ ∑what was going on was; but then intervene -- and be ∑3∑ ∑ready to intervene in the case of any sort of crime, ∑4∑ ∑unlawful activity, disturbance, things like that. ∑5∑ ∑ ∑ ∑ Q.∑ ∑Okay.∑ Did you receive any intelligence? ∑6∑ ∑ ∑ ∑ ∑ ∑ ∑MS. NIKOLAEVSKAYA:∑ What intelligence? ∑7∑ ∑ ∑ ∑ ∑ ∑ ∑MR. SCHWAB:∑ That's what I'm asking. ∑8∑ ∑BY MR. SCHWAB: ∑9∑ ∑ ∑ ∑ Q.∑ ∑Did you receive any intelligence? 10∑ ∑ ∑ ∑ A.∑ ∑So we received some intelligence.∑ We received 11∑ ∑some intelligence on how many people will be there -- 12∑ ∑and I don't remember, exactly, the number that they gave 13∑ ∑us.∑ We also received some intelligence, as well, that 14∑ ∑there was potentially a busload of 50 people, associated 15∑ ∑with the group Antifa, that were potentially going to be 16∑ ∑coming to the protest. 17∑ ∑ ∑ ∑ Q.∑ ∑What is Antifa? 18∑ ∑ ∑ ∑ A.∑ ∑From my understanding of it, it's -- I mean, 19∑ ∑there -- I wouldn't say there is a specific group that's 20∑ ∑ran by an overarching organization, that they have the 21∑ ∑same goal; it's kind of just individuals gathering as a 22∑ ∑group.∑ But typically -- from my experience, of what 23∑ ∑I've seen, is typically people dressing in all black, 24∑ ∑showing up to protests with the intention of stirring up 25∑ ∑problems, causing disturbances, you know, getting people The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 21 YVer1f Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 4 of 8 ·1· ·back to your -- the -- your body-worn camera, which we ·2· ·had marked as Exhibit 1, and was also Townley 38.·And ·3· ·you can go right to the end. ·4· · · · A.· ·Okay.·What time? ·5· · · · Q.· ·We'll say 31 minutes in -- 30 and a half ·6· ·minutes in.·And you can just go there just for ·7· ·reference; we don't need to watch much video. ·8· · · · A.· ·Okay. ·9· · · · Q.· ·And at 31 minutes, you can see that you guys 10· ·are walking inside, right? 11· · · · A.· ·Yes.·Let me just scroll forward to 31.·Yeah, 12· ·that's what it looks like. 13· · · · Q.· ·Okay.·And it looks -- and if you go to 32 14· ·minutes, or -- it appears to me that all ten officers go 15· ·inside at this point, right? 16· · · · A.· ·I would have to -- sorry, give me a second 17· ·here.·I would have to try to count through each one; 18· ·but it looks like at least some part of both teams are 19· ·inside the building. 20· · · · Q.· ·Okay.·Do you remember why you went inside? 21· · · · A.· ·So I don't remember the exact reason, but they 22· ·were trying to give us intermittent breaks because we 23· ·were wearing masks and it was very hot that day.·That - 24· ·- because we had resources outside to continue to 25· ·monitor the protests, they -- at least my understanding The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 77 YVer1f Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 5 of 8 ·1· ·is that, essentially, as long as there wasn't anything ·2· ·that looked like was about to immediately pop off, they ·3· ·were okay with us going in to have a break, to get water ·4· ·or refresh, cool down a little bit, so that way we ·5· ·weren't getting overheated. ·6· · · · Q.· ·And if both teams walked in at the same ·7· ·moment, there wouldn't have been anyone outside, right? ·8· · · · A.· ·There -- there were still people outside. ·9· ·There was the undercover officers and unmarked units; 10· ·and I don't remember what points throughout the day they 11· ·were out there, but there were also some of the command 12· ·staff outside the front of the building as well, talking 13· ·with some of the protestors.·So there were still people 14· ·outside, and people observing what was going on. 15· · · · Q.· ·Okay.·Who told you to go inside? 16· · · · A.· ·I -- I don't remember who. 17· · · · Q.· ·Okay.·And aside from undercover officers, you 18· ·said the only other people that would be out there, and 19· ·the only people that would be in uniform, would maybe be 20· ·command staff? 21· · · · A.· ·From -- from my understanding, yes.·I believe 22· ·we, potentially, had some marked units out in the area 23· ·as well, but I don't remember exactly. 24· · · · Q.· ·Okay.·And to your knowledge, is there any 25· ·reason that both units would go in at the same time? The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 78 YVer1f Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 6 of 8 ·1· · · · A.· ·Yeah, if there was no sense of any kind of ·2· ·imminent disturbance or anything that they think we ·3· ·would need to respond to.·Because throughout the day, ·4· ·there were, you know, obviously the ebbs of the ·5· ·disturbances that we responded to, that were the ones ·6· ·involved today.·But then, also, some -- some low points ·7· ·as well, where there wasn't a lot of yelling, a lot of ·8· ·people -- not a lot of people being confrontational; ·9· ·there was really no need or reason for police 10· ·involvement with any of the groups at that point. 11· · · · Q.· ·Is there any reason you guys couldn't have 12· ·staggered so that one group was outside the whole time? 13· · · · A.· ·I mean, that was -- 14· · · · · · ·MS. HOFFMAN:·Form and foundation. 15· · · · · · ·THE WITNESS:·So that's a command staff 16· · · · decision; so you'll have to speak with them about 17· · · · that, and why that decision was made.·But like I 18· · · · said, there wasn't any point where this crowd 19· · · · wasn't being monitored by multiple officers. 20· ·BY MR. SCHWAB: 21· · · · Q.· ·Okay.·So who was monitoring them when you 22· ·went inside? 23· · · · A.· ·So like I said, it was the -- at least, my 24· ·understanding, the unmarked units, and the other -- 25· ·undercover units, and the drone team; but I don't know The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 79 YVer1f Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 7 of 8 ·1· ·exactly who and how many people. ·2· · · · Q.· ·Do you have any names?·Because I don't have ·3· ·any information on anybody who was monitoring the ·4· ·protest when you all went inside. ·5· · · · A.· ·So from my understanding, is our neighborhood ·6· ·engagement team was one of the units; and then our ·7· ·detectives from the criminal impact unit were some of ·8· ·the people involved.·There were other people, but like ·9· ·I said, I don't remember exactly who was there, and I 10· ·don't want to speak and say someone was there that 11· ·potentially wasn't.·But I know those two units, 12· ·specifically, had people that were out and about 13· ·throughout the day. 14· · · · Q.· ·Do you have any names that you can provide me? 15· · · · A.· ·I -- like I said, I don't want to say a name 16· ·and then have it be someone that wasn't there; but there 17· ·were some reports from some of the people that were in 18· ·those units, I believe, in the actual case report. 19· · · · Q.· ·Okay.·So while you were inside, a fight broke 20· ·out, right? 21· · · · A.· ·Not -- not to -- or not to my knowledge, at 22· ·least that I know of. 23· · · · Q.· ·Okay.·There was a fight in the ditch, 24· ·correct? 25· · · · A.· ·Yes. The Deposition of ETHAN VAN SICKLE, taken on October 19, 2023 80 YVer1f Case No. 1:22-cv-01983-SKC Document 95-1 filed 06/14/24 USDC Colorado pg 8 of 8 ·1· · · · A.· ·Yes. ·2· · · · Q.· ·Okay.· Did you review anyone else's body-worn ·3· ·camera? ·4· · · · A.· ·No. ·5· · · · Q.· ·Did you review any other video aside from your ·6· ·body-worn camera? ·7· · · · A.· ·No. ·8· · · · Q.· ·Did you review anyone else's reports other ·9· ·than your report? 10· · · · A.· ·I read the -- I read through the case reports. 11· · · · Q.· ·Okay.· Okay.· And was that about 127 pages? 12· · · · A.· ·No.· I don't recall the number of pages, but 13· ·it was significantly smaller than that. 14· · · · Q.· ·10, 25, any sense? 15· · · · A.· ·Maybe between 10 and 15, probably. 16· · · · Q.· ·Okay.· Did you -- aside from police officers 17· ·that you were working with in uniform, did you know 18· ·anyone at this rally that day? 19· · · · A.· ·Yes. 20· · · · Q.· ·Who did you know? 21· · · · A.· ·There were some family members -- not my 22· ·personal family members, but officers' family members 23· ·and -- and friends on the pro-police side. 24· · · · Q.· ·Whose family members were on the pro-police 25· ·side? EXHIBIT Z Case No. 1:22-cv-01983-SKC Document 95-2 filed 06/14/24 USDC Colorado pg 1 of 7 ·1· · · · A.· ·A couple of employees that were here. ·2· · · · Q.· ·Can you tell me the names of those police ·3· ·officers whose family members were part of the ·4· ·pro-police side? ·5· · · · A.· ·I only remember specifically Detective Kyle ·6· ·Bendzsa's family. ·7· · · · Q.· ·Can you spell that last name for me? ·8· · · · A.· ·B-E-N-D-Z-S-A, I believe. ·9· · · · Q.· ·You said Detective? 10· · · · A.· ·Sergeant. 11· · · · Q.· ·Sergeant?· Okay. 12· · · · A.· ·Sergeant, yes. 13· · · · Q.· ·Was he working that day? 14· · · · A.· ·I believe he was, yes. 15· · · · Q.· ·Okay.· And you said that there were other 16· ·family members as well, but you can't recall -- 17· · · · A.· ·I believe that -- sorry, I apologize. I 18· ·believe there was.· I just -- I don't recall who -- who 19· ·that was or -- or -- 20· · · · Q.· ·Okay.· Did you interact with those 21· ·individuals? 22· · · · A.· ·I believe I said hi to those family members at 23· ·one point, yes. 24· · · · Q.· ·Okay.· Did any of those individuals engage in 25· ·fighting? Case No. 1:22-cv-01983-SKC Document 95-2 filed 06/14/24 USDC Colorado pg 2 of 7 ·1· · · · A.· ·No. ·2· · · · Q.· ·Okay.· Did you ever talk with them about the ·3· ·fight? ·4· · · · A.· ·No.· I don't even know if they were there when ·5· ·it happened. ·6· · · · Q.· ·Okay.· Were there any police officers in plain ·7· ·clothes in the crowd? ·8· · · · A.· ·No.· Not to my knowledge. ·9· · · · Q.· ·Okay.· Would you say that you are an observant 10· ·individual? 11· · · · A.· ·Yeah. 12· · · · Q.· ·Would you say based on your training that you 13· ·have -- that you are very observant? 14· · · · A.· ·I would say that's probably fair. 15· · · · Q.· ·Okay.· And as part of your work, you prepare 16· ·reports, right? 17· · · · A.· ·Correct. 18· · · · Q.· ·Are you careful in how you write those 19· ·reports? 20· · · · A.· ·I try to be, yes. 21· · · · Q.· ·Okay.· The truthfulness of the statements you 22· ·write is important, right? 23· · · · A.· ·Correct. 24· · · · Q.· ·Okay.· A false statement, something that you 25· ·knew to be false, that would be really bad, right? Case No. 1:22-cv-01983-SKC Document 95-2 filed 06/14/24 USDC Colorado pg 3 of 7 ·1· ·were armed? ·2· · · · A.· ·Yeah. ·3· · · · Q.· ·Where did that information come from? ·4· · · · A.· ·I don't recall. ·5· · · · Q.· ·Okay.· You couldn't tell me if you heard it ·6· ·over your headset? ·7· · · · A.· ·I -- I don't recall, but there was concern ·8· ·because they -- there was belief that people were armed. ·9· · · · Q.· ·Okay.· Did you notice anybody wearing 10· ·earpieces? 11· · · · A.· ·I did not notice that, no. 12· · · · Q.· ·Okay.· Can you think of any reason that a 13· ·contingent of one side would wear earpieces? 14· · · · A.· ·I couldn't.· I don't know why they would be 15· ·doing that. 16· · · · Q.· ·Why do you wear an earpiece while you're 17· ·working? 18· · · · A.· ·To hear my radio. 19· · · · Q.· ·To be in communication, right? 20· · · · A.· ·Yeah. 21· · · · Q.· ·To coordinate? 22· · · · A.· ·Potentially. 23· · · · Q.· ·Okay.· Tell me about your training on Antifa. 24· · · · A.· ·I have not had formal training on Antifa. 25· · · · Q.· ·Okay.· So you don't have any training on how Case No. 1:22-cv-01983-SKC Document 95-2 filed 06/14/24 USDC Colorado pg 4 of 7 ·1· · · · A.· ·Yes. ·2· · · · Q.· ·Okay.· Were you concerned about the pro-police ·3· ·people here? ·4· · · · A.· ·Yes. ·5· · · · Q.· ·Were they potential terrorists here? ·6· · · · A.· ·I was concerned of -- of violence on both ·7· ·sides at this point. ·8· · · · Q.· ·Okay.· Were the pro-police people domestic ·9· ·terrorists or potential domestic terrorists? 10· · · · A.· ·I don't know. 11· · · · Q.· ·Okay. 12· · · · THE WITNESS:· (Inaudible), let's back up just a 13· ·little bit, because I think they're thinking if we're 14· ·standing here, somehow, they don't have (Inaudible), you 15· ·know?· If we leave, maybe they'll walk away because 16· ·they're afraid. (Inaudible). 17· ·BY MR. SCHWAB: 18· · · · Q.· ·So there, you just said, "Let's back up 19· ·because they're thinking if we're standing here, they 20· ·don't have to fight.· If we leave, maybe they'll walk 21· ·away because they're afraid." 22· · · · A.· ·Correct.· My -- my thought was, from my 23· ·experience, is that sometimes us standing there, we 24· ·embolden the people that are going to do something 25· ·wrong.· But if we're -- we take a low-visibility Case No. 1:22-cv-01983-SKC Document 95-2 filed 06/14/24 USDC Colorado pg 5 of 7 ·1· ·approach, which was part of the operational plan, that ·2· ·they would realize, hey, I'm not going to get into a ·3· ·fight.· We're going to just leave.· And it -- it -- we ·4· ·took that approach on most -- on most of the protests, ·5· ·and it seemed to generally work pretty well. ·6· · · · Q.· ·They're thinking that if we're standing here, ·7· ·they don't have to fight? ·8· · · · A.· ·What I was saying is like -- like, not a ·9· ·physical fight, like arguing between -- maybe an example 10· ·would be spouses of -- of -- saying you're fighting with 11· ·your spouse.· You don't -- most people generally don't 12· ·mean physically fighting.· They mean yelling and 13· ·arguing. 14· · · · Q.· ·Before you said that the arguing was pushing 15· ·out.· Why didn't you say, "If we're standing here, they 16· ·don't have to push out"? 17· · · · A.· ·I -- I don't know. 18· · · · Q.· ·Okay.· So if we're standing here, they are 19· ·thinking they don't have to fight, and then you walk 20· ·away, right? 21· · · · A.· ·So a little bit of a -- I would -- I would 22· ·admit a little -- misspoke a little bit.· And my -- 23· ·again, my thought wasn't that -- that they would 24· ·separate.· They realize we're not there, it wouldn't 25· ·agitate more people or embolden people who are going to Case No. 1:22-cv-01983-SKC Document 95-2 filed 06/14/24 USDC Colorado pg 6 of 7 ·1· · · · Q.· ·Is it fair -- is it fair to say that if all ·2· ·ten officers who were assigned to monitor the protests ·3· ·were inside, that there was no one outside to watch ·4· ·them? ·5· · · · · · ·MR. RATNER:· Same objections. ·6· · · · · · ·THE WITNESS:· You've got to remember -- ·7· · · · remember that the drone was out monitoring. ·8· ·BY MR. SCHWAB: ·9· · · · Q.· ·Okay.· And if the drone landed while you were 10· ·inside, would that mean that nobody was watching? 11· · · · · · ·MR. RATNER:· Object to foundation. 12· · · · · · ·THE WITNESS:· Yes, the drone -- the drone 13· · · · battery changes last very, very short amount of 14· · · · time. So for a brief second for -- to change the 15· · · · battery, then it's possible. 16· ·BY MR. SCHWAB: 17· · · · Q.· ·Okay. 18· · · · A.· ·And -- and to clarify, I don't know if there's 19· ·other people watching from -- from anywhere else as 20· ·well. 21· · · · Q.· ·Okay.· But the two teams assigned went inside, 22· ·right? 23· · · · A.· ·It does appear that way. 24· · · · Q.· ·Okay.· At the same time? 25· · · · A.· ·Yeah, it appears that way. Case No. 1:22-cv-01983-SKC Document 95-2 filed 06/14/24 USDC Colorado pg 7 of 7 ·1· ·detectives in the crowd.· I want to say there was a ·2· ·drone up.· We had another neighborhood engagement team ·3· ·that was in unmarked cars driving around. ·4· ·So I don't -- I guess I don't know if one of them saw ·5· ·it, or saw it through the drone, or what. ·6· · · · Q.· ·Okay.· And so you had some undercover ·7· ·detectives? ·8· · · · A.· ·I believe so. ·9· · · · Q.· ·And they were in the crowd? 10· · · · A.· ·I believe so. 11· · · · Q.· ·Do you know if they were wearing earpieces? 12· · · · A.· ·I'm not sure. 13· · · · Q.· ·Okay.· Do you know if anyone in the crowd was 14· ·wearing earpieces? 15· · · · A.· ·I'm not sure. 16· · · · Q.· ·If a substantial percentage or a substantial 17· ·number of people, we'll say five to ten in this crowd, 18· ·were wearing earpieces, what would that mean to you? 19· · · · · · MR. RATNER:· Object to form, foundation. 20· · · · · · THE WITNESS:· Like, earpieces for, like, 21· · · ·hearing? 22· ·BY MR. SCHWAB: 23· · · · Q.· ·The same thing that you wear -- 24· · · · A.· ·Oh. 25· · · · Q.· ·-- as a police officer, with the white... EXHIBIT AA Case No. 1:22-cv-01983-SKC Document 95-3 filed 06/14/24 USDC Colorado pg 1 of 2 ·1· · · · Q.· ·Okay.· It was more than you, and Mallory, and ·2· ·Schilz, and VanSickle, and -- that would've been it, ·3· ·yeah. ·4· · · · A.· ·Inside? ·5· · · · Q.· ·Yeah. ·6· · · · A.· ·I can't remember.· On my body camera, I think ·7· ·there's another officer, which when I reviewed my ·8· ·camera, I hadn't remembered being on-scene.· So I guess ·9· ·there could have been a second arrest team.· I just 10· ·don't remember there -- 11· · · · Q.· ·Okay.· Why were you inside? 12· · · · A.· ·I think they had Gatorade to kind of stay 13· ·hydrated.· Hot day, to get some -- get some AC. 14· · · · Q.· ·Okay.· What was going on outside when you were 15· ·inside? 16· · · · · · MR. RATNER:· Object to foundation. 17· · · · · · THE WITNESS:· I don't know. 18· ·BY MR. SCHWAB: 19· · · · Q.· ·Was it getting violent? 20· · · · · · MR. RATNER:· Same objection. 21· · · · · · THE WITNESS:· I don't know. 22· ·BY MR. SCHWAB: 23· · · · Q.· ·Were there any police officers out there 24· ·monitoring at that time? 25· · · · · · MR. RATNER:· Same objection. Case No. 1:22-cv-01983-SKC Document 95-3 filed 06/14/24 USDC Colorado pg 2 of 2 ·1· ·enforcement wearing an earpiece like this? ·2· · · · · · MR. RATNER:· Form and foundation. ·3· · · · · · THE WITNESS:· Not that often. ·4· ·BY MR. SCHWAB: ·5· · · · Q.· ·Okay.· If multiple people here were wearing ·6· ·these, what would that -- what would that, at least, ·7· ·suggest to you?· Or what would your thoughts be, based ·8· ·on your training, as to your perception of the event if ·9· ·(Inaudible) earpiece? 10· · · · A.· ·I guess I would assume that they're all 11· ·communicating with each other. 12· · · · · · MR. RATNER:· Object to form and foundation on 13· · · ·the last question. 14· ·BY MR. SCHWAB: 15· · · · Q.· ·What would -- would that cause any concerns or 16· ·catch your attention that these people are trying to 17· ·communicate with each other? 18· · · · A.· ·I'd find it interesting, yeah. 19· · · · Q.· ·Okay.· Do you recall if there were multiple 20· ·people wearing earpieces this day? 21· · · · A.· ·Aside from officers, no. 22· · · · Q.· ·Okay.· And just to kind of circle back to the 23· ·beginning, at this point, we don't see the flag, right, 24· ·that you believe that Josh -- that Mr. DeLeon was trying 25· ·to take from some individual? EXHIBIT BB Case No. 1:22-cv-01983-SKC Document 95-4 filed 06/14/24 USDC Colorado pg 1 of 1 Fort Collins Police Services Policy Manual POLICY 446 TITLE Mobile Audio/Video Recorder Policy 1 446.1 PURPOSE AND SCOPE Fort Collins Police Services (FCPS) has equipped selected vehicles and officers with Mobile Audio/Video Recording System(s) (MAV). The MAV is designed to assist officers in the performance of their duties and as a complement to the other law enforcement equipment used by them. The MAV is used to record certain duty-related activities, thereby creating a visual and/or audio record of the incident as a supplement to the officer’s report. This policy provides officers with guidelines for the use of the MAV as outlined in CRS § 24-31- 902.FCPS standards for MAV use exceed those set forth in state law. 446.2 OFFICER OPERATION REQUIREMENTS (a) Officers shall test the functionality of their MAV in accordance with manufacturer specifications and departmental training at the beginning of their shift or as soon as practical when responding from off-duty or a non-patrol assignment. (b) MAV testing includes but is not limited to the following: 1.Checking that the camera/recording device is functional. 2.Verifying that the MAV has an adequate power source. 3.Ensuring that the MAV is properly placed/affixed for optimal use. 4.Documenting officer information if applicable. 5.Documentation of the successful test is the video created when the device is initially checked. If the MAV is found not to be operational during the test, the officer will document the status in their unit history before responding to calls for service. (c) At the end of shift, the MAV must be secured and charged in accordance with manufacturer specifications and departmental training. (d) If, at any time, the MAV is found to be functioning improperly, the officer shall remove it from service and contact the appropriate supervisor/MAV administrator as soon as reasonably possible. 446.2.1 UPLOADING, STORAGE, AND RETENTION OF RECORDINGS (a) Any incident captured by the MAV shall be documented in the associated departmental reports, field interview entries, and on citations. (b)All MAV recordings shall be uploaded at the end of an officer’s shift, and in accordance with manufacturer specifications and departmental training. If there is a circumstance when this cannot be accomplished, an officer shall notify and gain approval from a supervisor to be authorized to deviate from the normal process. (c) MAV evidence will be stored in a departmental designated and secured location, including but not limited to: 1.An FCPS approved, web-based server; and OFFICERS_00108 EXHIBIT CC Case No. 1:22-cv-01983-SKC Document 95-5 filed 06/14/24 USDC Colorado pg 1 of 7 POLICY 446 TITLE Mobile Audio/Video Recorder Policy 2 2. Physical storage media such as CDs, DVDs, or other digital storage devices. (d) All MAV recordings will be logged as a criminal justice record following Agency policy and trainings. MAV recordings that are associated with a departmental report number that are uploaded directly into a server will have an entry made into RMS. 446.3 ACTIVATION OF THE MAV GENERALLY (a) An officer may activate the MAV any time the officer believes it would be appropriate and/or valuable to document an incident. However, an officer must activate the MAV as required in Section 446.3.1. (b) In some circumstances, it is not possible to capture images of the incident due to the conditions or the location of the camera. However, the audio portion can be valuable evidence and is subject to the same activation requirements as the MAV. (c) Once activated, the MAV, with the exceptions described in Section 446.3.2, shall remain on and not be turned off until the initial incident that caused the activation has concluded. For purposes of this section, conclusion of the incident occurs when the gathering of evidence or exchange of communication related to police enforcement activities are concluded. Circumstances vary, so officers will be expected to use their discretion and training when activating and deactivating the MAV. (d) Any incident that is recorded with either the video or audio system via the MAV shall be documented in the officer’s report. If a traffic citation is issued, the officer shall make a notation on the back of the citation copy that will be sent to court, indicating that the incident was recorded. (e) Sworn officers and Community Service Officers (CSOs) that elect to drive their assigned City vehicles to and from work or while off-duty are required to have their MAV with them while operating the vehicle in the event they are involved in an incident described in 446.3.1. 1. Upon request, the department will provide officers and CSO’s a MAV docking station for home use. If the employee elects to charge and download data from their MAV at home, they are responsible for the associated energy and internet service costs. 446.3.1 REQUIRED ACTIVATION OF THE MAV The activation of the MAV, both video and audio, is required in any of the following situations for officers and CSOs who are issued a MAV: (a) Responding in a motor vehicle to a call for service and the MAV should be activated shortly before the vehicle approaches the scene. (b) Responding to calls for service, but not responding in a motor vehicle, and the MAV should be activated shortly before reaching the scene. (c) Entering a premises for the purposes of enforcing the law, conducting a search either under consent or with a search warrant, or in response to a call for service. (d) During a welfare check, including, without limitation, a motorist assist. (e) During any in-person interaction with the public that is initiated by the officer or CSO, whether the interaction is consensual or nonconsensual, for the purpose of enforcing the law or investigating possible violations of the law. These interactions include, without limitation: 1. All field contacts involving actual or potential criminal conduct; 2. Traffic stops to include, but not limited to, traffic violations, motorist assistance, and all crime interdiction stops; OFFICERS_00109 Case No. 1:22-cv-01983-SKC Document 95-5 filed 06/14/24 USDC Colorado pg 2 of 7 POLICY 446 TITLE Mobile Audio/Video Recorder Policy 3 3. Welfare checks; 4. Suspicious person/vehicle contacts; 5. Arrests and investigatory stops; 6. Vehicle searches that occur outside of secure evidence processing locations such as secure crime scenes or evidence bays; 7. Physical or verbal confrontations or use of force; 8. Domestic violence calls; 9. DUI investigations including field sobriety maneuvers; 10. When a suspect contact or arrest is imminent; 11. Any self-initiated activity in which an officer would normally notify Fort Collins 911 (PSAP); and 12. Any contact that becomes adversarial after the initial contact in a situation that would not otherwise require activation of the MAV under this policy. (f) Priority responses. 1. There may be occasions when an officer or CSO not in a typical patrol assignment is responding directly from off duty, from a position of surveillance, or other situation where the MAV is not immediately accessible during the priority response. It is expected the officer will make reasonable effort to don and test their MAV as soon as practicable on arrival at their destination and before taking any police action. (g) Vehicle pursuits. (h) Any interviews/conversations over the phone for the purpose of enforcing the law or, investigating possible violations of the law, and when conducting interviews for investigations or calls for service. It is understood that due to the range of limitations of the vehicle version of the MAV that, at times, the microphone may be out of range and may not record the audio portion. Officers and CSOs should be aware that failing to activate an MAV as required by this policy or tampering with an MAV required to be activated under this policy may violate CRS § 24-31-902, and result in mandatory discipline and, for sworn officers, loss of POST certification. 446.3.2 MAV ACTIVATION NOT REQUIRED OR DEACTIVATION ALLOWED Activation of the MAV not required, or MAV deactivation allowed when: (a) Enroute to a call for service in a motor vehicle, but the MAV should be turned on shortly before the vehicle approaches the scene. (b) Obtaining personal information from an individual that is not case related. This may include, without limitation, date of birth, address, phone number, email addresses, identification numbers, medical information, financial information, or any other personal information that would raise substantial privacy concerns for the individual. (c) Working on an assignment unrelated to an incident that might otherwise require MAV activation under this policy, such as assigned to scene security post, traffic post, or acting in a Peer Support role, as defined in FCPS Policy 817 Peer Support Team, so long as there is no public interaction. (d) There is a long break in an incident that otherwise requires MAV activation under this policy. (e) Engaging in an administrative, tactical, or management discussion when civilians are not present during an incident that otherwise requires MAV activation under this policy. OFFICERS_00110 Case No. 1:22-cv-01983-SKC Document 95-5 filed 06/14/24 USDC Colorado pg 3 of 7 POLICY 446 TITLE Mobile Audio/Video Recorder Policy 4 (f) An officer is working undercover in compliance with FCPS Policy 608, which may include, without limitation, covert surveillance, and approved operations during which an officer uses a fictitious identity. (g) An officer is working in a jail area that has functioning video cameras. (h) During breaks, lunch periods, when not on shift, or when the officer is otherwise involved in routine or administrative duties having no public interaction. (i) When an individual is willingly providing criminal intelligence information or when law enforcement is cultivating or meeting with a confidential informant and the interaction is unrelated to the incident that is otherwise requiring activation of the MAV, the sound of the MAV may be muted by the officer during this interaction. These informant contacts must comply with guidelines in Policy 608. (j) Officers assigned to administrative duties that have little or no public interaction unless officer encounters one of the situations identified in Section 446.3.1 of this policy. (k) Special event security assignments unless the officer encounters one of the situations identified in section 446.3.1 of this policy. 446.3.3 REPORTING CESSATION OF RECORDING If there is a break in the recording of an incident, the officer report shall explain why that break occurred either on the recording itself or in an associated report. Examples of such breaks include, without limitation: (a) There is a malfunction to or accidental deactivation of the device. (b) Cessation of the recording is for one of the reasons authorized in Section 446.3.2 of this policy. (c) There is a change of venue where there is no incident related police activity occurring and no public interaction. 446.3.4 CLASSIFICATION AND RETENTION OF MAV RECORDINGS The officer who recorded the MAV record shall verify or classify the recording. Each classification will have an established retention time in accordance with FCPS’ retention schedule. Any MAV recording in any classification can be changed to another classification or have its retention status changed in accordance with FCPS departmental policies. Classifications, descriptions, and retention are as follows: (a) INCIDENT ONLY – Activation of the MAV where there is unlikely to be any civil liability or possibility of a complaint or future action or any miscellaneous activation of the MAV which does not meet the requirements of any other classification. Examples may include: accidental MAV activation, removing items from the roadway, motorist assists, traffic control, general citizen contacts, contacts in which there was a violation of the law, but the officer has chosen to issue a verbal or written warning. These recordings should be available to address any complaints or issues that could be resolved by reviewing the recording. The retention period for Incident Only recordings is 36 months. (b) TRAFFIC – MAV recordings of calls for service involving a citizen, vehicle, bicycle, pedestrian, etc. where the officer issues a citation into Municipal Court or County Court for traffic or municipal related offenses. The retention period for Traffic recordings is 36 months. OFFICERS_00111 Case No. 1:22-cv-01983-SKC Document 95-5 filed 06/14/24 USDC Colorado pg 4 of 7 POLICY 446 TITLE Mobile Audio/Video Recorder Policy 5 (c) CASE REPORT – MAV recordings made during investigations in which case reports have been generated. These recordings are consistent with FCPS’ retention schedule. (d) RESTRICTED MAV recordings that document incidents that are deemed sensitive in nature that can have access restricted to select individuals. This status would be deemed necessary by a supervisor and entered by an MAV administrator. Examples could include cases involving use of force resulting in SBI, officer involved shootings, allegations of criminal actions by an officer or by a citizen with an officer as a victim, and investigations alleging misconduct. Access to a restricted MAV must be approved by the division chief (or designee) overseeing the investigation. These recordings are subject to FCPS’ evidence retention policy. (e) PENDING REVIEW – MAV recordings deemed needed for administrative purposes such as complaint reviews or litigation holds. Retention period will be until manually deleted. (f) REVIEW AUDIT – MAV recordings reviewed by a supervisor to verify proper use of the MAV, as well as proper operational and procedural practices. Retention will be for 5 years. No member of this Agency may surreptitiously record a conversation of any other member of this Agency except with a court order or when authorized by the Chief of Police or their authorized designee for the purpose of conducting a criminal investigation or as an administrative function. 446.4 REVIEW OF MAV RECORDINGS (a) All recording media, recorded images, and audio recordings are the property of the Agency. Dissemination outside of the Agency is strictly prohibited, except to the extent permitted or required by policy or law. (b) To prevent damage or alteration of the original recorded media, such media shall not be copied, viewed, or otherwise inserted into any device not approved by the Agency MAV administrator or forensic media staff. Officers using the MAV that has been permanently mounted in a vehicle shall not remove the media storage card unless approved by an authorized MAV administrator. (c) Recordings may be reviewed in any of the following situations: 1. When preparing reports and statements, or for court testimony. (a) Exception: Critical Incident Protocol as developed in conjunction with the Office of the District Attorney, Eighth Judicial District. 2. By a supervisor investigating a specific act of officer conduct. 3. By a supervisor to assess officer performance. 4. To assess proper functioning of the MAV. 5. By an investigator who is participating in an official investigation, such as a personnel complaint, administrative inquiry, or a criminal investigation. 6. An officer who is captured on or referenced in the video or audio data may review such data and use the data for any purpose relating to his/her employment, unless restricted at the time of request as described in this policy. 7. By evidence technicians responsible for providing videos to the district attorney’s, and city attorney’s, offices or anyone authorized to take possession of videos by court order, law, or policy. 8. By court personnel through proper process or with permission of the Chief of Police or the authorized designee. OFFICERS_00112 Case No. 1:22-cv-01983-SKC Document 95-5 filed 06/14/24 USDC Colorado pg 5 of 7 POLICY 446 TITLE Mobile Audio/Video Recorder Policy 6 9. Recordings may be shown for training purposes. If an involved officer objects to showing a recording, his/her objection will be submitted to the staff to determine if the training value outweighs the officer’s objection. 10. Program Manager Review of MAV Recordings: A MAV system program manager will be selected by the Patrol Assistant Chief and the program manager or designee will complete a yearly audit of a limited number of MAV videos to verify proper use of the MAV, as well as proper operational and procedural practices. This will be accomplished by randomly selecting and viewing ten MAV recordings from different officers each year. These videos will include at least one video marked as “Case”, one marked as “Traffic,” and one marked as “Incident Only.” After reviewing the videos, the program manager will enter comments and any supervisory actions taken in the Evidence.com system, as well as add the video tag of “Review Audit”. Audited videos will be kept in the system for five years. (d) In no event shall any recording be used or shown for the purpose of ridicule or embarrassing any employee. 446.5 DOCUMENTATION A MAV is not intended to replace a written report. Officers are still responsible for completing a thorough report in the same manner they would if they did not have a MAV recording. 446.6 TRAINING AND SUPERVISORY RESPONSIBILITIES Users of the MAV and supervisors shall be trained on the proper use of the MAV and shall become familiar with this policy prior to deployment of the MAV. Supervisors shall ensure that MAVs assigned to their officers are in working order and the officer using the MAV has been properly trained. Supervisors will monitor and verify that their officers are properly using the MAVs as required by departmental policy and training. Monthly, supervisors will review at least three videos from the officers under their command as selected by body camera software. This includes monthly random selection and viewing of employee’s recordings, limited to employees within that supervisor’s purview. Supervisors shall monitor their officer’s recording entries into the body camera storage system for accuracy and completeness of entries. The Axon Enterprise manager will monitor performance for the agency and communicate metrics to staff quarterly. 446.2 OFFICER OPERATION REQUIREMENTS (a) Officers shall test the functionality of their MAV in accordance with manufacturer specifications and departmental training at the beginning of their shift or as soon as practical when responding from off-duty or a non-patrol assignment. (b) MAV testing includes but is not limited to the following: 1. Checking that the camera/recording device is functional. 2. Verifying that the MAV has an adequate power source. 3. Ensuring that the MAV is properly placed/affixed for optimal use. 4. Documenting officer information if applicable. OFFICERS_00113 Case No. 1:22-cv-01983-SKC Document 95-5 filed 06/14/24 USDC Colorado pg 6 of 7 POLICY 446 TITLE Mobile Audio/Video Recorder Policy 7 5. Documentation of the successful test is satisfied by the video created when the device is initially checked. If the MAV is found not to be operational during the test, the officer will document the status in their unit history before responding to calls for service. (c) At the end of shift, the MAV must be secured and charged in accordance with manufacturer specifications and departmental training. (d) If, at any time, the MAV is found to be functioning improperly, the officer shall remove it from service and contact the appropriate supervisor/MAV administrator as soon as reasonably possible. (e) Officers shall monitor and maintain their recordings and verify accuracy and completeness of entries in the cloud-based storage system weekly. (f) Officers shall document case-related BWC videos in the RMS system. 446.6 RELEASE OF MAV RECORDINGS Public release of MAV video recordings will be in accordance with current departmental Records Release policies and, as applicable, in accordance with the Colorado Criminal Justice Records Act and CRS Section 24-31-902(2). Videos may be released at the direction of the Chief of Police or their authorized designee. When FCPS has been notified of a complaint of misconduct by one of its officers or CSOs and there is relevant video of the incident, including MAV video, and a request has been made under CRS § 24-31-902(2) for release of the video, such request shall be forwarded to the Office of Professional Standards (OPS). OPS shall be responsible for responding to the request for the release and shall consult with the district attorney and city attorney’s offices in deciding how to respond to the request under CRS §24-31-902(2). OFFICERS_00114 Case No. 1:22-cv-01983-SKC Document 95-5 filed 06/14/24 USDC Colorado pg 7 of 7