HomeMy WebLinkAbout2018CV3112 - Sean Slatton V. Fort Collins Police Department, Todd Hopkins, Brandon Barnes And John Hutto - 109 - Plaintiff's Consolidated Reponse To Defendants' Motions To Dismiss1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-03112-RBJ-STV
SEAN SLATTON,
Plaintiff,
v.
TODD HOPKINS, in his individual capacity,
BRANDON BARNES, in his individual capacity,
JOHN HUTTO, in his individual capacity,
CITY OF FORT COLLINS, a municipality,
Defendants.
______________________________________________________________________________
PLAINTIFF’S CONSOLIDATED RESPONSE TO DEFENDANTS’
MOTIONS TO DISMISS [DOCS. 96 & 98]
______________________________________________________________________________
Plaintiff, through counsel, David Lane and Helen Oh of KILLMER, LANE, NEWMAN, LLP,
hereby submit the following Consolidated Response to Defendants’ Motions to Dismiss [Docs. 96
& 98], and state as follows:
INTRODUCTION
This is a case of unlawful seizure and excessive force against a Plaintiff who was
nonviolent, nonthreatening, and attempting to comply with the officer’s orders. Plaintiff Sean
Slatton was ordered to leave his girlfriend’s sorority party after being falsely accused of bringing a
flask. [Doc. 94 ¶¶ 19-20]. Fort Collins Police Services (“FCPS”) Officer Todd Hopkins instructed
Mr. Slatton to leave, and Mr. Slatton calmly and immediately complied. [Id., ¶¶ 21, 22]. Mr. Slatton
stood outside to order a ride service to drive him to his hotel. [Id., ¶ 24]. Defendants Hopkins and
Officer Brandon Barnes followed Mr. Slatton outside, and Hopkins remarked, “what was the
property part you didn’t understand.” [Id., ¶ 25]. Confused, Mr. Slatton stated that he was waiting
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for his ride. Id. Hopkins again told Mr. Slatton to leave the property, to which he replied, “ok, I
will,” but before giving Mr. Slatton a chance to do so, demanded to see his identification. [Id., ¶
26]. When asked why, Hopkins stated that he was detaining him for trespassing. [Id., ¶¶ 26, 27].
Mr. Slatton objected and walked away because he had not committed a crime and was complying
with Hopkins’ order to leave. [Id., ¶ 28]. Upon reaching the sidewalk, Hopkins told Mr. Slatton he
was under arrest, and without provocation, struck him in the leg with a baton and pepper sprayed
him in the face. [Id., ¶¶ 31-34, 37]. At no point in time did Barnes attempt to stop Hopkins from
unlawfully asserting authority over Mr. Slatton. [Id., ¶ 30].
Reasonably fearing for his safety, Mr. Slatton fled in response to being pepper sprayed. [Id.,
¶¶ 36-39]. Within minutes, he stopped running because he struggled to breathe and was in intense
pain from the pepper spray. [Id., ¶ 41]. He was then apprehended by FCPS officers. [Id., ¶ 42]. Mr.
Slatton was brought to jail on charges of third-degree criminal trespassing, obstructing a peace
officer, and resisting arrest. [Id., ¶ 46]. All charges were dismissed before trial. [Id., ¶ 49].
Plaintiff’s Fourth Amended Complaint (“FAC”) brings three claims pursuant to 42 U.S.C.
§ 1983: (1) Fourth Amendment unlawful seizure against Hopkins and Barnes; (2) Fourth
Amendment excessive force against Hopkins, Chief Hutto, and the City of Fort Collins (“Fort
Collins”); and (3) Fourteenth Amendment excessive force against Hopkins, Hutto, and Fort
Collins. [Doc. 94]. Defendants seek to dismiss all of Plaintiff’s claims for relief. [Docs. 96 & 98].
For the reasons below, Defendants’ motions are without merit and must be denied.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure allow a defendant to file a motion to dismiss for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “There is a
strong presumption against the dismissal of claims under this rule.” Blevins v. Reid, 2008 U.S.
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Dist. LEXIS 46168, at *9 (D. Colo. June 12, 2008) (citing Cottrell, Ltd. v. Biotrol Intern.,
Inc., 191 F.3d 1248, 1251 (10th Cir. 1999)) (emphasis added). When a defendant files a motion to
dismiss pursuant to Rule 12(b)(6), a court must accept as true “all well-pleaded factual allegations
in a complaint and view these allegations in the light most favorable to the plaintiff.” Kerber v.
Qwest Group Life Ins. Plan, 647 F.3d 950, 959 (10th Cir. 2011) (citation omitted).
Under Fed. R. Civ. P. 8(a)(2), the complaint “must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Generally, in the post-Twombly and
Iqbal era, a complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Plausible” does not mean
“likely to be true,” but is, instead, a nudge beyond “conceivable.” See Robbins v. Oklahoma, 519
F.3d 1242, 1247 (10th Cir. 2008). “The allegations must be enough that, if assumed to be true, the
plaintiff plausibly (not just speculatively) has a claim for relief.” Id.; see also Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014) (“Federal pleading rules call for ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ . . . they do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted.”).1
Matters Outside the Pleadings
While Plaintiff disagrees that the bodycam video attached to Defendant Hopkins’ Motion
to Dismiss is “central to his complaint,” [Doc. 96], Plaintiff does not object to the Court
considering the video in deciding the motions to dismiss. Plaintiff does, however, take issue with
Exhibits B and C, the transcript and ruling from Mr. Slatton’s suppression hearing from his
1 In Johnson, the United States Supreme Court summarily reversed a dismissal of a § 1983 action,
emphasizing that lower courts are not to apply such a heightened standard of pleading.
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previous criminal case. Neither of these documents are central to his claims, nor does Mr. Slatton
reference or rely on these documents whatsoever in his FAC. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002) (A document is central or integral to the complaint when “the
complaint relies heavily upon its terms and effect.”). Therefore, the court should not consider
Hopkins’ Exhibits B and C when ruling on this motion.
ARGUMENT
I. Defendants Hopkins and Barnes Unreasonably Seized Mr. Slatton in Violation of the
Fourth Amendment.
The Supreme Court has held that a seizure requires submission to a show of authority or
the application of physical force which brings termination of movement. In Brower v. County of
Inyo, the Supreme Court found that a seizure occurred when the subject was killed by crashing
into a police roadblock while fleeing from the police. 489 U.S. 593, 109 S. Ct. 1378, 103 L. Ed.
2d 628 (1989). The court reasoned:
[A] Fourth Amendment seizure does not occur whenever there is a governmentally
caused termination of an individual’s freedom of movement …, nor even whenever
there is a governmentally caused and … desired termination of an individual’s
freedom of movement …, but only when there is a governmental termination of
freedom of movement through means intentionally applied. . . . That is the reason
there was no seizure in the hypothetical situation that concerned the Court of
Appeals. The pursuing police car sought to stop the suspect only by the show of
authority represented by flashing lights and continuing pursuit; and though he was
in fact stopped, he was stopped by a different means—his loss of control of his
vehicle and his subsequent crash. If, instead of that, the police cruiser had pulled
alongside the fleeing car and sideswiped it, producing the crash, then the termination
of the suspect’s freedom of movement would have been a seizure.
Brower, 489 U.S. at 596-97.
In California v. Hodari D., the Supreme Court considered whether there was a seizure
under the Fourth Amendment when there was a mere show of authority without the use of physical
force. 499 U.S. 621 (1991). The court held there was no seizure, and in reaching this conclusion
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explained that a seizure under the Fourth Amendment encompasses the common-law definition of
arrest, which “requires either the application of physical force . . . or, where that is absent,
submission to the assertion of authority.” Id. at 626 (emphasis in original).
Relying on Brower and Hodari D., the Tenth Circuit holds that there is no seizure under
the Fourth Amendment unless the force terminates the subject’s movement through means
intentionally applied. In Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010), an officer shot a
violent, fleeing suspect under suspicion of attempted burglary. Id at 1215. Despite being hit, the
man continued his flight and evaded capture for three days. Id. The court held that when police
shot the man, he was not seized, because a seizure under the Fourth Amendment requires
“intentional acquisition of physical control, through termination of movement by physical force or
submission to a show of authority.” Id. at 1221. This occurs when a person is “stopped by the
very instrumentality set in motion or put in place in order to achieve that result.” Id. (citing
Brower, 489 U.S. at 595-96). The court explained, “what constitutes actual ‘submission’. . .
depends on ‘the totality of the circumstances – the whole picture.” Id. (citing United States v.
Cortez, 449 U.S. 411, 417 (1981)). There was no seizure when Mr. Brooks was shot because “he
continued climbing the fence and elud[ed] arrest for three days.” Id. at 1224.
The Tenth Circuit reached a similar conclusion in Farrell v. Montoya, 878 F.3d 933 (10th
Cir. 2017). The plaintiff was driving with her five children when she was pulled over for
speeding. Id. at 935. Before the officer could cite the plaintiff, she drove away. Id. The officer
returned to his car and followed the plaintiff with his sirens on, and the plaintiff stopped again
shortly thereafter. Id. Two other officers arrived, and when the plaintiff drove away for the second
time, an officer fired three shots, missing the vehicle completely. Id. The officers pursued the
plaintiff, who surrendered four minutes later. Id. The court held that the plaintiff was not seized
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when shots were fired because they did not cause her submission. Id. at 937. The court also
rejected the plaintiff’s argument that there was an ongoing seizure that began when the plaintiff
first pulled over and lasted at least until she was shot at. Id. at 938. The court explained that it was
unaware of any court finding the existence of an ongoing seizure, and that the authority Farrell
cited to was not analogous to, or supportive of her argument, because they focused on the fruit of
unlawful seizures. Farrell, 878 F.3d at 938-39.
While the Tenth Circuit has not confronted a case with facts as similar to Mr. Slatton’s,
other district courts have addressed this issue. In Yelverton v. Vargo, 386 F. Supp. 2d 1224, 1228
(M.D. Ala. 2005) the court found that the plaintiff was seized for purposes of the Fourth
Amendment when he was pepper sprayed by an officer while driving recklessly, despite the
plaintiff’s ability to continue driving away. Due to the pepper spray, the plaintiff soon thereafter
crashed his vehicle and walked on foot for a mile before being apprehended. The court followed
Hodari D. and reasoned that because the pepper spray was used to seize the plaintiff and caused
him to crash his vehicle which led to his apprehension, the officer’s pepper spraying of the
plaintiff constituted a seizure.
In Griffin v. Runyon, No. 5:04-CV-348 (DF), 2006 U.S. Dist. LEXIS 29688 (M.D. Ga.
May 16, 2006) the plaintiff, a subcontractor, was surveying plots of land and arguing with nearby
landowners about his right to be there. Police were called, and the plaintiff and officer argued
about the same. Eventually, the officer grabbed the plaintiff by the arm and demanded he come
with the officer. Id. at 13-14. The plaintiff ignored the officer’s commands, so the officer pepper
sprayed him in the face. Id. at 14. In response, the plaintiff turned around and walked thirty feet to
his car, only to be sprayed again. Id. at 15. Undeterred, he entered his car and drove to a nearby
water spigot to wash off the pepper spray, where he was stopped by other officers. Id. 16. The
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court found that the plaintiff was seized when he was pepper sprayed because it was “a calculated
effort to prevent [the plaintiff’s] flight and bring him into compliance with [the officer’s] verbal
commands to halt.” Id. at 20. These actions were “means intentionally applied to terminate [the
plaintiff’s] freedom of movement” which resulted in the plaintiff’s submission. Id.
A. Hopkins’ Use of Force Against Mr. Slatton Terminated His Movement and
Caused His Submission to Authority.
When Hopkins pepper sprayed Mr. Slatton for the purpose of seizing him, and the pepper
spray caused his termination of movement and subsequent apprehension, Mr. Slatton was seized
for purposes of the Fourth Amendment. [Doc. 94 ¶¶ 37, 41, 42, 88]. Inherent in the holdings of
Brower, Brooks, and their progeny is an analysis of causation between the use of force and a
subject’s submission. Three days in Brooks was a sufficient length of time to sever causation
between the officer’s use of force and the plaintiff’s apprehension. Separate seizures and an
unsuccessful use of force were sufficient to sever causation in Farrell.
Unlike the Brooks and Farrell plaintiffs who were shot, but continued to evade police for
days, whereby they were not “stopped by the very instrumentality set in motion or put in place in
order to achieve that result,” Brooks, 614 F.3d at 1221, Mr. Slatton was stopped and apprehended
solely because he was struggling to breathe and in pain from the pepper spray. [Doc 94, ¶¶ 41,
42]. In other words, Hopkins’ pepper spray of Plaintiff was a “governmental termination of
freedom of movement through means intentionally applied.” Brooks, 614 F.3d at 1220 (quoting
Brower, 489 U.S. at 1596-97). Furthermore, Hopkins’ intended use of force on Mr. Slatton was
indeed successfully applied to him, directly causing his submission, even if four minutes later,
unlike the intended target in Farrell. The language of Brower and its progeny make clear that
when Hopkins pepper sprayed Mr. Slatton and this very force terminated Mr. Slatton’s
movement, leading to his apprehension, Mr. Slatton was seized under the Fourth Amendment.
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Mr. Slatton does not necessarily claim the existence of an ongoing seizure,2 but Farrell is
nonetheless clearly distinguishable. Farrell’s argument of ongoing seizure was particularly weak
because Farrell submitted to authority each time she pulled over, and she was not stopped by the
officer’s missed bullets. Thus, each seizure was pursuant to the officer’s show of authority (sirens
and flashing lights) which created separate seizures, rather than one ongoing seizure. See id.
Moreover, the court emphasized that the officer’s missed shots were not the instrumentality that
caused Farrell’s submission to authority, which is starkly different from Mr. Slatton’s seizure,
which was caused and effectuated by Hopkins’ use of pepper spray.
The question then becomes, at what point does a seizure begin and end when the use of
force terminates a subject’s movement, but not immediately? The Yelverton and Griffin analyses are
instructive. There, the courts found that a seizure occurred when the officers used force, which
ultimately, though not immediately, stopped the plaintiffs. The fact that the force failed to
immediately terminate the plaintiffs’ movement was not dispositive. As is the case for Mr. Slatton,
because the force was used with the intention of seizing the plaintiffs and it directly caused the
plaintiffs’ submission soon thereafter (within minutes), this demonstrates a firm link between the
termination of movement through means intentionally applied. In each case, the plaintiffs were
seized when the officers used force because the use of force caused their submission shortly
thereafter. This result comports with Brower, Brooks, and their progeny. Plaintiff’s factual
allegations accepted as true demonstrate that Mr. Slatton was seized when he was pepper sprayed in
2 Plaintiff does not necessarily claim that his seizure was one continuous seizure or two seizures.
The dispositive inquiry is whether there was an intentional acquisition of physical control through
means intentionally applied, further supported by considerations that evince direct causation, such
as length of time the subject was in flight, and the whether the force successfully hit the plaintiff.
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the face, because the use of force was intended to seize him, it caused his termination of movement
just minutes later, and it directly brought about his apprehension.3
B. Officers Hopkins and Barnes Unlawfully Seized Mr. Slatton When They Caused
Him to Be Seized Without Probable Cause or Reasonable Suspicion.
“In evaluating whether the events leading up to an arrest amount to probable cause, the
Tenth Circuit asks whether an objectively reasonable officer could conclude that the historical
facts at the time of the arrest amount to probable cause.” Cortez v. McCauley, 478 F.3d 1108
(10th Cir. 2007). Probable cause is “based on the totality of the circumstances, and requires
reasonably trustworthy information that would lead a reasonable officer to believe that the person
about to be arrested has committed or is about to commit a crime.” Id.
i. Hopkins and Barnes Lacked Probable Cause to Seize Plaintiff for
Third Degree Trespass.
3 Defendants argue, through Brooks and its progeny, that a Fourth Amendment excessive force
claim is barred from constitutional inquiry if the force used does not result in the subject’s
immediate apprehension, no matter how excessive the force. This result contravenes Hodari D.
and is inconsistent with Fourth Amendment jurisprudence that requires seizures be “reasonable.”
See Scott v. Harris, 550 U.S. 372, 383 (2007). A rigid application of this approach ultimately
leaves a large swath of bodily intrusions by police officers – be it by pepper spray, tasers, or
bullets – unconstrained under the Fourth Amendment if the subject is able to flee.
The Supreme Court recently granted certiorari on this very issue. See Torres v. Madrid, 769 Fed.
Appx. 654 (10th Cir. 2019), cert. granted, 2019 U.S. LEXIS 7619 (U.S., Dec. 18, 2019). In the
Third, Sixth, Eighth, and Eleventh Circuits, “[a] seizure occurs when there is either (a) a laying on
of hands or application of physical force to restrain movement, even when it is ultimately
unsuccessful, or (b) submission to a show of authority.” United States v. Brown, 448 F.3d 239, 245
(3d Cir. 2006) (internal quotations omitted); see Slusher v. Carson, 540 F.3d 449, 454 (6th Cir.
2008); see also Atkinson v. City of Mt. View, 709 F.3d 1201 (8th Cir. 2013); Vaughan v. Cox, 343
F.3d 1323 (11th Cir. 2003).
Although in disagreement with the Tenth Circuit rule and its inherent tension with Fourth
Amendment jurisprudence, Plaintiff’s seizure is readily distinguishable from the plaintiffs in
Brooks and its progeny, and his FAC nonetheless demonstrates why Plaintiff was seized within
the meaning of the Fourth Amendment.
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Colorado’s third-degree criminal trespass statute states, “[a] person commits the crime of
third degree trespass if such person unlawfully enters or remains in or upon premises of another.”
C.R.S. § 18-4-504(1). The Restatement explains, “one who enters land pursuant to the possessor’s
consent and finds himself on the land at the time of the unexpected termination of such consent,
does not become a trespasser . . . if he thereafter leaves the land in a reasonable manner and
within a reasonable time.” Restatement § 176 cmt. c. In determining what is a reasonable amount
of time, “the surrounding circumstances, including ‘whether he has continued on the land for
some time before learning of the termination” should be taken into account. Martin v. Union Pac.
R.R. Co., 186 P.3d 61 (Colo. App. 2007) (rev’d on other grounds). In Martin, the court found that
the plaintiff had consent to drive her car over railroad tracks. Id. at 69. Within moments, the
railroad’s warning lights began to flash and the gate came down. Id. at 70. “Even assuming that
[the railroad’s] consent was thereby revoked, under the Restatement … [plaintiff] had a
reasonable time within which to leave [the railroad’s] property before becoming a trespasser.”).
Id. The court rejected defendant’s assertion that plaintiff was a trespasser because a reasonable
amount of time was not afforded to plaintiff to leave when the train appeared twenty seconds
later.
Plaintiff’s FAC demonstrates Hopkins and Barnes’ lack of probable cause for Plaintiff’s
seizure. [Doc. 94 ¶¶ 26-30, 46, 47, 86-89, 92]. As stated in the FAC:
• Hopkins and Barnes knew Plaintiff was an invitee/licensee whose consent to be at the
event was later revoked. Upon revocation, they saw Plaintiff calmly and immediately exit
the building in an effort to comply with the order to leave. [Id., ¶¶ 21, 22].
• Hopkins and Barnes followed Plaintiff outside and Hopkins immediately asked Plaintiff,
“what was the property part you didn’t understand.” [Id., ¶ 25]. Plaintiff responded that he
was waiting for his ride. Id.
• Hopkins demanded Plaintiff leave the property, but before giving him a chance to do so,
confusingly demanded to see his identification. [Id., ¶ 26]. Perplexed, Plaintiff asked why.
Id. Hopkins stated that he was detaining Plaintiff. Id.
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• Mr. Slatton replied, “I’m not trespassing, I’m leaving right now,” and walked away.
Hopkins then informed him that he was under arrest. [Id., ¶ 28].
• This brief encounter lasted no longer than thirty seconds. [Id., ¶ 29].
Hopkins and Barnes knew that Mr. Slatton had consent to be on the property, and when
his consent was revoked, they witnessed him comply and leave the building. They then should
have afforded him a reasonable amount of time and manner in which to leave. Martin, 186 P.3d at
70. Despite learning that Mr. Slatton was waiting for a ride, Hopkins and Barnes nonetheless
afforded him a mere thirty seconds to comply before telling him he was under arrest. This was not
a reasonable amount of time to comply under the circumstances, especially after giving him
conflicting commands to leave the property and then to produce his identification. Because
Hopkins and Barnes did not afford Mr. Slatton a reasonable amount of time nor manner in which
to leave the premises, despite their knowledge that Mr. Slatton’s permission to remain on the
premises was just revoked, they lacked probable cause to seize him for trespassing.
Hopkins and Barnes lacked even reasonable suspicion to detain Mr. Slatton. An officer
has reasonable suspicion to stop an individual when the officer has reason to believe that a person
is committing or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 28 (1968); Harman v.
Pollock, 568 F.3d 1254, 1261 (10th Cir. 2009). Upon watching Mr. Slatton exit the building after
being told to leave, and learning that he was waiting for his means of transportation for that very
purpose, Hopkins and Barnes should have ended their inquiry. [Doc. 94 ¶¶ 26, 30, 87].
ii. Hopkins and Barnes Unlawfully Seized Plaintiff for Obstruction.
Under C.R.S. § 18-8-104(1)(a), a person obstructs a peace officer … “when, by using or
threatening to use violence, force, physical interference, or an obstacle, such person knowingly
obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by
a peace officer, acting under color of his or her official authority.” An “obstacle” or “physical
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interference” requires “conduct that is of sufficient magnitude to ‘obstruct, impair or hinder’
enforcement of the officers’ duty.” Dempsey v. People, 117 P.3d 800, 810 (Colo. 2005). The
obstacle “may not be merely verbal opposition.” Id. at 810-11 (citing Norwell v. Cincinnati, 414
U.S. 14, 38 (1973)) (holding that “one is not to be punished for nonprovocatively voicing his
objection to what he obviously felt was a highly questionable detention by a police officer.”).
Mr. Slatton believed he was complying with Hopkins’ order to leave the property and that
he was not committing a crime. [Doc. 94, ¶¶ 27, 28, 86, 87]. As such, Mr. Slatton lawfully refused
to produce his identification when Hopkins demanded it. Romero v. Story, 672 F.3d 880, 888
(10th Cir. 2012) (“A citizen has the constitutional right to walk away from a law enforcement
officer who lacks probable cause or reasonable suspicion to detain or seize him or her.”) (citing
Kentucky v. King, 563 U.S. 452, 469-70 (2011)). Furthermore, Mr. Slatton’s flight in self-defense
was not sufficient to constitute probable cause or reasonable suspicion for obstruction. Critically,
Mr. Slatton fled after Hopkins pepper sprayed him. [Id., ¶ 39]. The Colorado Supreme Court has
acknowledged the affirmative defense of self-defense against the crime of obstruction. See People
v. Fuller, 781 P.2d 647, 650 (Colo. 1989) (citing C.R.S. § 18-1-704(1) which “permits a person to
defend himself when he reasonably believes that unreasonable or excessive force . . . is being
used by law enforcement officers or that its use is imminent.”). After being hit with a baton and
pepper sprayed by Hopkins, Mr. Slatton reasonably believed that Hopkins’ continued use of
excessive force was imminent, so he fled in self-defense. [Id., ¶ 34-37, 39]. When an officer’s
excessive force causes a subject to flee in self-defense, the subject’s flight is not sufficient to
constitute probable cause or reasonable suspicion for obstruction. See Henson v. United States, 55
A.3d 859, 869 (D.C. 2012) (noting circumstances where an individual fleeing from police would
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not be sufficient to constitute reasonable suspicion or probable cause, such as when an individual
flees from an officer who is using excessive force).
Lastly, Hopkins caused Mr. Slatton to be seized by knowingly or recklessly furnishing
false information to another officer that was clearly contradicted by the facts of the incident, such
as his statement that “after he struck Mr. Slatton with the baton, Mr. Slatton reacted by taking ‘an
aggressive stance.’” [Doc. 94 ¶ 46]. Barnes also made no attempt to correct the information
Hopkins provided to the officer to prevent Mr. Slatton from being unlawfully seized. [Id., ¶ 47].
Viewed in the light most favorably to Plaintiff, these allegations sufficiently depict Hopkins and
Barnes’ lack of probable cause or reasonable suspicion to seize Plaintiff.
iii. Mr. Slatton Sufficiently Alleged Defendant Barnes’ Failure to Intervene in
Violation of Mr. Slatton’s Fourth Amendment rights.
To allege a failure to intervene in a § 1983 action, a plaintiff must show that an officer
“observed or had reason to know of a constitutional violation and ha[d] a realistic opportunity to
intervene.” Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015). It is “not necessary that a police
officer actually participate in the use of excessive force in order to be held liable under section
1983. Rather, an officer who is present at the scene and who fails to take reasonable steps to
protect the victim of another officer’s use of excessive force, can be held liable for his
nonfeasance.” Walton v. Gomez, 745 F.3d 405 (10th Cir. 2014).
Plaintiff incorporates his previous arguments that there was indeed a seizure under the
Fourth Amendment. Plaintiff’s FAC clearly alleged that Barnes was with Hopkins during the
entirety of Hopkins’ encounter with Mr. Slatton and witnessed their conversation and Hopkins’
use of force. [Id., ¶¶ 21, 23, 25]. Despite the lack of probable cause or reasonable suspicion to
believe that Mr. Slatton had committed or was about to commit a crime, Barnes made no attempt
to stop Hopkins from unlawfully and unreasonably seizing Mr. Slatton. [Id., ¶¶ 30, 47, 86-89, 91-
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93]. Barnes also made no attempt to correct the information Hopkins provided to the other FCPS
officer in order to prevent Mr. Slatton from being unlawfully seized. [Id., ¶ 47]. See Fogarty, 523
F.3d at 1164 (Plaintiff’s failure to intervene claim survived motion to dismiss because plaintiff
alleged that defendant stood by as another officer used force against plaintiff and that defendants
used or permitted physical force in the course of the arrest). When viewed in the light most
favorably to Plaintiff, Barnes’ motion to dismiss based on the failure to intervene must be denied.
iv. Mr. Slatton’s Right to Be Free From Unreasonable Seizures Was Clearly
Established.
In the qualified immunity analysis, a plaintiff must show that “(1) the defendant violated a
constitutional right, and (2) the constitutional right was clearly established.” Martinez v. Beggs,
563 F.3d 1082, 1088 (10th Cir. 2009). A right is clearly established when “the contours of [a]
right [are] sufficiently clear that every reasonable official would have understood that what he is
doing violates that right.” Harte v. Bd. Of Comm’rs, 864 F.3d 1154, 1173 (10th Cir. 2017) (citing
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (1987)) (internal quotations omitted). There need not be a
case on-point or even cases that are “fundamentally similar.” Hope v. Pelzer, 536 U.S. 730, 741
(2002). The inquiry is whether officers had “fair warning that their alleged treatment [of plaintiff]
was unconstitutional.” Id. The Supreme Court has warned that “officials can still be on notice that
their conduct violates established law even in novel factual circumstances.” A.M. v. Holmes, 830
F.3d 1123, 1135 (10th Cir. 2016).
Where there is a claim of unlawful seizure, the analysis is straightforward, “for ‘[t]he law
was and is unambiguous: a government official must have probable cause to arrest an
individual.’” Fogarty v. Gallegos, 523 F.3d 1147, 1164 (10th Cir. 2008). In other words, it was
clearly established that an individual cannot be detained against his will when officers lack
probable cause or reasonable suspicion that they committed or are going to commit a crime.
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Romero, 672 F.3d at 888 (10th Cir. 2012). The Supreme Court has also consistently held that “a
refusal to cooperate, without more, does not furnish the minimal level of objective justification
needed for a detention or seizure." Florida v. Bostick, 501 U.S. 429, 437 (1991). It was also
clearly established that an officer cannot arrest an individual for failing to identify himself when
they lack reasonable suspicion. Brown v. Texas, 443 U.S. 47, 52-53 (1979). Furthermore, it was
clearly established that Mr. Slatton was within his rights to question why he was being detained.
See Florida, 501 U.S. at 437 (finding that any "refusal to cooperate, without more, does not
furnish the minimal level of objective justification needed for a detention or seizure”). Lastly, it
was clearly established that in creating a warrantless arrest affidavit, there must be “a truthful
showing of facts to support probable cause.” Harte v. Bd. Of Comm’rs, 864 F.3d 1154, 1162 (10th
Cir. 2017). An affiant who knowingly or recklessly submits “deliberate falsehood(s) or reckless
disregard for the truth,” or “omits information from an affidavit that would have negated probable
cause,” violates an individual’s right to be free of unreasonable seizures. Id. Accordingly,
Hopkins and Barnes were on notice that their conduct would violate the Fourth Amendment right
to be free from unreasonable seizures and are therefore not entitled to qualified immunity.
V. Issue Preclusion Does Not Bar Litigation of Mr. Slatton’s Unlawful Seizure
Claim.
In Colorado, an issue is barred from re-litigation when:
(1) The issue precluded is identical to an issue actually litigated and necessarily
adjudicated in the prior proceeding; (2) the party against whom estoppel was sought
was a party to or was in privity with a party to the prior proceeding; (3) there was a
final judgment on the merits in the prior proceeding; and (4) the party against whom
the doctrine is asserted had a full and fair opportunity to litigate the issues in the
prior proceeding.
McNichols v. Elk Dance Colo., LLC, 139 P.3d 660 (Colo. 2006).
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Hopkins’ claim of issue preclusion fails to meet prongs three and four. The decision of the
county court at the conclusion of Mr. Slatton’s suppression hearing was not a final judgment on the
merits because it was unappealable at that time. While the prosecution is entitled to an interlocutory
appeal after the court grants a motion to suppress evidence, the defendant is not. See Colo. Crim. P.
37.1; see also Neuhaus v. People, 289 P.3d 19 (Colo. 2012). Instead, the defendant must proceed to
trial, and, if found guilty, appeal the denial of the suppression along with other issues in the direct
appeal. Plaintiff never had an opportunity to do so because the case was dismissed. Therefore, there
was no “opportunity for review.” See Rantz v. Kaufman, 109 P.3d 132, 141 (Colo. 2005). The Tenth
Circuit has also held that "[a] judgment that has been vacated, reversed, or set aside on appeal is
thereby deprived of all conclusive effect, both as res judicata and as collateral estoppel," and the
"same is true . . . of a judgment vacated by a trial court." United States v. Lacey, 982 F.2d 410, 412
(10th Cir. 1992). The outcome of Plaintiff’s suppression hearing does not constitute a final
judgment on the merits and his wrongful seizure claim is not barred by issue preclusion.
Additionally, Mr. Slatton did not have a full and fair opportunity to litigate the issue of
probable cause in his suppression hearing. In analyzing this factor, the court considers: “[1] whether
the remedies and procedures in the first proceeding are substantially different from the proceeding
in which collateral estoppel is asserted, [2] whether the party in privity in the first proceeding has
sufficient incentive to vigorously assert or defend the position of the party against which collateral
estoppel is asserted, and [3] the extent to which the issues are identical.” McNichols, 139 P.3d at
669. Mr. Slatton’s suppression hearing in county court is substantially different from a full trial
before the Colorado District Court. The Colorado District Court has held that the comparative
length of procedures is significant in determining similarity. Murphy-Sims v. Owners Ins. Co., 2017
U.S. Dist. LEXIS 106958, at *17 (D. Colo. March 17, 2017) (finding that because the previous
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arbitration hearing only lasted one day, it was substantially different from the summary judgment
motion). Mr. Slatton’s probable cause issue was raised among others in a motions hearing that took
less than an hour, in state county court rather than federal court. Additionally, Mr. Slatton’s civil
complaint alleging Fourth and Fourteenth Amendment claims is far from identical to his
suppression hearing challenging probable cause for his charges. See Kadingo v. Johnson, 304 F.
Supp. 3d 1003, 1016 (D. Colo. 2017) (finding that despite some overlap, because Plaintiff’s claims
were much broader in her second case which alleged violations of federal law, the first case which
determined whether the administrative law judge properly adjudicated the case under applicable
regulations did not bar litigation of her claims). For these reasons, Plaintiff’s wrongful seizure claim
is not barred by issue preclusion.
II. Hopkins, Hutto, and Fort Collins Violated Mr. Slatton’s Fourth Amendment Right
to be Free of Unreasonable Seizures By Use of Excessive Force.
To recover for an excessive force claim, a plaintiff must show “(1) that the officers used
greater force than would have been reasonably necessary to effect a lawful seizure, and (2) some
actual injury caused by the unreasonable seizure that is not de minimis, be it physical or
emotional.” Cortez v. McCauley, 478 F.3d 1108 n. 25 (10th Cir. 2007). Assessing the
reasonableness of police use of force “must be judged from the perspective of a reasonable officer
on the scene, rather than with the 2020 vision of hindsight.” Id. at 396. The relevant inquiry is
whether “the officers’ actions are objectively reasonable in light of the facts and circumstances
confronting them.” Id. at 397. The totality of the circumstances must be taken into account, and
the Supreme Court has delineated three, non-exclusive factors relevant to the inquiry: “[1] the
severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of
the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest
by flight.” Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009).
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A. Plaintiff Sufficiently Plead a Fourth Amendment Excessive Force Claim
Against Hopkins, Hutto, and Fort Collins.
Under the circumstances, Hopkins used excessive force when he struck Plaintiff with his
baton and pepper sprayed him in the face. Pepper spray has a “variety of incapacitating and
painful effects” and therefore “constitutes a significant degree of force” which “should not be
used lightly or gratuitously against an arrestee who is complying with police commands or
otherwise poses no immediate threat to the arresting officer.” Tracy v. Freshwater, 623 F.3d 90,
98 (2d Cir. 2010). It was clearly established that “[t]he use of disproportionate force to arrest an
individual who has not committed a serious crime and who poses no threat to herself or others
constitutes excessive force.” Davis v. Clifford, 825 F.3d 1131, 1137 (10th Cir. 2016).
Defendants do not challenge the first two factors under Graham, so Plaintiff does not
address them here. Nonetheless, it bears emphasizing that when Hopkins used force, Plaintiff was
neither committing a serious crime, nor being violent or threatening. [Doc. 94 ¶¶ 27, 30, 34].
Thus, the first two factors weigh strongly in Mr. Slatton’s favor.4
The third Graham factor – actively resisting arrest or attempting to flee – also does not
justify the force used by Hopkins. When Hopkins struck Mr. Slatton with a baton, Mr. Slatton
was neither fleeing nor resisting arrest—rather, he had been asserting his legal right to walk away
from an officer’s unlawful order. [Id., ¶¶ 27, 28, 31]. Considering the purported crime for which
he was being stopped and the complete absence of danger he posed, Hopkins’ baton strike in
4 Even assuming, arguendo, that Defendants had probable cause for Plaintiff’s trespass, third-
degree criminal trespass is a class 1 petty offense, and obstruction is a class two misdemeanor.
C.R.S. §§ 18-4-504(2) and 18-8-104(1)(a); see Casey v. City of Fed. Heights, 509 F.3d 1278,
1281 (10th Cir. 2007) (finding that a Class One misdemeanor, more severe than a Class Two, was
not a severe crime). These “minor offense[s]—at most—support the use of minimal force.” Davis
v. Clifford, 825 F.3d 1131 (10th Cir. 2016). Additionally, Mr. Slatton posed no immediate threat
to the safety of the officers or others. [Doc. 94 ¶ 34]. Defendants also concede as much.
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response to Mr. Slatton’s assertion of his right to walk away was clearly unreasonable. See Morris
v. Noe, 672 F.3d 1185, 1198 (10th Cir. 2012) (where only one Graham factor marginally
supported using force and the other two weighed heavily against it, a reasonable officer would
have known that pushing a nonviolent and compliant plaintiff into bushes during the course of his
arrest was not justified). After hitting Mr. Slatton completely unprovoked, Hopkins then pepper
sprayed him in the face without warning. [Doc. 94 ¶ 37]. Using a baton and pepper spray on Mr.
Slatton – a nonviolent and nonthreatening individual who possibly committed a minor offense –
was highly unreasonable and excessive under the circumstances. See Casey v. City of Federal
Heights, 509 F.3d 1278 (10th Cir. 2007) (finding excessive force where the officer tackled and
tased plaintiff, a nonviolent misdemeanant who was neither dangerous nor fleeing). Defendants’
motions to dismiss Plaintiff’s Fourth Amendment excessive force claim must be denied.
B. Fort Collins Has a Custom, Policy, and Practice of Using Excessive Force in
Violation of the Fourth and Fourteenth Amendments.
Municipalities are considered “persons” subject to suit under 42 U.S.C. § 1983 for civil
rights violations. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A municipality is
liable for constitutional torts if the alleged unconstitutional acts implicate a policy, ordinance, or
custom of the local government. Id. at 690-94; Garcia v. Salt Lake Cnty., 768 F.2d 303, 308 n.4
(10th Cir. 1985). An entity defendant is responsible under § 1983 when the execution of a policy
or custom actually caused an injury of constitutional dimensions. Monell, 436 U.S. at 694; D.T. v.
Indep. Sch. Dist., 894 F.2d 1176, 1187 (10th Cir. 1990). To prevail on his claims against Hutto
and Fort Collins, Plaintiff must establish “(1) that a municipal employee committed a
constitutional violation, and (2) that a municipal policy or custom was the moving force behind
the constitutional deprivation.” See Myers v. Okla. Cnty. Bd. of Cnty. Commr’s, 151 F.3d 1313,
1316 (10th Cir. 1998). A policy or custom can be established in many ways, including the
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existence of “an informal custom amounting to a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; . . . or [] the failure to adequately train or
supervise employees.” Bryson v. Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (citation and
quotations omitted). For claims of municipal liability, courts have rejected a heightened pleading
standard that goes beyond the “short and plain” statement normally required pursuant to Fed. R.
Civ. P. 8(a). As Judge Ebel explained in Walker v. Zepeda:
The reasons for not requiring heightened fact pleading in a § 1983 municipal liability
complaint remain even in the wake of Twombly and Iqbal: a plaintiff, as an outsider
to municipal government, is not expected to have information about a city’s official
policies, practices, or training programs at the pleading stage.
Walker v. Zepeda, 2012 U.S. Dist. LEXIS 74386, at *14 (D. Colo. May 29, 2012). Rather, a well-
pleaded claim of municipal liability is one that simply “provide[s] fair notice to the defendant,
[which] requires more than generically restating the elements of municipal liability.” Taylor v.
RED Dev., LLC, 2011 U.S. Dist. LEXIS 97985, at *9 (D. Kan. Aug. 31, 2011). Thus, a complaint
sufficiently alleges municipal liability where “it contain[s] not only ‘a boilerplate recitation of the
grounds for municipal liability,’” but also makes “some additional allegation to put the
municipality on fair notice of the grounds for which it [is] being sued.” Walker, 2012 U.S. Dist.
LEXIS 74386, at *14 (quoting Taylor, 2011 U.S. Dist. LEXIS 97985, at *4) (emphasis in original).
“To require more could foreclose legitimate § 1983 claims that, after appropriate discovery, turn
out to have evidentiary support.” Id. at *15-16 (citing Wilson v. City of Chicago, 2009 U.S. Dist.
LEXIS 93912, at *3 (N.D. Ill. Oct. 7, 2009) (“[A] plaintiff should be given the opportunity to
develop an evidentiary record to determine whether he can provide support for his claims.”)).
C. Hutto and Fort Collins Have Illegal Customs and Practices of Excessive Force,
Including Inadequate Training and Supervision of its Law Enforcement
Officers.
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As an initial matter, Plaintiff has sufficiently alleged that Hopkins and Barnes violated
Plaintiff’s constitutional rights. See Myers, 151 F.3d at 1316. The allegations in Plaintiff’s FAC
also illustrate Fort Collins’ widespread custom and practice of using excessive force, and their
failure to adequately train or supervise employees.
Hutto and Fort Collins’ assertion that Plaintiff has not provided specific allegations
entirely ignores paragraphs 51-76 of the FAC. [Doc. 94]. The FAC explains that Hutto and Fort
Collins maintained a custom and practice of condoning the use of excessive force by FCPS
officers. [Id., ¶¶ 52, 61, 63-68]. It further highlights six other cases involving the use of excessive
force by Fort Collins police officers, with one including an egregious use of force by Defendant
Hopkins himself. [Id. ¶¶ 53-60]. Additionally, the sergeant who reviewed Hopkins’ conduct
toward Mr. Slatton concluded that his use of force was within the law and FCPS’ policy,
explicitly demonstrating that the excessive force used by Hopkins was consistent with FCPS’
policies. [Id. ¶ 66]. These allegations are more than sufficient to put Fort Collins on notice of the
basis of the municipal liability claim. Furthermore, these facts are sufficient to allege that there
was a custom and practice “so permanent and well settled as to constitute a custom or usage with
the force of law. See Bryson, 627 F.3d at 788. The pleadings aptly permit an inference that there
is a widespread practice, policy, or custom of deliberate indifference.
Plaintiff’s excessive force claims against Defendant Hutto are also properly alleged under
the failure to train and supervise theory of Monell liability. Plaintiff’s FAC thoroughly describes
Hutto’s responsibility in overseeing, training, and supervising FCPS Officers, setting FCPS
policy, and ensuring all FCPS officers comply with the law. [Doc. 94 ¶ 51]. In this role, Hutto
ratified and condoned the use of excessive force by FCPS officers and it became customary
among officers to use excessive force because Hutto and Fort Collins “communicated to FCPS
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officers that such force was authorized and, indeed, expected.” [Id., ¶¶ 52, 62]. He further
“created and tolerated a custom of deliberate indifference and continuously failed … to
adequately train and supervise FCPS officers in these areas.” [Id., ¶¶ 63, 64]. Plaintiff’s FAC
clearly alleged that Hutto “set in motion a series of events that [he and Fort Collins] knew or
reasonably should have known would cause others to deprive the plaintiff of [his] constitutional
rights.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 768 (10th Cir. 2013).
This includes Hutto’s engenderment of a “policy of inaction in the face of knowledge that FCPS
officers were routinely violating specific constitutional rights.” [Doc. 94 ¶ 64].
Nonetheless, even a single incident involving excessive force may evidence a failure to
train where the legal consequences of failing to train are “patently obvious.” Connick v.
Thompson, 563 U.S. 51, 64 (2011); see also Allen v. Muskogee, 119 F.3d 837, 842 (10th Cir.
1997); Estate of Walter v. Corr. Healthcare Cos., 232 F. Supp. 3d 1157, 1165 (D. Colo. 2017)
(finding allegations of single incident sufficient to survive motion to dismiss because “jails and
prisons routinely house mentally ill inmates” and failure to train on appropriate treatment was
therefore likely to result in constitutional violations). When all plausible inferences are drawn in
Plaintiff’s favor, the need to train FCPS officers on reasonable use of force was obvious.
Finally, the Court should be leery of dismissing this claim against the City so early in the
case; dismissal at this early stage unduly risks “foreclos[ing] legitimate § 1983 claims that, after
appropriate discovery, turn out to have evidentiary support.” Walker, 2012 U.S. Dist. LEXIS
74386, at *15-16 (citing Wilson, 2009 U.S. Dist. LEXIS 93912, at *3). Because Plaintiff has
sufficiently alleged the underlying constitutional violations by Hopkins and Barnes, as well as
municipal custom or practice that was the moving force behind the constitutional deprivations,
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Hutto is not entitled to qualified immunity, and the Court should deny Defendants’ Motion to
Dismiss with respect to the claims against Hutto and Fort Collins.
III. Hopkins, Hutto, and Fort Collins Violated Mr. Slatton’s Fourteenth Amendment
Substantive Due Process Rights.
Mr. Slatton’s excessive force claim may, if not covered under the Fourth Amendment, be
analyzed under the Fourteenth Amendment. See Clark v. Edmunds, 513 F.3d 1219 (10th Cir.
2008); Ellis v. City of Lindsay, No. 98-6153, 1998 U.S. App. LEXIS 31517, at *3 (10th Cir. Dec.
17, 1998); see generally County of Sacramento v. Lewis, 523 U.S. 833, 842-43 (1998). For a
Fourteenth Amendment substantive due process claim, the court considers: “(1) the relationship
between the amount of force used and the need presented; (2) the extent of the injury inflicted; and
(3) the motives of the . . . officer.” Latta v. Keryte, 118 F.3d 693, 702 (10th Cir. 1997). Use of
force “inspired by malice or by unwise, excessive zeal amounting to an abuse of official power that
shocks the conscience” is actionable under the Fourteenth Amendment. Id. The Supreme Court has
adopted a “less rigid and more fluid” review of substantive due process claims. Id. “Rules of due
process are not … subject to mechanical application in unfamiliar territory. Deliberate indifference
that shocks in one environment may not be so patently egregious in another.” Lewis, 523 U.S. at
850. In analyzing conscience-shocking behavior, “[t]he intent-to-harm standard most clearly
applies in rapidly evolving, fluid, and dangerous situations which preclude the luxury of calm and
reflective deliberation." Green v. Post, 574 F.3d 1294, 1306 (10th Cir. 2009) (citing to Perez v.
Unified Gov’t of Wyandotte Cty./Kansas City, 432 F.3d 1163 (10th Cir. 2005) where firefighter
responding to an emergency collided with a car in a busy intersection as the “paradigmatic
example” of a decision made in haste where the intent to harm standard properly applied).
The Tenth Circuit analyzed a substantive due process claim in Ellis, No. 98-6153, 1998 U.S.
App. LEXIS 31517. There, a faction of a church indicated to the plaintiff, who was the pastor of the
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church, that he was relieved of his duties as pastor. Id. at *3. The plaintiff and dozens of supporting
church members gathered outside the church, where the opposing faction was also present. Id.
Police were called, but when they arrived, there was no actual disturbance. The Tenth Circuit found
that despite the fact that the plaintiff had not committed a crime and was fully compliant and
nonviolent, his claims that the officer pushed him with his forearm and lightly bruised the plaintiff’s
ribs were insufficient to shock the conscience. Id. at 17-18. The court found that the force used was
not substantial, nor was there evidence of malice, as the officer’s conduct was reasonable under the
circumstances. Id.
Jarrett v. Schubert, Civ. Action No. 97-2628-GTV, 1998 U.S. Dist. LEXIS 12056, at *2 (D.
Kan. July 31, 1998) is highly instructive. There, the plaintiff went to a police station to check on her
daughter who was recently arrested. Id. at 3. Upon arrival, the defendant officer exited the same
door as the plaintiff, and according to plaintiff, “’rammed’ his elbow and firearm into her chest and
‘slammed and pinned her against the wall of the building, causing her to sustain bruising on her
chest.” Id. at 4. When asked why he struck her, the defendant smirked and explained that he only
bumped into her. Id. The plaintiff survived a motion for summary judgment on her Fourteenth
Amendment claim because the evidence suggested that the defendant “assaulted her without
provocation” and that her bruising was more than de minimus. Id. at 20. The defendant was also not
“confronted with a ‘tense, uncertain, and rapidly evolving’ environment at the time of the assault,
such that his conduct might be justified by emergency circumstances.” Id. Lastly, the court denied
qualified immunity because “it was settled that ‘force inspired by malice or by unwise, excessive
zeal amount to an abuse of official power that shocks the conscience . . . may be redressed under
[the Fourteenth Amendment].” Id. at 21 (citing to Latta, 118 F.3d at 702).
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Defendants dispute only the third prong of the Latta analysis, however, Plaintiff will
discuss each prong in turn because the Tenth Circuit generally examines an officer’s motive in
combination with the other two Latta factors. Walton v. Gomez, 745 F.3d 405, 426 (10th Cir.
2014). Thus, the court does not discard a substantive due process excessive force claim “based
entirely on the ‘motive’ factor when disproportionate force and serious injury are present.” Id.
Hopkins violated clearly established law when he pepper sprayed Mr. Slatton and hit him
with his baton under the circumstances. [Doc. 94 ¶ 137-38]. It was “clearly established law that
the use of disproportionate force to arrest an individual who has not committed a serious crime
and who poses no threat to herself or others constitutes excessive force.” Davis, 825 F.3d at 1137;
see also Fogarty, 523 F.3d at 1161. Moreover, using pepper spray and a baton on a suspect
detained for minor infractions who clearly poses no threat to the safety of the officers or others
also violates clearly established law. Young v. Cty. Of L.A., 655 F.3d 1156, 1161 (9th Cir. 2011)
(“[B]oth [pepper spray and baton use] are regarded as ‘intermediate force’ that, while less severe
than deadly force, nonetheless present a significant intrusion upon an individual's liberty
interests.”). Considering that Mr. Slatton had, at the very worst, committed a minor infraction and
was nonviolent and nonthreatening, Hopkins’ pepper spray and baton use were highly
unreasonable and excessive under the circumstances. [Doc. 94 ¶¶ 27, 34, 123-128].
Second, Mr. Slatton sustained serious injuries because of Hopkins’ use of force. “Both
pepper spray and baton blows are forms of force capable of inflicting significant pain and causing
serious injury.” Young, 655 F.3d at 1161. Pepper spray “is designed to cause intense pain and
inflicts a burning sensation that causes mucus to come out of the nose, an involuntary closing of
the eyes, a gagging reflex, and temporary paralysis of the larynx, as well as disorientation,
anxiety, and panic.” Id. at 1162. Unlike the Ellis plaintiff whose injuries were de minimus, Mr.
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Slatton was in intense pain from the pepper spray which caused difficulty breathing, irritation,
and discomfort for days. [Doc 94 ¶¶ 77, 78]. His eyes were irritated and remained red for roughly
a year, causing him to feel extremely self-conscious about his appearance. [Id., ¶ 78]. Mr. Slatton
suffered significant emotional distress as well, “leading him to lose weight, have problems sleeping
and issues in his relationships …, and ultimately stop attending his college classes.” [Id., ¶ 80]. The
FAC fulsomely alleges the serious injuries Plaintiff suffered because of Hopkins’ use of force.
Lastly, Hopkins was motivated by malice, excessive zeal, or deliberate indifference to Mr.
Slatton, amounting to an abuse of power that shocks the conscience. [Id., ¶¶ 82, 129-131, 140].
Unlike the firefighter in Perez, Hopkins was not in an emergent, tense, or dangerous situation at the
time he used force, so the intent-to-harm standard should not be applied. “When actual deliberation
is practical, we will employ a deliberate indifference standard.” Green, 574 F.3d at 1301 (internal
quotations omitted). Plaintiff’s FAC demonstrates an inference of Hopkins’ excessive zeal or
deliberate indifference which motivated his behavior: primarily, his unprovoked baton strike to
Plaintiff’s leg as Plaintiff walked away onto the sidewalk, and his deliberate decision to pepper
spray Plaintiff without warning. While perhaps not egregious in other more dangerous and rapidly
evolving circumstances, here, Hopkins had time to deliberate, and his attack of Mr. Slatton under
the circumstances was arbitrary and conscience-shocking. [Id., ¶¶ 129-31]. The utter
unreasonableness of his actions strongly imply that he used force in retaliation against Plaintiff for
asserting his right to walk away or to cause harm unrelated to seizing him. Id. See Smith v.
Delamaid, 842 F. Supp. 453, 460 (D. Kan. 1994) (finding that even without evidence of any
particular animus toward the plaintiff, many of the defendants’ motivations for the alleged facts
could not be explained, and that most of the force came after the plaintiff caused property damage,
“creating the inference of a motive of retribution,” and denying defendants’ motion for summary
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judgment). Taken in the light most favorable to Plaintiff, Hopkins’ behavior was, under the
circumstances, sufficient to shock the judicial conscience. Because it was settled that “force
inspired by malice or … excessive zeal amount to an abuse of official power that shocks the
conscience”, Hopkins and Hutto are not entitled to qualified immunity, and all of the Defendants’
motions to dismiss Plaintiff’s substantive due process claim must be denied in its entirety.
CONCLUSION
For the reasons above, the Defendants’ Motions to Dismiss must be denied in their
entirety.
DATED this 2nd day of March 2020.
KILLMER, LANE & NEWMAN, LLP
s/ Helen Oh___
Helen Oh
David Lane
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
Phone: (303) 571-1000
hoh@kln-law.com
dlane@kln-law.com
Counsel for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on March 3, 2020, I filed the foregoing via the CM/ECF system, which
will send notice to the following:
Marni Nathan Kloster
Nicholas C. Poppe
Nathan Dumm & Mayer, PC
7900 E. Union Ave., Ste 600
Denver, CO 80237-2776
303-691-3737
MKloster@ndm-law.com
NPoppe@ndm-law.com
Attorneys for Defendant Todd Hopkins
Mark Ratner
Hall & Evans, LLC
1001 17th Street, Ste 300
Denver, CO 80202
303-628-3300
ratnerm@hallevans.com
Attorney for Defendants Barnes, Hutto, and the City of Fort Collins
s/ Helen Oh
KILLMER, LANE & NEWMAN, LLP
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