HomeMy WebLinkAbout2019-cv-901 - Surat v. City of Fort Collins, et al. - 118 - DEFENDANTS' MOTION FOR SUMMARY JUDGMENTIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-00901-WJM-NRN
MICHAELLA LYNN SURAT,
Plaintiff,
v.
RANDALL KLAMSER in his individual capacity, and
CITY OF FORT COLLINS, a municipality,
Defendants.
MOTION FOR SUMMARY JUDGMENT
PURSUANT TO FED. R. CIV. P. 56
Defendants RANDALL KLAMSER, in his individual capacity, and the CITY OF FORT
COLLINS, a municipality, by and through its attorneys, Mark S. Ratner, Hall & Evans, L.L.C.,
and John R. Duval, Fort Collins City Attorney’s Office, hereby submit the following Motion for
Summary Judgment pursuant to Fed. R. Civ. P. 56, as follows:
I. INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff filed her initial Complaint and Jury Demand (the “Initial Complaint”) in this
matter on March 26, 2019, naming as Defendants the City of Fort Collins (the “City”) and City of
Fort Collins Police Officer Randall Klamser, in his individual capacity, in general alleging a
violation of her Fourth Amendment rights arising out of her arrest by Officer Klamser [ECF 1].
As set forth in more detail below, Plaintiff alleges an excessive force claim against Officer Klamser
for using a takedown maneuver during her arrest, and a claim against the City for unconstitutional
custom, practices and/or policies which purportedly were the proximate cause of the use of
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excessive force. On June 7, 2019, Defendants filed a Motion to Dismiss (the “2019 Motion to
Dismiss”) arguing Plaintiff’s excessive force claim was barred by Heck v. Humphrey, 512 U.S.
477 (1994), and in addition arguing her claim against the City was barred due to the lack of an
underlying constitutional violation and a failure to plead a municipal custom or policy that caused
any alleged violation [ECF 23].
On February 24, 2020, following briefing on the 2019 Motion to Dismiss [ECF 28, 34],
this Court issued its Order granting in part and denying in part the 2019 Motion to Dismiss, and
denying Defendants’ Motion to Supplement [ECF 84]. With respect to the excessive force claim,
the Court held any such claim arising prior to Officer Klamser’s takedown of Plaintiff was barred
by Heck and, as a result, Plaintiff’s claim is limited to the question of whether Officer Klamser
used greater force than reasonably necessary to overcome Plaintiff’s resistance during the
takedown [ECF 84 at 10-13 (“In this light, the Court deems Surat to confess Defendants’ Heck
argument as to everything before the takedown, and Defendants’ motion will be granted with
prejudice as to any claim of excessive force based on Klamser’s alleged pre-takedown actions”)].
The Court, however, cautioned Plaintiff that she faces a “formidable burden” under Heck, which
burden would be even more formidable if Officer Klamser raised the defense of qualified immunity
(which was not raised in the 2019 Motion to Dismiss). [Id. at 14-15]. With respect to the claim
against the City, the Court granted the 2019 Motion to Dismiss on the basis Plaintiff’s municipal
liability allegations were “not tailored to the burden she faces in this case,” in light of the
limitations created by Heck [ECF 84 at 16-17]. Although the Court expressed skepticism Plaintiff
could amend to state a viable claim, it nevertheless dismissed the claim without prejudice [Id. at
17].
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On March 12, 2020, Plaintiff sought leave to file a First Amended Complaint, which sought
to add allegations supporting municipal liability against the City [ECF 96]. The Defendants
ultimately did not object to the motion to amend, but instead reserved their right to file a second
motion to dismiss addressing the municipal liability claim and asserting an argument of qualified
immunity for the excessive force claim against Officer Klamser [ECF 97]. On August 11, 2020,
the Court granted Plaintiff’s unopposed Motion for Leave [ECF 106]. Plaintiff filed her First
Amended Complaint on August 24, 2020 (the “First Amended Complaint”) [ECF 107]. On
September 14, 2020, the Defendants filed a Motion to Dismiss the First Amended Complaint (the
“2020 Motion to Dismiss”) pursuant to Fed. R. Civ. P. 12(b)(6) [ECF 108]. The 2020 Motion to
Dismiss, which is still pending before the Court, seeks dismissal of all claims against the City on
the basis Plaintiff still fails to properly identify any unconstitutional custom, practice, policy or
procedure, as well as dismissal of all claims against Officer Klamser on the basis he is entitled to
qualified immunity. Plaintiff’s response to the 2020 Motion to Dismiss is due by October 26, 2020
[ECF 117]. Given the timing of the applicable Case Management Order, Defendants filed this
Motion for Summary Judgment even though the 2020 Motion to Dismiss is still pending before
the Court. This Motion for Summary Judgment, however, is not intended to supersede any request
for relief set forth in the 2020 Motion to Dismiss. The arguments set forth in the 2020 Motion to
Dismiss are, therefore, incorporated herein.
Officer Klamser and the City now seek summary judgment in their favor on all claims set
forth in the First Amended Complaint [ECF 107]. Considering the Court’s prior ruling and the
limitations imposed by Heck, Plaintiff cannot prove that Officer Klamser used excessive force in
taking her down to the ground after being found guilty of obstructing a peace officer and resisting
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arrest. Furthermore, even if Plaintiff could demonstrate a constitutional violation, there is no
clearly established law demonstrating Officer Klamser’s actions were unconstitutional. Thus,
Plaintiff’s excessive force claim should be dismissed with prejudice as a matter of law.
In addition, Plaintiff cannot establish any unconstitutional custom, practice, policy, or
procedure of the City or any causal nexus that might support any such constitutional violation.
Any claim against the City should also be dismissed with prejudice as a matter of law.
II. MOVANT’S STATEMENT OF MATERIAL FACTS
1. On April 6, 2017, at approximately 11:12 p.m., City of Fort Collins police officers,
including Officer Klamser, were dispatched to a disturbance at a bar in downtown Fort Collins
[Fort Collins Police Services, Report No. 17-5701, Exhibit A, at 4].
2. The disturbance was at Bondi Beach Bar, in an area identified as “District 1” and
“Old Town” [Exhibit G, August 21, 2018 Criminal Trial Transcript, testimony of Officer Randall
Klamser, 30:7; 15-22 & 25; 31:1-2].
3. Officer Klamser and Fort Collins Officer Garrett Pastor responded to the call and
were informed by dispatch that one half of the disturbance was outside the bar and the other half
was inside. [Ex. A, at 4].
4. When Officers Klamser and Pastor arrived at Bondi Beach Bar, they contacted an
employee and were informed the male who had been removed from the bar, was standing outside
[Ex. G, at 33:3-6].
5. At a call such as the one for Bondi Beach Bar, Fort Collins police officers take
different roles identified as contact and cover [Ex. G, at 33:19-23].
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6. A contact officer’s primary responsibility is to conduct an interview and allow the
other officer to focus 100% of their attention on the surroundings [Ex. G, at 34:1-9].
7. A cover officer’s primary responsibility is to pay attention to the surroundings,
respond if something in the surroundings changes, and preserve the peace [Ex. G, at 34:4-6; 47:17-
18].
8. A cover officer allows the contact officer to focus on what he or she is doing [Ex.
G, at 7-9].
9. When Officers Klamser and Pastor arrived at Bondi Beach Bar, there was a crowd
consisting of 30-40 people waiting in line outside the establishment [Exhibit B, Officer Randall
Klamser’s body camera video, at 00:18 to 00:34 1 ; Ex. G, at 18-21; Exhibit I, Officer Garrett
Pastor’s body camera video, at 00:50 to 01:02].
10. Upon arrival at the bar, uniformed bar staff pointed out a male who was waiting
outside the bar. Officer Pastor contacted the male, who was identified as Mitchell Waltz. While
Officer Pastor was talking to Mr. Waltz, Plaintiff was yelling at him from inside the bar’s fenced
in patio [Ex. A, at 3; Ex. B, at 00:36 to 0048; Ex. I, at 01:01 to 01:07].
11. Officer Klamser spoke to witness Cory Esslinger, a uniformed bouncer at the bar
who was working security at the time of the disturbance. Mr. Esslinger started to tell Officer
Klamser what happened but they were interrupted when Plaintiff walked out of the bar and
physically bumped into both Mr. Esslinger and Officer Klamser. Officer Klamser said “excuse
me” and Plaintiff yelled back “excuse you” as she walked by [Ex. A, at 3-5; Ex. B, at 00:45-00:55;
1 Officer Klamser and Officer Pastor’s body-cam videos were conventionally submitted to the Court.
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Exhibit H, Fort Collins Police Services Internal Affairs Interview of Cory Esslinger, at 04:00 to
05:50; Ex. I, at 01:11 to 01:17]2.
12. Mr. Esslinger informed Officer Klamser that Mr. Waltz had been involved in a
disturbance with another bar patron and a bouncer who tried to confront it, and Officer Klamser
yelled to Officer Pastor that Mr. Waltz was not free to go [Ex. A at 3-5; Ex. B at 00:50-1:00].
13. Plaintiff walked towards Officer Pastor and grabbed Mr. Waltz by the arm, trying
to pull him away from Officer Pastor. [Ex. A at 3-5; Fort Collins Police Services, Report No. 17-
5701, Supp. No. 5, Exhibit C, at 3; Ex. B, at 00:50-1:00; Ex. I, at 01:17 to 01:20].
14. Officer Klamser had to break his contact with Mr. Esslinger [Ex. G, at 38:14-17;
Ex. I, at 01:17 to 01:20].
15. Officer Klamser walked towards Plaintiff to assist in severing her from Mr. Waltz
[Ex. B, at 00:50 to 1:00; Ex. G, at 45:4-7; Ex. I, at 01:20 to 01:25].
16. Michael Findlay was a witness to the incident between Officer Klamser and
Plaintiff [Exhibit D, Deposition Transcript of Michael Findlay 7:19-24]
17. Mr. Findlay observed Officer Klamser attempt to put himself between Plaintiff and
Officer Pastor and Mr. Waltz [Ex. D, at 12:14-16].
18. At the same time, the crowd outside Bondi Beach Bar was starting to react to what
was occurring, including an interaction by an individual who walked up to Officer Pastor and
asked, “What are you guys doing?” [Exhibit F, Deposition Transcript of Cory Bain Esslinger, at
29:24-25; 30:1-6; 14-18; 31:2-12; 32:1-4; Ex. I, at 01:29 to 01:33].
2 The Internal Affairs video interview of Mr. Esslinger, was also conventionally submitted to the Court.
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19. As Plaintiff tried to walk away with Mr. Waltz. Officer Pastor grabbed Mr. Waltz
by the arm and pulled him back, and Plaintiff continued walking until she realized Mr. Waltz was
not with her. [Ex. A, at 3-5; Ex. B, at 00:50 to 1:00; Ex. C, at 2; Ex. I, at 01:20 to 01:23].
20. Mr. Waltz walked a few feet away with Officer Pastor, and Plaintiff started to walk
back towards them. Officer Klamser told Plaintiff that Mr. Waltz was not free to go but that she
could keep walking. [Ex. A, at 3-4; Ex., B at 00:55 to 1:05; Ex. C, at 2; Ex. I, at 01:22 to 01:26].
21. Plaintiff said “no, I’m going to stay here” to Officer’s Klamser’s direction to keep
walking, and instead continued to “walk through” him, towards Officer Pastor and Mr. Waltz [Ex.
B, at 00:57 to 01:01; Ex. D, at 10:19-25; 11:1-13; 12:17-18; Ex. G, at 45:19-21; 46:4-5; Ex. I, at
01:24 to 01:27].
22. Officer Klamser used verbal commands, he put his left hand up to try and block
Ms. Surat from going where Officer Pastor was attempting to interview Mr. Waltz, told Ms. Surat
“no,” and also pointed away from where Officer Pastor was interviewing Mr. Waltz, none of which
worked to stop Plaintiff [Ex. A, at 4-5; Ex. B, at 00:55 to 1:05; Ex. D, at 12:18-21;15:6-11; Ex.
G, at 46:6-19; 48:6-8; Ex. I, at 01:27 to 01:37].
23. Plaintiff was being belligerent and abusive towards Officer Klamser [Ex. B, at
00:58 to 01:30; Ex. D, at 12:22-25; 13:1-21; Ex. I, at 01:37 to 01:55].
24. Plaintiff continued to try to walk through Officer Klamser, and she started slapping
and hitting him, and repeating “you don’t need to fucking touch me” [Ex. A, at 4-5; Ex. B, at 1:01-
1:10; Ex. D, at 14:5-6; Ex. G, at 47:21-25; 48:2-4; 48:14-16].
25. As Plaintiff continued to try and walk through Officer Klamser, she grabbed his
throat [Ex. G, at 48:10-12].
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26. Officer Klamser repeatedly told Plaintiff to put her hand on her head and she was
under arrest [Ex. B, at 01:09 to 01:17; Ex. I, at 01:34 to 01:52].
27. At the point Officer Klamser told Plaintiff she was under arrest, he could no longer
fulfill his duties as a cover officer to Officer Pastor, because 100% of his concentration was
directed at Plaintiff [Ex. G, at 50:11-12].
28. Officer Klamser attempted to grab Ms. Surat’ s left hand and place her in a control
hold. He told her to place her other hand on her head, and as he was placing her in a rear wrist
control hold, she was trying to spin around and break free. [Ex. A, at 4-5; Ex. B, at 01:00 to 01:17;
Ex. C, at 2; Ex. G, at 48:17-25].
29. Officer Klamser was unable to place Plaintiff in an escort hold and, therefore, he
attempted to transition to a wrist control hold, which was also ineffective because Plaintiff was
assaulting and hitting Officer Klamser and not being cooperative [Ex. G, at 49:3-13].
30. Officer Klamser again told Plaintiff to put her hand on her head and that she was
under arrest, but she said “no, explain to me why you are touching me” as she continued to spin
around and try to pry his hands off her arm. [Ex. A, at 4-5; Ex. B, at 01:10 to 01:20; Ex. C, at 2;
Ex. G, at 53:1-5; Ex. I, at 01:24 to 01:52].
31. As Plaintiff refused to listen to Officer Klamser, he told Plaintiff: “I don’t want to
throw you to the ground, please don’t do that, please don’t do that.” Plaintiff responded by trying
to pry his fingers off her arm again. She said she would put her hand behind her head but instead
continued to paw at his arms, saying “what the fuck did I do.” [Ex. A, at 4; Ex. B, at 01:15 to
01:30; Ex. G, at 50:3-5; 53:1-5; Ex. I, at 01:24 to 01:52].
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32. There was no affirmative or physical indication to Officer Klamser that Plaintiff
would cooperate, despite Officer Klamser’s repeated requests for compliance [Ex. G, at 50:20-24;
51:18-23; 52:16-22].
33. Given Plaintiff’s level of resistance and anger, and because Officer Klamser
expected Plaintiff to try and hit him again, he used a rowing arm takedown to take Plaintiff down
to the ground and place her under arrest. [Ex. A, at 4-5; Ex. B, at 1:25 to 1:30; Ex. C at 2;].
34. Officer Klamser determined the rowing arm take down was the only thing he had
left to use, because he did not want to use any impact weapons or tools [Ex. G, at 53:7-9].
35. The purpose of a rowing arm take down maneuver is to break the person’s tunnel
vision and concentration which was occupying whatever he or she was just doing and comply with
the commands being given [Ex. G, at 54:5-8].
36. Prior to executing the rowing arm takedown maneuver, Plaintiff either struck or
attempted to strike Officer Klamser multiple times [Ex. D, at 25:10-20].
37. After Plaintiff landed on the ground, she immediately started trying to twist and
spin to break free from Officer Pastor and Officer Klamser. [Ex. A, at 4; Ex. B, at 1:25-1:40; Ex.
C, at 2].
38. The officers were able to handcuff Plaintiff’s wrists and walk her away from the
scene as she continued to yell and scream, asking people to help her, saying “I was trying to get
my boyfriend are you fucking kidding me” and “I didn’t do anything wrong.” She then fell to the
ground and refused to get up unless Officer Klamser let her go, saying “report me, bitch,” and “I
can feel you shaking you little pussy, fuck you.” [Ex. A, at p.4; Ex. B, at 1:35-3:30; Ex. G, at 57:2-
11].
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39. Officer Klamser turned Plaintiff over to Officer Erin Mast who had arrived in a
patrol car. Officer Klamser asked Plaintiff if she needed medical attention and she responded,
“fuck you!” and continued to proclaim she did not do anything wrong. [Ex. A, at 4; Ex. B, at 3:30-
4:30].
40. Officer Klamser was approached by witness Michael Findlay, who said he had
witnessed the entire incident and wanted to provide a statement. He stated that Officer Klamser
was “in the right” and that he saw Plaintiff hit Officer Klamser three times before he took her
down. He stated that Officer Klamser was being very reasonable with Plaintiff even though she
was being so verbally abusive, and it looked like she was about to hit him a fourth time when he
took her to the ground. [Ex. A, at 4; Ex. B, at 4:40-6:35; Ex. D, at 17:4-17].
41. Officer Mast tried to pat Plaintiff down prior to placing her in the patrol car, and
Plaintiff cursed at her and tried to turn away from Officer Mast multiple times. Officer Mast told
Plaintiff to stop moving and face the vehicle, and Plaintiff continued to curse at her. Plaintiff had
bloodshot, watery eyes and smelled strongly of alcohol. [Fort Collins Police Services, Report No.
17-5701, Supp. No. 4, Exhibit E, at 2].
42. At the hospital, Plaintiff continued to be uncooperative with hospital staff and
officers. She told Officer Mast that she remembered saying “fuck you” to Officer Klamser multiple
times but she did not do anything else wrong. [Ex. E, at p.1].
43. Plaintiff was charged with Resisting Arrest and Obstruction of a Peace Officer and
tried on these charges by a jury over five days in August of 2018 in Larimer County Court. [ECF
1 at ¶37].
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44. At the conclusion of the trial, Plaintiff was found guilty of both charges, and the
convictions were affirmed on appeal. [See Order Affirming County Court Convictions, Larimer
County Court Case No. 2017M965, 10/29/2019, previously submitted at ECF 55-1].
45. During his encounter with Plaintiff, Officer Klamser constantly evaluates which
level of control he is going to need and what level of resistance is being offered in order to make
tactical decisions which will allow him to arrest the individual [Ex. G, at 52:6-13].
46. The goal of his interactions with an individual is to gain compliance, including
arrest, so he can do his job as a police officer [Ex. G, at 43:21;24-25;44:1-2].
III. ARGUMENT
A. Plaintiff’s Excessive Force Claim is Barred by Qualified Immunity
i. Qualified Immunity Factors
Officer Klamser is entitled to summary judgment in his favor on the basis of qualified
immunity. “Determining whether the force used to effect a particular seizure is objectively
reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citations and
internal quotations omitted). The Supreme Court “has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” Id. (citing Terry v. Ohio, 392 U.S. 1, 22-27 (1968)).
“Because the test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application, however, its proper application requires careful attention to
the facts and circumstances of each particular case, including the severity of the crime at issue,
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whether the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citing Tennessee v.
Garner, 471 U.S. 1, 8-9 (1985)).
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (citing Terry,
392 U.S. at 20-22.) “The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments – in circumstances that are tense,
uncertain, and rapidly evolving – about the amount of force that is necessary in a particular
situation.” Id. at 396-97; see also Phillips v. James, 422 F.3d 1075, 1080 (10th Cir. 2005)
(recognizing that officers have to make split-second judgments in uncertain and dangerous
circumstances). The question is an objective one: “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.” Graham, 490 U.S. at 397 (citing Scott v. United States, 436
U.S. 128, 137-39 (1978)).
Qualified immunity is immunity from suit, as well as a defense to liability. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). The doctrine permits the resolution of claims against
government officials before subjecting them “‘either to the costs of trial or to the burdens of broad-
reaching discovery’ in cases where the legal norms the officials are alleged to have violated were
not clearly established at the time.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18
(1982)). A “heavy” two-part burden applies when a defendant asserts qualified immunity. Mick v.
Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996). First, a court assesses whether the state actor’s
conduct violated a constitutional right, with contours sufficient for a reasonable state actor to
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understand his conduct was unlawful. Saucier v. Katz, 533 U.S. 194, 201-01 (2001). Second, even
if a violation occurred, a court assesses whether the law was clearly established such that the state
actor is not entitled to immunity. Id. at 207-09. The reviewing court may consider these prongs in
any order. Pearson v. Callahan, 555 U.S. 223, 226 (2009).
ii. No Constitutional Violation
In ruling on the 2019 Motion to Dismiss, this Court noted that “Heck nonetheless imposes
a formidable burden on Surat, even before taking the jury’s rejection of her self-defense argument
into account.” [ECF 84 at 14]. After describing the standard for an excessive force claim, the Court
noted:
In this light, it is highly significant that the jury convicted Surat of:
• ‘[u]sing or threatening to use physical force or violence against the peace
officer or another; or *** [u]sing any other means which creates a
substantial risk of causing bodily injury to the peace officer or another,’
Colo. Rev. Stat. § 18-8-103(1); and
• ‘using or threatening to use violence, force, physical interference, or an
obstacle’ to ‘knowingly obstruct[], impair[], or hinder[] 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,’ id. §18-8-104(1)(a).
To avoid implying the invalidity of these convictions, Surat must prove that
Klamser’s takedown was objectively unreasonable under all the circumstances
while taking as given that he was attempting to effect an arrest and, in the process,
the arrestee’s actions were subjecting him to, or threatening him with, physical
force or violence, or putting him at substantial risk of bodily injury. Cf. Martinez,
184 F.3d at 1127 (‘the [district] court [on remand] must instruct the jury that
Martinez’ state arrest was lawful per se’).
Moreover, if one accounts for the failure of the self-defense argument, Surat must
prove that Klamser’s takedown was objectively unreasonable while taking as given
all of the foregoing and the fact that Klamser had first attempted to subdue Surat
through lawful lesser force.
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[ECF 84 at pp.14-15 (emphasis in original)].
The evidentiary record established through discovery in this matter, makes Plaintiff’s
formidable burden insurmountable. Officer Klamser responded to a call for service at the Bondi
Beach Bar [MSUMF 1-4]3. Upon arrival, Officer Klamser and Officer Pastor had distinct tactical
positions as contact and cover officers [MSUMF 5-8]. Part of the division between tactical
positions is to allow officers to be cognizant of their surroundings [MSUMF 6-8]. Here,
surrounding the Bondi Beach Bar was a crowd of 30 to 40 people [MSUMF 9]. Officer Klamser
undertook his duties, and began speaking with the Bondi bouncer, Cory Esslinger, about Plaintiff’s
boyfriend Mitchell Waltz [MSUMF 10-11]. Plaintiff decided to interject herself into the evolving
investigation by leaving the bar, bumping into both Mr. Esslinger and Officer Klamser, and
attempting to lead her boyfriend away from the scene [MSUMF 11-13 & 19]. As a result, Officer
Klamser was forced to leave his interview with Mr. Esslinger in order to change his tactical
position, and focus solely on Ms. Surat [MSUMF 14-15]. Officer Klamser attempted to intervene
between Plaintiff and Mr. Waltz, so Officer Pastor could continue with his interview [MSUMF
15-17]. Plaintiff was clearly instructed that she could “keep on walking” [MSUMF 20], but instead
of complying, chose to ignore Officer Klamser’s clear directive and continue “walking through”
him, to where Officer Pastor and Mr. Waltz were standing [MSUMF 21]. Plaintiff was,
indisputably, belligerent and abusive towards Officer Klamser [MSUMF 23].
Contemporaneously, the 30 to 40-person crowd was reacting to the situation [MSUMF 18]. To
prevent Plaintiff from engaging any further with Officer Pastor and Mr. Waltz, Officer Klamser
attempted verbal directions and hand gestures to the Plaintiff [MSUMF 22]. The Plaintiff,
3 MSUMF is a reference to Movant’s Statement of Undisputed Material Facts.
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however, persisted in her course [MSUMF 22] and even escalated her attempts by slapping and
hitting Officer Klamser [MSUMF 24], and grabbing his throat [MSUMF 25]. Plaintiff’s
obstinance and frame of mind is characterized not only by her physical actions, but by her verbal
assault of Officer Klamser as well [MSUMF 24].
Officer Klamser was no longer able to fulfill his duties as a cover officer to Officer Pastor
(meaning he lost focus on the crowd behind the officers), as one-hundred percent of his
concentration was now directed at Plaintiff [MSUMF 27]. In order to quickly and safely control
the rapidly evolving situation and extricate himself and Plaintiff from the scene, Officer Klamser
informed Plaintiff she was under arrest [MSUMF 26]. He attempted to place her in a control
position, but Plaintiff’s resistive and assaultive efforts made Officer Klamser’s actions ineffective
[MSUMF 28-30]. Plaintiff refused to cooperate with Officer Klamser’s lawful and repeated
commands, instead demanding the proclamation of a reason for her arrest while at the same time
attempting to avoid being controlled [MSUMF 30-32]. Due to Plaintiff’s level of resistance and
anger, and because Officer Klamser reasonably believed Plaintiff was going to strike again, Officer
Klamser utilized a rowing arm takedown in order to place her under arrest [MSUMF 33]. It was
Officer Klamser’s reasonable belief the rowing arm takedown was the only method he had left to
bring Plaintiff under control quickly [MSUMF 34 & 36], and to break Plaintiff’s combative and
belligerent behavior [MSUMF 35]. Plaintiff’s efforts to avoid custody are also evident after the
takedown, as she persisted in her efforts to spin and break free from Officer Klamser and Officer
Pastor [MSUMF 37]. Undeterred, Plaintiff continued her tirade even after she was in handcuffs,
solidifying the notion the actions of Officer Klamser both prior to and after the takedown were a
reasonable reaction [MSUMF 38-40; 41-42; 43-46]. The reasonableness of Officer Klamser’s
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actions was subsequently determined by a criminal jury, when they rejected Plaintiff’s defense of
self-defense based on the notion Officer Klamser used unreasonable force in arresting her
[MSUMF 43-44], and convicted her of obstruction and resisting arrest [MSUMF 40].
As previously noted by this Court, taking into consideration the undisputed facts in this
matter, and the notion Officer Klamser was “attempting to effect an arrest and, in the process, the
arrestee’s actions were subjecting him to, or threatening him with, physical force or violence, or
putting him at substantial risk of bodily injury” [ECF 84 at 15, [referring to Martinez v. City of
Albuquerque, 184 F.3d 1121, 1127 (10th Cir. 1999)]], the use of a rowing arm takedown in this
situation, was objectively reasonable. Furthermore, the reasonableness of Officer Klamser’s
actions are evident when the failure of Plaintiff’s self-defense argument at the criminal trial is
taken into account, [ECF 84 at 15], with the undisputed fact he attempted to subdue Plaintiff
through “lawful lessor force” which were ultimately unsuccessful [ECF 84 at 15] [MSUMF 20-
22; 26-31].
Considering the reaction of the large crowd, the safety of the Officers, and the totality of
the circumstances, Plaintiff cannot through 20/20 hindsight establish Officer Klamser’s decision
to take her to the ground using a rowing arm takedown was objectively unreasonable.
iii. No Clearly Established Law Demonstrates that Officer
Klamser’s Actions Were Unreasonable
Plaintiff’s claim of excessive force should also be dismissed as the Constitutional right at
issue was not clearly established.
For the law to be “clearly established,” generally there must be a Supreme Court or Tenth
Circuit decision on point, or the clearly established weight of authority from other courts must
have found the law to be as the plaintiff maintains. Medina v. City & Cnty. of Denver, 960 F.2d
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1493, 1498 (10th Cir. 1992). “Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the
conduct.” Brosseau v. Haugen, 543 U. S. 194, 198, (2004) (per curiam). Although the Supreme
Court does not require a case directly on point, existing precedent must have placed the
constitutional question beyond debate. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “In other
words, immunity protects all but the plainly incompetent or those who knowingly violate the law.”
White v. Pauly, 137 S. Ct. 548, 551 (2017) (citation and internal quotation marks omitted).
The Supreme Court has repeatedly told courts not to define clearly established law at a
high level of generality. Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (citations
omitted). “The dispositive question is whether the violative nature of particular conduct is clearly
established,” in light of the specific context of the case, and not as a broad general proposition.
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (citations and internal quotations
omitted) (emphasis in original). “Such specificity is especially important in the Fourth Amendment
context, where the Court has recognized that it is sometimes difficult for an officer to determine
how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer
confronts.” Id. (citations and internal quotations omitted). “Use of excessive force is an area of the
law ‘in which the result depends very much on the facts of each case,’ and thus police officers are
entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at
issue.” Kisela, 138 S. Ct. at 1153 (quoting Mullenix, 136 S. Ct. at 309). “Precedent involving
similar facts can help move a case beyond the otherwise ‘hazy border between excessive and
acceptable force’ and thereby provide an officer notice that a specific use of force is unlawful.” Id.
(quoting Mullenix, 136 S. Ct. at 312).
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Here, Officer Klamser is unaware of any Supreme Court or Tenth Circuit case establishing
that as of April 6, 2017, it was a constitutional violation to use a rowing arm takedown on a
belligerent, uncooperative, and intoxicated arrestee who interfered with an officer’s interview of
a suspect, refused his directions to stay away, struck him multiple times, subjected him to physical
force or violence and put him at substantial risk of bodily injury. [See ECF 84 at 15 (“Finally, if
Klamser ever asserts qualified immunity … then Surat’s burden is even more formidable. She must
prove that it was clearly established as of April 6, 2017, that a police officer attempting to effect
an arrest and being subjected to or threatened with physical force or violence, or facing a
substantial risk of bodily injury, and who has already tried lawful lesser force to subdue the
arrestee, cannot use a takedown maneuver used in this case to eliminate that actual or threatened
force or risk of injury.”)]. As a result, Officer Klamser is protected by qualified immunity and the
claim against him should be dismissed as a matter of law.
B. The Claim Against the City of Fort Collins Must Be Dismissed as the
Complaint Fails to Sufficiently Allege Municipal Liability.
To establish liability of a public entity under 42 U.S.C. §1983, “a plaintiff must show (1)
the existence of a municipal custom or policy and (2) a direct and causal link between the custom
or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993 (10th Cir. 1996), (citing
City of Canton v. Harris, 489 U.S. 378, 385 (1989)). The Supreme Court described the
requirements a plaintiff must meet to impose public entity liability as follows: “It is not enough
for a §1983 plaintiff merely to identify conduct properly attributable to the municipality. The
plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the
‘moving force’ behind the injury alleged. That is, a plaintiff must show that the municipal action
was taken with the requisite degree of culpability and must demonstrate a direct causal link
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between the municipal action and the deprivation of federal rights.” Bd. Of Cnty. Comm’rs of
Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1998).
Under these standards, municipal liability may arise only out of official customs or policies,
or for the actions of a final policymaker to any extent that such policies, customs, or policymakers
can be shown to be responsible for a constitutional violation. See Brown, 520 U.S. at 403-404.
Municipal liability only attaches where “a deliberate choice to follow a course of action is made
from among various alternatives by the official or officials responsible for establishing final policy
with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986); Myers v. Oklahoma Cnty. Bd. Of Cnty. Comm’rs, 151 F.3d 1313, 1319 (10th Cir. 1998).
Here, Plaintiff attempts in her First Amended Complaint to set forth a claim against the
City entitled “Excessive Force – Unconstitutional Policies, Customs, and Practices” [ECF 107 at
18-19, ¶ ¶ 92-99]. As with her Initial Complaint, Plaintiff attempts to support these allegations by
reference to an internal affairs investigation involving Officer Klamser, and other “allegedly
similar use-of force incidents… in the timeframe between 2013 and 2018…” in an attempt to
demonstrate an “excessive force pattern among Fort Collins police officers [ECF 84 at 16 referring
to ECF 1 at ¶ ¶ 50-56; Cf. ECF 107 at ¶ 51 & ¶ ¶ 56-63.] The referenced “similar incidents” in
the First Amended Complaint are not substantively different than those presented in the Initial
Complaint. (Id.)
As previously discussed by this Court, based on Surat’s convictions and in order to avoid
violating Heck, “it must be taken as given that Klamser was attempting to effect Surat’s arrest
through a lawful use of lesser force, and that Surat’s resistance amounted to physical force or
violence against Klamser and/or threatened him with substantial bodily harm.” [ECF 84 at 16-17.]
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It is within this framework that Surat must properly allege the existence of unconstitutional policies
within the City of Fort Collins. The allegations set forth in this claim, however, do not rise to a
level satisfying Federal pleading standards. None of the incidents or purported failure to train
described in Plaintiff’s Complaint are factually similar to the scenario involving Surat and Officer
Klamser. Connick v. Thompson, 563 U.S. 51, 62-63 (2011). Furthermore, the Plaintiff offers no
allegations supporting any notion the City maintained any custom or policy relevant to the
Plaintiff’s 42 U.S.C. §1983 claim, or that anyone followed any specific custom or policy regarding
the interaction between the Plaintiff and the City. Nothing in the Complaint suggests that any
specific policy or custom was implicated, deliberately followed, or how any such custom, practice
or policy harmed the Plaintiff. Rather, the Plaintiff sets forth only conclusory allegations, which
are insufficient to overcome this Motion for Summary Judgment (See e.g. ECF 107 at ¶ 93; Cf.
ECF 1 at ¶ 68, (“Defendant Fort Collins established policies, customs and/or practices in violation
of the Constitution”); (“Defendant Fort Collins developed and maintained law enforcement-related
policies, customs, and/or practices exhibiting or resulting in a deliberate indifference to the Fourth
and Fourteenth Amendment protected constitutional rights…”) (ECF 107 at ¶ 94; Cf. ECF 1 at ¶
69); (“Defendant Fort Collins’ policies, customs, or practices in failing to train and supervise its
employees were the proximate cause of, and moving force behind, the violation of Ms. Surat’s
constitutional rights…”) (ECF 107 at ¶ 99. Cf ECF 1, ¶ 74)). Because the Complaint is devoid of
any mention of a specific municipal custom or policy, any effort to state a claim against the City
here fails as a matter of law.
Further, the First Amended Complaint contains no hint that any deliberate choice to follow
a specific course of action was made by anyone responsible for establishing any final policy with
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respect to the Plaintiff. Connick, supra. Absent some basis for thinking the City undertook
deliberate conduct that could be said to constitute the “moving force” behind any injury, or that
there is any direct causal link between any action by the City claimed to have deprived the Plaintiff
of her Federal rights, there could be no claim against the City.
Likewise, the Plaintiff fails to provide any specific allegations respecting a failure to train
or supervise. Instead, the Complaint merely contains the generic allegation that “(t)he inadequate
training and supervision provided by Defendant Fort Collins resulted from a conscious or
deliberate choice…Defendant Fort Collins could have and should have pursued reasonable
methods for the training and supervising of such employees, yet failed to do so. [ECF 107 at ¶ 98.]
Such allegations are insufficient. Connick, supra. Plaintiff’s efforts do not establish a custom,
practice or policy with respect to training, sufficient to overcome this Motion for Summary
Judgment. Furthermore, Plaintiff cannot properly allege any custom, practice or policy based on
the factual scenario presented in this matter in a way which avoids application of Heck.
IV. CONCLUSION
For all of the foregoing reasons, Defendants Randall Klamser and the City of Fort Collins
respectfully request this Court dismiss Plaintiff’s claims against them in their entirety, with
prejudice, and enter all such additional relief as this Court deems proper.
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Dated: October 13, 2020
Respectfully submitted,
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Brenden Desmond, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
desmondb@hallevans.com
and
s/ John R. Duval
John R. Duval, Esq.
Deputy City Attorney
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
(970) 221-6520
jduval@fcgov.com
ATTORNEYS FOR DEFENDANTS
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 13th day of October, 2020, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will send notification of such
filing to the following e-mail addresses:
David Lane, Esq.
Andrew McNulty, Esq.
Helen S. Oh, Esq.
Killmer, Lane & Newman, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
303-571-1000 Phone
303-571-1001 Fax
dlane@kln-law.com
amcnulty@kln-law.com
hoh@kln-law.com
Attorneys for Plaintiff
s/Cindy Blanton, Legal Assistant to
Mark S. Ratner
Brenden Desmond
Hall & Evans, L.L.C.
1001 Seventeenth St., Suite 300
Denver, CO 80202
Phone: 303-628-3300
Fax: 303-628-3368
ratnerm@hallevans.com
desmondb@hallevans.com
ATTORNEYS FOR DEFENDANTS
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