HomeMy WebLinkAbout2018CV3112 - Sean Slatton V. Fort Collins Police Department, Todd Hopkins, Brandon Barnes And John Hutto - 143A - Exhibit AIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-03112-RBJ-STV
SEAN SLATTON,
Plaintiff
v.
CITY OF FORT COLLINS, A MUNICIPALITY,
Defendants.
AMENDED MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56
ON BEHALF OF THE CITY OF FORT COLLINS
Defendant, the City of Fort Collins, through its counsel, Mark S. Ratner, Esq., of Hall &
Evans, L.L.C., hereby submits the following as its Motion for Summary Judgment pursuant to Fed.
R. Civ. P. 56:
D.C.COLO.LCivR 7.1: Because this is a Rule 56 motion, no conferral was required under
the Local Rules or this Court’s Practice Standards. D.C.COLO.LCivR 7.1(b)(3).
I. INTRODUCTION AND PROCEDURAL HISTORY
On December 19, 2019, Plaintiff filed his Fourth Amended Complaint (“Complaint”) against
former City of Fort Collins Police Officer Todd Hopkins, Fort Collins Police Officer Brandon
Barnes, former City of Fort Collins Police Chief John Hutto, and the City of Fort Collins (ECF 94).
In general, Plaintiff’s Complaint alleged a violation of his Fourth and Fourteenth Amendment rights
arising from the use of a baton and pepper spray by Officer Hopkins, to effectuate his arrest (ECF
94, at ¶¶ 83-142). As it pertains to the City of Fort Collins (“City”), Plaintiff claimed his Fourth and
Fourteenth Amendment rights were violated as a result of the City’s failure to train, supervise, and/or
discipline Officers Barnes and Hopkins, for their actions stemming from the arrest, and such failures
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 1 of
20
constituted an unconstitutional policy, procedure, custom and/or practice. [ECF 94 ¶¶ 101-114;
¶¶133-135].
The Defendants filed Motions to Dismiss, [see ECF 96 and 98], and on August 6, 2020, the
Court partially granted and partially denied those Motions [ECF 114]. The Court determined
Hopkins’ use of force was excessive, but it did not violate clearly established law and therefore he
was entitled to qualified immunity (ECF 114, at 20-21); (2) Officer Barnes was entitled to qualified
immunity (ECF 114 at 21); (3) Chief Hutto was entitled to qualified immunity (ECF 114, at 24), and;
(4) Plaintiff plausibly stated a municipal liability claim against the City of Fort Collins under both
the Fourth and Fourteenth Amendments (ECF 114, at 26). The City is the only Defendant in this
matter, and the remaining claims are for excessive force under the Fourth and Fourteenth
Amendments. (ECF 94, at 18-21 (Second Claim for Relief); 21-24 (Third Claim for Relief)).
Both of Plaintiff’s remaining claims should be summarily dismissed. In particular, Officer
Hopkins’ actions in effectuating the arrest of Mr. Slatton were not unconstitutional. Without an
underlying constitutional violation, there can be no municipal liability. In addition, Plaintiff cannot
establish any failure to train or unconstitutional custom, practice, policy, or procedure of the City, or
a causal nexus to Plaintiff’s claim his constitutional rights were violated. Furthermore, there is no
evidence of any deliberate conduct by the City sufficient to meet the culpable “state of mind”
necessary to maintain Plaintiff’s claim.
II. STANDARD
Summary judgment is proper where no genuine dispute on any material fact exists and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Initially, the movant must show the absence of a genuine issue of material
fact. See id. This means a defendant moving for summary judgment on an affirmative defense must
show no disputed material fact exists regarding that affirmative defense. Helm v. Kansas, 656 F.3d
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 2 of
20
1277, 1284 (10th Cir. 2011). After the movant meets its burden, the nonmovant must do more than
show metaphysical doubt. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). The nonmovant, rather, must set forth specific facts showing a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
III. MOVANT’S STATEMENT OF UNDISPUTE MATERIAL FACTS 1
1. On December 3, 2016, Plaintiff Slatton was attending a sorority formal at an event
center located in Fort Collins, Colorado (ECF 94, at ¶¶ 1, 17).
2. While at the sorority formal, Mr. Slatton was asked to leave the premises by Fort
Collins Police Officer Hopkins (ECF 94, at ¶ 21).
3. Plaintiff was told to leave the property in its entirety (ECF 94, at ¶ 2; ECF 972, Barnes
body-cam at :38).
4. Plaintiff exited the building, but remained in front of the building’s doors and was
therefore still on the property (ECF 94 at ¶ 24; ECF 97, Hopkins’ body-cam at :20; Barnes’ body-
cam, at :56; Fort Collins Police Services Report, attached hereto as Ex. A at 1; ECF 96-3, at 36:1-5
(Transcript of Mr. Slatton’s Criminal Matter Suppression Hearing)).
5. Plaintiff was asked by Hopkins, “What was property part didn’t you understand”
(ECF 97, Barnes’ body-cam at :55).
6. Plaintiff responded he was waiting for his ride (ECF 97, Barnes body-cam at :59).
7. Officer Hopkins told Slatton he had to leave the property in its entirety (ECF 97,
Barnes’ body-cam at 1:02; Ex. A at 1]).
1 Movant’s Statement of Undisputed Material Facts (“MSUMF”) are undisputed solely for the
purposes of this Motion for Summary Judgment. The City reserves the right to dispute these facts in
any other aspect of this litigation.
2 ECF 97 is body-cam footage from both Officer Hopkins and Officer Barnes, submitted
conventionally as part of (former) Defendant Todd Hopkins Motion to Dismiss [ECF 96], and which
was requested by the Court. References to either Hopkins and/or Barnes’ footage, are delineated
accordingly.
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 3 of
20
8. Hopkins then asked for Plaintiff’s identification (ECF 97, Barnes’ body-cam at 1:06;
Ex. A at 1).
9. Slatton asks “for what reason” and Hopkins responds he was being detained for
trespass (ECF 97, Barnes’ body-cam at 1:09).
10. Hopkins repeatedly asks for Plaintiff ’s identification, but Plaintiff refuses to provide
any (ECF 97, Barnes’ body-cam at 1:12-1:17; Ex. A at 1).
11. Plaintiff ignores Hopkins’ requests, and walks away from both Officers Hopkins and
Barnes without providing any identification (ECF 97, Barnes’ body-cam at 1:15; Ex. A at 1)..
12. Hopkins repeatedly tells Plaintiff to stop, but Plaintiff repeatedly refuses to do so, and
continues to walk away from the Officers (ECF 97, Barnes’ body-cam at 1:18-1:20).
13. Hopkins tells Plaintiff to stop and that he is under arrest (ECF 97, Barnes’ body-cam
at1:19-1:21; Ex. A at 1). Plaintiff still does not stop or otherwise submit to Officer Hopkins’ control
(ECF 97, Barnes’ body-cam at 1:20-1:22; Ex. A at 1).
14. In response to Hopkins telling Plaintiff he is under arrest, Plaintiff replies, “no, I’m
not.” (ECF 97, Barnes’ body-cam at 1:22-1:23; Ex. A at 1).
15. Both Officers once again tell Plaintiff to stop, but Plaintiff refuses to do so, and instead
continues to walk away from the officers (ECF 97, Barnes’ body-cam at 1:23-1:24 Ex. A at 1).
16. Hopkins then strikes Plaintiff one-time with a baton on the lower portion of his left
leg (ECF 97, Hopkins’ body-cam at :44; Ex. A at 1).
17. Plaintiff does not stop walking, but instead turns towards Officer Hopkins at which
point Officer Hopkins administers oleoresin capsicum, otherwise known as “pepper spray” or “OC
spray” to Plaintiff’s face (ECF 97, Hopkins’ body-cam at :48; Ex. A at 1).
18. Plaintiff still does not stop. Rather, he runs away from Officers Hopkins and Barnes
(ECF 97, Hopkins body-cam at :49; Ex. A at 1).
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 4 of
20
19. Plaintiff is subsequently apprehended and placed in custody by other Fort Collins
Police Officers (Ex. A at 20, ¶¶ 2-3).
20. On December 3, 2016, Fort Collins Police Sergeant Heather Moore conducted an
investigation into the incident (Ex. A at 18-19).
21. As part of her investigation, Sergeant Moore spoke with Hopkins about what occurred
(Ex. A, at 18, last full paragraph).
22. Sergeant Moore also spoke with Plaintiff as to what occurred (Ex. A at 19, second full
paragraph).
23. Plaintiff reported to Sergeant Moore that he believed Hopkins did not ask for any
identification, and that he was some type of security guard (Ex. A, at 19, second full paragraph).
24. Sergeant Moore reviewed the body-cam footage (Ex A at 19, second to the last
paragraph).
25. Sergeant Moore concluded Hopkins’ actions were within law, policy, and ethics (Ex.
A at 19, last paragraph; Ex. C, Expert Report of Defendant’s expert, Robert T. Johnson, at 16).
26. Officer Hopkins completed a Response to Resistance Report, as part of Fort Collins’
Early Intervention System (“EIS”). As is Fort Collins Policy, the EIS Report was reviewed by
Lieutenants Yonce and Robinson (Ex. C, at 16; See generally, Response to Resistance Report,
attached hereto as Ex. E).
27. As a result of his actions, Plaintiff was charged with crimes including Third-Degree
Criminal Trespass (ECF 94 at ¶46).
28. During a suppression hearing in the criminal matter, the Court determined probable
cause existed for Plaintiff’s arrest for the crime of trespass (ECF 96-3, at 36:19-23).
29. Robert T. Johnson is Fort Collins retained expert in this matter. He reviewed the City
of Fort Collins Police Services’ Use of Force Policies, and Officer Hopkins’ use of force on Slatton
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 5 of
20
(City of Fort Collins’ Fed. R. Civ. P. 26(a)(2) Expert Disclosures, attached hereto as Ex. B; See
generally, Report of Robert T. Johnson, attached as Ex. C).
30. Mr. Johnson is a retired Lieutenant Colonel from the Illinois State Police. He is a
private consultant and expert witness in law enforcement policies and practices, most frequently
regarding the use of force. He has testified regarding other police policy and practices issues. He
has been certified as an assessor for the Commission for the Accreditation of Law Enforcement
Agencies, otherwise known as “CALEA.” (Ex. C, at 5-6).
31. As a certified CALEA assessor, Mr. Johnson has conducted approximately thirty-five
assessments of law enforcement agencies throughout the United States. These assessments include
reviewing agency use of force policies, practices, and training, use of force lesson plans, and use of
force continuums and models, and use of force incidents. (Ex. C, at 6).
32. At the time alleged in Plaintiff’s Complaint, the City and its police department had in
effect polices addressing the use of force by City of Fort Collins Police Officers (Ex. C at 17-18).
33. These policies included and were entitled Training, Response to Resistance, Response
to Resistance Reporting and Review, Restraint Devices, Control Devices and Techniques, Search and
Seizure, Early Intervention System, and Citizen Review Board (Ex. C at 17-18; Fort Collins Police
Services Polices 208, 300, 301, 306, 308, 322, 1021, and 1060, attached hereto as Ex. D).
34. The policies enumerated in MSUMF 33, infra, were created by Lexipol and link
CALEA Accreditation standards to the specific and appropriate issues (Ex. C at 18).
35. Fort Collins Police Services is currently a CALEA accredited agency (Dep. of
Lieutenant Adam McCambridge, attached hereto as Ex. F, 9:18-25).
36. CALEA sets a group of standards for law enforcement agencies to achieve that are
considered a gold standard of law enforcement practices based on input from individuals and
organizations around the country. By adhering to these standards, Fort Collins Police Services
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 6 of
20
(“FCPS”) ensures its policies and practices meet the highest standards of accepted law enforcement
practices. (Ex. F, 11:1-11).
37. CALEA standards are recognized as containing law enforcement best practices (Ex.
C, at 18).
38. Although not CALEA accredited at the time of the Slatton incident, the FCPS policies
still incorporated CALEA standards (Ex. C, at 18).
39. Based on Mr. Johnson’s review of this matter, there is nothing in the FCPS policies
which provides guidance, suggests, or requires an employee to perform an action that would be
contrary to accepted law enforcement practices, customs, standards and training (Ex. C, at 18).
40. Fort Collins’ Response to Resistance policy meets CALEA Standards and sets
requirements that are over and above any required by law and are considered best practices (Ex. C,
at 18-19).
41. The Response to Resistance policy in effect at the time of the Slatton incident, set
forth a proactive and thorough list of supervisory responsibilities not often found in use of force
policies that aid in the review/investigation of use of force (Ex. C, at 19).
42. FCPS has implemented a number of steps reflecting the City’s desire to hold their
officers accountable for their actions, as well as a concerted effort to operate in an open and
transparent manner. These efforts include a Citizen Review Board (“CRB”), an Early Intervention
System, body worn cameras, and a webpage listing a wealth of information available to the public,
including but not limited to internal/external complaints regarding officers, arrest and traffic citation
by race, and the FCPS’ Response to Resistance policy and Response to Resistance tables/statistics
for 2015 to 2019 (Ex. C, at 19-20).
43. The CRB was established in 1999 and is charged with reviewing internal
investigations where a peace officer is alleged to have used force, when a person sustains a severe
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 7 of
20
injury, death, or alleged their civil rights were violated by a peace officer (Ex. C, at 20).
44. The EIS is a proactive, non-disciplinary strategy to support employee performance by
seeking to identify and mitigate against factors that may lead to negative performance issues,
employee discipline and employee or departmental liability (Ex. C, at 20).
45. The EIS allows for the identification of training opportunities, training deficiencies,
and ensures the use of proper and effective tactics and equipment. (Ex. C, at 20).
46. Level 1 uses of force are actions including use of personal weapons (“hands-on”), use
of OC spray, or use of a baton (Ex. F, 115:3-5).
47. Level 2 complaints are investigated by the Internal Affairs and not the Officer’s
supervisor. (Ex. F, 83:12-15).
48. Level 2 complaints are actions such as use of a canine, vehicle pursuit, or use of a
Taser (Ex. F, at 115:9-15). Level 2 complaints go to the Force Review Board review and input,
which in turn result in an investigation (Ex. F, 115:9-15).
49. Level 3 uses of force are officer involved shootings, which are sent to the CRB and
reviewed by the assistant, deputy chief, or chief of police (Ex. F, 115:16-20).
Officer Hopkins POST Certification and Training
50. The Colorado Peace Officer Standards and Training (“POST”) Board has the
legislated responsibility to document and manage the certification and training of all active peace
officers working for Colorado law enforcement agencies (Ex. C at 17).
51. To be eligible for appointment as a peace officer, an applicant must first be certified
by the POST Board and successfully complete a POST approved basic academy (Ex. C at 17).
Officer Hopkins’ Training
52. Officer Hopkins was POST certified (Ex. C at 17).
53. Officer Hopkins received training regarding ongoing use of force (Ex. C at 17).
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 8 of
20
54. Officer Hopkins completed 40 hours of Crisis Intervention Team Training, which
includes de-escalation tactics (Ex. C, at 17).
55. At the point where Slatton was told he was under arrest, and responded “no, I’m not”,
Officer Hopkins acted consistent with accepted law enforcement practices, standards, and training to
use necessary and reasonable force to make the arrest. (Ex. C, at 10).
56. In evaluating the force used in an incident, the Quantum of Force is used as tool for
evaluating the reasonableness of the force. The Quantum of Force is the foreseeable effect and
injuries of a chosen force option under the totality of the circumstances of the force option(s) used
(Ex. C, at 10).
57. Officer Hopkin initially used a single baton strike/stunning technique to Plaintiff’s leg
followed by a dose of O.C., after Plaintiff failed to comply with his orders to produce identification,
was told to stop, that he was under arrest, stated he wasn’t under arrest, and continued to ignore
commands and continued walking away (Ex. C, at 10).
58. A baton is classified as an impact weapon, and the likely injury of a baton strike to
the thigh or calf is classified on the Monadnock Baton Chart as “Minimal level of resultant trauma.
Injury tends to be temporary.” (Ex. C, at 11).
59. The second force option employed by Officer Hopkins was OC spray, which is used
as a disabling agent for law enforcement officers to use to attempt to overcome resistance, and to
subdue persons with minimal injuries to officers, arrestees, and others (Ex. C, at 11).
Fort Collins Police Services’ Policies
60. Lieutenant Adam McCambridge is a Fort Collins Police Services Lieutenant, who is
currently assigned to the Professional Standards Unit (Ex. F, 5:11-13).
61. Lieutenant McCambridge is also the accreditation manager for the FCPS’ CALEA
accreditation (Ex. F, 8:12-16).
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 9 of
20
62. In a situation such as the one involving Mr. Slatton, FCPS practice is to assess every
situation individually. There is no blanket policy or practice, and every situation is different (Ex. F,
50:16-22).
63. It is FCPS policy that officers are justified in using reasonable and appropriate force
to effect an arrest (Ex. F, 56:22-25). In this situation, the baton was an option to effect an arrest of
a resisting person (Ex. F, 57:7-10).
64. Plaintiff was resisting his arrest. That is, Plaintiff was told he was under arrest, he
had been told to stop and did not comply and in fact says “I’m not under arrest.” He continues to
walk away, defying commands of both officers (Ex. F, 57:15-21). This all indicates a level of
resistance which will require more than words to effectuate an arrest (Ex. F, 58:17-22).
65. Plaintiff’s actions and words effectively told Officer Hopkins he was going to have
to do something more than talk to him to effectuate an arrest (Ex. F, 59:21-25). At that point, Officer
Hopkins is dealing with more than just trespass-he is dealing with other crimes (Ex. F, 60:18-
25;19:1).
66. Lieutenant Kelly Weaver is currently the Community Engagement Lieutenant over
Special Operations Divisions (Dep. of Kelly Weaver, attached hereto as Ex. G, 5:17-18). He is a
lead defensive tactics instructor (Ex. G, 10:9-10).
67. An officer is justified in using a baton and/or impact weapon when less degrees of
force are inappropriate or ineffective and the use of deadly force cannot be articulated (Ex. G, 20:14-
17).
68. In addition to the investigation conducted by Sergeant Moore, and as part of the data
collection function after a use of force, officers are required to fill out certain documents that are
reviewed by the chain of command (Ex. F, 69:21-2570:1-4).
69. The written police report is reviewed by the supervisor of the officer, which is one
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 10 of
20
level of review. The use of force report gets reviewed by two levels, which is the officer’s supervisor
and then the sergeant’s lieutenant (Ex F, 70:7-11).
IV. ARGUMENT
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 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) (emphasis added).
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).
A local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Waller v. City & Cnty. of Denver, 932 F.3d 1277 (10th Cir. 2019). Instead, to
establish municipal liability, a plaintiff must show an “(1) official policy or custom, (2) causation,
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 11 of
20
and (3) state of mind.” Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 769 (10th
Cir. 2013). A custom, practice, policy, or procedure must take one of five forms: (1) a formal
regulation or policy statement; (2) an informal custom amounting to a widespread practice that,
although not authorized by written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law; (3) the decisions of employees with final
policymaking authority; (4) the ratification by such final policymakers of the decisions—and the
basis for them—of subordinates to whom authority was delegated subject to these policymakers’
review and approval; or (5) the failure to adequately train or supervise employees, so long as that
failure results from deliberate indifference to the injuries that may be caused. Waller, 932 F.3d at
1283. Municipal liability attaches only 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” as to the subject. Pembaur, 475 U.S. at 483.
An underlying constitutional violation must exist to hold a public entity liable. See City of
L.A. v. Heller, 475 U.S. 796, 799 (1986); Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009).
However, if a constitutional violation occurred, no municipal liability can be based on a pure
respondeat superior theory. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Furthermore, to impose liability on a failure to train analysis, the alleged failure to train must
amount to “deliberate indifference” to the rights of persons with whom allegedly untrained
employees interact. Connick v. Thompson, 563 U.S. 51, 61 (2011), citing City of Canton Ohio v.
Harris, 489 U.S. 378, 388 (1989). “Deliberate indifference” is a “stringent standard” of fault,
requiring proof an entity “disregarded a known or obvious consequence of [its] action.” Id. citing
Brown, 520 U.S. at 409.
A. Plaintiff’s Fourth Amendment Claim
Plaintiff’s Second Claim for Relief purports to set forth a violation of his rights under the
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 12 of
20
Fourth Amendment related to his arrest by Officer Hopkins (ECF 94, at 18-21). Specifically, Plaintiff
claims Hopkins engaged in excessive force when he used a baton and OC spray to effectuate his
arrest (ECF 94, ¶ 110). As it pertains to the City, Plaintiff alleges Hopkins’ actions were predicated
on a failure to train, supervise, or discipline its employees regarding the proper use of physical force,
and that any such failures were the result of a “conscious” or “deliberate” choice to follow a course
of action from various alternatives available to the City (ECF 94, ¶¶ 111-112). The allegations also
state there was a failure to train or discipline which resulted in unconstitutional policies (ECF 94, ¶
114).
1. Officer Hopkins’ Actions Did Not Constitute Excessive Force
In denying Hopkins’ Motion to Dismiss, the Court determined his actions were excessive.
(ECF 114, at 16). Nonetheless, the City posits the Court did not yet have the benefit of an analysis
respecting Officer Hopkins’ actions, coupled with proper police procedures as provided by the City’s
expert, before making any the determination respecting excessive force, or that other lesser-degrees
of force were available to effectuate Plaintiff’s arrest. Here, it is undisputed that despite being asked
multiple times to leave the property in its entirety, Plaintiff remained on the premises (MSUMF 1-
4). Hopkins, therefore, decided to lawfully detain Plaintiff in order to investigate the crime of Third
Degree Criminal Trespass (MSUMF 27-28). Hopkins asked to see Plaintiff’s identification in order
to investigate the crime (MSUMF 8), but instead of complying, Plaintiff resisted all of Hopkins’
lawful efforts. Plaintiff repeatedly refused to provide identification (MSUMF 10-12) or stop after
being placed under arrest (MSUMF 13-15; 60), and therefore Hopkins used a low-level of force, first
in the form of one baton strike to the lower thigh/calf area (MSUMF 16; 53-54). The baton strike
proved to be ineffective as Plaintiff continued to resist Officer Hopkins’ efforts to place him under
arrest (MSUMF 17), so Officer Hopkins used a second lower level of force-OC Spray (MSUMF 17-
18). This too proved to be ineffective, as Plaintiff ran away from Officers Hopkins and Barnes
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 13 of
20
(MSUMF 19).
“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
of 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).
“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, 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.” Graham, 490 U.S. at 396, 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.”
Graham, 490 U.S. at 39, 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.” Graham, 490 U.S. 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).
In assessing the degree of threat a suspect poses to officers, a court may consider factors such
as whether the suspect complied with police commands, the distance separating the parties, and the
manifest intentions of the suspect. Thomson v. Salk Lake County, 584 F.3d 1304, 1314 (10th Cir.
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 14 of
20
2009); see also Mecham v. Frazier, 500 F.3d 1200, 1205 (10th Cir. 2007) (suspect’s refusal to
comply with instructions may be considered in assessing whether physical force was needed to effect
compliance).
Here, the probable cause determination by the Court in the criminal matter establishes
Hopkins was justified in stopping, detaining, and arresting Mr. Slatton for Third Degree Criminal
Trespass (ECF 96-3, at 36:1-5). Yet, Mr. Slatton chose to ignore Hopkins’ lawful commands. In
order to effectuate the arrest, Hopkins used minimal efforts to place Plaintiff under arrest.
Furthermore, there is no evidence suggesting any proper “less-forceful” method was available.
Certainly, Hopkins could have gone “hands-on” with Plaintiff. But, when compared with the use of
a baton or OC spray, such an approach can cause more injury to both the Officer and the suspect (Ex.
C, at 11 -12, citing A National Institute Of Justice Study – Police Use Of Force, Tasers and Other Less
Lethal Weapons (2011)) (“A few researchers have looked at how various approaches to force affect
officer injury rates. Overall, the empirical evidence, shows that getting close to suspects to use
hands-on tactics increases the likelihood of officer injuries.” (Id. at 3); “The study’s most significant
finding is that, while results were not uniform across all agencies, the use of pepper spray and CED’s
can significantly reduce injuries to suspects…” (Id. at 3)). “The alternatives to using a pepper spray
against an Active Resistor and Aggressive/Assailant includes but are not limited to hands on
(including holds, takedowns, punches, knee strikes, kicks, etc., ) batons/impact weapons, Tasers, etc.
all of which create a greater risk of injury to the suspect/offender as well as the officer(s) involved.”
(Ex. C, at 12).
Plaintiff cannot establish the unreasonableness of Officer Hopkins’ actions, and therefore no
constitutional violation exists. The inability of Plaintiff to establish a constitutional violation is fatal
to Plaintiff’s claims respecting the City’s liability under the Fourth Amendment. Heller, 475 U.S at
799; Martinez, 563 F.3d at 1091.
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 15 of
20
2. Notwithstanding Any Purported Excessive Use Of Force, Plaintiff Cannot
Establish Liability On Behalf Of The City
a. The City Does Not Have Any Unconstitutional Custom, Practice,
Policy Or Procedure.
Even if Officer Hopkins’ actions are determined to be excessive, Plaintiff’s Fourth
Amendment claim against the City is not supported by the existence of any unconstitutional custom,
practice, policy, or procedure, or a causal link to any unconstitutional conduct. Woods, 81 F.3d at
993; Brown, 520 U.S. at 404.
At the time of the incident, the City employed (and still does), a robust set of written policies
and procedures respecting the use of force by a police officer (MSUMF 32-33). These policies
conform to accreditation levels considered to be the “gold standard” of law enforcement best
practices (MSUMF 34-37), even though the FCPS was not CALEA accredited until subsequent to
the incident (MSUMF 38). There is nothing in the FCPS policies which provides guidance
suggesting or requiring an employee to perform an action contrary to accepted law enforcement
practices, customs, standards, or training, (MSUMF 39), and Plaintiff has no evidence establishing
otherwise.
FCPS’ policies also contain procedure intended to provide accountability and address
inappropriate responses to resistance and uses of force, which are above and beyond law enforcement
best practices. (MSUMF 40-41). These supervisory responsibilities include a Citizen Review
Board,3 an Early Intervention System, body warn cameras, and public transparency as to
internal/external complaints regarding officers’ arrests (MSUMF 42-45). FCPS also maintains
policies and procedures intended to address supervisory involvement, which depends on the different
levels of force (MSUMF 46-49).
3 The use of force used in this matter, did not rise to the level necessary for a referral to the
CRB. Furthermore, there was no formal complaint made by Plaintiff which might have initiated any
such referral.
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 16 of
20
It is undisputed in this matter that FCPS policies and procedures were appropriately utilized.
Here, available body-cam footage was reviewed, the matter was appropriately reported to a
supervisor who conducted an investigation into the use of force, (MSUMF 20-25), an EIS report was
prepared by Hopkins (MSUMF 26), and a use of force report Response to Resistance Report was
prepared by Hopkins’ supervisors (MSUMF 26). Plaintiff may not like the outcome of the
investigation, but there is no evidence anything inappropriately was done by any of the investigating
officers in coming to the conclusion the use of force was justified. Furthermore, even if the
supervisors’ determination respecting the justified use of force was incorrect (which the City denies),
any such alleged error cannot form the basis for determining the existence of an unconstitutional
policy or procedure, as there is no evidence establishing any deliberate conduct on the part of the
City either through the investigation or otherwise. Brown, 20 U.S. at 404.
Likewise, there is no evidence establishing any causal connection between any conduct
attributable to the City and Plaintiff’s claim of unconstitutional conduct. Id. Rather, if one posits
that Hopkins’ conduct was excessive and therefore unconstitutional, holding the City liable would
merely be on a pure theory of respondeat superior liability. But, such an approach is improper.
Monell, 436 U.S. 694.
b. There Is No Evidence Suggesting A Failure To Train
In nothing but a conclusory fashion, Plaintiff alleges some purportedly systemic failure to
train Hopkins, which in-turn resulted in his use of excessive force (ECF 94 ¶¶ 101-114; ¶¶133-135).
But again, no such evidence exists supporting this belief. Hopkins was POST certified and as a result
he received training regarding the use of force (MSUMF 52-53). In an attempt to properly overcome
Plaintiff’s resistance to lawful orders, Officer Hopkins utilized a single baton strike to Plaintiff’s leg,
and then application of OC spray (MSUMF 57-590). Both of these efforts, although certainly not
pleasant, were on the minimal level of resultant trauma (MSUMF 58-59). There is no evidence
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 17 of
20
suggesting Hopkins could or should have used any other “lesser” degree of force or that he was
trained not to do so. Any argument Hopkins should have used a different approach to effectuating
Plaintiff’s arrest, would be engaging in the 20/20 hindsight analysis discouraged by the Supreme
Court, (Graham 490 U.S. at 396), especially in light of the fact that at the time of the incident there
was no clearly established law abrogating the notion Hopkins was entitled to qualified immunity
(ECF 114, at 21). Plaintiff cannot establish any custom, practice, policy or procedure, a failure to
train, or any causal link to his claim of unconstitutional conduct, and therefore his claim under the
Fourth Amendment should be dismissed.
B. Plaintiff’s Fourteenth Amendment Claim
Likewise, for the reasons stated above Plaintiff’s inability to establish an excessive use of
force negates his Fourteenth Amendment claim as well. And, even if an excessive use of force exists,
Plaintiff fails to provide any evidence identifying a custom, practice, policy or procedure, a failure
to train or discipline, or a causal nexus with respect to any such alleged constitutional violation. The
City, therefore, incorporates those arguments set forth above in sections IV(A), infra.
1. The Fourteenth Amendment Is Not the Appropriate Constitutional Provision
For The Excessive Force Analysis In This Matter
Plaintiff’s Third Claim for Relief, which mirrors the allegations under the Fourth Amendment
claim, purports to set forth a claim pursuant to the Fourteenth Amendment. (ECF 94, at 21-24). The
Third Claim for Relief is not pled in the alternative, and therefore to any extent the Plaintiff intends
to pursue both a Fourth Amendment and Fourteenth Amendment claim, he is precluded from doing
so. “This case requires us to decide what constitutional standard governs a free citizen’s claim that
law enforcement officials used excessive force in the course of making an arrest, investigatory stop,
or other ‘seizure’ of his person. We hold that such claims are properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard rather than under a substantive due process
standard.” Graham v. Connor, 490 U.S. 386, 388 (1989). “Where, as here, the excessive force
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 18 of
20
claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly
characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens
the right ‘to be secure in their persons…against unreasonable…seizures’ of the person.” Graham,
490 U.S. at 394 (ellipses in original) referring to Tennessee v. Garner, 471 U.S. 1 at 7-22 (1985).
“Because the Fourth Amendment provides an explicit textual source of constitutional protection
against this sort of physically intrusive governmental conduct, that Amendment, not the more
generalized notion of ‘substantive due process’ must be the guide for analyzing these claims.”
Graham, 490 U.S. at 395. Plaintiff’s Third Claim for Relief must be dismissed on this basis alone.
To any extent Plaintiff’s Third Claim for Relief is considered the proper guide to analyzing
his claims, there is no evidence suggesting Officer Hopkins’ actions rise to the level violating a
clearly established statutory or constitutional right under the Fourteenth Amendment. As argued in
Officer Hopkins’ Motion to Dismiss, a Fourteenth Amendment due process claim will present itself
only where the plaintiff can show that the actor had ‘an intent to harm’ and that his actions further
‘shocked the conscience.’” (ECF 96, at 13-14, citing Perez v. Unified Gov. of Wyandotte Cnty., 432
F.3d 1163, 1166-68 (10th Cir. 2005)). Here, Officer Hopkins repeatedly asked Plaintiff to comply,
which he failed to do (MSUMF 1-17). There is no evidence suggesting Officer Hopkins minimal
use of force was intended to harm Plaintiff, as opposed to apprehend someone who failed to heed
lawful orders (Ex. C, at 11 -12). Therefore, even if the Fourteenth Amendment provided the right
analysis (which the City contends it is not) Officer Hopkins’ actions were not violative of Plaintiff’s
constitutional rights. Without any underlying constitutional violation, Plaintiff’s claim against the
City fails. Heller, 475 U.S. at 799; Martinez v. Beggs, 563 F.3d at 1091.
V. CONCLUSION
WHEREFORE, for the foregoing reasons, Defendant City of Fort Collins, respectfully
requests the Court grants its Motion for Summary Judgment, dismiss all claims against it with
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 19 of
20
prejudice and for entry of any other relief deemed just and appropriate by this Court.
Respectfully submitted this 19th day of October 2021.
/s/ Mark S. Ratner
Mark S. Ratner
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
Phone: 303-628-3300
Fax: 303-628-3368
ratnerm@hallevans.com
ATTORNEY FOR DEFENDANT
THE CITY OF FORT COLLINS
CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 19th day of October, 2021, I electronically filed the
foregoing AMENDED MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R.
CIV. P. 56 ON BEHALF OF THE CITY OF FORT COLLINS with the Clerk of Court using the
CM/ECF system and mailed a copy to the following:
David A. Lane, Esq.
Tyrone Glover, Esq.
Killmer, Lane & Newman, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
Phone: (303) 571-1000
Facsimile: (303) 571-1001
dlane@kln-law.com
tglover @kln-law.com
ATTORNEYS FOR PLAINTIFF
s/ Sarah Stefanick, Legal Assistant to
Mark S. Ratner
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
Case 1:18-cv-03112-RBJ-STV Document 143-1 Filed 10/19/21 USDC Colorado Page 20 of
20