HomeMy WebLinkAbout2022-cv-1983-SKC - Townley v. Fort Collins, et al - 027 - Plaintiffs' Response to Motion to DismissIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-01983-SKC
MICHAEL PIPER TOWNLEY, ANNA KRUGER, and JOSHUA DeLEON;
Plaintiffs,
v.
BRIAN MALLORY,in his individual capacity;
ETHAN VANSICKLE,in his individual capacity;
DANIEL NETZEL,in his individual capacity;
JARED ROBERTSON,in his individual capacity;
JOE SCHILZ,in his individual capacity;
JASON HAFERMAN,in his individual capacity;
CHRISTOPHER YOUNG,in his individual capacity.
Defendants.
PLAINTIFFS’ RESPONSE TO DEFENDANTS SHILZ, HAFERMAN, AND YOUNG’S
MOTION TO DISMISS FIRST AMENDED COMPLAINT [ECF 22]
Plaintiffs,by and through undersigned counsel,respectfully respond to Defendants
Schilz, Haferman, and Young’s Motion to Dismiss as follows:
SKC CIV. PRAC. STD. F(1) CONFERRAL
Counsel for Defendant emailed undersigned counsel on the evening of Sunday,December
11,2022 seeking to confer on the present motion which was due the following day.Undersigned
counsel was out of the country and was unable to schedule a conferral call on such short notice.
Plaintiffs object to the relief requested by Defendants.
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 1 of 22
STANDARD
“There is a strong presumption against dismissal for failure to state a claim under Rule
12(b)(6).”Deray v.City of Colo.Springs,No.11-CV-02639-MSK-CBS,2012 WL 1901220,at
*2 (D.Colo.May 25,2012).A complaint will survive a Rule 12(b)(6)motion 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).“Plausible”does not equate to “likely to be true,”but simply means a
nudge beyond “conceivable.”See Robbins v. Oklahoma,519 F.3d 1242, 1247 (10th Cir. 2008).
The purpose of a motion to dismiss pursuant to Rule 12(b)(6)is to test "the sufficiency of
the allegations within the four corners of the complaint after taking those allegations as true."
Mobley v.McCormick,40 F.3d 337,340 (10th Cir.1994)."The court's function on a Rule
12(b)(6)motion is not to weigh potential evidence that the parties might present at trial,but to
assess whether the complaint alone is legally sufficient to state a claim for which relief may be
granted."Sutton v.Utah State Sch.for the Deaf &Blind,173 F.3d 1226,1236 (10th Cir.1999).
To withstand a motion to dismiss pursuant to Rule 12(b)(6),"a complaint must contain enough
allegations of fact to state a claim for relief that is plausible on its face."Robbins v.Oklahoma,
519 F.3d 1242,1247 (10th Cir.2008);"The complaint must plead sufficient facts,taken as true,
to provide 'plausible grounds'that discovery will reveal evidence to support the plaintiff's
allegations."Shero v.City of Grove,Okla.,510 F.3d 1196,1200 (10th Cir.2007).Indeed,"if the
court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,
it should do so [even]despite the plaintiff's failure to cite proper legal authority."Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 2 of 22
"A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v.Iqbal,556 U.S.662,678 (2009)."A pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will not do.Nor does a complaint suffice
if it tenders naked assertion[s]devoid of further factual enhancement."Id.To survive a motion to
dismiss pursuant to Rule 12(b)(6),the factual allegations in the complaint "must be enough to
raise a right to relief above the speculative level."Christy Sports,LLC v.Deer Valley Resort Co.,
555 F.3d 1188, 1191 (10th Cir. 2009).
ARGUMENT
1.Defendants Conduct Constituted Malicious Prosecution
Plaintiffs Anna Kruger and Piper Townley have each set forth in their Complaint
allegations which satisfy the elements of a malicious prosecution claim.Both Plaintiffs have
alleged that each Defendant lied in their statements to support the filing of criminal charges,in
part on the basis of their distaste of Plaintiffs’political speech on police brutality.To state a
claim for malicious prosecution under 42 U.S.C.§1983,a plaintiff must allege (1)the defendant
caused the plaintiff's continued prosecution;(2)the original action terminated in the plaintiff's
favor;(3)no probable cause supported the original arrest,continued confinement,or prosecution;
(4)the defendant acted with malice;and (5)the plaintiff was damaged.Wilkins v.DeReyes,528
F.3d 790,799 (10th Cir.2008).This is substantially the same standard as applies to claims for
malicious prosecution under Colorado state law which will presumably apply to Plaintiffs’’
C.R.S.§13-21-131 claims.See Hewitt v.Rice,154 P.3d 408,411 (Colo.2007).Each Defendant
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has engaged in conduct,as pled by Ms.Kruger and Mx.Townley,which sufficiently states a
claim for Malicious Prosecution.
a.Plaintiff Anna Kruger Has Sufficiently Alleged Conduct Constituting
Malicious Prosecution by Defendants
Anna Kruger was arrested and charged with Disorderly Conduct and Resisting Arrest
because Defendants Schilz,VanSickle,and Haferman did not like her viewpoints on police
brutality.They arrested Ms.Kruger and supported the filing of criminal charges for which they
knew there was no basis and they provided false statements to support these charges.
It is unclear from Defendants’Motion which element of Ms.Kruger’s claims for
malicious prosecution are contested by Defendants Schilz,VanSickle,and Haferman.
Specifically,Defendants only put forth one argument:that “the Complaint fails to describe any
specific action taken by any of these Defendants,which might possibly be in violation of
Plaintiffs’constitutional rights.”ECF 22,p.6.Aside from case citations to the elements of a
malicious prosecution claim under 42 U.S.C.§1983,Defendants provide no further citation and
develop no argument in support of their motion on Claims 3 and 4.
On this basis alone,the Court should deny Defendants’motion to dismiss claims 3 and 4
as waived.“Issues adverted to in a perfunctory manner,unaccompanied by some effort at
developed argumentation,are deemed waived.”Hardeman v.City of Albuquerque,377 F.3d
1106,1122 (10th Cir.2004);see also Mid-South Iron Workers Welfare Plan v.Harmon,645 Fed.
App'x 661,664 (10th Cir.2016)("Issues addressed in a perfunctory manner,unaccompanied by
some effort at developed argumentation,are deemed waived").Given this failure to identify
which element Defendants contest,Plaintiff Kruger is left guessing that Defendants are
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contesting the first element -that the each Defendant caused Ms.Kruger ’s continued
prosecution. Nonetheless, Plaintiff will address each element in support of her response.
i.Defendants Caused Ms. Kruger ’s Prosecution
Defendants Schilz and VanSickle caused the arrest and prosecution of Anna Kruger by
providing a statement that Ms.Kruger had been engaged in fighting.Pls.Am.Compl.¶114.
Indeed,Defendant Haferman wrote in his affidavit supporting charges against Ms.Kruger that
“Anna Kruger was observed by multiple officers fighting in public.”Id.¶¶108-109.This was
done in spite of Defendants Schilz and VanSickle removing themselves from the protest areas
and arriving only after the fighting was over.Id.¶¶64,75.Defendant Haferman caused Ms.
Kruger ’s prosecution by lying about the circumstances of her arrest to support the filing of
criminal charges for disorderly conduct and resisting arrest.Id.¶¶109-110.This false statement
by Defendants -that they had observed Ms.Kruger fighting -caused the filing of a criminal
charge of disorderly conduct.Id.¶ 108.
Courts have long held that providing false information as a complaining witness is the
exact type of conduct which is contemplated by the first element of a malicious prosecution
claim.See e.g.Handy v.City of Sheridan,2013 WL 1232243,*43 (D.Colo.)(where the Court
held that there “can be no doubt”that a complaining witness contributed to the bringing of
criminal charges).As pled,Defendants could not provide testimony that they had observed Ms.
Kruger fighting -indeed as pled,they did not.Given that the Colorado criminal offense of
Disorderly Conduct is premised in part on the act of engaging in a fight in a public place,
Defendants Schilz and VanSickle’s act of providing a statement that Anna Kruger was engaged
in fighting is sufficient to satisfy the first element of a malicious prosecution claim.
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ii.The Action Against Ms. Kruger was Terminated in Her Favor
Although not discussed in Defendants’brief,Ms.Kruger has alleged that the criminal
charges and resulting case were “ultimately dismissed in [her]favor.Pls.Am.Compl.¶¶157,
163.As the United States Supreme Court has stated,the dismissal of a criminal case by the state
is sufficient to plead the second element of a malicious prosecution claim under §1983.
Thompson v.Clark,142 S.Ct.1332,1340-1341 (2022).Accordingly,Ms.Kruger has sufficiently
pleaded the second element of a malicious prosecution claim.
iii.There Was No Probable Cause to Support Ms. Kruger ’s Prosecution
Nothing in Defendants’Motion questions whether there was a lack of probable cause for
the charges on Ms.Kruger to sustain the third element of a malicious prosecution.As discussed
above,a failure to develop an argument -here a failure to even mention it -should lead the Court
to ignore this request.Nonetheless,Defendants lacked probable cause to state that Ms.Kruger
had engaged in fighting on two bases:1)that she had not engaged in fighting;and 2)that no
officer,including Defendants Schilz and VanSickle,could not have observed her engaged in
fighting as they found her giving medical care to an injured protester.
"The 'probable cause'standard is incapable of precise definition or quantification because
it deals with probabilities and depends upon the totality of the circumstances."Maryland v.
Pringle,540 U.S.366,371 (2003)."Probable cause for an arrest warrant is established by
demonstrating a substantial probability that a crime has been committed and that a specific
individual committed the crime."Wolford v.Lasater,78 F.3d 484,489 (10th Cir.1996).See also
Kerns v.Bader,663 F.3d 1173,1188 (10th Cir.2011)(stating that probable cause is "a
'substantial probability'...that the suspect committed the crime,requiring something 'more than
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a bare suspicion.'").Courts have concluded,for example,that a plaintiff may allege a lack of
probable cause by asserting that a defendant failed to conduct a reasonable investigation,see
Chavez-Torres v.City of Greeley,2015 WL 1850648,at *4 (D.Colo.Apr.21,2015);that a
defendant "sought to 'find a reason'"to arrest a plaintiff,Craft v.Wright,2018 WL 4621738,at
*3 (D.N.M.Sept.26,2018);or that a charge was based on conduct that was legal.Mata v.
Anderson, 685 F. Supp. 2d 1223, 1272 (D.N.M. 2010).
As provided in the Complaint,Defendants Schilz and VanSickle were told that Ms.
Kruger was the one who had been attacked and that she had not engaged in fighting.Pls.Am.
Compl.¶78.Further,all Defendants were in the police headquarters when the
proto-insurrectionists engaged in their campaign of violence.Id.¶64.Simply put,not a single
Defendant was present.When Defendants Schilz and VanSickle did arrive,they found Ms.
Kruger providing medical care to Mx.Townley.Id.¶¶78,90.Nonetheless,they told Defendant
Haferman that they had observed Ms.Kruger “fighting in public.”Id.¶109.Defendants lacked
any basis to believe that there was probable cause that Ms.Kruger had engaged in fighting in
public -indeed Defendants fabricated statements in support of their efforts.Additionally,Ms.
Kruger has alleged that Defendant Haferman lied about the circumstances of Ms.Kruger ’s arrest
-that she had been fighting and resisting arrest -to support criminal charges.Id.¶110.Each
Defendant made knowing misrepresentations as to the facts in order to “find a reason”to arrest
and charge Ms.Kruger to punish her for her conduct.Accordingly,Ms.Kruger has sufficiently
pleaded a lack of probable cause.
However,it is important to not overlook the totality of the story told in this Complaint:
that the Defendants engaged in concerted conduct and associated with violent far-right militia
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members to exact punishment on Black Lives Matter protesters.Defendants’efforts to arrest and
prosecute Ms.Kruger on the basis of her speech and political association is exactly the sort of
conduct for which malicious prosecution is concerned.Defendants conduct was based not on a
substantial probability that Ms.Kruger had engaged in violence,but from a goal of punishing
those that protest police brutality.It’s not simply that Ms.Kruger did not engage in the conduct
for which she was charged,but that Defendants Schilz,VanSickle,and Haferman did not base
their decisions on the probable cause standard,but instead on their personal animus for Ms.
Kruger ’s viewpoint.
iv.Defendants Acted with Malice
In the context of a malicious prosecution claim,"[m]alice is shown if the primary motive
of the defendant was a motive other than a motive to bring to justice a person thought to have
committed a crime."Barton v.City &County of Denver,432 F.Supp.2d 1178,1194 (D.Colo.
2006).Malice may also be “inferred if a defendant causes the prosecution without arguable
probable cause.Stonecipher v.Valles,759 F.3d 1134,1146 (10th Cir.2014).In Bledsoe v.
Carreno,the Court found that the malice element was met through a showing that the defendant
had falsified inculpatory evidence.Bledsoe v.Carreno,53 F.4th 589,615 (10th Cir.2022).In
Chavez-Torres,the Court held that an allegation that police officers failed to provide full and
complete information or that failing to conduct a proper investigation to provide full and accurate
information was sufficient to state a claim for malicious prosecution.Chavez-Torres,2015 WL
1850648, *12 (D. Colo.).
As discussed above,Defendants made knowing false statements related to material
elements of the crimes for which Ms.Kruger was arrested and charged.This alone provides a
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sufficient basis to find that Ms.Kruger has alleged malice.Moreover,Ms.Kruger has alleged
throughout her Complaint that Defendants’motive was to punish Ms.Kruger for her speech and
to side with far-right pro-police militia members.Pls.Am.Compl.¶¶21,22,23,28,29,37,38,
50,51,56,63,64,65,76,79,83,84,88,and 116.This use of the arresting and charging
authority of the police to punish Ms.Kruger for her speech is plainly sufficient to plead malice.
This is clearly an improper motive based not on a desire to bring justice to a person thought to
have committed a crime,but to punish an individual thought to be critical of police.Accordingly,
Ms. Kruger has sufficiently pleaded the fourth element of her claims for malicious prosecution.
v.Ms. Kruger has Pled Damages
Ms.Kruger has also pleaded that she suffered damages as a result of Defendants’
conduct.Id. ¶¶ 158, 164.
The Fourth Amendment prohibits officers from knowingly or recklessly relying on false
b.Plaintiff Piper Townley Has Sufficiently Alleged Conduct Constituting
Malicious Prosecution by Defendants
Piper Townley was subjected to arrest and prosecution on the basis of their political
speech.Defendants Schilz and VanSickle arrested Mx.Townley and provided untrue statements
in support of the filing of charges and Defendant Young manufactured statements about other
Defendants observing Mx.Townley fighting.This was done to punish Mx.Townley for their
political speech.
While Defendant Young has articulated two elements which he contests,the probable=
cause and malice elements,Defendants Schilz and VanSickle again fail to articulate a single
element which they contest.Accordingly,Defendants Schilz and VanSickle should be understood
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to have waived this argument as to Claims 9 and 10.Even a generous reading of Defendants
Schilz and VanSickle’s argument suggests that they only contest the first element of Mx.
Townley’s claims for malicious prosecution.Nonetheless,Plaintiff Townley will address each
element of the malicious prosecution claim for each Defendant.
i.Defendants Schilz,VanSickle and Haferman Caused Mx.Townley’s
Continued Prosecution
Plaintiff Townley has sufficiently alleged that Defendants Schilz and VanSickle caused
Mx.Townley’s prosecution as they were the individuals who arrested Mx.Townley and offered a
false statement that Mx.Townley engaged in fighting.Pls.Am.Compl.¶¶82,114.Plaintiff
Townley has sufficiently alleged that Defendant Young prepared the charges against Mx.
Townley.Id.¶103.These allegations are sufficient allegations for the purpose of the first
element of a malicious prosecution claim.
ii.The Criminal Charges were Terminated in Mx. Townley’s Favor
Although not discussed in Defendants’brief,Mx.Townley has alleged that the criminal
charges and resulting case were “ultimately dismissed in [her]favor.Pls.Am.Compl.¶¶181,
187.As the United States Supreme Court has stated,the dismissal of a criminal case by the state
is sufficient to plead the second element of a malicious prosecution claim under §1983.
Thompson v.Clark,142 S.Ct.1332,1340-1341 (2022).Accordingly,Mx.Townley has
sufficiently pleaded the second element of a malicious prosecution claim.
iii.There Was No Probable Cause of the Continued Prosecution or Filing of
Charges Against Mx. Townley.
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Defendant Young lacked probable cause to support the arrest and charges filed against
Mx.Townley."Probable cause for an arrest warrant is established by demonstrating a substantial
probability that a crime has been committed and that a specific individual committed the crime."
Wolford,78 F.3d at 489.Here,no Defendant had any basis for believing that there was a
substantial probability that Mx.Townley had committed a crime.As provided in their Complaint,
Mx.Townley “had not been fighting.”Indeed,Mx.Townley and others informed various Fort
Collins police officers that they had not been engaged in violence and that it was the
proto-insurrectionists that were the ones attacking them.Pls.Am.Compl.¶¶78,85-88.
Moreover,the Fort Collins police officers,including Defendants Schilz and VanSickle had not
been present when the proto-insurrectionists attacked the Black Lives Matter protesters.Id.¶¶
63-64,75.Nonetheless,Defendants Schilz and VanSickle placed Mx.Townley under arrest and
knowingly lied that Mx.Townley had been engaged in fighting.Id.¶¶82,114.Nonetheless,
Defendant Young swore under oath that officers had observed Mx.Townley engaging in a
physical fight with other protesters.Id.¶104.This is plainly not true.And as plead,Defendant
Young is the individual who manufactured this lie.Id.¶¶ 105, 107.
However,as with Ms.Kruger,the story of Defendants’conduct must be understood in the
context of the entire Complaint.Defendants associated and conspired with a violent right-wing
mob and then used their public office to exact punishment on Mx.Townley for her political
beliefs and association.Read in context,Defendants’actions were done not based on even
arguable probable cause,but instead in an effort to punish those who are critical of policing in
the United States.Accordingly,Plaintiff Townley,both in specific allegations and within the
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Complaint read as a whole,has sufficiently alleged that there was no probable cause for their
arrest and continued prosecution.
iv.Defendants Acted With Malice by Manufacturing Evidence and Pursuing
Charges on the Basis of Mx. Townley’s Speech
As discussed above,in the context of a malicious prosecution claim,"[m]alice is shown if
the primary motive of the defendant was a motive other than a motive to bring to justice a person
thought to have committed a crime."Barton,432 F.Supp.2d at,1194.Malice may also be
“inferred if a defendant causes the prosecution without arguable probable cause.Stonecipher,
759 F.3d at 1146.In Bledsoe v.Carreno,the Court found that the malice element was met
through a showing that the defendant had falsified inculpatory evidence.Bledsoe v.Carreno,53
F.4th 589,615 (10th Cir.2022).In Chavez-Torres,the Court held that an allegation that police
officers failed to provide full and complete information or that failing to conduct a proper
investigation to provide full and accurate information was sufficient to state a claim for
malicious prosecution.Chavez-Torres, 2015 WL 1850648,*12 (D. Colo.).
As discussed above,Defendants made knowing false statements related to material
elements of the crimes for which Mx.Townley was arrested and charged.This alone provides a
sufficient basis to find that Mx.Townley has alleged malice.Moreover,Mx.Townley has alleged
throughout their Complaint that Defendants’motive was to punish Mx.Townley for their speech
and to side with far-right pro-police militia members.Pls.Am.Compl.¶¶21-23,28,29,37,38,
50,51,56,63-65,76,79,83,84,88,and 116.This use of the arresting and charging authority of
the police to punish Mx.Townley for their speech is plainly sufficient to plead malice.This is
clearly an improper motive based not on a desire to bring justice to a person thought to have
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committed a crime,but to punish an individual thought to be critical of police.Accordingly,Mx.
Townley has sufficiently pleaded the fourth element of their claims for malicious prosecution.
v.Mx. Townley Has Alleged Damages
Mx.Townley has also pleaded that they suffered damages as a result of Defendants’
conduct.Id. ¶¶ 188, 193.
2.Piper Townley Has Sufficiently Alleged a Lack of Probable Cause in Their Arrest
"In the context of a false arrest claim, an arrestee's constitutional rights were violated if
the arresting officer acted in the absence of probable cause that the person had committed a
crime."Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012). As discussed above, Plaintiff
Townley’s rights were violated by Defendants Schilz and VanSickle when they arrested Mx.
Townley without any probable cause. Defendants had no personal knowledge that Mx. Townley
had engaged in fighting. Pls. Am. Compl. ¶¶ 63-64, 75. Although Mx. Townley was the one
bleeding, Defendants relied on the statements of violent individuals still holding the flag they
had used to stab people.Id. ¶¶ 78, 80, 84-87. Defendants did not rely on these statements in good
faith, but rather in support of an arrest that they knew had no probable cause.Id. ¶ 83.
3.Plaintiffs’ First Amendment Rights Were Violated Based on Defendants’
Content-Based Restrictions and Arrests
The First Amendment provides that all citizens have a right to hold and express their
personal political beliefs.See Cohen v. California,403 U.S. 15, 24 (1971). Organized political
protest is a form of "classically political speech."Boos v. Barry, 485 U.S. 312, 318 (1988).
"[T]he First Amendment safeguards an individual's right to participate in the public debate
through political expression and political association."McCutcheon v. FEC, 572 U.S. 185, 203
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 13 of 22
(2014). This "reflects a profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open," and the Supreme Court has "consistently
commented on the central importance of protecting speech on public issues."Id.(internal
citations omitted) (collecting cases). Thus courts must "scrutinize carefully any restrictions on
public issue picketing."Id.The Supreme Court "has repeatedly held that police may not interfere
with orderly, nonviolent protests merely because they disagree with the content of the speech or
because they simply fear possible disorder."Papineau v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006)
(citing Cox v. Louisiana, 379 U.S. 536, 550 (1965)).The Supreme Court has expressly held that
"[t]he right to associate does not lose all constitutional protection merely because some members
of the group may have participated in conduct or advocated doctrine that itself is not protected."
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982). To state a claim for a violation of
Free Speech rights on the basis of viewpoint or content, a Plaintiff must allege that the Defendant
restricted speech on the basis of the content of their speech and that such restriction was not
narrowly tailored to a compelling government interest.
Defendants do no engage with the elements of a First Amendment violation, relying
instead on their usual argument that every allegation in the Complaint is conclusory or
speculative. Defendants do not argue that their conduct was not a restriction on Plaintiffs’ ability
to protest nor do they argue that their conduct was narrowly tailored to a compelling government
interest. They instead limply state that this claim is duplicative of Plaintiffs’ retaliation claim and
therefore should be dismissed. However, Courts routinely allow both First Amendment violation
claims and First Amendment Retaliation claims to proceed as they have different elements.See
e.g. Minter v. City of Aurora, 2022 WL 900158, *14 (D. Colo. March 28, 2022). Moreover,
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 14 of 22
Defendants’ conduct infringing on Plaintiffs’ rights exceeded their arrests. Defendants
coordinated with and allowed right-wing militia members to engage in violence to silence
Plaintiffs’ free speech rights.
Plaintiffs have alleged that Defendants violated their rights to free speech and assembly
because Defendants’ conduct restricted their speech on the basis of content and that their conduct
was not narrowly tailored to a compelling government interest. In particular, Plaintiffs have
alleged that Defendants conduct over the course of the protest, from promoting violence by the
right-wing nationalists to arresting Plaintiffs for the content and viewpoint of their speech
amounted to a restriction on their ability to protest - indeed Plaintiffs were certainly unable to
protest from the police station or back of a police vehicle. In Minter v. Aurora, this Court held
that a Complaint which alleged a similar response to Black Lives Matter protests similarly
restricted the Free Speech right of protesters while at the same time finding that a First
Amendment Retaliation claim could also move forward.Id. Indeed, the court in Minter
specifically stated that Aurora police officers labeling protest attendees as “violent, Antifa
agitators” was specifically relevant in its determination.Id. Accordingly, Plaintiffs have
sufficiently alleged that Defendants’ conduct was viewpoint or content-based. Defendants also
lacked a compelling governmental interest in supporting political violence and in arresting
Plaintiffs on the basis of their speech. Lastly, Defendants’ conduct was not narrowly tailored to
any interest. Their conduct was calculated towards silencing Plaintiffs’ speech. Even if
Defendants had a compelling interest, total silencing of protest speech is not a narrowly tailored
response.
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4.Defendants’ Conduct in Targeting Plaintiffs for Arrest on the Basis of the
Viewpoints Constitutes First Amendment Retaliation
“[A]ny form of official retaliation for exercising one’s freedom of speech, including
prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an
infringement of that freedom.”Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000). To state a
First Amendment retaliation claim, a plaintiff must allege: (1) that the plaintiff was engaged in
constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in that activity;
and (3) that the defendant's adverse action was substantially motivated as a response to the
plaintiff's exercise of constitutionally protected conduct.Shero v. City of Grove, 510 F.3d 1196,
1203 (10th Cir. 2007).
If “the plaintiff was engaged in constitutionally protected activity[,]” “the defendant’s
actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity[,]” and “the defendant’s adverse action was substantially
motivated as a response to the plaintiff ’s exercise of constitutionally protected conduct,” then
retaliation in violation of the First Amendment has been established.Id.at 1212. Plaintiffs have
sufficiently pleaded each element of a retaliation claim and therefore, Defendant’s Motion to
Dismiss Plaintiffs’ Thirteenth and Fourteenth claims should be denied.
a.Plaintiffs Were Engaged in Protest
Plaintiffs were engaged in a Black Lives Matter protest on August 8,2020.Pls.Am.
Compl.¶¶13,35,50,56,59,61,and 79.Organized political protest is a form of "classically
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 16 of 22
political speech."Boos v.Barry,485 U.S.312,318,108 (1988).Accordingly,Plaintiffs satisfy
the first element of a retaliation claim.
b.Defendants Arrests of Plaintiffs Are an Injury Cognizable in a Retaliation
Claim
Defendants’conduct in arresting Plaintiffs meets the second element of a Retaliation
claim under the standards set forth in Worrell.See Reichle v.Howards,566 U.S.658 (2012)
("[A]n arrest in retaliation for the exercise of protected speech constitutes an injury cognizable
under our First Amendment jurisprudence.").Plaintiffs have alleged that they were each arrested.
Pls.Am.Compl.¶¶45,82,95.Accordingly,Plaintiffs have sufficiently pleaded the second
element of a Retaliation claim against the Defendants.
c.Plaintiffs Have Alleged that Defendants Were Substantially Motivated by
Plaintiffs’ Speech
Plaintiffs have alleged throughout their Complaint that Defendants’conduct,including
the basis for their arrests,was that Defendants were motivated in their actions because they did
not like the viewpoint that Plaintiffs were expressing.Indeed,Plaintiffs have alleged that
Defendants arrested each of them on the basis of their speech and political association.Id.¶¶38,
50-52,79,84,116,117.This motivation is supported not only by these allegations,but also by
the entire Complaint.From their off-handed comments and writing that Black Lives Matter
protesters were domestic terrorists to their selective enforcement of the law,it is clear that
Defendants were motivated by their anger at the criticism of policing leveled by Black Lives
Matter protesters.And as has become clear over the past several years,police retaliation aimed at
protesters calling for an end to police brutality is far from merely plausible.It is common.
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 17 of 22
Accordingly,Plaintiffs have sufficiently pleaded the third element of a Retaliation Claim.In
doing so, Plaintiffs have sufficiently pleaded each element of a Retaliation claim.
5.Defendants Engaged in Selective Enforcement When Arresting Only Black Lives
Matter Protesters While Right-Wing Protesters Engaged in the Same Conduct Were
Never Charged
For their Fifteenth and Sixteenth claims for relief,Plaintiffs have made claims for
Selective Enforcement under the Equal Protection clause.“In order to prevail on his charge of
selective prosecution,defendant must prove,first,that he has been singled out for prosecution
while others similarly situated generally have not been proceeded against for the type of conduct
forming the basis of the charge against him;and second,that the Government's selection of him
for prosecution was invidious or in bad faith and was based on impermissible considerations
such as race,religion,or the desire to prevent the exercise of constitutional rights.United States
v.Salazar,720 F.2d 1482,1487 (10th Cir.1983).As the 10th Circuit has stated,the constitutional
right to free speech is one of those rights which is considered an impermissible consideration.
Vigil v.Solano,1991 U.S.App.LEXIS 26513,*15;see also Epps v.City &Cnty.of Denver,588
F. Supp. 3d (D. Colo. 2022).
Throughout Plaintiffs’Complaint,it is clear that the Defendants were engaged in a
campaign to punish Plaintiffs and their fellow Black Lives Matter protesters while granting
impunity to the far-right militia members with whom the Defendants associated.Plaintiffs have
identified individuals who were engaged in either the exact same conduct as Plaintiffs or who
were engaged in the conduct of which the Defendants accused Plaintiffs.
a.Defendants Targeted Mr. DeLeon for His Political Speech
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 18 of 22
The Complaint alleges that all the Defendants encountered three far-right pro-police
militia members stabbing Plaintiff DeLeon with a flag and cattle prod,but pulled those
individuals off of Mr.DeLeon and arrested him while not arresting those violent individuals.Pls.
Am.Compl.¶¶43-48.These allegations satisfy the first element of a selective enforcement
claim against each of the Defendants.These three proto-insurrectionists were engaged in the
exact same conduct for which Defendants charged Mr.DeLeon –that is,they were similarly
situated –and yet the Defendants treated Mr.DeLeon differently than they treated these
individuals.Id.¶¶52-56.Moreover,Plaintiff DeLeon has alleged that he was arrested while
these three extremists were allowed to leave on the basis of his speech.Id.¶¶38,50-52,116,
117.Indeed,this is not simple conjecture.The Complaint is replete with allegations that the
Defendants had an intent to punish the Black Lives Matter protesters through their own use of
force and through the condoning of violence by the right-wing extremists.This is made all the
clearer by Defendant Mallory’s statement that “if we break up a fight,then Antifa wins”–
Defendant Mallory’s clunky way of describing protesters who challenge police brutality.This
satisfies the second element of Plaintiff DeLeon’s claim of Selective Enforcement against all
Defendants.
b.Plaintiffs Townley and Kruger Were Subjected to Selective Enforcement of
the Law on the Basis of Their Speech
As with Mr.DeLeon,Plaintiffs Townley and Kruger were arrested for fighting while
those right-wing militia members who had in fact been the aggressors were permitted to leave
without questioning.Defendants were aware that the right-wing militia members had been
engaged in fighting.Id.¶¶77-79,84-88.These individuals were engaged in the exact conduct
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 19 of 22
for which Defendants were falsely charging Plaintiffs Townley and Kruger.These individuals
were accordingly similarly situated.Nonetheless,Defendants did not arrest any of these violent
right-wingers.Id.¶84.These allegations satisfy the first element of the selective enforcement
claims brought by Plaintiffs Townley and Kruger.
As discussed above,the Complaint is replete with allegations that the Defendants had an
intent to punish the Black Lives Matter protesters through their own use of force and through the
condoning of violence by the right-wing extremists.However,Plaintiffs alleged that the basis for
their disparate treatment was their beliefs on police brutality.Id.¶¶38,79,84,116,117.
Plaintiffs have met the second element through this showing that their differing treatment was on
the basis of their political speech.Accordingly,Plaintiffs have sufficiently pleaded the second
element of a Selective Enforcement claim as well.
6.Plaintiffs Have Sufficiently Pled a Conspiracy by Defendants to Deprive them of
their Constitutional Rights
Defendants argue that Plaintiffs have failed to allege action in concert and a meeting of
the minds/agreement between the Defendants.Plaintiffs have sufficiently alleged each of these
elements and accordingly,their claims for conspiracy and under 1985(3)should not be
dismissed.
a.Plaintiffs Have Established that Defendants Had a Common Scheme
Plaintiffs have alleged that Defendants and the various right-wing groups such as the
Three Percenters and the Proud Boys coordinated upon arrival.Pls.Am.Compl.¶21.When
discussing their plans with these right-wing agitators,Defendants would deliberately mute their
body cameras.Id.¶25.When these right wing agitators began confronting Black Lives Matter
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 20 of 22
protesters,Defendant Mallory told the other Defendants that they should retreat because “so long
as the police were present,the groups would not engage in a fight.”Id.¶28.Defendant Mallory
went further,telling the other Defendants that “if we break up a fight,then Antifa wins.”Id.¶29.
Minutes later,Defendant Mallory instructed his officers to retreat so that the right wing agitators
would feel more secure in fighting.Id.¶34.When fighting did occur,Defendant Mallory
instructed his officers to “take it slow.”Id.¶36.Simply put,the Defendants had a plan to target
and punish Black Lives Matter protesters.Id. ¶ 39.
Rarely is a conspiracy going to be as simple as several police officers saying for all the
world to hear that they have a plan to conspire with the Proud Boys to target Black Lives Matter
protesters with violence.But when taken as a whole,Defendants’comments and conduct,as
specifically alleged,indicate a common plan and a common purpose to work with right-wing
extremists to exact violence and punishment on Black Lives Matter protesters,including
Plaintiffs.Plaintiffs allegations are quite specific,providing exact quotes and a defined timeline
of conduct,including communications between Defendants to engage in certain conduct and
efforts to conceal other conversations with Defendants’ co-conspirators.
b.Defendants engaged in Concerted Action to Achieve Their Goals.
Plaintiffs have also alleged specific actions taken by Defendants to achieve their goals.
Plaintiffs have alleged that Defendants removed themselves from the protests so that the
right-wing groups could engage in violence without fear of consequence.Id.¶28,34-36,63-65.
This action,removing themselves from the protests so that right-wing agitators could engage in
violence was the concerted action of the Defendants in furtherance of their efforts to deny
Plaintiffs of their civil rights.
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 21 of 22
Respectfully submitted this 28th day of November 2022.
E. Milo Schwab
E. Milo Schwab
2401 S Downing
Denver, CO 80210
(303) 888-4407
milo@ascendcounsel.co
ATTORNEY FOR PLAINTIFFS
Case No. 1:22-cv-01983-SKC Document 27 filed 01/03/23 USDC Colorado pg 22 of 22