HomeMy WebLinkAbout2023-cv-1343 - Elias V. V. City Of Fort Collins, Et Al. - 049 - Pl's Resp To City And Heaton Mot Dismiss 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-1343-GPG-KAS
HARRIS ELIAS,
Plaintiff,
v.
CITY OF FORT COLLINS,
JASON HAFERMAN,
SERGEANT ALLEN HEATON, and
JASON BOGOSIAN,
Defendants.
______________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANTS CITY OF FORT COLLINS’ AND SERGEANT
HEATON’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP
12(b)(6) & REQUEST FOR QUALIFIED IMMUNITY [ECF 22]
______________________________________________________________________________
INTRODUCTION
This is a civil rights action arising from the unlawful arrest and malicious prosecution of Plaintiff
Harris Elias by the City of Fort Collins (“the City”) and its police officers. The allegations in Mr. Elias’s
complaint – which at this stage of the proceedings are presumed to be true – paint a detailed and disturbing
picture of an overzealous FCPS police officer (Haferman) incentivized and enabled by his chain of
command at FCPS to accumulate as many DUI arrests as possible, even if that meant arresting the plainly
innocent (like Mr. Elias) without probable cause (like with Mr. Elias). The allegations are not conclusory
or broad; they are detailed, directly relevant, reflect statistics and admissions from FCPS public statements
and internal investigations, and they are the product of the synthetization of thousands of pages of still
extremely incomplete data obtained by Plaintiff’s counsel through open records requests, Colorado
Criminal Justice Records Requests, media reports, and from previous client accounts, over the preceding
multiple years.
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PRELIMINARY MATTERS AND PROCEDURAL POSTURE
Mr. Elias is dismissing former Corporal Jason Bogosian from this case as a defendant named in
his individual capacity, and a stipulation to this effect is expected to be filed shortly. The remaining issues
at issue for this Response are thus: (1) whether Plaintiff has adequately pleaded a Monell claim against
the City; (2) whether Plaintiff has adequately pleaded his individual claim against Sergeant Heaton ; and
(3) whether, even if adequately pleaded, Defendant Heaton may nevertheless extinguish Plaintiff’s
individual § 1983 claims against him at the outset by asserting qualified immunity.
STANDARD OF REVIEW
To state a claim, a plaintiff’s complaint must “show[] that the pleader is entitled to relief.” Fed.
R. Civ. P. (8)(a)(2). This means that the plaintiff must allege enough factual matter, taken as true, to make
his “claim to relief . . . plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “This
is not to say that the factual allegations must themselves be plausible; after all, they are assumed to be
true. It is just to say that relief must follow from the facts alleged.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (citing Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247
(10th Cir. 2008)). “If a complaint explicitly alleges every fact necessary to win at trial, it has necessarily
satisfied this requirement. If it omits some necessary facts, however, it may still suffice so long as the
court can plausibly infer the necessary unarticulated assumptions.” Id.
RELEVANT FACTUAL BACKGROUND
Because his well-pleaded and rather detailed 81-page Complaint is quite not, Plaintiff will here
do all that he can to make this summary brief: On December 3, 2021, Defendant Officer Haferman, in
eager pursuit of the accolades and encouragement given by his superiors at FCPS to those who made the
most DUI arrests, wrongfully seized, arrested, detained, searched, and jailed the observably innocent Mr.
Elias. Complaint, ECF 1-1, ¶¶104-22. With Defendant Sergeant Heaton’s live guidance and directives (by
phone at time of initial arrest), id. at ¶104, and Defendant Heaton’s on-scene participation and
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collaboration (moments later at the hospital), Mr. Elias was subjected to an intrusive blood test and
knowingly wrongfully charged by the Defendant officers with DUI and Child Abuse. Id. at ¶¶116-21. Mr.
Elias’s blood test results, received over five months later, and after being sent out by FCPS to be extra
tested for every single alcohol, drug, and medicine that could be physically tested for on earth (far beyond
the normal 14-category drug testing panel CBI would otherwise conduct), came back with nary a
substance detected. Id. at ¶¶154-56. Mr. Elias’s criminal case was dismissed. Id. at ¶151.
As it happens, Mr. Elias’s experience with Haferman and FCPS was neither unusual nor unique.
In fact, at the time Plaintiff encountered Haferman, Haferman had held the “DUI Officer” position at
FCPS for more than a year and throughout that time been regularly stopping cars without reasonable
suspicion and making arrests without probable cause. Id. at ¶19. FCPS had no problem with this – as they
could receive more funding (from both state and federal agencies) as a result of having more DUI arrests,
id. at ¶15, and were also able to win awards, positive publicity, and even timed DUI arrest competitions
put on by nationally known organizations (like MADD) as a result of being an agency that posted high
DUI arrest numbers. Id. There was just one big problem: No one – not at FCPS and certainly not Haferman
himself – paid any care to the quality of those DUI arrests. Inevitably as a result, within just a few months
of his start as FCPS’s “DUI Officer,” and certainly by no later than March of 2021,1 Haferman had already
produced substantial waves of constitutional concern of which any reasonable supervisor providing even
1 Haferman’s propensity for violating civil rights and making wrongful arrests was likely plainly
observable long before this March 2021 date, however, Plaintiff does not have access to
records/videos of Haferman’s police work from prior to January of 2021, for reasons that are detailed
in the Complaint. Id. at ¶¶165-67. In addition to those reasons, it should be added that the City has
subsequently made it prohibitively expensive for Plaintiff’s counsel to request any reports/videos of
Haferman’s prior police work, claiming that for each they now must spend hours and hours of time
blurring faces and redacting names prior to release, demanding full payment in advance for the
claimed time expenditure. As a result, now, to try and obtain just one case’s video + report (assuming
the case hasn’t been already sealed), the City is quoting Plaintiff’s counsel a per case price of hundreds
of dollars.
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the most cursory of supervision would have recognized as indication that (among other problems)
Haferman had, in his quest to top the various DUI arrest scoreboards, been regularly stopping, seizing,
searching, and arresting innocent people with reckless abandon for their constitutional rights, and with
complete disregard for both Colorado law, and written FCPS policy , id. at ¶¶22-30, while writing reports
that contained lies and training issues that would have been easily identified by watching just one of his
BWC videos. Id. at ¶¶19-41. But no one at FCPS was providing even cursory supervision to Haferman,
because no one at FCPS cared. Id. at ¶38, ¶41. They were benefitting from his high DUI arrest numbers
too. Id. at ¶15. And so on he went. Id. at ¶42. Red flags abounded with Haferman for 9 more months
(detailed in over 20 pages of Plaintiff’s Complaint), without intervention or comment from anyone at
FCPS, and instead (according to Haferman) was affirmed by his chain of command’s encouragement and
affirmation of the “great work” he was doing, leading up to (and continuing well after) the day that
Haferman (with Heaton’s participation and assistance) encountered and wrongfully arrested Mr. Elias in
December 2021. Id.
In those months leading up to Plaintiff’s arrest, at least a dozen other drivers were wrongfully
arrested for DUI by Haferman and had chemical test results come back showing no impairing substance
detected, and over and over again, chain of command at FCPS (by their own claims)2 would “internally
2 As detailed in the Complaint, FCPS’s statements to the media imploring the public to “not fall for
the salacious headlines” and insisting that Haferman’s entire chain of command at FCPS had always
been internally reviewing all of his “none detected” chemical test result DUI arrests and finding
nothing of concern is highly implausible. Id. at ¶54-55. Data from the BWC videos in the wrongful
DUI arrest cases that the undersigned was able to gain access to reveals no supervisor watched his
videos until the press began running stories on him in May of 2022, and the findings ultimately made
by FCPS’s Professional Standards Unit after being forced by public pressure to open an investigation
into Haferman’s DUI arrests describe most all of the behavior related to Haferman’s repeated
constitutional violations being easily observable on video. In any event, Plaintiff has pleaded both
theories of liability (that is, the theory that FCPS provided literally zero supervision/training and the
theory that FCPS knew exactly what Haferman was doing and simply agreed
with/condoned/encouraged it), as is expressly permitted at this stage of proceedings by FRCP 8.
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review” such arrests and approve of each and every one. Id. at ¶¶39-45; ¶167. Eventually the press got
involved. Id. at ¶167. Reporters wanted to know how one (purportedly highly trained) officer could have
been so completely wrong about something so important – without anyone at FCPS intervening – so many
times. Id. at ¶¶167-74. Rather than apologize – and rather than just merely ask everyone to sit tight while
FCPS took a closer look – FCPS’s Chief responded by instead doubling down on the wrongful DUI arrests,
claiming that Haferman’s DUI investigations and decision-making were beyond reproach and further
proclaiming that the drivers he had wrongly arrested weren’t innocent, that they were simply all on
synthetic street drugs that science couldn’t test for. Id. at ¶¶185-90.
And so, as emboldened as ever by FCPS’s continued support, Haferman quite naturally continued
making more wrongful DUI arrests. Id. at ¶174. Various judges continued having to make findings at
various hearings regarding their grave concerns that Haferman’s sworn testimony continued to be
contradicted by video evidence and that he appeared to not be a credible witness. Id. at ¶202, ¶37(n).
Finally, in September of 2022, the District Attorney informed FCPS Chief Swoboda it would no longer
prosecute any of Haferman’s cases due to his demonstrated lack of integrity and blatant disregard for the
constitutional rights of citizens. Id. at ¶210. At this, FCPS abruptly reversed course, put him on leave, and
opened an investigation culminating in FCPS being forced to admit (i) that Haferman’s own videos
showed he had long been being untruthful in his reports, (ii) that he had long been administering roadsides
incorrectly, and (iii) that he had long been arresting innocent people without probable cause. Id. at ¶212.
On these facts, the City and Heaton file a Motion to Dismiss for failure to state a claim as to Monell, and
they briefly assert qualified immunity as to Heaton. For the reasons set forth below, their Motion should
be denied.
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ARGUMENT
I. Mr. Elias’s has more than adequately pleaded abundant specific facts to meet FRCP 12(b)(6)
early pleading and notice standards for a Monell claim.
To establish liability under Monell, a plaintiff must show “(1) the existence of a municipal custom
or policy, and (2) a direct causal link between the custom or policy and the violation alleged.”
Hollingsworth v. Hill, 110 F.3d 733, 742 (10th Cir. 1997). There are five different types of municipal
liability. They are:
(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 fo rce 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.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotation and alteration marks
omitted); see also Hinkle v. Beckham Cty. Bd. of Cty. Comm’rs, 962 F.3d 1204, 1239 (10th Cir. 2020).
As it happens, Plaintiff has alleged facts supporting all five types of municipal liability here. He has
detailed a scheme of profit and promotion wherein FCPS officers are rewarded for baseless DUI arrests,
where their arrests of innocent people are aggressively and vociferously defended publicly by the Chief
of Police, ECF 1-1 at ¶¶187-200, and where absolutely no one in any supervisory capacity imposed any
form of consequence on any FCPS officers for the repeated wrongful arrests of citizens that they were
observing their subordinates make. Id. at ¶¶201, 205, 206. Plaintiff has also provided specific allegations
with corroborative detail regarding an unconstitutional custom and practice trained at FCPS (according to
Haferman) wherein a person’s invocation of their constitutional right to remain silent during a police
encounter itself was treated as an indication of drug/alcohol impairment because it “showed poor judgment
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in how to interact with police.” Id. at ¶207.3 Plaintiff has further pleaded in extensive detail both the fact
of and various specifics regarding at least 14 separate similar wrongful DUI arrest instances in just a one-
year span further corroborating FCPS’s persistent and deliberate failure to train and supervise with respect
to Haferman which Plaintiff has alleged quite foreseeably enabled Haferman to inflict the constitutional
violations that he and Heaton personally did on December 3, 2021 to Mr. Elias. Id. at ¶¶37-53.
“Pleading a municipal policy, custom, or practice is like pleading the breach element of negligence –
which is also ultimately a question of fact for the jury.” Griego v. City of Albuquerque, 100 F.Supp.3d
1192, 1213 (D. N. Mex. Apr. 11, 2015). Although ordinarily a plaintiff must demonstrate a pattern of
similar constitutional violations by untrained employees in order to satisfy the deliberate indifference
standard, “in a narrow range of circumstances, a pattern of similar violations might not be necessary to
show deliberate indifference.” Id. (citing Connick v. Thompson, 563 U.S. 51, 62 (2011)). Deliberate
indifference may be found “if a violation of federal rights is a ‘highly predictable’ or ‘plainly obvious’
consequence of a municipality’s action or inaction, such as when a municipality fails to train an employee
in specific skills needed to handle recurring situations, thus presenting an obvious potential for
constitutional violations.” Id., quoting Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir. 1998), citing
Brown, 520 U.S. at 409; see also Canton, 489 U.S. at 390 and n.10. Yet here Plaintiff has, in quite a bit
of detail, pleaded both a pattern of similar violations by the untrained and unsupervised Haferman (14
instances in one year) preceding and succeeding his arrest of Mr. Elias, and he has alleged facts related to
FCPS’s failure to train and supervise Haferman with respect to specific skills needed to handle recurring
situations that presented obvious potential for constitutional violations – namely: That there were at least
3 It is a “basic – and itself uncontroversial – principle” that “to punish a person because he has done
what the law plainly allows him to do is a due process violation ‘of the most basic sort,’” see United
States v. Goodwin, 457 U.S. 368, 372 (1982) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363
(1978)), and for a state actor “to pursue a course of action whose objective is to penalize a person ’s
reliance on his legal rights is ‘patently unconstitutional.’” Bordenkircher, supra (citing Chaffin v.
Stynchcombe, 412 U.S. 17, 32-33, n.20 (1973)).
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three major problems plainly observable as early as March 2021 to anyone bothering to supervise him:
(1) that Haferman was regularly writing reports in support of his DUI arrests that consistently contained
lies and exaggerations that were obviously contradicted by his and other officers’ BWC videos; (2) that
Haferman was not administering SFSTs correctly to citizens and even still would lie about nonexistent
“clues” of impairment from the same in his reports; and (3) He was regularly muting and deactivati ng his
bodyworn camera during his citizen contacts and arrests, in violation of FCPS policy and Colorado law.
ECF 1-1 at ¶27.
Plaintiff has alleged in his Complaint plainly observable facts revealing an officer clearly engaged in
the repetitive violations of citizens’ rights and who was demonstrating over and over again across multiple
components of his job that without intervention he would only grow bolder in the frequency and nature
of his repetitive violations of citizens’ rights (which he in fact did). Id. at ¶30(d)-(h). Plaintiff has alleged
in factual detail how FCPS was aware of this and chose to do nothing about it, id. at ¶28, and he has
alleged in factual detail how (in the alternative, although for numerous reasons detailed in the Complaint,
this is highly improbable), by FCPS’s own public admissions and statements, Haferman’s supervisors had
been reviewing Haferman’s police work in every “none detected” test result red flag incident, and they
had all, all the way up the chain of command elected to ratify the misconduct in each. Id. at ¶¶184-87.4
4 Plaintiff has also alleged how they also walked all these false claims back a few months later.
Specifically, he alleged how following their initial public campaign of aggressively defending
Haferman’s DUI arrests after the press began putting pressure on FCPS to account for his misconduct,
FCPS abruptly changed its tune, opened an IA investigation into him, and put him on leave solely
because the District Attorney’s Office on September 1, 2022 informed FCPS they would no
longer even prosecute Haferman’s cases due to the ongoing and uncorrected issues with his
credibility and repeated violations of citizens’ constitutional rights . ECF 1-1 at ¶210-11. Three
months after that, Swoboda announced that Haferman had resigned and that he nevertheless intended
to terminate him because FCPS had now (over a year later, once they were forced to by outside
agencies and public pressure) compared his reports to his videos (or lack thereof) and saw that he had
obviously been lying in his reports, lying on the stand, plainly doing roadsides incorrectly, and was
repeatedly arresting people without probable cause. Id. at ¶212.
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The City contends broadly that “Plaintiff supports his claim against the City on generalized
allegations that it had a duty to train and supervise Defendant Haferman and it was somehow aware of his
propensity for wrongfully arresting citizens to increase its DUI numbers” but that “[t]hos e allegations …
are factually unsupported in the Complaint, conclusory, and improper under federal pleading standards.”
Motion to Dismiss, ECF 22, p. 12. These contentions are inaccurate. Plaintiff detailed more than a dozen
specific instances of Haferman violating citizens’ constitutional rights in the months leading up to his
wrongful arrest of Mr. Elias and he detailed abundant notice to specific supervisory personnel (both real
and constructive) at FCPS that FCPS’s Chief subsequently claimed to be personally aware of. ECF 1-1,
at ¶¶184-87. Still, that wasn’t all. Plaintiff pleaded numerous other specific red flags regarding the threat
Haferman presented to the citizens he was policing, long plainly observable to anyone in any supervisory
capacity at FCPS who might have dared to provide even the barest minimum of supervision. The facts
alleged in ¶30 of Plaintiff’s Complaint details just one of countless such examples.
The purpose of Rule 12(b)(6) is not to resolve factual disputes, but simply “to test whether, as a
matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true.”
Grove v. Skyline Machine & Supply Inc., 2006 WL 2982634, *1 (D. Colo. Oct. 17, 2006) (citations
omitted.). And the reality here is that if even just half of the allegations in Plaintiff’s Complaint are true,
a jury could easily find the policies, customs, and indefensible ongoing refusals at FCPS to train or
supervise Haferman despite his very obvious and very loud ongoing demonstrations of an innate
determination to regularly and recklessly violate the constitutional rights of citizens in nearly everything
he did as a police officer to be choices that the City made which alone or together establish Monell liability.
It was the City’s obligation to train and supervise Haferman, and the City’s deliberate and knowing
choices made here with respect to Haferman were the impetus and core moving force behind the
constitutional violations (wrongful arrest and malicious prosecution) that Haferman and Heaton inflicted
upon Mr. Elias on December 3, 2021. Plaintiff’s allegations are about as far as they can get from
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“conclusory.” And not to beat a dead horse, but in case it hasn’t been adequately emphasized enough,
some of the actual quotes from Haferman that Plaintiff pleaded in his Complaint include those made in
¶205, worth repeating here in full:
When interviewed by FCPS’s Professional Standards Unit in the summer of 2022,
Haferman further solidified Plaintiff’s Monell claims, when he stated that throughout his
tenure as FCPS’s DUI Officer he “believed he was doing good work” and that he “didn’t
have any reason to believe he wasn’t doing good work based on no supervisors or experts
in the field saying otherwise.”
It normally takes months of discovery and depositions to get an admission like this one; namely, a
Defendant admission that so clearly establishes a City’s municipal liability on a claim of failure to
supervise/train, and yet here Plaintiff (along with 4 other Plaintiffs) already has it at the exceedingly lower
detail-pleading stage of a FRCP 12(b)(6) Motion to Dismiss before discovery has even started. And
Plaintiff still has even more than that in his Complaint, including being able to plausibly allege that the
very first time anyone at FCPS bothered to look at what Haferman was doing – namely, when the PSU
took over to do what Haferman’s entire chain of command had for over a year repeatedly chosen to not
do – that it was forced to admit that Haferman “appeared to have ‘a disregard for accurate reporting and
poor attention to detail,’” id. at ¶202, as well as multiple training issues (observable on video) in addition
to several ongoing (repetitive) policy violations affecting nearly every single aspect of his police work.
Id. at ¶¶201-02, ¶206.
Suffice it to say, Mr. Elias has provided fair notice to the City on the grounds for which he is suing
it and he has alleged facts supporting all the elements necessary to establish his entitlement to relief under
Monell. To entertain the arguments made by Defendants in their Motion to Dismiss would require the
reader to ignore vast swaths of Mr. Elias’s well-pleaded complaint while also weighing in on and resolving
– without the benefit of discovery – dozens of factual disputes that the Defendants attempt to improperly
raise in a 12(b)(6) motion to dismiss. The motion must be denied.
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II. Defendant Heaton’s claim that Mr. Elias failed to allege personal participation as to his
Fourth Amendment claim5 is also without merit.
Heaton characterizes Mr. Elias’s claim against him as being solely based on Heaton’s “supervisory
position over Defendant Haferman.” Motion to Dismiss, ECF 33, p.5. This is only partly correct. Mr.
Elias is suing Heaton based on theories of both personal and supervisory liability. See Brown v. Montoya,
662 F.3d 1152, 1163-64 (10th Cir. 2011) (“A § 1983 defendant sued in an individual capacity may be
subject to personal liability and/or supervisory liability”). Plaintiff agrees that those facts he’s alleged
regarding Heaton’s supervisory responsibilities, real and constructive notice of Haferman’s constitutional -
right violating propensities, and various failures to train or supervise pertain to, and are essentially part
of, the above-discussed Monell claim against the City. But Defendant Heaton also personally participated
in the Fourth Amendment violations Plaintiff Mr. Elias suffered that night. And for all of that direct,
personal participation, Plaintiff has adequately pleaded against Heaton individual claims for violating his
Fourth Amendment rights.
To establish supervisory liability against an individual defendant, a plaintiff must establish “a
deliberate, intentional act by the supervisor to violate constitutional rights.” Jenkins v. Wood, 81 F.3d 988,
994-95 (10th Cir. 1996). The supervisor “must be personally involved in the constitutional violation and
5 Note/Preliminary Issue: Plaintiff realized while closely reviewing his Complaint for this Response
that while he pleaded the specific facts as to Defendant Heaton’s personal participation in Mr. Elias’s
claim for malicious prosecution, Plaintiff did not expressly list later in the claims section of the
Complaint that his malicious prosecution claim was being brought against both Defendant Haferman
and Defendant Heaton. He will be filing a Motion to Amend his Complaint subsequently to correct
this, and as a result of that error, Defendants’ currently pending Motion to Dismiss understandably
does not make any argument pertaining to Heaton and the malicious prosecution claim. Similarly,
despite pleading all the facts to support the claim, Plaintiff mistakenly did not list that his state
constitutional § 13-21-131, C.R.S. claim for unlawful seizure was, like his § 1983 unlawful seizure
claim, brought against Heaton. Since these issues will have to be litigated separately, Plaintiff will
limit his argument here to solely responding to the arguments related to whether he adequately
pleaded facts establishing Heaton’s liability as to the § 1983 unlawful seizure claim.
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a sufficient causal connection must exist between the supervisor and the constitutional violation.” Serna
v. Colo. Dep’t of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006). Plaintiff agrees with Defendants that
to establish a supervisory liability claim pursuant to § 1983, Plaintiff must assert that the supervisor: (1)
personally participated in the conduct; or (2) exercised control or direction over it; or (3) failed to
supervise it; or (4) failed to train; or (5) tacitly authorized the conduct that resulted in a constitutional
deprivation. Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008); Motion to Dismiss, ECF 33, p.6.
Plaintiff has alleged all of these facts with respect to Defendant Heaton. He has alleged that after
Mr. Elias requested a breath test and was taken to the station to do it, that Haferman (knowing already
that Plaintiff would blow zeroes) called his supervising Sergeant (Heaton) and discussed with him a plan
to deny Mr. Elias his breath test and instead take him to the hospital for medical care on his knee. ECF 4,
¶104. Heaton directed this plan and even met Haferman at the hospital to join him in executing it. Id. at
¶¶113-14. Plaintiff has alleged that Heaton deliberately did not activate his BWC for the encounter,
knowing that they were going to be violating Mr. Elias’s constitutional rights, Colorado law, and FCPS
policy, id. at ¶114, and then he went and received directly from Mr. Elias his formal complaints re:
Haferman’s unlawful seizure, search, and use of excessive force, during which time Heaton personally
observed Mr. Elias to be “sober, coherent, articulate, and showing no indication of impairment
whatsoever, not even to the slightest degree.” Id. at ¶115. Plaintiff has alleged that Heaton knew that he
was both directing and participating in “yet another wrongful DUI arrest in a long line of wrongful
Haferman DUI arrests” but that he nevertheless “did nothing to intervene or stop it, despite having the
opportunity and ability” (and duty) to do so. Id. at ¶115. Plaintiff has alleged that Heaton “was responsible
for supervising Officer Haferman over the period that he made the repeated wrongful DUI arrests at issue
in this Complaint,” that he “personally participated in or otherwise observed several of the wrongful DUI
arrests preceding Plaintiff’s arrest,” id. at ¶11, and that he was also, as described above, quite personally
involved and participatory in the Fourth Amendment violations inflicted upon Mr. Elias, namely the
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unlawful seizure and unlawful detention of Mr. Elias along with the unlawful search and seizure of Mr.
Elias’s blood. Id. at ¶¶121-22.
Plaintiff was even able to identify in his Complaint – despite having extremely incomplete
information at this early pleading stage – specific occasions prior to his arrest in which Sergeant Heaton
admitted not just constructive, but actual notice of the fact that Haferman was wrongfully arresting
innocent people for DUI and who were having their blood test results come back with nothing detected,
see, e.g., id. at ¶31, and that Heaton was not just doing nothing to intervene, but as witnessed in subsequent
wrongful DUI arrests leading up to and then including Mr. Elias’s own wrongful DUI arrest, that he was
instead regularly condoning it and assisting Haferman in covering it up. Id. at ¶¶31-32, ¶¶113-22, ¶159.
Despite all this, Defendant Heaton states in his Motion to Dismiss, “[t]here is no information to suggest
Sergeant Heaton had any sort of ‘notice,’ especially regarding the specific arrest of Plaintiff. Motion to
Dismiss, ECF 33, p.9. False. Not only has Plaintiff pleaded specific facts as to that notice, but he’s also
pleaded the fact of Haferman calling Heaton right as the constitutional violations were kicking off in
Plaintiff’s case to gain Heaton’s advice, permission, and personal assistance in the unlawful endeavor. Id.
at ¶104, ¶¶112-16. Taken as true, these facts are more than sufficient to show individualized supervisor
liability as to Heaton, i.e. to show that he “personally directed the violation or had actual knowledge of
the violation and acquiesced in its continuance,” which is all that the law requires. Hinkle v. Beckham
County Board of Commissioners, 962 F.3d 1204, 1226 (10th Cir. 2020).
C. Defendant Heaton is not entitled to qualified immunity.
Defendant Heaton dedicates little time to articulating why or how he might be entitled to qualified
immunity (one page) and Plaintiff will do the same. To overcome qualified immunity, Plaintiff must have
alleged facts in his Complaint that establish the Defendant violated a constitutional right6 and that the
6 As noted above, Plaintiff neglected to include Defendant Heaton in the listed claims section at the
end of his Complaint under the § 13-21-131, C.R.S. state constitutional right violation cause of action,
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right was clearly established at the time of the conduct. Plaintiff has so alleged such facts with respect to
the plenary Fourth Amendment violations he experienced that night, and, for each such form of Fourth
Amendment violation, the particular right at issue was clearly established.
1. The right to be free of unreasonable seizure is clearly established.
Plaintiff has pleaded that he was subjected to an unreasonable seizure and arrest by Haferman that
Heaton both directed and personally participated in. In addition to actually being specifically written out
in the Fourth Amendment itself, it has long been established that officers may not arrest or otherwise
subject an individual to extended detention without probable cause. U.S. v. Davis, 94 F.3d 1465, 1468
(10th Cir. 1996); see also Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (“In the context of an
unlawful arrest our [qualified immunity] analysis is simple, for the law was and is unambiguous: a
government official must have probable cause to arrest an individual.”); see also Holland ex rel. Overdorff
v. Harrington, 268 F.3d 1179, 1196 (10th Cir. 2001) (“It is also clearly established that police use of force
in seizing and detaining a person, particularly a bystander not suspected of any wrongdoing, must be
justified under all of the circumstances.”); U.S. v. Espinosa, 782 F.2d 888, 890 (10th Cir. 1986) (An arrest
is “a seizure characterized by highly intrusive or lengthy search or detention”).
Plaintiff has pleaded the categorical and obvious absence of probable cause in his case and in over a
dozen wrongful Haferman DUI arrests to precede his, and, he has pleaded plenary specifics as to Heaton’s
personal, actual, and (for likely some of the prior wrongful arrests due to Heaton’s ongoing willful failure
to supervise/intervene) constructive knowledge of the same. Plaintiff has also pleaded that he was
subjected to an intrusive, extended seizure (transport to hospital for blood draw and three days in jail)
and will be filing a motion to amend that error. It is worth brief re -mention of that item here due to
the fact that qualified immunity is expressly disallowed as a defense to claims of state constitutional
right violations, and so at this early pleading s tage it isn’t particularly practical to spend extended
time on the issue of whether qualified immunity might apply to the parallel § 1983 claim alone since
the §13-21-131 state constitutional claim would proceed forward into discovery regardless.
Case No. 1:23-cv-01343-GPG-KAS Document 49 filed 11/29/23 USDC Colorado pg 14 of
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which Defendant Heaton both first personally directed Haferman to do, and which he then moments later
showed up on site and assisted Haferman in doing for the entire period thereafter. Qualified immunity
offers no shelter to such brazen and knowing misconduct.
2. The right to be free of unreasonable search is clearly established.
“The [Fourth] Amendment prohibits ‘unreasonable searches’ and our cases establish that the
taking of a blood sample or the administration of a breath test is a search.” Birchfield v. North Dakota,
136 S. Ct. 2160, 2173 (2016) (citations omitted). Blood tests are “searches involving intrusions beyond
the body’s surface,” and these searches have long been considered particularly invasive with particularly
heightened implications for “interests in human dignity and privacy.” Id. at 2183 (citations and quotations
omitted). Probable cause (or a warrant) is, again, long established as being required before law
enforcement can subject a person to such an intrusive search. Id.; Missouri v. McNeely, 569 U.S. 141,
151-52 (2013).
Plaintiff has pleaded that probable cause did not exist to subject him to such a search. Plaintiff has
pleaded that the absence of such probable cause was immediately apparent to all involved, including
Defendant Heaton personally. Plaintiff has pleaded that Defendant Heaton recognized the issues related
to the absent probable cause and that rather than intervening to stop the ongoing constitutional violation,
he made certain to violate Colorado law and FCPS policy by not activating his BWC video while
interacting with Plaintiff (and deliberately not making any record of Plaintiff’s formal complaints made
to him at the hospital re: the ongoing constitutional violations, again in violation of FCPS policy and
Colorado law) and instead gave Haferman directions, permission, and suggestions for how to best effect
this unreasonable search and continued unreasonable seizure upon the helpless Mr. Elias. Qualified
immunity does not apply. Defendants’ Motion must be denied.
Respectfully submitted this 29th day of November, 2023.
Case No. 1:23-cv-01343-GPG-KAS Document 49 filed 11/29/23 USDC Colorado pg 15 of
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/s/ Sarah Schielke
Sarah Schielke
The Life & Liberty Law Office LLC
1209 Cleveland Avenue
Loveland, CO 80537
P: (970) 493-1980
E: sarah@lifeandlibertylaw.com
Counsel for Plaintiff
CERTIFICATE OF SERVICE
This is to certify that on November 29, 2023, a true and accurate copy of the foregoing Response has been
sent to the following parties by PACER/ECF:
Mark Ratner
Robert Weiner
Katherine Hoffman
Hall & Evans, LLC
Attorneys for Defendants City of Fort Collins
and Sergeant Allen Heaton
Yulia Nikolaevskya
Jonathan Abramson
Kissinger & Fellman, P.C.
Attorneys for Defendant Jason Haferman
/s/ Sarah Schielke
Case No. 1:23-cv-01343-GPG-KAS Document 49 filed 11/29/23 USDC Colorado pg 16 of
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