HomeMy WebLinkAbout2023-cv-1339 - Groves V. V. City Of Fort Collins, Et Al. - 049 - Pl's Resp To City, Heaton, Bogosian Mot Dismiss 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-1339-RM-STV
DERRICK GROVES
Plaintiff,
v.
CITY OF FORT COLLINS,
JASON HAFERMAN,
SERGEANT ALLEN HEATON, and
JASON BOGOSIAN.
Defendants.
______________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANTS CITY OF FORT COLLINS, SERGEANT
ALLEN HEATON AND JASON BOGOSIAN’S MOTION TO DISMISS PLAINTIFF’S
COMPLAINT PURSUANT TO FRCP 12(b)(6) & REQUEST FOR QUALIFIED IMMUNITY
[ECF 42]
______________________________________________________________________________
INTRODUCTION
This is a civil rights action arising from the unlawful arrest and malicious prosecution of Plaintiff
Derrick Groves by the City of Fort Collins (“the City”) and its police officers. The allegations in Mr.
Groves’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 arrest s as possible, even if that meant arresting the
plainly innocent (like Mr. Groves) without probable cause (like with Mr. Groves). 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
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Criminal Justice Records Requests, media reports, and from previous client accounts, over the preceding
multiple years.
PRELIMINARY MATTERS AND PROCEDURAL POSTURE
Mr. Groves is dismissing Sergeant Heaton and Corporal Jason Bogosian from this case as named
defendants sued in their individual capacity, and stipulations to this effect are expected to shortly be filed.
As a result, the sole remaining issue for this Response is whether Plaintiff has adequately pleaded in his
Complaint (ECF 1-1) a Monell claim against the City.
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 71-page Complaint is quite not, Plaintiff will here
endeavor to make this summary brief: On April 7, 2022, 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. Groves.
Complaint, ECF 41, at ¶¶24-88. Just a few weeks prior to arresting Mr. Groves, Haferman and FCPS had
received and reviewed Harris Elias’s “none detected” blood results (another wrongful DUI arrest victim
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of Haferman and FCPS in a long line of such victims, see, e.g., Elias v. City of Fort Collins, et al, 23-cv-
1343-GPG-KLM). Id. at ¶60. A month before that, a Larimer County judge had found Haferman to be
literally not credible as a witness in court. Id. Haferman was utterly unencumbered by worry of any
consequences to him for his now very regular misconduct, however. Id. He observed Mr. Groves to be
clearly and observably unimpaired. Id. at ¶68-70. He watched as Mr. Groves walked normally and spoke
normally, all without indication of impairment, even to the slightest degree. Id. Then he learned that Mr.
Groves was on probation. Id. at ¶65. He decided then and there that he would arrest him on yet another
baseless DUI hunch, one that was once again (for what was at least the 14th time in under a year) utterly
contradicted by all available evidence and observations. Id. at ¶¶65-80. He aggressively interrogated Mr.
Groves (without Miranda advisement) endeavoring to get some kind of admission to even long past drug
or alcohol use. Id. at ¶¶71-73. He was unsuccessful. Id. Mr. Groves told him more than six times clearly
and unequivocally that he was extremely sober, extremely unimpaired, and Haferman saw that all
observations related to Mr. Groves’s speech, balance, movements, walking, and comprehension in fact
corroborated those repeated assertions of innocence. Id. at ¶70-80. But he wanted the DUI arrest, and
when it came to the constitutional rights of citizens like Mr. Groves, he just didn’t care. Id. at ¶¶74 -75.
He arrested him for DUI and required him to submit to a blood test. Id. at ¶76. Mr. Groves complied. Id.
Then Haferman took Mr. Groves to jail and, minutes later, reported him to h is probation officer for having
committed a new law violation. Id. at ¶78, ¶83. Months later, his blood results came back: nothing
detected. Id. at ¶94. No alcohol, no drugs, no marijuana – no nothing. Id. The DA’s Office dismissed the
DUI case against Mr. Groves. Id. at ¶95.
As it happens, Mr. Groves’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 ¶14. FCPS had no problem with this – as they
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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
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, instead (according to Haferman) was affirmed by his chain of command’s encouragement and
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 ¶¶116-17. 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 police work, claiming that each they now must spend hours and hours of tim e blurring
faces and redacting names prior to release. 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 price
of hundreds of dollars per case requested.
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affirmation of the “great work” he was doing, leading up to (and continuing well after) the day that
Haferman encountered and wrongfully arrested Mr. Groves. Id.
Over and over again, in the months leading up to Plaintiff’s arrest, more than 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 review” such arrests and approve of each and every one. Id. at ¶¶39-45; ¶118. Eventually
the press got involved. Id. at ¶118. 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 ¶¶118-25. 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, they were simply all
on synthetic street drugs that science couldn’t test for. Id. at ¶¶140-45.
And so, as emboldened as ever by FCPS’s continued support, Haferman quite naturally continued
making more wrongful DUI arrests. Id. at ¶125. Various judges continued having to make findings at
various hearings regarding their grave concerns that Haferman’s sworn testimony continued to be
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 ¶47-48. 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 was easily observable on video. In any event, Plaintiff has pleaded both
theories of liability (that is, the theory that FCPS provided literally zero supervision/tr aining 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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contradicted by video evidence and that he appeared to not be a credible witness. Id. at ¶157, ¶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 ¶165. 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 ¶167.
On these facts, the City has filed a Motion to Dismiss for failure to state a claim as to their Monell
liability. For the reasons set forth below, their Motion should be denied.
ARGUMENT
Mr. Groves has adequately pled claims against Haferman under 42 U.S.C. § 1983 and § 13-21-
131, C.R.S. for wrongful arrest and malicious prosecution and Defendants do not claim otherwise in their
Motion to Dismiss. Defendants instead contend that Mr. Groves has not pleaded sufficient facts in support
of his claims against Fort Collins under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), in Mr.
Groves’s wrongful arrest and malicious prosecution. For the reasons set forth below, Defendants’ Motion
must fail.
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
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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).
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 41 at
¶¶122-34, 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 ¶¶135, 139, 140. Plaintiff has further pleaded in extensive detail both the fact of and various
specifics regarding at least 7 separate similar wrongful DUI arrest instances in just a seven-month span
(from Nov 2020 – June 2021) 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 did to Mr. Groves on April 7, 2022. Id. at ¶¶37-56.
“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
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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. Groves, 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 three
big problems immediately observable as early as March of 2021 to anyone bothering to supervise him :
(1) Haferman was regularly writing reports in support of his DUI arrests which would consistently contain
lies and exaggerations that were plainly contradicted by his and other officers’ BWC videos; (2) He 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 deactivating his bodyworn
camera during his citizen contacts and arrests, in violation of FCPS and Colorado law. ECF 41 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 it and chose to do nothing about it, id. at ¶28, and he has alleged
in factual detail (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 ¶¶118-21.3
3 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
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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 42, 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. Groves and he detailed abundant notice to specific supervisory personnel (both real
and constructive) at FCPS that FCPS’s Chief of Police subsequently claimed to be personally aware of.
ECF 41 at ¶¶118-22. 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
credibility and repeated violations of citizens’ constitutional rights . ECF 41 at ¶144-45. 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 ¶146.
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he did as a police officer to be choices that the City made which alone (or together) prove 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 inflicted upon Mr.
Groves on April 7, 2022. Plaintiff’s allegations are about as far as they can get from “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 ¶139, 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 still,
Plaintiff has even more than that in his Complaint, including being able to plausibly allege that the very
first time that 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 ¶136, 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 ¶¶135-36, 140.
Suffice it to say, Mr. Groves 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 entitlement to relief
Case No. 1:23-cv-01339-RM-STV Document 49 filed 11/29/23 USDC Colorado pg 10 of 11
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under Monell. To entertain the arguments made by Defendants in their Motion to Dismiss would require
the reader to ignore vast swaths of Mr. Groves’ 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 . Respectfully, their Motion must be denied.
Respectfully submitted this 29th day of November, 2023.
/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
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