HomeMy WebLinkAbout2018CV217 - MONTGOMERY V. CHERNAK, HOWARD & BROUGH - 024 - RESPONSE TO MOTION TO DISMISS1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00217-REB-KLM
WILLIAM MONTGOMERY,
Plaintiff,
v.
MATTHEW CHERNAK,
MIKE HOWARD,
MATTHEW BROUGH.
Defendants.
______________________________________________________________________________
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS
Plaintiff, by and through undersigned counsel, hereby responds in opposition to
Defendants’ Motion to Dismiss (“Defs. MTD”) (Doc. 17), and in support states as follows:
INTRODUCTION
This case involves straight-forward constitutional claims, seeking justice for the
unconstitutional detention, arrest, and prosecution of Plaintiff after Plaintiff verbally questioned,
criticized, and observed the conduct of the Defendant Officers during a routine consensual
encounter with a different person. Am. Compl. at ¶¶ 1-3. The Defendant officers knew Plaintiff as
an activist for homeless populations in the Ft. Collins area, where the incident took place. Id.
Plaintiff acted as a peaceful protester attempting to raise awareness to homelessness issues when
the Defendant officers incidentally made contact with him and perceived his questions, criticism,
and observation to be an annoying intrusion. Id. at ¶¶ 34-36, 38. The Defendant officers, visibly
“irritated,” “upset,” and “offen[ded],” reacted to the perceived challenge to their authority by
punishing Plaintiff – they manufactured unsubstantiated a number of criminal charges against him
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and took him to jail. Id. at ¶¶ 2, 38, 51, 58. The Defendant officers cooperatively seized him without
probable cause in violation of the Fourth Amendment. Id. at ¶¶ 36-49, 71-94. The Defendant
officers initiated and sustained a criminal prosecution against him, without probable cause, that
dragged on for almost two years. Id. at ¶ 56-59, 63-64. While some of the background facts relating
to the history of the public plaza at issue are lengthy (See Id. at ¶¶ 14-32), the type of claims at
issue are not complex, nor are they novel. See id. at ¶¶ 72-75, 78-82, 85-93. Despite Defendants’
assertion to the contrary, the law is clearly established in this area. Plaintiff provides numerous
non-conclusory facts, in context, from which this court may easily conclude that Fed.R.Civ.P. Rule
8 has been satisfied at this early stage of the proceedings.
EVIDENCE OUTSIDE THE PLEADINGS
It is axiomatic that a properly situated motion to dismiss tests “the sufficiency of the
allegations made within the four corners of the complaint after taking those allegations as true.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). Reliance on outside materials is
generally improper. Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993). Only in very
“limited” circumstances should a document outside of the pleadings be considered at the motion
to dismiss stage. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Defendants assert that the
Court should take judicial notice of Defendants’ probable cause affidavit, the county court judge’s
determination of probable cause, and Plaintiff’s prior non-operative Complaint. But these
documents are not the type of documents incorporated by reference into the complaint, attached
by the parties in the briefing, and uniquely central to the claims, such that they should be
considered. See GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85. (10th
Cir. 1997). Defendants assert that those outside documents will provide additional evidence of
probable cause. But such expanded review of outside evidence will only raise issues of fact to be
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reviewed on a summary judgment standard. If the court were to consider materials outside of the
complaint (not expressly incorporated) it would sua sponte convert Defendants’ motion to dismiss
into a motion for summary judgment. Fed. R. Civ. P. 12(d). At that point, plaintiff must be given
notice and the opportunity to respond with affidavits or similar evidence, after seeking appropriate
discovery. See Fed. R. Civ. P. 12(d); see also Reed v. Dunhan, 893 F.2d 285, 287 n. 2 (10th Cir.
1990). The Court should not consider these additional materials.
STANDARD OF REVIEW: 12(b)(6)
The “notice pleading” required by Fed.R.Civ.P. 8 does not entail the strict level of specific
and individualized detail that Defendants’ motion claims it does. Twombly and Iqbal have not
created a heightened pleading standard for civil rights claims. See Johnson v. Shelby, 135 S.Ct.
346, 347 (2014) (citing Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 164 (1993)) and Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (imposing
a “heightened pleading standard conflicts with the Federal Rule of Procedure 8(a)(2)”)); Robbins
v. Oklahoma, 519 F.3d 1242, 1247-49 (10th Cir. 2008); Rule 8 “does not require detailed factual
allegations…” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678-81 (2009); Erickson v. Pardus, 551 U.S. 89, 95, 127 (2007) (quoting
Twombly, 550 U.S. at 555). Rule 8 requires only facts sufficient to put Defendants on “‘fair notice'
of the nature of the claim and the ‘grounds’ on which the claim rests,” in a manner that is not “so
sketchy” that a defendant “would have little idea of where to being” in understanding the nature
of the allegations. Robbins, 519 F.3d at 1248. It is the absence of facts such as “time, place, and
persons involved” that tend to suggest untethered “conspiracy theories” may be involved and that
allegations may be unacceptably conclusory. Id. (citing Twombly, 550 U.S. at 566, n. 10).
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Rule 8 permits the use of collective allegations against similarly situated defendants or
similar conduct committed by multiple defendants. See Wynder v. McMahon, 360 F.3d 73, 79 (2d
Cir. 2004) (noting that "[t]he key to Rule 8(a)'s requirements is whether adequate notice is given,"
and that "fair notice" is "that which will enable the adverse party to answer and prepare for trial,
allow the application of res judicata, and identify the nature of the case so that it may be assigned
the proper form of trial.").1 The Tenth Circuit’s pronouncement that a complaint should, generally,
make clear exactly “who is alleged to have done what to whom” is not meant to prohibit collective
allegations against similarly situated Defendants who are alleged to have acted together in concert.
It is meant to preclude the type of “generalized and undifferentiated” allegations that
“indiscriminately” lump together differently-situated defendants and different types of claims
(such as individual claims, municipal claims, and tort claims) without regard to the difference
between them. See Robbins, 519 F.3d at 1250. Cf. Booker v. Gomez, 745 F.3d 405, 422 (10th Cir.
2014) (even on summary judgment, qualified immunity may be properly denied where “all
Defendants” are alleged to have “actively and jointly” participated in a coordinated, group
violation). Plaintiff’s Amended Complaint sets out in detail the individualized conduct of each
officer to the extent it can be differentiated, including specific ways in which each “personally
participated” by obtaining and sharing information and then collectively agreeing to (and in fact
1 See also Angermeir v. Cohen, No. 12-cv-55-KMK (D.N.Y. March 27, 2014) (describing that a complaint
can provide fair notice even though it includes certain allegations against “Defendants” collectively); Hudak v. Berkley
Grp., Inc., No. 13-CV-89, 2014 WL 354676, at *4 (D. Conn. Jan. 23, 2014) ("Nothing in Rule 8 prohibits collectively
referring to multiple defendants where the complaint alerts defendants that identical claims are asserted against each
defendant."); Harris v. NYU Langone Med. Ctr., No. 12-CV-454, 2013 WL 3487032, at *7 (S.D.N.Y. July 9,
2013) ("Rule 8(a)… requires that a complaint against multiple defendants indicate clearly the defendants against
whom relief is sought and the basis upon which the relief is sought" (internal quotation marks and citations omitted)
(alterations in original)), adopted by 2013 WL 5425336 (S.D.N.Y. Sept. 27, 2013); Howard v. Municipal Credit
Union, No. 05-CV-7488, 2008 WL 782760, at *12 (S.D.N.Y. Mar. 25, 2008) ("While Rule 8 does not prohibit
`collective allegations' against multiple defendants it does require that the allegations be sufficient to put each
[d]efendant on notice of what they allegedly did or did not do").
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acting to) seize, arrest, and prosecute Plaintiff, in a coordinated, joint effort. Thus, the type of
consolidated allegations in the Complaint against “all three Defendants” in this context are not the
type of “indiscriminate” allegations that should be ignored as conclusory.
The court must construe the factual allegations and any reasonable inferences from them
in the light most favorable to the non-moving party, here, the Plaintiff. Sanchez v. Hartley, 810
F.3d 750, 754 (10th Cir. 2016).
I. The Defendant Officers Lacked Probable Cause to Arrest Plaintiff
A Fourth Amendment violation occurs where an officer arrests or detains a person without
possessing probable cause that the person committed a crime. Cortez v. McCauley, 478 F.3d 1108,
1116-17 (10th Cir. 2007). Probable cause is more than mere suspicion; probable cause requires “a
substantial probability” that a suspect committed a crime. Stonecipher v. Valles, 759 F.3d 1134,
1141 (10th Cir. 2014). It exists only where the objective "facts and circumstances within the
officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been or is being
committed.” Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008). It is axiomatic that
officers must obtain factual information regarding each element of a suspected crime in order to
possess probable cause that such crime was committed. Id. at 1156-57. Because probable cause is
an assessment based on the totality of the circumstances, officers cannot look only at information
suggesting the possibility of guilt while ignoring exculpatory evidence; a police officer may not
close her or his eyes to facts that would help clarify the circumstances relating to an arrest. Baptiste,
147 F.3d at 1257 (citing BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)); see also Deitrich v.
Burrows, 167 F.3d 1007, 112 (6th Cir. 1999). Officers are required to conduct an adequate
investigation involving collection and review of basic fundamental evidence available to them
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before invoking the power of warrantless arrest and detention. Romero v. Fay, 45 F.3d 1472, 1476-
77 & n. 2 (10th Cir. 1995). Reasonable avenues of investigation must be pursued, especially when
it is unclear whether a crime has even taken place. Cortez, 478 F.3d at 1116. Officers are liable for
knowledge of any "readily available exculpatory evidence" that they unreasonably fail to ascertain
or consider. Maresca v. Bernalillo, 804 F.3d 1301 (10th Cir. 2015). The Court should leave to the
jury questions regarding the existence of probable. See Cortez, 478 F.3d at 1120; DeLoach v.
Bevers, 922 F.2d 618, 623 (10th Cir. 1990).
Defendants’ principal challenge to the Amended Complaint (on all three claims) is that
Defendants possessed probable cause to arrest at the time they seized Plaintiff. However, an
examination of the elements of each crime charged demonstrates that Defendants’ assertion lacks
substantial basis and that the assertion of criminal activity was likely pretextual.
a. Obstruction of a Police Officer
Defendants allege that Plaintiff’s criminal conduct began with him “insert[ing] himself into
the officers’ response to the 7-11 trespass complaint to such a degree he became an obstacle to the
investigation.” Defs. MTD at 5. However, criminal obstruction occurs where “a person
intentionally obstructs, impairs, or hinders the performance of a governmental function by using
or threatening to use violence, force, physical interference, or an obstacle.” C.R.S. § 18-8-102
(emphasis added); Colo. Jury Instr., Criminal 8-1:05. None of the complaint allegations support
the interpretation that plaintiff threatened the use of physical force or violence or intentionally used
any type of “physical obstruction.” The elements of “physical interference or an obstacle” are not
satisfied by mere verbal opposition or remonstration. See Dempsey v. People, 117 P.3d 800, 810-
11 (Colo. 2005). Plaintiff’s conduct in asking a reasonable question about the officers’ conduct is,
plainly, protected First Amendment speech. See City of Houston v. Hill, 482 U.S. 451, 461-63
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(1987); see also Reiss v. M.T. Luchetta, 78 F.3d 597 (10th Cir. 1996). Defendant officers’
assertions that Plaintiff’s verbal questioning criminally “injected” himself as an obstacle into the
police encounter reinforces Plaintiff’s allegation that the Defendant officers arrested him and
charged him for his protected First Amendment conduct, and not for any other legitimate law
enforcement reason.
Defendants also appear to argue that Plaintiff, later, obstructed a peace officer by failing to
affirmatively climb back over the fence after he had climbed into the public plaza, so that
Defendants could carry out their plan of arrest. See Defs. MTD at 7. But the allegations make clear
Plaintiff did not climb over the fence in the first place to avoid arrest or to use the fence as an
obstacle; he climbed over the fence after being told to leave so that he could observe from a safe
distance without being considered a physical obstacle.2 Id. at ¶¶ 36-37. This was well before he
was threatened with arrest. Id. at ¶¶ 38-43. Additionally, staying-put within the fenced-in area is a
null action that only maintains the status quo during such an encounter. Such a "non-act" could not
reasonably be interpreted to be an intentional criminal act designed to “obstruct” or "hinder" the
officers in the performance of their duties. Cf. Kaufman v. Higgs, 697 F.3d 1297, 1301 (finding
that silently doing nothing does not obstruct police investigation). Importantly, the obstruction
statute does not criminalize a person’s failure to follow the general wishes and desires of an officer.
See § C.R.S. 18-8-102. The mere failure to obey an officer’s order does not provide an officer with
probable cause without a narrowly-tailored statute and does not ripen into obstruction without a
threat of real and often, physical, harm. See Wilson v. Kittoe, 229 F. Supp. 2d 520, 532-33 (W.D.
Va. 2002); see also Buck v. City of Albuquerque, 549 F.3d 1269, 1286 (10th Cir. 2008).
2 Defendants’ assertion that Plaintiff committed a crime fares no better under analysis of Fort Collins Municipal
Code Section 17-63, which requires a person to “move on and away” from an officer in the performance of his
duties once ordered to do so. See Defs. MTD at fn 5. As noted above, Plaintiff substantially complied.
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Obstruction does not occur when a person fails to cooperate fully with an officer or when the
person's conduct merely renders the officer's task more difficult but does not impede or prevent
the officer from performing that task. Ruckman v. Commonwealth, 505 S.E.2d 388, 389 (VA. Ct.
App. 1998) (analyzing an almost identical statute). The failure to obey an order when there is no
underlying probable cause to support a seizure does not provide a basis to believe a crime was
committed. Buck, 549 F.3d at 1286.
Contrary to Defendants’ assertions, none of the Complaint allegations demonstrate that
Plaintiff “refused” to provide his identification. Id. at ¶ 42. Plaintiff provided his name, along with
information regarding the alleged trespass violation, and he confirmed his date of birth when he
heard it communicated over the radio. Id. Such compliance can hardly be considered a “refusal”
sufficient for a criminal violation. See Buck, 549 F.3d at 1286 (posing questions in the face of an
order to obey does not constitute obstruction); Cortez, 478 F.3d at 1128 (briefly asking questions
before complying does not amount to resisting the officer); Lundstrom v. Romero, 616 F.3d 1108,
1123-24 (initially failing to obey and then, later, complying after receiving additional information
is not the same as refusing to comply).
b. Second Degree Trespass
Second degree criminal trespass occurs when a person “unlawfully enters or remains in or
upon the premises of another which are enclosed in a manner designed to exclude intruders or are
fenced.” C.R.S. § 18-4-503. This involves at least three key elements – that a person (1)
“unlawfully” enters or remains, (2) in or upon the premises “of another” (3) which premises are
“enclosed” and/or “fenced.” Id.; see also Jury Instructions (Colo. Jury Instr., Criminal 4-5:04);
The definition of second degree trespass differs from First and Third-degree trespass only by
designation of the type of private property a person “unlawfully” enters or remains upon. See
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C.R.S. § 18-4-502 (“unlawfully … in a dwelling of another”); C.R.S. § 18-4-504 (“unlawfully …
in or upon the premises of another.”). Thus, the core concept of criminal trespass under Colorado
law is whether one enters or remains on that property “unlawfully.”
"A person unlawfully enters or remains in or upon premises when he is not licensed,
invited, or otherwise privileged to do so.” People v. Johnson, 906 P.2d 122, 124 (Colo. 1995). A
reasonable officer may conclude that a suspect enters or remains “unlawfully” when a witness
reports that another person is in “his” house, the witness reportedly tells the suspect repeatedly to
“get out,” and then the witness called the police to report the crime. Santistevan v. Steginik, No.
15-cv-00198-RM-KMT, 2016 WL 1388018, at *8 (D. Colo. Apr. 8, 2016).
No complaining owner ever provided the Defendants any basis to believe Plaintiff’s entry
onto the property was unlawful. There were no signs posted at the property to provide any type of
notice that Plaintiff’s presence would be unauthorized by anyone not present (obviously, because
the property was meant to be held open to the public). Plaintiff’s complaint allegations expressly
make clear that the Defendant officers did not obtain any information indicating Plaintiff was
unwelcome or needed to be removed from the property by any alleged property owner. Am.
Compl. at ¶ 40. Defendants did not so much as inquire into whether Plaintiff may have had consent
to be present there or whether he had unlawfully entered the premises. Id. Moreover, the Amended
Complaint alleges that the property was known to be public in nature, having been created and
held open for the public by the City of Ft. Collins for at least 20 years. Id. at ¶ 3, 14. Defendants
likely knew this because they were assigned to patrol the area and had numerous contacts with
“transients” whom were considered eyesores. Id. at ¶ 19-22. Thus, Defendants could not have had
reason to believe a private property owner legally restricted Plaintiff’s access to the land or that
Plaintiff could be trespassing onto someone else’s private property by entering without
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authorization. Defendants may have had information regarding one element of a possible trespass
violation – that a fence existed around the property – but they lacked information critical to the
very core concept of a trespass pertaining to whether Plaintiff unlawfully entered. The only
information Defendants obtained about the potential “unlawfulness” of Plaintiff’s entry onto the
property was information directly provided by Plaintiff, indicating that the property remained open
to the public, that he had personally spoken to a city official that provided him consent to be
present, along with written communications corroborating this information Id. at ¶¶ 39-49.
Defendants cite to Williams v. Greenburgh, 535 F.3d 71 (2nd Cir. 2008) for the premise
that "a mistake about relevant facts - in this case, the adequacy of a trespass warning sign - does
not undermine the existence of probable cause." However, Defendants' citation is misleading and,
ultimately, supportive of Plaintiff's position - not Defendants. The Greenburgh court addressed the
adequacy of a verbal warning, not a warning sign, that was directly provided to Williams by a
former employer after Williams was terminated and a physical encounter ensued on the property.
Id. at 73. Williams was escorted off the property by an officer and told not to return without
permission. Id. The officer saw Williams return to the property and arrested Williams. Id. A
municipal court acquitted Williams of the trespass charge on the narrow basis that the officer's
verbal warning not to return did not specify the length of his exclusion from the facility. Id. at 74.
The Greenburgh court determined that the officer may have made a mistake in not providing a
length of time for the exclusion at the time of the ejection, but that a person of reasonable caution
who (1) knew that Williams had been expelled and warned not to return without permission, and
(2) observed Williams return to the property without obtaining permission, would possess
sufficient information to reasonably believe Williams was trespassing. Id. at 79. Unlike the
Defendants in the case at bar, the officer in Greenburgh had facts from which a reasonable officer
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could conclude that Williams entry onto the property was "unlawful." The lesson to be gleaned
from Greenburgh is not that any mistake of fact made by an officer should be forgiven - it is
that reasonable mistakes that are not central to a probable cause inquiry may not substantially
compromise an otherwise fair and good-faith probable cause determination. But on the flip side of
the coin, "unreasonable mistakes" based on the failure to investigate, the failure to obtain and
appreciate readily available exculpatory information, and the failure to recognize commonsense
information provided by a suspect cannot be overlooked. See Maresca, 804 F.3d at 1310-11.
Defendants’ motion essentially admits the officers hastily concluded a trespass occurred
with limited information pertaining to only one element of second degree trespass when they assert
that the “officers saw him climb the fence and concluded that he was trespassing.” Defs. MTD at
6. Defendants argue that climbing the fence “would constitute a crime to anyone.” But such
assertion is plainly conclusory and contrary to law. Under Defendants’ interpretation of the law,
any person who climbs a fence would be subject to immediate arrest, regardless of the ownership
of the property, the authorization a person might implicitly or expressly have to enter, and/or the
public or private character of the property. That implies citizens are always in danger of arrest
should an officer witness fence-climbing and decide not to investigate whether the person might
be authorized, licensed, or otherwise be privileged to enter. Such an interpretation must be
forcefully rejected. Probable cause requires policework substantiating that there are reliable and
trustworthy facts supporting each element of an alleged crime, not guess work and assumptions.
Defendants lacked critical information about whether a crime could have been committed and
acted in contravention of information that clearly discounted the probability Plaintiff could have
committed any crime.
Even if Defendants arguably possessed sufficient information to reasonably believe
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Plaintiff trespassed by climbing the fence of the public plaza, Plaintiff provided plainly
exculpatory evidence in the form of the printed email from Ft. Collins city officials. Am. Compl.
at ¶¶ 45-49. The email not only demonstrated that the property was public and not private in
character, but expressly recognized that the private fence had been ordered to be removed so as
not to obstruct public access. Id. at ¶ 49. The email was an order from a city official that public
access to the property was not to be obstructed so that members of the public (including Plaintiff)
would continue to have access. Id.. This substantiated Plaintiff’s assertion that he was given
consent to be there and provided an independent, written account that corroborated Plaintiff’s
verbal communications. This information goes to the very core concept of whether plaintiff was
likely to have been “licensed, invited, or otherwise privileged to enter the property” and made it
dramatically less likely that a reasonably prudent officer could continue to reasonably conclude
that Plaintiff entered the property unlawfully.
Defendants argue that it “strains credulity” for them to have “known” the fence erected
around the public plaza was “illegal.” Defs. MTD at 6. This argument, at first blush, has some
intuitive appeal when reflecting on the imperfectness of the “reasonableness” standard of probable
cause. However, it is ultimately a red-herring. Defendants need not have personal knowledge about
the history of the fence or its “illegality” to realize the exculpatory import of the information
Plaintiff provided.3 Defendants’ entire assumption that a trespass occurred was dependent on the
existence of a fence. If a city official declared that the fence was not supposed to be there because
3 Defendants argue at length that Plaintiff had to go through extensive efforts to discover that the fence around the
property was unlawful, but Defendants exaggerate the complexity of the issue and the minimal steps Plaintiff went
through. See Am Compl. at ¶ 27-28. Moreover, since the City Inspector took care of the legal analysis regarding the
illegality of the fence and ordered it to be removed in the email provided, the officers would have known that they
didn’t need to wade into any deep water to analyze legality of the fence. A municipal representative had already
done so.
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it obstructed public access, the email communication, on its face, casts serious doubt on any belief
that Plaintiff “unlawfully” trespassed by climbing the fence. What really “strains credulity” is
Defendants’ assertion that the email evidence should not be considered because it was somehow
“unauthenticated” and/or “potentially fraudulent.” Id. at 8. It strains credulity to believe that
Plaintiff spontaneously thought up and drafted an email containing the kind of communications
and contact information of the City Planner and City Inspector, within the minutes, in order to try
to “fraudulently” mask an allegedly unlawful trespass. However, if the Defendants had doubts
about the veracity of the email, the officers could have further investigated by quickly and easily
contacting a supervisor or representative of the city and/or the DA’s office to corroborate any of
the information in the email, including the identity/contact information of the city officials
involved, the nature of the dispute at issue, the public character of the property identified, or any
other information that they had doubts about.4 There was no exigent need to arrest Plaintiff
immediately – he was confined within the fenced-in area for as long as the officers needed to
conduct a reasonable pre-arrest investigation. Moreover, Defendants obviously had time and the
means to communicate with others because they contacted another officer and waited for him to
bring bolt cutters to cut the fence. Id. at ¶ 51. The fact that the officers completely disregarded the
evidence – without so much as a phone call or any other investigatory effort – demonstrates the
unreasonableness of their conduct and the strength of their improper motive. Defendants were
committed to arrest regardless of what Plaintiff said or did and regardless of the information
4 Defendants argue that the arrest occurred too late in the evening to reasonably make a call to the city official who
drafted the email, even though his cell phone was listed in the email. That may be a fair consideration, but a call to
someone would represent only a late-night inconvenience lasting minutes, while Defendants rash action in the face
of doubtful circumstances cost Plaintiff his liberty for three days (and more, later). Defendants conduct does not
reflect the balance meant to be struck by the probable cause standard. See Brinegar v. United States, 338 U.S. 160,
176 (1949).
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reasonably available to them.
c. Resisting arrest
Defendants do not address resisting arrest in their brief. This is likely because the statute
requires that a person “knowingly prevent or attempt to prevent a peace officer from effecting an
arrest by … using or threatening to use physical force or violence…” C.R.S. § 18-8-103 (emphasis
added); see also Colo. Jury Instr., Criminal 8-1:03. There is no allegation that Plaintiff committed
anything resembling forceful or threatening conduct. However, the fact that the Defendant officers
asserted that Plaintiff committed such crime, in absence of any supporting conduct, further
demonstrates the unreasonableness of the criminal accusations and the pretextual motivation
behind the arrest and charging decisions.
d. Disorderly Conduct
Defendants claim that Plaintiff engaged in “disorderly conduct” by making loud noises as
he protested the officers’ assertion that he committed a crime and the officers arrested him.
Defendants cite to the disorderly conduct statute in C.R.S. § 18-9-106 for the premise that a person
engages in criminal activity when that person “makes a coarse and obviously offensive utterance,
gesture or display” that tends to “incite an immediate breach of the peace” or “makes unreasonable
noise in a public place or near a private residence that he has no right to occupy.” Id.; see also
Colo. Jury Instr., Criminal 9-1:10; Colo. Jury Instr., Criminal 9-1:11. However, defendants fail to
note that “unreasonable noise,” as defined by C.R.S. § 18-09-106(1)(c), encompasses
communication made in a loud manner “only when there is a clear and present danger of violence
or where the communication is not intended as such but is merely a guise to disturb persons.”
People v. Fitzgerald, 194 Colo. at 415, 419–20 (1978). The complaint allegations do not identify
any coarse language that would incite a breach of the peace, and none of the noise could reasonably
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be considered “unreasonable” under the circumstances of this encounter – where Plaintiff only
verbally question/criticized the officers’ conduct and/or verbally defended himself from the
officers’ use of their authority. Moreover, the reach of the disorderly conduct statute is inherently
limited by basic principles of freedom of speech, including the right to object to and criticize an
officer’s conduct while in the performance of their duties. Hill, 482 U.S. at 463; Stearns v.
Clarkson, 615 F.3d 1278, 1283 (10th Cir. 2010). This includes the right to a “loud and boisterous”
response to an officer’s treatment leading up to and during a highly questionable arrest. Norwell
v. City of Cincinnati, 414 U.S. 14, 16 (1973). Defendants’ attempt to punish Plaintiff for this
protected speech further reflects on the general unreasonableness of their arrest and charging
decisions, and the pretextual nature of the arrest and prosecution.
II. The Defendant Officers Initiated and Continued a Malicious Proseuction Against
Plaintiff by Misrepresenting Evidence in Charging Documents and By Omitting
Exculpatory Evidence Material to the Assessment of Probable Cause.
A Constitutional violation for malicious prosecution may be shown where an officer
contributes to the continued confinement or prosecution of a plaintiff without probable cause.
Wilkins v. Reyes, 528 F.3d 790, 802 (10th Cir. 2008); Pierce v. Gilchrest, 359 F.3d 1279, 1292
(10th Cir. 2004). This includes liability for providing misleading information in an arrest affidavit
upon which a judicial officer relies to make a determination of probable cause. See DeLoach, 922
F.2d at 621-22; Stewart v. Donges, 915 F.2d 572, 582 (10th Cir. 1990) (regarding material
omissions of material fact). An officer may also be held constitutionally liable for making false
and/or misleading statements to a prosecutor, which results in continued prosecution without
probable cause. Taylor v. Meachum, 82 F.3d 1556, 1564 (10th Cir. 1996) (citing Reed v. City of
Chicago, 77F.3d 1049 (7th Cir. 1996)).
Defendants were the persons that caused Plaintiff to be wrongly confined and prosecuted
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by directly filing false and misleading criminal complaints and affidavits into the county court,
while Plaintiff was incarcerated, which caused the prosecution to begin almost immediately after
Plaintiff was booked into the jail. Am. Compl. at ¶ 59. This occurs due to Colorado’s unique
simplified misdemeanor criminal procedure that permits the arresting officer to “initiate” a
criminal prosecution, instead of leaving the decision to a prosecutor. See C.R.S. § 16-2-104;
Colo.R.Crim.P 4.1(b) (identifying that a criminal prosecution pursuant to Colorado’s simplified
misdemeanor procedure is “initiated” by an officer’s filing of a criminal complaint and submitting
it directly to the criminal court); See also Jeffrey v. Dist. Court in and For the Eighth Judicial
Dist., 626 P.2d 631, 634-35, 638 (Colo. 1981) (discussing Colorado’s simplified misdemeanor
procedure and identifying that an officer’s initial summons and complaint documents “initiate” the
criminal prosecution in county court). Importantly, this procedure precludes a criminal defendant
from challenging probable cause at an adversarial hearing. People v. Garcia, 176 P.3d 872, 874
(Colo. App. 2007).
Defendants argue that a county court judge found probable cause to believe the crimes
alleged were committed and that such a decision “breaks the chain of causation” for liability of the
officers. However, that is not the case where an officer misrepresents or omits material facts in an
affidavit, which infects the probable cause evaluation and causes the judicial officer to be
materially misled about the existence of probable cause. Plaintiff’s Amended Complaint clearly
alleges that Defendants materially misrepresented numerous pieces of information critical to a fair
determination of probable cause in the charging documents and affidavits submitted to the court.
Id. at ¶¶ 53-59. Defendants also omitted the exculpatory evidence regarding the email and
information Plaintiff provided about the nature of the public property, the fence, and the consent
he obtained from the city planner and inspector to enter the property, which all demonstrated that
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Plaintiff could not have “unlawfully” entered and/or trespassed onto private property. Id. at ¶¶ 54-
55. Colorado’s simplified criminal procedure ensured that the county court judge relied upon the
officers’ misleading representations of the evidence, as facially presented by the officers in the
charging documents. Defendants must be held liable for their misrepresentations and omissions of
material fact.
Defendants allege that there are no facts substantiating the favorable termination
requirement of the malicious prosecution claims, but the Amended Complaint articulates that the
prosecutor dismissed the charges after calling the city attorney and confirming Montgomery was
“correct about the nature of the public property and about plaintiff’s presence there.” Am. Compl.
at ¶¶ 68-70. Thus, the dismissal was made under circumstances suggestive of innocence sufficient
to meet the favorable termination requirement.
As articulated above, the Defendants did not have probable cause to believe Plaintiff
committed any of the crimes alleged on the night of the incident. However, should the court
conclude that probable cause existed for any one crime, the complaint allegations and prevailing
law demonstrate that the Defendant officers alleged a number of crimes for which there was no
factual support and/or for which Plaintiff’s conducted was protected by the First Amendment. Each
individual criminal charge that was asserted without legal justification provides support for a
malicious prosecution claim, because there is a long history of assessing such allegations on a
charge-by-charge basis. See Miller v. Spiers, 339 Fed. Appx. 862, 867-68 (10th Cir. 2009)
(probable cause to pursue one charge does not prevent a claim for malicious prosecution based on
simultaneous pursuit of a separate charge); accord Holmes v. Vill. of Hoffman Estates, 511 F.3d
673, 682 (7th Cir. 2007); Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991); See also Elbrader v.
Blevins, 757 F. Supp. 1174, 1180 (D. Kans. 1991) (probable cause involving disorderly conduct
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charge does not prevent the pursuit of malicious prosecution claim for factually separate offenses
charged without probable cause, including obstruction and resisting arrest); Brown v. Willoughby,
5 Colo. 1, 5 (Colo. 1879) (“If groundless charges are maliciously and without probable cause,
coupled with others which are well founded, they are not on that account less injurious, and
therefore constitute a valid cause of action.”).
III. The Circumstances of the Arrest and Defendants’ Explanation of Probable Cause
in Their Motion Strongly Suggest That the Officers Retaliated Against Mr.
Montgomery for his, protected, First Amendment Expressions.
“To establish a First Amendment retaliation claim, a plaintiff must show that (1) he was
engaged in constitutionally protected activity, (2) the government’s actions caused him injury that
would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the
government’s actions were substantially motivated as a response to his constitutionally protected
conduct. Stonecipher v. Valles, 759 F.3d 1134, 1147 (10th Cir. 2014) (citing Nielander v. Bd. Of
Cnty. Comm’rs of Cnty of Republic, 582 F.3d 1155, 1165 (10th Cir. 2009). The scope of protection
for speech under the First Amendment is extremely “broad.” See, e.g., Spence v. Washington, 418
U.S. 405, 410 (1974). “The freedom of individuals verbally to oppose or challenge police
action without thereby risking arrest is one of the principal characteristics by which we distinguish
a free nation from a police state.” Hill, 482 U.S. at 462-63. There can be no question that an arrest
and prosecution, used in retaliation for the exercise of protected speech constitutes an injury
cognizable under the Tenth Circuit’s First Amendment jurisprudence. See Worrell v. Gary, 219
F.3d 1197, 1212 (10th Cir. 2000) ("[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."); Howards v. McLaughlin, 634 F.3d
1131, 1144 (10th Cir. 2011) (arrest made after officer overheard plaintiff speaking on the phone
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and became “visibly angry” sufficient for First Amendment retaliation claim.) (vacated on other
grounds by Reichle v. Howards, 132 S.Ct. 2088 (2012)).
Plaintiff’s Amended Complaint identifies a number of ways in which Plaintiff engaged in
First Amendment conduct, including, inter alia, when he questioned and criticized the officers
during the consensual encounter, communicated that his presence in the plaza was meant in part
to raise awareness to the illegal obstacle that discriminated againt he homleess, challenged the
erroneous determination that he trespassed, and protested the officers treatment and/or arrest. Am.
Compl. at ¶¶ 2, 3, 36, 38, 41, 44, 51, 54. At each turn, the officers responded with visible and
audible expressions of annoyance and irritation, as they viewed Plaintiff’s conduct as offensive
disobedience and a challenge to their authority. Id. Instead of reasonably considering the
exculpatory information and evidence Plaintiff provided, the officers irrationally ignored it and
failed to reasonably investigate and/or weigh its exculpatory value. Id. at ¶¶ 3, 54-55. Instead of
simply issuing a citation through the fence, the officers grew more and more intent to arrest
Plaintiff as they grew more and more upset. Id. at ¶¶ 38, 51, 53. The officers colluded to charge
Plaintiff with five crimes that could not possibly have been supported by probable cause. Id. at ¶¶
51, 55-58; see also, argument in Section I, supra. The officers each filed police reports with false,
exaggerated, and misrepresentative information. Id. at ¶ 58. Days later, Defendant Chernak went
above and beyond to ensure that Plaintiff’s bail bond in another case was revoked and that Plaintiff
was sent back to jail for approximately thirty (30) days more than the original arrest. Id. at ¶¶ 61,
65, 67. This is despite the fact that he would have, by then, had plenty of time to clear up the matter
by contacting the city official who drafted the email or any other person likely to have knowledge
(such as the city attorney). Id. at 49, 68. The officers’ continued to press the criminal prosecution
so that it dragged out for almost two, long, years. Id. at ¶¶ 57-58, 63-64, 70.
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The extent of this conduct, growing from simple expressions of annoyance to intentional
fabrication of evidence in support of a two-year criminal prosecution strongly suggests the officers
harbored animus and an intent to punish that went well beyond the ordinary pursuit of justice. It
suggests the Defendant officers sought to cause Plaintiff harm well after the incident, which
continued not only through a retaliatory arrest, but also throughout a retaliatory prosecution.
Defendants reactions to Plaintiff’s protected conduct are sufficient to demonstrate retaliatory
animus. Defendants assertions in their motion that Plaintiff’s speech was criminal behavior
amounts to an admission of unconstitutionally retaliatory conduct.
Contrary to Defendants’ assertions, there can be no doubt that the injuries Plaintiff
complains of would be sufficient to chill a person of ordinary firmness from speaking out after
being retaliated against. Some special individuals may have thicker skin than others, but the
inquiry is an objective one, not a subjective one.
IV. Defendants are not entitled to qualified immunity.
Qualified immunity should only protect an officer if the existing law could not be said to
have put an official on fair notice that their conduct would be unconstitutional. See Games v. Wood,
451 F.3d 1122, 1134 (10th Cir. 2006). Generally, this means that there must be a Supreme Court
or Tenth Circuit decision on point, or the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains." Maresca, 804 F.3d at 1308. But “[A]
general constitutional rule already identified in the decisional law may apply with obvious clarity
to the specific conduct in question, even though the very action in question has not previously been
held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (internal quotation marks omitted).
Consequently, “officials can still be on notice that their conduct violates established law even in
novel factual circumstances.” Hope, 536 U.S. at 741. The Hope decision shifted the qualified
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immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the
more relevant inquiry of whether the law put officials on fair notice that the described conduct was
unconstitutional.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir. 2007) (internal
quotations omitted). This Circuit has adopted a sliding scale to determine when law is clearly
established. Id. “The more obviously egregious the conduct in light of prevailing constitutional
principles, the less specificity is required from prior case law to clearly establish the violation.”
Id.; see also Davis v. Clifford, 825 F.3d 1131, 1136 (10th Cir. 2016) (concluding that the court
need not have decided a case involving similar facts to say that no reasonable officer could believe
he was entitled to behave as the defendant officers did). “[Q]ualified immunity will not be granted
if government defendants fail to make ‘reasonable applications of the prevailing law to their own
circumstances.’” Pierce, 359 F.3d at 1298.
a. Unlawful Arrest
In the context of an unlawful arrest, “the law was and is unambiguous: a government
official must have probable cause to arrest an individual." Fogarty, 523 F.3d at 1158-59 (internal
quotation marks omitted). It has long been clearly established that an arrest made without probable
cause violates the Fourth Amendment. Id. See, also Keylon v. City of Albuquerque, 535 F.3d 1210,
1216 (10th Cir.2008); Cortez, 478 F.3d at 1116; Stonecipher, 759 F.3d at 1141. While an officer
may be forgiven for reasonable, good faith mistakes, "unreasonable mistakes" such as the failure
to investigate in good faith, the failure to obtain and appreciate readily available exculpatory
information, and the failure to recognize commonsense information provided by a suspect cannot
be so readily overlooked. See Maresca, 804 F.3d at 1310-11. The Defendant officers would have
had fair notice that speech cannot reasonably be construed to be criminal conduct. Hill, 482 U.S.
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at 462-63; Norwell, 414 U.S. at 16; Buck, 549 F.3d at 1286; Dempsey, 117 P.3d at 810-11. Thus,
Defendants should not be provided qualified immunity.
b. Malicious prosecution
It has long been established that a Constitutional violation for malicious prosecution may
be shown where an officer contributes to the continued confinement or prosecution of a plaintiff
without probable cause. Wilkins v. Reyes, 528 F.3d 790, 802 (10th Cir. 2008); Pierce, 359 F.3d at
1292. Defendants would have been on notice that this may occur where an officer misleads a
judicial officer to find probable based upon misrepresentative information provided in an arrest
affidavit. See Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996); Deloach, 922 F.2d at 621-23;
see also Stewart, 915 F.2d at 582-84 (broadly adopting various circuit’s reasoning with regard to
judicial deception stemming from material omissions in arrest affidavits). It is also clearly
established that an officer may be held constitutionally liable for making false or misleading
statements to a prosecutor, which results in continued prosecution without probable cause.
Meachum, 82 F.3d at 1564; Pierce, 359 F.3d at 1292; see also Barton v. City and County of Denver,
432 F. Supp. 2d 1178, 1194 (D. Colo. 2006). Thus, defendant should not be granted qualified
immunity for initiating and continuing the, long, drawn out criminal prosecution.
Plaintiff has provided a litany of cases demonstrating that malicious prosecution claims
should be assessed on a charge-by-charge basis. See Miller, 339 Fed. Appx. at 867-68, Holmes,
511 F.3d at 682, Posr, 944 F.2d at 100; Elbrader, 757 F. Supp. at 1180.; Brown, 5 Colo. at 5.
While the Tenth Circuit in an unpublished case (Van De Weghe v. Chambers) concluded that the
plaintiff in that case had not “borne his burden” of putting forth clearly established case law
demonstrating that the case-by-case treatment of criminal charges was required under malicious
prosecution precedent, the court failed to credit the deep roots of the case-by-case review found in
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Colorado’s malicious prosecution history. See Brown v. Willoughby, 5 Colo. 1, 5 (Colo. 1879).
The common law tort of malicious prosecution has been the starting point for determining the
contours of the constitutional violation under Section 1983 since its inception. See Becker v. Kroll,
494 F.3d 904, 913-14 (10th Cir. 2007). This centuries-old precedent, combined with the adoption
of the analysis in Miller v. Spiers and the weight of precedent from the Second and Seventh
Circuits, all provide hefty weight of authority from a variety of courts that counsel in favor of
applying the charge-by-charge analysis.
Moreover, the pertinent question in a qualified immunity analysis is whether the “violative
nature” of particular conduct has been clearly established. Patel v. Hall, 849 F.3d 970, 980 (10th
Cir, 2017). While academics may debate about whether malicious prosecution analysis should
properly be conducted on a charge-by-charge basis, it cannot be fairly said that the case law cited
above would not have put the Defendant officers on notice that their conduct in making false
criminal allegations does violence to the Fourth Amendment rights of a suspect. Thus, although
some may think the question has not been formally put to rest because there is a circuit split,
ultimately, the question may not be a legal question that requires clearly established law in order
to hold Defendants accountable.
c. First Amendment Retaliation
It has been clearly established since at least 2000 that "any 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. Gary,
219 F.3d 1197, 1212 (10th Cir. 2000). This obviously includes retaliatory arrest and prosecution.
Moreover, it has been clearly established since at least 2011 that, in the Tenth Circuit, the presence
of probable cause is not fatal to a First Amendment Retaliation claim for retaliatory arrest.
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Howards v. McLaughlin, 634 F.3d 1131, 1145-1146 (10th Cir. 2011) (overruled on qualified
immunity grounds by Reichle v. Howards, 132 S.Ct. 2088 (2012)). While the Supreme Court
overruled Howards in Reichle, the Supreme Court did so only on qualified immunity grounds,
holding that “at the time of Howard’s arrest, it was not clearly established that an arrest supported
by probable cause could violate the First Amendment.” Reichle, 566 U.S. at 2093. Because the
court elected not to overturn the Tenth Circuit’s decision on the basis of whether a First
Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the
arrest, the original Tenth Circuit holding in Howards that probable cause is not a bar remains the
clearly established law in the Tenth Circuit. “Ordinarily, in order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as the plaintiff
maintains.” Becker v. Bateman, 709 F.3d 1019, 1023 (10th Cir. 2013). Thus, even though the
plaintiff in Howards could not get over the hurdle of qualified immunity (because the Supreme
Court found that no case prior to Howards clearly established the law), Mr. Montgomery can claim
the right today for actions that occurred in 2016. The Tenth Circuit’s decision in Howard, itself,
clearly established the law in this regard, in this circuit, in 2011.
Defendants cite Wilson v. Village of Los Lunas, 572 Fed. Appx. 635 (10th Cir. 2014) and
Moral v. Hagen, 553 Fed. Appx. 839 (10th Cir. 2014) for the premise that courts analyzing claims
after Reichle have repeatedly granted qualified immunity based on the “uncertainty for officers
rooted in the Supreme Court’s acknowledgment that the law is not clearly established.” See Def.
Mot. at 3. But Defendants’ claim and citations are misleading. Each of the two cases cited by
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Defendants involve incidents that occurred before Howard was decided in 2011.5 Thus, the grant
of qualified immunity in Wilson and Moral was not a result of Reichle’s impact on incidents
occurring after 2011, but only Reichle’s impact on cases that occurred before Howard. Howard
clearly established the law in this Circuit as of 2011. Thus, Howard enables Plaintiff to assert a
clearly established right to retaliatory arrest regardless of the existence of probable cause, today.
WHEREFORE, for all the foregoing reasons, Plaintiff respectfully requests that this
Court DENY Defendants’ Motion to Dismiss.
COUNSEL FOR PLAINTIFF
s/ __Raymond K. Bryant________
Raymond K. Bryant
Civil Rights Litigation Group, PLLC
1543 Champa St. #400
Denver, CO 80202
P: 720-515-6165
F: 720-465-1975
Raymond@rightslitigation.com
5 The date of the underlying incident for Wilson occurred on July 13, 2009; the complaint for
Moral was filed November 1, 2010.
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CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of May, 2018 I electronically filed the foregoing
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO
DISMISS with the Clerk of the Court using the CM/ECF systems which is expected to send
notification of such filing to the following e-mail addresses:
Thomas J. Lyons, Esq.
Christina S. Gunn, Esq.
Hall & Evans, L.L.C.
1001 17th
Street, Suite 300,
Denver, CO 80202
303-628-3300 /
Fax: 303-628-3368
lyonst@hallevans.com /
s/ __Raymond K. Bryant________
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