Gehl Group v. Koby, 1-12
| Citation | 63 F.3d 1528 |
| Decision Date | 16 August 1995 |
| Docket Number | D,No. 1-12,No. 94-1016,1-12,94-1016 |
| Parties | The GEHL GROUP, a Florida corporation; Michael K. Brady; Fraternal Order of Police, Northern Colorado Lodge # 3; and Fraternal Order of Police, Colorado Metroplex, Plaintiffs-Appellants, v. Thomas KOBY, individually and in his official capacity as Chief of Police for the Police Department of the City of Boulder, Colorado; George Epp, individually and in his official capacity as Sheriff of Boulder County, Colorado; Boulder City Police Department; Boulder County Sheriff's Department; Boulder, City of; Board of County Commissioners of the County of Boulder, Colorado; Dave Hayes, individually and in his official capacity as a Sergeant for the Police Department of the City of Boulder, Colorado; Detective Ross, individually and in his official capacity as a Detective for the Police Department of the City of Boulder, Colorado; and John Doesefendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Donald B. Gentry of Wood, Ris & Hames, P.C., Denver, CO (Michael E. Gurley, of Hamilton & Faatz, Denver, CO, with him on the brief), for plaintiffs-appellants.
Robert M. Liechty of Halaby, McCrea & Cross, Denver, CO (Theodore S. Halaby, of Halaby, McCrea & Cross, and Thomas B. Buescher, of Brauer, Buescher, Valentine, Goldhammer & Kelman, P.C., Denver, CO, co-counsel, for defendants-appellees Dave Hayes and Detective Ross, with him on the brief) for defendants-appellees Thomas Koby, the Boulder City Police Dept., City of Boulder, Dave Hayes, and Detective Ross.
Thomas B. Buescher, of Brauer, Buescher, Valentine, Goldhammer & Kelman, P.C., Denver, CO, for defendants-appellees Dave Hayes and Detective Ross, submitted on the briefs.
H. Lawrence Hoyt, Boulder County Atty., and Andrew R. MacDonald, Asst. Boulder County Atty., Boulder, CO, for defendants-appellees George Epp, the Boulder County Sheriff's Dept., and the Bd. of County Com'rs of the County of Boulder, submitted on the briefs.
Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge and EBEL, Circuit Judge.
Plaintiffs-Appellants ("Plaintiffs"), two Colorado chapters of the Fraternal Order of Police ("FOP") and their solicitation agent, the Gehl Group ("Gehl"), as well as Gehl's regional manager Michael Brady ("Brady"), brought this action under 42 U.S.C. Secs. 1983 & 1985 and Colorado state law. Plaintiffs charged that various law enforcement and other officials of the City of Boulder ("City Defendants") and the County of Boulder ("County Defendants") tried to prevent them from soliciting charitable contributions in the Boulder area in violation of their constitutional rights. Specifically, Plaintiffs maintain that Defendants filed baseless criminal charges against them and selectively and vindictively prosecuted them because of FOP's constitutionally protected activities in contravention of their First Amendment, equal protection, procedural due process, and substantive due process rights. The district court rejected each of these claims and granted summary judgment for Defendants. We conclude that Plaintiffs have failed to establish that Defendants abridged their constitutional rights, and affirm the judgment of the district court.
The FOP is a private national association of law enforcement personnel that engages in a variety of activities to promote the interests of its members. Northern Colorado Lodge No. 3 ("Lodge No. 3") and the Colorado Metroplex are local FOP groups affiliated with the national association and are active in various Colorado counties, including Boulder County. 1 Beginning in 1988, Lodge No. 3, the Colorado Metroplex, and other Colorado FOP chapters hired Gehl to assist in their fund-raising efforts by soliciting charitable contributions and selling tickets to entertainment shows sponsored by the FOP.
As a result of Gehl's activities in the Boulder area, the Boulder Police Department began to receive complaints from citizens in January 1991 alleging that Gehl solicitors were misrepresenting that contributions would go directly to the Boulder Police Department and not to the FOP. The volume of complaints increased when an article appeared in The Daily Camera newspaper in Boulder on January 9, 1991 in which Boulder Police Department Sergeant David Hayes ("Hayes") disclaimed the department's association with the fund-raising solicitations. After Hayes verified two of the citizen complaints in the summer of 1991, Boulder police detective John Ross ("Ross") drafted a criminal complaint against Gehl's regional manager Michael K. Brady ("Brady"), charging Brady with violation of Colorado's Fraud in Effecting Sales Act, codified at Colo.Rev.Stat. Sec. 18-5-301. 2 Ross obtained the approval of the Boulder Police Department's legal advisor before drafting the complaint; Hayes then submitted the complaint to the district attorney's office.
Deputy District Attorney Joan Nagel ("Nagel") reviewed the summons and complaint, as well as a file from the district attorney's consumer affairs division chronicling complaints about FOP fund-raising activities, and concluded that, "my recommendation at this time is not to begin a criminal prosecution." Appellant App. at 64. Nagel advised against pursuing criminal charges because the FOP had been cooperative in dealing with the problem, had taken affirmative steps to prevent future misrepresentations, was sending out accurate literature, and actually had several Boulder area law enforcement personnel as members. Nevertheless, Nagel stated that "[a]fter reading over the case files and the statute, I believe we have a prosecutable case," and she proceeded to provide Hayes with advice on how to bring charges if he decided to do so. Nagel suggested that, if the department wished to prosecute, the summons should be (1) issued specifically for Fraud in Effecting Sales under Colo.Rev.Stat. Sec. 18-5-301(1)(e), a class two misdemeanor; (2) issued to the FOP affiliates and/or Gehl, depending on who was making the misrepresentations, and not to any individuals (because one identified offending solicitor had already left Gehl, and a charge against Gehl would have a more long-lasting impact); and (3) served on the registered agent(s) of the corporation(s).
Contrary to Nagel's recommendation, Ross served a summons on Brady, the designated representative for Gehl, naming Brady as the defendant but describing the offense as Gehl's making of misleading statements. Allegedly, when Ross wrote the summons he commented to Brady that "I don't want to write this Summons; I don't think this is much of a case; I'm following orders and have to do it; I want you to know I don't want to do this." Appellant App. at 92.
In any event, before the trial was scheduled to begin, Plaintiffs requested a meeting with Boulder law enforcement representatives. A meeting was held on January 7, 1992 and attended by Boulder Chief of Police Thomas Koby ("Koby"), Hayes, Ross, Sheriff of Boulder County George Epp ("Epp"), attorneys from the district attorney's office and the Boulder Police Department, Fort Collins police officer and the president of the Colorado FOP at the time, Scott Goff ("Goff"), attorneys representing the FOP and Gehl, Brady (via a conference call), the president of the Boulder Police Benefit Association, who was the collective bargaining representative for Boulder police officers at the time, and the head of the University of Colorado Police. The parties dispute what transpired and was said at the meeting.
Goff maintains that FOP representatives began the meeting by stating that they were willing to take any corrective measures necessary to prevent future misrepresentations, but that Sheriff Epp responded, Appellant App. at 88. Brady corroborates Goff's recollection. Appellant App. at 93. Furthermore, Goff and Brady assert that Koby called the FOP "prostitutes of the law enforcement profession." Koby contends that he simply stated that the FOP was "prostituting themselves off the back of the police officers by allowing themselves to be sold so cheaply," and that at the time he made the statement he understood that professional fund-raisers like Gehl only return 10 percent of collected money to the charitable organization. Appellant App. at 69. Nevertheless, according to Goff and Brady, Koby continued to warn that although Plaintiffs were not committing a felony or violating the law and that the charges were being dropped, he wanted the FOP out of Boulder County and would continuously file charges in the future until "something stuck" or the FOP stopped calling in Boulder. Appellant App. at 89, 92. When Goff and Brady told Koby that his actions were illegal and different from how other solicitors were treated in Boulder County, they maintain that Koby responded that he did not care about other solicitors, wanted the FOP to stop soliciting in Boulder County, and would continue to solicit complaints from citizens.
Koby and Epp do not explicitly deny making the statements described by Goff and Brady. However, they contend that although FOP representatives offered to improve their solicitation methods, they were unable to guarantee that none of their solicitors would make misrepresentations. As such, Koby and Epp explain that Plaintiffs were told that they would or could face prosecution if they remained unable to comply with the law. Goff and Brady deny that they stated that they could not control their solicitors, and reiterate that Koby and Epp warned that charges would be filed until they stopped soliciting.
Two days after the meeting, the district attorney moved to dismiss the criminal case, stating that (1) the summons and complaint were improperly issued to Brady on behalf of Gehl; (2) the charges were improperly brought under...
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