Barton v. City and County of Denver
| Decision Date | 02 June 2006 |
| Docket Number | Civil Action No. 04-cv-00319-PSF-PAC.,Civil Action No. 03-cv-02633-PSF-PAC. |
| Citation | 432 F.Supp.2d 1178 |
| Parties | Lillian BARTON, Plaintiff, v. CITY AND COUNTY OF DENVER, Officer R. Blea, Badge No. 99006, Officer N. Sagen, Badge No. 96-021, Officer John Doe, Mayor John Hickenlooper, in his Official capacity, Wellington Webb, as former Mayor, in his Official capacity only, Gerald R. Whitman, in his Official capacity as Chief of Police, City and County of Denver, J. Wallace Wortham, Jr., former Denver City Attorney, in his Official capacity, and Chris Ramsey, former Denver Deputy City Attorney, in his Official capacity only, Defendants. City and County of Denver; Richard Blea; Nick Sagan; Josh Vasconcellos; Mayor John Hickenlooper; Wellington Webb; Gerald R. Whitman; Rudy Sandoval; J. Wallace Wortham, Jr; and Chris Ramsey, Defendants. |
| Court | U.S. District Court — District of Colorado |
This matter comes before the Court on the Recommendation of the Magistrate Judge filed March 21, 2006 (Dkt.# 208), defendants' Objection thereto filed April 4, 2006 (Dkt.# 210), plaintiff's Initial Objection thereto filed April 4, 2006 (Dkt.# 211), her Second Objection filed April 10, 2006 (Dkt.# 215), and defendants' Response to Plaintiffs Objections (Dkt.# 220) filed May 5, 2006. The matter is ripe for determination.
The Magistrate Judge recommended granting in part and denying in part the defendants' Motion for Partial Summary Judgment filed August 15, 2005 (Dkt. 144). In order to set forth the import of the Magistrate Judge's Recommendation, it is necessary to first set forth the plaintiffs claims, all of which arise out of an incident that occurred on February 24, 2002, when plaintiff was detained by Defendant Denver Police Officers Sagan, Blea and Vasconcellos ("defendant officers"). Plaintiff was subsequently charged by the Denver City Attorney with violation of a municipal code provision prohibiting interference with police authority, but the prosecution was dismissed prior to trial for lack of probable cause. The details of the incident and the subsequent events are set forth in the Recommendation of the Magistrate Judge and need not be repeated here.
Plaintiff originally filed her complaint in Civil Action No. 03-F-2633 (now 03-cv-2633-PSF-PAC) on December 26, 2003, which defendants answered on February 9, 2004. On February 20, 2004, plaintiff filed a motion seeking leave to file a First Amended Complaint requesting to add parties and to recast her claims for relief, but before that motion was ruled on plaintiff filed her complaint in Civil Action No. 04-F-0319 (now 04-cv-319-PSF-PAC) on February 23, 2004, which was essentially the same as the pending proposed amended complaint. By Order of this Court entered on March 8, 2004, the two cases were consolidated. Thus the complaint in Civil Action No. 04-F-0319 became the operative complaint. The Court notes that at the time these pleadings were filed plaintiff was represented by counsel.
The complaint in Civil Action No. 04-319 contains six claims for relief. Plaintiffs First Claim for Relief alleges that Defendants Sagan, Blea and Vasconcellos, in violation of 42 U.S.C. § 1983, violated plaintiffs constitutional rights to be free from an unlawful arrest, unlawful search and the use of excessive force. The Second Claim for Relief avers that Defendants Sagan, Blea and Vasconcellos, together with Defendants Wortham, Sandoval and Whitman, in violation of 42 U.S.C. § 1983, assisted in a malicious prosecution of the plaintiff following the incident of February 24, 2002. The Third Claim for Relief asserts that Defendants Wortham, Sandoval and Whitman, together with Defendants Webb, Ramsey and Hickenlooper, in violation of 42 U.S.C. § 1983, violated plaintiffs constitutional and civil rights by condoning "a policy of covering up misconduct by police officers through the malicious prosecution of persons mistreated by police officers as well as through other means." Complaint at ¶ 84. The Fourth Claim for Relief alleges common law malicious prosecution, apparently by Defendants Wortham and Ramsey only. The Fifth Claim for Relief contends that the conduct of all defendants (other than Hickenlooper) constitutes the torts of intentional infliction of emotional distress and outrageous conduct. The Sixth Claim for Relief seeks an injunction against Defendants Hickenlooper, Webb, Whitman, Sandoval, Wortham and Ramsey from continuing to enforce the asserted policy of covering up police misconduct.
The Defendants' Motion for Partial Summary Judgment seeks dismissal of all of the claims filed by the plaintiff, with the exception of that portion of her First Claim for Relief to the extent it alleges that plaintiff was unlawfully arrested and searched by Defendants Sagan, Blea and Vasconcellos in connection with the incident that occurred on February 24, 2002, and that portion of her Fifth Claim for Relief to the extent it alleges that such conduct by these three defendants constitutes outrageous conduct (Defendants' Motion for Partial Summary Judgment at 2-3).
In a detailed 36-page Recommendation, the Magistrate Judge carefully analyzed the applicable law and the facts pertaining to each of plaintiffs six claims for relief. In order to address the parties' respective objections to the Recommendation, a summary of the Magistrate Judge's conclusions and analysis as to each claim is set forth below.
To the extent plaintiffs First Claim for Relief alleges the unlawful use of excessive force by Defendants Sagan, Blea and Vasconcellos, the part of that claim as to which defendants request summary judgment, the Magistrate Judge first noted that the standard for determining whether excessive force was employed differs depending on whether the incident at issue is deemed an "arrest" or "investigative stop" as police may be able to use more force in making an arrest than in effecting an investigative stop, citing to Cortez v. McCauley, 438 F.3d 980, 995 (10th Cir.2006).1 As the circuit panel also explained in Cortez, an arrest is "unreasonable" under the Fourth Amendment if it is not supported by "probable cause" to believe an offense was being or was about to be committed. An unreasonable investigative stop occurs when the investigative detention is "not supported by reasonable suspicion." Id. at 989.
The Magistrate Judge found that there were actually two separate arguable seizures of plaintiff that occurred on February 24, 2002, the first involving plaintiff being removed from her vehicle, handcuffed, placed in the back of a patrol car and later released (described in the Recommendation as the "first arrest") and a second incident later when plaintiff, after being released from the patrol car, was grabbed by her shoulders from behind and restrained while Officer Blea retrieved plaintiff's driver's license from her purse (described in the Recommendation as the "second arrest"). (Recommendation at 1200-01). Although the Magistrate Judge and the parties all agree that both of these incidents are properly described as "seizures" within the meaning of the Fourth Amendment, the parties apparently do not agree whether they should be treated as "arrests" or "investigative stops."
As the Magistrate Judge further noted, the Cortez case also holds that if the arrest or investigative stop (seizure) is ultimately determined to be unlawful, that is, it is not supported by probable cause in the case of an arrest or reasonable suspicion in the case of an investigative stop, the plaintiff may not recover separately on a claim for excessive force (id.). This is because [a]ny force that law enforcement officers apply in order to effect a seizure is, by definition, excessive if the seizure is unlawful." Id. at 996. "Therefore, when an excessive force claim rests solely on an allegation that the force was excessive because the underlying seizure itself was unlawful" a jury cannot be permitted to award damages on both the claim for unlawful seizure and the claim for excessive force in effecting the seizure. Id. Thus the Magistrate Judge correctly recognized that under such circumstances, plaintiffs excessive force claim is subject to the entry of summary judgment if the arrest or investigative detention that occurred on February 24, 2002 is found to be unlawful (Recommendation at 1201).2
On the other hand, as the Magistrate Judge correctly found, if the seizure of plaintiff that occurred on February 24, 2002 is found to be lawful, the question remains whether the amount of force used was reasonable in light of the "totality of the circumstances" as explained in Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865; 104 L.Ed.2d 443 (1989) ().
The Magistrate Judge here found that if the first seizure of plaintiff, as described above, is deemed to be an "arrest," the amount of force used by Defendants Sagan, Blea and Vasconcellos was not excessive based on her very detailed analysis of decided cases addressing excessive force claims in the context of an arrest (Recommendation at 1201-03). Thus, the Magistrate Judge recommended granting these defendants' motion for summary judgment as to the...
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