Derosier v. Balltrip
| Decision Date | 08 March 2016 |
| Docket Number | Civil Action No. 15-cv-01026-JLK |
| Citation | 149 F.Supp.3d 1286 |
| Parties | Lawrence Raymond Derosier, Plaintiff, v. Officer Kenneth Balltrip, in his individual capacity, Commander Aaron Sanchez, in his individual and official capacity, and Town of Johnstown, a government municipality, Defendants. |
| Court | U.S. District Court — District of Colorado |
Sarah Jay Schielke, Life & Liberty Law Office, Fort Collins, CO, for Plaintiff.
Cathy Havener Greer, William Thomas O'Connell, III, Wells, Anderson & Race, LLC, Denver, CO, for Defendants.
Exasperated with the Greeley Tribune's repeated littering of his yard despite his numerous complaints, Plaintiff Lawrence Derosier called the paper and suggested that he would “take a shot at” the next delivery person to visit his property. The next day, the Johnstown police arrested Plaintiff at his home for the crimes of menacing and telephone harassment. The charges were subsequently dropped, and Plaintiff now brings five 42 U.S.C. § 1983
claims for violation of the First and Fourth Amendment against the arresting officer, that officer's supervisor, and the Town of Johnston. The Defendants have moved to dismiss all of Plaintiff's claims on the grounds that they are barred by the doctrine of qualified immunity. For the reasons that follow, Defendants' motion is GRANTED IN PART and DENIED IN PART.
Plaintiff, a resident of Johnstown, alleges that the Greely Tribune repeatedly placed an advertising circular called “The TribExtra” onto his yard. Doc. 121 at ¶ 15. Because the TribExtra would not always be secured by a rubber band, the pages littered Plaintiff's yard. Id. Over the course of two years, Plaintiff called the Greely Tribune multiple times and asked that they stop dumping the TribExtra on his property, but the deliveries continued. Id. at ¶¶ 16-17.
On July 16, 2013, Plaintiff called the Greely Tribune and spoke with employee Brooke Brown. He again asked that the deliveries of the TribExtra be stopped and stated in pertinent part that Id. at ¶ 19. Brown asked if Plaintiff was “threatening her driver,” and Plaintiff responded “[n]o, but I am telling you that this needs to stop.” Id. at ¶ 20. Brown contacted the Johnstown Police Department and spoke with Defendant Kenneth Balltrip. Id. at ¶ 21. After speaking with Ms. Brown, Officer Balltrip had a conversation with Commander Sanchez and they agreed that there was probable cause to arrest Plaintiff for menacing and telephone harassment. Id. at ¶ 23. Officer Balltrip and another officer went to Plaintiff's home to arrest him, but he was not there. Id. at ¶ 24.
On July 17, 2013, Officer Balltrip called Plaintiff and asked him to come down to the station. Id. at ¶ 25. Plaintiff declined to do so, and when asked by Officer Balltrip if he had threatened to shoot a courier for the Greely Tribune, Plaintiff said “he had not threatened to shoot anyone and that he did not even own a firearm.” Id. After this phone call and another meeting with Commander Sanchez, Officer Balltrip and Officer Steven Bakovich2 each took a squad car to Plaintiff's home and entered his property. Id. at ¶¶ 26-28. The officers banged on Plaintiff's front door, and Plaintiff opened it “just a crack” but refused to come outside. Id. at ¶¶ 29-30. Officer Balltrip then displayed his firearm and told Plaintiff “he had no choice,” at which point Plaintiff was placed under arrest. Id. at ¶ 30. Plaintiff was held in Weld County Jail for twelve hours and was released on bond the following day. Id. at ¶ 32. On July 7, 2014, the Weld County District Attorney dropped the charges and closed the case. Id. at ¶ 34.
On May 14, 2015, Plaintiff filed suit under 42 U.S.C. § 1983
, alleging (1) a Fourth Amendment violation for false arrest (an arrest without probable cause) against Officers Balltrip and Commander Sanchez; (2) a First Amendment violation against Officers Balltrip and Commander Sanchez; (3) a Fourth Amendment violation for false arrest (imprisonment) against Officers Balltrip and Commander Sanchez; (4) a First and Fourth Amendment violation for unconstitutional custom or practice against Commander Sanchez and the Town of Johnstown; and (5) a First and Fourth Amendment violation for failure to train or supervise against Commander Sanchez and the Town of Johnstown. Doc. 12 at ¶¶ 36-87. Defendants have moved to dismiss all five claims on the grounds that they are barred by the doctrine of qualified immunity. Doc. 10.
Qualified immunity is an affirmative defense to a 42 U.S.C. § 1983
action, providing immunity from suit from the outset. DeSpain v. Uphoff , 264 F.3d 965, 971 (10th Cir.2001). Because qualified immunity is “an immunity from suit rather than a mere defense to liability...it is effectively lost if a case is erroneously permitted to go to trial.” Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Accordingly, if the defense of qualified immunity is asserted, it should be resolved “at the earliest possible stage in litigation.” Id.
To “survive a motion to dismiss based on qualified immunity, the plaintiff must allege sufficient facts that show—when taken as true—the defendant plausibly violated his constitutional rights, which were clearly established at the time of violation.” Sanchez v. Hartley , 65 F.Supp.3d 1111, 1122 (D.Colo.2014)
(quoting Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir.2012) ). “In order for a constitutional right to be clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Quinn v. Young , 780 F.3d 998, 1005–06 (10th Cir.2015) (quoting Wilson v. Montano, 715 F.3d 847, 852 (10th Cir.2013) (internal alterations and quotations omitted)). In addition, for a right 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.” Weise v. Casper , 593 F.3d 1163, 1167 (10th Cir.2010) (quoting Cortez v. McCauley, 478 F.3d 1108, 1114–15 (10th Cir.2007) ).
Plaintiff's first claim is that his Fourth Amendment rights were violated when he was arrested on his property without a warrant, and allegedly without probable cause, on July 17, 2013. See Doc. 12 at ¶¶ 37-38.
“When a warrantless arrest is the subject of a § 1983
action, the defendant is entitled to qualified immunity if a reasonable officer could have believed that probable cause existed to arrest or detain the plaintiff.” Stearns v. Clarkson , 615 F.3d 1278, 1283 (10th Cir.2010) (quoting York v. City of Las Cruces , 523 F.3d 1205, 1210 (10th Cir.2008) ). “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford , 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)
(citing Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) ). This analysis looks to the totality of the circumstances, and whether a reasonable person would believe that an offense has been committed by the person arrested. Morris v. Noe , 672 F.3d 1185, 1192 (10th Cir.2012) (quoting United States v. Martin, 613 F.3d 1295, 1302 (10th Cir.2010) ).
In Colorado, “[a] person commits the crime of menacing if, by any threat ... he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury.” C.R.S. § 18–3–206(1)
. In determining whether the defendant knowingly placed or attempted to place another person in fear of imminent serious bodily injury, the proper focus is on the intent and conduct of the actor, not of the victim. People v. Shawn , 107 P.3d 1033, 1035 (Colo.App.2004). The prosecution need only prove the defendant was aware that his or her conduct was practically certain to cause fear. Id. ; see
People v. Saltray , 969 P.2d 729, 731 (Colo.App.1998). “A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she ... initiates communication with a person or directs language toward another person ... by telephone ... intended to harass or threaten bodily injury.” C.R.S. § 18–9–111(1). “The gravamen of the offense is the thrusting of an offensive and unwanted communication on one who is unable to ignore it.” People v. Weeks , 197 Colo. 175, 591 P.2d 91, 96 (1979) ; see
People v. McBurney , 750 P.2d 916, 917 (Colo.1988) ().
In deciding this motion, I “must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed.” Ruiz v. McDonnell , 299 F.3d 1173, 1181 (10th Cir.2002)
. Thus viewed, the facts are these: immediately after making the alleged threat to Ms. Brown to “take a shot at” the...
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Nibeck v. Marion Police Dep't
...and, by extension, declines to infer that Nibeck's speech is unprotected by the First Amendment. See, e.g., Derosier v. Balltrip, 149 F. Supp. 3d 1286, 1292-93 (D. Colo. 2016) (at motion to dismiss stage, defendant-officers lacked probable cause to arrest the plaintiff for harassment where ......