Montgomery v. Chernak
| Decision Date | 28 February 2019 |
| Docket Number | Civil Action No. 18-cv-00217-REB-KLM |
| Parties | WILLIAM MONTGOMERY, Plaintiff, v. MATTHEW CHERNAK, MIKE HOWARD, and MATTHEW BROUGH, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants' Motion to Dismiss [#17]1 (the "Motion"). Plaintiff filed a Response [#24] in opposition to the Motion, and Defendants filed a Reply [#28]. Pursuant to 28 U.S.C. § 636 (b)(1)(A) and D.C.COLO.LCivR 72.1(c), the Motion has been referred to this Court for a recommendation regarding disposition. See [#19]. The Court has reviewed the Amended Complaint [#14], Motion [#17], Response [#24], Reply [#28], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#17] be GRANTED.
Plaintiff William Montgomery is a resident of Colorado who has "been known as an activist for homeless populations in Fort Collins" and was "considered to be a troublemaker by the Fort Collins police" for his activism. Am. Compl. [#14] ¶¶ 2, 9. He brings this suit against Matthew Chernak ("Chernak"), Mike Howard ("Howard"), and Matthew Brough ("Brough"), officers with the Fort Collins Police Department (collectively, the "Defendants"). Id. ¶¶ 10-12. On April 25, 2018, Plaintiff filed the Amended Complaint (the "Complaint"), asserting four4 claims against Defendants arising from Plaintiff's arrest on January 28, 2016. Id. ¶¶ 71-94. Plaintiff brings First Amendment retaliatory arrest and prosecution claims against Defendants Chernak and Howard. Id. ¶¶ 71-76. In addition, Plaintiff brings Fourth Amendment claims of unlawful arrest, wrongful detention, and malicious prosecution against all three Defendants. Id. ¶¶ 77-94. Plaintiff brings his claims under 42 U.S.C. § 1983 and asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Id. ¶¶ 5, 6. Plaintiff seeks compensatory damages, punitive damages, interest, costs, expertwitness fees, reasonable attorney fees, "and any other and further relief that this Court shall deem just and proper." Id. at 23.
Plaintiff's claims concern a public plaza located in the City of Fort Collins and a chain link fence that was constructed thereon. Id. ¶¶ 14-16. Plaintiff begins his Amended Complaint with a lengthy recitation of the history of the plaza and the fence which the Court summarizes insofar as it is relevant to Plaintiff's claims.
According to Plaintiff, the plaza was for public use and, "at some point . . . became regularly used by homeless members of the public who sought a place to congregate, rest, and socialize." Id. ¶¶ 16-17. The plaza "was well-known by officers of the Fort Collins Police Department[,] especially those who were responsible for patrolling the area and/or who were regularly dispatched to the location" because of complaints concerning the growing homeless population. Id. ¶¶ 19-21. According to Plaintiff, each Defendant "regularly patrolled and/or were dispatched to the area and knew the area well[,]" and "knew the public plaza was public property." Id. ¶ 22.
On or before January 11, 2016, a private company that was constructing buildings near the plaza built "a six-foot chain-link fence around the public plaza to block the homeless from accessing or congregating in the public space." Id. ¶ 23. According to Plaintiff, city officials of Fort Collins were displeased with the fence and emailed the company to express their concerns. Id. ¶¶ 26-27. Specifically, on January 26, 2016, Rob Mosbey ("Mosbey"), Chief Construction Inspector for the City of Fort Collins, sent an email advising the company "that the placement of the fence blocked public property, was an illegal encroachment, and must be removed." Id. ¶ 28.
Between January 11 and 26 of 2016, Plaintiff became aware of the fence and "contacted the City Planner's office for an explanation regarding the fence." Id. ¶ 29. On or about January 26, 2016, Chief Inspector Mosbey informed Plaintiff "that the public plaza remained public property within a public right-of-way, that the chain-link fence was an illegal obstruction, and that Inspector Mosbey had ordered [the company] to remove the fence." Id. ¶ 30. On or about January 27, 2016, Chief Inspector Mosbey provided Plaintiff with a paper copy of the email exchange "pertaining to the city representative's official communication that the area remained public property, that the fence was an illegal obstruction, and that the fence must be removed." Id. ¶ 31. In light of this information and with "proof of Inspector Mosbey's conclusions and orders regarding the illegal fence," Plaintiff began visiting the plaza again, climbing the fence each time, and "spread[ing] the word that the fence was illegal and that the space continued to remain a place where public visitors should be permitted access and public use." Id. ¶ 32. Ultimately, after the incident of Plaintiff's arrest summarized below, the fence was removed from the plaza on February 16, 2016, as had been ordered by Chief Inspector Mosbey. Id. ¶ 66.
Plaintiff's claims in this case are premised on the following incident and subsequent events. On January 28, 2016, Defendants were dispatched to a 7-11 located near the plaza for a trespass complaint against Melvin Swett ("Swett"). Id. ¶ 33. When Defendants arrived, Plaintiff was conversing with Mr. Swett on a public sidewalk outside of the 7-11. Id. ¶ 34. According to Plaintiff, Defendants Howard and Chernak "approached Mr. Swett and began asking questions in a voluntary consensual encounter." Id. ¶ 35. Defendants "did not convey to Mr. Swett that he was being detained[ ]" and therefore, Plaintiff"questioned whether the officers were detaining Mr. Swett and/or had reasonable suspicion to believe Mr. Swett had committed any crime." Id. Defendants Howard and Chernak Id. ¶ 36.
Plaintiff states that he complied with Defendant Howard's request by walking to the nearby public plaza, climbing the surrounding fence, and watching the Defendants' interaction with Mr. Swett "for any evidence of mistreatment." Id. ¶ 37. Plaintiff states that, by standing within the plaza, "he thought[ ] he could not reasonably be perceived as interfering, since a fence physically separated him from the officers." Id. Moreover, Plaintiff "saw his presence within the public plaza as an opportunity to raise awareness to the issues pertaining to the illegal fence on public land." Id.
Plaintiff alleges that "Defendants Howard and Chernak took obvious offense to Plaintiff's criticism of the officers and his continued observation of the police interaction after they told him to leave, which they viewed as disobedience and a challenge to their authority." Id. ¶ 38. Plaintiff avers that, because of this, Defendants "decided to punish and retaliate against him, by manufacturing a pretextual reason to arrest Plaintiff." Id. Seeing the fence surrounding the plaza, Defendants Howard and Chernak "discussed with each other that the fence might provide them an illusory justification to assert that Plaintiff was trespassing." Id. ¶ 39.
Defendant Howard then approached the fence and told Plaintiff "that he was trespassing and to provide his name and date of birth." Id. ¶ 41. "Plaintiff verbally questioned the determination that he was trespassing by telling Defendant Howard andChernak that he was allowed to be present in the public plaza because it was part of a public park and/or right-of-way, that the fence was an illegal encroachment designed to discriminatorily keep homeless people out, and that he had spoken to the city's Chief Inspector and confirmed that he was allowed to be present there." Id. At some point during this explanation, Plaintiff provided his name which Defendants used to conduct a background search. Id. ¶ 42. Plaintiff overheard his date of birth being transmitted over Defendants' police radio and confirmed that date was correct. Id.
Defendants Howard and Chernak then told Plaintiff that he was going to be taken into custody and charged with trespass. Id. ¶ 43. At this time, Defendant Brough arrived to assist and the Defendants asked Plaintiff to climb back over the fence so that they could take him into custody. Id. Plaintiff did not comply with this request, "verbally protest[ing] the officers' conclusions and[,] continu[ing] to provide information to the three officers [to] indicat[e] that he was not breaking the law." Id. ¶ 44. Plaintiff reiterated "the nature of the property, the illegal fence, and his discussion with Inspector Mosbey, to Defendant Brough;" and informed the Defendants that he possessed the email from the City Inspector's Office which would prove "the truth about the nature of the property and his lawful presence there." Id. ¶¶ 44-45.
Once it became clear to Plaintiff that Defendants were not listening to or interested in Plaintiff's explanation, "Plaintiff yelled out to his brother, who was parked across the street in a white van observing the incident, [and asked] him to bring the email proof for the officers to see." Id. ¶ 47. Plaintiff's brother approached the scene and provided the email from Inspector Mosbey to Defendant Brough, who read the email in front of Plaintiff and then handed the email to Defendant Chernak "who also looked at it." Id. ¶¶ 48-49. Plaintiffalleges that, because of this, "both officers knew or should have known that the email provided exculpatory evidence demonstrating that Plaintiff could not have been trespassing by being present in the public plaza." Id. ¶ 49.
After reading the email, Defendants Chernak and Howard walked away from the plaza outside of the...
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