Ullerich v. Shrader

• Decision Date: 14 July 2022
• Docket Number: Civil Action 21-cv-02954-RMR-KLM
• Parties: DUSTIN J. ULLERICH, Plaintiff, v. JEFF SHRADER, Sheriff, in his official capacity, CITY OF GOLDEN, CITY OF ARVADA, MARK DONAHUE, Golden Police Department Sergeant, ANTHONY BROWN, Jefferson County Sheriff Deputy, NICHOLAS TURCO, Jefferson County Sheriff Deputy, JORDON BYBEE, Jefferson County Sheriff Deputy, BRETTON CLARKE, Arvada Police Department Officer, and DOES 3-10, Defendants.
• Court: U.S. District Court — District of Colorado

DUSTIN J. ULLERICH, Plaintiff,
v.
JEFF SHRADER, Sheriff, in his official capacity, CITY OF GOLDEN, CITY OF ARVADA, MARK DONAHUE, Golden Police Department Sergeant, ANTHONY BROWN, Jefferson County Sheriff Deputy, NICHOLAS TURCO, Jefferson County Sheriff Deputy, JORDON BYBEE, Jefferson County Sheriff Deputy, BRETTON CLARKE, Arvada Police Department Officer, and DOES 3-10, Defendants.

Civil Action No. 21-cv-02954-RMR-KLM

United States District Court, D. Colorado

July 14, 2022

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, MAGISTRATE JUDGE

This matter is before the Court on the Motion to Dismiss Plaintiff's First Amended Complaint [#49], filed by Defendants Jeff Shrader (“Shrader”), Anthony Brown (“Brown”), Nicholas Turco (“Turco”), and Jordan Bybee (“Bybee”) (collectively, the “County Defendants”)^[1]; on the Motion to Dismiss Plaintiff's First Amended Complaint [#50], filed by Defendants City of Arvada and Bretton Clarke (“Clarke”) (collectively, the “Arvada Defendants”); and on the Motion to Dismiss [#51], filed by Defendants City of Golden and Mark Donahue (“Donahue”) (collectively, the “Golden Defendants”). Plaintiff

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filed Responses [#55, #56, #57] in opposition to the Motions [#49, #50, #51], and Defendants filed Replies [#60, #61, #62]. The Motions [#49, #50, #51] have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#52]. The Court has reviewed the Motions, the Responses, the Replies, 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 Motions [#49, #50, #51] be GRANTED in part and DENIED in part.

I. Background^[2]

In short, this lawsuit arises from the execution of an “immediate entry” (“no knock”) search warrant at Plaintiff's home which took place at 4:00 a.m. on November 7, 2019. Am. Compl. [#43] ¶ 14. At the time of the underlying events, Plaintiff was around fifty years old, had no criminal history, and was in a committed relationship with Valarie Malcovich (“Malcovich”), with whom he lived in a single-story home located in Golden, Colorado. Id. ¶¶ 15, 17. He ran a tattoo parlor, was a member of a motorcycle club, and was registered with the Jefferson County Sheriff's Office (“JCSO”) as permitted to carry a concealed firearm, which required him to pass a background investigation, make certain disclosures, and abide by the law. Id. ¶¶ 15-16.

The investigation leading to the “immediate entry” search warrant dates at least to July 19, 2019, almost four months before its execution, when a purportedly unreliable informant facing multiple criminal charges, including jumping bail, made unproven

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allegations about several people, including Plaintiff. According to the warrant application, Plaintiff covered up tattoos at his parlor. Id. ¶ 18. The warrant included Plaintiff's home and tattoo parlor among nineteen locations to be searched, as well as fourteen other listed individuals. Id. The simultaneous service of the multi-location search warrant had been in planning for at least a month before the warrant on Plaintiff's home was executed, long before the warrant itself was issued. Id. ¶ 22.

The search warrant application listed the following fifteen categories of personal property to be seized during the search of Plaintiff's home: (1) Hells Angels Motorcycle Club (“HAMC”) membership indicia; (2) Destroyers Motorcycle Club (“Destroyers”) membership indicia; (3) any “article” showing association with the HAMC or Destroyers; (4) HAMC “Rules” and communications related to HAMC business or membership; (5) Destroyers “Rules” and membership records; (6) documents reflecting HAMC or Destroyers membership; (7) HAMC membership “Out Forms” and group photos; (8) West Coast Officer notes and East Coast Officer notes, phone rosters, and membership background investigation forms; (9) communication devices such as cell phones and iPads; (10) articles of personal property tending to establish the identity of people in control or possession of the place, such as utility company receipts; (11) any electronic devices capable of storing location information and/or communicating with other devices; (12) safes where the other items might be stored; (13) clothing and jewelry items likely to contain DNA trace evidence; (14) 1934 Ford pick-up owned by Plaintiff; and (15) video surveillance system. Id. ¶ 19.

For the most part, these items are documents and records, or storage devices such as personal computers, iPads and phones, or things like clothes and jewelry. Id. ¶ 21.

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According to Plaintiff, virtually none of the items to be seized could be destroyed while a Special Weapons and Tactics (“SWAT”) team was making entry. Id. No narcotics, weapons, ammunition, or contraband were listed, and the warrant did not seek records of illegal activity such as human, narcotics, or weapons trafficking. Id. According to Plaintiff, none of the items listed on the warrant was illegal to possess, membership in motorcycle clubs was not illegal, and the possession of “indicia” of membership or records of club membership and activities was also not illegal. Id. ¶ 20.

Plaintiff's home was assigned to Jefferson County Regional SWAT, a joint operation of the JCSO and the Golden and Arvada police departments. Id. ¶ 23. Defendant Donahue, a Golden Police Sergeant, directed the Jefferson County Regional SWAT operation at Plaintiff's home. Id. ¶ 24. He knew that Plaintiff had no criminal history and possessed a concealed-carry permit for a firearm. Id. He also allegedly knew that despite the “no knock” authorization for multiple locations, including Plaintiff's tattoo parlor, the search warrant for Plaintiff's home could have been safely and successfully executed by simply walking up to the front door during daylight hours, knocking or ringing the doorbell, showing the warrant to Plaintiff or whoever else came to the door, and then searching for and seizing the items listed, because none of the items was susceptible to flushing or destruction or could be used as a weapon against the officials serving the warrant. Id.

Regardless, Defendant Donahue instructed the SWAT deputies and officers under his command to “breach, bang and hold” Plaintiff's front door, which, in short, means to execute a plan to sneak up on the home, destroy the front door with explosives while breaking windows, and ordering the occupants outside without SWAT entering the home.

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Plaintiff states that this plan was “total overkill” given the totality of the circumstances. Id. ¶ 25. Allegedly, Defendant Donahue formulated and implemented this “extremely violent, unnecessarily destructive, and dangerous tactical plan” in concert with the individual defendants and others serving the warrant on other locations, because the “no knock” provision created an opportunity to gratuitously damage Plaintiff's home and to harass him in retaliation for alleged associations which were, according to Plaintiff, not in themselves illegal and were actually constitutionally protected. Id.

SWAT staged near Plaintiff's home during the early morning of November 7, 2019, because the plan was to attack multiple locations listed in the warrant simultaneously at 4:00 a.m. Id. ¶ 26. Inside the home, three people were sleeping: Plaintiff, Ms. Malcovich, and a houseguest who was recovering from injuries sustained in a vehicle accident. Id. ¶¶ 17, 26. None had any warrants for his or her arrest, and Plaintiff alleges that each would have complied with police commands and process once awakened. Id. ¶ 26.

When Defendant Donahue saw what appeared to be common home security equipment located near the front door, consisting of surveillance cameras and exterior lights activated by a motion detector, he decided against the explosives because, according to the District Attorney's report, “if someone in the residence was awake and came to the door to find out why their motion detector lights were on, there was a potential that the charge detonating at the front door could severely injure or kill that person on the other side of the door.” Id. ¶ 27. Defendant Donahue switched the plan to a “mechanical breach,” which means assigning an officer to use a handheld ram to break down the door. Id. All of the SWAT members, including the other individual defendants in this lawsuit,

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were briefed on the change in plans and thus allegedly had notice that using ordnance to open the front door posed an unreasonable risk to occupants of the home. Id. ¶ 28.

SWAT members approached the house in a “Bearcat” armored car and disembarked wearing helmets, body armor, and balaclava face coverings, allegedly solely for the purpose of looking scary to people whom they would encounter in the home. Id. ¶ 29. As they quickly moved onto the front porch, they “needlessly” detonated “flashbang” grenades in the yard, which woke the occupants and alerted them that their home was under “attack” by law enforcement. Id.

Defendant Donahue directed Defendant Turco, a JCSO Deputy, to shatter the glass in a window at the front of the home, and Defendant Clarke, an Arvada Police Officer, to fire 40-millimeter rounds through another window, shattering more glass. Id. ¶ 30. The sounds of the windows shattering before SWAT attempted to open the front door attracted attention to the front of the house much more dramatically than a “motion detector light” would have done. Id. Moreover, Plaintiff alleges that there was no law enforcement purpose for shattering the windows, especially because, even after the windows were shattered, curtains continued to block the SWAT members' views into the house. Id. The sounds of the breaking windows attracted Plaintiff's attention to the front of his house and “instilled fear that his home would be further damaged or destroyed unless he took immediate action” to let the SWAT...