Ungerer v. Moody, 91CA1082

• Decision Date: 28 January 1993
• Docket Number: No. 91CA1082,91CA1082
• Citation: 859 P.2d 251
• Parties: Max UNGERER, Plaintiff-Appellant, v. David MOODY, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 251

859 P.2d 251

Max UNGERER, Plaintiff-Appellant, v. David MOODY, Defendant-Appellee.

No. 91CA1082.

Colorado Court of Appeals,

Div. III.

Jan. 28, 1993.

As Modified on Denial of Rehearing

March 11, 1993.

Certiorari Granted Oct. 4, 1993.

James Schum, Hotchkiss, for plaintiff-appellant.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Jane R. Christman, Asst. Atty. Gen., Denver, for defendant-appellee.

Opinion by Judge BRIGGS.

Plaintiff, Max Ungerer, appeals the trial court's dismissal pursuant to C.R.C.P. 12(b)(5) of his complaint against the defendant, David Moody, an officer with the Colorado State Patrol. The complaint asserted claims for false arrest and violation of plaintiff's constitutional rights to be free from unreasonable search and seizure and to due process, brought under 42 U.S.C. § 1983 (1988), and sought exemplary damages. Plaintiff contends the trial court erred in concluding that defendant was immune from suit on all claims. We agree and reverse the trial court's dismissal of plaintiff's complaint, except as to the claim of deprivation of due process.

Because this appeal involves review of a dismissal for failure to state a claim, we must view the allegations of the complaint as true, Denver & Rio Grande Western R.R. Co. v. Wood, 28 Colo.App. 534, 476 P.2d 299 (1970), and in the light most favorable to the plaintiff. Bell v. Arnold, 175 Colo. 277, 487 P.2d 545 (1971).

The complaint, when so viewed, indicates that plaintiff, a county employee, was operating a road grader and returning to the county shop on a state highway when defendant pulled him over for "impeding traffic." At defendant's request plaintiff gave defendant his driver's license. Defendant did not issue a traffic citation. However, defendant kept the license and instructed plaintiff to proceed to the shop. When they arrived at the shop, defendant contacted plaintiff's supervisor and complained to him about plaintiff. Defendant then returned plaintiff's driver's license and left without issuing a traffic ticket.

After reviewing accounts of the incident, defendant's supervisor determined that defendant's conduct was "in error and in need of improvement," specifically concerning Colorado State Patrol Procedure II(G)(1). That provision states: "Upon the conclusion of a contact with a violator, the driver's license should be returned to the violator."

I.

Plaintiff contends that the trial court erred in concluding that, as a matter of law, defendant's conduct did not violate clearly established law and that defendant was therefore immune from suit on plaintiff's § 1983 claim. We agree.

Section 1983 provides in relevant part:

Every person who, under color of any statute, ... subjects ... any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

Government officials, however, are entitled to qualified immunity from § 1983 damage suits based upon conduct that occurs in the performance of discretionary functions. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). This immunity protects police officers from suits for civil damages as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. More concretely, whether a police officer is protected from suit by qualified immunity turns on an objective standard of reasonableness, assessed in light of the legal rules that were "clearly established" at the time the actions were taken. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Unless the plaintiff's allegations state a claim of violating clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

In addressing a motion for dismissal based on qualified immunity, the court must first determine whether the alleged conduct sets out a constitutional violation, and secondly, whether the constitutional standards applicable to the facts alleged were clearly established at the time of the claimed violation. Abouzari v. Foster, 795 P.2d 1386 (Colo.App.1990). Put another way, the contours of the right must be sufficiently clear that a reasonable official In the typical case, the sole question is whether an admitted search or seizure was based on probable cause. See, e.g., Anderson v. Creighton, supra. Here, however, defendant contends that merely holding plaintiff's driver's license while he continued on to the shop was not a constitutional violation because it did not constitute a seizure or an arrest.

would understand that what he is doing violates that right. Hilliard v. City & County of Denver, 930 F.2d 1516 (10th Cir.1991); National Camera, Inc. v. Sanchez, 832 P.2d 960 (Colo.App.1991).

This raises the question whether the test of objective reasonableness applies not only to the existence of justification for any restraint on freedom, but also to the determination of whether the police officer's actions constitute a seizure or arrest. We conclude that it does.

When government officials abuse their offices, 'action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.' ... On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.... Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.

Anderson v. Creighton, 483 U.S. at 638, 107 S.Ct. at 3038, 97 L.Ed.2d at 529-530.

This accommodation would be undermined if police officers were required to defend themselves in lawsuits and be subject to liability when the law was not clearly established that their actions constituted a seizure. Therefore, applying the constitutional standards as articulated at the time of this incident, we must determine whether the complaint sufficiently alleged facts indicating that a reasonable police officer in defendant's position would have realized his actions constituted a seizure in the constitutional sense and that those actions were without justification.

A.

Defendant does not contest, and we agree, that his initial stop of plaintiff constituted a seizure. See Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980) (fn. 3); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Defendant nevertheless argues that his actions after the initial stop in keeping plaintiff's license and ordering him to proceed to the county shop did not constitute a continuing seizure because, under §§ 42-2-101 and 42-2-102, C.R.S. (1984 Repl.Vol. 17), plaintiff could lawfully operate the road grader without his driver's license. We are not persuaded.

At the time of this incident, the law was clearly established that whether a person has been seized in the constitutional sense depends not on the officer's subjective state of mind, but rather on an objective standard of whether a reasonable person in that situation would have believed that his freedom of action was restrained in any significant way. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); People v. Trujillo, 784 P.2d 788 (Colo.1990); see also People v. Tottenhoff, 691 P.2d 340 (Colo.1984); People v. Pancoast, 659 P.2d 1348 (Colo.1982).

The law was also clearly established at the time that the perceived restraint could arise either from actual physical force or from a show of authority. Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); People v. Carillo-Montes, 796 P.2d 970 (Colo.1990).

When this incident occurred, retaining a license or other similar piece of personal property was an established factor in determining whether a reasonable person would consider themselves free to leave. See United States v. Gonzalez, 763 F.2d 1127 (10th Cir.1985); United States v. Waksal Also, an officer directing a person to another location without informing him that he was free to ignore the "request" was considered at the time of this incident to be a persuasive factor in ascertaining that the person could reasonably believe he was not free to leave. See United States v. Gonzalez, supra; United States v. Waksal, supra; People v. Tottenhoff, supra, and cases cited therein.

709 F.2d 653 (11th Cir.1983); United States v. Miller, 589 F.2d 1117 (1st Cir.1978).

Further, an apparently accommodating demeanor on the part of the officer does not necessarily indicate a lack of restraint. See United States v. Gonzalez, supra; United States v. Waksal, supra.

Under the circumstances alleged in the complaint, plaintiff reasonably could have believed that, because defendant had retained his license and instructed him to go directly to the shop, there could be other consequences if he did not follow those instructions and that the only way to retrieve the license, and thus go anywhere else, was to comply with defendant's instruction. See United States v. Gonzalez, supra. As the Fifth Circuit had observed prior to defendant's actions: "Only exceptionally clear evidence of consent should overcome a presumption that a person requested to accompany an agent to an office no longer would feel free to leave." United States v. Berry, 670 F.2d 583, 598 (5th Cir.1982).

"[T]he body of existing law need not involve the exact fact pattern presented by the case at hand, but ... case law in closely...