McInerney v. McLaughlin et al

Filing 10

ORDER Denying 6 Motion to Dismiss by Dennis King, by Judge Richard P. Matsch on 12/14/2011.(rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 11-cv-01773-RPM
JOAN MCINERNEY,
Plaintiff,
v.
BRIAN MCLAUGHLIN and
DENNIS KING,
Defendants.
_____________________________________________________________________
ORDER DENYING MOTION TO DISMISS BY DENNIS KING
_____________________________________________________________________
On November 1, 2011, the defendant Dennis King filed a motion to dismiss the
plaintiff’s complaint against him. The plaintiff has responded and the defendant King
replied. The motion to dismiss appears to argue that the plaintiff’s claim is barred by
collateral estoppel as a result of proceedings in the Municipal Court, City of Golden,
Colorado, and the Jefferson County District Court on appeal. Copies of the orders are
attached. The municipal judge found that Officer King and Deputy Sheriff McLaughlin
entered Ms. McInerney’s house without any observable reasonable basis and therefore
were in violation of her rights and liberty. The judge said, “This illegal entry is so far
removed from being justified as to warrant action that will discourage similar activity by
law enforcement personnel.” To do so, the court dismissed with prejudice the charge of
misdemeanor harassment in violation of the Golden Municipal Code.
On appeal, the district court reversed the order of dismissal, finding that the legal
conclusions were not supported by sufficient evidence. In doing so, the district court

made clear that the conduct in serving the summons had no bearing on the conduct for
which Ms. McInerney was charged and therefore dismissal was not an appropriate
remedy. The district court did not change the findings of fact made by the municipal
judge. Accordingly, there is no proper claim of issue preclusion here.
The defendant King also asserts qualified immunity, contending that the entry
was justified by circumstances giving rise to an entry for a “welfare check.” It is clearly
established law that a warrantless entry to a residence for the purpose of serving a
summons is a violation of the protection afforded by the Fourth Amendment to the
United States Constitution, applicable to the state under the Fourteenth Amendment.
Whether a reasonably trained police officer under the circumstances would believe that
the entry was justified for a welfare check is a matter that is factually disputed and
cannot be determined on a motion to dismiss based on qualified immunity. Indeed, the
stated justification of an emergency requiring police assistance is inconsistent with the
admitted fact that Dennis King waited for 30 minutes until the arrival of the Sheriff
Deputy McLaughlin.
It is now
ORDERED that the motion to dismiss filed by Dennis King is denied.
DATED: December 14, 2011
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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