Sears v. City of Aurora, et al

Filing 40

ORDER denying 34 Motion for Partial Summary Judgment and granting in part and denying in part 35 Motion for Summary Judgment, by Judge John L. Kane on 3/31/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02836-JLK
MARK SEARS,
Plaintiff,
v.
CITY OF AURORA and DANIEL OATES, in his individual and official capacity,
Defendants.
______________________________________________________________________________
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (Docs. 34 & 35) AND
FOR PRETRIAL CONFERENCE
______________________________________________________________________________
KANE, J.
Plaintiff Marc Sears was terminated as an Aurora police officer after being involved in a
single-car accident and refusing to consent to a chemical test. He was charged with DUI, and
later plead to a reduced charge of careless driving. At the time, Sears had already had a previous
DUI conviction while on the police force, which had resulted in disciplinary action and a
warning from Aurora Police Chief Daniel Oates that any future incident involving alcohol abuse
would likely lead to his termination. After an internal investigation into the second incident,
Chief Oates did, in fact, terminate Sears from the Department.
Sears challenged his termination in administrative proceedings, ultimately resulting in a
modification of his disciplinary action from termination to a six-month suspension without pay.
Because Chief Oates admitted during the administrative proceedings that his decision to
terminate Sears was based “in part” on Sears refusal to consent to the blood test, Sears filed suit,

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characterizing the admission as proof of Fourth Amendment retaliation in violation of 42 U.S.C.
§ 1983 and naming Chief Oates in both his individual and official capacities as a defendant.1
The parties cross-move for summary judgment: Sears arguing Oates’s admission is
sufficient to entitle him to judgment as a matter of law and the City/Oates arguing Sears is not
only collaterally estopped and procedurally barred from pursuing his § 1983 claim, but that
neither is subject to suit because the record supports the existence of no constitutional injury. I
reject each of these arguments.
The operative standard of proof in a constitutional retaliation claim under § 1983 is that
set forth in Wulf v. City of Wichita, 883 F.2d 842, 856-57 (10th Cir. 1989), namely, that
constitutionally protected conduct was a “substantial or motivating” factor for the adverse
employment action at issue and that but for the protected activity, no adverse employment action
would have been taken.2 The burden of proof under this standard is cleaved: The employee
must prove constitutionally protected activity was a “substantial or motivating” factor in his
termination, and, if he makes this showing, the employer may avoid liability by proving the
employee would have been terminated irrespective of the protected activity. Both sides miss the
point in this case by eliding the employment context in which the alleged retaliation took place
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Sears also names the City of Aurora independently as a defendant, but the inclusion is redundant. For
purposes of municipal liability under § 1983, a suit against a municipality and a suit against a municipal
official acting in his or her official capacity are one and the same. See Watson v. City of Kansas City,
Kan., 857 F.2d 690, 695 (10th Cir. 1988)(citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985) and Monell
v. Department of Social Servs., 436 U.S. 658, 690 n. 55 (1978)).
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The protected activity at issue in Wulf was a criminal suspect’s exercise of First Amendment rights, but I
see no reason to treat the exercise of Fourth Amendment rights as analytically precluded under the facts
of this case. And while the City and Chief Oates take pains to distinguish Sears’s refusal in this case to
consent to a blood test in the context of a DUI investigation from the exercise of any cognizable Fourth
Amendment right, I find the issue easily resolvable under existing law. A chemical test is a search within
the meaning of the Fourth Amendment, and requires either a warrant or an exception to the warrant
requirement to effect. Voluntary consent is an exception to the warrant requirement. See Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973). If a blood test cannot be procured under the Fourth Amendment
with a warrant or the suspect’s consent, the suspect’s refusal to consent is clearly an exercise of his
Fourth Amendment rights. See id.
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and focusing, instead, on the standard in DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990)
that involved retaliation by a police detective against a private citizen based on the citizen’s
actions in securing counsel.
Under the proper evidentiary standards in this case, any admission by Oates that Sears’s
consent refusal was “a” factor in his decision would be insufficient, by itself, to support a claim
for damages under § 1983 and Sears’s Motion for Summary Judgment is therefore DENIED.
This determination also precludes individual liability on the part of Chief Oates under the
doctrine of qualified immunity: If § 1983 liability cannot lie for simply considering an
employee’s refusal to consent to a blood test in disciplinary action, without more, then no
reasonable person in Chief Oates’s position would have understood that doing so violated any
clearly established constitutional norm. Further, Sears’s admission that he had had a previous
DUI conviction and had been warned, by Chief Oates, that “another instance with the abuse of
alcohol [and] I would most likely . . . be terminated” (Sears Depo. at 126-27) actually supports
the City’s affirmative defense under Wulf that Oates would have fired Sears anyway,
irrespective of his exercise of his Fourth Amendment rights. I do not reach this issue on
summary judgment, however, because neither the City nor Sears address the evidence under the
appropriate Wulf standard.
As for the City and Chief Oates’s assertion that Sears’s § 1983 claim is administratively
or procedurally barred, those arguments are also rejected. Constitutional claims fall outside the
scope of C.R.C.P 106(a)(4) and are therefore not precluded by it. Similarly, the administrative
proceedings in which Sears engaged with the City of Aurora did not include the pursuit of
constitutional claims so Sears is not collaterally estopped from pursuing them here.

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Based on the foregoing, Defendants’ Motion for Summary Judgment (Doc. 35) is
GRANTED in part and DENIED in part. It is GRANTED to the extent that Chief Oates is
shielded from any liability on Plaintiff’s § 1983 claim in his individual capacity under the
doctrine of qualified immunity and Plaintiff’s claim against him in that capacity is dismissed.
Defendants Motion for Summary Judgment is DENIED in all other respects. Sears’s Motion for
Summary Judgment, in which he purports to be entitled to judgment on his § 1983 claim as a
matter of law (Doc. 34), is also DENIED. This matter shall proceed against the City of
Aurora/Chief Oates in his official capacity only, and will be set for a pretrial conference and trial
setting forthwith.
The parties are directed to CONFER regarding the substance of this Order and call in to
chambers no later than April 10, 2014, to set the case for a pretrial conference. The parties are
advised that the case will be analyzed under the standards articulated in Wulf in that it is an
employment retaliation case requiring proof of invidious animus for liability to attach. This
means that no constitutional deprivation will lie in the absence of proof that Sears’s
constitutionally protected conduct was a “substantial or motivating factor” in the decision to
terminate his employment; that it was “a” factor will not be enough. The jury will have to find
that Fourth Amendment retaliation was both “a” factor in Oates’s termination decision and a
factor that made a difference. That is, Defendants would avoid liability under § 1983, even if
Oates’s decision were motivated “in part” by Sears’s consent refusal, if they prove Sears would
have been terminated, anyway, without reference to that fact. Given Sears’s admissions already
in the record, it appears unlikely he will be able to surmount such a defense.
Dated March 31, 2014.

s/John L. Kane______________
SENIOR U.S. DISTRICT JUDGE
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