Sanchez v. Hartley et al

Filing 236

ORDER Denying Defendant's Motion for Summary Judgment. Defendants' various motions for summary judgment (ECF Nos. 175 , 180 , 184 ) are DENIED. A Final Pretrial Conference before the undersigned is hereby SET for Thursday, December 2 1, 2017 at 10:00 a.m. before the undersigned in Courtroom A801 of the Alfred A. Arraj United States Courthouse, during which conference the Court will set this case for a Final Trial Preparation Conference and jury trial. ORDERED by Judge William J. Martinez on 10/26/2017. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1945-WJM-CBS
TYLER SANCHEZ,
Plaintiff,
v.
JOE RYAN HARTLEY, Detective, in his individual capacity,
RYAN WOLFF, Detective, in his individual capacity,
MIKE DUFFY, Detective, in his individual capacity,
HEATHER MYKES, Detective in her individual capacity,
MICHAEL DICKSON, Investigator, in his individual capacity,
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, and
DOUGLAS COUNTY SHERIFF’S OFFICE,
Defendants.

ORDER DENYING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

In this action, Plaintiff Tyler Sanchez (“Sanchez”) alleges that the various
Defendants knowingly or recklessly extracted from him a false confession to a sexual
assault for which he was unsuccessfully prosecuted, and that Defendants are therefore
liable to him under 42 U.S.C. § 1983 for malicious prosecution in violation of the Fourth
Amendment. Currently before the Court are three summary judgment motions filed by
various groups of parties, as follows: (1) a motion filed by Defendants Joe Ryan Hartley
(“Hartley”) and Ryan Wolff (“Wolff”) (ECF No. 184); (2) a motion filed by Defendants
Heather Mykes (“Mykes”), Mike Duffy (“Duffy”), the Board of County Commissioners of
Douglas County, and the Douglas County Sheriff’s Office (ECF No. 180); and (3) a
motion filed by Defendant Michael Dickson (“Dickson”) (ECF No. 175). Throughout this

order the Court will refer to the individual Defendants (i.e., all Defendants except the
Board of County Commissioners of Douglas County and the Douglas County Sheriff’s
Office) collectively as “Defendants,” unless the context requires otherwise.
For the reasons explained below, Defendants’ motions are denied, and this case
will be set for trial to resolve significant factual disputes that prevent the Court from
applying qualified immunity. Sanchez’s counsel are also cautioned regarding certain
exaggerated characterizations of the summary judgment record.
I. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

2

II. FACTS
The following facts are undisputed unless attributed to a party, or otherwise
noted.
A.

The Crimes in Question
1.

The Quarry Hill Sexual Assault

In the early morning of July 10, 2009, a mother residing on Quarry Hill Drive in
the Stonegate neighborhood of Parker, Colorado, made a 911 call to the Douglas
County Sheriff’s Office (“DCSO”), reporting that someone had broken into her home
through her eight-year-old daughter’s second story window and had sexually assaulted
the daughter. (ECF No. 180 at 4, ¶ 1; ECF No. 204 at 4 ¶ 8.) 1 DCSO began to
investigate, including through interviewing the family and the child, interviewing
neighbors, and gathering fingerprints and DNA. (ECF No. 180 at 4, ¶ 2.) The young
victim of the sexual assault told investigators that the perpetrator was a white man who
appeared to be about her father’s age (her father was 40 years old) and about the same
size and build as her father (her father weighed slightly less than 200 pounds), with
brown hair parted in the middle and no tattoos on his hands or arms. (ECF No. 204
at 4, ¶ 9.)
2.

The Branham Drive Trespass

On July 17, 2009 (one week later) at approximately 12:40 AM, Defendants Wolff
and Hartley (both Parker police officers) and DCSO Deputy Jason Cirbo (not a party
here), responded to a call regarding a prowler on Branham Drive in the Stonegate
neighborhood. (Id. at 5, ¶ 11.) Wolff, Hartley, and Cirbo learned that the caller (a
1

All ECF page citations are to the page number in the ECF header, which does not
always match the document’s internal pagination.

3

homeowner in the neighborhood) had noticed a man wearing black clothing and a dark
baseball cap in his backyard. (Id.; ECF No. 180 at 5, ¶ 5.) When the prowler spotted
the homeowner through a window, he fled, knocking over patio furniture and jumping
the back fence. (Id.)
Shortly thereafter, a Parker police officer (not a party here) observed a car at the
intersection of Lincoln Avenue and Chambers Road in Parker. (ECF No. 204 at 5, ¶ 12;
ECF No. 205-2 at 90.) By the shortest driving route, that intersection is just over 1 mile
from the Branham Drive address where the prowler had been reported. 2 This
intersection can see high traffic during the daytime, but is not busy in the middle of the
night. (ECF No. 184 at 3, ¶ 6.)
The reporting officer further noticed that the occupant of the car was a white male
wearing a black shirt. (Id.) The reporting officer relayed the car’s license plate number,
which Wolff entered into his computer and traced to an address on Birch Avenue in
Parker (which, as they would soon learn, was the address of Sanchez and his family).
(ECF No. 184 at 3, ¶ 7.) Wolff, Hartley, and others not parties here, drove to the Birch
Avenue address and found Sanchez sitting in his car—the same car spotted at Lincoln
and Chambers—in the driveway. (Id. ¶ 7.)
2

Sanchez’s counsel attempts to make this distance into a significant dispute because at
the preliminary hearing described later (Part II.E.2), Wolff estimated that the intersection of
Lincoln and Chambers was a “[m]ile and a half, two miles maybe” from the Branham Drive
address (ECF No. 205-2 at 90), whereas at his deposition in this case Wolff supposedly “lied
and stated that [the car in question] was seen less than three-quarters of a mile from Branham
[Drive]” (ECF No. 204 at 5, ¶ 12). In reality, the deposition testimony at issue shows that
Sanchez’s attorney asked Wolff to estimate “[h]ow far west” Chambers Road is from Branham
Drive, and in response to that question, Wolff answered “[m]aybe three-quarters of a mile.”
(ECF No. 204-14 at 15.) The question, in other words, had nothing to do with the distance
between Branham Drive and the intersection of Chambers and Lincoln. Regardless, using
Google Maps, the Court itself has calculated the distance from the Branham Drive address to
the intersection of Lincoln and Chambers, and now judicially notices that the distance is about
1.1 miles.

4

B.

Tyler Sanchez
As will become clear shortly, Wolff’s and Hartley’s encounter with Sanchez in his

driveway would lead to multiple interrogations over the course of the next few days
regarding a number of different crimes. But, how to view the evidence generated over
that time span turns heavily on what Wolff, Hartley, and the other Defendants allegedly
must have noticed regarding Sanchez’s physical appearance and mental functioning.
The Court will therefore address that matter before resuming the narrative.
At the time Wolff and Hartley first approached him, Sanchez was just a few days
shy of his nineteenth birthday. (ECF No. 204 at 2, ¶ 1.) He is a high school graduate.
(ECF No. 180 at 10–11, ¶ 27.) He has red hair, and wore it in a buzz cut as of July
2009. (ECF No. 204 at 4–5, ¶ 10.) Also as of July 2009, he had a very thin build and
weighed approximately 130 pounds. (Id.) He has easily visible tattoos on each
forearm, one reading “Sanchez” and the other reading “Michelle” (the name of his
girlfriend at the time). (Id.)
Sanchez claims that he is—and, as of July 2009, was—cognitively and
developmentally disabled. (Id. at 2, ¶ 2.) In support, he cites from the report of a
psychiatrist, Ashley Wheeler, M.D., who evaluated him in March 2012 (a circumstance
the Court will describe below in Part II.E.3.c). (Id. ¶¶ 2–4.) Dr. Wheeler opined that, in
July 2009, Sanchez suffered from “mixed receptive-expressive language disorder,
borderline intellectual functioning, auditory processing deficits, social anxiety, and
submissive personality traits.” (ECF No. 204-1 at 109.) He has, according to
Dr. Wheeler, “problems comprehending vocabulary, grammar, and understanding
abstract concepts.” (Id. at 95.) These problems can be exacerbated by anxiety and
fatigue. (Id. at 96.)
5

Most important for present purposes, Sanchez asserts that his “disabilities are
open and obvious.” (ECF No. 204 at 3, ¶ 5.) In particular, he claims that he
presents as a significantly younger person than his actual
age. His inability to understand questions and provide
appropriate responsive information, as well as his reduced
intellectual functioning, are obvious to anyone who speaks
with him. It is obvious that he is susceptible to suggestions
made by authority figures.
(Id. (citations omitted).) In support of these assertions, he cites the deposition testimony
of his parents and a criminal defense lawyer who later represented him. These
witnesses claim that Sanchez does not openly communicate, has limited conversation
ability, requires questions to be simplified, and that all of this is open and obvious—
although, partly to the contrary, his criminal defense attorney acknowledged that
Sanchez “masks it well” because “he doesn’t talk about the fact that he’s got a disability.
He doesn’t explain to you that he doesn’t understand you. * * * He’ll agree with anything
you say.” (ECF No. 204-5 at 15.)
The Court will frequently return to Sanchez’s disability, and its allegedly open and
obvious nature, in the Analysis section (Part III). For present purposes, it is enough to
keep the allegation in mind as it relates to the events described below.
C.

The Various Interviews and Interrogations
1.

Wolff’s and Hartley’s Interaction with Sanchez in His Driveway

When Wolff and Hartley approached Sanchez sitting in his car, they noticed that
he “appeared very nervous and was sweating.” (ECF No. 204 at 7, ¶ 16.) He was also
wearing black pants and a black McDonald’s shirt. (ECF No. 205-8 at 3.) Wolff and
Hartley then began interviewing Sanchez and reportedly learned that he had just
worked the late shift at McDonald’s. (Id.) When inquiring about whether Sanchez had

6

stopped anywhere on his way home from McDonalds, the officers—according to
Sanchez—“repeatedly suggested to Mr. Sanchez specific details about the Branham
Drive trespass,” after which Sanchez “allegedly admitted to [that] trespass by going
along with Defendants’ suggestions.” (ECF No. 204 at 7, ¶ 18.) Sanchez does not
concede that he actually admitted the trespass, and in fact accuses Wolff and Hartley of
fabricating most of the details of this interview, which was not video- or audio-recorded.
(ECF No. 200 at 2, ¶ 6.)
In the middle of this interview, Sanchez’s mother, Cynthia, exited the home.
(ECF No. 204 at 7, ¶ 19.) According to her deposition testimony, one of the police
officers (she does not remember which one) told her that she could not approach
Sanchez and so, she says, “I yelled out, I told him, He doesn’t understand all of this,
you know. And they wouldn’t let me—they just—I had to yell something out like that.”
(ECF No. 204-3 at 18.) 3
Based on what Wolff and Hartley claim to be Sanchez’s responses to their
questions, Sanchez was arrested for criminal trespass, and transported to the Douglas
County Jail. (ECF No. 204 at 8, ¶ 21.)
2.

Sanchez’s Interview with Wolff and Hartley at the Jail

Beginning at about 2:20 AM on July 17, 2009, Wolff and Hartley interviewed
Sanchez for about two hours in what was known as the “DUI room” of the Douglas
County Jail. (Id. ¶ 23.)4 The DUI room has video surveillance cameras, without audio,

3

Sanchez’s attorneys significantly exaggerate the evidentiary value of this statement,
citing it as support for the much bolder proposition that Cynthia Sanchez specifically “told
Defendants Wolff and Hartley that Mr. Sanchez was disabled and could not understand their
questions.” (ECF No. 204 at 8, ¶ 19.)
4

Wolff and Hartley allege that “the exact length of such interview is not known and [they]

7

but the Douglas County Jail preserves surveillance video for only thirty days, and the
video of this interview was not preserved before being overwritten in the normal course.
(Id. at 12, ¶ 35; ECF No. 210 at 6, ¶ 35; ECF No. 214 at 10, ¶ 35.) Sanchez attempts to
pin blame for this on Wolff and Hartley, alleging that they “permitted the tape to be
destroyed.” (ECF No. 204 at 12, ¶ 35.) Sanchez’s cited evidence does not actually
support this claim (see id.), but Wolff and Hartley cite no evidence that they could not
have ensured preservation of the video. At his deposition, Wolff stated that, at the time,
he “was not actively thinking that [the interview] was being recorded” and therefore took
no action to preserve the surveillance video. (ECF No. 204-14 at 41.)
Regardless, the parties agree that Wolff and Hartley not only asked about the
Branham Drive trespass, but also about the Quarry Hill sexual assault a week earlier
(which occurred in the same general neighborhood) and various other burglaries and
trespasses then being investigated by DCSO. (ECF No. 204 at 8–10, ¶¶ 24, 29.) Wolff
and Hartley mostly asked yes or no questions, including frequent questions where
Sanchez was asked whether he remembered various details of the crimes in question,
such as whether he remembered being in a backyard in the Stonegate neighborhood, or
fleeing through a second-story window at the Quarry Hill address. (Id. at 9, ¶ 27.)5
All of the facts that Sanchez eventually confirmed were facts that Wolff and
Hartley had supplied to him. (Id.) Moreover, although they had no DNA evidence, Wolff
and Hartley coyly asked Sanchez “if there would be any reason that his DNA would be
ha[ve] different estimates for such length” (ECF No. 214 at 8, ¶ 23), but they do not provide their
own estimates, and, more importantly, they fail to cite supporting evidence. The Court therefore
treats the two-hour length as undisputed for summary judgment purposes.
5

Sanchez’s cited evidence does not support his claim that Wolff and Hartley asked
“exclusively ‘yes or no’ questions.” (Id. (emphasis added).)

8

located on a tree and screen [at the Quarry Hill address] and [Sanchez] stated yes
because he climbed a tree [and removed a screen to get into the house].” (ECF No.
205-10 at 4.)6 And, concerning the Branham Drive trespass, Sanchez agreed with a
suggestion from Wolff and Hartley that he fled the backyard when the back porch light
came on, although the homeowner had never reported to police that he had turned on a
porch light. (ECF No. 204 at 9, ¶ 27.) By the end of the interrogation, Sanchez had
confessed to the Branham Drive trespass, and also to breaking into the Quarry Hill
address on the morning of the sexual assault, although he denied sexually assaulting
the girl. (Id. at 9–11, ¶¶ 27–28, 32; ECF No. 184 at 5, ¶ 15.) He also confessed to
certain other burglaries and trespasses, including incidents where—as with Quarry
Hill—Sanchez bore no obvious resemblance to the perpetrators as described by the
various victims. (ECF No. 204 at 10, ¶ 29.)
At 4:45 AM or thereabouts, Deputy Cirbo drafted and signed a Statement in
Support of Warrantless Arrest and a Misdemeanor Summons and Complaint, both
related to the Branham Drive trespass. (Id. at 13, ¶ 37.) Sanchez says that Deputy
Cirbo “relied solely on Hartley and Wolff’s representations” to draft these documents
(id.), and Hartley and Wolff concede that Cirbo “relied, in large part, upon [them] for the
information included therein” (ECF No. 214 at 11, ¶ 37). Both documents generally
repeated the statements Wolff and Hartley had coaxed out of Sanchez. (See ECF Nos.
205-1, 205-8.) They contain no mention of anything that might cast doubt on Sanchez’s
reliability, such as his demeanor, disabilities, suggestibility, allegedly suspected
6

Sanchez’s cited evidence does not support his claim that Wolff and Hartley “lied to
[him,] telling him that his DNA had been found in locations which implicated him in the crimes.”
(ECF No. 204 at 11, ¶ 31 (emphasis added).) Nonetheless, as will become clear below,
Sanchez interpreted this kind of statement as a direct accusation.

9

intoxication, etc. Sanchez claims that Wolff and Hartley intentionally omitted any such
details from the information conveyed to Cirbo. (ECF No. 204 at 13, ¶ 37.)
The Statement in Support of Warrantless Arrest reports the evidence against
Sanchez (apart from his black clothing and alleged profuse sweating when first
approached in his driveway) as follows:
Officers Hartley and Wolff spoke with Tyler Sanchez and
were told by Tyler Sanchez that he had not been in the area
[of the Branham Drive trespass] but had been on
Cherrywood Drive visiting a friend but then changed his story
and told them that he had in fact jumped the fence into the
backyard at [the Branham Drive address] because he
wanted to sit down but could not give a reason why he
wanted, or needed, to sit down in that particular yard. Tyler
Sanchez had said that he had been on his way home from
work at McDonald’s.
(ECF No. 205-8 at 3 (capitalization normalized).) As for the Quarry Hill sexual assault,
Hartley wrote a progress report in which he recounted Sanchez’s alleged confession as
follows:
•

He was asked if he remembered breaking into a house in
Stonegate about a week and a half ago near the
Stonegate pool.

•

He stated that he remembered breaking into that house.

•

He was asked how he got in and he stated that he did not
remember.

•

He was asked if he entered ground level or second level
or if he had to climb up the house.

•

He stated that he had to climb a little bit to get in but did
not remember where he climbed up at.

•

He was asked if after entering the house he went into a
room that was occupied by a person.

•

He stated that he remembered seeing someone while in
the house and being startled and jumping out a window.

10

•

When asked if the window was low or high he stated that
the window was high.

•

When asked who started [sic] him [and] he stated that he
did not remember.

•

He was asked specifically if it could have been a little girl
and he stated that it could have been.

(ECF No. 205-10 at 4.) Following this itemized list, the progress report continues as
follows:
Detective Wolff then questioned Tyler about his honesty in
the crimes that he had confessed to during the interview. . . .
Detective Wolff asked Tyler if he was only confessing to
involvement in these crimes because he thought that it was
what the Detectives wanted to hear or because he was
actually involved. Tyler stated it was because he
remembered being involved in the incidents. Detective Wolff
then asked if he remembered being startled by a little girl in
one of the burglaries in Stonegate and he again indicated
that he did. Detective Wolff asked specifically if he
remembered fondling the little girl before he jumped out the
window and ran away and Tyler stated he did not remember
that.
(Id. at 4–5.)
3.

Sanchez’s First Interview with Duffy and Mykes

Defendants Mykes and Duffy (both DCSO detectives at the time) were the “colead” investigators on the Quarry Hill sexual assault case. (ECF No. 204 at 14, ¶ 40.)
Not long after Wolff and Hartley finished interrogating Sanchez, they reported
Sanchez’s alleged confession regarding Quarry Hill to a DCSO officer, who relayed it to
Mykes and Duffy. (Id.) Mykes and Duffy then went to the Douglas County Jail to
interview Sanchez. (ECF No. 204-8 at 18.) 7

7

Sanchez claims that “the Parker community was up in arms [about the Quarry Hill
sexual assault] and Detectives Mykes and Duffy were under a significant amount of pressure to
solve the case. During her deposition, however, Detective Mykes lied and stated that she was

11

As of that date, both Mykes and Duffy had completed a forty-hour Crisis
Intervention Team (“CIT”) training course. (ECF No. 204 at 15, ¶ 43 (evidence cited);
ECF No. 204-20 at 14 (Mykes completed CIT training in 2005, and Duffy did so in
2006).) DCSO’s Rule 30(b)(6) deposition witness testified that CIT training is not aimed
at teaching officers how to conduct criminal investigative interviews with potentially
disabled persons, but is instead aimed at helping officers (among other things) to
ask[] information-gathering questions to try to assess what’s
going on, what might be going on situationally in the
person’s life to have them in crisis, what else is going on in
terms of drug use, alcohol use, medical issues, other mental
health issues, those types of questions, to try to get an
assessment of what’s going on, what’s driving the crisis, and
what can we do to help resolve it.
(ECF No. 212-7 at 7–8.) In that context, officers going through CIT training are
educated on how to recognize persons with cognitive disabilities, and are also informed
that some of these persons are likely to respond to officers by telling them what they
think the officers want to hear, meaning that leading questions should be avoided.
(ECF No. 204 at 15, ¶ 43 (evidence cited).)
Previous to their interview with Sanchez, Mykes and Duffy reviewed Wolff’s and
Hartley’s written progress reports regarding the interrogation earlier that morning, and
they spoke with Wolff and Hartley, although the precise scope of the conversation is
unclear. (ECF No. 204 at 14, ¶¶ 40–41.) As noted above, Duffy remembers Wolff and
Hartley stating a general concern that Sanchez might be under the influence of alcohol
under no pressure to solve this case.” (ECF No. 204 at 15–16, ¶ 46 (citations omitted).) The
evidence Sanchez cites to support these assertions falls well short of actually doing so. Rather,
this evidence shows that Mykes agreed that the case was “serious,” that her office had sent out
a public media release asking for help from the community, that Mykes’s DCSO superiors
considered the case a priority, and that those superiors put no unusual pressure on her to solve
it. (See id. (evidence cited).)

12

or drugs. (Id. ¶ 41.) Just before the interview, however, and apparently in Mykes’s
presence, detention officers required Sanchez to take a breathalyzer test, which
showed a breath alcohol level of zero. (ECF No. 204-8 at 18.)
That interview itself began at about 7:35 AM in a dedicated interview room with
an active audiovisual recording system. (See ECF No. 180-1 (video recording of the
interrogation); see also ECF No. 205-23 (transcript).) Sanchez had by that time been
awake since the previous morning with very little sleep. (ECF No. 204 at 17, ¶ 50.)
This fatigue is obvious in the video recording, as Sanchez yawns frequently, sometimes
speaks with his eyes closed, and occasionally rests his head on his hands or on the
table. (See generally ECF No. 180-1; see also ECF No. 204 at 17, ¶ 54.) Moreover,
Sanchez frequently expressed to Mykes and Duffy how tired he was, and he informed
them that he had slept for only about two hours over the last two days. (Id.) “Mykes
and Duffy [additionally] observed that Sanchez was extremely anxious and his legs
frequently shook.” (Id.) Mykes and Duffy also recognized that Sanchez did not match
the description of the Quarry Hill sex assault perpetrator. (Id. at 17, ¶ 51.)
At the beginning of the interrogation, Sanchez timidly attempted to explain his
alleged disability to the detectives through the following exchange between himself and
Mykes:
Q.

Any alcohol on board? Anything like that? Drugs?

A.

No. That’s what they thought when I talked to them
first but—

Q.

The reason I’m asking is you seem—

A.

’Cause I usually get hesitated [sic] when I talk to
these kind of people.

Q.

Any reason why?

13

A.

When I talk to these kind of people like police officers
and—

Q.

Okay.

A.

—all these.

Q.

That I understand. When is the last time you had
something to eat?

(ECF No. 205-23 at 9–10.) With Mykes’s change of subject, Sanchez made no more
effort to raise the topic. Soon after, however, Mykes asked him if he had “any kind of
medical conditions that we need to be concerned about,” to which Sanchez answered,
“No.” (Id. at 10.)
Sanchez also made an early effort to explain that he felt coerced by Wolff and
Hartley to confess to crimes he did not commit. This came out when Duffy began
questioning Sanchez about the route by which he drove home from McDonald’s earlier
that morning:
Q.

How come the different road today, or last night [sic],
excuse me?

A.

I don’t know. I decided it would be quicker.

Q.

Okay.

A.

Somehow, someone got my license plate then
somehow I stopped [somewhere else on the way
home from McDonald’s], which I didn’t. I know that
for a fact.

Q.

Okay.

A.

I’m telling 100 percent honest truth right now.

Q.

Okay. Do you remember telling them you stopped?

A.

I didn’t stop.

Q.

Okay. Do you remember telling the other detectives
that?

14

A.

I had to tell them—

Q.

Because they were different—

A.

I had to—

Q.

Okay. Go ahead.

A.

I had to tell them a different story because they
were[n’t] being—they were being like cooperative [sic]
saying I was lying, saying the same story I said first to
you.

Q.

Okay.

A.

Then saying—

Q.

What was the story you told them?

A.

The second—

Q.

The second time[.]

A.

That I stopped and all this, saying I went into
somebody’s backyard, which I didn’t, and I
trespassed, which I’m going to be charged. And
that’s why I’m here, you know?

Q.

Okay.

A.

Which I didn’t trespass. And that’s—

Q.

But did you tell them that you’d went in that backyard?

A.

Unfortunately I had to. Now I can’t do nothing about
it.

Q.

Did you mention seeing anything when you were in
that backyard[,] why you were there? No?

A.

No.

Q.

You didn’t tell them why you were there?

A.

I said something like I jumped the fence to—I don’t—
I don’t remember.

Q.

Okay.

15

A.

And somehow, they got—somehow they got DNA
fingerprints from—I don’t know. It’s just—I give up.

Q.

Okay. Let’s get off last night a little bit, okay?

(Id. at 23–26.) Duffy then attempted to steer the interrogation toward his and Mykes’s
main interest, the Quarry Hill sexual assault:
Q.

You had talked a little bit about some other stuff that
had been happening in this neighborhood and other
neighborhoods. Do you remember that part of the
conversation? That had been happening previous
weeks, months? Can you tell me what you told them
about those other incidents[,] about that?

A.

The—God, I’m too tired. Are you talking about
breaking into houses and—

Q.

Uh huh.

A.

—which, telling me I broke into a house a week and a
half ago, which I didn’t. I mean, I don’t—I can’t even
speak right now.

Q.

How come?

A.

I’m just so tired.

(Id. at 26–27.)
From there, Mykes and Duffy returned to seeking details about the Branham
Drive trespass, and also asked about any other similar crimes (without suggesting
details), which elicited a confession from Sanchez to some petty thefts from cars, to
breaking and entering on occasion with a friend named Brian, to an apparent incident of
joyriding with the same friend (discussed in the interview as “carjacking”), and to an
underage drinking misdemeanor already on his criminal record from a few months
earlier. (Id. at 27–53.) When pressed for details about breaking and entering, however,
Sanchez generally had no memory, prompting the following exchange between him and
Duffy:
16

Q.

Tyler, one of the things that’s really obvious here
today is if it’s something you know we already know
about, like your previous arrest, or just general
subject, man, you can just sit there and rattle off and
talk to us like nothing—like nothing else.

A.

I know, but I’m tired.

Q.

But when we talk to you about what we’re really here
about, then you’re tired.

A.

I know—I was—

Q.

It’s time to start talking partner, okay?

A.

I was saying—

Q.

Do you need—do we want to take a quick break and
take a deep breath and sip your Coke for a minute
and come back and we’ll start fresh and we’ll really
get into this? Does that sound like a good idea to
you? Kind of give you a minute to collect your
thoughts and we’ll just start—we’ll just let you sit there
and tell us the story, okay?
All right. Just take a minute. We’ll step out for just a
minute. We’ll give you a minute, okay?

A.

This still happened the last time [with] the other two
detectives.

Q.

Well, I’m not going to be—you know, obviously we’re
not yelling at you. We’re not threatening you, but it
is—I’m telling you right now, from our observations
and we’re both seeing it, that when you want to talk to
us, you can and you’re not tired and you’re able to
just tell us the story and this, that and the other, okay?

(Id. at 54–55.)
The interrogation then ceased for a few minutes. After the break, Mykes and
Duffy continued to try and elicit details about the times that Sanchez and “Brian” had
allegedly broken and entered into others’ houses, prompting Sanchez to state that he
and Brian had done so on perhaps five occasions and had stolen things like jewelry and

17

prescription drugs. (Id. at 59–71.) Mykes and Duffy then transitioned to (in Mykes’s
words) “the one that I really want to talk about . . . . Tell me about last Friday [alluding
to the Quarry Hill sexual assault].” (Id. at 73.) Sanchez denied “get[ting] into a house
that wasn’t [his]” on the previous Friday. (Id. at 74.) That led to the following: 8
Q [M]. . . . Is there reason that we might have your DNA in a
house on Friday?
A.

A house where?

Q [M]. In the Stonegate area?
A.

Why this?

Q [D]. It’s a simple question, Tyler. Is your DNA going to be
in a house in Stonegate on Friday?
A.

You mean, it was Friday night?

Q [M]. Friday morning. Thursday night to Friday morning.
Sun goes down on Thursday. Comes back up Friday.
In between those two times. Here’s the thing, Tyler,
okay?
A.

I’m—

Q [M]. Again, I’m really trying to be—
A.

I know.

Q [M]. —up front with ya. There was a burglary in Stonegate
Friday morning, and I think it was you. I would like for
you to try and prove me wrong. I would like you tell
me why you were—why I would find DNA from you in
that house. Explain to me why I’m going to find that
there, because I believe I will and we’ve already sent
some to the lab. Now we’re getting it screened and
when it comes back and it shows that it’s yours, I’ll
want to know why it was there.
A.

8

I wasn’t—

In this and subsequent excerpts, “[M]” and “[D]” denote Mykes and Duffy, respectively.

18

Q [M]. I want to know why.
A.

—in Stonegate.

Q [M]. You weren’t in Stonegate?
A.

I wasn’t in Stonegate[.]

Q [M]. Then where were you?
A.

I don’t know why my DNA is there.

(Id. at 75–77.)
Mykes and Duffy then told Sanchez that they would talk to his friend Brian who
would “sell you out.” (Id. at 78.)
Q [D]. He’s going to sit there and tell us everything he knows
about you. And we can’t get anything—you didn’t—
you can’t even remember where you were or what
you did on [sic] a week ago.
A.

Well, I know I didn’t break into a house a week ago.
I know that for a fact.

Q [D]. You’ve already told detectives you did. You’ve
already said you did, so now you’re saying you didn’t.
Q [M]. Tyler, I’m out of—
A.

I don't know—I don’t know why my DNA is showing
up.

Q [M]. I really, really want to believe you, but I’m having a
hard time. Every time we talk about a topic that might
be a little bit difficult for you, you’re putting your head
down, you’re rubbing your eyes. You’re saying
you[’]r[e] tired.
I ask you an inane question like when did you get
your haircut. You said a month ago, pretty quick.
You smiled. Your head came up. You were bright
and shiny, wide awake. I ask you about a week ago
and you don’t know where you were.
Do you see the problem I’m having? . . .

19

(Id. at 78–79.) Not long after, Mykes simply declared, “Fact of the matter, Tyler, is that
we’re not here to talk to you to see who did it. We know who did it. I want to know why,
maybe exactly how.” (Id. at 81.) Mykes and Duffy repeated that sentiment in various
different ways, apparently prompting Sanchez to begin thinking about the Branham
Drive trespass again. Sanchez volunteered that his relationship with his girlfriend had
recently been causing a lot of stress and so he had decided to go to “some random
person’s house and jump[] the fence, then just—I just find something.” (Id. at 84.)
Q [M]. You were going to find something. What?
A.

Like just find something to do and—sat there.

Q [M]. So what were you going to do back there?
A.

I don’t know. I was thinking about it at first that I was
still going to—that I was still doing it. Then all of a
sudden, a person—all of a sudden I saw a person,
then I jumped back over the fence.

Q [M]. You said you were thinking about doing it. You were
thinking about getting into the house, weren’t you?
A.

No, I wasn’t thinking about getting[,] about getting into
the house.

Q [M]. Okay. You were thinking about doing what?
A.

I don’t know. Just I don’t know.

(Id. at 84–85.)
Not primarily interested in Branham Drive, Mykes pivoted back to Quarry Hill,
prompting another attempt by Sanchez to explain that he confessed only because of
Wolff’s and Hartley’s unwillingness to accept any other answer:
Q.

Okay. Let me—I need to let you know about last
Friday, Tyler. There was a house that was broken
into. There was a very scared little girl. You know
what I’m talking about? Did you ever get into a house
and kind of scare a little girl? Didn’t see well, a little
20

bit scared? No?
So apparently this morning you admitted to having
scared a girl. Is that inaccurate?
A.

Yeah.

Q.

Is that a lie?

A.

Yeah.

Q.

Then why did you say it?

A.

’Cause he was just going—

Q.

You don’t have to talk about him. I’m asking why you
would say that then. Tell me now.

A.

They weren’t cooperating with me, ’cause if I said the
wrong thing, they would just say, “Oh, you’re lying.
Oh, you’re lying.” ’Cause for some reason they kept
thinking I was saying the wrong things. And they—

Q.

Well, they knew you were saying the wrong things,
and now you’re telling us how you broke into houses.
Come on now, man.

A.

But I didn’t—I didn’t do that.

Q.

You didn’t do what?

A.

What you just said.

Q.

Scare a little girl?
Did you go into the house and hadn’t planned on it,
but all of a sudden you got seen by a girl and it scared
her?

A.

No.

(Id. at 87–88.) After further denials, Mykes eventually put the question more plainly:
Q.

Tyler, you know what? With the games and this stuff,
Tyler, I’m going to ask you point blank, okay? Last
week, did you climb in through a window and sexually
assault a little girl?

A.

No. I didn’t.
21

Q.

You didn’t? You didn’t?

A.

No. I didn’t. I can take a lie detector.

Q.

You’d take a lie detector test?

A.

Yes, I can.

(Id. at 90.)
Very little of substance occurred through the remainder of the interview as
Mykes, Duffy, and Sanchez continued to talk in circles about what had really happened
on the morning of the Quarry Hill sexual assault. Nonetheless, two statements from
Sanchez are noteworthy. First, at one point, Sanchez emphasized that he had been
“awake for over thirty hours now.” (ECF No. 180-1 at timestamp 10:50:40.) 9 Second,
when Mykes later asked to obtain a urine sample from Sanchez (to ensure he was not
on drugs), Sanchez agreed but stated “I look like this most of the time . . . . * * * People
ask questions, if I’m on anything, if I’m just tired . . . .” (Id. at timestamp 10:59:05.)10
The interrogation ended at about 11:30 AM, four hours after it started. (ECF
No. 204 at 22, ¶ 65.) Sanchez was then returned to his jail cell. (See ECF No. 180-1 at
timestamp 10:30:00.)
4.

Mykes’s and Duffy’s Interview of Brian Coshnitzke

On the afternoon of the same day, Mykes and Duffy tracked down and
interviewed the friend Sanchez named as “Brian,” who turned out to be Brian

9

The Court could not locate in the record any transcript of the last hour of Sanchez’s
interrogation, and will therefore cite to the video evidence itself.
10

Mykes’s request for a urine sample was actually a follow-up to something she had
said near the beginning of the interrogation: “Q. And Tyler, I’ve got a question for you. I’ve got
a few things. I want to talk to you about drugs and marijuana and things. No alcohol? Just
tired? A. I haven’t slept in like two days. Q. Okay. Call me crazy, but I’d kind of like to be
sure. * * * Would you be willing to [give a blood or urine sample]?” (ECF No. 205-23 at 30–31.)

22

Coshnitzke. (ECF No. 204 at 22, ¶ 67.) Coshnitzke happened to be serving a short jail
sentence for a probation violation. (ECF No. 205-26 at 10.) Coshnitzke denied all
involvement in any crimes he supposedly committed with Sanchez, and when Mykes
asked Coshnitzke whether he believed Sanchez was capable of molesting a child,
Coshnitzke responded, “Tyler’s a weird kid, man. I don’t know what to say about Tyler.
He ain’t all up there. He—he’s different.” (Id. at 43–44.) Later, Mykes had an
exchange with Coshnitzke specifically about what she perceived to be Sanchez’s
oddities:
Q.

. . . Let me ask a real quick question about Tyler,
’cause he has some mannerisms that are a little
interesting. Does he kind of phase off sometimes
when you’re talkin’ to him? Or did he used to? Was
that—

A.

Yeah.

Q.

Like zone out?

A.

He was weird. . . . He was a weird kid, man.
***

Q.

I was just wonderin’, [’]cause like I said, when we
talked to him, he kinda phased out a couple times.

(Id. at 51, 53.)
5.

Sanchez’s Polygraph Examination with Dickson

As described above, Sanchez volunteered to “take a lie detector” regarding the
accusation that he molested a child at the Quarry Hill address. Apparently prompted by
this, a DCSO sergeant (not a party here) contacted Defendant Dickson, an investigator
employed by the Office of the District Attorney for the Eighteenth Judicial District. (ECF
No. 175 at 3–5, ¶¶ 2, 14.) Dickson performs polygraph examinations as part of his

23

employment. (Id. at 4, ¶ 9.) He is certified to perform such examinations and has
performed between 300 and 500 of them. (Id. at 4–5, ¶¶ 10–11.)
The DCSO sergeant who contacted Dickson did so on July 17, 2009 (the same
day Sanchez was taken into custody and interrogated), and asked Dickson to perform
the polygraph exam that same day. (Id. at 5, ¶¶ 14–16.) Dickson refused when he
learned that Sanchez had slept little the night before, but scheduled the examination for
the next day. (Id. ¶ 16.)
A little before 9:00 AM the following morning (July 18, 2009), Mykes and Duffy
transported Sanchez to Dickson’s office for the polygraph exam. (ECF No. 204 at 23,
¶ 69.) Dickson talked to Mykes and Duffy before the exam, and claims that Mykes and
Duffy “did not inform [him that] Mr. Sanchez had any cognitive limitations, was not very
smart, had trouble answering questions, became confused, had a bad memory, was
sleepy, was susceptible to suggestions, or that they had any difficulty interrogating
Mr. Sanchez.” (ECF No. 175 at 6, ¶ 22.) Sanchez denies this: “Given [Mykes’s and
Duffy’s] observations of Mr. Sanchez and their prior interview, it defies credulity to
suggest that that information was not passed on to Detective [sic] Dickson.” (ECF No.
199 at 2, ¶ 22.) The Court will return to this dispute in Part III.D.2, below.
In any event, the parties agree that investigation documents led Dickson to
recognize, before the exam, that Sanchez did not match the sexual assault victim’s
description of the perpetrator. (ECF No. 204 at 24, ¶ 70.) In addition, Dickson “is aware
of the possibility of false confessions, has been trained that people with low IQs are
more susceptible to suggestion, and that to avoid false confessions, it is important to
find corroboration and to get details from the witness.” (Id. ¶ 71.)

24

Dickson’s interactions with Sanchez (before, during, and after the polygraph
exam) began just after 10:00 AM and were video- and audio-recorded. (ECF No. 175
at 7, ¶¶ 24–25.) A transcript of the audio is also in the record. (See ECF No. 205-32.)
Mykes and Duffy observed all of these interactions as they happened, but from a
different room. (ECF No. 175 at 7, ¶ 27.)
The first portion of Dickson’s time with Sanchez was a “pre-polygraph interview.”
(Id. ¶ 24.) While asking some general questions, Dickson learned that Sanchez had
slept about eight hours the previous night, and that on a scale of “[g]ood, fair or poor,”
Sanchez rated that sleep as “[g]ood.” (ECF No. 205-32 at 15.) Dickson also learned
from Sanchez that Sanchez had been prescribed some sort of medication “for seizures”
that had begun three or four months earlier, although the actual effect of the medication
was to help Sanchez sleep. (Id. at 15–17.) Sanchez confirmed that he had received a
dose of this medication the previous night, in jail, before going to sleep. (Id. at 16.) A
little later in the interview, Sanchez stated that his seizure disorder created “problem[s]
with [his] memory.” (Id. at 28.)
Following the pre-polygraph interview, Dickson administered the polygraph test
itself, where the most significant questions were “Did you touch that girl’s vaginal area
while she was in her bedroom last July tenth?” and “About that girl in her bedroom last
July tenth, did you touch her between her legs?” (Id. at 107.) The examination then
concluded, and Dickson hand-scored the results. (ECF No. 175 at 10, ¶ 34.) He also
entered the results into “a computerized scoring system called the Objective Scoring
System.” (Id.) Both Dickson’s hand-scored result and the computer-generated result
were consistent with deception on the relevant questions. (Id.)

25

Sanchez has retained a polygraph expert, Dr. Charles Honts, to testify regarding
Dickson’s examination. (See ECF No. 205-31.) 11 Dr. Honts opines that Dickson’s
questions were poorly formulated to generate accurate responses; that Dickson’s
scoring method was one of the least accurate methods he could have employed given
the type of polygraph test he administered; and that a reasonable polygraph examiner
would never have administered a test after observing Sanchez’s inability to meaningfully
communicate (which Dr. Honts found “obvious” from the video of the examination) and
learning that his seizure disorder reportedly affects his memory. (Id. §§ 4.2–4.3.) Dr.
Honts also examined the raw data from Sanchez’s polygraph examination and handscored it himself. (Id. § 4.1.) He came up with a very different result, one that is
“inconclusive of truthfulness or deception” but much closer to an indication of
truthfulness than Dickson’s score. (Id. § 4.1.6.) Given all of this, Sanchez accuses
Dickson of “knowingly mis-scor[ing] the polygraph test” (ECF No. 199 at 3, ¶ 34) as part
of a “cynical exercise” to extract a confession (ECF 204 at 27, ¶ 79 (internal quotation
marks omitted)). Sanchez and Dr. Honts say nothing about the computer-generated
score that also suggested deception.

11

Dickson objects that Dr. Honts’s expert report is incompetent summary judgment
evidence because it is “unsworn” (i.e., not in the form of an affidavit or declaration). (ECF No.
220 at 9, ¶ 73.) The Court is frankly tired of addressing this utterly formalistic and baseless (yet
surprisingly common) objection. See Pertile v. Gen. Motors, LLC, 2017 WL 4237870, at *2 (D.
Colo. Sept. 22, 2017). The cases Dickson cites in support of his position—Adickes v. S. H.
Kress & Co., 398 U.S. 144, 158 n.17 (1970), and Sofford v. Schindler Elevator Corp., 954 F.
Supp. 1459, 1462–63 (D. Colo. 1997)—have been abrogated on this point by the 2010
amendments to Federal Rule of Civil Procedure 56. See Pertile, 2017 WL 4237870, at *2 & n.3.
The proper question at summary judgment is whether the proffering party “is incapable of
presenting its experts’ intended testimony ‘in a form that would be admissible in evidence [at
trial].’” Gunn v. Carter, 2016 WL 7899902, at *2 (D. Colo. June 13, 2016) (quoting Fed. R. Civ.
P. 56(c)(2)). Dickson does not attempt to show that Sanchez cannot bring Dr. Honts to testify at
trial, or that Dr. Honts’s opinions have not been adequately disclosed. Dickson’s objection is
therefore overruled.

26

After scoring the exam, Dickson told Sanchez that his scores showed deception.
(ECF No. 175 at 10, ¶ 35.) Specifically, he told Sanchez that the computer scoring
system showed a “point zero-zero-one percent probability that this result was produced
by a truthful person. In other words you failed badly on [the relevant questions].” (ECF
No. 205-32 at 110.) Sanchez protested that he did not “remember doing any of this”
and Dickson asked “could it have happened and you don’t remember?” After a pause,
Sanchez answered, “It could have.” (Id. at 112.) Sanchez later said, however, that “the
only possibility” is that “I could have probably done it in my sleep.” (Id. at 117.)
Dickson continued to interview Sanchez, insisting that it would be better for
Sanchez to confess fully now rather than later, when forensic evidence might make the
case against him even stronger. (Id. at 118–21.) Sanchez then reconstructed in
reasonable detail all of his whereabouts on the night and early morning in question,
showing he had been nowhere near the Quarry Hill address. (Id. at 122–23.) Dickson
responded, “Well I think you’re lying to me again. * * * Otherwise you would have told
me this stuff up front.” (Id. at 123.) Similar to Mykes’s approach in the interview on the
previous day, Dickson eventually announced, “I know it happened. I just need to know
why it happened. And I want to be able to help you say ... this is what happened so that
... people don’t look at you differently.” (Id. at 125 (ellipses in original, indicating short
verbal pauses).) A short while later, Dickson re-urged essentially the same sentiment,
and obviously caught Sanchez’s attention:
Q.

And I want ... I want to give you the opportunity ... so
that you can move on. Otherwise you are gonna be
stuck in this a lot. And this is gonna be a significant
thing in your life ... for a long time. And I’ve been
........ .

A.

......... And what do ........ .
27

Q.

......... doing this almost thirty years.

A.

Like what do you mean by that?

Q.

Well, if you keep denying it ... this thing could drag out
a long time. In terms of... you getting on with your life.

(Id. at 126 (ellipses in original).) After further assertions to this effect, Sanchez
accepted from Dickson a pen and paper on which to write a confession. (Id. at 128.)
After about twenty-five minutes of writing (see ECF No. 204 at 28, ¶ 81), Sanchez
produced the following (reproduced here verbatim, including errors):
First when I got off work from a bad night, I decide to go chill
out & go drive around in my car for a little while. Then I just
decide to go to Stonegate & drive around near there cause I
had nothing to do & didn’t want to go home yet. So as I was
driving around I decide to be stupid & try to get into a house.
Then as I was driving, I see this house where that I can get
to the second story window. So then I parked my car far
enough away from it so that I can run to it after. After
parking my car, I walked down to the house & started
climbing ontop of the roof so where I can get to the window.
Once I got into the window of the house I could barely see
cause it was dark and all. So I was looking around trying to
find stuff then all of a sudden when I was feeling things all
over the room trying to feel stuff, I felt something move & all
of a sudden it was a little girl that started screaming so I
quickly ran & jumped out the window. Last, I went to my car
& quickly went home. And I want to say that I am sorry for
everything & it will never happen again.
(ECF No. 175-10.) Mykes later testified that every detail contained in this statement
about the crime itself was something law enforcement officers had suggested to
Sanchez beforehand. (ECF No. 204-13 at 130.)
When Sanchez finished writing the foregoing, Dickson had him sign and date it
“7/18/09 2:13 P.M.” (ECF No. 175-10.) Dickson also read the document aloud and
then began asking follow-up questions, particularly about how Sanchez got to the
second story window where he allegedly entered the home. Sanchez was unsure and

28

could not remember how or where he climbed up, upon which Dickson asked, “Did you
use a ladder?” (ECF No. 205-32 at 130.) Sanchez did not respond and Dickson then
asked, “How’d you climb up?” Sanchez answered, “Well just a … ladder to get on the
roof.” (Id. (ellipses in original).) Dickson then inquired, “Who[se] ladder?” and Sanchez
responded, “It was ... theirs.” (Id. (ellipses in original).) But Sanchez could not
remember where he had found “their” ladder. (Id. at 130–31.) A few minutes later in
the interview, Dickson returned to the question of how Sanchez managed to get to the
second story window, and Sanchez was once again unsure. Dickson asked, “So you’re
not sure if there was a ladder or not? ’Cause they didn’t find one.” Sanchez responded
that he was “not sure.” (ECF No. 204-26 at 04:13:10.) Sanchez was similarly vague
about where the window was located on the house and how he jumped down without
hurting himself. (ECF No. 204 at 30, ¶ 86.)12
After finishing his interview with Sanchez, Dickson spoke briefly with Mykes and
Duffy, and then prepared a written report of the polygraph exam for the DCSO
investigators. (Id. ¶ 89.) 13 Dickson understood that his report could be used as support
for bringing charges against Sanchez. (ECF No. 220 at 13, ¶ 89.) Sanchez alleges that
Dickson failed to note in his report “that he had lied to Mr. Sanchez about the polygraph
results as a lever to compel a confession.” (ECF No. 204 at 30, ¶ 89.)
12

Sanchez claims, inaccurately, that Dickson admitted during his deposition that he
came away from the polygraph examination with the impression that Sanchez “may have falsely
confessed.” (Id. ¶ 88.) The cited deposition testimony shows that Dickson had concerns about
Sanchez’s story regarding the ladder specifically, but the only way to spin this into a general
concern about false confession is to treat Sanchez’s attorney’s questions as if they were
Dickson’s testimony—which, obviously, they are not.
13

Sanchez says that Dickson prepared his report for the District Attorney’s Office. (Id.)
The deposition testimony Sanchez cites plainly states that Dickson prepared the report for
DCSO, but also kept a copy on file at his office, which is the same as the District Attorney’s
Office (because he works for that office).

29

6.

Sanchez’s Second Interview with Duffy and Mykes

After Dickson left the polygraph examination room, Mykes and Duffy returned
and began to question Sanchez again, hoping to fill in details not contained in his
written statement. (Id. at 31, ¶ 91.) “He continued to show great difficulty in answering
questions and to provide many nonverbal answers and physical indications of confusion
and distress, and asked repeatedly for his parents.” (Id.)
Sometime after this interview concluded, Mykes felt there was enough evidence
of a potential cognitive disability (particularly Sanchez’s slowness to respond to
questions and his occasional staring off into space) to warrant further investigation.
(ECF No. 204-9 at 28–29.) Regardless, that afternoon Mykes executed a Statement in
Support of Warrantless Arrest to hold Sanchez on charges of sexual assault on a child,
first-degree burglary, and unlawful sexual contact. (ECF No. 177-3.) This statement
relied principally upon Sanchez’s written confession and post-confession interrogation.
(Id. at 2.) Mykes specifically requested a “bond deviation” so that bond would be set at
$1 million, and the duty judge agreed. (Id. at 3.)
7.

Sanchez’s Father’s Attempt to Bond Out Sanchez

At about 9:00 AM on the same morning as Sanchez’s polygraph examination,
Sanchez’s father, Anthony Sanchez, arrived at the Douglas County Jail to post bond on
the trespass charge. (ECF No. 204 at 23, ¶ 68.) 14 Mykes had received word the day
before that Sanchez’s parents planned to post bond “sometime” the next day. (ECF No.

14

Sanchez asserts that his father arrived at 7:00 AM. (Id.) The cited deposition
testimony from Anthony Sanchez establishes that he went to the bank first and then arrived at
the jail “mid-morning, because the banks don’t open until 9:00.” (ECF No. 204-2 at 23.)

30

204-9 at 32.)15 But, by the time Anthony Sanchez arrived, Mykes and Duffy had already
transported Sanchez to the District Attorney’s Office for the polygraph. (ECF No. 204 at
23, ¶ 69.) Anthony Sanchez, unaware of this, posted bond at the Douglas County Jail
and then waited—he was not told that Tyler was then being interrogated at a different
facility. (Id. ¶ 68.)
At 1:56 PM, while Mykes was observing Sanchez write his confession in the
polygraph examination room, she received a page message from a DCSO sergeant
which read as follows: “You need to call the lobby at [phone number] and talk to
Sanchez’s father about what is going on because he is getting really pissed because he
cannot get his son out of jail. He posted the bond at 0900 and we have no reason to
hold him. Sanchez needs an explanation. This needs to happen now.” (ECF No. 20533 at 2; ECF No. 205-34 at 2.) Sanchez claims that Mykes saw these messages as
they came in but chose to ignore them. (ECF No. 204 at 26, ¶ 76.) Mykes’s memory at
her deposition was that she had already spoken with someone at the Douglas County
Jail before receiving these pages and had learned that Tyler Sanchez had bonded out,
but told the jail that he was being held on new charges. (ECF No. 204-9 at 39.)
According to Mykes, the pages were specifically requesting her to explain the situation
to Anthony Sanchez. (Id.)
At about 3:00 PM, Mykes got back to Anthony Sanchez to inform him that Tyler
was being held on a new charge of sexual assault based on his written confession.
(ECF No. 204 at 32, ¶ 94.) Anthony Sanchez immediately told Mykes something to the
15

Sanchez claims, “Detective Mykes knew that . . . Anthony Sanchez would be coming
to the jail that morning to bond out Tyler.” (ECF No. 204 at 23, ¶ 68 (emphasis added).)
Nothing Sanchez cites to support this statement shows knowledge that Anthony Sanchez would
be coming specifically in the morning.

31

effect of “you had to know Tyler had no business talking to you within a couple of
minutes of speaking to him.” (Id. (internal quotation marks omitted).)
At about 3:20 PM, a Douglas County public defender arrived at the District
Attorney’s Office (he had been alerted about Tyler’s situation through Anthony
Sanchez), announced that he was Tyler Sanchez’s attorney, and demanded that the
interrogation cease. (Id. ¶ 93.) Mykes and Duffy complied. (Id.) By that time, Sanchez
had been in custody for about 38 hours and had spent about 15 of those hours being
interrogated. (Id.)
D.

Continuing Investigation & Formal Charges
The next day (July 19, 2009), Duffy interviewed Anthony Sanchez. (Id. ¶ 95.)

Anthony Sanchez told Duffy that “Tyler is just quiet & does not communicate real well,”
that Tyler had attended special education classes in school, and that Tyler had not said
his first word until age five. (Id.) Anthony Sanchez then signed a written consent to
permit Duffy to obtain Sanchez’s school records but the school itself refused and
Sanchez’s attorney twice moved to quash a subpoena directed at the school, which
delayed Mykes’s and Duffy’s access to those records until August 2010. (ECF No. 180
at 10, ¶ 25.)
On July 20, 2009, Mykes and Duffy recorded in certain case progress documents
that they needed to interview Sanchez’s acquaintances about his “cognitive abilities.”
(ECF No. 204 at 32, ¶ 96.) Around this time, Mykes and Duffy interviewed Sanchez’s
coworkers at McDonald’s. (Id. at 33, ¶ 97.) Mykes, however, does not believe that she
specifically asked those coworkers about cognitive abilities, and Duffy currently has no
recollection of doing so. (Id. (evidence cited).) They did learn, generally speaking, that
Sanchez’s boss believed Sanchez was smart, and his coworkers considered him a
32

good worker. (ECF No. 180 at 10, ¶ 27.) Also around this time, Mykes and Duffy
interviewed Sanchez’s girlfriend, who viewed Sanchez as “just a regular guy” who writes
better than he speaks, and is particularly good at reading, writing, and math. (Id.
(internal quotation marks omitted).)
On July 22, 2009, Mykes drafted an Affidavit for Arrest Warrant for the sex
assault charges. (ECF No. 204-22.) The affidavit—which was filed with the formal
criminal charges (see ECF No. 204 at 35, ¶ 104)—extensively summarized the
investigation, including all the officers’ various interviews (although it does not report
Dickson’s conclusion that Sanchez failed the polygraph test). It also quotes Sanchez’s
written confession, obtained after the polygraph exam, in full.
Mykes’s warrant affidavit contains nothing regarding suspected cognitive
difficulties, language difficulties, Sanchez’s seizure disorder, or any expression of doubt
regarding the reliability of Sanchez’s confession. However, the deputy district attorney
assigned to Sanchez’s case, non-party Brian Sugioka, claims that, around this same
time, Mykes told him that “the confession was weird” and expressed at least three
specific concerns to him along with potential responses. (ECF No. 180-15 ¶¶ 4–6.)
The first concern, says Sugioka, was that Mykes knew that Sanchez did not
match the sexual assault victim’s description of the perpetrator. (Id. ¶ 6.) But the victim
had also reported “that the perpetrator shoved her head into a pillow before jumping out
the window, which means she would not have had a good view of the perpetrator and
may [have] simply filled in some blanks in her recollection with descriptors that may
have been inaccurate.” (Id.) Second, Mykes knew that no ladder had been found at the
scene, but Sanchez “had confessed to a number of trespasses over a long period of

33

time and we[16] concluded that he may have been confusing the sex assault break-in
with another incident in which he had used a ladder.” (Id.) Third, Mykes recognized
that Sanchez “was slow to respond to questions during his interviews,” but that “was not
particularly unusual for suspects being interviewed, particularly when the interview is
late at night.” (Id.) Moreover, subsequent interviews with Anthony Sanchez and
Sanchez’s coworkers “resulted in a mixed bag of assessments of his abilities and
intelligence.” (Id.)
In October 2009, Mykes learned that Sanchez’s DNA had not been found on the
sexual assault victim’s underwear. (ECF No. 204 at 38, ¶ 116.) And, at some point not
far removed from Sanchez’s arrest (the record does not disclose precisely when),
Mykes concluded that it would have been “extremely difficult for a perpetrator to climb
onto the second floor of the victim’s home without a ladder” (again, no ladder was ever
found), and that any jump from the victim’s window would have been quite dangerous.
(Id. ¶¶ 117–18.) Mykes also learned, contrary to Sanchez’s story, that the victim’s room
likely would not have been very dark at the time of the sexual assault due to streetlights
outside—and, in particular, that whether the victim’s bed had been occupied or
unoccupied should have been “easy” to see. (Id. at 39, ¶ 126; ECF No. 205-54 at 2–3.)
E.

Pretrial Proceedings
1.

The Bond Hearing

In November 2009, Sanchez’s defense attorney, Iris Eytan, moved to reduce
Sanchez’s bond. (ECF No. 180 at 12, ¶ 33.) She stated that she had met and spoken
with Sanchez and looked through his school records. (ECF No. 180-22 at 10.) Based
16

It is not clear if “we” refers to Mykes and Sugioka, or if Sugioka is reporting Mykes’s
words more-or-less verbatim, meaning that “we” would more likely refer to Mykes and Duffy.

34

on that, she learned something “no one has known,” which was that Sanchez’s IQ is 70,
which he is “able to mask pretty well . . . due to . . . embarrassment . . . of that . . .
cognitive impairment. . . . [A]nd also because . . . somebody with a borderline . . .
intelligence . . . might be socially awkward but . . . you can seem to have a
communication.” (Id. at 9.) Eytan also pointed out that “it was acknowledged by the
detectives in this case . . . not that he was cognitively impaired, although there’re
questions all over the discovery, question mark, cognitive impairment, question mark.”
(Id. (syntax in original).) She announced that “the expert that . . . we’ve had look at the
case” believed Sanchez’s confession was false. (Id. at 10.) She further argued that
Sanchez had simply repeated what he had been told. (Id.) She also made the court
aware of Sanchez’s hearing impairment and seizure disorder; that none of the other
burglaries for which Sanchez was suspected turned out to involve him; that Sanchez did
not meet the physical description of the sexual assault perpetrator; and that Sanchez’s
fingerprints and DNA had not been found at Quarry Hill. (ECF No. 180 at 13, ¶ 34.)
The trial judge concluded that Eytan’s arguments, when balanced against the
fact that Sanchez had confessed and already had a minor criminal record before that
confession, merited a bond reduction to $100,000. (ECF No. 180-22 at 46–48.)
2.

The Preliminary Hearing 17

Sanchez’s preliminary hearing had originally been set for August 20, 2009. (ECF
No. 180-20 at 3.) After various substitutions of counsel, continuances requested by
17

Defendants are absolutely immune from any liability allegedly flowing from their
testimony at the preliminary hearing. See Hinman v. Joyce, 201 F. Supp. 3d 1283, 1291–94 (D.
Colo. 2016). Sanchez must therefore demonstrate that his damages flow from events that took
place before the preliminary hearing. The Court summarizes the preliminary hearing here for
context and to address certain arguments Defendants make about the hearing’s alleged
preclusive effect (Part III.C.1, below).

35

defense counsel, and other procedural machinations, that preliminary hearing did not
actually commence until March 30, 2010. (ECF No. 180 at 12–13, ¶¶ 31–32, 36.) It
ended up spanning three days: March 30, April 27, and April 28. (Id. ¶ 36.) In their
summary judgment papers, Mykes and Duffy summarize the preliminary hearing as
follows, and Sanchez agrees that this is an accurate summary (see ECF No. 200 at 7,
¶ 38):
The central issue at the hearing, as the prosecution
characterized it, was whether Sanchez “was . . . coerced to
confess or was he just saying yes because he either didn’t
hear what [was] asked of him or because he has some
limited intellectual ability and was just saying whatever[.]” In
Sanchez’s defense, Eytan argued the following:
•

With respect to evidence: Sanchez had not been linked
to other burglaries, Sanchez’s DNA was not a match, and
there was no ladder at the scene[.]

•

With respect to Sanchez’s impairment: Sanchez suffered
from hearing loss, memory loss, a seizure disorder and
cognitive delays, Sanchez had a 71 IQ, Mykes and Duffy
had suspected that Sanchez was on drugs, Sanchez had
a developmental disability, the detectives did not “pick
up” on the fact that Sanchez was mentally compromised
and thought he was on drugs, and that “this case is not
like others. It’s just not. I don’t know how many people
in this courtroom, including the court have seen a case
like this before.”

•

With respect to Sanchez’s interrogation and confession:
Sanchez’s written statement was manipulated, the
detective used improper interrogation techniques, the
confession was fed to Sanchez, the written statement
was crafted and manipulated by the police, there was not
anything in Sanchez’s written statement that wasn’t fed to
him by law enforcement, cops are the author of
Sanchez’s ambiguous statement and the statement was
“overborne.”

(ECF No. 180 at 14–15, ¶ 38 (citations omitted; certain alterations in original; emphasis
removed).)
36

At the conclusion of the hearing, the trial judge announced her ruling. (ECF No.
204-35.) She began by noting that the applicable legal standard required her to view
the evidence “in the light most favorable to the People and [to] draw all reasonable
inferences . . . in favor of the People.” (Id. at 4.) Moreover, she said, she was not
permitted to “make a determination as to the credibility of witnesses unless that
testimony is incredible as a matter of law.” (Id. at 5 (citing People v. Fry, 92 P.3d 970
(Colo. 2004)).) The trial judge then summarized Wolff’s testimony about what he
allegedly learned from Sanchez on the night Sanchez was arrested, including what he
learned when Sanchez’s “memory was refreshed . . . regarding the specific incidents,
facts of that incident.” (Id. at 8–9.) The trial judge next summarized Mykes’s testimony
about the sexual assault victim’s account of what had happened in her bedroom on the
night in question. (Id. at 9–10.) The trial judge then read Sanchez’s written confession
into the record, and concluded as follows:
Again the court applying the appropriate standard
considering the evidence the court does find that there is
probable cause in this case to believe the only issue that
was really before the court and that was whether the
defendant, Mr. Tyler Sanchez committed these crimes and
the court does find based upon there really not being any
dispute as to whether a crime occurred, only as to who
committed that there is probable cause as to counts 1, 2,
and 3.
(Id. at 10–11.) Sanchez was therefore bound over for trial and pled not guilty. (ECF
No. 180 at 15, ¶¶ 39–40.)
3.

The Various Psychological Evaluations
a.

Dr. Baroffio’s Opinions

In May 2010, in response to Eytan’s concerns about a false confession, Sugioka
(the deputy district attorney) sought the opinion of a psychiatrist, Dr. James Barrofio.
37

(ECF No. 180 at 15, ¶ 41.) The parties agree on the following summary of Dr. Barrofio’s
opinions:
•

The IQ test Eytan referred to was 9 years old and should
be updated.

•

There is a significant difference between Sanchez’s
verbal IQ and his performance IQ, suggesting a learning
disability but not a cognitive disability.

•

Sanchez’s prior involvement in delinquent acts is
consistent with a learning disability; that is, people in that
circumstance tend to act out.

•

A lot of people with learning disabilities learn to mask
them and compensate for them.

•

Sanchez is smarter than his 71 IQ suggests.

(Id. ¶ 42.) Then, at a later court hearing, Dr. Barrofio testified essentially as follows:
•

He had been retained by the prosecution to provide an
opinion on Sanchez’s psychology, intellectual ability and
personality and whether his confession was false,
resulting from suggestibility.

•

His opinions were based upon a review of Sanchez’s
school records, the arrest affidavit and the various
videotaped Sanchez interviews.

•

He opined that Sanchez had an “auditory processing
deficit,” which he described as an inability to process
information efficiently and effectively.

•

He opined that Sanchez is not mentally retarded. He has
“learning problems,” but it is not black and white, but
rather, “shades of gray.”

•

He opined that people with this type of disability, as a
defense mechanism, purposefully appear to understand
things when, in actuality, they may not.

•

He opined that there was a significant difference between
Sanchez’s verbal IQ and performance IQ that he had
reviewed and that this difference suggests that Sanchez
had an “innate ability” to engage in “nonverbal concept

38

formation” that is substantively stronger than his verbal
abilities.
•

He opined that a person with a disability may use that
disability to avoid responsibility.

(ECF No. 180 at 16–17, ¶ 48 (citations omitted).) Based on this testimony, among other
things, the trial judge ordered a competency evaluation.
b.

Dr. Bradley’s Opinions

The competency evaluation was performed by a psychologist, Dr. Mac Bradley.
In relevant part, his eventual report concluded as follows:
•

His school records indicate average to low average ability
on reading, written language and mathematics. His
receptive and expressive language scores were
significantly lower.

•

His verbal and full scale IQ scores were 82 and 65, and
79 and 71, respectively.

•

His academic and verbal intellectual abilities appeared to
be below average, but not significantly impaired.
***

•

He could hear and understand conversational speech.

•

He paused between question and response and
struggled to express his thoughts.

•

He had some difficulty with abstract concepts.

•

Sanchez’s thinking and speech was coherent, organized
and logical.

•

There were abnormalities in Sanchez’s expressive
language and his intelligence was low, but not extremely
low.

•

Sanchez “does not have a mental disability consisting of
a substantial disorder of thought, mood, perception, or
cognitive ability that results in marked functional
disability.”

39

•

“It is my clinical opinion, within a reasonable degree of
scientific certainty, that Tyler Sanchez does not have a
mental or developmental disability that prevents him from
having sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding in
order to assist in the defense, or prevents him from
having a rational and factual understanding of the
criminal proceedings.”

(Id. at 17–18, ¶ 50.) The trial judge accordingly found Sanchez competent to stand trial.
(Id. at 19, ¶ 52.) The trial judge then ordered a
mental status evaluation “to determine whether the
Defendant suffers from an intellectual disability, cognitive
functioning impairment or speech and language disability
that affected his ability to understand what he was told by
law enforcement, to include any Miranda advisement and
whether this intellectual disability, cognitive functioning
impairment or speech and language disability affected his
ability to provide accurate information and caused him to
provide false inculpatory statements at the suggestion of law
enforcement.”
(Id. ¶ 53.)
c.

Dr. Wheeler’s Opinions

The mental status examination was performed by Dr. Wheeler. (Id. ¶ 54.) As
already noted in Part II.B, above, Dr. Wheeler diagnosed Sanchez with “mixed
receptive-expressive language disorder, borderline intellectual functioning, auditory
processing deficits, social anxiety, and submissive personality traits.” (ECF No. 204-1
at 109.) This, “when combined with various situational and dispositional risk factors
[such as fatigue], limited and impaired his ability to provide accurate information, and
provides a reasonable basis for understanding his subsequent and current claim that
the inculpatory statements at the suggestion of law enforcement were false.” (Id.)
F.

Dismissal of the Prosecution
Anticipating that Dr. Wheeler’s report would lead the court to grant a motion to

40

suppress the confession, Sugioka announced that lack of the confession would prevent
him from proving the case beyond a reasonable doubt, and he therefore dismissed all
charges on April 4, 2012. (ECF No. 180 at 19, ¶ 55.)
G.

Effect on Sanchez
On account of the prosecution, Sanchez
spent four months (125 days) in detention in the Douglas
County Jail, much of it in solitary confinement due to his
inability to protect himself from other inmates because of his
disabilities. Mr. Sanchez was not able to obtain his release
on bond during this period of time because Defendants
Mykes and Duffy requested that the Court deviate from the
usual bond range and set his bond at $1 million, instead of
$100,000. For over five months (159 days) Mr. Sanchez
was subjected to restrictions on his geographic location that
prevented him from visiting his own home, required him to
live with relatives, and required GPS monitoring. He was
also subjected to nearly two years (715 days) of restrictions
on his geographic location that allowed him to return to live
at his family home but restricted his movements and
required GPS monitoring.

(ECF No. 204 at 46, ¶ 147 (citations omitted).)
III. ANALYSIS
A.

Fourth Amendment Malicious Prosecution, Sanchez’s Theory of Liability,
and its Effect on Qualified Immunity
1.

Elements

Through 42 U.S.C. § 1983, an individual may sue government officers for pretrial
detention without probable cause, in violation of the Fourth Amendment. Manuel v. City
of Joliet, 137 S. Ct. 911, 917–20 (2017). The Tenth Circuit refers to this as “malicious
prosecution,” and states that its elements comprise at least the following: “(1) the
defendant caused the plaintiff’s continued confinement or prosecution; (2) the original
action terminated in favor of the plaintiff; (3) no probable cause supported the original

41

arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and
(5) the plaintiff sustained damages.” Sanchez v. Hartley, 810 F.3d 750, 754 n.1 (10th
Cir. 2016) (“Sanchez II”), cert. denied, 137 S. Ct. 1372 (2017).
The Tenth Circuit also holds that “that the Fourth Amendment prohibits officers
from knowingly or recklessly relying on false information to institute legal process when
that process results in an unreasonable seizure.” Id. at 754. The Tenth Circuit has
never clearly stated where this requirement fits into the established elements of
malicious prosecution. 18 This Court has generally treated knowing or reckless reliance
on false information as a fact which, if proven, establishes the malice element. See
Sanchez v. Hartley, 65 F. Supp. 3d 1111, 1124 (D. Colo. 2014) (“falsifying or omitting
evidence knowingly and intentionally, or with reckless disregard for the truth is sufficient
to establish malice in the context of malicious prosecution claims” (internal quotation
marks omitted; alterations incorporated)) (“Sanchez I”); see also Bruning v. Pixler, 949
F.2d 352, 357 (10th Cir. 1991); Grobecker v. Grundy, 2014 WL 3593513, at *8–9 (D.
Colo. July 18, 2014).
2.

Sanchez’s Theory

No Defendant challenges Sanchez on the second element (favorable
termination) or the fifth element (damages) of his malicious prosecution claim. As to the
remainder of the elements, Sanchez minces no words regarding what he intends to
prove at trial. Sanchez repeatedly states that Defendants each subjectively concluded
18

One decision, for example, equivocally suggests that knowing or reckless reliance on
false information is part of both the malice element and the probable cause element. See
Wilkins v. DeReyes, 528 F.3d 790, 799–801 (10th Cir. 2008) (analyzing effect of allegation that
officers fabricated evidence under the heading, “Existence of Fact Questions as to Malice,”
although going on to discuss the question mostly in terms of a reasonable basis to find probable
cause).

42

that they had extracted a false confession from Sanchez (or at least entertained serious
doubts about the confession’s veracity, which is enough to show reckless disregard),
that each failed to disclose his or her subjective state of mind, and that each has
continually lied since then about that state of mind. Sanchez was confined, he says,
only because of Defendants’ knowing or reckless reliance on his false confession,
absent which probable cause would not have existed.
3.

Qualified Immunity

Defendants assert qualified immunity for materially the same reasons, which the
Court finds helpful to address at the outset.
a.

General Standard

“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal quotation
marks omitted). “The judges of the district courts . . . [may] exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.” Pearson
v. Callahan, 555 U.S. 223, 236 (2009).
The plaintiff bears the burden of demonstrating that the law was clearly
established at the relevant time. Lybrook v. Members of Farmington Mun. Sch. Bd. of
Educ., 232 F.3d 1334, 1337 (10th Cir. 2000). “A right is clearly established in this circuit
when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established
weight of authority from other courts shows that the right must be as the plaintiff
maintains.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation
43

marks omitted). Nonetheless, the clearly established prong
involves more than a scavenger hunt for prior cases with
precisely the same facts. The more obviously egregious the
conduct in light of prevailing constitutional principles, the less
specificity is required from prior case law to clearly establish
the violation. The Supreme Court has cautioned [lower]
courts not to define clearly established law at a high level of
generality, but to focus on whether the violative nature of
particular conduct is clearly established.
Perea v. Baca, 817 F.3d 1198, 1204 (10th Cir. 2016) (internal quotation marks and
citations omitted).
b.

Clearly Established Law Under These Facts

Defendants appealed this Court’s denial of qualified immunity at the pleading
phase, see Sanchez I, 65 F. Supp. 3d at 1125, arguing to the Tenth Circuit that the right
in question was not clearly established in 2009, and so qualified immunity applies,
Sanchez II, 810 F.3d at 759. As relevant here, the Tenth Circuit summarized and then
rejected Defendants’ argument as follows:
. . . the defendants contend that the Fourth Amendment did
not clearly require interrogators to (1) determine whether a
suspect had cognitive disabilities or (2) accommodate these
disabilities. But this contention reflects confusion on
Mr. Sanchez’s claim. Mr. Sanchez claims that the
defendants either knew that his confession was untrue or
recklessly disregarded that possibility. If that was the case,
the defendants would have violated the Fourth Amendment,
regardless of whether they had a specific duty to ascertain
and accommodate Mr. Sanchez’s cognitive difficulties.
Id. The Tenth Circuit further held that “the defendants should have realized [as of July
2009] that the knowing or reckless use of a false confession to institute legal process
would violate a clearly established constitutional right.” Id. at 760.
Defendants continue to urge qualified immunity on remand with an argument
materially no different than what the Tenth Circuit already rejected. For example,
44

Hartley and Wolff assert that no clearly established law put them on notice “that failing
to include information related to a potential cognitive disability that may or may not have
revealed itself under questioning in an affidavit for warrantless arrest would violate a
person’s Fourth Amendment rights.” (ECF No. 27 at 31.) Mykes and Duffy claim that
“there was no Supreme Court or Tenth Circuit case that would provide notice to them
that arresting Sanchez based on the evidence available to them at the time of the arrest
. . . would violate his Constitutional rights.” (ECF No. 180 at 33.) As on appeal, these
arguments ignore Sanchez’s actual theory, namely, that Defendants subjectively knew
or recklessly disregarded the fact that Sanchez had falsely confessed. Thus,
Defendants’ argument for qualified immunity on this basis is as wrong now as it was on
their earlier appeal and is, once again, firmly rejected.
Dickson offers a more nuanced argument particular to his circumstances.
Dickson’s argument turns on distinguishing Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir.
2004), a case on which the Tenth Circuit relied in Sanchez II to find that the relevant
right was clearly established. See 810 F.3d at 760. In Pierce, the plaintiff was a man
who had spent fifteen years in prison for rape until DNA evidence exonerated him; the
defendant was a police department forensic chemist. Id. at 1281. During the underlying
rape prosecution, the defendant tested biological samples taken from the plaintiff and
reported that they were consistent with biological samples recovered during the
investigation. Id. at 1282. The plaintiff alleged that the defendant’s findings were false
and knowingly fabricated. Id. The defendant argued that she could not be liable to the
plaintiff because she had neither arrested the plaintiff nor made the decision to charge
him with the rape. Id. at 1291. The Tenth Circuit rejected this argument:

45

The actions of a police forensic analyst who prevaricates
and distorts evidence to convince the prosecuting authorities
to press charges [are] no less reprehensible than [those of]
an officer who, through false statements, prevails upon a
magistrate to issue a warrant. In each case the government
official maliciously abuses a position of trust to induce the
criminal justice system to confine and then to prosecute an
innocent defendant. We view both types of conduct as
equally repugnant to the Constitution.
Id. at 1293.
Dickson recognizes that Sanchez views him as in essentially the same position
as the forensic chemist in Pierce. (ECF No. 175 at 27.) Dickson claims, however, that
the defendant in Pierce was generating results that were “opaque to the remainder of
the criminal justice process” given the scientific and technical complexity of the analysis,
whereas the entirety of his interactions with Sanchez were observed by Mykes and
Duffy and were video- and audio-recorded, so any other actor in the criminal justice
process could personally evaluate his performance and whether he had extracted a
valid confession. (Id.) In other words, Dickson says, he “did not use his expertise in a
manner that could not be readily or easily checked by other participants in the criminal
justice system.” (Id. at 29.)
The problem with Dickson’s argument is the same as it has been for all
Defendants since this litigation began, i.e., a stubborn refusal—or, at a minimum, a
continuing failure—to accept that Sanchez accuses him of knowingly or recklessly
extracting a false confession and then lying about it. When that allegation is accounted
for, Dickson’s argument is essentially that no clearly established law put him on notice
of potential liability for knowingly or recklessly extracting a false confession where
others (allegedly) could have discovered its falsity if they took the time to check his
work.
46

This argument decisively fails for two reasons. First, the premise that other
actors in the criminal justice process could have discovered his alleged misconduct is
dubious. Sanchez alleges that Dickson intentionally failed Sanchez on the polygraph
test as a means of coercing a confession. Proper administration and scoring of a
polygraph test is not common knowledge among individuals untrained in these
disciplines. Second, this contention, if accepted, would raise the bar for a § 1983
plaintiff in terms of establishing what constitutes “clearly established law” far beyond
what can reasonably be supported by the controlling cases. The Court is fully aware of
the Supreme Court’s recent emphasis on defining clearly established rights with
specificity, see, e.g., White v. Pauly, 137 S. Ct. 548, 552 (2017), but the specificity
Dickson seeks is absurd. Pierce established as of 2004 that a government official
responsible for investigating a crime can be liable for malicious prosecution if that
official knowingly or recklessly supplies false evidence against the accused. Dickson
cannot reasonably claim that he needed further notice specifically that he could be liable
even where other police officers, the prosecutor, the judge, etc., could have discovered
for themselves that he introduced false evidence into the investigation. See, e.g.,
Perea, 817 F.3d at 1204 (“involves more than a scavenger hunt for prior cases with
precisely the same facts”); Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th
Cir. 2007) (“when an officer's violation of the Fourth Amendment is particularly clear
from [already-established case law], we do not require a second decision with greater
specificity to clearly establish the law”). 19

19

Of course, an official who introduces false evidence into an investigation is not
necessarily liable. If probable cause would have existed absent the false evidence, a malicious
prosecution claim would fail on the probable cause element, as discussed below in Part III.C.
Similarly, if the official can convince a jury that the prosecutor would have filed and pursued

47

In short, no Defendant can claim qualified immunity in this case if there is a
genuine dispute of fact over whether that Defendant subjectively formed the opinion, or
recklessly disregarded a serious suspicion, that Sanchez’s confession was false.
Stated somewhat differently, is there enough evidence from which a reasonable jury
could agree with Sanchez that a particular Defendant has been lying about his or her
state of mind since 2009? The Court must keep this question in mind for the remainder
of its analysis. The Court now turns to the elements of Sanchez’s claim that Defendants
have variously challenged.
B.

Causation
1.

Wolff and Hartley

Wolff and Hartley argue that the causation element fails as to them because they
“did not elicit [Sanchez’s] confession to the sex assault[20] and did not prepare or
participate in the submission of charges related to the sex assault.” (ECF No. 184
at 17.) However, Sanchez’s theory of causation against Wolff and Hartley is as follows:
(1) they knew Sanchez had confessed falsely to the trespass and the sex assault, or
recklessly disregarded a serious suspicion of falsity, which the Court will address in the
context of the malice element, below (Part III.D); (2) they never told Mykes, Duffy, or
Sugioka about this knowledge or suspicion; and (3) but for that failure, Sanchez would
not have been turned over to Mykes and Duffy for further interrogation, or at least
Sanchez would not have been charged with sexual assault. (ECF No. 198 at 9–12;
charges regardless of the false evidence, a malicious prosecution claim may fail on the
causation element, as discussed below in Part III.B.
20

This assertion is difficult to understand. It appears undisputed that Wolff and Hartley
elicited from Sanchez an admission at least to breaking and entering into the Quarry Hill home.
Perhaps Wolff and Hartley mean to say that they did not participate in eliciting Sanchez’s written
confession, but the Court finds no legal significance to that distinction at this phase.

48

ECF No. 204 at 14, ¶ 39.) Sanchez also notes that Wolff and Hartley were primarily
responsible for his trespass prosecution. (ECF No. 198 at 11–12.) 21
Assuming for present purposes that Sanchez can convince a jury that Wolff and
Hartley are lying about their subjective states of mind when they interviewed Sanchez,
there is no flaw in Sanchez’s causation theory that merits judgment as a matter of law
on this record. There is certainly a lurking question about what Sugioka would have
done had Wolff and Hartley disclosed a subjective belief in the falsity of Sanchez’s
confession—according to Sugioka, Mykes approached him with concerns at least
similar to what Sanchez believes Wolff and Hartley should have expressed, yet Sugioka
continued to pursue the prosecution. (See Part II.D, above.) Sanchez apparently sees
no problem here because Sugioka actually dismissed the charges when he received
Dr. Wheeler’s opinion that there was a reasonable basis for viewing Sanchez’s
confession as false. This, according to Sanchez, is evidence that Sugioka would have
done likewise if Wolff and Hartley had expressed to him their alleged subjective belief in
the confession’s falsity. (ECF No. 198 at 12.)
Sugioka’s decision to dismiss the charges was made based on a belief that
suppression of Sanchez’s confession would prevent him from establishing guilt beyond
a reasonable doubt. That is not the same as concluding that probable cause would be
lacking without the confession. Thus, the fact that Sugioka dismissed the charges after
receiving Dr. Wheeler’s opinion does not necessarily suggest that he would have
dismissed the charges based on Wolff’s and/or Hartley’s opinion that Sanchez had

21

At least in the papers before the Court, no party attempts to separate liability for
malicious prosecution based on the trespass charges and liability for malicious prosecution
based on the sexual assault charges.

49

falsely confessed. Nonetheless, a reasonable jury could conclude that Sugioka’s
behavior upon receiving Dr. Wheeler’s opinion makes it more likely than not that
Sugioka would have behaved similarly if Wolff and/or Hartley had come to him and
expressed a belief that Sanchez’s confession was false. Accordingly, the Court rejects
Wolff’s and Hartley’s summary judgment challenge on the causation element.
2.

Dickson

Dickson argues that the causation element fails as to him because of his limited
role—he says he did no more than administer the polygraph test and report its results,
while Mykes ultimately made the decision to draft an affidavit in support of arresting
Sanchez on the sexual assault charges. (ECF No. 175 at 22–37.) Sanchez’s claim,
however, is that Dickson elicited a confession that he knew or strongly suspected to be
false. Moreover, Sanchez’s written confession was quoted verbatim in Mykes’s warrant
affidavit. (ECF No. 199 at 8–11.)
Assuming for argument’s sake that Sanchez can prove that Dickson possessed a
culpable state of mind, the Tenth Circuit’s Pierce decision, discussed above, establishes
that Dickson may be liable even though he did not draft the warrant affidavit. 22 Thus,
Sanchez’s claim against Dickson does not fail as a matter of law on the causation
element.
C.

Probable Cause
Wolff, Hartley, Mykes, and Duffy argue that Sanchez’s claim fails on the probable
22

Dickson cites a Fifth Circuit decision, Michalik v. Hermann, 422 F.3d 252, 261 (5th Cir.
2005), for the proposition that only officers directly involved in preparing a warrant application
may be liable under the Fourth Amendment for claims such as the claim Sanchez brings against
Dickson here. (See ECF No. 175 at 24–25.) Michalik raises interesting questions in that
regard, but the Tenth Circuit had already, by the time of the events in question in this case,
decided in Pierce that liability extends beyond those directly involved in preparing a warrant
application.

50

cause element. (ECF No. 180 at 24–26; ECF No. 184 at 18–21.)
1.

Effect of the Preliminary Hearing

Mykes and Duffy first argue that a state court judge already found probable
cause at the conclusion of the preliminary hearing, and so this proceeding is an
improper collateral attack on that finding. (ECF No. 180 at 21–23.) The Court rejected
this argument at the pleading phase, see Sanchez I, 65 F. Supp. 3d at 1121–22, and
nothing has changed since then. As previously explained, a police officer may not lie to
or withhold material information from a judge and then hide behind a probable cause
determination made by the judge based such testimony. See id.
In addition, the record now makes clear that the trial judge viewed the evidence
in the light most favorable to the prosecution and refused to engage in credibility
determinations. (See Part II.E.2, above.) These restraints do not bind a jury in a civil
proceeding such as this one. Thus, this lawsuit is not an impermissible collateral attack
on the preliminary hearing.
2.

Effect on Probable Cause After Subtracting Falsities and Adding Material
Omissions

“The existence of probable cause is a complete defense” to a malicious
prosecution claim. Anthony v. Baker, 808 F. Supp. 1523, 1526 (D. Colo. 1992).
Probable cause exists where
the facts and circumstances within the arresting officer’s
knowledge and of which [the officer] had reasonably
trustworthy information are sufficient in themselves to
warrant a person of reasonable caution to have the belief
that an offense has been or is being committed by the
person to be arrested. This is an objective standard, and
thus the subjective belief of an individual officer as to
whether there was probable cause for making an arrest is
not dispositive. Whether a reasonable officer would believe
that there was probable cause to arrest in a given situation is
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based on the totality of the circumstances.
Koch v. City of Del City, 660 F.3d 1228, 1239 (10th Cir. 2011) (internal quotation marks
and citations omitted; original alterations incorporated). Because probable cause is an
objective standard, it may exist despite a police officer’s false statements or material
omissions:
If an arrest warrant affidavit contains false statements, the
existence of probable cause is determined by setting aside
the false information and reviewing the remaining contents of
the affidavit. Where information has been omitted from an
affidavit, we determine the existence of probable cause by
examining the affidavit as if the omitted information had been
included and inquiring if the affidavit would still have given
rise to probable cause for the warrant.
Taylor v. Meacham, 82 F.3d 1556, 1562 (10th Cir. 1996) (internal quotation marks and
citation omitted).
Mykes and Duffy offer the following itemized list of facts asserted in Mykes’s
warrant affidavit that supposedly justify Sanchez’s arrest regardless of any falsities or
material omissions:
•

A resident of Branham Drive in Parker had called 911 to
report an intruder in dark shirt, pants and baseball cap in
his back yard. When the intruder spotted him, he ran and
jumped the fence, knocking over patio furniture as he
ran.

•

Sanchez was spotted leaving the scene of this attempted
burglary wearing dark clothes that matched the
description given by the victim.

•

When stopped, Sanchez was observed to be sweating
profusely and breathing heavily as if engaged in
strenuous activity. (It is judicially noticeable that in
Parker around midnight on July 17, 2009, the
temperature was in the 50s [Fahrenheit].)

•

After he was contacted, Sanchez put on a white hoodie
over the dark clothes he was spotted in.

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•

Sanchez initially denied going into the backyard on
Branham Drive, stating that he was merely driving
through the neighborhood.

•

Sanchez subsequently admitted to being in a back yard,
but denied an intent to steal anything.

•

Sanchez stated that he had previously broken into
several cars at the nearby Cherrywood Apartments
stealing, for example, sunglasses and $20.

•

Sanchez confirmed that he had been involved in a
vehicle theft and several other burglaries in the Parker
area.

•

He stated that, in some of the burglaries, he broke into
houses with an acquaintance, Brian Coshnitzke.

•

With Coshnitzke, he stole some medications, and
jewelry.

•

He identified a pawn shop where he and Coshnitzke
pawned the jewelry.

•

He stated he recalled previously being with Coshnitzke in
a stolen vehicle.

•

In one of several recent unsolved burglaries and
attempted burglaries, the victim had described the
suspect as wearing a white hoodie, like the one Sanchez
wore.

•

Among these burglaries was the one attempted burglary
on Quarry Hill where an 8-year-old girl had been sexually
assaulted.

•

During a follow-up interview, Sanchez denied the sexual
assault and agreed to take a polygraph.

•

The polygraph indicated that Sanchez had been
untruthful about the sexual assault.[23]

•

When confronted with the polygraph results, Sanchez
stated, “I could have done it. I just don’t remember.”

23

This allegation does not appear in Mykes’s warrant affidavit, but it does appear in her
statement in support of warrantless arrest. (See ECF No. 182-10 at 2.)

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•

After the polygraph, in yet another interview, Sanchez
repeated much of what he said in the allegedly false
written confession, but he also added to it, stating that
when the little girl startled him, he “accidentally” touched
her between the legs.

•

Sanchez was on probation for a felony criminal mischief
charge.

•

Sanchez had one current charge for violation of
probation.

•

Sanchez was now a suspect in three attempted
burglaries, three completed burglaries, several vehicle
trespasses and one vehicle theft.

(ECF No. 180 at 24–25.)
Contrary to Defendants’ characterization, this list does not omit alleged falsities
or include alleged material omissions. There is no need to address every possible
addition or subtraction to this list. For present purposes it is enough to note that, under
Sanchez’s theory, all of the bullet points regarding crimes to which he confessed should
be subtracted because Defendants knew those confessions were false—or those bullet
points should at least be qualified with a statement expressing belief in their falsity or
expressing substantial doubt about their truth.
In this light, a reasonable jury could agree with Sanchez that probable cause did
not exist. See DeLoach v. Bevers, 922 F.2d 618, 623 (10th Cir. 1990) (acknowledging
that “the issue of probable cause ordinarily is for the judge rather than the jury,” but in a
civil suit for damages, it may be “a proper issue for the jury if there is room for a
difference of opinion,” particularly in “cases in which the officers made the [alleged]
misrepresentations in an application for an arrest warrant”). Accordingly, summary
judgment is not appropriate on the probable cause element.

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D.

Malice
All Defendants argue that Sanchez’s claim fails on the malice element. (ECF No.

175 at 30–32; ECF No. 180 at 26–29; ECF No. 184 at 21–22.) As previously discussed,
the malice element encompasses the knowledge-or-recklessness inquiry.
Knowledge and reckless disregard are subjective states of mind. Reckless
disregard, in particular, “exists when the affiant in fact entertained serious doubts as to
the truth of his [or her] allegations.” DeLoach, 922 F.2d at 622 (internal quotation marks
omitted). Absent a defendant’s confession to knowledge or reckless disregard—and no
such confession exists in the record—a plaintiff must prove at least one of these states
of mind through circumstantial evidence. Circumstantial evidence can include objective
evidence, such as “obvious reasons to doubt the veracity of the allegations.” Id.
(internal quotation marks omitted); cf. Farmer v. Brennan, 511 U.S. 825, 842–43 (1994)
(holding in the Eighth Amendment deliberate indifference context that a prison official’s
“requisite knowledge of a substantial risk is a question of fact subject to demonstration
in the usual ways, including inference from circumstantial evidence, and a factfinder
may conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious” (citation omitted)).
However, allowing a jury to rely on inferences from objective evidence does not
convert the knowledge-or-recklessness inquiry into an objective standard. A
negligence-like “should have known” conclusion is not enough to hold a defendant liable
under § 1983, and “[a]llegations of negligence or innocent mistake are insufficient” to
establish a reckless omission. Stewart v. Donges, 915 F.2d 572, 582 (10th Cir. 1990)
(internal quotation marks omitted; brackets in original). Thus, objective evidence may
only be used for its “must have known” value, if any. Ultimately, the objective evidence
55

along with all other circumstantial evidence admitted at trial must be enough for a
reasonable jury to find that a particular defendant in fact concluded in his or her own
mind that his or her allegations were false (knowledge), or actually entertained serious
doubts about whether those allegations were true (reckless disregard)—and that, to the
extent the defendant denies having such a state of mind at the relevant time, the
defendant is either lying or misremembering.
In the appeal from this Court’s denial of qualified immunity at the pleading phase,
the Tenth Circuit set forth six sets of allegations that, taken together, “plausibly support
the required inference of the defendants’ knowledge or recklessness.” Sanchez II, 810
F.3d at 756–57. The question at summary judgment is whether Sanchez has
developed enough evidence from which a jury could conclude that Sanchez’s
allegations are true. The Court will therefore evaluate each of the six sets of allegations
in turn, although the Court finds that three particular sets of allegations, and part of a
fourth, are best analyzed as one under the current record.
1.

Sanchez’s Physical Appearance

The first allegation the Tenth Circuit found relevant was that
[t]he victim of the sexual assault gave a description of her
attacker that did not suggest Mr. Sanchez. According to the
victim, the attacker was roughly 40 years old, weighed about
190 pounds, had no tattoos, and had brown hair parted
down the middle. Mr. Sanchez was only 18 years old,
weighed only about 130 pounds, had prominently displayed
tattoos on both arms, and had buzz-cut red hair. The
detectives and investigator knew that Mr. Sanchez did not fit
the victim’s description of the perpetrator.
Id. at 756 (citations omitted).
Viewed in the light most favorable to Sanchez, he has introduced evidence from
which a jury could conclude that all Defendants were aware of the discrepancy between
56

Sanchez’s appearance and the reported appearance of the Quarry Hill perpetrator.
(ECF No. 204 at 8, 10, ¶¶ 24, 29 (Wolff and Hartley); id. at 17, ¶ 51 (Mykes and Duffy);
id. at 24, ¶ 70 (Dickson).)
2.

Obviousness of Some Sort of Disability

The second allegation the Tenth Circuit found relevant was that “Mr. Sanchez
has pronounced cognitive and developmental disabilities and IQ test scores in the 60s
and 70s. These disabilities cause Mr. Sanchez to engage in noticeably unusual
behavior.” Sanchez II, 810 F.3d at 756. The third allegation is closely connected: “In
interviews with the defendants, Mr. Sanchez had significant difficulty understanding and
responding to questions.” Id. The fifth allegation adds more:
The detectives and investigator noticed Mr. Sanchez’s
unusual behavior. At one point, [Wolff and Hartley] asked
Mr. Sanchez if he was simply saying what they wanted to
hear. [Wolff] wrote that Mr. Sanchez had difficulty
remembering details of his supposed crimes and had given
vague answers. [Mykes and Duffy] suspected intoxication,
asking Mr. Sanchez to take a urine test to verify that he was
not under the influence of drugs or alcohol. And [Dickson]
observed that Mr. Sanchez was behaving unusually and
experiencing difficulty answering questions.
Id. at 756–57 (citations omitted). Finally, the sixth allegation notes, in part, that
“Mr. Sanchez was unable to give any details regarding his involvement in the crime.” Id.
at 757. Each of these allegations goes to Sanchez’s overall claim that his disability is
open and obvious and therefore known to Defendants, or at least that Defendants
subjectively perceived something sufficiently abnormal that caused them to doubt
Sanchez’s reliability.
This is the most contentious aspect of the entire case, and the Court now more
fully understands why. Judging solely from Sanchez’s portrayal of himself in his papers,

57

one gets the impression that he comes across as profoundly disabled—one with almost
zero normal social functioning and very limited ability to form unique thoughts.
However, the Court has viewed all of the many hours of interrogation footage submitted
by the parties. Sanchez’s behavior is at times somewhat unusual (such as, on a few
occasions, smiling at certain questions with no apparent reason) and he sometimes
displays what appear to be nervous tics (e.g., repeatedly rubbing his hair with both
hands, bouncing his leg). This is consistent with an outward manifestation of some sort
of mental disability. On the other hand, contrary to his description of himself, Sanchez
does not have much difficulty understanding questions; does not simply agree with
every suggestion made to him by Defendants; and does not show an inability to answer
questions with anything beyond a yes or no. Rather, he holds his own for quite a while
against the various Defendants. A jury could reasonably come to see how a police
officer in the same circumstances as Defendants might have concluded that Sanchez
was simply an aimless, post-high school teenager who happened to be extremely tired
at the time.
Regarding Sanchez’s alleged difficulty in responding to questions, this again is a
matter on which reasonable minds could differ. In truth, the only times during the
audiovisually recorded interrogations that Sanchez has difficulty answering questions
are when he is asked for details regarding his alleged crimes. At all other times, he is
forthcoming and quick to answer, and appears clear-headed. Ironically, Sanchez’s
body language and slowness to answer after being asked for details is arguably just as
consistent with feeling shame and therefore having difficulty finding the words (this is
how Mykes, Duffy, and Dickson said they were perceiving it) as it is with actually not

58

knowing the details because he never committed the crimes. In other words, a jury
could reasonably adopt Defendants’ view that the case reduces to “debatable evidence
that [Defendants] missed something they should have picked up on—a masked
borderline mental condition that was debated by the professionals and, even today,
seems incapable of being articulat[ed] in less than ten words.” (ECF No. 180 at 29.)
Nonetheless, a reasonable jury could disagree regarding what the various
Defendants must have known after interacting with Sanchez in person. 24 Moreover,
there is evidence that Wolff, Hartley, Mykes, and Duffy were all suspicious at least of
intoxication. A jury could conclude from that evidence that those four Defendants
entertained some amount of doubt about the reliability of Sanchez’s statements. Wolff
and Hartley asked Sanchez if he was simply stating what they wanted to hear—which
could be a routine question or it could be evidence of subjective doubt. A jury could find
either way. Mykes and Duffy, moreover, specifically noted a need to investigate a
potential cognitive disability, and in fact did investigate it. According to Sugioka, Mykes
knew that something was “weird” and ultimately concluded that the investigation
revealed equivocal facts, but a reasonable jury could conclude that she and Duffy25
learned enough that they must have at least strongly suspected a false confession yet
suppressed that doubt.
Dickson is a closer case. There is no allegation that he suspected intoxication or
24

The Court recognizes that in-person interaction with Sanchez may create a different
impression than what the Court can perceive from the video evidence. Nonetheless, the jury
will likely need to base their findings in significant part on the video evidence. At least among
the materials submitted at summary judgment, no other evidence is more probative of what the
officers could have known about Sanchez by interacting with him at the time (more than eight
years ago).
25

Mykes and Duffy do not distinguish themselves in their summary judgment filings for
purposes of liability.

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other drug-induced behavioral oddities during his few hours of interaction with Sanchez.
The major allegations against Dickson are (1) the allegedly open and obvious nature of
Sanchez’s disability; (2) the claim that Mykes and Duffy shared with Dickson their
concerns about Sanchez’s reliability before Dickson administered the polygraph test;
and (3) the assertion that Dickson should never have administered the polygraph test
under the circumstances, and purposefully mis-scored Sanchez’s polygraph exam to
extract a confession.
The Court has already discussed the first allegation (an allegedly open and
obvious disability), which is supported at least by the fact that the various other
Defendants showed signs that they perceived something unusual about Sanchez. If a
jury finds that anyone interacting with Sanchez cannot help but learn that he has a
disability that affects his ability to answer questions accurately or truthfully, a jury could
conclude that Dickson must have recognized this as well, and should not have
administered a polygraph exam.
The second allegation rests on Sanchez’s claim that it “defies credulity” to deny
that Mykes and Duffy shared with Dickson their concerns about Sanchez’s cognitive
abilities, his susceptibility to suggestion, and so forth. (ECF No. 199 at 2, ¶ 22.) This, of
course, rests on a jury concluding that Mykes and Duffy subjectively perceived these or
similar problems. Assuming as much, Sanchez’s position here is nonetheless
somewhat at odds with his larger theory of the case, i.e., that the various Defendants
each concluded or strongly suspected that Sanchez had a disability that would make his
confession unreliable, but deliberately suppressed that conclusion or suspicion. 26
26

Sanchez has not alleged any sort of conspiracy between the various Defendants.
(See generally ECF No. 52.)

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Sanchez wishes to tell that story except as to Mykes’s and Duffy’s interactions with
Dickson, with no explanation for Mykes’s and Duffy’s forthrightness in this single
context. Nonetheless, there is nothing inherently implausible about Sanchez’s
position—a jury could reasonably conclude that Mykes and/or Duffy passed on at least
a suspicion (similar to Wolff and/or Hartley allegedly passing on a suspicion of
intoxication to Duffy). Indeed, Sugioka says that Mykes expressed concerns to him,
which makes it plausible that she would express concerns to others.
The third allegation (that Dickson rigged the polygraph exam), is irrelevant,
strictly speaking, to the question of Dickson’s ability to recognize Sanchez’s disability.
Under Sanchez’s overall theory, any authority figure asking questions of him will
perceive his disability, and so the actual administration of the polygraph test should be
just one more question-asking context in which that disability manifests itself. However,
if the Court understands Sanchez correctly, his insistence that Dickson rigged the
polygraph exam seems to be part of a broader accusation that Dickson wanted to get a
confession regardless of its truth or falsity—which accusation, if believed by a jury,
would be enough to show at least reckless disregard. This has nothing specifically to
do with the obviousness of Sanchez’s disability, but the Court finds it relevant to the
overall analysis. And on that score, the Court further finds that Sanchez is prepared to
introduce competent evidence to support his accusation.
In conclusion, the Court concludes that Sanchez has enough evidence to go to a
jury on the theory that Dickson must have perceived Sanchez’s disability.
3.

Fatigue

The fourth allegation the Tenth Circuit found relevant was that “Mr. Sanchez’s
unusual behavior in the interviews was amplified by fatigue. He had been awake for
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over 30 hours by the end of the interviews, and he repeatedly told the defendants that
he was tired and spoke with his eyes closed.” Sanchez II, 810 F.3d at 756. This
allegation has not been fully supported by discovery if “by the end of the interviews”
includes the polygraph session with Dickson. Nonetheless, the video of the interview
with Mykes and Duffy shows Sanchez’s extreme fatigue during that time, and a jury
could reasonably infer that he was also very tired during his earlier interview with Wolff
and Hartley (the video for which no longer exists).
Dickson, once again, is a closer call. Sanchez told Dickson that he had received
a good eight hours of sleep before the polygraph exam. On the other hand, Dickson
knew that Sanchez had been awake for quite a while before that. Dickson also
observed before the polygraph interview that Sanchez had been “yawning an awful lot”
and “yawning in here big time.” (ECF No. 205-32 at 99, 101.) On the record as
currently presented, the Court cannot say that a reasonable jury would have insufficient
evidence to conclude that Dickson could not have failed to perceive Sanchez’s lingering
fatigue, and likewise could not have failed to understand that such fatigue could affect
the polygraph results—given that Dickson specifically asked to have the polygraph
exam deferred until after Sanchez received a night’s sleep.
4.

Agreement to Details Sanchez Did Not Supply

The final allegation the Tenth Circuit found relevant was that
Mr. Sanchez was unable to give any details regarding his
involvement in the crime. Instead, Mr. Sanchez simply
agreed to the details suggested to him. At one point,
Mr. Sanchez agreed to an untrue detail that the investigator
had posed (that Mr. Sanchez had climbed into the victim’s
second-story window with a ladder). As the investigator
knew, no ladder was found at the scene.
Sanchez II, 810 F.3d at 757. The Court has already analyzed the first sentence of this
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quotation in the context of whether Sanchez’s disability was open and obvious.
Nonetheless, it is also worth considering in the full context of this allegation, which
raises an issue potentially but not necessarily connected to whether Sanchez has an
obvious disability. Whether an individual agrees with details offered by the police has
nothing necessarily to do with a diagnosable cognitive disability—extreme fatigue and a
long period of questioning could lead some normally right-thinking persons to confess
out of exasperation.
For summary judgment purposes, it is undisputed that Wolff and Hartley asked
mostly yes or no questions and got Sanchez to agree to the details of the Branham
Drive trespass largely by offering those details and asking for Sanchez’s confirmation.
It is further undisputed that there is no detail in Sanchez’s eventual written confession to
the Quarry Hill incident that had not been previously supplied to him by a police officer.
Finally, it is undisputed that Sanchez agreed to Dickson’s suggestion that he used a
ladder to climb to the victim’s window at the Quarry Hill address, when Dickson well
knew that no ladder had been found at the site. Moreover, Sanchez backed away from
that suggestion when Dickson informed him that police had not found a ladder.
5.

Synthesis

Sanchez has shown he is prepared to introduce competent evidence of the six
factual scenarios that the Tenth Circuit endorsed as sufficient to establish knowledge or
reckless disregard. The Tenth Circuit has further established that knowledge or
reckless disregard in these circumstances would strip an official of qualified immunity.
Sanchez II, 810 F.3d at 759. Thus, the qualified immunity question as to each
Defendant turns on genuine disputes of material fact that a jury must resolve, and this
case must accordingly be set for trial.
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E.

Municipal Liability
Douglas County and DCSO are defendants in this action under a municipal

liability theory of failure to train and supervise Mykes and Duffy. (ECF No. 52 ¶¶ 98–
101.) Their only argument for summary judgment in their favor is that Mykes and Duffy
committed no violation of Sanchez’s rights, so they similarly may not be held liable.
(ECF No. 180 at 36–37.) Because there is a genuine dispute of material fact regarding
Mykes’s and Duffy’s liability, this argument fails at the present stage.
IV. CAUTION TO SANCHEZ’S COUNSEL
Sanchez hopes to convince a jury that Defendants are lying. It is ironic, then,
that Sanchez’s counsel have on several occasions in their papers exaggerated or
distorted evidence at this summary judgment phase. (See supra nn.2–3, 5–7, 12–15.)
Sanchez’s counsel are cautioned that the Court will tolerate no further
misrepresentations or distortions as this case moves forward. This case will be tried on
the evidence that actually exists, not on Sanchez’s counsel’s mischaracterization of it.
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ various motions for summary judgment (ECF Nos. 175, 180, 184)
are DENIED;

2.

A Final Pretrial Conference before the undersigned is hereby SET for Thursday,
December 21, 2017 at 10:00 a.m. before the undersigned in Courtroom A801 of
the Alfred A. Arraj United States Courthouse, during which conference the Court
will set this case for a Final Trial Preparation Conference and jury trial; and

3.

No later than seven calendar days before the Final Pretrial Conference, the
parties shall submit a proposed final pretrial order according to the form made
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available at http://www.cod.uscourts.gov/CourtOperations/RulesProcedures/
Forms.aspx, and shall e-mail an editable copy of that document to
[e-mail].

Dated this 26th day of October, 2017.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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