Rathbun v. Montoya et al

Filing 87

ORDER ON MOTIONS TO DISMISS re 39 , 45 , 47 , 48 , 55 , 56 , and 86 : the first and fourth claims for relief in the amended complaint are dismissed and the motions to dismiss the second and third claims for relief are denied, and this civil action is dismissed as to defendant DelfinoRodriguez, by Judge Richard P. Matsch on 7/30/2014. (jsmit)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03060-RPM
DOUGLAS RATHBUN,
Plaintiff,
v.
BERNARD MONTOYA, Detective, Denver Police Department, Metropolitan Auto Theft Task
Force, sued in his individual capacity;
JOHN M. LIETZ, Detective, Denver Police Department, Metropolitan Auto Theft Task Force,
sued in his individual capacity;
DAVID SCONCE, Sergeant, Denver Police Department, Metropolitan Auto Theft Task Force,
sued in his individual capacity
JAMES SEWALD; Officer, Denver Police Department, sued in his individual capacity;
ART PETERSON, Detective, Jefferson County Sheriff’s Office, Metropolitan Auto Theft Task
Force, sued in his individual capacity;
W.D. HOOVER, Sergeant, Lakewood Police Department, Metropolitan Auto Theft Task Force,
sued in his individual capacity;
SEAN TEMPLETON, Detective, Lakewood Police Department, sued in his individual capacity;
OFFICER OBECHINA, Detective, Lakewood Police Department, sued in his individual capacity;
CHARLES HEMMING, Detective, Wheat Ridge Police Department, Metropolitan Auto Theft
Task Force, sued in his individual capacity;
DELFINO RODRIGUEZ, Inspector, Denver Neighborhood Inspection Services, sued in his
individual capacity;
OFFICER MORETTI, Metropolitan Auto Theft Task Force, sued in his individual capacity;
JOHN DOES 1-4, Metropolitan Auto Theft Task Force, sued in their individual capacities;
Defendants.
______________________________________________________________________________

ORDER ON MOTIONS TO DISMISS
_______________________________________________________________________
In his amended complaint Douglas Rathbun alleges that he owns an auto repair
business, Denver Performance Auto & 4 x 4, located at 1201 W. Alameda Ave., in
Denver, Colorado, with unrepaired and partially repaired vehicles stored in an adjacent
lot; and that on November 10, 2011, the named defendant police officers seized all of
the vehicles pursuant to an invalid search warrant. He claims that the defendants are
liable for damages under 42 U.S.C. § 1983 because they violated the Fourth
Amendment to the United States Constitution, applicable to local officers under the
Fourteenth Amendment.

The defendants are police officers from the City and County of Denver, Jefferson
County, Lakewood and Wheat Ridge, Colorado, who are assigned to a law enforcement
agency called the Metropolitan Auto Theft Task Force ("MATT”).
The search warrant in question was issued by a county judge based on an
affidavit signed by Denver Detective John M. Lietz. The warrant authorized a search for
the following property:
Any vehicle or vehicle part that may be reported as, or appear to be,
stolen, have tampered or altered [sic]: ignition switch, VIN or serial
numbers, plates, stickers, license plates or any altered, or other,
ownership documentation.
Any items that may be removed from other motor vehicles such as
cameras, cell phones, wallets, purses, laptop computers, check books,
credit cards, etc.
Any Ownership documents or any paperwork to assist with identification
of owners of above parts/vehicles.
Any tools used to start, steal, tamper or alter, or disassemble motor
vehicles or alter or change VINs or VIN plates including but not limited
to: die stamps, rivet and rivet guns, VIN plate blanks, license plates of
any kind, “jiggler keys,” lock picking tools, slide hammers, “dremmel”
tools, etc.
All types of computers, tablets, scanner/printers, video or digital
cameras, cell phones, and digital or magnetic storage of any kind that
could be used to record or store video, audio or still photos.
Controlled substances (including but not limited to coca leaves, coca leaf
derivatives, stimulants, opium derivatives, depressant drugs,
hallucinogenic drugs, tranquillizers [sic]), methamphetamine,
amphetamine and marijuana and marijuana concentrate as defined in
Colorado Revised Statutes 18-18-102, as amended, together with such
vessels, implements and furniture used in connection with the
manufacture, production, storage, sale, distribution or dispensing of such
substances.

2

In his first claim for relief against Detective Lietz, Rathbun alleges that Lietz’s
affidavit was deficient because it was based on material misrepresentations and an
incredible informant.
In claim two, brought against all defendants, Rathbun alleges that the search of
his business and seizure of materials and property were pursuant to a warrant that
“illegally authorized the search and seizure of materials and property that were neither
fruits, instrumentalities, nor evidence of crime,” and that the defendants have refused to
allow recovery of property that was in his lawful possession.
Claim three against all defendants alleges seizure of “property that was in
Rathbun’s lawful possession and outside the scope of the warrant.”
The defendants filed motions to dismiss under Fed. R. Civ. P. 8(a)(2)
and12(b)(6). The defendants also claim qualified immunity.
Although Lietz’s affidavit includes stale information and the informant’s motives
may be questioned, there is not enough pleaded to make Rathbun’s first claim
actionable under Franks v. Delaware, 438 U.S. 154 (1978). Lietz’ motion to dismiss this
claim is granted.
Rathbun’s second claim for relief asserts that the search warrant is invalid in
conclusory fashion. Rathbun clarified in his response to these motions that the warrant
is invalid because it is a general warrant unlimited in scope and in authority granted to
the officers, who ransacked the plaintiff’s business and indiscriminately seized the
vehicles. The warrant is facially invalid. Any reasonably-trained police officer would
know that it authorizes an unreasonable search and seizure in violation of the Fourth
Amendment.
3

The individual defendants argue that Rathbun’s complaint is insufficient under
Rule 8 because it does not allege facts showing their individual participation in the
search and seizure. At this stage of the litigation that lack is excusable. What is alleged
is that the named defendants actively and jointly participated in an unconstitutional
search and seizure. It will be necessary to conduct discovery to determine the precise
role of each defendant. Who had the responsibility of supervision, who gave directions
and what awareness each officer had as to the unconstitutionality of this search and
seizure are not matters that the plaintiff can be expected to know before filing suit. At
this time the Court is unable to determine those who may have the protection of
qualified immunity.
The plaintiff has conceded that his arrest was lawful. Accordingly, the fourth
claim is dismissed. The plaintiff has also agreed to dismiss defendant Delfino
Rodriguez.
Upon the foregoing, it is
ORDERED, that the first and fourth claims for relief in the amended complaint
are dismissed and the motions to dismiss the second and third claims for relief are
denied. It is
FURTHER ORDERED that this civil action is dismissed as to defendant Delfino
Rodriguez.

DATED July 30th, 2014.
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge

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