Walker v. Suarez et al

Filing 27

ORDER granting 10 Defendant Suarez's Motion to Dismiss for Failure to State a Claim and 17 Defendant Stoner's Motion to Dismiss for Failure to State a Claim. Defendants Suarez and Stoner are awarded costs pursuant to F.R.C.P. 54(d)(2) and D.C.COLO.LCivR 54.1; however, the Court finds it is not appropriate to award attorney's fees pursuant to 42 U.S.C. § 1988. Further, C.R.S. § 13-17-101, 102 and C.R.C.P. 12(b) are state laws of a procedural nature that are inapplicable in federal court, and an award of attorney's fees under those provisions is also inappropriate. Entered by Judge R. Brooke Jackson on 1/26/2016. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 15-cv-01960-RBJ
GEORGE WALKER,
Plaintiff,
v.
VINCE SUAREZ, Walsenburg Police Captain, and
KEVIN STONER, Deputy District Attorney for Colorado’s Third Judicial District,
in their individual capacities,
Defendants.

ORDER

This matter is before the Court on defendant Vince Suarez’s and defendant Kevin Stoner’s
Motions to Dismiss, ECF Nos. 10 and 17. For the reasons discussed below, both motions are
granted.
I.

FACTS

The plaintiff, George Walker, brings this suit pursuant to 42 U.S.C. § 1983, claiming that the
defendants violated his Fourth Amendment right to be free from unreasonable search and seizure
and his First Amendment right to freedom of speech. ECF No. 5 ¶¶ 25-30. One of the
defendants, Vince Suarez, is the Captain of the City of Walsenburg Police Department. Id. at ¶
7. The other defendant, Kevin Stoner, is a Deputy District Attorney for Colorado’s Third
Judicial District. Id. at ¶ 8. Mr. Walker’s claims arise out of his arrest and detention for
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statements that he made about Michael Brown, a Certified Peace Officer for Colorado’s Division
of Wildlife. Id. at ¶ 10.
Joe Kancilja is the owner of a pawn shop in Walsenburg, CO. Id. at ¶ 12. According to
Mr. Kancilja, near the end of March 2015, Mr. Walker came to Mr. Kancilja’s pawn shop and
stated that he was angry with the Division of Wildlife’s helicopter for scaring away elk that Mr.
Walker was trying to hunt. Id. at ¶ 12; Ex. B to Am. Compl; Ex. C to Am. Compl. Mr. Walker
also stated “that he was going to shoot the [helicopter] down and kill everyone inside.” Id. at ¶
12; Ex. B to Am. Compl. Mr. Brown was in this helicopter checking the area for illegal hunting
activity. Id. at ¶ 12.
On April 10, 2015 Mr. Walker returned to Mr. Kancilja’s pawn shop and was angry that
the helicopter had chased away the elk again. Id. at ¶ 12; Ex. B to Am. Compl. Mr. Walker
stated that “he was going to shoot Mike Brown for chasing elk once again.” Id. at ¶ 12; Ex. B to
Am. Compl. Mr. Kancilja felt that Mr. Walker’s statements “made it sound like [Mr. Walker]
was laying for Mike Brown on the road.” Id. at ¶ 12. Mr. Kancilja urged told Mr. Walker “to
let it go,” which angered Mr. Walker. Id. at ¶ 12. George Hundrun was also in the pawn shop at
this time and heard Mr. Walker’s statements concerning Mr. Brown. Id. at ¶ 12. Mr. Hundrun
further reported that Mr. Walker bought a rifle scope while he was at the pawn shop. Id. at ¶ 12.
On April 14, 2015 Mr. Kancilja called Mr. Brown and told him about what Mr. Walker
had said. Ex. B to Am. Compl. On April 15, 2015 Mr. Brown obtained written statements from
Mr. Kancilja and Mr. Hundrun containing accounts of the declarations Mr. Walker made about
shooting Mr. Brown and the helicopter. Id. at ¶ 13; Ex. B to Am. Compl.; Ex. C to Am. Compl.
Mr. Brown then took the written statements to Mr. Suarez. Id. at ¶ 13. On April 16, 2015, Mr.
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Suarez applied for a warrant to arrest Mr. Walker for felony menacing in violation of C.R.S. §
18-3-201(1)(B). Id. at ¶ 14; Ex. D to Am. Compl. Mr. Stoner reviewed and initialed the
application for the warrant, and Mr. Suarez filed it with the Huerfano County District Court. Id.
at ¶ 16. Honorable Judge Gary Stork issued the arrest warrant, and Mr. Suarez and other
Walsenburg Police officers arrested Mr. Walker. Id. at ¶ 17-18.
Upon Mr. Walker’s arrest, Judge Stork issued a $5,000 cash-only bond and scheduled
Mr. Walker’s first appearance for, and ordered the People to file charges by, May 11, 2015. Id.
at ¶ 19. However, on May 8, 2015 Mr. Stoner filed with the court a motion for Nolle Prosequi
requesting that the charges against Mr. Walker be vacated due to the lack of evidence necessary
to prove the case against Mr. Walker beyond a reasonable doubt. Id. at ¶ 20. On May 11, 2015
Judge Stork granted the Nolle motion. Mr. Walker was unable to post the $5,000 bond and
remained in the Huerfano County Jail from April 16, 2015, the day he was arrested, until the
court granted the Nolle motion on May 11, 2015. Id. at ¶ 22.
On July 30, 2015 Mr. Walker filed his Complaint against Mr. Suarez and Mr. Stoner in
the Huerfano County Combined Courts. ECF No. 4. On September 9, 2015, the case was
removed to federal court pursuant to 28 U.S.C § 1446. ECF No. 1. While the case was still
before the Huerfano court, Mr. Walker filed an Amended Complaint alleging violations of 42
U.S.C. § 1983. ECF No. 5 ¶ 30. Specifically, Mr. Walker alleged that Mr. Suarez’s and Mr.
Stoner’s actions in connection to his April 16, 2015 arrest and subsequent detention violated his
Fourth Amendment right to be free from unreasonable seizure because neither Mr. Suarez nor
Mr. Stoner had probable cause to issue an arrest warrant and arrest Mr. Walker. ECF Nos. 19,
21. Mr. Walker also alleged that Mr. Suarez and Mr. Stoner violated his First Amendment right
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to freedom of speech. Id. at ¶ 24-30. Both Mr. Suarez and Mr. Stoner subsequently filed
Motions to Dismiss, arguing that Mr. Walker’s claims should be dismissed on the following
grounds: (1) both defendants are entitled to qualified immunity; 1 (2) Mr. Walker’s first claim of
relief for violations of his Fourth Amendment right fails to state a claim upon which relief may
be granted; and (3) Mr. Walker’s second claim of relief for violations of his First Amendment
rights also fails to state a claim upon which relief may be granted.
II.

STANDARD OF REVIEW

To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
While the Court must accept the well-pleaded allegations of the complaint as true and construe
them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th
Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient factual allegations such that the right to
relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g.,
Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).

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Because Mr. Stoner is entitled to qualified immunity, this Court need not address Mr. Stoner’s
contention that he is entitled to prosecutorial immunity.

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III.

ANALYSIS

A. Qualified Immunity.
Mr. Suarez and Mr. Stoner argue that they are entitled to qualified immunity. ECF No.
10, 11. Qualified immunity is “an immunity from suit rather than a mere defense to liability.”
Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (internal quotations omitted). All public
officials are presumed to have qualified immunity from suits for money damages, “except those
who are ‘plainly incompetent or those who knowingly violate the law.’” See Shimomura v.
Carlson, No. 14-1418, 2015 WL 9466899, at *3 (10th Cir. 2015); see also Lewis, 604 F.3d at
1225 (discussing how qualified immunity is ‘‘the norm’ for public officials”). However, an
“assertion of qualified immunity” may be overcome by a showing that (1) the public official
“violated a federal statute or the U.S. Constitution and (2) the underlying rights were ‘clearly
established at the time of their alleged violation.’” Shimomura, 2015 WL 9466899 at *3.
Considering this, “[i]n resolving a motion to dismiss based on qualified immunity, a court must
consider ‘whether the facts that a plaintiff has alleged [ ] make out a violation of a constitutional
right,’ and ‘whether the right at issue was clearly established at the time of the defendant’s
alleged misconduct.’” Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th Cir.
2011) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Consequently, if, construing
the allegations in the Amended Complaint in the light most favorable to Mr. Walker, Mr. Suarez
and Mr. Stoner violated Mr. Walker’s constitutional rights, and those rights were clearly
established when Mr. Walker was arrested and detained, then Mr. Suarez and Mr. Stoner will not
be entitled to qualified immunity.
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B. First Claim of Relief Against Captain Suarez and DDA Stoner for Violation of 42
U.S.C. § 1983 and Mr. Walker’s Fourth Amendment Right to be Free From
Unreasonable Seizure.
In determining whether the facts in the Amended Complaint indicate that Mr. Suarez and
Mr. Stoner violated Mr. Walker’s Fourth Amendment rights, this court must determine: (1)
whether Mr. Suarez and Mr. Stoner “‘possessed probable cause to arrest’” Mr. Walker for felony
menacing; and (2) “‘whether extant clearly established law’” at the time of Mr. Walker’s arrest
and detention “would have placed a similarly situated police officer on notice that no probable
cause existed.” See Shimomura, 2015 WL 9466899 *3 (internal quotations omitted).
In Shimomura the Tenth Circuit addressed qualified immunity and probable cause in the
context of the Fourth Amendment. The court found that a police officer had arguable probable
cause to arrest the plaintiff for assault after the plaintiff allegedly pushed his roller bag into a
TSA agent. Id. at *3. The Tenth Circuit held that public officials may “enjoy qualified
immunity if probable cause [was] at least arguable.” Id. (internal quotations omitted). “Under
this standard, probable cause would exist if [the police officer] had reasonably trustworthy
information that would lead a prudent person to believe that [the plaintiff] had committed an
offense.” Id.; see also Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (“Arguable
probable cause is another way of saying the officers’ conclusions rest on an objectively
reasonable, even if mistaken, belief that probable cause exists.”) Considering this, even though
the evidence did not definitively prove that the plaintiff pushed his roller bag in to a TSA agent,
the police officer could have reasonably believed that the bag hit the agent, given that the
plaintiff moved his bag in the agent’s direction and then walked quickly away, and the agent
moved suddenly after the bag was pushed in her direction. Id. at *3-4. Consequently, the police
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officer had arguable probable cause to arrest the plaintiff for assault, and was entitled to qualified
immunity from the plaintiff’s Fourth Amendment claim. Id. at *4-5.
As the Tenth Circuit stated in Shimomura, in determining whether probable cause
existed, this Court must identify and consider the alleged offense for which the plaintiff was
arrested. Id. at *3. C.R.S. § 18-3-206(1)(b) provides that
(1) A person commits the crime of menacing if, by any threat or physical
action, he or she knowingly places or attempts to place another person in
fear of imminent serious bodily injury. Menacing is a class 3
misdemeanor, but, it is a class 5 felony if committed . . .
(b) By the person representing verbally or otherwise that he or she is
armed with a deadly weapon.
The statute does not require the prosecution to prove “actual subjective fear on the part of the
victim.” People v. Saltray, 969 P.2d 729, 731-32 (Colo. App. 1998). Rather, the statute
provides for conviction even if the defendant “attempt[ed] to place another person in fear of
imminent serious bodily injury by the use of a deadly weapon,” but did not have “a conscious
objective to cause such fear” in the victim. People v. Crump, 769 P.2d 496, 499 (Colo.1989).
Consequently, the Colorado Court of Appeals has held that “it [is] unnecessary to prove that the
victim actually knew a deadly weapon was involved,” and the victim need not “actually [ ] hear
or be cognizant of any threat from the defendant.” People v. Zieg, 841 P.2d 342, 344
(Colo.App.1992); see also People v. Saltray, 969 P.2d 729, 732 (Colo. App. 1998) (“[I]f there is
evidence from which the jury could reasonably find that defendant knew his actions, if
discovered, would place the victim in fear . . . then the intent element of the offense may be
established.”)).

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Accordingly, the facts and allegations in the Amended Complaint establish that Mr.
Suarez and Mr. Stoner had at least arguable probable cause to arrest Mr. Walker for felony
menacing. Contrary to Mr. Walker’s assertions, Mr. Brown did not need to hear Mr. Walker’s
statements, nor must Mr. Walker have intended his statements to have placed Mr. Brown in fear.
See ECF No. 19, 21. Mr. Kancilja’s informing Mr. Brown about Mr. Walker’s threats, and the
urgency with which Mr. Brown reported these threats to police, indicate that Mr. Walker’s
statements were not only “attempts to place [Mr. Brown] in fear of imminent serious bodily
injury,” but actually succeeded in doing so. See C.R.S. § 18-3-206(1). Further, Mr. Walker’s
statements that he was a hunter and wanted to shoot down the helicopter, and his purchase of a
rifle scope, “represent[ed] verbally [and] otherwise that he [was] armed with a deadly weapon.”
See C.R.S. § 18-3-206(1)(b). Lastly, the arrest warrant was approved by a judge, which is a
“clear[ ] indication that [arresting] officers acted in an objectively reasonable manner.”
Messerschmidt v. Millender, 132 S.Ct. 1235, 1245 (2012).
Therefore, the facts alleged in the Amended Complaint indicate that Mr. Suarez and Mr.
Stoner had arguable probable cause to arrest Mr. Walker for felony menacing. Consequently,
neither Mr. Suarez nor Mr. Stoner violated Mr. Walker’s Fourth Amendment right to be free
from unreasonable seizure. Mr. Suarez and Mr. Stoner are entitled to qualified immunity from
Mr. Walker’s Fourth Amendment claim.
C. Second Claim for Relief Against Captain Suarez and DDA Stoner for Violation of 42
U.S.C. § 1983 and Mr. Walker’s First Amendment Right to Freedom of speech.
In determining whether the facts in the Amended Complaint indicate that Mr. Stoner and
Mr. Suarez violated Mr. Walker’s clearly established First Amendment right to freedom of
speech, this Court first must consider whether Mr. Walker’s statements constituted “true threats.”
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See Nielander v. Board of Cnty. Com’rs, 582 F.3d 1155, 1166-69 (10th Cir. 2009). The First
Amendment does not protect speech that constitutes “true threats.” Virginia v. Black, 538 U.S.
343, 359 (2003). While political hyperbole is protected speech, political speech may
nevertheless contain true threats. Compare Nielander, 582 F.3d at 1168 (holding that the
plaintiff in a First Amendment retaliation action had made a true threat, not just political
hyperbole, given that the plaintiff said he “would bring a gun” to a Board of County
Commissioners meeting and “was extremely agitated”) with Watts v. U.S., 394 U.S. 705, 708
(1969) (holding that the defendant had not made a true threat when, during a political rally, he
suggested he would shoot Lindon B. Johnson if he were forced to fight in a war, given that the
threat was “political hyperbole” which tends to be “vituperative” and “inexact”). True threats
“constitute speech beyond the pale of protected vehement, caustic . . . unpleasantly sharp attacks
on government and public officials.” Nielander, 582 F.3d at 1168 (internal quotations omitted).
A true threat must be a “serious threat,” as opposed to statements consisting of “mere political
argument, idle talk or jest.” U.S. v. Viefhaus, 168 F.3d 392, 395 (10th Cir. 1999) (internal
quotations omitted). In Virginia v. Black, the Supreme Court defined true threats as
. . . statements where the speaker means to communicate a serious expression of
an intent to commit an act of unlawful violence to a particular individual . . . The
speaker need not actually intend to carry out the threat. Rather, a prohibition on
true threats protects individuals from the fear of violence and from the disruption
that fear engenders, in addition to protecting people from the possibility that the
threatened violence will occur. Intimidation in the constitutionally proscribable
sense of the word is a type of true threat, where a speaker directs a threat to a
person . . with the intent of placing the victim in fear of bodily harm or death.
U.S. v. Heineman, 767 F.3d 970, 976 (10th Cir. 2014) (quoting Virginia v. Black, 538 U.S. 343,
359-60 (2003)). The Tenth Circuit has interpreted Black’s definition as requiring that the
speaker subjectively intend for “the recipient of the threat to feel threatened.” Id. at 978 (holding
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that the Black decision requires “more than a purpose to communicate just the threatening
words,” and instead “require[es] that the speaker want the recipient to believe that the speaker
intends to act violently”). 2
Here, it is clear that Mr. Walker intended his statements to be a true threat. While Mr.
Walker may not have intended to actually shoot down the helicopter, it is clear that he intended
for his statements and actions to instill fear of bodily injury in Mr. Brown. Mr. Walker was
angry at Mr. Brown, refused to “let it go,” and had an obvious desire for the helicopter to stop
chasing elk away. Further, Mr. Kancilja opined that Mr. Walker’s statements “made it sound
like” he was lying in wait for Mr. Brown. Mr. Walker was also a hunter with access to guns, and
bought a rifle scope at the pawn shop the same day that he threatened to shoot Mr. Brown.
Considering that Mr. Walker made these threats using obscene language aimed at a specific
individual on two separate occasions suggests that his statements went beyond “mere political
argument, idle talk or jest.” See U.S. v. Viefhaus, 168 F.3d at 395. Therefore, Mr. Walker’s
statements constituted true threats and were not protected by the First Amendment.
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This Court finds that the Tenth Circuit’s decision in U.S. v. Twitty and the Supreme Court’s decision in
Elonis v. U.S. do not render Heineman’s holding obsolete. In U.S. v. Twitty, the Tenth Circuit declined to
follow Heineman and instead defined a true threat as a statement “that a reasonable person under the
circumstances would understand as a declaration of intention . . .to inflict . . . pain on another.” U.S. v.
Twitty, 591 Fed. Appx. 676, 681, 682 n. 4 (10th Cir. 2015) (internal quotations omitted). However, the
Supreme Court vacated Twitty’s judgment and remanded the case to the Tenth Circuit for further
consideration in light of the Supreme Court’s recent decision in Elonis v. U.S. Twitty v. U.S., 136 U.S. 90
(2015). In Elonis, the Supreme Court held that “the mental state requirement in [18 U.S.C.§ 875(c)],”
which criminalizes transmitting a “communication containing any threat . . . to injure the person of
another,” “is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or
with knowledge that the communication will be viewed as a threat.” Elonis v. U.S., 135 S.Ct. 2001, 2004,
2012 (2015) (internal quotations omitted). Consequently, the district court erred when it instructed the
jury that “the Government need prove only that a reasonable person would regard [the defendant’s]
communications as threats.” Id. at 2012. However, the Supreme Court declined to consider any First
Amendment issues. Id. at 2012. Considering this, to the extent that Elonis is even binding upon the
situation presented in this case, Heineman’s requirement that the speaker must intend for the recipient of a
threat to feel threatened is consistent with the Supreme Court’s holding.

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Consequently, neither Mr. Suarez nor Mr. Stoner violated Mr. Walker’s First Amendment
right to freedom of speech. Mr. Suarez and Mr. Stoner are entitled to qualified immunity from
Mr. Walker’s First Amendment claim.
IV.

ORDER

For the reasons discussed above, Mr. Suarez and Mr. Stoner are entitled to qualified
immunity from Mr. Walker’s Fourth Amendment and First Amendment claims. Consequently,
defendant Suarez’s and defendant Stoner’s Motions to Dismiss, ECF Nos. 10 and 17, are
GRANTED, and this civil action and all remaining claims therein are DISMISSED WITH
PREJUDICE. As prevailing parties, Mr. Suarez and Mr. Stoner are entitled to an award of costs
pursuant to F.R.C.P. 54(d)(1) and D.C.COLO.LCivR 54.1. However, this Court does not find it
appropriate to award attorney’s fees pursuant to 42 U.S.C. § 1988. Further, C.R.S. § 13-17-101,
102 and C.R.C.P. 12(b) are state laws of a procedural nature that are inapplicable in federal
court, and an award of attorney’s fees under those provisions is also inappropriate.
DATED this 26th day of January, 2016.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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