Fischer et al v. Klescewski et al

Filing 121

ORDER GRANTING 80 Motion for Summary Judgment: Defendants Josh Vaughn, Michael Deedon, Jeremy Ehrlich, and Heidi Walts are entitled to judgment in their favor on all claims asserted against them, and such judgment will enter at the close of this c ase; and, 81 H&M Defendants' 81 Motion for Summary Judgment is GRANTED with respect to the Fischers' claim of intentional infliction of emotional distress, and otherwise DENIED. This case REMAINS SET for a Final Trial Preparation Conference on May 5, 2017, at 11:00 a.m., and a 5-day Jury Trial beginning on May 22, 2017, at 8:30 a.m., both in Courtroom A801. ORDERED by Judge William J. Martinez on 03/22/2017. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-1995-WJM-STV
CHRISTOPHER FISCHER;
JESSICA FISCHER;
M.F. (by and through her next friend Jessica Fischer); and
T.F. (by and through his next friend Jessica Fischer),
Plaintiffs,
v.
DREW KLESCEWSKI;
NICHOLE BACKUS;
H&M HENNES & MAURITZ LP (“H&M”);
OFFICER JOSH VAUGHN, Broomfield Police Department (sued in his personal
capacity for damages);
OFFICER MICHAEL DEEDON, Broomfield Police Department (sued in his personal
capacity for damages);
OFFICER JEREMY EHRLICH, Broomfield Police Department (sued in his personal
capacity for damages); and
SERGEANT HEIDI WALTS, Broomfield Police Department (sued in her personal
capacity for damages);
Defendants.

ORDER ON PENDING SUMMARY JUDGMENT MOTIONS

Plaintiffs Christopher and Jessica Fischer, along with their children M.F. and T.F.
(collectively, the “Fischers”), bring this action against two groups of Defendants: the
“H&M Defendants,” comprising H&M Hennes & Mauritz LP and two of its employees,
Drew Klescewski and Nicole Backus; and the “Broomfield Defendants,” comprising
Josh Vaughn, Michael Deedon, Jeremy Ehrlich, and Heidi Walts, all of whom are
members of the Broomfield Police Department. The Fischers claim that these various
Defendants’ actions resulted in false arrest, malicious prosecution, and related injuries,

all flowing from an incident in which Christopher Fischer referred to H&M store manager
Drew Klescewski as an “asshole”—once or multiple times, to Klescewski’s face or not,
depending on whose story one believes—because Klescewski allegedly behaved
insensitively when Jessica Fischer slipped and fell inside an H&M store.
Currently before the Court is the Broomfield Defendants’ Amended Motion for
Summary Judgment (ECF No. 80) and the H&M Defendants’ Motion for Summary
Judgment (ECF No. 81). For the reasons explained below, the Court grants the
Broomfield Defendants’ motion in full. As for the H&M Defendants’ motion, the Court is
frankly loathe to spend a week of its and a jury’s life determining the number of times
Christopher Fischer said “asshole,” but the Court nonetheless f inds that this and similar
questions of fact prevent summary judgment on the Fischers’ claims for malicious
prosecution and exemplary damages. The Court will, however, grant the H&M
Defendants’ motion with respect to the Fischers’ claim for intentional infliction of
emotional distress.
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 “g enuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for

2

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).
II. FACTS
This case revolves almost entirely around an incident that took place on the
evening of December 14, 2014, at the H&M clothing store in Broomfield’s Flatirons
Crossing Mall. The following facts are undisputed unless otherwise noted.1
A.

The Fischers’ First Encounter with Klescewski
The Fischers arrived at the mall a little after 6:00 on the evening in question and

apparently went directly to H&M, entering the store through an exterior entryway. (See

1

The Fischers have submitted various surveillance videos of the incident. (See ECF
No. 102.) These videos are heavily edited and contain captioning apparently inserted by the
Fischers’ counsel through a computer program. This captioning is sometimes argumentative,
and sometimes provides factual elaboration on the events supposedly transpiring in the video
(although without citation to the record to support that elaboration). In other words, the entire
purpose of these videos, as submitted, is basically argumentative. The Court will consider
these videos as if they had been submitted without the captioning, but absent a stipulation of
the parties, these videos could not be admitted at trial with the captioning. As for other editing
—such as jumping between camera angles, presenting certain portions in slow-motion, or
synchronizing external audio sources with the video—the Court leaves it to the Fischers to
break the edited segments into discrete exhibits to which the H&M Defendants can stipulate or
object. In other words, the Court does not wish to be presented with a 15-minute compilation
(such as the Fischers’ current Exhibit B) and then be required to rule on a second-by-second
basis which segments are admissible and which are not.

3

ECF No. 81 at 3, ¶¶ 4–5.) It had been snowing earlier that day, so the ground outside
was wet and someone at H&M had placed a “wet floor” caution sign at the entrance of
the store, although the parties dispute whether this sign was easily visible to entering
patrons. (Id. ¶¶ 2–3.)2 In any event, Jessica Fischer, while carrying her son T.F.,
slipped and fell upon entering the H&M. (Id. ¶ 4.)
The Fischers then approached a nearby employee—who turned out to be
Defendant Drew Klescewski (“Klescewski”)—and informed him of the incident. (Id. ¶ 6.)
The Fischers claim that Klescewski reacted apathetically and dismissively, and was
“smirking” when he told the Fischers that H&M officials would not permit him to put a
rug down at the store’s entrance. (Id. ¶¶ 8–10.) Jessica then remembers her husband,
Christopher, making a sarcastic comment to the effect of, “‘Wow, that’s amazing
customer service’ or something like that.” (ECF No. 99-1 at 213.)
B.

The Confrontation at the “Cash Point”
The Fischers then walked to the cash register area—which all parties dub the

“cash point”—and asked a different employee if they could speak with the manager.
(ECF No. 81 at 4, ¶ 15.) The employee summoned the manager, who turned out to be
Klescewski. (Id.) The ensuing exchange between Klescewski and the Fischers near
the cash point is one of the focal points of the parties’ dispute.
According to Klescewski and another H&M employee who was standing behind
the cash registers, Defendant Nichole Backus (“Backus”), Christopher Fischer became

2

The Court could likely make a judgment as a matter of law on this question given that
surveillance video clearly shows the location of the wet floor sign relative to the entrance. But
the Court will not make any finding in this regard because nothing in this case turns on this
dispute (there is no premises liability claim, for example).

4

red in the face, had throbbing neck veins, puffed out his chest, and advanced toward
Klescewski in an intimidating manner, while Jessica Fischer began yelling. (Id.
¶¶ 16–20.) The Fischers deny all of this, pointing to the security camera footage (their
Exhibit C). Unfortunately, that footage was shot from far away and at a poor angle.
Without the Fischers’ explanation (ECF No. 103 at 2), the Court would never be able to
tell who was who and what is allegedly going on, given that the interaction in question is
mostly obscured by a clothing rack and the only visible movements are two (or
potentially three) pairs of legs seen from mid-thigh downward. Moreover, everyone in
question was wearing black pants, or pants that look black on the security footage.
However, the Fischers claim that an individual wearing gray shoes was Christopher
Fischer—a claim supported by other video segments—and that gray-shod individual is
seen backing away from the other individual (allegedly Klescewski) at least four times,
rather than advancing toward him.
As for words spoken during this encounter at the cash point, Christopher Fischer
asked to speak to a different manager but Klescewski stated that he was the manager
with whom the Fischers needed to speak. (ECF No. 81 at 4, ¶ 22.) Jessica Fischer
challenged Klescewski on his claim that H&M would not permit him to put a rug at the
front entrance. (Id. ¶ 23.) Klescewski again stated that he did not have authority to put
down the rug, and Christopher Fischer perceived Klescewski’s tone of voice as “snarky”
when he said this. (Id. ¶¶ 23–24.) Klescewski says that Fischer twice called him both
an “asshole” and a “jerk.” (Id. at 5, ¶ 26.) The Fischers claim that Christopher only
used the word “asshole” once, and that it was made in the context of a comment to his
wife: “Mr. Fisher [sic] looked over at his wife and said: ‘Wow, this guy’s an asshole.’”
5

(ECF No. 97 at 3.) Klescewski was nonetheless only one or two feet away when these
words were spoken. (ECF No. 81 at 5, ¶ 31.) Klescewski then said, “If you talk like that
in my store, I’m going to have to ask you to leave or I’m going to call the police,” to
which Christopher Fischer responded in a raised voice, “Maybe you should call the
police.” (Id. ¶ 28.)
Around this point, M.F. and T.F. left the store and entered the mall proper,
unbeknownst to their parents. (ECF No. 80 at 5, ¶ 6.) 3 Also around this time,
Klescewski moved away from the Fischers and went behind the register counter, while
another store supervisor or manager, Taylor Winter-Martinez, approached the Fischer
parents and asked whether she could do anything to help. (Id. at 2, ¶ 1; id. at 5, ¶ 33.)
The Fischers reported Jessica’s slip-and-fall. (Id.) While this conversation was
ongoing, Klescewski approached Backus (still behind the register counter) and can be
seen on the surveillance video saying something to her, after which Backus dialed 911.
(Id. ¶ 35.) Apparently as that call was going through, the Fischers agreed to fill out an
incident report for Winter-Martinez, and Winter-Martinez then left that area of the store
to retrieve an incident report form. (Id. ¶¶ 33–34.)
C.

Backus’s 911 Call and the Police’s Arrival4
Meanwhile, the 911 dispatcher had picked up Backus’s call and Backus reported

3

A caption on one of the Fischers’ edited surveillance videos alleges that the children
left because they were “anxious to see Santa.”
4

All of the quotations from Backus’s 911 call in this Part II.C are the Court’s own
transcription from the audio that the Fischers overdubbed onto the security camera footage
submitted at their Exhibit B (ECF No. 102), beginning at security camera timestamp 6:12:45.
The narrative in this Part comes from the same video.

6

“a customer that is getting really belligerent with one of our managers and yelling at
them [sic].” By this time, Christopher Fischer had left the store, apparently to find his
children, and Jessica Fischer started walking to the back of the store, where WinterMartinez had gone. Backus reported to the 911 dispatcher that Christopher Fischer
was “swearing at our manager and yelling really loudly, and kind of making a scene.”
The dispatcher then asked, “W hat’s he mad about, do you know?” Backus responded,
“No, I think he’s mad about one of the signs or something . . . . He’s yelling about, ‘oh,
there’s false advertising’ or something, ‘I’m gonna sue you,’ ‘you’re an a-hole,’ stuff like
that.”
The 911 dispatcher inquired, “Is he still there?” In a tentative tone of voice,
Backus replied, “I think he went to the front of the store,” and then put down the phone
to contact Klescewski through a handheld radio: “Drew, is that guy still in the store?”
Klescewski radioed back a non-answer: “We’re going to fill out an incident report for the
lady [Jessica Fischer].” Backus then said something to Klescewski about “sending
someone over” or “sending some people over”—possibly referring to the Broomfield
Police Department, but the audio is very difficult to understand. Backus then picked up
the telephone and told the 911 operator, “Y eah, they’re hanging out in the front of the
store. They’re still making a ruckus.” In fact, Christopher had left the store by this time
and Jessica was in the back of the store, pacing and apparently waiting for WinterMartinez to return with the incident form—although Jessica later made her way back to
the front of the store to examine the area where she slipped.
Defendant Michael Deedon (“Deedon”), a Broomfield police officer, approached
the exterior of the store about this time. As he arrived, the 911 dispatcher asked
7

Backus, “Are you able to see them [the Fischers] from your, from your location?”
Backus answered, “I can’t, but my manager is watching him on the camera.” Nothing in
the record supports this answer.
The 911 dispatcher then said that some officers should arrive shortly—and the
video shows that Deedon was in fact in the store by then.
D.

Christopher’s Arrest
The security camera footage becomes almost useless at this point, as none of

the ensuing material events is visible (with one partial exception, described below).
However, it appears undisputed that Deedon and two other defendants—Broomfield
police officers Josh Vaughn (“Vaughn”) and Jeremy Ehrlich (“Ehrlich”)—encountered
Jessica Fischer somewhere near the cash point less than a minute after Backus put the
911 dispatcher on hold. These officers had received a report that “a male and female
customer were making a scene. The man was about 6 feet tall with brown hair. The
male was belligerent and swearing at the manager.” (ECF No. 80 at 5, ¶ 3 (citations
omitted).) Deedon claims that he asked Jessica to help him find her husband. (Id. at 6,
¶ 8.) Jessica denies that Deedon ever made such a request. (ECF No. 98 at 2, ¶ 8.)
For unknown reasons, however, Jessica volunteered to the police that Christopher had
said to her, “‘Wow, this guy [Klescewski] is an asshole,’ or something to that effect.”
(ECF No. 80 at 6, ¶ 9.) Around the same time, Klescewski himself spoke with Deedon
and reported that “he [had been] called an asshole and a jerk sev eral times and that he
felt physically threatened by Mr. Fischer.” (Id. ¶ 10.)
Ehrlich must have heard at least Jessica’s report of Christopher’s “asshole”
statement because he soon located Christopher a little ways outside the H&M store, in
8

the mall itself, and informed him that “Mrs. Fischer said he called Mr. Klescewski an
asshole.” (ECF No. 98 at 3, ¶ 13; see also ECF No. 80 at 6, ¶ 12.) Christopher claims
that he clarified to Ehrlich that his comment had been made to his wife, although
referring to Klescewski. (ECF No. 98 at 3 ¶ 13.) Christopher refused to provide any
information to Ehrlich about himself other than his first name, refused to provide
identification, and eventually refused to answer any questions at all. (ECF No. 80 at
6–7, ¶¶ 12, 15–16.)
Although the record does not specify when, Deedon eventually joined this
interaction and decided to arrest Christopher under Colorado’s m isdemeanor
harassment statute, discussed further in Part III.B.2, below. (Id. at 7, ¶ 17.) Deedon
believed he had probable cause at least based on w hat he had learned from the 911
dispatcher and from Klescewski. (Id.)5
At the time of Christopher’s arrest, M.F. and T.F. had been with him. (Id. at 8,
¶ 19.) A fourth Broomfield officer, Defendant Heidi Walts (“Walts”), had appeared by
that point and began escorting the children back to Jessica Fischer inside the H&M
store. (Id.)
E.

Jessica’s Detention
By this time, Winter-Martinez had rejoined Jessica Fischer inside the H&M store

with an incident report for Jessica to fill out, but Jessica no longer wished to submit a
report. (Id. ¶ 20.) She says she changed her mind in this regard “[a]fter it became clear

5

The argumentative portion of the Fischers’ summary judgment brief alludes to
Christopher being taken to a jail and kept there for some amount of time (see ECF No. 98 at
19), but no party makes any factual allegations in this regard. The record therefore does not
reveal how long Christopher spent in jail.

9

to [her] that the police were not there to help, that her husband was taken into custody
and she was being treated like a suspect.” (ECF No. 98 at 4, ¶ 20.)
Jessica instead told Vaughn—the police officer who apparently stayed with
Jessica while Ehrlich and Deedon went out to speak with Christopher—that she wanted
to call “her police officer friend.” (ECF No. 80 at 8, ¶ 21.) Vaughn told her that “he
could not have her using her phone.” (Id. ¶ 22.) Vaughn did not want Jessica using her
phone at that time “based on a training he had received about an officer who was
injured when a person on scene used their phone to tex t someone who later arrived at
the scene and ran the officer over with the vehicle.” (Id.)6
Vaughn asked Jessica to surrender her phone, Jessica ref used, and then
Vaughn reached to take Jessica’s phone out of her hand, telling her to “stop resisting.”
(Id. ¶¶ 23–24.) Some sort of scuffle ensued, about which the parties have their own
stories which diverge from each other and from the short segment of security camera
footage that shows the scuffle. The Broomfield Defendants simply assert that Jessica
and Vaughn both “backed into a nearby display.” (Id. at 9, ¶ 25.) The Fischers, by
contrast, say that Vaughn grabbed Jessica’s hands, “started twisting,” and “kept
pushing [Jessica] back until she fell into a collection box and knocked it over.” (ECF
No. 98 at 5, ¶ 25.) The Fischers claim that their story is “clearly depict[ed]” in the
security camera footage (id.), but the footage actually shows Vaughn slowly pushing
Jessica backward in an almost dance-like pose, with Vaughn’s left hand holding
Jessica’s right, and Vaughn’s right hand on Jessica’s left upper arm or shoulder. (ECF

6

The Fischers deny this but then provide no evidence to refute it. (ECF No. 98 at 4,
¶ 22.) The Court therefore deems Vaughn’s motivations undisputed.

10

No. 83, Video Clip 2.) Some sort of container, perhaps less than waist-height, is behind
Jessica and being pushed backward with her, but then it is pushed off screen. Jessica
never falls into anything.
The scuffle ended when Vaughn succeeded in taking the phone away from
Jessica; and, almost simultaneously, Walts arrived and immediately grabbed Jessica
from behind to place her in handcuffs. (See ECF No. 80 at 9, ¶¶ 26–27.) W alts says
that she took this action “to ensure officer safety and maintain the investigation.” (Id.
¶ 26.) Ehrlich, Vaughn, and Walts then guided Jessica and her children to “the
Community Room of the mall,” where they removed Jessica’s handcuffs. (Id.
¶¶ 29–30.) No party describes this “Community Room” or points the Court to evidence
of the length of time that Jessica and her children spent there, 7 but Jessica was never
charged with any crime. (Id. ¶ 31.)
F.

Disposition of the Charge Against Christopher Fischer
Formal court proceedings against Christopher Fischer on his harassment charge

were instituted by Deedon through a misdemeanor summons and complaint. (ECF No.
98 at 8, ¶ 5.) A Seventeenth Judicial District prosecutor, Candyce Choi Cline (“Cline”),
was assigned to the case. (ECF No. 80-9 ¶ 2.) Cline had no contact w ith any of the
Broomfield Defendants or the H&M Defendants while investigating the case. (ECF No.
81 at 8, ¶ 59; ECF No. 80 at 10, ¶ 34.) She ev entually dismissed the harassment

7

In argument, the Fischers claim that Jessica was “detained for an hour.” (ECF No. 98
at 11.) Because this statement was not presented in their Statement of Additional Disputed
Facts, the Broomfield Defendants had no opportunity to admit or deny it, and therefore the
Court cannot consider it. See WJM Revised Practice Standards III.E.5, 6(b). In any event, the
Fischers cite no supporting evidence and therefore fail in their duty to establish facts through
citations “to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).

11

charge, “but not for lack of probable cause.” (Id. ¶ 33.) Rather, “the decision was made
to dismiss the case on the grounds that there was no reasonable likelihood of
conviction at trial given that there was a question as to whether the charge against
Mr. Fischer could be proven beyond a reasonable doubt.” (ECF No. 80-9 ¶ 5; see also
ECF No. 81 at 8, ¶ 60.)
G.

Effect on the Fischers
The Fischers claim “profound emotional distress” over this event. (ECF No. 98

at 7, ¶ 2.) They assert that they “think about it constantly, they do not go to Malls much
anymore, and they are so anxious over interacting with police officers that they avoid
interactions.” (Id.) Jessica claims that she broke down crying during a routine traffic
stop in October 2016, and attributes that em otional response to the encounter with
police on December 14, 2014. (Id. ¶ 3.) The Fischers further claim that the children
“have been profoundly changed as well,” and that their encounter with police “is a
constant source of conversation in the Fischer household as the adults have to explain
to and reassure the children [regarding the event].” (Id. ¶ 2.)
III. ANALYSIS
Against the Broomfield Defendants, the Fischers allege various constitutional
claims under 42 U.S.C. § 1983, specifically: denial of the right to familial association,
arrest without probable cause (a.k.a. false arrest), excessive force, and malicious
prosecution. (ECF No. 53 at 20–23.) Against the H&M Defendants, the Fischers allege
common-law malicious prosecution and intentional infliction of emotional distress. (Id.
at 23–28.) As for H&M itself, the Fischers are seeking respondeat superior liability.

12

(See ECF No. 103 at 19–20.)
All Defendants move for summary judgment on all of the claims asserted against
them. The Broomfield Defendants also assert qualified immunity. The Court will first
discuss qualified immunity generally, and then will address the Fischers’ various claims
essentially in the order in which they accrued.
A.

Qualified Immunity
“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). “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).
Although summary judgment usually places the burden of persuasion on the
moving party, a claim of qualified immunity shifts the burden to the non-moving
party—the Fischers, in this case—to demonstrate the violation of the constitutional right
and, even more significantly, that the right was clearly established at the time of the
challenged conduct. Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001). “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

13

Cir. 2014) (internal quotation marks omitted).
B.

False Arrest of Christopher Fischer
The Fischers assert that Deedon arrested Christopher Fischer without probable

cause (ECF No. 53 ¶ 31), although the Fischers also sometimes direct this claim at “the
police officer defendants” generally, not any specific officer (ECF No. 98 at 14). It is
undisputed that Deedon made the decision to arrest Christopher Fischer. (ECF No. 80
at 7, ¶ 17.) In addition, the Fischers assert no theory by which any of the other
Broomfield Defendants could share in the liability for Deedon’s decision (e.g.,
conspiracy, supervisory liability, failure to intervene). The Court finds, accordingly, that
it need only examine whether Deedon had probable cause (or “arguable probable
cause,” as explained below) to arrest Christopher Fischer.
1.

False Arrest Generally, and its Relationship to Qualified Immunity

“A plaintiff may recover damages under § 1983 for wrongful arrest” if arrested
“without probable cause.” Cottrell v. Kaysville City, 994 F.2d 730, 733 (10th Cir. 1993).
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
based on the totality of the circumstances.
Koch v. City of Del City, 660 F.3d 1228, 1239 (10th Cir. 2011) (internal quotation marks

14

and citations omitted; alterations incorporated). W hen the arresting officer asserts
qualified immunity, the probable cause standard becomes even more deferential:
[N]ot only must the plaintiff demonstrate that the officer
arrested her without probable cause (that is, that he violated
a constitutional right), but also that it would have been clear
to a reasonable officer that probable cause was lacking
under the circumstances (that is, that the right was clearly
established in the specific situation).
Id. at 1241. “As a practical matter, [courts] implement this standard by asking whether
there was ‘arguable probable cause’ for an arrest—if there was, a defendant is entitled
to qualified immunity.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012).
Whether probable cause existed (the ultimate liability question and the first prong
of the qualified immunity analysis) is a question for the jury if it turns on disputed facts,
e.g., a question of what the officer actually observed; but it otherwise may be
determined as a matter of law by the Court. See, e.g., Cavanaugh v. Woods Cross
City, 718 F.3d 1244, 1253–54 (10th Cir. 2013); Cottrell, 994 F.2d at 734. Qualified
immunity is a question of law, although disputes of fact that necessarily inform the
qualified immunity analysis may go to a jury. Maestas v. Lujan, 351 F.3d 1001,
1007–09 (10th Cir. 2003).
2.

Whether Deedon Possessed At Least Arguable Probable Cause

Deedon asserts that he had arguable probable cause to arrest for the crime of
harassment under Colorado law: “A person commits harassment if, with intent to
harass, annoy, or alarm another person, he or she * * * [r]epeatedly insults, taunts,
challenges, or makes communications in offensively coarse language to, another in a
manner likely to provoke a violent or disorderly response.” Colo. Rev. Stat. § 18-915

111(1)(h).8 The Colorado Supreme Court has construed this as a “fighting words”
statute, “proscrib[ing] only those words which have a direct tendency to cause acts of
violence by the persons to whom, individually, the words are addressed. The test is
what men of common intelligence would understand to be words likely to cause an
average addressee to fight.” People ex rel. VanMeveren v. Cnty. Court in & for Larimer
Cnty., 551 P.2d 716, 719 (Colo. 1976).
It is undisputed that Deedon had received the following information shortly
before he chose to arrest Christopher Fischer:
•

from the 911 dispatcher, he learned that “a male and female customer
were making a scene,” and particularly that “[t]he male was belligerent
and swearing at the manager” (ECF No. 80 at 5, ¶ 3 (citations omitted));

•

from Jessica Fischer, he learned that Christopher had said to her, “‘Wow,
this guy [Klescewski] is an asshole,’ or something to that effect” (id. at 6,
¶ 9); and

•

from Klescewski, he learned that “he [had been] called an asshole and a
jerk several times and that he felt physically threatened by Mr. Fischer”
(id. ¶ 10).

The Fischers argue that this last statement from Klescewski was a lie, but it is

8

The probable cause inquiry is not limited to the specific crime that the police officer
believed the suspect had committed, or with which the suspect was ultimately charged, but can
be satisfied by any crime that a reasonable police officer could have suspected at the time of
the arrest given the knowledge that the arresting officer then possessed. See Devenpeck v.
Alford, 543 U.S. 146, 153–54 (2004); United States v. Torres-Castro, 470 F.3d 992, 998 (10th
Cir. 2006). However, the Broomfield Defendants do not assert any potential crime other than
harassment under § 18-9-111(1)(h). The Court therefore confines its analysis to that crime.

16

undisputed that Klescewski said it to Deedon. (ECF No. 98 at 3, ¶ 10.) The question,
then, is whether a reasonable officer with such knowledge would possess arguable
probable cause to conclude that Christopher had violated § 18-9-111(1)(h).
Notably, the Fischers make no argument that what Deedon knew could never
establish probable cause under the fighting words standard. (See ECF No. 98 at
14–16; see also ECF No. 97 at 13–15.) In other words, the Fischers do not argue that,
even if Deedon credited Klescewski’s version of events, the conduct with which
Christopher Fischer had been accused still could not am ount to fighting words as a
matter of law, and Deedon must have known as much. As against the Broomfield
Defendants, in fact, the Fischers cite no case law at all about fighting words. (Cf. Part
III.B.3, below.)
The Fischers instead argue that
there is a disputed issue of fact as to whether the police
officers’ determination of probable cause has been gained
from a reasonably credible victim or eyewitness. Ms.
Backus’ 911 call did not once mention anything that would
even meet the elements of harassment in violation of CRS
18-9-111(1)(h). In order for there to be a violation of CRS
18-9-111(1)(h), Mr. Fisher [sic] would have had to repeatedly
taunt or challenge or call Mr. Klescewski an “asshole” in a
manner likely to provoke a violent or disorderly response. It
is a disputed issue of material fact whether Mr. Fischer
simply referred to Mr. Klescewski as an asshole within his
earshot or whether Mr. Fischer (as Mr. Klescewski alleges)
repeatedly taunted him while behaving in a physically
aggressive manner.
(ECF No. 98 at 15 (emphasis in original); see also ECF No. 97 at 15 (“Whether or not
there was probable cause turns on the resolution of these disputed issues of fact.”).)
So framed, then, the probable cause inquiry reduces to whether Deedon should have
17

known not to trust Klescewski’s report—or, from a qualified immunity perspective,
whether any preexisting law clearly established that Deedon should not have trusted
Klescewski’s report.
The Court agrees with the Fischers’ assertion that a genuine factual dispute
exists between the Fischers and the H&M Defendants over what really happened at the
cash point: whether Christopher Fischer called Klescewski an asshole to his face or just
in his presence, whether he said it once or multiple times, whether he displayed
aggressive body language, etc. However, the Fischers do not explain how this dispute
with the H&M Defendants has anything to do with whether Deedon received reasonably
trustworthy information. Indeed, the Fischers assert no facts whatsoever that should
have prompted Deedon (or any other officer) to conclude, on the spot, that the
information received from the 911 dispatcher and/or the information learned from
Klescewski was untrustworthy. Nor do the Fischers cite any case law establishing clear
rules applicable to the situation in which Deedon found himself. Thus, at a minimum,
the Fischers have failed to carry their burden to overcome qualified immunity. Deedon
therefore possessed at least arguable probable cause to arrest Christopher Fischer for
misdemeanor harassment.
In any event, the Court further finds that, to the extent actual probable cause is a
fact question in this case, no reasonable jury could find it lacking given one pivoital
piece of undisputed evidence. Jessica Fischer herself told Deedon that Christopher
had referred to Klescewski as an asshole. Although Jessica framed this as a statement
that Christopher made to her, not directly to Klescewski, the Court finds as a matter of
law that this was sufficient corroboration for Deedon to believe Klescewski’s own,
18

partially congruent report.
3.

“Fighting Words” and Qualified Immunity

As previously noted, the Fischers have not argued that any claim of “fighting
words” fails as a matter of law even under Klescewski’s version of events. At least as
against the Broomfield Defendants, the Fischers have therefore forfeited any such
argument. Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 791 (10th Cir. 2013) (party
forfeited counterargument that was not raised in a summary judgment response but
naturally should have been, given that it would have mooted an argument made in the
summary judgment motion). The Court nonetheless notes the following in light of the
odd way the Fischers have argued nearly identical issues vis-à-vis the H&M
Defendants.
The Fischers’ response to the summary judgment motion filed by the H&M
Defendants is mostly a verbatim duplicate of the arguments made in opposition to the
Broomfield Defendants’ motion, and ultimately comes to the same place, i.e., that
probable cause (an element of the common-law malicious prosecution claim against
Klescewski and Backus) turns on whether the jury believes Christopher Fischer’s story
or Klescewski’s story about Christopher Fischer’s verbal and body language during the
cash point confrontation. (ECF No. 97 at 13–15; cf. ECF No. 98 at 14–16.) However,
unlike the response to the Broomfield Defendants’ motion, the response to the H&M
Defendants’ motion actually contains a case citation relevant to the fighting words
standard. (See ECF No. 97 at 14–15 (citing Klen v. City of Loveland, 661 F.3d 498
(10th Cir. 2011)).) In addition, about a month after the close of summary judgment
briefing, the Court permitted the Fischers to file supplemental authority that allegedly
19

refutes the H&M Defendants’ argument “at the bottom of page 11 of their motion for
summary judgment (Document 81)” that “‘asshole’ in ‘common parlance is an insult,
taunt or challenge,’” and therefore potentially “fighting words.” (ECF No. 106 at 1–2.)
That supplemental authority is a recent Colorado Court of Appeals decision, People in
Interest of R.C., 2016 COA 166, 2016 W L 6803065 (Colo. App. Nov. 17, 2016), which
was unpublished at the time the Fischers moved to supplement and remains
unpublished today. It likewise addresses the fighting words standard.
In Klen, a developer sued a municipality, alleging that municipal employees
deliberately delayed and obstructed a permitting process, leading the developer to
complain against municipal officials, including personal accusations against municipal
officials laced with profanities such as “asshole.” 661 F.3d at 501, 505–06. Follow ing
such complaints, and allegedly because of them, the municipality issued dozens of
citations to the developer, thus prompting a lawsuit alleging First Amendment
retaliation. Id. The district court granted summary judgment in favor of the municipality
on what the municipality sensed to be a shaky basis, id. at 508–09, and so the
municipality presented on appeal an alternative argument in favor of the district court’s
judgment: “that plaintiffs’ speech deserved no constitutional protection because it was
analogous to . . . ‘fighting words,’” id. at 509. The Tenth Circuit held that the
developer’s profanities, “objectively speaking,” were not fighting words under the
circumstances presented. Id.
In R.C., the juvenile defendant (a middle school student) had taken a photo of a
classmate, used Snapchat to draw “a picture of an ejaculating penis next to [the

20

classmate’s] mouth,” and then showed the picture to other classmates. 2016 WL
6803065, ¶ 3. The incident eventually came to adult authorities’ attention and the
defendant was charged with disorderly conduct. Id. ¶¶ 4–5. Disorderly conduct in
Colorado requires a “coarse and obviously offensive utterance, gesture, or display in a
public place and the utterance, gesture, or display tends to incite an immediate breach
of the peace.” Colo. Rev. Stat. § 18-9-106(1)(a). The trial court ruled that the
defendant “knew that his drawing . . . would have tended to incite an immediate breach
of the peace, in large part because the drawing implied that [the classmate was gay].”
2016 WL 6803065, ¶ 5. Apparently the trial court also ruled that the photo was akin to
calling the classmate a “cocksucker.” Id. ¶ 26. The Colorado Court of Appeals
reversed the conviction, reasoning that neither the photo nor the allegedly implied insult
of “cocksucker” amounted to fighting words under the circumstances presented. Id.
¶¶ 15–32.
To repeat, the Fischers raised none of this against the Broomfield Defendants.
Even though their response briefs as to each group of Defendants are nearly identical
on the probable cause analysis, the Fischers omitted the Klen case from their
Broomfield brief; and, when they moved to supplement with R.C., they specifically
linked it to an argument in the H&M Defendants’ motion, not any argument the
Broomfield Defendants’ motion. The Court cannot interpret this as anything but a
deliberate decision, for whatever reason, not to assert Klen and/or R.C. as against the
Broomfield Defendants.
However, assuming out of an abundance of caution that this difference in

21

argumentation was an oversight—and it would be a fairly substantial oversight—the
Court notes that it would not change the outcome with respect to Deedon (or any other
Broomfield Defendant). To the contrary, Klen and R.C. actually support Deedon’s
qualified immunity argument.
Klen emphasizes that “the circumstances in which [alleged fighting words] were
uttered” matters greatly. 661 F.3d at 509. “[T]he context in which words were delivered
is key in determining whether they would be viewed as a constitutionally-protected
expression of opinion, as opposed to fighting words.” Id. at 510. Such context can
include whether the alleged aggressor issued a “direct personal insult” or instead
“voiced [his anger] when the targets [of his anger] were not present.” Id. (internal
quotation marks omitted). It may also include “[t]he reaction of actual hearers of the
words,” which is “significant probative evidence concerning whether the speech was
inherently likely to cause a violent reaction.” Id.
As for R.C., it cannot be considered in the qualified immunity analysis because it
postdates Deedon’s conduct and is not a decision f rom the Supreme Court or Tenth
Circuit, see Thomas, 765 F.3d at 1194, but R.C. is ultimately consistent with Klen.
Although R.C. contains dicta suggesting that “fighting words” is now an all-but-extinct
category, see, e.g., 2016 WL 6803065, ¶¶ 16–17, its actual analysis emphasizes, like
Klen, that
context is critical. “[A] defendant’s words are considered as
a ‘package’ in combination with conduct and physical
movements, viewed in light of the surrounding
circumstances.” In re Welfare of M.A.H., 572 N.W.2d 752,
757 (Minn. Ct. App. 1997); see also People in Interest of
K.W., 2012 COA 151, ¶ 30, 317 P.3d 1237 (“T he context or
22

circumstances in which the language is used must also be
considered.”). Thus, whether speech or a display constitutes
fighting words must be determined on a case-by-case basis,
considering all of the particular facts and circumstances.
Id. ¶ 22; see also id. ¶ 29 (discussing cases that “make clear that [whether profane
language amounts to disorderly conduct] turn[s] on the totality of circumstances,
particularly the threatening nature of the defendant’s speech and conduct”).
Here, Deedon received a report from Klescewski that Christopher Fischer had
used profanity multiple times and that Klescewski had felt physically threatened by
Christopher’s conduct. As already discussed, Deedon was entitled to credit
Klescewski’s story under the circumstances, meaning that Deedon had received
evidence of Christopher’s language and conduct as well as the target’s reaction.
Particularly given the context-specific nature of “fighting words,” no clearly established
law could have put Deedon on notice that what he knew could never amount to
probable cause under the harassment statute. Accordingly, to the extent the Fischers
ever intended to argue that Deedon could never have found probable cause under any
view of the evidence in this case, the Fischers have failed to meet their burden to
overcome Deedon’s qualified immunity.
In light of all this, Deedon is entitled to summary judgment on Christopher
Fischer’s false arrest claim.9

9

The Broomfield Defendants also present an argument that Ehrlich cannot be liable for
false arrest. (ECF No. 80 at 18–19.) The Fischers, in their response, fail to address this
argument. (See ECF No. 98 at 10–16.) Accordingly, the Court deems the Fischers to have
abandoned any false arrest claim they intended to assert against Ehrlich. (See ECF No. 53
¶ 31.) In any event, the analysis as to Ehrlich would have been materially identical to the
analysis as to Deedon, above.

23

C.

Deprivation of Christopher Fischer’s Familial Association Rights
The Fischers assert that Deedon deprived Christopher Fischer of his right to

familial association when he was arrested in front of his children, “booked into the jail,”
and “completely separated from his family during that time.” (ECF No. 98 at 19; see
also ECF No. 53 ¶ 30.)
1.

Familial Association Generally

The Fourteenth Amendment due process clause protects the right of familial
association. See Roberts v. U.S. Jaycees, 468 U.S. 609, 617–20 (1984). A § 1983
claim based on interference with the familial relationship requires “an allegation of intent
to interfere.” Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe Cnty., 768 F.2d 1186, 1190
(10th Cir. 1985). Stated differently, “to rise to the level of a constitutional claim, the
defendant must direct his or her statements or conduct at the [familial] relationship with
knowledge that the statements or conduct will adversely affect that relationship.” Griffin
v. Strong, 983 F.2d 1544, 1548 (10th Cir. 1993) (emphasis in original).
2.

Whether Deedon Intentionally Interfered with Christopher Fischer’s Right
to Associate with His Children

Deedon argues that the Fischers “have no evidence to support the contention
that Deedon’s decision to arrest Mr. Fischer was intended to deprive him of his
relationship with his children.” (ECF No. 80 at 13.) The entirety of the Fischers’
response, apart from a paragraph citing generic case law, is as follows (addressing
both Christopher’s and Jessica’s familial association claims):10
10

Jessica’s specific claim is resolved in Part III.F, below, including the question of
whether “she was” in the second-to-last sentence of this passage should actually read “they
were,” referring to the children.

24

There are disputed issues of fact regarding this claim. If the
jury finds that either Mr. Fischer or Mrs. Fischer or both were
falsely arrested and therefore deprived of the association of
their family members while they were in custody, then the
jury can find in favor of the plaintiffs on this claim. Mr.
Fischer was wrongfully taken to and booked in the jail (unlike
Mrs. Fischer) and was completely separated from his family
during that time. Even though Mrs. Fischer might have been
in custody in the vicinity of her children, she had no control
over where she was allowed to go. Therefore, this claim
also cannot be resolved on summary judgment.
(ECF No. 98 at 19.)
From this argument, it appears that the Fischers believe a familial association
claim automatically flows from a false arrest. To the extent this really is the Fischers’
position, the Fischers cite no case law clearly establishing such a proposition of law,
and therefore fail in their burden to overcome Deedon’s qualified immunity.
To the extent the Fischers mean to say that a jury could consider a false arrest
as evidence of intent to interfere specifically with the family relationship, the Court does
not rule out such a possibility. However, the Court has already determined that Deedon
had at least arguable probable cause to arrest Christopher Fischer, and theref ore
cannot be liable for false arrest. If the Fischers mean to claim that an officer who
possessed probable cause to arrest can nonetheless be held liable for the familial
separation resulting from such an arrest, the Fischers again cite no case law clearly
establishing such a proposition of law, and therefore fail in their burden to overcome
Deedon’s qualified immunity.
Deedon is accordingly entitled to summary judgment on the Fischers’ claim that
Deedon interfered with Christopher Fischer’s right to familial association.

25

D.

Excessive Force Applied Against Jessica Fischer
The Fischers accuse Vaughn of using excessive force when he struggled with

Jessica to take away her phone. (ECF No. 53 ¶ 28.)
1.

Excessive Force Generally

“[A]ll claims that law enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard
. . . .” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis removed). Under this
standard, “the question is whether the officers’ actions are objectively reasonable in
light of the facts and circumstances confronting them, without regard to their underlying
intent or motivation.” Morris v. Noe, 672 F.3d 1185, 1195 (10th Cir. 2012).
2.

Whether Vaughn Used Excessive Force to Separate Jessica Fischer from
Her Phone

Viewing the facts in the light most favorable to the Fischers, Jessica
asked if she could use her phone, because she wanted to
call a police officer friend of [hers]. And Vaughn said, “I
can’t have you do that.” And Mrs. Fischer said, “I’m not
feeling comfortable. I would really like to call somebody.”
She had her phone in her hand the entire tim e. It wasn’t
being pulled our [sic] or put away or anything else. It was
just in her hand. And Vaughn said, “I can’t have you do
that.[”]
(ECF No. 98 at 4, ¶ 22.) Vaughn then reached for Jessica’s phone and asked her to
surrender it (ECF No. 80 at 8, ¶ 24), leading to the dance-like scuffle recounted above
(Part II.E).
Properly analyzing the legal consequences of this event requires first recognizing

26

that Vaughn was at that time engaged in an investigatory detention, a.k.a., a “Terry
stop,” see Terry v. Ohio, 392 U.S. 1, 27 (1968), which could be justified by “reasonable
suspicion” alone—“considerably less” than the suspicion required for probable cause.
United States v. Whitley, 680 F.3d 1227, 1234 (10th Cir. 2012) (internal quotation
marks omitted). The Broomfield Defendants point this out (see ECF No. 80 at 20
(“Vaughn had a reasonable suspicion to stop Mrs. Fischer and question her regarding
the disturbance”)), and the Fischers do not contest it, thus conceding the point.11
While conducting a Terry stop, police officers are “authorized to take such steps
as [are] reasonably necessary to protect their personal safety and to maintain the status
quo during the course of the stop.” United States v. Hensley, 469 U.S. 221, 235 (1985).
The first question, then, is whether it was reasonable for Vaughn to demand that
Jessica Fischer surrender her phone in light of:
•

her inquiry whether she could call a police officer friend;

•

after being told “no,” her statement that she “would really like to call
somebody”; and

•

Vaughn’s training regarding an officer who had been injured because
someone else at the scene texted someone elsewhere, who then came to
the scene and struck the officer with a vehicle.

The question of proper cell phone use when encountering police has reached
national importance and the Court does not hold that police hav e carte blanche to seize

11

The only “reasonable suspicion” the Fischers attempt to refute is directed at the
eventual choice to handcuff Jessica, not at Vaughn’s original choice to detain her. (See ECF
No. 98 at 12–13.)

27

cell phones simply by invoking “officer safety.” However, it is the Fischers’ burden to
show that clearly established law in December 2014 prohibited Vaughn’s demand for
Jessica’s phone in light of her openly expressed desire to use her phone to contact
someone (rather than to, e.g., record the encounter on video) and Vaughn’s training
regarding the safety hazards of getting off-scene individuals involved in an investigatory
situation. The Fischers have not attempted to satisfy that burden—they have cited no
case law at all on this issue. They in fact seem oblivious to the fact that the burden
rests on them. (See ECF No. 98 at 12 (arguing that “defendants can cite no case (and
none exists)” justifying Vaughn’s actions).) Given the Fischers’ failure on this point,
Vaughn is entitled to qualified immunity for his demand that Jessica surrender her
phone.
With this established, the ultimate excessive force question is easily resolved.
Although reasonableness of force employed can be a fact question, it may also be
resolved by the Court as a matter of law where there is video evidence of the relevant
event. See Scott v. Harris, 550 U.S. 372, 386 (2007) (finding that police officer’s
intentional collision to end a high-speed chase was objectively reasonable given
undisputed video of the chase). Such evidence exists here in the form of the security
camera video already described, which depicts an encounter involving very little force
applied by Vaughn. In that light, no reasonable jury could conclude that Vaughn used
excessive force to obtain Jessica’s phone.
Vaughn is therefore entitled to summary judgment on the Fischers’ excessive
force claim.

28

E.

False Arrest of Jessica Fischer
The Fischers accuse Vaughn and Walts of false arrest based on their choice to

handcuff Jessica after the cell phone struggle. (ECF No. 53 ¶¶ 28–29.) This claim
again must be viewed in light of the Terry stop circumstances. “A detention ceases to
be a Terry stop and becomes an arrest if it continues for an excessive time or closely
resembles a traditional arrest.” Morris, 672 F.3d at 1192.
The Fischers claim, “There is no case law that says that police officers get to put
people in handcuffs and prevent them from leaving while questioning them unless they
are under arrest.” (ECF No. 98 at 11 (emphasis in original).) The Fischers’ counsel
apparently failed to research this point (a disturbing but consistent approach to various
topics throughout counsel’s summary judgment briefing) because abundant case law is
diametrically to the contrary. Use of handcuffs certainly suggests a traditional arrest,
but
a Terry stop does not automatically elevate into an arrest
where police officers use handcuffs on a suspect . . . . At
least nine courts of appeals, including [the Tenth Circuit],
have determined the use of “intrusive precautionary
measures” (such as handcuffs or placing a suspect on the
ground) during a Terry stop do not necessarily turn a lawful
Terry stop into an arrest under the Fourth Amendment.
Gallegos v. City of Colo. Springs, 114 F.3d 1024, 1030 (10th Cir. 1997). T hus, the
Court “must determine whether the Terry stop escalated into an arrest.” Id. at 1031.
The video evidence plainly shows that Walts, who had been bringing the children
back to their mother, came into view of Vaughn and Jessica Fischer as they were

29

struggling.12 “To gain control of the situation before her or her partner was harmed, she
made a split second decision,” id., to restrain Jessica with handcuffs. She initiated the
handcuffing process, and then Vaughn assisted.
As to Walts, the Court finds that she acted reasonably with the intent of ensuring
officer safety given that she encountered a struggle in progress. Thus, this initial
decision to restrain Jessica with handcuffs did not amount to an arrest. See id.
Moreover, the Fischers offer no case law upon which this Court could rely in
determining that Vaughn had a clearly established duty under the circumstances to stop
Walts from handcuffing Jessica.
The parties agree that one of the officers removed the handcuffs after
“approximately five to ten minutes” (ECF No. 80 at 9, ¶ 30), which is apparently how
long it took to walk from the H&M store to the mall’s “Community Room” (see id.).
Given that handcuffing itself is permissible in some Terry stop situations, the Court
seriously doubts that leaving the handcuffs in place for only five to ten minutes, without
more, could be found to transform the Terry stop into an arrest. Indeed, the Fischers
do not argue as much, nor do they cite any case law clearly establishing that the
officers could not leave the handcuffs on for that length of time absent probable cause,
if only as a means to allow Jessica to “cool down.” Accordingly, Vaughn and Walts are
at least entitled to qualified immunity for handcuffing Jessica for five to ten minutes.
The final question is whether Jessica was under arrest in the Community Room.

12

This is particularly apparent in the Fischers’ Exhibit B from security camera
timestamps 6:30:01 to 6:30:24. In this segment, Walts is seen casually leading the children by
the hand through the store until she rounds a corner into view of Vaughn and Jessica Fischer,
at which point she lets go of the children and runs to intervene in the scuffle.

30

Jessica asserts, “It is undisputed that she was not free to leave [the Community
Room].” (ECF No. 98 at 6, ¶ 30.) The Broomfield Defendants do not deny this
assertion, but it is nonetheless irrelevant because “inability to leave (or, more precisely,
that a reasonable [person] would believe he is not free to leave) only establishes that
there was some kind of seizure, not whether it is of the arrest or Terry stop variety.”
4 Wayne R. LaFave, Search & Seizure § 9.2(g) (5th ed., Oct. 2016 update) (footnote
omitted); see also United States v. Hodges, 215 F. App’x 737, 745 (10th Cir. 2007) (“a
Terry detention . . . by its terms precludes the suspect from leaving the scene”). The
Fischers provide no evidence of Jessica’s circumstances in the Community Room, how
long she was there,13 what Vaughn and/or Walts were doing, or anything of that nature.
The Fischers likewise make no false arrest argument based on Jessica’s time in the
Community Room, instead choosing to focus on whether the initial handcuffing was
lawful. (See ECF No. 98 at 11–14.) Thus, there is no evidence from which the Court or
a factfinder could determine whether Jessica’s time in the Community Room amounted
to an arrest requiring probable cause, and the Fischers’ false arrest claim must fail to
this extent.
Vaughn and Walts are accordingly entitled to summary judgment on the
Fischers’ claim that the officers falsely arrested Jessica Fischer.
F.

Deprivation of Jessica Fischer’s Familial Association Rights
The Fischers accuse Walts of interfering with Jessica Fischer’s right to familial

association with her children. (ECF No. 53 ¶ 30.) As already noted above (Part III.C.2),

13

See supra note 7.

31

the Fischers’ claim in this regard turns entirely on proving that Jessica was falsely
arrested. The Court has concluded that the Fischers cannot prove such a claim. The
familial association claim fails for this reason.
Jessica’s familial association claim fails for the additional reason that the
Fischers have provided no case law supporting their unique familial association theory
as it relates to Jessica and the children. Acknowledging that the children were at her
side throughout the entire time Jessica was in handcuffs and in the Community Room,
the Fischers claim that Jessica “had no control over where she was allowed to go.”
(ECF No. 98 at 19.) This assertion makes no sense unless the Court presumes that
the Fischers meant to say “where they were allowed to go,” referring to the children.
But even under this presumption, the Fischers cite no case law—much less case law
clearly establishing the relevant right—supporting their apparent claim that a person
may be deprived of her right to associate with her children even when the children
remain immediately by her side.
Jessica Fischer’s familial association theory accordingly fails as a matter of law
and Walts is entitled to summary judgment both on the merits and on qualified
immunity.
G.

Malicious Prosecution of Christopher Fischer (Fourth Amendment)
The Fischers accuse Deedon of maliciously prosecuting Christopher Fischer, in

violation of the Fourth Amendment. (ECF No. 53 ¶ 32.)
1.

Malicious Prosecution Generally

A Fourth Amendment malicious prosecution claim
includes the following elements: (1) the defendant caused
32

the plaintiff’s continued confinement or prosecution; (2) the
original action terminated in favor of the plaintiff; (3) no
probable cause supported the original arrest, continued
confinement, or prosecution; (4) the defendant acted with
malice; and (5) the plaintiff sustained damages.
Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).
2.

Whether Deedon is Liable for Malicious Prosecution of Christopher
Fischer

Deedon focuses the bulk of his argument on an attempt to prove that the
involvement of Cline, the Seventeenth Judicial District prosecutor, somehow breaks the
chain of causation for any malicious prosecution claim: “many federal circuits, including
the Tenth Circuit, have held that because a prosecutor initiates charges against the
criminal defendant, a police officer cannot be sued for malicious prosecution under
§ 1983 because the ‘chain of causation is broken’ between the arrest and the actual
prosecution.” (ECF No. 80 at 24 (citing cases).)
This is a curious argument because, although true as far as it goes, it has no
application here. Deedon, not any prosecutor, made the decision to charge. (ECF No.
98 at 8, ¶ 5.) That is apparently the typical procedure for misdemeanors in Colorado.
See Colo. Rev. Stat. § 16-2-104 (“A summons and complaint may be issued by any
peace officer for an offense constituting a misdemeanor or a petty offense committed in
his presence or, if not committed in his presence, which he has probable cause to
believe was committed and probable cause to believe was committed by the person
charged.”). The Broomfield Defendants admit that Deedon followed § 16-2-104 in this
instance. (ECF No. 105 at 5, ¶ 5.) Thus, his argument must fail to the extent he
believes that Cline broke the causal chain.
33

Deedon briefly argues, however, that the lack-of-probable-cause element also
fails: “Deedon arrested Mr. Fischer on the basis of his probable cause determination for
Harassment.” (ECF No. 80 at 24–25.) The Court has already concluded that Deedon
possessed probable cause to arrest. The Fischers present no argument that Deedon
nonetheless had a clearly established duty to continue investigating after Christopher
had been placed in jail, e.g., by obtaining security camera footage. The Fischers also
do not have evidence from which a jury could conclude that such an investigation would
have given Deedon reason to change his mind. The security camera footage has no
audio and, even as to physical movements, it is impossible to tell precisely what is
going on during the cash point confrontation.
Deedon is entitled to summary judgment on the Fischers’ claim of malicious
prosecution.14
H.

Malicious Prosecution of Christopher Fischer (Common Law)
The Fischers accuse Klescewski and Backus of common-law malicious

prosecution. (ECF No. 53 ¶ 39.)
1.

Common-Law Malicious Prosecution, Generally

“The elements of malicious prosecution are: (1) the defendant contributed to
bringing a prior action against the plaintiff; (2) the prior action ended in favor of the
plaintiff; (3) no probable cause; (4) malice; and (5) damages.” Thompson v. Maryland

14

This means that all claims against the Broomfield Defendants fail as a matter of law.
These were the only federal-law claims in this case. Although the Court could now dismiss the
state-law claims for refiling in state court, see 28 U.S.C. § 1367(c)(3) & (d), the Court in its
discretion chooses to retain jurisdiction, particularly considering the advanced stage of these
proceedings, see Olcott v. Delaware Flood Co., 76 F.3d 1538, 1550 (10th Cir. 1996).

34

Cas. Co., 84 P.3d 496, 503 (Colo. 2004). Perhaps the big gest difference between this
version of malicious prosecution and the Fourth Amendment version that applies to
government officials is the probable cause analysis. In the Fourth Amendment context,
probable cause is an entirely objective standard: it exists if any reasonable police officer
under the circumstances could have arrested for any offense.15 In the common-law
malicious prosecution context, probable cause contains a subjective element: “Probable
cause means that the defendant . . . in good faith believed , and that a reasonable
person, under the same or similar circumstances, would also have believed, that the
plaintiff . . . was guilty of the offense with which [he or she] was charged.” Colo. Jury
Instr., Civil § 17:2 (4th ed., Apr. 2016 update) (emphasis added). This subjective
element captures the possibility that an accuser may lie about the accused’s actions,
thus securing the accused’s arrest and prosecution. See, e.g., Anthony v. Baker, 808
F. Supp. 1523, 1527 (D. Colo. 1992) (addressing a malicious prosecution claim in which
a plaintiff presented “evidence that [the] defendant allegedly fabricated and distorted”
the basis on which the plaintiff was prosecuted).
2.

Whether a Triable Issue of Fact Exists Regarding Klescewski and Backus
“Contributing to” an Action Brought Against Christopher Fischer

The H&M Defendants argue that the Fischers “have no evidence to establish the
first element, that the H&M Defendants’ statements to officers proximately caused the
officers to charge Mr. Fischer.” (ECF No. 81 at 11.) But Deedon believed he had
probable cause based on the 911 dispatcher’s report (itself based on Backus’s
accusations) and on Klescewski’s account of the incident. (ECF No. 80-4 ¶ 18.) Thus,
15

See supra note 8.

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there is sufficient evidence—indeed, undisputed evidence, as far as the Court is aware
—that Klescewski’s and Backus’s statements “contributed to” Deedon charging
Christopher Fischer with harassment. The H&M Defendants are not entitled to
summary judgment on this point.
3.

Whether Proceedings Against Christopher Fischer were Favorably
Terminated

The H&M Defendants contest the favorable termination element, noting that “[a]
prosecutor’s dismissal of charges, by itself, is not a favorable termination.” (ECF No. 81
at 10 (citing Allen v. City of Aurora, 892 P.2d 333, 335 (Colo. App. 1994)).) T hey argue
that “the prosecutor’s affidavit [stating] that . . . Mr. Fischer’s case was not dismissed
based on lack of probable cause[] preclude[s] Plaintiffs’ state law malicious prosecution
claim on the third element [i.e., favorable termination].” (Id. at 11.)16
In Colorado, the existence of a favorable termination is “a question of law for the
court to decide.” Hewitt v. Rice, 154 P.3d 408, 416 (Colo. 2007). The general principle

16

The Fischers do not respond to this argument, but in this case their oversight is
forgivable. The header to the H&M Defendants’ argument on the malicious prosecution claim is
as follows: “Plaintiff Christopher Fischer’s Malicious Prosecution Claim Fails Because There
Was No Lack of Probable Cause and Because There Is No Evidence The H&M Defendants
Acted ‘With Malice.’” (ECF No. 81 at 9 (boldface removed).) One would therefore reasonably
expect that the ensuing argument would focus on probable cause and malice. On the next
page, however, the H&M Defendants briefly cite the Allen case regarding favorable termination
—but they do not apply any facts to that law. (Id. at 10.) Finally, on the following page, the
H&M Defendants make their one-sentence argument on the favorable termination element,
partially quoted above. (Id. at 11.) Quoted in full, the sentence is rather confusing
grammatically, and because it invokes evidence not obviously related to favorable termination:
“Further, Defendant Deedon’s probable cause affidavit, and the prosecutor’s affidavit that she
had no contact with Klescewski or Backus and Mr. Fischer’s case was not dismissed based on
lack of probable cause, preclude Plaintiffs’ state law malicious prosecution claim on the third
element.” (Id.) Cited case law following this sentence also appears to be about probable
cause, not favorable termination. Accordingly, in this instance, the Court in its discretion does
not deem the Fischers to have conceded the favorable termination argument.

36

appears to be “‘that the proceedings were terminated or abandoned at the instance of
the defendant in circumstances that fairly imply the plaintiff’s innocence.’” Colo. Jury
Instr., Civil § 17:1, Source & Authority cmt. 5 (quoting 1 F. Harper, F. James & O. Gray,
Torts § 4.4 (2d ed. 1986)). Colorado courts have cited the Restatement (Second) of
Torts (“Restatement”) for more specific guidance regarding favorable termination. See
Hewitt, 154 P.3d at 415; Allen, 892 P.2d at 335. The Restatement lists “the formal
abandonment of the proceedings by the public prosecutor” as an instance of favorable
termination, § 659(c), “except under the conditions stated in §§ 660 and 661,” id. cmt. e.
The conditions stated in § 660 comprise withdrawal of the charges on account of a plea
bargain, the accused’s actions frustrating a trial, the prosecutor’s decision to show
mercy, or institution of other proceedings for the same offense. The condition stated in
§ 661 requires “the impossibility or impracticability of bringing the accused to trial.”
None of those conditions exist here. Moreover, under the more general principle
of “circumstances that fairly imply the defendant’s innocence,” favorable termination is
satisfied because Cline says she dismissed the charges due to lack of confidence that
the Christopher Fischer’s guilt could be proved beyond a reasonable doubt. (ECF No.
80-9 ¶ 5.) This fairly implies Christopher Fischer’s innocence.
As a matter of law, then, the Fischers have satisfied the favorable termination
element and that is no longer an issue for trial. See Fed. R. Civ. P. 56(g).17
4.

Whether a Triable Issue of Fact Exists Regarding Probable Cause

The H&M Defendants note that the existence of probable cause is “a complete

17

The parties’ proposed jury instructions should reflect as much.

37

defense” to malicious prosecution. (ECF No. 81 at 10 (quoting Anthony, 808 F. Supp.
at 1526).) The H&M Defendants further argue that probable cause existed under the
harassment statute previously discussed, Colo. Rev. Stat. § 18-9-111(1)(h). (Id. at
11–12.) The Fischers respond that Christopher Fischer’s alleged conduct may not have
amounted to fighting words. (ECF No. 97 at 14–15; see also ECF No. 106.) The H&M
Defendants reply that “the constitutional test for ‘fighting words’” is not at issue (ECF
No. 104 at 7)—apparently oblivious to the Colorado Supreme Court’s holding in
VanMeveren, supra.
As noted above in the Court’s analysis of Klen and R.C. (Part III.B.3), “fighting
words” is a context-specific question. As also noted above (Part II.B), the Fischers and
the H&M Defendants have differing views of what Christopher Fischer actually did and
said at the cash point on the evening in question. Competent evidence supports both
stories, and a reasonable jury could believe either one. In particular, if a jury believes
the Fischers’ story, it implies that Klescewski’s story (and Backus’s account of it to the
911 operator) was a fabrication, or at least a significant exaggeration, in turn implying
that Klescewski and Backus did not subjectively believe their own accusations.
There is also a triable question regarding the objective component of the
common-law probable cause standard. Even if a jury accepts Klescewski’s version of
events, a jury would still need to determine whether a reasonable person in the same
circumstances would have believed that Christopher Fischer had committed a crime.
For these reasons, the Court cannot hold as a m atter of law on this record that
the Fischers will be unable to satisfy the lack-of-probable-cause element of their
malicious prosecution claim.
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5.

Whether a Triable Fact Issue Exists Regarding Malice

The H&M Defendants argue that the Fischers cannot establish the malice
element. (ECF No. 81 at 12.) A defendant “was motivated by malice if [his or her]
primary motive was a motive other than a desire to bring to justice a person [he or she]
thought had committed a crime.” Colo. Jury Instr., Civil § 17:4. Lack of probable cause
“may indicate malice,” but a jury may not find malice based on lack of probable cause
without first “consider[ing] all the circumstances surrounding the filing and prosecution
of the criminal case.” Id. § 17:5; see also Restatement § 669 (“Lack of probable cause
for the initiation of criminal proceedings, in so far as it tends to show that the accuser
did not believe in the guilt of the accused, is evidence that he did not initiate the
proceedings for a proper purpose.”).
Here, although a close question, the Fischers have minimally sufficient evidence
from which a jury could conclude in their favor on the malice element. If the jury
disbelieves Klescewski’s story and believe the Fischers’ story that Klescewski instructed
Backus to call 911, a jury could find that Klescewski had an intent to retaliate for being
referred to as an asshole, and not to quell a legitimate disturbance in his store.
Moreover, Backus made assertions to the 911 operator that, as f ar as the current
record reveals, were pure fabrications.
A broader question exists, not really addressed by any party, regarding whether
Klescewski and/or Backus had any intent to see Christopher Fischer arrested or
charged with a crime, as opposed to simply removed from the store or prevented from
returning for a time. Evidence as to this may fairly be weighed by the jury in considering
the malice element. But, as a matter for the jury, it may not be resolved at summary
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judgment. For all of these reasons, the H&M Defendants are not entitled to summary
judgment on the Fischers’ common-law malicious prosecution claim.
I.

Intentional Infliction of Emotional Distress
The Fischers accuse the H&M Defendants of intentional infliction of emotional

distress (ECF No. 53 ¶ 28), sometimes denominated “outrageous conduct” or “extreme
and outrageous conduct” in Colorado, see Colo. Jury Instr., Civil § 23:1. The Court will
refer to it as “IIED.”
1.

IIED Generally

An IIED claim requires the plaintiff to prove:
1. The defendant engaged in extreme and outrageous
conduct;
2. The defendant did so recklessly or with the intent of
causing the plaintiff severe emotional distress; and
3. The defendant’s conduct caused the plaintiff severe
emotional distress.
Id. This tort “was designed to create liability for a very narrow type of conduct.” Green
v. Qwest Servs. Corp., 155 P.3d 383, 385 (Colo. App. 2006). Conse quently,
the level of outrageousness required to [satisfy the first
element of the cause of action] is extremely high. . . . Only
conduct that is so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency
and be regarded as atrocious and utterly intolerable in a
civilized community, will suffice.
Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App. 2003); see also Churchey v. Adolph
Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (facts must so arouse resentment against
the defendant in average members of the community as to lead them to exclaim,

40

“Outrageous!”). Colorado law requires the trial court to act as a gatekeeper as to the
first element of the claim. Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 883 (Colo.
1994) (“Although the question of whether conduct is outrageous is generally one of fact
to be determined by a jury, it is first the responsibility of a court to determine whether
reasonable persons could differ on the question.”).
2.

Whether the Fischers Have Satisfied the “Outrageous!” Standard

Viewing the facts in the light most favorable to the Fischers, Klescewski falsely
told the police that Christopher Fischer had called him an asshole multiple times to his
face, in a physically threatening manner; and Backus falsely told the 911 operator that
the disturbance was ongoing. The Court cannot condone such conduct, but the Court
finds that these allegations do not meet “the exacting standard required to state a claim
for intentional infliction of emotional distress.” Maiteki v. Marten Transp. Ltd., 4 F.
Supp. 3d 1249, 1256 (D. Colo. 2013) (repeated reporting of false information to a credit
agency does not satisfy the IIED standard); see also Coors Brewing Co. v. Floyd, 978
P.2d 663, 666 (Colo. 1999) (claim that employer coerced employee into conducting an
illegal undercover narcotics investigation and laundering money to fund such
investigation, and then firing employee for such investigation was not outrageous
conduct); Reigel v. SavaSeniorCare L.L.C., 292 P.3d 977, 991 (Colo. App. 2011)
(inpatient rehabilitation facility’s employees “were abrupt, irresponsible, and lacking in
sensitivity” when responding to a wife’s concerns about her inpatient husband’s
dangerously low blood pressure, and one employee even falsified an entry on the
husband’s chart to show normal blood pressure, but none of the employees could be
liable for IIED); Green, 155 P.3d at 386–87 (allegations that employer sent untrained
41

and under-qualified workers to perform dangerous acts was not sufficient to state a
claim for outrageous conduct). The H&M Defendants are therefore entitled to summary
judgment on the Fischers’ IIED claim.
J.

Exemplary Damages
The Fischers seek exemplary damages against the H&M Defendants. (ECF No.

53 ¶¶ 36, 39.) The H&M Defendants argue that the Fischers cannot meet the
exemplary damages standard as a matter of law. (ECF No. 81 at 17–20.)
1.

Exemplary Damages Generally

In Colorado, a jury may award exemplary damages “equal to the amount of
actual damages awarded to the injured party” where “the injury complained of is
attended by circumstances of fraud, malice, or willful and wanton conduct.” Colo. Rev.
Stat. § 13-21-102(1)(a). Colorado law is confusing regarding the difference between
“malice” and “willful and wanton conduct.” On the one hand, the statute itself defines
“willful and wanton conduct” as “conduct purposefully committed which the actor must
have realized as dangerous, done heedlessly and recklessly, without regard to
consequences, or of the rights and safety of others, particularly the plaintiff.” Id. § 1321-102(1)(b). On the other hand, “malice” is undefined, and the only Colorado
Supreme Court construction the Court could locate says that malice “may be found by
the jury or the court from the reckless and wanton acts of the injuring party such as
disclose an utter disregard of consequences.” Carlson v. McNeill, 162 P.2d 226, 230
(Colo. 1945) (interpreting prior codification of the statute) (internal quotation marks
omitted; emphasis removed). But this same decision also emphasized that “malice”
was a basis separate from the other bases in the statute for awarding exemplary
42

damages, presumably including “willful and wanton conduct.” See id. (“the
circumstances under which exemplary damages may be awarded are expressed in the
alternative”).
2.

Whether the Record Supports a Potential Award of Exemplary Damages

Like the malice element of malicious prosecution (which does not appear to be
the same thing as the malice theory of exemplary damages), the Court finds the
evidence minimally sufficient (and then only barely so), on this record to submit the
question of exemplary damages to the jury. Assuming the evidence introduced at trial
continues to justify a potential exemplary damages award and the jury actually returns
an exemplary damages award, the Court retains power to
reduce or disallow the award of exemplary damages to the
extent that:
(a) The deterrent effect of the damages has been
accomplished; or
(b) The conduct which resulted in the award has ceased; or
(c) The purpose of such damages has otherwise been
served.
Colo. Rev. Stat. § 13-21-102(2). The current record provides a fairly substantial
indication that one or more of the circumstances exist, but the Court will defer any such
determination to post-trial proceedings in light of the evidence and verdict as it actually
comes in. The H&M Defendants are therefore not entitled to summary judgment on the
Fischers’ claim for exemplary damages.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
43

1.

The Broomfield Defendants Amended Motion for Summary Judgment (ECF No.
80) is GRANTED;

2.

Defendants Josh Vaughn, Michael Deedon, Jeremy Ehrlich, and Heidi Walts are
entitled to judgment in their favor on all claims asserted against them, and such
judgment will enter at the close of this case;

3.

The H&M Defendants’ Motion for Summary Judgment (ECF No. 81) is
GRANTED with respect to the Fischers’ claim of intentional infliction of emotional
distress, and otherwise DENIED; and

4.

This case REMAINS SET for a Final Trial Preparation Conference on May 5,
2017, at 11:00 a.m., and a 5-day Jury Trial beginning on May 22, 2017, at 8:30
a.m., both in Courtroom A801. Counsel for the Fischers and for the H&M
Defendants are again directed to this Court’s Revised Practice Standards to
ensure compliance with all deadlines triggered by the dates of the Final Trial
Preparation Conference and Trial.
Dated this 22nd day of March, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

44