Sexton v. City of Colorado Springs et al
ORDER by Chief Judge Philip A. Brimmer on 3/31/2021 re: 20 Motion to Dismiss is GRANTED in part and DENIED in part. ORDERED that claims five and six are DISMISSED with prejudice against Officer Anderson in his individual capacity. It is further ORDERED that all claims are DISMISSED against Officer Anderson in his official capacity. It is further ORDERED that claims one, two, three, five, and six are DISMISSED with prejudice against Colorado Springs. It is further ORDERED that Colorado Springs is DISMISSED from this lawsuit. (pabsec2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-00108-PAB-KMT
CITY OF COLORADO SPRINGS, and
MATTHEW ANDERSON, in his individual and official capacities,
This matter is before the Court on City Defendants’ Motion to Dismiss [Docket
No. 20], filed on March 30, 2020. Defendants Matthew Anderson (“Officer Anderson”)
and the City of Colorado Springs (“City” or “Colorado Springs”) will be collectively
referred to as the “City Defendants.” Plaintiff Michael Sexton filed a response [Docket
No. 30] and the City Defendants filed a reply [Docket No. 31]. The Court has jurisdiction
under 28 U.S.C. § 1331.
I. BACKGROUND 1
On June 7, 2019, plaintiff left the 7-11 store near the intersection of 30th Street
and Colorado Avenue in Colorado Springs, Colorado. Docket No. 1 at 3, ¶ 10. Officer
Anderson drove by that location in his patrol vehicle while plaintiff stood in the parking
lot. Id., ¶ 11. As Officer Anderson passed, plaintiff “flipped off” the car with his middle
The facts below are taken from plaintiff’s complaint, Docket No. 1, and are presumed
to be true for purposes of ruling on defendants’ motion to dismiss.
finger. Id. Officer Anderson saw plaintiff’s gesture, made a U-turn across four lanes of
traffic to contact plaintiff, and asked plaintiff if he needed help. Id., ¶ 12. Plaintiff told
Officer Anderson that he did not need help, and Officer Anderson began to drive away
on 30th Street. Id., ¶ 13.
As Officer Anderson drove away, plaintiff looked both ways and, seeing no cars
in the area, crossed 30th Street. Id., ¶ 14. Officer Anderson made another U-turn and
drove towards plaintiff; plaintiff began recording the incident on his phone. Id. at 4,
¶ 15. Plaintiff, standing on the sidewalk, flipped Officer Anderson off again. Id., ¶ 16.
Immediately after plaintiff flipped him off for the second time, Officer Anderson activated
the police lights on his car and pulled over. Id., ¶ 17. Officer Anderson jumped out of
his police car, grabbed plaintiff, pulled plaintiff to the police car by plaintiff’s wrist, and
shoved plaintiff against and over the hood of the police car. Id., ¶ 18. Plaintiff asked
Officer Anderson to please “calm down,” but Officer Anderson continued to pin plaintiff
to the hood of the police car with his entire body weight while wrenching plaintiff’s arm
behind plaintiff’s back. Id., ¶¶ 20-21. Plaintiff told Officer Anderson that he was not
resisting and indicated with his body language that he was not resisting. Id., ¶ 22.
Plaintiff asked Officer Anderson not to rough him up and told Officer Anderson that he
was hurting plaintiff’s arm, but Officer Anderson continued to pin plaintiff to the hood of
the police car. Id. Plaintiff never said anything or made any gestures to indicate that he
had a weapon, was attempting to flee, or was resisting. Id. at 5, ¶ 23.
Officer Anderson then placed plaintiff in handcuffs. Id., ¶ 25. Plaintiff asked
Officer Anderson for his name and badge number, but Officer Anderson refused to
provide them. Id. While plaintiff was in handcuffs, Officer Anderson directed another
Colorado Springs Police Department (“CSPD”) officer, Officer Calderon, to search
plaintiff’s pockets. Id., ¶ 26. Officer Anderson asked plaintiff why he was making
obscene gestures, and plaintiff responded that it was his First Amendment right. Id. at
6, ¶ 27. Officer Anderson gave shifting reasons for detaining plaintiff before telling
plaintiff that he had detained plaintiff for jaywalking. Id., ¶¶ 29-30. Plaintiff was
released from the handcuffs and issued a citation for jaywalking; plaintiff had been in
handcuffs for approximately a half hour by that point. Id., ¶ 31.
While plaintiff was in handcuffs, plaintiff noticed another individual crossing 30th
Street at the same location that plaintiff had. Id., ¶ 30. When plaintiff pointed this out to
Officer Anderson, Officer Anderson responded, “well, sir, since you pay our bills and
stuff, we want to give you our full attention.” Id. At this point, there were multiple
officers on the scene; none of them contacted the person crossing the street. Id.
After plaintiff was released, he attempted to speak with Officer Anderson’s
superior who was on the scene. Id. at 7, ¶ 33. As plaintiff complained to the sergeant,
Officer Anderson came over and began arguing with plaintiff and “revealed his true
motivation for arresting Mr. Sexton: that fact that Mr. Sexton had flipped off Defendant
Officer Anderson issued plaintiff a citation under Colorado Springs Municipal
Code § 10.18.104, which states:
A. Every pedestrian crossing a roadway at any point other than within a
marked crosswalk or within an unmarked crosswalk at an intersection
shall yield the right of way to all vehicles upon the roadway. B. Any
pedestrian crossing the roadway at a point where a pedestrian tunnel or
overhead pedestrian crossing has been provided, shall yield the right of
way to all vehicles upon the roadway. C. Between adjacent intersections
at which traffic control signals are in operation, pedestrians shall not cross
at any place except in a marked crosswalk. D. No pedestrian shall cross a
roadway intersection diagonally unless authorized by official traffic control
devices; and, when authorized to cross diagonally, pedestrians shall cross
only in accord with the official traffic control devices pertaining to the
Id., ¶ 35. The citation states that “[s]ubject crossed the street in between 2 marked
intersections.” Id., ¶ 36. Colorado Springs prosecuted plaintiff for almost three months
before dismissing the charges against him. Id. at 8, ¶ 38. At the same time the charges
against plaintiff were dismissed, Colorado Springs found that Officer Anderson had
violated CSPD’s Discretionary Judgment policy, resulting in CSPD disciplining Officer
Anderson. Id., ¶ 39. However, Officer Anderson was not disciplined for “his wrongful
arrest, clear violation of the First Amendment, and unlawful use of force.” Id., ¶ 40.
Plaintiff alleges that Officer Anderson’s treatment of plaintiff was pursuant to Colorado
Springs’s customs and practices of unlawful conduct. Id., ¶ 42.
Plaintiff brings the following claims against both defendants pursuant to 42
U.S.C. § 1983: (a) claim one, First Amendment violation of free speech; (b) claim two,
First Amendment retaliation; (c) claim three, Fourth Amendment unreasonable seizure;
(d) claim five, Fourth Amendment excessive force; and (e) claim six, Fourth Amendment
malicious prosecution. Docket No. 1 at 22-30, ¶¶ 74-143. Plaintiff brings claim four,
Fourth Amendment unreasonable search, against Officer Anderson only. Id. at 26-27,
Defendants move to dismiss the claims against Officer Anderson due to failure to
state a claim and qualified immunity. Docket No. 20 at 4-5. Defendants move to
dismiss the claims against the City due to plaintiff’s failure to identify a CSPD custom or
policy of abridging First or Fourth Amendment rights. Id. at 13.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege
enough factual matter that, taken as true, makes the plaintiff’s “claim to relief . . .
plausible on its face.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not shown – that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration
marks omitted). Thus, even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some viable legal theory.”
Bryson, 534 F.3d at 1286 (alteration marks omitted).
The Court will first address the claims against Officer Anderson.
A. Officer Anderson
The complaint brings claims against Officer Anderson in his individual and official
capacities. See Docket No. 1 at 1. Defendants argue that plaintiff cannot bring claims
against Officer Anderson in his official capacity because plaintiff also names the City as
a defendant. Docket No. 20 at 4-5. Plaintiff agrees that it is proper to dismiss the
claims against Officer Anderson in his official capacity as duplicative. Docket No. 30 at
16 n.19. Accordingly, the Court will dismiss the claims against Officer Anderson in his
official capacity. See Silverstein v. Fed. Bureau of Prisons, 704 F. Supp. 2d 1077, 1087
(D. Colo. 2010) (“Where . . . the entity is also named, there is no need for an officialcapacity claim.”).
Officer Anderson argues that he is entitled to qualified immunity on all of
plaintiff’s claims against him in his individual capacity. Docket No. 20 at 2. “Qualified
immunity balances two important interests – the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). A court should resolve questions of
qualified immunity at the earliest possible stage of litigation. Anderson v. Creighton,
483 U.S. 635, 646 n.6 (1987). However, a plaintiff facing a qualified immunity challenge
still does not have a heightened pleading standard. Currier v. Doran, 242 F.3d 905,
916-17 (10th Cir. 2001).
Under the doctrine of qualified immunity, “government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Thus, to survive a motion to dismiss under Rule 12(b)(6) “where a qualified
immunity defense is implicated, the plaintiff ‘must allege facts sufficient to show
(assuming they are true) that the defendants plausibly violated their constitutional
rights.’” Hale v. Duvall, 268 F. Supp. 3d 1161, 1164 (D. Colo. 2017) (quoting Robbins v.
Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1249 (10th Cir. 2008)). When
a defendant raises the defense of qualified immunity, a “plaintiff carries a two-part
burden to show: (1) that the defendant's actions violated a federal constitutional or
statutory right, and, if so, (2) that the right was clearly established at the time of the
defendant's unlawful conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017)
(internal quotation marks omitted). Courts are “permitted to 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.” Pearson, 555
U.S. at 236.
1. Claim Three – Fourth Amendment Unreasonable Seizure
Plaintiff alleges that Officer Anderson stopped him without reasonable suspicion,
probable cause, or a warrant, causing an unreasonable seizure. Docket No. 1 at 25-26,
¶¶ 99-109. Defendants respond that Officer Anderson is entitled to qualified immunity
because he had both reasonable suspicion and probable cause to contact and detain
plaintiff. Docket No. 20 at 5-6.
The Fourth Amendment provides that the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend. IV. A “seizure” of one’s person occurs when
a government actor terminates one’s freedom of movement through intentional means.
See Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989); Scott v. Harris, 550 U.S. 372,
381 (2007). The Supreme Court has identified three types of police encounters with
citizens: consensual encounters, investigative stops, and arrests. Cortez v. McCauley,
478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). Consensual encounters are not
seizures under the Fourth Amendment. Id. Investigative detentions, also called Terry
stops, are seizures within the meaning of the Fourth Amendment and allow a police
officer to briefly detain a person for investigative purposes. Morris v. Noe, 672 F.3d
1185, 1191 (10th Cir. 2012). However, the officer need only have a reasonable
suspicion of criminal activity, not probable cause. Id. An arrest requires probable cause
to believe that the arrestee committed a crime. Plascencia v. Taylor, 514 F. App’x 711,
715 (10th Cir. 2013) (unpublished). “An arrest is distinguished [from an investigatory
stop] by the involuntary, highly intrusive nature of the encounter.” Cortez, 478 F.3d at
1115 (quotation omitted).
The parties state at various points that plaintiff was either “detained” or
“arrested.” See Docket No. 20 at 5; Docket No. 30 at 12. The Court finds, based upon
the allegations of the complaint, that plaintiff was arrested. A seizure is not necessarily
an arrest merely because the subject of the detention is placed in handcuffs. See
United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993); United States v. Miller,
974 F.2d 953, 957 (8th Cir. 1992) (“Numerous cases have held that a police officer’s
use of handcuffs can be a reasonable precaution during a Terry stop.”). However, the
“use of firearms, handcuffs, and other forceful techniques generally exceed the scope of
an investigative detention and enter the realm of an arrest.” Cortez, 478 F.3d at 111516 (quotation marks omitted). Courts consider the degree of force used in determining
whether the seizure was an investigative detention or arrest, and physical restraint is a
“hallmark” factor in determining whether a Terry stop was actually an arrest.
Plascencia, 514 F. App’x at 716 (citing Morelli v. Webster, 552 F.3d 12, 20 (1st Cir.
Defendants cite United States v. Flowers, 203 F. App’x 221, 223 (10th Cir. 2006)
(unpublished), for the proposition that the use of handcuffs did not make the detention
an arrest. However, in Flowers, the police were investigating a report of an armed man
and a caller had verified that Flowers previously had a gun. Id. at 224. An officer may
use “[f]orceful methods . . . during an investigative detention short of arrest only when
such methods are necessary for officer protection.” Manzanares v. Higdon, 575 F.3d
1135, 1148 (10th Cir. 2009). The facts as pled do not support a fear that plaintiff was
armed or dangerous, especially because Officer Anderson had previously spoken with
plaintiff after plaintiff flipped off Officer Anderson the first time. Docket No. 1 at 3, ¶¶ 1213. Because Officer Anderson immediately pinned plaintiff to the hood of the police
vehicle and then placed plaintiff in handcuffs for about thirty minutes, the Court finds
that this was an arrest, not an investigatory detention.
b. Probable Cause
Officer Anderson detained and ticketed plaintiff under Colorado Springs
Municipal Code § 10.18.104. Docket No. 1 at 7, ¶¶ 34-36. The relevant portion of this
ordinance states that “[b]etween adjacent intersections at which traffic control signals
are in operation, pedestrians shall not cross at any place except in a marked
crosswalk.” COLO. SPRINGS, COLO., MUN. CODE § 10.18.104(C). Plaintiff alleges that
Officer Anderson did not have probable cause because there were not two adjacent
intersections with traffic signals. Docket No. 1 at 8, ¶ 37. Plaintiff notes that the
adjacent intersection Officer Anderson “pointed out” had neither a traffic signal nor a
crosswalk, id., but that the municipal code only prohibits crossing outside of a marked
crosswalk between two adjacent traffic signals. Defendants argue that Officer Anderson
reasonably concluded that an intersection two blocks away was “adjacent” to the
Colorado Avenue intersection with 30th Street. 2 Docket No. 20 at 7.
Plaintiff crossed 30th Street and was arrested in the middle of the block. See
Docket No. 1 at 3, ¶ 14. The intersection to the south (with Colorado Avenue) is
controlled by a traffic light and is marked with a crosswalk. Docket Nos. 20-2, 20-4.
The intersection to the north (with Pikes Peak Avenue) is not controlled with a traffic
light and is not marked with a crosswalk. See Docket No. 1 at 8, ¶ 37. As a result, if the
term “adjacent” means “next to,” as plaintiff seems to suggest, Docket No. 30 at 7-8,
there were not two adjacent intersections with traffic signals and marked crosswalks
and therefore the ordinance did not apply to him. Defendants point out, however, that
the next intersection north along 30th Street (at Kiowa Street), i.e. the intersection a
Defendants ask the Court to take judicial notice of two Google Maps images and a
map of the area in question. Docket No. 20 at 7. Plaintiff asks the Court to exercise its
discretion to refuse to take judicial notice of these exhibits. Docket No. 30 at 1 n.1. The
Court may consider facts subject to judicial notice at the motion to dismiss stage without
converting the motion to dismiss into one for summary judgment. Tal v. Hogan, 453
F.3d 1244, 1264-65 n.24 (10th Cir. 2006). “However, ‘[t]he documents may only be
considered to show their contents, not to prove the truth of matters asserted therein.’”
Id. (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)).
The Court may “take judicial notice of a Google map and satellite image as a source
whose accuracy cannot reasonably be questioned.” Pahls v. Thomas, 718 F.3d 1210,
1216 n.1 (10th Cir. 2013) (internal quotation marks and alterations omitted). Plaintiff
does not dispute the accuracy of the map and photos provided by defendants. See
Docket No. 30 at 1 n.1. Accordingly, the Court exercises its discretion to take judicial
notice of the map and photos.
block and a half away from the point of arrest, is controlled by a traffic light. Docket
Nos. 20 at 7, 20-3, 20-4. Therefore, according to defendants, if “adjacent” means “lying
near or close to,” a reasonable officer would have arguable probable cause to believe
that plaintiff violated the ordinance because the controlled intersections two blocks apart
are “near or close to” each other. Docket No. 20 at 6-7.
The parties’ various definitions of “adjacent” raises the issue of how the Court
should consider the interpretation of an ordinance or statute as part of the probable
cause analysis. “In a qualified immunity context, the probable cause evaluation is a
question of law appropriate for resolution by the Court.” Shimomura v. Carlson, 17 F.
Supp. 3d 1120, 1132 (D. Colo. 2014) (citing Hunter v. Bryant, 502 U.S. 224, 228 (1991)
(reversing a holding that the probable cause determination was a question for the trier
of fact because “[i]mmunity ordinarily should be decided by the court long before trial”)).
A warrantless arrest is reasonable if the officer has probable cause to believe that the
suspect committed a crime in the officer’s presence. Atwater v. City of Lago Vista, 532
U.S. 318, 354 (2001). In determining whether an officer has probable cause for an
arrest, the Court is to “examine the events leading up to the arrest, and then decide
whether these historical facts, viewed from the standpoint of an objectively reasonable
police officer, amount to probable cause.” District of Columbia v. Wesby, 138 S. Ct.
577, 586 (2018) (internal quotations marks and citation omitted). Probable cause
depends on the totality of the circumstances and is not a high bar. Id.
The basic federal constitutional right of freedom from arrest without
probable cause is undoubtedly clearly established by federal cases. But
the precise scope of that right uniquely depends on the contours of a
state’s substantive criminal law in this case because the Defendants claim
to have had probable cause based on a state criminal statute. And as to
the interpretation of [that state’s] criminal law, other than the statute
itself . . . , [that state’s] Supreme Court is the ultimate authority. So we
look to the [state] Supreme Court’s decisions when inquiring whether the
Defendants’ interpretation of the . . . statute was one that a reasonable
officer would have held at the time of [Plaintiff’s] arrest.
A.M. ex rel. F.M. v. Holmes, 830 F.3d 1123, 1140 (10th Cir. 2016) (quoting Kaufman v.
Higgs, 697 F.3d 1297, 1300-01 (10th Cir. 2012)). A court is “guided, first, by the text of
[the statute] and, then, by any relevant state and federal decisions interpreting its
import.” Id. at 1141. Reliance on a statue or regulation does not make an official’s
conduct objectively reasonable if, inter alia, the “the officer ‘unlawfully enforces [such]
ordinance . . . in a manner which a reasonable officer would recognize exceeds the
bounds of the ordinance.’” Mimic, Inc. v. Vill. of Angel Fire, 394 F.3d 836, 847 (10th Cir.
2005) (quoting Grossman v. City of Portland, 33 F.3d 1200, 1209-10 (9th Cir. 1994)).
The determination of whether an officer’s reliance on a statute makes his conduct
objectively reasonable turns, inter alia, on “the degree of specificity with which the
statute authorized the conduct in question.” Holmes, 830 F.3d at 1141. The standard is
objective; the subjective belief of an individual officer whether there is probable cause is
not dispositive. See Quinn v. Young, 780 F.3d 998, 1006 (10th Cir. 2015).
Neither the parties nor the Court has identified caselaw interpreting the meaning of
“adjacent” in the Colorado Springs Municipal Code. 3 The Oxford English Dictionary
This section of the Colorado Springs Municipal Code is identical to the Colorado
Model Traffic Code. See Colo. Rev. Stat. § 42-4-803(3) (“Between adjacent
intersections at which traffic control signals are in operation, pedestrians shall not cross
defines “adjacent” as “[n]ext to or very near something else; neighbouring; bordering,
contiguous; adjoining.” Adjacent, Oxford English Dictionary (3d ed. 2011). See
Kaufman, 697 F.3d at 1301 (looking to Oxford New English Dictionary to define
“obstacle” in Colorado obstruction of a peace officer statute to determine whether
plaintiff’s actions amounted to probable cause). Based on this definition of adjacent, the
traffic signal at the Kiowa Street intersection cannot be considered adjacent. It is
neither next to, neighboring, bordering, contiguous, or adjoining the Colorado Avenue
and 30th Street intersection. Even the definition “very near something else” does not
reach the traffic signal at Kiowa Street; that traffic signal was more than a block away.
Defendants argue that the definition of “adjacent” in Black’s Law Dictionary,
“[l]ying near or close to, but not necessarily touching,” means that the Kiowa Street
traffic signal was an adjacent intersection. Docket No. 20 at 6. As just discussed,
however, a traffic signal two blocks away is not “[l]ying near or close to” the traffic signal
at the intersection of 30th Street and Colorado Avenue. Defendants do not explain why,
in the context of a jaywalking ordinance that does not otherwise penalize crossing the
street except when failing to yield the right of way to vehicles, an ordinance would
regulate jaywalking between controlled intersections two blocks apart, especially given
that a pedestrian, due to the distance, would probably not be aware of at least one of
the intersections’ controlled status. The Court finds that the definition of “adjacent” as
“next to” is consistent with the intent of the ordinance and comports with the plain and
ordinary meaning of adjacent.
at any place except in a marked crosswalk.”). However, the Court has not identified any
cases interpreting the meaning of “adjacent” in this section of the model traffic code.
The Court’s interpretation of “adjacent” is consistent with the interpretation of
ordinances with identical language from other states. See United States v. Jacobs,
2019 WL 1861316, at *2-3 (D. Nev. Apr. 25, 2019) (finding no probable cause under
identical ordinance where, “at the location where defendant allegedly jaywalked, near
the intersection of Lake Mead and Radwick, there were no traffic control devices in
operation at the intersections to the immediate east or west”); State v. Crane, 358 P.3d
877 (Table), 2015 WL 6456575, at *6 (Kan. Ct. App. Oct. 23, 2015) (finding that
defendant did not violate Kansas statute identical to Colorado Springs’s ordinance
because “there was no traffic-control signal at the next intersection”); State v. Ramey,
2016 WL 685357, at *3, *7 (Ohio Ct. App. Feb. 19, 2016) (stating, under identical
ordinance, that jaywalking offense was “mistaken” because there was no marked
crosswalk or traffic control signal at either adjacent intersection).
The well-pled facts of the complaint state that the intersection “next to” plaintiff
did not have a traffic signal. Docket No. 1 at 5, 8 ¶¶ 26, 37. 4 Because the municipal
ordinance only prohibits crossing outside of a marked crosswalk between intersections
with traffic signals that are adjacent, or next to, each other, plaintiff could not have
violated the municipal code. Therefore, the Court finds that plaintiff has pled sufficient
facts that, when viewed from the standpoint of a reasonable officer, are insufficient to
establish probable cause to arrest plaintiff for violating Colorado Springs Municipal
Code § 10.18.104(C).
In defendants’ reply, defendants argue that plaintiff concedes that the intersections of
30th Street and Colorado Avenue and 30th Street and Kiowa Street are “adjacent,” and
thus that Officer Anderson had probable cause. Docket No. 31 at 2-3. The Court
disagrees. Plaintiff’s complaint and response brief both argue that plaintiff did not cross
between adjacent traffic signals. See Docket No. 1 at 8, ¶ 37; Docket No. 30 at 7-8.
c. Clearly Established
“[W]hen a warrantless arrest or seizure is the subject of a § 1983 action, the
defendant is entitled to qualified immunity if a reasonable officer could have believed
that probable cause existed to arrest or detain the plaintiff.” Cortez, 478 F.3d at 1120.
In the Tenth Circuit, “[a]s a practical matter, in the context of a qualified immunity
defense on an unlawful arrest claim, we ascertain whether a defendant violated clearly
established law by asking whether there was arguable probable cause for the
challenged conduct.”5 Corona v. Aguilar, 959 F.3d 1278, 1285 (10th Cir. 2020) (internal
quotation marks and alterations omitted).
Officer Anderson is entitled to qualified immunity if he “could have reasonably
believed that probable cause existed in light of well-established law.” Felders ex rel.
Smedley v. Malcom, 755 F.3d 870, 879 (10th Cir. 2014) (citation omitted). Having
found that the plain language of the ordinance did not give rise to probable cause to
arrest plaintiff, the Court also finds that Officer Anderson’s arrest was not reasonable.
The ordinance does not generally forbid crossing outside of a crosswalk. Instead, it
states that, “[b]etween adjacent intersections at which traffic control signals are in
operation, pedestrians shall not cross at any place except in a marked crosswalk.”
COLO. SPRINGS, COLO., MUN. CODE § 10.18.104(C). A simple glance at the intersection
of 30th Street and Pikes Peak Avenue would have revealed that there was no traffic
Plaintiff argues that actual probable cause is the law of the Tenth Circuit, and cites
Bailey v. Twomey, 791 F. App’x 724 (10th Cir. 2019) (unpublished). Docket No. 30 at 56. However, Bailey is not binding precedent. Instead, the Court will follow Corona v.
Aguilar, 959 F.3d 1278, 1285 (10th Cir. 2020), a more recent, published opinion.
Plaintiff also attempts to cabin “arguable probable cause” to cases where there was a
warrant. Docket No. 30 at 6 n.3. However, Corona, 959 F.3d at 1285, was a
warrantless arrest and the Court therefore rejects plaintiff’s argument.
signal. Any mistake that this intersection had a traffic signal cannot be considered
reasonable. Therefore, Officer Anderson violated plaintiff’s clearly established right to
be free of an arrest unsupported by probable cause when he made the unreasonable
determination that plaintiff had violated the ordinance. See Fogarty v. Gallegos, 523
F.3d 1147, 1159 (10th Cir. 2008) (denying an officer’s assertion of qualified immunity
because the arrest was clearly outside the scope of the New Mexico disorderly conduct
statute relied upon by the officer to make the arrest); Mglej v. Gardner, 974 F.3d 1151,
1164 (10th Cir. 2020), petition for cert. filed, No. 20-1082 (U.S. Feb. 8, 2021) (upholding
district court denial of qualified immunity because, “based on the plain language of the
Utah statutes, Deputy Gardner could not have reasonably believed that he had probable
cause to arrest Mglej”). Therefore, the Court will deny defendants’ motion to dismiss
claim three against Officer Anderson in his individual capacity.
2. Claim Four – Fourth Amendment Unlawful Search
Plaintiff alleges that the search of his person while he was handcuffed was
unlawful. Docket No. 1 at 26. Plaintiff alleges that Officer Anderson directed another
officer, Officer Calderon, to search plaintiff’s pockets. Id. at 5, ¶ 26. Plaintiff brings no
claims against Officer Calderon in this lawsuit. A government actor may be liable for the
constitutional violation of another if the actor “set in motion a series of events that the
defendant knew or reasonably should have known would cause others to deprive the
plaintiff of [his] constitutional rights.” Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.
2006). Officer Anderson may be held liable for Officer Calderon’s allegedly unlawful
search if he proximately caused Officer Calderon’s conduct. See Martinez v. Carson,
697 F.3d at 1252, 1255 (10th Cir. 2012) (“[Defendants] may be held liable if the further
unlawful detention and arrest would not have occurred but for their conduct and if there
were no unforeseeable intervening acts superseding their liability.”). The complaint
alleges that Officer Calderon searched plaintiff at Officer Anderson’s direction. Docket
No. 1 at 5, ¶ 26. There were no intervening events, and Officer Calderon’s search of
plaintiff was a foreseeable result of Officer Anderson’s direction to him to search
plaintiff. Therefore, plaintiff may properly allege a Fourth Amendment violation against
Officer Anderson even though Officer Anderson did not search him.
A warrantless search of a person or place is permissible when contemporaneous
to a lawful arrest. United States v. Robinson, 414 U.S. 218, 225 (1973). “However,
because ‘the fact of the lawful arrest . . . establishes the authority to search,’ where
probable cause for the arrest is lacking, the subsequent search is unconstitutional
unless supported on other grounds.” United States v. Romero, 935 F.3d 1124, 1128
(10th Cir. 2019) (quoting Robinson, 414 U.S. at 235). “Among the exceptions to the
warrant requirement is a search incident to a lawful arrest.” Arizona v. Gant, 556 U.S.
332, 338 (2009). However, given that the Court has found that, based on the wellpleaded facts, the arrest was not supported by probable cause, the search of plaintiff
incident to arrest is also a constitutional violation. See Baptiste v. J.C. Penney Co., 147
F.3d 1252, 1256 n.7 (10th Cir. 1998) (“Because this court concludes there was not
probable cause to support the warrantless arrest, the pat-down search incident to arrest
was also improper.”).
The law is clearly established that officers need either a warrant or a valid
exception to the warrant requirement in order to search a person. See Katz v. United
States, 389 U.S. 347, 357 (1967). However, plaintiff’s arrest was not supported by
probable cause and no proper exception to the warrant requirement has been identified
by defendants, meaning the search was unlawful. Because plaintiff’s right to be free of
a search incident to an unlawful arrest was clearly established, Officer Anderson is not
entitled to qualified immunity on this claim. 6
3. Claim Five – Fourth Amendment Excessive Force
“To state a claim of excessive force under the Fourth Amendment, a plaintiff
must show both that a seizure occurred and that the seizure was unreasonable.” Bella
v. Chamberlain, 24 F.3d 1251, 1255 (10th Cir. 1994) (quotation omitted). The relevant
inquiry is whether the force used by Officer Anderson was “reasonable under the facts
and circumstances presented.” See Fogarty, 523 F.3d at 1159 (citing Graham v.
Connor, 490 U.S. 386, 396 (1989)).
When examining a claim of excessive force, “[a] court assesses the
reasonableness of an officer’s conduct from the perspective of a reasonable officer on
the scene, acknowledging that the officer may be forced to make split-second
judgments in certain difficult circumstances.” Buck v. City of Albuquerque, 549 F.3d
1269, 1287-88 (10th Cir. 2008) (quoting Marquez v. City of Albuquerque, 399 F.3d
1216, 1220 (10th Cir. 2005)). In evaluating the reasonableness of the force used during
a seizure, courts consider a series of factors including “the severity of the crime at
Defendants also argue that this was a permissible pat-down pursuant to a Terry stop.
Docket No. 20 at 8. However, as noted above, the Court has found that plaintiff was
arrested, not subject to an investigative detention. Therefore, this was not a Terry stop
that could support a pat-down search. Moreover, the Tenth Circuit has “only allowed an
officer [to] conduct a pat-down search (or ‘frisk’) if he or she harbors an articulable and
reasonable suspicion that the person is armed and dangerous.” United States v.
Garcia, 459 F.3d 1059, 1064 (10th Cir. 2006) (internal quotation marks omitted). None
of the facts in the complaint give rise to an articulable and reasonable suspicion that
plaintiff was armed or dangerous.
issue, whether the suspect poses an immediate threat to safety of the officers and
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396.
This test applies despite the fact that Officer Anderson did not have probable
cause for the arrest. Cortez, 478 F. 3d at 1126 (“[I]n a case where police effect an
arrest without probable cause or a detention without reasonable suspicion, but use no
more force than would have been reasonably necessary if the arrest or the detention
were warranted, the plaintiff has a claim for unlawful arrest or detention but not an
additional claim for excessive force.”); see also Mglej, 974 F.3d at 1165-66 (analyzing
excessive force claim under Graham factors despite finding no probable cause for the
Plaintiff argues that Officer Anderson’s actions were excessive as a matter of
law. Docket No. 30 at 15. Taking the facts of the complaint as true, Officer Anderson
grabbed plaintiff, pulled him to the police car by his wrist, and shoved him onto the hood
of the police car. Docket No. 1 at 4, ¶ 18. Plaintiff did not resist, but Officer Anderson
continued to pin him to the hood of the police car and to wrench plaintiff’s arm behind
his back. Id., ¶ 21. Though not part of the allegations regarding excessive force, the
Court notes that Officer Anderson then placed plaintiff in handcuffs, and plaintiff
remained in handcuffs for the remainder of the encounter, about thirty minutes. 7 Id. at
5-6, ¶¶ 25, 31.
Defendants argue that plaintiff has not shown an injury, which is required in this
excessive force claim. Docket No. 20 at 9. In Fisher v. City of Las Cruces, 584 F.3d
888, 897 (10th Cir. 2009), the Tenth Circuit considered an excessive force claim related
to handcuffing. Because handcuffing is appropriate in nearly every situation where an
arrest is authorized, it presents an issue where the handcuffing may be permissible but
Considering the first and third Graham factors, plaintiff was detained for a minor
municipal ordinance violation and did not actively resist arrest. Docket No. 1 at 4-5,
¶¶ 18, 22, 23. These factors weigh against the use of significant force. See Perea v.
Baca, 817 F.3d 1198, 1203 (10th Cir. 2016) (“[a] minor offense—at most—support[s]
the use of minimal force.”). The second Graham factor, whether the suspect poses an
immediate threat to the safety of the officers and others, also does not weigh in favor of
the use of significant force. Officer Anderson had spoken to plaintiff only minutes
before, after plaintiff had flipped him off, and no incident had occurred. Id. at 3, ¶¶ 1213. However, “[n]ot every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers, violates the Fourth Amendment.” Graham, 490 U.S. at
396 (internal quotation marks and citation omitted). Based on the Graham factors,
Officer Anderson was only entitled to use minimal force to effectuate plaintiff’s arrest.
the manner in which it is done could render the force excessive. Id. at 896-97. The
court held that, where an excessive force claim rests on the manner of handcuffing, the
plaintiff must show both that the force used was more than what was reasonably
necessary, and that the plaintiff suffered an actual injury that was more than de minimis.
Id. at 897. The Tenth Circuit has subsequently clarified that the de minimis injury
requirement only applies in handcuffing cases. See United States v. Rodella, 804 F.3d
1317, 1327-29 (10th Cir. 2015) (stating that there is no de minimis injury requirement for
excessive force claims that involve more than handcuffing). Defendants cite Anderson
v. Arnold, 710 F. App’x 343, 344 (10th Cir. 2018) (unpublished), where the court did
imply the requirement of actual, non-de minimis injury for an excessive force claim
unrelated to handcuffing. However, the reasoning is brief and contained in an
unpublished opinion. Id. The complaint does not allege that Officer Anderson
wrenched plaintiff’s arm behind his back in order to handcuff plaintiff. See Docket No. 1
at 4-5, ¶¶ 21-25. While defendants are correct that it would be a reasonable reading of
the facts to conclude that Officer Anderson was attempting to position plaintiff for
handcuffing, Docket No. 31 at 3, the Court cannot draw that conclusion in defendants’
favor. The Court need not resolve whether plaintiff was required to plead facts of nonde minimis injury because, as explained below, the force used by Anderson was not
excessive, irrespective of a showing of injury.
Plaintiff argues that the force Officer Anderson used was more than “minimal.” Docket
No. 30 at 14-16.
Plaintiff cites a number of cases to support the proposition that the use of force
against a restrained and subdued individual is excessive as a matter of law. Id. at 15.
The Court finds that each of the cases plaintiff cites is either distinguishable or, in fact,
supports the amount of force Officer Anderson used to restrain plaintiff. In McCowan v.
Morales, 945 F.3d 1276, 1286 (10th Cir. 2019), the Tenth Circuit held that gratuitous
force against a fully compliant, restrained, and non-threatening misdemeanant arrestee
was unconstitutional. The crucial difference between McCowan and this case is that,
when Officer Anderson pinned plaintiff to the hood of the police vehicle, plaintiff was not
restrained in handcuffs. See Docket No. 1 at 4, ¶ 18. In Grass v. Johnson, 322 F.
App’x 586, 590 (10th Cir. 2009) (unpublished), similarly, the Tenth Circuit held that a
police officer’s use of force against a cooperative individual after he was handcuffed
was a question of reasonableness for the jury. In Davis v. Clifford, 825 F.3d 1131, 1137
(10th Cir. 2016), the court held that a police officer who performed a traffic stop on a
vehicle with an outstanding warrant for driving with a suspended license, shattered the
driver’s side window, and then pulled the driver out through the broken window used
disproportionate force because the driver posed no threat and had committed a minor
infraction. The amount of force used in Davis – pulling a driver through a broken car
window and pinning her to the ground – is not comparable to the force alleged here. In
McCoy v. Meyers, 887 F.3d 1034, 1049, 1052 (10th Cir. 2018), the court held that the
police officer was entitled to qualified immunity for performing a carotid restraint on an
unsubdued arrestee, but use of the carotid restraint once the arrestee was handcuffed
and ziptied was unreasonable. Again, this case supports the use of some force against
an unrestrained individual. Casey v. City of Fed. Heights, 509 F.3d 1278 (10th Cir.
2007), dealt with use of force against an unrestrained individual. The plaintiff exited the
municipal courthouse to retrieve money to pay a traffic fine while holding his court file.
Id. at 1279. Removing a public record from the courthouse was a misdemeanor under
state law. Id. at 1280. While the plaintiff was returning to the courthouse, police officers
tackled, tased, and beat him without explaining to the plaintiff that he was under arrest.
Id. The court held that the plaintiff had sufficiently shown a Fourth Amendment violation
to survive summary judgment. Id. at 1283, 1286. The court stated that, because the
plaintiff did not know why he was being arrested and was neither dangerous nor fleeing,
a reasonable officer should have ordered plaintiff “to submit to an arrest or used minimal
force to grab him while informing him that he was under arrest.” Id. at 1282. In this
case, Officer Anderson used force to grab plaintiff and pin him to the hood of the police
vehicle. Docket No. 1 at 4, ¶ 18. This amount of force is not comparable to the tasing
and beating that took place in Casey.
The Court finds Dixon v. Richer, 922 F.2d 1456, 1462 (10th Cir. 1991), to be the
most informative case. In Dixon, police officers had a reasonable basis to commit an
investigative stop of the plaintiff, despite the fact that the plaintiff was not suspected of
committing a crime. 922 F.2d at 1462. The plaintiff submitted to being frisked by
putting his hands against the side of his van, but when a police officer kicked him during
the frisk the plaintiff turned around and said, “[i]s that f—ing necessary?” Id. at 1458.
Several minutes later, the officers frisked the plaintiff again and in the course of which,
the officers kicked the plaintiff again, hit him in the stomach with a metal flashlight, and
then began to choke and beat him. Id. The Court held that the initial kick was
reasonable given “an uncertain, potentially dangerous circumstance,” but the
subsequent beating when plaintiff had already been frisked and was not making any
aggressive moves or threats was unreasonable and plaintiff had shown a Fourth
Amendment violation sufficient to survive summary judgment. Id. at 1462-63.
The cases above support that Officer Anderson was entitled to use minimal force
to restrain plaintiff. Grabbing plaintiff’s wrist, pushing him against the car, and leaning
him over the hood of the car are actions typical of an arrest. Plaintiff additionally alleges
that Officer Anderson pinned him to the hood of the police vehicle with his entire body
weight and wrenched plaintiff’s arm behind his back. Docket No. 1 at 4, ¶¶ 18, 21.
Plaintiff has not cited any case where a court has found a constitutional violation based
on a similar level of force. See Docket No. 30 at 15. Plaintiff was unrestrained and
Officer Anderson was entitled to use some force to effectuate the arrest. See Graham,
490 U.S. at 396 (“Not every push or shove, even if it may later seem unnecessary . . .
violates the Fourth Amendment.”) (internal quotation marks and citation omitted)). The
Court finds that Officer Anderson’s use of force to restrain plaintiff was not excessive,
because, though minimal force was necessary under the circumstances, Officer
Anderson only used the force required to restrain plaintiff. Therefore, the Court will
grant defendants’ motion to dismiss claim five with respect to Officer Anderson in his
individual capacity for failure to plead a constitutional violation.
4. Claim Six — Fourth Amendment Violation of Malicious
The elements of a malicious prosecution claim are: “(1) the defendant caused the
plaintiff’s continued confinement or prosecution; (2) the original action terminated in
favor of the plaintiff; (3) no probable cause supported the original 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) (citing
Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007)). A court may infer
malice if a defendant causes the prosecution without arguable probable cause. 8
Stonecipher, 759 F.3d at 1146.
Defendants argue that plaintiff does not plead facts sufficient to show that the
original action terminated in plaintiff’s favor. Docket No. 20 at 9. The complaint alleges
that “[t]he charges against Mr. Sexton resulting from the actions/omissions of Defendant
Anderson described herein were dismissed; thus, the original action against Mr. Sexton
terminated in his favor.” Docket No. 1 at 30, ¶ 139. In Wilkins, 528 F.3d at 802-03, the
Tenth Circuit considered what constituted a favorable termination. The prosecutor had
filed a nolle proseques, which was a “formal abandonment” of the proceedings by the
prosecutor. Id. at 802. The court found that an abandonment “is ordinarily insufficient
to constitute a favorable termination,” and the termination must “indicate the innocence
of the accused” in some way. Id. at 802-03. When it is unclear whether a termination
indicates innocence, the court “look[s] to the stated reasons for the dismissal as well as
to the circumstances surrounding it and determine whether the failure to proceed
implies a lack of reasonable grounds for the prosecution.” Cordova v. City of
Albuquerque, 816 F.3d 645, 651 (10th Cir. 2016) (internal quotation marks omitted). “If,
The parties disagree over whether arguable probable cause is sufficient to entitle an
officer to qualified immunity on a malicious prosecution claim, or whether actual
probable cause is required. See Docket No. 20 at 9; Docket No. 30 at 5-6, 13.
Because the Court finds that plaintiff has not sufficiently alleged that the original action
terminated in his favor, the Court need not resolve this issue.
in view of the circumstances, the case [was] disposed of in a manner that leaves the
question of the accused’s innocence unresolved, there generally can be no malicious
prosecution claim by the accused.” Montoya v. Vigil, 898 F.3d 1056, 1066 (10th Cir.
Plaintiff’s assertion that the dismissal of the charges indicates that the action
terminated in plaintiff’s favor is insufficient to support a finding of a favorable
termination. See Scheonfeld v. Thompson, No. 16-cv-02630-MSK-NYW, 2017 WL
8944003, at *6 (D. Colo. June 7, 2017) (finding plaintiff did not plead sufficient facts at
motion to dismiss stage to support finding that action terminated in his favor where
plaintiff failed to describe the dismissal or the circumstances surrounding it), report and
recommendation adopted, 2017 WL 3084470, at *3; Lopez v. Prince, No. 11-cv-02352CMA-BNB, 2012 WL 3277178, at *6 (D. Colo. Aug. 9, 2012) (granting police officer’s
motion to dismiss malicious prosecution claim where the government filed a nolle
prosequi “in the interests of justice”). Plaintiff argues that the fact that Officer Anderson
was disciplined for violating the police department’s Discretionary Judgment policy at
the same time as the charges were dropped is evidence that the prosecutor dropped
the charges because there was a lack of probable cause for the arrest. Docket No. 30
at 13. However, the complaint does not allege that Officer Anderson was disciplined for
his arrest of plaintiff, and instead alleges that Officer Anderson “was not disciplined for
his wrongful arrest, clear violation of the First Amendment, and unlawful use of force.”
Docket No. 1 at 8, ¶ 40. Plaintiff has not sufficiently alleged that the decision by the
CSPD to discipline Officer Anderson for a violation that may have been unrelated to
plaintiff’s arrest in this case means that the prosecutor’s decision to dismiss the charges
was indicative of plaintiff’s innocence.
The Court finds that plaintiff has not alleged facts sufficient to show that the
prosecution terminated in his favor. Accordingly, he fails to establish a constitutional
violation. See Margheim v. Buljko, 855 F.3d 1077, 1087 (10th Cir. 2017) (“Mr.
Margheim is pursuing a malicious prosecution claim, and therefore, to satisfy the first
part of his burden [to overcome qualified immunity], he must show the five elements of
his claim to establish a [constitutional] violation.”). Therefore, the Court finds that there
was no constitutional violation and the Court will grant defendants’ motion to dismiss
plaintiff’s malicious prosecution claim against Officer Anderson in his individual capacity.
5. Claim One – First Amendment Violation of Free Speech
Plaintiff alleges that Officer Anderson violated plaintiff’s First Amendment rights
by detaining and ticketing him for engaging in the protected speech of “displaying his
middle finger.” Docket No. 1 at 22, ¶ 78. Plaintiff alleges that this was a content- and
viewpoint-based restriction on speech. Id., ¶ 79. Defendants argue that, given plaintiff
has not identified a court order, law, policy, or regulation that restricts plaintiff’s ability to
speak, plaintiff fails to state a claim distinct from his First Amendment retaliation claim.
Docket No. 20 at 4. Defendants cite Weise v. Colorado Springs, 421 F. Supp. 3d 1019,
1039 (D. Colo. 2019), where the Court found that the plaintiff had failed to plead a First
Amendment content-based restriction that was separate from the plaintiff’s First
Amendment retaliation claim. Docket No. 20 at 4. In Weise, the plaintiff did not identify
or challenge a specific law, regulation, or policy that restricted her ability to speak. 421
F. Supp. 3d at 1039. The Court treated the content-based restriction claim the same as
the plaintiff’s retaliation claim because the plaintiff failed to articulate a distinct and
legally supported basis for it. Id. at 1039-40.
Plaintiff here argues that he has pled a legal theory distinct from his retaliation
claim. Docket No. 30 at 9. He cites Brandt v. City of Westminster, 300 F. Supp. 3d
1259, 1281-82 (D. Colo. 2018), where the plaintiff brought an “as applied” First
Amendment claim in addition to a claim for retaliatory arrest. The court held that,
though the claims were closely related, the plaintiff had pled two distinct legal theories.
Id. at 1282. Defendants argue that Brandt is distinguishable because the plaintiff had
been arrested pursuant to a disorderly conduct municipal ordinance. Docket No. 31 at
The Court finds Weise distinguishable because the plaintiff in Weise was not
arrested. See 421 F. Supp. 3d at 1029-30. Here, plaintiff alleges that his arrest was a
content-based restriction on speech that is distinct from his retaliation claim. See
Docket No. 1 at 22-23; Docket No. 30 at 9. An arrest by a police officer can give rise to
a claim for a content-based restriction on free speech. See Logsdon v. Hains, 492 F.3d
334, 346 (6th Cir. 2007) (denying qualified immunity to police officers who arrested
plaintiff “ostensibly for violating Ohio’s criminal trespass law” because plaintiff alleged
that the police officers removed him from a public forum due to the content of his
speech); World Wide St. Preachers Fellowship v. Town of Columbia, 245 F. App’x 336,
343-45 (5th Cir. 2007) (unpublished) (finding genuine disputes of fact about the
motivation of the government actors precluded the court from determining whether the
arrest of the plaintiff at a demonstration was a content-based or content-neutral
restriction, and thus prevented the court from knowing whether to apply strict or
Defendant’s argument that claim one should be dismissed is based entirely on
the notion that claim one is duplicative of claim two. See Docket No. 20 at 4. However,
because an arrest can give rise to a content-based restriction on free speech, plaintiff
has pled a distinct basis for claim one. Therefore, the Court will deny defendants’
motion to dismiss claim one against Officer Anderson in his individual capacity. 9
6. Claim Two – First Amendment Retaliation
Generally, “the First Amendment prohibits government officials from subjecting
an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett,
139 S. Ct. 1715, 1722 (2019) (internal quotation marks omitted). To establish a First
Amendment retaliation claim, plaintiff must demonstrate (1) that he was engaged in a
constitutionally protected activity; (2) that the defendant’s action caused him to suffer an
injury that would chill a person of ordinary firmness from continuing to engage in that
activity; and (3) that the defendant’s action was substantially motivated as a response to
his exercise of his First Amendment speech rights. Becker v. Kroll, 494 F.3d 904, 925
(10th Cir. 2007). Ordinarily, a plaintiff must plead and prove the absence of probable
cause for the arrest. 10 Id.
Defendants argue that Officer Anderson is entitled to qualified immunity on all claims,
but provide no specific reasoning for why Officer Anderson’s conduct warrants qualified
immunity for claim one. See Docket No. 20 at 2, 4-12. Therefore, defendants do not
adequately assert the defense of qualified immunity on claim one and the Court only
determines that claim one is not duplicative of claim two.
Because plaintiff has sufficiently pled the absence of probable cause for the arrest,
the Court does not address the parties’ arguments concerning the exception to the
Defendants argue that plaintiff’s allegations fail each prong of a retaliatory arrest
claim. Docket No. 20 at 12. Defendants argue that plaintiff was not engaged in a
constitutionally protected activity because jaywalking is not constitutionally protected.
Id. at 11 n.5. However, plaintiff argues that his constitutionally protected activity was
flipping off Officer Anderson. The Court agrees that the First Amendment activity
alleged in the complaint was criticism of the police on a public street, which is a
constitutionally protected activity. See City of Houston v. Hill, 482 U.S. 451, 461 (1987)
(“The First Amendment protects a significant amount of verbal criticism and challenge
directed at police officers.”).
Defendants argue that plaintiff did not suffer an actual injury because the only
injury he alleges is feeling pain in his arm before being handcuffed. Docket No. 20 at
11, n.5. Plaintiff responds that a retaliatory arrest is an injury sufficient to chill a person
of ordinary firmness. Docket No. 30 at 11. The Court finds that a retaliatory arrest
unsupported by probable cause is an injury that would chill a person of ordinary
firmness. See Esparza v. Bowman, 523 F. App’x 530, 536 (10th Cir. 2013)
(unpublished) (“[P]ursuit of an arrest without probable cause would chill a person of
ordinary firmness from continuing to engage in protected activity.”). Additionally, the
Court has found the absence of probable cause. Therefore, the only issue left of
defendants’ argument that plaintiff has not stated a claim for First Amendment
retaliation is whether plaintiff has adequately pled a retaliatory motive.
Defendants argue that the facts as pled by plaintiff do not show a retaliatory
motive. Docket No. 20 at 12. The retaliatory motive “must be a ‘but-for’ cause,
Supreme Court’s holding that probable cause defeats a claim for retaliatory arrest in
Nieves, 139 S. Ct. at 1727.
meaning that the adverse action against the plaintiff would not have been taken absent
the retaliatory motive.” Nieves, 139 S. Ct. at 1722 (citing Hartman v. Moore, 547 U.S.
250, 260 (2006) (recognizing that although it “may be dishonorable to act with an
unconstitutional motive,” an official’s “action colored by some degree of bad motive
does not amount to a constitutional tort if that action would have been taken anyway”)).
Plaintiff alleges that, after he flipped off Officer Anderson from the 7-11 store parking lot,
Officer Anderson made a U-turn across four lanes of traffic and contacted plaintiff.
Docket No. 1 at 3, ¶¶ 11-13. After Officer Anderson and plaintiff spoke, Officer
Anderson began to drive away, and plaintiff crossed the street outside of a crosswalk.
Id., ¶ 14. Officer Anderson then made another U-turn and began to drive toward
plaintiff. Id. at 4, ¶ 15. Plaintiff started recording the incident on his phone and flipped
Officer Anderson off again. Id., ¶¶ 16-17. Immediately after plaintiff began recording
and flipped Officer Anderson off again, Officer Anderson turned on his police lights. Id.,
¶ 17. Officer Anderson gave shifting reasons for arresting plaintiff before telling plaintiff
that he had detained plaintiff for jaywalking. Id. at 6, ¶¶ 29-30. Plaintiff alleges that
Officer Anderson arrested plaintiff for flipping him off. Id., ¶ 27.
The close temporal proximity between plaintiff’s protected speech and his arrest
without probable cause can give rise to a strong inference that Officer Anderson was
“substantially motivated” to arrest plaintiff because of plaintiff’s protected. See Esparza,
523 F. App’x at 536 (upholding district court determination that close temporal proximity
between protected speech and arrest, coupled with the absence of probable cause,
“supported a strong inference that [defendant] was motivated by the complaints.”); cf.
Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (plaintiff sufficiently pleaded that
action was in retaliation for his filing grievances by reciting facts indicating “that
Defendants were aware of his protected activity, that his protected activity complained
of Defendants’ actions, and that the transfer was in close temporal proximity to the
protected activity”). Defendants argue that Officer Anderson recontacted plaintiff
because of “Plaintiff’s illegal act,” Docket No. 20 at 12, but the Court has already
determined that there was no probable cause to arrest plaintiff.
The Court finds that the close temporal proximity between the protected speech
and arrest, combined with the absence of probable cause, and the fact that Officer
Anderson did not turn on his police lights until plaintiff flipped him off the second time, is
sufficient to plead that a retaliatory motive was the “but-for” cause of Officer Anderson’s
arrest. Plaintiff has therefore pled each element of a First Amendment retaliation claim.
Because the Court has found that plaintiff pleads a claim for retaliatory arrest, the Court
will deny defendants’ motion to dismiss claim two against Officer Anderson in his
B. City of Colorado Springs
Plaintiff brings claims one, two, three, five, and six against Colorado Springs. 11
Docket No. 1 at 22-30. Plaintiff alleges that Colorado Springs has a policy or custom of
Each of plaintiff’s claims, except for plaintiff’s unlawful search claim (claim four), are
brought by “Plaintiff Against All Defendants.” See, e.g., Docket No. 1 at 22-23, 25-28.
The allegations in claim four all relate to Officer Anderson, but the claim does allege that
“[a]s a legal and proximate cause of Defendants’ actions, Plaintiff has suffered and
continues to suffer humiliation, emotional distress, loss of enjoyment of life, and other
significant injuries, damages, and losses.” Id. at 26-27, ¶¶ 110-17. It is thus unclear
whether the use of the plural possessive for “Defendants’” indicates that claim four is
brought against Colorado Springs as well. See id. Other portions of the complaint do
contain allegations that Colorado Springs has a policy and practice of ratifying unlawful
searches and failed to train its employees to avoid unlawful searches. Id. at 10, ¶¶ 46,
content-based restrictions on free speech, retaliation for engaging in protected speech,
unlawful seizures, excessive force, and malicious prosecutions and that each of these
policies caused injuries to plaintiff. Id.
Local governments may not be sued under 42 U.S.C. § 1983 on a theory of
respondeat superior. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 692 (1978).
Instead, local governing bodies can be sued directly only where “the action that is
alleged to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.” Id. at
690 (footnote omitted). “[I]t is when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible
under § 1983.” Id. at 694.
In order to state a claim for municipal liability under § 1983 for the actions of a
municipal employee, a party must allege sufficient facts to demonstrate that it is
plausible (1) that the municipal employee committed a constitutional violation; and (2)
that a municipal policy or custom was the moving force behind the constitutional
deprivation. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004). A municipal
policy or custom can take the form of
(1) a formal regulation or policy statement; (2) an informal custom
amoun[ting] to a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law; (3) the decisions
of employees with final policymaking authority; (4) the ratification by such
final policymakers of the decisions – and the basis for them – of
subordinates to whom authority was delegated subject to these
51. Even if claim four was brought against Colorado Springs, the Court will dismiss it
for the same reasons given below as to claim three.
policymakers' review and approval; or (5) the failure to adequately train or
supervise employees, so long as that failure results from ‘deliberate
indifference’ to the injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (citations omitted).
With this background in mind, the Court considers whether dismissal of the challenged
claims is appropriate. Plaintiff alleges the existence of a continuing, persistent, and
widespread practice of unconstitutional conduct through “past incidents of misconduct to
others, multiple harms that occurred to the plaintiff himself, misconduct that occurred in
the open, the involvement of multiple officials in the misconduct, or the specific topic of
the challenged policy or training inadequacy.” Docket No. 30 at 17 (quoting Arakji v.
Hess, No. 15-cv-00681-CMA, 2015 WL 7755975, at *5-7 (D. Colo. Dec. 2, 2015)).
The Court has determined that there were no constitutional violations for
excessive force or malicious prosecution. Accordingly, these claims also fail against the
City, and the Court will therefore dismiss claims five and six against Colorado Springs.
See Jiron, 392 F.3d at 419 n.8 (“[W]hen a finding of qualified immunity is based on a
conclusion that the officer has committed no constitutional violation—i.e., the first step
of the qualified immunity analysis—a finding of qualified immunity does preclude the
imposition of municipal liability.”).
1. Municipal Policy
The complaint alleges, in claim one and two, that “Colorado Springs has a
custom, policy, or practice of tolerating violations of the First Amendment of the United
States Constitution related to Plaintiff.” Docket No. 1 at 23-24, ¶ 84, 95. The complaint,
in claim three, alleges that Colorado Springs has “a custom, practice or policy of
tolerating violations of the Fourth Amendment of the United States Constitution related
to Plaintiff.” Id. at 26, ¶ 107. Defendants argue that, because these policies are alleged
only as “related to Plaintiff,” and plaintiff only alleges one other incident between himself
and the CSPD, plaintiff cannot establish a municipal policy. 12 Docket No. 20 at 13.
Plaintiff’s response asserts generally that (1) plaintiff has been targeted by CSPD
for criticizing the police; (2) the complaint alleges four instances of retaliation for
exercising First Amendment rights and seven instances of arresting individuals without
probable cause; (3) plaintiff was subject to multiple harms by Officer Anderson’s
unconstitutional conduct; (4) plaintiff alleges “the specific topic of the challenged policy
or training inadequacy”; and (5) Colorado Springs ratified these customs and practices,
and these customs caused plaintiff injury. Docket No. 30 at 17-19 (quoting Arakji, 2015
WL 7755975, at *6).
The Court construes plaintiff’s argument to be that he can establish a policy of
First and Fourth Amendment violations because (1) Colorado Springs has a widespread
practice of tolerating First Amendment violations and arresting people without probable
cause, as evidenced by incidents described in the complaint; (2) final policy makers
ratified subordinates’ decisions to engage in First Amendment violations and arrests
without probable cause; and (3) Colorado Springs has a policy of failing to train its
officers, which causes the officers to violate the First Amendment and arrest individuals
without probable cause.
In order to allege municipal liability, a plaintiff must plead the existence of a policy.
The Court declines to read the phrase “related to plaintiff” to mean that plaintiff believes
these policies are only directed at him. Instead, the allegations in the complaint make
clear that plaintiff believes Colorado Springs has a policy of arresting other people
without probable cause as well. See Docket No. 1 at 18-22, ¶¶ 65-73.
a. Informal Practice Amounting to a Widespread Custom
Plaintiff’s complaint alleges twelves incidents of interactions between citizens and
Colorado Springs. Docket No. 1 at 12-22, ¶¶ 59-73. Plaintiff alleges seven incidents of
CSPD arresting individuals without probable cause. Id. at 18-22, ¶¶ 65-73. Four of
these incidents involved arrests due to mistaken identities. Id. at 18-21, ¶¶ 66-67, 7172. The other three involved omitting exculpatory evidence from an arrest warrant
affidavit, a conspiracy by CSPD police officers to falsely charge and arrest an officer’s
ex-boyfriend, and an arrest for violating a law banning guns in a park that had been
repealed 9 years earlier. Id. at 20, ¶¶ 68-70. One incident is from 2017 but the
remainder are from 2009 and 2012. Id. 18-21, ¶¶ 65-72. None of these alleged
incidents have any similarity to the facts of this case.
Plaintiff has alleged one incident in 2019 where he was arrested without probable
cause for engaging in protected speech. Id. at 11-12, ¶¶ 54-58. Plaintiff also alleges
(1) a 2013 incident where CSPD officers arrested an individual for verbally protesting
the “CSPD officers’ beating of another man”; (2) a 2015 arrest of an individual for filming
a traffic stop; (3) a 2017 detention of an individual because the individual filmed police
activity; and (4) retaliatory actions in 2016 and 2017 by the Colorado Springs City
Council and City Attorney against an individual for whistleblowing on a government
entity. Id. at 13-15, ¶¶ 60-63. The Court first considers which of these four alleged
incidents are sufficiently similar to the facts of this case.
Plaintiff’s complaint alleges that CSPD officers arrested Ryan Brown in 2015 for
filming and asking the officers why the vehicle he was a passenger in had been pulled
over. Docket No. 1 at 13-14, ¶ 61. The complaint alleges that, in response to Mr.
Brown asking why the officers had pulled over the vehicle and beginning to film, “the
CSPD officers held Mr. Brown at gunpoint, forced him out of the vehicle, slammed him
into the snowy parkway, and stopped his recording. Id. This does not allege that the
officers conducted a retaliatory arrest because Mr. Brown criticized the police, and
therefore is dissimilar from the facts of this case. 13
Plaintiff alleges that CSPD officers arrested Terrell Clayton in 2017 because he
filmed police activity outside of a CSPD station. Id. at 14, ¶ 62. The complaint alleges
that CSPD officers asked Mr. Clayton for identification and, when he refused, they
detained him. Id. This incident does not allege that the officers approached or arrested
plaintiff for criticizing the police, and is therefore dissimilar from the facts of this case.
Additionally, the allegations regarding Leslie Weise involve retaliatory action by the
Colorado Springs City Council and City Attorney. Id. at 15-18, ¶ 63. This incident
involves neither the CSPD nor an arrest, and is therefore dissimilar.
The Court finds that plaintiff has alleged two incidents sufficiently similar for the
Court to consider them when determining whether plaintiff has pled the existence of a
municipal policy of retaliatory arrest: plaintiff’s own 2019 arrest for filming and criticizing
the police and the 2013 arrest of Grant Bloomquist for verbally protesting CSPD officers’
beating a man outside of a nightclub. See Docket No. 1 at 11-13, ¶¶ 56, 60-61. Both
incidents involve an arrest allegedly due to the individual criticizing the police. The
The Court notes that, in Frasier v. Evans, -- F.3d --, 2021 WL 1166405, at *14 (10th
Cir. Mar. 29, 2021), the Tenth Circuit found that the First Amendment right to record the
police performing their official duties in public spaces was not clearly established in
2014. The court declined to consider whether any such right actually exists. Id. at *11,
other three alleged retaliatory arrests are too different to be considered in determining
whether Colorado Springs has a municipal policy of retaliatory arrests.
With informal, unwritten policies, customs, or practices, the plaintiff can
plead either a pattern of multiple similar instances of misconduct – no set
number is required, and the more unique the misconduct is, and the more
similar the incidents are to one another, the smaller the required number
will be to render the alleged policy plausible – or use other evidence, such
as a police officers’ statements attesting to the policy’s existence.
Griego v. City of Albuquerque, 100 F. Supp. 3d 1192, 1213 (D.N.M. 2015). Plaintiff has
alleged two similar incidents of retaliatory arrests; his other allegations of arrests without
probable cause and retaliatory actions are not similar enough to be considered part of a
policy or custom. See Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1287, 1290
(10th Cir. 2019) (finding that prior incidents of excessive force against civilians on the
street were too different from claim brought for excessive force against restrained
inmate to be “similar prior incident[s]” for purposes of determining widespread practice
of excessive force).
The Court must determine whether these two prior incidents are sufficient to
show “an informal custom amoun[ting] to a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law.” Bryson, 627 F.3d at 788.
These two incidents took place in 2013 and 2019. Plaintiff argues that three or more
alleged incidents are sufficient to state a claim by citing Est. of Valverde v. Dodge, No.
16-cv-01703-MSK-MEH, 2017 WL 3530282, at *4 (D. Colo. Aug. 17, 2017), and
Sekerak v. City & Cnty. of Denver, 1 F. Supp. 2d 1191, 1199 (D. Colo. 1998). In Est. of
Valverde, 2017 WL 3530282, at *4, the Court found that three examples of excessive
force that spanned a significant time period could plausibly demonstrate the existence
of an informal custom or practice that resulted in the use of excessive force. The Court
finds Valverde distinguishable because plaintiff has only alleged two similar incidents in
this case and in Valverde all three incidents alleged in the complaint had taken place in
the prior two years. Id., No. 16-cv-01703-MSK-MEH, Docket No. 27 at 8-9, ¶ 34. In
Sekerak, 1 F. Supp. 2d at 1199, the court found that retaliatory incidents against three
other individuals was sufficient to state a claim, but noted that the claim “hangs by a thin
reed.” Sekerak is distinguishable because plaintiff has only alleged two similar prior
The Court finds that two alleged incidents, one in 2013 and one in 2019, are
insufficient to show a practice so permanent and well settled that it constitutes a custom
or usage with the force of law. See Lankford v. City of Hobart, 73 F.3d 283, 287 (10th
Cir. 1996) (noting that “isolated and sporadic acts” do not establish municipal liability for
§ 1983); cf. Waller, 932 F.3d at 1290 (“[D]escribing only one similar incident of
excessive force prior to his own injuries—fall[s] far short of plausibly alleging a
‘widespread practice’ of excessive force, much less a practice ‘so permanent and well
settled as to constitute a custom or usage with the force of law.’” (quoting Bryson, 627
F.3d at 788)); see also Wilson v. Cook Cnty., 742 F.3d 775, 780 (7th Cir. 2014)
(“Although this court has not adopted any bright-line rules for establishing what
constitutes a widespread custom or practice, it is clear that a single incident -- or even
three incidents -- do not suffice.”). Therefore, plaintiff has not pled a policy of retaliatory
arrests or arrests without probable cause pursuant to an informal custom. 14
Plaintiff cites Brandt, 300 F. Supp. 3d at 1276, and Lozman v. City of Riviera Beach,
138 S. Ct. 1945, 1951 (2018), for the proposition that CSPD’s targeting of him
personally “for engaging in protected speech” establishes municipal liability. Docket No.
b. Ratification by a Final Policymaker
Plaintiff also fails to allege “the ratification by such final policymakers of the
decisions – and the basis for them – of subordinates to whom authority was delegated
subject to these policymakers' review and approval.” Id. at 788. Plaintiff argues that
“Colorado Springs knew of and continuously ratifies the customs and practices outlined
in the complaint.” Docket No. 30 at 19. In order to state a claim under a ratification
theory of municipal liability, the complaint must “allege  facts regarding an affirmative
approval of [the police officer’s] actions.” Twitchell v. Hutton, No. 10-cv-01939-WYDKMT, 2011 WL 318827, at *5 (D. Colo. Jan. 28, 2011) (citing Brammer–Hoelter v. Twin
Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2010)); Bryson, 627 F.3d at 790
(“[A] municipality will not be found liable under a ratification theory unless a final
decisionmaker ratifies an employee’s specific unconstitutional actions, as well as the
basis for these actions.”). Even assuming that plaintiff could demonstrate the existence
of an official policy based only on Colorado Springs’s failure to discipline Officer
Anderson, see Jack v. Cnty. of Stanislaus, 2017 WL 4123930, at *7 (E.D. Cal. Sept. 15,
2017) (“Ratification is more than acquiescence, and a mere failure to discipline does not
amount to ratification.”); C.F.B. v. Hayden, 2019 WL 1299679, at *13 (D. Kan. Mar. 21,
2019) (“While this ‘ratification’ theory may be evidence of the existence of an informal
30 at 19. However, these cases are distinguishable because the plaintiff in each case
could establish a policy. In Brandt, the plaintiff alleged that he had been cited or
arrested twenty-four times for engaging in protected speech, 300 F. Supp. at 1276; in
contrast, plaintiff has only alleged one other incident between himself and the CSPD.
See Docket No. 1 at 11-12. In Lozman, 138 S. Ct. at 1951, the plaintiff alleged that the
city, through its legislators, “formed an official policy to retaliate against him and ordered
his arrest.” “The Court assume[d] . . . that the arrest was taken pursuant to an official
city policy,” but did not decide “whether there was such a policy and what its content
may have been.” Id. Lozman is thus distinguishable because the Court assumed the
existence of such a policy.
policy, it is not alone enough to be considered an ‘official policy’ giving rise to Monell
liability.”), plaintiff has not identified the final policymakers who allegedly ratified Officer
Anderson’s conduct; rather, his allegations of ratification refer to the City of Colorado
Springs generally. See, e.g., Docket No. 1 at 8-9, ¶¶ 40, 45 (stating that Officer
Anderson was not disciplined for his wrongful arrest of plaintiff and that “Defendant
Colorado Springs” ratified unconstitutional arrests and condoned Officer Anderson’s
conduct). This is insufficient to demonstrate a policy for Monell liability. See Rehberg v.
City of Pueblo, No. 10-cv-00261-LTB-KLM, 2012 WL 1326575, at *7 (D. Colo. Apr. 17,
2012) (finding ratification theory insufficient where complaint alleged that “Pueblo” and
its “supervising officers” approved of the alleged unconstitutional conduct).
c. Failure to Train
Plaintiff’s final theory is that Colorado Springs is liable because it failed to
adequately train or supervise officers on refraining from First Amendment retaliation and
the need for probable cause to make arrests. Docket No. 1 at 10, 18 ¶¶ 46, 48-50, 6465. To state a Monell claim based on the failure to train or supervise, a plaintiff must
sufficiently allege that the failure “amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of Canton v. Harris, 489 U.S.
378, 388 (1989)). However, “[a] municipality’s culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563
U.S. 51, 61 (2011); see also Oklahoma City v. Tuttle, 471 U.S. 808, 822-823 (1985)
(plurality opinion) (“[A] ‘policy’ of ‘inadequate training’” is “far more nebulous, and a good
deal further removed from the constitutional violation, than was the policy in Monell.”).
Plaintiff alleges that Colorado Springs failed to train and supervise its employees
to avoid First Amendment violations and unlawful seizures, and this failure was the
“moving force and proximate cause of the violation of Mr. Sexton’s constitutional rights.”
Docket No. 1 at 10, ¶¶ 46, 50. The complaint gives examples of retaliatory actions and
arrests without probable cause and alleges that these examples illustrate that Colorado
Springs was aware of the “obvious need . . . for Defendant Colorado Springs to provide
further training to CSPD officers on the necessity of not retaliating against individuals
who protest police officers and/or record their misconduct” and “to provide further
training to CSPD officers on the necessity of establishing probable cause before making
an arrest.” Id. at 12-18, ¶¶ 59, 64-65.
However, these allegations are missing any supporting factual allegations
providing a basis for plaintiff’s failure-to-train theory; plaintiff does not set forth any facts
concerning how Officer Anderson was trained, who he was trained by, or why his
training was deficient. See Bark v. Chacon, No. 10-cv-01570-WYD-MJW, 2011 WL
1884691, at *3 (D. Colo. May 18, 2011) (dismissing municipal liability claim where
plaintiff had “generally allege[d]” that the individual defendants were not properly trained
but had not “allege[d] specific deficiencies in training and supervision, or explain[ed]
how the incident described in the Amended Complaint could have been avoided with
different or better training and supervision”); see also Erickson v. City of Lakewood, No.
19-cv-02613-PAB-NYW, – F. Supp. 3d –, 2020 WL 5702278, at *9 (D. Colo. Sept. 24,
2020) (dismissing Monell claim where plaintiff failed to allege specific facts regarding
the officers’ training, did not identify individuals that allegedly failed to adequately
supervise or train, and did not contain allegations establishing a pattern of similar
Plaintiff argues that the Court can infer a policy of inadequate training based on
the other alleged incidents. Docket No. 30 at 19-20. However, as noted above, the
other alleged arrests without probable cause are too factually dissimilar to be
considered part of a pattern. “A pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference for purposes
of failure to train.” Connick, 563 U.S. at 62 (quotation omitted). “In resolving the issue of
a city's liability, the focus must be on adequacy of the training program in relation to the
tasks the particular officers must perform. That a particular officer may be
unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's
shortcomings may have resulted from factors other than a faulty training program.” City
of Canton, 489 U.S. at 390-91. Plaintiff has alleged two other incidents of retaliatory
arrest that are separated by six years; this is insufficient to demonstrate a policy of
failure to train. While “policymakers’ continued adherence to an approach that they
know or should know has failed to prevent tortious conduct by employees may establish
the conscious disregard for the consequences of their action--the ‘deliberate
indifference’--necessary to trigger municipal liability,” Connick, 563 U.S. at 62 (internal
quotation marks and citation omitted), the allegations of the complaint do not show that
Colorado Springs knew or should have known that its failure to provide further training
on retaliatory arrests would result in a constitutional violation. Therefore, the Court finds
that plaintiff has not alleged a failure to train theory that supports municipal liability. 15
Plaintiff does not allege any facts regarding supervisory deficiencies in the
CSPD, how Officer Anderson’s supervision was inadequate, or how this inadequate
supervision caused his injury. Therefore, he has failed to state a claim for supervisory
liability. See Waller, 932 F.3d at 1289 (holding that complaint failed to state a claim
where plaintiff did not “allege any facts regarding any supposed supervisory
deficiencies in the Denver Sheriff Department, much less any facts describing how
Deputy Lovingier’s supervision was inadequate or how his purportedly inadequate
supervision caused [plaintiff’s] injury”).
Because the Court has found that plaintiff does not allege a municipal policy of
First Amendment violations or tolerating unreasonable seizures, the Court will dismiss
with prejudice claims one, two, and three against Colorado Springs. Because the Court
has found no constitutional violation for claims five, and six, the Court will dismiss these
claims against Colorado Springs with prejudice. Accordingly, the Court will dismiss
Colorado Springs from this lawsuit.
The complaint fails to allege facts of a violation of the First Amendment, separate from
retaliation, against any person besides plaintiff. The complaint alleges that Colorado
Springs had a policy of targeting plaintiff for criticizing the CSPD. Docket No. 1 at 11.
However, the allegations of incidents related to other individuals are that Colorado
Springs “has a custom and practice of arresting individuals in retaliation for their
exercise of their First Amendment rights, particularly in response to criticism and
monitoring of police activity.” Id. at 12 (emphasis added); see also id. (“The following
cases show that at the time of Mr. Sexton’s arrest, there was an informal custom and
practice, that was known to Defendant Colorado Springs, of retaliating against
individuals who protest police officers and/or record their misconduct.”). Therefore, the
Court finds that plaintiff’s claim that Colorado Springs has a policy of a content and
viewpoint discrimination in violation of the First Amendment is supported only by the
one incident he describes between himself and the CSPD. This fails to state a policy for
the reasons given regarding claims two and three.
For the foregoing reasons, it is
ORDERED that City Defendants’ Motion to Dismiss [Docket No. 20] is
GRANTED IN PART and DENIED IN PART. It is further
ORDERED that claims five and six are DISMISSED with prejudice against Officer
Anderson in his individual capacity. It is further
ORDERED that all claims are DISMISSED against Officer Anderson in his official
capacity. It is further
ORDERED that claims one, two, three, five, and six are DISMISSED with
prejudice against Colorado Springs. It is further
ORDERED that Colorado Springs is DISMISSED from this lawsuit.
DATED March 31, 2021.
BY THE COURT:
PHILIP A. BRIMMER
Chief United States District Judge
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