Schendorf v. Gomez et al
Filing
136
ORDER: For the reasons stated more fully herein, the Court affirms and adopts the 130 Report and Recommendation and GRANTS the pending 28 , 46 , 48 , 63 , 112 Motions to Dismiss. The Clerk of Court shall close this case. SO ORDERED by Judge S. Kato Crews on 10/25/2024.(skclc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-01150-SKC-MDB
LANCE P. SCHENDORF,
Plaintiff,
v.
DANIEL GOMEZ, et al.,
Defendants.
ORDER
According to Plaintiff’s allegations, on May 6, 2021, the Jefferson County
Regional SWAT Team and the North Metro Drug Task Force executed a high-risk
search warrant for Plaintiff’s home. Dkt. 89 at pp.9. In their search, the officers
discovered large quantities of methamphetamine, which led to Plaintiff’s arrest. Dkt.
46-2. However, Plaintiff contends these officers—named as Defendants in their
individual and official capacities—used unreasonable and excessive force during their
search of his home and violated the Fourth Amendment’s knock-and-announce
requirement. He further contends his seizure during the search of his home was
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unreasonable. See generally Dkt. 89. 1 Defendants seek dismissal of the claims against
them in their entirety. Dkts. 28, 46, 48, 63, 112.
The Court referred these matters to Magistrate Judge Maritza Dominguez
Braswell, and on July 9, 2024, Judge Dominguez Braswell issued her
Recommendation that Defendants’ Motions be granted and this case be dismissed in
its entirety, with prejudice. Dkt. 130. Plaintiff has objected, and Defendants have
responded accordingly. Dkts. 134, 135. Having reviewed the Complaint, Motions,
Recommendation, and relevant briefing on these matters, the Court agrees with
Judge Dominguez Braswell’s thorough and well-reasoned conclusion that Plaintiff
has failed to state any claim to relief. Consequently, the Court AFFIRMS and
ADOPTS the Recommendation.
LEGAL STANDARDS
“‘The filing of objections to a [magistrate judge’s] report enables the district
judge to focus attention on those issues—factual and legal—that are at the heart of
the parties’ dispute,’ and gives the district court an opportunity ‘to correct any errors
immediately.’’’ United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th
Cir. 1996) (cleaned up; citations omitted). “[O]nly an objection that is sufficiently
specific to focus the district court’s attention on the factual and legal issues that are
truly in dispute will advance the policies behind the [Magistrates] Act . . . ,” including
Plaintiff also asserted a claim contesting the validity of the search warrant. He has,
however, abandoned that claim as barred by the doctrine of Heck v. Humphrey, 512
U.S. 477 (1994). See Dkt. 89 at 8.
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judicial efficiency. Id. at 1060. “[A]llowing parties to litigate fully their case before
the magistrate [judge] and, if unsuccessful, to change their strategy and present a
different theory to the district court would frustrate the purpose of the Magistrates
Act.” Cole v. New Mexico, 58 F. App’x 825, 829 (10th Cir. 2003) (unpublished) (citation
omitted).
The Court must “make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” One Parcel, 73 F.3d at 1060; see
also Fed. R. Civ. P. 72(b)(2). “Objections disputing the correctness of the magistrate
judge’s recommendation, but failing to specify the findings believed to be in error are
too general” and may result in a waiver of the objections. Kazarinoff v. Wilson, No.
22-cv-02385-PAB-SKC, 2024 WL 98385, at *2 (D. Colo. Jan. 9, 2024) (quoting
Stamtec, Inc. v. Anson, 296 F. App’x 518, 520 (6th Cir. 2008) (unpublished)). And
“issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” ClearOne Commc’ns, Inc. v. Biamp Sys., 653
F.3d 1163, 1185 (10th Cir. 2011) (cleaned up) (quoting Marshall v. Chater, 75 F.3d
1421, 1426-27 (10th Cir. 1996)).
When no party files an objection, the district court may review a magistrate
judge’s recommendation under any standard it deems fit. See Summers v. Utah, 927
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F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985).
(“It does not appear that Congress intended to require district court review of a
[magistrate judge’s] factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.”). In the absence of specific or
any objections, the district court reviews the recommendation to satisfy itself that
there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b), 1983 Advisory
Committee Notes. This standard of review is something less than a “clearly erroneous
or contrary to law” standard, which in turn is less than a de novo review. See Fed. R.
Civ. P. 72(a) and (b).
ANALYSIS
The Recommendation advised the parties they had 14 days after service of the
Recommendation to serve and file specific written objections for this Court’s
consideration, citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). After being
granted an extension of time, Plaintiff timely filed his objections. Dkt. 134. Because
he is not represented by counsel, the Court has liberally construed Plaintiff’s
objections and related filings but has done so without acting as his advocate.
A.
Unreasonable and Excessive Force
In his claim for unreasonable and excessive force, Plaintiff alleges Defendants’
“commando-style raid” and use of flashbang devices, Bearcat armored vehicles, and
snipers, was not warranted based on the circumstances. Dkt. 89 at p.9. When
considering “whether a particular search or seizure comports with reasonableness, a
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court must balance ‘the nature and the quality of the intrusion on the individual’s
Fourth Amendment interests, against the countervailing governmental interests at
stake.’” Santistevan v. City of Colorado Springs, 983 F. Supp. 2d 1295, 1318 (D. Colo.
2013) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts must consider
the totality of the circumstances including “the crime’s severity, the potential threat
posed by the suspect to the officer’s and others’ safety, and the suspect’s attempts to
resist or evade arrest.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1188
(10th Cir. 2001). This inquiry must be made “from the perspective of a reasonable
officer on the scene, recognizing the fact that the officer may be forced to make splitsecond judgments” under stressful and dangerous conditions.” Id. (cleaned up).
Judge Dominguez Braswell found that, even accepting Plaintiff’s allegations
as true, Defendants’ conduct was not unreasonable under the circumstances. Dkt.
130 at p.11. She specifically noted that Defendants previously conducted controlled
purchases of methamphetamines from Plaintiff via a confidential informant, who also
observed “large quantities of methamphetamines” at Plaintiff’s property. The
magistrate judge then concluded Defendants had a legitimate interest in minimizing
the risk of harm to themselves and the public, particularly because “the execution of
a warrant to search for narcotics is the kind of transaction that may give rise to
sudden violence or frantic efforts to conceal or destroy evidence.” Dkt. 130 at p.11
(quoting Bailey v. United States, 568 U.S. 186, 194 (2013)).
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Plaintiff spends the bulk of his objection distinguishing the facts of the cases
Judge Dominguez Braswell cited in her Recommendation from the facts in his case.
But these efforts are unavailing. Judge Dominguez Braswell does not rely on those
cases because of their factual scenarios. Rather, she cites them for the propositions of
law espoused therein. To be sure, even Plaintiff acknowledges the validity of these
legal principles. Ultimately, Plaintiff’s argument amounts to a bare contention that
Judge Dominguez Braswell incorrectly weighed the facts. Although such an objection
is too general to warrant de novo review, the Court has nevertheless done so and
reaches the same conclusion as the magistrate judge.
As Defendants point out, Plaintiff’s arguments rely on the benefit of hindsight.
He notes the officers did not discover any weapons in his apartment, none of the
evidence was destroyed, and none of the occupants resisted arrest. That, however, is
not the appropriate inquiry because it is backward looking. The Court must consider
the totality of the circumstances from the perspective of a reasonable officer on the
scene. Holland, 268 F.3d at 1188.
Here, the officers knew Plaintiff was selling methamphetamine and that a
large quantity of it was in his apartment. Further, the officers did not know whether
there were weapons in the apartment, nor did they know how many people would be
inside at the time of executing the warrant. Given the volatile nature of executing a
narcotics search warrant, these facts support the use of dynamic entry tactics.
Santistevan, 983 F. Supp. 2d at 1319 (“[A] blanket policy of sending a SWAT team to
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execute warrants in all narcotics cases may not offend the Fourth Amendment in the
absence of evidence that the decisionmaker knew the team would use excessive force,
intended to cause harm. . . .”). The Court also notes that as the officers were preparing
for entry, an individual came out of Plaintiff’s apartment, saw the officers, and then
ran back inside, which further supports a finding of exigent circumstances justifying
the use of force and distraction devices. Dkt. 46-2. 2 Consequently, the Court agrees
with Judge Dominguez Braswell’s conclusion that Defendants’ conduct during the
raid was reasonable under the circumstances. The Court affirms and adopts her
analysis and dismisses Plaintiff’s second claim for relief.
B.
Knock-and-Announce
In his third claim for relief, Plaintiff alleges the Defendants forced entry into
his apartment “within a few seconds of [the officers’] verbal announcement” despite
there being “no constructive refusal of admittance following [the] announcement of
presence and authority.” Dkt. 89 at p.10. He asserts, therefore, that Defendants did
not comply with the knock-and-announce requirements of the Fourth Amendment.
Id.
The common-law knock-and-announce principle “is an element of the
reasonableness inquiry under the Fourth Amendment.” Wilson v. Arkansas, 514 U.S.
Judge Dominguez Braswell took judicial notice of the warrant, supporting affidavit,
and the officers’ incident reports, which is where the reference to the individual who
exited and retreated comes from. Plaintiff did not object to her doing so. Indeed, it
seems clear Plaintiff sourced many of his factual allegations from the incident
reports.
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927, 934 (1995). “Although certain circumstances may justify entry without knocking
and announcing, ‘[t]he Fourth Amendment . . . includes a general presumption that
police officers executing a search warrant for a residence must announce their
presence and authority before entering.’” United States v. Jenkins, 175 F.3d 1208,
1213 (10th Cir. 1999) (quoting United States v. Moore, 91 F.3d 96, 98 (10th Cir. 1966))
(cleaned up).
In her Recommendation, the magistrate judge found that even considering the
facts in the light most favorable to Plaintiff, “the no-knock warrant was justified.”
Dkt. 130 at p.18. In particular, she noted that because Defendants were tasked with
collecting contraband, knocking and announcing their presence would inhibit the
investigation of the crime. Id. Plaintiff objects to Judge Dominguez Braswell’s
characterization of the warrant as “no-knock” and contends she impermissibly relied
on a blanket exception to the knock-and-announce requirements for drug warrants.
Dkt. 134 at pp.8-10.
Although Plaintiff is correct that the warrant was a knock-and-announce
warrant (as opposed to no-knock), the difference does not require a different outcome
because the exigent circumstances on the scene would have justified dispensing with
the knock-and-announce principle altogether. Jenkins, 175 F.3d at 1214 (“exigent
circumstances such as the risk of destruction of evidence or the threat of physical
violence may justify” a no-knock entry); see also Richards v. Wisconsin, 520 U.S. 385,
394 (1997) (“[I]n each case, it is the duty of a court confronted with the question to
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determine whether the facts and circumstances of the particular entry justified
dispensing with the knock-and-announce requirement.”).
As the Court discussed above, in addition to the risks inherent in executing a
narcotics search warrant, an occupant leaving the apartment spotted the officers
while they prepared to execute the warrant, and the occupant retreated back inside.
Dkt. 46-2. This occupant’s exit and retreat after seeing the officers created an exigent
circumstance that not only supported Defendants waiting a shorter period between
knocking and entering, but also supported their entry without knocking to prevent
the occupants from destroying any narcotics present in the apartment. Richards, 520
U.S. 385, 394 (1997) (“[T]o justify a ‘no-knock’ entry, the police must have a
reasonable suspicion that knocking and announcing their presence, under the
particular circumstances, would be dangerous or futile, or that it would inhibit the
effective investigation of the crime by, for example, allowing the destruction of
evidence.”).
Finally, the Court rejects Plaintiff’s argument that Judge Dominguez Braswell
relied on a blanket exception for drug warrants because it mischaracterizes her
analysis. Defendants’ task of collecting contraband and drug paraphernalia was
simply a factor the magistrate judge weighed in reaching her conclusion that a noknock entry was justified. The Court overrules Plaintiff’s objections and adopts the
magistrate judge’s Recommendation that claim three be dismissed.
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C.
Unreasonable Seizure
Turning to Plaintiff’s claim for unreasonable seizure in violation of the Fourth
Amendment, he alleges that during the officer’s search of his home, he was
handcuffed, removed from his apartment in a state of undress, and placed in the back
of a patrol car. Dkt. 89 at p.11. He further alleges he was “not permitted to witness
(or aid in) in the search,” or permitted to “witness any inventory of items taken from
the premises.” Id. Judge Dominguez Braswell concluded, however, that Plaintiff’s
seizure was reasonable under the circumstances because the officers had probable
cause for his warrantless arrest and countervailing governmental interests related to
officer safety outweighed Plaintiff’s privacy rights. Dkt. 130 at pp.16-17.
In his objection, Plaintiff clarifies he is not challenging the warrantless arrest,
but rather, only his detention prior to the arrest. Dkt. 134 at pp.7-8. Specifically, as
the Court understands it, Plaintiff narrowly challenges the fact that the officers
removed him from his apartment. He contends that under Michigan v. Summers, 452
U.S. 692, 705 (1981), the officers were only entitled to detain him inside the premises
and that removing him to the patrol car violated the Fourth Amendment. The Court
disagrees.
“In Summers, the [Supreme] Court defined an important category of cases in
which detention is allowed without probable cause to arrest for a crime,” specifically,
detention specific to the execution of a search warrant. Bailey v. United States, 568
U.S. 186, 193 (2013). In its analysis, the Summers Court recognized three important
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law enforcement interests—officer safety, facilitating the completion of the search,
and preventing flight—that justified the detention of an occupant in the immediate
vicinity of the premises being searched. 452 U.S. at 702-703. Although “immediate
vicinity is narrowly defined,” United States v. Ramirez, 976 F.3d 946, 955 (9th Cir.
2020), Plaintiff has cited no case law for the proposition that this should be limited
to detaining individuals within the walls of the place to be searched, and the Court
could find none. The Court further concludes that such a restriction would undermine
the law enforcement interests identified by the Supreme Court in Summers that
justify the detention in the first place.
To be sure, in this case a total of seven occupants were removed from the
apartment, Dkt. 46-2 at p.9, and according to Plaintiff, there were over a dozen
officers in the apartment. Dkt. 134 at p.7. If the officers were forced to keep all seven
occupants inside, the crowding would likely hinder the search and require the officers
to divide their attention between searching for items listed in the warrant and
monitoring the detained. Such an outcome would clearly run counter to those
interests identified in Summers. Thus, the Court overrules Plaintiff’s objection and
concludes that detaining the occupants, including Plaintiff, outside of the apartment
in the parking lot did not offend the Fourth Amendment. See, e.g., Gomez v. United
States, 601 F. App’x 841, 847 (11th Cir. 2015) (under Summers the temporary
detention of defendant outside his residence while police were executing an arrest
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warrant for his father at the residence was permissible, where defendant was in the
immediate vicinity of the execution of the arrest warrant).
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*
For the reasons shared above, the Court OVERRULES Plaintiff’s Objections to
the Recommendation. The Court AFFIRMS and ADOPTS Judge Dominguez
Braswell’s Recommendation and ORDERS. Defendants’ Motions to Dismiss are
GRANTED as follows:
1. Plaintiff’s Claim One is dismissed without prejudice as barred by Heck v.
Humphrey, 512 U.S. 477 (1994).
2. Plaintiff’s Claims Two, Three, and Four are dismissed with prejudice in
their entirety. 3 Plaintiff has already amended his complaint twice and
based on the foregoing analysis, the Court concludes any further
amendments would be futile.
DATED: October 25, 2024.
Because Plaintiff failed to state a claim against any Defendant in his individual
capacity, the official capacity claims must also be dismissed. See City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no constitutional injury
at the hands of the individual police officer, the fact that the departmental
regulations might have authorized the use of constitutionally excessive force is quite
beside the point.”).
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BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge
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