Martinez v. Harroun et al

Filing 71

ORDER denying 62 Motion for Reconsideration. By Judge Charlotte N. Sweeney on 1/6/25.(jdyne)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:23-cv-01241-CNS-SBP
WYOMA MARTINEZ,
Plaintiff,
v.
DOUGLAS HARROUN, individually, and
CITY OF AURORA, COLORADO, a municipality,
Defendants.

ORDER

Before the Court is Defendant City of Aurora’s Motion to Reconsider Order
Denying Motion to Dismiss. ECF No. 62. For the following reasons, the motion is DENIED.
I. BACKGROUND 1
A. Factual Background
On January 11, 2023, Plaintiff Wyoma Martinez was attacked by Douglas Harroun,
then an Aurora Police Department officer who had recently been placed on administrative
leave. ECF No. 54, ¶ 1. The administrative leave memorandum that Defendant Harroun
signed stated, “You will not take any action as a sworn police officer.” ECF No. 17-1.

1 The Court’s order denying the motion to dismiss, ECF No. 60, includes a more detailed background. The

Court will only repeat the factual allegations relevant to the motion for reconsideration.

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During the attack, Defendant Harroun repeatedly identified himself as a law
enforcement officer. Id., ¶¶ 30, 31, 33, 37, 48. He also flashed his badge and repeatedly
provided his badge number. Id., ¶¶ 33, 50. Ms. Martinez alleges that Defendant Harroun
acted “under the APD’s Off-Duty Directive,” which authorizes officers to use discretion to
“take official police action” to “protect life” and “prevent bodily injury,” and authorizes
officers to use force to effectuate an arrest. Id. ¶¶ 46, 59, 72. Ms. Martinez also alleges
that Defendant Harroun retained his badge after he was placed on leave, along with “all
the attending powers and authorities that come with it, including the authority and ability
to detain civilians, effectuate an arrest, and use force while off-duty.” Id., ¶ 109.
B. Procedural Background
Plaintiff filed her first amended complaint on July 21, 2023. ECF No. 8. On
September 22, 2023, the City of Aurora (the City) filed a motion to dismiss the first
amended complaint. ECF No. 17. The Court held a hearing for oral argument on February
9, 2024 and granted the motion to dismiss. ECF No. 52. Plaintiff filed a second amended
complaint on February 16, 2024. ECF No. 54. The City moved to dismiss the second
amended complaint on February 29, 2024. ECF No. 55. The City submitted a notice of
supplemental authority on August 9, 2024, discussing the Supreme Court decision in
Lindke v. Freed, 601 U.S. 187 (2024). ECF No. 59. The Court denied the motion to
dismiss on September 18, 2024. ECF No. 60.
On October 7, 2024, the City filed the present motion to reconsider. ECF No. 62.

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II. STANDARD OF REVIEW
The Federal Rules of Civil Procedure do not provide for a motion for
reconsideration. Hatfield v. Bd. of Cnty. Comm’rs for Converse Cnty., 52 F.3d 858, 861
(10th Cir. 1995). However, district courts have plenary power to revisit and amend
interlocutory orders as justice requires. Paramount Pictures Corp. v. Thompson Theatres,
Inc., 621 F.2d 1088, 1090 (10th Cir.1980). Fed. R. Civ. P 54(b) provides that “any order
or other decision . . . that adjudicates fewer than all the claims . . . may be revised at any
time before the entry of a judgment adjudicating all the claims.” Carbajal v. Lucio, 832
Fed. Appx. 557, 569 (10th Cir. 2020); Logsdon v. United States Marshal Service, 91 F.4th
1352, 1361 (10th Cir. 2024) (“every order short of a final decree is subject to reopening
at the discretion of the district judge.”). The denial of the City’s motion to dismiss was
entered before final judgment issued and thus is subject to reconsideration by this Court.
There are three main grounds that may justify reconsideration: “(1) an intervening
change in controlling law, (2) new evidence previously unavailable, and (3) the need to
correct clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). Stated differently, “a motion for reconsideration is
appropriate where the court has misapprehended the facts, a party’s position, or the
controlling law.” Id. Such relief is “extraordinary and may only be granted in exceptional
circumstances.” Schmier v. McDonald’s LLC, 569 F.3d 1240, 1243 (10th Cir. 2009)
(citation and quotations omitted).

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III. DISCUSSION
The Court has carefully considered the City’s motion and revisits its order in light
of Lindke. For the following reasons, the Court denies the City’s motion to reconsider and
affirms its order denying the City’s motion to dismiss.
The City argues that the Court misapprehended the controlling law by not
analyzing the “acting under color of law” prong of § 1983 using the test laid out in Lindke.
However, the Court concludes that Lindke does not compel a different result.
Lindke established a two-part test for when a public official’s social media activity
constitutes state action under § 1983: if the official “(1) possessed actual authority to
speak on the State’s behalf, and (2) purported to exercise that authority when he spoke
on social media.” Lindke, 601 U.S. at 188. The Supreme Court explained that the
“appearance and function of the social-media activity are relevant at the second step, but
they cannot make up for a lack of state authority at the first.” Id.
The City argues that Lindke established that the first step in any “color of law”
analysis is whether the actor had the authority to act on behalf of the state, and since the
Court determined that Defendant Harroun lacked the actual authority to use force in that
situation (since he was on leave and was told not to act as a police officer), the analysis
should end there. See ECF No. 62.
However, the Court does not believe that its prior analysis conflicts with the
analysis required in Lindke. Rather, due to different contexts, the framing of the analysis
is different. Lindke concerns a public official’s speech on social media. That context is
substantively distinct from a police officer’s use of force. In the context of speech on social
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media, the Supreme Court balanced both parties’ opposing free speech rights: the
plaintiff’s First Amendment right to comment on a public official’s social media post with
the public official’s First Amendment right to curate his social media feed (a form of
speech). Here, in contrast, Defendant Harroun does not have a competing constitutional
right that needs to be balanced with Ms. Martinez’s right to be free from excessive force.
Whether an official had actual authority to speak on behalf of the state on a certain topic
is a different question than whether a police officer had the actual authority to use force
on behalf of the state.
Since Lindke, most courts have generally cited Lindke for the well-settled
proposition that Section 1983 only applies to state action. See, e.g., Martinez v. Colville,
No. 24-1935, 2024 WL 4234628, at *1 (3d Cir. Sept. 19, 2024); Burk v. Townsend, No.
CV-22-01967-PHX-DMF, 2024 WL 3973764, at *8 (D. Ariz. Aug. 22, 2024); Mancuso v.
Sw. Louisiana Charter Acad. Found. Inc., No. 2:23-CV-01642, 2024 WL 4096436, at *3
(W.D. La. Aug. 21, 2024), report and recommendation adopted, No. 2:23-CV-01642, 2024
WL 4094288 (W.D. La. Sept. 5, 2024); Smith v. Tulane Univ., No. CV 24-392, 2024 WL
3606863, at *1 (E.D. La. July 31, 2024). Those cases that have cited Lindke’s two-part
state action test have clearly grappled with how to apply the test outside the context of a
public official’s speech. See, e.g., Slone v. Racer, No. 3:23-0636, 2024 WL 4314898, at
*4 (S.D.W. Va. Sept. 26, 2024) (finding that off-duty deputy was acting under color of law
when he struck a pedestrian while speeding to refuel his police vehicle after his shift
ended); Mackey v. Rising, 106 F.4th 552 (6th Cir. 2024) (holding that commissioner’s
purported threat did not constitute state action).
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The Sixth Circuit’s analysis of Lindke is especially helpful because it analyzed
Lindke’s holding in light of prior jurisprudence on police officers’ use of force. The Mackey
court described the inquiry as:
Did a statute, ordinance, regulation, custom, or usage give the
defendant the “actual” or “state” authority to engage in the
relevant conduct? This element requires courts to identify the
“nature of the act” that the plaintiff challenges, and to compare
that act with the state-assigned “responsibilities” of the official
who committed it. The state official possesses the authority to
take a challenged action only if the action meaningfully relates
to the official’s “governmental status” or the “performance of
his duties.”
Mackey, 106 F. 4th at 559 (citing Lindke, 601 U.S. at 199).
The Sixth Circuit recognized the difficulty of distinguishing the “misuse of authority
from the absence of authority,” especially when the challenged conduct—for instance,
excessive use of force—tends to be outside the scope of delegated authority (reasonable
use of force). Id. The proper question is “whether the State has delegated
the general ‘type of authority’ that an official exercised.” Id. at 560. In Mackey, the court
found that the defendant was not acting under color of law when he threatened a
community member. The defendant “served as a legislator, not a police officer. The City
[] did not grant [the defendant] any ‘authority’ to use (or threaten) physical force on its
behalf. And because the City ‘did not entrust’ [him] with this power, his alleged ‘misuse’
of the power cannot qualify as state action.” Id. at 555.
Here, the City did grant Defendant Harroun the general authority to use physical
force on its behalf by making him a police officer and granting him his badge in the first
place, thus delegating to him “the power to wield the State’s monopoly on the use of
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force.” Id. at 562. The question is whether he retained any of that authority at the time of
the challenged action.
In making this determination, the factors in Dry are helpful and are consistent with
the Lindke framework. The Court interprets the objective indicia and subjective belief
factors as analyzing whether the State granted authority to the actor, and what the scope
of that authority is, to address whether the officer was misusing delegated authority or
acting without authority at all. The “actual authority” factor in Dry goes to whether the
activity was actually within the scope of the delegation. The Sixth Circuit similarly
interpreted prior opinions analyzing “apparent duty” and “ostensible state authority” to be
consistent with Lindke and to “cover fact patterns when an official exercises state
authority but exceeds the scope of the delegation.” Mackey, 106 F. 4th at 560. The Sixth
Circuit affirmed prior holdings that “the police engaged in state action when they purported
to exercise law-enforcement powers.” Id. As the Court noted in its prior order, the Dry
factors merely illustrate the central inquiry: “whether the individual possesses state
authority and purports to act under it.” Rossiter v. Robinson, 716 F. Supp. 2d 1018, 1024–
25 (D. Colo. 2010) (citing David v. City & Cnty. of Denver, 101 F.3d 1344, 1352–53 (10th
Cir. 1996)). This inquiry remains the same after Lindke.
The Court affirms its analysis using the Lindke framing. Plaintiff must point to a
source delegating the power of the state to Defendant Harroun through a statute,
regulation, custom, or usage. Lindke, 601 U.S. at 199. He cannot “conjure the power of
the State through his own efforts.” Id. Here, Plaintiff points to a regulation (the off-duty
directive) and to a custom (allowing officers on administrative leave to retain their
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badges). These are not Defendant Harroun’s own efforts. So the question is: did the offduty directives and Defendant Harroun’s badge “vest” Defendant Harroun with the
authority to use force while on administrative leave? In other words, did the directives and
the badge delegate some actual state authority, even if Defendant Harroun’s actions
clearly exceeded the scope of that authority? Plaintiff plausibly pleaded that they did.
Plaintiff plausibly alleged that the badge is itself a form of delegated authority
because it symbolizes the authority that a person has to act as a police officer. The
custom of officers receiving their badges upon receiving this power, and displaying their
badges when using their police power, plausibly demonstrates that the City did not fully
withdraw its delegation of that power. Additionally, the off-duty directive is ambiguous as
to whether it applies to officers who are on leave and so also plausibly grants some actual
authority for officers on leave to still act as officers. As alleged, Defendant Harroun
plausibly subjectively believed that he was acting pursuant to the off-duty directive—in
other words, he believed that the off-duty directive applied to him and granted him the
authority to use force when performing police duties, such as when arresting someone.
This belief is plausible evidence of the scope of the grant of actual authority.
At this stage, Plaintiff plausibly pleaded that Defendant Harroun retaining his
badge and the ambiguity of the off-duty policy were grants of authority to Defendant
Harroun. Notably, the Court will revisit this question on summary judgment once this issue
is developed through discovery. At this stage, Plaintiff has plausibly alleged that the City
delegated actual authority to Defendant Harroun such that he was acting under color of
law.
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IV. CONCLUSION
Because Lindke does not change the Court’s conclusion that Defendant Harroun
was plausibly acting under color of law, the City’s motion to reconsider, ECF No. 62, is
DENIED.
DATED this 6th day of January 2025.
BY
COURT:
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