United States District Court, D. Colorado
TSUTOMU SHIMOMURA, Plaintiff.
KENDRA CARLSON, an agent of the Transportation Security Administration, in her individual capacity, TERRY CATES, an agent of the Transportation Security Administration, in her individual capacity, PATTI ZELLER, an agent of the Transportation Security Administration, in her individual capacity, and WADE DAVIS, a Denver Police Department officer, in his individual capacity, Defendants
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For Tsutomu Shimomura, Plaintiff: Laura G. Kastetter, Ty Cheung Gee, Haddon, Morgan & Foreman, P.C., Denver, CO.
For Kendra (I) Carlson, an agent of the Transportation Security Administration, in her individual capacity, Terry (I) Cates, an agent of Transportation Security Administration, in his individual capacity, Patti (I) Zeller, an agent of the Transportation Security Administration, in her individual capacity, Defendants: Mark S. Pestal, U.S. Attorney's Office-Denver, Denver, CO.
For Wade (I) Davis, a Denver Police Department officer, in his individual capacity, Defendant: Andrew James Carafelli, Pryor Johnson Carney Karr Nixon, P.C., Greenwood Village, CO.
R. Brooke Jackson, United States District Judge.
This is a case about what started as a relatively minor incident in the Denver International Airport but, due I think to a momentary lapse of judgment by the participants, has grown into a federal court case in which serious constitutional principles are claimed to be at stake. It is before the Court on the defendants' motions to dismiss or for summary judgment. Although the Court does not necessarily condone all of their conduct, it grants the defendants' motions.
Tsutomu Shimomura alleges that on February 22, 2011 he was going through a security checkpoint at DIA when a TSA agent took his properly labeled 180cc bottle of prescription medication and used a sampling strip to test the bottle's contents for the presence of explosive materials. [ECF No. 1 at ¶ ¶ 10, 13]. He was concerned that touching the sampling strip to the dispensing mechanism on the bottle might have contaminated the medicine and created a risk to his health, so he inquired about the sterility and composition of the strip. Id. at ¶ 14. The agent was not able to answer his questions satisfactorily, so he asked to speak to her supervisor. Id. at ¶ ¶ 14-15.
TSA Agent Kendra Carlson, a supervisor, was summoned. Id. at ¶ 16. Mr. Shimomura expressed concern about contamination and informed Agent Carlson that the procedure did not follow proper TSA protocol. Id. The Complaint does not lay out the back and forth that followed, but one might imagine its temperature from the fact that a Denver Police Officer, Wade Davis, came to the scene and stood close by, observing everything that occurred upon and after his arrival. Mr. Shimomura was unhappy with the response he was getting--or not getting--from Agent Carlson and asked to speak to her supervisor, only to be rebuffed with the retort " I am the supervisor." Id. at ¶ 18.
The Complaint does not tell us how the contamination discussion ended, but it does suggest that the encounter reached the point where Agent Carlson ordered Mr. Shimomura to " get the hell" out of the area. Id. at ¶ 19. Mr. Shimomura commented that he needed to retrieve a computer bag still sitting in the bin. Agent Carlson retrieved it, but upon handing it to Mr. Shimomura, she allegedly again threatened to have him arrested, this time if his exit did not occur in " two seconds." Id. at ¶ 20. Mr. Shimomura said something about checking to make sure everything was there, causing Agent Carlson to take umbrage at what she perceived to be an accusation of stealing, and thereby setting off another round of spurned requests to speak to her supervisor.
Exasperated, Mr. Shimomura turned to Officer Davis, who up to that point had merely been standing by, and told him that he wanted to speak to Agent Carlson's supervisor. When Officer Davis indicated that he couldn't help, Mr. Shimomura copied down his name and badge number. That did not sit well. Officer Davis allegedly threatened to arrest Mr. Shimomura if he did not move in " two seconds." Id. at ¶ 21. And both Agent Carlson and Officer Davis " crowded" Mr. Shimomura in a threatening manner. Id.
But, all might still have ended well enough had it not been for what occurred next. Mr. Shimomura alleges that as he began walking away, pulling his roller bag behind him, Agent Carlson -- with Officer Davis at her side -- followed " closely and aggressively." Id. at ¶ 22. After taking a
few steps, Mr. Shimomura " paused," whereupon Agent Carlson walked into the bag, her right leg touching the bag's right corner. Id. Fortunately, from the Court's perspective at least, this part of the fray was captured on a security video. More on that later.
That was enough, according to Mr. Shimomura, to push Agent Carlson and Officer Davis over the edge. Agent Carlson accused Mr. Shimomura of assaulting her with the rolling bag. Officer Davis, claiming that he had witnessed an assault, directed Mr. Shimomura to sit on a bench in the screening area. He then huddled with Agent Carlson and two other TSA agents, Terry Cates and Patti Zeller, ostensibly to compare notes and get their stories straight. According to Mr. Shimomura, Officer Davis and Agent Carlson then decided to charge Mr. Shimomura with assault. Officer Davis served him with a criminal complaint. Each of the four conspirators allegedly prepared " coordinated" and " false statements supporting this decision." Id. at ¶ ¶ 30-38.
Mr. Shimomura claims that he was detained for approximately an hour and a half. By the time he was released from TSA and police custody he had missed his flight and had to buy a new ticket on a different flight.
The criminal complaint was dismissed after the prosecuting attorney saw the security footage. Indeed, although he accuses TSA of delaying disclosure of the video to him, editing key portions out, and providing no audio to go with it, he states that his lawyer obtained one of the video's key portions, i.e., a portion that establishes that defendants' assault allegations were false. The Court has been provided with a copy of the video and, because Mr. Shimomura has placed great reliance on it and has essentially incorporated it into his Complaint, I have taken a look at it. Having done so, I am not at all surprised that the D.A. dropped the criminal charge after he looked at it. It shows minor contact between the bag and Agent Carlson, at most, and lends no support to the charge that Mr. Shimomura intentionally or recklessly assaulted her.
With this factual background in mind, I turn to the task of trying to make some sense out of the variety of legal wrongs Mr. Shimomura claims to have suffered and the motions that want to make them all go away.
Mr. Shimomura claims that Defendants violated a number of his constitutional rights. In particular, he alleges that Defendants (1) arrested him in retaliation for exercising his First Amendment rights; (2) arrested him without probable cause in violation of the Fourth Amendment; (3) deprived him of liberty without due process of law in violation of the Fifth and Fourteenth Amendments; (4) took part in a civil conspiracy to deprive him of his civil rights in violation of 42 U.S.C. § 1983; and (5) aided and abetted each other in the commission of the civil rights violations.
Officer Davis has filed a Motion to Dismiss [ECF No. 10] as well as a Motion for Summary Judgment [ECF No. 42] effectively objecting to every one of Mr. Shimomura's claims. The three TSA Agents have filed a joint Motion to Dismiss [ECF No. 41] doing the same. The motions also make out claims for qualified immunity for each defendant.
I. TSA DEFENDANT'S MOTION TO DISMISS [ECF No. ...