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McAllister v. Kellogg

United States District Court, D. Colorado

September 17, 2014

DETECTIVE MICHAEL S. KELLOGG, in his individual and official capacities, POLICE OFFICER MICHAEL REIFSTECK, in his individual and official capacities, POLICE OFFICER ROBERT CASH, in his individual and official capacities, and THE CITY AND COUNTY OF DENVER, a municipality, Defendants.



Plaintiff Sean McAllister alleges that his constitutional rights were violated when Denver police officers included materially misleading facts in an arrest affidavit that served as the basis of a warrant for his arrest. He further alleges that this individual incident is part of a larger, systemic problem at the Denver Police Department.

Plaintiff might be able to plead a plausible case that the affidavit is materially misleading, but he needs to do so by alleging more specific facts. Further, his allegation that this incident is emblematic of a systemic problem is wholly insufficient: it will be considered only if Plaintiff provides more factual support. For these reasons the Court grants Defendants' motion to dismiss.


The events giving rise to this case began on October 12, 2011, when Plaintiff was arrested on suspicion of a domestic assault of his then-wife, Hilary McAllister.[2] The assault allegedly occurred at the couple's residence located at 20 Bridge Street in Breckenridge, Summit County, Colorado. Plaintiff remained in custody for two days following his arrest. When he was released on October 14, a judge in Summit County issued a mandatory protection order against him. (Doc. # 11, ¶¶ 10-11.)

The October 14 protection order lists Hilary McAllister as the only "protected party" and contains three provisions relevant here: (1) Plaintiff is prohibited from "contacting or directly or indirectly communicating with the victim(s)"; (2) Plaintiff "[s]hall vacate the home of the victim(s), stay away from the home of the victim(s), and stay away from any other location the victim(s) is/are likely to be found;" and (3) Plaintiff "may have contact [with the victim] through [a third-party] to schedule visitation w[ith the] children." (Doc. # 19 at 16 (capitalization omitted).)

When Plaintiff was released from jail, he went to an apartment located at 1055 N. Sherman Street in Denver, where he encountered his two-year-old son and seventeen-year-old stepdaughter, Madisonn Welch. When Plaintiff arrived, Ms. Welch left the apartment with Plaintiff's son and reported the encounter to Ms. McAllister, who in turn called the police and alleged Plaintiff had violated the terms of the protection order. (Doc. # 1, ¶¶ 11-12.)

In response to Ms. McAllister's call two police officers interviewed her at the 1055 N. Sherman Street address. Both officers-now defendants in this suit-filed reports of their interviews on October 14.

One report came from Officer Michael Reifsteck. It contains the recent narrative of Plaintiff's domestic troubles and Ms. Welch's encounter with Plaintiff. It then explains a number of facts about the McAllisters' rather complicated living situation before the alleged domestic assault. In particular, it relates: (1) the McAllisters' main residence had been in Breckenridge; (2) they had a "shared apartment" at 1055 N. Sherman Street; and (3) Plaintiff leased a second apartment at 1250 N. Sherman Street, where he stayed after he started having relationship problems with Ms. McAllister. (Doc. # 19 at 23-24.)

Officer Reifsteck's report also reveals contradictory representations about the scope of the protection order as of October 14. On the one hand, Officer Reifsteck reported that Ms. McAllister was "under the firm belief that her kids are included in the restraining order"-a belief that was shared by a representative of Summit County Social Services, who was contacted by Officer Reifsteck and was similarly "under the assumption that the kids are included in the restraining order." On the other hand, Officer Reifsteck's report noted that his police car's data terminal revealed that Plaintiff "may have visitation with the children." (Doc. # 19 at 24.)

Officer Robert Cash provided back-up to Officer Reifsteck and turned in a second report of his interview with Ms. McAllister. Like Officer Reifsteck, Officer Cash described the domestic violence allegation, along with Ms. Welch's encounter with Plaintiff. At the same time, although left unmentioned by either party, Officer Cash's report is somewhat in tension with Officer Reifsteck's as to who was living where on October 14: although Officer Reifsteck's report lists 1055 N. Sherman Street as the location of McAllister's shared apartment, Officer Cash states that the 1055 N. Sherman Street is Plaintiff's "primary residence." Officer Cash also noted that Plaintiff resided in a different apartment but did state "these parties share three residences." Officer Cash provided no further information on the protection-order violation, made no reference to the terminal report or witness testimony related by Officer Reifsteck, and simply concluded "it was unknown if a [protective order] violation actually occurred at this point." (Doc. # 19 at 25.)

From the record presented here, it does not appear that either Officer Reifsteck or Officer Cash had further duties related to the investigation of this incident. Nevertheless, on October 16, Detective Michael Kellogg, the third individual defendant named in this suit, conducted a follow-up investigation that relied in part on the officers' reports. (Doc. # 19 at 26.)

On October 18, while Detective Kellogg was investigating the alleged violation in Denver, Summit County prosecutors moved to modify the protection order so that it would include as "protected parties" Ms. Welch and the two children Plaintiff had fathered with Ms. McAllister. (Doc. # 19 at 18-19.) That same day, a Summit County judge granted the protection order in part and denied it in part: in a handwritten order, the judge added Ms. Welch but declined to add Plaintiff's biological children. ( Id. at 21.)

On October 24, Detective Kellogg submitted an affidavit in support of an arrest warrant for Plaintiff for a "protection order violation." The affidavit recounts the same background information about the domestic violence allegations and Plaintiff's presence at 1055 N. Sherman Street. The affidavit also noted, that based on the police reports of Officers Reifsteck and Cash, Ms. McAllister "believed" the protection order included her children, but that "Court notes" state that Plaintiff "may have contact [with the ...

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