APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 1:11-CV-02116-WJM-KMT).
Elizabeth L. Harris, Law Office of Elizabeth L. Harris, LLC, Denver, Colorado, for the Appellant.
Marc F. Colin, Bruno, Colin & Lowe, P.C., Denver, Colorado, for the Appellee.
Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
In 2009, Denver Police officers arrested Aaron Puller for his suspected involvement in a racially motivated attack on a man in downtown Denver. A state district court, without a hearing, dismissed the charges because it concluded that the affidavit of Detective Paul Baca, the officer who applied for and obtained the arrest warrant, had omitted material information and supplied false information that vitiated probable cause. Puller sought redress and sued Detective Baca under 42 U.S.C. § 1983. The federal district court concluded that qualified immunity shielded Detective Baca from liability and granted him summary judgment. We agree. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
In the summer of 2009, Detective Baca--a thirty-year veteran of the Denver Police Department--was investigating a string of about 25 violent robberies and assaults in the Lower Downtown area of Denver. His investigation revealed a pattern: groups of African-American males who were members or associates of various street gangs, targeted, attacked, and robbed intoxicated Caucasian males near closing time of downtown bars. One such
attack happened in the early hours of August 23, 2009. A group of African-American men attacked and robbed a Caucasian man who had just left a bar in downtown Denver. The victim told Detective Baca that eight to ten African-American males had confronted him. During the attack, the victim heard a woman yell, " Get that White Boy." J.A. at 50, 66, 116.
Detective Baca investigated this attack. He interviewed several people to learn who had participated in the attack. Detective Baca's efforts first led him to Alawn Smith. Smith told Baca that he was present at the August 23 attack. Smith told the Detective that " it was everybody's job to point out potential targets." J.A. at 123. Smith then said that the group had left a nightclub planning to assault someone, and after targeting the victim, attacked and robbed him.
Detective Baca later interviewed Keisha Parker. Parker told Detective Baca that she had witnessed six earlier attacks, where two of the victims were Hispanic and four were Caucasian. She said that she saw the group that attacked the victim on August 23, 2009. Parker recounted that she had seen several people " run up on this man, he was talking, and they just started beating him down." J.A. at 136 (Parker Interview, 1:00:43-1:00:51). Parker characterized the incident as an " attack." When Detective Baca pressed Parker for more details, Parker responded, " I ain't gonna lie, I was just a little tipsy, so I really didn't . . . I really wasn't . . . my mind wasn't thinking." J.A. at 136 (Parker Interview, 1:00:57-1:01:05). When Detective Baca showed Parker a picture of Puller, Parker said, " That's Stacks . . . . And I don't know nothing about him other than that day that he came over to my house with all them," referencing the day of the attack. Detective Campbell, another officer who was present at this interview, asked Parker, " And he was a Blood, you said?" Parker responded affirmatively, saying " Um hmm." J.A. at 136 (Parker Interview, 48:23-48:40).
Parker then discussed the events after the attack. She told Detective Baca that one of the assailants gave her a credit card (that she learned was from the victim) to buy various items at a nearby convenience store. Parker said that she knew that the credit card was from the attack that night, but that she could not remember the name on it or even the first letter of the name. When Parker asked the assailant about the credit card's origin, he told her that the group would " spray [her]" (with gunshots) if she told police. Right after that, Parker said that the assailant told her that, " in a matter of fact, we gonna come with you tonight." J.A. at 136 (Parker Interview, 1:14:20-1:14:45). Afterwards, Parker said that " [the group] came to my house with me." J.A. at 136 (Parker Interview, 1:22:53--1:23:02). She said that this made her " uncomfortable" and that the group refused to leave despite her requests. Parker said that, among others, Puller was with the group that followed her home. She said that Puller (and a couple others) would not leave because " they people is at work." J.A. at 136 (Parker Interview, 1:29:10-1:29:28). Detective Baca later asked Parker, " Did you see [Puller] involved in either of those fights?"  Parker softly responded, " Nah, nah, his grandma would kill him." J.A. at 136 (Parker Interview, 1:31:40-1:31:51). But this was not the recollection of an astute observer. By her own account, as mentioned, she recalled being " a little tipsy" and described
her mental condition as her " mind wasn't working." J.A. at 136 (Parker Interview, 1:05:30-1:05:45). All things considered, we cannot agree with Puller that Parker " unequivocally denied" Puller's involvement in the attack.
Later, Detective Baca and Detective Campbell interviewed Landae Woods-King, an active participant in the August 23 attack. Detective Campbell first showed Woods-King various pictures to find out who Woods-King knew. Next, Detective Campbell showed Woods-King a picture of Puller (who was wearing a red shirt in the picture). Woods-King told the detectives that he did not know who Puller was--that is, he couldn't identify him by name. Then Detectives Campbell and Baca asked Woods-King questions about the August 23 attack. Detective Campbell sorted through the pictures again for Woods-King to say which individuals were (or were not) present on the night of the attack. Woods-King again twice confirmed Puller's presence. First, Detective Campbell showed Puller's picture to Woods-King, who said, " Yep, he was there." J.A. at 138 (Woods-King Interview, pt.2, 1:15-1:18). Detective Campbell then listed all the people Woods-King said were present at the August 23 attack. As he named them, Detective Campbell said, " a guy in a red shirt with a goatee." Woods-King nodded in affirmance. J.A. at 138 (Woods-King Interview, pt.2, 3:44-3:47). Detective Campbell later asked Woods-King, " Who's in this group that's walking up there; approaching this guy? All of these people? Who's in the group that's approaching this guy?" J.A. at 138 (Woods-King Interview, pt.2, 7:00--7:13). In response, Woods-King separated the pictures of various individuals into those who approached and those who did not. Woods-King put Puller's picture with the group of people who had been approaching the victim. Detective Campbell then reviewed the pictures Woods-King separated to confirm who was in the group that approached the victim. He then said to Woods-King, " So the group that's approaching this guy at this time . . . [lists names], guy in the red shirt, [lists more names]." J.A. at 138 (Woods-King Interview, pt.2, 7:37-7:58). Woods-King confirmed that information with Detective Campbell, adding that there were more people in the group that night than those whose pictures he identified.
Based on all of this information, Detective Baca sought an arrest warrant for Puller. He believed that he had probable cause to arrest Puller for both aggravated robbery and a bias-motivated crime under Colorado state law. Under Colorado law, a person commits a bias-motivated crime:
If, with the intent to intimidate or harass another person because of that person's actual or perceived race . . . he or she:
(a) Knowingly causes bodily injury to another person; or
(b) By words or conduct, knowingly places another person in fear of imminent lawless action directed at that person or that person's property and such words or conduct ...