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Derosier v. Balltrip

United States District Court, D. Colorado

March 8, 2016

LAWRENCE RAYMOND DEROSIER, Plaintiff,
v.
OFFICER KENNETH BALLTRIP, in his individual capacity, COMMANDER AARON SANCHEZ, in his individual and official capacity, and TOWN OF JOHNSTOWN, a government municipality, Defendants

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[Copyrighted Material Omitted]

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          For Lawrence Raymond Derosier, Plaintiff: Sarah Jay Schielke, Life & Liberty Law Office, Loveland, CO.

         For Kenneth Balltrip, Officer, in his individual capacity, Aaron Sanchez, Commander, in his official capacity, Town of Johnstown, a government municipality, Defendants: Cathy Havener Greer, William Thomas O'Connell, III, Wells, Anderson & Race, LLC, Denver, CO.

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         MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS

         John L. Kane, Senior United States District Judge.

         Introduction

         Exasperated with the Greeley Tribune's repeated littering of his yard despite his

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numerous complaints, Plaintiff Lawrence Derosier called the paper and suggested that he would " take a shot at" the next delivery person to visit his property. The next day, the Johnstown police arrested Plaintiff at his home for the crimes of menacing and telephone harassment. The charges were subsequently dropped, and Plaintiff now brings five 42 U.S.C. § 1983 claims for violation of the First and Fourth Amendment against the arresting officer, that officer's supervisor, and the Town of Johnston. The Defendants have moved to dismiss all of Plaintiff's claims on the grounds that they are barred by the doctrine of qualified immunity. For the reasons that follow, Defendants' motion is GRANTED IN PART and DENIED IN PART.

         Background

         Plaintiff, a resident of Johnstown, alleges that the Greely Tribune repeatedly placed an advertising circular called " The TribExtra" onto his yard. Doc. 12[1] at ¶ 15. Because the TribExtra would not always be secured by a rubber band, the pages littered Plaintiff's yard. Id. Over the course of two years, Plaintiff called the Greely Tribune multiple times and asked that they stop dumping the TribExtra on his property, but the deliveries continued. Id. at ¶ ¶ 16-17.

         On July 16, 2013, Plaintiff called the Greely Tribune and spoke with employee Brooke Brown. He again asked that the deliveries of the TribExtra be stopped and stated in pertinent part that " I want this to stop and I want an explanation for why it hasn't stopped . . . I've had it. The next guy who comes and throws that TribExtra onto my property, I'm going to take a shot at." Id. at ¶ 19. Brown asked if Plaintiff was " threatening her driver," and Plaintiff responded " [n]o, but I am telling you that this needs to stop." Id. at ¶ 20. Brown contacted the Johnstown Police Department and spoke with Defendant Kenneth Balltrip. Id. at ¶ 21. After speaking with Ms. Brown, Officer Balltrip had a conversation with Commander Sanchez and they agreed that there was probable cause to arrest Plaintiff for menacing and telephone harassment. Id. at ¶ 23. Officer Balltrip and another officer went to Plaintiff's home to arrest him, but he was not there. Id. at ¶ 24.

         On July 17, 2013, Officer Balltrip called Plaintiff and asked him to come down to the station. Id. at ¶ 25. Plaintiff declined to do so, and when asked by Officer Balltrip if he had threatened to shoot a courier for the Greely Tribune, Plaintiff said " he had not threatened to shoot anyone and that he did not even own a firearm." Id. After this phone call and another meeting with Commander Sanchez, Officer Balltrip and Officer Steven Bakovich[2] each took a squad car to Plaintiff's home and entered his property. Id. at ¶ ¶ 26-28. The officers banged on Plaintiff's front door, and Plaintiff opened it " just a crack" but refused to come outside. Id. at ¶ ¶ 29-30. Officer Balltrip then displayed his firearm and told Plaintiff " he had no choice," at which point Plaintiff was placed under arrest. Id. at ¶ 30. Plaintiff was held in Weld County Jail for twelve hours and was released on bond the following day. Id. at ¶ 32. On July 7, 2014, the Weld County District Attorney dropped the charges and closed the case. Id. at ¶ 34.

         On May 14, 2015, Plaintiff filed suit under 42 U.S.C. § 1983, alleging (1) a Fourth Amendment violation for false arrest (an arrest without probable cause) against Officers

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Balltrip and Commander Sanchez; (2) a First Amendment violation against Officers Balltrip and Commander Sanchez; (3) a Fourth Amendment violation for false arrest (imprisonment) against Officers Balltrip and Commander Sanchez; (4) a First and Fourth Amendment violation for unconstitutional custom or practice against Commander Sanchez and the Town of Johnstown; and (5) a First and Fourth Amendment violation for failure to train or supervise against Commander Sanchez and the Town of Johnstown. Doc. 12 at ¶ ¶ 36-87. Defendants have moved to dismiss all five claims on the grounds that they are barred by the doctrine of qualified immunity. Doc. 10.

         Legal ...


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