United States District Court, D. Colorado
[Copyrighted Material Omitted]
Lawrence Raymond Derosier, Plaintiff: Sarah Jay Schielke,
Life & Liberty Law Office, Loveland, CO.
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.
OPINION AND ORDER ON MOTION TO DISMISS
Kane, Senior United States District Judge.
with the Greeley Tribune's repeated littering of his yard
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.
a resident of Johnstown, alleges that the Greely Tribune
repeatedly placed an advertising circular called " The
TribExtra" onto his yard. Doc. 12 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.
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
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 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.
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
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.