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Fischer v. Klescewski

United States District Court, D. Colorado

March 22, 2017

CHRISTOPHER FISCHER; JESSICA FISCHER; M.F. (by and through her next friend Jessica Fischer); and T.F. (by and through his next friend Jessica Fischer), Plaintiffs,
DREW KLESCEWSKI; NICHOLE BACKUS; H&M HENNES & MAURITZ LP (“H&M”); OFFICER JOSH VAUGHN, Broomfield Police Department (sued in his personal capacity for damages); OFFICER MICHAEL DEEDON, Broomfield Police Department (sued in his personal capacity for damages); OFFICER JEREMY EHRLICH, Broomfield Police Department (sued in his personal capacity for damages); and SERGEANT HEIDI WALTS, Broomfield Police Department (sued in her personal capacity for damages); Defendants.



         Plaintiffs Christopher and Jessica Fischer, along with their children M.F. and T.F. (collectively, the “Fischers”), bring this action against two groups of Defendants: the “H&M Defendants, ” comprising H&M Hennes & Mauritz LP and two of its employees, Drew Klescewski and Nicole Backus; and the “Broomfield Defendants, ” comprising Josh Vaughn, Michael Deedon, Jeremy Ehrlich, and Heidi Walts, all of whom are members of the Broomfield Police Department. The Fischers claim that these various Defendants' actions resulted in false arrest, malicious prosecution, and related injuries, all flowing from an incident in which Christopher Fischer referred to H&M store manager Drew Klescewski as an “asshole”-once or multiple times, to Klescewski's face or not, depending on whose story one believes-because Klescewski allegedly behaved insensitively when Jessica Fischer slipped and fell inside an H&M store.

         Currently before the Court is the Broomfield Defendants' Amended Motion for Summary Judgment (ECF No. 80) and the H&M Defendants' Motion for Summary Judgment (ECF No. 81). For the reasons explained below, the Court grants the Broomfield Defendants' motion in full. As for the H&M Defendants' motion, the Court is frankly loathe to spend a week of its and a jury's life determining the number of times Christopher Fischer said “asshole, ” but the Court nonetheless finds that this and similar questions of fact prevent summary judgment on the Fischers' claims for malicious prosecution and exemplary damages. The Court will, however, grant the H&M Defendants' motion with respect to the Fischers' claim for intentional infliction of emotional distress.


         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

         II. FACTS

         This case revolves almost entirely around an incident that took place on the evening of December 14, 2014, at the H&M clothing store in Broomfield's Flatirons Crossing Mall. The following facts are undisputed unless otherwise noted.[1]

         A. The Fischers' First Encounter with Klescewski

         The Fischers arrived at the mall a little after 6:00 on the evening in question and apparently went directly to H&M, entering the store through an exterior entryway. (See ECF No. 81 at 3, ¶¶ 4-5.) It had been snowing earlier that day, so the ground outside was wet and someone at H&M had placed a “wet floor” caution sign at the entrance of the store, although the parties dispute whether this sign was easily visible to entering patrons. (Id. ¶¶ 2-3.)[2] In any event, Jessica Fischer, while carrying her son T.F., slipped and fell upon entering the H&M. (Id. ¶ 4.)

         The Fischers then approached a nearby employee-who turned out to be Defendant Drew Klescewski (“Klescewski”)-and informed him of the incident. (Id. ¶ 6.) The Fischers claim that Klescewski reacted apathetically and dismissively, and was “smirking” when he told the Fischers that H&M officials would not permit him to put a rug down at the store's entrance. (Id. ¶¶ 8-10.) Jessica then remembers her husband, Christopher, making a sarcastic comment to the effect of, “‘Wow, that's amazing customer service' or something like that.” (ECF No. 99-1 at 213.)

         B. The Confrontation at the “Cash Point”

         The Fischers then walked to the cash register area-which all parties dub the “cash point”-and asked a different employee if they could speak with the manager. (ECF No. 81 at 4, ¶ 15.) The employee summoned the manager, who turned out to be Klescewski. (Id.) The ensuing exchange between Klescewski and the Fischers near the cash point is one of the focal points of the parties' dispute.

         According to Klescewski and another H&M employee who was standing behind the cash registers, Defendant Nichole Backus (“Backus”), Christopher Fischer became red in the face, had throbbing neck veins, puffed out his chest, and advanced toward Klescewski in an intimidating manner, while Jessica Fischer began yelling. (Id. ¶¶ 16-20.) The Fischers deny all of this, pointing to the security camera footage (their Exhibit C). Unfortunately, that footage was shot from far away and at a poor angle. Without the Fischers' explanation (ECF No. 103 at 2), the Court would never be able to tell who was who and what is allegedly going on, given that the interaction in question is mostly obscured by a clothing rack and the only visible movements are two (or potentially three) pairs of legs seen from mid-thigh downward. Moreover, everyone in question was wearing black pants, or pants that look black on the security footage. However, the Fischers claim that an individual wearing gray shoes was Christopher Fischer-a claim supported by other video segments-and that gray-shod individual is seen backing away from the other individual (allegedly Klescewski) at least four times, rather than advancing toward him.

         As for words spoken during this encounter at the cash point, Christopher Fischer asked to speak to a different manager but Klescewski stated that he was the manager with whom the Fischers needed to speak. (ECF No. 81 at 4, ¶ 22.) Jessica Fischer challenged Klescewski on his claim that H&M would not permit him to put a rug at the front entrance. (Id. ¶ 23.) Klescewski again stated that he did not have authority to put down the rug, and Christopher Fischer perceived Klescewski's tone of voice as “snarky” when he said this. (Id. ¶¶ 23-24.) Klescewski says that Fischer twice called him both an “asshole” and a “jerk.” (Id. at 5, ¶ 26.) The Fischers claim that Christopher only used the word “asshole” once, and that it was made in the context of a comment to his wife: “Mr. Fisher [sic] looked over at his wife and said: ‘Wow, this guy's an asshole.'” (ECF No. 97 at 3.) Klescewski was nonetheless only one or two feet away when these words were spoken. (ECF No. 81 at 5, ¶ 31.) Klescewski then said, “If you talk like that in my store, I'm going to have to ask you to leave or I'm going to call the police, ” to which Christopher Fischer responded in a raised voice, “Maybe you should call the police.” (Id. ¶ 28.)

         Around this point, M.F. and T.F. left the store and entered the mall proper, unbeknownst to their parents. (ECF No. 80 at 5, ¶ 6.)[3] Also around this time, Klescewski moved away from the Fischers and went behind the register counter, while another store supervisor or manager, Taylor Winter-Martinez, approached the Fischer parents and asked whether she could do anything to help. (Id. at 2, ¶ 1; id. at 5, ¶ 33.) The Fischers reported Jessica's slip-and-fall. (Id.) While this conversation was ongoing, Klescewski approached Backus (still behind the register counter) and can be seen on the surveillance video saying something to her, after which Backus dialed 911. (Id. ¶ 35.) Apparently as that call was going through, the Fischers agreed to fill out an incident report for Winter-Martinez, and Winter-Martinez then left that area of the store to retrieve an incident report form. (Id. ¶¶ 33-34.)

         C. Backus's 911 Call and the Police's Arrival[4]

         Meanwhile, the 911 dispatcher had picked up Backus's call and Backus reported “a customer that is getting really belligerent with one of our managers and yelling at them [sic].” By this time, Christopher Fischer had left the store, apparently to find his children, and Jessica Fischer started walking to the back of the store, where Winter-Martinez had gone. Backus reported to the 911 dispatcher that Christopher Fischer was “swearing at our manager and yelling really loudly, and kind of making a scene.” The dispatcher then asked, “What's he mad about, do you know?” Backus responded, “No, I think he's mad about one of the signs or something . . . . He's yelling about, ‘oh, there's false advertising' or something, ‘I'm gonna sue you, ' ‘you're an a-hole, ' stuff like that.”

         The 911 dispatcher inquired, “Is he still there?” In a tentative tone of voice, Backus replied, “I think he went to the front of the store, ” and then put down the phone to contact Klescewski through a handheld radio: “Drew, is that guy still in the store?” Klescewski radioed back a non-answer: “We're going to fill out an incident report for the lady [Jessica Fischer].” Backus then said something to Klescewski about “sending someone over” or “sending some people over”-possibly referring to the Broomfield Police Department, but the audio is very difficult to understand. Backus then picked up the telephone and told the 911 operator, “Yeah, they're hanging out in the front of the store. They're still making a ruckus.” In fact, Christopher had left the store by this time and Jessica was in the back of the store, pacing and apparently waiting for Winter-Martinez to return with the incident form-although Jessica later made her way back to the front of the store to examine the area where she slipped.

         Defendant Michael Deedon (“Deedon”), a Broomfield police officer, approached the exterior of the store about this time. As he arrived, the 911 dispatcher asked Backus, “Are you able to see them [the Fischers] from your, from your location?” Backus answered, “I can't, but my manager is watching him on the camera.” Nothing in the record supports this answer.

         The 911 dispatcher then said that some officers should arrive shortly-and the video shows that Deedon was in fact in the store by then.

         D. Christopher's Arrest

         The security camera footage becomes almost useless at this point, as none of the ensuing material events is visible (with one partial exception, described below). However, it appears undisputed that Deedon and two other defendants-Broomfield police officers Josh Vaughn (“Vaughn”) and Jeremy Ehrlich (“Ehrlich”)-encountered Jessica Fischer somewhere near the cash point less than a minute after Backus put the 911 dispatcher on hold. These officers had received a report that “a male and female customer were making a scene. The man was about 6 feet tall with brown hair. The male was belligerent and swearing at the manager.” (ECF No. 80 at 5, ¶ 3 (citations omitted).) Deedon claims that he asked Jessica to help him find her husband. (Id. at 6, ¶ 8.) Jessica denies that Deedon ever made such a request. (ECF No. 98 at 2, ¶ 8.) For unknown reasons, however, Jessica volunteered to the police that Christopher had said to her, “‘Wow, this guy [Klescewski] is an asshole, ' or something to that effect.” (ECF No. 80 at 6, ¶ 9.) Around the same time, Klescewski himself spoke with Deedon and reported that “he [had been] called an asshole and a jerk sev eral times and that he felt physically threatened by Mr. Fischer.” (Id. ¶ 10.)

         Ehrlich must have heard at least Jessica's report of Christopher's “asshole” statement because he soon located Christopher a little ways outside the H&M store, in the mall itself, and informed him that “Mrs. Fischer said he called Mr. Klescewski an asshole.” (ECF No. 98 at 3, ¶ 13; see also ECF No. 80 at 6, ¶ 12.) Christopher claims that he clarified to Ehrlich that his comment had been made to his wife, although referring to Klescewski. (ECF No. 98 at 3 ¶ 13.) Christopher refused to provide any information to Ehrlich about himself other than his first name, refused to provide identification, and eventually refused to answer any questions at all. (ECF No. 80 at 6-7, ¶¶ 12, 15-16.)

         Although the record does not specify when, Deedon eventually joined this interaction and decided to arrest Christopher under Colorado's misdemeanor harassment statute, discussed further in Part III.B.2, below. (Id. at 7, ¶ 17.) Deedon believed he had probable cause at least based on what he had learned from the 911 dispatcher and from Klescewski. (Id.)[5]

         At the time of Christopher's arrest, M.F. and T.F. had been with him. (Id. at 8, ¶ 19.) A fourth Broomfield officer, Defendant Heidi Walts (“Walts”), had appeared by that point and began escorting the children back to Jessica Fischer inside the H&M store. (Id.)

         E. Jessica's Detention

         By this time, Winter-Martinez had rejoined Jessica Fischer inside the H&M store with an incident report for Jessica to fill out, but Jessica no longer wished to submit a report. (Id. ¶ 20.) She says she changed her mind in this regard “[a]fter it became clear to [her] that the police were not there to help, that her husband was taken into custody and she was being treated like a suspect.” (ECF No. 98 at 4, ¶ 20.)

         Jessica instead told Vaughn-the police officer who apparently stayed with Jessica while Ehrlich and Deedon went out to speak with Christopher-that she wanted to call “her police officer friend.” (ECF No. 80 at 8, ¶ 21.) Vaughn told her that “he could not have her using her phone.” (Id. ¶ 22.) Vaughn did not want Jessica using her phone at that time “based on a training he had received about an officer who was injured when a person on scene used their phone to text someone who later arrived at the scene and ran the officer over with the vehicle.” (Id.)[6]

         Vaughn asked Jessica to surrender her phone, Jessica refused, and then Vaughn reached to take Jessica's phone out of her hand, telling her to “stop resisting.” (Id. ¶¶ 23-24.) Some sort of scuffle ensued, about which the parties have their own stories which diverge from each other and from the short segment of security camera footage that shows the scuffle. The Broomfield Defendants simply assert that Jessica and Vaughn both “backed into a nearby display.” (Id. at 9, ¶ 25.) The Fischers, by contrast, say that Vaughn grabbed Jessica's hands, “started twisting, ” and “kept pushing [Jessica] back until she fell into a collection box and knocked it over.” (ECF No. 98 at 5, ¶ 25.) The Fischers claim that their story is “clearly depict[ed]” in the security camera footage (id.), but the footage actually shows Vaughn slowly pushing Jessica backward in an almost dance-like pose, with Vaughn's left hand holding Jessica's right, and Vaughn's right hand on Jessica's left upper arm or shoulder. (ECF No. 83, Video Clip 2.) Some sort of container, perhaps less than waist-height, is behind Jessica and being pushed backward with her, but then it is pushed off screen. Jessica never falls into anything.

         The scuffle ended when Vaughn succeeded in taking the phone away from Jessica; and, almost simultaneously, Walts arrived and immediately grabbed Jessica from behind to place her in handcuffs. (See ECF No. 80 at 9, ¶¶ 26-27.) Walts says that she took this action “to ensure officer safety and maintain the investigation.” (Id. ¶ 26.) Ehrlich, Vaughn, and Walts then guided Jessica and her children to “the Community Room of the mall, ” where they removed Jessica's handcuffs. (Id. ¶¶ 29-30.) No party describes this “Community Room” or points the Court to evidence of the length of time that Jessica and her children spent there, [7] but Jessica was never charged with any crime. (Id. ¶ 31.)

         F. Disposition of the Charge Against Christopher Fischer

         Formal court proceedings against Christopher Fischer on his harassment charge were instituted by Deedon through a misdemeanor summons and complaint. (ECF No. 98 at 8, ¶ 5.) A Seventeenth Judicial District prosecutor, Candyce Choi Cline (“Cline”), was assigned to the case. (ECF No. 80-9 ¶ 2.) Cline had no contact with any of the Broomfield Defendants or the H&M Defendants while investigating the case. (ECF No. 81 at 8, ¶ 59; ECF No. 80 at 10, ¶ 34.) She eventually dismissed the harassment charge, “but not for lack of probable cause.” (Id. ¶ 33.) Rather, “the decision was made to dismiss the case on the grounds that there was no reasonable likelihood of conviction at trial given that there was a question as to whether the charge against Mr. Fischer could be proven beyond a reasonable doubt.” (ECF No. 80-9 ¶ 5; see also ECF No. 81 at 8, ¶ 60.)

         G. Effect on the Fischers

         The Fischers claim “profound emotional distress” over this event. (ECF No. 98 at 7, ¶ 2.) They assert that they “think about it constantly, they do not go to Malls much anymore, and they are so anxious over interacting with police officers that they avoid interactions.” (Id.) Jessica claims that she broke down crying during a routine traffic stop in October 2016, and attributes that emotional response to the encounter with police on December 14, 2014. (Id. ¶ 3.) The Fischers further claim that the children “have been profoundly changed as well, ” and that their encounter with police “is a constant source of conversation in the Fischer household as the adults have to explain to and reassure the children [regarding the event].” (Id. ¶ 2.)

         III. ANALYSIS

         Against the Broomfield Defendants, the Fischers allege various constitutional claims under 42 U.S.C. § 1983, specifically: denial of the right to familial association, arrest without probable cause (a.k.a. false arrest), excessive force, and malicious prosecution. (ECF No. 53 at 20-23.) Against the H&M Defendants, the Fischers allege common-law malicious prosecution and intentional infliction of emotional distress. (Id. at 23-28.) As for H&M itself, the Fischers are seeking respondeat superior liability. (See ECF No. 103 at 19-20.)

         All Defendants move for summary judgment on all of the claims asserted against them. The Broomfield Defendants also assert qualified immunity. The Court will first discuss qualified immunity generally, and then will address the Fischers' various claims essentially in the order in which they accrued.

         A. Qualified Immunity

         “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “The judges of the district courts . . . [may] exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         Although summary judgment usually places the burden of persuasion on the moving party, a claim of qualified immunity shifts the burden to the non-moving party-the Fischers, in this case-to demonstrate the violation of the constitutional right and, even more significantly, that the right was clearly established at the time of the challenged conduct. Gross v. Pirtle, 245 F.3d 1151, 1155 (10th Cir. 2001). “A right is clearly established in this circuit when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight of authority from other courts shows that the right must be as the plaintiff maintains.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks omitted).

         B. False Arrest of Christopher Fischer

         The Fischers assert that Deedon arrested Christopher Fischer without probable cause (ECF No. 53 ¶ 31), although the Fischers also sometimes direct this claim at “the police officer defendants” generally, not any specific officer (ECF No. 98 at 14). It is undisputed that Deedon made the decision to arrest Christopher Fischer. (ECF No. 80 at 7, ¶ 17.) In addition, the Fischers assert no theory by which any of the other Broomfield Defendants could share in the liability for Deedon's decision (e.g., conspiracy, supervisory liability, failure to intervene). The Court finds, accordingly, that it need only examine whether Deedon had probable cause (or “arguable probable cause, ” as explained below) to arrest Christopher Fischer.

         1. False Arrest Generally, and its Relationship to Qualified Immunity

         “A plaintiff may recover damages under § 1983 for wrongful arrest” if arrested “without probable cause.” Cottrell v. Kaysville City, 994 F.2d 730, 733 (10th Cir. 1993). Probable cause exists where

the facts and circumstances within the arresting officer's knowledge and of which [the officer] had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to have the belief that an offense has been or is being committed by the person to be arrested. This is an objective standard, and thus the subjective belief of an individual officer as to whether there was probable cause for making an arrest is not dispositive. Whether a reasonable officer would believe that there was probable cause to arrest in a given situation is based on the totality of the circumstances.

Koch v. City of Del City, 660 F.3d 1228, 1239 (10th Cir. 2011) (internal quotation marks and citations omitted; alterations incorporated). When the arresting officer asserts qualified immunity, the probable cause standard becomes even more deferential:

[N]ot only must the plaintiff demonstrate that the officer arrested her without probable cause (that is, that he violated a constitutional right), but also that it would have been clear to a reasonable officer that probable cause was lacking under the circumstances (that is, that the right was clearly established in the specific situation).

Id. at 1241. “As a practical matter, [courts] implement this standard by asking whether there was ‘arguable probable cause' for an arrest-if there was, a defendant is entitled to qualified immunity.” Kaufman v. Higgs, 697 F.3d 1297, 1300 (10th Cir. 2012).

         Whether probable cause existed (the ultimate liability question and the first prong of the qualified immunity analysis) is a question for the jury if it turns on disputed facts, e.g., a question of what the officer actually observed; but it otherwise may be determined as a matter of law by the Court. See, e.g., Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1253-54 (10th Cir. 2013); Cottrell, 994 F.2d at 734. Qualified immunity is a question of law, although disputes of fact that necessarily inform the qualified immunity analysis may go to a jury. Maestas v. Lujan, 351 F.3d 1001, 1007-09 (10th Cir. 2003).

         2. Whether Deedon Possessed At Least Arguable Probable Cause

         Deedon asserts that he had arguable probable cause to arrest for the crime of harassment under Colorado law: “A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she * * * [r]epeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.” Colo. Rev. Stat. § 18-9- 111(1)(h).[8] The Colorado Supreme Court has construed this as a “fighting words” statute, “proscrib[ing] only those words which have a direct tendency to cause acts of violence by the persons to whom, individually, the words are addressed. The test is what men of common intelligence would understand to be words likely to cause an average addressee to fight.” People ex rel. VanMeveren v. Cnty. Court in & for Larimer Cnty., 551 P.2d 716, 719 (Colo. 1976).

         It is undisputed that Deedon had received the following information shortly before he chose to arrest Christopher Fischer:

• from the 911 dispatcher, he learned that “a male and female customer were making a scene, ” and particularly that “[t]he male was belligerent and swearing at the manager” (ECF No. 80 at 5, ¶ 3 (citations omitted));
• from Jessica Fischer, he learned that Christopher had said to her, “‘Wow, this guy [Klescewski] is an asshole, ' or something to that effect” (id. at 6, ¶ 9); and
• from Klescewski, he learned that “he [had been] called an asshole and a jerk several times and that he felt physically threatened by Mr. Fischer” (id. ¶ 10).

         The Fischers argue that this last statement from Klescewski was a lie, but it is undisputed that Klescewski said it to Deedon. (ECF No. 98 at 3, ¶ 10.) The question, then, is whether a reasonable officer with such knowledge would possess arguable probable cause to conclude that Christopher had violated § 18-9-111(1)(h).

         Notably, the Fischers make no argument that what Deedon knew could never establish probable cause under the fighting words standard. (See ECF No. 98 at 14-16; see also ECF No. 97 at 13-15.) In other words, the Fischers do not argue that, even if Deedon credited Klescewski's version of events, the conduct with which Christopher Fischer had been accused still could not amount to fighting words as a matter of law, and Deedon must have known as much. As ...

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