United States District Court, D. Colorado
ORDER ADOPTING IN PART AND REJECTING IN PART THE
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO United States District Judge
matter is before the Court on the Recommendation of United
States Magistrate Judge Kathleen M. Tafoya (Doc. # 35), dated
January 31, 2017, in which Magistrate Judge Tafoya recommends
that this Court grant in part and deny in part
Defendants' Motion to Dismiss Plaintiff's Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. #
18). The Recommendation is incorporated herein by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
STANDARD OF REVIEW
parties have filed Objections to the Recommendation,
essentially challenging the Recommendation in its entirety.
Federal Rule of Civil Procedure 72(b)(3) thus requires that
this Court conduct a de novo review of the issues. In so
doing, the Court “may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Id. Any arguments raised for the first time in
objections are deemed waivable and need not be considered by
this Court. Marshall v. Chater, 75 F.3d 1421, 1426
(10th Cir. 1996).
STANDARDS GOVERNING A RULE 12(b)(6) MOTION TO
Fed.R.Civ.P. 12(b)(6), the Court may dismiss a complaint for
failure to state a claim if it appears beyond a doubt that
the plaintiff can plead no set of facts in support of his
claim that would entitle him to relief. Golan v.
Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004).
Dismissal under Rule 12(b)(6) may also be based on the lack
of a cognizable legal theory. Id. In reviewing a
motion to dismiss, courts take all well-pleaded allegations
in the plaintiff's complaint as true and construe the
allegations in the light most favorable to plaintiff.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007); Khalik v. United Air Lines, 671 F.3d 1188,
1190 (10th Cir. 2012). However, a litigant's
“conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief
can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). A court may not assume that a
plaintiff can prove facts that have not been alleged, or that
a defendant has violated laws in ways that a plaintiff has
not contended. Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S.
519, 526 (1983); see also Whitney v. New Mexico, 113
F.3d 1170, 1173-74 (10th Cir. 1997) (court may not
“supply additional factual allegations to round out a
following factual allegations are taken from Plaintiff's
Complaint. The Court takes them as true for the purposes of
ruling on Defendants' Rule 12(b)(6) Motion.
14, 2014, Plaintiff went to Epic Autos to get his vehicle
serviced. (Doc. # 1 at 4.) At that time, Plaintiff was
wearing a Ruger 9mm pistol in a holster on his hip.
(Id.) The owner of Epic Autos inquired about
Plaintiff's pistol, but ultimately allowed him to remain
on the premises “as long as he refrained from handling
his firearm” while there. (Id.) While waiting
for his vehicle, Plaintiff left Epic Autos and walked to a
nearby convenience store. (Id. at 5.) A neighboring
business owner saw Plaintiff and called 911, reporting
concerns that Plaintiff was involved in workplace violence.
(Id.) Shortly after Plaintiff's return to Epic
Autos, Englewood police officers, Defendants James Johnson
and Robert Fieger, responded to the call, entered Epic Autos,
drew their weapons, and searched and detained Plaintiff.
(Id.) Plaintiff did not consent to the search.
(Id.) Defendants Johnson and Fieger seized
Plaintiff's pistol, holster, magazine pouch, two
magazines, and twenty-one rounds of ammunition.
(Id.) Plaintiff requested to videotape the search,
detention, and seizure of his property; the two officers
refused. (Id. at 6.)
the search, Defendant Johnson contacted the 911 caller who
reported that he saw Plaintiff carrying a firearm on his hip
and immediately thought he was engaged in workplace violence.
(Id.) At some point, two more officers with the
Englewood Police Department, Defendants Stephen Siegal and
Christian Contos, joined Defendants Johnson and Fieger at the
scene. (Id.) Defendant Contos spoke with the manager
of Epic Autos, who informed him that he had asked Plaintiff
not to handle his gun while in the repair shop, Plaintiff had
complied, and Plaintiff had been coming and going from the
premises while waiting for his vehicle. (Id. at
6-7.) After checking the serial number and verifying
Plaintiff's pistol was not stolen, Defendant Contos left.
(Id. at 7.)
Defendant Johnson contacted Englewood City Attorney Defendant
Dugan Comer for advice on what charges could be filed against
Plaintiff. (Id. at 7.) Defendant Comer informed
Officer Johnson that a charge for disorderly conduct would be
applicable if anyone was alarmed by Plaintiff. (Id.)
Defendant Johnson also contacted Defendant Tom Schneider,
Sergeant for the Englewood Police Department, who informed
Officer Johnson that a charge for disorderly conduct was
applicable to the situation. (Id.) Officer Johnson
issued Plaintiff a summons for disorderly conduct and booked
the items listed above into evidence. (Id.)
Plaintiff was detained at Epic Autos for about four hours
September 11, 2014, the Arapahoe County District Attorney
dropped the charge against Plaintiff. (Id. at 8.)
The Englewood Police Department returned Plaintiff's
property on October 20, 2014. (Id.)
on this incident, Plaintiff asserts six claims for relief. He
brings claims under 42 U.S.C. § 1983, alleging that
Defendants violated his Second and Fourth Amendment rights,
as well as a conspiracy claim against the individual officer
Defendants. (Id. at 8-11.) Plaintiff also brings
claims against Defendants Johnson and Fieger under the First
Amendment and against Defendants City of Englewood,
Schneider, and Comer for failure to properly train or
supervise Defendants Johnson, Fieger, Siegal, and Contos.
(Id. at 11-14.) Finally, Plaintiff asserts a claim
under the Colorado Constitution, Art. II, Sec. 13, related to
his right to keep and bear arms.
Claims under 42 U.S.C. § 1983
1983 imposes liability for conduct carried out under the
color of state law that deprives a plaintiff of
“rights, privileges, or immunities secured by the
Constitution and laws. . . .” 42 U.S.C. § 1983. To
succeed on a §1983 claim, a plaintiff must demonstrate
that the defendants (1) caused or contributed to the
deprivation of plaintiff's rights, and (2) did so under
the color of state law. Gomez v. Toledo, 446 U.S.
635, 640 (1980); Smith v. Plati, 258 F.3d 1167, 1174
(10th Cir. 2001).
as pertinent here, public officials may be entitled to
qualified immunity from § 1983 claims. Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982); Butz v.
Economou, 438 U.S. 478, 508 (1978). In resolving
qualified immunity cases, courts consider (1) whether the
plaintiff has alleged a deprivation of an actual
constitutional right, and (2) whether that right was clearly
established at the time of the alleged violation.
Peterson v. Jenson, 371 F.3d 1199, 1202 (10th Cir.
2004). In other words, government officials are not subject
to damages liability when “their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow, 457 U.S., at 818; Buckley v.
Fitzsimmons, 509 U.S. 259, 268 (1993).
in order for the law to be clearly established, there must be
a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts
must have found the law to be as the plaintiff
maintains.” Walker v. City of Orem, 451 F.3d
1139, 1151 (10th Cir. 2006) (quoting Medina v. City &
Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992)).
This generality does not mean that “an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Rather, the “contours of the right must be sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.” Id;
Schwartz v. Booker, 702 F.3d 573, 587-88 (10th Cir.
2012). Yet, the law must be clearly established “with
regard to the specific context of the case presented.”
Thomas v. Durastanti, 607 F.3d 655, 669-70 (10th
Second Amendment Claim
is “no doubt, on the basis of both text and history,
that the Second Amendment conferred an individual right to
keep and bear arms.” D.C. v. Heller, 554 U.S.
570, 595 (2008). That right, however, is not unlimited.
Id. In Heller, the Supreme Court held that
the Second Amendment protects an individual's right to
keep and bear a lawful firearm “in the home operable
for the purpose of immediate self-defense.”
Id. at 636. In McDonald v. City of Chicago,
561 U.S. 742, 791 (2010), the Supreme Court extended that
holding as applicable to the states under the Fourteenth
Amendment. However, the Court cautioned:
It is important to keep in mind that Heller, while
striking down a law that prohibited the possession of
handguns in the home, recognized that the right to keep and
bear arms is not “a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever
Id. at 786; see Bonidy v. U.S. Postal
Serv., 790 F.3d 1121, 1125 (10th Cir. 2015) (“[W]e
are bound by Supreme Court dicta almost as firmly as by the
Courts' outright holdings, particularly when the dicta is
recent and not enfeebled by later statements.”)
(internal quotations omitted).
has not submitted any case law from the Supreme Court, the
Tenth Circuit, or elsewhere demonstrating that an individual
has a vested Second Amendment right to openly carry a firearm
in public or on someone else's property. Although cases
in this Circuit have addressed other scenarios, see
Bonidy, 790 F.3d at 1125 (“[T]the Second Amendment
right to carry firearms does not apply to federal buildings,
such as post offices.”); Peterson v. Martinez,
707 F.3d 1197, 1209 (10th Cir. 2013) (no Second Amendment
right for members of the public to carry concealed firearms
in public), this Court is not aware of any Tenth Circuit
precedent extending the holding in Heller to an
individual's right to bear arms in public. Indeed, the
issue is largely unsettled among courts across the country.
See Powell v. Tompkins, 783 F.3d 332, 348 (1st Cir.
2015) (“[T]o date [the Supreme Court] has not said,
that publicly carrying a firearm unconnected to defense of
hearth and home and unconnected to militia service is a
definitive right of private citizens protected under the
Second Amendment. Debate continues among courts.”);
Drake v. Filko,724 F.3d 426, 430 (3d Cir. 2013)
(“It remains unsettled whether the individual right to
bear arms for the purpose of self-defense extends beyond the
home.”); United States v. Marzzarella, 614
F.3d 85, 89 (3d Cir. 2010) (“[C]ertainly, to some
degree, [the Second Amendment] must protect the right of
law-abiding citizens to possess firearms for other,
as-yet-undefined, lawful purposes.”); United States
v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011)
(“There may or may not be a Second Amendment right in
some places beyond the home, but we have no idea what those
places are, what the criteria for selecting them should be,
what sliding scales of scrutiny might apply to them, or any
one of a number of other questions.”); Peruta v.
Cty. of San Diego, 824 F.3d 919, 939 (9th Cir. 2016)
(“There may or may not be a Second Amendment right for