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Sandberg v. Englewood

United States District Court, D. Colorado

March 27, 2017

WESTIN SANDBERG, Plaintiff,
v.
ENGLEWOOD, COLORADO, a municipality, DUGAN COMER, individual and in his official capacity as Englewood City Attorney, TOM SCHNEIDER, individually and in his official capacity, CHRISTIAN CONTOS, individually and in his official capacity, JAMES JOHMSON, individually and in his official capacity, ROBERT FIEGER, individually and in his official capacity, STEPHEN SIEGAL, individually and in his official capacity, Defendants.

          ORDER ADOPTING IN PART AND REJECTING IN PART THE RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          CHRISTINE M. ARGUELLO United States District Judge

         This 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).

         I. STANDARD OF REVIEW

         The 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).

         II. STANDARDS GOVERNING A RULE 12(b)(6) MOTION TO DISMISS

         Under 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 plaintiff's complaint”).

         III. FACTUAL BACKGROUND

         The 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.

         On May 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.)

         Following 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.)

         Subsequently, 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 total. (Id.)

         On 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.)

         IV. PLAINTIFF'S CLAIMS

         Based 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.

         V. ANALYSIS

         A. Claims under 42 U.S.C. § 1983

         Section 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).

         Moreover, 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).

         “Ordinarily, 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 Cir. 2010).

         1. Second Amendment Claim

         There 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 purpose.”

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).

         Plaintiff 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) (‚ÄúThere may or may not be a Second Amendment right for a ...


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