United States District Court, D. Colorado
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Richard P. Matsch, Senior District Judge
being expelled from Erie High School during his junior year,
Erik Wilk was arrested and charged with a violation of C.R.S.
§ 18-9-109(6) reading:
(a) A person shall not knowingly make or convey to another
person a credible threat to cause death or to cause bodily
injury with a deadly weapon against:
(I) A person the actor knows or believes to be a student,
school official, or employee of an educational institution.
was acquitted of that charge after a bench trial before a
Weld County District Court Magistrate in September, 2014.
and his parents, Derek Wilk and Jami Wilk, filed this civil
action on September 4, 2015, seeking damages under 42 U.S.C.
§ 1983 from the named defendants for infringement of the
rights protected by the First, Fourth and Fourteenth
Amendments to the United States Constitution. The plaintiffs
filed an Amended Complaint with the initial filing and have
since agreed to dismiss claims made against the members of
the School Board and official capacity claims against
defendants remaining are: with respect to the expulsion, the
St. Vrain Valley School District; Don Haddad, Superintendent
of Schools; Greg Winger, Expulsion Officer; and Matthew
Buchler, Principal of Erie High School; and, with respect to
search and arrest warrants affidavits submitted to the Weld
County District Court, Chief Marc Vasquez, Detective Dan
Niemoth, and Sergeant Aaron Haddox, of the Town of Erie
full discovery, the school defendants and Erie police
officers filed separate motions for summary judgment
dismissing all claims.
arguments were heard on July 18, 2017.
are factual disputes but the following material facts are not
subject to genuine dispute:
initiating event was on February 28, 2014, when teacher Erin
Brueggeman told Buchler that two students reported a
conversation they had the previous evening with Sean
McGinnis, a classmate and friend of Erik, which they
perceived as a threat that Erik was planning to shoot up the
school. The words used are in dispute but Buchler was alarmed
and called Sgt. Haddox at the Erie Police Department. He
asked Buchler to come in to give more information.
shortly after this call, Haddox saw Erik and Sean McGinnis
skateboarding near the police station. He recognized them and
asked them to come into the station to talk, letting them
know they were free to leave.
arrived at the station and was present when Haddox talked
with Sean who said that he had talked with the cheerleaders,
mentioning shooting up the school and saying that he would
not do it but his friend Erik Wilk hated the place more than
he did so he would more likely do it but that it was not
likely that Erik would do it.
Haddox interviewed Erik in the presence of his mother and
with his father participating by telephone, Erik appeared
shocked and denied any plan to attack the school. Both
parents and Erik said there were no firearms in their
residence. The parents consented to a search of Erik's
bedroom which took place. No evidence of a plan to attack the
school was found. There were military items, including
uniforms and empty ammunition boxes which the Wilks said were
related to Erik's hobby of performing reenactment of
World War II events with a group that had that interest.
McGinnis, Sean's father, consented to a search of
Sean's bedroom during which Haddox saw firearms in a
locked gun safe. Cole McGinnis said that his ex-wife had the
only key to the safe and she lived in Colorado Springs.
interviewed the cheerleaders on March 1 but could not
determine what Sean actually said to them about a threat to
the school. Lacking that information Haddox wrote a report
finding the case should be cleared as unfounded with no
follow up needed.
Buchler had a different view. He had looked at social media
pages and found photos of Erik in military uniform, holding
firearms, images of Nazi soldiers and a “like” of
a graphic novel character named “Johnny the Homicidal
Maniac.” Buchler was present during the interviews of
Erik and Sean at the EPD. Before leaving he told the Wilks
that he would conduct an investigation for the school and
asked that they meet with him on Monday, March 3, and for
Erik to write a “due process statement.” That
meeting was held on March 3 at Erie High School at 7:00 a.m.
Stacy Davis, the District's Director of Safety and
Security attended with Buchler. The Wilks were told that the
purpose was to begin a formal threat assessment pursuant to
the District's protocol for evaluating potential threats
to safety of the school community. Erik submitted a written
due process statement denying any intent to attack the
school. Buchler and Davis told Erik he should not discuss
this threat assessment with the students.
in the day a teacher told Buchler that Erik had created a
class disturbance by saying he had been questioned and that
he had drawn a figure shooting a flame thrower and throwing a
hand grenade. Buchler informed Derek Wilk about this report
and the drawings and said that Erik was “creating a
climate of fear” that was “detrimental to the
welfare of students.” Buchler invited Erik to respond
in writing which he did saying he was “sorry for the
mess” he had caused and assuring that he had
“nothing against the school or staff” and
“I do not perceive of myself as a threat, but
understand how I may be perceived by others through the way I
dress, act and speak.” Ex. D (Doc.65-4).
proceeded with a threat assessment, gathering information
from teachers and administrators and reviewing written
materials in journals and notebooks. The team of Buchler, the
assistant principal and two teachers signed off on a threat
assessment form concluding that Erik was a “High
Level” threat appearing to pose an imminent danger. Ex.
E (Doc. 65-5). The form does not include specific factual
findings to support that conclusion.
March 5, 2014, Buchler wrote to Derek Wilk notifying him that
Erik was suspended from school and that a recommendation for
expulsion for detrimental behavior had been made with an
expulsion hearing to be held within 10 days. Ex. G (Doc.
March 7, Buchler and Assistant Superintendent Mark Mills went
to the Erie Police Department expressing their concerns and a
sense of urgency because of the threat assessment and their
view that Erik and Sean presented a danger to the school.
Chief Vasquez asked Commander Stewart to contact the Weld
County District Attorney's Office and the municipal
prosecutor to assess probable cause. Both of them opined that
the information did not give probable cause for an arrest.
Winger, the District Expulsion Hearing Officer, conducted an
expulsion hearing on March 13, 2014, attended by all three
Wilks and their attorney, Igor Raykin. Buchler presented the
School's information. Erik and his parents were heard and
Raykin made the argument that there was no evidence of a
credible threat. The threat assessment was discussed but the
form was not presented.
sent his report to Superintendent Haddad on March 14, 2014,
recommending expulsion pursuant to C.R.S. §
22-33-106(1)(c) because Erik was a credible threat to engage
in violence. Ex. K (Doc. 65-11).
March 16, 2014, Derek Wilk, Jami Wilk and Erik Wilk wrote to
Haddad complaining about Buchler and asserting that they did
not have time to review the information provided by Buchler
at the expulsion hearing and respond appropriately. Ex. P
(Doc. 65-16). As a result, Haddad ordered a second expulsion
hearing which was held by Winger on March 21, 2014. The Wilk
parents and their lawyer appeared but Erik was not present
because he had been arrested on March 18. Winger made a
second recommendation for expulsion and on March 24, 2014,
Haddad sent a letter to the Wilk parents notifying them that
Erik was expelled from the School District for one year,
March 21, 2014, through March 20, 2015. Ex. Q (Doc. 65-17).
arrest was pursuant to an arrest warrant based on an
affidavit authored by Niemoth on March 17, 2014. At the same
time Haddox submitted an affidavit for a warrant to search
the Wilk residence. Applications for the arrest of Sean
McGinnis and search of the McGinnis residence were submitted
at the same time. The affidavits have the same language for
probable cause. All four affidavits were approved by a Weld
County deputy district attorney and all four warrants were
signed by a Weld County District Judge on the evening of
March 17. The warrants were ...