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Wilk v. St. Vrain Valley School District

United States District Court, D. Colorado

July 27, 2017

ST. VRAIN VALLEY SCHOOL DISTRICT, JOHN CREIGHTON, JOIE SIEGRIST, BOB SMITH, DEBBIE LAMMERS, JOHN AHRENS, PAULA PEAIRS, and MIKE SCHIERS, members of the District's Board, in their individual and official capacities, DON HADDAD, Superintendent of Schools, in his individual and official capacity, GREG WINGER, Expulsion Officer of the District, in his individual capacity, MATTHEW BUCHLER, Principal of Erie High School, in his individual capacity, MARC VASQUEZ, in his individual capacity, DAN NIEMOTH, Erie Police Department, in his individual capacity, and AARON HADDOX, Erie Police Department, in his individual capacity, Defendants.


          Richard P. Matsch, Senior District Judge

         After 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.

         Erik was acquitted of that charge after a bench trial before a Weld County District Court Magistrate in September, 2014.

         Erik 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 individual defendants.

         The 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 police department.

         After full discovery, the school defendants and Erie police officers filed separate motions for summary judgment dismissing all claims.

         Oral arguments were heard on July 18, 2017.

         There are factual disputes but the following material facts are not subject to genuine dispute:

         The 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.

         Coincidentally, 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.

         Buchler 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.

         When 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.

         Cole 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.

         Haddox 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.

         Principal 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.

         Later 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).

         Buchler 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.

         On 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. 65-7).[1]

         On 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.

         Greg 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.

         Winger 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).

         On 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).

         Erik's 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 ...

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