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Talley v. City & County of Denver

United States District Court, D. Colorado

November 6, 2017

STEVEN CHRISTOPHER TALLEY, Plaintiff,
v.
CITY AND COUNTY OF DENVER; DETECTIVE JEFFREY HART; SERGEANT ANDREW HOWARD; SERGEANT MARCO MARTINEZ; OFFICER JOHN RUDDY; and OFFICER JAMES BRADLEY, Defendants.

          ORDERS ON PARTIAL MOTION TO DISMISS

          Richard P. Matsch, Senior District Judge

         Plaintiff Steven Christopher Talley was arrested on September 15, 2014 pursuant to a warrant issued by a Denver District Court judge based on an affidavit and application submitted by Denver Detective Jeffrey Hart, which asserted probable cause that Mr. Talley robbed a U.S. Bank on East Colfax Avenue on May 14, 2014 and another U.S. Bank on South Colorado Boulevard on September 5, 2014. The Denver District Attorney charged Mr. Talley with those crimes and an assault on Officer Michael Ahrens, who had been working as a security guard at the East Colfax Branch at the time of the May robbery. All charges were dismissed by the prosecuting attorney on November 13, 2014 after defense counsel provided evidence that Mr. Talley was at work at an insurance company at the time of the May robbery.

         Mr. Talley was arrested a second time on December 10, 2015 pursuant to a warrant issued based on an affidavit and application submitted by Denver Detective Eric Denke at the direction of Detective Hart, which asserted probable cause that Mr. Talley committed the September 2014 robbery. Mr. Talley was released on a personal recognizance bond at a preliminary hearing on January 11, 2016 as a result of testimony from the bank teller, Bonita Shipp, that he was not the robber, and another witness testifying that he was at a church food bank at the time of the robbery. The charges were dismissed by the prosecuting attorney on April 21, 2016.

         Mr. Talley filed this civil rights action on September 14, 2016. Following a stay ordered by a magistrate judge to permit some informal discovery, a Second Amended Complaint was filed on February 23, 2017 [Doc. 42]. Five claims for relief are alleged, all brought under Title 42, United States Code, Section 1983:

(1) false arrest/false imprisonment in violation of the Fourth and Fourteenth Amendments, asserted against Defendants Hart, Howard, Martinez, Ruddy, and Bradley;
(2) use of excessive force in violation of the Fourth and Fourteenth Amendments, asserted against Defendants Martinez, Ruddy, and Bradley;
(3) retaliation in violation of the First Amendment, asserted against Defendants Hart and Howard;
(4) malicious prosecution in violation of the Fourth and Fourteenth Amendments, asserted against Defendants Hart and Howard; and
(5) use of excessive force in violation of the Fourth and Fourteenth Amendments, asserted against Defendant City and County of Denver pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).

         Defendants Martinez, Ruddy, and Bradley filed an answer to Plaintiff's Second Claim for Relief alleging use of excessive force [Doc. 46]. All Defendants filed a partial motion to dismiss the other claims pursuant to Federal Rule of Civil Procedure 12(b)(6) [Doc. 45]. That motion has been fully briefed, and oral argument was heard.

         In his response to Defendants' partial motion to dismiss, Mr. Talley agreed to dismiss Defendants Martinez, Ruddy, and Bradley from his First Claim for Relief alleging false arrest/false imprisonment [Doc. 51 at 1 & n.1]. At oral argument Plaintiff's counsel agreed to dismiss Defendant Howard from all claims, without prejudice. Plaintiff's counsel also agreed that the Fourth Amendment (not the Fourteenth) governs Plaintiff's false arrest/false imprisonment, excessive force, and malicious prosecution claims.

         The claims challenged by Defendants' motion to dismiss are based on Plaintiff's assertion that the arrest warrants were invalid because the affidavits authored by Defendant Hart were based on inadequate investigation and contained material misstatements and omissions made knowingly or recklessly in violation of the Fourth Amendment. See Franks v. Delaware, 438 U.S. 154 (1978).

         Alleged Facts

          The May 14, 2014 robbery at 11:57 a.m. was recorded on a surveillance camera. Denver police officer Michael Ahrens was present as an employed security guard. Officer Ahrens fell chasing the robber and sustained knee abrasions. A swab believed to contain the robber's DNA was taken from the area where Officer Ahrens had been in contact with the robber during the chase, and a fingerprint believed to belong to the robber was lifted from the bank. Officer Ahrens described the robber as a white male between 6 0¢ and 6 2¢ tall and approximately 200 pounds. The bank teller, Miurjana Dengubie, described the robber as a white male between 5 10¢ and 6 2¢ tall and approximately 175 to 190 pounds.

         Defendants Hart and Howard were assigned to investigate the robbery. Detective Hart used video surveillance photographs of the suspect taken during the robbery to prepare “Law Enforcement” and “Crime Stoppers” bulletins that were distributed to local law enforcement agencies and news stations. Between May and September 2014, the police had no suspects for the May 2014 robbery.

         The September 5, 2014 robbery was also recorded on a surveillance camera. Defendants Hart and Howard were assigned to investigate the September robbery. Detective Hart again used video surveillance photographs of the suspect taken during the robbery to prepare “Law Enforcement” and “Crime ...


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