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Montgomery v. Chernak

United States District Court, D. Colorado

February 28, 2019




         This matter is before the Court on Defendants' Motion to Dismiss [#17][1] (the “Motion”). Plaintiff filed a Response [#24] in opposition to the Motion, and Defendants filed a Reply [#28]. Pursuant to 28 U.S.C. § 636 (b)(1)(A) and D.C.COLO.LCivR 72.1(c), the Motion has been referred to this Court for a recommendation regarding disposition. See [#19]. The Court has reviewed the Amended Complaint [#14], Motion [#17], Response [#24], Reply [#28], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#17] be GRANTED.

         I. Summary of the Case [2][3]

         Plaintiff William Montgomery is a resident of Colorado who has “been known as an activist for homeless populations in Fort Collins” and was “considered to be a troublemaker by the Fort Collins police” for his activism. Am. Compl. [#14] ¶¶ 2, 9. He brings this suit against Matthew Chernak (“Chernak”), Mike Howard (“Howard”), and Matthew Brough (“Brough”), officers with the Fort Collins Police Department (collectively, the “Defendants”). Id. ¶¶ 10-12. On April 25, 2018, Plaintiff filed the Amended Complaint (the “Complaint”), asserting four[4] claims against Defendants arising from Plaintiff's arrest on January 28, 2016. Id. ¶¶ 71-94. Plaintiff brings First Amendment retaliatory arrest and prosecution claims against Defendants Chernak and Howard. Id. ¶¶ 71-76. In addition, Plaintiff brings Fourth Amendment claims of unlawful arrest, wrongful detention, and malicious prosecution against all three Defendants. Id. ¶¶ 77-94. Plaintiff brings his claims under 42 U.S.C. § 1983 and asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Id. ¶¶ 5, 6. Plaintiff seeks compensatory damages, punitive damages, interest, costs, expert witness fees, reasonable attorney fees, “and any other and further relief that this Court shall deem just and proper.” Id. at 23.

         A. Public Plaza in Fort Collins

         Plaintiff's claims concern a public plaza located in the City of Fort Collins and a chain link fence that was constructed thereon. Id. ¶¶ 14-16. Plaintiff begins his Amended Complaint with a lengthy recitation of the history of the plaza and the fence which the Court summarizes insofar as it is relevant to Plaintiff's claims.

         According to Plaintiff, the plaza was for public use and, “at some point . . . became regularly used by homeless members of the public who sought a place to congregate, rest, and socialize.” Id. ¶¶ 16-17. The plaza “was well-known by officers of the Fort Collins Police Department[, ] especially those who were responsible for patrolling the area and/or who were regularly dispatched to the location” because of complaints concerning the growing homeless population. Id. ¶¶ 19-21. According to Plaintiff, each Defendant “regularly patrolled and/or were dispatched to the area and knew the area well[, ]” and “knew the public plaza was public property.” Id. ¶ 22.

         On or before January 11, 2016, a private company that was constructing buildings near the plaza built “a six-foot chain-link fence around the public plaza to block the homeless from accessing or congregating in the public space.” Id. ¶ 23. According to Plaintiff, city officials of Fort Collins were displeased with the fence and emailed the company to express their concerns. Id. ¶¶ 26-27. Specifically, on January 26, 2016, Rob Mosbey (“Mosbey”), Chief Construction Inspector for the City of Fort Collins, sent an email advising the company “that the placement of the fence blocked public property, was an illegal encroachment, and must be removed.” Id. ¶ 28.

         Between January 11 and 26 of 2016, Plaintiff became aware of the fence and “contacted the City Planner's office for an explanation regarding the fence.” Id. ¶ 29. On or about January 26, 2016, Chief Inspector Mosbey informed Plaintiff “that the public plaza remained public property within a public right-of-way, that the chain-link fence was an illegal obstruction, and that Inspector Mosbey had ordered [the company] to remove the fence.” Id. ¶ 30. On or about January 27, 2016, Chief Inspector Mosbey provided Plaintiff with a paper copy of the email exchange “pertaining to the city representative's official communication that the area remained public property, that the fence was an illegal obstruction, and that the fence must be removed.” Id. ¶ 31. In light of this information and with “proof of Inspector Mosbey's conclusions and orders regarding the illegal fence, ” Plaintiff began visiting the plaza again, climbing the fence each time, and “spread[ing] the word that the fence was illegal and that the space continued to remain a place where public visitors should be permitted access and public use.” Id. ¶ 32. Ultimately, after the incident of Plaintiff's arrest summarized below, the fence was removed from the plaza on February 16, 2016, as had been ordered by Chief Inspector Mosbey. Id. ¶ 66.

         B. January 28, 2016 Arrest

         Plaintiff's claims in this case are premised on the following incident and subsequent events. On January 28, 2016, Defendants were dispatched to a 7-11 located near the plaza for a trespass complaint against Melvin Swett (“Swett”). Id. ¶ 33. When Defendants arrived, Plaintiff was conversing with Mr. Swett on a public sidewalk outside of the 7-11. Id. ¶ 34. According to Plaintiff, Defendants Howard and Chernak “approached Mr. Swett and began asking questions in a voluntary consensual encounter.” Id. ¶ 35. Defendants “did not convey to Mr. Swett that he was being detained[ ]” and therefore, Plaintiff “questioned whether the officers were detaining Mr. Swett and/or had reasonable suspicion to believe Mr. Swett had committed any crime.” Id. Defendants Howard and Chernak “expressed visible and audible annoyance with Plaintiff's questions and criticisms. Defendant Howard responded to Plaintiff's speech with a directive to leave the area.” Id. ¶ 36.

         Plaintiff states that he complied with Defendant Howard's request by walking to the nearby public plaza, climbing the surrounding fence, and watching the Defendants' interaction with Mr. Swett “for any evidence of mistreatment.” Id. ¶ 37. Plaintiff states that, by standing within the plaza, “he thought[ ] he could not reasonably be perceived as interfering, since a fence physically separated him from the officers.” Id. Moreover, Plaintiff “saw his presence within the public plaza as an opportunity to raise awareness to the issues pertaining to the illegal fence on public land.” Id.

         Plaintiff alleges that “Defendants Howard and Chernak took obvious offense to Plaintiff's criticism of the officers and his continued observation of the police interaction after they told him to leave, which they viewed as disobedience and a challenge to their authority.” Id. ¶ 38. Plaintiff avers that, because of this, Defendants “decided to punish and retaliate against him, by manufacturing a pretextual reason to arrest Plaintiff.” Id. Seeing the fence surrounding the plaza, Defendants Howard and Chernak “discussed with each other that the fence might provide them an illusory justification to assert that Plaintiff was trespassing.” Id. ¶ 39.

         Defendant Howard then approached the fence and told Plaintiff “that he was trespassing and to provide his name and date of birth.” Id. ¶ 41. “Plaintiff verbally questioned the determination that he was trespassing by telling Defendant Howard and Chernak that he was allowed to be present in the public plaza because it was part of a public park and/or right-of-way, that the fence was an illegal encroachment designed to discriminatorily keep homeless people out, and that he had spoken to the city's Chief Inspector and confirmed that he was allowed to be present there.” Id. At some point during this explanation, Plaintiff provided his name which Defendants used to conduct a background search. Id. ¶ 42. Plaintiff overheard his date of birth being transmitted over Defendants' police radio and confirmed that date was correct. Id.

         Defendants Howard and Chernak then told Plaintiff that he was going to be taken into custody and charged with trespass. Id. ¶ 43. At this time, Defendant Brough arrived to assist and the Defendants asked Plaintiff to climb back over the fence so that they could take him into custody. Id. Plaintiff did not comply with this request, “verbally protest[ing] the officers' conclusions and[, ] continu[ing] to provide information to the three officers [to] indicat[e] that he was not breaking the law.” Id. ¶ 44. Plaintiff reiterated “the nature of the property, the illegal fence, and his discussion with Inspector Mosbey, to Defendant Brough;” and informed the Defendants that he possessed the email from the City Inspector's Office which would prove “the truth about the nature of the property and his lawful presence there.” Id. ¶¶ 44-45.

         Once it became clear to Plaintiff that Defendants were not listening to or interested in Plaintiff's explanation, “Plaintiff yelled out to his brother, who was parked across the street in a white van observing the incident, [and asked] him to bring the email proof for the officers to see.” Id. ¶ 47. Plaintiff's brother approached the scene and provided the email from Inspector Mosbey to Defendant Brough, who read the email in front of Plaintiff and then handed the email to Defendant Chernak “who also looked at it.” Id. ¶¶ 48-49. Plaintiff alleges that, because of this, “both officers knew or should have known that the email provided exculpatory evidence demonstrating that Plaintiff could not have been trespassing by being present in the public plaza.” Id. ¶ 49.

         After reading the email, Defendants Chernak and Howard walked away from the plaza outside of the audible range of Plaintiff and nearby witnesses. Id. ¶ 50. It was here, according to Plaintiff, that Defendants Chernak and Howard “discussed and agreed to charge Plaintiff [ ] with anything and everything that they believe[d] they could illusorily justify to their supervising sergeant, in order to punish Plaintiff for his speech, criticism, and perceived challenge to the Defendant officers.” Id. ¶ 51. Further, “[t]he two agreed to charge Plaintiff with not only trespass, but also other crimes that were not supported by probable cause, including obstruction, resisting arrest, and disorderly conduct.” Id. Accordingly, “[w]hen the two officers returned, they said something to Defendant Brough, and the three appeared resolved to act in furtherance of a common plan of action.” Id.

         Shortly thereafter, a different officer arrived with bolt cutters and cut the lock to the gate that opened up to the plaza. Id. ¶ 52. The three Defendants “then cooperatively placed hands on Plaintiff, ” handcuffed him, and took him into custody. Id. “Plaintiff did not, at any time, physically resist or otherwise physically fight or challenge the officers” and “only verbally voiced his concerns and criticisms to [the] officers and surrounding persons about the unlawful nature of the arrest.” Id. ¶ 53. While Plaintiff was being transported to the police station by Defendant Chernak, Plaintiff asked Defendant Chernak why he had not acted on the exculpatory evidence of the email that was provided. Id. ¶ 54. According to Plaintiff, Defendant Chernak responded “facetiously, that ‘you were being too loud for me to read it.'” Id. Plaintiff then explained again that the email showed that the area remained public property and criticized Defendant Chernak for wrongfully arresting him. Id.

         Approximately forty-five minutes later, “Defendant Chernak filed a warrantless arrest affidavit asserting that Plaintiff committed the crimes of Trespass, Obstruction, Resisting Arrest, Disorderly Conduct, and Violation of Bail Bond.” Id. ¶ 56. Plaintiff alleges that Defendant Chernak “asserted false facts in the affidavit, including that Plaintiff (a) ‘interfered' with the officers' earlier contact with another person, (b) ‘un-lawfully entered' the fenced-in area, (c) ‘refused to identify himself,' and (d) ‘required' the officers to use bolt cutters to gain entry to the fenced-in area.” Id. Plaintiff further alleges that Defendant Chernak “purposefully omitted” the following information: that the property Plaintiff entered was a public area operated and maintained by the City of Fort Collins; that Plaintiff had provided exculpatory evidence to demonstrate that the property remained public despite the illegally erected fence; that Plaintiff had permission to be present there; that Defendant Chernak did not have any information to indicate there was a private owner of the property; and how Defendant Chernak came to the conclusion that Plaintiff “unlawfully” entered the property. Id.

         “On information and belief, ” Plaintiff alleges that “all three Defendant[s] met and discussed the charges, and agreed that they would assert false factual information that would illusorily support the wrongful charges, including inter alia, that Plaintiff (a) ‘interfered' with the officers' earlier contact with another person, (b) ‘unlawfully' entered private property, (c) attempted to use the fence as an ‘obstruction' to keep officers from arresting him, (d) yelled at the top of his lungs to wake/disturb neighbors, (e) resisted arrest, and (f) violated the terms of an earlier bond condition by not remaining lawful.” Id. ¶ 57. After this discussion, Plaintiff alleges that Defendants “drafted police reports including the false, exaggerated, and misrepresentative information in order to cause Plaintiff to be detained, to cover up and conceal their own abuse of authority, and to continue to punish Plaintiff for what they perceived as challenges to their authority and annoyance of the speech of the protester.” Id. ¶ 58. As a result of the allegedly wrongful charges and arrest, Plaintiff spent three days in jail from January 28 through January 30, 2016. Id. ¶ 60.

         Shortly thereafter, on or about February 1, 2016, Plaintiff alleges that Defendant Chernak filed a separate affidavit in Larimer County Court indicating that Plaintiff had violated a condition of his bail bond from an earlier case so that the court would revoke Plaintiff's bond. Id. ¶ 61. “The affidavit asserted that Plaintiff had committed the five offenses listed in the case, including violation of bail bond conditions, and that he would act as a witness for the offenses and provide all discoverable materials in support of the charges.” Id. Plaintiff states that, on February 8, 2016, the Court Services Specialist II for the Larimer County Pretrial Services Program was “influenced by Defendant Chernak's (and the other two Defendant Officers') assertions” of criminal activity and cited those assertions as a basis for Plaintiff's noncompliance of the bond conditions and a petition to revoke the bond. Id. ¶ 65. On or about February 18, 2016, the criminal court granted the petition to revoke Plaintiff's bond based on Defendants' assertions of criminal conduct and, as a result, a warrant was issued for Plaintiff's arrest and he was incarcerated from March 25 through April 19, 2016. Id. ¶ 67.

         Separately, during the criminal prosecution of the January 28, 2016 charges, Plaintiff alleges that the prosecutor in that case was influenced by Defendants' false statements and ignored the exculpatory email to which Plaintiff had directed him. Id. ¶ 62-63. “As a result, the prosecution dragged on, unnecessarily, for almost two years.” Id. ¶ 63. Ultimately, in July of 2017, Plaintiff states that “the prosecutor verbally acknowledged . . . that [Plaintiff] was correct about the nature of the public property and his presence there[ ]” and “admitted contacting the city attorney's office [which confirmed] that the area was public property.” Id. ¶ 68. Accordingly, on or about August 31, 2017, the charge of trespass against Plaintiff was dismissed and, on or about November 16, 2017, all remaining charges from the January 28, 2016 incident were also dismissed. Id. ¶¶ 69-70.

         C. ...

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