Vazquez v. Andersen

          ORDER

          SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Defendant Forest Andersen's Motion for Summary Judgment (the “Andersen Motion”) [#20] and Defendant Andrew Tope's Motion for Summary Judgment (the “Tope Motion”) [#21]. The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [#10, 13] The Court has carefully considered the Motions and related briefing, the entire case file, the applicable case law, and the argument of the parties presented at the Motion Hearing on May 3, 2019. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART the Andersen Motion and GRANTS IN PART AND DENIES IN PART the Tope Motion.

         I. UNDISPUTED FACTS^[1]

         This case arises out of an encounter between Plaintiff, the former Mayor of Windsor, Colorado, and Defendants, two officers with the Timnath Police Department. The undisputed facts are as follows.

         On October 7, 2017, Plaintiff was walking home from a restaurant in Fort Collins, Colorado where he had had dinner with his wife. [#31-1, ASOF1-4] His home in Weld County, Colorado was approximately 11.5 miles from the restaurant. [Id. at ASOF6] While walking home on East Harmony Road in Larimer County, Plaintiff came upon Officer Forest Andersen who was sitting in his parked patrol car near the intersection with Three Bell Parkway. [Id. at ASOF7] At the time, Andersen was working a special assignment DUI enforcement shift. [Id. at ASOF8] Plaintiff requested a ride home, which Officer Andersen declined. [Id. at ASOF9-10] Plaintiff thus continued to walk home. [Id. at ASOF11]

         At approximately 9:53 p.m., Officer Andrew Tope, who was also working a DUI enforcement shift, came upon Plaintiff walking along East Harmony Road in rural Timnath. [Id. at ASOF12-15] The portion of East Harmony Road where Officer Tope encountered Plaintiff is a two-lane road without a sidewalk and is not well-lit. [Id. at ASOF15, 17] At the time, Plaintiff, who is approximately six-feet, five-inches tall and weighed at least 185 pounds, was wearing a dark sweatshirt and jeans.^[2] [Id. at ASOF19, 49]

         Officer Tope engaged Plaintiff to conduct a welfare check. [Id. at ASOF25] Officer Tope parked behind Plaintiff and turned on his overhead lights. [Id. at ASOF26] Plaintiff believed Officer Tope was Officer Andersen, who had just recently refused to give Plaintiff a ride. [Id. at ASOF32] An exchange occurred between Officer Tope and Plaintiff, and Plaintiff continued walking. [Id. at ASOF27] Officer Tope then pulled his patrol vehicle directly behind Plaintiff and told Plaintiff to stop and speak with him. [Id. at ASOF29] A further exchange occurred in which Plaintiff spoke to Officer Tope in a tone of voice that conveyed both frustration and irritation. [Id. at ASOF30] Plaintiff told Officer Tope to stop harassing him and, at some point during the conversation, called Officer Tope a smartass. [Id. at AUSF30-31]

         At 9:55 p.m., Officer Andersen arrived on the scene. [Id. at ASOF37] When Officer Andersen arrived, Plaintiff was exhibiting animated gestures consistent with someone expressing frustration. [Id. at ASOF38] Upon his arrival, Officer Andersen took over the situation and made himself the primary officer. [Id. at ASOF42] Officer Andersen requested that Plaintiff provide his identification. [Id. at ASOF39] An exchange occurred and Plaintiff called Officer Andersen a bully. [Id. at ASOF39, 44] During this initial interaction, Plaintiff raised his hands in the air; Plaintiff maintains he did this to show the officers that he was not a threat. [Id. at ASOF47]

         Officer Andersen has testified that he was concerned Plaintiff would strike him, but Plaintiff has filed a sworn declaration stating that he did not take any aggressive action and, indeed, shouted out that he was not resisting. [Id. at ASOF51; #25-2 at ¶ 50] In any event, Officer Andersen applied a wristlock maneuver (the “Koga Hold”) to Plaintiff. [#31-1, ASOF55] While Officer Andersen has testified that the Koga Hold does not cause significant pain, Plaintiff maintains that the maneuver did cause him extraordinary pain. [Id. at ASOF55, 121] Officer Andersen then placed Plaintiff in handcuffs. [Id. at ASOF55] At the time of the handcuffing, Plaintiff had not committed any crime. [Id. at ASOF 106]

         As with much of the events that evening, what happened next is a matter of dispute. Plaintiff maintains that Officer Andersen told Plaintiff that he was “going to jail, ” though Officer Andersen denies making any such statement. [Id. at ASOF56] Officer Andersen, on the other hand, testified that he was concerned Plaintiff may have a weapon and therefore he decided to walk Plaintiff to Officer Tope's vehicle so that Officer Andersen could conduct a pat-down search of Plaintiff. [Id. at ASOF57-58] Prior to Officer Andersen applying the Koga Hold and walking Plaintiff to Officer Tope's vehicle, neither officer had observed a weapon or any obvious signs of one. [Id. at ASOF 97]

         Once they reached Officer Tope's vehicle, Officer Andersen maintains he began patting Plaintiff down for weapons. [Id. at ASOF61] Plaintiff, on the other hand, maintains that Officer Andersen shoved his knee and thigh into Plaintiff's groin and then conducted the search. [Id. at ASOF61, 126] According to Plaintiff, Officer Andersen's “pat-down” search included digging into Plaintiff's pants pockets. [Id. at ASOF61, 130] Plaintiff further maintains that Officer Andersen would forcibly pull Plaintiff's handcuffed hands away from his body, up towards the sky, then slam Plaintiff's body back down into the patrol car. [Id. at ASOF 129] According to Plaintiff, this caused Plaintiff's head to hit the hood of the vehicle, causing Plaintiff pain. [Id. at ASOF125] Plaintiff maintains that he continues to suffer from shoulder and wrist pain as a result of the incident. [Id. at ASOF 133]

         While this was occurring, Officer Tope stood to the side holding Plaintiff's arm. [Id. at ASOF65, 108] Officer Tope's role as cover officer was to watch the scene, make sure no other subjects approached, monitor traffic, and generally survey the parties' surroundings to protect everyone's safety. [Id. at ASOF66] Officer Tope has testified that Plaintiff's torso was in his field of vision, but that he was watching the roadway and was not paying much attention to Plaintiff. [#25-4 at 19-20] Plaintiff claims that after Officer Andersen first slammed Plaintiff's body onto the hood, Plaintiff reached out to Officer Tope and said “I am not resisting! Help me!” [#32-1, TSOF113] Plaintiff also claims that he screamed out in pain. [Id. at TSOF141] Officer Tope disputes Plaintiff's allegations. [Id. at TSOF113, 141]

         According to Officer Andersen, during the pat-down, Plaintiff's right elbow struck the right side of Officer Andersen's face. [#31-1, ASOF68] Plaintiff denies that his right elbow ever struck Officer Andersen. [Id.] Officer Tope testified that he did not see Plaintiff strike Officer Andersen. [Id. at ASOF69] Officer Andersen announced that Plaintiff had struck Officer Andersen in the face, and then placed Plaintiff inside his patrol car. [Id. at ASOF70] Officer Andersen then transported Plaintiff to the Larimer County Jail. [Id. at ASOF73] During the transport, Plaintiff called Officer Andersen a “liar” and a “piece of shit, ” and told Officer Andersen that there is a “special place in hell for him.” [Id. at ASOF75]

         Following Plaintiff's arrest, Officer Andersen completed an Affidavit in Support of Warrantless Arrest. [Id. at ASOF87] Based upon this Affidavit, on October 8, 2017, Larimer County Court Judge Thomas Lynch found probable cause to arrest Plaintiff for Second Degree Assault. [#20-11] Plaintiff remained in custody for three days. [Id. at ASOF141] Plaintiff was prosecuted and his case was tried to a jury in May 2018. [Id. at ASOF143-44; #20-10 at 2] A jury acquitted Plaintiff after approximately fifteen minutes of deliberation.^[3] [#31-1 at ASOF144]

         On October 16, 2018, Plaintiff filed the instant lawsuit, asserting claims pursuant to 42 U.S.C. § 1983 against Officer Andersen for false arrest, excessive force, unlawful search, false imprisonment, malicious prosecution, and retaliation for exercise of Plaintiff's First Amendment rights, and against Officer Tope for excessive force, unlawful search, false arrest, and failure to intervene to stop Officer Andersen's alleged unlawful search, seizure, assaults, false arrest, and malicious prosecution of Plaintiff. [#1] On January 7, 2019, prior to the Court entering a Scheduling Order, Officer Andersen and Officer Tope filed separate motions for summary judgment, seeking judgment in their favor on all of the claims asserted against them. [#20, 21] On January 29, 2019, Plaintiff filed separate responses to the motions for summary judgment. [#25, 26] On February 11, 2019, Officer Andersen and Officer Tope filed replies in support of their motions for summary judgment. [#31, 32] On February 13, 2019, the Court granted Defendants' motion for protective order and stayed all discovery pending resolution of Defendants' motions for summary judgment. [#33] On May 3, 2019, the Court heard argument from the parties on Defendants' motions for summary judgment. [#35]

         II. STANDARD OF REVIEW

         Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir. 1994). The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact, which the movant may do “simply by pointing out to the court a lack of evidence . . . on an essential element of the nonmovant's claim” when the movant does not bear the burden of persuasion at trial. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir.1998). If the movant carries this initial burden, the burden then shifts to the nonmovant “to go beyond the pleadings and set forth specific facts that would be admissible in evidence in the event of trial.” Id. at 671 (quotation omitted).

         “[A] ‘judge's function' at summary judgment is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury. See Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). Evidence, including testimony, offered in support of or in opposition to a motion for summary judgment must be based on more than mere speculation, conjecture, or surmise. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable juror could return a verdict for either party. Anderson, 477 U.S. at 248. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). In reviewing a motion for summary judgment, the Court “view[s] the evidence and draw[s] reasonable inferences therefrom in the light most favorable to the non-moving party.” See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).

         III. ANALYSIS

         Defendants have moved for summary judgment on each of Plaintiff's claims. Defendants contend that the undisputed facts demonstrate that they did not violate Plaintiff's constitutional rights and that, in any event, they are entitled to qualified immunity.

         “Qualified immunity ‘protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Weise v. Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation omitted)). To defeat a claim of qualified immunity, a plaintiff must demonstrate: (1) that the facts alleged make out a violation of a constitutional right, and (2) that the right at issue was “clearly established” at the time of the defendant's alleged misconduct. See Thomas v. Durastanti, 607 F.3d 655, 662 (10th Cir. 2010).

         The requirement that the right be clearly established presents a “demanding standard” intended to ensure the protection of “all but the plainly incompetent or those who knowingly violate the law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether the constitutional right was clearly established at the time of the misconduct, the Tenth Circuit has explained:

A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established. In the Fourth Amendment context, the result depends very much on the facts of each case, and the precedents must squarely govern the present case.

Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has “not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity.” Wesby, 138 S.Ct. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)). The Supreme Court has “repeatedly stressed that courts must not define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Wesby, 138 S.Ct. at 590 (quotation omitted).

         A. Plaintiff's False Arrest/Imprisonment and Malicious Prosecution Claims

         Claim One alleges that Officer Andersen falsely arrested Plaintiff, in violation of the Fourth Amendment, when he applied the Koga Hold and handcuffed Plaintiff. [#1 at 14-15] Claim Four alleges that Officers Andersen and Tope falsely arrested Plaintiff when they arrested Plaintiff and transported him to the Larimer County Jail. [Id. at 18-19] Claim Six alleges that Officer Andersen falsely imprisoned Plaintiff, in violation of the Fourth Amendment, when he formally arrested Plaintiff, transported him to the Larimer County Jail, and began criminal proceedings against Plaintiff.^[4] [Id. at 21] Finally, Claim Seven alleges that Officer Andersen maliciously prosecuted Plaintiff, in violation of the Fourth Amendment, when he submitted the Affidavit that began the institution of criminal proceedings against Plaintiff.[5] [Id. at 22-23]

         “Section 1983 provides a cause of action for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of state law.” Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004) (quoting 42 U.S.C. § 1983). Courts “use[ ] the common law of torts as a ‘starting point' for determining the contours of claims of constitutional violations under § 1983.” Id. at 1286. However, “[a]lthough the common law tort serves as an important guidepost for defining the constitutional cause of action, the ultimate question is always whether the plaintiff has alleged a constitutional violation.” Id. at 1289.

         Colorado common law prescribes only three elements for a claim of false arrest: “(1) The defendant intended to restrict the plaintiff's freedom of movement; (2) The defendant, directly or indirectly, restricted the plaintiff's freedom of movement for a period of time, no matter how short; and (3) The plaintiff was aware that [her] freedom of movement was restricted.” Colo. Jury Instr.-Civ. (“CJI-Civ.”) § 21:1 (2018). Even if these three elements are met, Defendants can defeat a false arrest claim if there was probable cause for the arrest.^[6]

         “[A] false imprisonment ends once the victim becomes held pursuant to [legal] process.” Wallace v. Kato, 549 U.S. 384, 389 (2007) (emphasis omitted). “If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more.” Id. at 390 (quotation omitted). “From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself.” Id. (quotation omitted).

         A Section 1983 malicious prosecution claim consists of the following elements: “(1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008). The Tenth Circuit has “repeatedly recognized” that “the relevant constitutional underpinning for a claim of malicious prosecution under § 1983 must be ‘the Fourth Amendment's right to be free from unreasonable seizures.'” Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007) (quoting Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)). A “seizure” thus “is necessary to support [Plaintiff's] § 1983 malicious prosecution claim based on the initiation of criminal proceedings that [we]re dismissed.” Id. Because of this seizure requirement, “[a] groundless charging decision may abuse the criminal process, but it does not, in and of itself, violate the Fourth Amendment absent a significant restriction on liberty.” Id. at 915.

         With these principles in mind, the Court turns to the false imprisonment and malicious prosecution claims against Officers Andersen and Tope.

         1. Claim One

         Claim One alleges that Officer Andersen falsely arrested Plaintiff when he applied the Koga Hold and handcuffed Plaintiff. [#1 at 14-15] Claim Five alleges that Officer Tope failed to intervene to prevent this allegedly unlawful arrest. [Id. at 19-20] Officers Andersen and Tope argue that Plaintiff has failed to establish a constitutional violation and, in any event, that the right at issue was not clearly established. [#20 at 4-6; #21 at 12-14] The Court addresses each argument below.

         a. The Constitutional Violation

         Officer Andersen argues that his use of the Koga Hold and handcuffing did not constitute an arrest. [#20 at 4-5] Officer Tope incorporates by reference the arguments raised by Officer Andersen and further argues that Plaintiff failed to present evidence sufficient to prove that Officer Tope had a realistic opportunity to intervene. [#21 at 13-14] The Court addresses each officer's actions separately.

         i. Officer Andersen

         Officer Andersen argues that he is entitled to summary judgment on Claim One because the undisputed facts demonstrate that he had only engaged Plaintiff in a noninvestigatory detention and never arrested Plaintiff. [#20 at 4-5] The Supreme Court has recognized that police officers are permitted to exercise “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence related to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “In the course of exercising this noninvestigatory function, a police officer may have occasion to seize a person, as the Supreme Court has defined the term for Fourth Amendment purposes, in order to ensure the safety of the public and/or the individual, regardless of any suspected criminal activity.” United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993). “Whether the seizure of a person by a police officer acting in his or her noninvestigatory capacity is reasonable depends on whether it is based on specific articulable facts and requires a reviewing court to balance the governmental interest in the police officer's exercise of his or her ‘community caretaking function' and the individual's interest in being free from arbitrary government interference.” Id.

         There are two problems with Officer Andersen's attempts to classify his actions as a valid, noninvestigatory detention. First, he fails to point to facts that would justify the level of intrusion he applied. The undisputed facts demonstrate that Plaintiff was walking along a country road past dark. Plaintiff may have been animated, but the officers did not observe Plaintiff with any weapons, and Plaintiff maintains that he was cooperating and not being aggressive toward the officers. [#31-1, ASOF97, 102, 103] While this event may have justified speaking to Plaintiff to make sure he was alright, Officer Andersen has not offered undisputed facts that would justify placing Plaintiff in a Koga Hold and then handcuffs. See United States v. Soza, 686 Fed.Appx. 564, 568 (10th Cir. 2017) (“[I]n the cases where we have upheld officers' brandishing of firearms and use of handcuffs during an investigatory Terry stop, the officers generally either knew or had reason to believe the suspects were armed, or they had personally witnessed the suspects acting violently.”); Lundstrom v. Romero, 616 F.3d 1108, 1123 (10th Cir. 2010) (finding that community caretaking role did not justify use of handcuffs where plaintiff did not act in a threatening manner or refuse to cooperate with police).

         Second, Plaintiff has presented evidence, although disputed by Defendants, that Officer Andersen's actions did rise to the level of a formal arrest. In determining whether a formal arrest has occurred, courts ask whether “a reasonable person in the suspect's position would have understood the situation as the functional equivalent of formal arrest.” United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008) (quotation omitted). While not always the case, the use of handcuffs generally raises the encounter to that of a formal arrest. Cortez v. McCauley, 478 F.3d 1108, 1115-16 (10th Cir. 2007). Here, not only did Officer Andersen place Plaintiff in handcuffs, but according to Plaintiff's sworn testimony, he also told Plaintiff that Plaintiff was going to jail.^[7] [#31-1, ASOF56] Any reasonable person, placed in handcuffs and told that he was going to jail, would have understood that he was under arrest. See Barton v. City & Cty. of Denver, 432 F.Supp.2d 1178, 1192-93 (D. Colo. 2006) (finding that plaintiff was under formal arrest, not investigative detention, where she claimed that she was handcuffed and told she could either talk to officers or she was “going to jail”). And, it is undisputed that Officer Andersen did not have probable cause to arrest Plaintiff at the time that he placed Plaintiff in the handcuffs. [#31-1, ASOF106]

         Accordingly, the Court concludes that, viewing the evidence and drawing reasonable inferences therefrom in the light most favorable to Plaintiff, there is sufficient evidence from which a reasonable jury could conclude that Officer Andersen unlawfully seized Plaintiff when he placed Plaintiff in a Koga Hold, handcuffed him, and-according to Plaintiff-told Plaintiff he was going to jail.

         ii. Officer Tope

         Plaintiff alleges that Officer Tope also violated his constitutional rights by failing to intervene to stop Officer Andersen from arresting him by applying the Koga Hold and handcuffs. [#1 at 19-20] The Tenth Circuit has made clear that while personal involvement is necessary for Section 1983 liability, “[p]ersonal involvement is not limited solely to situations where a defendant violates a plaintiff's rights by physically placing hands on him.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). “An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know . . . that any constitutional violation has been committed by a law enforcement official.” Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008) (quotation omitted). However, “[i]n order to be liable for failure to intervene, [an] officer[ ] must have observe[d] or ha[d] reason to know of a constitutional violation and have had a realistic opportunity to intervene.” Jones v. Norton, 809 F.3d 564, 576 (10th Cir. 2015) (quotation omitted).

         To the extent Officer Tope argues that he is not liable for failing to intervene because Officer Andersen's use of the Koga Hold and handcuffing did not constitute an arrest [#21 at 13], the Court rejects that argument for the same reasons it rejected Officer Andersen's argument that he had not committed a constitutional violation by applying the Koga Hold and handcuffs. Officer Tope also argues that Plaintiff has not presented sufficient evidence for a jury to conclude that he had a realistic opportunity to intervene. [id. at 13-14] “Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Vondrak, 535 F.3d at 1210 (quotation omitted).

         Here, considering all the evidence, the Court cannot conclude that a reasonable jury could not possibly find that Officer Tope had sufficient time to intercede to prevent Officer Andersen from performing the Koga Hold and handcuffing Plaintiff. It is undisputed that Officer Tope observed Officer Andersen place Plaintiff in a Koga Hold and handcuff him, and that Officer Tope did not take any steps to intervene or even express disapproval. [#32-1, TOSF47] Officer Tope is the officer who originally stopped Plaintiff on the side of the road to conduct a welfare check and he did not believe it necessary to restrain Plaintiff with a Koga Hold or handcuffs. [Id. at TOSF26, 28, 33] Further, Officer Tope testified that the dynamic between Plaintiff and the officers did not change from the beginning of the encounter until the time when Officer Andersen initiated the Koga Hold, and that he did not see anything to precipitate the need for handcuffs at the time Officer Andersen applied them. [#26-4 at 13, 15] To the contrary, Officer Tope testified that Plaintiff followed the officers' instructions and did not appear to pose any threat to the officers. [Id. at 59-60]

         Although there may not have been time for Officer Tope to intervene to stop the application of the Koga Hold, Officer Tope described this maneuver as the “standard handcuffing procedure” [#26-4 at 15], and Officer Tope thus was aware as soon as Officer Andersen initiated the hold, that he intended to handcuff Plaintiff. Officer Tope testified that the maneuver involved twisting Plaintiff's wrist behind his back and then ordering Plaintiff to put his other hand on top of his head. [Id.] The Court thus cannot conclude that no reasonable jury could possibly find that Officer Tope did not have time between when Officer Andersen first grabbed Plaintiff's wrist and when he applied the handcuffs to intervene to stop Officer Andersen. Yet, despite his testimony that he had not observed any change in Plaintiff's behavior to justify handcuffing him, Officer Tope took no action to intervene or express objection to Officer Andersen applying the handcuffs, which as explained above constituted an unlawful seizure. The Court thus finds the evidence submitted by Plaintiff, if believed, sufficient to support a claim against Officer Tope for failing to intervene to stop Officer Andersen from handcuffing Plaintiff.

         b. Clearly Established Law

         Officers Andersen and Tope further argue that, even if the Court were to find a constitutional violation, they are entitled to qualified immunity, because Plaintiff cannot establish that the right violated was clearly established. [#20 at 5-6; #21 at 14] The Court addresses the right allegedly violated by each officer separately.

         i. Officer Andersen

         In Lundstrom, the Tenth Circuit found that police officers responding to a 911 call reporting potential child abuse illegally detained the two residents of the house by handcuffing them during their investigation of the report. 616 F.3d at 1122-25. When the first officer responded to the scene, the male occupant of the house became upset when he was informed of the purpose of the officer's presence and refused to exit the house. Id. at 1116. The female occupant of the house then exited the house to speak with the officers who had reported to the scene. Id. Before asking her any questions, the officers handcuffed her, patted her down, and sat her on the curb. Id. at 1117. Meanwhile, the male occupant of the house was inside speaking with a 911 dispatcher, who told him that there were four or five officers outside his house who would “point their gun[s] at [him] if [he] refuse[d] to come out” of the house. Id. The male eventually exited his house with his hands raised, at which point the officers handcuffed him and patted him down. Id. at 1117-18. The Tenth Circuit held that the officers unlawfully detained the female occupant of the house, because “[e]ven granting the officers some latitude in undertaking their community caretaking role, the actions they took in the course of detaining [the female occupant] were not reasonably related in scope to the investigation.” Id. at 1123. The Tenth Circuit emphasized that “every fact presented to [the officers] since their arrival at the home indicated there was no ongoing emergency” and the female occupant “did not act in a threatening manner, nor did she refuse to cooperate with police.” Id. The Tenth Circuit ...