United States District Court, D. Colorado
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 ...