United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION FOR PARTIAL SUMMARY
S. Krieger Senior United States District Judge.
MATTER comes before the Court pursuant to Defendants
Robert Schuster (“Officer Schuster”), Robert
Grafner (“Officer Grafner”), and Kevin
McCann's (“Officer McCann”) Motion for
Partial Summary Judgment (# 45), Plaintiff
Branson Garife's (“Mr. Garife”) response
(# 48), and the Officers' reply
(# 50). For the reasons that follow, the
motion is granted in part and denied in part.
Court exercises jurisdiction under 28 U.S.C. § 1331.
Court assumes the reader's familiarity with the claims
and underlying proceedings in this case. The facts,
set forth in the briefing, are supported by dash cam video
recordings (# 47), the Officers'
affidavits (# 45-1-4), Officer
Schuster's Statement in Support of Warrantless Arrest
(# 48-2), and Officer Grafner's Case
Narrative (# 48-3).
16, 2016 at approximately 11:30 p.m., Officer Grafner, a Town
of Castle Rock police officer, was driving his patrol car
when he noticed a “suspicious” vehicle parked
outside a liquor store. (# 45-1 at 1).
Officer Grafner observed a man leaning into the window of the
driver's side of the vehicle, which was occupied by a
male driver and three female passengers. Officer Grafner
initially thought the vehicle occupants might be underage,
and he suspected that the man might be buying alcohol for
them at the liquor store. (# 45-1 at 1).
Officer Grafner parked his patrol car. (# 45-1 at
2). While not entirely clear from the evidence, it
appears the man then entered the liquor store. Officer
Grafner walked up to the vehicle where he saw that one of the
passengers had an open Corona beer in her hand while another
passenger had a closed Budweiser Limearita in her lap.
(# 45-1 at 2). Officer Grafner asked the
driver and passengers their ages, and they all confirmed they
were under 21 years of age. (# 45-1 at 2).
Officer Grafner, concerned with locating the source of the
alcohol and the reason the minors were parked outside a
liquor store, called for additional officers to respond.
(# 45-1 at 2). Officers Schuster and McCann
responded at some point thereafter. (# 45-1 at 2; #
45-2 at 1; # 45-3 at 2).
Grafner saw the same man (who had previously been leaning
against the vehicle) exit the liquor store holding a bottle
of vodka. (# 45-1 at 2). The man approached
the vehicle and attempted the enter the passenger side.
(# 45-1 at 2). For safety reasons and
because Officer Grafner considered the vehicle a crime scene,
he directed the man to the front of the vehicle to sit on the
sidewalk against the wall of the liquor store. (#
45-1 at 2). Officer Grafner informed the man that
the vehicle's occupants were minors and in possession of
alcohol. (# 45-1 at 3). At some point, the
Officers looked at the man's passport and identified him
as Branson Garife, age 21. (# 45-1 at 3; # 45-2 at
2). Both Mr. Garife and one of the passengers told
Officer Grafner that Mr. Garife had not provided the
alcohol found in the vehicle. (# 45-1 at 3).
Grafner ordered the underage occupants to exit the vehicle
and sit on the sidewalk about ten feet away from Mr. Garife,
and he and Officer Schuster began to search the vehicle.
(#45-1 at 3; # 45-2 at 2; #45-3 at 2).
Officer Grafner separated Mr. Garife from the others to
prevent any communications which might compromise the
investigation. (# 48-3). Officers Grafner
and Schuster found an open Corona bottle and several
additional Limearita cans in the back seat. Officer Schuster
also found marijuana paraphernalia. (# 45-1 at 3; #
45-2 at 2; # 45-3 at 2).
the search, Officers Schuster and McCann monitored the
detained individuals sitting on the sidewalk. (# 45-1
at 3; # 45-2 at 2, # 45-3 at 2). Mr. Garife
attempted to stand up and move closer to the driver and
passengers. Officer Schuster directed him to sit back down.
(#45-1 at 3; # 45-2 at 2; # 45-3 at 2). Mr.
Garife stood up again, walked over to where the driver was
sitting and sat down. (# 45-1 at 3, # 45-2 at 3; #
45-3 at 2). Officer Schuster directed Mr. Garife to
immediately return to where he was originally seated. When
Mr. Garife refused to comply, the Officers arrested him for
Obstructing a Peace Officer by taking him to the ground,
handcuffing, and placing him in a patrol
vehicle. (# 45-1 at 4; # 45-2 at 3; # 45-3
Grafner cited the driver and the passengers for violation of
Colo. Rev. Stat. § 18-13-22, being minors in possession
of alcohol and/or marijuana paraphernalia. Mr. Garife was
charged with violation of Colo. Rev. Stat. § 18-8-104,
Obstructing a Peace Officer and Colo. Rev. Stat. §
18-8-103, Resisting Arrest. (# 45-2 at 3).
April 24, 2018, the Court issued an Order on the
Officers' motion to dismiss, dismissing: all claims
asserted against the Town of Castle Rock, Colorado; Claim 9
against Officer McCann for a Fourth Amendment violation of
failure to intervene in Mr. Garife's arrest; and Claim 12
against Officer McCann for a Fourth Amendment violation in
failing to report use of excessive force in Mr. Garife's
arrest. (# 36). Accordingly, the following
claims remain: (1) Fourth Amendment illegal stop
asserted against Officer Schuster and Officer Grafner; (2)
Fourth Amendment unlawful arrest asserted against Officer
Schuster, Officer Grafner, and Officer McCann; and (3) Fourth
Amendment excessive force asserted against Officer Grafner
and Officer Schuster.
these claims only the illegal stop and unlawful arrest are at
issue in this motion. The Officers move for partial summary
judgment on Mr. Garife's Fourth Amendment claims for lack
of reasonable suspicion and lack of probable cause and assert
the doctrine of qualified immunity. In response, Mr. Garife
contends that there are disputed issues of material fact
precluding entry summary judgment.
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine
dispute as to any material fact and a party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive
law governs what facts are material and what issues must be
determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of
proof and identifies the party with the burden of proof.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). A factual dispute is “genuine” and summary
judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if
presented at trial, a judgment could enter for either party.
See Anderson, 477 U.S. at 248. When considering a
summary judgment motion, a court views all evidence in the
light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
movant has the burden of proof on a claim or defense, the
movant must establish every element of its claim or defense
by sufficient, competent evidence. See Fed. R. Civ.
P. 56(c)(1)(A). Once the moving party has met its burden, to
avoid summary judgment the responding party must present
sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.
1999). If there is a genuine dispute as to a material fact, a
trial is required. If there is no genuine dispute as to any
material fact, no trial is required. The court then applies
the law to the undisputed facts and enters judgment.
moving party does not have the burden of proof at trial, it
must point to an absence of sufficient evidence to establish
the claim or defense that the non-movant is obligated to
prove. If the respondent comes forward with sufficient
competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to
produce sufficient competent evidence to establish its claim
or defense, then the movant is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
immunity protects individual state actors from civil
liability if their conduct “does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Messerschmidt
v. Millender, 565 U.S. 535, 546 (2012). Because of the
underlying purposes of qualified immunity, the Court treats
qualified-immunity questions differently from other questions
on summary judgment. See Thomas v. Durastanti, 607
F.3d 655, 662 (10th Cir. 2010). After a defendant asserts
qualified immunity, the burden shifts to the plaintiff, who
must: (1) show facts that “make out a violation of a
constitutional right, ” and (2) establish that, at the
time of the conduct at issue, it was clearly established
under existing law that the defendant's conduct breached
the constitutional right. Pearson v. Callahan, 555
U.S. 223, 232 (2009). The Court may address these questions
in whichever order is best suited to the case. If the
plaintiff fails to satisfy either prong of this inquiry, the
Court “must grant the defendant qualified
immunity.” Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1186 (10th ...