United States District Court, D. Colorado
A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Recommendation of the
United States Magistrate Judge [Docket No. 27] filed on June
25, 2019. The magistrate judge recommends that the Court
grant Defendant’s Motion to Dismiss [Docket No. 17] on
the basis of qualified immunity. Docket No. 27 at 1, 15.
Plaintiffs, proceeding pro se, filed a timely
objection to the magistrate judge’s recommendation on
July 15, 2019. Docket No. 30. Defendant filed a response to
plaintiffs’ objection on July 26, 2019, Docket No. 31,
to which plaintiffs replied on August 9, 2019. Docket No. 32.
case arises out of plaintiffs’ encounter with defendant
Matthew Gosselin, a police officer with the Westminster
Police Department, on September 4, 2016. See Docket
No. 7 at 4-6, ¶¶ 1-5. As summarized in more detail
in the magistrate judge’s recommendation, plaintiffs
were standing on opposite off-ramps of U.S. Route 36 in
Westminster, Colorado, holding cardboard signs that said,
“Change Comes In Many Forms, ” when they were
approached by defendant who informed them that they were in
violation of the city’s anti-solicitation ordinance.
Id., ¶¶ 2-6. Defendant issued a verbal
warning to plaintiff David Montgomery and a written citation
to plaintiff William Montgomery, which was ultimately
dismissed. Id. at 4-5, 9, 18, 25, ¶¶ 2, 9,
filed this lawsuit on September 4, 2018. Docket No. 1. In
their operative complaint, plaintiffs assert three claims:
(1) retaliation against protected speech in violation of the
First Amendment; (2) unreasonable seizure under the Fourth
Amendment; and (3) retaliatory prosecution in violation of
the First Amendment. See Docket No. 7 at 25, 27, 36.
On February 5, 2019, defendant moved to dismiss all claims on
the basis of qualified immunity. See Docket No. 17.
On June 25, 2019, the magistrate judge recommended that the
Court grant defendant’s motion, finding that plaintiffs
had not established the causal element of their First
Amendment retaliation claim, Docket No. 27 at 7; failed to
cite clearly established law showing that plaintiffs’
detentions – which, according to the magistrate judge,
did not rise above the level of investigative detentions
– violated plaintiffs’ rights under the Fourth
Amendment, id. at 10-12; and failed to allege that
defendant acted with malice in order to succeed on their
malicious prosecution claim. Id. at
STANDARD OF REVIEW
Court must “determine de novo any part of the
magistrate judge’s disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3). An objection is
“proper” if it is both timely and specific.
United States v. One Parcel of Real Property Known as
2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).
absence of a proper objection, the Court reviews the
magistrate judge’s recommendation to satisfy itself
that there is “no clear error on the face of the
record.”Fed. R. Civ. P. 72(b), Advisory Committee
plaintiffs are proceeding pro se, the Court
construes their filings liberally without acting as their
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
do not challenge the magistrate judge’s recommendation
as to their retaliation and malicious prosecution claims.
Regarding their claim for unreasonable seizure under the
Fourth Amendment, plaintiffs contend that the magistrate
judge erred by: (1) incorrectly concluding that
defendant’s detention of plaintiffs did not rise to the
level of an arrest under the Fourth Amendment; and (2)
holding that a reasonable officer in defendant’s
position would not have understood his conduct to be
unlawful. See Docket No. 30 at 1, 7-9.
Arrest Versus Investigative Detention
relevant to plaintiffs’ first argument, the magistrate
judge determined that defendant’s encounter with
plaintiffs constituted investigative detentions under the
Fourth Amendment because there were no allegations that
defendant used “any force or threat of force, ”
his conversations with plaintiffs were “predominantly
cordial, ” and the encounters were relatively brief
– nine and nineteen minutes with David and William,
respectively. Docket No. 27 at 9. Plaintiffs challenge the
magistrate judge’s legal conclusion on two grounds.
First, they contend that defendant converted William’s
stop into an arrest for Fourth Amendment purposes by issuing
a written citation. Second, plaintiffs argue that defendant
exceeded the scope of an investigatory stop because he (1)
did not make any effort to determine whether plaintiffs had
actually violated the anti-solicitation ordinance, Docket No.
30 at 5-6, and (2) “[i]ssuing warnings, even for a
brief moment, is longer than is necessary to effectuate the
purpose of either dispelling or confirming an officer’s
reasonable suspicion.” Id. at 6 (internal
quotation marks and brackets omitted). Neither of these
arguments is persuasive.
the first, the Tenth Circuit has held that the
“issuance of a citation, even under threat of jail if
not accepted, does not rise to the level of a Fourth
Amendment seizure.” Martinez v. Carr, 479 F.3d
1292, 1299 (10th Cir. 2007). In Martinez, the
plaintiff received a criminal misdemeanor citation for
“resisting, evading or obstructing an officer”
after he was involved in an altercation with law enforcement
at a state fair. Id. at 1293-94 (internal quotation
marks omitted). The plaintiff sued the issuing officer for
unreasonable seizure under the Fourth Amendment; however,
because the defendant was not involved in the
plaintiff’s initial detention, the case
“present[ed] the pure legal question whether the
issuance of a misdemeanor citation requiring appearance at
trial in lieu of arrest constitutes a ‘seizure’
for Fourth Amendment purposes.” Id. at 1295.
The Tenth Circuit held that it did not, relying in part on
Knowles v. Iowa, 525 U.S. 113 (1998), in which the
Supreme Court concluded that, “even after the issuance
of a citation, a routine traffic stop is more analogous to a
so-called ‘Terry stop’ than to a formal
arrest.” Martinez, 479 F.3d at 1296 (quoting
Knowles, 535 U.S. at 117). The Tenth Circuit
reasoned that, “[a]s in Knowles, Officer Carr
did not qualitatively alter the nature of Mr.
Martinez’s preexisting detention simply by issuing a
citation, even under threat of jail if the citation was not
Martinez involves the preliminary question of
whether conduct rises to the level of a seizure under the
Fourth Amendment, the Tenth Circuit’s reasoning
supports a conclusion that the issuance of a citation is not
sufficient, by itself, to elevate an investigatory detention
into an arrest for Fourth Amendment purposes. See
Petrello v. City of Manchester, 2017 WL 3972477, at
*14-15 (D.N.H. Sept. 7, 2017) (holding, based on case law
establishing that the issuance of a summons does not
constitute a seizure, that the issuance of a summons does not
elevate an investigatory stop to a detention requiring
probable cause); White v. City of Laguna Beach, 679
F.Supp.2d 1143, 1155 (C.D. Cal. 2010) (citing
Martinez and observing that “[n]umerous courts
have held that the mere issuance of a citation does not even
constitute a seizure, let alone a formal arrest”).
Other Tenth Circuit decisions confirm that issuing a verbal
warning or citation is consistent with the scope and purpose
of an investigatory detention. See, e.g., United
States v. Burleson, 657 F.3d 1040, 1045-50 (10th Cir.
2011) (holding that an officer did not exceed the scope of a
Terry stop by ...