Montgomery v. Gosselin

          ORDER

          PHILIP A. BRIMMER, CHIEF UNITED STATES DISTRICT JUDGE.

         This 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.^[1] 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.

         I. BACKGROUND

         This 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, 16, 22.

         Plaintiffs 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 13-14.^[2]

         II. STANDARD OF REVIEW

         The 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).

         In the 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.”^[3]Fed. R. Civ. P. 72(b), Advisory Committee Notes.

         Because 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).

         III. ANALYSIS

         Plaintiffs 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.

         A. Arrest Versus Investigative Detention

         As 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.^[4] 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.

         As to 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 accepted.” Id.

         While 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 ...