Handy v. Fisher

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge R. Brooke Jackson

Civil Action No. 18-cv-789-RBJ-SKC

WYATT T. HANDY, JR and

ASHLEE M. HANDY,

Plaintiffs,

v.

TERA L. FISHER and

BRANDON H. JOHNSON,

Defendants.

ORDER

This case is before the Court on defendants’ motion for summary judgment, ECF No. 80.

For the reasons stated below, the motion is granted.

BACKGROUND

I previously described the facts in this case in my order on Magistrate Judge Crews’

recommendation on defendants’ motion to dismiss. See ECF No. 47. I restate those facts here

with some additions.

Pro se Plaintiffs Ms. Ashlee Handy and Mr. Wyatt Handy were driving along Highway

285 to visit a friend in Conifer, Colorado in the early morning of April 14, 2016 when the alleged

incident occurred. ECF No. 1 ¶ 8. Three people were in the vehicle: Ms. Handy, who is white,

was driving; Mr. Handy, who is black, was the front seat passenger; and an unidentified white

female passenger sat in the backseat behind Ms. Handy. Id. ¶ 9. At approximately 12:43 a.m.

plaintiffs stopped in the parking lot of the 24-hour Kum and Go convenience store in Conifer to

reprogram their GPS navigational unit. Id. ¶ 10. As plaintiffs pulled into the Kum and Go

located off Highway 285, they noticed Deputy Fisher’s patrol vehicle parked in the convenience

store’s parking lot. Id. ¶ 12. Mr. Handy alleges that he made eye contact with Deputy Fisher as

plaintiffs’ vehicle pulled into the Kum and Go parking lot. Id. ¶ 13.

Within one minute of parking, plaintiffs allege that Deputy Fisher repositioned her patrol

car behind plaintiffs’ vehicle and activated her emergency lights. Id. ¶ 15. Because plaintiffs’

car faced the Kum and Go building, plaintiffs were boxed in and unable to move their car. Id. ¶

16. Apparently, Deputy Fisher radioed for backup because, within “seconds,” several additional

officers arrived at the convenience store. Id. ¶¶ 17–18.

Deputy Johnson was one of those officers. With backup in place and their weapons

drawn, Deputy Fisher approached the driver’s side of the vehicle, and Deputy Johnson

approached the passenger’s side. Id. ¶¶ 19–20. Deputy Fisher asked Ms. Handy for her license,

insurance, and registration. Id. ¶ 22. Ms. Handy complied with the request, and then she

explained that she pulled over to reprogram her GPS. Id. ¶¶ 23–24. Deputy Fisher then asked

Mr. Handy for his identification “in a hostile manner.” Id. ¶¶ 24–25. Mr. Handy initially

refused to produce identification, and plaintiffs allege he only complied after defendants inferred

that he would be arrested if he did not produce identification. Id. ¶¶ 26–28. Defendants did not

request identification from the backseat passenger. Id. ¶ 31. Defendants claim that when Officer

Fisher ran Ms. Handy’s identification, it showed she was a protected party under a protection

order, and that the order restrained a male individual. ECF No. 80 ¶ 7. Defendants released

plaintiffs after they verified that there were no outstanding warrants pending against plaintiffs.

ECF No. 1 ¶ 30.

Defendants filed a motion to dismiss which Judge Crews recommended I grant in part

and deny in part. ECF No. 31, ECF No. 45. I adopted the recommendation and dismissed all of

plaintiffs’ claims except the 42 U.S.C. § 1983 claim against defendants in their individual

capacities alleging an unlawful seizure under the Fourth Amendment. ECF No. 47. On October

28, 2019 Defendants moved for summary judgment on plaintiffs’ remaining claim. ECF No. 80.

STANDARD OF REVIEW

A. Motion for Summary Judgment

The Court may grant summary judgment if “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). The

moving party has the burden to show that there is an absence of evidence to support the

nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving

party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A

fact is material “if under the substantive law it is essential to the proper disposition of the claim.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

The Court will examine the factual record and make reasonable inferences therefrom in the light

most favorable to the party opposing summary judgment. Concrete Works of Colo., Inc. v. City

and Cty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).

B. Pro se Litigants

When a case involves pro se litigants, courts will review their “pleadings and other

papers liberally and hold them to a less stringent standard than those drafted by attorneys.”

Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, it is not “the

proper function of the district court to assume the role of advocate for the pro se litigant.” Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff’s

pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on which a

recognized legal claim could be based.” Id. Pro se parties must “follow the same rules of

procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)

(internal quotation marks and citations omitted).

ANALYSIS

In support of their motion, Defendants argue only that plaintiffs have not shown a Fourth

Amendment violation, and therefore defendants are entitled to qualified immunity. ECF No. 80.

Qualified immunity protects government officials acting in their official capacity so long

as “their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When

qualified immunity is asserted by an official, a plaintiff must satisfy the burden of showing (1)

that the defendant violated a constitutional right (2) that was clearly established at the time of

violation. Pearson v. Callahan, 555 U.S. 223, 232, (2009). I address each prong of the qualified

immunity analysis in turn.

A. Fourth Amendment Violation

The Fourth Amendment protects “[t]he right of the people to be secure in their persons . .

. against unreasonable . . . seizures.” Whether a seizure is reasonable under the Fourth

Amendment depends on the type of encounter alleged. See, e.g., United States v. Shareef, 100

F.3d 1491, 1500 (10th Cir. 1996). “The Supreme Court has identified three types of

police/citizen encounters: consensual encounters, investigative stops, and arrests.” Oliver v.

Woods, 209 F.3d 1179, 1186 (10th Cir. 2000).

Consensual encounters are not seizures under the Fourth Amendment and need not be

supported by suspicion of criminal wrongdoing. Id. Arrests, on the other hand, are

“characterized by highly intrusive or lengthy search or detention.” United States v. Cooper, 733

F.2d 1360, 1363 (10th Cir. 1984), cert. denied, 467 U.S. 1255 (1984). Investigative stops (or

Terry stops) fall in the middle. See Terry v. Ohio, 392 U.S. 1, 26–27 (1968). An investigative

stop occurs when an officer stops and briefly detains a person for investigative purposes. Oliver,

209 F.3d at 1186. These stops are constitutional if the officer has a reasonable suspicion

supported by articulable facts that the detainees are involved in criminal activity, even if the

officer lacks the probable cause necessary for an arrest. Id.

Defendants argue that no Fourth Amendment violation occurred because the interaction

began as a consensual encounter in which the officers did not use force or a show of authority to

achieve compliance. ECF No. 80 at 5–6. Once the encounter evolved into a seizure, defendants

argue, it was only an investigative stop supported by reasonable suspicion. Id. Plaintiffs respond

that the initial contact was not a consensual encounter but an investigative stop unsupported by

reasonable suspicion. ECF No. 103 at 12. They also argue that defendants did not develop

reasonable suspicion justifying an investigative stop at any point during the encounter. Id. at 15.

1. Initial Contact

I first examine whether the initial contact defendants made with plaintiffs constituted a

seizure or a consensual encounter. If it was a seizure, I must then consider whether the seizure

was reasonable.

a. Whether the Initial Encounter was a Seizure

“An officer is free to approach people and ask questions without violating the Fourth

Amendment. However, the person approached under these circumstances is free to refuse to

answer questions and to end the encounter.” Oliver, 209 F.3d at 1186. “[I]n order to determine

whether a particular encounter constitutes a seizure, a court must consider all the circumstances

surrounding the encounter to determine whether the police conduct would have communicated to

a reasonable person that the person was not free to decline the officers' requests or otherwise

terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 439 (1991). The Tenth Circuit has

articulated several factors to consider in making this determination including:

the location of the encounter, particularly whether the defendant is “in an open

public place where he [is] within the view of persons other than law enforcement

officers,” . . . whether the officers “touch or physically restrain” the defendant; . . .

whether the officers are uniformed or in plain clothes; whether their weapons are

displayed; the number, demeanor and tone of voice of the officers; whether and

for how long the officers retain the defendant's personal effects such as tickets or

identification; and whether or not they have specifically “advised defendant at any

time that he had the right to terminate the encounter or refuse consent.”

United States v. Zapata, 997 F.2d 751, 756–57 (10th Cir. 1993) (quoting United States v. Ward,

961 F.2d 1526, 1534 (10th Cir. 1992)) (internal citations omitted). However, this list “is non-

exclusive and no one factor is dispositive.” United States v. Spence, 397 F.3d 1280, 1283 (10th

Cir. 2005) (quoting United States v. Abdenbi, 361 F.3d 1282, 1291 (10th Cir. 2004) and United

States v. Little, 18 F.3d 1499, 1504 (10th Cir. 1994)) (internal quotations omitted). Rather, “[t]he

focus of the test is on the coercive effect of police conduct, taken as a whole on a reasonable

person.” Id.

Turning to the facts here, the parties agree that the interaction took place in the middle of

the night; that defendant Fisher was in a marked car which she pulled behind the plaintiffs’

parked vehicle; that she activated her overhead lights; that shortly after, at least one other officer

arrived on the scene; and that officers approached the car from either side. ECF Nos. 80 at 2–3;

103 at 1–5. Plaintiffs allege and defendants do not dispute that the officers had their weapons

drawn when they approached the vehicle. ECF No. 103 at 5; ECF No. 106 at 3. Plaintiffs allege

and defendants do not dispute that Officer Fisher’s tone and demeanor was “aggressive.” ECF

No. 103 at 14. The parties dispute the number of additional officers that were on the scene and

how many approached the car. Id.

The undisputed facts show that a reasonable person would not have felt free to leave or

disregard the officers’ requests under these circumstances. Examining the Tenth Circuit’s listed

factors, though the interaction occurred in a public place, there is no evidence it occurred in view

of anyone other than several law enforcement officers. Officer Fisher parked her vehicle directly

behind the plaintiffs’ vehicle, making it difficult to move their vehicle.1 At least two uniformed

officers approached the car from either side with their weapons displayed. This fact alone could

by itself indicate to a reasonable person that they were not free to leave, and it weighs heavily for

a finding that the encounter was not voluntary. See, e.g., United States v. Parra-Garcia, 1 F.

App'x 778, 782 (10th Cir. 2001) (unpublished) (weighing heavily the fact that the officers “never

brandished or displayed their weapons” in assessing the encounter) (citing United States v. Soto,

988 F.2d 1548, 1558 (10th Cir. 1993)). Officer Fisher’s tone and demeanor was aggressive. The

officers took both the driver and passengers’ identification card, though perhaps for only a short

amount of time. The officers did not advise the plaintiffs that they were free to go until after

returning their identification cards.

1 Defendants argue that plaintiffs were not physically prevented from leaving by Officer Fisher’s vehicle

because plaintiffs ultimately left without Officer Fisher moving her vehicle. ECF No. 106 at 9. Plaintiffs

claim they had to wait for defendants to move their vehicles before backing out. ECF No. 103 at 7.

Regardless, the ability to extricate the vehicle does not cut against the fact that the Handys could have

reasonably believed they were not free to leave after Officer Fisher parked behind them, making it

difficult to remove their car from the parking space. The relevant inquiry is what a reasonable person

would believe under the circumstances, Florida, 501 U.S. at 439, and not the intention of the officer, or

the physical possibility of extrication. I find that parking as Officer Fisher did is one among several

factors that would indicate to a reasonable person that they were not free to leave.

These conclusions show how different this encounter was from those cases in which the

Tenth Circuit found an encounter consensual. In United States v. Zapata the Tenth Circuit found

the encounter consensual largely because it occurred on a public train, in view of dozens of other

travelers, with plainclothes officers who did not display their weapons and used a regular tone of

voice. 997 F.2d at 757. In United States v. Parra-Garcia the Tenth Circuit found the encounter

consensual because the plainclothes officer never displayed weapons or made threats, it occurred

in public, and the officer returned the identification prior to asking permission to search

belongings. 1 F. App'x at 782. Defendants have cited no case law in which a court found an

encounter analogous to the case at hand consensual.

Because the undisputed facts show that the interaction constituted a seizure, I must

determine whether the seizure complied with the Fourth Amendment.

b. Whether the Seizure Complied with the Fourth Amendment

An investigative stop complies with the Fourth Amendment when an officer has

“reasonable suspicion.” Oliver, 209 F.3d at 1186. For an officer to have reasonable suspicion to

seize an individual, the officer “must have a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Id. In evaluating whether the officers had

reasonable suspicion to detain the plaintiffs, the Court must consider “the totality of the

circumstances—the whole picture.” United States v. Sokolow, 490 U.S. 1, 6 (1989) (quoting

United States v. Cortez, 449 U.S. 411, 417 (1981)).

Defendants argue that Officer Fisher developed reasonable suspicion once she discovered

the protective order. To reiterate, she did not discover the protective order until after she had

parked behind the Handys, activated her lights, and called for backup, and until after the officers

had approached plaintiffs’ vehicle with their weapons drawn and asked for identification. ECF

No. 80 at 12.

Plaintiffs argue that regardless of whether discovering the protective order conveyed

reasonable suspicion, Officer Fisher lacked reasonable suspicion when she first encountered

plaintiffs. ECF No. 103 at 12. Defendants do not contest that Officer Fisher lacked reasonable

suspicion in the initial encounter.

Defendants do note Officer Fisher encountered plaintiffs late at night in a location known

for “significant criminal activity.” ECF No. 80 at 12. Though not sufficient in itself, this could

make the issue of Officer Fisher’s reasonable suspicion a closer question. See, e.g., Illinois v.

Wardlow, 528 U.S. 119, 124 (2000) (“we have previously noted the fact that the stop occurred in

a ‘high crime area’ among the relevant contextual considerations in a Terry analysis.”) (quoting

Adams v. Williams, 407 U.S. 143, 144 (1972)). However, because defendants do not argue that

Officer Fisher had reasonable suspicion at the initiation of the encounter, I assume without

deciding that she lacked reasonable suspicion.

Because I found the initial encounter constituted a seizure, and because defendants do not

argue that Officer Fisher had reasonable suspicion until after the initial encounter, plaintiffs have

sufficiently stated a Fourth Amendment violation as to the initial encounter so as to survive a

motion for summary judgment.

2. Continuing Encounter

Defendants argue that Officer Fisher developed reasonable suspicion later in the

encounter when she discovered “Ms. Handy was the protected party to a protection order and

that the restrained party was male.” ECF No. 80 at 12. Defendants are correct that consensual

encounters, investigative stops, and arrests are “not static and may escalate from one to another.”

United States v. Jones, 701 F.3d 1300, 1312 (10th Cir. 2012) (quoting United States v. White,

584 F.3d 935, 945 (10th Cir. 2009)) (internal quotations omitted). Officer Fisher may have

developed reasonable suspicion at a later stage in the interaction.

However, this later development of reasonable suspicion does not retroactively remedy

plaintiffs’ Fourth Amendment injury. Regardless of whether Officer Fisher developed

reasonable suspicion later in the unlawful interaction, the fact that the initial seizure occurred

without justification sufficiently articulates a Fourth Amendment injury, thereby meeting the first

qualified immunity prong. See Stoedter v. Gates, 704 F. App'x 748, 754 (10th Cir. 2017)

(unpublished) (rejecting assertion of qualified immunity where defendants argued they

developed probable cause after initial unjustified seizure); see also Lundstrom v. Romero, 616

F.3d 1108, 1125 (10th Cir. 2010) (explaining that officers must have particularized reasonable

suspicion before initiating an investigative detention).

Because plaintiffs have met their burden on the first qualified immunity prong, I now

consider their allegations that the law in question was clearly established.

B. Clearly Established Law

“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.” Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)) (internal quotations

omitted). “A plaintiff may show clearly established law by pointing to either a Supreme Court or

Tenth Circuit decision, or the weight of authority from other courts, existing at the time of the

alleged violation.” Ali v. Duboise, 763 Fed. Appx. 645, 650 (10th Cir. 2019) (unpublished)

(citing T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017)) (internal quotations omitted).

“[C]learly established law should not be defined at a high level of generality.” White v. Pauly,

137 S. Ct. 548, 552 (2017) (citing Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011)) (internal

quotations omitted). “Although a plaintiff need not identify a case directly on point, existing

precedent must have placed the statutory or constitutional question beyond debate.” Ali, 763 F.

App’x at 650 (citing Mullenix, 136 S. Ct. at 308) (internal quotations omitted); see also White,

137 S. Ct. at 551. Once a defendant raises a qualified immunity defense, the burden is on the

plaintiffs to show that they have sufficiently met both prongs. See Cox v. Glanz, 800 F.3d 1231,

1245 (10th Cir. 2015) (“[B]y asserting the qualified-immunity defense, [defendant] triggered a

well-settled twofold burden that [plaintiff] was compelled to shoulder.”).

Defendants argue only that they were entitled to qualified immunity because the plaintiffs

failed to show a Fourth Amendment violation. See ECF No. 80. Plaintiffs have asserted the

violation was clearly established but do not provide independent argument on the qualified

immunity prongs, perhaps because defendants did not address it in their motion. See ECF No.

103 at 12. Because the plaintiffs appear pro se, I construe their brief liberally, Trackwell, 472

F.3d at 1243, examining whether they present any case law that suggests the violation was

clearly established. Nevertheless, it is not “the proper function of the district court to assume the

role of advocate for the pro se litigant,” and the Handys must following the same rules as other

litigants. Hall, 935 F.2d at 1110. Here, to meet their burden they must make a sufficient

showing on the clearly established prong.

Examining plaintiffs’ brief, they have presented no case law in which a court found

similar conduct to violate the Fourth Amendment. See ECF No. 103. Plaintiffs cite Florida v.

Bostick, 501 U.S. 429 (1991) in which the Supreme Court declined to decide whether a seizure

had occurred. They also cite United States v. Rogers, 556 F.3d 1130 (10th Cir. 2009), in which

the Tenth Circuit found an encounter consensual. Finally, plaintiffs cite I.N.S. v. Delgado, 466

U.S. 210 (1984), in which the Supreme Court held that a factory raid did not constitute a seizure.

These cases cannot support a finding that the violation in the instant case was clearly established.

Therefore, Plaintiffs have not met their burden of showing the law was clearly established.”

Because I find that plaintiffs have met not their burden, defendants’ motion for summary

judgment is granted.

ORDER

Defendants’ Motion for Summary Judgment, ECF No. 80, is GRANTED.

DATED this 28" day of April, 2020.

BY THE COURT:

R. Brooke Jackson

United States District Judge

> There is case law that suggests such a violation may be clearly established. See e.g., United States v.

Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995) (‘Precedent clearly establishes that when law enforcement

officials retain an individual's driver's license in the course of questioning him, that individual, as a

general rule, will not reasonably feel free to terminate the encounter.”). However, because plaintiffs have

the burden of proof on the issue, I do not and cannot resolve the question here.

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