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 pro se plaintiffs Ashlee M. Handy and Wyatt T. Handy,

Jr.’s motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e), ECF No. 122.

Plaintiffs ask this Court to revise its previous order on defendants Tera L. Fisher and Brandon H.

Johnson’s motion for summary judgment, ECF No. 118. For the following reasons the motion is

denied.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure do not explicitly provide for a motion to reconsider.

Instead, litigants subject to an adverse final judgment who seek reconsideration by the district

court of that judgment may make “[a] motion to alter or amend” that judgment within 28 days of

entry of judgment. Fed. R. Civ. P. 59(e). A court may alter or amend the judgment under Rule

59(e) in its discretion when there is “(1) an intervening change in the controlling law, (2) new

evidence previously unavailable, [or] (3) the need to correct clear error or prevent manifest

injustice.” Id. (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).

ANALYSIS

I have described the facts of this case in several previous orders, see ECF Nos. 47, 118,

and so I do not do so again here. To briefly summarize, in the early morning of April 14, 2016,

pro se plaintiffs pulled their vehicle into a convenience store parking lot in Conifer, Colorado.

ECF No. 1 ¶ 8–9. Within a minute of the plaintiffs entering the parking lot, Deputy Fisher had

parked behind plaintiffs’ vehicle, activated her emergency lights, and radioed for backup. Id. ¶

15–18. Deputies Fisher and Johnson approached the plaintiffs’ vehicle with their weapons

drawn and requested both plaintiffs’ identification. Id. ¶ 19–25. Defendants eventually released

plaintiffs, and plaintiffs filed this lawsuit, claiming defendants’ actions violated their Fourth

Amendment rights against search and seizure. Id. ¶ 30.

In their motion for summary judgment, defendants asserted, among other things, that they

were entitled to qualified immunity for plaintiffs’ Fourth Amendment claim. See ECF No. 80. I

found that though plaintiffs had stated a Fourth Amendment violation, they had not met their

burden in showing that such a violation was clearly established. See ECF No. 118 at 11–12.

Therefore, I concluded defendants were entitled to qualified immunity and granted their motion

for summary judgment. Id. at 12.

Plaintiffs’ present motion presents two arguments. First, plaintiffs argue that defendants

failed to adequately plead and develop their qualified immunity defense, and so should not have

been granted qualified immunity. ECF No. 122 at 7. Second, plaintiffs argue that this court

incorrectly concluded that plaintiffs provided no case law evidencing the violation was clearly

established. Id. at 7–8. I address each argument in turn.

A. Whether Defendants Failed to Plead and Develop Qualified Immunity Defense

In my order on defendants’ summary judgment motion I noted that defendants had only

presented an argument on the first prong of the qualified immunity analysis. ECF No. 118 at 11.

Plaintiffs claim that by neglecting to argue that the law was not clearly established defendants

failed to meet their burden of pleading and developing their qualified immunity defense. ECF

No. 122 at 6–7.

Plaintiffs note that “qualified immunity is an affirmative defense” and “the burden of

pleading it rests with the defendant.” Montoya v. Vigil, 898 F.3d 1056, 1063 (10th Cir. 2018)

(quoting Crawford-El v. Britton, 523 U.S. 574, 586–87 (1998)).1 On the other hand, defendants

correctly point out that “by asserting the qualified-immunity defense, [defendants] triggered a

well-settled twofold burden that [plaintiffs were] compelled to shoulder.” Cox v. Glanz, 800

F.3d 1231, 1245 (10th Cir. 2015). “When a defendant asserts qualified immunity at summary

judgment, the burden shifts to the plaintiff, who must clear two hurdles in order to defeat the

defendant's motion.” Id. (quoting Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009))

(emphasis in original).

In Montoya v. Vigil the Tenth Circuit found the defendant had not asserted qualified

immunity before the trial court and could not do so for the first time on appeal. 898 F.3d at

1063–65. The court rejected defendants’ argument that it had sufficiently asserted a qualified

immunity defense below by raising a failure-to-state-a-claim argument. Id. at 1065. Such an

argument, without more, “fails to notify either the district court or the plaintiff that the defendant

is invoking qualified immunity.” Id.

1 Plaintiffs also cite out-of-circuit case law for the same principle. See ECF No. 122 at 6–7.

Montoya is not applicable here. Defendants explicitly asserted qualified immunity in

their motion for summary judgment and developed in detail their argument on the first prong.

ECF No. 80. Though they did not develop their argument on the second prong in any detail,

their assertion was sufficient to notify the district court and the plaintiffs of their defense and

shift the burden to the plaintiffs. See Cox, 800 F.3d at 1245 (finding that “however poorly

asserted,” defendant’s brief presented a qualified immunity defense, which “necessarily included

the clearly-established-law question,” and shifted burden to plaintiff).

My previous order did not misapprehend the law and correctly concluded that defendants

had asserted a qualified immunity defense, which plaintiffs were required to rebut.

B. Whether Plaintiffs Met Their Burden of Showing the Violation was Clearly

Established

My order also stated that I would construe pro se plaintiffs’ brief liberally and examine

any case law they present to determine whether such a violation was clearly established. ECF

No. 118 at 11. Plaintiffs now point out that I neglected to expressly examine several cases they

cited at various points in their response brief. ECF No. 122 at 8–11. Plaintiffs’ motion presents

four cases they allege show the violation was clearly established. Id. Plaintiffs’ reply claims

they cited eight cases that this Court should have examined but does not specify which additional

cases I should consider. ECF No. 128 at 3. I therefore examine the four cases specifically

addressed in plaintiffs’ motion.

First, plaintiffs’ motion cites United States v. Williams, 615 F.3d 657, 660 (6th Cir.

2010), a Sixth Circuit case which cannot by itself show a violation was clearly established in this

circuit. Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir. 2018) (quoting Toevs v. Reid, 685

F.3d 903, 916 (10th Cir. 2012)) (“[I]n order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority

from other courts must have found the law to be as the plaintiff maintains.” (internal quotations

omitted)).

Second, plaintiffs cite United States v. Lopez, 443 F.3d 1280 (10th Cir. 2006). Lopez

gives me some pause, but I conclude it is not sufficiently factually similar to support a finding

that the Fourth Amendment violation was clearly established. In Lopez, an officer encountered

two men standing in the middle of the street next to a parked car with its engine running. Id. at

1282. The officer ran a license plate check, confirmed the car was not stolen, and saw that it was

registered to a woman in Westminster, before proceeding to shine his spotlight on the individuals

and approach. Id. The officer asked for the men’s identification, which they provided. Id.

Lopez’s address matched that of the car’s owner. Id. The officer instructed the men to stay by

the car and proceeded to run a warrant check. Id. The Tenth Circuit found that that the

encounter was no longer consensual after the officer retained the identification to run a warrant

check. Id. at 1285.

Lopez presents some similarities to the instant case but is not sufficiently close to render

the violation at issue “beyond debate.” Ali v. Duboise, 763 F. App’x 645, 650 (10th Cir. 2019)

(unpublished) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). The distinguishing

differences include that in Lopez, the men were not in the car but standing in the street, and that

the officer ran a plate check before approaching the men, so when he received the identification

he already knew that the car was not stolen and that Lopez resided at the same address as the car

owner. Despite this, he then ordered the men to wait by the car to run a warrant check. This

case supports my previous conclusion that Deputy Fisher’s actions constituted a seizure.

However, because it presents too many factual dissimilarities, it cannot support a finding that

Deputy Fisher’s particular conduct here was a clearly established violation.

Third, plaintiffs cite United States v. Gaines, 918 F.3d 793, 797 (10th Cir. 2019). The

Tenth Circuit issued Gaines in 2019, three years after the events in this case occurred. Had

Gaines been the law of this circuit before plaintiffs encountered Officer Fisher, this case might

have come out differently. However, the qualified immunity analysis only considers what law

was clearly established “at the time of the defendant’s alleged misconduct.” Pearson v.

Callahan, 555 U.S. 223, 129 S. Ct. 808, 811, 172 L. Ed. 2d 565 (2009).

Fourth, plaintiffs cite Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007), which is far

too factually distinct from the instant case to show the violation was clearly established. In

Cortez, the Tenth Circuit found that Rick Cortez had been seized when the police pulled him

from the doorway of his home, advised him of his Miranda rights, and placed him in the back of

a squad car. Id. at 1116. The court then found that Tina Cortez was also seized when she was

ordered out of her house, taken by the arm and escorted out of her bedroom, and placed in the

back of a squad car and questioned. Id. at 1123. This case has almost no factual similarity to

plaintiffs’ experience and cannot provide support for a finding that the violation was clearly

established.

Plaintiffs argue that though these cases might not be factually similar to theirs, they need

not cite factually identical case law, but only cases “with a sufficient degree of factual

correspondence.” ECF No. 122 at 4. Plaintiffs present case law stating that “a case on point

isn’t required” to show something is clearly established, Kerns v. Bader, 663 F.3d 1173, 1186

(10th Cir. 2011), and that “some level of generality is appropriate,” Baptiste v. J.C. Penney Co.,

147 F.3d 1252, 1258 (10th Cir. 1998). See also Hope v. Pelzer, 536 U.S. 730 (2002); Anderson

v. Creighton, 483 U.S. 635 (1987); Medina v. City & Cty. of Denver, 960 F.2d 1493 (10th Cir.

1992). I agree.

However, in the years since plaintiffs’ cited cases were published, the Supreme Court has

clarified that while courts may not “define clearly established law at a high level of generality,”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741

(2011)), “existing precedent must have placed the statutory or constitutional question beyond

debate.” Id. (quoting al–Kidd, 563 U.S. at 741). Thus, the court must consider “whether the

violative nature of particular conduct is clearly established.” Id. (quoting Brosseau v. Haugen,

543 U.S. 194, 198 (2004) (emphasis in original). “This inquiry ‘must be undertaken in light of

the specific context of the case, not as a broad general proposition.’” Id. (quoting Brosseau, 543

U.S. at 198). Finally, the Supreme Court noted that “[s]uch specificity is especially important in

the Fourth Amendment context, where the Court has recognized that ‘[i]t is sometimes difficult

for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation

the officer confronts.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Mullenix and its Supreme Court and Tenth Circuit progeny have reiterated again and

again that though plaintiffs need not present a factually identical case, they must present

precedent showing that the particular conduct was a clearly established violation. See, e.g.,

Ziglar v. Abbasi, 137 S. Ct. 1843, 1866 (2017); White v. Pauly, 137 S. Ct. 548, 552 (2017); Ali,

763 F. App’x at 650. This is a fine line. However, I conclude that the cases to which plaintiffs

point do not establish that defendants’ conduct was a clearly established violation at the time it

occurred. In sum, while I have reconsidered the previous order, as was reasonably requested, I

come to the same conclusion that defendants are entitled to qualified immunity on these facts.

ORDER

Plaintiffs’ Motion to Alter or Amend a Judgment, ECF No. 122, is DENIED.

DATED this 1* day of July, 2020.

BY THE COURT:

R. Brooke Jackson

United States District Judge