Opinion
Civil Action No. 20-cv-2198-LTB
2022-12-02
ESTATE OF Naphtali ISRAEL, BY AND THROUGH its personal representative Debra RUSSELL; Clarette Samuels, as legal guardian and next friend of minor children, Plaintiffs J.D. and A.C.; and Ralph Ford, as legal guardian and next friend of minor child, Plaintiff A.S., Plaintiffs, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation; Jeff Hausner, in his official and individual capacity; Timothy Luke, in his official and individual capacity; Matthew Wolfe, in his official and individual capacity, Defendants.
David A. Lane, Liana Gerstle Orshan, Killmer Lane & Newman LLP, Denver, CO, for Plaintiffs. Clayton Jeffrey Ankney, Conor Daniel Farley, Denver City and County Attorney's Office, Denver, CO, for Defendants.
David A. Lane, Liana Gerstle Orshan, Killmer Lane & Newman LLP, Denver, CO, for Plaintiffs. Clayton Jeffrey Ankney, Conor Daniel Farley, Denver City and County Attorney's Office, Denver, CO, for Defendants.
ORDER
LEWIS T. BABCOCK, JUDGE
This matter is before me on two motions to dismiss: one filed by Defendants Jeff Hausner, Timothy Luke and Matthew Wolfe (collectively the AOfficer Defendants@) [Doc #42] and the other by Defendant City and County of Denver ("Denver" or the "City") [Doc #43], both seeking dismissal of the claims against them pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs have filed a consolidated response to the motions [Doc #53] and the Officer Defendants and Denver have filed a consolidated reply [Doc #60]. Oral argument would not materially assist me in my determination of these motions. After consideration of the parties' briefs, and for the reasons stated, I GRANT the Defendants' motions.
I. BACKGROUND
The relevant facts, which are taken from the Complaint [Doc #1], and which I accept as true for purposes of these motions, are as follows. On May 7, 2020, Mr. Naphtali Israel, an African-American man, and his three step-daughters, ages 14, 7 and 2, also African-American, were grocery shopping at a Safeway store in Denver. Compl. [Doc #1] ¶ 14. When the youngest of the three children was getting fussy before he had finished shopping, Mr. Israel paid for the children's snacks and took them out to his car so that they could wait for him there while he finished the shopping. Id. ¶¶ 16, 17. Mr. Israel opened the driver-side door of his car and told the children to keep the car doors open because he did not want them to get overheated. Id. ¶ 17. He then returned to the store to complete his shopping. Id. While he was paying for the groceries, an unknown African-American woman ran into the store frantically saying that she needed to "find the dad" and "where is the dad." Id. ¶ 18. Mr. Israel told the woman he was a dad and asked if there was something wrong, to which she responded that the police were outside "holding your children at gunpoint," at which point, Mr. Israel ran for the exit. Id. ¶ 19. As he exited the store, Mr. Israel could see several police vehicles and three police officers, one of whom, Defendant Sgt. Hausner, had his gun pointed at Mr. Israel's vehicle with the children inside and was yelling commands. Id. ¶ 20. As Mr. Israel approached the car, yelling inquiries at the police and fearing for the lives of the children, Sgt. Hausner and the two other officers turned toward him with their hands on their guns and ordered Mr. Israel to stop and put his hands behind his back, which he did. Id. ¶ 21. One of the officers (either Defendants Ofcr. Luke or Wolfe) handcuffed and searched Mr. Israel and after two minutes, finding no weapon, released him. Id. ¶ 22.
The police were responding to a 911 call from the Safeway store manager who was quoted in the Complaint (from the 911 recording) as saying, in part, as follows: "Can you guys just do a quick drive by here? I'm told there's a black guy in a white hoodie sitting in a Cadillac by himself in the parking lot and he has a gun." Id. ¶ 24. In their Complaint, Plaintiffs provide a link to a media file showing the incident from footage captured on a HALO surveillance camera and bodycam videos. Id. ¶ 26. The media file, according to Plaintiffs, was inadvertently destroyed and the link no longer functions. See Resp. at 2 n. 2. However, Plaintiffs provide a new link to the media file in their Response, which file includes an audio recording of excerpts from the 911 call as well as HALO and bodycam video footage. Id. Plaintiffs also agree in their Response that the Complaint incorporates the external material the Officer Defendants attached to their motion as Exhibits A-D [Doc ##42-1-42-4], which consists of the 911 recording, HALO surveillance video and officer bodycam videos. Id. Since Plaintiffs do not challenge the authenticity of these exhibits and since they are referred to in the Complaint and are central to the Plaintiffs' claims, I may consider them for purposes of these motions. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 940-41 (10th Cir. 2002) (holding that in addition to the complaint, a district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity).
This action was filed on July 27, 2020 by Mr. Israel and Clarissa Ford, as mother and next friend of the three minor children, asserting four causes of action pursuant to 42 U.S.C. § 1983. The First Claim for Relief is brought by all Plaintiffs against all Defendants and alleges unlawful seizure. The Second Claim for Relief is brought by Mr. Israel against all Defendants and alleges an unlawful search. The Third Claim for Relief is brought by all Plaintiffs against all Defendants based on the alleged use of excessive force. The Fourth Claim for Relief is brought by all Plaintiffs against all Defendants for denial of equal protection based on race. The claims against the City are based on Plaintiffs' allegations that the Officer Defendants engaged in the acts that are the subject of the Complaint "pursuant to the formal or informal custom, policy and practices of the City of Denver, which encourages, condones, tolerates, and ratifies the false arrest and lawful seizure of its citizens," and that Denver failed to properly train, supervise, or discipline its employees regarding the use of force and racially biased policing. See Compl. ¶¶ 38-39, 49-50, 62 & 74-78. Plaintiffs attach and incorporate into their Complaint, as Exhibit 1 [Doc #1-1], a 33-page memorandum containing "all facts in support of, and relevant to Plaintiffs' Monell claim" against the City. Id. at 4 n.1.
Mr. Israel and Clarissa Ford died on September 4, 2020. Plaintiff parties were subsequently substituted and the caption of the case was changed as reflected in the caption above.
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that enables the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The concept of plausibility at the dismissal stage refers not to whether the allegations are likely to be true because the court must assume them to be true. See Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192-93 (10th Cir. 2009). Rather, the question is whether, assuming the allegations to be true, it is plausible, and not merely possible, that the plaintiff is entitled to relief under the relevant law. See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).
Although plaintiffs need not provide "detailed factual allegations" to survive a motion to dismiss, they must provide more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (explaining that a complaint will not suffice if it offers "naked assertions devoid of further factual enhancement") (quotations and alterations omitted)). Furthermore, conclusory allegations are "not entitled to be assumed true." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
III. ANALYSIS
I first address the Section 1983 claims against the Officer Defendants. Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." 42 U.S.C. § 1983. The statute does not create any substantive civil rights; rather, it creates only a procedural mechanism for enforcing them. Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995). To successfully state a cause of action under Section 1983, a plaintiff must allege "both the deprivation of a federal right and that the alleged action was taken under color of state law." Southern Disposal, Inc. v. Texas Waste Mgmt., 161 F.3d 1259, 1265 (10th Cir. 1998) (internal quotation marks and citation omitted).
A. Individual Capacity Claims Against Officer Defendants
The Officer Defendants argue that the claims against them in their individual capacities should be dismissed because they are entitled to qualified immunity. "[P]ublic officials enjoy qualified immunity in civil actions that are brought against them in their individual capacities and that arise out of the performance of their duties." McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018) (quoting Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013)). The doctrine of qualified immunity "balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine of qualified immunity shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law. Id.
Once a defendant has asserted the defense of qualified immunity, the burden shifts to the plaintiff who must allege facts sufficient to show (assuming they are true) that: (1) the defendant plausibly violated plaintiff's constitutional rights; and (2) the constitutional rights alleged to have been violated were clearly established at the time. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated in part by Pearson, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565; Robbins, 519 F.3d at 1249. In the context of a motion to dismiss based on qualified immunity, therefore, a plaintiff must allege in his complaint sufficient facts to show he plausibly, not just speculatively, meets both inquiries. See Robbins, 519 F.3d at 1247, 1249. A court, in its sound discretion, may consider these inquiries in whichever order it chooses. Pearson, 555 U.S. at 236, 129 S.Ct. 808.
Although qualified immunity defenses are typically resolved at the summary judgment stage, district courts may grant motions to dismiss based on qualified immunity. Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). However, asserting a qualified immunity defense in a Rule 12(b)(6) motion materially lessens a plaintiff's burden. Id. (citing Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004)); see also Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) ("At [the motion to dismiss] stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for objective legal reasonableness.") (internal quotation marks omitted).)
1. Fourth Amendment Claims Against Officer Defendants
Plaintiffs' first three claims for relief are brought under the Fourth Amendment which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. CONST. amend. IV. In order to state a claim for an unlawful search or seizure under the Fourth Amendment, the facts asserted in a complaint must show that it is plausible that there was a search or seizure and that the search or seizure was unreasonable. Brower v. County of Inyo, 489 U.S. 593, 599, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (adding that a "seizure" for purposes of the Fourth Amendment occurs when a government actor terminates a person's freedom of movement through means intentionally applied); Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) ("Whenever an officer restrains the freedom of a person to walk away, he has seized that person."). Plaintiffs clearly allege that one or more of the Officer Defendants seized them and searched Mr. Israel. The question then is whether Plaintiffs have alleged facts sufficient to show that the seizure and search were unreasonable.
The "ultimate touchstone" for analyzing the constitutionality of a search or seizure under the Fourth Amendment is reasonableness. Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). The reasonableness of a search or seizure depends on whether, objectively, the challenged action was justified under the circumstances. Ashcroft v. al-Kidd, 563 U.S. 731, 736, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011); United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993). The reasonableness inquiry "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotations omitted).
"An officer can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007) (internal quotation marks and citation omitted). To determine whether an investigative detention, or Terry stop, is reasonable, courts must make a dual inquiry, asking first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." United States v. Tuter, 240 F.3d 1292, 1296 n.2 (10th Cir. 2001) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). 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." Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000). "Neither 'inarticulate hunches' nor 'unparticularized suspicion' will suffice to justify an investigatory detention." Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1028 (10th Cir. 1997) (quoting Terry, 392 U.S. at 22, 27, 88 S.Ct. 1868). Whether an officer had reasonable suspicion is based on the totality of the circumstances and officers may draw on their experience and specialized training to make inferences from and deductions about the cumulative information available to them. Vondrak v. City of Las Cruces, 535 F.3d 1198, 1206-07 (10th Cir. 2008) . In addition, since officers should not be required to take unnecessary risks in performing their duties, they are "authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of a [Terry] stop. Perdue, 8 F.3d at 1462 (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). "An encounter between police and an individual which goes beyond the limits of a Terry stop, however, may be constitutionally justified only by probable cause or consent." Id.
a. First Claim for Relief - Unlawful Seizure
All Plaintiffs assert the First Claim for Relief against all Defendants alleging that the Defendants violated their rights under the Fourth and Fourteenth Amendments when they seized Plaintiffs without probable cause or reasonable suspicion. According to the Complaint, the Officer Defendants, in responding to the 911 call, violated Plaintiffs' constitutional rights when Sgt. Hauser pointed a gun at Mr. Israel's vehicle with his children inside and yelled commands at them and again when all three Officer Defendants turned toward Mr. Israel as he exited the store with their hands on their guns and ordered him to stop and put his hands behind his back and then handcuffed and searched him. Compl. ¶¶ 20-22, 32-34. (I note that neither the HALO nor the bodycam videos [Doc ##42-2, 42-3, 42-4] show any officer drawing his gun on Mr. Israel.) The Complaint further alleges that the Officer Defendants did not have probable cause or reasonable suspicion or any other legal basis to believe that Plaintiffs had committed or were committing any violation of the law because sitting in a car with a gun is not illegal, nor is exiting a grocery store, and there was no reasonable basis for the Officer Defendants to believe that Plaintiffs were a danger to themselves or others prior to detaining them. Compl. ¶¶ 24, 29, 30.
In their Motion to Dismiss regarding the First Claim for Relief, the Officer Defendants contend that Plaintiffs cannot meet their "heavy" two-part burden to rebut the officers' qualified immunity defense because there was no violation of Plaintiffs' constitutional rights under the facts alleged and otherwise properly before the Court. Mot. [Doc #42] at 5. In support, the Officer Defendants assert that the allegations in the Complaint provide no factual support for the conclusion that they lacked reasonable suspicion (or probable cause) when they approached the silver Cadillac. Specifically, they argue that they had an objectively reasonable and articulable suspicion that criminal activity was afoot to support the seizure based on the 911 call (the recording of which Plaintiffs agree was incorporated into the Complaint) of a Black male wearing a white hoodie with a gun sitting in a gray/silver Cadillac at a specific location in the Safeway parking lot, and the 911 caller said that she did not believe there was anyone else in the car. Id. at 7, citing Ex. A [Doc #42-1] (911 recording). The Officer Defendants argue that they had reasonable suspicion (and arguable probable cause) to suspect that the occupants of the car may have been violating Denver Revised Municipal Code § 38-117, which provides that "it shall be unlawful for any person, except a law enforcement officer in the performance of duty, to wear under their clothes, or concealed about their person any dangerous or deadly weapon, including . . . any pistol," without holding the proper conceal and carry permit and that they were possibly armed and dangerous.
The Officer Defendants additionally argue, in their Motion and Reply, that, as depicted in the HALO video, which Plaintiffs agree was incorporated into the Complaint, Sgt. Hausner acted reasonably based on the fact that in responding to the 911 request seeking officer assistance "right away," Sgt. Hausner located the car matching the description and location given by the 911 caller and, as shown on the HALO video [Doc #42-2], the occupant in the driver's seat of the car was wearing a white hoodie, again confirming the information given by the caller. (Contrary to Plaintiffs' assertion in their Response that none of the minor children in the car were wearing a white hoodie, the Officer Defendants point out (and I agree) that the HALO video (which is incorporated into the Complaint) depicts a person in the driver's seat of the Cadillac wearing a white hoodie with the hood up and it is unclear from the video whether the person is a child. See Reply at 4, citing Ex. B to Motion [Doc # 42-2] at 0:39-0:52. Additionally, I note that the Complaint only alleges that Mr. Israel was not wearing a white hoodie. See Compl. ¶ 25. The Complaint does not allege that the children were not wearing white hoodies.) These circumstances, the Officer Defendants contend, were enough for them to act as they did when, as depicted in the HALO video, Sgt. Hausner approached the car from behind with his gun drawn, lowered his gun after three seconds, fully lowered it after ten seconds and then holstered his gun after approximately two minutes. [Doc #42-2 at 0:16-2:43.]
The Officer Defendants argue further (in their Reply) that when, almost immediately thereafter, Mr. Israel (wearing a white T shirt) exited the store and approached what was clearly his car, they were justified in conducting a limited seizure and pat down search based on the same facts and their reasonable suspicion (and arguable probable cause) that Mr. Israel may have been violating Denver Revised Municipal Code § 38-117 and was possibly armed and dangerous. Based on these facts, the Officer Defendants argue they had reasonable suspicion of criminal activity and that the seizure was reasonable under the circumstances. They also cite United States v. Shareef, 100 F.3d 1491, 1502 (10th Cir. 1996) for the proposition that where there is reason to believe that the subject of an investigative stop is armed, officers are permitted to take reasonable measures to ensure their safety and preserve the status quo. The Officer Defendants also argue that when they approached Mr. Israel, they were acting with knowledge that there was an armed man in a car in a grocery store parking lot and that seeing Mr. Israel, who was potentially armed and possibly dangerous exiting the store and walking toward the silver/gray Cadillac, which was obviously his car, it was in society's legitimate interests to conduct the seizure and search of Mr. Israel. Reply at 5.
As a preliminary matter in their Response, Plaintiffs maintain that the reasonable suspicion standard, and not the more demanding probable cause standard, is applicable because the stop at issue here was an investigative detention (or Terry stop) and that all that is needed under Terry, but lacking here, is reasonable suspicion supported by articulable facts that criminal activity may be afoot. Resp. at 7 (citing Cortez, 478 F.3d at 1115 (holding that "[a]n investigative detention is a seizure within the meaning of the Fourth Amendment but, unlike an arrest, it need not be supported by probable cause")). I agree with Plaintiffs that the stop here was a Terry stop and that the appropriate standard to apply is the reasonable suspicion standard. "While Terry stops generally must be fairly nonintrusive, officers may take necessary steps to protect themselves if the circumstances reasonably warrant such measures." Perdue, 8 F.3d at 1462 (holding that officers executing a Terry stop with their weapons drawn and ordering a suspect out of the car and onto the ground were reasonable steps to protect the officers and did not transform the Terry stop into an arrest). The limited search and seizure conducted by the Officer Defendants here, as in Terry and Perdue, did not transform the stop into an arrest; thus, the higher probable cause standard is not applicable.
Plaintiffs also assert that the Officer Defendants neglected to make specific arguments as to why Mr. Israel's claim for unlawful seizure should be dismissed and that therefore I should not consider their request for dismissal of his portion of this claim. I disagree. In their Motion, the Officer Defendants address allegations in the First Claim for Relief that apply to all Plaintiffs collectively and they seek dismissal of the "Plaintiffs' " constitutional claims and the Complaint "in its entirety." See Mot. [Doc #42] at 3, 5, 6, 14. In addition, the seizure that is the subject of Mr. Israel's claim in the First Claim for Relief is also the subject of the Second Claim for Relief, which the Officer Defendants clearly address in their Motion, and the Plaintiffs in their Response, as discussed in the next section below. See Resp. at 14 (addressing Mr. Israel's unlawful search claim and acknowledging that "[b]ecause, for the reasons discussed in the [unlawful seizure] subsection above, Individual Defendants had no reasonable basis to stop and handcuff Mr. Israel, Individual Defendants' search of Mr. Israel's person was not justified at its inception"). Moreover, Plaintiffs further acknowledge in their Response that even considering the request to dismiss Mr. Israel's portion of the claim, "that it must be denied is obvious from the discussion and authority in the previous subsection" regarding the children's portion of the unlawful seizure claim. Resp. at 13. For these reasons, I will consider the Officer Defendants' request for dismissal of Mr. Israel's claim.
Next, Plaintiffs argue that the Officer Defendants cannot prevail on their motion to dismiss because: (1) they had no reasonable basis to believe that any crime had been committed; and (2) they had no articulable and reasonable basis indicating that Plaintiffs had been involved in such criminal activity. Plaintiffs assert that the mere allegation that an individual possesses a gun (which is not necessarily illegal) does not justify an officer stopping a suspect absent the reasonable suspicion required by Terry. Plaintiffs add that even considering Denver Municipal Code § 38-117, sitting in a car with a gun is not by itself a violation of the law and there was no reason to believe the alleged subject of the call had a concealed weapon. Thus, according to Plaintiffs, the 911 call did not provide Defendants with reasonable suspicion to believe that a crime had been committed, much less that any of the Plaintiffs were committing a crime or were armed and dangerous. In support of this argument, Plaintiffs cite (at page 8) three cases outside of this circuit, which are neither controlling nor factually analogous, and Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (rejecting an automatic firearm exception to the rule in Terry), which I will discuss below. Plaintiffs also cite United States v. King, 990 F.2d 1552 (10th Cir. 1993), for the proposition that to allow stops and seizures for possession of a gun "would effectively eliminate Fourth Amendment protections for lawfully armed persons" and that while safety of officers is an important government interest, it can only justify a Fourth Amendment intrusion if the officer is entitled to make a forcible stop. Resp. at 8-9, 10.
Plaintiffs also argue that there was no reasonable basis or reasonable suspicion for Defendants to believe that any crime had been committed by the Plaintiffs because the 911 call was based on an anonymous tip from a customer who only gave readily observable information. In support, Plaintiffs cite Florida v. J.L., in which an anonymous caller reported to the police that a black male was standing at a bus stop wearing a plaid shirt and carrying a gun. Id., 529 U.S. at 268, 120 S.Ct. 1375. Nothing was known about the informant or the basis of his knowledge or how he knew about the gun. The Court concluded that the tip lacked the moderate indicia of reliability found in other cases and ruled that it did not justify the Terry stop, even though the police, when they responded to the call, found a black male at the bus stop wearing a plaid shirt. Id. at 271, 272, 120 S.Ct. 1375. The Court explained that an anonymous tip describing a subject's readily observable location and appearance is reliable, but only in a limited sense in that it will help the police identify the suspect. Id. at 272, 120 S.Ct. 1375. "Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Id. The Court added that it was not holding that public safety officials can never rely on anonymous tips and acknowledged that an anonymous tip might justify reasonable suspicion or a protective search "in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports . . . and schools . . . ." Id. at 274, 120 S.Ct. 1375.
As to Plaintiffs' argument that the anonymous tip conveyed by the 911 caller here cannot provide the basis for reasonable suspicion, I disagree. The 911 call in the instant case justified the Officer Defendants' investigative stop because the tip had sufficient indicia of reliability. In United States v. Chavez, 660 F.3d 1215 (10th Cir. 2011), a case cited by Plaintiffs, the court, acknowledging J.L., explained that:
Whether [an anonymous] tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked "true anonymity" (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant.660 F.3d at 1222; see also United States v. Conner, 699 F.3d 1225, 1231, 1232 (10th Cir. 2012) (noting that the Fourth Amendment does not require a police officer, who lacks the precise level of information from an anonymous 911 call necessary for probable cause to arrest, "to simply shrug his shoulders and allow a crime to occur" and that "[r]easonable suspicion requires a dose of reasonableness and simply does not require an officer to rule out every possible lawful explanation for suspicious circumstances before effecting a brief stop to investigate further").
In the instant case, the tipster/customer, while somewhat anonymous (it is reasonable to assume that the customer reported the incident in person to the Safeway manager, but then left the premises) not only gave reliable and detailed information about the Cadillac, its location and that the occupant in the driver's seat wearing a white hoodie, but also gave the basis for his knowledge, i.e. the customer's contemporaneous firsthand observation of the car, the suspect, and the gun in the car, which added to the reliability of his statements. In the excerpt of the 911 call included at the new link provided by Plaintiffs (and in Ex. A to the Motion [Doc #42-1]), the Safeway manager said: "I was wondering if we could get an officer right away over here to do a drive-by . . ." because a customer (who left the premises) reported that he "witnessed" and "saw an individual in a gray silver Cadillac who is still sitting in our parking lot. A Black young male with a white hoodie." The Safeway manager repeated that the customer "said that this gentleman has a gun" and that the customer "saw him with a gun." See Ex. A to Mot. [Doc # 42-1] (911 recording). Therefore, unlike the facts in J.L., the tipster here reported his firsthand contemporaneous observations to the store manager and he reported not only readily observable details about the car, its precise location and what an occupant of the car was wearing, all of which were confirmed by the officers, but also, importantly, reported that he observed the gun firsthand and contemporaneously. When viewed from the standpoint of an objectively reasonable police officer, the information reported in the 911 call and the Officer Defendants' confirmation of many of the details given provided reasonable suspicion that criminal activity was afoot (given the municipal ordinance) and that the occupants of the car and/or Mr. Israel were armed and possibly dangerous. Even the Court in J.L. acknowledged that "there are situations which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.' " Id., 529 U.S. at 270, 120 S.Ct. 1375 (quoting White, 496 U.S. at 327, 110 S.Ct. 2412). Indeed, those were the circumstances at issue in Chavez, United States v. Madrid, 713 F.3d 1251 (10th Cir. 2013), United States v. Brown, 496 F.3d 1070 (10th Cir. 2007) and United States v. Browning, 252 F.3d 1153 (10th Cir. 2001), cited by Plaintiffs, in which the Tenth Circuit found that under the totality of the circumstances, the anonymous tips bore sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop. Moreover, as the Court recognized in J.L., because the incident took place in a busy Safeway parking lot, the officers were further justified in conducting a limited seizure and protective search.
I further conclude that under the circumstances - the 911 call and the possible unlawful weapon possession and the officers' limited intrusion on the Plaintiffs' liberty interests - the Officer Defendants' actions here, unlike the officers' actions in King, were reasonably related in scope to the circumstances which justified the interference in the first place. The Tenth Circuit in King affirmed the district court's suppression order not based on whether the officer was entitled to make a forcible stop, as Plaintiffs argue here, but because the court found that in the course of lawfully detaining the defendant to advise him to cease creating a traffic hazard (at which point the officer observed a gun within the defendant's immediate reach), the officer escalated the encounter into a seizure by drawing her gun, pointing it at the defendant, ordering him to place his hands on the steering wheel and threatening to shoot him if he didn't comply which the court held went "far beyond what was necessary to ensure her safety" and thus was not "reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 1563 (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868). The King court acknowledged, however, that the presence of a gun would justify the officer ordering the separation of the defendant from the gun since the "governmental interest in the safety of police officers outweighs the individual's Fourth Amendment interest when an officer has an objective basis to believe that the person being lawfully detained is armed and dangerous." Id. Recognizing that under relevant New Mexico law it is lawful for motorists to carry loaded guns in their cars, the court added that "Defendants' lawful possession of the pistol has no bearing on the reasonableness of Officer LeMasters' actions because the interest justifying her separation of Defendants from the pistol is her safety, and a legally possessed weapon presents just as great a danger to her safety as an illegal one." Id. at 1561 (citing Michigan v. Long, 463 U.S. 1032, 1052, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) and Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (recognizing that during a Terry stop, a frisk for weapons might be necessary and reasonable for police protection "whether or not carrying a concealed weapon violated any applicable state law" so long as the officer is entitled to make a forcible stop and has reason to believe the suspect is armed and dangerous)).
The HALO video shows Sgt. Hausner approaching the car from behind with his gun drawn, then lowering his gun after three seconds, fully lowering it after ten seconds and holstering it after approximately two minutes. [Doc #42-2 at 0:16-2:43]. At that point, having just determined that there was no adult Black male in the silver Cadillac, the officers immediately observed Mr. Israel exiting the store and walking toward what was clearly his car; he was not wearing a white hoodie, but he was wearing a white T shirt, and he was walking toward the silver Cadillac through the busy Safeway parking lot, at which point the officers handcuffed him and conducted a brief pat down search, the entire encounter lasting approximately three minutes. See Mot. Exs. B, C & D [Doc ##42-2 - 42-4]. Under these circumstances, unlike the circumstances in King, the officers' actions were reasonably related in scope to the circumstances which justified the stop in the first place.
Given the information they had at the time, the Officer Defendants had an objectively reasonable and articulable suspicion that criminal activity was afoot and their actions were reasonably related in scope to the circumstances which justified the interference in the first place. Taking as true the totality of the circumstances as alleged in the Complaint, Plaintiffs have failed to state a plausible claim that Defendants lacked reasonable suspicion to support the seizure. Because Plaintiffs have failed to sufficiently plead that the Officer Defendants violated their Fourth Amendment rights, they fail to carry their burden under the first prong of the qualified immunity analysis, and I need not address whether the right at issue was clearly established. The Officer Defendants are therefore entitled to qualified immunity as to Plaintiffs' First Claim for Relief.
b. Second Claim for Relief - Unlawful Search
The Second Claim for Relief, asserted against all Defendants by Mr. Israel only, alleges that the Defendants violated his rights under the Fourth Amendment by conducting an unlawful search of his person. According to the Complaint, the Individual Officers, in responding to the 911 call, violated Mr. Israel's Fourth Amendment rights when all three Officers turned toward Mr. Israel as he exited the store with their hands on their guns and ordered him to stop and put his hands behind his back, and then (Officer Wolfe or Luke) handcuffed and searched him. Specifically, Mr. Israel alleges that the Defendants lacked "probable cause or reasonable suspicion, or any other legally valid basis, to believe that Mr. Israel had committed or was committing any violation of the law prior to seizing and detaining him and continuing to restrain him." Compl. [Doc #1] ¶¶ 42, 43.
The Officer Defendants argue in their motion that the Complaint allegations are conclusory and insufficient to plausibly state a cause of action for an unreasonable search of Mr. Israel. According to the Officer Defendants, their handcuffing and search of Mr. Israel was constitutionally permissible based on the information they had at the time and their search of his person for a weapon was permissible because it was supported by probable cause, or arguable probable cause, or, at the very least, reasonable suspicion to satisfy constitutional protections.
Plaintiffs counter that "for the reasons discussed in the [unlawful seizure] subsection above," because the Officer Defendants had no reasonable basis to stop and handcuff Mr. Israel, their search of Mr. Israel (like the seizure) was not justified at its inception. Resp. at 14. Plaintiffs argue the search of Mr. Israel was unlawful because the Officer Defendants did not have an articulable and reasonable suspicion that Mr. Israel was armed and dangerous such that a frisk of his person was authorized. In support, Plaintiffs state that "[a] pat-down search or 'frisk' is a search under the Fourth Amendment, and it is constitutional only if it is reasonable. Resp. at 13, citing Terry, 392 U.S. at 19, 88 S.Ct. 1868. Quoting United States v. Hammond, 890 F.3d 901, 905 (10th Cir. 2018), Plaintiffs add that "[d]uring the course of a valid investigative detention, an officer may conduct a limited protective search (frisk) if the officer harbors an articulable and reasonable suspicion that the person is armed and dangerous" and that "[w]hile the officer need not be absolutely certain that the individual is armed, he must be sure that 'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' " Resp. at 13-14. Thus, Plaintiffs argue, "the officer must not only harbor an articulable and reasonable suspicion that the person is armed and dangerous, the officer must also be entitled to make a forcible stop." Id. at 13, quoting King, 990 F.2d at 1557. Plaintiffs also assert that courts must be particularly cautious when the search and seizure is based on an anonymous tip, as discussed above.
Taking as true the totality of the circumstances as alleged in the Complaint (and in the incorporated materials), I conclude that Plaintiffs fail to plausibly allege that the Officer Defendants lacked the reasonable suspicion required to justify their seizure and pat down search of Mr. Israel. As discussed above, and as alleged in the Complaint, the Officer Defendants were responding to a 911 call reporting that a customer observed an adult Black male with a gun wearing a white hoodie in a gray/silver Cadillac in the Safeway parking lot. Having just confirmed many of the details given by the 911 caller and having just determined that there was no adult Black male in the silver Cadillac with a gun, the officers observed Mr. Israel exiting the store and walking toward his car. He was not wearing a white hoodie, but he was wearing a white T shirt. The HALO video shows that there were several bystanders in Safeway parking lot. Under these circumstances, as discussed in the unlawful seizure section above, including the officers' safety concerns, it was not unreasonable for the Officer Defendants to handcuff and conduct a brief search of Mr. Israel based on their reasonable suspicion that criminal activity was afoot and the possibility that Mr. Israel was armed and dangerous. See Perdue, 8 F.3d at 1462. Because Plaintiffs have failed to sufficiently plead that the Officer Defendants violated Mr. Israel's Fourth Amendment right to be free from unreasonable searches, Plaintiffs fail to carry their burden under the first prong of the qualified immunity analysis, and I need not address whether the right at issue was clearly established. The Officer Defendants are therefore entitled to qualified immunity as to the Second Claim for Relief.
c. Third Claim for Relief - Excessive Force
Plaintiffs allege that Sgt. Hausner, by pointing his gun at the "obviously unarmed" children in the car without reasonable suspicion to believe that they had committed or were committing a crime or that they posed any danger to himself or others, used excessive force in violation of the children's Fourth Amendment rights. Compl. ¶¶ 20, 59, 60. (The Third Claim for Relief is currently being asserted only by the minor Plaintiffs, the parties having filed a Stipulated Motion to Dismiss the excessive force claim as to the Estate of Mr. Israel, which was granted by the Court by order dated March 17, 2022. [Doc #55] It also appears that this claim is now being asserted only against Sgt. Hausner and the City, and not against the other individual Officer Defendants, Wolfe and Luke. See Resp. at 15 (stating in the heading that only "Defendant Hausner used excessive force against the minor Plaintiffs); id. at 20 (concluding the excessive force argument stating, "[a]ccordingly, Plaintiffs plausibly pleaded that Defendant Hausner used excessive force against minor Plaintiffs").)
The Officer Defendants argue that the excessive force claim should be dismissed because the force they used, in light of the circumstances, was reasonable. In support of their position, the Officer Defendants assert that they were responding to the 911 call (discussed above) and, as shown on the HALO video, that Sgt. Hausner, upon arriving at the Safeway parking lot in his vehicle, exited his vehicle and approached the Cadillac from behind and several feet away, pointed his gun at the car for approximately three seconds, then began lowering his weapon and fully lowered it after approximately ten seconds and, as he approached the driver's side of the car, holstered his weapon and removed his hand from the holster. See Mot. Ex. B [Doc #42-2] at 0:16 - 2:43.
In their Response, Plaintiffs counter that they have stated a plausible claim for relief for excessive force. They cite Maresca v. Bernalillo Cty., 804 F.3d 1301, 1313 (10th Cir. 2015) for the general proposition that "[a] police officer violates an [individual's] clearly established Fourth Amendment right to be free of excessive force during an arrest if the officer's . . . actions were not objectively reasonable in light of the facts and circumstances confronting him" and argue that they prevail on all of the factors set forth in Graham, which instructs that in determining whether the force used was reasonable, courts should consider the totality of the circumstances and factors including: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Id., 490 U.S. at 395-96, 109 S.Ct. 1865. Plaintiffs also argue that Maresca and Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001), two cases in which the court denied qualified immunity to officers who pointed guns at children, are similar to the instant case and support their argument that qualified immunity should similarly be denied here.
When examining an excessive force claim, courts assess "the reasonableness of an officer's conduct from the perspective of a reasonable officer on the scene, acknowledging that the officer may be forced to make split-second judgments in certain difficult circumstances." Buck v. City of Albuquerque, 549 F.3d 1269, 1287-88 (10th Cir. 2008) (quoting Marquez v. City of Albuquerque, 399 F.3d 1216, 1220 (10th Cir. 2005)). "Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.
I conclude that Sgt. Hausner's conduct, as alleged in the Complaint (including the HALO and bodycam videos), was objectively reasonable. The facts alleged in the Complaint (including the materials incorporated into the Complaint) regarding Sgt. Hausner's actions as he approached the car, referenced above, are not facts that would indicate that Plaintiffs' right to be free from excessive force was violated. The seizure of the minor Plaintiffs at issue here was justified, as discussed above, by the officers' reasonable suspicion that a crime was being committed and by their legitimate interest in minimizing risk of harm to the officers and members of the public in the parking lot. Applying the Graham factors, I agree with Plaintiffs that the crime, possession/concealing of a gun without the proper permit which is a violation of a municipal ordinance and a misdemeanor, weighs against the use of significant force, as does the fact that Plaintiffs did not resist or evade arrest. See Perea v. Baca, 817 F.3d 1198, 1203 (10th Cir. 2016) (stating that a "minor offense - at most-support[s] the use of minimal force"). The second Graham factor, i.e. whether the suspect poses an immediate threat to safety, would have justified the use of some force since the Officer Defendants had reason to believe when they arrived on the scene that someone was in the car with a gun in a grocery store parking lot, which might pose an immediate threat to safety of the officers and others. However, the minimal force Sgt. Hausner used was objectively reasonable and not excessive under the circumstances.
"Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (acknowledging that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment") (internal citations and quotation marks omitted); see also Gross v. Pirtle, 245 F.3d 1151, 1158 (10th Cir. 2001) (finding minimal force used by officer in arresting driver for a minor offense was reasonable); Perea, 817 F.3d at 1203 (although "an officer can effect an arrest for even a minor infraction, [a] minor offense—at most—support[s] the use of minimal force"). I find that the force used here was minimal and not objectively unreasonable or excessive. I cannot conclude that Sgt. Hausner acted unreasonably in his efforts to assess the situation and dispel the threat reported by the 911 caller. See Graham, 490 U.S. at 396-97, 109 S.Ct. 1865 ("The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.").
I also agree with the Officer Defendants that Holland and Maresca are factually dissimilar. In Holland, SWAT team officers pointed their firearms at children, which the court noted may have initially been justified, but held that the officers crossed the line when they continued to hold the children directly at gunpoint, even after they had gained complete control of the scene, for up to nearly ten minutes. Id., 268 F.3d at 1184, 1193. In Maresca, the officers ordered adults and children out of their vehicle at gun point, searched them for weapons, ordered them to lie face down on the ground and kept their guns pointed at the family for between 7 and 15 minutes, even after they did not find any weapons. Id., 804 F.3d at 1309. The court held that this was more than a limited intrusion lasting no longer than necessary to effectuate the purpose of the stop. Id. In the instant case, however, as noted above and depicted in the HALO video, Sgt. Hausner pointed his gun at the car for approximately three seconds, then began lowering his weapon and fully lowered it after approximately ten seconds and, as he approached the driver's side of the car, holstered his weapon and removed his hand from the holster. Mot. Ex. B [Doc #42-2] at 0:16 - 2:43. Sgt. Hausner did not order the children out of the car, did not point a gun at them for a prolonged time, did not pat them down for weapons and did not approach the children in the vehicle with his gun drawn. Id.
Considering the totality of the circumstances, I conclude that even accepting Plaintiffs' allegations as true and viewing the video footage in the light most favorable to Plaintiffs, Plaintiffs have not alleged sufficient facts to demonstrate that the Officer Defendants violated the minor Plaintiffs' Fourth Amendment rights to be free from excessive force. For these reasons, I grant the Officer Defendants' motion to dismiss the Third Claim for Relief.
2. Fourth Claim for Relief - Equal Protection
In their Fourth Claim for Relief, Plaintiffs allege that "All Plaintiffs race was a motivating factor in the Defendants' decisions to use excessive force, and in the decisions regarding how much force to use, against them" and that the "Defendants acted with the purpose of depriving Plaintiff [sic] of the equal protection and benefits of the law . . . in violation of the Fourteenth Amendment." Compl. at 12, ¶ 67. Plaintiffs also allege that the Defendants "treated All Plaintiffs less favorably than their similarly situated white counterparts, wholly or in part because of their race," that there was no rational basis for doing so and that the Defendants "intentionally, willfully, unreasonably and wantonly seized all Plaintiffs by using excessive force against them, as described herein, wholly or in part due to their race." Id. ¶¶ 68, 69, 71.
The Officer Defendants argue that Plaintiffs' equal protection claim should be dismissed because the claim is asserted without factual support and the allegations in the claim are merely conclusory statements which, according to Iqbal, are not entitled to the assumption of truth when considering whether a complaint is plausibly pled. The Officer Defendants claim that the Complaint lacks plausible allegations of discriminatory intent or purpose. While acknowledging that Plaintiffs are African American, and thus members of a protected class, the Officer Defendants maintain that there are no factual allegations in the Complaint that would support an inference that they approached Plaintiffs for any reason other than to investigate the 911 call or that the officers would not have responded to the call or would have responded differently had the individuals not been African American. The Officer Defendants also argue that Plaintiffs have failed to make any allegations regarding discriminatory effect, such as identifying a similarly situated individual who was treated differently under similar circumstances, or presenting statistical data indicating disparate treatment due to race.
Plaintiffs counter that the allegations in the Complaint and inferences therefrom plausibly allege that the Officer Defendants immediately resorted to aggressive seizure and use of force at least in part because Plaintiffs are Black. In support, Plaintiffs argue that the Officer Defendants were aware that the Plaintiffs were Black because the 911 caller said so. Plaintiffs further assert that where there is no legitimate basis for a seizure, which they argue is the case here, the inference that Plaintiffs' race played a role is heightened.
The fundamental guarantee of the Equal Protection Clause is that "all persons similarly situated shall be treated alike." City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Claims asserting selective enforcement of a law on the basis of race are properly brought under the Equal Protection Clause. Marshall v. Columbia Lea Reg'l Hosp., 345 F.3d 1157, 1166 (10th Cir. 2003). To state an Equal Protection Clause claim under § 1983, a plaintiff must allege facts showing that he or she is a member of a class of individuals that is being treated differently from similarly situated individuals who are not in that class. See SECSYS, LLC v. Vigil, 666 F.3d 678, 688 (10th Cir. 2012). Because Plaintiffs' claim is essentially a claim based on racially selective law enforcement, Plaintiffs "must demonstrate that the defendant's actions had a discriminatory effect and were motivated by a discriminatory purpose." Marshall, 345 F.3d at 1168. Discriminatory effect can be demonstrated with evidence of different treatment toward similarly situated individuals of another race or by relying on statistical evidence. See United States v. James, 257 F.3d 1173, 1179 (10th Cir. 2001). "The discriminatory purpose need not be the only purpose, but it must be a motivating factor in the decision." Marshall, 345 F.3d at 1168. "[A] police officer's pattern of traffic stops and arrests, his questions and statements to the person involved, and other relevant circumstances may support an inference of discriminatory purpose in this context." Id. Although plaintiffs can use statistical evidence to show selective law enforcement practices, such evidence "alone is rarely enough to show discriminatory purpose." Blackwell v. Strain, 496 F. App'x 836, 840 (10th Cir. 2012) (unpublished). This is so because in order to prove an Equal Protection Clause claim, plaintiffs "must prove that the decisionmakers in his case acted with discriminatory purpose." Id. (quoting McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)).
Plaintiffs argue that race was a motivating factor based on the fact that the Officer Defendants knew that the subject of the 911 call was Black. However, this is not a case where the officers randomly sought out a Black man to investigate. Rather, and importantly, the officers were responding to a 911 call of a Black man in a car in the Safeway parking lot with a gun. As the Officer Defendants point out, there are no factual allegations in the Complaint that would support an inference that the Officer Defendants approached Plaintiffs for any reason other than to investigate the 911 call as well as no allegations that the officers would not have responded to the 911 call at all, or that they would have made different decisions after they responded had the subject of the call been identified as white or had race not been mentioned. There are also no allegations in the Complaint, such as demographic data or statistics or even anecdotal evidence, that the Officer Defendants (or the City) respond to 911 calls involving Black people with guns differently than they do to 911 calls involving non-Black people with guns. Nor are there any plausible allegations, as determined above, that the officers search and seizures were unreasonable or that they used excessive force.
Therefore, I conclude that the allegations in the Complaint are insufficient to support Plaintiffs' Equal Protection Clause claim. Unlike Pittman v. City of Aurora, No. 19-cv-2209, 2020 WL 6586638 (D. Colo. Oct. 23, 2020), adopted by 2020 WL 6585840 (D. Colo. Nov. 10, 2020) and Pittman v. City of Aurora, No. 19-cv-1947, 2020 WL 6586659 (D. Colo. Oct. 23, 2020), adopted by 2020 WL 6585841 (D. Colo. Nov. 10, 2020) (cited by Plaintiffs) where the court found plausible the complaints' allegations that the officers' decisions to pull the plaintiff (a motorist) over and to detain and search him were pretextual and thus could support the discriminatory intent element of plaintiff's equal protection claims, I have already determined (above) that Plaintiffs have not plausibly alleged the absence of a reasonable basis to conduct the seizure of Plaintiffs and search of Mr. Israel, that is, that they have not plausibly alleged that the officers' decisions were pretextual. Thus, an inference, as urged by Plaintiffs, that race played a role is not appropriate. There are also no statements in the Complaint (or in Exhibit 1 thereto) alleging, based on statistics or demographic data, that similarly situated individuals are treated differently or that the Officer Defendants have a history of racially motivated investigative detentions or interactions with the public. For the same reason, Plaintiffs have failed to adequately plead discriminatory effect.
Exhibit 1 to the Complaint, while not specifically cited as a basis for Plaintiffs' Equal Protection Clause claim against the Officer Defendants (though it was cited in the Complaint as support for the equal protection claim against the City), lists and describes prior incidents involving the use of excessive force by the Denver Police Department. (The author of the lengthy memorandum is not identified and it appears, based on references therein to other plaintiffs, that the document has been used by plaintiffs in other cases and is being repurposed here to support Plaintiffs' claims against the City.) However, the memorandum sheds no light on the practices, pattern or history of discriminatory behavior on the part of the individual Officer Defendants or on how any of the Defendants treat Black individuals as compared to non-Black individuals in situations like the one at issue.
Absent plausible allegations asserting discriminatory effect or purpose, and lacking any basis to infer discriminatory intent, Plaintiffs cannot demonstrate that the Officer Defendants violated their constitutional right to equal protection of the law. Accordingly, I grant this portion of the Officer Defendants' Motion to Dismiss.
B. Official Capacity Claims Against the Officer Defendants
I presume, as the Officer Defendants do in their Reply, that Plaintiffs have abandoned their official capacity claims against the Officer Defendants by conceding that the claims are duplicative of their municipal liability claim against the City. See Resp. at 29 n.6; see also Silverstein v. Fed. Bureau of Prisons, 704 F. Supp.2d 1077, 1087 (D. Colo. 2010) ("Where . . . the entity is also named, there is no need for an official-capacity claim."). Accordingly, I will dismiss the claims against the Officer Defendants in their official capacities as redundant and unnecessary. See Fed. R.Civ.P. 12(f) (the court may strike from a pleading redundant claims).
C. Claims Against the City
The Complaint's four claims for relief are also brought against the City. Specifically, Plaintiffs allege that the City has a formal or informal custom, policy and practice which encourages, condones, tolerates and ratifies the false arrest and unlawful seizure of its citizens by law enforcement officers, as set forth in Exhibit 1 to the Complaint, and that this custom, policy and practice is so permanent and well-settled as to constitute custom by high-ranking officers including the Chief of Police and has been ratified by such policy-makers. The Complaint also alleges that the City failed to properly train, supervise and/or discipline its employees regarding the proper use of physical restraint and force, resulting in the use of excessive force, and particularly regarding how to avoid engaging in racially biased or disproportionately aggressive policing, as set forth in Exhibit 1 to the Complaint. See Compl. [Doc #1] ¶¶ 38, 39, 49, 50, 62, 74-78.
Local governing bodies can be sued directly under § 1983 when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, liability does not attach to the governmental entity pursuant to § 1983 for the acts of its employees unless the plaintiff can show: (1) that a municipal employee committed a constitutional violation; and (2) a municipal policy or custom was the moving force behind the constitutional deprivation. Myers v. Oklahoma Cnty. Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1317 (10th Cir.1998).
Because I have found no underlying constitutional deprivation by the Officer Defendants, I agree with the City that Plaintiffs' claims against it likewise fail to state a claim upon which relief can be granted. See Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (noting that municipal liability requires a preliminary showing of a predicate constitutional deprivation); see also Ireland v. Jefferson Cnty. Sheriff's Dep't, 193 F. Supp.2d 1201, 1227 (D. Colo. 2002) (municipal liability under § 1983 requires an underlying constitutional deprivation). I therefore grant the City's Motion to Dismiss.
IV. CONCLUSION
For the reasons set forth above, the Officer Defendants' Motion To Dismiss [Doc. #42] and the City's Motion to Dismiss [Doc #43] are GRANTED as follows:
1) Plaintiffs' claims against the Officer Defendants are DISMISSED WITH PREJUDICE for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6);
2) Plaintiffs' claims against the City are DISMISSED WITH PREJUDICE for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6); and
3) Defendants are GRANTED COSTS upon submission of a bill of costs within 14 days of the date judgment enters.